LaFleur v. McClelland, Jr. et al

Filing 26

ORDER granting 7 Motion to Dismiss Count Six of the Original Petition..(Signed by Judge Melinda Harmon) Parties notified.(rvazquez)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
GREGORY LAFLEUR,
Plaintiff,
VS.
CHARLES A MCCLELLAND, JR, et al,
Defendants.

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CIVIL ACTION NO. 4:13-CV-425

OPINION AND ORDER

Pending before the Court is Defendant’s 12(b)(6) Motion to Dismiss Count Six of
Plaintiff’s Original Petition (Doc. 7) filed by Officer Paula Camp (“Officer Camp”). Plaintiff
Gregory LaFleur (“LaFleur”) filed a Response (Doc. 14) in opposition. Having considered the
pleadings and the applicable law, the Court concludes that the motion should be granted.
I.

Background
On January 16, 2013, Plaintiff Gregory LaFleur filed his Original Petition (Doc. 1-4) in

Texas state court, and, on February 18, 2013, Defendants Chief Charles A. McClelland, Jr.
(“Chief McClelland”) and Officer Camp removed the action to this Court. The basic allegation
underlying LaFleur’s complaint is that he was the victim of a prostitution sting operation run by
the Houston Police Department. (Doc. 1-4 ¶¶ 8-10). Specifically, he alleges that Officer Camp
approached him, soliciting sex for money, and that a second officer1 then arrested him, charging
him with solicitation of prostitution. (Doc. 1-4 ¶ 8). In his complaint, LaFleur states six causes of
action, but only his claim of conspiracy is presently at issue. That claim reads:
Defendants Officers Camp and Doe conspired to violate Plaintiff’s constitutional
rights. There was an express or implied agreement between them to deprive
Plaintiff of his constitutional rights and an actual deprivation of those rights
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Identified in the complaint as “Officer John Doe,” or “Officer Doe.”

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through overt acts in furtherance of the agreement. Alternatively, the acts in
question clearly raise the inference of a mutual understanding or meeting of the
minds between the defendants. Specifically, Defendants conspired to charge
Plaintiff with a crime he was not predisposed to commit, and they agreed that
Defendant Officer Camp would actually commit the crime of solicitation of
prosecution in order to ensnare Plaintiff, an act which is outrageous and shocks
the conscience, resulting in unlawful seizure under the Fourth Amendment and
denial of Plaintiff’s rights to substantive due process under the Fourteenth
Amendment.
(Doc. 1-4 ¶ 23).
In her motion to dismiss this claim, Officer Camp argues that under the intracorporate
conspiracy doctrine, “[b]ecause the alleged parties to the conspiracy are both employees of the
City of Houston Police Department, Plaintiff cannot establish a conspiracy claim.” (Doc. 7 ¶ 2).
LaFleur responds with two arguments in the alternative: (1) Officer Camp was not acting
pursuant to official department policy, so the “unauthorized acts” exception to the intracorporate
conspiracy doctrine applies, and LaFleur can establish a conspiracy claim; or (2) Officer Camp
was acting pursuant to official department policy, and LaFleur cannot establish a conspiracy
claim, but Defendants should also be barred from denying that this policy was the “moving
force” behind any alleged violations. (Doc. 14 at 2-4). In support of this logic, LaFleur refers to
two allegedly conflicting affirmative defenses presented by Defendants: Affirmative Defense 9,
in which “Defendant Chief McClelland alleges the lack of any custom, practice, policy or
procedure which served as the moving force behind any alleged violation, damages or cause of
action”; and Affirmative Defense 12, in which Officer Camp contends that she and other officers
were “operating within the course and scope of their employment and/or following policy.”
(Defs.’ Answer at 9, Doc. 6).
II.

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Legal Standard

In order to survive a Rule 12(b)(6) motion to dismiss, a claim must be “plausible on its
face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)) (internal quotation marks omitted). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. Determining the reasonableness of such an
inference is “a context-specific task that requires the … court to draw on its judicial experience
and common sense.” Id. at 679. In ruling on a Rule 12(b)(6) motion, the “court accepts all wellpleaded facts as true, viewing them in the light most favorable to the plaintiff.” In re Katrina
Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007) (internal quotation marks omitted).
III.

Discussion
In order to state a claim for conspiracy under § 1983, a plaintiff must allege that there

was (1) an agreement between private and public defendants to commit an illegal act and (2) an
actual deprivation of constitutional rights. Cinel v. Connick, 15 F.3d 1338, 1343 (5th Cir. 1994).
Regarding the first requirement, the general rule is that the acts of an agent are the acts of the
corporation; thus, a “corporation cannot conspire with itself any more than a private individual
can.” Hilliard v. Ferguson, 30 F.3d 649, 653 (5th Cir. 1994) (quoting Nelson Radio & Supply
Co. v. Motorola, Inc., 200 F.2d 911, 914 (5th Cir. 1952)) (internal quotation marks omitted).
This intracorporate conspiracy doctrine has been extended to entities other than corporations,
including police departments and other government agencies. See, e.g., Thompson v. City of
Galveston, 979 F. Supp. 504, 511 (S.D. Tex. 1997) (collecting cases), aff’d, 158 F.3d 583 (5th
Cir. 1998). Therefore, a police department and its officers constitute a single legal entity that “is
incapable of conspiring with itself for the purposes of § 1983.” Id. (citing Baldwin v. Univ. of
Tex. Med. Branch at Galveston, 945 F.Supp. 1022 (S.D. Tex. 1996), aff’d, 122 F.3d 1066 (5th
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Cir. 1997); Hilliard, 30 F.3d at 653). Officers Camp and Doe form just such a legal entity, and
LaFleur’s argument to the contrary is based on grounds that do not exist and are irrelevant to the
ultimate issue.
LaFleur asserts that it is inherently contradictory for Officer Camp, on the one hand, to
argue that she was following official policy, and Chief McClelland, on the other hand, to argue
that no official policy served as the moving force behind the alleged deprivation of rights. But
this assertion obfuscates the significant distinction between any “official policy” and one that
serves as a “moving force” under § 1983. Where, as here, a suit is brought against a police chief
in his official capacity, it is actually a suit against the municipality itself. Brumfield v. Hollins,
551 F.3d 322, 331 (5th Cir. 2008). In order to establish municipal liability, a plaintiff must show
three elements: “(1) an official policy (or custom), of which (2) a policy maker can be charged
with actual or constructive knowledge, and (3) a constitutional violation whose ‘moving force’ is
that policy (or custom).” Pineda v. City of Hous., 291 F.3d 325, 328 (5th Cir. 2002). In other
words, merely identifying an official policy is not enough.
The third prong requires a plaintiff to prove “moving force” causation. To
succeed, “a plaintiff must show that the municipal action was taken with the
requisite degree of culpability and must demonstrate a direct causal link between
the municipal action and the deprivation of federal rights.” That is, “the plaintiff
must demonstrate that a municipal decision reflects deliberate indifference to the
risk that a violation of a particular constitutional or statutory right will follow the
decision.” Deliberate indifference is a high standard—“a showing of simple or
even heightened negligence will not suffice.”
Valle v. City of Hous., 613 F.3d 536, 542 (5th Cir. 2010) (citations omitted). Consequently, there
is no inherent contradiction when police officers assert that they were operating within the course
and scope of their employment, and their employer, the police department, argues that its
policies were not the “moving force” behind any alleged constitutional violations.

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More importantly, the real issue in a Rule 12(b)(6) motion is not the sufficiency of the
answers to a complaint, but the sufficiency of the complaint itself. With respect to the claim of
conspiracy, its facial plausibility depends on LaFleur’s basic factual allegation: that multiple
officers of the Houston Police Department conducted a prostitution sting operation that led to his
arrest. No allegation could more precisely fit the rule that where all of the defendants are
members of the same collective entity, no claim of conspiracy can be sustained against them.
Reynosa v. Wood, 134 F.3d 369, at *2 (5th Cir. 1997) (citing Hilliard, 30 F.3d at 653; Moody v.
Jefferson Parish Sch. Bd., 803 F. Supp. 1158, 1166 (E.D. La. 1992) (School Board, Principal,
Vice-Principal, and various teachers are all employed by the Jefferson Parish School Board and,
thus, are a single entity), aff’d, 2 F.3d 604 (5th Cir. 1993); Hankins v. Dall. Indep. Sch. Dist., 698
F. Supp. 1323, 1330 (N.D. Tex. 1988) (high school and its officials); Chambliss v. Foote, 421 F.
Supp. 12, 15 (E.D. La. 1976) (university and its officials), aff’d, 562 F.2d 1015 (5th Cir. 1977)).
Although the Fifth Circuit has recognized a “possible exception” to this rule where, in rare
instances, corporate employees have an independent personal stake in the conspiracy,
Benningfield v. City of Hous., 157 F.3d 369, 379 (5th Cir. 1998), in the context of § 1983
conspiracy claims, that exception could possibly apply only where an ostensible agent of the
government is, in reality, acting on behalf of private interests, see Cinel, 15 F.3d at 1343 (stating
that a § 1983 conspiracy requires a private actor who is a “willful participant in joint activity
with the State or its agents” (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 152 (1970)));
cf. J.T. Gibbons, Inc. v. Crawford Fitting Co., 704 F.2d 787, 795 (5th Cir. 1983) (In the antitrust
context, “an important element in this capacity to conspire has been that the separate
corporations be in the position of competitors.”). Here, where the fundamental allegation
underlying all of LaFleur’s claims is that police officers together conducted a police operation in
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order to effectuate his arrest, there is no possibility of the private action necessary to establish a
conspiracy claim.
Finally, though leave to amend a complaint should be freely given “when justice so
requires,” Fed. R. Civ. P. 15(a), in this case, repleading a claim for conspiracy against Officers
Camp or Doe would be futile. See Stripling v. Jordan Prod. Co., 234 F.3d 863, 873 (5th Cir.
2000) (defining futility “to mean that the amended complaint would [still] fail to state a claim
upon which relief could be granted”). As a matter of law, police officers conducting government
operations with other police officers are not subject to conspiracy claims under § 1983.
Accordingly, this claim must be dismissed.
IV.

Conclusion
For the foregoing reasons, it is hereby
ORDERED that Defendant’s 12(b)(6) Motion to Dismiss Count Six of Plaintiff’s

Original Petition (Doc. 7) is GRANTED, and Plaintiff’s cause of action for conspiracy is
DISMISSED.

SIGNED at Houston, Texas, this 11th day of September, 2013.

___________________________________
MELINDA HARMON
UNITED STATES DISTRICT JUDGE

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