Opinion
Civil No. 3: 03-CV-2099-H.
October 5, 2004
MEMORANDUM OPINION AND ORDER
Before the Court are Defendant City of Dallas's Motion for Summary Judgment, filed August 16, 2004; Plaintiff's Response, filed September 7, 2004; and Defendant's Reply, filed September 22, 2004. Having considered the motions, briefs, and supporting evidentiary submissions of both parties, and for the reasons set forth below, the Court concludes that there are no genuine issues of material fact as to Plaintiff's claims against the City of Dallas and therefore the City of Dallas is entitled to summary judgment as a matter of law. Accordingly, Defendant's Motion for Summary Judgment should be GRANTED in its entirety. Based upon the Court's conclusions as a matter of law, Plaintiff's claims against Arapaho Venture Ltd. must be DISMISSED.
I. Background
On September 9, 2001, Plaintiff Darin Curtis ("Curtis") was leaving the Times Square night club on Arapaho Road in Dallas, Texas, with his friends. Defendants Steven Solaja ("Officer Solaja") and Jose Guzman ("Officer Guzman") are both Dallas Police Officers who were working, in full police uniforms, security in the parking lot of Times Square that night. (Def.'s Mot. at 3.) Such employment is approved off-duty employment by the Dallas Police Department. (Id.) Plaintiff claims that he accidentally bumped into Officer Solaja as he was leaving the night club and that he and Officer Solaja exchanged words. (Pl.'s App. at 27-31.) Plaintiff claims that Officer Solaja "tackled" him from behind, inflicting injuries upon Plaintiff. (Pl.'s App. at 31.) Officer Solaja's conduct was investigated by the Internal Affairs Department of the Dallas Police Department and resulted in disciplinary action against Officer Solaja by inserting "a supervisor report" in his file. (Pl.'s App. at 14, 15, 23.)
On August 14, 2003, Plaintiff filed the instant case in the 116th Judicial District Court of Dallas County, Texas. Plaintiff asserts causes of action against the City of Dallas under § 1983 and Texas state law. Defendants removed to this court on September 15, 2003. Defendant City of Dallas now moves for summary judgment on all of Plaintiff's claims against it, denying liability for the officers' actions. For the following reasons, the Court concludes that they cannot and that Defendant City of Dallas's Motion for Summary Judgment must be GRANTED as to all of Plaintiffs claims against Defendant City of Dallas.
Although Defendant City of Dallas references the assault and battery claims in its Motion, it fails to address them in its Brief.
II. Legal Standards
Summary judgment is appropriate where the facts and law as represented in the pleadings, affidavits and other summary judgment evidence show that no reasonable trier of fact could find for the nonmoving party as to any material fact. FED. R. CIV. P. 56; Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888 (1990); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986); Innovative Database Sys. v. Morales, 990 F.2d 217 (5th Cir. 1993). "The moving party bears the initial burden of identifying those portions of the pleadings and discovery in the record that it believes demonstrate the absence of a genuine issue of material fact, but is not required to negate elements of the nonmoving party's case." Lynch Prop., Inc. v. Potomac Ins. Co. of Ill., 140 F.3d 622, 625 (5th Cir. 1998) (citing Celotex, 477 U.S. at 322-25).
If the movant fails to meet its initial burden, the motion must be denied, regardless of the nonmovant's response. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). If the movant meets its burden, the nonmovant must go beyond the pleadings and designate specific facts showing that a genuine issue of material fact exists for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Edwards v. Your Credit, Inc., 148 F.3d 427, 431 (5th Cir. 1998). The moving party may meet its initial burden "by 'showing' — that is, pointing out to the district court — that there is an absence of evidence to support the non-moving party's case." Celotex, 477 U.S. at 325. A party opposing summary judgment may not rest on mere conclusory allegations or denials in its pleadings unsupported by specific facts presented in affidavits opposing the motion for summary judgment. FED. R. CIV. P. 56(e); Lujan, 497 U.S. at 888; Hightower v. Texas Hosp. Ass'n, 65 F.3d 443, 447 (5th Cir. 1995).
In determining whether genuine issues of material fact exist, "[f]actual controversies are construed in the light most favorable to the nonmovant, but only if both parties have introduced evidence showing that a controversy exists." Lynch, 140 F.3d at 625; see also Eastman Kodak v. Image Technical Servs., 504 U.S. 451 (1992). However, in the absence of any proof, the Court will not assume that the nonmoving party could or would prove the necessary facts. Lynch, 140 F.3d at 625. A party must do more than simply show some "metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586. "If the record, taken as a whole, could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial." Friou v. Phillips Petroleum Co., 948 F.2d 972, 974 (5th Cir. 1991).
III. Analysis
Defendant moves for summary judgment on the grounds that Plaintiff has not demonstrated: (1) that the City of Dallas cannot be held liable under a theory of respondeat superior; and (1) that a policy, practice, or custom of the City of Dallas caused a constitutional deprivation imposing municipal liability under 42 U.S.C. § 1983, or that a constitutional deprivation even occurred.
A. Municipal Liability Under § 1983
It is well established that an individual has a constitutional right to be free from a law enforcement officer's use of excessive force. See Graham v. Connor, 490 U.S. 386, 395 (1989); Mace v. City of Palestine, 333 F.3d 621, 624 (5th Cir. 2003); Gutierrez v. City of San Antonio, 139 F.3d 441, 452 (5th Cir. 1998); Colston v. Barnhart, 130 F.3d 96, 99 (5th Cir. 1997); Spann v. Rainey, 987 F.2d 1110, 1115-16 n. 8 (5th Cir. 1993). However, while liability exists for constitutional deprivations, § 1983 affords no respondeat superior liability. Pineda v. City of Houston, 291 F.3d 325, 328 (5th Cir. 2002). For § 1983 liability to attach to a municipality for the actions of its agents or officers, there must be proof of "(1) an official policy (or custom), of which (2) a policy maker can be charged with actual or constructive knowledge, and (3) a constitutional violation whose "moving force" is that policy (or custom)." Id.; Monell v. Dep't of Soc. Servs., 436 U.S. 658 (1978).
(1) Official Policy
An official policy may be a statement, ordinance, regulation, or decision, or it may be "[a] persistent, widespread practice of city officials or employees, which, although not authorized by officially adopted or promulgated policy, is so common and well settled as to constitute a custom that fairly represents municipal policy." Johnson v. Deep East Texas Regional Narcotics Trafficking Task Force, 379 F.3d 293 (5th Cir. 2004). An officially promulgated policy is only that which is "officially adopted and promulgated by the municipality's lawmaking officers." Webster v. City of Houston, 735 F.2d 838, 841 (5th Cir. 1984). A lawmaking officer is that officer which has "final authority to establish municipal policy. . . . A city's employee, agency, or board is not a policymaker unless the city, through its lawmakers, has delegated exclusive policymaking authority to that employee, agency, or board." St. Louis v. Praprotnik, 485 U.S. 112 (1988) (emphasis added). The Dallas City Charter establishes that the Dallas City Council retains final authority for promulgating all police regulations and does not delegate policy-making authority to the Chief of Police. See Dallas City Charter, ch. III, sec. 1, 13, ch. XII, sec. 2(1).
To prove the alleged official policy, Plaintiff asserts that the City of Dallas does not provide anger management training for and does not conduct periodic psychological evaluations of police officers. (Pl.'s App. at 88.) Although the failure to train may constitute a policy for purposes of imposing municipal liability under § 1983, City of Canton v. Harris, 489 U.S. 378 (1989), Plaintiff must also provide evidence showing that but for the lack of training or evaluations, no injury would have occurred.
The Court notes that while periodic psychological evaluation of police officers by the Dallas Police Department may be a good policy goal, it is not clear that failure to do so may be equated with a failure to train for purposes of establishing municipal liability under § 1983. The Court need not address this issue to resolve the instant case.
Assuming arguendo that a policy does exist, Plaintiff has failed to provide any evidence as to causation. That Plaintiff provided evidence attempting to establish that Defendant Solaja became agitated and used profanity with little provocation (Pl.'s App. at 22) is insufficient to establish causation. Where, as here, "an alleged policy or custom is facially innocuous, establishing the requisite official knowledge [to impose municipal liability under § 1983] requires that a plaintiff establish that an official policy was 'promulgated with deliberate indifference to the "known or obvious consequences" that constitutional violations would result.'" Burge v. St. Tammany Parish, 336 F.3d 363, 370 (5th Cir. 2003), citing Piotrowski v. City of Houston, 237 F.3d 567, 579 (5th Cir. 2001) (internal quotation omitted). Plaintiff has failed to allege or provide any evidence of how Defendant City's training and psychological evaluation of police officers, or the City's approval of the Dallas Police Department training program, is so deficient as to demonstrate a deliberate indifference of the rights of others. See Abdeljalil v. City of Fort Worth, 55 F.Supp.2d 614 (N.D. Tex. 1999) (citing Rhyne v. Henderson County, 973 F.2d 386, 392 (5th Cir. 1992)); see also Adams v. City of Balcones Heights, No. Civ.A. SA-03-CA-0219, 2004 WL 1925444, at *4 (W.D. Tex. Aug. 27, 2004) (slip copy) (citing Gros v. City of Grand Prairie, 209 F.3d 431, 433 (5th Cir. 1999)). To the contrary, there is undisputed evidence that Defendant City of Dallas trains its police officers and has policies prohibiting the excessive use of force. (Def.'s App. at 14-17, 34, 42-52.)
Plaintiff has also not provided the Court any evidence tending to establish the mental instability of either Defendant officer which might have been identified and corrected by periodic psychological evaluations not otherwise identifiable and correctable through the annual evaluations or daily interaction. As a result, Plaintiff has failed to establish a genuine issue of material fact as to whether a Defendant City of Dallas's policy caused Plaintiff's injuries.
(2) Practice or Custom
Plaintiff may nevertheless raise a viable § 1983 claim against the City of Dallas by proving that a "persistent, widespread practice" or custom condoning or allowing the use of excessive force illustrates a deliberate indifference to the rights of others rising in magnitude to the level of an official policy. "[A]n act performed pursuant to a 'custom' that has not been formally adopted by an appropriate decision maker may fairly subject a municipality to liability on the theory that the relevant practice is so widespread as to have the force of law." Bd. of County Comm'rs of Bryan County v. Brown, 520 U.S. 397, 404 (1997). To impose liability on a municipality for a custom or practice that violates constitutional rights, a plaintiff must: (1) identify the specific custom; (2) attribute the custom and fault for its existence to the municipality; and (3) demonstrate causality between the custom and the violation. See Abdeljalil v. City of Fort Worth, 55 F.Supp.2d 614 (N.D. Tex. 1999). "To prove the second element, plaintiff must demonstrate that the people or governmental body charged with policy-making authority had actual or constructive knowledge of such 'custom.'" Id. at 621 (citing Bennett v. City of Slidell, 735 F.2d 861, 862 (5th Cir. 1984) (en banc)).
Plaintiff has failed to provide evidence as to other such circumstances or even repeated instances of excessive force against the same individual. See Grandstaff v. City of Borger, 767 F.2d 161, 171 (5th Cir. 1985). In City of Oklahoma City v. Tuttle, 471 U.S. 808 (1985), the Supreme Court clarified whether evidence of a single incident of police misconduct is adequate to infer a municipal policy illustrating a deliberate indifference of the rights of others, i.e. knowledge and acquiescence by a city policymaker:
Proof of a single incident of unconstitutional activity is not sufficient to impose liability under Monell, unless proof of the incident includes proof that it was caused by an existing, unconstitutional municipal policy, which policy can be attributed to a municipal policymaker. . . . But where the policy relied upon is not itself unconstitutional, considerably more proof than the single incident will be necessary in every case to establish both the requisite fault on the part of the municipality, and the causal connection between the "policy" and the constitutional deprivation.Tuttle, 471 U.S. at 824. The Supreme Court held it was error to allow the jury to "infer from a single unusually excessive use of force . . . that it was attributable to inadequate training or supervision amounting to deliberate indifference or gross negligence on the part of the officials in charge." Tuttle, 481 U.S. at 821. "To impose liability under those circumstances would be to impose it simply because the municipality hired one 'bad apple.'" Id. Therefore, Plaintiff falls short of the evidentiary burden required to establish a "persistent, widespread practice" of using or condoning the use of excessive force. See Frairie v. City of Arlington, 957 F.2d 1268, 1281 (5th Cir. 1992). Furthermore, Plaintiff has offered no evidence that the policymakers of the municipality had or should have had any knowledge of the alleged policy of condoning or allowing the use of excessive force.
Plaintiff next attempts to establish that the municipality has an unofficial policy condoning excessive force through an indirect claim that there exists a "persistent, widespread practice" or custom of minimally disciplining police officers for instances of excessive force. (Pl.'s Mot. at 4.) "The disposition of the policymaker may be inferred from his conduct after the events. . . . If that episode of such dangerous recklessness obtained so little attention and action by the City policymaker, the jury was entitled to conclude that it was accepted as the way things are done and have been done in the City. . . ." Grandstaff, 767 F.2d at 171.
The instant case is distinguishable from Grandstaff because disciplinary action was taken in the form of an Internal Affairs investigation and no repeated instances of constitutional violations were alleged. Although Plaintiff has provided evidence that a more lenient disciplinary action was taken against Solaja regarding the instant excessive force complaint than was taken for his dishonesty toward a supervisor, this evidence is insufficient to establish any inference that there was so limited attention paid that a reasonable juror might find the City of Dallas to have a policy tolerating excessive force. An investigation which resulted in disciplinary action was conducted, a significant distinction from Grandstaff, where no investigation or review was conducted upon receipt of a complaint. Even if the instant disciplinary action is determined to be minimal, that alone is insufficient to establish summary judgment evidence of a Defendant City of Dallas policy tolerating the use of excessive force. Additionally, Plaintiff offers no evidence that establishes that the City of Dallas had or should have had knowledge of the alleged policy of minimally disciplining officers for the use of excessive force.
The Court also notes that Plaintiff's claim of a policy of minimally disciplining police officers for excessive force was not raised in Plaintiff's Complaint. A Plaintiff "may not assert new claims in a response to a motion for summary judgment." Wood Arts Golf, Inc. v. Callaway Golf Co., 196 F.Supp.2d 467, 469 n. 1 (S.D. Tex. 2002). Therefore, the Court does not fully entertain this claim, but only notes that such a claim would fail due to a lack of summary judgment evidence demonstrating the existence of an identifiable policy regarding supervision or discipline of officers in connection with public intoxication charges which would support Plaintiff's inference of deliberate indifference to the rights of others. See Mason v. Stock, 955 F.Supp. 1293 (D.Kan. 1997). As a result, the Court GRANTS Defendant City of Dallas's Motion for Summary Judgment as to Plaintiff's § 1983 claims against the City of Dallas.
B. Municipal Liability Under Texas Law
As to Plaintiff's state law claims of assault and battery, the Court must evaluate the liability of Defendant City of Dallas under Texas law. Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938). Under Texas law, a plaintiff may raise a claim against government officials in both their personal and official capacities. Harris County v. Walsweer, 930 S.W.2d 659, 665 (Tex.App.-Houston [1st Dist.] 1996). A suit against a government official should be in all respects other than name "treated as a suit against the entity. It is not a suit against the official personally, for the real party in interest is the entity." Kentucky v. Graham, 473 U.S. 159, 165-66 (1985). A police officer is considered an agent of the municipality. See Blackwell v. Harris County, 909 S.W.2d 135, 138 (Tex.App.-Houston [14th Dist.] 1995). A suit against a police officer in her official capacity, therefore, is to be treated as a suit against the municipality. See Will v. Michigan Dep't of State Police, 491 U.S. 58, 71 (1989).
The first question the Court must address is whether the police officer was acting in an official capacity. This determination is made by analyzing the capacity of her actions at the time of the alleged acts forming the basis of the complaint. Cherqui v. Westheimer Street Festival Corp., 116 S.W.3d 337, 344 (Tex.App.-Houston [14th Dist.] 2003).
If the officer is performing a public duty, such as the enforcement of general laws, the officer's private employer incurs no vicarious responsibility for that officer's acts, even though the employer may have directed the activities. If the officer was engaged in protecting the employer's property, ejecting trespassers, or enforcing rules and regulations promulgated by the employer, however, the trier of fact decides whether the officer was acting as a public officer or as a servant of the employer.Mansfield v. C.F. Bent Tree Apartment Ltd. P'ship, 37 S.W.3d 145, 150 (Tex.App.-Austin 2001). Upon seeing an individual commit a crime, an off-duty officer becomes an on-duty officer as a matter of law when determining vicarious liability of the private employer. See Cherqui, 116 S.W.3d at 344; Blackwell v. Harris County, 909 S.W.2d 135, 138 (Tex.App.-Houston [14th Dist.] 1995).
Although no evidence is presented by either side that the alleged assault and battery was incident to an arrest, the evidence indicates that Plaintiff was arrested by Defendants Solaja and Guzman. "Defendant Solaja's conduct during the arrest was investigated by the Internal Affairs Department." (Pl.'s Resp. at 3; Def.'s App. at 31.) The only evidence presented on the issue establishes that Defendant Guzman was in the process of arresting Plaintiff for public intoxication and resisting arrest. (Pl.'s Resp. at 3; Def.'s App. at 21.)
Plaintiff asserts in the Complaint that "[a]t no time prior to the physical attack did either Defendant Solaja or Defendant Guzman . . . identify themselves as police officers, or advise Plaintiff that he was under arrest." (Pl.'s Compl. at 3.) However, Plaintiff's Complaint is contradictory, indicating that Defendant Solaja opened his raincoat to reveal his uniform prior to the alleged assault and battery. (Pl.'s Compl. at 2-3.) The only evidence provided on this issue from the Plaintiff indicates that Plaintiff's witness Jeffrey Lopes was aware that Defendant Solaja was a police officer from viewing his badge, that Plaintiff was aware Defendant Solaja was a police officer from his comment "something to the effect that just because you have a badge doesn't mean you should bully people around," and that Defendant Solaja said "you have ten seconds to get . . . out of here. . . . or you're going to jail." (Pl.'s App. at 27, 28-29.) Construing the evidence in the light most favorable to the nonmovant Plaintiff, the Court must conclude that Defendants Solaja and Guzman were acting in their official capacity at the time of the alleged assault and battery. See Cherqui, 116 S.W.3d at 344.
Municipal liability in cases where police officers were acting in their official capacity is determined by the Texas Tort Claims Act. See TEX. CIV. PRAC. REM. CODE ANN. §§ 101.001(3) (A-B), 101.025 (Vernon Supp. 2004). Municipalities generally enjoy sovereign immunity from tort liability unless specifically and expressly waived by the legislature. See County of Cameron v. Brown, 80 S.W.3d 549, 554 (Tex. 2002). See also Rusher v. City of Dallas, 83 Tex. 151 (1891) (per curiam) (rejecting respondeat superior theory of liability when police officers act in public interest, as opposed to the City's private interest). Even if an exception to sovereign immunity exists under the Texas Tort Claims Act, however, it would not apply to intentional torts. TEX. CIV. PRAC. REM. CODE ANN. § 101.056; McCord v. Memorial Medical Center Hosp., 750 S.W.2d 362, 363 (Tex.App.-Corpus Christi 1988). Assault and battery are offenses under Texas law which require a showing of intent. TEX. PENAL CODE § 22.01; see Hutchinson v. Brookshire Bros., Ltd., 284 F.Supp.2d 459 (E.D. Tex. 2003) (construing Texas law); Moore's, Inc. v. Garcia, 604 S.W.2d 261, 264 (Tex.Civ.App.-Corpus Christi 1980) (noting that the civil and criminal definitions and elements of assault are identical); Bailey v. C.S., 12 S.W.3d 159, 162 (Tex.Civ.App.-Dallas 2000) (noting that definition of battery is identical to § 22.01(a)(3) of the definition of assault, requiring intentionality).
This general sovereign immunity is partially waived for municipality liability when injury is caused by: (1) an employee's use of a motor-driven vehicle within the scope of her employment; (2) a use of tangible personal or real property; or (3) premises defects. TEX CIV. PRAC. REM. CODE ANN. § 101.021-.022 (Vernon Supp. 2004); City of Denton v. Van Page, 701 S.W.2d 831, 834 (Tex. 1986). Plaintiff does not allege that Defendant officers used any tangible property to injure him. The only evidence in the case indicates that the injuries sustained by Plaintiff were the result of direct physical contact between Defendants and Plaintiff. (See Pl.'s App. at 31.).
Furthermore, municipal liability is not waived for claims "arising out of assault, battery, false imprisonment, or any other intentional tort." Id. § 101.057; see Abdeljalil v. City of Fort Worth, 55 F.Supp.2d 614, 623 (N.D. Tex. 1999) (internal citations omitted) (rejecting, under Texas law, a negligence claim predicated on a failure to train city employee resulting in an intentional tort against plaintiff); Morgan v. City of Alvin, No. 01-02-01212-CV, 2004 WL 2005968 (Tex.App.-Houston [1st Dist.] Sept. 9, 2004) (subject to revision); Gonzales v. City of El Paso, 978 S.W.2d 619, 623 (Tex.App.-El Paso 1998) (finding the city not liable for criminal acts of third parties under the Texas Tort Claims Act). Excessive force is an intentional tort for which municipalities have immunity, even when committed with a motor vehicle, tangible, or real property. See City of Antonio v. Dunn, 796 S.W.2d 258, 261 (Tex.App.-San Antonio 1990). Therefore, Defendant City of Dallas's Motion for Summary Judgment must be GRANTED as to Plaintiff's assault and battery claims against the City of Dallas.
The Court notes that even if the Defendant officers were not acting in their official capacity as police officers, it would not change the Court's ruling, as they would then be acting as agents of the private employer, Arapaho Venture, making Arapaho Venture, not the City of Dallas, vicariously liable, if at all, for the alleged assault and battery. See Mansfield v. C.F. Bent Tree Apartment Ltd. P'ship, 37 S.W.3d 145, 150 (Tex.App.-Austin 2001).
Having found that the Defendant officers were acting in their official capacities, the Court concludes that Arapaho Venture, Ltd. cannot be held vicariously liable for the officers' actions. Id.; Cherqui, 116 S.W.3d at 344; Blackwell v. Harris County, 909 S.W.2d 135, 138 (Tex.App.-Houston [14th Dist.] 1995). Therefore, the Court DISMISSES sua sponte all of Plaintiff's claims against Arapaho Venture, Ltd.
IV. Conclusion
For the foregoing reasons, Defendant's Motion for Summary Judgment is GRANTED in its entirety. Plaintiff's claims against Defendant Arapaho Venture are hereby DISMISSED.