Opinion
Civil Action No. 3:01-CV-1938-L
March 14, 2003
MEMORANDUM OPINION AND ORDER
Before the court is Defendant City of Garland's Motion for Summary Judgment, filed December 6, 2002. After careful consideration of the motion, response, briefs, reply, summary record, and the applicable law, the court grants Defendant City of Garland's Motion for Summary Judgment.
I. Procedural and Factual Background
Plaintiff Elias A. Okonkwo ("Plaintiff" or Okonkwo") filed this action pursuant to 42 U.S.C. § 1983 on September 28, 2001, against the City of Garland ("the City"), Carlos Fernandez ("Fernandez"), Jose Lozada ("Lozada"), and Ramiro Moreno ("Moreno"), collectively referred to as "Defendants." Fernandez, Lozada, and Moreno were police officers of the City at the time of the incident which serves as the basis of this action. This action finds its origin in Plaintiff's arrest on October 10, 1999. He contends that the three officers used excessive force against him, and maliciously prosecuted him for driving while intoxicated, resisting transportation, and possession of drug paraphernalia. Okonkwo also contends that the actions of the officers resulted from the City's alleged policy or custom of failing to train its police officers regarding the proper use of force to arrest an individual, the City's alleged policy or custom of approving and encouraging malicious prosecutions and illegal use of force against arrested persons, and the City's alleged policy or custom of encouraging racial discrimination and mistreatment of blacks and persons of foreign birth. Defendants deny the allegations of Plaintiff and contend that probable cause existed to arrest Plaintiff and refer his case to the District Attorney's Office. Defendants contend that all three officers have been properly trained regarding the use of force and the laws of arrest, that the force used against Plaintiff was reasonable and necessary, and that Plaintiff was not injured as a result of any unlawful policy or custom of the City. The individual Defendants also contend that Plaintiff's claims are barred by the doctrine of qualified immunity.
II. Summary Judgment Standard
Summary judgment shall be rendered when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986); Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998). A dispute regarding a material fact is "genuine" if the evidence is such that a reasonable jury could return a verdict in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When ruling on a motion for summary judgment, the court is required to view all inferences drawn from the factual record in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986); Ragas, 136 F.3d at 458.
Once the moving party has made an initial showing that there is no evidence to support the nonmoving party's case, the party opposing the motion must come forward with competent summary judgment evidence of the existence of a genuine fact issue. Matsushita, 475 U.S. at 586. Mere conclusory allegations are not competent summary judgment evidence, and thus are insufficient to defeat a motion for summary judgment. Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir. 1996). Unsubstantiated assertions, improbable inferences, and unsupported speculation are not competent summary judgment evidence. See Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir.), cert. denied, 513 U.S. 871 (1994). The party opposing summary judgment is required to identify specific evidence in the record and to articulate the precise manner in which that evidence supports his claim. Ragas, 136 F.3d at 458. Rule 56 does not impose a duty on the court to "sift through the record in search of evidence" to support the nonmovant's opposition to the motion for summary judgment. Id.; see also Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915-16 n. 7 (5th Cir.), cert. denied, 506 U.S. 832 (1992). "Only disputes over facts that might affect the outcome of the suit under the governing laws will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248. Disputed fact issues which are "irrelevant and unnecessary" will not be considered by a court in ruling on a summary judgment motion. Id. If the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to its case and on which it will bear the burden of proof at trial, summary judgment must be granted. Celotex, 477 U.S. at 322-23.
III. The City's Motion for Summary Judgment
A. Contention of the Parties
In Plaintiff's Original Complaint ("Complaint"), Okonkwo contends that the alleged actions of the three officer Defendants resulted from the City's alleged policy or custom of failing to train its police officers regarding the proper use of force to arrest an individual, the City's alleged policy or custom of approving and encouraging malicious prosecution and illegal use of force against arrested persons, and the City's alleged policy or custom of encouraging racial discrimination and mistreatment of blacks and persons of foreign birth. The City denies these allegations and contends that Plaintiff Okonkwo cannot establish that a policy or custom of the City of Garland was the moving force behind his alleged deprivation of a constitutional right. The City therefore contends that no genuine issue of material fact exists on Plaintiff's policy or custom claims and that it is entitled to judgment as a matter of law.
B. Municipal Liability under 42 U.S.C. § 1983
The court first sets forth the applicable law for civil rights claims against governmental entities. A governmental entity can be sued and subjected to monetary damages and injunctive relief under 42 U.S.C. § 1983 only if its official policy or custom causes a person to be deprived of a federally protected right. Board of County Comm'rs of Bryan County v. Brown, 520 U.S. 397, 403 (1997); Monell v. New York City Dep't of Soc. Servs., 436 U.S. 658, 694 (1978). A governmental entity cannot be liable for civil rights violations under a theory of respondeat superior or vicarious liability. Id. See also Baskin v. Parker, 602 F.2d 1205, 1208 (5th Cir. 1979). Official policy is defined as:
1. A policy statement, ordinance, regulation, or decision that is officially adopted and promulgated by the [city] lawmaking officers or by an official to whom the lawmakers have delegated policy-making authority; or
2. A persistent, widespread practice of [city] officials or employees which, although not authorized by officially adopted and promulgated policy, is so common and well-settled as to constitute a custom that fairly represents [city] policy. Actual or constructive knowledge of such custom must be attributable to the governing body of the [city] or to an official to whom that body had delegated policy-making authority.Webster v. City of Houston, 735 F.2d 838, 841 (5th Cir. 1984) ( en banc) (per curiam); Bennett v. City of Slidell, 735 F.2d 861, 862 (5th Cir. 1984) ( en banc) (per curiam), cert. denied, 472 U.S. 1016 (1985). A plaintiff must identify the policy, connect the policy to the governmental entity itself and show that his injury was incurred because of the application of that specific policy. Bennett v. City of Slidell, 728 F.2d 762, 767 (5th Cir. 1984), cert. denied, 472 U.S. 1016 (1985). A plaintiff must establish that the governmental entity through its deliberate conduct was the "moving force behind the injury alleged" and must establish a direct causal link between the governmental entity's action and the deprivation of a federally protected right. Bryan County v. Brown, 520 U.S. at 404.
Liability must rest on official policy, meaning the governmental entity's policy, and not the policy of an individual official. Bennett, 728 F.2d at 769. The official complained of must possess
[f]inal authority to establish [city] policy with respect to the action ordered. . . . The official must also be responsible for establishing final government policy respecting such activity before the [city] can be held liable. . . . [W]hether an official had final policymaking authority is a question of state law.Pembaur v. City of Cincinnati, 475 U.S. 469, 481-482 (1986). An employee, agency, or board of a governmental entity is not a policymaker unless the governmental entity, through its lawmakers, has delegated exclusive policymaking authority to that employee agency or board and cannot review the action or decision of the employee, agency or board. See City of St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988); Worsham v. City of Pasadena, 881 F.2d 1336, 1340-41 (5th Cir. 1989).
A failure to train allegation can be the basis for liability under 42 U.S.C. § 1983 if the "failure to train amounts to deliberate indifference to the rights of persons with whom the police come into contact." City of Canton v. Harris, 489 U.S. § 378, 388 (1989). To defeat summary judgment, Plaintiff must prove, or raise a genuine issue of material fact, that: "(1) his rights were violated as a result of (2) a municipal custom or policy of (3) deliberate indifference to his rights." Gabriel v. City of Piano, 202 F.3d 741, 745 (5th Cir. 2000).
The court finds the following language from Gabriel to be illustrative and controlling regarding what a plaintiff must establish to show that a municipality failed to train and supervise its police officers:
In failure to train cases, the plaintiff can prove the existence of a municipal custom or policy of deliberate indifference to individuals' rights in two ways. First, he can show that a municipality deliberately or consciously chose not to train its officers despite being on notice that its current training regimen had failed to prevent tortious conduct by its officers. Second, under the "single incident exception" a single violation of federal rights may be sufficient to prove deliberate indifference. The single incident exception requires proof of the possibility of recurring situations that present an obvious potential for violation of constitutional rights and the need for additional or different police training. We have consistently rejected application of the single incident exception and have noted that "proof of a single violent incident ordinarily is insufficient to hold a municipality liable for inadequate training."Id. (internal citations omitted). Plaintiff does not assert the "single incident" theory, that is, that his injury resulted from a single decision by a policymaker. See Bryan County, 520 U.S. at 408-09. The court therefore does not address it. Although Gabriel is a failure-to-train case, the court sees no reason not to apply it to a failure-to-supervise case, and determines that Gabriel is fully applicable to Plaintiff's failure-to-supervise allegations.
C. Analysis
1. The Complaint
With this relevant authority, the court now examines Plaintiff's Complaint and summary judgment record regarding Plaintiff's allegations of a policy or custom of the City. Okonkwo's Complaint sets forth the following allegations regarding policy and custom of the City:
Defendants Carlos Fernandez, R. Moreno and Lozada are police officers employed by the City of Garland, Texas. At all times pertinent hereto, each Defendant acted under the color of state laws and usage. Defendants Fernandez, Moreno and Lozada are sued in their individual capacity. By policy, Defendant City of Garland, Texas failed to properly instruct its police officers, including Fernandez, Moreno and Lozada, on what constitutes the appropriate amount of force that may be lawfully applied to an arrested person. Defendants Fernandez, Moreno and Lozada have on several occasions prior to the Plaintiff's arrest and assault demonstrated that they are incompetent and brutal police officers and the officials in the City of Garland, Texas who establish policy for Garland have purposely failed to properly train and supervise Fernandez, Moreno, and Lozada and/or have purposely failed to correct Fernandez's, Moreno's and Lozada's deficiencies and/or incompetence. Instead, by policy, the City of Garland, Texas has ratified Fernandez's, Moreno's and Lozada's acts of incompetence and has approved and ratified the improper and illegal use of force. During their employment Fernandez, Moreno and Lozada have demonstrated that they are unpredictable, make improper decisions regarding the use of force, and are rude, erratic, and prone to violence, however, no official in the City of Garland, Texas has removed them from duty. The City of Garland, Texas officials have, by policy, ratified and approved the illegal prosecutions and the illegal use of force that is described herein. The City of Garland, by policy and/or custom, encourages racial discrimination against Blacks as well as mistreatment of Blacks and/or persons of foreign birth.
. . .
The Defendants discriminated against the Plaintiff based on his race and place of birth. Rather than honor racial diversity, all of the Defendants, by design and policy, discriminated against the Plaintiff because of his African heritage and race.
. . .
The Plaintiff sues Defendant the City of Garland, Texas for its policy decisions which led to the illegal acts that are specified herein. Had the City of Garland, Texas' policymakers been doing the job as mandated by the United States Constitution, they would not have allowed the Plaintiff to become a victim of excessive and unnecessary force. Nor would the policymakers have allowed the individual Defendants to cause the prosecution of the Plaintiff for crimes for which there was no evidence. The improper conduct towards the Plaintiff was but one in a series of illegal and unconstitutional acts that the City of Garland, Texas policy makers elected to ignore. No policymaker was effectively supervising Garland's police officers. By policy and design, the City of Garland, Texas failed to establish procedures to prevent the illegal acts, including the planting of evidence, specified herein. Defendant City of Garland, Texas has ratified the malicious prosecution and the use of excessive force against the Plaintiff. By policy, Defendant City of Garland, Texas failed to provide Defendants Fernandez, Moreno and Lozada guidance on the proper use of force. City of Garland, Texas policy makers reviewed the decision to prosecute the Plaintiff, but they elected not to prevent the illegal and/or malicious prosecution of the Plaintiff.
Plaintiff's Complaint ¶¶ 5, 16, 18.
The court notes from the outset that the "evidence" on which Plaintiff relies to establish liability against the City is woefully inadequate. Plaintiff's response is riddled with conclusory statements and assertions, impermissible inferences, general speculation, and irrelevant evidence. Accordingly, the court declines to undertake an extensive and detailed analysis of municipal liability.
2. Policy or Custom of Discrimination because of Race, Heritage and Place of Birth
In ruling on Defendant City of Garland's Motion to Dismiss for Failure to State a Claim, the court determined that "the policy and custom allegations in paragraph 16 of Plaintiffs Complaint regarding race, heritage, and place of birth of Plaintiff are purely conclusory. Plaintiff is directed to replead these allegations or delete them from his Complaint no later than the amendment of pleadings deadline set by the court in its scheduling order." Memorandum Opinion and Order, filed March 18, 2002, at 7. Plaintiff neither repleaded nor deleted these allegations, which the court determined to be deficient. These allegations are not even addressed by Plaintiff in his response to the City's summary judgment motion, and the court deems Plaintiff to have abandoned this theory of municipal liability. Moreover, Okonkwo presents no evidence in support of these purely conclusory allegations to establish a municipal policy or custom. He wholly fails to show, or raise a genuine issue of material fact, that the City had a policy or custom of encouraging racial discrimination and mistreatment of blacks and person of foreign birth such as Plaintiff.
3. Policy or Custom of Failure to Train and Supervise
With respect to his allegation that the City had a policy or custom of failing to train police officers regarding the use of force to make and effect an arrest of a person, Okonkwo failed to present any evidence that the Garland City Council, the governing body which makes policy for the City, or some official to whom the Garland City Council had delegated policy-making authority, knew of instances prior to October 10, 1999, in which Garland police officers used or allegedly used excessive force on arrested persons. In this regard, there is no actual knowledge — by way of discussions at council meetings or written materials submitted to policymakers (council members) — or constructive knowledge that alleged incidents of the use of excessive force by Garland police officers was so persistent and widespread that these incidents were the topic of "prolonged public discussion or a high degree of publicity." See Bennett v. City of Slidell, 728 F.2d at 768. The summary judgment record is devoid of any competent evidence that the Garland City Council, or an official to whom it had delegated policy-making authority, knew of, or should have known of, persistent and widespread instances where police officers allegedly used excessive force against persons who were placed under arrest, or that police supervisors failed to supervise Garland police officers. Plaintiff's Complaint does not even allege prior specific instances of the use of excessive force by Garland police officers, or specific instances of failure to supervise, and he certainly has not established that such instances exist, much less put the City on notice of such alleged illegal uses of force or failures to supervise.
The essence of Plaintiffs first two arguments is as follows:
The lack of fitness for duty of officers Moreno, Lozada and Fernandez are ones that Garland officers should have been aware. These matters include: Lozada is a sexual predator and apparent liar. Lozada has a history of criminal misconduct which includes the abuse of his police powers and misrepresentation of his police activities. (Twice, Lozada was involved in sexual criminal misconduct and no criminal action was taken against him.) Garland police officers are apparently willing to overlook criminal conduct by their own. Lozada escaped criminal charges three times; two criminal charges involving sexual misconduct and one involving the mistreatment of the Plaintiff. (Plaintiffs App. pp. 38-43.) Secondly, Garland supervisors are loathe to control their inferiors and loathe to criticize their conduct even when their officers violate Garland policy. The use of pepper spray is not authorized against Okonkwo and the Garland supervisors should not have approved the use of pepper spray or the use of force.
Plaintiff's Response and Brief in Support of Response to Defendants' Motions for Summary Judgment at 29-30 (emphasis in original). Plaintiff's third argument is that, according to his expert, the City places the use of pepper spray "too high on the Garland Police Department force continuum for supervisors to have approved of its use." Plaintiff's final argument that the training and supervision received by Garland police officers are deficient is based on a statement in Defendant Fernandez's deposition that he did not know what was contained in the the Fourth Amendment to the United States Constitution without first reviewing it.
The allegations of sexual misconduct by Lozada are of no assistance in establishing Plaintiff's theory. One event took place in January 2002, more than two years after the incident made the basis of this action, and the date of the second is not provided. These two incidents do not relate to the use of force as used in the context of this action, and could not have possibly put any policymaker on notice that Garland police officers were using excessive force in arresting and taking persons into custody. If no actual or constructive knowledge existed regarding the alleged deficiencies, deliberate indifference cannot exist as a matter of law.
While Lozada's deposition testimony may raise questions about his credibility and veracity, it does not assist the court in resolving the policy and custom allegations.
With respect to the other three arguments, Plaintiff relies on his expert, Martin R. Imwalle. Imwalle opines that (1) under the City's policy, pepper spray should not have been used to control a handcuffed prisoner as was Okonkwo at the time, and he questions whether police supervisors require officers to follow the policy; (2) Lozada and Fernandez did receive Standardized Field Sobriety Testing (SFST) but used or allowed it to be used incorrectly in Okonkwo's situation, and therefore questions the supervision and training programs of the City; and (3) Fernandez's answer to the question regarding the Fourth Amendment establishes that he does not know the laws of arrest, search and seizure, and therefore should not be a police officer of the City.
Once again, Plaintiff's theory suffers from a lack of notice on the part of City policymakers. Imwalle's opinion does nothing to establish that policymakers were on notice of prior incidents of the use of excessive force or inadequate supervision. Imwalle only opines, somewhat tentatively at times, that based on the manner in which the officers acted on the occasion he "Would have to question" the level of training and supervision received by them. If his attempt is to establish that the officers' conduct reflected "business as usual" and was evidence of preexisting policies and customs regarding training and supervision, he misses the mark, because no competent summary judgment evidence shows such to be the case.
The court also notes that Fernandez's statement regarding the Fourth Amendment is of no moment. Had Fernandez specifically been asked in deposition when a police officer could make an arrest, use force, and search a person, as opposed to a general question regarding the Fourth Amendment, an inability to answer may well indicate a lack of training, because an officer should at least have a modicum of knowledge regarding these subjects. Moreover, the record reflects, and Imwalle concedes, Fernandez had received training on these topics.
Finally, Okonkwo refers the court to Grandstaff v. City of Borger, 767 F.2d 161 (5th Cir. 1985), cert. denied, 480 U.S. 916 (1987), for the proposition that one need not offer evidence of prior misconduct of a city's officers to hold it liable. The Fifth Circuit did impose liability against a Texas city in Grandstaff. In Grandstaff, several police officers surrounded an innocent man, mistook him for a fugitive, and shot and killed him. The court stated that the acceptance by the city's policymaker (chief of police) of "so gross an abuse of the use of deadly weapons" tends to establish "[the policymaker's] preexisting disposition and policy." Grandstaff, 767 F.2d at 171. In other words, the Fifth Circuit was saying that the manner in which the officers acted reflected "business as usual" and the city's policy on the use of deadly force. Plaintiff's reliance on Grandstaff, however, does not advance his cause. This court previously recognized the limited holding and applicability of Grandstaff when it stated:
Plaintiff's reliance on Grandstaff v. City of Borger, 767 F.2d 161 (5th Cir. 1985), cert. denied, 480 U.S. 916, 107 S.Ct. 1369, 94 L.3d.2d 686 (1987), is misplaced. The facts in Grandstaff are not even marginally similar to the facts of this case, and thus Grandstaff has no applicability to this case. Grandstaff has not enjoyed significant application in this circuit. See Snyder v. Trepagnier, 142 F.3d 791, 797 (5th Cir. 1998), cert. dismissed, 526 U.S. 1083, 119 S.Ct 1493 143 L.Ed.2d 575 (1999). Moreover, Grandstaff must be limited to its "peculiar" and "extraordinary" facts. See Coon v. Ledbetter, 780 F.2d 1158, 1161 (5th Cir. 1986).Thomas v. Murray, 107 F. Supp.2d 748, 761 n. 4 (N.D. Tex. 2000), aff'd, 251 F.3d 156 (5th Cir. 2001). The court finds the language in Thomas equally applicable to the issues presented in this case and determines, for the same reasons stated therein, that Grandstaff provides no basis for municipal liability against the City.
4. Policy or Custom of Malicious Prosecution and Illegal Use of Force
Plaintiff contends that the City had a policy or custom of approving and encouraging malicious prosecution and illegal use of force against arrested persons. The court notes that Plaintiff's "evidence" under these theories fails to prove, or create a fact issue, that these policies or customs existed in the City at the time of his arrest. The court finds these theories of liability to be without merit based on its analysis and authority cited in section III(C)(3) of this opinion. The court therefore adopts and incorporates such analysis and authority as if repeated herein verbatim. Accordingly, for the reasons stated in section III(C)(3), this claim fails.
IV. City's Objections to Plaintiff's Response and Evidence
The City makes a number of objections regarding Plaintiff's response and evidence. These include Plaintiff's failure to comply with Rule 56 of the Local Civil Rules of the Northern District of Texas ("Local Rules"), and unspecified objections to certain evidentiary matters. The City contends that the manner in which Plaintiff responded to its motion causes it "to guess what factual and legal grounds are being raised in opposition to its Motion."
The court agrees that Plaintiff's response in many respects does not follow the Local Rules or the court's scheduling order. The court set forth the standard for summary judgment earlier in this opinion, and all evidence which does not meet the standard has been disregarded by the court. The court reaches the same result irrespective of the City's objections. Accordingly, the City's objections are overruled as moot. V. Conclusion
For the reasons previously stated, Plaintiff has failed to show, or raise a genuine issue of material fact, that (1) the City had, prior to his arrest, established or adopted any of the alleged policies or customs set forth in his Complaint; (2) the City's policymakers, or an official to whom policy-making authority had been delegated, had actual or constructive knowledge of the alleged policies or customs; or (3) a policy or custom was the "moving force" behind the constitutional injury he suffered, if any. See Pineda v. City of Houston, 291 F.3d 325, 328 (5th Cir. 2002), cert. denied, 123 S.Ct. 892 (2003); Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th Cir.), reh'g denied, 251 F.3d 159, cert. denied, 534 U.S. 820 (2001). The City is therefore entitled to judgment as a matter of law on all claims asserted against it by Plaintiff. Defendant City of Garland's Motion for Summary Judgment is therefore granted, and this action is dismissed with prejudice against Defendant City of Garland. The court will issue a separate order regarding the individual Defendants within the next three weeks.
Of course, if no actual or constructive notice exists on the part f the City's policymakers, it is legally impossible for the City to deliberately or consciously choose not to train and supervise its police officers.