Opinion
No. SA-02-CV-646-RF.
April 8, 2004
ORDER GRANTING IN PART AND DENYING IN PART BEXAR COUNTY'S MOTION FOR SUMMARY JUDGMENT
BEFORE THE COURT is the motion for summary judgment of Defendant Bexar County (Docket No. 28) and Plaintiff's Response. A hearing was held on Plaintiff's request for additional time to file on March 23, 2004. At that hearing, the Court granted additional time, expedited the time for ruling on Bexar County's motion for summary judgment, and ordered the County to refrain from filing a reply unless requested by the Court to do so. Despite this instruction, Bexar County has filed its Reply under the title of its Motion to Strike the Affidavit of Rafael Hernandez (Docket No. 39). Having carefully considered the parties' briefings, the evidence, and the applicable law, the Court DENIES the motion to strike (Docket No. 39) and GRANTS IN PART and DENIES IN PART the motion for summary judgment (Docket No. 28).
Factual and Procedural Background
The instant controversy arises out of the Plaintiff's arrest after a traffic accident on the morning of July 3, 2000. Officer Bell and another officer arrived at the scene, and Officer Bell arrested Plaintiff upon confirming her identity and drove her to the DWI Room at the Bexar County Jail. During the car ride to the DWI Room, Bell and Plaintiff engaged in some conversation. Shortly after arriving at the detention center, Officer Bell gave Plaintiff a breathalyzer test and told Plaintiff she exceeded the legal limit. Officer Bell also administered a videotaped field sobriety test and told Plaintiff she "failed" that as well.
Plaintiff complains that Bell offered to release Plaintiff from potential charges related to intoxication and DWI and to take her home if she agreed in exchange to engage him in sexual activity. Relying both upon her complaint and upon her own deposition testimony, Plaintiff claims that in a room across from whether the camera and VCR were set up, Bell and Plaintiff were alone without other witnesses. There, she claims Bell suggested she take off her dress and said, "If you just take off your dress, then I'll get the judge to drop it down to personal recognizance. . . . You'll just get a couple of tickets and then you can go, and I'll take you home." Plaintiff also claims that Bell then offered to write up her offense as merely a traffic accident if she agreed in exchange to have sex with him. Plaintiff reported agreeing to this exchange. Plaintiff complains that then Bell sexually assaulted her, handcuffed her, removed the tape from the VCR, and led Plaintiff out of the building. Plaintiff claims as they walked out that other officers were in the area, and that Bell gave a "high-five" to the others and laughed with them. Plaintiff claims that Bell placed Plaintiff into the back of the police car and instructed her to lie down. From this position, Plaintiff testified that she heard the officers and Bell continue to talk, laugh and joke. Ultimately, Bell and Plaintiff drove away in the car. Plaintiff testified that Bell instructed her to remain down because it might look suspicious if someone saw her. Plaintiff then complains that Bell stopped for gas, opened the back door where Plaintiff was lying, and physically assaulted her again. Plaintiff claims she resisted and was hysterical. Plaintiff claims this reaction angered Bell, and that in response, he slammed the door shut, drove to the Windsor Park Mall area, removed Plaintiff's handcuffs, removed her from the car, and instructed her to wait there until he returned in his personal car. Plaintiff claims that she seized this opportunity to escape. Plaintiff claims she ran to a nearby restaurant where she used to work and hid there and that Bell was seen returning to the area and circling in search of Plaintiff. Plaintiff called for her father to pick her up, and the two filed a complaint with the Criminal Investigations Division. Plaintiff reported that Bell repeatedly called her later on that day and for some time thereafter. No DWI charge was ever brought against Plaintiff, but she was later charged by Bell with tickets for driving without insurance and without a license. Each of these tickets note that Plaintiff refused to sign. Plaintiff was ultimately charged with failure to appear, and now complains that no notice of these tickets was ever provided to her. Bell was ultimately prosecuted for his conduct toward Plaintiff and similar conduct with another woman detainee.
Deposition of Decota Watson [hereinafter Watson Depo.], at 33, ll. 10-15.
See Watson Depo., at 33, ll. 16-23.
Plaintiff's report of this portion of the events differs dramatically when her initial report to the Criminal Investigations Division (Plf's Ex. 2) is compared with her Complaint and Brief in opposition to the Motion for Summary Judgment. In her report, Plaintiff portrays her demeanor as compliant, if scared, and does not discuss Bell's anger. The Complaint and Brief portray Bell's conduct as angry and retaliatory and Plaintiff's reaction as "crying and hysterical." The Court finds it unnecessary to resolve these discrepancies in its analysis of whether or not Plaintiff has sufficiently pointed to a custom, policy or practice to support Bexar County's liability.
Subsequently, Plaintiff filed this action for violations of her constitutional rights, for false arrest and imprisonment, intentional infliction of emotional distress, assault and battery, malicious prosecution, and for relief under the Texas Tort Claims Act. Under § 1983, Plaintiff complains of (1) excessive force; (2) deprivation of due process; (3) conducting an illegal or unreasonable search and seizure; (4) false imprisonment; and (5) false and malicious charging of crimes without probable cause and on the sole basis of retaliation.
Plaintiff complains that Bexar County's liability stems from its sanction of the custom, practice, policy or procedure of allowing officers to use their position to demand or coerce sexual conduct from detainees in their custody. Plaintiff does not claim that an official policy exists in Bexar County, but rather, that the actions are persistent, widespread and so common and well settled as to constitute a custom that fairly represents county policy. Plaintiff claims Bexar County had actual or constructive knowledge of this practice and that its knowing indifference permitted the conduct to continue as sanctioned by the County. In the alternative, Plaintiff claims that the County's failure to adopt a policy precluding officer's from abusing power in such a manner triggers liability under § 1983.
Bexar County now moves for summary judgment, claiming that Plaintiff has not and cannot demonstrate an official policy, custom, practice or procedure to support the County's liability in this cause. Additionally, Bexar County seeks summary judgment on Plaintiff's failure to train claim and claim arising under the Texas Tort Claims Act.
Discussion
A. Summary Judgment
Summary judgment is appropriate when there are no genuine issues as to any material facts, and the moving party is entitled to judgment as a matter of law. A court must be satisfied that no reasonable trier of fact could find for the nonmoving party or, in other words, "that the evidence favoring the nonmoving party is insufficient to enable a reasonable jury to return a verdict in his favor." The moving party bears the burden of establishing that there are no genuine issues of material fact.
See FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-323 (1986).
Lavespere v. Niagara Mach. Tool Works, Inc., 910 F.2d 167, 178 (5th Cir. 1990) ( citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)).
If the dispositive issue is one on which the nonmoving party will bear the burden of proof at trial, the moving party may satisfy its burden by merely pointing out that the evidence in the record contains insufficient proof concerning an essential element of the nonmoving party's claim. The burden then shifts to the nonmoving party, who must, by submitting or referring to evidence, set out specific facts showing that a genuine issue exists. The nonmovant may not rest upon the pleadings, but must identify specific facts establishing that a genuine issue exists for trial. The Court, in turn, "must draw all reasonable inferences in favor of the nonmoving party, and . . . may not make credibility determinations or weigh the evidence."
See Celotex, 477 U.S. at 325; see also Lavespere, 910 F.2d at 178.
See Celotex, 477 U.S. at 324.
See id. at 325; Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1996).
Reeves v. Sanderson Plumbing Prods., Inc. 530 U.S. 133, 150 (2000) (citations omitted).
B. Texas Tort Claims Act
In prior Orders, this Court declined to dismiss Plaintiff's claims arising under the Texas Tort Claims Act ("TTCA"). Texas courts have held that the negligent implementation of a policy at the operational level can give rise to such a claim under some provision of Section 101.021 of the Texas Civil Practice and Remedies Code. In the Order denying the County's motion to dismiss entered February 7, 2003, the Court held that Plaintiff sufficiently plead the waiver necessary based on personal injury caused by the use of tangible property. The County asks for reconsideration on this point and presents additional argument and legal briefing on why Plaintiff cannot sustain a TTCA cause against the County under these facts. The Court has reconsidered in light of the additional evidence and arguments now before it and will grant the City's motion as to Plaintiff's claims arising under the TTCA. Plaintiff without specificity or clarity alleged the use of tangible property in the course of her personal injury. The Court, in its prior Order, focused the property in question to either the patrol car driven by Officer Bell or the handcuffs used on Plaintiff to effect her arrest.
See Guadalupe-Blanco River Auth. v. Pitonyak, 84 S.W.3d 326, 342 (Tex.App.-Corpus Christi 2002).
TEX. CIV. PRAC. REM. CODE ANN. § 101.021(2) (Vernon 1997).
In order to show a waiver of sovereign immunity sufficient to permit recovery under the TTCA, the use of the vehicle or handcuffs must actually cause the plaintiff's injury. Here, Plaintiff only alleges that the tangible property of the County was involved in her personal injuries. The Court previously permitted the cause to survive dismissal on the grounds that the use of the property had been adequately pled. However, upon summary judgment review, the Court finds that evidence adduced by both parties does not permit any inference that either the patrol car or the handcuffs actually caused this Plaintiff's injury. Rather, her injuries, if proven, were caused by the conduct of Officer Bell. Only Officer Bell used the patrol car and the handcuffs which Plaintiff describes as relating to her assault. That conduct may or may not be part of the County's adopted custom, however this claim properly arises by virtue of § 1983 and not by virtue of the Texas Tort Claims Act. Furthermore, Plaintiff's attempt to trigger the TTCA by alleging the negligent implementation of tangible property fails. In order to place governmental liability under the TTCA on negligent implementation, a plaintiff must first established a waiver of immunity under another provision of the Act. The Court finds that no such waiver applies in this case. Therefore, the Court grants the County's motion as to the Texas Tort Claims Act claims and will dismiss with prejudice those claims.
Texas Natural Res. Conservation Comm'n v. White, 46 S.W.3d 864, 869 (Tex. 2001).
C. Failure to Train
The County also moves for summary judgment on Plaintiff's claim that the County was deliberately indifferent in the training of deputies and failed to properly train officers, including Officer Bell, in the appropriate conduct toward detainees.
A municipality cannot be held liable under § 1983 on a theory of respondeat superior. In order to hold a public entity liable under § 1983 for the misconduct of one of its employees, a plaintiff must show that an official policy or custom "was a cause in fact of the deprivation of rights inflicted." "To satisfy the cause in fact requirement, a plaintiff must allege that `the custom or policy served as the moving force behind the [constitutional] violation' at issue, or that [his] injuries resulted from the execution of the official policy or custom." An official policy or custom includes "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." Finally, the Plaintiff must point to evidence demonstrating that the policy or custom of the municipality was adopted or continued by its policymakers in "deliberate indifference to the constitutional rights of its inhabitants." Where the policy in question is one of alleged inadequate training, the inadequacy may serve as the basis for § 1983 liability if the failure to train amounts to deliberate indifference to inhabitants' rights.
Kentucky v. Graham, 473 U.S. 159, 168 (1985); Monell v. Department of Soc. Servs. of the City of New York, 436 U.S. 658, 691 (1978).
Spiller v. City of Texas City, Police Dep't, 130 F.3d 162, 167 (5th Cir. 1997) (quoting Leffall v. Dallas Indep. Sch. Dist., 28 F.3d 521, 525 (5th Cir. 1994)).
Spiller, 130 F.3d at 167 (citations omitted) (emphasis added); see also Board of County Comm'rs of Bryan County v. Brown, 520 U.S. 397, 404 (1997).
Campbell v. City of San Antonio, 43 F.3d 973, (5th Cir. 1995) (quoting Webster v. City of Houston, 735 F.2d 838, 841 (5th Cir. 1984)).
City of Canton v. Harris, 489 U.S. 378, 392 (1989).
Id. at 385-89.
Upon consideration of the above standard, Plaintiff's claims for failure to train against Bexar County must fail. The County submits evidence of the training procedures used in general and in the case of Officer Bell. Bell completed a state certified basic peace officer training program and a correctional officer course. His training included offenders' rights, inmate relations, prevention of sexual harassment, and cross-gender search and supervision. In response, Plaintiff submits no evidence to the contrary. Instead, Plaintiff relies upon a recitation of the facts, consistent with her Complaint. The crux of Plaintiff's claim is that the County failed to intervene and prevent her assault as well as the assaults of two other identified women. But in response to the County's evidence of training in Bell's case and the countywide policy of training on these specific issues, Plaintiff presents no contrary evidence. Reliance upon her Complaint and deposition testimony that someone at the County must have known that this was occurring, does not suffice to present a genuine issue of material fact as to the adequacy of the County's training in general or in the case of Officer Bell. Therefore, the Court will grant the motion on this element and dismiss Plaintiff's claims for failure to adequately train.
D. The County's Policy
A state's governmental entity may be sued under section 1983 when "the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers." The Fifth Circuit has defined an official policy as either:
Monell v. Dep't of Social Servs., 436 U.S. 658, 690 (1978). See also Johnson v. Moore, 958 F.2d 92, 94 (5th Cir. 1992).
1. A policy statement, ordinance, regulation, or decision that is officially adopted and promulgated by the municipality's 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 municipal policy. Actual or constructive knowledge of such custom must be attributable to the governing body of the municipality or to an official to whom that body had delegated policy-making authority.
Johnson, 958 F.2d at 94.
Here, the County argues that Plaintiff cannot satisfy either definition of policy, such that liability should attach to Bexar County. The Court will address each in turn.
1. An Officially Adopted Policy
Plaintiff does not allege in her Complaint that Bexar County or Bexar County Sheriff's Department has officially adopted a policy to demand or coerce sexual relations with detainees in the officers' custody. Moreover, in Plaintiff's deposition, provided by both parties in their briefing on this motion, Plaintiff was unable to point to any such officially adopted policy. Nor was Plaintiff able to identify any facts in that deposition testimony that indicate the County officially adopted such a policy. Plaintiff concedes as much in her brief. Thus, there is no dispute as to officially adopted policy. Plaintiff has made no allegation of the existence of an official adopted policy. Instead, she argues that the County's knowing omissions or failures to act constituted a constructive policy. This argument falls under the second definition of official policy.
2. Consistent, Wide-spread Practice Constituting Custom
Plaintiff identifies two other women who allegedly survived similar incidents, Pam Collier and Michelle Cunningham. Plaintiff argues that these prior incidents and the County's constructive or actual knowledge of these events are sufficient to create a consistent wide-spread practice constituting custom. In order to prevail under this prong of the Johnson definition for official policy, Plaintiff must show that the practice is so common as to constitute a custom that fairly represents municipal policy and that actual or constructive knowledge of that custom is attributed to the governing body or an official of that body with policy-making authority. In addition, the "plaintiff must demonstrate that a municipal decision reflects deliberate indifference to the risk that a violation of a particular constitutional or statutory right will follow the decision." A plaintiff claiming under section 1983 must "demonstrate that, through its deliberate conduct, the municipality was the `moving force' behind the injury alleged."
Johnson, 958 F.2d at 94.
Board of County Comm'rs of Bryant County v. Brown, 520 U.S. 397, 411 (1997).
Id. at 403 (emphasis in original).
In order to demonstrate that the conduct of Officer Bell or other officers rises to the level of a county custom, "those actions must have occurred for so long or so frequently that the course of conduct warrants the attribution to the government body of knowledge that the objectionable conduct is the expected, accepted practice of [county] employees." Isolated incidents will be insufficient to show the existence of a custom or policy. However, in this case, Plaintiff has alleged and has testified under oath that other similar incidents occurred and that the County knew of these incidents and failed to act to protect the rights of the people in contact with officers. Both with respect to custom and to the County's knowledge, the County has failed to carry its burden under the summary judgment standard. The County has not adduced any evidence of a lack of custom, although the Court concedes that such evidence would be difficult to conceive of. More importantly, on the crucial issue of what the County's policy makers knew or did not know and when, the County has produced no evidence whatsoever. Not so much as one affidavit of a policy-maker or supervisor has been produced to the Court averring that the County was unaware that an officer exchanged sexual relations for a reduction in the crime charged. Instead, the County claims that summary judgment should be entered in its favor on all of Plaintiff's claims of constitutional violations because Plaintiff has not produced evidence of a custom to support governmental liability under the standard articulate above. The County has misconstrued the burdens relevant to summary judgment. The moving party must produce evidence that there is not genuine issue of material fact disputed, and viewing the facts in the light most favorable to the non-moving party, the Court must agree.
Webster v. City of Houston, 735 F.2d 838, 842 (5th Cir. 1984).
Again, if the dispositive issue is one on which the nonmoving party will bear the burden of proof at trial, the moving party may satisfy its burden by merely pointing out that the evidence in the record contains insufficient proof concerning an essential element of the nonmoving party's claim. The County has so argued. The burden then shifts to the nonmoving party, who must, by submitting or referring to evidence, set out specific facts showing that a genuine issue exists. Plaintiff relies upon her own deposition to demonstrate that both repeated similar events occurred to constitute a custom within the County and that the proper officials were aware of the conduct and through their omissions permitted the customary conduct to continue. Plaintiff, here the nonmovant, has not rested upon her pleadings, but has identified two specific prior incidents. More importantly, the County's failure to present evidence that no material factual issue exists as to the County's knowledge of the prior incidents presented by Plaintiff prevents the Court from determining that the Plaintiff's evidence, if proven up at trial, "is insufficient to enable a reasonable jury to return a verdict in [her] favor."
See Celotex, 477 U.S. at 325; see also Lavespere, 910 F.2d at 178.
See Celotex, 477 U.S. at 324.
Lavespere v. Niagara Mach. Tool Works, Inc., 910 F.2d 167, 178 (5th Cir. 1990) ( citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)).
Conclusion
Accordingly, the Court GRANTS IN PART and DENIES IN PART Defendant's motion for summary judgment (Docket No. 28). Plaintiff's claims arising under the Texas Tort Claims Act are DISMISSED WITH PREJUDICE. Plaintiff's failure to train claim against Bexar County is DISMISSED WITH PREJUDICE. Plaintiff's remaining § 1983 claims against Bexar County survive summary judgment. Trial is set for April 12, 2004.Finally, because the County's motion for summary judgment was denied in relevant party without necessitating the Court's consideration of the affidavit of Rafael Hernandez, the County's motion to strike (Docket No. 39) is DENIED.