Blount v. Dalworthington Gardens TX City of et al
Filing
42
MEMORANDUM OPINION and ORDER: The court ORDERS that 40 City's motion to dismiss be, and is hereby, granted, and that plaintiff's claims in this action be, and are hereby, dismissed. (Ordered by Judge John McBryde on 6/7/2018) (bcr)
U.S. DISTRICT COURT
NORTHERi'! DISTRICT OF TEXAS
FILED
IN THE UNITED STATES DISTRICT .CO RT
NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
JONATHAN BLOUNT,
7 2018
CLERK, _.,,,.._ _ __
By _ U.S. DISTRICT COURT
Deputy
§
§
Plaintiff,
JUN
§
§
vs.
§
§
CITY OF DALWORTHINGTON GARDENS,
ET AL.,
§
§
§
§
Defendants.
NO. 4:17-CV-1014-A
MEMORANDUM OPINION AND ORDER
Came on for consideration the second motion of defendant
City of Dalworthington Gardens
("City") to dismiss. The court,
having considered the motion, the response of plaintiff, Jonathan
Blount, the record, and applicable authorities, finds that the
motion should be granted.
I.
Plaintiff's Claims
On September 1, 2017, plaintiff filed his complaint in the
Dallas Division of this court. Doc.' 1. By order signed December
20, 2017, the action was transferred to the docket of the
undersigned for possible consolidation with No. 4:17-CV-720-A.
Doc. 7. The court ordered plaintiff to file proof of proper
service of the complaint on the individual defendants named in
the complaint, cautioning that failure to comply with the order
'The "Doc._" reference is to the number of the item on the docket in this action.
.ght result in the dismissal of plaintiff's claims against the
individual defendants without further notice. Doc. 10. Plaintiff
failed to do so. By order signed January 2, 2018, the court
ordered that the claims against the individual defendants be
dismissed, Doc. 13, and by final judgment as to certain parties
also signed that date, made the judgment of dismissal final. Doc.
14.
After the court denied City's motion to dismiss for lack of
proper service, Doc. 32, City filed a Rule 12 (b) ( 6) motion to
dismiss. Doc. 33. After considering the motion, the response,
Doc. 36, and the reply, Doc. 37, the court ordered plaintiff to
file an amended complaint to state specifically his claims
against City. Doc. 38. As reflected in the order, plaintiff had
failed to state any plausible claims against City. The order did
not authorize plaintiff to add any other parties when he filed
his amended complaint. Nor did plaintiff seek leave to do so.
On May 4, 2018, plaintiff filed his amended complaint,
referring to the individual defendants who had previously been
dismissed as well as Bill Waybourn ("Waybourn"), and purporting
2
to add "Officer Does 1-10" and possibly Waybourn as defendants. 2
Doc. 39. Plaintiff alleged:
On September 1, 2015, plaintiff was at his home in the City
of Arlington when an alarm was activated at 3715 Dustin Trail in
the City of Dalworthington Gardens (the "property"). Doc. 39
, 12. Officers from City appeared at the front gate of the
property with wire cutters and opened the gate. Id. , 13.
Plaintiff went to the property, "making every attempt to
understand why" ten to fifteen officers "were at his home." 3 Id.
, 14. The officers did not present any documentation giving them
legal authority to remove plaintiff from the property; plaintiff
produced a deed showing that he was the rightful owner and had
possession of the property. Id. , 18. Plaintiff was "handcuffed
dragged from his home leaving all his possession [sic] behind,
except for one vehicle and his animals, told to leave his
property and that he was criminally trespassing and threaten
[sic] not to return or he would be rearrested for Criminal
Trespassing." Id. , 19.
'The amended complaint purp01is to amend the caption to include "Officer Does 1-10" and
Waybourn as defendants. However, Waybourn is not named as a party in the "Parties" section. Doc. 39 at
2. As best the comt can tell, the only reference to Waybourn is made under the heading "State Action"
where plaintiff avers that the unidentified officers were acting at the direction of Waybourn. Id. 119.
'Plaintiff does not explain why he has or had two homes.
3
Further:
20. Despite the officer's actions, [plaintiff] did not
become aggressive or hostile, but he simply continued
to ask the officers why they were roughing him up,
placing him in handcuffs and removing him from the
comfort of his home. They became rough with [plaintiff]
and begin [sic] to grab and twist his arm and
ultimately forcing him to the ground placing handcuffs
on [plaintiff]. Additionally, his legs were shackled
before he was removed from the property.
21. Defendant Officers eventually threw [plaintiff]
with handcuffs into the back of a police car and drove
him away with just the clothes on his back.
22. [Plaintiff] was never charged with a crime and was
never allowed to return to his property.
23. No eviction notice was provided. No eviction
proceeding was conducted. No writ of possession was
issued.
24. [Plaintiff] suffered a black eye and numerous
bruises and abrasions as a result of the Defendant
Officers' assault.
25. [Plaintiff] lost his home and all of his belongings
as a result of Defendants' unlawful actions.
Id. ,, 20-25.
Plaintiff purports to assert claims for excessive force
(Count One), City's failure to train, supervise and discipline
(Count Two), unlawful detention/false arrest (Count Three),
denial of due process
(Count Four), negligence (Count Five),
gross negligence (Count six), assault and battery (Count Seven),
and intentional infliction of emotional distress (Count Eight) .
II.
Grounds of the Motion
City says that plaintiff has failed to allege facts
sufficient to establish any underlying constitutional violation
4
and that he has not alleged facts to establish that a policy,
custom, or practice of City caused any constitutional violation.
Further, City is immune from any state law claims. And, City
cannot be held liable for exemplary damages.
III.
Applicable Legal Standards
A.
Pleading
Rule 8 (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. 8(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
5
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
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.
11
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
6
must put the defendant on notice as to what conduct is being
called for defense in a court of law." Id. at 528-29. Further,
the complaint must specify the acts of the defendants
individually, not collectively, to meet the pleading standards of
Rule 8(a). See Griggs v. State Farm Lloyds, 181 F.3d 694,
699
(5t" Cir. 1999); see also Searcy v. Knight (In re Am. Int'l
Refinery), 402 B.R. 728, 738
B.
(Bankr. W.D. La. 2008).
Municipal Liability Under
1983
§
The law is clearly established that the doctrine of
respondent 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
(5th Cir. 1990). Liability
may be imposed against a municipality 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.
v. Cincinnati, 475 U.S. 469, 479
(quoting Pembaur
(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
7
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
municipal liability requires proof of three elements: a
policymaker, an official policy, and a violation of
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
8
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 (5th Cir. 1989); Languirand
v. Hayden, 717 F.2d 220, 227-28
C.
(5th Cir. 1983).
Excessive Force
The elements of an excessive force claim are (1) an injury,
(2) that resulted directly and only from a use of force that was
clearly excessive, and (3) the excessiveness was clearly
unreasonable. Freeman v. Gore, 483 F.3d 404, 416
(5th Cir. 2007).
The reasonableness of use of force is to be determined from
the perspective of the officer on the scene and not with "the 2020 vision of hindsight." Mace, 333 F.3d at 625
(quoting Graham v.
Connor, 490 U.S. 386, 396 (1989)). That the officer himself may
have created the situation does not change the analysis. In other
words, that the officer could have handled the situation better
9
is not a factor in the constitutional analysis. Young v. City of
Killeen, 775 F.2d 1349, 1352-53
(5th Cir. 1985). See also City
&
Cty. Of San Francisco v. Sheehan, 135 S. Ct. 1765, 1777
(2015) (failure to follow training does not itself negate
entitlement to qualified immunity). And, if there is no
underlying constitutional violation by the officer, i.e., no
excessive force, then his employer cannot be held liable. City of
Los Angeles v. Heller, 475 U.S. 796, 799 (1986).
D.
Texas Tort Claims Act
Under the Texas doctrine of sovereign immunity, a
governmental entity cannot be held liable for the actions of its
employees unless a constitutional or statutory provision waives
its sovereign immunity in clear and unambiguous language. See
Univ. of Tex. Med. Branch v. York, 871 S.W.2d 175, 177
(Tex.1994); Duhart v. State, 610 S.W.2d 740, 742 (Tex.1980). The
Texas Tort Claims Act provides such a waiver in certain
circumstances. Tex. Civ. Prac. & Rem. Code
§
101.025; York, 871
S.W.2d at 177. However, the Act does not waive immunity with
respect to claims "arising out of assault, battery, false
imprisonment, or any other intentional tort." Tex. Civ. Prac. &
Rem. Code
388, 394
§
101.057(2); see
(5~
Goodman v. Harris County, 571 F.3d
Cir. 2009). Use of excessive force is an
intentional tort and an alternative negligence pleading cannot
10
save the claim where the claim is based on the same conduct as
the intentional tort claim. Saenz v. City of El Paso, 637 F.
App'x 828, 830-31 (5th Cir. 2016); Cox v. City of Fort Worth, 762
F. Supp. 2d 926, 935
(N.D. Tex. 2010).
IV.
Analysis
One of the first matters addressed by the motion to dismiss
is plaintiff's purported attempt to name additional defendants in
his amended complaint. Doc. 40 at 8 & n.l. Plaintiff makes no
response, apparently recognizing that the court did not grant
leave to add additional defendants and that they have not been
properly joined. Plaintiff has not stated a claim against
Waybourn or the unidentified Does in any event. Moreover, the
federal rules do not provide for the naming of fictitious parties
and the court lacks jurisdiction over them. Taylor v. Federal
Home Loan Bank Bd., 661 F. Supp. 1341, 1350 (N.D. Tex. 1986).
And, even assuming plaintiff could state plausible claims against
Waybourn or the Does, the time for doing so has long expired.
Owens v. Okure, 488 U.S. 235, 249-50
(1989); Flores v. Cameron
Cnty., 92 F.3d 258, 271 (5th Cir. 1996). Accordingly, these
claims are being dismissed.
City's argument as to the constitutional claims is two-fold.
First, plaintiff has failed to adequately plead his underlying
11
claims for violation of the Fourth, Fifth, and Fourteenth
Amendments.' And second, even if he has pleaded a constitutional
violation, plaintiff has failed to adequately plead that a City
policy was the moving force behind any such violation. The court
need not take up the first argument 5 as it is obvious that
plaintiff has not sufficiently alleged facts to show that a City
policy caused any constitutional harm to him.
A good part of plaintiff's response is devoted to a "summary
of facts" including facts not alleged in the amended complaint.
See, e.g., Doc. 41 at 5, ,
3. 6 And, although plaintiff recites
the test for asserting a claim against a municipality, Doc. 41 at
14, he glosses over the specificity required to meet the test. In
essence, he argues that his conclusory allegations are
sufficient.
As stated, supra, the requisite elements of a claim of
municipal liability are a policymaker, an official policy, and a
4
The court notes that plaintiff concedes he has not pleaded any Fifth Amendment claims. Doc. 41
at 21.
5
With regard to the sufficiency of the underlying claims, the court notes that the few facts
pleaded by plaintiff arc internally inconsistent and it is not clear whether plaintiff was actually arrested or
temporarily detained. Further, it appears that plaintiff suffered only a de minimis injury insufficient to
support an excessive force claim. See Freeman v. Gore, 483 F.3d 404, 416-17 (5th Cir. 2007). And,
plaintiff has pleaded nothing more than conclusory allegations with regard to the alleged due process
violation.
'The comi notes that the response also contains arguments based on other facts not pleaded that
would have been material to plaintiffs claims. See, e.g., Doc. 41 at 17 (apparently admitting that plaintiff
was a trespasser at the time of the events giving rise to his claims).
12
violation of constitutional rights whose moving force is the
policy. Piotrowski, 237 F.3d at 578. Although plaintiff has
arguably identified a policymaker, he has not pleaded facts to
establish the existence of any policy, custom, or practice. That
is, plaintiff has not identified a policy statement, ordinance,
regulation, or decision officially adopted and promulgated by
City. Bennett, 735 F.2d at 862. Nor has he shown a persistent,
widespread practice so common and well-settled as to constitute a
custom that fairly represents City's policy. Id. See Zarnow v.
City of Wichita Falls, 614 F.3d 161, 169 (5th Cir. 2010) (a custom
"consists of actions that have occurred for so long and with such
frequency that the course of conduct demonstrates the governing
body's knowledge and acceptance of the conduct"). To show a
custom or practice, plaintiff must demonstrate a "pattern of
abuses that transcends the error made in a single case."
Piotrowski, 237 F.3d at 582. A pattern requires similarity and
specificity; prior incidents cannot simply include bad or unwise
acts, but must point to the specific violation in question.
Peterson v. City of Fort Worth, 588 F.3d 838, 851 (5th Cir.
2009) .
Here, plaintiff alternately argues that there was a policy
or that there was a failure to adopt a policy, but he never
identifies a specific policy; nor does he cite to any similar
13
instances to demonstrate a pattern that would support the finding
of a custom or practice.' For example, plaintiff recognizes that
to state a failure to train theory of liability against City, he
must demonstrate that City's training policy was inadequate; City
was deliberately indifferent in adopting its training policy;
and, the inadequate training policy directly caused the
violations in question. Doc. 41 at 16. He says that he
specifically alleged that City "developed and maintained a policy
of deficient training of its police force in the use of force and
due process." Id. at 16-17 (citing Doc. 1, p. 6 , 12) . 8 He does
not identify, and the court cannot find,
in the amended complaint
any allegations regarding what the policy was or how or why the
policy was deficient or a pattern of similar constitutional
violations from which deliberate indifference could be discerned.
See Connick, 563 U.S. at 62. Even though plaintiff does allege,
on information and belief, that City officers are trained based
upon Texas Commission on Law Enforcement requirements and that
such training does not include training on evictions, Doc. 39
, 37, this is not the type of case where the inadequacy of the
7
The conclusory arguments plaintiff makes about other "excessive force complaints and several
lawsuits for violating citizens' constitutional rights" in his response, Doe. 41 at 19, do not make up for
his failure to plead any specific facts relative to policy, custom or practice.
8
The citation is incorrect and apparently refers to the original complaint. The same paragraph is
found in the amended complaint at if 39.
14
training is obvious and obviously likely to result in a
constitutional violation. See Goodman v. Harris Cnty., 571 F.3d
388, 395
(5th Cir. 2009) (noting that only in extreme
circumstances--such as shooting anything that moves and killing
an innocent bystander--can a single violation be sufficient be
sufficient to show a custom or policy). Plaintiff's amended
complaint does not state a claim against City based on alleged
constitutional violations.
Plaintiff fails to respond to the contention that City is
immune from his state law tort claims. Nor does he argue that
City is not immune from exemplary damages. He apparently concedes
that dismissal of those claims is appropriate.
Finally, plaintiff mentions at the end of his response that
if the court finds his pleading to be deficient in any way, the
court grant him leave to amend. As he states,
"the court should
generally give the plaintiff at least one chance to amend." Doc.
41 at 24. Of course,
in this case, plaintiff has already had that
chance and his amended pleading fares no better than the
original.
v.
Order
The court ORDERS that City's motion to dismiss be, and is
hereby, granted, and that plaintiff's claims in this action be,
15
and are hereby, dismissed.
SIGNED June 7, 2018.
Judg
16
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