Opinion
Civil Action No. 3:04-CV-946-M.
October 26, 2004
MEMORANDUM OPINION AND ORDER
Before the Court is "Defendants' 12(b)(6) Motion to Dismiss, or in the Alternative, Rule 56 Motion for Summary Judgment," filed on August 12, 2004. Having considered the Motion, the Court is of the opinion that Plaintiff's claims against Defendants Waxahachie Police Department and Officer Doe #1 should be DISMISSED. The Court also DISMISSES Plaintiff's 42 U.S.C. § 1981 claim against Defendant City of Waxahachie. The Court GRANTS Defendants' Motion for Summary Judgment with respect to Plaintiff's 42 U.S.C. § 1983 claim against City of Waxahachie.
Background
On June 19, 2002, Plaintiff Gary Stumpf was a passenger in a vehicle driven by his stepson, Joseph Dombrowski. After receiving complaints that Dombrowski's vehicle was being operated recklessly, Waxahachie police officers attempted to effect a traffic stop. Dombrowski initially responded to the officers' lights and siren, and brought the vehicle to a stop. However, immediately after pulling to the side of the road, Dombrowski sped away from the police officers.
Police officers pursued the vehicle for at least another mile, until Dombrowski stopped the car again. The officers approached, and demanded that the occupants exit the vehicle. According to Defendants, Plaintiff and Mr. Dombrowski refused to comply with the officers' commands. When the officers attempted to remove Plaintiff and Dombrowski by force, Defendants allege that both men physically resisted.
The parties agree that Plaintiff was eventually subdued with a burst of pepper spray and a "straight arm bar wrist lock", and was placed in handcuffs. Plaintiff alleges that while he was lying on the ground, one of the officers intentionally stomped on the back of his neck. According to Plaintiff, the officer's conduct caused him serious injury, resulting in medical bills in excess of $20,000. Plaintiff has sued the City of Waxahachie, the City of Waxahachie Police Department ("Department"), and an unnamed police officer for civil rights violations under 42 U.S.C. § 1983 and 42 U.S.C. § 1981.
Analysis
I. Plaintiff's Claims Against City of Waxahachie Police Department
Defendants' Motion asks the Court to dismiss Plaintiff's claims against the City of Waxahachie Police Department, on grounds that the Department lacks capacity to be sued. The Court looks to state law to determine the capacity of a state or municipal entity to sue or be sued. See Fed.R.Civ.P. 17(b).
Under Texas law, a city has the power to determine whether its subunit, such as a police department, is subject to suit. See Darby v. Pasadena Police Dept., 939 F.2d 311 (5th Cir. 1991). A plaintiff's claim against a city subunit will not be permitted unless the subunit possesses a legal existence separate from the city's. See id; see also Jeffery v. Dallas County Medical Examiner, 37 F.Supp.2d 525 (N.D. Tex., 1999) (holding that in Texas, a county entity cannot be sued without the county's consent). The burden of proving a subunit's separate legal existence rests with the plaintiff. See Darby, 939 F.2d at 314.
In this case, Plaintiff has not offered any evidence indicating that the City of Waxahachie has granted its police department capacity to sue or be sued. Defendants raised this capacity question in their Brief supporting their Motion to Dismiss, and Plaintiff did not address the issue in his Response. The Court holds that Plaintiff has failed to state a cognizable claim against the Waxahachie Police Department and therefore dismisses all claims against the City of Waxahachie Police Department, under Fed.R.Civ.P. 12(b)(6).
II. Plaintiff's Claims Against Officer Doe #1
Defendants also urge the Court to dismiss Plaintiff's claims against Officer Doe #1. Defendants note that the applicable federal statutes and Rules of Civil Procedure do not expressly permit suits against "John Doe" parties. Defendant argues that dismissal is proper because Plaintiff has failed to identify a Federal Rule or statute that would permit his suit against the unnamed police officer. The Court does not here decide that a plaintiff can never assert claims against unnamed officers under federal law. In fact, the Court can envision many circumstances when that would likely be proper. However, the Court is of the opinion that Plaintiff's claims against Officer Doe #1 are subject to dismissal because Plaintiff failed to serve the proper officer within the applicable statute of limitations. Under federal law, the statute of limitations for a § 1983 action is determined by the forum state's personal injury limitations period. See Jacobsen v. Osborne, 133 F.3d 315, 319 (5th Cir. 1998). In Texas, this period is two years from the date on which the claim accrues. See Tex. Civ. Prac. Rem. Code Ann. § 16.003(a) (West 2003).
The parties agree that Plaintiff's alleged injury occurred on June 19, 2002. It was therefore Plaintiff's responsibility to properly serve the individual police officer by June 19, 2004. Under Rule 15(c), a plaintiff who files suit within the limitations period is ordinarily permitted to amend his Complaint to substitute a correct party for an incorrect party. Fed.R.Civ.P. 15(c) (amendments can change the names of parties, so long as new defendants had notice of the suit and knew or should have known that but for a mistake, the action would have been brought against them). However, the Fifth Circuit has held that Rule 15(c) is limited to cases in which a plaintiff mistakenly identifies a defendant by the incorrect name, and is not available to a plaintiff who intentionally uses a pseudonym due to lack of information. See Jacobsen, 133 F.3d at 320. Therefore, the Court in Jacobsen concluded that Rule 15(c) does not permit a plaintiff to substitute a proper defendant for a fictitious "John Doe" defendant after the statute of limitations has expired. See Id. (there is no "identity of interest" between John Doe and the proper defendant, and therefore the amended complaint does not relate back to the original filing date). Therefore, Plaintiff is barred, as a matter of law, from amending his complaint to substitute the proper party for Officer Doe #1, and the Court, dismisses all claims against the fictitious Defendant. See Jacobsen, 133 F.3d at 320.
III. Plaintiff's 42 U.S.C. § 1981 Claims Against City of Waxahachie
Defendants also argue that Plaintiff's claims under 42 U.S.C. § 1981 should be dismissed because Plaintiff fails adequately to plead the requisite elements of the statute. The Court agrees with Defendants. The statute cited by Plaintiff proscribes discrimination based on race or other "non-white status". See Irby v. Sullivan, 737 F.2d 1418, 1430 n. 22 (5th Cir. 1984). Plaintiff is Caucasian, and his pleadings do not reflect how § 1981 could have been violated during his arrest. In addition, Plaintiff's pleadings appear to conflate § 1981 with a different statutory provision, 42 U.S.C. § 1981a. This second statute is inapplicable to claims of excessive force. See 42 U.S.C. § 1981a(a)(1) (limiting relief to actions "brought by a complaining party under section 706 or 717 of the Civil Rights Act of 1964"). The two provisions of the Civil Rights Act that are made actionable under § 1981 a pertain exclusively to claims of employment discrimination. See, e.g., Allison v. Citgo Petroleum Corp., 151 F.3d 402 (5th Cir. 1998). Clearly, Plaintiff is not alleging that the incident with the Waxahachie police officers occurred in connection with his employment. Because Plaintiff has not alleged sufficient facts to permit him to recover under either 42 U.S.C. § 1981 or 42 U.S.C. § 1981a, the Court dismisses claims brought by Plaintiff under these statutes.
IV. Plaintiff's 42 U.S.C. § 1983 Claims Against City of Waxahachie
Plaintiff's remaining claim is his 42 U.S.C. § 1983 action against the City of Waxahachie. Because Plaintiff submits evidence, the Court analyzes this as a motion for summary judgment. In order to survive summary judgment on a § 1983 excessive force claim, a plaintiff must allege "(1) an injury, which (2) resulted directly and only from the use of force that was clearly excessive to the need, and the excessiveness of which was (3) objectively unreasonable." Spann v. Rainey, 987 F.2d 1110, 1115 (5th Cir. 1993). Here, Plaintiff alleges that the unnamed officer violated § 1983 by stomping on the back of his neck. Plaintiff claims that the officer's conduct was clearly excessive and unreasonable, and caused him severe injury. However, before Plaintiff can impute liability to the City of Waxahachie for constitutional violations committed by its employees, Plaintiff must demonstrate that a city policy or custom was the "moving force" behind the constitutional violation. See In re Foust, 310 F.3d 849, 861 (5th Cir. 2002). The city can be liable for injuries caused by either: (1) an official action, ordinance or regulation, 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 municipal policy." Webster v. City of Houston, 735 F.2d 838, 841 (5th Cir. 1984). To demonstrate that a city policy or custom was the "moving force" behind a plaintiff's constitutional violation, the plaintiff must prove causation and culpability. Foust, 310 F.3d at 861. Culpability is proven by producing evidence that the policy or custom was adopted with "deliberate indifference" to the plaintiff's constitutional rights. Id. Plaintiff has wholly failed to produce such evidence.
Plaintiff claims that a Waxahachie Police Department General Order is an official city policy, and was the source of the officers' constitutional violations. He asserts that the General Order permits the use of non-deadly force to make an arrest, even after a suspect has been physically restrained. Plaintiff states that because of the General Order, the unknown officer was permitted to stomp on his neck while Plaintiff was lying on the ground. However, even if the Court reads the General Order as Plaintiff does, Plaintiff cannot thereby impose vicarious liability on the City. He has not alleged sufficient facts to survive summary judgment on the issue of culpability, because he has not raised a fact issue as to whether the General Order was promulgated with deliberate indifference to the constitutional rights of Plaintiff or those like him. See id. Without pleading and proof of deliberate indifference, Plaintiff cannot hold the city vicariously liable under § 1983. See id. Therefore, summary judgment is proper on Plaintiff's § 1983 claim against the City of Waxahachie.
In their briefs, both parties separately address Plaintiff's purported federal excessive force claim. The Court need not separately address this claim. Insofar as Plaintiff's excessive force claim is asserted against Defendants Officer Doe #1 or the Department, the claim is dismissed for the reasons stated above. Insofar as an excessive force claim is asserted against the City of Waxahachie, it may only be brought under 42 U.S.C. § 1983, and as the Court has already held, Plaintiff's § 1983 claim is subject to summary judgment.
Conclusion
For the aforementioned reasons, the Court DISMISSES with prejudice Plaintiff's claims against Defendants Waxahachie Police Department and Officer Doe #1. The Court also DISMISSES with prejudice Plaintiff's 42 U.S.C. § 1981 claim against the City of Waxahachie. The Court GRANTS Defendants' Motion for Summary Judgment with respect to Plaintiff's 42 U.S.C. § 1983 claim against the City of Waxahachie. All costs will be taxed against Plaintiff.SO ORDERED.