Opinion
CIVIL ACTION, NO. 01-1574, SECTION "C" (1)
November 18, 2002
MINUTE ENTRY
This matter comes before the Court on motion for summary judgment filed by the defendant City of New Orleans ("City"). Having reviewed the record, the memoranda of counsel and the law, the Court has determined that summary judgment is appropriate for the following reasons.
The plaintiff, Jean Wild ("Wild"), has sued under 42 U.S.C. § 1983 and state law for allegedly wrongful activity attendant to her 2000 arrest and imprisonment. Included as a named defendant is City of New Orleans ("City").
The individual arresting police officers, named as "John Doe" defendants, were previously dismissed.
The City maintains in this motion that it is subject to dismissal because the plaintiff has failed to properly allege a custom, policy or practice sufficient to invoke liability under Monell v. Department of Social Services, 98 U.S. 2018 [ 436 U.S. 658] (1978) The plaintiff's original complaint contains the following paragraph:
XVII.
At all times pertinent hereto all of the officers/deputies . . . followed standard policies and procedures adopted and/or promulgated by the City of New Orleans and the New Orleans Police Department and authorized by the City of New Orleans and the New Orleans Police Department.
Other paragraphs of the original complaint are referenced by the plaintiff in her opposition, but they make no mention of a relevant policy or custom. (Rec. Doc. 29, pp. 3-4).
The plaintiff has been afforded an extra opportunity to allege her claim against the City. In her first supplemental and amended complaint, she alleges that the City is liable because she "was handcuffed pursuant to official policy and/or custom of the New Orleans Police Department" and because "officers with the New Orleans Police Department were acting pursuant to official policy or custom in handing over [plaintiff] to the custody and care of the Orleans Parish Criminal Sheriff's Office when they knew or should have known of the Orleans Parish Criminal Sheriff's Office official policy and/or custom of performing strip searches." (Rec. Doc. 25, ¶¶ VI, XIX(A).
It is important to note that the plaintiff is not alleging that the City is responsible for the actions of the co-defendant, Sheriff Charles Foti or any of his policies or customs. In addition, ample opportunity for discovery has been provided. Nothing further is provided with regard to the sources of the underlying policies of the City in the plaintiff's opposition.
The relevant policy or custom must be specified in a Section 1983 case against a municipality.
Municipal liability for section 1983 violations results if a deprivation of constitutional rights was inflicted pursuant to official custom or policy. Official policy is ordinarily contained in duly promulgated policy statements, ordinances or regulations. But a policy may also be evidenced by custom, that is
. . . 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. . . Actions of officers or employees of a municipality do not render the municipality liable under section 1983 unless they execute official policy as above defined.
While an unconstitutional official policy renders a municipality culpable under § 1983, even a facially innocuous policy will support liability if it was promulgated with deliberate indifference to the "known or obvious consequences" that constitutional violations would result. . . . Deliberate indifference of this sort is a stringent test, and "a showing of simple or even heightened negligence will not suffice" to prove municipal culpability. . . . It follows that each and every policy which allegedly caused constitutional violations must be specifically identified by a plaintiff, and it must be determined whether each one is facially constitutional or unconstitutional.Piotrowski v. City of Houston, 237 F.3d 567, 579-580 (5th Cir. 2001) (citations and footnotes omitted) (emphasis added). "We have consistently required a plaintiff to plead `specific facts, not merely conclusory allegations.' . . . A § 1983 plaintiff must plead specific facts with sufficient particularity to meet all the elements of recovery. . . . This heightened pleading requirement applies to allegations of municipal custom or policy." Fraire v. City of Arlington, 957 F.2d 1268, 1278 (5th Cir. 1992) (citations footnotes omitted). "Allegations of a single isolated incident are not sufficient to show the existence of a custom or policy." Id.
The Court finds that the plaintiff's showing falls short of the mark. Nothing more than a general recitation of the policy/custom requirement is contained in the complaint, amended complaint and the opposition. The plaintiff, who is represented by counsel, has been given an opportunity for discovery and amendment.
Finally, the City asks that the remaining state law claims against it be dismissed. The Section 1983 claim was only federal claim against the City of New Orleans, but a federal claim against the co-defendant remains pending. The Court has found limited Fifth Circuit authority for the proposition that dismissal of the state law claims against the City under 28 U.S.C. § 1367(c)(3) is appropriate when a federal claim against a co-defendant remains pending. See Thompson v. Upshur County, Tx, 245 F.3d 447, 464 (5th Cir. 2001). Assuming that the dismissal of the federal claim against a single defendant satisfies Section 1367(c)(3), the other factors set forth in that Section 1367(c) weigh against dismissing the state law claims against the City.
Section 1367(c) provides that the district court may decline to exercise supplemental jurisdiction over a claim in a federal question matter if:
(1) the claim raises a novel or complex issue of State law,
(2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction,
(3) the district court has dismissed all claims over which it has original jurisdiction,
(4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction.
Accordingly,
IT IS ORDERED that motion for summary judgment filed by the defendant City of New Orleans is PARTIALLY GRANTED and PARTIALLY DENIED.