Gutierrez v. Irwinsky et al.

Filing 25

MEMORANDUM AND ORDER GRANTED 19 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM as to First Amended Complaint's Official-Capacity Claims (Signed by Judge Nancy F. Atlas) Parties notified.(sashabranner, 4)

United States District Court
Southern District of Texas

ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
VICTORIA DIVISION
MARY JANE GUTIERREZ,
Plaintiff,
v.
ADAM B. IRWINSKY, et al.,
Defendants.

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November 17, 2015
David J. Bradley, Clerk

CIVIL ACTION NO. V-15-0024

MEMORANDUM AND ORDER
This civil rights case is again before the Court on a Motion to Dismiss [Doc.
# 19] filed by Defendants Adam B. Irwinsky and Kirby Brumby seeking dismissal of
Plaintiff Mary Jane Gutierrez’s claims against them in their official capacity. Plaintiff
filed a Response [Doc. # 21], Defendants filed a Reply [Doc. # 22], and Plaintiff filed
a Sur-Reply [Doc. # 23-2].1 Having reviewed the full record and governing legal
authorities, the Court grants the Motion to Dismiss and dismisses with prejudice
Plaintiff’s claims against Defendants Irwinsky and Brumby in their official capacity.
I.

BACKGROUND
Plaintiff is a resident of Goliad County, Texas, where Defendant Brumby is the

Sheriff and Defendant Irwinsky has been a Deputy Sheriff since October 2011.

1

By Order [Doc. # 24] entered November 6, 2015, the Court granted Plaintiff’s Motion
for Leave to File Sur-Reply and directed Plaintiff’s counsel to file the Sur-Reply as
a separate docket entry. Plaintiff’s counsel failed to do so and, as a result, the only
copy of the Sur-Reply is attached to the Motion requesting leave to file it.

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Plaintiff alleges that Irwinsky has been employed as a peace officer for many years,
including approximately 18 months as a chief of police. Irwinsky was first licensed
as a peace officer in 1991. See Exhibit 1 to Plaintiff’s First Amended Complaint, p. 2.
Plaintiff alleges that on May 3, 2013, she was walking along a public street
when, during an “encounter” with Deputy Irwinsky, he tased her. See First Amended
Complaint [Doc. # 17], ¶ 6. Plaintiff alleges that, although she “cried out in pain and
dropped to her knees” after the first tasing, Irwinsky tased her a second time. See id.
Plaintiff alleges that she was charged with evading arrest, but the charge was
dismissed. See id., ¶ 7.
Plaintiff originally filed this lawsuit pursuant to 42 U.S.C. § 1983 against
Defendants Irwinsky and Brumby in both their official and individual capacities.
Defendants’ Motion to Dismiss [Doc. # 5], seeking dismissal of Plaintiff’s claims
against them in their official capacities and against Brumby in his individual capacity,
was granted by Memorandum and Order [Doc. # 13] entered July 20, 2015. Plaintiff
was granted leave to file an amended complaint, which she did on September 25,
2015. See First Amended Complaint [Doc. # 17]. Plaintiff alleges in the First
Amended Complaint that Irwinsky violated her First and Fourteenth Amendment
rights when he tased her. Plaintiff alleges that Brumby, in his official capacity, failed

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to train the deputies in Goliad County in the constitutional use of tasers. Plaintiff did
not assert any claims against Brumby in his individual capacity.
Defendants filed a Motion to Dismiss the official capacity claims against them.2
The Motion to Dismiss has been fully briefed and is now ripe for decision.
II.

STANDARD FOR MOTION TO DISMISS
A motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil

Procedure is viewed with disfavor and is rarely granted. Turner v. Pleasant, 663 F.3d
770, 775 (5th Cir. 2011) (citing Harrington v. State Farm Fire & Cas. Co., 563 F.3d
141, 147 (5th Cir. 2009)). The complaint must be liberally construed in favor of the
plaintiff, and all well-pleaded facts in the complaint must be taken as true. See
Harrington, 563 F.3d at 147. “The court’s review is limited to the complaint, any
documents attached to the complaint, and any documents attached to the motion to
dismiss that are central to the claim and referenced by the complaint.” Lone Star
Fund V (U.S.), L.P. v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010) (citing
Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498-99 (5th Cir. 2000)).
A plaintiff in a civil rights case must satisfy the pleading requirements of Rule 8
of the Federal Rules of Civil Procedure as interpreted by Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007), and Ashcroft v. Iqbal, 556 U.S. 662, 681 (2009). See Speck
2

Irwinsky does not seek dismissal of Plaintiff’s claim against him in his individual
capacity.

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v. Wiginton, 606 F. App’x 733, 735-36 (5th Cir. Mar. 17, 2015). The complaint must
contain sufficient factual allegations, as opposed to legal conclusions, to state a claim
for relief that is “plausible on its face.” See Iqbal, 556 U.S. at 678; Patrick v. WalMart, Inc., 681 F.3d 614, 617 (5th Cir. 2012). When there are well-pleaded factual
allegations, a court should presume they are true, even if doubtful, and then determine
whether they plausibly give rise to an entitlement to relief. Iqbal, 556 U.S. at 679;
Mid-Town Surgical Ctr., LLP v. Humana Health Plan of Texas, Inc., 16 F. Supp. 3d
767, 773 (S.D. Tex. 2014).
III.

OFFICIAL CAPACITY CLAIMS
A.

General Legal Standards for Official Capacity Claims

The parties agree that the official capacity claims are treated as claims against
Goliad County. To prove a § 1983 claim against a county, the plaintiff must show that
“(1) an official policy (2) promulgated by the municipal policymaker (3) was the
moving force behind the violation of a constitutional right.” See Jackson v. Ford, 544
F. App’x 268, 272 (5th Cir. Feb. 27, 2013) (quoting Peterson v. City of Fort Worth,
Tex., 588 F.3d 838, 847 (5th Cir. 2009)). Generally, a plaintiff can properly allege an
“official policy” in three ways.
First, a plaintiff adequately alleges an official policy “when the appropriate
officer or entity promulgates a generally applicable statement of policy and the

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subsequent act complained of is simply an implementation of that policy.” Burge v.
Parish of St. Tammany, 187 F.3d 452, 471 (5th Cir. 1999). In Texas, “[t]he sheriff is
without question the county’s final policymaker in the area of law enforcement.”
Jackson, 544 F. App’x at 272 (quoting Colle v. Brazos County, Tex., 981 F.2d 237,
244 (5th Cir. 1993), and citing TEX. LOC. GOV’T CODE § 351.041). The “official
policy” need not be formally adopted by the policymaking body, but can be
established through “a persistent, widespread practice which, although not officially
promulgated, is so common and well settled as to constitute a custom that fairly
represents municipal policy.” Esteves v. Brock, 106 F.3d 674, 677 (5th Cir. 1997)
(internal quotations and citation omitted).
Second, a plaintiff can properly allege “official policy” for purposes of
municipal liability under § 1983 “[w]here no ‘official policy’ was announced or
promulgated but the action of the policymaker itself violated a constitutional right.”
Burge, 187 F.3d at 471 (citations omitted).
Third, a plaintiff can establish “official policy” by alleging facts which indicate
that “[e]ven when the policymaker fails to act affirmatively at all, if the need to take
some action to control the agents of the local governmental entity ‘is so obvious, and
the inadequacy [of existing practice] so likely to result in the violation of

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constitutional rights, that the policymake[r] . . . can reasonably be said to have been
deliberately indifferent to the need.’” Id.
B.

Failure to Train In Constitutional Use of Tasers

Plaintiff alleges that Goliad County, through Sheriff Brumby, failed to train the
deputies, including Irwinsky, in the constitutional use of tasers. “[T]he inadequacy
of police training may serve as the basis for § 1983 liability only where the failure to
train amounts to deliberate indifference to the rights of persons with whom the police
come into contact.” City of Canton v. Harris, 489 U.S. 378, 388 (1989). “That a
particular officer may be unsatisfactorily trained will not alone suffice to fasten
liability on the [municipality], for the officer’s shortcomings may have resulted from
factors other than a faulty training program.” Id. at 390-91. To allege an official
capacity claim based on a county’s failure to train, a plaintiff must demonstrate
(1) that the policies in place were inadequate, (2) that the county was deliberately
indifferent in failing to adopt additional policies, and (3) the absence of additional
policies directly caused the violation of the plaintiff’s constitutional rights. See
Kitchen v. Dallas Cnty., 759 F.3d 468, 485 (5th Cir. 2014); Williams v. City of
Cleveland, 736 F.3d 684, 687 (5th Cir. 2013).3 Plaintiff fails to provide factual
3

In her Response, Plaintiff argues that Brumby’s failure to enforce a new taser training
policy, effective November 1, 2012, is a basis for imposing § 1983 liability on Goliad
County. Plaintiff cites no legal authority for the argument that failing to enforce fully
(continued...)

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allegations in the First Amended Complaint to indicate that Goliad County’s training
policies were inadequate or that the County was deliberately indifferent. Dismissal
of Plaintiff’s official capacity claims is appropriate based on either deficiency.
Inadequacy of Training Policies. With reference to the first requirement,
Plaintiff fails to allege factually that Goliad County’s training policies and procedures
were inadequate. “Complaints typically satisfy the first element [of a failure to adopt
adequate training policies and procedures] by alleging facts related to the locality’s
actual training program.”

See Speck, 606 F. App’x at 736 (citing Burge v. St.

Tammany Parish, 336 F.3d 363, 369 (5th Cir. 2003); Beard v. Harris Cnty., 2005
WL 2647972, *3 (S.D. Tex. Oct.17, 2005)). Plaintiff alleges that the County’s
training in the use of tasers, as it existed prior to November 1, 2012, was inadequate.
Plaintiff provides no factual allegations, however, about the content of that preNovember 2012 training. Nor does Plaintiff allege factually that the training actually

3

(...continued)
an adequate training policy creates § 1983 liability. Indeed, the United States
Supreme Court has indicated to the contrary. In City of Canton v. Harris, 489 U.S.
378 (1989), the Supreme Court noted that not all unsatisfactory training of a particular
officer can form the basis for liability. As an example of a situation where there
would be no municipal liability, the Supreme Court stated that “[i]t may be, for
example, that an otherwise sound program has occasionally been negligently
administered.” Id. at 391.

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provided to Irwinsky, including a 14-hour course in “Use of Force (Intermediate)” on
March 20, 2013, was insufficient.4
Instead, Plaintiff argues that the adoption of a new policy, effective
November 1, 2012, raises an inference that the prior policy was inadequate. This
argument fails, both factually and legally. The new policy provides for training in the
use of tasers separate from the County’s general training in the constitutional use of
force. The new policy states specifically that it is intended to assist deputies in “using
the minimum amount of force to control or effect the arrest of individuals.” See
Exhibit 3 to First Amended Complaint, ¶ 1.03. The adoption of new training
procedures intended to promote minimal use of force does not raise an inference that
prior training on the constitutional use of force was inadequate for purposes of a
§ 1983 failure to train claim. See, e.g., Fraire v. City of Arlington, 957 F.2d 1268,
1281 (5th Cir. 1992) (stating that where a municipality adopts a new policy, “it does
not follow that the prior policies were constitutionally deficient”).
Additionally, if the training provided to deputies meets the applicable state
standards, there can be no cause of action for failure to train unless the plaintiff shows

4

In 2005, Irwinsky received training and was certified to use the Taser X26 Conducted
Energy Weapon, the taser used in this case. See Exhibit 2 to Plaintiff’s First
Amended Complaint. The certification expired after one year. See id. On
November 26, 2013, Irwinsky received “Taser (Re-certification)” training in
accordance with the new taser training policy. See Exhibit 6 to Plaintiff’s First
Amended Complaint.

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that this legal minimum of training was insufficient to enable the deputies to handle
situations in a constitutional manner. See Sanders-Burns v. City of Plano, 594 F.3d
366, 382 (5th Cir. 2010) (citing Benavides v. County of Wilson, 955 F.2d 968, 973
(5th Cir. 1992)); O’Neal v. City of San Antonio, 344 F. App’x 885, 888 (5th Cir. Aug.
31, 2009). Irwinsky had completed the training required by the Texas Commission
on Law Enforcement (“TCOLE”), and he was certified as a Master Peace Officer at
the time of his encounter with Plaintiff. See Exhibit 1 to Plaintiff’s First Amended
Complaint. He completed 14 course hours of “Use of Force (Intermediate)” training
on March 20, 2013, less than two months before the incident at issue in this case. See
id. at 4. Plaintiff does not allege, even summarily, how this TCOLE-approved training
was inadequate. As a result, Plaintiff has failed to allege factually that the training
provided by Goliad County to its deputies, both before and after November 1, 2012,
was inadequate for purposes of her failure-to-train claim. On this basis, the official
capacity claims against Defendants are dismissed.
Deliberate Indifference. Additionally, Plaintiff fails to allege an adequate
factual basis for a finding that Goliad County, acting through Sheriff Brumby, was
deliberately indifferent. “Deliberate indifference is a stringent standard of fault,
requiring proof that a municipal actor disregarded a known or obvious consequence
of his action.” Connick v. Thompson, 563 U.S. 51, 131 S. Ct. 1350, 1360 (2011).

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“Thus, when city policymakers are on actual or constructive notice that a particular
omission in their training program causes city employees to violate citizens’
constitutional rights, the city may be deemed deliberately indifferent if the
policymakers choose to retain that program.” Id. “A less stringent standard of fault
for a failure-to-train claim would result in de facto respondeat superior liability on
municipalities.” Id. (internal quotations and citation omitted).
“A pattern of similar constitutional violations by untrained employees is
‘ordinarily necessary’ to demonstrate deliberate indifference for purposes of failure
to train.” Id.; see also Sanders-Burns, 594 F.3d at 382. The plaintiff must allege that
the asserted constitutional violation – in this case excessive force through tasing –
occurred with such frequency that Goliad County was put on notice that additional
training was needed. See Culbertson v. Lykos, 790 F.3d 608, 625 (5th Cir. 2015).
Plaintiff fails to allege such a pattern in this case, even in a conclusory manner.5
Instead, Plaintiff argues that the adoption of a new taser training policy
effective November 1, 2012, raises an inference that the prior training was inadequate

5

In her Response [Doc. # 11] to Defendants’ Motion to Dismiss [Doc. # 5] the official
capacity claims in the original complaint, Plaintiff argued that the “single-incident
liability” theory, described in a footnote in City of Canton v. Harris, 489 U.S. 378
(1989), applied. In her Response to the pending Motion to Dismiss, Plaintiff states
that she does not “rely only, or even chiefly, on the single-incident method . . ..” See
Response, p. 10. To the extent Plaintiff relies on the single-incident theory, the Court
adopts its prior ruling rejecting that theory of liability in this case. See Memorandum
and Order, pp. 7-8.

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and that Brumby had notice of its inadequacy. As discussed above, the adoption of
the new policy does not raise the inference, reasonable or otherwise, that Plaintiff
suggests. On this basis, dismissal of Plaintiff’s official capacity claims against
Brumby and Irwinsky is appropriate.
IV.

CONCLUSION AND ORDER
Plaintiff has failed in her First Amended Complaint to allege a factual basis for

imposing liability on Defendants in their official capacity. As a result, it is hereby
ORDERED that Defendants’ Motion to Dismiss [Doc. # 24] is GRANTED
and Plaintiff’s official-capacity claims are DISMISSED WITH PREJUDICE.
Plaintiff’s claim against Defendant Irwinsky in his individual capacity remains
pending.
SIGNED at Houston, Texas, this 17th day of November, 2015.

NAN Y F. ATLAS
SENIOR UNI
STATES DISTRICT JUDGE

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