Grisham v. City of Ft Worth, Texas et al

Filing 30

Memorandum Opinion and Order...Dehoyo's motion to dismiss is granted; all claims by plaintiff against DeHoyos in her individual capacity is dismissed w/prej; claims by pltf against Dehoyos in official capacity dismissed w/o prej. (Ordered by Judge John McBryde on 6/24/2015) (wrb)

li.S. DiSTiliCT COURT
NORTHERN niSTIUCTOFTEXAS

FILED

IN THE UNITED STATES DISTR CT COtfRT___ _
NORTHERN DISTRICT OF T XAS
FORT WORTH DIVISIO
DAVID GRISHAM,
Plaintiff,

vs.
CITY OF FORT WORTH, TEXAS,
ET AL.,
Defendants.

JUN 2 ll 2016 \

CLERK,U.S.OISTRICTCOURT

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NO. 4:15-CV-324-A

MEMORANDUM OPINION
and
ORDER
Before the court for consideration and decision is the
motion of defendant Rachel A. DeHoyos ("DeHoyos") to dismiss for
failure to state a claim.

After having considered such motion,

the response thereto of plaintiff, David Grisham, DeHoyos's
reply, plaintiff's complaint, and pertinent legal authorities,
the court has concluded that such motion should be granted and
that all claims asserted by plaintiff against DeHoyos should be
dismissed.
I.

Allegations of Complaint
In summary form,

the factual allegations of plaintiff's

complaint are as follows:
In October 2014, a group known as the Tarrant County Gay
Pride Week Association ("TCGPWA") had an outdoor event permit
from the City of Fort Worth, Texas,

("City") to conduct a

festival in General Worth Square in downtown Fort Worth to
promote a positive image for the community regarding Gay,
Lesbian, Bisexual, and Transgendered ("GLBT")

individuals, and to

educate and celebrate the diversity of the GLBT community in
Tarrant County.

On October 4, 2014, plaintiff, along with family

and friends, went to downtown Fort Worth to share their
evangelistic message while the TCGPWA festival was taking place
in General Worth Square.

When they arrived at General Worth

Square, the festival was already underway.

The festival event

was free of charge, and all of General Worth Square and bounding
sidewalks remained accessible and open to the general public at
all times.
Plaintiff, his wife, Tracy, and his daughter, Tina, entered
the part of General Worth Square where the festival was taking
place, and they all handed out gospel tracts.

Tracy and Tina

were confronted by Fort Worth police officers, who instructed
them to leave General Worth Square under the threat of arrest.
The officers informed them that TCGPWA had a permit for the
festival, and controlled activity in the area.

Tracy and Tina

were told that they would not be allowed to remain in any part of
General Worth Square, and they were escorted by the officers out
of the Square.

When Tracy and Tina tried to stop and carry on

their activity on a city sidewalk between General Worth Square

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and Eighth Street, the police officers required them to keep
moving to the sidewalk on the other side of Eighth Street because
the sidewalk they were on was also within the scope of TCGPWA's
permit.

After they resisted the request by the police officers

that they move to the other side of the street, Tracy and Tina
were warned by the police officers that if they did not go across
the street they would face criminal arrest; and, the police
officers physically took them by their arms and walked them
across Eighth Street to the sidewalk on the other side.

Those

police officers then returned to General Worth Square.
A short while later DeHoyos, a sergeant with the Fort Worth
Police Department, approached Tracy where she was standing on the
sidewalk on the other side of Eighth Street, and warned her to
stay away from the area.

Upon witnessing the interaction between

Tracy and DeHoyos, plaintiff walked across the street to join the
conversation.

When he learned of the ouster of Tracy and Tina

from the sidewalk on the General Worth Square side of Eighth
Street, he informed DeHoyos that he took issue with that ban.

He

explained to DeHoyos that he and his group were willing to stay
outside the festival area in General Worth Square and would stay
on the bordering sidewalk, next to Eighth Street.

DeHoyos

responded that "they had 'issues' in the past 'where there had
almost been physical confrontation.'"

3

Compl. at 8, , 54.

DeHoyos "insisted that [plaintiff] stay off of the city sidewalk
and remain on his side of the street because she couldn't
guarantee his safety on the other side of the street.
Id.,

~55.

"

When plaintiff told DeHoyos that he could not accept

that condition, she reminded him that where plaintiff was
standing was a free speech zone, and warned him that she did not
want him inside the festival or "over there on the sidewalk,"
explaining that "[t]hey have a permit to have this whole thing
closed."

Id. at 9,

~

58.

DeHoyos told plaintiff that she was

there "to ensure the safety of you and the safety of the people
that are in here."

Id., ~59.

When plaintiff responded to

DeHoyos's concerns by saying "if we get in a violent
confrontation with somebody, then you can throw us out," id.,
,

61,

to which she replied that "they already had a violent

confrontation almost happen out there once," id., ,

62.

After plaintiff continued to insist to DeHoyos that he had
the right to conduct his activities on the other side of Eighth
Street, DeHoyos went to find the contact person for TCGPWA, Tony
Coronado ("Coronado"), and returned with him and two uniformed
police officers.

When they returned, DeHoyos introduced Coronado

as being in charge of the festival, explaining to plaintiff that
"they own General Worth Square today by permit.
10, , 67.

"

Id. at

When plaintiff responded that the permit did not cover

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the sidewalk bounding Eighth Street, DeHoyos replied that the
permit "covers curb to curb.

"

Id.,

~ 69.

DeHoyos told plaintiff that Coronado was going to issue what
was called a criminal trespass warning because Coronado did not
want plaintiff or any of his people to go into the festival; and,
she explained, that once Coronado had issued the warning, they
would be subject to being jailed if they violated it.

DeHoyos

"indicated that TCGPWA had complete control over the public
property.

"

Id.,

~

70.

Coronado joined in by telling

plaintiff that his group did not want plaintiff or his group in
the festival, explaining that TCGPWA had a permit for the public
property as DeHoyos had explained.

DeHoyos reiterated to

plaintiff that she had given him the trespass order and that he
could be arrested for trespass for sharing his views on the
sidewalk next to Eighth Street.

She repeated to plaintiff that

"TCGPWA maintained a permit over the city sidewalk," id. at 11, ~
76,

and that "he would be arrested for trespass if he went over

the city sidewalk to speak," id.,
the conversation.

~

77.

DeHoyos then concluded

For fear of arrest, plaintiff did not try to

go over to General Worth Square or the sidewalk next to it during
the TCGPWA festival that day.
City had "a policy, practice, custom, or procedure that
allows the permittee holding an outdoor event permit to

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disallow unwanted expression on accessible public ways, including
those outside the perimeter of the events," which "policy,
practice, custom, or procedure is enforced by the Fort Worth
Police Department."

Id. at 12, ,

83.

The conduct of the police

officers reflect that City has "failed to train police officers
to acknowledge and protect First Amendment rights of citizens
when trying to speak on public property."

Id., , 84.

Such

policy, practice, custom, or procedure and failure to train led
City to ban plaintiff's literature distribution and conversations
on public sidewalks surrounding General Worth Square during the
TCGPWA festival.

* * * * *
Plaintiff alleged two causes of action, first, violation of
freedom of speech, and, second, violation of due process.

His

freedom of speech cause of action is predicated entirely on the
"policies, practices, customs, or procedures that led to the ban
on his religious literature distribution and conversation on
public sidewalk next to General Worth Square during the TCGPWA
festival.

"

Id. at 14, ,

99.

He claimed in his first cause

of action that such policies, practices, customs, and procedures,
and the resulting ban and enforcement thereof, violated the Free
Speech Clause of the First Amendment of the United States
Constitution, made applicable to the states through the

6

Fourteenth Amendment.

The violation of due process cause of

action is based on the same facts, policies, practices, customs,
and procedures upon which the freedom of speech cause of action
is based.
II.
Grounds of DeHoyos's Motion
DeHoyos was sued both in her individual capacity and in her
official capacity as a police officer of City.
DeHoyos moved for dismissal of whatever claims plaintiff
might be seeking to assert against her in her individual capacity
because (1) plaintiff failed to allege facts that would, if
accepted as true, overcome the qualified immunity from suit
enjoyed by DeHoyos as a police officer, and (2) assertion of a
due process claim would not be appropriate in any event inasmuch
as plaintiff's First Amendment claim is based on the same alleged
facts.
As to the official capacity claim asserted by plaintiff
against DeHoyos, DeHoyos pointed out that such a claim is
redundant of the claims made by plaintiff against City inasmuch
as an official capacity claim is deemed by law to be a claim
against the governmental body for which the official is employed.

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III.

Analysis
A.

Failure-to-State-a-Claim Standard
Rule B(a) (2) of the Federal Rules of Civil Procedure

provides, in a general way, the applicable standard of pleading.
It requires that a complaint contain "a short and plain statement
of the claim showing that the pleader is entitled to relief,"
Fed. R. Civ. P.

B(a) (2),

"in order to give the defendant fair

notice of what the claim is and the grounds upon which it rests,"
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
quotation marks and ellipsis omitted) .

(internal

Although a complaint need

not contain detailed factual allegations, the "showing"
contemplated by Rule 8 requires the plaintiff to do more than
simply allege legal conclusions or recite the elements of a cause
of action.

Twombly, 550 U.S. at 555 & n.3.

Thus, while a court

must accept all of the factual allegations in the complaint as
true, it need not credit bare legal conclusions that are
unsupported by any factual underpinnings.
556 U.S. 662, 679 (2009)

See Ashcroft v. Iqbal,

("While legal conclusions can provide

the framework of a complaint, they must be supported by factual
allegations.").
Moreover, to survive a motion to dismiss for failure to
state a claim under Rule 12(b) (6), the facts pleaded must allow
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the court to infer that the plaintiff's right to relief is
plausible.

Id.

To allege a plausible right to relief, the facts

pleaded must suggest liability; allegations that are merely
consistent with unlawful conduct are insufficient.
U.S. at 566-69.

Twombly, 550

"Determining whether a complaint states a

plausible claim for relief .

[is] a context-specific task

that requires the reviewing court to draw on its judicial
experience and common sense."
B.

Iqbal, 556 U.S. at 679.

Plaintiff's Allegations Do Not Overcome DeHoyos's Qualified
Immunity Defense
"Qualified immunity shields government officials from civil

damages liability unless the official violated a statutory or
constitutional right that was clearly established at the time of
the challenged conduct."
S. Ct. 2088, 2093 (2012).

Reichle v. Howards,

u.s.

' 132

A court "may grant qualified immunity

on the ground that a purported right was not 'clearly
established' by prior case law, without resolving the often more
difficult question whether the purported right exists at all."
Id.

"To be clearly established, a right must be sufficiently

clear that every reasonable official would have understood that
what he is doing violates that right."
marks and brackets omitted) .

Id.

(internal quotation

"In other words, existing precedent

9

must have placed the statutory or constitutional question beyond
debate."

Id.

(internal quotation marks omitted).

In order to overcome the qualified immunity shield, the
plaintiff must plead "facts showing (1) that the official
violated a statutory or constitutional right, and (2) that the
right was 'clearly established' at the time of the challenged
conduct."
2080

u.s.

Ashcroft v. Al- Kidd,

(2011).

, 131 S. Ct. 2074,

"The qualified immunity standard gives ample room

for mistaken judgment by protecting all but the plainly
incompetent of those who knowingly violate the law.

Brumfield v.

Hollins, 551 F.3d 322, 326 (5th Cir. 2008) (internal quotation
marks and brackets omitted) .
1.

The First Prong of the Qualified Immunity Analysis

Plaintiff has failed to plead against DeHoyos facts that
would support a conclusion that she violated any constitutional
rights of plaintiff.

Plaintiff maintains that his freedom-of-

speech rights were violated by reason of "policies, practices,
customs, and procedures, the ban, and the enforcement thereof.

"

Compl. at 14, , , 99-100.

There is no allegation in the

complaint that DeHoyos participated in establishment of any
policy, practice, custom, or procedure that led to her decision
to instruct plaintiff to stay on the opposite side of Eighth
Street to disseminate whatever he wished to disseminate.
10

Nor is there any suggestion in the facts alleged in the
pleading that any policy, practice, custom, or procedure had as a
goal the prevention of dissemination of religious literature or
conversation.

For all the pleading shows, if there was such a

policy, practice, custom, or procedure it was content and
subject-matter neutral.

No fact alleged in the pleading would

support a conclusion that any of the policies, practices,
customs, or procedures about which plaintiff complains had as an
objective denying speech within the area covered by an outdoor
event permit on the basis of the content or subject matter of the
speech.

Put another way, there is no allegation of fact in the

pleading that would support a conclusion that any policy,
practice, custom, or procedure of City restricting activity
within an area covered by an outdoor event permit issued by City
was based upon either the content or subject matter of speech.
Thus, one of the criterion is absent here.

See Heffron v.

International Soc'y for Krishna Consciousness, Inc., 452 u.s.
640,

647-68

(1981).

Nor are any facts pleaded that would support a conclusion
that plaintiff, his family, or his friends were denied an
opportunity to convey their views to those in attendance at the
TCGPWA event.

No facts are pleaded that would suggest that

plaintiff, his family, and his friends could not effectively
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convey their views to participants in the festival without being
on the festival side of Eighth Street, such as by stationing
themselves and conveying their views to those coming and going at
the entrances into the festival event.

See Heffron, 452 U.S. at

655; see also Marcavage v. City of Phila., 481 Fed. App'x 742,
747 (3d Cir. 2012).

As the Supreme Court explained in Heffron,

"the First Amendment does not guarantee the right to communicate
one's views at all times and places or in any manner that may be
desired."

452 U.S. at 647.

There are no allegations of fact that would support the
conclusions that whatever restrictions City's policies,
practices, customs, or procedures placed on speech on City
premises occupied by a permittee pursuant to an outdoor event
permit such as the one held by TCGPWA for the conduct of the
festival in question did not constitute reasonable time, place,
and manner restrictions or that whatever restrictions were
imposed did not serve a significant governmental interest or
leave open ample opportunity channels for communication of
information such as the information plaintiff wished to convey.
Heffron, 452 U.S. at 647-48.

Nor are there any allegations of

fact that would suggest that any actions taken by DeHoyos in
relation to plaintiff were calculated to deprive plaintiff of a
reasonable opportunity to convey whatever views he wished to
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convey to participants in the festival.

summed up, plaintiff

failed to allege facts that suggest that plaintiff has a
plausible claim of free speech violation against DeHoyos.
As to plaintiff's due process violation claim, plaintiff is
faced with the principle that "[w]here a particular Amendment
provides an explicit textual source of constitutional protection
against a particular sort of governmental behavior, that
Amendment, not the more generalized notion of substantial due
process, must be the guide for analyzing these claims."
v. Oliver, 510 U.S. 266, 273

Albright

(1994) (internal quotation marks

omitted); see also Brown v. Chicago Bd. of Educ., 973 F. Supp. 2d
870, 881 (N.D. Ill. 2013).

Thus, plaintiff also has failed to

allege facts that would suggest that plaintiff has a plausible
due process violation claim against DeHoyos.
2.

The Second Prong of the Qualified Immunity Analysis

Under this sub-subheading, the court assumes, for the sake
of discussion, that plaintiff has correctly pleaded that pursuant
to policy, practice, custom, or procedure City granted TCGPWA an
outdoor event permit that prevented plaintiff from conveying
whatever messages he wished to convey within the geographical
area covered by the permit, including the Eighth Street sidewalk
adjacent to General Worth Square.

No facts are alleged that

would support a conclusion that such a permit violated a
13

constitutional right that was clearly established at the time of
DeHoyos's conduct about which plaintiff complains.

Moreover,

the most reasonable inference to be drawn from the allegations of
the complaint is that DeHoyos's concern was with the safety of
plaintiff and his group, not the content of the message plaintiff
and his group were seeking to convey to festival attendees.

No

facts are alleged that would support a conclusion that any
clearly established constitutional right possessed by plaintiff
was violated by the conduct on the part of DeHoyos that was
motivated by such a concern.

Nor are facts alleged that would

lead to the conclusion that every reasonable police officer
situated as DeHoyos was at the time would have understood that
what she was doing violated a constitutional right of plaintiff.
Therefore, plaintiff failed to allege facts that would support a
conclusion that the second prong of the qualified immunity
analysis exists.
C.

Plaintiff's Official Capacity Claims Against DeHoyos are
Redundant
Those claims are the equivalent of claims by plaintiff

against City.

See Kentucky v. Graham, 473 U.S. 159, 165-66

(1985); Brandon v. Holt, 469 U.S. 464, 471-73

(1985).

Thus, the

claims against DeHoyos in her official capacity should be
dismissed without prejudice.

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IV.
Order
For the reasons given above,
The court ORDERS that DeHoyos's motion to dismiss be, and is
hereby, granted;
The court further ORDERS that all claims and causes of
action asserted by plaintiff against DeHoyos in her individual
capacity be, and are hereby, dismissed with prejudice; and
The court further ORDERS that all claims and causes of
action asserted by plaintiff against DeHoyos in her official
capacity be, and are hereby, dismissed without prejudice.
The court determines that there is no just reason for delay
in, and hereby directs, entry of final judgment as to such
dismissals.
SIGNED June 24, 2015.

District

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