Oporto et al v. The City of El Paso, Texas et al

Filing 35

GRANTING IN PART AND DENYING IN PART 19 Motion to Dismiss; ORDER MOOTING 22 Motion to Dismiss. Signed by Judge Kathleen Cardone. (fm, )

O p o r t o et al v. The City of El Paso, Texas et al

D o c . 35

I N THE UNITED STATES DISTRICT COURT F O R THE WESTERN DISTRICT OF TEXAS E L PASO DIVISION L U C I A ESMERALDA OPORTO, et a l ., Plaintiffs, v. C I T Y OF EL PASO, et al., Defendants. § § § § § § § § § §

E P -1 0 -C V -1 1 0 -K C

ORDER O n this day, the Court considered the Motion to Dismiss filed by Defendant City of El P a s o , Texas ("City") (Doc. No. 19) as well as Defendants Gregory Allen ("Allen") and Richard W ile s 's ("Wiles's") Corrected Motion to Dismiss (Doc. No. 22). For the reasons set forth below th e City's Motion is GRANTED in part and DENIED in part, while Allen and Wiles's Corrected M o t io n is DENIED as moot. I. BACKGROUND A. P a r tie s

P l a in t iff Lucia Esmeralda Oporto ("Oporto"), widow of John Dalton Martinez (" M a rtin e z " ) and personal representative of his estate, is a resident of Aurora, Colorado. Pls.' C o m p l . ¶ 2. (Doc. No. 1). Plaintiffs Angel Jose Martinez and Elijah Isaiah Martinez are other s u rv iv o rs of Martinez. Id. Defendant City of El Paso, Texas ("City") is a municipality. Pls.' C o m p l . ¶ 3. The City operates the El Paso Police Department which employed Wiles, Allen, M a rc o Spalloni, Octavio Jauregui, Rodolfo Moreno ("Moreno"), and Edwin Mayorga (" M a yo r ga " ). Pls.' Compl. ¶ 3. Wiles is a resident of El Paso, Texas, and he is the former chief

-1-

Dockets.Justia.com

o f police of the El Paso Police Department. Pls.' Compl. ¶ 4. Allen is a resident of El Paso, T e x a s , and he was the acting and/or interim chief of police of the El Paso Police Department at th e time of Martinez's death. Pls.' Compl. ¶ 5. Moreno and Mayorga are residents of El Paso, T e x a s , and were officers at the El Paso Police Department at that time. Pls.' Compl. ¶¶ 8, 9. B. F a cts

The following facts are derived from Plaintiffs' Complaint. For present purposes, all w e ll-p le a d e d factual allegations in Plaintiffs' Complaint are accepted as true and construed in the ligh t most favorable to Plaintiffs. See Calhoun v. Hargrove, 312 F.3d 730, 733 (5th Cir. 2002). O n March 29, 2008, police officers Moreno and Mayorga were assigned to a "beer run" o p e ra tio n at a 7-Eleven convenience store in El Paso, Texas. 1 Pls.' Compl. ¶ 18. Both officers w e re in plain clothes, not their uniforms, and were driving an unmarked vehicle. Pls.' Compl. ¶ 1 8 . They parked the vehicle to observe the 7-Eleven and the nearby Lucky's store. Pls.' Compl. ¶ 20. While conducting surveillance, the officers observed two individuals who appeared to be figh tin g, and the officers drove towards the scene to investigate further. Pls.' Compl. ¶ 21. While driving, the officers heard what they believed to be gunshots, and Mayorga observed two m a l e s running towards Lucky's, one of whom he believed to be carrying a handgun. Pls.' Compl. ¶ ¶ 22, 23. The officers exited their vehicle and ran toward Lucky's with their weapons drawn. Pls.' Compl. ¶ 24. Moreno requested back-up and then both officers entered the store with their w e ap o n s drawn. Pls.' Compl. ¶¶ 24, 25. Upon entering the store, the officers claim to have
1

Plaintiffs do not define "beer run" in the pleadings. However, o th e r cases define a "beer run" as a plan to "grab beer and le a v e without paying for it." See Dickson v. Dretke, No. 2:01C V -9 5 , 2005 U.S. Dist. LEXIS 3005, at *10 (N.D. Tex. Mar. 1 , 2005). In the instant case, the officers were thus apparently c o n d u c tin g surveillance in an attempt to detect and thwart such the fts.

-2-

ye lle d "Police, Police" although witnesses at the scene stated that the officers never identified th e m s e lv e s as police officers. Pls.' Compl. ¶ 26. Inside the store, Mayorga grabbed a woman w h o had entered before him and pulled her back toward Moreno. Pls.' Compl. ¶ 27. The officers th e n continued into the store and shot and killed Martinez. Pls.' Compl. ¶¶ 28, 29. C. P r o c e d u r a l Posture

On March 24, 2010, Plaintiffs filed their Complaint seeking relief for violations of D e ce d e n t's Fourth and Fourteenth Amendment rights. Pls.' Compl. ¶ 12. Plaintiffs allege four c a u s e s of action under 42 U.S.C. §1983, all for violations of the Fourth and Fourteenth A m e n d m e n ts . First, Plaintiffs allege Defendants, "in shooting and killing [] Decedent, without ju s tific a tio n , violated Decedent's right to be free from the use of unnecessary, unreasonable and e x c e s s iv e police force and constituted an unlawful and unreasonable seizure of his person." Pls.' C o m p l . ¶ 40. Second, Plaintiffs allege Defendants used constitutionally deficient tactics at the s c e n e that amounted to the unlawful seizure and death of Decedent. Pls.' Compl. ¶ 45. Plaintiffs a l l e ge the City of El Paso has a custom, policy and practice of insufficiently training officers in th e use of deadly force and list a series of cases from 1993 to 2008 allegedly showing the Police D e p a rtm e n t's history of using excessive force. Pls.' Compl. ¶ 47(A)-(T). Third, Plaintiffs allege c o n s c io u s deliberate indifference by the City through inadequate training, supervision and d is c ip lin e of El Paso Police Department officers. Pls.' Compl. ¶ 53, 57. Fourth, Plaintiffs allege W i le s and Allen, as police chiefs, failed to supervise and train El Paso Police Department officers in the use of deadly force which amounted to gross negligence or deliberate indifference. Pls.' C o m p l . ¶ 61. Plaintiffs seek compensatory damages, attorneys' fees and costs. Pls.' Compl. ¶ ¶ 67-70.

-3-

O n May 3, 2010, the City filed a Motion to Dismiss ("City's Motion") (Doc. No. 19). The same day Wiles and Allen filed a Motion to Dismiss (Doc. No. 20) and a Corrected Motion t o Dismiss ("Wiles & Allen Motion") (Doc. Nos. 22). On June 22, 2010, Plaintiffs filed their R e s p o n se to the above-noted Motions to Dismiss ("Plaintiffs' Response") (Doc. No. 31). On J u l y 1, 2010, Defendants City, Wiles and Allen filed their Reply to Plaintiffs' Response (" D e fe n d a n ts ' Reply") (Doc. No. 32). On July 13, 2010, Plaintiffs and Defendants filed a Joint M o t io n to Dismiss Wiles and Allen ("Joint Motion") (Doc. No. 33). On July 20, 2010, the Court gra n te d the Joint Motion (Doc. No. 34) and dismissed the claims against Wiles and Allen, r e n d e r i n g the outstanding Wiles & Allen Motion moot. II. D ISC U SSIO N A. Standa rd

A motion to dismiss pursuant to Rule 12(b)(6) challenges a complaint on the basis that it fa ils to state a claim upon which relief may be granted. FED. R. CIV. P. 12(b)(6). In ruling on a R u l e 12(b)(6) motion, the court must accept well-pleaded facts as true, and view them in a light m o s t favorable to the plaintiff. Calhoun v. Hargrove, 312 F.3d 730, 733 (5th Cir. 2002); Collins v . Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000). Still, "a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. T w o m b l y , 550 U.S. 544, 555 (2007) (internal citations and quotation marks omitted); see also P l o t k in v. IP Axess, Inc., 407 F.3d 690, 696 (5th Cir. 2005) ("But a court need not accept as true c o n c l u s o r y allegations, unwarranted factual inferences, or legal conclusions."). T h o u gh a complaint need not contain "detailed" factual allegations, still the "[f]actual

-4-

a lle ga tio n s must be enough to raise a right to relief above the speculative level on the assumption th a t all the allegations in the complaint are true." Twombly, 550 U.S. at 555 (internal citation o m i tt e d ) . Thus, to survive a motion to dismiss, a plaintiff's complaint must allege sufficient facts " to state a claim to relief that is plausible on its face." Id. at 569. Nevertheless, "a well-pleaded c o m p l a i n t may proceed even if its strikes a savvy judge that actual proof of those facts is im p r o b a b l e , and `that a recovery is very remote and unlikely.'" Id. at 556 (quoting Scheuer v. R h o d e s , 416 U.S. 232, 236 (1974)). B. P l a i n t if f s sufficiently plead a § 1983 claim against the City

T h e City argues that Plaintiffs' § 1983 claims against the City fail because Plaintiffs do n o t adequately allege an improper official policy or widespread custom. City's Mot. ¶ 10. The C ity further argues that Plaintiffs fail to state how any city policy or custom directly caused P la in tiffs ' injuries and fail to allege any facts of deliberate indifference. City's Mot. ¶¶ 10, 11. The Court, however, finds these arguments unconvincing. 1. E le m e n ts of a § 1983 claim

To establish municipal liability under § 1983, a plaintiff must show that (1) an official p o lic y or custom (2) promulgated by the municipal policymaker (3) was the moving force behind th e violation of a constitutional right. Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th Cir. 2 0 0 1 ) (citing Monell v. New York City Dep't of Social Servs., 436 U.S. 658, 694 (1978)). It is w e ll-e s ta b l is h e d that a municipality is not liable under § 1983 on the theory of respondeat s u p e rio r. Monell, 436 U.S. at 694. Cities face § 1983 liability only "when execution of a g o v e r n m e n t 's policy or custom, whether made by its lawmakers or by those whose edicts or acts m a y fairly be said to represent official policy, inflicts the injury . . . ." Id.

-5-

O ffic ia l policy or custom can be established in several ways. An official policy may be a p o lic y statement, ordinance, regulation, or decision that has been officially adopted and p ro m u lgate d by a policymaker. Webster v. City of Houston, 735 F.2d 838, 841 (5th Cir. 1984) (e n banc). A policy may also arise from a "persistent, widespread practice of city officials or e m p l o ye e s , which, although not authorized by officially adopted and promulgated policy, is so c o m m o n and well settled as to constitute a custom that fairly represents municipal policy." Id. Finally, a policy or custom may exist as the basis for § 1983 liability, especially in failure to train c a s e s , where the need to take some action to control local governmental agents is so obvious, and th e inadequacy of existing training so likely to result in the violation of constitutional rights, that a municipality's failure to train its employees demonstrates a "deliberate indifference" to the righ ts of its inhabitants. City of Canton v. Harris, 489 U.S. 378, 389-90 (1989). Plaintiffs allege th a t there is a policy under both the widespread practice theory and the inadequacy of training th e o ry. Pls.' Compl. ¶¶ 46, 47. A policy is promulgated by the municipal policymaker when it "results from the decision o r acquiescence of the municipal officer or body with `final policymaking authority' over the s u b je c t matter of the offending policy." Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737 (1 9 8 9 ). "Courts have consistently found that chiefs of police are official law enforcement p o lic ym a k e r s for the purposes of municipal liability under § 1983." Kincheloe v. Caudle, No. A0 9 -C V -1 0 -LY , 2009 U.S. Dist. LEXIS 96371, at *56 (W.D. Tex. Oct. 16, 2009) (citing Fraire v. C i ty of Arlington, 957 F.2d 1268, 1279 n.45 (5th Cir. 1992) (finding that the chief of police is the p r in c i p a l policy maker for the Arlington Police Department)). In Bell v. City of El Paso, this C o u r t noted that the chief of police for the El Paso Police Department ­ in that case Gregory

-6-

A l le n ­ was a policymaker. No. EP-08-CV-331-FM, 2009 U.S. Dist. LEXIS 127084, at *29 (W .D . Tex. Dec. 18, 2009). Lastly, a plaintiff must establish that the policy was the "moving force" behind the v io la tio n . That is, there must be a "direct causal link" between the policy and the violation. P io tr o w s k i, 237 F.3d at 580 (citing Monell, 436 U.S. at 694). This requires "more than a mere `b u t for' coupling between cause and effect." Fraire, 957 F.2d at 1281 (5th Cir. 1992) (citations o m i tt e d ) . The Fifth Circuit has emphasized that the moving-force element of municipal liability " m u s t not be diluted, for `[w]here a court fails to adhere to rigorous requirements of culpability a n d causation, municipal liability collapses into respondeat superior liability.'" Snyder v. T r e p a g n i e r , 142 F.3d 791, 796 (5th Cir. 1998) (quoting Bd. of Cnty. Comm'rs of Bryan Cnty. v. B r o w n , 520 U.S. 397, 415 (1997)). But if a policy is found to have a "known or obvious" c o n s e q u e n c e of infringing on federally protected rights in the first step of the test (which may be fo u n d in failure to train cases), it is difficult to see how such a policy could fail to be a "moving fo rc e " behind these known or obvious harms when they finally come to fruition, as is required by th is third step. See Bryan Cnty., 520 U.S. 409-10 ("The high degree of predictability may also s u p p o r t an inference of causation ­ that the municipality's indifference led directly to the very c o n s e q u e n c e that was so predictable."). 2. A p p ly i n g the elements to the instant case

P l a i n t i ffs do not allege that there is a policy of excessive force that has been officially a d o p t e d and promulgated by a policymaker. Rather, Plaintiffs allege that there is a persistent, w i d e s p re a d practice of excessive force by El Paso Police Department officers which, although not a u t h o r iz e d by officially adopted and promulgated policy, is so common and well-settled as to c o n s titu t e a custom that fairly represents municipal policy. Pls.' Compl. ¶ 47. Plaintiffs also

-7-

a lle ge that the inadequacy of existing training for police officers is so likely to result in the v io la tio n of constitutional rights that the City's failure to train its employees evidences a policy of " d e lib e ra te indifference" to the rights of its inhabitants. Pls.' Compl. ¶ 46. a. P o lic y , custom or widespread practice

" S i n c e Monell, the lower federal courts have struggled with the difficult task of d e t e rm in i n g just what is sufficient to state a claim for relief under the standard for municipal lia b ility set forth in that case consistent with the liberal boundaries of federal notice pleading." H a m r i c k v. Lewis, 515 F. Supp. 983, 985 (N.D. Ill. 1981). "While it is unnecessary to show fo r m a l, documentary approval of a governmental custom or policy in order to state a claim under M o n e l l, it is necessary to allege more than a single incident of illegality . . . in order to state a c la im for relief." Hamrick, 515 F. Supp. at 985-86. Plaintiffs must demonstrate "a pattern of a b u s e s that transcends the error made in a single case." Piotrowski, 237 F.3d at 582 (citation o m itte d ) . A pattern requires "sufficiently numerous prior incidents," as opposed to "isolated in s t a n c e s ." McConney v. City of Houston, 863 F.2d 1180, 1184 (5th Cir. 1989) (citations o m i tt e d ) . A pattern also requires similarity and specificity, as "[p]rior indications cannot simply b e for any and all `bad' or unwise acts, but rather must point to the specific violation in q u e s tio n ." Estate of Davis ex rel. McCully v. City of N. Richland Hills, 406 F.3d 375, 383 (5th C i r. 2005). H e re , Plaintiffs allege thirty-two prior incidents, spanning fifteen years, in which El Paso P o l ic e Department officers allegedly made use of excessive deadly force. Pls.' Compl. ¶ 47(A)(T ) . The incidents are described in varying degrees of detail, with some described in a few s e n te n c e s and some simply listed with a date and police report number. Id. For example, the d e s c r ip t io n of the death of Craig Chamness includes the following details: his death came "after b e i n g held down after allegedly attacking paramedics in the front yard of his mother's house;"

-8-

th a t he was a "paranoid schizophrenic;" that he died of "possible asphyxia" from being "held in a p o s i t io n where [he] couldn't breathe;" that, after this incident, the City "assured the public that it w o u l d train its officers in handling these types of cases;" and that a suit was filed against the City a n d various police officers in federal court. Pls.' Compl. ¶ 47(C). Other incidents provide only d a te s and report numbers and are described with little context. For example, one incident d e s c rip tio n reads: "On November 15, 1998, . . . El Paso Police Department Officer shot and k ille d a drive-by shooting suspect." Pls.' Compl. ¶ 47(P). Fourteen incident descriptions say e v e n less. See Pls.' Compl. ¶ 47(S)(1)-(14). Viewing the pleadings as a whole, Plaintiffs have alleged sufficient prior incidents to d e fe a t Defendant's motion to dismiss. Other district courts, in analogous cases at the motion to d is m is s stage, found the recitation of a list of similar prior incidents to be sufficient. See Barr v. C i ty of San Antonio, No. 06-CV-261, 2006 U.S. Dist. LEXIS 59402, at *12 (W.D. Tex. July 25, 2 0 0 6 ) (finding that a pattern was alleged by citing four prior similar lawsuits over unlawful a r r e s t s and use of excessive force); Rivera v. City of San Antonio, No. 06-CV-235, 2006 U.S. Dist LE X IS 83376, at *39 (W.D. Tex. Nov. 15, 2006) (finding that a pattern was alleged by citing that th e police department had received hundreds of complaints involving the use of excessive force b y officers); Starstead v. City of Superior, 533 F. Supp 1365, 1369 (W.D. Wis. 1982) (finding th a t a pattern was alleged by describing a systematic pattern of misuse of police dogs and citing fiv e separate incidents involving seven persons). This case, in which thirty-two incidents of e x c e s s i v e deadly force have been alleged, falls within the acceptable range of "sufficiently n u m e ro u s prior incidents" needed to allege a pattern at this stage. The Court notes that the procedural posture of this case is distinguishable from much of th e case law on establishing a pattern. Discovery has not occurred in this case, whereas many

-9-

d e c is io n s on this subject concern post-discovery motions. See, e.g., Peterson v. City of Fort W o r t h , 588 F.3d 838 (5th Cir. 2009) (appeal of summary judgment); Pineda v. City of Houston, 2 9 1 F.3d 325 (5th Cir. 2002) (same). The Fifth Circuit held in Peterson and Pineda that twentys e v e n incidents of excessive force and eleven incidents of warrentless entry, respectively, were n o t enough to establish a pattern sufficient to defeat a summary judgment motion. Id. Those c a s e s discussed and evaluated the evidence in detail and observed that, even after discovery, p la in tiffs had no evidence of a pattern beyond a bare list of prior incidents. See Peterson, 588 F .3 d at 851 ("The incidents allege use of force that, if true, would be emphatically excessive. Nevertheless, assuming their truth, the incidents do not, on the basis of this record, tell us that the C i ty maintained an official policy of condoning excessive force. The failure of the evidence is th a t the plaintiffs have failed to provide context that would show a pattern of establishing a m u n ic ip a l policy."). In contrast, at this juncture, the Court "must only evaluate whether P l a in t iff[s ] . . . pled sufficient facts that would allow it to draw the reasonable inference that D e fe n d a n t s are liable for the alleged misconduct." Ramirez v. Jim Wells County, No. CC-09-CV2 0 9 , 2010 U.S. Dist. LEXIS 63615, at *6 (S.D. Tex. June 25, 2010) (ruling on a motion to d is m i s s ). Plaintiffs have pleaded sufficient facts to survive the motion to dismiss stage, as the p le a d in gs allow the Court to draw the reasonable inference that Defendants have engaged in a p a t te rn of misconduct. Plaintiffs must also plead similarity; numerous incidents must not be for any and all prior b a d acts, but only similar bad acts. Defendants argue that Plaintiffs have "failed to demonstrate t h e similarity between the previous cases and the one at issue here." City's Mot. ¶ 11. The Court d is a gre e s . Although the detail with which Plaintiffs describe the incidents used to establish a p a t te rn of use of excessive deadly force varies ­ three are described with significant detail, fifteen

-10-

a re described with some detail and fourteen are listed with virtually no detail ­ the similarities re v e a le d by the numerous incidents alleged with some detail are sufficient to withstand a motion to dismiss. In Rivera, the plaintiffs alleged that the internal affairs section of the San Antonio P o lic e Department had received hundreds of complaints involving the use of excessive force by p o lic e officers, but did not indicate the time period in which the complaints were received or w h a t type of police misconduct was involved; nevertheless, the court found that plaintiffs had a lle ged sufficient facts. Rivera, 2006 U.S. Dist LEXIS 83376, at *39-40 & n.8. In Barr, the p la in tiffs alleged that the city had been named as a defendant in four similar lawsuits in the W e s t e r n District of Texas, but they did not provide a list of such federal cases; again, the court h e ld that sufficient facts had been alleged to survive a motion to dismiss. Barr, 2006 U.S. Dist. LE X IS 59402, at *12-13 & n.3. Plaintiffs here have alleged at least as much detail as the p l a i n t i ffs in either Rivera or Barr, and the prior incidents alleged here are sufficiently similar to t h e current incident to count as a pattern. The key common element, made sufficiently clear in th e pleadings, is the alleged repeated use of excessive deadly force, often with fatal results. Thus, P l a i n t i ffs have alleged a custom or widespread practice in sufficient detail, similar enough in n a tu re to the alleged facts underlying the instant suit, to allow their pleadings to withstand the C ity's motion to dismiss. b. F a i lu r e to train

P l a in t iffs allege that Wiles, Allen and the City failed to properly train or supervise M a yo rga and Moreno in the use of deadly force. Pls.' Compl. ¶ 46. They further allege that the C i ty has a "custom, policy and practice of insufficiently and inadequately training officers in the p r o p e r use of deadly force." Pls.' Compl. ¶ 47. They argue that this failure to train and supervise

-11-

a m o u n t e d to gross negligence or deliberate indifference. Pls.' Compl. ¶ 46. The City argues that P la in tiffs fail to adequately allege any facts showing deliberate indifference. City's Mot. ¶ 11. "It is clear that a municipality's policy of failing to train its police officers can give rise to § 1983 liability." Brown v. Bryan Cnty., Okla., 219 F.3d 450, 457 (5th Cir. 2000) (subsequent a p p e a l after remand of Bryan Cnty., 520 U.S. 397) (holding that a sheriff's failure to train a c o u n ty deputy that resulted in constitutional violation could be county policy). Indeed, "the fa i l u r e to provide proper training may fairly be said to represent a policy for which the city is re s p o n s i b l e , and for which the city may be held liable if it actually causes injury." Id. (quoting C i ty of Canton, 489 U.S. at 390). Deliberate indifference is a key component of a failure to train c l a i m , as a failure to train claim supports § 1983 liability "only where the failure to train amounts to a deliberate indifference to the rights of the persons whom the [officers] come into contact." City of Canton, 489 U.S. at 388. If, in light of the duties assigned to specific officers, the need fo r more or different training is so likely to result in the violation of constitutional rights, the p o lic ym a k e rs of a city can reasonably be said to have been deliberately indifferent to the need. Id. at 390. For liability to attach in this circumstance, the identified deficiency in a city's training p ro gram must be closely related to the ultimate injury. Id. at 391. In a § 1983 claim for failure to train or supervise, the plaintiff must show that: "(1) the s u p e r v i s o r either failed to supervise or train the subordinate official; (2) a causal link exists b e tw e en the failure to train or supervise and the violation of the plaintiff's rights; and (3) the fa ilu r e to train or supervise amounts to "deliberate indifference" to the plaintiff's constitutional righ ts . Goodman v. Harris Cnty., 571 F.3d 388, 395 (5th Cir. 2009) (citing Smith v. Brenoettsy, 1 5 8 F.3d 908, 912 (5th Cir. 1998)). To establish deliberate indifference, "a plaintiff usually must d e m o n s tra te a pattern of violations and that the inadequacy of the training is obvious and

-12-

o b v i o u s ly likely to result in a constitutional violation." Id. (citing Cousin v. Small, 325 F.3d 627, 6 3 7 (5th Cir. 2003)). Proof of deliberate indifference generally requires a showing "of more than a single instance of the lack of training or supervision causing a violation of constitutional righ t s ." Burge v. St. Tammany Parish, 336 F.3d 363, 370 (5th Cir. 2003) (citing Thompson v. U p s h u r Cnty., 245 F.3d 447, 459 (5th Cir. 2001)). Deliberate indifference of this type is a more s trin gen t standard than simple or even heightened negligence. Piotrowski, 237 F.3d at 579 (c itin g Bryan Cnty., 520 U.S. at 407). A s stated above, Plaintiffs allege that Wiles, Allen and the City failed to train or supervise o ffic e rs Mayorga and Moreno in the proper use of deadly force. Pls.' Compl. ¶ 46. Plaintiffs a ls o allege that this failure to train was widespread and involved all El Paso Police Department o ffic e rs . Pls.' Compl. ¶ 47. Plaintiffs allege that a "direct causal connection existed between [W ile s , Allen, and the City's] failure to supervise and/or train officers Mayorga and Moreno and th e violation of Decedent's rights." Pls.' Compl. ¶ 46. As discussed above, Plaintiffs provide a lis t of thirty-two incidents of officers using allegedly excessive deadly force which support an i n f e r e n c e that the City of failed to train its officers in the proper use of deadly force, and that this fa ilu re to train perpetuated the pattern. Taken as true, this credibly demonstrates deliberate in d iffe re n c e to the rights of the public, including Martinez. Even with the higher pleading standards of Twombly Plaintiffs have alleged sufficient p rio r incidents to defeat Defendant's motion. See 550 U.S. at 555. Again, much of the case law o n establishing a pattern for failure to train resolve motions for summary judgment and "[t]his c a s e has obviously not progressed to that stage." Greenwood v. City of Yoakum, No. V-07-CV7 8 , 2008 U.S. Dist. LEXIS 82742, at *12-13 (S.D. Tex. Oct. 17, 2008). In Greenwood, at the m o tio n to dismiss stage, the court described the allegations as "somewhat broad" but held that the

-13-

a lle gatio n s were sufficient to allow the failure to train or supervise claim to proceed. Id. at *12. The court further held that "[a]t the least, Greenwood's assertions entitle[d] him to discovery." Id. at *13. Here, where Plaintiffs' allegations are asserted with some level of detail, Plaintiffs s h o u ld also at least be entitled to discovery ­ "dismissal is not appropriate when evidence may be a d d u c e d showing that a police officer has received no or inadequate training." Barr, 2006 U.S. D i s t. LEXIS 59402, at *14. c. P r o m u l g a te d by the official policymaker

A policy is promulgated by the municipal policymaker when it "results from the decision o r acquiescence of the municipal officer or body with `final policymaking authority' over the s u b je c t matter of the offending policy." Jett, 491 U.S. at 737. "Courts have consistently found th a t chiefs of police are official law enforcement policymakers for the purposes of municipal lia b i lity under § 1983." Kincheloe, 2009 U.S. Dist. LEXIS 96371, at *56. Plaintiffs must d e m o n s tra te that the final policymaking official for the municipality had actual or constructive k n o w le d ge of the policy. Webster, 735 F.2d at 842. The Fifth Circuit has held that "[a]ctual k n o w le d g e may be shown by such means as discussions at council meetings or receipt of written in fo r m a tio n . 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 e x a m p le , where the violations were so persistent and widespread that they were the subject of p r o l o n ge d public discussion or of a high degree of publicity." Bennett v. City of Slidell, 728 F.2d 7 6 2 , 768 (5th Cir. 1984) (en banc). P la in tiffs do not allege that the policymakers for the City, or that Wiles or Allen as the o ffic ia l law enforcement policymakers, had actual knowledge of the pattern of the use of e x c e s s i v e deadly force. Instead, they imply that the pattern of El Paso Police Department officers

-14-

u s in g excessive deadly force was widespread and persistent enough to impute constructive k n o w le d g e to the policymakers.2 S u ffic ie n tly numerous prior incidents of official misconduct may tend to prove the e x i s te n c e of a policy and acceptance of that policy by policymakers. Gonzalez v. Westbrook, 118 F . Supp. 2d 728, 734 (W.D. Tex. 2000). Where prior incidents are used to prove a pattern, they " m u s t have occurred for so long or so frequently that the course of conduct warrants the a ttrib u tio n to the governing body of knowledge that the objectionable conduct is the expected, a c c e p te d practice of city employees." Webster, 735 F.2d at 842. "Where the violations are fla gra n t or severe, the fact finder will likely require a shorter pattern of the conduct to be satisfied t h a t diligent governing body members would necessarily have learned of the objectionable p r a c tic e and acceded to its continuation." Id. T h e re is no bright line rule for determining when a number of incidents taken together c o m p r is e a pattern of conduct serious enough to impute constructive knowledge to municipal p o lic ym a k e rs . Pineda, 124 F. Supp. 2d at 1077. However, incidents cited by Plaintiffs appear to h a v e occurred for so long and are sufficiently numerous that they tend to show the existence of a c u s to m and knowledge and acceptance of that custom by policymakers. In Pineda, eleven in c id e n ts of warrantless searches were held not to be widespread enough to impute constructive k n o w le d ge to policymakers; however in Escobar v. City of Houston, twenty-six incidents of a c c i d e n t a l gun discharges were found to be sufficient to create a fact issue regarding the City's k n o w le d ge of the need for additional training. Pineda, 124 F. Supp. 2d at 330; Escobar v. City of H o u s to n , No. 04-1945, 2007 U.S. Dist. LEXIS 72706, at *118-19 (S.D. Tex. Sept. 29, 2007). Escobar, at the summary judgment phase, uses fewer incidents than in the present case. Thus, at
2

Neither Plaintiffs nor Defendants discuss this element of a § 1 9 8 3 claim in their 12(b)(6) briefs.

-15-

th e motion to dismiss stage, thirty-two incidents appear to be sufficiently numerous to infer k n o w le d ge of that custom by policymakers. Additionally, excessive use of deadly force can be d e s c r ib e d as flagrant or severe, which reduces the frequency and pattern length needed to e s ta b lis h constructive knowledge. The Court thus finds that the pleadings properly allege that the C ity, Wiles and Allen had constructive knowledge of the policy. d. M o v in g force behind the violation

T h e City next argues that Plaintiffs fail to address how any city policy or custom directly c a u s e d the deprivation of Plaintiffs' constitutional rights. City's Mot. ¶¶ 10, 11. Plaintiffs allege t h a t there was a "direct causal connection" between Wiles, Allen, and the City's failure to s u p e rv i s e and train officers Mayorga and Moreno and the violation of Martinez's constitutional r ig h t s . Pls.' Compl. ¶ 46. Plaintiffs further allege that the officers' unconstitutional actions were d i re c te d , encouraged and allowed by the policymakers. Pls.' Compl. ¶ 53. Plaintiffs allege that th e r e were customs of tolerating excessive force and using unnecessarily aggressive tactics, c re a tin g situations where officers are more likely to use excessive or deadly force, and then c o v e rin g up violations of constitutional rights. Pls.' Compl. ¶¶ 53(a)-(c). Lastly, Plaintiffs allege th a t, for years, Defendants failed to provide training after many other shootings and that all of th e s e policies and failures to train, supervise, and discipline were the direct and proximate cause o f the deprivation of Plaintiffs' constitutional rights. Pls.' Compl. ¶¶ 58, 59. When the facts alleged are viewed in a light most favorable to Plaintiffs, it may be in fe rre d that Mayorga and Moreno used excessive deadly force with the knowledge that no d i s c i p l in a r y action would be taken against them by the El Paso Police Department. This is s u ffic ie n t to allege that the City's policy was the "moving force" behind the constitutional v io la tio n . See Grandstaff v. City of Borger, 767 F.2d 161, 170 (5th Cir. 1985) ("Where police

-16-

o ffic e rs know at the time they act that their use of deadly force in conscious disregard of the righ ts and safety of innocent third parties will meet with the approval of city policymakers, the a ffi rm a t i v e link/moving force requirement is satisfied."); see also Rivera, 2006 U.S. Dist. LEXIS 8 3 3 7 6 , at *41. C. P l a i n t if f s ' state law claims are barred by governmental immunity

It is unclear from Plaintiffs' Complaint if Plaintiffs assert any state law claims. Though P l a i n t i ffs do not list state law claims in their four causes of action, Defendants challenge any state la w claims Plaintiffs' might be making. See generally Pls.' Compl., see City's Mot. ¶¶ 12-13, W i le s & Allen Mot. ¶ 11. The only place in the Complaint that Plaintiffs possibly make a state l a w claim is in paragraph eleven, under the Jurisdiction and Venue heading, when they state " [t]h i s is a civil rights, wrongful death/survival action," because wrongful death is a state law c la im . See Pl.'s Compl. ¶ 11; see also TEX. CIV. PRAC. & REM. CODE § 71.004. Paragraph eleven i s the statement that Defendants cite to when they address Plaintiffs' putative state law claims in th e ir motions. See City's Mot. ¶ 12, Wiles & Allen Mot. ¶ 11. But neither Plaintiffs nor D e fe n d a n ts address the state law claims in their respective Response and Reply. See generally P l s .' Resp. and Defs.' Reply. So, while it appears Plaintiffs did not intend to claim any state law c a u s e s of action, the Court will address the City's arguments regarding the dismissal of any p o s s i b l e state law claims. To the extent that there were any state law claims made, the City's M o tio n to Dismiss all state law claims is granted.3 D is m is s a l of any state law claim is appropriate because the City has governmental i m m u n i ty. As an initial matter, "in Texas[,] a governmental unit is immune from tort liability
3

W ile s and Allen's arguments in favor of dismissing any p o s s ib l e state law claims against them will not be addressed b e c a u s e both of these individuals have been dismissed from t h e lawsuit.

-17-

u n le s s the Legislature has waived immunity." Dallas Cnty. Mental Health and Mental R e t a r d a t io n Ctr. v. Bossley, 968 S.W.2d 339, 341 (Tex. 1998) (citing Harris Cnty. v. Dillard, 8 8 3 S.W.2d 166, 168 (Tex. 1994)); see also TEX. CIV. PRAC & REM. CODE § 101.001(3)(B) (d e fin in g "governmental unit" to include cities). Moreover, political subdivisions and m u n ic ip a l itie s in Texas "have long enjoyed immunity from suit when performing governmental fu n c tio n s ." City of Galveston v. State, 217 S.W.3d 466, 469 (Tex. 2007). A city's exercise of its p o lic e power has long constituted a governmental function. See Whitfield v. Paris, 19 S.W. 566, 5 6 7 (Tex. 1892). While this immunity can be waived, and cities' immunity from suit has been w a i v e d by the state legislature in a few general statutes,4 courts have consistently declined to im p ly waivers judicially. Reata Constr. Corp. v. City of Dallas, 197 S.W.3d 371, 375 (Tex. 2 0 0 6 ) ("We have generally deferred to the Legislature to waive immunity because the Legislature is better suited to address the conflicting policy issues involved."). Even the Legislature has m a n d ate d that no statute should be construed to waive immunity absent "clear and unambiguous la n g u a ge ." TEX. GOV'T CODE § 311.034. Plaintiffs do not claim that there has been a waiver of im m u n ity in this case. See generally Pls.' Compl. Even if a general waiver may be read as applying in this sort of case, a city's immunity is n o t waived if the claim arises out of an intentional tort. City of San Antonio v. Dunn, 796 S.W.2d 2 5 8 , 261 (Tex. Ct. App. 1990) (citations omitted). The Texas Tort Claims Act specifically e x e m p ts intentional torts from the waiver of immunity. TEX. CIV. PRAC. & REM. CODE § 101.057 (T h e Act "does not apply to a claim . . . arising out of assault, battery, false imprisonment, or any
4

An example of a general waiver in a statute states: A g o v e r n m e n t a l unit in the state is liable for "personal injury and d e a th so caused by a condition or use of tangible personal or r e a l property if the governmental unit would, were it a private p e r so n , be liable to the claimant according to Texas law." TEX. CIV. PRAC. & REM. CODE § 101.021(2).

-18-

o th e r intentional tort."). Excessive force is an intentional tort. Huong v. City of Port Arthur, 961 F . Supp. 1003, 1008-09 (E.D. Tex. 1997) ("Plaintiffs have described their claims arising from the s h o o t in g as the intentional tort of excessive force . . .[and] it is clear that Plaintiffs' claims consist o f intentional torts.); City of San Antonio v. Dunn, 796 S.W.2d at 261 (holding that there was no w a iv e r of municipal immunity under the Texas Tort Claims Act where claims arose out of the in te n tio n a l torts of excessive force and false arrest). Thus, with a presumption of immunity and a la c k of waiver, because the City was performing a governmental function through its police d e p a r t m e n t , and because the claim arose out of the intentional tort or excessive force, the City is im m u n e from state law claims. Accordingly, any such claims that may have been made by P la in tiffs are dismissed. III. C O N C L U SIO N Plaintiffs have sufficiently stated a claim under 42 U.S.C. §1983, but the City is immune fro m any state law claims. Accordingly, the City's Motion (Doc. No. 19) is GRANTED in part, a s to any state law claims, and DENIED in part, as to the § 1983 claims. Additionally, the Wiles & Allen Motion (Doc. No. 22) is DENIED as moot. S O ORDERED. S I G N E D on this 2 nd day of September, 2010.

______________________________________ K A T H LE E N CARDONE U N IT E D STATES DISTRICT JUDGE

-19-