Arif v. City of Euless et al

Filing 10

MEMORANDUM OPINION and ORDER: The court ORDERS that all claims and causes of action asserted by plaintiff against City, Killman, and Sims, be, and are hereby, dismissed with prejudice pursuant to the authority of 28 U.S.C. § 1915A(b) (1). (Ordered by Judge John McBryde on 2/8/2018) (tln)

, ''··
US, DISTRICT COURT
NORTHERN DISTRICT OF TEX\';

FILED

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IN THE UNITED STATES DISTRICT COU.RT I FEB' NORTHERN DISTRICT OF TEXA
/
FORT WORTH DIVISION
L ...
ADAM ARIF,

8 2018
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CLERK, U,S, DISTlZICT

couxr

By~~~~~~~~~
Deputy
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§
§
§

Plaintiff,

--·1

§

vs.

§
§

CITY OF EULESS, ET AL.,

§
§
§

Defendants.

NO. 4:18-CV-040-A

MEMORANDUM OPINION
and
ORDER
In this action, plaintiff, Adam Arif, pursuant to 42 U.S.C.
§

1983, named as defendants City of Euless ("City"), T. Killman

("Killman"), and J. Sims ("Sims").

The court has concluded that

such complaint, as amended, should be dismissed pursuant to the
authority of 42 U.S.C.

§

1915A.
I.

Plaintiff's Original Complaint
This action was initiated on January 18, 2018, by the filing
by plaintiff of a civil rights complaint.

Plaintiff used a

printed form that is provided to prisoners, which was accompanied
by an attached document titled •complaint," in which plaintiff
provided a handwritten description of his complaint against City,
Killman, and three John Does.

The statement of his claim in the

printed form was as follows:
On October 20, 2017 at Approx 18:30 hrs Euless
police officer T. Killman #544 as well as several

unnamed officers to be identified later used Excessive
force in my arrest pursuant to the alleged commision of
a crime.
These officers caused multiple injuries as
well as severe mental anguish to me and did so with
wanntoness and diliberate indifference to my
Constitutional rights because of inadequate training,
due to the policies or lack thereof set forth by the
municple City of Euless, in Tarrant County, Texas.
Doc. 1 at 4

§

V (errors in original) . 1

The only allegation in the attached "Complaint" that
conceivably could be interpreted to be a further statement of the
facts upon which plaintiff relied for his claims against City and
Killman are the allegations in paragraph V that:
Violently Kneeing the plaintiff in his back after
forcefully throwing the plaintiff to the ground and
sub-sequently fracturing the 10th rib of the right side
of the plaintiff's body, causing such damages to the
rib cage so as to deflate and collapse the plaintiff's
lung.
Id. at ECF 8,

§

v

(errors in original) . 2

Other than the language quoted above, the allegations by
plaintiff in the printed form and its attachment provided no
information as to the nature of the conduct about which plaintiff
complains.

Those allegations were not sufficient to enable the

court to conclude that plaintiff has stated a plausible claim
against City or Killman.

1

The "Doc._" references are to the numbers assigned to the referenced items on the docket in
this Case No. 4: l 8-CV-040-A.
2

The ECF page number reference is to the ECF header number at the top of the page.
2

II.
Court's Initial Screening, and Legal Principles
Pertinent to the Subject of Plaintiff's Complaint
A.

Screening Under 28 U.S.C.

1915A

§

As a prisoner seeking redress from government officials,
plaintiff's complaint was subject to preliminary screening under
28 U.S.C.

§

1915A, regardless of whether he is proceeding in

forma pauperis.
Cir. 1998).

See Martin v. Scott, 156 F.3d 578, 579-80 (5th

Section 1915A(b) (1) provides for sua sponte

dismissal if the court finds that the complaint is frivolous,
fails to state a claim upon which relief may be granted, or seeks
monetary relief from a defendant who is immune from such relief.
A claim is frivolous if it "lacks an arguable basis in either
fact or law.•

Neitzke v. Williams, 490 U.S. 319, 325 (1989).

A

complaint fails to state a claim upon which relief can be granted
when, assuming that all the allegations in the complaint are true
even if doubtful in fact, such allegations fail to raise a right
to relief above the speculative level.

Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 555 (2007) (internal quotation marks and
citations omitted).

A defendant who has a qualified immunity is

immune from monetary relief.
Although pro se complaints and arguments must be liberally
construed, Moore v. McDonald, 30 F.3d 616, 620

3

(5th Cir. 1994),

"[a) plaintiff may not .

. plead merely conclusory allegations

to successfully state a section 1983 claim, but must instead set
forth specific facts which, if proven, would warrant the relief
sought."
B.

Arnaud v. Odom, 870 F.2d 304, 307

(5th Cir. 1989).

Pleading Standards Established by Twomblv and Iqbal
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
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 elem.ents 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.") .
4

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.

Id.

To

allege a plausible right to relief, the facts pleaded must
suggest liability; allegations that are merely consistent with
unlawful conduct are insufficient.

Twombly, 550 U.S. at 566-69.

"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.''

C.

Igbal,

556 U.S. at 679.

The Qualified Immunity Defense
Qualified immunity insulates a government official, such as

Killman and Sims, 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."

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

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."
Creighton, 483 U.S. 635, 640 (1987).

Anderson v.

Individual liability thus

turns on the objective legal reasonableness of the defendant's
actions assessed in light of clearly established law at the time.
Hunter v. Bryant, 502 U.S. 224, 228 (1991); Anderson, 483 U.S. at
5

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."

457 U.S. at 818.

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.

Elder v. Holloway, 510 U.S. 510, 512 (1994).

If

public officials of reasonable competence 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
6

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

502 U.S. at 229.
D.

Allegations Required for a Claim of Liability Against a
Governmental Entity Such as City
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).

Rather, the

misconduct of a subordinate must be affirmatively linked to the
action or inaction of the supervisor.

Southard v. Texas Bd. of

Crim. Justice, 114 F.3d 539, 550 (5th Cir. 1997).
may be liable under

§

A supervisor

1983 if he, by action or inaction,

7

demonstrates deliberate indifference to a plaintiff's
constitutionally protected rights.

Id. at 551.

"' [DJ eliberate

indifference' is a stringent standard of fault, requiring proof
that a municipal actor disregarded a known or obvious consequence
of his action."

Board of Comm'rs of Bryan Cty. v. Brown, 520

U.S. 397, 410 (1997).

Neither a supervisory official nor a

governmental entity can be held liable for failing to adopt
policies to prevent constitutional violations.

See, e.g., Vela

v. White, 703 F.2d 147, 153 (5th Cir. 1983); Reimer v. Smith, 663
F.2d 1316, 1323

(5th Cir. 1981); Wanger v, Bonner, 621 F.2d 675,

680 (5th Cir. 1980).

Moreover, a plaintiff must allege more than

an isolated incident of purported harm to establish a claim
against such person or entity.

Fraire, 957 F.2d at 1278;

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

(5th Cir. 1989);

(5th Cir. 1983),

Without a pattern or practice of recurring constitutional
violations, neither negligence nor gross negligence suffices as a
basis for liability.
Cir. 1988).

Stokes v. Bullins, 844 F.2d 269, 274 (5th

There must be a link between the policy and the

particular constitutional violation alleged.
City v. Tuttle, 471 U.S. 808, 823

8

(1985).

City of Oklahoma

III.
Order Requiring Repleading by Plaintiff
Upon preliminary review of the items by which plaintiff
initiated this action, the court concluded that the allegations
in those items did not state claims against either City or
Killman under the Twombly and Igbal standards, considering the
potential applicability of the qualified immunity defense as to
Killman and the rule of Monell.

On January 25, 2018, the court

issued an order requiring plaintiff to replead, and explained to
plaintiff in a general way what would be required for an amended
complaint to survive a§ 1915A review.

Doc. 8 at 2-3.

The order

also directed plaintiff to provide in his amended complaint
information that would enable the court to identify the "John
Doe" plaintiff mentioned in plaintiff's original filings.
On February 5, 2018, the court received from plaintiff a
document that was titled "Verified Complaint for damages for my
injuries, Court Costs, Filing fees and injunctive relif for
improper training polices of Euless Police Department."
at 1 (errors in original).

Doc. 9

Although the title indicates that the

document was verified, it was not even signed by plaintiff, much
less verified.
The document plaintiff filed February 5 named as defendants
City and Killman, and added as a defendant an officer of the
9

Euless Police Department by the name of J. Sims.

Plaintiff again

alleged that Killman used excessive force in his arrest pursuant
to the alleged commission of a crime, and added Sims as a police
officer who did the same; and, he alleged that they caused him
multiple injuries when they did so.

Id.

Plaintiff elaborated on his allegations concerning the
alleged wrongful conduct of Killman and Sims to the following
extent:
I pulled up to Motel 6 in Euless, Texas in a Black
Cadilac Escalde to pick up my mother as well as my
daughter to return to the car lot in forney, Texas to
purshes the Vehical. When i then was approuched by an
armed man screaming get out of the vehical "Mother
fucker" Naturally i was in fear of my life i drove off
thinking some one was trying to kill me I drove approx
150 yards exited the vehical an began to run.
I then
tryed to climb a fence when i was pulled off and
slammed to the ground by Euless police officers Killman
and Sims then realizing it was the police, and at no
time did i resist the officers then Kneeling on my back
crushing me Fractured my right lO'h rib and deflated
and coolapsed and punctured my right side Lung.
Id. at 2,
A.

§

II

(errors in original).

Plaintiff Has Not Alleged Facts That, If True. Would
Overcome Qualified Immunity Defenses of Killman and Sims
Plaintiff's February 2018 filing lacks the factual details

necessary to allow the court to determine that either Killman or
Sims used an excessive and unreasonable amount of force against
plaintiff.

For example, plaintiff states that he was arrested

for "the alleged commission of

[a] crime," but does not specify
10

what crime he was suspected of committing.

Id. at 1.

Moreover,

plaintiff admits that when approached by officers, he first fled
by vehicle and then exited the vehicle and attempted to flee on
foot.

Plaintiff alleged that plaintiff did not resist Killman

and Sims after he identified them as police officers, but he
alleged that such identification was not made until Killman and
Sims were already "kneeling on [his] back crushing [him] . "
at 2.

Id.

Plaintiff has alleged, in effect, that his injuries are

the direct result of him fleeing officers and then resisting
arrest.

Plaintiff has provided no additional explanation that

would allow the court to conclude that the force used by the
officers was clearly excessive or clearly unreasonable under the
circumstances then existing.
None of plaintiff's factual allegations would enable the
court to reach the conclusion that plaintiff has stated a
plausible claim for relief against Killman or Sims.

He has

alleged no facts that would cause the court to conclude that
Killman and Sims are not entitled to qualified immunity,
considering his strict pleading obligation in that regard as
outlined under the foregoing headings.

Therefore, the court has

concluded from its preliminary screening that plaintiff's claims
against Killman and Sims must be dismissed.

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B.

The Claims Against City Must Be Dismissed
As noted under an earlier heading, it is well-settled that

local government entities such as City cannot be held liable for
the acts of their employees solely on a theory of respondeat
superior.

Monell, 436 U.S. at 692.

Liability may be imposed

against a local government entity under

§

1983 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, 131 S. Ct. 1350, 1359
(2011)

(quoting Monell, 436 U.S. at 692)

(internal quotation

marks omitted) .
To hold an entity liable under

§

1983 thus requires

plaintiff to "initially allege that an official policy or custom
was a cause in fact of the deprivation of rights inflicted."
Spiller v. City of Texas City, Police Dept., 130 F.3d 162, 167
(5th Cir. 1997)

(internal quotation marks and citation omitted).

Therefore, liability against local government defendants pursuant
to

§

1983 requires proof of 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).
Here, plaintiff has alleged that his injuries were the
result of "inadequate training due to policies or lack there of
12

set fourth by the Municiple City of Euless.•
in original).

Doc. 9 at 1 (errors

Plaintiff's complaint makes no other statement

pointing to wrongdoing on the part of City or to suggest how
liability could be imposed against it.

Thus, plaintiff has

failed to identify the existence of any policymaker, and has
similarly failed to allege the nature of any unconstitutional
policy.

Piotrowski, 237 F.3d at 578.

Even if plaintiff had

alleged the existence of an unconstitutional policy, he has
failed to point to other occurrences necessary to support his
claim.

"Isolated violations are not the persistent, often

repeated, constant violations, that constitute custom and policy
required for municipal section 1983 liability.•

Id at 581

(quoting Bennett v. City of Slidell, 728 F.2d 762, 768 n. 3 (5th
Cir. 1984).

A single violation, as alleged in the complaint, is

insufficient to show a custom or practice •so persistent and
widespread as to practically have the force of law.•
563 U.S. at 61; Piotrowski, 237 F.3d at 581.
claims against City are to be dismissed.

13

Connick,

Thus, plaintiff's

IV.

Order
Therefore,
The court ORDERS that all claims and causes of action
asserted by plaintiff against City, Killman, and Sims, be, and
are hereby, dismissed with prejudice pursuant to the authority of
28 U.S.C.

§

1915A(b) (1).

SIGNED February 8, 2018.

14