Opinion
No. 1:05-CV-109.
September 15, 2005
REPORT AND RECOMMENDATION RE MUNICIPAL DEFENDANTS' MOTION TO DISMISS
This case is referred to the undersigned United States magistrate judge for pretrial proceedings. The referral order directs the magistrate judge to hear and determine matters within his dispositive authority, and to submit a report containing proposed findings of fact, conclusions of law, and a recommended disposition of other matters. Bmt. Gen. Order 04-07 at ¶ 2.
All defendants move for dismissal, or, alternatively, for a more definite statement or Rule 7 reply. This is the second in a series of three reports dealing with the motion. For analytical simplicity, this report concerns only the motion of the municipal defendants, City of Beaumont and City of Beaumont Police Department.
I. NATURE OF SUIT; PARTIES; BACKGROUND
The procedural history of this action, the parties, the claims and defenses asserted, and the alleged factual background are stated in an earlier report. See Report Recommendation of United States Magistrate Judge, 1:05cv109 (Docket No. 19) (herein "Initial Report"). Those recitations are incorporated into this report by reference.It suffices here to state summarily that plaintiff alleges that she was subjected to unnecessary and excessive force at the hands of municipal police officers. She seeks to recover for alleged injuries on theories of negligence, violation of federal rights, and conspiracy to interfere with civil rights. Her negligence action is premised on the Texas Tort Claims Act. She asserts civil rights claims under the Civil Rights Act of 1871, codified at Title 42, United States Code, Sections 1983 and 1985 (hereafter "Section 1983" and "Section 1985" respectively.)
Texas Tort Claims Act, 1985 Tex. Gen. Laws 3242, 3322 (codified as amended at Tex. Civ. Prac. Rem. Code Ann. § 101.001-.109 (Vernon 2004)).
Two named defendants are City of Beaumont and City of Beaumont Police Department. They move for dismissal or for more definite statement or Rule reply, along with the other defendants.
II. DEFENDANTS' MOTION
The motion to dismiss was filed by all defendants, collectively. Because principles of analysis vary by defendant, all arguments advanced in the motion are not necessarily relevant to each defendant's potential liability. This section, therefore, mentions only those arguments pertinent to municipal defendants.The municipal defendants do not seek dismissal of plaintiff's negligence cause of action under the Texas Tort Claims Act. However, they argue plaintiff's civil rights claims under Sections 1983 and 1985 should be dismissed because plaintiff proffers only conclusory allegations.
Plaintiff's response argues that federal rules of pleading require liberal construction, only a short and concise statement of facts sufficient to provide notice of the nature of plaintiff's claim, and that orders requiring more definite statements are disfavored. Plaintiff does not address, except elliptically, the contention that federal civil rights causes of action fail to state a claim upon which relief can be granted when the petition or complaint contains only conclusory allegations.
III. PRINCIPLES OF ANALYSIS
The Initial Report identified and discussed generally (a) relevant portions of state law, (b) federally-protected rights implicated by plaintiff's petition, (c) relevant federal rules of civil procedure, (d) essential elements of causes of action under Sections 1983 and 1985, and (e) pleading requirements for claims of conspiracy to interfere with civil rights under Section 1985. Those discussions are incorporated herein by reference. In addition, proper analysis of the municipal defendants' motion requires a discussion of parties amenable to suit and municipal liability in the context of federal civil rights actions.
A. Jural Capacity
The capacity of an entity to sue or be sued is determined by the law of the state in which the district court is held. Fed.R.Civ.P. 17(b). In Texas, municipal governments generally are configured as home rule cities under the Texas Local Government Code. See Darby v. Pasadena Police Dep't, 939 F.2d 311, 313 (5th Cir. 1991); Hutchison v. Brookshire Bros., Ltd., 284 F. Supp. 2d 459, 465 n. 4 (E.D. Tex. 2003) (Schell, J.); Paredes v. City of Odessa, 128 F. Supp. 2d 1009, 1013 (W.D. Tex. 2000). Home rule charters generally reserve to municipalities the power to sue and be sued. Darby, 939 F.2d at 313. Moreover, the Code grants authority to organize a police force to the city itself. Tex. Loc. Gov't Code Ann. § 341.003 (Vernon 2005).
A Texas city is allowed to designate whether one of its own subdivisions can be sued as an independent entity. Darby, 939 F.2d at 313. Absent this authorization, suits against the subdivision alone are improper and cannot proceed. Id.
B. Municipal Liability in Civil Rights Actions
The law presumes that municipalities are incapable of entering into conspiracies. See Benningfield v. City of Houston, 157 F.3d 369, 378 (5th Cir. 1998); Hilliard v. Ferguson, 30 F.3d 649, 653 (5th Cir. 1994). Hence, municipalities cannot be liable in actions brought pursuant to Section 1985. For Section 1983 purposes, however, municipalities are deemed to be "persons" susceptible to suit. Monell v. Dep't of Soc. Serv. of City of New York, 436 U.S. 658, 690 (1978); Meadowbriar Home for Children, Inc. v. Gunn, 81 F.3d 521, 532 (5th Cir. 1996).
Municipalities enjoy neither Eleventh Amendment nor qualified immunity. Leatherman v. Tarrant County Narcotics Intelligence Coordination Unit, 507 U.S. 163, 166 (1993) (qualified immunity); Monell, 436 U.S. at 691 n. 54 (Eleventh Amendment). However, vicarious liability under the common law doctrine of respondeat superior cannot be imposed against a municipality in a Section 1983 case. Monell, 436 U.S. at 691; Hutchison v. Brookshire Bros., Ltd., 284 F. Supp. 2d 459, 472-73 (E.D. Tex. 2003) (Schell, J.). Nor does common-law negligence provide a basis for liability in a Section 1983 action. See Daniels v. Williams, 474 U.S. 327, 332 (1986) (stating that the court has consistently "rejected reasoning that 'would make of the Fourteenth Amendment a font of tort law to be superimposed upon whatever systems may already be administered by the states'") (citing Paul v. Davis, 424 U.S. 693, 701 (1976)); Johnson v. Deep East Texas Regional Narcotics Trafficking Task Force, 379 F.3d 293, 309 (5th Cir. 2004) (citing Johnson v. Moore, 958 F.2d 92, 94 (5th Cir. 1992)). Rather, a successful Section 1983 action against a municipality must be based upon violation of federally-protected rights through implementation or execution or a policy or custom adopted by that body's officers. Monell, 436 U.S. at 691;Krueger v. Reimer, 66 F.3d 75, 76 (5th Cir. 1995). Local governments are liable only when a plaintiff proves that an official policy or custom of the entity's final policy-maker was the "moving force" that caused deprivation of a constitutional right. Monell, 436 U.S. at 692; Bennet v. Pippin, 74 F.3d 578, 586 (5th Cir. 1996). Stated succinctly:
It is [only] when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983.Monell, 436 U.S. at 694. The Fifth Circuit views the essential elements of a Section 1983 claim against a municipality as being:
1. A policy or custom existed;
2. The governmental policy makers actually or constructively knew of its existence;
3. A constitutional violation occurred; and
4. The custom or policy served as the moving force behind the violation. Meadowbriar Home for Children, Inc. v. Gunn, 81 F.3d 521, 532-33 (5th Cir. 1996) (citing Palmer v. City of San Antonio, 810 F.2d 514, 516 (5th Cir. 1987)). See also Grandstaff v. City of Borger, Texas, 767 F.2d 161, 169 (5th Cir. 1985).
Grandstaff v. City of Borger articulated the elements as being (1) a policy (2) of the city's policy-maker (3) that caused (4) the plaintiff to be subjected to deprivation of a constitutional right.
For purposes of Section 1983, policies need not be formal regulations, ordinances or resolutions. An informal policy can be inferred from conduct that reflects "practices of state officials so permanent and well-settled as to constitute a 'custom or usage' with the force of law." Monell, 436 U.S. at 691 (quotingAdickes v. S.H. Kress Co., 398 U.S. 144, 167-68 (1970)). Thus, the Fifth Circuit defines "official policy" as:
a. A policy, statement, ordinance, regulation, or decision that is officially adopted and promulgated by the county's lawmaking officers or by an official to whom the lawmakers have delegated policy-making authority; or
b. A persistent widespread practice of city officials or employees, which . . . is so common and well settled as to constitute a custom that fairly represents municipal policy.Palmer v. City of San Antonio, 810 F.2d 514, 516 (5th Cir. 1987), rev'd on other grounds, Leatherman v. Tarrant County Narcotics Intelligence Coordination Unit, 507 U.S. 163 (1993).
Acts of omission, as well as commission, may serve as a predicate for finding a policy or custom. Doe v. Taylor Indep. Sch. Dist., 15 F.3d 443, 463 (5th Cir. 1994) (stating that "[w]here a municipality's inaction demonstrates deliberate indifference toward the rights of an individual, the municipality commits an act of omission"); Oviatt v. Pearce, 954 F.2d 1470, 1477 (9th Cir. 1992) (holding that "[t]he decision not to take any action . . . constitutes a policy for purposes of § 1983 municipal liability").
Inadequate training of municipal officers can be deemed official policy. City of Canton v. Harris, 489 U.S. 378, 389 (1989). To be actionable, however, the municipality's inadequate training policy must not only be a moving force behind a constitutional violation, but must also evidence deliberate indifference to the constitutional rights of persons with whom its officers come into contact. Id. at 388. The Fifth Circuit specifically recognizes that inadequacy of police training may serve as a basis for Section 1983 liability when it amounts to deliberate indifference to the rights of persons with whom police come into contact. See Burge v. Parish of St. Tammany, 187 F.3d 452, 472 (5th Cir. 1999). By logical extension, inadequate policies regarding supervision also serve as a basis for municipal Section 1983 liability when similar circumstances are present. Bowen v. Watkins, 669 F.2d 979, 988 (5th Cir. 1982).
The specific act of omission of failure to supervise usually gives rise to Section 1983 liability only in situations in which there is a history of widespread abuse. Id. at 988. Absent such, courts are reluctant to impute knowledge to supervisory or policy-making officials, and absent imputed knowledge, courts cannot find deliberate indifference.
IV. APPLICATION
A. City of Beaumont Police Department
The City of Beaumont is a home rule city whose charter provides that the City "may sue and be sued and shall have all the powers granted to cities by the Constitution and Laws of the State of Texas." Beaumont Charter art. II, § 1. That Charter also provides that the City "may make and enforce all police . . . regulations." Id. It does not, however, designate its police department as an independent entity capable of suing and being sued. Moreover, plaintiff neither pleads nor offers proof that the city has conferred independent jural capacity on its police department.
Charter of City of Beaumont, Texas, City of Beaumont (revised September 16, 2003), available at http://www.cityofbeaumont.com.
In absence of such pleading or proof, suit against the police department itself is improper. Darby, 939 F.2d at 313. Consequently, the defendant, "City of Beaumont Police Department" should be dismissed for lack of jural capacity.
B. Section 1985 Conspiracy Allegations
Since as a matter of law the remaining municipal defendant, the City of Beaumont, is incapable of entering into a conspiracy, plaintiff's petition fails to assert a cognizable claim under Section 1985. The Section 1985 cause of action against the city should be dismissed for that reason, and also because plaintiff's petition contains only conclusory allegations. See Initial Report, § V.B (citing cases holding that conclusory allegations insufficient to state a cognizable conspiracy claim under 42 U.S.C. § 1985).
C. Section 1983 Allegations
There is no heightened pleading requirement for Section 1983 suits against municipalities. Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163 (1993). Thus, the liberal system of notice pleading established in Fed.R.Civ.P. 8(a)(2) governs plaintiff's claim against the City of Beaumont. Id. at 168. That means:
[T]he Federal Rules of Civil Procedure do not require a claimant to set out in detail the facts upon which he bases his claim. To the contrary, all the Rules require is 'a short and plain statement of the claim' that will give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests.Conley v. Gibson, 355 U.S. 41, 47 (1957) (footnote omitted).
Construing plaintiff's petition liberally, plaintiff alleges that the city's policy-making authority in police matters is delegated to its police chief, Tom Scofield; that a pattern of widespread abuse exists in the use of force generally, and taser guns in particular, against black citizens; and that Chief Scofield's failure to intervene and stop such abuse is an act of omission amounting to an actionable policy of inadequate supervision which is a moving force behind the alleged violation of constitutional rights. Consequently, plaintiff's petition states a cognizable claim upon which relief can be granted. Moreover, while the petition is devoid of specific factual allegations that support the claim, it is not so vague or ambiguous that the city cannot reasonably be required to frame a responsive pleading.
These determinations lead to a conclusion that the city's motion to dismiss plaintiff's Section 1983 cause of action for failure to state a claim, and its alternative motions for a more definite statement or a Rule 7 reply, must be denied. If this claim is so unmeritorious as to require the court to weed it out earlier than a plenary trial, the city must rely on summary judgment and control of discovery. See Leatherman, 507 U.S. at 168-69.
V. RECOMMENDATIONS
1. The court should dismiss "City of Beaumont Police Department" as a defendant in this action for lack of jural capacity.
2. The court should partially grant the City of Beaumont's Rule 12(b)(6) motion, and dismiss plaintiff's cause of action against the City of Beaumont under Section 1985 for failure to assert a cognizable legal theory.
3. The court should partially deny the City of Beaumont's Rule 12(b)(6) motion, and also deny the City of Beaumont's Rule 7 and Rule 12(e) motions for more definite statement regarding plaintiff's cause of action against the City of Beaumont under Section 1983.
VI. OBJECTIONS
Objections must be: (1) specific, (2) in writing, and (3) served and filed within ten days after being served with a copy of this report. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 1(a), 6(b), and 72(b).A party's failure to object bars that party from: (1) entitlement to de novo review by a district judge of proposed findings and recommendations, Rodriguez v. Bowen, 857 F.2d 275, 276-77 (5th Cir. 1988), and (2) appellate review, except on grounds of plain error, of unobjected-to factual findings and legal conclusions accepted by the district court, Douglass v. United Servs. Auto. Ass'n., 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc).