Moody v. The City of Newport News, Virginia et al
Filing
45
AMENDED OPINION AND ORDER entered and filed 3/25/15: This matter is before the Court on a Motion to Dismiss, ECF No. 6, filed by Defendants, The City of Newport News, Virginia ("the City"), James D. Fox ("Chief Fox"), and Richar d W. Myers ("Chief Myers" or, collectively with the City and Chief Fox, "City Defendants"). After examining the briefs and the record, the Court determines that oral argument is unnecessary because the facts and legal contentions are adequately presented and oral argument would not aid in the decisional process. Fed. R. Civ. P. 78(b); E.D. Va. Loc. R. 7(J). For the reasons set forth in this Amended Opinion and Order, City Defendants' Motion to Dismiss, ECF NO. 6, is GRAN TED IN PART and DENIED IN PART. The Court GRANTS City Defendants' motion with respect to Plaintiff's claims against Chiefs Fox and Myers and DISMISSES those claims. The Court GRANTS City Defendants' motion with respect to Plaintiff 39;s claims against the City predicating Monell liability on an express policy and on a failure to supervise. The Court PROVIDES Plaintiff with leave to amend the Complaint against the City to cure all defects within twenty one (21) days after the en try of this Opinion and Order. If Plaintiff fails to adequately amend the Complaint within the period prescribed, Plaintiff's express policy and failure-to-supervise claims against the City will be dismissed with prejudice. The Court DENIES Cit y Defendants' motion, ECF No. 6, with respect to Plaintiff's claims against the City predicating Monell liability on the decision of a person with final policy making authority and the City's failure to train its officers in the constitutional limits on the use of deadly force. (See Order and Foot Notes for Specifics) (Signed by District Judge Mark S. Davis on 3/25/15). Copies provided as directed on 3/25/15. (ecav, )
UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Newport News Division
COREY MOODY,
Plaintiff,
Civil No.
4:14cv99
THE CITY OF NEWPORT NEWS,
VIRGINIA,
JAMES D. FOX,
IN HIS OFFICIAL CAPACITY,
RICHARD W. MYERS, IN HIS
OFFICIAL CAPACITY, DANIELLE
HOLLANDSWORTH, INDIVIDUALLY,
RUSSEL TINSLEY, INDIVIDUALLY,
RANDY GIBSON, INDIVIDUALLY,
and RYAN NORRIS,
INDIVIDUALLY,
Defendants.
AMENDED OPINION AND ORDER*
This matter is before the Court on a Motion to Dismiss, ECF
No. 6,
filed by Defendants,
("the City"), James D.
("Chief Myers"
or,
The City of Newport News,
Fox ("Chief Fox"),
collectively with
"City Defendants").
the
Virginia
and Richard W. Myers
City and
Chief
Fox,
After examining the briefs and the record,
the Court determines that oral argument is unnecessary because
the facts and
legal
contentions
are
adequately presented
and
The instant "Amended Opinion and Order" replaces the Opinion
and Order entered in this case on November 4,
2014,
ECF No.
33.
This
Amended Opinion and Order corrects a scrivener's error in the final
sentence of the first full paragraph of page 60 of the Court's
November 4, 2014 Opinion and Order by replacing the phrase "failureto-train" with the phrase
"failure-to-supervise."
However, the
Court's ruling in its November 4, 2014 Opinion and Order,
remains in full
effect.
ECF No.
33,
oral argument would not aid in the decisional process.
Civ. P. 78(b); E.D. Va. Loc. R. 7(J).
Fed. R.
For the reasons set forth
below, City Defendants' Motion to Dismiss is GRANTED IN PART and
DENIED IN PART.
I. FACTUAL AND PROCEDURAL HISTORY1
A.
1.
Background
The Parties
Corey Moody ("Plaintiff") is a resident of the Commonwealth
of Virginia.
Complaint fl 5, ECF No.l.
The City is a duly
incorporated municipality of the Commonwealth of Virginia.
The
City "is the legal entity responsible for . . . the Newport News
Police Department" (the "Police Department").
icL H 10.
Chief
Fox is a resident of the Commonwealth of Virginia and was "the
Chief of Police of the Newport News Police Department," employed
by the
City
or the
September, 2013.
Newport
Id^ fl 12.
News
Police
Department
"until
According to Plaintiff, as chief of
police, Chief Fox "both exercised and delegated his municipal
The facts of this case, drawn from Plaintiff's Complaint, are
assumed true for the purpose of deciding the motion currently before
the Court.
See Burbach Broadcasting Co.
Corp., 278 F. 3d 401, 406 (4th Cir. 2002).
of Del,
v.
Elkins Radio
The facts recited here are
not to be considered factual findings for any purpose other than
consideration of the pending motion. See Erickson v. Pardus, 551 U.S.
89, 94 (2007) (observing that, "when ruling on a defendant's motion to
dismiss, a judge must accept as true all of the factual allegations
contained
in
the
complaint") ;
Nemet
Chevrolet,
Ltd.
v.
Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir. 2009) <"[I]n
evaluating a Rule 12(b)(6) motion to dismiss, a court accepts all
well-pled facts as true and construes these facts in the light most
favorable to the plaintiff in weighing the legal sufficiency of the
complaint.").
final
decision
making
Division" ("PSD").
power
IcL f 13.
Commonwealth of Virginia,
the Police Department,
January 2014.
of
police,
to
Professional
Standards
Chief Myers is a resident of the
is currently the chief of police of
and has served in that capacity since
See id. 1 14.
Chief
the
Myers
According to Plaintiff, as chief
"both
exercised
and
delegated
municipal final decision making power to the [PSD]."
his
Id. f 15.
Through the delegation of final decision making power to the
PSD, Plaintiff alleges that the PSD makes final policy decisions
"with
respect
to
reviewing
police
liability" for City Defendants.
Ryan
Norris
Commonwealth
of
("Officer
Virginia,
misconduct"
that
Id. H 70.
Norris")
and
the
is
City
a
resident
"and/or"
of
Hollandsworth
("Officer
the Commonwealth of
Police
Department
Id. U 7.
Hollandsworth")
Virginia,
employed her
as
and
a
the
law
is
Norris,
a
resident
of
the
a
resident
the
officer.
is a resident of
and the City "and/or" the Police
("Officer Gibson"
Hollandsworth,
Police
"and/or"
Department employed him as a law enforcement officer.
Randy Gibson
the
Id. U 6.
enforcement
Russel Tinsley ("Officer Tinsley")
the Commonwealth of Virginia,
City
of
the
Department employed him as a law enforcement officer.
Danielle
"create
or,
and Tinsley,
Commonwealth
Id. H 8.
collectively with Officers
"Individual Defendants")
of
Virginia,
and
the
is
City
"and/or" the Police Department employed him as a law enforcement
Id. % 9.
officer.
Plaintiff claims that Chiefs Fox and Myers
"trained and supervised" Individual Defendants.
Id. U 16.
2. The December 12, 2012 Incident and Investigation
On
December
12,
2012,
at
around
7:00
p.m.,
Plaintiff
alleges that he "was lawfully operating a vehicle, registered to
his mother, upon the public roadway."
Id. H 21.
according to Plaintiff, he was unarmed,
or illicit substances that evening,
the vehicle.
Id. H1 27-28.
Plaintiff,
federal
Id. 1 23.
of
state
a
At that time,
had not consumed alcohol
and did not have drugs in
However, purportedly unbeknownst to
warrant
for
his
arrest
had
been
issued.
Although Plaintiff had been charged with violations
laws
and
those
charges
were
pending
resolution
on
December 12, 2012, he asserts that he "had attended all hearings
and court appearances associated with such charges."
id. H 24.
Officers Hollandsworth and Tinsley, in an unmarked vehicle,
pulled over Plaintiff's vehicle "on the 1-664 overpass near 35th
[S]treet and Madison Avenue in Newport News,
22.
In addition,
scene of the stop.
After
Officers
Id.
fl
Officers Gibson and Norris responded to the
Id. f 26.
Plaintiff
pulled
Hollandsworth
Plaintiff was operating.
least one officer,
Virginia."
and
Id.
over
to
Tinsley
K 29.
Officer Tinsley,
the
side
approached
of
the
the
road,
vehicle
Plaintiff alleges that at
see id.
U 38,
"had already
drawn his gun and pointed the gun at [Plaintiff] ."
id. U 30.
Officer Tinsley asked Officer Hollandsworth "Is this the guy?",
and Officer Hollandsworth "replied affirmatively."
id. HH 31/
38.
According to Plaintiff,
Plaintiff
Officer Tinsley then
"instructed
to place his hands outside the window of the car."
IcL fH 32, 38.
Plaintiff alleges that he "repeatedly asked why
he was being pulled over" and about "the nature of the charges
against him, and made "other inquiries" into the "unexplained,
aggressive encounter" with the officers.
Id.
% 33.
However,
the officers did not inform Plaintiff "as to the purpose for the
[officers'
actions."
Id^ fl 34.
Officer Tinsley began to
handcuff Plaintiff, to which Plaintiff "protested asking why he
was being arrested."
Id_;_ Iff 35,
Officer
"began
Tinsley
then
attempting to pull
38.
Plaintiff claims that
pulling
[Plaintiff]
[Plaintiff's]
arm
and
through the open window out of
the vehicle" and "began using profanity and yelling statements
such as,
XI will blow your head off.'"
Plaintiff
alleges
that
Officer
Id. H1I 36-38.
Hollandsworth
then
"fired
upon the vehicle from her position at the rear passenger side of
the vehicle."
Id^ % 41.
"Fearing for his life,
attempted to put the vehicle in neutral."
to
Plaintiff,
additional
"one
or more
six rounds
into
of
the
the
Id. U 42.
officers
vehicle
[Plaintiff]
fired at
According
least
an
immediately after or
simultaneously with Officer Hollandsworth's shots," id. 1 43,
striking the vehicle
with
"shots
from multiple directions."
Plaintiff attempted to take cover from the rounds "by leaning
over to the passenger side of the car as the car rolled forward
in neutral."
Id^ K 45.
"[T] wo of the bullets fired by the
[o] fficers struck [Plaintiff] in the leg and in his back, and
the bullet that struck Plaintiff's back "severed his spinal cord
causing
him permanent
paralysis."
id.
H
46-47.
"Officer
Tinsley was injured in the incident by shrapnel or glass from
the other officers' shots."
"[a]fter
Id^ f 48.
Plaintiff asserts that
the shooting subsided and the vehicle
coasted to a
stop, an additional unidentified officer dragged [Plaintiff] out
of the vehicle, pointed a gun at his head, and yelled at him to
tell
the officers where
According to Plaintiff,
the
gun
was
at no time
located."
id.
H
49.
during the encounter did
Plaintiff "reach[] into a console or glove box, into his coat,
or
[make]
any other furtive motion."
Id.
K 39.2
Plaintiff
claims that "[a]11 officers engaged in the unprovoked attack.
None of the officers took any steps to protect Plaintiff against
2In contrast to the Complaint, the 2012 PSD Annual Report states
that Plaintiff made furtive movements and that those furtive movements
caused detectives to fire their weapons at Plaintiff.
See Compl. Ex.
D at 6, ECF No. 1-4.
City Defendants argue that the Court must accept
the facts as stated in the 2012 PSD Annual Report, attached to the
Complaint as Exhibit
Plaintiff's Complaint.
D,
rather than the bare allegations in
However, for the reasons discussed below, the
Court concludes that, for the purposes of resolving this motion, the
statements in Exhibit D do not prevail over the allegations in the
Complaint.
the other officers' use of excessive force, despite being in a
position and having a duty to do so."
Plaintiff
alleges
that
the
Id. U 54.
actions
of
the
Individual
Defendants "were done pursuant to the preexisting and ongoing
deliberately indifferent official custom, practice, decisions,
policy,
"were
training,
done
.
and supervision" of the City Defendants and
.
. intentionally
...
Plaintiff's federally protected rights."
Following
the
shooting,
the
in
disregard
for
See id. U 65.
Police
Department
"searched
both the vehicle and the suspect thoroughly after the incident,"
but found no weapon or drugs on Plaintiff or
IcL
Kt
51-52.
Department]
there
"At
the
time
of
initially claimed in
was
an
[Plaintiff],"
exchange
icL
\
50;
of
the
incident,
statements
gunfire
however,
in the vehicle.
to
the
between
Plaintiff
the
[Police
media
that
police
and
asserts
that,
one
week after the incident, the Police Department admitted that "it
did not appear that the suspect fired a weapon."
The PSD,
a division of the Police Department "tasked with
internal investigation of use of police force,"
undertake
an
[Plaintiff]."
Id. H 53.
investigation
Id^ Jl 57,
59.
of
the
use
of
"purported to
force
Plaintiff alleges that the PSD
did not contact him to participate in the investigation.
60.
against
id. H
According to Plaintiff, "[t]he [PSD] failed to meaningfully
investigate
the
issue
of
use
of
excessive
force,
failing to contact [Plaintiff] for an interview.
The PSD publishes findings
including
Id. H 69.
on internal investigations on
the "use of police force" in an annual report.
See id.
58.
the
The
PSD
Defendants'
Annual
did
use
Report,
not
of
announce
force
a
finding
against
Plaintiff
published on April
4,
2013,
the "investigation was still pending."
also did not
announce
use of force against
a
finding on
Plaintiff
in
but
Individual
the
2012
the
PSD
indicated that
Id. Ht 61-62.
The PSD
Individual Defendants'
in the 2013 PSD Annual
Id. % 63.
published on March 6, 2014.
on
tH 57-
Report,
According to Plaintiff,
the PSD's "findings were not released in a comparable report and
lack of publication exhibits intent to conceal the investigation
of
the
Plaintiff
matters
alleged
alleges
that
in
[the]
the
Complaint."
actions
of
the
id.
PSD
U
"were
64.
done
pursuant to the preexisting and ongoing deliberately indifferent
official
custom,
supervision"
intentionally
of
practice,
the
...
protected rights."
City
in
decisions,
Defendants
disregard
policy,
and
for
"were
training,
and
done
Plaintiff's
federally
See id. U 65.
3. Broader Allegations Against City Defendants
In addition to
the
facts
of
Plaintiff's particular case,
Plaintiff alleges that the PSD "routinely ratifies the malicious
collusive conduct and unconstitutional actions of the police by
failing
to
contact
ignoring serious
victims
complaints
of
police
force
of excessive
and
force."
otherwise
id.
U 68.
Also, Plaintiff claims that "in the period before and since this
event,
the
[PSD]
has unfounded other complaints of excessive
force by law enforcement."
Id. t 72.
Specifically, on February
18, 2007, while Chief Fox served as chief of police, officers of
the Police department "shot and killed unarmed Robert L. Harper
during an attempt by six officers to arrest him after his bond
was revoked."
was involved
complaints
event."
Id^ H 73.
in that
and
Id.
Plaintiff alleges that Officer Tinsley
incident
investigations
U 74.
and "has
both
prior
deliberate
from
further
alleges
indifference
excessive
"ratified"
to
According to Plaintiff,
to
force
"a dangerous
that
the
the rights
by
police,"
environment
and
since
of
this
the PSD's actions
Id. % 70.
create liability for City Defendants.
Plaintiff
been the subject
City
of
Defendants
citizens
"with
free
"encouraged"
have
to be
and
of police
brutality"
by
"ongoingly failing to properly or neutrally investigate citizen
complaints of excessive force" and "tolerating, encouraging, and
permitting
collusive
statements
situations."
Id.
K 66.
decisions
the
PSD
of
by
Likewise,
are
"further
involved
officers
in
such
Plaintiff alleges that the
evidence
deliberately indifferent custom . . . [and]
of
the
ongoing
policy ... of the
[City Defendants] of tolerating and encouraging lawlessness and
disregard for federal rights."
Id. K 71.
With respect to the City Defendants, Plaintiff also asserts
that City Defendants have a policy of permitting officers to use
excessive
force;
failing
to
supervise
failing to train police officers.
police
Id.
officers;
1) 67.
and
According to
Plaintiff, City Defendants have also ratified and encouraged a
"dangerous
environment
of
police
brutality"
by
"failing
adequately punish unconstitutional uses of force."
to
id. U 66.
Similarly, Plaintiff claims that City Defendants have shown
deliberate indifference to Plaintiff's constitutional rights by
failing to train their officers and failing to supervise their
officers in the "appropriate constitutional limits on the use of
force,
knowing that
these members
of
law enforcement
pose a significant risk of injury to the public."
therefore
Id. H 67.
In
particular, according to Plaintiff,
[i]n
light
of
the duties
...
of
those
police
officers that participate in arrests[,] . . . the need
for
specialized
training
and
supervision
is
so
obvious,
and
the
inadequacy of
the
training and/or
supervision is so likely to result in the violation of
constitutional and federal rights [,] that the failure
to provide such specialized training and supervision
is deliberately indifferent to those rights.
Id. H 119.
B. Procedural History
On
July
31,
2014,
Plaintiff
filed
his
Complaint
in
this
Court alleging that the City and Individual Defendants deprived
10
Plaintiff of his constitutional rights in violation of 42 U.S.C
§
1983
("Section
Officers
1983").
Hollandsworth,
Tinsley,
individual capacities.
No.
1.
Plaintiff
Gibson,
Id^ H1 6-9.
Chiefs Fox and Myers,
City.
ECF
and
in
Norris
sued
their
Plaintiff has also sued
in their official
Id^ H11 10, 12, 14.
has
capacities,
and the
On August 29, 2014, City Defendants
filed a Motion to Dismiss the Complaint pursuant to Federal Rule
of Civil Procedure 12(b)(6).
ECF No. 6.
In their Memorandum in
Support of the Motion to Dismiss, City Defendants ask the Court
to dismiss
the
claims
against
Chiefs
Fox and Myers
because
Plaintiff seeks monetary damages, rather than injunctive relief,
from those Defendants only in their official capacity, rendering
those claims duplicative of the claim against the City.
Supp. Mot. to Dismiss
at 4,
ECF No. 7.
Mem.
City Defendants also
contend that the Complaint fails to state a claim upon which
relief can be granted against the City because the Complaint
does not provide a basis for holding the City liable for the
actions of the Individual Defendants.
of their motion,
any
See id. at 5.
City Defendants assert that,
inconsistency,
the
Court
should
In support
to the extent of
consider
the
factual
allegations in the exhibits attached to the Complaint to control
over the Complaint's factual allegations.
Id. at 6.
On September 9, 2014, Plaintiff filed a Brief in Opposition
to
City Defendants'
Motion to Dismiss.
11
ECF No.
8.
Plaintiff
contends
that he has
stated a claim against
City Defendants
because: Plaintiff has identified the PSD as a final delegated
policy
decision
maker
and
alleged
a policy
adequately investigate and punish misconduct,
of
failing
see id.
to
at 4-5;
Plaintiff has alleged that City Defendants failed to adequately
train their officers
Plaintiff
has
adequately
in the use of
alleged
supervise
that
the
their
force,
City
officers
see
id.
Defendants
through
at
failed
"failing
5-7;
to
to
investigate claims of excessive force," id. at 8; and Plaintiff
has alleged, through facts "similar to those made in support of
the claim pursuant to a policy,"
that City Defendants had a
practice of failing to properly investigate officers'
use of
excessive force "persistent and widespread" enough to constitute
a
"custom
or
usage
with
the
force
of
law,"
id.
at
9.
In
addition, Plaintiff "concedes that there is no longer a need to
sue
Defendant[]
Myers
or
Defendant
Fox
in
their
personal
capacity if the Defendant City remains a party to the suit."
Id. at 10.
Lastly, Plaintiff requests that the Court grant him
leave to amend the
Complaint
if
the
Court
determines
Complaint does not sufficiently state a claim.
On
September
15,
2014,
City
to
Plaintiff's
claim
Defendants
that
he
the
Id.
Memorandum in Support of the Motion to Dismiss.
response
that
filed
a
Rebuttal
ECF No.
adequately
9.
In
alleged
municipal liability based on a policy or custom, City Defendants
12
contend that the "failure to investigate or take disciplinary
action following a subject incident cannot support a claim of
municipal
liability,
because
an
after-the-fact
inadequate
investigation or discipline could not have been the legal cause
of
[P]laintiff's injury."
argue that Plaintiff's
Defendants'
failure
Id.
at 4.
City Defendants further
allegations with
to
train
or
respect
supervise
to
the
the
City
Individual
Defendants are too conclusory to state a claim upon which relief
can be granted.
See id. at 5-7.
II.
STANDARD OF REVIEW
Federal Rule of Civil Procedure 12(b)(6)
of
a
complaint,
or
a
claim within
a
permits dismissal
complaint,
based
on
the
plaintiff's
"failure to state a claim upon which relief can be
granted."
Fed.
R.
Civ.
P.
pursuant to Rule 12(b)(6)
8(a) (2),
which
requires
12(b)(6).
A
motion
to
must be read in conjunction with Rule
"a
short
and
plain
statement
claim showing that the pleader is entitled to relief,"
Civ.
P.
what
8(a) (2),
the
Corp.
v.
original).
pleading
as
to
"'give
the defendant
of
the
Fed.
R.
fair notice of
. . . claim is and the grounds upon which it rests,'"
Bell Atl.
Conley
so
dismiss
v.
Gibson,
Twombly,
355
550
U.S.
U.S.
41,
544,
47
555
(2007)
(1957))
(quoting
(omission
in
The United States Supreme Court has interpreted the
standard
set
forth
in
Rule
8 (a)
as
requiring
that
a
complaint include enough facts for the claim to be "plausible on
13
its
face"
and
thereby
"raise
a
right
to
relief
above
the
speculative level on the assumption that all the allegations in
the complaint are true (even if doubtful in fact)."
570 (internal citations omitted).
is
"not akin
more
than
U.S.
at
the
possibility"
that
556 U.S. 662,
678
Iqbal,
556).
plausibility
allows
'probability requirement, ' but
sheer
Ashcroft v.
550
The plausibility requirement
to a
a
when
In
the
court
to
other
the
Because a Rule 12(b)(6)
complaint without
claim
factual
reasonable
"'must accept as
the
of
complaint'
the
true all
and
E.I,
du Pont
435,
440
content
that
that
the
Id. at 663.
sufficiency of a
a district
court
factual allegations contained
Kensington
684
F.3d 462,
de Nemours
(4th Cir.
disputes,
facial
'draw all reasonable inferences in favor
plaintiff.'"
Montgomery County,
the
liable.
has
inference
motion tests the
of
is
for
(quoting Twombly,
"[a]
pleads
resolving factual
it asks
defendant
(2009)
words,
plaintiff
draw
a
defendant is liable for the misconduct alleged."
in
Id. at 555,
&
Co.
2011)).
v.
Volunteer
467
Fire
(4th Cir.
Kolon
2012)
Indus.,
Accordingly,
Dep't
(quoting
Inc.,
"'Rule
v.
637
12(b)(6)
F.3d
does
not countenance . . . dismissals based on a judge's disbelief of
a complaint's
factual allegations.'"
(quoting
Neitzke
(omission
in
v.
Williams,
original).
motion to dismiss
A
490
complaint
"even if it appears
14
Twombly,
U.S.
may
550 U.S.
319,
327
therefore
at
555
(1989))
survive
a
'that a recovery is very
remote and unlikely.'"
232,
236
Id.
(quoting Scheuer v. Rhodes,
416 U.S.
(1974)) .
In considering a typical Rule
12(b)(6)
motion to dismiss
for failure to state a claim upon which relief may be granted,
the "court evaluates the complaint in its entirety,
as well as
documents attached or incorporated into the complaint."
Indus.,
637 F.3d at 448
Trimble
Navigation
Ltd.,
(citing Sec'y of
484
Phillips v. LCI Int'l Inc.,
A
district
court
"may
F.3d
700,
Kolon
State for Defence v.
705
(4th Cir.
2007);
190 F.3d 609, 618 (4th Cir. 1999)).
consider
documents
attached
to
the
complaint or the motion to dismiss 'so long as they are integral
to the complaint
Dep't,
684
and authentic.'"
F.3d at 467
Kensington Volunteer Fire
(quoting Philips v.
Pitt Cnty.
Mem'1
Hosp., 572 F.3d 176, 180 (4th Cir. 2009)).
III.
The
crux
of
the
DISCUSSION
dispute
between
Plaintiff
and
City
Defendants with respect to this motion is the extent to which
Plaintiff has stated a claim against City Defendants under the
rigorous
standards
Monell.
In
should
dismiss
light
the
for
of
municipal
liability
Plaintiff's
concession
claims
against
Chiefs
duplicative of Plaintiff's claim against
established
that
Myers
the
and
the City,
in
Court
Fox
as
Pl.'s Br.
Opp'n Defs.' Mot. to Dismiss at 10, the Court will GRANT City
15
Defendants'
motion with respect to the claims against Chiefs
Myers and Fox.
Plaintiff contends that he has alleged sufficient facts to
demonstrate municipal liability on a number of bases, including:
(1) pursuant to municipal policy, both expressly and through the
decision of a person with final policy making authority;
failure to train officers in the use of force;
(3)
(2)
failure to
supervise officers' use of force; and (4) through a practice of
failing to investigate police officers' use of force that is so
widespread as to constitute a custom with the force of law.
id. at 4-9.
See
Before turning to the merits of the instant motion,
the Court will determine the extent to which it should consider
the exhibits attached to the Complaint in resolving this motion.
The
Court
will
establishing
then
set
the
general
liability
municipal
forth
requirements
under
Section
for
1983.
Thereafter, the Court will address, in turn, the extent to which
Plaintiff has alleged sufficient facts to state a claim against
the
City
under
each
of
Plaintiff's
purported
theories
of
municipal liability.
A. The Exhibits to the Complaint
First,
the Court considers whether the factual statements
in the exhibits Plaintiff has attached to the Complaint control
over the factual allegations contained in the Complaint itself.
For
the
reasons
stated
below,
16
the
Court
holds
that
the
statements in the exhibits do not control to the extent they are
inconsistent with the factual allegations in the Complaint.
City Defendants correctly state the general rule regarding
the relationship between an exhibit and the complaint.
Under
Federal Rule of Civil Procedure 10(c), "[a] copy of a written
instrument that is an exhibit to a pleading is a part of the
pleading for all purposes."
As the Fourth Circuit has stated,
"[i]n the event of conflict between the bare allegations of the
complaint and any exhibit attached [to the complaint,] ... the
exhibit prevails."
S. Walk at Broadlands Homeowner's Ass'n,
Inc. v. OpenBand at Broadlands, LLC, 713 F.3d 175, 182 (4th Cir.
2013)
(second alteration
in original)
(citing
Fayetteville
Investors v. Commercial Builders, Inc., 936 F.2d 1462, 1465 (4th
Cir.
1991)).
However, courts, including this Court, have recognized an
important exception to that general rule when the document
attached to the complaint contains "unilateral statements" made
by a defendant.
Although the Fourth Circuit has not expressly
recognized such an exception to the general rule, the Sixth
Circuit has held:
Where a plaintiff attaches to the complaint a document
containing unilateral statements made by a defendant,
where a conflict exists between those statements and
the
plaintiff's
allegations
in
the
complaint,
and
where the attached document does not itself form the
basis for the allegations, Rule 10(c) does not require
a plaintiff to adopt every word within the exhibits as
17
true
for purposes
of
pleading
simply because
the
documents were attached to the complaint to support an
alleged fact.
Jones v. Citv of Cincinnati, 521 F.3d 555, 561 (6th Cir. 2008)
(internal quotation marks and citation omitted); see also N^
Ind. Gun & Outdoor Shows, Inc. v. City of South Bend, 163 F.3d
449, 455 (7th Cir. 1998) ("Rather than accepting every word in a
unilateral writing by a defendant and attached by a plaintiff to
a complaint as true, it is necessary to consider why a plaintiff
attached the documents,
who authored the documents,
reliability of the documents.").
Thus,
and the
in certain instances
where the plaintiff's claim is not based upon the exhibit, it is
appropriate
to
consider
the
factual
allegations
in
the
complaint, rather than statements in an exhibit attached to the
complaint, even if those allegations contradict statements in
the exhibit.
In
Jones
v.
City
of
Cincinnati,
the
decedent's
representatives and relatives brought a Section 1983 action
against a city after members of its police department allegedly
killed the decedent through the use of excessive force when
holding down the decedent.
See 521 F.3d at 557-58.
The
plaintiffs attached, as exhibits to the complaint, transcripts
of
interviews
of
police
officers
by
a
"Cincinnati
Citizen
Complaint Authority investigator" and excerpts from "the Citizen
Complaint Authority report on the incident."
18
Id^ at 561.
Although the defendants had argued that the court was required
to accept as true the statements in the exhibits that cast doubt
on the allegations in the complaint, the Jones court held that
the
statements
in
the
exhibits
complaint's factual allegations.
did
not
control
over
the
Id^ According to the court,
we treat the exhibit as an allegation that the
officers made the statements in the transcripts and we
treat that allegation as true. Thus, we accept as true
that
on
officer
June
put
24,
2004
weight
on
Officer
Pike
Jones's
back
said that
no
during
the
handcuffing process. . . . We do not accept as true,
however, that Officer Pike's statement is accurate or
true; this is a question of credibility and weight of
the evidence that is not before a court considering a
motion to dismiss.
Id.
Therefore, Jones stands for the proposition that a court
need
not
accept
as
true
for
all
purposes
a
defendant's
unilateral statement in an exhibit attached to a complaint.
In Pinder v. Knorowski, this Court applied the reasoning in
jones and concluded that statements in an exhibit did not trump
the factual allegations in a complaint.
736-37 (E.D. Va. 2009)
(Morgan, J.).
660 F. Supp. 2d 726,
The plaintiff in Pinder
brought a Section 1983 action against multiple police officers
alleging, among other things, that the officers had conducted an
unlawful search of his residence and unlawfully seized him.
id. at 729-30.
See
The plaintiff attached as an exhibit to his
complaint an affidavit of one of the officers that contained
statements
that
contradicted the
19
factual allegations
in the
complaint.
See id. at 736.
In holding that the affidavit did
not control over the factual allegations of the complaint, the
Pinder court recognized that "no Fourth Circuit cases have
considered this particular issue" but determined that the Jones
court's
reasoning was
sound.
Id,_ at
736-37.
The
court
emphasized that the plaintiff had not attached the affidavit "to
prove the facts in the affidavit," especially because the
plaintiff alleged "within the complaint that the contents of the
affidavit are not to be trusted."
Id^ at 737.
Court
of
did
not
assume
the
truth
the
Therefore, the
factual
statements
contained in the affidavit because it would "make little sense"
to take the "untested self-serving assertions" in the affidavit
"as true and use them to dismiss [the]
[p] laintif f' s claim."
Id.
In this case, to some extent, Exhibit D to the Complaint
contradicts
example,
the
factual
allegations
in
the
Complaint.
For
the Complaint alleges that Plaintiff "at no time
reached into a console or glove box, into his coat, or made any
other furtive motion."
1 38.
On the other hand, on page 6 of
the PSD Annual Report 2012, the report states that a police
officer fired her weapon into Plaintiff's vehicle "based upon
the
furtive
movement
of
the
offender"
Detective saw the furtive movement."
20
and
that
Compl. Ex. D at 6.
"another
Pinder and Jones indicate that it would "make little sense"
to accept as true the account of the December 12, 2012 incident
contained in Exhibit D.
Exhibit D is a unilateral statement
made by the PSD of its findings concerning the December 12, 2012
incident, similar to the affidavit and report in Jones and the
police officer's
affidavit
in Pinder.
The gravamen of
Plaintiff's claim based on policy and custom is that the City is
liable for the alleged deprivation of Plaintiff's constitutional
rights because its police department's process for investigating
police officers' use of force was inadequate.
Just as the
Pinder court refused to accept statements in an exhibit as true
because
the
complaint
contained
allegations
that
those
statements were false, 660 F. Supp. 2d at 737, this Court will
not assume the truth of the statements in Exhibit D regarding
the December 12,
2012 incident because that Exhibit is the
product of an investigative process that Plaintiff alleges is
inadequate, e^, Compl. 11 69.
It would "make little sense" to
conclude that the factual statements in the PSD Annual Report
2012 controlled over the allegations in the Complaint when the
central allegations of the Complaint challenge the sufficiency
of the investigative process by which the PSD generated the
report.
Accordingly, the Court will resolve any inconsistency
between
the
exhibits
to
the
Complaint
and
the
factual
allegations in the Complaint itself in favor of the Complaint.
21
The Court will treat Exhibit D as an allegation that the PSD
made a report concerning the December 12, 2012 incident in its
annual report; however, the Court will not accept as true the
factual account of the incident stated in the report.
B. Monell Liability
Next, the Court sets forth the general requirements that
Plaintiff must establish to state a plausible claim against the
City under Section 1983.
The Court will then address, in turn,
each of Plaintiff's theories of liability.
Title 42 U.S.C. § 1983 provides in relevant part:
Every
person
who,
under
color
of
any
statute,
ordinance, regulation, custom, or usage, of any State
or Territory or the District of Columbia, subjects, or
causes to be subjected, any citizen of the United
States or other person within the jurisdiction thereof
to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall
be liable to the party injured in an action at law,
suit in equity, or other proper proceeding for redress
Thus, "to establish liability under § 1983, a plaintiff must
show that the defendant acting under color of law, violated the
plaintiff's federal constitutional or statutory rights, and
thereby caused injury."
Woodson v. City of Richmond, 2 F. Supp.
3d 804 (E.D. Va. 2014) (citing Brown v. Mitchell, 308 F. Supp.
2d 682, 692 (E.D. Va. 2004)).
"Section 1983 is a vehicle for
the vindication of pre-existing federal rights rather than an
22
independent source of substantive rights."
Id,, (citing Brown,
308 F. Supp. 2d at 692).
Municipalities
are
"persons"
under
Section 1983
and,
therefore, "[a] municipality or other local government may be
liable under [Section 1983] if the governmental body itself
'subjects' a person to a deprivation of rights or 'causes' a
person 'to be subjected' to such deprivation."
Thompson, 131 S. Ct. 1350, 1359 (2011)
Connick v.
(citing Monell v. New
York City Dep't of Social Servs., 436 U.S. 658, 692 (1978)).
However, "under § 1983 local governments are responsible only
for 'their own illegal acts.'"
Id^ (emphasis in original)
(quoting Pembaur v. Cincinnati, 475 U.S. 469, 479 (1986)).
Municipalities are not vicariously liable under § 1983 for their
employees' actions under a theory of respondeat superior.
See
id. (citations omitted).
For Plaintiff to impose liability upon the City, Plaintiff
must show that the City deprived him of a constitutional right
'"through an official policy or custom.'"
Lytle v. Doyle, 326
F.3d 463, 471 (4th Cir. 2003) (quoting Carter v. Morris, 164
F.3d 215, 218 (4th Cir. 1999)).
A policy or custom for which a municipality may be
held liable can arise in four ways:
express
policy,
such
as
a written
(1)
through an
ordinance
or
regulation; (2) through the decisions of a person with
final policymaking authority; (3) through an omission,
such as a failure to properly train officers, that
'manifest [s] deliberate indifference to the rights of
23
citizens';
or
(4)
through a practice
that
is
so
'persistent and widespread' as to constitute a 'custom
or usage with the force of law.'
Id. {alteration in original) (quoting Carter, 164 F.3d at 217).
Therefore, a plaintiff can rely on those four possible theories
of liability to attribute a deprivation of constitutional rights
to a municipality.
However,
it is not enough for a § 1983 plaintiff merely to
identify conduct properly attributable to the
municipality. The plaintiff must also demonstrate
that, through its deliberate conduct, the municipality
was the "moving force" behind the injury alleged. That
is a plaintiff must show that the municipal action
was taken with the requisite degree of culpability and
must demonstrate a direct causal link between the
municipal
action
and
the
deprivation
of
federal
rights.
Bd. of Cnty. Comm'rs of Bryan Cntv. v. Brown, 520 U.S. 397, 404
(1997) (emphasis in original). Here, Plaintiff contends that
the City is liable on each of the four grounds stated in Lytle.
As an initial matter, to state a municipal liability claim
under any of the theories set forth in Lytle, Plaintiff must
first allege sufficient factual matter to demonstrate that he
has been deprived of his constitutional rights.
In this case,
the alleged deprivation of Plaintiff's constitutional rights
occurred when the Individual Defendants shot Plaintiff during
the December 12, 2012 stop.
Thus, to state a Section 1983 claim
against the City, as a threshold matter, Plaintiff must allege
facts sufficient to raise, beyond a speculative level, a claim
24
that at least one of the Individual Defendants deprived him of
his constitutional rights.
City Defendants have presented little argument contesting
liability on the basis that Plaintiff suffered no underlying
deprivation of his constitutional rights for which the City
might be held liable.
City Defendants only discuss the legal
significance of the Individual Defendants'
conduct in the
portion of their Rebuttal Memorandum concerning Plaintiff's
failure-to-train claim.
at 6.
There,
See Rebuttal Mem. Supp. Mot. to Dismiss
City Defendants defend the conduct of
the
Individual Defendants by asserting that:
The Complaint, taken as a whole and including the
Exhibits, on which the Court is allowed to rely, does
not allege a mere unarmed man who is stopped by police
and subsequently shot.
The Complaint alleges the
circumstances of
(1)
a known felon,
(2) wanted for
possession of a firearm, (3) reaching furtively, (4)
putting his vehicle in motion while an officer was
reaching into the vehicle trying to apprehend him, and
(5) being shot while he was still behind the wheel of
the vehicle because a fellow officer was concerned
about the safety of the reaching officer.
Id. (citing Compl. Ex. D) .
However, for the reasons stated
above, to the extent City Defendants rely on the facts contained
in Exhibit D to contradict the allegations in the Complaint, the
Court considers the Complaint controlling.
Although City Defendants have, at best, only indirectly
argued that Plaintiff has failed to state a claim against the
City
because
the
Individual
Defendants
25
did
not
violate
Plaintiff's constitutional rights,
Defendants
contested
the
issue,
assuming,
the
arguendo,
Complaint
that
contains
sufficient factual matter to state a plausible claim that at
least one of the Individual Defendants deprived Plaintiff of his
constitutional rights.
Assuming the truth of the allegations in
the Complaint, the actions of the Individual Defendants in
shooting Plaintiff, even though he was unarmed and made no
furtive movements presenting a potential threat to the officers,
present a plausible claim that the officers unlawfully seized
Plaintiff in violation of his rights under the Fourth Amendment
to the United States Constitution.
See Henry v. Purnell, 652
F.3d 524, 531-32 (4th Cir. 2011) (en banc) (quoting Tennessee v.
Garner, 471 U.S. 1, 3 (1985)) (stating that "[a] police officer
who shoots a fleeing suspect without 'probable cause to believe
that the suspect poses a significant threat of death or serious
physical injury to the officer or others' violates that
suspect's Fourth Amendment rights."); cf_^ Lee_v. City of
Richmond, Civil Action NO. 3:12cv471, 2013 WL 1155590, at *3
(E.D. Va.
Mar.
19,
2013)
(unpublished)
(concluding,
in a
municipal liability Section 1983 action where the plaintiff had
alleged that police officers shot plaintiff's decedent while he
was unarmed, that "[e]ven the most cursory examination of the
Amended Complaint illustrates that [the plaintiff] has alleged a
legally sufficient § 1983 Fourth Amendment Claim, for excessive
26
and
deadly
force,
against
[the
individual
officers]).
Therefore, for the purposes of resolving this motion, Plaintiff
has sufficiently alleged that the conduct of at least one of the
Individual Defendants deprived him of his constitutional rights.
Thus, for Plaintiff to state a claim against the City, Plaintiff
must only show that the City,
with the required level of
culpability, caused that deprivation of his rights.
1. Express Policy
Plaintiff first contends that an express policy of the City
deprived him of his constitutional rights.
However, Plaintiff
has failed to allege sufficient factual matter to establish
beyond a speculative level that any deprivation of Plaintiff's
rights was attributable to an express policy of the City.
A
municipality
may
deprive
a
plaintiff
of
his
constitutional rights, triggering Monell liability under Section
1983, through an express policy embodied in written ordinances
or regulations.
The Fourth Circuit has described the United
States Supreme Court's jurisprudence as characterizing "the
enactment of legislation as the prototypical conduct that can
give rise to liability under Monell."
Berkley v. Common Council
of City of Charleston, 63 F.3d 295, 299 (4th Cir. 1995)
banc).
Indeed,
(en
"[t]he easiest cases in which to find an
official policy are those cases, like Monell itself, where the
local government formally and as a body makes a decision which,
27
when executed by the body or by its employees, gives rise to a
constitutional violation."
Sheldon N. Nahmod, Civil Rights and
Civil Liberties Litigation § 6:8 (4th ed. 2014).
The Supreme Court has held that it is improper for courts
to apply "a heightened pleading standard," beyond that of
Federal Rule of Civil Procedure 8, in Section 1983 municipal
liability cases.
See Leatherman v. Tarrant Cnty. Narcotics
intelligence & Coordination Unit, 507 U.S. 163, 168-69 (1993).
However, to survive a motion to dismiss, the Complaint must
allege factual matter beyond "a formulaic recitation of the
elements of a cause of action" and "'naked assertion[s]' devoid
of 'further factual enhancement.'"
Iqbal, 556 U.S. at 678
(quoting Twombly, 550 U.S. at 556-57); see also Francis v.
Giacomelli, 588 F.3d 186, 192-93 (4th Cir. 2009).
Under Iqbal, even applying the liberal pleading standard of
Federal Rule of Civil Procedure 8,
concerning
an
express
policy
Plaintiff's allegations
of
violating
Plaintiff's
constitutional rights do not state a claim upon which relief can
be granted. In this case, Plaintiff appears to argue that the
City has an express policy that violated Plaintiff's
constitutional rights.
According to Plaintiff, «[i]t is the
longstanding deliberately indifferent . . . policy of the
Defendant City ... to permit officers to use excessive force
against
individuals
when
such
28
use
is
unnecessary
and
unjustified."
that
the
Compl.
City has
U 67.
a
However,
policy of
Plaintiff's allegation
permitting
officers
to use
excessive force is conclusory because it is a "naked assertion
devoid of further factual enhancement."
Other
than
permitting
the
mere
assertion
officers
to
use
that
the
excessive
Iqbal,
560 U.S.
City has
force,
at 678.
a policy
the
of
Complaint
contains no factual matter suggesting that the City, through its
City Council, enacted any formal policy that deprived Plaintiff
of his constitutional rights.
1380,
1388
(4th Cir.
1987)
Cf_;_ Spell v. McDaniel,
(stating that
824 F.2d
"where there
official statement respecting specific police conduct,
is no
it will
be difficult if not impossible to imply an official municipal
policy directly authorizing conduct at odds with federal and
state
constitutions
and
laws").
The
facts
alleged
in
the
Complaint do not establish, beyond the speculative level, that
the City formally promulgated an express policy that caused the
Individual
rights.
Defendants
Accordingly,
to
violate
Plaintiff's
the Court will GRANT
constitutional
City Defendants'
motion with respect to any claim that the City had an express
policy that violated Plaintiff's constitutional rights.
2. Decisions of a Person with Final Policy Making Authority
Plaintiff next argues that the City deprived Plaintiff of
his
constitutional
rights
through
the
decisions
of
the
PSD
because the City delegated its final policymaking authority to
29
Chiefs Fox and Myers, who then delegated that authority to the
PSD.
See Compl. 111 13, 15, 18, 70.
According to Plaintiff, the
PSD made decisions with the City's final policy making authority
with respect to "reviewing police misconduct."
to
the
extent
"mechanism
the
for
PSD
failed
internal
excessive use of
to
adequately
investigation
force,"
Plaintiff
Id^. 1 70.
and
Thus,
establish
punishment
contends that
a
of
failure is
attributable to the City as the decision of a person with final
policymaking authority.
See PL's Br. Opp'n Defs.' Mot.
to
Dismiss at 5-6.
As stated above, under Monell a municipality may violate a
Plaintiff's constitutional rights
"through the decisions of a
person with final policymaking authority."
471.
"To
qualify
as
a
'final
Lytle, 326 F.3d at
policymaking
official,'
a
municipal official must have the responsibility and authority to
implement final municipal policy with respect to a particular
course of action."
238
F.3d
518,
523
(quoting Pembaur,
municipal
Riddick v. Sch. Bd. of City of Portsmouth,
(4th
475 U.S.
policy may be
Cir.
2000)
(emphasis
at 482-83).
in
original)
"Authority to make
granted directly
by a legislative
enactment or may be delegated by an official who possesses such
authority."
Pembaur, 475 U.S. at 483.
"The question of who
possesses final policymaking authority is one of state law."
Riddick,
238 F.3d at 523
(citing Pembaur,
30
475 U.S.
at 483).
"[T]o determine
which officials
possess
final
policymaking
authority for the allegedly unconstitutional action in question,
we must look to 'the relevant legal materials, including state
and local positive law, as well as custom or usage having the
force of law.'"
Id^ (quoting Jett v. Dallas Independent Sch.
Diet., 491 U.S. 701, 737 (1988)).
Here, Plaintiff has sufficiently alleged that the decisions
of the PSD qualify as the decision of a person with "the
responsibility and authority to implement final municipal policy
with respect to" reviewing police misconduct.
apparently
do
not
contest
that
the
PSD
City Defendants
exercised
final
policymaking authority because they do not challenge Plaintiff's
assertion to that effect.
However, a survey of state and local
positive law and the allegations in the complaint concerning
delegation indicate that, for the purposes of resolving this
motion,
Plaintiff
has
sufficiently
alleged
that
the
PSD
exercised final policymaking authority with respect to reviewing
the use of excessive force.
State law vests the authority to establish a police force
in the City and provides that a locality's chief law-enforcement
officer is its chief of police.
Under the Code of Virginia,
Any locality may, by ordinance, provide for the
organization of its authorized police forces. Such
forces shall include a chief of police, and such
officers and other personnel as appropriate.
When a
locality provides for a police department, the chief
31
of police shall be the chief law-enforcement officer
of that locality.
Va. Code Ann. § 15.2-1701.
Thus, under state law, a City has
the authority to establish a police force and, if it does so,
the
chief
officer.
of
police
is
that
force's
chief
law-enforcement
This suggests that Chiefs Fox and Myers had final
policy making authority over the Police Department as the City's
chief law-enforcement officers.
Therefore,
state positive law
supports Plaintiff's allegations that Chiefs Fox and Myers had
final policy making authority.
Under local positive law,
it appears that the City has
vested the chief of police with authority to make policy with
respect to the Police Department.
According to the Newport News
City Code:
(a) There is hereby established a police department,
which shall consist of the chief of police, to be
appointed by the city manager, and such other officers
and employees organized into such bureaus, divisions
and other units as may be provided by ordinance or by
orders or directives consistent therewith.
(b)
The chief
of police
shall be the
head of
the
police department and shall, under the supervision of
the city manager, have general management and control
of the several bureaus,
the department.
divisions and other units of
. . .
Newport News, Va., Code § 32-1.
Subsection (b) of Newport News
City Code § 32-1 suggests that the chief of police has final
policy making authority over the police department because the
chief is "the head of the police department" and "shall have
32
general management and control" over the bureaus and divisions
of the Police Department.4 See id,.; Johnson v. City of Richmond,
NO. Civ.A.3:04 CV 340, 2005 WL 1793778, at *4 (E.D. Va. June 24,
2005) (unpublished) (finding that a chief of police had final
policy making authority over the "conduct of police activity"
because the city code granted the chief "general management and
control of the department of police"); cf^ Fenner v. Dawes, 748
F. Supp. 404, 408 (E.D. Va. 1990)
("the delegation of law
enforcement policy-making authority to a police chief will
permit a police chief to make policy attributable to the
municipality.").
Accordingly,
local positive law supports
Plaintiff's allegation that the City delegated its policy making
authority over the police department to the chief of police.
Taken
together
with
state
and
local
positive
law,
Plaintiff's allegation that Chiefs Fox and Myers delegated their
policy making authority over reviewing police misconduct to the
4Arguably, the fact that the chief of police exercises authority
"under the supervision of the City Manager" might indicate that the
City Manager has final policy making authority over the police
department. However, in light of City Defendants' failure to dispute
the authority of the chief of police and the absence of any indication
within the Newport News City Code of the manner in which the City
Manager exercises supervision over the chief of police, cf^ Lytle, 326
F 3d at 472 (holding that a city manager was the final policymaker for
purposes of section 1983 liability because of provisions in the
Norfolk City Code requiring that "all orders, rules, and regulations
applicable to the entire police department must be approved by the
City Manager" other than some police "standard operating procedures"),
the Court concludes that local positive law supports Plaintiff's
allegation that Chiefs Fox and Myers had final policy making authority
over the Police Department.
33
PSD suffices to establish, for the purposes of this motion, that
the PSD exercises final policy making authority over reviewing
police misconduct.
In addition to state and local positive law,
the Court may consider "custom or usage having the force of law"
in determining whether a person exercises
making authority of a municipality.
523.
Here,
Plaintiff has,
the
final policy
See Riddick, 238 F.3d at
in a somewhat conclusory fashion,
alleged that Chiefs Fox and Myers delegated their authority to
the PSD.
Compl.
HI 13,
15.
However,
in addition to those
allegations, the 2012 PSD Annual Report further states that the
PSD prepared it in accordance with the "Police Department's
policy (ADM - 270)" which "requires that an annual summary of
complaints be presented to the Chief of Police."
at
1.
The
statement
in
the
report
allows
Compl. Ex. D
the
Court
to
reasonably infer that the chief of police has delegated final
policy making authority regarding review of the use of force by
police officers to the PSD because the existence of an official
policy requiring the PSD to report a summary of complaints to
the chief of police suggests that the chief of police has
delegated the authority to investigate complaints to the PSD,
otherwise, the PSD would have no reason to report to the chief
of police and no basis for the information contained in the
report.
Accordingly, given the state and local positive law and
factual allegations in the Complaint and Exhibit D, the Court
34
concludes that
exercised,
City's
sufficiently alleged that
through delegation from Chiefs
final
officers'
Plaintiff has
policy
making
authority
the PSD
Fox and Myers,
over
reviewing
the
police
use of force.
Importantly,
however,
even
though
Plaintiff
has
alleged
sufficient facts to attribute to the City the actions of the PSD
in reviewing police officers' use of force, Plaintiff must also
allege facts establishing that the decision reflects deliberate
indifference to the risk that a deprivation of constitutional
rights will follow the decision and a direct causal link between
the City's conduct, through the PSD, and the alleged deprivation
of federal rights.
Cnty.,
520 U.S.
sufficient
Riddick,
at 404.
facts
to
23 8 F.3d at 524;
Thus,
establish
see also Bryan
Plaintiff must also present
the
elements
of
culpability-
through deliberate indifference-and causation.
With respect to final-policy-maker-decision liability,
the
principle dispute between City Defendants and Plaintiff concerns
the causation element
causation before
though
less
than
and,
addressing
clearly,
therefore,
the Court
culpability.
that
the
PSD's
will
consider
Plaintiff
alleges,
official
actions
through the "mechanism for internal investigation and punishment
of excessive use of force" caused the deprivation of Plaintiff's
rights
because
an
inadequate
mechanism
for
investigation
provides no "accountability or deterrent for misconduct."
35
PL's
Br. Opp'n Defs.' Mot. to Dismiss at 5.
Drawing all reasonable
inferences in a light most favorable to Plaintiff, Plaintiff in
essence
argues
that
the
PSD
is
responsible
for
the
alleged
deprivation of Plaintiff's rights because the PSD's failure to
adequately investigate claims that officers used excessive force
encouraged
"disregard
Compl.
1
71,
Defendants
to
for
which,
use
the
federal
inferentially,
excessive
rights
force
against
citizens,"
the
caused
of
Individual
Plaintiff.
In
response, City Defendants contend that a "failure to investigate
or take disciplinary action following a subject incident cannot
support a claim of municipal liability[] because an after-thefact inadequate investigation . . . could not have been the
legal cause of [P]laintiff's injury."
Mot.
Dfs.' Rebuttal Mem. Supp.
to Dismiss at 4.
Where a plaintiff has alleged that a municipality's failure
to adequately investigate his claim that officers used excessive
force against him caused those officers to use excessive force
against him,
the temporal reality of linear time prevents a
plaintiff from relying solely on the deprivation of his rights
to
establish
municipal
liability
based
on
a
failure
to
investigate claims of excessive force.
Cf. Cordova v. Aragon,
569
(emphasis
F.3d 1183,
(stating
in
1194
a
(10th Cir.
2009)
failure-to-discipline
case
in original)
that
"basic
principles] of linear time prevent us from seeing how conduct
36
that
occurs
after
the
alleged
caused that violation").
violation
Therefore,
in a failure to investigate case,
predicated
on a
Civil
Action
Mar.
19,
No.
2013)
Columbia,
has
single
2013
(unpublished)
" [i]t is
somehow
municipal liability cannot be
Lee
WL
v.
City
1155590,
(citing
Byrd
of
Richmond,
*8
at
(E.D.
v.
297 F. Supp. 2d 136, 139 (D.D.C. 2003)).
stated,
have
"[i] t is well settled that,
incident."
3:12cv471,
could
District
Va.
of
As one court
logically impossible for an investigation
that post-dates the alleged constitutional deprivation to have
caused that deprivation."
No.
05-CV01013-REB-KLM,
23,
2008)
Casey v. City of Fed. Heights,
2008
(unpublished);
[defendant's]
see
826 F.
Sheriff's Office,
alleged
WL
grist
future,
should
it
deprivation
use of force
[the
failure
to
investigate
before a
[plaintiff]
excessive
have
resulted
alleges
to
shooting believed a municipal
F.3d 1197,
2011)
("though
the
alleged
claim
in
the
arise
in
the
constitutional
a plaintiff must
[officers]
[policy]
rights with impunity."
1205 (8th Cir.
Roanoke
possibly might serve
investigate
court could conclude the
[Plaintiff's]
June
. . . the antecedent excessive
Rather,
failed
force
Colo.
City of
(W.D. Va.
. . . .").
municipality]
(D.
2d 928
not
[plaintiff]
*2
Supp.
another
could
at
also Lavender v.
excessive use of force against
as
2559443,
Civil
1999).
37
previous
at
"show that
incidents
the time of
the
allowed them to violate
Mettler v. Whitledge, 165
Here,
though it is a close case,
Plaintiff's allegations
concerning the PSD's failure to investigate the use of excessive
force against him are sufficient to survive City Defendants'
motion to dismiss.
Although many of Plaintiff's allegations are
conclusory, his allegations concerning the use of force against
another individual,
Robert L.
Harper-though somewhat skeletal-
sufficiently raise an inference that the failure of the PSD to
investigate prior uses of excessive force caused the alleged
deprivation of Plaintiff's rights.
The Complaint contains a number of allegations that, alone,
do not present sufficient factual matter to state a claim
against
the
City
based
on
the
PSD's
alleged
failure
adequately investigate the incident involving Plaintiff.
example,
Plaintiff
alleges
that:
the
City
to
For
"encouraged,
tolerated, ratified, and acquiesced to a dangerous environment
of police brutality by . . . failing to adequately punish
unconstitutional uses
properly
or
of force
neutrally
[and]
by ongoingly failing to
investigate
citizen
complaints
of
excessive force," Compl. 1 66; the PSD "routinely ratifies the
malicious
collusive
conduct
and
unconstitutional
actions
of
police by . . . ignoring serious complaints of excessive force,"
id.
1 68;
reviewing
and
police
the
decisions
misconduct"
of
the
PSD
"encourage[ed]
"with
respect
lawlessness
to
and
disregard for the federal rights of citizens," id^ 11 71-72.
38
Those allegations are conclusory because they do not contain any
factual
enhancement
allegations
County,
Md.
are
creating
true.
See,
a
reasonable
e.g.,
Civil Action No. DKC 11-1984,
Apr.
10,
2012)
county
"consistently
record
acts
(unpublished)
of
failed
excessive
to
force,
inference
Ross
v.
that
Prince
the
George's
2012 WL 1204087, at *9 (D.
(finding
allegations
investigate,
thereby
that
discipline,
demonstrating
a
and
gross
disregard for its citizens' Fourth Amendment Rights . . ." to be
conclusory
and
inadequate
to
state
a
claim
for
failure
to
investigate).
However,
Plaintiff
enhances
those
conclusory
allegations
concerning the PSD's allegedly routine
failure to investigate
excessive
allegations
another
force
use
of
claims
with
In
force.
factual
Paragraph
73
of
the
concerning
Complaint,
Plaintiff alleges that in 2007 officers of the Police Department
shot
and
attempt
killed an unarmed man,
by
revoked."
six
officers
Although
to
Robert
arrest
Plaintiff
L.
him
does
Harper,
after
not
his
allege
"during an
bond
any
was
facts
regarding whether the PSD adequately investigated that incident,
the alleged facts concerning the Harper incident along with the
broader allegations
excessive
concerning routine
force claims
permit
failure
a reasonable
to investigate
inference that the
PSD failed to adequately investigate the Harper incident.
39
Further,
Plaintiff
alleges
before and since this event,
that
the
allegation is somewhat ambiguous,
claims
of
the
period
Compl. 1 72.
Though that
it further suggests, at least
that the PSD has failed to adequately investigate
the
use
of
excessive force.
City State's Attorneys Office,
*17-18
"in
has unfounded other complaints of
excessive force by law enforcement."
implicitly,
PSD
(4th
Cir.
Sept.
24,
Cf.
F.3d
2014)
Owens v.
Baltimore
, 2014 WL 4723803, at
(published)
(holding
that
allegations of "reported and unreported cases from the period of
time before and during the events complained of establish[ing]
that
the
[defendant]
had
a
custom,
policy,
or
practice
of
knowingly and repeatedly [violating constitutional rights]" were
non-conclusory).
raising
an
Accordingly,
inference
that
through the factual allegations
the
PSD
failed
to
investigate the Harper incident and the allegations
adequately
of other
unfounded complaints of excessive force, Plaintiff has presented
sufficient
factual matter to raise a plausible claim that the
City caused the deprivation of Plaintiff's rights through the
actions of the PSD in failing to adequately investigate claims
concerning
the
use
of excessive
force,
including Plaintiff's
incident.
Although City Defendants'
briefs present
little argument
concerning whether the historical actions of the PSD demonstrate
deliberate indifference to a risk that violation of Plaintiff's
40
constitutional rights will
follow from the
after considering the law and allegations,
PSD's
the Court concludes
that Plaintiff has alleged sufficient factual
culpability to survive City Defendants'
the Supreme Court has stated,
stringent standard of fault,
decisions,5
matter regarding
motion to dismiss.
"'deliberate
indifference'
As
is a
requiring proof that a municipal
actor disregarded a known or obvious consequence of his action."
Connick,
131 S. Ct.
decision maker was
constitutional
deliberate
F.
2014)
378,
1360.
"aware of,
violations'"
indifference.
Supp.
2d
(published)
397
at
that
are
Gallimore
sufficient
v.
factual
the
matter
same
to
to
Henrico
at *3
(quoting City of Canton v.
Here,
show that
the
and acquiesced in, a pattern of
, 2014 WL 3867557,
(1989)).
sufficient
Allegations
establish
Cnty.
Sch.
(E.D. Va.
Harris,
allegations
demonstrate
that
Bd. ,
Aug.
5,
489 U.S.
present
causation—the
allegations that raise a reasonable inference that the PSD had
failed to investigate other, prior claims of excessive force-are
sufficient, for the purposes of this motion, to allege a pattern
of
constitutional
violations.
Furthermore,
those
allegations,
5 With respect to Plaintiff's claim attributing liability to the
City on the basis of the PSD's decisions in investigating excessive
force claims,
City Defendants focus their argument on the causation
element in Riddick, rather than on culpability.
See Mem. Supp. Mot.
to Dismiss at 8; Rebuttal Mem. Supp. Mot. to Dismiss at 4.
However,
to state a claim against the City, Plaintiff must demonstrate both
causation and culpability.
See Riddick, 238 F.3d at 524 (citations
omitted).
Thus, the Court also considers whether the Complaint
alleges sufficient facts to demonstrate culpability.
41
when coupled with the allegation that
see Compl.
1 65,
purpose
of
"aware
of"
Gallimore,
the PSD acted knowingly,
also sufficiently establish, at least for the
surviving
those
a
motion
violations
2014 WL 3867557,
to
dismiss,
and
that
"acquiesced
at *3.
Thus,
the
in
PSD
was
them,"
see
Plaintiff has alleged
sufficient facts
to establish beyond the speculative level that
the
with
PSD
acted
therefore,
deliberate
indifference.
will DENY City Defendants'
The
Court,
motion with respect to the
claim of municipal liability based on the PSD's decisions as a
policy maker with final authority.
3. Omission Manifesting Deliberate Indifference to Plaintiff's
Rights
Plaintiff also alleges that City Defendants are liable for
the
alleged
omissions
deprivation
manifesting
of
Plaintiff's
deliberate
rights
indifference
through
to
two
Plaintiff's
rights, namely, failure to train Newport News police officers in
the constitutional
to supervise
limitations
officers'
on
the use
use of force.
of
force
Next,
and failure
the Court
will
consider, in turn, each of these theories of liability.
a.
As stated above,
1983
based
However,
on
the
its
Failure to Train
a city can be held liable under Section
failure
Supreme
Court
to
adequately
has
liability for failure to train.
train
underscored
the
its
employees.
narrowness
According to the Court,
42
of
In
limited
decision
circumstances,
not
to
a
train certain
local
government's
employees
about
legal duty to avoid violating citizens'
their
rights may
rise to the level of an official government policy for
purposes of § 1983. A municipality's culpability for a
deprivation of rights is at its most tenuous where a
claim turns on a failure to train.
Connick, 131 S. Ct. at 1359 (citing Oklahoma City v. Tuttie, 471
U.S.
808,
822-823
(1985)
(plurality opinion)).
To establish
liability for failure to train, a plaintiff must show:
(1)
[that]
the
subordinates
plaintiff's
constitutional
[that]
supervisor
the
subordinates
thus
actually
violated
or statutory rights;
failed
to train properly
illustrating
a
the
(2)
the
'deliberate
indifference' to the rights of the persons with whom
the subordinates come into contact; and (3) [that]
this failure to train actually caused the subordinates
to violate the plaintiff's rights.
Gallimore,
2014
WL 3867557,
at
*3
(alterations
in original)
(citations omitted).
In this case,
for the reasons stated above,
the Court has
determined that Plaintiff has alleged sufficient facts to raise
a plausible claim that at least one of the Individual Defendants
deprived Plaintiff of his constitutional rights, satisfying the
first element
regarding
stated in Gallimore.
failure-to-train
liability
Thus,
the primary issues
concern
the
second
and
indifference element,
the
third element.
With respect to the deliberate
Supreme Court has emphasized that the "deliberate indifference"
requirement imposes a high standard.
43
[D]eliberate
indifference
is
a
stringent
standard
of
fault,
requiring
proof
that
a
municipal
actor
disregarded a known or obvious consequence of his
action.
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. The city's policy of
inaction in light of notice that its program will
cause
constitutional
violations
is
the
functional
equivalent of a decision by the city itself to violate
the
Constitution.
for a
A
less
stringent
standard of
failure-to-train claim would result
in de
fault
facto
respondeat superior liability on municipalities.
Connick,
marks
131 S.
Ct.
omitted).
indifference
at
1360
A
(internal
Plaintiff
element
in
two
citations and quotation
can
allege
ways.
First,
the
deliberate
"'[m]unicipal
liability for a failure to train may be proper where it can be
shown that policymakers
pattern
of
were
constitutional
aware
of,
and acquiesced in,
violations.'"
Gallimore,
2014
a
WL
3867557, at *3 (quoting City of Canton v. Harris, 489 U.S. 378,
397
(1989)).
Second,
"'a
failure
to
train claim also can be
based on a supervisory power's failure to train its employees
concerning an obvious constitutional duty that the particular
employees
are
certain
Mitchell, 308 F.
to
face.'"
Supp. 2d 682,
Id.
clear
and
that
is
"the
one
underlying
that
the
Brown
701 (E.D. Va. 2004)).
to impose liability under the second method,
establish
(quoting
expected to confront with some regularity."
44
However,
the Plaintiff must
constitutional
subordinates
v.
right
reasonably
Id.
is
quite
can
be
(quoting Brown,
308 F. Supp.
second
method
however,
has
2d at
the
704-05) .
of
proving
Court
will
alleged
facts
Plaintiff relies primarily on the
the
deliberate
consider
the
sufficient
indifference
extent
to
to
which
establish
element;
Plaintiff
deliberate
indifference under either method.
Plaintiff
has
not
alleged
sufficient
establish deliberate
indifference
had
of,
an
"awareness
and
constitutional violations."
context of
of
events
by showing
acquiesced
As
upon
the
involving
in,
No.
shootings,
existence
the
the
of
shooting
validity
a
pattern
of
Civ.A.3:04
CV
340,
Va. June 24, 2005)
indifference
on
one
Connick,
shown
based
must
pattern of
the
policymakers
a
in
allege
incidents
[the
a
pattern
facts
pattern
constitutional
to
of
such
of
a
claim
excessive
force
by
police
in
plaintiff's]
1793778,
at
*6
establish
the
violations,
existence
of
Id.
at
*7;
"a
or to
see
also
(finding that the Plaintiff had not
indifference
violations
(E.D.
to establish deliberate
constitutional
case."
the
Johnson v. City of
sufficiently similar to each other,
131 S. Ct. at 1360
deliberate
Thus,
WL
of
of
citizens
2005
(unpublished).
Plaintiff
to
one court has recognized in the
course of performing their official duties."
Richmond,
that
matter
failure-to-train claims based on an alleged pattern
police-involved
"depends
factual
through
because
the
a
pattern
incidents
of
cited
similar
by
the
plaintiff were not "similar to the violation at issue" so as to
45
"put
[the
defendant]
on
notice
that
specific
training
was
necessary to avoid this constitutional violation.").
Here,
Plaintiff's
allegations
constitutional violations
the Complaint,
properly
conclusory,
at
their
officers
deliberate
indifference
See Compl.
11 67,
to
118.
sufficient to raise
of,
and acquiesced in,
a
pattern
best.
of
Throughout
see
allegations
that
Lee,
that
Plaintiff's
plausible
such
2013
at
WL
"training was
constitutional
showed
rights.
those allegations are
claim that
the
City
"knew
*3, because such allegations are
1155590,
inadequate
at
*7
injury
as
a
result
(holding
. . . the
training constituted deliberate indifference
constitutional
failure
a pattern of constitutional violations,"
2014 WL 3867557,
conclusory,
and
However, alone,
not
of
a
Plaintiff alleges that Defendants have failed to
train
Gallimore,
are
concerning
that
inadequate
. . . and the risk
of
such
deliberate
indifference ...
is very obvious" were a formulaic recitation
of
a
the
that
elements
did
of
not,
cause
without
of
action
additional
and
facts,
were
mere
state
conclusions
a
claim
for
failure-to-train liability).
Importantly,
the
Plaintiff's additional factual allegation that
City's police
officers
"shot and killed unarmed Robert
L.
Harper during an attempt by six officers to arrest him" does not
sufficiently establish,
City
knew
of,
and
beyond
acquiesced
the
in,
46
speculative
a
pattern
of
level,
that
the
constitutional
violations similar to the alleged December 12,
Plaintiff's
rights.
Plaintiff
has
not
2012 violation of
connected
the
use
of
force against Harper to any failure on the part of the City to
train its officers.
the
use
of
force
Plaintiff has not
part
of
a
Indeed,
Plaintiff has not even alleged that
against
Harper
shown that
pattern
of
the
was
excessive.
incident
constitutional
or
any
other
In
short,
involving Harper was
violations
incident,
of
which
a
part.
Plaintiff's
incident,
was
Accordingly,
without any further factual allegations to bolster
Plaintiff's conclusory allegations that the City failed to train
its officers in a manner demonstrating deliberate indifference,
the
Court
concludes
that
Plaintiff
has
failed
to
allege
sufficient facts to state the element of deliberate indifference
through acquiescence in a pattern of constitutional violations.
Nevertheless,
constitutional
deliberate
City
even
deprivations,
indifference
failed
absent
to
train
Plaintiff
element
its
allegations
can
through
officers
of
a
also
pattern
satisfy
allegations
"concerning
that
an
of
the
the
obvious
constitutional duty that the particular employees are certain to
face."
Gallimore
example
of
employees
2014
"an obvious
WL
3 867557,
at
constitutional
are certain to face"
The
duty"
is that of
duty concerning the use of deadly force.
Harris,
*3.
that
"particular
a police
officer's
In City of Canton v.
the Supreme Court specifically noted that
47
paradigmatic
city policymakers know to a moral certainty that their
police officers will be required to arrest fleeing
felons. The city has armed its officers with firearms,
in part to allow them to accomplish this task. Thus,
the
need
to
train
officers
limitations on the use of
said to be
"so obvious,"
in
the
constitutional
deadly force
that
failure
.
to
.
. can be
do
so could
properly be characterized as "deliberate indifference"
to constitutional rights.
Canton,
489
U.S.
at
391
n.
10.
Likewise,
this
Court
has
recognized that "the failure to provide adequate training in the
use of deadly force constitutes deliberate indifference because
officers
the
are
certain
consequences
Johnson,
to
of
face
the
2005 WL 1793778,
to
so
doing
need
apply such
are
permanent
force
and
and
severe."
at *8.
In this case, the Complaint contains sufficient allegations
to plausibly establish the
element
of
deliberate
indifference
based on the City's alleged failure to train its police officers
concerning
certain
to
an
obvious
face.
constitutional
Plaintiff
has
duty
alleged
the
that
officers
"the
are
need
for
specialized training ... is so obvious" and the "inadequacy of
the training ... is so likely to result in the violation of
constitutional and federal rights
provide
such
indifferent
to
because
the
of
specialized
those
training
rights
"duties
. . ."
and
such
that the
...
as
those
responsibilities
officers that participate in arrests."
is
"failure to
deliberately
described
of
Compl.
those
1 119.
herein"
police
Thus,
read in a light most favorable to Plaintiff, he alleges that the
48
police
officers
that
participate
in
arrests
require
special
training because of the obvious risk, absent such training, that
an armed officer might unconstitutionally seize a suspect,
yet,
the City has not provided them with such specialized training.
In light of the Supreme Court's statement in Canton about the
obvious
need
to
fleeing felons,
dismiss,
satisfy
train
train
armed
tasked
with
arresting
for the purposes of surviving this motion to
Plaintiff
has
alleged
the deliberate
claim
officers
through
a
sufficient
indifference
his
factual
element of a
allegations
concerning
basis
to
failure-toan
obvious
constitutional duty the City's officers were certain to face.
Finally,
to state a failure-to-train claim, Plaintiff must
also establish that
actually
caused
the
the
City's
failure
deprivation
Gallimore, 2014 WL 3867557, at *3.
to
of
train its officers
Plaintiff's
rights.
That is, Plaintiff must show
that the City's "'failure to correct the known practice
[was]
such as to make the specific violation almost bound to happen,
sooner or later, rather than merely likely to happen in the long
run.'"
Johnson,
marks omitted)
2005 WL
1793778,
(quoting Spell v.
at
*10
McDaniel,
(internal quotation
824 F.2d 1380,
1391
(4th Cir. 1987)).
In this
instance,
Plaintiff's allegations establish beyond
the speculative level that the City's alleged failure to correct
the Police Department's training deficiencies made an incident
49
such as the December 12,
or later."
properly
"Indeed,
train
officers
claim
viable
the
in
constitutional
constitutional
in
the
use
a pattern of
same
the
factor
force
deadly
force
regarding
of
those
liability can be
found
context
one
use
of
a
Id.
failure-to-train
absent
officers
the
is
alleged violations."
that renders
violations—that
duty
of
in which municipal
the absence of
In other words,
sooner
that is a principal reason that failure to
narrow circumstances
even in
2012 incident "bound to happen,
a
have
pattern
an
deadly
of
obvious
force
and are
certain to face the need to apply such force—also indicates that
the failure to train officers in the appropriate constitutional
limits
on
the
use
of
deadly
force
makes
the
constitutional rights "almost bound to happen,
Therefore,
Plaintiff
has
alleged
sufficient
deprivation
of
sooner or later."
factual
matter
to
raise a plausible right to relief against the City based on the
City's
alleged
constitutional
will DENY
failure
limits
on
to
the
City Defendants'
train
use
of
its
deadly
officers
force.
motion with respect
in
The
the
Court
to Plaintiff's
failure-to-train claim.
b. Failure to Supervise
In addition to alleging that the City deprived Plaintiff of
his
constitutional
employees,
basis
for
rights
through
Plaintiff also appears
liability,
that
the
50
its
failure
to assert,
City
to
train
its
as an independent
deprived
him
of
his
constitutional
Thus,
rights
by
failing
to
supervise
its
officers.
Plaintiff appears to argue that the City is liable as a
supervisor for the purported misconduct of the police officers
that it supervises.
the
Fourth
Circuit
As an initial matter, it is not clear that
has
established that
principles apply to municipalities,
supervisory liability
although other courts have
suggested that municipalities might be liable for failure to
supervise an officer.
See Liebe v. Norton,
(8th
also Martin A.
Cir.
1998) ; see
Litigation
However,
has
Claims
&
Defenses
§
157 F.3d 574,
Schwartz,
7.18[B][1]
(4th
Section
ed.
579
1983
2014).
even applying those principles to the City, Plaintiff
failed
to
allege
sufficient
factual
matter
to
raise
a
plausible right to relief against the City on the basis of a
failure to supervise.
To state a claim for supervisory liability under Section
1983, a Plaintiff must allege facts establishing three elements.
A plaintiff must show:
"(1) that the
knowledge that
that posed a
constitutional
plaintiff; (2)
knowledge was
supervisor had actual or constructive
his subordinate was engaged in conduct
pervasive and unreasonable risk of
injury to citizens like *662 the
that the supervisor's response to that
so inadequate as to show deliberate
indifference to or tacit authorization of the alleged
(3)
that
there was an
offensive
practices,
and
affirmative
causal
link between
the
supervisor's
inaction
and
the
particular
suffered by the plaintiff."
51
constitutional
injury
Willis v.
2013)
Blevins,
966 F.
Supp.
2d 646,
661-62 (E.D. Va.
(quoting Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir.
1994)).
Plaintiff
Thus,
must
to
state a supervisory liability claim,
establish
three
elements:
knowledge,
deliberate indifference, and causation.6
With respect to the knowledge element, Plaintiff must
show:
(1) the supervisor's knowledge of (2) conduct engaged
in by a subordinate (3) where the conduct poses a
pervasive and unreasonable risk of constitutional
injury to the plaintiff. Establishing a pervasive and
unreasonable risk of harm requires evidence that the
conduct is widespread, or at least has been used on
several different occasions and that the conduct
engaged in by the subordinate poses an unreasonable
risk of harm of constitutional injury.
Shaw v.
Stroud,
13 F.3d 791,
799
(4th Cir.
1994)
(internal
quotation marks and citations omitted); see also Willis, 966 F.
Supp. 2d at 662.
In this case, Plaintiff's failure-to-supervise claim fails
because
he
has
not
alleged
sufficient
factual
establish the knowledge element of such a claim.
matter
to
Plaintiff
asserts a number of broad allegations regarding the failure-to6The United States Supreme Court's decision in Connick requiring
a plaintiff to show deliberate indifference in a failure-to-train
claim and its emphasis that "[a] less stringent standard of fault for
a failure-to-train claim would result in de facto respondeat superior
liability" indicates that the Court must at least require Plaintiff to
demonstrate deliberate indifference to state a claim against the City
predicated on failure-to-supervise liability.
131 S. Ct. at 1360.
Otherwise, the Court would be imposing respondeat superior liability
on the City, in contravention of the Court's holding in Monell. See
436 U.S.
at 691.
52
supervise
"failed
claim.
to
According
supervise
.
to
Plaintiff,
. . deputies
in
City Defendants
the
appropriate
constitutional limits on the use of force, knowing that these
members of law enforcement therefore pose a significant risk of
injury to the public," Compl. 1 67, and "failed to properly . .
supervise [their] officers in a manner amounting to deliberate
indifference to the constitutional rights of Plaintiff," Compl.
1 118.
However,
those
insufficient, without more,
allegations
are
conclusory,
and
to raise, beyond the speculative
level, Plaintiff's right to relief on the failure-to-supervise
claim because they are "naked assertion[s]
factual enhancement."
devoid of further
Iqbal, 560 U.S. at 678; cf^ Lee, 2013 WL
1155590, at *7 (holding that allegations that "training was
inadequate ... the inadequate training constituted deliberate
indifference ... and the risk of constitutional injury as a
result of such deliberate indifference ... is very obvious"
were a formulaic recitation of the elements of a cause of action
and were mere conclusions that did not,
without additional
facts, state a claim for failure-to-train liability).
None of Plaintiff's allegations present sufficient factual
matter to satisfy the sub-elements of the supervisory liability
knowledge element as stated in Shaw.
Under Shaw, to state a
claim for supervisory liability Plaintiff must show that the
City had knowledge of conduct by a subordinate that is
53
"widespread, or at least has been used on several different
occasions and that the conduct engaged in by the subordinate
poses an unreasonable risk of harm of constitutional injury."
13 F.3d at 799 (citing Slakan v. Porter, 737 F.2d 368, 373-74
(4th Cir. 1984)).
Plaintiff has failed to allege such facts for
reasons similar to his failure to state a failure-to-train claim
based on a pattern of constitutional violations.
The only
factual allegation suggesting that the alleged violation herethe excessive use of deadly force-occurred on any different
occasion,
much
less
"several
occasions,"
see
id, at
799,
concerns the 2007 shooting of Robert L. Harper, see Compl. 1 73.
However, Plaintiff has not connected that shooting to the use of
force against him in any way, much less alleged that it provided
the City with "knowledge that its subordinates [were] engaged in
conduct
that
posed
a pervasive
and
unreasonable
constitutional injury to citizens like Plaintiff."
risk
of
See Shaw, 13
F.3d at 799 (internal quotation marks and citations omitted);
Cf. rqss, 2012 WL 1204087, at *9 (holding that a plaintiff
failed to state a claim based on conclusory allegations that a
locality failed to adequately supervise officers in the proper
use
of
force
where
allegations of known,
the
complaint
"provided
no
factual
widespread conduct by [the locality's
employees comparable to that alleged as to [the plaintiff]").
Accordingly, Plaintiff has failed to allege sufficient facts to
54
state a failure-to-supervise claim against the City and the
Court will GRANT the City's motion and dismiss Plaintiff's
failure-to-supervise claim.
4.
As
a final
theory
of
Custom
municipal
liability,
Plaintiff
contends that the City had a custom that deprived him of his
constitutional rights in a similar manner to Plaintiff's final-
policy-maker-liability theory.
to Dismiss at 9.
See PL's Br. Opp'n Defs.' Mot.
As stated above, a municipality may violate
Section 1983 through an unconstitutional custom or practice;
however,
"[s]uch a custom 'may arise if a practice is so
persistent and widespread and so permanent and well settled as
to constitute a custom or usage with the force of law.'"
326 F.3d at 473 (quoting Carter, 164 F.3d at 220).
Lytle,
To establish
custom liability, »[a] plaintiff must point to a 'persistent and
widespread practice[] of municipal officials,' the 'duration and
frequency' of which indicate that policymakers (1) had actual or
constructive knowledge of the conduct, and (2) failed to correct
it due to their 'deliberate indifference.'"
4723803, at *17 (alterations in original)
F.2d at 1386-91).
Owens,
2014 WL
(quoting Spell, 824
However, "[b]oth knowledge and indifference
can be inferred from the 'extent' of employees' misconduct."
Id. (quoting Spell, 824 F.2d at 1391).
55
in
addition,
"[i]t
is
well
settled
that
'isolated
incidents' of unconstitutional conduct by subordinate employees
are not sufficient to establish a custom or practice . . . ."
Id, (quoting Carter, 164 F.3d at 220).
Thus, "there must be
'numerous particular instances' of unconstitutional conduct in
order to establish a custom or practice."
Id, (quoting Kopf v.
Wing, 924 F.2d 265, 269 (4th Cir. 1991)).
However, for the
purposes of surviving a motion to dismiss, a plaintiff "need not
plead the multiple incidents of constitutional violations that
may be necessary at later stages to establish the existence of
an official policy or custom and causation."
Jordan by Jordan
v.
1994)
Jackson,
15 F.3d 333,
339
(4th Cir.
(citations
omitted); see also Danielson v. City of Virginia Beach, Civil
Action NO. 2:11CV253, 2011 WL 3664710, at *2 (E.D. Va. Aug. 19,
2011) (unpublished) (citing Edwards v. City of Goldsboro, 178
F.3d 231, 244-45 (4th Cir. 1999)).
Nevertheless, to state a
plausible claim, a complaint must contain "'more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not do.'"
Francis v. Giacomelli, 588 F.3d
186, 193 (4th Cir. 2009) (quoting Twombly, 550 U.S. at 555).
In this case,
state
a
claim
the factual allegations that sufficiently
predicated
on
final-policy-maker-decision
liability also suffice to raise, beyond the speculative level,
Plaintiff's right to relief based on his allegation that the
56
City had a custom that deprived him of his constitutional
rights.
Plaintiff's bare assertion that City Defendants
"maintained customs . . . amounting to deliberate indifference
to the constitutional rights of Plaintiff and of the public,"
Compl. 1 118; see also Compl. 11 67, 71, 117, is conclusory
because it does not contain factual matter that raises a
reasonable inference that the City actually maintained such a
custom, see Iqbal, 556 U.S. at 663.
However, the allegation
concerning the shooting of Robert L. Harper in 2007, Compl. 1
73, and the broader allegations that the City and PSD routinely
failed to adequately investigate excessive force claims, see id,
11 66, 68, when viewed in a light most favorable to Plaintiff,
permit a reasonable inference that the PSD failed to adequately
investigate the Harper incident.
Moreover, Plaintiff's
allegation that the PSD "in the period before and since this
event, has unfounded other complaints of excessive force by law
enforcement," Compl. 1 72, provides additional factual support
for Plaintiff's allegation that the City had a custom of failing
to adequately investigate claims of excessive force.
2014
WL 4723803,
at
*17-18
(holding
that
See Owens,
allegations
of
"reported and unreported cases from the period of time before
and during the events complained of establish[ing] that the
[defendant] had a custom, policy, or practice of knowingly and
repeatedly [violating constitutional rights]" "buttressed [the
57
plaintiff's] legal conclusion").
Taken together, those
allegations, if true, present sufficient factual matter to
permit a reasonable inference that City Defendants had a custom
of failing to adequately investigate excessive force claims.
Therefore,
the Court will DENY City Defendants'
motion to
dismiss with regard to Plaintiff's claim that the City deprived
him of his constitutional rights through a custom of failing to
adequately investigate excessive force claims.
C. Leave to Amend
Based on
Defendants'
the
motion
Court's
to
rulings
dismiss,
GRANTING
the
Court
IN PART
now
City
considers
Plaintiff's request for leave to amend his Complaint.
Under
Federal Rule of Civil Procedure 15(a):
(1) A party may amend its pleading once as a matter of
course within: (A) 21 days after serving it, or (B) if
the pleading is one to which a responsive pleading is
required, 21 days after service of a responsive
pleading or 21 days after service of a motion under
Rule 12(b), (e), or (f), whichever is earlier.
(2) In all other cases, a party may amend its pleading
only with the opposing party's written consent or the
court's leave. The court should freely give leave when
justice so requires. . . .
Fed. R. Civ. P. 15(a) (l)-(2).
in this case, Plaintiff has not
filed an amended pleading within twenty one days after City
Defendants' Federal Rule of Civil Procedure 12(b)(6) motion.
Thus, Plaintiff may only amend his Complaint with the Court's
leave.
See id.
58
The text of Federal Rule of Civil Procedure 15(a)(2)
requires that the Court "freely give leave [to amend] when
justice so requires." Id^ "This liberal rule gives effect to
the federal policy in favor of resolving cases on their merits
instead of disposing of them on technicalities."
Laber v.
Harvey, 438 F.3d 404, 426 (4th Cir. 2006) (en banc) (citations
omitted).
After a dismissal under Federal Rule of Civil
Procedure 12(b)(6), a court "normally will give plaintiff leave
to file an amended complaint" because "[t]he federal rule policy
of deciding cases on the basis of the substantive rights
involved rather than on technicalities requires that plaintiff
be given every opportunity to cure a formal defect in his
pleading." n.trzenski v. Seigel, 177 F.3d 245, 252-53 (4th Cir.
1999) (emphasis omitted). However, "a district court may deny
leave to amend if the amendment 'would be prejudicial to the
opposing party, there has been bad faith on the part of the
moving party, or the amendment would have been futile.'"
U^
ex rel. Nathan v. Takeda Pharm. N. Am., Inc., 707 F.3d 451, 461
(4th Cir. 2013) (quoting Laber, 438 F.3d at 426)).
in this case, City Defendants do not appear to have opposed
granting Plaintiff leave to amend his Complaint. Moreover,
nothing suggests that an amendment would be prejudicial to the
City, that Plaintiff has acted in bad faith, or that the
amendment would be futile.
Accordingly, the Court will GRANT
59
Plaintiff leave to amend his Complaint against City Defendants
to cure its defects.
IV.
CONCLUSION
For the reasons stated above, City Defendants' Motion to
Dismiss, ECF NO. 6, is GRANTED IN PART and DENIED IN PART.
The
Court GRANTS City Defendants' motion with respect to Plaintiff's
claims against Chiefs Fox and Myers and DISMISSES those claims.
The Court GRANTS
City Defendants'
motion with respect to
Plaintiff's claims against the City predicating Monell liability
on an express policy and on a failure to supervise.
The Court
PROVIDES Plaintiff with leave to amend the Complaint against the
City to cure all defects within twenty one (21) days after the
entry of this Opinion and Order.
If Plaintiff fails to
adequately amend the Complaint within the period prescribed,
Plaintiff's
express policy and failure-to-supervise claims
against the City will be dismissed with prejudice.
The Court DENIES City Defendants' motion, ECF No. 6, with
respect to Plaintiff's claims against the City predicating
Monell liability on the decision of a person with final policy
making authority and the City's failure to train its officers in
the constitutional limits on the use of deadly force.
The Clerk is REQUESTED to send a copy of this Opinion and
Order to all counsel of record.
60
IT IS SO ORDERED,
Cx
[S mwp
Mark
S.
Davis
UNITED STATES DISTRICT JUDGE
Norfolk, Virginia
March35, 2015
61
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