Opinion
EP-05-CA-018-PRM.
June 24, 2005
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM
On this day, the Court considered Defendants' Susan Austin, Jose A. Lozano, John F. Cook, Daniel S. Power, Paul J. Escobar, Vivian Rojas, and Anthony W. Cobos (collectively "Defendants") unopposed "Motion to Dismiss for Failure to State a Claim," filed on May 25, 2005, in the above-captioned cause. After due consideration, the Court is of the opinion that Defendants' Motion to Dismiss should be granted for the reasons set forth below.
Plaintiff has not tendered a response to Defendants' Motion to Dismiss.
I. FACTUAL AND PROCEDURAL BACKGROUND
Pro se Plaintiff John Fox owns an eleven unit apartment complex in El Paso, Texas. At some undetermined point in time, a Code Enforcement Officer for the City of El Paso, Thomas Maguire ("Maguire"), requested that the El Paso City Council conduct, what Plaintiff terms, a "condemnation proceeding" pertaining to Plaintiff's apartment complex. Plaintiff states that such a proceeding was held on August 12, 2003.
Plaintiff further alleges that during the hearing he brought certain issues to the attention of the El Paso City Council. At the hearing, Plaintiff mentioned that he was presently suing Maguire in a civil action and suggested "the possibility of a conflict of interest." Complaint at 3. Plaintiff also argued that "the City of El Paso had failed to establish . . . sufficient burden of proof to support Mr. Maguire's allegations." Id. Plaintiff further argued that Maguire "did not possess proper credentials to institute [c]ondemnation [p]roceedings against Plaintiff." Id. Plaintiff finally argued that "the City of El Paso had a policy of allowing officials to operate without adequate training or supervision, and that the City of El Paso fails to investigate the background of employees before hiring." Id.
Plaintiff alleges that all four arguments he proffered at the August 12, 2005 proceeding were either denied or ignored by the El Paso City Council. He also states that the City Council continued the proceeding "without responding [to] and/or investigating" his claims. Complaint at 3.
On January 26, 2005, Plaintiff filed suit against the Defendants, members of the El Paso City Council, in their individual and official capacities for purported violations of his Fifth and Fourteenth Amendment rights pursuant to 42 U.S.C. § 1983. Defendants filed their Motion to Dismiss the claims asserted against them in their individual capacity based on qualified immunity, and in their official capacity based on principles of municipal liability. Plaintiff failed to respond to Defendants' Motion to Dismiss. The Court will now proceed to discuss the merits of Defendants' Motion to Dismiss.
On May 12, 2005, Plaintiff amended his Complaint to eliminate the Mayor of El Paso as a defendant in this cause.
II. DISCUSSION
A. Rule 12(b)(6) Standard
Federal Rule of Civil Procedure 12(b)(6) permits the dismissal of a complaint if it "fail[s] to state a claim upon which relief can be granted." FED. R. CIV. P. 12(b)(6). When presented with a Rule 12(b)(6) motion, the Court must accept all well-pleaded facts in the complaint as true and construe all reasonable inferences in the light most favorable to the plaintiff. Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996). The plaintiff must plead specific facts in its complaint; conclusory allegations are insufficient to survive a Rule 12(b)(6) motion to dismiss. Kaiser Aluminum Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1050 (5th Cir. 1982) (citing Associated Builders, Inc. v. Ala. Power Co., 505 F.2d 97, 100 (5th Cir. 1974)).
The Court may dismiss a complaint pursuant to Rule 12(b)(6) only if it is convinced that the plaintiff cannot prove any set of facts in support of his claim that would entitle him to relief. Hishon v. King Spalding, 467 U.S. 69, 73 (1984); Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Dismissal is proper under Rule 12(b)(6) if a plaintiff cannot recover on the facts alleged in his pleadings. Creekmore v. Attorney Gen. of Tex., 341 F. Supp 2d 648, 658 (E.D. Tex. 2004) (citing Mills v. Polar Molecular Corp., 12 F.3d 1170, 1174 (2d Cir. 1993)).
B. Claims Against Defendants in Their Official Capacity
"[O]fficial-capacity suits `generally represent only another way of pleading an action against an entity of which an officer is an agent.'" Hafer v. Melo, 502 U.S. 21, 25 (1991) (citations omitted); see also Bennett v. Pippen, 74 F.3d 578, 584 (5th Cir. 1996) (noting that a suit against a county official in his official capacity is a suit against the county "directly in everything but name.") (citation omitted). Thus, Plaintiff's claims against Defendants in their official capacities as members of the El Paso City Council are claims against the City of El Paso.
Title 42 U.S.C. § 1983 "provides a cause of action for individuals who have been `deprived of any rights, privileges or immunities secured by the Constitution and laws' of the United States by a person or entity acting under color of state law." McClendon v. City of Columbia, 305 F.3d 314, 322 (5th Cir. 2002) (en banc) (citation omitted). However, a municipality cannot be held liable for a violation of federal law or constitutional rights under § 1983 unless the plaintiff proves the existence of either (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. . . ." Johnson v. Deep E. Tex. Reg'l Narcotics Trafficking Task Force, 379 F.3d 293, 309 (5th Cir. 2004) (citation omitted). Furthermore, once such a policy or custom is identified, a plaintiff must show either (1) the policy itself violated federal law or otherwise operated to allow the deprivation of federal rights; or (2) the policy or custom was adopted or maintained by municipal policymakers with deliberate indifference to known or obvious consequences, that is a violation of federal law or deprivation of constitutional rights. Id. (citations omitted).
Plaintiff asserts that the Defendants failed to respond to, or investigate, the claims he set forth at the August 12th proceeding. Plaintiff's complaint is devoid of any reference to a constitutionally infirm municipal policy or custom in any way related to the alleged failure to respond or investigate. Section 1983 liability may not be imposed on a municipality, by direct action or suit against a municipality's agent in their official capacity, unless such liability is predicated on a municipal policy or custom that caused a plaintiff's injury. Bd. of the County Comm'rs of Bryan County v. Brown, 520 U.S. 397, 403 (1997) (citations omitted). Based on the facts alleged in Plaintiff's complaint, he fails to identify such a policy or custom, and therefore fails to state a claim on which relief may be granted against Defendants in their official capacity under § 1983. C. Claims Against Defendants in Their Individual Capacity 1. Qualified Immunity
Additionally, the Court notes that Plaintiff does not contend that Defendants were "policymakers" for the City of El Paso. See Pembaur v. City of Cincinnati, 475 U.S. 469, 480 (1986) ("a municipality may be liable under § 1983 for a single decision by its properly constituted legislative body[.]"). Even had Plaintiff briefed this issue in its response to Defendants' Motion to Dismiss, it would have been to no avail. The facts set forth in Plaintiff's complaint substantively fail to state a claim for any constitutional violation on the part of Defendants, as explained infra.
Plaintiff claims that the Defendants, acting in their individual capacities, violated his constitutional rights by failing to investigate and/or respond to his contentions at the August 12th proceeding. However, "government officials performing discretionary functions generally are granted a qualified immunity and are `shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" Wilson v. Layne, 526 U.S. 603, 609 (1999) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
Plaintiff references "deliberate indifference" comprising due process and equal protection violations allegedly perpetrated by Defendants. Complaint at 4-5.
Defendants have asserted the affirmative defense of qualified immunity as to Plaintiff's claims asserted against them in their individual capacities. Defendant's Original Answer at 3 ¶ 10. "When a defendant invokes qualified immunity, the burden is on the plaintiff to demonstrate the inapplicability of the defense." McClendon, 305 F.3d at 323 (citation omitted). The inquiry into the applicability of the defense is two-pronged. First, a court must evaluate "whether a constitutional right would have been violated on the facts alleged" by a plaintiff. Saucier v. Katz, 533 U.S. 194, 200 (2001). Second, if a favorable view of the plaintiff's submissions evinces a constitutional violation, a court must then inquire whether the right violated was clearly established. Id. The ultimate consideration in the qualified immunity analysis is whether a defendant's conduct was objectively reasonable "in light of the legal rules that were clearly established at the time of [a defendant's] actions." McClendon, 305 F.3d at 323 (citations omitted).
2. Do Plaintiff's Facts Plead a Clearly Established Constitutional Violation?
Plaintiff alleges that Defendants ignored and/or rejected the four arguments he presented at the August 12th proceeding. He further alleges that Defendants continued the August 12th proceeding without responding to, or investigating, his claims. The Court must now determine whether these facts state some type of constitutional violation, and whether such a violation was clearly established at the time of Defendants' conduct.
Even when taken as true and viewed in the light most favorable to Plaintiff, the facts set forth in the pleadings do not allege a constitutional violation. It is true that Plaintiff invokes familiar legal terminology such as violations of "due process," "equal protection," and "deliberate indifference" in relation to the above-cited conduct of Defendants. However, conclusory references to legal terms are not sufficient, standing alone, to survive a motion to dismiss for failure to state a claim. Cf. Kane Enters. v. MacGregor (USA), Inc., 322 F.3d 371, 374 (5th Cir. 2003) ("a plaintiff must plead specific facts, not mere conclusional allegations, to avoid dismissal for failure to state a claim[.]") (citation omitted). At some level, the facts alleged must relate to the legal theories pled by a plaintiff, or otherwise allege a claim based on a cognizable, though perhaps unstated, legal theory. See In re Colonial Mortgage Bankers Corp., 324 F.3d 12, 15 (1st Cir. 2003) (noting that in applying the Rule 12(b)(6) standard, "[the court] assume[s] the truth of all well-pleaded facts and indulge[s] all reasonable inferences that fit the plaintiff's stated theory of liability.") (citations omitted); see also Ramming v. United States, 281 F.3d 158, 162 (5th Cir. 2002) ("[W]hen considering a Rule 12(b)(6) motion to dismiss for failure to state a claim, the district court must examine the complaint to determine whether the allegations provide relief on any possible theory.") (citation omitted).
Here, Plaintiff's fact recitation does not state a claim for a due process, equal protection, or any other constitutional violation. Plaintiff does not complain that he did not have prior notice of the possibility of adverse action against his property. See Mullane v. Central Hanover Bank Trust Co., 339 U.S. 306, 314 (1950) ("An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.") (citations omitted). He does not allege he was denied a pre-deprivation hearing before adverse action was supposedly taken against his property. See Mathews v. Eldridge, 424 U.S. 319, 333 (1976) ("[The Supreme Court] consistently has held that some form of hearing is required before an individual is finally deprived of a property interest.") (citations omitted). Nor does he allege that the August 12th proceeding before the Defendants failed to provide him with a meaningful opportunity to be heard on adverse action taken against his property. See id. ("The fundamental requirement of due process is the opportunity to be heard `at a meaningful time and in a meaningful manner.'") (citations omitted). Thus, Plaintiff does not allege a § 1983 procedural due process violation.
Plaintiff does not allege that Defendants' conduct was so arbitrary and egregious as to shock the contemporary conscience, and the alleged conduct itself, if taken as true, does not facially indicate egregious behavior on the part of Defendants. County of Sacramento v. Lewis, 523 U.S. 833, 845-46 (1998) ("[T]he touchstone of due process is protection of the individual against arbitrary action of government. . . . [O]nly the most egregious official conduct can be said to be arbitrary in the constitutional sense[.]") (internal quotations and citations omitted); Morris v. Dearborne, 181 F.3d 657, 668 (5th Cir. 1999) (" Lewis sets out the threshold [substantive due process] question: `whether the behavior of the governmental officer is so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.'") (citation omitted). Thus, Plaintiff does not allege a § 1983 substantive due process violation.
Furthermore, Plaintiff makes no reference to similarly situated landowners being treated more favorably by the Defendants and does not contend that he was improperly singled out for adverse action among similarly situated landowners. Bryan v. City of Madison, 213 F.3d 267, 276-77 (5th Cir. 2000) (identifying two types of § 1983 equal protection claims. The first type requires that a plaintiff prove that "similarly situated individuals were treated differently." The second type requires that a plaintiff prove that an official, or officials, selectively used their power against a single party, and their acts were "motivated by improper considerations, such as race, religion, or the desire to prevent the exercise of a constitutional right.") (citations omitted). Thus, Plaintiff does not allege a § 1983 equal protection violation.
The Fifth Circuit left open the question whether a plaintiff can maintain a selective enforcement equal protection claim where selective use of power was motivated solely by personal vindictiveness. Bryan, 213 F.3d at 277 n. 18.
Plaintiff's pleadings admit that he was given the opportunity to present his four arguments challenging the propriety of actions taken by the Defendants. It is readily apparent that Plaintiff did not like the Defendants' resolution of those arguments. Plaintiff does not state a § 1983 claim for violations of the Constitution by simply disagreeing with Defendants' method of resolving his contentions during the August 12th proceeding. Moreover, the Court is aware of no authority, and Plaintiff has cited none, to support the proposition that the failure to specifically respond to Plaintiff's contentions or suspend the condemnation proceeding to investigate certain claims constitutes a due process or equal protection violation. Even if the Court agreed with Plaintiff's conclusory assertions that Defendants acted with "malice," "premeditation," or "deliberate indifference," the underlying actions themselves would not violate the Constitution. Complaint at 4-5. Therefore, Defendants are entitled to qualified immunity for their discretionary actions. Thus, Plaintiff fails to state a claim against Defendants in their individual capacities.
Furthermore, even if the Court determined, in the absence of any supporting authority, that Defendants' alleged indifference at the August 12th proceeding violated the constitutional rights of Plaintiff, the Court could not conclude that such violation occurred in contravention of clearly established law. With no case law or other authority on point, a reasonable person in Defendants' respective positions could not have been expected to know that a failure to immediately investigate or respond to contentions presented at a "condemnation proceeding" to the unqualified satisfaction of a putative plaintiff violated the Constitution. McClendon, 305 F.3d at 331 (noting that assessment of the reasonableness of an official's conduct in light of clearly established law "requires a court to consider not only whether courts have recognized the existence of a particular constitutional right, but also on whether that right has been defined with sufficient clarity to enable a reasonable official to assess the lawfulness of his conduct") (citation omitted).
III. CONCLUSION
Based on the foregoing analysis of facts and legal principles, the Court concludes that Plaintiff fails to state a claim against Defendants in either their individual or official capacities. Therefore, the Court is of the opinion that Defendants' Motion to Dismiss should be granted, and the above-captioned cause dismissed with prejudice.
"A district court's dismissal under Rule 12(b)(6) is . . . with prejudice unless it specifically orders dismissal without prejudice." Carter v. Norfolk Cmty. Hosp. Assoc., Inc., 761 F.2d 970, 974 (4th Cir. 1985).
Accordingly, IT IS ORDERED that Defendants' "Motion to Dismiss for Failure to State a Claim" is GRANTED. IT IS FURTHER ORDERED that the above-captioned cause is DISMISSED WITH PREJUDICE. IT IS FINALLY ORDERED that the Clerk shall close this matter.
The parties are advised to evaluate what consequence the Court's dismissal of the above-captioned cause on the merits has on any other civil action in this Division involving the same transaction or occurrence; i.e., the "condemnation proceeding" of August 12th and any related matters. See Brooks v. Raymond Dugat Co., L C, 336 F.3d 360, 362 (5th Cir. 2003) ("A dismissal with prejudice is a final judgment on the merits.") (citation omitted).