Johnston et al v. City of Westworth Village et al

Filing 31

MEMORANDUM OPINION AND ORDER: The court ORDERS that the motions to dismiss be, and are hereby, granted, and plaintiffs' claims against defendants be, and are hereby, dismissed. (Ordered by Judge John McBryde on 7/7/2017) (tln)

JUL -72011

IN THE UNITED STATES DISTRICT
NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
RITA JOHNSTON, ET AL.,

.

----;~==----

§
§

Plaintiffs,

§
§

vs.

§

NO. 4:17-CV-279-A

§

CITY OF WESTWORTH VILLAGE,
ET AL.,

§
§
§

Defendants.

§

MEMORANDUM OPINION AND ORDER
Came on for consideration the motion of defendants Corporal
Darby ("Darby") and Officer Mayorga ("Mayorga"), the motion of
defendant City of Westworth Village ("Village"), and the deemed
motion 1 of defendant Penny Loyd ("Loyd") to dismiss. The court,
having considered the motions, the responses of plaintiffs, Rita
Johnston and Angie Watkins, as next friend of LMW, a minor, the
replies of Darby, Mayorga, and Village, the record, and
applicable authorities, finds that the motions should be granted.
I.

Plaintiffs' Claims
On April 5, 2017, plaintiffs filed their original complaint.
Rita Johnston ("Rita") is the mother of Jason Johnston

1

By order signed June 29, 2017, the court deemed that the motion filed on behalf of Darby and
Mayorga also applies to defendant Loyd, and gave plaintiffs an opportunity to respond to such deemed
motion, which they have now done.

\

("Johnston") and Angie Watkins is the mother of Johnstonts minor
son. They allege:
Darby and Mayorga are police officers employed by Village.
On April 10

1

2015

1

Darby and Mayorga arrested Johnston/ a black

tar heroin addict/ for misdemeanor theft. They took Johnston to
the Village jail. Johnston appeared nervous and upset. During the
booking process/ Johnston was undressed to put on a jail uniform.
Mayorga took Johnston S socks because he realized the long socks
1

could be used by Johnston to harm himself. Mayorga permitted
Johnston to keep his athletic shorts/ in violation of Village
policy and procedure. The shorts were size 3XL and contained a
removable drawstring. Mayorga placed Johnston alone in cell #3

1

where he remained until his arraignment on April 11 at about
11:44 a.m. After the arraignment/ Darby placed Johnston back in
cell #3 at about 2:00p.m. on April 11. Video footage shows
Johnston sweating and pacing around the cell and/ at 2:12 p.m.

1

attempting to commit suicide by strangling himself with a
telephone cord. At or about 2:50 p.m.

1

Rita called and told Loyd

that she would not be able to post bond for Johnston; Loyd
relayed the message to Johnston via intercom. Johnston became
irate and Loyd observed him pacing around the cell with his hands
around the inner waistband of his jail-issued pants. Loyd

2

minimized the camera and actively browsed Facebook. 2 At 5:15
p.m., Loyd observed Johnston sitting on the ground against his
bunk. At or about 5:30p.m., Loyd dispatched Darby to Johnston's
cell. Defendants discovered that Johnston had hung himself by the
drawstring from his athletic shorts. Doc. 3 1 at 3-7, ~~ 12-44.
The counts of the complaint are curiously worded, but it
appears that both plaintiffs are asserting claims against Mayorga
for deliberate indifference and cruel and unusual punishment 4 ,
against Darby and Loyd for deliberate indifference, and against
Village for engaging in certain policies, practices and customs.
II.
Grounds of the Motions
Defendants maintain that plaintiffs have failed to plead
facts sufficient to state plausible claims against them. The
individual defendants additionally assert that they are entitled
to qualified immunity.

2

Loyd is alleged to be a dispatcher who monitors inmates via closed circuit monitoring cameras
at the Village jail.
3

The "Doc.

" reference is to the number of the item on the docket in this action.

4

lt appears that the same test applies as to these claims. Hare v. City of Corinth, 74 F.3d 633, 650
(5th Cir. 1996). In any event, plaintiffs do not address the cruel and unusual punishment claim separately
in their response.
3

III.
Applicable Legal Principles
A.

Pleading
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
quotation marks and ellipsis omitted) .

(2007)

(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, the facts pleaded must allow the court to infer

4

that the plaintiff's right to relief is plausible.
U.S. at 678.

Iqbal, 556

To allege a plausible right to relief, the facts

pleaded must suggest liability; allegations that are merely
consistent with unlawful conduct are insufficient. Id. In other
words, where the facts pleaded do no more than permit the court
to infer the possibility of misconduct, the complaint has not
shown that the pleader is entitled to relief. Id. at 679.
"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."

Id.

As the Fifth Circuit has explained: "Where the complaint is
devoid of facts that would put the defendant on notice as to what
conduct supports the claims, the complaint fails to satisfy the
requirement of notice

pleading.~~

Anderson v. U.S. Dep't of

Housing & Urban Dev., 554 F.3d 525, 528

(5th Cir. 2008). In sum,

"a complaint must do more than name laws that may have been
violated by the defendant; it must also allege facts regarding
what conduct violated those laws. In other words, a complaint
must put the defendant on notice as to what conduct is being
called for defense in a court of laW.

5

11

Id. at 528-29.

B.

Qualified Immunity
Qualified immunity insulates a government official from

civil damages liability when the official's actions do not
"violate clearly established statutory or constitutional rights
of which a reasonable person would have known."
Fitzgerald, 457 U.S. 800, 818 (1982).

Harlow v.

For a right to be "clearly

established," the right's contours must be "sufficiently clear
that a reasonable official would understand that what he is doing
violates that right."
(1987) .

Anderson v. Creighton, 483 U.S. 635, 640

Individual liability thus turns on the objective legal

reasonableness of the defendant's actions assessed in light of
clearly established law at the time.
224, 228

Hunter v. Bryant, 502 U.S.

(1991); Anderson, 483 U.S. at 639-40.

In Harlow, the

court explained that a key question is "whether that law was
clearly established at the time an action occurred" because "[i]f
the law at that time was not clearly established, an official
could not reasonably be expected to anticipate subsequent legal
developments, nor could he fairly be said to 'know' that the law
forbade conduct not previously identified as unlawful."
at 818.

457 U.S.

In assessing whether the law was clearly established at

the time, the court is to consider all relevant legal authority,
whether cited by the parties or not.
510, 512

(1994).

Elder v. Holloway, 510 U.S.

If public officials of reasonable competence

6

could differ on the lawfulness of defendant's actions, the
defendant is entitled to qualified immunity.

Malley v. Briggs,

475 U.S. 335, 341 (1986); Fraire v. City of Arlington, 957 F.2d
1268, 1273

(5th Cir. 1992).

"[A]n allegation of malice is not

sufficient to defeat immunity if the defendant acted in an
objectively reasonable manner."

Malley, 475 U.S. at 341.

In analyzing whether an individual defendant is entitled to
qualified immunity, the court considers whether plaintiff has
alleged any violation of a clearly established right, and, if so,
whether the individual defendant's conduct was objectively
reasonable.

Siegert v. Gilley, 500 U.S. 226, 231 (1991); Duckett

v. City of Cedar Park, 950 F.2d 272, 276-80 (5th Cir. 1992).

In

so doing, the court should not assume that plaintiff has stated a
claim, i.e., asserted a violation of a constitutional right.
Siegert, 500 U.S. at 232.

Rather, the court must be certain

that, if the facts alleged by plaintiff are true, a violation has
clearly occurred.
(5th Cir. 1989).

Connelly v. Comptroller, 876 F.2d 1209, 1212
A mistake in judgment does not cause an officer

to lose his qualified immunity defense.

In Hunter, the Supreme

Court explained:
The qualified immunity standard "gives ample room for
mistaken judgments" by protecting "all but the plainly
incompetent or those who knowingly violate the law."
Malley, [475 U.S.] at 343.
This accommodation for
reasonable error exists because "officials should not err

7

always on the side of caution" because they fear being sued.

502

u.s.

at 229.

When a defendant relies on qualified immunity, the burden is
on the plaintiff to negate the defense. Kovacic v. Villarreal,
628 F.3d 209, 211 (5th Cir. 2010); Foster v. City of Lake
Jackson, 28 F.3d 425, 428

(5th Cir. 1994). Although Supreme Court

precedent does not require a case directly on point, existing
precedent must place the statutory or constitutional question
beyond debate. White v. Pauly, 137 S. Ct. 548, 551 (2017). That
is, the clearly established law upon which plaintiff relies
should not be defined at a high level of generality, but must be
particularized to the facts of the case. Id. at 552. Thus, the
failure to identify a case where an officer acting under similar
circumstances was held to have violated a plaintiff's rights will
most likely defeat the plaintiff's ability to overcome a
qualified immunity defense. Id.; Surratt v McClarin, 851 F.3d
3 8 9 , 3 9 2 ( 5th
C.

ci r

. 2 o1 7 ) .

Vicarious Liability
The law is clearly established that the doctrine of

respondeat superior does not apply to

§

1983 actions.

Monell v.

New York City Dep't of Soc. Servs., 436 U.S. 658, 691 (1978);
Williams v. Luna, 909 F.2d 121, 123

8

(5th Cir. 1990). Liability

may be imposed against a governmental entity only if the
governmental body itself subjects a person to a deprivation of
rights or causes a person to be subjected to such deprivation.
Connick v. Thompson, 563 U.S. 51, 60

(2011). Local governments

are responsible only for their own illegal acts. Id.
Pembaur v. Cincinnati, 475

u.s.

(quoting

469, 479 (1986)). Thus,

plaintiffs who seek to impose liability on local governments
under

§

1983 must prove that action pursuant to official

municipal policy caused their injury. Monell, 436 U.S. at 691.
Specifically,· there must be an affirmative link between the
policy and the particular constitutional violation alleged. City
of Oklahoma City v. Tuttle, 471 U.S. 808, 823

(1985).

Proof of a single incident of unconstitutional activity is
not sufficient to impose liability, unless proof of the incident
includes proof that it was caused by an existing,
unconstitutional policy, which policy can be attributed to a
municipal policymaker. Tuttle, 471 U.S. at 823-24.

(If the policy

itself is not unconstitutional, considerably more proof than a
single incident will be necessary to establish both the requisite
fault and the causal connection between the policy and the
constitutional deprivation. Id. at 824.) Thus, to establish
governmental liability requires proof of three elements: a
policymaker, an official policy, and a violation of
9

constitutional rights whose moving force is the policy or custom.
Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th Cir. 2001).
The Fifth Circuit has been explicit in its definition of an
"official policy" that can lead to liability on the part of a
governmental entity, giving the following explanation in an
opinion issued en bane in response to a motion for rehearing in
Bennett v. City of Slidell:
1. A policy statement, ordinance, regulation, or
decision that is officially adopted and promulgated by
the municipality'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 municipal policy. Actual or constructive
knowledge of such custom must be attributable to the
governing body of the municipality or to an official to
whom that body had delegated policy-making authority.
Actions of officers or employees of a municipality do
not render the municipality liable under § 1983 unless
they execute official policy as above defined.
735 F.2d 861, 862

(5th Cir. 1984)

(per curiam).

The general rule is that allegations of isolated incidents
are insufficient to establish a custom or policy. Fraire v. City
of Arlington, 957 F.2d 1268, 1278

(5th Cir. 1992); McConney v.

City of Houston, 863 F.2d 1180, 1184
v. Hayden, 717 F.2d 220, 227-28

(5th Cir. 1989); Languirand

(5th Cir. 1983).

10

IV.
Analysis
The individual defendants contend that plaintiffs have not
pleaded sufficient facts to state a plausible claim against them.
Further, they say that plaintiffs have not pleaded facts to
defeat their qualified immunity defense. See Jabary v. City of
Allen, 547 F. App'x 600, 607-08

(5th Cir. 2013); Jones v. Lowndes

County, 678 F.3d 344, 349 (5th Cir. 2012). The court agrees.
The elements of a constitutional violation of deliberate
indifference are:

(1) the official was aware of the acts from

which an inference of substantial risk of serious harm could be
drawn;

(2) the official actually drew that inference; and,

(3)

the official's response indicates the official subjectively
intended that harm to occur. Thompson v. Upshur County, 245 F.3d
447, 458-59 (5th Cir. 2001). Subjective intent to harm cannot be
inferred from a negligent or even grossly negligent response to a
substantial risk of serious harm. Id. The deliberate indifference
standard is an extremely high standard to meet. Domino v. Texas
Dep't of Criminal Justice, 239 F.3d 752, 756

(5th Cir. 2001).

Failure to alleviate a significant risk the official should have
perceived but did not is insufficient to show deliberate
indifference. Id.

11

Here, plaintiffs respond that the constitutional right of
pretrial detainees to suicide prevention is well-established.
Hare v. City of Corinth, 74 F.3d 633

(5th Cir. 1996) (en bane).

However, the facts of the cases they cite are not analogous to
the facts pleaded here. See Jacobs v. West Feliciana Sheriff's
Dep't, 228 F.3d 388, 397-98

(5th Cir. 2000) (where the officers

had actual knowledge of the suicide risk but gave a blanket and
towel to an inmate placed in a cell where an earlier suicide had
taken place, disregarding precautions they knew should have been
taken). In this case, plaintiffs have not pleaded facts to show
that the individual defendants were aware of a substantial risk
that Johnston would commit suicide but refused to treat him,
ignored his complaints or engaged in any conduct that would
clearly evince a wanton disregard for any serious medical needs.
They have not alleged facts to show that Johnston so clearly
indicated an intent to harm himself that the individual
defendants could have only concluded that he posed a serious risk
to harm himself. Sibley v. Lemaire, 184 F.3d 481, 489 (5th Cir.
1999). In fact, the facts plaintiffs allege are nowhere near as
egregious as the facts in Sibley, or Hardin v. Hays, 957 F.2d 845
(11th Cir. 1992), or Branton v. City of Moss Point, 261 F. App'x
659

(5th Cir. 2008), or the cases cited in Hare v. City of

12

Corinth, 135 F.3d 320, 328-29 (5th Cir. 1998), where courts
concluded that there was no deliberate indifference.
Plaintiffs allege that Johnston: suffered from drug
addiction, Doc. 1 at 3,

~12;

sores on his arms, id. at
~17.

at 4,

had needle track marks and open

~13;

appeared nervous 5 and upset, id.

They do not cite any case holding that these facts are

sufficient to show a significant suicide risk. They plead that
Mayorga took Johnston's socks but not his athletic shorts or the
drawstring from it. Id. at 4,

~~

19-20. They do not allege that

Mayorga was even aware that there was a drawstring in the shorts.
They allege that video footage shows Johnston sweating and pacing
around his cell and attempting to commit suicide by strangling
himself with a telephone cord, id. at 5,

~~

29-30. They do not

allege that the individual defendants were responsible for
monitoring Johnston at the time or even had knowledge of these
things. In sum, the facts alleged are simply too sparse to show
that, at the time of the individual defendants' actions or
failures to act, it was clearly established in a more
particularized sense that they were violating Johnston's

5

The court notes that plaintiffs' responses do not accurately recite the facts they have pleaded.
For example, they contend that Johnston was "agitated" and upset, when the word used in the complaint
is "nervous." Docs. 21 & 22 at 1. Many of their references to the complaint are similarly misleading.

13

constitutional rights. See Brosseau v. Haugen, 543 U.S. 194, 199200

(2004).
Plaintiffs allege that they are entitled to conduct

discovery before the dismissal of their claims against the
individual defendants. However, to be entitled to discovery,
plaintiffs must have pleaded sufficient facts to state a claim
plausible on its face and must have asserted facts that, if true,
would overcome the qualified immunity defense. Backe v. LeBlanc,
691 F.3d 645, 648

(sth Cir. 2012). This they have not done. There

is no need for clarification of the facts in this case.
To state a claim against Village, plaintiffs had to plead
facts to show (1) the existence of a policy or customi

(2)

governmental policymakers actually or constructively knew of the
policy or customi
(4)

(3) a constitutional violation occurredi and

the policy or custom was the moving force behind the

violation. Meadowbriar Home for Children, Inc. v. Gunn, 81 F.3d
521, 532-33

(5th Cir. 1996). Plaintiffs cannot rely on conclusory

allegations, but must allege specific facts to describe the
policy or custom and its relationship to the constitutional
violation. Spiller, 130 F.3d at 167.
With regard to Village, plaintiffs assert nothing but
conclusory allegations. They cite to cases where failure to train
claims could be pursued because of the underlying facts alleged,
14

but fail to note that the facts of this case do not support such
claims. As the Fifth Circuit has noted, Partridge v. Two Unknown
Police Officers, 791 F.2d 1182

(5th Cir. 1986), upon which

plaintiffs rely, was based on allegations that the inmate in
question had become hysterical during questioning, his father had
told the jailers that he was suicidal, and records of the
inmate's prior incarceration noted that he had attempted suicide.
Burns v. City of Galveston, 905 F.2d 100, 104

(5th Cir. 1990). In

that instance, failure to train was a potentially viable claim.
Generally, however, the deliberate indifference standard in the
context of inadequate training is difficult to satisfy, because
the plaintiff must show that the need for more or different
training is so obvious, and the inadequacy so likely to result in
violations of constitutional rights, that the policymakers can be
said to have been deliberately indifferent to the need. Shepard
v. Hansford County, 110 F. Supp.3d 696, 716

(N.D. Tex. 2015).

That standard is not met here.
To the extent plaintiffs are complaining of a policy or lack
thereof, the Supreme Court has never recognized a constitutional
right to suicide prevention screening or protocols. Taylor v.
Barkes, 135 S. Ct. 2042, 2044-45

(2015). In any event, plaintiffs

have not pleaded facts to show that any policy was the moving
force behind Johnston's suicide.
15

Finally, absent a constitutional violation, Village cannot
be held liable. City of Los Angeles v. Heller, 475 U.S. 796, 799
(1986) . In this case, plaintiffs simply have not pleaded a viable
claim against any defendant, including Loyd.

(As Village notes,

at most, plaintiffs have alleged that Loyd was negligent in
carrying out her duties. Plaintiffs have not pleaded any facts to
show that Loyd was aware that Johnston was suicidal and was
subjectively deliberately indifferent to the risk that he would
commit suicide.)

v.
Order
The court ORDERS that the motions to dismiss be, and are
hereby, granted, and plaintiffs' claims against defendants be,
and are hereby, dismissed.
SIGNED July 7, 2017.

16