Opinion
No. 3:96-CV-2897-D.
December 12, 2000.
MEMORANDUM OPINION AND ORDER
The court must decide in this case alleging violations of plaintiffs' rights under the Fourth and Fourteenth Amendments whether a municipality can be held liable for the conduct of one of its police officers. Concluding that it cannot, the court grants the municipality's motion for summary judgment.
I
The court has addressed this case in two principal memorandum opinions and orders, see Gros v. City of Grand Prairie, Civil Action No. 3:96-CV-2897 (N.D. Tex. Feb. 23, 1998) (" Gros I"), vacated, 181 F.3d 613 (5th Cir. 1999), and Gros v. Rogers, 1999 WL 102800 (N.D. Tex. Feb. 22, 1999) (" Gros II"), rev'd in part, dism'd in part, 209 F.3d 431 (5th Cir. 2000). The Fifth Circuit has decided two appeals emanating from this case, see Gros v. City of Grand Prairie, 181 F.3d 613 (5th Cir. 1999) (" Gros III"), and Gros v. City of Grand Prairie, 209 F.3d 431, 432-33 (5th Cir. 2000) (" Gros IV"). The court will therefore recount the background facts and procedural history only to the extent necessary to place today's decision in context.
The court also addressed the case in an order filed June 3, 1998.
Plaintiffs Danette Hope Gros ("Gros") and Edith D. Sikes ("Sikes") brought suit under 42 U.S.C. § 1983 against the City of Grand Prairie ("City"), Harry Lawrence Crum ("Chief Crum"), Chief of the Grand Prairie Police Department ("Police Department"). Richard L. Bender ("Lt. Bender"). Head of Internal Affairs for the Police Department, and Eric Rogers ("Officer Rogers"), a former City police officer, alleging violations of their Fourth and Fourteenth Amendment rights, Gros and Sikes alleged that Officer Rogers physically, sexually, and verbally abused and harassed them. They also contended that the City, Chief Crum, and Lt. Bender were liable because they were deliberately indifferent to plaintiffs' constitutional rights to be free from false arrest, illegal search and seizure, official oppression, excessive force and police brutality, sexual abuse and harassment, verbal abuse and harassment, and sexual assault.
In Gros I the court held that the City was not liable, and that Chief Crum and Lt. Bender were not liable in their official capacities, for Officer Roger's conduct. The court concluded that plaintiffs had failed to demonstrate that the alleged constitutional violations were attributable to a policymaker, see Gros I, slip op. at 5, and that they had not introduced evidence that would permit a finding of deliberate indifference sufficient to support claims for failure to train officers in civil rights, and for hiring officers with backgrounds of excessive force, abuse, and complaints, id. at 6. The court entered a Fed.R.Civ.P. 54(b) final judgment dismissing with prejudice plaintiffs' claims against the City and against Chief Crum and Lt. Bender in their official capacities. See id. at 7. Gros and Sikes appealed.
While the appeal of Gros I was pending, the court decided Gross II. The court held that Lt. Bender was not liable individually because he was entitled to qualified immunity. The court granted summary judgment in his favor and entered a Rule 54(b) judgment dismissing with prejudice plaintiffs' actions against him. The court granted in part and denied in part Chief Crum's motion for summary judgment based on qualified immunity. The court held that Chief Crum was entitled to qualified immunity as to plaintiffs' claims that his hiring policy constituted deliberate indifference and for failure to supervise and train Officer Rogers. See Gros II, 1999 WL 102800, at *3, 6. The court denied summary judgment, however, concerning plaintiffs' claim that Chief Crum had acted with deliberate indifference when he made the decision to hire Officer Rogers. See id. at 6. Chief Crum appealed the court's decision denying him qualified immunity. Gros and Sikes cross-appealed the court's decision granting Chief Crum qualified immunity in part.
Plaintiffs did not appeal the court's dismissal of Lt. Bender. See Gros IV, 209 F.3d at 433.
In Gros III the Fifth Circuit vacated this court's judgment in Gros I dismissing plaintiffs' actions against the City and Chief Crum and Lt. Bender in their official capacities. The panel held that "[t]o the extent that the district court relied upon a presumption concerning the locus of final policymaking authority in the City of Grand Prairie instead of looking to state law as the sole determinant, we find that it erred." Gros III, 181 F.3d at 616. The Fifth Circuit also noted that the question whether a city has delegated final policymaking authority is a matter of law, not a question of fact for the jury. See id. at 617.
In Gros IV the Fifth Circuit reversed this court's judgment in Gros II to the extent that it denied qualified immunity to Chief Crum for his decision to hire Officer Rogers. Gros IV, 209 F.3d at 436. The panel dismissed plaintiffs' cross-appeal of the court's decision granting qualified immunity to Chief Crum. See id. at 437.
After the foregoing decisions, plaintiffs' actions against the City and Chief Crum and Lt. Bender in their official capacities, and their claims against Officer Rogers, individually, remain to be tried. The City moves anew for summary judgment, contending that it is not subject to municipal liability under § 1983.
Because plaintiffs' action against Chief Crum and Lt. Bender in their official capacities is the same as a suit against the City, see, e.g., Kentucky v. Graham, 473 U.S. 159, 165-66 (1985), the motion, and the court's decision today, also apply to these defendants in their official capacities.
The City moves to strike portions of plaintiffs' summary judgment evidence. The court does not address these objections explicitly, either because it has not relied on the objectionable evidence or because it has concluded that the evidence, even if admissible, is insufficient to avoid entry of summary judgment.
II
Gros and Sikes argue that the City is liable because the deprivations of their constitutional rights were caused by the intentional acts of Chief Crum, who exercised final policymaking authority.A
Although municipalities are "persons" under § 1983, see Monell v. Department of Soc. Serv's., 436 U.S. 658, 689 (1978), they may not be held liable simply on a theory of respondeat superior. See id. at 691. Rather, liability obtains 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[.]" Id. at 694. "In other words, `the act of the municipality is the act only of an authorized policymaker or of an employee following the policymaker's lead.'" Burge v. Parish of St. Tammany, 187 F.3d 452, 471 (5th Cir 1999) (quoting Bryan County Comm'r v. Brown, 520 U.S. 397, 417 (1997) (Souter, J., dissenting)). An official policy is 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 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." Brown v. Bryan County, 219 F.3d 450, 457 (5th Cir. 2000).
Under this standard, a municipality is liable only if the policy or custom is attributable to a person with policymaking authority. See Monell, 436 U.S. at 694. Whether an official has been delegated final policymaking authority is a question of state law. See Gros III, 181 F.3d at 617 (citing Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737 (1989)). State law, which includes valid local ordinances and regulations, "will always direct a court to some official or body that has the responsibility for making law or setting policies in any given area of a local government's business." City of St. Louis v. Praprotnik, 485 U.S. 112, 125 (1988) (footnote omitted). Accordingly, the court now examines whether, as a matter of state law, Chief Crum had policymaking authority.
B
The City Charter states that the "City Council and Mayor shall have and exercise all powers enumerated in this Charter or implied thereby and all powers that are or hereafter may be granted to municipalities by the constitution or laws of the State of Texas." D. App. 23. Pursuant to the City Charter, the City Manager has broad powers, including the authority to dismiss all subordinate officers. Id. at 24-25. As the Fifth Circuit noted in Gros III, under Texas law, the City voters may approve the creation of a Civil Service Commission, which is then empowered to make and review decisions regarding the hiring, discipline, and termination of police officers. See Gros III, 181 F.3d at 616 (citing Tex. Loc. Gov't Code Ann. § 143.001-2 (West Supp. 1999)). Voters in the City have approved such a Commission and have endowed it with authority over the suspensions and terminations of police officers. See D. App. 27-33.
Although state and local law does not grant formal policymaking authority to Chief Crum, plaintiffs argue that the City has informally delegated policymaking authority to him in the areas of hiring, training, supervising, and disciplining officers. They cite several statements by Chief Crum and others suggesting that Chief Crum exercises significant control within the Police Department. At most, however, these statements demonstrate that Chief Crum had the decisionmaking authority to run the day-to-day operations of the Police Department. "[P]olicymaking authority is more than discretion, and it is far more than the final say-so[.]" Bennett v. City of Slidell, 728 F.2d 762, 769 (5th Cir. 1984) (en banc). "Policymakers act in the place of the governing body in the area of their responsibility; they are not supervised except as to the totality of their performance." Id. The record shows that although the City Manager delegated certain duties to the Police Chief, he maintained responsibility for setting policy for the Police Department. See P. App. 127. Accordingly, the court holds as a matter of law that Chief Crum did not exercise policymaking authority for the City, at least in any respect that would permit plaintiffs' to recover against the City on the claims at issue in this case. Because plaintiffs have not identified any other potential policymaker who participated in the violations of their constitutional rights, the court holds that the City is not liable under § 1983.
III
Even assuming arguendo that Chief Crum is a policymaker and, therefore, that his actions are attributable to the City, the City is entitled to summary judgment.
A
The identification of a policymaker does not of itself establish municipal liability under § 1983. The municipality must also have been "the `moving force' behind the injury alleged." Brown, 520 U.S. at 404. In other words, "a plaintiff must show that the municipal action was taken with the requisite degree of culpability and must demonstrate a direct causal link between the municipal action and the deprivation of federal rights." Id. "Where a plaintiff claims that the municipality has not directly inflicted an injury, but nonetheless has caused an employee to do so, rigorous standards of culpability and causation must be applied[.]" Id. at 405. Specifically, "a plaintiff seeking to establish municipal liability on the theory that a facially lawful municipal action has led an employee to violate a plaintiff's rights must demonstrate that the municipal action was taken with `deliberate indifference' as to its known or obvious consequences." Id. at 407. "Deliberate indifference" is a stringent standard. "A showing of simple or even heightened negligence will not suffice." Id.
B
Plaintiffs contend that Chief Crum was deliberately indifferent to the violation of their constitutional rights when he hired Officer Rogers and thereafter failed to train, supervise, and discipline him adequately. The court has already considered the question whether Chief Crum's actions and omissions amount to deliberate indifference. In Gros II the court held that Chief Crum was entitled to qualified immunity except as to the question whether his screening of Officer Rogers' employment application was deliberately indifferent to plaintiffs' constitutional rights. See Gros II, 1999 WL 102800, at *2-6 The Fifth Circuit reversed this aspect of the court's ruling, holding that Chief Crum's hiring of Officer Rogers did not constitute deliberate indifference. See Gros IV, 209 F.3d at 436. Although the circuit court's decision arose in the context of qualified immunity, it applies equally to the question whether Chief Crum violated plaintiffs' constitutional rights by exhibiting deliberate indifference with regard to the hiring, supervising, training, and disciplining of Officer Rogers. Furthermore, a reasonable jury could not find that Chief Crum's policies regarding the hiring, supervising, training, and disciplining of officers were deliberately indifferent to plaintiffs' constitutional rights. Accordingly, even if Chief Crum is a policymaker for the City, his conduct cannot give rise to municipal liability under § 1983. The court therefore grants the City's motion for summary judgment.
Although the court addressed this issue in the context of whether Chief Crum, in his personal capacity, was entitled to qualified immunity, the court's conclusion that Chief Crum was not deliberately indifferent is equally applicable to the issue of municipal liability,
To the extent the court's opinion can be read to hold that Chief Crum's hiring policy was reasonable, see Gros II, 1999 WL 102800, at *3, the court holds that a reasonable jury could not find that Chief Crum's hiring policy constituted deliberate indifference to plaintiffs' constitutional rights.
* * *
The City's August 17, 2000 motion for summary judgment is granted and this action is dismissed as to the City and as to Chief Crum and Lt. Bender in their official capacities. The trial of this case against Officer Rogers individually shall remain on the court's February 5, 2001 docket.
SO ORDERED.