Carter et al v. Diamond URS Huntsville, LLC et al
Filing
45
OPINION AND ORDER. The Court orders that Defendants Diamond URS Huntsville, LLC d/b/a the Connection at Huntsville and Asset Campus Housing Inc.s motion to join (#24) is MOOT. The Court furtherREAFFIRMS its earlier dismissal with prejudice of the s tate-law tort claims under the TTCA against Officers Stacey Smith and Christopher Myers in their individual capacities. In addition the Court ORDERS that Defendants motion to sever is DENIED. Finally, the CourtORDERS that Defendants motion to dismi ss Plaintiffs claims under § 1983 and the Fourth Amendment against the City and against the two police officers in their official capacities is GRANTED, but is DENIED with respect to § 1983/Fourth Amendment claims against Officers Christopher Myers and Stacey Smith in their individual capacities. (Signed by Judge Melinda Harmon) Parties notified.(jdav, 4)
United States District Court
Southern District of Texas
ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
MELISA CARTER and CHRIS SMITH, §
§
Plaintiffs,
§
§
VS.
§
§
DIAMOND URS HUNTSVILLE, LLC,
§
ASSET CAMPUS HOUSING, INC.,
§
THE CITY OF HUNTSVILLE, TEXAS, §
OFFICER STACEY SMITH-GALLAR,
§
and OFFICER CHRISTOPHER MYERS, §
§
Defendants.
§
March 30, 2016
David J. Bradley, Clerk
Civ. A. H-14-2776
OPINION AND ORDER
Pending before the Court in the above referenced cause,
grounded in 42 U.S.C. § 1983 and the Fourth Amendment of the
United
States
Constitution
and
alleging
excessive
force
and
unreasonable search and seizure, in addition to assault and
battery and false imprisonment under Texas common law1 against
1
Arguing that the Court wrongly construed and dismissed
their tort claims under the Tort Claims Act, Tex. Civ. Prac. &
Rem. Code § 101.001, et seq., in its previous Opinion and Order
(#28), Plaintiffs state that they are not suing under the statute,
but under Texas common law. Moreover, because Plaintiffs allege
Smith and Myers acted in bad faith, they do not invoke official
immunity under the common law claims. As will be discussed, it is
not up to Plaintiffs, but to Defendants to invoke the affirmative
defense of immunity by conclusively showing they were performing
discretionary duties, within the scope of their employment and
that they acted in good faith. Telthorster v. Tennell, 92 S.W. 3d
457, 459-61 (Tex. 2002)”When a suspect sues for injuries sustained
during an arrest, official immunity’s good faith element requires
the defendant to show that a reasonably prudent officer under the
same or similar circumstances, could have believed that the
disputed conduct was justified based on the information the
officer possessed when the conduct occurred.”). Then Plaintiff
bear the burden of demonstrating that the defense does not apply
by showing because no reasonable officer under similar
circumstances could have believed that the facts were such that
they justified the disputed conduct. Id. at 460.
-1-
Defendants/Officers Stacey Smith and Christopher Myers in their
individual capacities only, are the following motions:
(1)
Defendants the City of Hunstville, Texas, Officer Stacey Smith,
and Officer Christopher Myers’ motion to dismiss pursuant to Fed.
R. Civ. P. 12(b)(6)(instrument #32); (2) Defendants City of
Huntsville, Officer Stacey Smith, and Officer Christopher Myers’
opposed motion to sever claims (#22);
and (3) Defendants Diamond
URS Huntsville, LLC d/b/a the Connection at Huntsville and Asset
Campus Housing Inc.’s motion to join #22 (#24).
As a threshold matter, because Plaintiffs’ governing
First Amended Complaint (#31) has dropped their earlier claims
against
Defendants
Diamond
URS
Huntsville,
LLC
d/b/a
the
Connection at Huntsville and Asset Campus Housing Inc., the
motion to join (#24) is MOOT.
I.
Defendants’ Motion for Severance
The Court addresses the severance issue first.
Federal Rule of Civil Procedure 21 provides,
Misjoinder of parties is not a ground for
dismissing an action. On motion or on its
own, the court may at any time, on just
terms, add or drop a party. The court may
also sever any claim against a party.
A.
Standard of Review
The district court has broad discretion to sever claims
and parties in a lawsuit.
Anderson v. Red River Waterway Comm’n,
231 F.3d 211, 214 (5th Cir. 2000).
“Severance under Rule 21
creates two separate actions or suits where previously there was
but one.
Where a single claim is severed out of a suit, it
proceeds as a discrete, independent action, and a court may render
-2-
a final, appealable judgment in either one of the resulting two
actions notwithstanding the continued existence of unresolved
claims in the other.”
(5th Cir. 1983).
United States v. O’Neill, 709 F.2d 361, 368
The Court should examine Fed. R. Civ. P. 20(a)
to determine if the parties have been misjoined and should
therefore be severed.
Acevedo v. Allsup’s Convenience Stores,
Inc., 600 F.3d 516, 521 (5th Cir. 2010).
Rule 20(a) permits
individuals to “join in one action as plaintiffs if (A) they
assert
any
alternative
right
to
relief
with
respect
to
jointly,
or
severally,
arising
out
of
or
in
the
the
same
transaction, occurrence or series of transactions or occurrences;
and (B) any question of law or fact common to all plaintiffs will
arise in the action.”
The Fifth Circuit has not adopted a particular test to
decide what is “the same transaction or occurrence” under Rule
20(a). Lodsys, LLC v. Brother Intern. Corp., No. 2:11-cv-90-JRG,
2012 WL 760729, at *2 (E.D. Tex. Mar. 8, 2012).
Several of its
district courts have used the Eighth Circuit’s “logically related”
test for the “same transaction” requirement in Moseley v. GMC, 497
F.2d 1330, 1332-33 (8th Cir. 1974)(“[A]ll ‘logically related’
events entitling a person to institute a legal action against
another generally are regarded as comprising a transaction or
occurrence”; “as used in Rule 20 [the terms] would permit all
reasonably related claims for relief by or against different
parties to be tried in a single proceeding.
Absolute identity of
all events is unnecessary.”)(citing 7 C. Wright, Federal Practice
and Procedure § 1653 at 270 (1972).
-3-
Id.
The “common question”
can be satisfied by the presence of only a single one.
Texas
Instruments, Inc. v. Citigroup Global Markets, Inc., 266 F.R.D.
143, 148 (N.D. Tex. 2010)(“Texas Rule 40 provides that defendants
may be joined together in the same action only if (1) ‘there is
asserted against them jointly, severally, or in the alternative
any right to relief in respect of or arising out of the same
transaction,
occurrence,
or
series
of
transactions
or
occurrences;’ and (2) at least one ‘question of law or fact common
to all of them will arise in the action.’”(citing inter alia Tex.
R. Civ. P. 40(a), and 7 C. Wright, A. Miller, & M. Kane, Federal
Practice & Procedure § 1653 (3d ed. 2002)).
In In re Rolls Royce Corp., 775 F.3d 671, 680 n.40 (5th
Cir. 2014), the Fifth Circuit acknowledged that while it has not
yet adopted a test for severance, a number of its district courts
have applied the five-factor test in Paragon Office Servs., LLC v.
UnitedHealthcare Ins. Co., No. 3:11-CV-2205-D, 2012 WL 4442368, at
*1 (N.D. Sept. 26, 2012):
“(1) whether the claims arise out of
the same transaction or occurrence; (2) whether the claims present
some common questions of law or fact; (3) whether settlement of
the claims or judicial economy would be facilitated; (4) whether
prejudice would be avoided if severance were granted; and (5)
whether different witnesses and documentary proof are required for
the separate claims.”
“‘[S]everance will be refused if the court
believes that it only will result in delay, inconvenience, or
added expense.’” Id., quoting Wright & Miller, Fed. Prac. & Proc.
§ 1689 (3d ed. 2004).
“‘Under the Rules, the impulse is towards
entertaining the broadest possible scope of action consistent with
-4-
fairness to the parties; joinder of claims, parties and remedies
is strongly encouraged.’”
Acevedo, 600 F.3d at 521, quoting
United Mine Workers v. Gibbs, 383 U.S. 714, 724 (1966).
B.
Defendants’ Argument
Defendants urge the Court to sever this action into two
lawsuits because, as United States Magistrate Judge Frances Stacey
observed in her Order (#19 at pp. 1-2) of March 27, 2015, denying
Defendants’ motion to disqualify, “This is a civil rights case
involving claims that two police officers with the City of
Huntsville Police Department (Stacey Smith and Christopher Myers)
used excessive force against two unrelated Plaintiffs--Melisa
Carter and Chris Smith--in two unrelated incidents.”
Defendants
maintain that Chris Smith had no involvement or any connection
with the arrest of Melisa Carter and vice versa.
Furthermore,
Chris Smith has not alleged facts and cannot provide any evidence
demonstrating that Stacey Smith had any connection with Chris
Smith’s arrest.
Instead, they argue, it is obvious that Chris
Smith is suing his estranged wife, Stacey Smith, in order to gain
an advantage in their divorce and child custody litigation. Thus,
insist Defendants, Plaintiffs cannot assert any right to relief
jointly or severally against all the Defendants and their claims
do not arise out of the same transaction or occurrence.
The
claims of the two Plaintiffs do not share any common questions of
law or fact.
Even if there were one common question, the Court
has the discretion to sever the claims to avoid prejudice and
delay, to ensure judicial economy, and to safeguard principles of
fundamental fairness at stake here.
-5-
The motion also points out that each Defendant here has
asserted a defense of qualified immunity and argues that forcing
these officers to a trial that includes unrelated claims from
unrelated events would deprive them of protections under their
immunity defense.
Claims about the bad acts of either defendant
would be irrelevant to the objective analysis required for their
qualified
deprive
immunity
them
of
defense
that
and
would
defense’s
unfairly
protection
prejudice
and
and
inadmissible
character evidence under Federal Rules of Evidence 403, 404, and
608.
Wicks v. Mississippi State Employment Servs., 41 F.3d 991,
994 (5th Cir. 1994)(“in allowing limited discovery on the issue of
qualified
immunity
would
deny
[party]
the
benefit
of
[its]
qualified immunity defense, the most relevant being the protection
from pretrial discovery”), citing Lion Boulos v. Wilson, 834 F.2d
504,
507-08
(5th
Cir.
1987)(“‘A
defendant
entitled
to
claim
qualified immunity is shielded not only from liability, but also
from ‘the costs of trial [and] . . . the burdens of broad-reaching
discovery.’”), quoting Harlow v. Fitzgerald, 457 U.S. 800, 816
(1982).
C.
Plaintiffs’ Response
In
response
(#26)
Plaintiffs
claim
that
the
two
officers’ continuous course of conduct, i.e., the ongoing use of
excessive force and unlawful arrest by Officer Stacey Smith-Gellar
(“Officer Stacey Smith”) and Officer Christopher Myers (“Officer
Myers” or “Myers”) supports an essential element of their § 1983
claim against the City of Huntsville, i.e., a custom or policy of
-6-
allowing its officers to violate civil rights.2
Thus there is a
common question of law and fact here relating to qualified
immunity as well as to the training, hiring and retention of these
officers, and the grounds for Myers’ termination.3
These same two
officers used excessive force and performed two illegal arrests
within a week of each other, both for personal reasons and by
virtue of being officers of the Huntsville Police Department,
acting under color of state law.
Plaintiffs claim that the two
2
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
official approval. Monell v. Department of Social Services of
City of New York, 436 U.S. 658, 663 n.7 (1978). To state a claim
for municipal liability under Section 1983, a plaintiff must
identify (a) a policy maker, (b) an official policy [or custom or
widespread practice], and (c) a violation of constitutional rights
whose “moving force” (the causal link), is the policy or custom.
Piotrowski v. City of Houston, 237 F.3d 567, (5th Cir. 2001),
citing Monell, 436 U.S. at 694. 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.
3
According to the First Amended Complaint, #31, ¶ 3.23,
Myers was investigated for his several acts
of police misconduct, and was indicted by the
Grand Jury for Felony Oppression for the
incident preceding the two at issue here.
Myers eventually entered a plea agreement in
which he agreed to never work in law
enforcement again. The charges against both
Carter and Plaintiff Smith were dismissed
quietly.
Paragraph 3.25 states, “Carter never received a response to her
complaint that appears to have been ignored once Myers was
indicted for the previous act of felony Official Oppression.”
-7-
separate but closely related incidents were part of the same
“series of transactions.”
D.
Court’s Decision
The Court finds that the motion to sever should be
denied.
In their allegations against the three Defendants,
Plaintiffs have joined claims against the two officers and the
City of Huntsville in part to meet (1) the requirement of a policy
or custom to impose liability on the City under § 1983; (2) the
requirement that policy makers actually or constructively knew of
the unconstitutional deficiencies in those policies or customs,
which were highly predictable; and (3) the requirement that the
customs
or
policies
were
the
moving
force
behind
the
constitutional violation of Plaintiffs’ rights and adopted with
deliberate indifference to the rights of the citizens.
In
Leatherman v. Tarrant County Narcotics Intelligence
and Coordination Unit, 507 U.S. 163, 168 (1993), the Supreme Court
rejected any heightened pleading standard for section 1983 claims
against
municipalities
and
instead
applied
Rule
8(a)(2)’s
requirement of “a short and plain statement of the claim showing
the pleader is entitled to relief.”
Plaintiffs’ First Amended
Complaint (#31) alleges that “Myers had a history and pattern of
abusing his office and power and was removed from the police force
for excessive force and abuse of a detainee.”
Id., ¶ 3.1.
continues, ¶ 3.2,
Prior to the incidents at issue here, Myers
while on duty and on patrol, assaulted a
citizen he had stopped and, among other bad
acts and physical assaults, shoved the
detainee’s face into the truck lid of his
-8-
It
vehicle in the heat of the summer and held it
there until the victim was severely burned by
the hot metal.
This felony conduct was
recorded on Myers’ patrol car camera and
viewed by his superiors shortly thereafter.
An investigation ensued, but Myer’s [sic] was
not suspended or disciplined, and was, in
fact, allowed to continue as a patrolman.
The Chief of Police and the City Manager of
Huntsville were both aware of Myers’ bad acts
and the Chief viewed the video of Myers’
assault.
The First Amended Complaint, ¶3.11-3.14 describes in detail the
alleged violence with which Myers treated Plaintiff Carter in
stopping her and arresting her in her own apartment, purportedly
without probable cause. It also alleges facts of his intimidation
in his unlawful stop and arrest of Plaintiff Chris Smith after he
had
already
been
questioned
and
following an automobile accident.
released
by
other
¶ 3.18-3.21, 3.24.
officers
The claims
against Defendant Officer Stacey Smith allege that she conspired
with Myers and participated in an action with him to “get”
Plaintiffs Chris Smith and Carter.
The joinder of the claims against the two officers is
relevant to the common legal question of a custom or policy for
imposition of liability on the City of Huntsville for the alleged
unconstitutional violations of Plaintiffs’ rights.
See, e.g.,
Battison v. City of Electra, No. 7:01-CV-037-R, 2001 WL 497769, at
*2(N.D. Tex. May 8, 2001)(In a § 1983 suit alleging that the City
of Electra engaged in a pattern or practice of violating the
constitutional rights of its citizens by engaging in negligent
hiring, supervision and retention, the court opined, “Where a
claim is based on a pattern or practice of conduct, such conduct
-9-
can
constitute
the
‘series
required by Rule 20(a).”).
of
transactions
or
occurrences’
The second prong of Rule 20(a) is met
because both Plaintiffs allege the same constitutional violation
of false arrest.
Because of these common questions of law and
fact, judicial economy would be served by trying these claims
together.
The joinder of these parties and claims therefore does
not prolong the litigation nor unnecessarily increase its costs.
Plaintiffs have shown why the claims should not be severed and
accordingly the Court denies Defendants’ motion to sever.
See
also, e.g., King v. Ralston Purina Co., 97 F.R.D. 477, 480 (D.N.C.
1983)(“Common sense says that claims alleged to be part of a
‘pattern or practice’ satisfy both the ‘transaction’ and the
‘common question’ requisites of Rule 20(a).”).
Whether Plaintiffs have succeeded in stating a claim
upon which relief may be granted, however, is a separate issue
from severance and is raised by Defendants’ motion to dismiss
under Rule 12(b)(6).
II.
A.
Defendants’ Motion to Dismiss (#32)
Procedural History
This is the second time Defendants have moved to dismiss
Plaintiffs’
pleadings.
Previously
the
Court
dismissed
with
prejudice Plaintiffs’ claims under the Fourteenth Amendment, the
tort claims under Texas Tort Claims Act (false arrest, assault and
battery, malicious prosecution, false imprisonment, negligence,
and conspiracy) against Officers Smith and Myers and against the
City of Huntsville, and their claims for damages for violations of
the Texas Constitution, but otherwise denied the motion. #28. It
-10-
granted leave to Plaintiffs to file an amended pleading with
viable claims under § 1983 and the Fourth Amendment.
Thus the
First Amended Complaint is Plaintiffs’ “second bite of the apple.”
B.
Standard of Review
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
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 . .
-11-
.
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,
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
-12-
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.
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).
C.
Substantive Law
1.
42 U.S.C. § 1983
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.
2.
Id.
Municipal Liability Under § 1983
Municipalities and other bodies of local government are
“persons” within the meaning of § 1983.
Monell v. Department of
Social Services, 436 U.S. 658, 690 (1978). “A municipality cannot
be held liable solely because it employs a tortfeasor--or, in
-13-
other words, a municipality cannot be held liable under § 1983 on
a respondeat superior theory.”
Id. at 691.
Canton v. Harris, 489 U.S. 378, 392 (1989).
See also City of
The bar on vicarious
liability means that the municipality can only be liable where the
municipality itself causes the constitutional violation at issue.
Monell, 436 U.S. 658.
A municipality may be liable under § 1983
if the execution of one of its customs or policies deprives a
plaintiff of his constitutional rights.
91.
To
avoid
respondeat
superior
Monell, 436 U.S. at 690liability
and
to
impose
liability on the City, the plaintiff must establish both the
causal link (that the policy is the “moving force” behind the
constitutional violation) and the City’s degree of culpability
(“deliberate indifference” to the known or obvious consequences of
the City’s unconstitutional policy).
Bryan County v. Brown, 520
U.S. 397, 415 (1997).
To state a claim for municipal liability under § 1983,
a plaintiff must identify (a) a policy maker, (b) an official
policy [or custom or widespread practice], and (c) a violation of
constitutional rights whose “moving force” is the policy or
custom, i.e., the deprivation of plaintiff’s constitutional rights
was inflicted pursuant to that official custom or policy.
Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th Cir. 2001)(a
plaintiff
must
show
that
the
unconstitutional
conduct
is
attributable to the municipality through some official custom or
policy that is the “moving force” behind the constitutional
violation)(citing Monell, 436 U.S. at 694), cert. denied, 534 U.S.
820 (2001).
The Fifth Circuit has defined an official policy for
-14-
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 Fed. Appx. 312, 316 (5th
Cir. May 23, 2011), quoting Bennett v. City of Slidell, 735 F.2d
861, 862 (5th Cir. 1984)(en banc), cert. denied, 472 U.S. 1016
(1985). When a policymaker commits the act at issue, that act may
establish the policy if the policymaker must be “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).4
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)].
“A
pattern requires similarity and specificity; [p]rior indications
cannot simply be for any and all ‘bad’ or unwise acts, but rather
must point to the specific violation in question. . . . A pattern
also requires ‘sufficiently numerous prior incidents,’ as opposed
4
In such a case the court must determine which official
or government body has final policymaking authority for the local
government unit regarding the action in dispute. Id.
-15-
to ‘isolated instances.’”
Peterson v. City of Fort Worth, Texas,
588 F.3d 838, 851 (5th Cir. 2009).
“If actions of city employees
are to be used to prove a custom for which the municipality is
liable, those actions must have occurred for so long or so
frequently that the course of conduct warrants the attribution to
the governing body of knowledge that the objectionable conduct is
the expected, accepted practice of city employees.”
Webster v.
City of Houston, 735 F.2d 838, 842 (5th Cir. 1984); Peterson, 588
F.3d at 850.
“A pattern requires similarity and specificity”;
“[p]rior indications cannot simply be for any and all ‘bad’ or
unwise acts, but rather must point to the specific violation in
question.”
Peterson, 588 F.3d at 851, citing Estate of Davis ex
rel. McCully v. City of North Richland Hills, 406 F.3d 375, 383
(5th Cir. 2005).
“A plaintiff cannot conclusorily allege a policy
or a custom and its relationship to the underlying constitutional
violation; instead the plaintiff must plead specific facts.
Spiller v. City of Texas City, Police Dep’t, 130 F.3d 162, 167 (5th
Cir. 1997), citing Fraire v. Arlington, 957 F.2d 1268, 1277 (5th
Cir. 1992).
“Allegations of an isolated incident are not sufficient
to show the existence of a custom or policy.”
Fraire v. City of
Arlington, 957 F.2d 1268, 1278 (5th Cir. 1992); see also Rivera v.
Houston I.S.D., 349 F.3d 244, 247 (5th Cir. 2003)(“[I]solated
unconstitutional actions by municipal employees will almost never
trigger liability.”), citing Bd. of Cnty. Comm’rs v. Brown, 520
US. 397, 403 (1997).
-16-
“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.”
Okon, 426
Fed. Appx. at 316, citing Bennett, 735 F.2d at 862.
“‘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. 1984)(en banc), cert. denied, 472 U.S. 1016
(1985).
“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,
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
-17-
case of an excessive force claim . . . the prior act must have
involved injury to a third party.”
F.2d 552, 554-55 (5th Cir. 1959).
Id.; Rodriguez v. Avita, 871
“[A]
City
policy
of
inadequate officer discipline could be unconstitutional if it was
pursued with deliberate indifference toward the constitutional
rights of citizens.”
Piotrowski, 237 F.3d at 581.
To state a claim against a municipality under § 1983
that will not be dismissed under Rule 12(b)(6), an individual
plaintiff can provide fair notice by “inter alia describ[ing] (1)
past incidents of misconduct by the defendant to others; (2)
multiple harms that occurred to the plaintiff himself; (3) the
involvement of multiple officials in the misconduct; or (4) the
specific topic of the challenged policy or training inadequacy. .
.
.
Those
types
of
details,
together
with
any
elaboration
possible, help to (1) ‘satisfy the requirement of providing not
only ‘fair notice’ of the nature of the claim, but also ‘grounds’
on which the claim rests,’and (2) ‘permits the court to infer more
than the mere possibility of misconduct.’”
Flanagan v. City of
Dallas, Texas, No. 3:13-CV-4231-M-BK, 2014 WL 4747952, at *3 (N.D.
Tex. Sept. 23, 2014), citing Thomas v. City of Galveston, 800 F.
Supp. 2d 826, 843-44 (S.D. Tex. 2011); Twombly, 550 U.S. at 555
n.3; and Iqbal, 556 U.S. at 679.
For example in Flanagan, id. at
*10, the district court found adequately pleaded a claim of
excessive force by the Dallas Police Department (“DPD”) against
the City of Dallas to survive a Rule 12(b)(6) challenge:
Plaintiffs have . . . pleaded several facts
from which one could make a reasonable
inference
of
a
persistent,
widespread
-18-
practice by DPD officers or otherwise using
excessive force rising to the level of a
custom having the force of official City
policy. In particular, Plaintiffs alleged in
their amended complaint that (1) the policy
of the DPD to shoot first and ask questions
later; (2) Councilman Caraway informed the
media that there were training issues within
the DPD that had resulted in the killing of
an unarmed individual; (3) Dallas is at the
top of the list of police misconduct
statistics in the South along with several
other Texas cities; (4) Dallas is ranked
number 11 in police misconduct incidents; (5)
the
total
number
of
officer-involved
shootings was 144; (6) 86 grand juries have
been
convened
to
investigate
police
misconduct (although only two indictments
have been returned); (7) 60 unarmed AfricanAmerican men have been killed by DPD officers
over the past 13 years; (8) at least 12 other
shootings of unarmed individuals by DPD
officers took place during the year of
Allen’s death (Plaintiffs describe the
derails of three of the shootings, all of
which occurred after the incident involving
Allen [and pointing out similarities to
allegations regarding Allen’s shooting in
that the individuals involved were not
provoking or resisting the police when they
were shot]); and (9) there are 94 open DPD
internal affairs investigation into officerinvolved shootings.
The district court further noted, id. at *11,
Plaintiffs allege that, on average, more than
four unarmed people have been killed by DPD
officers each year for the past dozen years
and that there are nearly 100 open internal
investigations into such shootings and have
been nearly as many grand jury proceedings.
While it is a close call, taking all of their
allegations to be true, Plaintiffs have pled
sufficient facts, at the motion to dismiss
stage, from which one could make a reasonable
inference
of
a
persistent,
widespread
practice by DPD officers of using excessive
force rising to the level of a custom having
the force of official City policy.
-19-
Id.5, citing Oporto v. City of El Paso, No. 10-CV-110-KC, 2010 WL
3503457, at *6 (W.D. Tex. 2010), and Rivera v. City of San
Antonio, No. SA-06-CA-235-XR, 2006 WL 3340908, at *12 (W.D. Tex.
2006).
The right to be free from excessive force during a
seizure is clearly established.
Poole v. City of Shreveport, 691
F.3d 624, 627 (5th Cir. 2012), citing Deville v. Marcantel, 567
F.3d 156, 169 (5th Cir. 2009)(per curiam).
To state a claim of
excessive force in a seizure under the Fourth Amendment, the
plaintiff must demonstrate (1) an injury (2) resulting directly
and only from a use of force that was clearly excessive, and (3)
that the excessiveness of the force was clearly unreasonable.
Tarver v. City of Edna, 410 F.3d 745, 751 (5th Cir. 2005).
The
third prong depends on the “totality of the circumstances.”
Tennessee v. Garner, 471 U.S. 1, 8-9 (1985).
The court should
5
In Flanagan, 2014 WL 4747952 at *13, the district
court found the following allegations inter alia sufficient to
plead that the City of Dallas failed “to provide proper training
in the use of deadly force amounts to deliberate indifference to
the rights of a person with whom the police come into contact”:
(1) a witness stated that Allen was unarmed
and
complying
with
Officer
Staller’s
instructions before Officer Staller shot him
repeatedly; (2) at least 12 other shootings
of unarmed individuals by DPD officers took
place during the year Allen died, and over 60
unarmed African-American men have been killed
by DPD officers since 2001; (3) although
Officer Staller had been the subject of
several complaints, at least two of which
involved inappropriate use of force, he was
still permitted to carry a firearm; and (4)
both Councilman Caraway and Chief Brown
acknowledged the need for further DPD
training.
-20-
consider “the severity of the crime at issue, whether the suspect
poses an immediate threat to the safety of others, and whether he
is actively resisting arrest or attempting to evade arrest by
flight.”
Graham, 490 U.S. at 396.
The key issue is “whether the
officers’ actions are “objectively reasonable in light of the
facts and circumstances confronting them, without regard to their
underlying intent or motivation.’”
quoting Graham, 490 U.S. at 397.
Poole, 691 F.3d at 628,
The analysis must be objective,
and the court must view the officer’s use of force “from the
perspective of a reasonable officer on the scene, rather than with
the 20/20 vision of hindsight.”
Id., citing id.
The court must
balance the amount of force used against the need for that force
and consider that police officers are often forced to make splitsecond judgment in situations that are tense, uncertain, and
rapidly evolving.
Graham, 490 U.S. at 396.
“An officer’s evil
intentions will not make a Fourth Amendment violation out of an
objectively reasonable use of force; nor will an officers’s good
intentions
make
constitutional.”
an
objectively
unreasonable
use
of
force
Id. at 397.
It is clearly established Fourth Amendment law that an
arrest must be based on probable cause, which “exists when ‘the
facts and circumstances within the officer’s knowledge . . . are
sufficient to warrant a prudent person, or one of reasonable
caustion, in believing, in the circumstances shown, that the
suspect has committed, is committing, or is about to commit an
offense.’”
Bosarge v. Mississippi Bureau of Narcotics, 796 F.3d
435, 442 (5th Cir. 2015), citing Club Retro, LLC v. Hilton, 568
-21-
F.3d 181, 206, 204 (5th Cir. 2009).
“[R]easonable mistakes by
police officers, even leading to the arrest of the wrong person,
do not implicate the Fourth Amendment.”
Id.
To allege a section
1983 claim, the plaintiff must show that the defendant did not
have probable cause to arrest the plaintiff.
Haggerty v. Texas
Southern Univ., 391 F.3d 653, 655 (5th Cir. 2004)
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).
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 suit against individual Defendants
Myers and Stacey Smith in their official capacities is a suit
against the City and must be pleaded as such.
3.
Excessive Force
To prevail on a § 1983 excessive force claim in violation
of the Fourth Amendment, a plaintiff must show (1) that he was
seized,6 (2) that he suffered an injury, (3) which “resulted
directly and only from the use of force that was excessive to the
need, and that (4) the force used was objectively unreasonable.”
Flores v. Palacios, 391 F.3d 391, 396 (5th Cir. 2004).
6
“To
A seizure may be shown “by means of physical force or
show of authority” when the officer has “in some way restrained
the liberty of a citizen.” Terry v. Ohio, 392 U.S. 1, 19 n.16
(1968). An officer is required to have reasonable suspicion to
temporarily detain a suspect under the Fourth Amendment.
Id.
at16-19.
-22-
determine whether a seizure was objectively reasonable, and thus
whether an injury is cognizable, we ask whether the totality of the
circumstances
justified
[that]
particular
sort
of
search
or
seizure,” balancing the “amount of force used against the need for
force.”
Id. at 398-99.
See also Carnaby v. City of Houston, 636
F.3d 183, 187 (5th Cir. 2011)(“To prevail on a Fourth Amendment
excessive force claim, a plaintiff must establish: (1) an injury;
(2) that the injury resulted directly from the use of excessive
force; and (3) the excessiveness of the force was unreasonable.”
To decide whether the seizure was objectively reasonable, generally
the court must ask if the totality of the circumstances justified
that kind of search or seizure.
471 U.S. 1, 8-9 (1985).
Id., citing Tennessee v. Garner,
Nevertheless, the Fifth Circuit has
narrowed the test and held that “‘[t]he excessive force inquiry is
confined to whether the [officer] was in danger at the moment of
the threat that resulted in the [officer’s] shooting.’ Therefore,
any of the officers’ actions leading up to the shooting are not
relevant for purposes of an excessive force inquiry in this
Circuit.”
Harris v. Serpas, 745 F.3d 767, 772 (5th Cir. 2014),
quoting Bazan ex rel. Bazan v. Hidalgo County, 246 F.3d 481, 493
(5th Cir. 2001)(“The excessive force inquiry is confined to whether
the Trooper was in danger at the moment of the threat that resulted
in the Trooper’s shooting Bazan.
‘[R]egardless of what had
transpired up until the shooting itself, [the suspect’s] movements
gave the officer reason to believe at that moment, that there was
a
threat
of
physical
harm
[citations
omitted
[emphasis
in
original].’”), citing Young v. City of Killeen, 775 F.2d 1349, 1353
-23-
(5th
Cir.
1985)(finding
no
liability
where
“only
fault
found
against [the officer] was his negligence in creating a situation
where the danger of such a mistake would exist“).7 Furthermore the
law “does not require the court to determine whether an officer was
in actual, imminent danger of serious injury, but rather, whether
‘the officer reasonably believe[d] that the suspect pose[d] a
threat of serious harm to the officer or to others.”
Id. at *4,
quoting Rockwell v. Brown, 664 F.3d 985, 991 (5th Cir. 2011), cert.
denied,
132
S.
Ct.
2433
(2011).
Furthermore,
“‘[t]he
reasonableness of a particular use of force must be judged from the
perspective of a reasonable officer on the scene, rather than with
the 20/20 vision of hindsight.’”
Id., quoting Graham v. Connor,
490 U.S. 386, 396 (1989).
The objective reasonableness of the force used requires
the court to balance the amount of force used against the need for
that force.
Id. at 399.
“It is objectively unreasonable to use
deadly force ‘unless it is necessary to prevent a suspect’s escape
and the officer has probable cause to believe that the suspect
poses a significant threat of death or serious physical injury to
the officer or others.”
Flores v. City of Palacios, 381 F.3d 391,
399 (5th Cir. 2004), quoting Tennessee v. Garner, 471 U.S. 1, 3
7
In
Young,
the
Fifth
Circuit
opined,
“The
constitutional right to be free from unreasonable seizure has
never been equated by the Court with the right to be free from a
negligently executed stop or arrest. There is no question about
the fundamental interest in a person’s own life, but it does not
follow that a negligent taking of life is a constitutional
deprivation. The government has the right to employ deadly force
under some circumstances, and there are interests to be balanced
in deciding the reach of constitutional demand.”
775 F.2d at
1353.
-24-
(1985). See also Ontiveros v. City of Rosenberg, 564 F.3d 379, 382
(5th Cir. 2009)(“An officer’s use of deadly force is presumptively
reasonable when the officer has reason to believe that the suspect
poses a threat of serious harm to the officer or to others.”). The
reasonableness of the force must be judged from the view of a
reasonable officer on the scene.
Graham v. Connor, 490 U.S. 386,
396 (1989).
Moreover, the resulting injury must “be more than a de
minimis injury and must be evaluated in the context in which the
force was deployed.”
(5th Cir. 2001).
Glenn v. City of Tyler, 242 F.3d 307, 314
See, e.g., Tarver v. City of Edna, 410 F.3d 745,
751-52 (5th Cir. 2005)(finding plaintiff failed to show requisite
injury because he did “not allege any degree of physical harm
greater than de minimis from the handcuffing”); Glenn v. City of
Tyler,
22
“handcuffing
F.3d
too
excessive force”).
307,
315
tightly,
(5th
Cir.
without
2001)(concluding
more,
does
not
that
amount
to
Only substantial psychological injuries are
sufficient to meet the injury element of a claim for excessive
force under the Fourth Amendment.
4.
Flores, 381 F.3d at 397-98.
Unreasonable Search and Seizure Under § 1983
The Fourth Amendment protects “the security a
man relies upon when he places himself or his
property within a constitutionally protected
area, be it his home or his office, his hotel
room or his automobile. There he is protected
from unwarranted governmental intrusion. And
when he puts something in his filing cabinet,
in his desk drawer, or in his pocket, he has
a right to know it will be secure from an
unreasonable
search
of
an
unreasonable
seizure.
Hoffa v. U.S., 385 U.S. 293, 301 (1966).
-25-
The Fourth Amendment protects “[t]he right of the people
to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures.”
U.S. Const. amend. IV.
Unless there is consent or exigent circumstances,8 “entry
into a
home to conduct a search or make an arrest is unreasonable under
the Fourth Amendment unless done pursuant to a warrant.”
Steagald
v. U.S., 451 U.S. 204, 211-12 (1981), citing Payton v. New York,
445 U,.S. 573 (1980), and Johnson v. U.S., 333 U.S. 10, 13-15
(1948).
See also Osborne v. Harris County, Texas,
F. Supp. 3d
, Civ. A. No. H-13-435,2015 WL 1509235, at * (S.D. Tex. Mar. 31,
2015)(“‘[S]earches and seizures inside a home without a warrant are
presumptively unreasonable.’”), citing Brigham City v. Stuart, 547
U.S. 398, 403 (2006).
It is also well established that a warrantless arrest
under the Fourth Amendment must be based on probable cause, i.e.,
when the totality of facts and circumstances within a police
officer’s knowledge at the moment of the arrest are sufficient for
a reasonable person to conclude that the suspect had committed or
was committing an offense.
Hogan v. Cunningham, 722 F.3d 725, 731
(5th Cir. 2013); U.S. v. Wadley, 59 F.3d 510, 512 (5th Cir. 1995).
For probable cause there must be more than a bare suspicion of
8
“Exigent circumstances” excuse a police officer from
having to obtain a warrant because “the exigencies of the
situation make the needs of law enforcement so compelling that the
warrantless search is objectively reasonable under the Fourth
Amendment.”
v. Stuart, 547 U.S. 398, 403 (2006). Exigent
circumstances allow law enforcement officers to “enter a home
without a warrant to render emergency assistance to an injured
occupant or to protect an occupant from imminent injury.”
Id.
The court examines the circumstances objectively, not from the
officers’ subjective viewpoint. Id. at 404.
-26-
wrongdoing, but substantially less that what is needed to support
a conviction.
Wadley, 59 F.3d at 512.
The purpose of requiring
a warrant is to permit a neutral judicial officer to determine
whether police have probable cause to make an arrest or conduct a
search.
Id. at 212.
The
interests
protected
by
an
different from those of a search warrant.
arrest
warrant
Id. at 213.
are
An arrest
warrant is issued by a magistrate judge if the petitioner shows
that probable cause exists to believe that the subject of the
warrant has committed an offense, and it mainly exists to protect
an individual from an unreasonable seizure.
Id.
On the other
hand, a search warrant “is issued upon a showing of probable cause
to believe that the legitimate object of a search is located in a
particular place, and therefore safeguards an individual’s interest
in the privacy of his home and possessions against the unjustified
intrusion of the police.”
Id.
“‘An action is ‘reasonable’ under
the Fourth Amendment, regardless of the individual officer’s state
of mind, ‘as long as the circumstances, viewed objectively, justify
[the] action.’”
Osborne, 2015 WL 1509236, at *7, citing U.S. v.
Jones, 239 F.3d 716, 720 (5th Cir. 2001).
arrest
claims
‘implicate
the
Fourth
against unreasonable seizures.’”
“Unlawful detention and
Amendment’s
proscription
Id. at *13, citing Peterson v.
City of Fort Worth, Texas, 588 F.3d 838, 845 (5th Cir. 2009).
Generally there are three kinds of encounters between
police and an individual:
(1)
the
agrees
individual
willingly
“A consensual encounter, in which
to
speak
to
police,
may
be
initiated by police without any objective level of suspicion,” and
-27-
without more, does not constitute a Fourth Amendment seizure; (2)
“A
limited
investigative
stop
is
permissible
if
there
is
a
‘reasonable suspicion’ that a person has committed or is about to
commit a crime”; and (3) “An arrest must be based on probable
cause.”
Osborne, 2015 WL 1509236, at *13.
5. Qualified Immunity for Officers in their Individual Capacity
Under § 1983
Qualified immunity, an affirmative defense, protects
government
officials
in
their
personal
capacity
performing
discretionary functions not only from suit, but from “liability for
civil damages insofar as their conduct does not violate clearly
established
statutory
or
constitutional
reasonable person would have known.”
rights
of
which
Harlow v. Fitzgerald, 457
U.S. 800, 818 (1982); Pearson v. Callahan, 555 U.S. 223,
S. Ct. 808, 815 (2009).
a
, 129
Thus the Court examines whether the
“officer’s conduct violated a constitutional right,” and “whether
the right was clearly established” at the time of the conduct.
Saucier v. Katz, 533 U.S. 194, 201 (2001).
addressed first.
Pearson, 129 S. Ct. at 808.
Either prong may be
A right is clearly
established when “the contours of the right [are] sufficiently
clear [such] that a reasonable official would understand that what
he is doing violated that right.” Werneck v. Garcia, 591 F.2d 386,
392 (5th Cir. 2009)(citations omitted).
See also Freeman v. Gore,
483 F.3d 404, 411 (5th Cir. 2007)(the court applies an objective
standard “based on the viewpoint of a reasonable official in light
of the information available to the defendant and the law that was
clearly established at the time of defendant’s actions.”).
-28-
To be
clearly
established,
“‘[t]he
contours
of
the
right
must
be
sufficiently clear that a reasonable official would understand what
he is doing violates that right.’” Kinney v. Weaver, 367 F.3d 337,
349-50 (5th Cir. 2004), quoting Anderson v. Creighton, 483 U.S.
635, 640 (1987)). “The ‘clearly established’ standard does not mean
that official’s conduct is protected by qualified immunity unless
‘the very action in question has previously been held unlawful.’”
Id.
at
350,
quoting
Anderson,
483
U.S.
at
640.
“Where
no
controlling authority specifically prohibits a defendant’s conduct,
and when the federal circuit courts are split on the issue, the law
cannot be said to be clearly established.”
Morgan v. Swanson, 659
F.3d 359, 372 (5th Cir. 2011), cert. denied, 132 S. Ct. 2740
(2012).
to
Officials who act reasonably but mistakenly are entitled
qualified
immunity;
the
defense
protects
all
government
employees but “the plainly incompetent or those who knowingly
violate the law.” Anderson, 483 U.S. at 641; Malley v. Briggs, 475
U.S. 335, 341 (1986).
“[A] defendant’s acts are held to be
objectively reasonable unless all reasonable officials in the
defendant’s
circumstances
would
have
then
known
that
the
defendant’s conduct violated the United States Constitution or the
federal statute as alleged by the plaintiff.”
Thompson v. Upshur
County, Texas, 245 F.3d 447, 457 (5th Cir. 2001).
“entitled
to
qualified
immunity
if
his
or
The officer is
her
conduct
was
objectively reasonable in light of the legal rules that were
clearly established at the time of his or her actions,” even if the
conduct violated the plaintiff’s constitutional right.
McClendon
v. City of Columbia, 305 F.3d 314, 323 (5th Cir. 2002)(en banc).
-29-
Although qualified immunity is an affirmative defense,
“plaintiff has the burden to negate the assertion of qualified
immunity once properly raised.”
214, 217 (5th Cir. 2009).
Collier v. Montgomery, 569 F.3d
To meet this burden the plaintiff must
allege facts showing that the defendants committed a constitutional
violation under the current law and that the defendants’ actions
were objectively unreasonable in light of the law that was clearly
established at the time of the actions complained of.
Atteberry
v. Nocona General Hosp., 430 F.3d 245, 253 (5th Cir. 2005).
In
negating the defense, the plaintiff cannot rely on conclusory
allegations and assertions, but must raise genuine issues of
material fact as to the reasonableness of the defendant’s conduct.
Michalik v. Hermann, 422 F.3d 252, 262 (5th Cir. 2005).
The
reasonableness of an officer’s use of force “must be judged from
the perspective of a reasonable officer on the scene, rather than
with the 20/20 vision of hindsight.”
Graham v. Connor, 490 U.S.
386, 396 (1989).
In Elliott v. Perez, 751 F.2d 1472, 1473 (5th Cir. 1985),
the Fifth Circuit held that when defendant-official raises a
qualified immunity defense in his individual capacity, a heightened
pleading standard must be met by Plaintiff to show with factual
detail and particularity why the defendant official cannot maintain
the qualified immunity defense.9
9
In Schultea v. Wood, 47 F.3d
The Fifth Circuit subsequently decided not to apply
Leatherman v. Tarrant County Narcotics Intelligence & Coordination
Unit, 507 U.S. 163 (1993)(striking down the heightened pleading
requirements in § 1983 actions against municipalities) to claims
against individual government officials in their individual
capacities, regarding which “we are still bound by Elliott and its
-30-
1427, 1429-34 (5th Cir. 1995)(en banc), discussing development of
qualified immunity defense and pleading rules, the Fifth Circuit
further opined, “When a public official pleads the affirmative
defense of qualified immunity in his answer, the district court
may, on the official’s motion or its own, require the plaintiff to
reply to that defense in detail.
By definition, the reply must be
tailored to the assertion of qualified immunity and fairly engage
its allegations. A defendant has an incentive to plead his defense
with some particularity because it has the practical effect of
requiring particularity in the reply.”
See also Floyd v. City of
Kenner, La., 351 Fed. App’x 890, 893 & n.2 (5th Cir. 2009).
In Morgan v. Hubert, 335 Fed. Appx. 466, 472-73 (5th Cir.
2009), the Fifth Circuit reviewed Schultea’s standard (requiring
plaintiff to support a “claim with sufficient precision and factual
specificity to raise a genuine issue as to the illegality of
defendant’s contact at the time of the alleged acts”).
The panel
pointed to the reasoning in Schultea in requiring a heightened
pleading standard in the face of a defendant’s assertion of
qualified immunity:
We did not ground any such requirement in Rule
9(b), but nevertheless required a plaintiff to
plead more than conclusions. Specifically, we
reasoned that “a plaintiff cannot be allowed
to rest on general characterizations, but must
speak to the factual particulars of the
alleged actions, at least when those facts are
known to the plaintiff and are not peculiarly
within the knowledge of defendants [emphasis
added by Morgan panel].” “Heightened pleading
requires
allegations
of
fact
focusing
specifically on the conduct of the individual
progeny.”
Babb v. Dorman, 33 F.3d 472, 477 (5th Cir. 1994).
-31-
who caused the plaintiffs’ injury.” Reyes v.
Sazan, 168 F.3d 158, 161 (5th Cir. 1999).
Morgan, 335 Fed. Appx. at 469-70, citing Schultea, 47 F.3d at 143234.
6.
False Arrest Under Federal Law
The Fourth Amendment right to be free from false arrest--
arrest without probable cause– was clearly established when Melisa
Carter and Chris Smith were arrested.
103, 111-12 (1975).
Gerstein v. Pugh, 420 U.S.
The only issue regarding warrantless false
arrest and pretrial confinement is whether there is probable cause
for detaining the arrested person pending further proceedings.
O’Dwyer v. Nelson, 310 Fed. Appx. 741, 745 (5th Cir. 2009);
Haggerty v. Tex. S. Univ., 391 F.3d 653, 656 (5th Cir. 2004)(for
false arrest or false imprisonment a plaintiff must show that the
defendant did not have probable cause to arrest him.).
Probable
cause has been defined by the Supreme Court as the “facts and
circumstances within the officer’s knowledge that are sufficient
to warrant a prudent person or one of reasonable caution, in
believing
in
the
circumstances
shown,
that
the
suspect
has
committed, is committing, or is about to commit an offense.”
Michigan v. DeFillippo, 443 U.S. 31, 37 (1979), quoted by Piazza
v. Mayne, 217 F.3d 239, 245-46 (5th Cir. 2000).
To overcome a qualified immunity defense, the plaintiff
must show that the officers could not reasonably believe that they
had probable cause to arrest the plaintiff for any crime.
Cole v. Carson,
F.3d
Id.;
, Nos. 14-10228, 15-10045, 2015 WL
5672071, at *7 (5th Cir. Sept, 25, 2015)(“[T]he relevant actors
-32-
must be aware of facts constituting probable cause to arrest or
detain
the
person
for
any
crime.”).
“[E]ven
law
enforcement
officials who reasonably but mistakenly conclude that probable
cause is present are entitled to immunity.”
Hilton, 568 F.3d 181, 206 (5th Cir. 2009).
Club Retro, LLC v.
The use of fabricated
evidence to obtain a person’s arrest can violate the Fourth
Amendment.
7.
Cole, 2015 WL 5672071, at *7.
Assault and Battery Under Texas Common Law
The elements of battery under Texas common law are (1)
a harmful or offensive contact (2) with a plaintiff’s person; the
elements of assault are (1) apprehension of (2) an immediate
battery. Jackson v. Texas Southern Univ., 997 F. Supp. 2d 613, 632
(S.D. Tex. 2014), citing Doe v. Beaumont I.S.D., 8 Supp. 2d 596,
616 (E.D. Tex. 1998).
Although the two torts are “related buy
conceptually distinct,” the Texas Penal Code § 22.01(a)10 joins the
two common law tots under its definition of “assault.”
Watauga v. Gordon, 434 S.W. 3d 586, 589 (Tex. 2014).
a
number
of
10
civil
courts
mix
them
together
City of
As a result,
under
the
term
The statue provides that a person commits an assault
if he
(1) intentionally, knowingly, or recklessly
causes bodily injury to another, including
the person’s spouse;
(2) intentionally or knowingly threatens
another
with
imminent
bodily
injury,
including the person’s spouse; or
)3)
intentionally
or
knowingly
causes
physical contact with another when the person
knows or should reasonably believe that the
other will regard the contact as offensive or
knows or should reasonably believe that the
other will regard the contact as offensive or
provocative.
-33-
“assault.” Id.
See, e.g.,
Hamilton v. Pechacek, 319 S.W. 3d 801,
811 (Tex. App.--Fort Worth 2010)(citing Gibbins v. Berlin, 162 S.W.
3d 335, 340 (Tex. App.--Fort Worth 2005) “A person commits an
assault by intentionally, knowingly or recklessly causing bodily
injury to another.”). Relying on the Restatement (Second) of Torts
§ 18, the Texas Supreme Court noted “that it was the offensive
nature of the contact, not its extent, that made the contact
actionable;
‘Personal indignity is the essence of an action for
battery; and consequently the defendant is liable not only for
contacts which do actual physical harm, but also for those which
are offensive and insulting.’”
City of Watauga, 434 S.W. 3d at
590.
“The actions of a police officer in making an arrest
necessarily involve a battery, although the conduct may not be
actionable because of privilege.”
S.W. 3d at 594.
force.
City of Watauga v. Gordon, 434
A police officer is privileged to use reasonable
Id., citing Tex. Dep’t of Pub. Safety v. Petta, 44 S.W. 3d
575, 579 (Tex. 2001).
Under Texas common law, a police officer is
not liable for assault if he only uses force reasonably necessary
to effectuate the arrest.
Petta, 44 S.W. 3d at 579 (A police
officer may not use force greater than necessary to make an
arrest.).
The reasonably prudent officer standard is used to
determine if there has been an assault.
Spencer v. Rau, 542 F.
Supp. 2d 583, 593 (W.D. Tex. 2007), citing Telthorster v. Tennell,
92 S.W. 3d 457, 465 (Tex. 2002)(“To establish good faith, Officer
Telthorster must show that a reasonably prudent officer, under the
same or similar circumstances, could have believed that his conduct
-34-
was justified based on the information he possessed when the
conduct occurred.”).
8.
Official Immunity Under Texas Law
Official immunity is an affirmative defense that may be
raised by a government official who has been sued in his individual
capacity.
Texas A&M Univ. Sys. v. Koseoglu, 233 S.W. 3d 835, 843
(Tex. 2007).
It is known by various terms, including “official
immunity,” “qualified immunity,” “quasi-judicial immunity,” and
“discretionary immunity.” Methodist Hospitals of Dallas v. Miller,
405 S.W. 3d 101, 104 n.5 (Tex. App.--Dallas 2012).
The
official
immunity
defense
under
Texas
law
is
“substantially the same” as that of federal qualified immunity.
Crostley v. Lamar County, Texas, 717 F.3d 410, 424 (5th Cir. 2013).
Under the affirmative defense of official immunity, a government
employee may be immune from a suit that arises from (1) his
performance of discretionary duties (2) in good faith, (3) if he
was acting in the course and scope of his authority.
City of
Brazoria, Texas v. Ellis, No. 14-14-00322-CV, 2015 WL 3424732, at
*4 (Tex. App.--Houston [14th Dist.] May 28, 2015), citing City of
Pasadena v. Belle, 297 S.W. 3d 525, 530 (Tex. App.--Houston [14th
Dist.] 2009), and Green v. Alford, 274 S.W. 3d 5, 16 n.11 (Tex.
App.--Houston [14th Dist. 2008, pet. denied).
An action involving
personal deliberation, decision, and judgment is discretionary,
while actions that require obedience to orders or the performance
of a duty regarding which the actor has no choice are ministerial.
City of Lancaster v. Chambers, 883 S.W. 2d 650, 654 (1994).
Texas
courts have held that police officers are exercising discretion
-35-
when performing their duties.
729
S.W.
2d
114,
n.r.e.)(holding
117
officer
Id., citing Dent v. City of Dallas,
(Tex.
was
App.--Dallas
performing
1986,
writ
discretionary
ref’d
act
in
deciding when and how to arrest suspect), cert. denied, 485 U.S.
977 (1988).
Under the official immunity defense, sometimes called
the doctrine of qualified “good faith” immunity, good faith is “a
standard of objective legal reasonableness that disregards the
police officer’s subjective state of mind.” Id., citing Belle, 297
S.W. 3d at 530.
An officer acts in good faith if a reasonably
prudent officer, under the same or similar circumstances, could
have believed that his conduct was lawful in light of clearly
established law and the information possessed by the official at
the time the conduct occurred.
Id. at 656.
“To controvert the
officer’s summary judgment proof on good faith, the plaintiff must
do more than show that a reasonably prudent officer could have
decided to stop the [action]; the plaintiff must show that ‘no
reasonable person in the defendant’s position could have thought
the facts were such that they justified defendant’s actions.”
Id.
at 657, citing inter alia Walton v. City of Southfield, 995 F.2d
1331, 1336 (6th Cir. 1993)(“However, if genuine issues of material
fact exist as to whether the defendants did commit acts that would
violate a clearly established right, then summary judgment on
qualified
immunity
is
improper.”).
Qualified
or
good
faith
immunity is not available if the officer asserting that affirmative
defense “took the action with malicious intention to cause a
deprivation of constitutional rights or other injury.”
Strickland, 420 U.S. 308, 322 (1975).
-36-
Wood v.
The burden of proof is first on the officers to show they
are entitled to official immunity from Plaintiffs’ claims.
citing id.
Id.,
Defendants bear the burden to prove conclusively that
“a reasonably prudent police officer, under the same or similar
circumstances, could have believed his actions were justified based
on the information that he possessed at the time.” Id., citing id.
Requiring
a
balancing
test,
good
faith
is
judged
on
how
a
reasonably prudent officer could have assessed the need, i.e., the
urgency of the circumstances requiring police intervention, to
which an officer responds and the officer’s course of action, based
on his perception of the facts at the time of the event.
Id.,
citing Wadewitz v. Montgomery, 915 S.W. 2d 464, 467 (Tex. 1997).
Then in order to rebut such a showing by Defendants, Plaintiffs
must then demonstrate that “no reasonable person in the officer’s
position could have thought the facts were such that they justified
the officer’s actions.”
Id., citing id.
The Texas Supreme Court
opined in Wadewitz at 467, that for rebuttal and to raise a genuine
issue of material fact for trial, a party must address the
following need/risk factors:
In the context of an emergency response, need
is determined by factors such as the
seriousness of the crime or accident to which
the officer responds, whether the officer’s
immediate presence is necessary to prevent
injury or loss of life or to apprehend a
suspect, and what alternative courses of
action, if any, are available to achieve a
comparable result. The ‘risk’ aspect of good
faith, on the other hand, refers to the
countervailing public safety concerns:
the
nature and severity of harm that the officer’s
actions could cause (including injuries to
bystanders as well as the possibility that an
accident would prevent the officer from
-37-
reaching the scene of the emergency), the
likelihood that any harm would occur, and
whether any risk of harm would be clear to a
reasonably prudent officer.
9.
Allegations of Plaintiffs’ First Amended Complaint (#31)
Plaintiffs allege that “Myers had a history and pattern
of abusing his office and power and was removed from the police
force for excessive force and abuse of a detainee.”
#31, ¶ 3.1.
As noted above, they allege that before the incidents involving
Plaintiffs here, as evidenced by the video camera in his police
car, Myers, while on patrol, stopped a man, pushed his face against
the lid of his truck in summer heat and held it there until the
detainee was severely burned.
During the investigation that
followed, his superiors reviewed the tapes, but did not suspend or
discipline Myers, and allowed him to continue patrolling, although
they did refer the matter to the district attorney for presentation
to a Grand Jury.
Id. at ¶¶ 3.2-3.3.
The Chief of Police and the
City Manager were aware of Myers’ misconduct and the Chief watched
the video of the assault.
The City’s failure to remove Myers from
patrolling the streets, to discipline or suspend or terminate him
or place him under constant supervision, constituted deliberate
indifference to the right of citizens.
ultimately
indicted
by
the
Grand
Id. at ¶ 4.4. Myers was
Jury
for
Felony
Official
Oppression based on this incident and pled guilty, agreeing never
to work again in law enforcement.
Id. at ¶ 3.23.
Defendant Officer Stacey Smith, in the midst of a bitter
divorce from Plaintiff Officer Chris Smith, was a close friend of
Myers and supported Myers despite his misconduct.
-38-
They, “with
malice
and
subjectively
in
furtherance
and
of
objectively
personal
knew
to
vendettas,
be
which
violations
of
they
the
Plaintiffs’ civil rights,” and other officers, discussed the matter
and plotted to “get Chris” and even warned Chris Smith that
“Stacey, Myers and her crew are gunning for you.”
and 3.5.
Id. at ¶¶ 4.2
Stacey Smith purportedly threatened Chris Smith that she
would use her position as a police officer against him.
Id. at ¶
3.5.
Plaintiff Melisa Carter (Carter”) and Defendant Stacey
Smith both live at the Connection Apartments in Huntsville, Texas.
The complaint asserts that Stacey Smith is easily offended and that
Carter inadvertently offended Stacey Smith before the incidents at
issue here.
Id. at ¶ 3.7.
On August 15, 2012, Stacey Smith saw
Carter, a registered nurse, returning from work, and asked Myers,
who was on patrol duty, to apprehend Carter on the pretext that
Stacey Smith had smelled marijuana around Carter’s apartment.
Carter was asleep when she was awakened by Myers’ pounding on her
door.
Myers accusingly asked why it took Carter so long to answer
her door and then falsely stated to her that the police had
received a complaint that a man ran out of Carter’s apartment and
that an odor of marijuana had emanated from it.
Id., ¶ 3.9.
Carter responded that she had been asleep and needed to get her
glasses and put on clothes before answering the door and insisted
that no man or marijuana had been in her apartment. Id. at ¶ 3.10.
Myers ordered Carter out of her apartment, where Stacey Smith was
“waiting and gloating.”
Id. at ¶ 3.10.
Carter then stepped back
into her apartment and told Myers that she wanted to be present
-39-
while he looked around because she was concerned about her dogs.
Myers became angry, shouted at Carter, and physically attacked her
without provocation.
Id. at ¶ 3.11.
Overpowering Carter and
causing her extreme pain, Myers forced Carter to bend over the
eating bar in her apartment, forcefully pulled her arms behind her
and immobilized them, and laid on top of her with his full body
weight. He then accused Carter of resisting arrest, handcuffed her
so tightly that he caused extreme pain to her wrists, yanked her
to her feet, led her out to her front porch, and shoved her to the
ground, while Stacey Smith watched, encouraged Myers’ actions, and
scoffed, “When a cop tells you what to do, you had better do it.”
Id. at ¶¶ 3.12-3.13.
Other officers and a drug dog appeared, but realized it
was not a legitimate arrest and left. The drug dog sat down at one
point outside the apartment and an officer proclaimed it was a
“hit,” but left without taking the dog into the apartment.
¶
314.
Carter,
crying,
handcuffed,
and
in
extreme
Id. at
pain,
accompanied one of the responding officer through her apartment,
and then he left. Id. at ¶ 3.15. Myers, without informing her why
she was arrested, transported Carter to the Walker County Jail,
where she remained that night and part of the next day and where
she was informed that she was charged by Myers and Stacey Smith
with Interference with Public Duties.11
11
Id.
Despite the attack on
See Tex. Penal Code Ann. § 38.15(a)(1)(“A person
commits an offense if the person with criminal negligence
interrupts, disrupts, impedes, or otherwise interferes with . . .
a peace officer while the peace officer is performing a duty or
exercising authority imposed or granted by law.” “It is a defense
to prosecution under this section that the interruption,
-40-
Carter, which was witnessed in part by unnamed senior officers, the
City retained Myers on street patrol. Id. at ¶ 3.16. Carter filed
a timely complaint against Myers and Stacey Smith with the City.
Id.
On or about August 20, 2012 at approximately 11:25 p.m.,
Chris Smith was driving southbound on State Highway 75 in the City
of Huntsville when he was hit by a tractor trailer rig making a
wide right-hand turn from the inside lane of the street.
Officers
arrived at the scene, investigated, and ticketed the driver of the
rig for lack of insurance and lack of trailer license plates, but
not for the accident.
Id. at ¶ 3.17.12
Meanwhile, on duty across town, Myers learned either from
Stacey Smith or from listening to the police radio that Chris Smith
was involved in a traffic accident.
In furtherance of his and
Stacey Smith’s plot to “bust” Chris Smith, Myers rushed to the
scene and skidded to a stop near the accident.
Id. at ¶ 3.18.
Although Chris Smith had already been questioned and released by
responding officers, Myers ordered Chris Smith to step on a line
to test for alcohol because Stacey Smith had told Myers that Chris
Smith always drinks and drives.
Id. ¶¶ 3.18-3.19.
Chris Smith,
aware of his estranged wife’s relationship with Myers, objected to
disruption, impediment, or interference alleged consisted of
speech only.” Id., § 38.15(d). See Haggerty, 391 F.3d at 656-58,
659-60 (dissent).
12
Chris Smith sued for and obtained compensation for
damages to his vehicle in a local Justice of the Peace Court. Id.
-41-
being harassed, but took the test and passed.
Id. at ¶ 3.19.13
Myers then ordered Chris Smith to place his hands on his vehicle
and submit to a physical search.
Id. at ¶ 3.20. Myers ordered
Chris Smith to turn around and hand Myers the pocket knife he had
in a sheath on his belt. Chris Smith did so, and Myers pointed his
firearm into Smith’s face.
Id. at ¶ 3.20.
Myers arrested Smith
and took him to jail, where Chris Smith spent the night, and Myers
charged Chris Smith with Driving Under the Influence.
Id. at ¶
3.21.
The next morning Stacey Smith and Myers celebrated at the
police station in front of the department staff and Chris Smith’s
children and exchanged “high fives,”
making such remarks as “I
told you I would bust the [expletive]“ and “you the man.”
Id. at
¶ 3.22.
10.
Defendants’ Motion to Dismiss (#32)
Defendants complain that Plaintiffs fail to separate or
identify their claims so as to give fair notice to each of the
three Defendants of which allegations were made against each, and
by which of the two separate Plaintiffs.
Defendants first argue that there is no allegation
supporting a cognizable claim against Officer Stacey Smith.
The
only allegations against Stacey Smith are that she encouraged
fellow officers to arrest Plaintiff Chris Smith on the grounds that
he regularly drove when drunk.
13
On the day after the arrest
Defendants state that after administering the field
sobriety tests to Chris Smith, Myers concluded that Plaintiff
Smith had been driving drunk on August 20, 2012. #32 at p. 12.
-42-
occurred,
she also allegedly celebrated Smith’s arrest at the
police station with other officers, clearly not a constitutional
violation.
Moreover, it was Myers, not Stacey Smith, who arrested
Chris Smith after Chris Smith was involved in a traffic accident.
The relevant question is whether Myers could have reasonably
believed, at the time of the arrest and based on relevant law and
the information provided to him, that his arrest of Chris Smith was
supported by probable cause.
Chris Smith admits he was involved
in a traffic accident and that he was suspected of drunk driving,
but he does not claim that he was not drunk and he does not show
in the complaint that probable cause for his arrest did not
exist.14
He has alleged that Myers had been told by a fellow
officer that Chris Smith routinely drove when drunk, information
that might support probable cause for his arrest.15
Defendants
14
The Court notes that to prevail on a § 1983 false
arrest claim, the plaintiff bears the burden to show that the
police officer did not have probable cause to arrest him.
Haggerty v. Texas Southern University, 391 F.3d 653, 655 (5th Cir.
2004). Probable cause is found “when the totality of facts and
circumstances within a police officer’s knowledge at the moment of
arrest are sufficient for a reasonable person to conclude that the
suspect had committed or was committing an offense.” Id. at 65556. The police officer is entitled to qualified immunity if a
reasonable officer in his position could have believed that in
light of the totality of the facts and circumstances of which the
police officer was aware, there was a fair probability that the
police officer had committed or was committing an offense. Id. at
656. “Fair probability” for purposes of probable cause requires
more that a bare suspicion, but less than a preponderance of
evidence. Id., citing U.S. v. Watson, 273 F.3d 599, 602 (5th Cir.
2001). Even if the police officer reasonably but mistakenly
determined that probable cause existed, he is entitled to
immunity. Id.
15
It is well established that an individual’s innocence
of a criminal charge is not relevant to a § 1983 claim of
deprivation of liberty without due process of law as the
Constitution does not guarantee that only the guilty will be
-43-
maintain that no allegations in Plaintiffs’ amended complaint
plausibly show that Stacey Smith could reasonably have known that
probable cause was lacking for Myers’ arrest of Chris Smith.
Thus
Chris Smith’s claims against Stacey Smith must be dismissed.
Defendants further contend that Chris Smith fails to
allege facts that overcome Stacey Smith’s qualified immunity
defense.
The allegations do not state with factual detail and
particularity, as required by the heightened pleading standard for
overcoming qualified immunity, that Stacey Smith had fair notice
that her alleged actions violated clearly established law or facts
that support a claim against each defendant officer.
Schultea, 47
F.3d at 1432-34; Meadours v. Ermel, 483 F.3d 417, 421-22 (5th Cir.
2007)(where defendants do not act in unison, the court must examine
each individual’s entitlement to qualified immunity separately).
Chris Smith is required, but failed, to allege facts showing that
no police officer could reasonably have believed that Stacey
Smith’s alleged conduct was within the bounds of appropriate
responses
under
these
particular
circumstances
and
that
she
violated Chris Smith’s constitutional rights, so her immunity
defense remains intact.
Nor, insist Defendants, does Plaintiff Carter allege
facts supporting a claim against Stacey Smith to show that Carter’s
arrest was not supported by probable cause.
Carter was charged
with criminally interfering with public duties.
Texas Penal Code
arrested; ‘[a] reasonable division of functions between law
enforcement officers, committing magistrates, and judicial
officers . . . is entirely consistent with ‘due process of law.’”.
Baker v. McCollan, 443 U.S. 137, 145 (1979).
-44-
§ 38.15(a)(1) provides, “A person commits an offense if the person
with criminal negligence interrupts, disrupts, impedes or otherwise
interferes with . . . a peace officer while the peace officer is
performing a duty or exercising authority imposed or granted by
law.”
Plaintiffs’ pleading does not show a lack of probable cause
to support the charge, i.e., it does not allege facts showing that
she did not interfere with public duties or did not illegally
possess marijuana. An officer has probable cause to make an arrest
“‘when the totality of the facts and circumstances within a police
officer’s knowledge at the moment of arrest are sufficient for a
reasonable person to conclude that the suspect had committed or was
committing an offense.’”
Haggerty v. Texas Southern Univ., 391
F.3d 653. 655-56 (5th Cir. 2004), quoting Glenn v. City of Tyler,
242 F.3d 307, 313 (5th Cir. 2001).
“[E]ven if a defendant’s
conduct actually violates a plaintiff’s constitutional right, the
defendant is entitled to qualified immunity if the conduct was
objectively reasonable.”
Pfannstiel v. City of Marion, 918 F.2d
1178, 1183 (5th Cir. 1999).
Defendants argue that Carter has no
federal claim for false arrest under § 1983 unless probable cause
was lacking; probable cause for an arrest or any offense is a
defense to an unlawful arrest under § 1983.
See Fields v. City of
South Houston, 922 F.2d 1183, 1189 (5th Cir. 1989)(“Section 1983 is
a federally created cause of action to redress civil rights
violations.
The states are free to impose greater restrictions on
arrests, but their citizens do not thereby acquire a greater
federal right.”); Pfannstiel v. City of Marion, 918 F.2d 1178, 1183
(5th Cir. 1990).
Carter failed to allege facts showing that
-45-
probable cause was lacking for her arrest, and thus her allegations
do
not
plausibly
show
that
Stacey
constitutionally protected rights.
Smith
violated
Carter’s
Id.
Carter also fails to allege facts that overcome Stacey
Smith’s qualified immunity defense, i.e., that no police officer
could reasonably have believed that Stacey Smith’s conduct toward
Carter was within the bounds of appropriate responses under the
particular circumstances of this case.
34;
Babb, 33 F.3d at 477.
Schultea, 47 F.3d at 1432-
Thus the Court should dismiss Carter’s
claims against Stacey Smith.
Defendants maintain that no allegation states a claim
against Myers.
Chris Smith does not allege facts showing that
probable cause was lacking for his arrest.
His allegations only
show that Myers was told by a fellow officer that Chris Smith often
drove while drunk, that Myers participated in the investigation of
Chris Smith’s traffic accident, that Myers administered field
sobriety tests, and that Myers concluded that Smith had been
driving drunk on August 20, 2012, all within the bounds of
appropriate responses under the particular circumstances of this
case.
Chris Smith also fails to allege facts supporting a claim
against Myers.
While describing Myers’ arrest and handcuffing of
Carter, Carter does not allege facts showing that probable cause
was lacking or that the force described was excessive to the need
and objectively unreasonable.
Ontiveros v. City of Rosenberg, 564
F.3d 379, 382 (5th Cir. 2009); Williams v. Bramer, 180 F.3d 699,
703 (5th Cir. 1999).
An officer is not responsible for unfortunate
-46-
results of his use of necessary force. Hill v. Carroll County, 587
F.3d 230, 237 (5th Cir. 2009).
Nor
does
Carter
allege
facts
that
overcome
Myers’
qualified immunity defense, i.e., that no police officer could
reasonably have believed Myers’ alleged conduct as to Carter was
within the bounds of appropriate responses under the circumstance
of this case.
Nor do Plaintiffs’ allegations support a claim against
the City of Huntsville. They have not shown through specific facts
the
existence
of
an
unconstitutional
City
policy
nor
its
relationship to, i.e., that it was the moving force behind, the
alleged constitutional violation.
Spiller v. City of Texas City,
130 F.3d 162, 167 (5th Cir. 1997).
They must show factually that
not only that the City had a constitutionally deficient policy, but
also that the City’s policymaker knew of the existence of the
inadequate policy and nevertheless deliberately chose not to remedy
the identified deficiency, and that the policy actually caused a
deprivation
of
the
plaintiff’s
rights.
Board
of
County
Commissioners of Bryan County, Oklahoma v. Brown, 520 U.S. 397,
403-05 (1997); Piotrowski, 237 F.3d at 580.
Defendants maintain that Plaintiffs’ allegations fail to
show any constitutional deprivation, so the City cannot be liable.
Thus it is irrelevant whether a city policy would have authorized
the conduct to which Plaintiffs object.
Nor do they show the
existence of any unconstitutional policy, but merely establish a
single previous case when a police officer sued excessive force,
was investigated, charged with a crime, and discharged from the
-47-
City’s police department, in other words, a facially constitutional
“policy”
that
does
not
tolerate
use
of
excessive
force.
Plaintiffs’ allegation that an officer violated the City’s policy
prohibiting use of excessive force cannot support a claim against
the City.
McConney v. City of Houston, 863 F.2d 1180, 1184 (5th
Cir. 1989)(“A municipality may be liable under section 1983 only
if a municipal policy caused the deprivation of a right protected
by the Constitution or federal laws.).
Plaintiffs’ complaint show that they rely on an isolated
incident of alleged unconstitutional conduct by a City employee,
not a City policy that could impose liability.
City of Oklahoma
v. Tuttle, 471 U.S. 808, 824 (1985); Webster v. City of Houston,
735
F.2d
838,
850-51
(5th
Cir.
1984)(en
banc)(“[A]n
isolated
decision not to discipline an officer after a single illegality
could not itself supply the causal link” “between some action or
inaction
by
the
city
and
the
asserted
constitutional
deprivation.”), citing Bennett v. City of Slidell, 728 F.2d 762(5th
Cir. 1984)(“Isolated violations are not the persistent often
repeated, constant violations that constitute custom and policy.”).
Furthermore, when “a plaintiff seeking to establish
municipal liability on the theory that a facially lawful municipal
action has led an employee to violate a plaintiff’s rights must
demonstrate that the municipal action was taken with ‘deliberative
indifference’ as to its known or obvious consequences,” as is the
case here. Board of County Commissioners of Bryan County, 520 U.S.
at 497.
“[P]roof of an inadequate policy, without more, is
insufficient to meet the threshold requirements of § 1983.”
-48-
Gonzalez v. Ysleta Indep. Sch. Dist., 996 F.2d 745, 757 (5th Cir.
1983).
“[M]unicipal liability must be predicated on a showing of
‘fault,’ not merely ‘responsibility.’”
In
addition
a
plaintiff
Id.
must
show
deliberate
indifference, i.e., that “a government actor disregarded a known
or
obvious
consequence
of
his
action.”
Board
Commissioners of Bryan County, 520 U.S. at 410.
of
County
Mere negligence
will not suffice to establish a constitutional violation.
Daniels
v, Williams, 474 U.S. 327, 328 (1986); Campbell v. City of San
Antonio, 43 F.3d 973, 977 (5th Cir. 1995)(“The Supreme Court has
held that the negligent act of a state official which results in
unintended harm to life, liberty or property, does not implicate
the Due Process Clause.”), citing Daniels v. Williams, 474 U.S. at
328-29.
Plaintiffs
must
show
not
only
an
unconstitutional
decision, but a decision by the City itself to violate the
Constitution.
Gonzalez, 996 F.2d at 759.
As the Fifth Circuit
opined in Snyder v. Trepagnier, 142 F.3d 791, 795 (5th Cir. 1998),
The
Supreme
Court
has
established
two
fundamental requirements for holding a city
liable under § 1983 for inadequate hiring and
training policies: culpability and causation.
First, the municipal policy must have been
adopted with “deliberate indifference” to its
known or obvious consequences.
Second the
municipality must be the “moving force” behind
the constitutional violation.
Defendants insist that Plaintiffs have not and cannot satisfy
either element of this test even though they have the burden to
meet both. Thus their claims against the City should be dismissed.
-49-
Plaintiffs note that they do not respond to Plaintiffs’
reassertion of claims under Texas law because this Court dismissed
them with prejudice based on legal authority.
11.
Plaintiffs’ Response (#35)
Reiterating their previous allegations, Plaintiffs charge
that Officers Myers and Stacey Smith “used their positions and
badges to commit what otherwise would have been several felonies
but for their badges.”
#35 at p. 2.
They claim immunity because
they “‘suspected’ marijuana in the first instance, and ‘suspected’
drunk driving in the second when [] however, the hapless victims
were wholly innocent or no marijuana or evidence of drinking
existed and all charges were dismissed.”
Id.
Ignoring their own
burden to state a claim and attempting to shift the focus onto
Defendants,
Plaintiffs assert that “given the history of much
worse court cases, it is not surprising that the officers are well
trained
in
providing
pretexts
for
illegal
including shooting innocents in the back.”
action
up
to
Id. at pp. 2-3.
and
They
assert that Defendants “ignore and do not refute their private
animus and bad motives in both attacks,” nor “properly pleaded
facts that neither victim had done anything wrong, let alone that
would rise to probable cause or the right to arrest.”
3.
Id. at p.
They object that not only is there a complete lack of probable
cause in the arrests, but “bad motives undeniably prove the
constitutional violations.” Id. They point out that in both cases
all criminal charges were subsequently dropped. Id. at p. 4. They
highlight the fact that no drugs or suspects were found in Carter’s
apartment and argue that Carter cooperated throughout, that Myers
-50-
had no legitimate reason for being there and thus Carter could not
have interfered with the police’s public duties.
Plaintiff
“in
a
perfunctory
mostly
They also accuse
boilerplate
motion”
of
requesting the Court “to dismiss this case with phony block quotes
that are actually Defendant’s disingenuous recasting of what was
actually pleaded,” i.e., “facts that are a clear violation of the
Constitutional
rights
of
the
reasonable officer is aware.
Plaintiffs
here
of
which
any
Officers may not use their badge to
assault, batter and kidnap citizens who have done no wrong simply
because the officer has a personal animus.”
Id. at p. 4.
Plaintiffs insist that Officers Stacey Smith and Myers are not
entitled to qualified immunity because they conspired to assault
and arrest Plaintiffs for personal reason or “just to bully them,”
and acted with mischief and venom, while Plaintiffs did not commit
any wrongdoing and were minding their own business.
Plaintiffs object to the Court’s earlier dismissal of the
state law tort claims under the Texas Torts Claims Act, which they
insist was not triggered and is not applicable because they did not
sue the city under Texas law, but only under federal law.
Furthermore, they contend that the officer Defendants are not
entitled to qualified immunity from the tort claims under Texas law
because they have failed to plead each of the three elements of
qualified immunity under Texas law: that they were performing
discretionary duties (2) within the scope of their authority, and
(3) they were acting in good faith.
461.
Telthorster, 92 S.W. 3d at
Instead, claim Plaintiffs, Myers and Stacey Smith acted “in
-51-
bad faith by using their positions and power to retaliate against
hapless citizens for personal reasons.”
11.
#35 at p. 15.
Defendants’ Reply (#37)
Defendants object that Plaintiffs’ brief is composed
entirely of argument and citation of legal decisions that do not
apply to their factual allegations in their complaints.
They
completely avoid the controlling objective standards that apply to
claims under the Fourth Amendment and qualified immunity, but
instead put forth speculative attacks and conclusory allegations
about
police
officers’
purported
motives.
Their
bad
faith
allegations are unsupported by factual allegations and fail to
state a claim because they do not satisfy the applicable objective
standards.
They fail to state the facts that support the elements
of a claim against the City.
Defendants
further
challenge
Plaintiffs’
current
contention that the Texas Tort Claims Act (“TTCA”) does not apply
and the Court erred in dismissing the state-law claims against the
individuals as a matter of law in its Opinion and Order of July 10,
2015 (#28 at pp. 28-3316).
16
They note that in Plaintiffs’ First
This Court opined,
Moreover, under the TTCA, which “covers
all tort theories that may be alleged against
a governmental entity whether or not it
waives that immunity,” “‘[i]f suit is filed .
. . against both a governmental unit and any
of its employees, the employees shall
immediately be dismissed on the filing of a
motion by the governmental unit.’” Tex. Civ.
Prac. & Rem. Code § 101.106(e); Gil Ramirez
Group, LLC v. Houston I.S.D.,
F.3d
,
2015 WL 2383797, at *11 (5th Cir. May 18,
2015), citing Mission Consol. I.S.D. v.
-52-
Garcia,
253
S.W.
3d
653,
658
(Tex.
2008)(interpreting § 101.106(e) to cover all
tort claims, including those for which
immunity was waived by the TTCA). See also
Bustos v. Martini Club, Inc., 599 F.3d 458,
463 (Tex. 2010)(any state common law tort
claim brought against a governmental unit and
its employees, including intentional torts,
will allow the employee defendants to be
dismissed if the governmental unit moves to
do so). Here the City, Stacey Smith, and
Myers assert that Plaintiffs’ claims against
Stacey Smith and Meyers in their individual
capacities are statutorily barred by §
101.106(e) because under § 101.106(a), “[t]he
filing of a suit under this chapter against a
governmental unit constitutes an irrevocable
election by the plaintiff and immediately and
forever bars any suit or recovery by the
plaintiff against any individual employee of
the governmental unit regarding the same
subject matter.” The same is true under Tex.
Civ. Prac. & Rem. Code § 101.106(f) if the
employees have been sued in their official
capacity Morales v. City of Sugar Land, No.
Civ. A. H-13-3575, 2015 WL 162203, at *7
(S.D. Tex. Apr. 9, 2015), citing Stinson v.
Fontenot, 435 S.W. 3d 793, 794 (Tex.
2014)(per curiam).
Therefore,
because
the
City
of
Huntsville has so requested, the Court
dismisses with prejudice all the tort claims
for damages under Texas law (false arrest,
assault and battery, malicious prosecution,
false
imprisonment,
negligence,
and
conspiracy) asserted against Stacey Smith and
Myers in their individual capacities pursuant
to § 101.106(e).
This Court further noted that
Section
provides,
If a suit is filed against an employee of a
governmental unit based on conduct within the
general scope of that employee’s employment
and if it could have been brought under this
chapter against the governmental unit, the
suit is considered to be one against the
employee in the employee’s official capacity
only.
On the employee’s motion, the suit
against the employee shall be dismissed
-53-
101.106(f)
Original Petition (#1-1, Ex. A, filed before removal of this case
to federal court and the key pleading for evaluating the election
of remedies under the TTCA), Plaintiffs alleged in
¶ 28 that they
“have complied with the notice of claim requirements by Texas law.”
The only notice of claim requirements under Texas law is that under
the TTCA, Tex. Civ. Prac. & Rem. Code § 101.101.
Furthermore, in ¶ 29 of the First Original Petition
Plaintiffs allege, “Plaintiff Carter brings claims for false
arrest, assault and battery, malicious prosecution and false
imprisonment
against
all
defendants.”
The
“all
defendants”
allegation invokes the provisions of Tex. Civ. Prac. & Rem. Code
§ 101.106(e)(suit filed against both a government unit and any of
its employees requires dismissal of City’s employees upon request
unless the plaintiff files amended pleadings
dismissing the employee and naming the
government unit as defendant on or before the
30th day after the date the motion is filed.
It also observed that
when an employee acts ultra vires, i.e.,
outside the scope of his authority, the suit
is against him in his individual capacity,
but section 101.106's election of remedies
provision still applies. Molina v. Alvarado,
S.W. 3d
, No. 14-0536, 2015 WL
2148055, at *2 (Tex. May 8, 2015). If a
plaintiff at the time he files suit does not
have sufficient information to determine
whether the governmental unit’s employee is
acting within the scope of his employment,
“the prudent choice” is to sue the employee
and “await a factual resolution of that
question”; if instead he sues both “before
being required to do so by the election-ofremedies provision . . . [t]hat choice is
still an irrevocable election under section
101.106.” Id. at *3.
-54-
of the City, which was made here, the election of remedies clause
on which this Court relied).
Therefore Carter’s initial election
to sue the City and its employees operated as a matter of law to
bar Carter’s claim against any individual defendant.
Bustos v.
Martini Club, Inc., 599 F.3d 458, 463 (5th Cir. 2010); Mission
Consolidated Indep. Sch. Dist. v. Garcia, 253 S.W. 3d 653, 658-59
(2008).
Defendants emphasize that ¶ 29 of the Original Petition
also
asserts,
“Plaintiff
Smith
brings
claims
of
assault
and
battery, false imprisonment and malicious prosecution against
Defendant Myers and Smith via her conspiracy with Myers.”
The
allegations by Chris Smith invoked Tex. Civ. Prac. & Rem. Code §
101.106(f).17
2014).
Alexander v. Walker, 435 S.W. 3d 789, 790-92 (Tex.
Thus under Tex. Civ. Prac. & Rem. Code § 101.106(e)(“If a
suit is filed under this chapter against both a governmental unit
and any of its employees, the employees shall immediately be
dismissed on the filing of a motion by the governmental unit.”),
Plaintiffs’
allegations
must
be
seen
as
claims
against
the
Defendants in their individual capacities, which are equivalent to
claims directly against the City under the Texas Tort Claims Act.
Moreover, because the Court has dismissed the tort claims against
the individual police Officers under the statutory immunity of §
101.106, the qualified immunity defense issue is moot.
state,
“This
17
Court
has
already
undertaken
that
Defendants
analysis
See footnote 16 for the text of § 101.106(f).
-55-
and
correctly found that no such claim is cognizable under Texas law.”
#37 at p. 5.
12.
Court’s Decision
The
Court
has
not
changed
its
mind
about
applicability of the Texas Tort Claims Act here.
“strongly favors dismissal of governmental employees.”
McCraw,
945
F.
Supp.
2d
761,
766
(W.D.
Tex.
the
The TTCA
Tipps v.
2013),
citing
Waxahachie Indep. Sch. Dist. v. Johnson, 181 S.W. 3d 781, 785 (Tex.
App.–-Waco 2005).
In addition to this Court’s previous ruling
(#28) and Defendants’ arguments, summarized above, the Court would
highlight the fact that while § 101.106 provides an irrevocable
“election of remedies” to the plaintiff at the time he files suit,
i.e., to chose between suing the governmental unit under the TTCA
or suing the employee(s) alone, § 101.106(f) does not contain such
an election.
provides
for
Tipps, 945 F. Supp. 2d at 766.
dismissal
of
an
individual
Section 101.106(f)
defendant
if
the
plaintiff’s suit is based on conduct within the scope of his
employment with the governmental unit, here the City of Huntsville,
and if it could have been brought under this chapter against the
governmental unit; in such a situation the suit is viewed as
against the employee in the employee’s official capacity only.
Tex. Civ. Prac. & Rem. Code § 101.001(5) defines “scope of
employment” as “the performance for a governmental unit of the
duties of an employee’s office or employment and includes being in
and about the performance of a task lawfully assigned to an
employee by competent authority.” Tipps, 945 F. Supp. 2d at 766.
“‘An official acts within the scope of her authority if she is
-56-
discharging duties generally assigned to her.’”
Id., citing City
of Lancaster v. Chambers, 883 S.W. 2d 650, 658 (Tex. 1994)(finding
that on-duty police officers, pursuing a suspect in their squad
car, did not act outside the scope of their authority even though
they drove without regard for the safety of others).
This
principle holds true even if the law enforcement officer acts
partly to serve his or her own interests and allegedly commits
tortious acts. Id., citing Hopkins v. Strickland, No. 01-12-00315CV, 2013 WL 1183302, at *3 (Tex. App.--San
Antonio May 20,
2015)(“[A]n act may still be within the scope of the employee’s
duties even if the specific act that forms the basis of the civil
suit was wrongly or negligently performed, so long as the action
was
one
related
to
the
performance
of
his
job.”).
As
law
enforcement officers, Stacey Smith and Myers were acting within the
general scope of their duties in investigating Carter’s apartment
for marijuana and Chris Smith’s accident to determine if he was
driving under the influence. Even if the law enforcement officer’s
acts were conducted with improper motives, their actions remain
within the general scope of duties of law enforcement officers.
Tipps, 945 F. Supp. 2d at 767, citing Chambers.
Plaintiffs here
assert that Stacey Smith and Myers acted in bad faith and thus are
not
entitled
to
official
immunity
from
suit,
which
is
only
available if the officer is performing discretionary duties in good
faith within the scope of his authority.
Plaintiffs are confusing
official
immunity
immunity
with
the
statutory
provided
by
§
101.106(f), which does not include a good faith requirement.
Tipps, 945 F. Supp. 2d at 767. While official immunity is a common
-57-
law
defense
liability,
that
§
shields
101.106(f)
public
officials
establishes
from
statutory
individual
immunity
for
government employees who are acting within the general scope of
their employment and the suit could have been brought against the
governmental entity.
Id.
The Texas Supreme Court, in Franka v.
Velasquez, 332 S.W. 3d 367, 381 (Tex. 2011), clearly stated that
§ 101.106 “‘foreclose[s] suit against a government employee in his
individual
capacity
employment.’”
if
Id.,
he
citing
was
acting
Franka.18
within
The
the
Texas
scope
high
of
court
explained that the Texas legislature intended “to discourage or
prevent recovery against an employee,” even if the TTCA does not
waive immunity from suit for the governmental unit, such as with
intentional torts.
Id., citing id. at 375-78.
Accordingly the
Court dismisses the state law claims against Stacey Smith and Myers
in their individual capacities with prejudice as a matter of law.
Moreover, the Court notes that in addition to the § 1983
claims for excessive force and unreasonable search and seizure, and
the state-law tort claims for assault and battery, false arrest,
and conspiracy against the police officers in their individual
capacities, all expressly asserted in the First Amended Complaint,
in their Response Plaintiffs improperly “tack on” state law claims
for burglary, kidnaping, and breaking and entering.19
#35 at pp.
4, 15. These last three claims are not properly before the Court.
18
In accord, Texas Adjutant General’s Office v. Ngakoue,
408 S.W. 3d 350, 356-58 (2013).
19
The First Amended Complaint at ¶ 3.10 states that
Carter told Myers that he “was welcome to look” in her house.
Thus he entered by consent.
-58-
Even if they were, they, along with the conspiracy claims, would
be dismissed with prejudice for the same reasons as the properly
pleaded
state-law
tort
claims
against
the
individual
police
officers in their individual capacities.
Turning
to
the
federal
claims
against
the
three
Defendants, this Court observes that the pleading requirements
under § 1983 for imposing liability on municipalities and police
officers
acting
under
color
of
state
law
and
violating
the
constitutional rights of citizens have long been established, as
have the policy reasons for them.20
20
Plaintiffs are represented by
“Qualified immunity balances two important interests-the need to hold public officials accountable when they exercise
power irresponsibly and the need to shield officials from
harassment, distraction and liability when they perform their
duties reasonably.”
Pearson v. Callahan, 555 U.S. 223, 231
(2009). Moreover, “a municipality may not be held liable under §
1983 solely because it employs a tortfeasor”; “in enacting § 1983,
Congress did not intend to impose liability on a municipality
unless deliberate action attributable to the municipality itself
is the ‘moving force’ behind the plaintiff’s deprivation of
federal rights.” Board of County Commissioners of Bryan County,
520 U.S. at 1386, 1388, citing Monell, 436 U.S. at 694, 689.
Furthermore, “‘while Congress never questioned its power to impose
civil liability on municipalities for their own illegal acts,
Congress did doubt its constitutional power to impose such
liability in order to oblige municipalities to control the conduct
of others. We have consistently refused to hold municipalities
liable under a theory of respondeat superior.’”
Id. at 403,
citing Pembaur v. Cincinnati , 475 U.S. 469, 479 (1986), and
Monell, 436 U.S. 665-683. Requiring a “‘policy’ ensures that a
municipality is held liable only for those deprivations resulting
from the decisions of it duly constituted legislative body or of
those officials whose acts may fairly be said to be those of the
municipality. Similarly, an act performed pursuant to a ‘custom’
that has not been formally approved by an appropriate
decisionmaker may fairly subject a municipality to liability on
the theory that the relevant practice is so widespread as to have
th force of law” Id. at 403-04, citing Monell, 436 U.S. at 694,
690-91. A plaintiff is also required to “demonstrate that,
through its deliberate conduct, the municipal action was taken
with the requisite degree of culpability and must demonstrate a
direct causal link between the municipal action and the
-59-
counsel.
There is no reason why Plaintiffs should be permitted to
detract from their failure to meet their own pleading burden by
means of conclusory, disparaging accusations regarding the police
officers’ “bad motives.”
In this Court’s previous Opinion and
Order (#28) and in this one, the Court has laid out the blackletter law for pleading civil rights violations under § 1983 and
the Fourth Amendment and under Rule 12(b)(6) against municipalities
and their police officers. It has made clear that the standard for
determining whether Defendants violated the Fourth Amendment by
allegations of excessive force, unreasonable searches and seizures,
and false arrest, as well as whether the officers are protected in
their individual capacities by qualified immunity, is not the
police-officer Defendants’ subjective motivation (their alleged
“bad
motives,”
objective
“personal
reasonableness
animus,”
of
their
and
“vendettas”),
actions
and
the
but
the
clearly
established statutory or constitutional law of which a reasonable
person would have known.
The Court looks not simply at conclusory
allegations, but also at the specific facts alleged to support them
and whether those facts establish a plausible claim to relief.
First, because Plaintiffs do not identify a policy maker
or an officially authorized policy, to impose liability on the City
of Huntsville they must allege a widespread practice that is so
common and well settled as to constitute a custom that fairly
represents municipal policy.
Monell, 436 U.S. at 694.
The
purported custom or practice must be shown to have “sufficiently
deprivation of federal rights.”
Id. at 404.
-60-
numerous prior incidents,” as opposed to “isolated instances” of
the use of excessive force and unlawful arrest by law enforcement
officials.
Peterson, 588 F.3d at 851.
As is the case here, where
“actions of city employees are used to prove a custom for which the
municipality is liable, those actions must have occurred for so
long or so frequently that the police officers’ course of conduct
warrants attribution to the governing body of knowledge that the
objectionable conduct is the expected and accepted practice of city
employees.”
Webster, 735 F.2d at 842.
Moreover, “[a] pattern
requires similarity and specificity”; “[p]rior indications cannot
simply be for any and all ‘bad’ or unwise acts, but rather must
point to the specific violation in question.”
at 851.
Peterson, 588 F.3d
The Court finds that Plaintiffs have failed to plead such
a custom or practice. At most the complaint asserts three isolated
incidents, each of which is different from the others.
The first,
not a basis of this suit nor related to the alleged conspiracy to
get Chris Smith, in which Myers stopped an individual and burned
his face by forcing it down on a hot truck, resulted in the matter
being referred by the City to the district attorney, who then
presented it to a grand jury, and ultimately Myers pled guilty and
agreed never again to work in law enforcement. Although Plaintiffs
complain
that
the
City
did
not
take
Myers
off
patrol
duty
immediately after the incident, the City’s referral of the matter
to the district attorney undermines any allegation that the City
was
deliberately
indifferent
to
his
misconduct.
The remaining two incidents, one involving Christopher
Smith and the other, Carter, are too few to constitute a custom or
-61-
practice.
Thus the Court finds that Plaintiffs fail to state a
claim against the City and against Officers Stacey Smith and Myers
in their official capacities under § 1983 and the Fourth Amendment.
The remaining § 1983 claims are against the two police
officers in their individual capacities for unlawful arrest and
detention without probable cause and the use of excessive force,
in
violation
Constitution.
qualified
of
the
Both
immunity
Fourth
Stacey
defense,
Amendment
Smith
so
and
the
of
the
Myers
key
United
have
question
States
asserted
is
could
a
a
reasonable officer in the same circumstances have believed that the
force applied and/or the arrests made were lawful in light of
clearly established law and the information the officers possessed?
In deciding whether a defendant is entitled to qualified
immunity in a § 1983 action, the Court must ask whether the law so
clearly prohibited his conduct that a reasonable official in the
same situation would understand that his action violated the law.
Lytle v. Bexar County, 560 F.3d 404, 410 (5th Cir. 2009).
“An
action is ‘reasonable’ under the Fourth Amendment regardless of the
individual officer’s state of mind, ‘as long as the circumstances,
viewed objectively, justify [the] action.” Id. Nevertheless, even
limited detentions require a “reasonable, articulable suspicion
that a person has committed or is about to commit a crime.” United
States v. Chavez, 281 F.3d 479, 485 (5th Cir. 2002).
continued
detention
without
a
reasonable
Furthermore,
suspicion
that
the
individual has committed or is about to commit a crime violates the
Fourth Amendment right to be free from unreasonable seizure.
-62-
I.N.S. v. Delgado, 466 U.S. 210, 216 (1984), citing Brown v. Texas,
443 U.S. 47, 49 (1979).
Myers is shielded from any claims of wrongful search of
Carter’s apartment because Carter consented to his search of her
apartment.
If Myers had believed that the odor of marijuana of
which he had been informed emanated from her apartment, he would
have had probable cause to detain Carter in light of the clearly
established drug laws at the time.
Nevertheless Plaintiffs have
alleged that Stacey Smith and Myers plotted to apprehend Carter on
the pretext that Stacey Smith had seen a man enter and leave
Carter’s apartment and had smelled marijuana coming from Carter’s
apartment.
That
information
was
“information
possessed.”
As noted, the use of fabricated evidence to obtain
a person’s arrest can violate the Fourth Amendment.
the
officers
Cole, 2015 WL
5672071, at *7. Myers’ use of force on and ultimate arrest of
Carter under the alleged facts and circumstances was objectively
unreasonable and unlawful because there was no probable cause.
Estate of Manus v. Webster County, Miss., No. 1:11-CV-00149-SA-DAS,
2014
WL
1285946,
reconsideration,
at
*4,
2014
WL
rev’d
in
2207851
part
(N.D.
on
other
Miss.
May
grounds
28,
on
2014);
Mendenhall v. Riser, 213 F.3d 226, 230 (5th Cir. 2000).
When a plaintiff alleges claims for unlawful arrest and
excessive force, the Court must “analyze the excessive force claim
without regard to whether the arrest itself was justified.
Deville, 567 F.3d at 167 n.7, quoting Freeman v. Gore, 483 F.3d
404, 417 (5th Cir. 2007).
Plaintiffs have raised a genuine issue
of material fact precluding Myers’ qualified immunity defense as
-63-
to whether Myers used objectively unreasonable excessive force
against Carter.
According to the facts alleged, Carter’s possible
crime (possession of marijuana) was not one of violence, Carter,
herself, was not violent, she posed no immediate threat to the
safety of officer or others, was not actively resisting arrest, nor
attempting to escape, yet Myers’ use of force was not only at that
point unnecessary, but caused extreme pain to Carter.
of Manus, 2014 WL 1285946 at *8.
See Estate
Similarly after Chris Smith
allegedly passed Myers’ sobriety test, his arrest for driving under
the influence lacked probable cause.
Plaintiffs and Defendants
disagree over whether Myers concluded from the sobriety tests he
conducted at the scene that Chris Smith was legally drunk.
Rule
12(b)(6)
review,
however.
the
Court
must
construe
In a
the
complaint in favor of Plaintiffs, who allege that Stacey Smith and
Myers plotted to “get” Stacey Smith’s estranged husband and who
contend that the sobriety test showed that Chris Smith was not
drunk, but that Myers nevertheless subjected him to a physical
search, pointed his gun at Chris Smith’s face, arrested him for
Driving Under the Influence, and took him to jail.
Thus while
Myers’ initial stop of Chris Smith might have been reasonable in
the eyes of a reasonable policeman in the same situation as Myers
even if he had been told by Stacey Smith that Chris Smith drinks
and drives,21 under the facts alleged after Chris Smith passed the
21
“Information” from his fellow police officer Stacey
Smith that her estranged husband, Officer Chris Smith, frequently
drove under the influence of alcohol might or might not be viewed
as reliable.
The Court notes that a “where the relevant actors
do not know of facts constituting probable cause to arrest or
detain a person for any crime,” the “[p]retrial use of fabricated
-64-
sobriety test Myers had no probable cause to search, threaten Chris
Smith with a firearm, and arrest him, thus undermining Myers’
qualified immunity defense.
Plaintiffs’ claims against Officer Stacey Smith in her
individual capacity are not that she personally participated in the
alleged unlawful arrests or the use of excessive force against
either
Plaintiff,
but
that
she
conspired
with
and
provided
information, encouragement, and direction to Myers, who acted upon
that support.
Under Texas law “[t]he elements of false arrest and
false imprisonment [a willful detention without consent and without
authority of law] are similar enough to be indistinguishable.”
Villegas v. Griffin Indus., 975 S.W. 2d 745, 754 (Tex. App.--Corpus
Christi 1998, no pet.); Wal-Mart Stores, Inc. v. Rodriguez, 92 S.W.
3d 502, 506 (Tex. 2002); Sears, Roebuck & Co. v. Castillo, 693 S.W.
2d 374, 375 (Tex. 1985).
The Texas Supreme Court has clearly
stated that under Texas law, “liability for false imprisonment
extends beyond those who willfully participate in detaining the
complaining party to those who request or direct the detention.
False imprisonment’s first element may thus be satisfied by conduct
that is intended to cause one to be detained, and in fact, causes
the detention, even when the actor does not participate in the
detention.
We have sometimes referred to this causation standard
evidence to secure a person’s arrest can violate the Fourth
Amendment.” Cole v. Carson,
F.3d
, 2015 WL 5672071, at *7
(5th Cir. Sept. 25, 2015). Nevertheless, “there must not even
‘arguably’ be probable cause for the search and arrest for
[qualified] immunity to be lost.” Brown v. Lyford, 243 F.3d 185,
1 (5th Cir. 2001), citing Hart v. O’Brien, 127 F.3d 424, 444 (5th
Cir. 1997), abrogated on other grounds by Kalina v. Fletcher, 522
U.S. 118 (1997); Haggerty, 391 F.3d at 656.
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as ‘instigat[ion]’ of the false imprisonment.”
3d at 507.
Rodriguez, 92 S.W.
Courts have applied this instigation standard in
determining whether alleged false arrests directed by police
officers
are
constitutional
amendment and § 1983.
violations
under
the
fourteenth
See, e.g., Ratliff v. City of Houston, No.
Civ. A. H-02-3809, 2005 WL 1745468, at *26-27 (S.D. Tex. July 25,
2005); Lopez v. City of Houston, No. Civ. A. 03-2297, 2005
WL
1770938, at *31 (S.D. Tex. July 25, 2005); Goodarzi v. Hartzog,
Civ. A. No. H-12-2870, 2013 WL 3110056, at *7-8 (S.D. Tex. June 14,
2013)(and cases cited therein).
Thus Stacey Smith may be liable
in her individual capacity for instigating the false arrests and
use of excessive force in violation of Plaintiffs’ rights under the
Fourth Amendment.
ORDER
Accordingly, for the reasons stated above, the Court
ORDERS that Defendants Diamond URS Huntsville, LLC d/b/a
the Connection at Huntsville and Asset Campus Housing Inc.’s motion
to join (#24) is MOOT.
The Court further
REAFFIRMS its earlier dismissal with prejudice of the
state-law tort claims under the TTCA against Officers Stacey Smith
and Christopher Myers in their individual capacities.
In addition
the Court
ORDERS that Defendants’ motion to sever is DENIED.
Finally, the Court
ORDERS that Defendants’ motion to dismiss Plaintiffs’
claims under § 1983 and the Fourth Amendment against the City and
against the two police officers in their official capacities is
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GRANTED, but is DENIED with respect to § 1983/Fourth Amendment
claims against Officers Christopher Myers and Stacey Smith in their
individual capacities.
SIGNED at Houston, Texas, this 29th day of
March , 2016.
___________________________
MELINDA HARMON
UNITED STATES DISTRICT JUDGE
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