Opinion
NO. 3-03-CV-0256-D.
August 17, 2004
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Defendant City of Dallas has filed a motion for summary judgment in this civil rights action brought under 42 U.S.C. § 1983. For the reasons stated herein, the motion should be granted.
I.
This is a lawsuit brought by Plaintiff Debra Forge arising out of the death of her son, Keenon, while in police custody. On July 1, 2002, Keenon was involved in a single car accident on Interstate Highway 45 in Dallas, Texas. (Plf. Compl. at 2, ¶ 8). Paramedics responded to the scene, observed no major injuries, and reported that Keenon was "O.K." ( Id. at 2, ¶ 9). The police were also dispatched. Although her complaint is short on details, plaintiff alleges that Dallas Police Officers Eric Tabbert and Craig Sherrill placed Keenon in the front seat of their squad car without locking the door. ( Id. at 4, ¶ 17(C)). An altercation ensued and Keenon was injured. When paramedics returned to the accident scene approximately one hour later, they found Kennon unconscious in the police car with blood around his mouth and nose. ( Id. at 4, ¶ 11). Multiple wounds were also noted on his body. ( Id. at 5, ¶ 12). Keenon was transported to Baylor Hospital where he was pronounced dead. ( Id.). An autopsy revealed lesions around the neck area indicative of manual strangulation. ( Id. at 5, ¶ 14). Other injuries, such as abrasions to the forehead, left ear, left eye and a fractured nose, were also noted in the autopsy report. ( Id.).
On February 6, 2003, plaintiff sued Tabbert, Sherrill, and the City of Dallas in federal district court for civil rights violations under 42 U.S.C. § 1983. The court subsequently dismissed all claims against Tabbert and Sherrill on grounds of qualified immunity. Forge v. City of Dallas, No. 3-03-CV-0256-D (N.D. Tex. Jul. 21, 2003), rec. adopted by ORDER (N.D. Tex. Aug. 20, 2003). Defendant City of Dallas now moves for summary judgment. Plaintiff was ordered to file a response to the motion and any controverting evidence by July 22, 2004, but has failed to do so. The court will therefore consider the summary judgment motion without the benefit of a response.
After defendant filed its motion for summary judgment, plaintiff sought leave to conduct written discovery, depose various witnesses, and designate additional experts in an attempt to show that the City's use-of-force, first aid, and training policies were constitutionally deficient. The court refused to allow this discovery because plaintiff failed to demonstrate "good cause" for modifying the scheduling order. See Forge v. City of Dallas, 2004 WL 1243151 at *2-3 (N.D. Tex. Jun. 4, 2004). Notwithstanding plaintiff's failure to establish "good cause," defendant agreed to let plaintiff depose Tabbert and Sherrill before filing a summary judgment response. The court ordered that these depositions be completed by June 25, 2004, and directed plaintiff to file a written response to the motion for summary judgment by July 22, 2004. Id. at 3.
II.
Summary judgment is proper when there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law. FED.R.CIV.P. 56(c); Celotex v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L. Ed. 2d 265 (1986). A movant who does not have the burden of proof at trial must point to the absence of a genuine fact issue. Tubacex, Inc. v. M/V Risan, 45 F.3d 951, 954 (5th Cir. 1995). The burden then shifts to the non-movant to show that summary judgment is not proper. Duckett v. City of Cedar Park, 950 F.2d 272, 276 (5th Cir. 1992). The parties may satisfy their respective burdens by tendering depositions, affidavits, and other competent evidence. Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir.), cert. denied, 113 S.Ct. 82 (1992). However, the non-movant must go beyond the pleadings and designate specific facts in the record which show that there is a genuine issue for trial. See Celotex, 106 S.Ct. at 2553; Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). All evidence must be viewed in the light most favorable to the party opposing the motion. Rosado v. Deters, 5 F.3d 119, 123 (5th Cir. 1993).
III.
A municipality may not be held vicariously liable for the actions of its employees. See Monell v. Department of Social Services of New York, 436 U.S. 658, 691, 98 S.Ct. 2018, 2036, 56 L.Ed.2d 611 (1978). Rather, liability exists only if an official policy or custom was the "moving force" behind the deprivation of a federally protected right. Id., 98 S.Ct. at 2037-38; see also Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th Cir.), reh'g en banc denied, 251 F.3d 159 (5th Cir.) (Table), cert. denied, 122 S.Ct. 53 (2001). An official policy is:
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 policymaking 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 policymaking authority.Johnson v. Moore, 958 F.2d 92, 94 (5th Cir. 1992); see also Webster v. City of Houston, 735 F.2d 838, 841 (5th Cir. 1984). A plaintiff must identify the specific policy alleged to have violated her constitutional rights, show that the policy is attributable to the municipality, and establish that the policy caused her injury. Barrow v. Greenville Independent School Dist., 2002 WL 628665 at *2 (N.D. Tex. Apr. 18, 2002) (Fitzwater, J.), citing Bennett v. City of Slidell, 728 F.2d 762, 767 (5th Cir. 1984); see also Board of County Commissioners of Bryan County, Oklahoma v. Brown, 520 U.S. 397, 403-04, 117 S.Ct. 1382, 1388, 137 L.Ed. 626 (1997).
Plaintiff fails to allege, much less prove, any formal policy or persistent and widespread practice that was a "moving force" behind any constitutional violation. Piotrowski, 237 F.3d at 578. Instead, she generally alleges that the "Dallas Police Department had policies and/or customs in place that enabled its agents and employees to act with deliberate indifference to the constitutional rights of individuals" and that "the City of Dallas had tolerated misconduct by its police officers, encouraging misconduct by failing to adequately supervise, discipline, or train." (Plf. Compl. at 5, ¶ 22). Without evidence of an unconstitutional policy, custom or practice, there is no basis for municipal liability under section 1983.
Defendant also seeks summary judgment with respect to certain unspecified state law claims asserted by plaintiff against the City of Dallas. The court is not convinced that plaintiff has sued the City under Texas law. However, to the extent such claims exist, the court should decline to exercise supplemental jurisdiction over any state law causes of action. See Bunch v. Duncan, 2002 WL 324287 at * 4 (N.D. Tex. Feb. 27, 2002), quoting Parker Parsley Petroleum Co. v. Dresser Industries, 972 F.2d 580, 585 (5th Cir. 1992) ("Our general rule is to dismiss state claims when the federal claims to which they are pendant are dismissed.").
RECOMMENDATION
Defendant's motion for summary judgment should be granted. This case should be dismissed with prejudice.A copy of this recommendation shall be sent to all counsel of record. Any party may file objections to this recommendation by August 31, 2004. The failure to file written objections shall bar the aggrieved party from appealing the factual findings and legal conclusions of the magistrate judge that are accepted or adopted by the district court, except upon grounds of plain error. See Douglass v. United Services Automobile Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996).