Gonzales v. Nueces County, Texas et al

Filing 32

ORDER ON MOTION TO DISMISS granting 19 Motion to Dismiss; granting 19 Motion to Dismiss for Failure to State a Claim.. The Court DENIES Plaintiff's generic motion for leave appearing in his response (D.E. 23, p. 10) and ORDERS that, on or before January 15, 2017, Plaintiff may file a renewed motion for leave, attaching his proposed amended pleading and including any necessary briefing to show that the amended pleading complies with Federal Rule of Civil Procedure 8(a) and Twombly/Iqbal.(Signed by Judge Nelva Gonzales Ramos) Parties notified.(mserpa, 2)

United States District Court
Southern District of Texas

ENTERED
January 04, 2017

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
DANNY GONZALES,
Plaintiff,
VS.
NUECES COUNTY, TEXAS, et al,
Defendants.

David J. Bradley, Clerk

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§ CIVIL ACTION NO. 2:16-CV-153
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§
§

ORDER ON MOTION TO DISMISS
Plaintiff Danny Gonzales (Gonzales) filed this action against Defendant Nueces
County, Texas, and six of its law enforcement officers,1 for use of excessive force under
42 U.S.C. § 1983 and assault and battery under Texas law.

Before the Court is

Defendants’ Joint Rule 12(b)(6) Motion to Dismiss (D.E. 19), based on limitations, the
failure to adequately plead municipal liability, and the inapplicability of vicarious
liability and respondeat superior theories of liability. After reviewing Plaintiff’s First
Amended Original Complaint (D.E. 26), along with the motion, response (D.E. 23), and
reply (D.E. 24), and for the reasons set out below, the Court GRANTS the motion.
The Court DENIES Plaintiff’s generic motion for leave appearing in his response
(D.E. 23, p. 10) and ORDERS that, on or before January 15, 2017, Plaintiff may file a
renewed motion for leave, attaching his proposed amended pleading and including any
necessary briefing to show that the amended pleading complies with Federal Rule of
Civil Procedure 8(a) and Twombly/Iqbal.
1

Plaintiff has sued Justin Noland, Deputy Perales, S. Charleton, J. Medina, J. Villanueva, and A. Munoz, each in
their individual capacity.

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DISCUSSION
A. Standard of Review
The test of pleadings under Rule 12(b)(6) is devised to balance a party’s right to
redress against the interests of all parties and the court in minimizing expenditure of time,
money, and resources devoted to meritless claims. Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 558 (2007). Federal Rule of Civil Procedure 8(a)(2) requires only “a short and
plain statement of the claim showing that the pleader is entitled to relief.” Furthermore,
“Pleadings must be construed so as to do justice.” Fed. R. Civ. P 8(e). The requirement
that the pleader show that he is entitled to relief requires “more than labels and
conclusions[;] a formulaic recitation of the elements of a cause of action will not do.”
Twombly, 550 U.S. at 555 (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)).
Factual allegations are required, sufficient to raise the entitlement to relief above
the level of mere speculation. Twombly, 550 U.S. at 555. Those factual allegations must
then be taken as true, even if doubtful. Id. In other words, the pleader must make
allegations that take the claim from conclusory to factual and beyond possible to
plausible.

Id., 550 U.S. at 557.

The Twombly court stated, “[W]e do not require

heightened fact pleading of specifics, but only enough facts to state a claim to relief that
is plausible on its face.” 550 U.S. at 570.
The Supreme Court, elaborating on Twombly, stated, “The plausibility standard is
not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a
defendant has acted unlawfully.

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

“Threadbare recitals of the elements of a cause of action, supported by mere conclusory
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statements, do not suffice.” Id. In dismissing the claim in Iqbal, the Court stated, “It is
the conclusory nature of respondent's allegations, rather than their extravagantly fanciful
nature, that disentitles them to the presumption of truth.” 556 U.S. at 681.
A motion to dismiss for failure to state a claim upon which relief can be granted
can be based not only on a plaintiff’s claims but on matters that support an affirmative
defense, such as limitations.

Even if some allegations support a claim, if other

allegations negate the claim on its face, then the pleading does not survive the 12(b)(6)
review.
A complaint is subject to dismissal for failure to state a claim
if the allegations, taken as true, show the plaintiff is not
entitled to relief. If the allegations, for example, show that
relief is barred by the applicable statute of limitations, the
complaint is subject to dismissal for failure to state a claim;
that does not make the statute of limitations any less an
affirmative defense, see Fed. Rule Civ. Proc. 8(c). Whether a
particular ground for opposing a claim may be the basis for
dismissal for failure to state a claim depends on whether the
allegations in the complaint suffice to establish that ground,
not on the nature of the ground in the abstract.
Jones v. Bock, 549 U.S. 199, 215 (2007).
B. Limitations
Gonzales recites three occasions on which he claims that Defendants injured him
through the use of excessive force or assault and battery: May 8, 2014, May 13, 2014,
and June 16, 2014. The parties agree that a two-year statute of limitations applies to both
the § 1983 and the state law claims. And Gonzales clearly filed his lawsuit on May 12,
2016—after limitations expired with respect to the first incident, but within the
limitations period applicable to the second and third incidents. D.E. 1.
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Defendants seek dismissal of Gonzales’s claims related to the May 8, 2014 alleged
incident because it is barred by limitations. Gonzales responds that the fact that one
incident is outside the limitations period does not require dismissal of the claims
altogether, as there remain two incidents within the statute of limitations. Gonzales
overstates the relief Defendants request. Defendants do not seek dismissal of all of the
claims on the basis of limitation; they seek only to dismiss those arising from the May 8,
2014 incident.
Gonzales has not supplied any reason that the May 8, 2014 claims survive the
limitations bar. Therefore, the Court GRANTS the motion and dismisses any claims
based upon the May 8, 2014 incident.
C. Vicarious Liability and Respondeat Superior
First in the fact section of his amended complaint (¶ 14), and then in the § 1983
section (¶ 20), Gonzales included the following allegations:
14. Plaintiff is informed and believe[s], and thereupon
allege[s] that in committing said acts and/or omissions, each
individual Defendant was the agent and/or employee of
Defendant County and was acting within such agency and
employment and that each Defendant was acting under color
of state law.
...
20. . . . Plaintiff is informed and believes, and thereupon
alleges that in committing said acts and/or omissions, each
Defendant was the agent and employee of each other
Defendant and was acting within such agency and
employment and that each Defendant was acting under color
of state law.
D.E. 26 (emphasis added).
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Defendants, interpreting the pleading to state a claim against the County for the
acts of its employees, asserts that any claim of respondeat superior or vicarious liability
against the County must be dismissed under Monell v. Department of Social Services of
the City of New York, 436 U.S. 658 (1978). The Monell prohibition of municipal liability
based on respondeat superior or vicarious liability theories is well-settled and clear.
Consistent with that law, Gonzales responds that he had no intent to make such
allegations. D.E. 23, pp. 9-10. Because the complaint could be misconstrued, the Court
GRANTS the motion and dismisses any claim against the County for liability using a
respondeat superior or vicarious liability theory.
D. Direct Municipal Liability
Defendants seek Nueces County’s dismissal from this action because Gonzales has
not adequately pled facts that support the elements of municipal liability, as required by
Federal Rule of Civil Procedure 8(a), Twombly, and Iqbal. The elements of municipal
liability (a Monell claim) are:

(1) a policymaker; (2) an official policy; and (3) a

violation of constitutional rights whose “moving force” is the policy or custom. See
Monell, 436 U.S. at 694; Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th Cir.
2001).
Rather than defend any factual details of his pleading, Gonzales challenges the
pleading standard Defendants advocate, even going so far as to contend that no facts are
required at all. More specifically, Gonzales argues:

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 Boilerplate allegations are sufficient in a § 1983/Monell claim, citing
Leatherman v. Tarrant County Narcotics Intelligence and Coordination
Unit, 507 U.S. 163 (1993).
 If the Twombly standard applies, Defendants misrepresent it and
advocate a level of pleading that is actually an impermissible heightened
pleading standard or conflates the pleading standard with a summary
judgment standard, exceeding the bounds of Rules 8(a) and 12(b).
1. Boilerplate Allegations Are Insufficient:
The Leatherman Standard Does Not Eliminate Twombly in Monell cases.
The Leatherman opinion made it clear that the pleading of a § 1983/Monell case is
governed by Rule 8, which at the time was treated as a notice pleading standard.
Leatherman specifically held that heightened factual pleading standards—such as those
in Rule 9(b)—do not apply. The preliminary question for the Court is whether the more
liberal Leatherman standard—limiting the Rule 8(a) factual specificity required to assert
a Monell claim—survived the sea change by which the Supreme Court imposed the
Twombly/Iqbal factual plausibility standard, generally.
The parties have not briefed any cases from the Supreme Court of the United
States or from the Fifth Circuit, and the Court has not found any, that directly address this
question of Leatherman’s continued viability.2 Gonzales seizes on this silence, claiming
that Leatherman has not been overruled. However, this argument runs counter to the

2

While not mentioning Leatherman, the Fifth Circuit has applied Iqbal to a Monell claim. Evans v. City of
Meridian Mississippi, 630 F. App'x 312, 315 (5th Cir. 2015).

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observations in Justice Stevens’s Twombly dissent, which suggest that the Twombly
standard is a silent abrogation of Leatherman—a result he laments.
a. Gonzales’s Authorities Are Inapposite.
Twombly was decided May 21, 2007. Gonzales cites Dwyer v. City of Corinth,
Texas, No. 4:09-cv-198, 2009 WL 3856989 (E.D. Tex. Nov. 17, 2009), which is a
District Court’s adoption of a Magistrate Judge’s Report and Recommendation (R&R).
The R&R expressly approves of the use of boilerplate allegations as sufficient to state
municipal liability. Id. at *9. However, that holding is supported by citation to three
cases that pre-date Twombly. Clearly, that court did not consider the correct standard in
its decision. Twombly rejected the use of pleadings that are formulaic—another word for
boilerplate.
Likewise, Gonzales’s reliance on Abdulkhalik v. City of San Diego, No. 08-cv1515, 2009 WL 4282004 (S.D. Cal. Nov. 25, 2009) is misplaced. That court held that “A
plaintiff has alleged sufficient facts to assert a Monell claim even if the claim is based on
nothing more than a bare allegation that the individual officers’ conduct conformed to
official policy, custom, or practice.” Id. at *10 (quotation marks and citations omitted).
Again, that holding specifically cites to a pre-Twombly case that quotes from another
even earlier case. The decision clearly conflicts with Twombly, which prohibits thedefendant-unlawfully-harmed-me conclusory pleadings. Iqbal, 556 U.S. at 678 (citing
Twombly, 550 U.S. at 555).
Again, in Charles v. Galliano, No. 10-811, 2010 WL 3430519 (E.D. La. Aug. 26,
2010), the court recited that boilerplate allegations were sufficient, citing pre-Twombly
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cases. Only one authority that it cited was decided after Twombly (and before Iqbal):
Ortiz v. Geo Group, Inc., 2008 WL 219564 (W.D. Tex. Jan. 25, 2008). That case did not
approve boilerplate allegations. Rather, it cited Twombly and required fact pleadings that
raise the claim beyond the speculative level. Thus the Charles defense of boilerplate
pleadings was not actually supported by Ortiz, one of the authorities on which it relied.
According to the Ortiz complaint, plaintiff was a prisoner booked into the jail on a
charge for driving while intoxicated.

He displayed serious alcohol withdrawal

symptoms, yet had been provided no intake medical screening and was not observed on
any regular basis. After his injury, the two nurses working for the facility either failed to
answer the phone call seeking their help or refused to return to the facility claiming to be
off duty.

The Ortiz court held that the question was close, but that the pleadings did

raise a failure to train claim. The allegations were factual and not boilerplate.
It is also important to note that the actual allegations in Charles were not
boilerplate, even though the opinion claims that boilerplate pleadings would be
acceptable. Instead, the plaintiff had alleged a pattern or practice arising from his own
“numerous and documented claims of severe and pervasive harassment, discrimination,
and abuse,” with city employees, including the mayor, permitted to retaliate against him
in the workplace. The plaintiff’s specific facts were those related to his own efforts and
resulting treatment. They were not speculative or formulaic in that regard. Thus neither
the Charles opinion nor the Ortiz opinion it cites support Gonzales’s argument that he
need not plead fact-specific allegations.

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Last, Gonzales cites Gearin v. Rabbett, No. 10-cv-2227, 2011 WL 317728 (D.
Minn. Jan. 28, 2011). In that case, the court held that the allegations of an unidentified
act by an unidentified policymaker fell “far short” of the Twombly/Iqbal standards.
However, it accepted the claim on the basis that the allegations satisfied the Leatherman
standard, refusing to hold that Leatherman was overruled sub silentio by Twombly or
Iqbal. Id. at *8-10.
Gearin cites footnote 14 of the Twombly majority opinion, which disclaims an
intent to require a heightened pleading standard or expand the scope of Rule 9(b). This
may be properly construed as making Twombly consistent with Leatherman’s primary
holding: that Rules 8 and 9 are different rules with different applications and it is Rule
8(a) that applies to Monell claims. Twombly seeks merely to clarify what the Rule 8(a)
standard is—more than formulaic speculation, but less than particularized allegations.
Thus the cited footnote concludes, “the complaint warranted dismissal because it failed in
toto to render plaintiffs' entitlement to relief plausible.” Twombly, supra at 569, n.14.
This Court can agree that the main point of Leatherman survived Twombly in that
Monell pleadings are evaluated under Rule 8(a). But Twombly announced new law,
altering the interpretation of Rule 8(a)—a new interpretation that applied, going forward,
to every case that would have previously permitted formulaic or boilerplate pleadings.
The Twombly opinion would likely be unduly lengthy if the Court had to list as overruled
every case that had previously applied Rule 8(a) so liberally. Therefore, the Minnesota
court’s willingness in Gearin to ignore the new interpretation of Rule 8(a) under these
circumstances is an approach this Court will not follow.
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b. Defendants’ Authorities Support the Factual Plausibility Standard
The Twombly path is reinforced by the opinions Defendants cite—opinions that
are more recent than any of those that Gonzales cited. In both Flanagan v. City of
Dallas, 48 F. Supp. 3d 941 (2014), and White v. City of Dallas, No. 3:12-cv-2145, 2013
WL 821992 (N.D. Tex. Feb. 8, 2013) (Ramirez, M.J.), the courts applied Twombly and
Iqbal to Monell allegations. The Magistrate Judge in White specifically dismissed the
plaintiff’s reliance on Leatherman in much the same way as this Court has, above. White,
supra at *4.
2. Gonzales Does Not Meet the Proper Rule 8(a) Twombly Standard:
This Standard is Not an Improper Heightened or Conflated Standard.
The difference between the Rule 8(a) plausibility requirement and the Rule 9(b)
particularity requirement is illustrated in Flanagan’s treatment of the allegations of a
policymaker. The Flanagan court held that it is enough under Rule 8(a) that the plaintiff
pled that an identified city councilman confirmed that policymaking authority for police
officer training had been delegated to the identified police chief. The plaintiff did not
have to go the additional step that would apply under a Rule 9(b) standard and state the
date of the councilman’s statement and the media outlet to which the statement had been
made. Flanagan, supra at 951. In contrast, Gonzales’s policymaker allegations are
general and conclusory, without any stated factual basis. D.E. 26, p. 8 (referring to “the
County’s policy makers”). Gonzales’s allegations do not meet the Twombly test.
Likewise in Flanagan, a policy of using excessive force was sufficiently pled by
such things as the city councilman’s assertion to the media, acknowledging training
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issues related to the killing of unarmed individuals and a large number of rankings and
statistics related to police shootings of unarmed individuals, including detailed
descriptions of certain similar shootings involving unarmed men who were shot even
though they were doing nothing to provoke deadly force. Even then, the Flanagan court
considered the sufficiency of the pleading a “close call.”
Here, Gonzales has pled no such policies apparent from high level admissions of
deficiencies in police training or any statistics showing a significant number of similar
instances. The lists of internal investigations of police misconduct charges that Gonzales
includes are devoid of any details to show that they share any facts similar to those
involved here.

There is nothing to relate them to the beatings Gonzales allegedly

suffered or to the context in which those beatings allegedly occurred. Rather than state
what type of policy is allowing the offending conduct, he speaks of the County’s
“unspoken policy of assaulting citizens,” which is entirely too general to represent an
actionable claim. “It is the conclusory nature of respondent's allegations, rather than their
extravagantly fanciful nature, that disentitles them to the presumption of truth.” Iqbal,
556 U.S. at 681.
The majority in Twombly made it clear that factual plausibility is a requirement of
Rule 8(a) and that it did not cross the line into adopting a Rule 9(b) heightened pleading
standard. This Court does not hold Gonzales to a Rule 9(b) or a conflated summary
judgment/evidentiary standard. However, the Rule 8(a) standard described in Twombly
and Iqbal requires more than what Gonzales has offered in pleading a policymaker and a
policy behind his Monell claim. The pleading of a policy, absent here, is a prerequisite to
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pleading that the policy was the moving force behind the officers’ alleged use of
excessive force. The Court must therefore GRANT the motion and DISMISS the Monell
claim against Nueces County for the use of excessive force.
Gonzales has also pled a claim for failure to train its police officers. A claim
against a county for failure to train must allege sufficient facts to show that (1) the county
adopted inadequate training policy procedures, (2) acted with deliberate indifference in
doing so, and (3) the inadequate training policy directly caused the plaintiff’s injury.
Sanders-Burns v. Plano, 594 F.3d 366, 381 (5th Cir. 2010) (citing Baker v. Putnal, 75
F.3d 190, 200 (5th Cir. 1996)). Again, because Gonzales fails to factually plead a policy
for training or otherwise, he cannot meet, and has not met, the pleading standard as to any
of the failure to train elements. The Court GRANTS the motion and DISMISSES the
claim against Nueces County for the failure to train its police officers.
E. Leave to Amend
Gonzales included in his response a generic request for leave to amend should the
Court find his pleading deficient. He has not indicated what facts he would plead if leave
to amend were granted.

Rather than granting leave in this vacuum, which might

unnecessarily subject the parties to yet another round of Rule 12 briefing (See D.E. 11,
19), the Court notes that this Order is not dispositive of the entire case because claims
against the individual Defendants remain. The Court will permit Gonzales to file a
renewed motion for leave to amend, with the proposed amended pleading attached as an
exhibit, on or before January 15, 2017.

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CONCLUSION
For the reasons set out above, the Court GRANTS the motion to dismiss (D.E. 19)
and:
 DISMISSES all claims against Nueces County, Texas; and
 DISMISSES all claims against all Defendants based on the incident of
May 8, 2014.
The Court DENIES Plaintiff’s generic motion for leave appearing in his response
(D.E. 23, p. 10) and ORDERS that, on or before January 15, 2017, Plaintiff may file a
renewed motion for leave, attaching his proposed amended pleading and including any
necessary briefing to show that the amended pleading complies with Federal Rule of
Civil Procedure 8(a) and Twombly/Iqbal.
ORDERED this 4th day of January, 2017.
___________________________________
NELVA GONZALES RAMOS
UNITED STATES DISTRICT JUDGE

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