Covington v. Covington et al
Filing
91
OPINION AND ORDER granting 57 Motion to Dismiss, but Covington is granted leave, if she is able, to file within 20 days an amended pleading that satisfies the requirements to state a claim against the City under Sec. 1983 or inform the Court she n o longer wishes to pursue her claims against the City. The court Orders Covington to file within 20 days a motion for entry of default or voluntary dismissal of Kidd, or an amended pleading adequately stating the state-law tort claims against Kidd in his individual capacity, supported by facts, or the Court will dismiss the state-law tort claims against Kidd for failure to prosecute.(Signed by Judge Melinda Harmon) Parties notified.(rhawkins)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
LAURA COVINGTON,
§
§
§
Plaintiff,
§
§
VS.
§
§
JEFFREY COVINGTON, JUSTIN
§
BARHAM, JEREMY KIDD,
§
CITY OF MADISONVILLE, TEXAS,
§
MADISON COUNTY, TEXAS, THE
§
MADISONVILLE POLICE DEPARTMENT,§
MADISON COUNTY DISTRICT
§
ATTORNEY, AND MADISON COUNTY
§
DISTRICT ATTORNEY’S OFFICE,
§
§
Defendants.
§
CIV. A. NO. H-13-3300
OPINION AND ORDER
The above referenced cause, grounded in 42 U.S.C. §
1983, alleges wrongful arrest and seizure of Plaintiff Laura
Covington (“Covington”) by a Trooper of the Texas Department of
Public Safety in violation of the Fourth and Fourteenth Amendments
and criminal conduct by two City Police officers, one of whom was
Covington’s
former
husband,
constituting
cruel
and
unusual
punishment in violation of the Eighth Amendment of the United
States
Constitution,
negligence
in
hiring
and
failure
to
adequately train and supervise police officers, along with statelaw claims of malicious prosecution, false arrest, and intentional
infliction of emotional distress. Pending before the Court is
Defendant City of Madisonville, Texas’s (“the City’s”) motion to
dismiss the claims against it pursuant to Federal Rule of Civil
Procedure 12(b)(6) (instrument #57).
Which Causes of Action Against Which Defendants
Defendants
Madison
County, Texas (in #39, 41) and
Madison County District Attorney’s Office” (in #50-1 and 72,
duplicates of First Amended Complaint) have been voluntarily
dismissed from this suit.
Jeffrey
investigator
for
Covington
the
(officer
Madisonville
of
Police
and
chief
narcotics
Department),
Justin
Barham (“Barham”)(a police officer who became a lead investigator
of narcotics and organized crime for the Madison County District
Attorney’s Office), and Jeremy
Kidd (“Kidd”)(an “agent” for
officers of the Madisonville Police Department)1 have been sued in
their individual and official capacities.
Jeffrey Covington and
Barham have appeared, but Kidd, although served
on December 26,
2013, more than a year and six months ago (#27 in his individual
capacity; #28, in his official capacity), has not appeared and
according to the service affidavit is incarcerated in the Texas
Department of Criminal Justice, Bartlett Unit.
Nevertheless
Covington has not moved to voluntarily dismiss Kidd or for entry
of default against Kidd.
Against the three individual Defendants,
Jeffrey Covington, Barham, and Kidd, Covington asserts claims for
unlawful seizure in violation of Covington’s Fourth and Fourteenth
1
The complaint states that Kidd “was not officially a
confidential informant, but was recruited through an official
confidential informant, Joyce Hall, to assist.” #72, ¶ 31.
-2-
Amendment rights and cruel and unusual punishment in violation of
her Eighth Amendment rights.
In addition, against Kidd only and
only in his individual capacity, Covington asserts state-law
claims for malicious prosecution, false imprisonment, assault, and
intentional infliction of emotional distress.
As will be discussed, the claims against these men in
their
official
capacities
are
claims
against
the
City.
In
addition, against the City and the Chief of Police, who is not
named as a Defendant, Covington sues for negligent hiring and
failure to train and adequately supervise their police officers,
with deliberate indifference, under § 1983.
Standard of Review
Federal Rule of Civil Procedure 8(a)(2) provides, “A
pleading that states a claim for relief must contain . . . a short
and plain statement of the claim showing that the pleader is
entitled to relief.”
When a district court reviews a motion to
dismiss pursuant to Fed. R. Civ. P. 12(b)(6), it must construe the
complaint in favor of the plaintiff and take all well-pleaded
facts as true. Randall D. Wolcott, MD, PA v. Sebelius, 635 F.3d
757, 763 (5th Cir. 2011), citing Gonzalez v. Kay, 577 F.3d 600, 603
(5th Cir. 2009).
The plaintiff’s legal conclusions are not
entitled to the same assumption. Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009)(“The tenet that a court must accept as true all of the
allegations contained in a complaint is inapplicable to legal
-3-
conclusions.”), citing Bell Atlantic Corp. v. Twombly, 556 U.S.
662, 678 (2007); Hinojosa v. U.S. Bureau of Prisons, 506 Fed.
Appx. 280, 283 (5th Cir. Jan. 7, 2012).
“While a complaint attacked by a Rule 12(b)(6) motion to
dismiss does not need detailed factual allegations, . . . a
plaintiff’s
obligation
‘entitle[ment]
to
to
relief’
provide
the
requires
more
‘grounds’
than
of
his
labels
and
conclusions, and a formulaic recitation of the elements of a cause
of action will not do . . . .”
Bell Atlantic Corp. v. Twombly,
127 S. Ct. 1955, 1964-65 (2007)(citations omitted).
“Factual
allegations must be enough to raise a right to relief above the
speculative level.”
Id. at 1965, citing 5 C. Wright & A. Miller,
Federal Practice and Procedure
§ 1216, pp. 235-236 (3d ed.
2004)(“[T]he pleading must contain something more . . . than . .
.
a statement of facts that merely creates a suspicion [of] a
legally cognizable right of action”). “Twombly jettisoned the
minimum notice pleading requirement of Conley v. Gibson, 355 U.S.
41 . . . (1957)[“a complaint should not be dismissed for failure
to state a claim unless it appears beyond doubt that the plaintiff
can prove no set of facts in support of his claim which would
entitle him to relief”], and instead required that a complaint
allege enough facts to state a claim that is plausible on its
face.”
St. Germain v. Howard,556 F.3d 261, 263 n.2 (5th Cir.
2009), citing In re Katrina Canal Breaches Litig., 495 F.3d 191,
-4-
205 (5th Cir. 2007)(“To survive a Rule 12(b)(6) motion to dismiss,
the plaintiff must plead ‘enough facts to state a claim to relief
that is plausible on its face.’”), citing Twombly, 127 S. Ct. at
1974). “‘A claim has facial plausibility when the pleaded factual
content allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.’”
Montoya v.
FedEx Ground Package System, Inc., 614 F.3d 145, 148 (5th Cir.
2010), quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
The
plausibility standard is not akin to a “probability requirement,”
but asks for more than a “possibility that a defendant has acted
unlawfully.”
Twombly, 550 U.S. at 556.
Dismissal is appropriate
when the plaintiff fails to allege “‘enough facts to state a claim
to relief that is plausible on its face’” and therefore fails to
“‘raise a right to relief above the speculative level.’” Montoya,
614 F.3d at 148, quoting Twombly, 550 U.S. at 555, 570.
In Ashcroft v. Iqbal, 556 U.S. at 679, the Supreme Court
stated that “only a complaint that states a plausible claim for
relief survives a motion to dismiss,” a determination involving “a
context-specific task that requires the reviewing court to draw on
its judicial experience and common sense.” “[T]hreadbare recitals
of the elements of a cause of action, supported by mere conclusory
statements do not suffice” under Rule 12(b).
1949.
Iqbal, 129 S. Ct. at
The plaintiff must plead specific facts, not merely
conclusory allegations, to avoid dismissal.
-5-
Collins v. Morgan
Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000). “Dismissal
is proper if the complaint lacks an allegation regarding a
required element necessary to obtain relief . . . .“
Rios v. City
of Del Rio, Texas, 444 F.3d 417, 421 (5th Cir. 2006), cert. denied,
549 U.S. 825 (2006).
As noted, on a Rule 12(b)(6) review, although generally
the court may not look beyond the pleadings, the Court may examine
the complaint, documents attached to the complaint, and documents
attached to the motion to dismiss to which the complaint refers
and which are central to the plaintiff’s claim(s), as well as
matters of public record.
Lone Star Fund V (U.S.), L.P. v.
Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010), citing
Collins, 224 F.3d at 498-99; Cinel v. Connick, 15 F.3d 1338, 1341,
1343 n.6 (5th Cir. 1994).
See also United States ex rel. Willard
v. Humana Health Plan of Tex., Inc., 336 F.3d 375, 379 (5th Cir.
2003)(“the court may consider . . . matters of which judicial
notice may be taken”).
Taking judicial notice of public records
directly relevant to the issue in dispute is proper on a Rule
12(b)(6) review and does not transform the motion into one for
summary judgment.
Funk v. Stryker Corp., 631 F.3d 777, 780 (5th
Cir. 2011). “A judicially noticed fact must be one not subject to
reasonable dispute in that it is either (1) generally known within
the territorial jurisdiction of the trial court or (2) capable of
-6-
accurate and ready determination by resort to sources whose
accuracy cannot reasonably be questioned.”
Fed. R. Evid. 201(b).
When a plaintiff’s complaint fails to state a claim, the
court should generally give the plaintiff at least one chance to
amend the complaint under Rule 15(a) before dismissing the action
with prejudice.
Great Plains Trust Co v. Morgan Stanley Dean
Witter & Co., 313 F.3d 305, 329 (5th Cir. 2002)(“District courts
often afford plaintiffs at least one opportunity to cure pleading
deficiencies before dismissing a case, unless it is clear that the
defects are incurable or the plaintiffs advise the court that they
are unwilling or unable to amend in a manner that will avoid
dismissal.”); United States ex rel. Adrian v. Regents of the Univ.
of Cal., 363 F.3d 398, 403 (5th Cir. 2004)(“Leave to amend should
be freely given, and outright refusal to grant leave to amend
without
a
justification
.
.
.
is
considered
an
abuse
of
discretion. [citations omitted]”). The court should deny leave to
amend if it determines that “the proposed change clearly is
frivolous
or
advances
a
claim
insufficient on its face . . . .”
or
defense
that
is
legally
6 Charles A. Wright, Arthur R.
Miller & Mary Kay Kane, Federal Practice and Proc. § 1487 (2d ed.
1990).
-7-
Factual Allegations of the First Amended Complaint (#72)2
Plaintiff’s
pleading,
recites
First
a
Amended
series
of
Complaint,
wrongful
acts
the
governing
by
allegedly
conspiring Officers Jeffrey Covington and Justin Barham of the
Madisonville Police Department
these
officers,
purportedly
and Jeffrey Kidd, an “agent” of
arising
out
of
and
because
of
Covington’s rocky relationship and child custody dispute with her
ex-husband, Defendant Jeffrey Covington.
Plaintiff
Laura
Covington
and
Defendant
Jeffrey
Covington were married in 2003, had two children, and were
divorced in April or May 2010, with Laura Covington awarded
custody of the children.
Immediately Covington claims she heard
rumors that her ex-husband was plotting with Barham to have
someone plant drugs on her so that she would be arrested and
Jeffrey Covington could gain custody of the children.
According
to
the
First
Amended
Complaint,
Jeffrey
Covington and Barham in their capacities as police officers had
summoned a local criminal, Kidd, to a location regularly used by
the two officers to set up confidential drug buys with informants,
and
they
plotted
together
to
have
drugs
planted
in
Laura
Covington’s vehicle and then have her stopped, searched, and
arrested for possession of controlled substances.
2
Kidd then
Deemed filed as of August 26, 2014, before the instant
motion, which was filed on September 4, 2014.
-8-
planted methamphetamine in a magnetic key holder on Plaintiff’s
vehicle.
Laura Covington alleges that on August 22, 2011 Jeffrey
Covington and other Defendants first initiated what turned out to
be an unsuccessful stop and search of Laura Covington’s vehicle by
having Barham tell Bobby Adams, an investigator with the District
Attorney’s office, that Barham had information that there were
narcotics in the seat rail of Laura Covington’s car.
Informed
that she would usually drop her children off at school and then go
to a particular McDonald’s for breakfast, Barham and Adams, in
separate vehicles but in radio contact, waited for her near the
McDonald’s.
Adams radioed to Barham that Laura Covington was
speeding. Although Adams’ role as an investigator did not usually
involve traffic stops, because Barham told Adams that “it would
not look good if someone from the police department pulled her
over,” Adams stopped Covington and searched her car, but did not
find any narcotics or other evidence of illegal activity.
The complaint alleges that Defendants continued to
attempt, but failed, to stop, search, and find Laura Covington in
possession of drugs up to November 9, 2011, when Trooper Carl
Clary (“Clary”) of the Texas Department of Public Safety stopped
Covington for an alleged traffic offense.
Although Clary did not
intend to search the vehicle or issue a citation, when he relayed
her name and driver’s license over the radio, Jeffrey Covington
overheard the report, called Clary, and told Clary that Laura
-9-
Covington had drugs and that she had tried to run over Jeffrey
Covington’s new wife while dropping off the children at school
that morning.
Jeffrey
Clary had also been told two months earlier by
Covington
that
Laura
Covington
was
known
methamphetamine in a magnetic key holder in her car.
Clary chose to search Covington’s vehicle.
to
carry
Therefore
He later testified
under oath that he would not have done so if Jeffrey Covington had
not called him.
Plaintiff consented to the search, and Clary
found a small amount of methamphetamine where Jeffrey Covington
had told him to look.
Covington was arrested and later charged
with possession of a controlled substance and booked into the
Madison County Jail.
Within a couple of days Jeffrey Covington
filed an emergency ex parte petition to remove his two children
from Plaintiff’s custody on the grounds that she was a drug user
or dealer and that the children were in danger of immediate harm.
The petition was granted by the judge of the 12th Judicial Court
of Madison County, Texas.
On December 14, 2011 a hearing was held, during which
Jeffrey Covington admitted that he had been terminated from a
former security position in Iraq for conduct that violated his
employer’s drug policies.
Clary testified at the hearing and
later during the criminal trial of Jeffrey Covington that Clary
believed the drugs had been in Covington’s vehicle for a while,
that Covington and her mother had said they “knew something like
- 10 -
this was going to happen,” and that Jeffrey Covington had told
Clary two months before exactly where he could find the drugs in
Covington’s vehicle.
Clary also stated that he did not know who
owned the drugs because he could not find any paraphernalia with
them, and that usually when he found drugs in a vehicle, they were
everywhere, while those in Covington’s car were just beneath the
door.
The complaint asserts that at Jeffrey Covington’s criminal
trial an Officer Lowrenz testified that everyone in the Police
Department knew about the attempts to stop Laura Covington and
find drugs, that Jeffrey Covington and Barham had told Lowrenz
himself that Plaintiff was carrying drugs, but that Lowrenz did
not stop and search her because he did not want to get involved.
Covington also submitted a sample of her hair for testing that
revealed she had no drugs in her system.
On January 31, 2013,
Assistant Attorney General David Glickler formally dismissed all
charges related to Laura Covington’s November 9, 2011 arrest. Her
two children were subsequently returned to her custody.
At some point Jeffrey Covington wrote a letter of
recommendation in support of Barham in his application to be a
lead investigator of organized crime with the Madison County
District Attorney’s Office. The letter was inappropriate.
example, he praised Barham’s sense of humor as follows:
For
“Some
days he would come in with his pink tutu on yelling random threats
and profanities while waving his gun around and then pass out from
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all of the drugs and alcohol.
Police
Clandenine,3
whose
Yep, he is a great time!”
“custom
[it
was]
to
sign
Chief of
off
on
everything done by Defendant Covington,” sent a more appropriate
recommendation.
The complaint asserts that the Texas Rangers joined in
on the investigation of Jeffrey Covington and Barham and learned
about the two officers’ recruitment of Kidd for their scheme to
frame Covington.
The Attorney General’s Office of the State of
Texas became involved in the investigation in February 2013.
Jeffrey Covington was subsequently indicted and arrested for
delivery of a controlled substance, obstruction/retaliation, and
official oppression.
On April 25, 2014 he was found guilty by a
jury and convicted of retaliation.
That same month Barham was
indicted and arrested on identical charges.
He entered into a
plea agreement after Jeffrey Covington’s trial.
Asserting
that
the
Chief
of
Police
was
the
final
policymaker for the City, but without any citation to authority or
factual support, Laura Covington claims that during the employment
of Jeffrey Covington and Barham by the City and Madison County,
the two officers had unrestricted and unsupervised freedom to do
whatever they wanted to bring about drug arrests in their daily
3
Also referred to and spelled “Gary Clendennen.” #72
at ¶ 113. The complaint refers to another Chief of Police named
May. The complaint does not indicate when each man served as
Madisonville’s Chief.
- 12 -
activities and they were not subject to review by any other city
official.4
The City allegedly failed to do a routine background
check on Jeffrey Covington to investigate his discharge from
employment in Iraq for drug-related activity.
Covington alleges
that Barham was on probation for stealing drug evidence from a
crime scene during the relevant time period, but was allowed to
continue working under Jeffrey Covington’s authority and/or his
co-director of confidential informants and/or narcotics. The City
also purportedly had a history of failing adequately to supervise
its officers.
The complaint asserts that roughly 60% of the
police force either resigned or were terminated for misconduct
between September 2011 through March 2013.
Covington claims that
the conspiracy5 among the Defendants and their intentional and
malicious acts caused her to suffer legally cognizable injuries
and damages, including attorney’s fees for her criminal defense
and in litigating against the removal of her children.
The
complaint (#72) conclusorily alleges,
4
The complaint does state that they “were only required
to run CI operations through the Chief if they needed approval to
pay the CIs, which they never needed.” #72 at ¶ 110.
5
Although the First Amended Complaint does not list
conspiracy separately under the Causes of Action section, she
alleges through the complaint that the individual Defendants
conspired to frame Covington. To prevail on a § 1983 conspiracy
claim, Covington must allege facts that demonstrate and prove (1)
the existence of a conspiracy that involves state action and (2)
a deprivation of civil rights in furtherance of that conspiracy.
Thompson v. Johnson, 348 Fed. Appx. 919, 922 (5th Cir. 2009). The
First Amended Complaint does so here.
- 13 -
112. The Chief of Police, as the final
policymaker with respect to the police force
of Madisonville, was aware of the activities
and created an atmosphere that fostered gross
and unchecked misconduct.
The Chief of
Police was aware of the specific actions
complained of herein, ratified them, or
turned a blind eye, allowing them to
continue.
113.
The
Chief
of
Police
was
specifically informed by David Sims, then a
police officer with the City, that CIs had
come to him and reported that [Jeffrey]
Covington and Barham were going around
looking for someone to plant drugs in
Plaintiff’s car in order to frame her. The
Chief brushed this information aside and
ignored it.
Former Chief of Police Gary
Clendennen was also aware of Defendant
Covington’s ongoing dispute with his ex-wife
over custody and/or his child support
obligations. Clendennen knew or should have
known of the efforts of Defendant sergeant
Covington to set Plaintiff up to be arrested
and prosecuted because of the dispute.
Everybody at the police department (if not
the entire law enforcement community) knew
about Defendant Covington’s battle with his
ex-wife, and his efforts to conspire to have
Plaintiff wrongfully arrested and prosecuted.
Moreover, other officers reported the actions
of Defendant Covington and/or Barham to the
Chief.
114.
Like his predecessor, Chief May
allowed Defendant Covington to operate and
run the police department with little or no
supervision,
allowed
or
delegated
to
Covington the authority to manage the
confidential
informants
without
any
supervision or oversight, or even standard
operating procedures.
Defendant Covington
operated autonomously and was in charge of
confidential information as well as the
officers under his supervision.
Defendant
Covington was a sergeant, chief narcotics
officer, and was not required to report to
anyone at least with regards to CIs and
various investigative activities, was the
- 14 -
supervisor for most if not all of the police
officers, and was allowed to make policy with
respect to CIs and investigations using CIs.
Substantive Law
Title 42 U.S.C. § 1983 does not grant substantive
rights, but provides a vehicle for a plaintiff to vindicate rights
protected by the United States Constitution and other federal
laws.
Albright v. Oliver, 510 U.S. 266, 271 (1994).
It provides
a cause of action for individuals who have been “depriv[ed] of
[their]
rights,
privileges,
or
immunities
secured
by
the
Constitution and laws” of the United States by a person acting
under color of state law.
Id.
The Eighth Amendment was designed to bar cruel and
unusual punishment against those convicted of a crime; it only
applies in criminal actions following a conviction.
Ingraham v.
Wright, 430 U.S. 651, 667 (1977); John Corp. v. City of Houston,
214 F.3d 573, 580 (5th Cir. 2000); Palermo v. Rorex, 806 F.2d 1266,
1271 (5th Cir. 1987), cert. denied, 484 U.S. 819 (1987).
Thus it
is inapplicable here and Covington’s claims under the Eighth
Amendment must be dismissed.
Pretrial
deprivations
of
liberty,
excessive
force,
seizure of a free citizen, and arrest with out probable cause fall
under the Fourth Amendment and are not cognizable under the
Fourteenth Amendment.
Albright v. Oliver, 510 U.S. 266, 274-75
(1994); Graham v. Conner, 490 U.S. 386, 395 (1989).
- 15 -
“‘[A]ll
claims that law enforcement officers have used excessive force .
. . in the course of an arrest, investigatory stop, or other
‘seizure’ of a free citizens should be analyzed under the Fourth
Amendment and its ‘reasonableness’ standard.’”
Bazan ex rel.
Bazan v. Hidalgo County, 246 F.3d 481, 487 (5th Cir. 2001), quoting
Graham v. Conner, 490 U.S. at 395 (emphasis in original).
Covington’s
claims
under
the
Fourteenth
Amendment
Thus
must
be
dismissed as a matter of law.
Municipalities and other bodies of local government are
“persons” within the meaning of § 1983.
Social
Services,
436
U.S.
658,
690
Monell v. Department of
(1978).
Generally
municipalities or local government units are not liable for the
constitutional torts of their employees unless those employees act
pursuant to an official action or with approval. Monell, 436 U.S.
at 663 n.7.
“A municipality cannot be held liable solely because
it employs a tortfeasor--or, in other words, a municipality cannot
be held liable under § 1983 on a respondeat superior theory.”
at 691.
Id.
A municipality may be liable under § 1983 if the
execution of one of its customs or policies deprives a plaintiff
of his constitutional rights.
Monell, 436 U.S. at 690-91.
To state a claim for municipal liability under Section
1983, a plaintiff must identify (a) a policy maker, (b) an
official policy, and (c) a violation of constitutional rights
whose “moving force” is the policy or custom.
- 16 -
Piotrowski v. City
of Houston, 237 F.3d 567, (5th Cir. 2001), citing Monell, 436 U.S.
at 694.
The Fifth Circuit has defined an official policy for
purposes
of
§
1983
as
“‘[a]
policy
statement,
ordinance,
regulation or decision that is officially adopted and promulgated
by the municipality’s law-making officials or by an official to
whom the lawmakers have delegated policy-making authority.’” Okon
v. Harris County Hospital District, 426 App’x 312, 316 (5th Cir.
May 23, 2011), quoting Bennett v. City of Slidell, 735 F.2d 861,
862 (5th Cir. 1984)(en banc).
Alternatively a policy may be “‘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.’”
Id., citing
id., and Zarnow v. City of Wichita Falls, 614 F.3d 161, 169 (5th
Cir. 2010)(“A pattern of conduct is necessary only when the
municipal actors are not policymakers”)[, cert. denied, 131 S. Ct.
3059 (2011)].
“Allegations of an isolated incident are not
sufficient to show the existence of a custom or policy.”
v. City of Arlington, 957 F.2d 1268, 1278 (5th Cir. 1992).
Fraire
“The
unconstitutional conduct must be directly attributable to the
municipality through some sort of official action or imprimatur;
isolated unconstitutional actions by municipal employees will
almost never trigger liability.”
- 17 -
Id.
A municipality’s policy of inaction in the face of
awareness, constructive or actual, that its policy will cause a
constitutional violation ”’is the functional equivalent of a
decision by the city itself to violate the Constitution.’”
Connick v. Thompson, 131 S. Ct. 1350, 1360 (2011), citing City of
Canton, Ohio v. Harris, 489 U.S. 378, 395 (1989).
“The governing body of the municipality or an official
to whom that body has delegated policy-making authority must have
actual or constructive knowledge of such a custom.”
Fed. Appx. at 316, citing Bennett, 735 F.2d at 862.
Okon, 426
“‘Actual
knowledge may be shown by such means as discussions at council
meetings or receipt of written information,’” while “constructive
knowledge ‘may be attributed to the governing body on the ground
that it would have known of the violations if it had properly
exercised
its
responsibilities,
as,
for
example,
where
the
violations were so persistent and widespread that they were the
subject of prolonged public discussion or of a high degree of
publicity.’”
Id., citing Bennett v. City of Slidell, 728 F.2d
762, 768 (5th Cir. 18984)(en banc).
A policymaker establishes goals relating to a specific
municipal function and the means to reach those goals.
Zarnow v.
City of Wichita Falls, Texas, 614 F.3d 161, 167 (5th Cir. 2010),
cert. denied, 131 S. Ct. 3059 (2011).
When a policymaker commits
the act at issue, that act may establish the policy if the
- 18 -
policymaker is “unconstrained by policies imposed from a higher
authority.”
Okon, 426 Fed. Appx. at 316, citing Hampton Co. v.
Nat’l Sur. LLC v. Tunica County, 543 F.2d 221, 227 (5th Cir. 2008).
The court must determine which official or government body has
final
policymaking
authority
for
the
regarding the action in dispute. Id.
local government unit
Whether a city official is
a policymaker is a question of state law.
Praprotnik,
485
U.S.
112,
134
(1988);
Cincinnati, 475 U.S. 469, 483 (1986).
City of St. Louis v.
Pembauer
v.
City
of
In Texas a policymaker is
one to whom the governing body of the municipality has delegated
policy-making authority and who has “the responsibility for making
law or setting policy in any given area of a local government’s
business.”
1984)(en
Webster v. City of Houston, 735 F.2d 838, 841 (5th Cir.
banc).
“The
delegation
of
policymaking
authority
requires more than a showing of mere discretion or decision making
authority on the part of the official.”
Bennett v. City of
Slidell, 728 F.2d at 769.
“The official must also be responsible
for
governmental
establishing
final
policy
respecting
such
activity before the municipality can be held liable.” Pembaur v.
City of Cincinnati, 475 U.S. 469, 483-84 (1996).
A single formal
decision or a single unconstitutional act by a policymaker can
constitute
a
policy
or
custom
and
impose
liability
on
a
municipality. Id. at 483 (holding that “municipal liability under
§ 1983 attaches where--and only where--a deliberate choice to
- 19 -
follow a course of action is made from among various alternatives
by the official or officials responsible for establishing final
policy with respect to the subject matter in question.”); Webster,
735 F.3d at 841; Zarnow, 614 F.3d at 169.
Policymakers “are not
supervised except as to the totality of their performance.”
Id.
The Fifth Circuit has held that a city police chief may be a final
policymaker for the purpose of § 1983 liability if the plaintiff
shows that the police chief is the only “official responsible for
internal policy and where no other municipal officials comment
authoritatively on the internal procedures of the department.”
Zarnow v. City of Wichita Falls, Texas, 614 F.3d 161, 168 (5th Cir.
2010), cert. denied, 131 S. Ct. 3059 (2011).6
6
In Zarnow, 614 F.3d at 168, the Fifth Circuit refines
the definition of a policymaker for purpose of § 1983 liability:
The
nature
of
the
administrative
oversight
is
important
in
determining
“policymaker” status. An official may be a
policymaker even if a separate governing body
retains some powers. See Bennett, 728 F.2d
at 769. An official may be termed a
“policymaker”
even
if
the
municipality
retains “the prerogative of the purse and
final legal control by which it may limit or
revoke the authority of the official.” Id.
Further,
the
subject
matter
of
the
administrative review must be precise in
order to attach the presumption against
policymaking. Beattie v. Madison Cnty. Sch.
Dist., 254 F.3d 595, 603 (5th Cir. 2001).
“The mere existence of oversight, however, is
not enough; the oversight must pertain to the
area of authority in question.”
Id.
(citation omitted).
Although the City offered evidence that
- 20 -
“Deliberate
indifference”
is
a
“stringent
standard,
requiring proof that a municipal actor disregarded a known or
obvious consequence of his action,” for which “[a] showing of
simple
or
even
heightened
negligence
will
not
suffice”;
it
requires a plaintiff to show that “‘in the light of the duties
assigned to specific officers or employees the need for more or
different training is so obvious, and the inadequacy so likely to
result
in
the
violation
of
constitutional
rights,
that
the
policymakers of the city can reasonably be said to have been
deliberately indifferent to the need.’”
Valle v. City of Houston,
the City Council periodically authorized the
creation of various police task forces, those
resolutions have little to do with police
policy. There is no evidence that the City
Council ever commented authoritatively on the
internal procedures of the department.
Consequently
the
administrative
review
process in place here does not conclusively
demonstrate that Chief Coughlin is not a
policymaker.
Still, we have maintained that “neither
complete discretionary authority nor the
unreviewability of such authority
automatically results in municipal liability.
There must be more.”
Bolton v. City of
Dallas, Texas, 541 F.3d 545, 551 (5th Cir.
2008). We agree with the district court that
the General Orders promulgated by the police
chief sufficed to be the “more” that is
needed to prove policymaking authority in
these circumstances. On this evidence, the
chief of police is the sole official
responsible for internal police policy.
Others have only marginal involvement with
the internal procedures of the police force.
. . .
- 21 -
613 F.3d 536, 547 (5th Cir. 2010)(quoting City of Canton, 489 U.S.
at 390), cert. denied, 131 S. Ct. 2094 (2011).
“Usually a
plaintiff must show a pattern of similar violations, and in the
case of an excessive force claim . . . the prior act must have
involved injury to a third party.”
Id.; Rodriguez v. Avita, 871
F.2d 552, 554-55 (5th Cir. 1959).
“[A] single incident of an
alleged constitutional violation resulting from the policy may
serve as a basis for liability so long as that violation was an
obvious consequence of the policy. . . . [A] pattern of misconduct
is
not
required
to
establish
obviousness
or
notice
policymaker of the likely consequences of his decision.”
to
the
Brown v.
Bryan County, OK., 219 F.3d 450, 460 (5th Cir. 2000), citing City
of Canton, 489 U.S. at 396 (“Where a section 1983 plaintiff can
establish that the facts available to city policymakers that put
them on actual or constructive notice that the particular omission
is
substantially
certain
to
result
in
the
violation
of
constitutional rights of their citizens, the dictates of Monell
are satisfied.”).
“narrow”
and
This exception to a pattern of misconduct is
requires
evidence
that
“the
highly
predictable
consequence of a failure to train would result in the specific
injury suffered, and that the failure to train represented the
moving force behind the constitutional violation.”
of Houston, 613 F.3d 536, 549 (5th Cir. 2010).
- 22 -
Valle v. City
Ratification
can
also
be
a
basis
for
governmental
immunity when an authorized policymaker affirms that in performing
the
challenged
policy.
conduct,
the
employee
was
executing
official
City of St. Louis v. Praprotnik, 485 U.S. 112, 127
(1988)(“[W]hen a subordinate’s decision is subject to review by
the municipality’s authorized policymakers, they have retained the
authority to measure the official’s conduct for conformance with
their
policies.
If
the
authorized
policymakers
approve
a
subordinate’s decision and the basis for it, their ratification
would be chargeable to the municipality because their decision is
final.”).
Whether
a
governmental
decision
policymaking authority is a question of law.
Cincinnati,
475
U.S.
469,
483
(1986).
maker
has
final
Pembauer v. City of
“It
has
long
been
recognized that, in Texas, the county sheriff is the county’s
final policy maker in the areas of law enforcement, not by virtue
of delegation by the county’s governing body, but, rather, by
virtue of the office to which the sheriff has been elected.”
Turner v. Upton County, 915 F.2d 133, 136 (5th Cir. 1990)(citing
Familias
Unidas
v.
Briscoe,
619
F.2d
391,
404
(5th
Cir.
1980))(citing Monell, 436 U.S. at 694), cert. denied, 498 U.S.
1069 (1991); Bennett v. Pippin, 74 F.3d 578, 586 (1996), cert.
denied, 519 U.S. 817 (1996).
Laura Covington claims that the City is liable for
“negligent hiring” and inadequate police training and supervision.
- 23 -
#72 at p. 19.
“Negligent training will not support a § 1983 claim
against a municipality, nor is it sufficient to show that ‘injury
of accident could have been avoided if an officer had better or
more training’” because the statute requires that for liability
“for the failure to take precautions to prevent harm must be an
intentional choice and not merely a negligent oversight.”
v. Harris County, Texas, No. Civ. A. H-11-1566, 2014
Boston
WL 1275921,
at *90 (S.D. Tex. March 26, 2014), citing City of Canton, 489 U.S.
at 390.
For the same reason it would be true of a claim for
negligent hiring.
The Court will presume that Covington’s use of
“negligent” was in error.
To hold a municipality liable for inadequate hiring,
training, and supervision policies, the plaintiff must prove
culpability
and causation, i.e., that (1) the municipality’s
policy was adopted with deliberate or conscious indifference to
its known or obvious consequences to the rights of people with
whom the police come in contact and (2) the municipality must be
the “moving force” behind the constitutional violation. Snyder v.
Trepagnier, 142 F.3d 791, 795 (5th Cir. 1998), cert. granted, 525
U.S. 1098 (1888), cert. dismissed, 526 U.S. 1083 (1999).
“‘Only
where adequate scrutiny of an applicant’s background would lead a
reasonable
policymaker
to
conclude
that
the
plainly
obvious
consequence of the decision to hire the applicant would be the
deprivation of a third party’s federally protected rights can the
- 24 -
official’s
failure
to
adequately
scrutinize
the
background constitute ‘deliberate indifference.’‘”
citing Brown, 520 U.S. at 411.
applicant’s
Id. at 797,
The Fifth Circuit observed that in
Brown, “The court held that the county was not liable for a tort
committed by a police officer even though the sheriff had hired
the officer despite a lengthy criminal record, including assault
and battery, resisting arrest, and public drunkenness.
The Court
concluded that ‘[t]he connection between the background of the
particular applicant and the specific constitutional violation
must be strong.’”
Snyder, 142 F.3d at 797.
To prevail on a failure to train theory, a plaintiff
must show (1) that the municipality’s training procedures were
inadequate, (2) that the municipality was deliberately indifferent
in adopting its training policy, and (3) that the inadequate
training
policy
directly
protected rights.
caused
the
violation
Appx.
at
federally
World Wide Street Preachers Fellowship v. Town
of Columbia, 591 F.3d 747, 756 (5th Cir. 2009).
Fed.
of
316
(the
plaintiff
must
See also Okon, 426
show
that
“(1)
the
municipality had a policy or custom of which (2) a policymaker can
be charged with actual or constructive knowledge, and (3) a
constitutional violation was the ‘moving force behind the policy
or
custom.”).
A
plaintiff
may
address
deficiencies
in
the
particular procedures used to train the municipality’s officers,
the officers’ qualifications, or particular inadequacies with
- 25 -
regard
to
a
specific
Amendment training.
“[T]here
area
of
law
enforcement,
e.g.,
Fourth
Zarnow, 614 F.3d at 170.
are
limited
circumstances
in
which
an
allegation of failure to train amounts to deliberate indifference
to the rights of persons with whom the police come in contact.”
City of Canton, Ohio v. Harris, 489 U.S. 378, 387 (1989).
Deliberate
indifference
for
a
failure
to
train
requires
the
plaintiff to prove that the city policymaker disregarded “‘known
or obvious consequence of his action,’ and that a particular
omission in their training program would cause city employees to
violate citizens’ constitutional rights.”
131 S. Ct. 1350, 1360 (2011).
Connick v. Thompson,
“[W]hen city policy makers are on
actual or constructive notice that a particular omission in their
training
program
causes
city
employees
to
violate
citizens’
rights, the city may be deemed deliberately indifferent if the
policy makers choose to retain that program.
The city’s ‘policy
of inaction’ in light of notice that its program will cause
constitutional
violation
‘is
the
functional
equivalent
decision by the city itself to violate the Constitution.’”
1360,
citing
Canton,
489
U.S.
at
395.
Moreover
of
a
Id. at
municipal
liability can only be imposed “when execution of a government’s
policy or custom, whether made by its lawmakers or by those whose
edicts or acts may fairly be said to represent official policy,
inflicts injury. . . .”
Monell, 436 U.S. at 694.
- 26 -
To prevail on
a failure to train claim under § 1983, the plaintiff must show
specific inadequacies within the training program and that the
inadequate training represents city policy. Id.; see also Roberts
v. City of Shreveport, 397 F.3d 287, 293 (5th Cir. 2005)(To impose
liability,
the
plaintiff must allege with specificity how a
particular program is defective.).
“[I]t may happen that in light of the duties assigned to
specific officers or employees the need for more or different
training is so obvious, and the inadequacy so likely to result in
the violation of constitutional rights, that the policymakers of
the
city
can
reasonably
indifferent to the need.”
be
Id.
said
to
have
been
deliberately
A municipality may be liable for
the failure of a policymaker to take precautions to prevent harm,
provided that the omission is an intentional choice and not merely
a negligent oversight.
support
a
§
1983
Id.
claim
As noted, negligent training will not
against
a
municipality;
nor
is
it
sufficient to show that “injury or accident could have been
avoided if an officer had better or more training.”
Id.
Moreover
the plaintiff must demonstrate that “the identified deficiency in
a city’s training program must be closely related to the ultimate
injury.”
Id.
The real party in interest in a suit against a person in
his official capacity is the governmental entity and not the named
official.
Hafer v. Melo, 502 U.S. 21, 25 (1991).
- 27 -
See also
Kentucky v. Graham, 473 U.S. 159, 165-66 (1985)(“Official-capacity
suits . . . ‘generally represent only another way of pleading an
action against an entity of which the officer is an agent.’”),
citing Monell v. New York City Dept. of Social Services, 436 U.S.
658,
690
n.55
(1978).
Thus
claims
against
the
individual
employees of Madisonville, Texas in their official capacities
(Jeffrey Covington and Barham) are duplicative of the claims
against the City and should be dismissed.
Kentucky v. Graham, 473
U.S. 159, 167 (1985).
A private actor may act “under color of state law”
within the meaning of § 1983 if “he is a willful participant in
joint action with the state or its agents.”
Dennis v. Sparks, 449
U.S. 24, 27–28 (1980); in accord Brummett v. Camble, 946 F.2d
1178, 1185 (5th Cir. 1991)(“this is true even if the private
defendants
are
alleged
to
have
conspired
with
one
who
has
absolute, as opposed to qualified, immunity.”), cert. denied, 514
U.S. 965 (1992).
See also United States v. Price, 383 U.S. 787
(1966)(“Private persons, jointly engaged with state officials in
the
prohibited
action,
purposes of [§ 1983].
are
acting
‘under
color’
of
law
for
To act ‘under color’ of law does not
require that the accused be an officer of the State.
It is enough
that he is a willful participant in joint activity with the State
or its agents.”); Hooks v. Hooks, 771 F.2d 935, 943 (6th Cir.1985)
(“Private
persons
jointly
engaged
- 28 -
with
state
officials
in
a
deprivation of civil rights are acting under color of law for
purposes of § 1983.”); Hanania v. Loren–Maltese, 212 F.3d 353, 356
(7th Cir.2000)(A private actor . . . can have acted under color of
law
if
the
individual
plaintiff
and
can
establish
that
“(1)
the
private
a state official reached an understanding to
deprive the plaintiff of her constitutional rights and (2) the
private individual was a willful participant in joint activity
with the state or its agents.”).7 Therefore, under this principle,
the § 1983 claim against Kidd is dependent on the validity of the
claim
against
his
co-conspirator
Covington and Barham.
police
officers,
Jeffrey
See Reynolds v. Jamison, 488 F.3d 756, 764
(7th Cir. 2007).
State law where the district court sits determines
whether a police department has the capacity to sue or be
sued.
Darby v. Pasadena Police Dep’t, 939 F.2d 311, 313 (5th
Cir. 1999)(Under Texas law a city is “allowed to designate
whether one of its own subdivisions can be sued as an
independent entity.”); Crull v. City of New Braunsfels, Tex.,
267 Fed. Appx. 338, 341 (5th Cir. 2008)(“Unless the political
entity
that
created
the
[police]
7
department
has
taken
Covington cites no authority, and the Court knows of
none, supporting her claim that a confidential informant
recommended by another confidential informant is the agent of a
municipality is liable for purposes of § 1983 merely because the
police used his information and/or services.
- 29 -
‘explicit steps to grant the servient agency with jural
authority,’ the department lacks the authority to sue or be
sued.”); Combs v. City of Dallas, 289 Fed. Appx. 684, 686 (5th
Cir. 2008)(per curiam)(dismissing Dallas Police Department
from suit “because it is a servient political department that
does not enjoy a separate and distinct legal existence from
the City of Dallas”).
“In order for a plaintiff to sue a
city department, it must enjoy a separate legal existence”
from the city.
Darby, 939 F.2d at 313.
A police department
usually is not a legal entity separate from the municipality
it serves.
Jathanna v. Spring Branch Indep. Sch. Dist., Civ.
A. No. H-12-1047, 2014 WL 6096675, at *3 (S.D. Tex. Dec. 7,
2013)(citing cases).
(“A
home-rule
department.”)
Texas Local Gov’t Code Ann. § 341.003
municipality
grants
all
may
provide
authority
municipality to organize a police force.
313.
for
to
a
a
police
home-rule
Darby, 939 F.2d at
A Texas city therefore is permitted to decide whether
one of its own subdivisions can be sued as an independent
entity;
without
such
authorization,
a
police
department
cannot be sued.
Id. Because the police department lacks the
legal
to
capacity
be
sued
separately,
but
is
merely
a
department of the City, claims against the police department
are duplicative of claims against the City and should be
- 30 -
dismissed.
Darby, 939 F.2d at 313.
See also Buckley v.
Dallas County, No. Civ. A. 3:97-CV-1649-G, 1999 W.L. 222380,
at *2 (N.D. Tex. Apr. 13. 1999).
Thus Covington’s claims
against the City’s Police Department are claims against the
City.
The
municipalities
State
and
of
Texas
has
political
sovereign
subdivisions
immunity
have
and
its
governmental
immunity from claims for damages except where the Legislature
waived that immunity in the Texas Tort Claims Act (“TTCA”).
Humphreys v. City of Ganado, Texas, 467 Fed. Appx. 252, 256 (5th
Cir. Mar. 26, 2012), citing Tex. Civ. Prac. & Rem. Code § 101.021,
and Reata Constr. Corp. v. City of Dallas, 197 S.W. 3d 371, 374-76
(Tex. 2006).
The terms “sovereign immunity” and “governmental
immunity” are not synonymous; “sovereign immunity relates to the
State
of
Texas’
“governmental
districts
and
immunity
immunity”
other
from
suit
liability,”
while
cities,
counties,
school
subdivisions
from
protects
political
and
suit
and
liability. Cunningham v. City of Balch Springs, No. 3:14-CV-59-L,
2014 WL 4851576, at *6 (N.D. Tex. Sept. 30, 2014), citing Wichita
Falls State Hosp. v. Taylor, 106 S.W. 3d 692, 694 n.3 (Tex. 2003).
The Texas Legislature’s limited waiver of sovereign immunity is
for
tort
claims
arising
out
of
the
use
of
publicly
owned
automobiles, for premises defects, and for injuries arising out of
conditions or use of property.
Tex. Civ. Prac. & Rem. Code §
- 31 -
101.021.
It does not waive immunity for intentional torts, such
as assault and battery, malicious prosecution, false arrest, or
intentional infliction of emotional distress. See, e.g., Muhammad
v. Newell, 3-08-CV-1426-BD, 2009 WL 2482142, at *3 (N.D. Tex. Aug.
12, 2009)(limited waiver of TTCA “does not extend to claims
‘arising out of assault, battery, false imprisonment, or any other
intentional tort”);
imprisonment).
Chalmers,
2014
WL
1778946,
at
*4
(false
Thus should Covington be bringing any the state-
law intentional tort claims (false arrest, malicious prosecution,
and intentional infliction of emotional distress) against Jeremy
Kidd in his official capacity that might redound to the City for
liability based on his alleged conspiracy with Jeffrey Covington
and Barham or Covington’s proposed “agent” theory, they are barred
by governmental immunity.
Carter v. Diamon URS Huntsville, LL,
No. Civ. A. H-14-2776, 2015 WL 3629793, at *11-12 (S.D. Tex. June
10, 2015).
Nevertheless, because the claims against Kidd in his
individual capacity do not involve the City nor implicate its
liability, they are not relevant to the City’s motion to dismiss.
The City’s Motion to Dismiss (#57)
The City first points out that Covington cannot support
a claim against any Defendant under the Eighth or Fourteenth
Amendments because she was not serving a sentence for which she
had been convicted at the time of the alleged constitutional
deprivations.
Covington’s claims may only fall under the Fourth
- 32 -
Amendment since she was a free citizen at the time she was seized
and that she was never convicted.
Covington has no cognizable
claim of unlawful arrest under the Fourteenth Amendment.
“The
Framers [of the Constitution] considered the matter of pretrial
deprivations
of
liberty and drafted the Fourth Amendment to
address it.”
Albright v. Oliver, 510 U.S. at 275.
As indicated
supra, the Court section concurs, as discussed in the Substantive
Law of this Opinion and Order.
The City next notes that Plaintiff’s claims against the
individual Defendants in their official capacities are claims
against official’s office and no different than a suit against the
governmental unit which employs him, here the City.
Michigan
Dept.
of
State
Police,
491
U.S.
58,
71
Will v.
(1989).
“Official-capacity suits generally represent only another way of
pleading an action against an entity of which an officer is an
agent . . . .”
Monell v. New York City Dept. of Soc. Servs., 436
U.S. 658, 690 (1978).
the
standard
for
Thus for these claims Covington must meet
prevailing
on
claims
entities and governmental defenses.
the
individual
Defendants
in
the
against
claims
against
governmental
Because the claims against
their
official
the
City,
capacities
duplicative
of
they
dismissed.
Kentucky v. Graham, 473 U.S. 159, 167 (1985).
are
should
be
The
City states that “to the extent that Covington seeks to impose
liability
upon
claims
against
any
- 33 -
individual
defendant
in
a
claimed official capacity that imputes liability upon the City,
such claims must be treated as claims against the City.”
p. 5 n.2.
#57 at
As indicated supra, the Court agrees with the City as
a matter of law.
Third, the City contends that Plaintiff’s claim against
the City’s Police Department is also a claim against the City
under Texas law because the Police Department has no separate
jural existence from the City, so it must be dismissed as a
defendant.
The Police Department is merely a department of the
City and claims against it are duplicative of those against the
City and should be dismissed.
Darby v. City of Pasadena, 939 F.2d
311, 313 (5th Cir. 1991)(“The Texas Code grants all authority to
organize a police force to the city itself.
Tex. Local Gov’t Code
Ann. § 341.003."); Buckley v. Dallas County, No. Civ. A. 3:97-CV1649-G, 1999 WL 222380, at *2 *N.D. Tex. Apr. 13, 1999)(citing
“federal courts in Texas that have uniformly held that entities
without a separate jural existence are not subject to suit”;
unless the city “has taken explicit steps to grant the servient
agency with jural authority, the agency cannot engage in any
litigation except in concert with the government itself.”)(quoting
Darby at 313); Hutchinson v. Brookshire Bros., Ltd., 205 F. Supp.
2d 629, 635-36 (E.D. Tex. 2002).
Here, too, as evidenced in the
Substantive Law section of this Opinion and Order, the Court
agrees with the City’s presentation and application of the law.
- 34 -
The City further argues that Covington’s claims against
it must be dismissed because Plaintiff fails to allege facts that
show that the City deprived her of a constitutionally protected
right.
She fails to allege that the City’s policymaker was
deliberately
indifferent
to
the
need
for
a
constitutionally
adequate police supervision or hiring program, or that the City’s
programs caused Jeffrey Covington, Barham or Kidd to plant drugs
on Plaintiff so that she would be arrested and lose custody of her
children.
See
Connick
v.
Thompson,
131
S.
Ct.
1350,
1359
(2011)(To support a claim against the City, a plaintiff must
allege facts demonstrating (1) a City policy or custom accepted by
the City’s policymaker; (2) a connection between the identified
alleged policy or custom to the City through its policymaker; and
(3) the plaintiff was subjected to constitutional deprivation
because
of
execution
of
the
particular
policy
or
custom
identified.); in accord, Bennett v. City of Slidell, 728 F.2d 762,
767 (5th Cir.)(en banc), cert. denied, 472 U.S. 1016 (1985).
Furthermore, when a plaintiff seeks to impose municipal liability
on the grounds that a facially lawful municipal action has led an
employee to violate a plaintiff’s rights, the plaintiff must
establish that the municipal action was taken with “deliberate
indifference” to its known or obvious consequences. Board of
County Commissioners of Bryan County, Oklahoma v. Brown, 520 U.S.
397, 407 (1997).
“[P]roof of an inadequate policy, without more,
- 35 -
is insufficient to meet the threshold requirements of § 1983.”
Gonzalez v. Yselta Indep. Sch. Dist., 996 F.2d 7445, 757 (5th Cir.
1983).
For the municipality to be liable, the plaintiff must
provide evidence not only of a decision, but of a decision by the
city, itself, to violate the Constitution.
Gonzalez, 996 F.2d at
759.
The
requirements.
City
insists
that
Covington
has
not
met
these
Plaintiff fails to allege facts showing that the
City’s policymaker, its city council, was deliberately indifferent
to the need for a constitutionally adequate police supervision
program,
or
that
any
implied
deficiency
even
existed.
To
demonstrate constitutionally inadequate supervision of the City’s
police force, Covington must allege facts showing that the City
systematically failed to supervise its police officers, that a
causal
connection
existed
between
that
alleged
failure
to
supervise officers and deprivation of Plaintiff’s constitutionally
protected rights, and that the failure to supervise was effected
by a City policymaker through deliberate indifference.
Southard
v. Texas Bd. of Criminal Justice, 114 F.3d 539, 551 (5th Cir.
1997).
Plaintiff simply presents a broad conclusion that the
City’s officers were not adequately supervised.
The City argues
that Covington’s claim is based on her allegation that nearly onehalf of the City’s police officers were fired or resigned in a
- 36 -
six-month period, but that fact does not plausibly show a lack of
supervision, but the opposite.
Nor does Covington state facts demonstrating that a City
policymaker
was
deliberately
indifferent
to
the
need
for
a
constitutionally adequate police officer hiring program, contends
the City.
The State of Texas, through the Texas Commission on Law
Enforcement (“TCOLE”),8 has established state-wide standards for
the qualification, licensing, and training of law enforcement
officers
in
Texas.
Tex.
Occ.
Code
§
1701.251.9
These
qualifications are more demanding than those minimally required
under the Constitution.
Brown, 337 F.3d at 541.10
The City
contends that it cannot have been deliberately indifferent in
8
Formerly known as the Texas Commission on
Enforcement Officer Standards and Education (“TCLEOSE”).
Law
9
See 37 Tex. Admin. Code § 217.1 (2014), establishing
standards for training, certification, and licensing of peace
officers in the state of Texas.
10
The Court notes other courts’ recent decisions finding
TCOLE or TCLEOSE training a factor, if not a dispositive one, to
counter a claim of deliberate indifference in a failure to train
case under § 1983 include the following: Haywood v. Johnson, No.
A-13-CA-355-SS, 2014 WL 4929311, at *9 (W.D. Tex. Oct. 1, 2014);
Boston v. Harris County, Texas , 2014 WL 1275921, at *15 & n.12
(S.D. Tex. Mar. 26, 2014), quoting Zarnow, 614 F.3d at 171
(“compliance with state requirements is a factor counseling
against a ‘failure to train”); Backe v. City of Galveston, Texas,
2 F. Supp. 3d 988, 1008 (S.D. Tex. 2014)(quoting Zarnow); Echols
v. Gardiner, 2013 WL 6243736, at *12 & n.122(S.D. Tex. Dec. 3,
2013)(granting summary judgment on failure to train claims based
on “TCLEOSE standards, which the parties appear to agree are
nationally recognized as sufficient”); and Dudley v. Bexar County,
No. 5:12-CV-357-DAE, 2014 WL 6979542, at *11 (W.D. Tex. Dec. 9,
2014).
- 37 -
relying on the TCOLE standards for hiring qualified officers.
Moreover Covington does not address the City’s hiring program, but
criticizes the City’s investigation of the background of a single
officer who was employed by a different law enforcement agency in
Texas before joining th City’s police force.
Brown, 520 U.S. at
410-11 (“Unlike the risk from a particular glaring omission in a
training program, the risk from a single instance of inadequate
screening of an applicant’s background is not ‘obvious’ in the
abstract; rather it depends on the background of the applicant.
A lack of scrutiny may increase the likelihood that an unfit
officer will be hired, and that the unfit officer will, when
placed in a particular position to affect the rights of citizens,
act
improperly.
The
fact
that
inadequate
scrutiny
of
an
applicant’s background would make a violation of rights more
likely cannot alone give rise to an inference that a policymaker’s
failure
to
scrutinize
the
record
produced a specific violation.
of
a
particular
applicant
After all, a full screening of an
applicant’s background might reveal no cause for concern at all;
if so, a hiring official who failed to scrutinize the applicant’s
background cannot be said to have consciously disregarded an
obvious
risk
that
the
officer
would
particular constitutional injury.”) .
subsequently
inflict
a
The inference that the
hiring program deprived Covington of her rights is implausible,
based on allegations that a police officer framed his ex-wife to
- 38 -
gain custody of the couple’s children.
“Only where adequate
scrutiny of an applicant’s background would lead a reasonable
policymaker to conclude that the plainly obvious consequence of
the decision to hire the applicant would be the deprivation of a
third party’s federally protected right can the official’s failure
to adequately scrutinize the applicant’s background constitute
‘deliberate indifference.’”
Brown, 520 U.S. at 411.
In sum, a finding of culpability cannot rest on the mere
possibility or even probability that an inadequately screened
officer may inflict a constitutional injury; instead it would have
to depend on a finding that this officer was highly likely to
inflict the particular injury suffered by the plaintiff. . . . The
connection between the background of a particular applicant and
the specific constitutional violation must be strong.”
Covington
has
policymaker
not
alleged
implemented
a
any
facts
that
constitutionally
show
that
deficient
Id.
a
City
hiring
program policy, no less that any hiring program established by the
City was constitutionally inadequate under Brown.
Finally, Covington fails to allege facts showing that
the City’s policymaker ratified the unconstitutional arrest of
Plaintiff.
The principle of ratification, established in City of
St. Louis v. Praprotnik, 485 U.S. 112 (1988), is rarely applied.
Under it a municipality cannot be held liable under § 1983 on a
ratification
theory
unless
the
- 39 -
government
ratifies
the
unconstitutional conduct.
Id. at 926-28.
Before the City can be
held liable under this theory, an authorized policymaker must
approve of both the subordinate’s decision to engage in unlawful
conduct and the basis for the decision.
Beattie v. Madison County
School Dist., 254 F.3d 595, 603 (5th Cir. 2001).
through
its
policymaker
did
not
unconstitutional arrest of Covington.
criminal
prosecution,
discharged
approve
Here the City
of
the
alleged
It cooperated with the
Jeffrey
Covington
based
on
allegations made in this lawsuit, and Barham had already left the
City’s employ when the evidence was uncovered.
Thus here, too.
Covington fails to state a claim for which relief can be granted
against the City.
Covington’s Response (#64)
Covington argues that the issue here is whether the
Chief of Police is a final policymaker for the City dealing with
management of confidential informants and/or if he delegated that
authority to Defendants Jeffrey Covington or Barham.
The Court
finds that this is only one of several issues in this case.
Covington’s response largely reiterates the conclusory
allegations made in her complaint, which the Court has summarized.
She insists that “the Chief of Police, final policymaker for the
City, knew of the conspiracy and efforts to violate Plaintiff’s
civil rights but intentionally disregarded, ratified, protected,
and directly allowed deprivation of those rights,” “was aware of
- 40 -
the activities and created an atmosphere that fostered gross and
unchecked misconduct,” or “turned a blind eye, allowing them to
continue.”
Covington points out that she has alleged that Police
officer David Sims told the Chief that CIs had come to him and
reported that Jeffrey Covington and Barham were seeking someone to
plant drugs in Covington’s car to frame her, but the Chief ignored
the report.
(So, too, did Covington allege that Officers Clary
and Lowrenz testified that the Chief like everyone else in the
police
department,
was
aware
conflict with his ex-wife.)
of
Jeffrey
Covington’s
ongoing
In an effort to qualify Jeffrey
Covington as a policymaker, Laura
Covington
alleges
that
he
“operated autonomously and was in charge of the supervision of
confidential
informants
as
well
as
the
officers
under
his
supervision” and “as a sergeant, chief narcotics officer . . . was
not required to report to anyone at least with regards to CIs, and
various investigative activities, was the supervisor for most if
not all the police officers, and was allowed to make policy with
respect to CIs and investigations using CIs.”
#64 at p. 12.
As for the City’s contention that claims against the
individual Defendants in their official capacities are duplicative
of claims against the City and should be dismissed, Covington
responds that (1) the City’s motion for dismissal is against
parties it does not represent and (2) it only applies to a damages
judgment, not to injunctive relief under the principles of Ex
- 41 -
parte Young, 209 U.S. 123 (1908).
U.S. 651, 667-68 (1974).
See also Edelman v. Jordan, 415
The Court disagrees.
The established
law is very clear that a suit against an individual in his
official governmental capacity is, in essence, a suit against the
government entity he serves, and thus the City has every right to
move for dismissal of these claims.
As for injunctive relief,
although Covington may have prayed for it, Jeffrey Covington and
Barham are no longer employed by the City, and as discussed below,
because Covington fails to state a claim against the City, the
request for injunctive relief also fails.
Court’s Ruling
As discussed supra, as a matter of law Plaintiff’s
claims
under
the
Eighth
and
Fourteenth
Amendments
are
not
cognizable and are DISMISSED with prejudice.
Because
Laura
Covington’s
claims
against
Jeffrey
Covington and Barham in their official capacities are in actuality
claims against the City, these claims against Jeffrey Covington
and Barham in their official capacities are also DISMISSED as
duplicative.
So too, is any claim against Kidd in his official
capacity as a co-conspirator of Jeffrey Covington and Barham in
state action in violating Covington’s federally protected rights
hereby DISMISSED.
Nor, the Court finds, does Covington state a plausible
claim under § 1983 against the City.
- 42 -
The First Amended Complaint
is impermissibly conclusory and vague in key issues.
Covington
claims
the
Chief
of
Police
is
the
Although
City’s
final
policymaker, she does not even distinguish between the two
named
in the complaint (Clandenine and May) and who is responsible for
what, she does not allege that either one
personally participated
in the false arrest and malicious prosecution, and she fails to
provide the factual support necessary to establish that status for
the City’s Chief of Police.
Instead she alleges only a single
isolated example (the scheme against her by Jeffrey Covington,
Barham, and Kidd), but no other instances to establish a custom or
policy of false arrests and malicious prosecutions, not to mention
a
custom
or
practice
of
other
constitutional
violations.
Covington’s exaggerated argument that because a final policy maker
will generally be someone whose decisions are not subject to
review by another official or governmental body, Jeffrey Covington
and Barham’s alleged (but unsupported) unrestrained freedom to
operate the police department, or at least the CIs, means they
were somehow delegated the role of policymakers for the City, is
both
too
attenuated
implausible.
to
establish
such
a
status
and
highly
Nor does Covington show that the Chief of Police (or
Jeffrey Covington and Barham) “made a deliberate choice to follow
a course of action . . . from various alternatives.”
U.S. at 483-84.
Pembaur, 475
Not only does Covington fail to describe any
other specific incidents of such alleged reckless, unrestricted
- 43 -
behavior by the two to establish a pattern or custom of conduct,
but accepting such reasoning would open Pandora’s box to claims of
policymaker status.
Nor does Covington state a claim for any City policy,
custom, or widespread practice of false arrests.
Covington claims the City had a
practice of inadequate
background checks of applicants for employment because it failed
to discover the fact that Jeffrey Covington was fired from a
security job in Iraq for violating his employer’s drug policy and
that Barham was on probation for stealing drug evidence from a
crime scene.
fails
to
show
Again, she cites only these two examples and she
that
the
City’s
failure
to
investigate
their
backgrounds would lead a reasonable policy maker to conclude that
the plainly obvious consequence of hiring them would be the
deprivation of a third party’s (Laura Covington’s) federally
protected rights.
Snyder, 142 F.3d at 795.
Nor does she show
that the failure to investigate their past histories was the
moving force behind the violation of Covington’s constitutional
rights.
The complaint makes clear that the motivating factor was
Jeffrey Covington’s desire for revenge and obtaining custody of
his children.
Regarding her claim of failure to train or supervise the
City’s police, Covington offers no particulars about the City’s
training procedures, no less identifies inadequacies or omissions
- 44 -
in them.
Nor does she shown any deficiencies were intentional or
established with deliberate indifference.
Nor does she show they
were the moving force behind the violation of Covington’s rights.
Accordingly, the Court
ORDERS that the City’s motion to dismiss the claims
asserted against it pursuant to Fed. R. Civ. P. 12(b)(6) is
GRANTED, but Covington is GRANTED LEAVE, if she is able, to file
within
twenty
days
an
amended
pleading
that
satisfies
the
requirements to state a claim against the City under § 1983 or she
shall inform the Court that she no longer wishes to pursue her
claims against the City.
Furthermore, Kidd was served on December 26, 2013, more
than a year and six months ago, far beyond the twenty-one days
permitted for filing a responsive pleading under Fed. R. Civ. P.
12(1)(A).
Kidd
has
never
made
an
appearance
nor
filed
a
responsive pleading, nor has Covington moved for entry of default
against
him.
Moreover,
as
noted,
Covington’s
claims
of
constitutional violations under § 1983 against Kidd (based on his
conspiracy
with
duplicative
of
Jeffrey
claims
Covington
against
the
and
City
Barham)
and
are
are
actually
dismissed.
Therefore the Court
ORDERS that Covington shall file within twenty days
either a motion for entry of default, to be followed by a motion
for default judgment, or a voluntary dismissal of Kidd, or an
- 45 -
amended pleading that adequately states the state-law tort claims
against Kidd in his individual capacity, supported by facts, or
the Court will dismiss the state-law tort claims against Kidd for
failure to prosecute.
SIGNED at Houston, Texas, this
4th
day of
September ,
2015.
___________________________
MELINDA HARMON
UNITED STATES DISTRICT JUDGE
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