Opinion
1:17-CV-465-ADA-JCM
07-30-2024
BRYAN HARPER, Plaintiff, v. CITY OF WACO, TEXAS, et al, Defendants.
TO: THE HONORABLE ALAN D ALBRIGHT, UNITED STATES DISTRICT COURT JUDGE
REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
JEFFREY C. MANSKE, UNITED STATES MAGISTRATE JUDGE.
This Report and Recommendation is submitted to the Court pursuant to 28 U.S.C. § 636(b)(1)(C), Fed.R.Civ.P. 72(b), and Rules 1(f) and 4(b) of Appendix C of the Local Rules of the United States District Court for the Western District of Texas, Local Rules for the Assignment of Duties to United States Magistrate Judges. Before the Court are Defendants Frost and Schwartz's Motion to Dismiss (ECF No. 28); Defendants Chavez, Lanning, Rogers, Stroman, Swanton, and City of Waco's Motion to Dismiss (ECF No. 29); Defendant Reyna's Motion to Dismiss (ECF No. 30); Defendant McLennan County's Motion to Dismiss (ECF No. 31); and the City of Waco's Motion to Supplement its Motion to Dismiss (ECF No. 52). For the following reasons, the undersigned RECOMMENDS Defendants' Motions be GRANTED.
I. BACKGROUND
This case stems from the Twin Peaks restaurant incident on May 17, 2015. Members of the Bandidos and Cossacks Motorcycle Clubs, along with hundreds of other motorcycling enthusiasts, converged on the restaurant. Tensions between the Bandidos and Cossacks erupted in a shootout that left nine dead and many injured. In the aftermath of the incident, police arrested 177 individuals on charges of Engaging in Organized Criminal Activity. The probable cause affidavit in support of the arrest warrants was the same for each of the 177 arrestees, and a justice of the peace set bond for each of the arrestees at one million dollars. Only one of the criminal cases ever went to trial (the defendant in that case is not a party to the instant action), and those proceedings ended in a mistrial. The state eventually dropped all remaining charges against the arrestees. The Plaintiff in this case was arrested pursuant to the same probable cause affidavit as the other arrestees. Significantly, this Plaintiff was also indicted. The indictment was later dismissed.
Plaintiff brings this case pursuant to 42 U.S.C. § 1983. He alleges that the defendants violated his Fourth Amendment rights by obtaining arrest warrants based on a fill-in-the-name affidavit that lacked probable cause. Plaintiff also alleges that the defendants violated his Fourteenth Amendment due process right to be free from unlawful arrest. Finally, Plaintiff asserts that the defendants conspired to commit these violations.
There are three groups of defendants in this case. The first group consists of: the City of Waco, Texas; Brent Stroman, Chief of Police; Robert Lanning, Assistant Chief of Police; detective Jeffrey Rogers; and police officers Manual Chavez, and Patrick Swanton. The second group is McLennan County, Texas and former McLennan County District Attorney Abelino Reyna. The third group is Steven Schwartz and Christopher Frost, both of whom are special agents of the Texas Department of Public Safety. Plaintiff sues the City and County as municipalities and the other defendants in their individual capacities. The individual defendants all assert qualified immunity.
II. LEGAL STANDARDS
Title 42 U.S.C. § 1983 creates a cause of action against any person who, under color of law, causes another to be deprived of a federally protected constitutional right. Two allegations are required to state a cause of action under 42 U.S.C. § 1983. “First, the plaintiff must allege that some person has deprived him of a federal right. Second, he must allege that the person who has deprived him of that right acted under color of state or territorial law.” Gomez v. Toledo, 446 U.S. 635, 640 (1980); Manax v. McNamara, 842 F.2d 808, 812 (5th Cir. 1988).
Upon motion or sua sponte, a court may dismiss an action that fails to state a claim upon which relief may be granted. FED. R. CIV. P. 12(b)(6); Carroll v. Fort James Corp., 470 F.3d 1171, 1177 (5th Cir. 2006). To survive Rule 8, a nonmovant must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). “The court's task is to determine whether the plaintiff has stated a legally cognizable claim that is plausible, not to evaluate the plaintiff's likelihood of success.” Lone Star Fund V (U.S.), L.P. v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010). The court begins by identifying which allegations are well-pleaded facts and which are legal conclusions or elemental recitations, accepting as true the former and rejecting the latter. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A court need not blindly accept every allegation of fact; properly pleaded allegations of fact amount to more than just conclusory allegations or legal conclusions “masquerading as factual conclusions.” Taylor v. Books A Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002). The court then determines whether the accepted allegations state a plausible claim to relief. Id. at 379.
“Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Twombly, 550 U.S. at 555. “The court accepts all well-pleaded facts as true, viewing them in the light most favorable to the [nonmovant].” In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007) (quotation marks omitted). “A claim has facial plausibility when the [nonmovant] pleads factual content that allows the court to draw the reasonable inference that the [movant] is liable for the misconduct alleged.” Ashcroft, 556 U.S. at 678. “The plausibility standard . . . asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. For purposes of Rule 12(b)(6), “pleadings” include the complaint, its attachments, and documents referred to in the complaint and central to a plaintiff's claims. Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498-499 (5th Cir. 2000).
Under Federal Rule of Civil Procedure 12(b)(6), a court may dismiss an action barred by qualified immunity. See Bustillos v. El Paso Cnty. Hosp. Dist., 226 F.Supp.3d 778, 793 (W.D. Tex. 2016) (Martinez, J.) (dismissing a plaintiff's claim based on qualified immunity). Qualified immunity shields government officials from civil liability for claims under federal law unless their conduct “violates a clearly established constitutional right.” Mace v. City of Palestine, 333 F.3d 621, 623 (5th Cir. 2003). Qualified immunity balances “the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.” Pearson v. Callahan, 555 U.S. 223, 231 (2009). Because qualified immunity shields “all but the plainly incompetent or those who knowingly violate the law,” the Fifth Circuit considers qualified immunity the norm and admonishes courts to deny a defendant immunity only in rare circumstances. Romero v. City of Grapevine, 888 F.3d 170, 176 (5th Cir. 2018) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)) (internal quotation marks omitted).
Courts use a two-prong analysis to determine whether an officer is entitled to qualified immunity. Cole v. Carson, No. 14-10228, 2019 WL 3928715, at *5 (5th Cir. Aug. 20, 2019), as revised (Aug. 21, 2019). A plaintiff must show (1) the official violated a constitutional right; and (2) the constitutional right was “clearly established” at the time of the defendant's alleged misconduct. Reed v. Taylor, 923 F.3d 411, 414 (5th Cir. 2019). The Supreme Court held in Pearson that “the judges of the district courts . . . should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first.” 555 U.S. at 236. Although qualified immunity is an affirmative defense, the plaintiff bears the burden to rebut the defense and assert facts to satisfy both prongs of the analysis. Brumfield, 551 F.3d at 326. If a plaintiff fails to establish either prong, the public official is immune from suit. Zarnow v. City of Wichita Falls, 500 F.3d 401, 407 (5th Cir. 2007).
III. ANALYSIS
A. Fourth Amendment
Plaintiff sues Defendants for violating his Fourth Amendment rights by initiating his arrest “through legal process containing deliberate or reckless material misstatements and omissions;” Defendants Chavez and Reyna for “knowingly, intentionally, or recklessly present[ing] or caus[ing] to be presented a facially deficient complaint affidavit” to the justice of the peace; and violating his “right to be free from arrest through legal process issued by a magistrate that was not detached and neutral” Pls.' 1st Am. Compl. at ¶ 64, 70, 73 (ECF No. 25).
There are two claims against government agents for alleged Fourth Amendment violations in connection with an arrest warrant: (1) claims under Malley, 475 U.S. at 335, for which the agent may be liable if he “fil[es] an application for an arrest warrant without probable cause” and “a reasonable well-trained officer . . . would have known that [the] affidavit failed to establish probable cause,” Michalik v. Hermann, 422 F.3d 252, 259-60 (5th Cir. 2005) (citations and internal quotation marks omitted); and (2) claims under Franks v. Delaware, 438 U.S. 154 (1978), for which the agent may be liable if he “makes a false statement knowingly and intentionally, or with reckless disregard for the truth that results in a warrant being issued without probable cause,” Michalik, 422 F.3d at 258 n.5. In the instant case, Plaintiff brings claims under both theories.
1. Malley violation
Plaintiff alleges that Chavez and Reyna violated his Fourth Amendment rights by presenting a facially deficient warrant affidavit. Pls.' 1st Am. Compl. at ¶¶ 69-70. Plaintiff argues that the warrant is a general warrant, devoid of any particularized facts related to any of the plaintiffs. Id. at ¶ 70. This Court has already addressed these same allegations by other Twin Peaks plaintiffs.
In comparing the identical arrest warrant against Malley case law, the Court found that the affidavit was a significant improvement upon the classic bare bones affidavit. Weaver v. Stroman, No. 1:16-CV-1195-ADA-JCM, 2019 WL 4738914, at *4 (W.D. Tex. Sept. 27, 2019), rev'd on other grounds, 4 F.4th 270 (5th Cir. 2021). The Court specifically found that the “affidavit, prepared in the context of a melee involving multiple shootings and 177 arrests, clearly identifies the subject, the offense, the parties involved, the time and circumstances under which they met, what they wore, identifying characteristics, and the weapons they used.” Id. Based on that finding, the Court dismissed those plaintiffs' Malley claims. Moreover, the Fifth Circuit held that “standing alone, as the district court held, the warrant affidavit sufficiently alleged probable cause to arrest those to whom its facts applied.” Terwilliger v. Reyna, 4 F.4th 270, 282 (5th Cir. 2021). Consistent with this Court's prior opinion and the Fifth Circuit affirmation that the warrant affidavit is not facially deficient, the undersigned RECOMMENDS that Plaintiff's Malley claims be DISMISSED.
2. Franks violation
Plaintiff also alleges that the Defendants violated their Fourth Amendment rights by deliberately or recklessly providing false, material information for use in an affidavit in support of an arrest warrant. Franks, 438 U.S. at 171.
The Franks case arose in the context of a search warrant, but its rationale extends to arrest warrants. See Melton v. Phillips, 875 F.3d 256, 262 (5th Cir. 2017) (en banc). Liability under Franks can arise from either material misstatements or material omissions in warrant affidavits. Michalik v. Hermann, 422 F.3d 252, 258 n.5 (5th Cir. 2005); United States v. Martin, 615 F.2d 318, 328 (5th Cir. 1980) (citing cases). Functionally, the holding of Franks is an exception to the independent intermediary doctrine, which provides that “if facts supporting an arrest are placed before an independent intermediary such as a magistrate or grand jury, the intermediary's decision breaks the chain of causation for false arrest, insulating the initiating party.” Cuadra v. Houston Indep. Sch. Dist., 626 F.3d 808, 813 (5th Cir. 2010) (citation and internal quotation marks omitted). But “the chain of causation remains intact if it can be shown that the deliberations of that intermediary were in some way tainted by the actions of the defendant.” Id. To determine taint, the essential inquiry is whether “there remains sufficient content in the warrant affidavit to support a finding of probable cause” after the “material that is the subject of the alleged falsity or reckless disregard is set to one side.” Franks, 438 U.S. at 171-72, 98 S.Ct. at 2684.Terwilliger, 4 F.4th at 281-82.
This Court previously dismissed all claims against all of the defendants based on the independent intermediary rule. Order (ECF No. 45). The Court reasoned that the grand jury indictments broke the chain of causation because Plaintiff did not “plead facts rising above the speculative level demonstrating how each Defendant tainted the grand jury proceedings by either omitting evidence or misleading the jury.” Id. at 8. The Fifth Circuit reversed, clarifying the law surrounding the independent intermediary rule.
Generally, if facts supporting an arrest are placed before an independent intermediary such as a magistrate or grand jury, the intermediary's decision breaks the chain of causation for false arrest. Wilson, 33 F.4th 202, 208 (5th Cir. 2020) (citations omitted). This is true even if the independent intermediary's action occurred after the arrest or if the arrestee was never convicted of a crime. Id. But the intermediary must actually be independent. Id. Thus, defendants can be liable for false arrest if the plaintiff shows that the deliberations were tainted by the defendant's actions. Id. Franks is an exception to the intermediary rule. Id. For plaintiffs that plead an officer obtained an arrest from a magistrate in violation of Franks, nothing more is required to show that the independent intermediary doctrine does not apply to the intermediary's decision. Id. That “does not necessarily prevent a second intermediary's decision-such as a grand jury's indictment-from triggering the independent intermediary doctrine to ultimately insulate the officer from liability.” Id. In a Franks case where a second intermediary is involved, the plaintiff need only show that the second intermediary's deliberations were tainted such that it did not have all the facts before it necessary to render an independent determination of probable cause. Id. at 210. But “there is no requirement to show that each and every defendant . . . tainted the secret grand jury deliberations.” Id. at 209. The Court further clarified that Plaintiff “must adequately plead (and ultimately prove) that each defendant falls within the scope of liability for the Franks violation allegedly committed in securing the arrest warrant from the magistrate.” Id. (citations omitted).
The Fifth Circuit reversed and remanded to this Court to determine whether Plaintiff has adequately pleaded a Franks violation with respect to the defendants in this case. The Court will, therefore, first determine whether Plaintiff has adequately pleaded a Franks violation against each defendant.
Plaintiff alleges that Stroman was “vacationing on the East Coast” when he “agreed with Reyna's plan and furthered it by authorizing the Waco PD to carry it out.” Pl.'s 1st Am. Compl. at ¶ 41. Plaintiff further alleges that “Defendants charged [Plaintiff] using a fill-in-the-name complaint affidavit that contained material misstatements and omissions. They did so knowingly or with reckless disregard for the truth.” Id. at ¶ 65.
To be liable for Franks violations, a defendant must have actually participated in the preparation of the warrant application, signed the application, or provided information for use in the warrant application. See Terwilliger, 4 F.4th at 283. Plaintiff has not adequately alleged that Stroman did any of these. Plaintiff acknowledges that Stroman was on vacation on the east coast when the Twin Peaks shooting occurred. Pls.' 1st Am. Compl. at ¶ 41. Plaintiff does not allege that Stroman participated in the preparation of the warrant affidavit beyond a single phone call in which Stroman allegedly approved Reyna's plan. Accordingly, Plaintiff's claims against Stroman should be DISMISSED.
Plaintiff alleges that Lanning disagreed with Reyna's mass-charging scheme but ultimately acquiesced and informed the Waco City Manger of the plan. Id. at ¶ 40, 42. Notably absent from Plaintiff's Complaint is any allegation that Lanning had a connection with the drafting of the arrest warrant affidavit at all. Nor is there an allegation that Lanning contributed any facts for inclusion in the warrant affidavit. Plaintiff's claims against Lanning should, therefore, be DISMISSED.
Plaintiff's sole allegation against Swanton is that he provided “false and misleading information during numerous press conferences.” Id. at ¶ 45. This allegation has nothing to do with the arrest warrant affidavit. Accordingly, Plaintiff's claims against Swanton should be DISMISSED.
Plaintiff's only allegation against Rogers and Frost is that they “agreed with and furthered Reyna's plan by knowingly or recklessly providing Reyna with material misrepresentations concerning the Cossacks MC and [Plaintiff].” Id. at ¶ 43. Again, to be liable for Franks violations, a defendant must have actually participated in the preparation of the warrant application, signed the application, or provided information for use in the warrant application. See Terwilliger, 4 F.4th at 283. Plaintiff does not state a plausible claim that Rogers and Frost provided information for use in the warrant application. Tellingly, he does not even make a conclusory allegation that the misrepresentation was provided for use in the warrant application. Nor does Plaintiff allege when the information was provided. Accordingly, Plaintiff's claims against Rogers and Frost do not rise above a speculative level and should be DISMISSED.
Plaintiff alleges the same conduct against Schwartz regarding the arrest warrant affidavit. Pl.'s 1st Am. Compl. at ¶ 43. Plaintiff also alleges that Schwartz provided false testimony at examining trials. Id. at ¶ 51. Plaintiff alleges, upon information and belief, that Schwartz testified before the grand jury, and asserts that it is reasonable to infer that Schwartz's testimony before the grand jury was consistent with his testimony at examining trials. Id. Only one of Plaintiff's allegations has anything to do with the preparation of the arrest warrant affidavit. As discussed above, that allegation alone is insufficient to put Schwartz within the scope of Franks liability, and Plaintiff's claim against him should be dismissed.
In Terwilliger, the plaintiffs denied affiliation with the Bandidos or Cossacks or any criminal street gang. Terwilliger, 4 F.4th at 282. They also alleged that their attire and behavior before and during the incident was lawful. Id. The Terwilliger plaintiffs further alleged “that the Defendants deliberately excluded relevant information that would have weighed against individualized probable cause, such as video evidence, witness interviews, and membership in motorcycle clubs known to be independent and not affiliated with the Bandidos or Cossacks.” Id. at 283.
Based on these allegations, and assuming that they were true, the Fifth Circuit held that Chavez and Reyna were within the compass of potential Franks liability. Id. at 283-84. Chavez was within the scope because he signed the warrant affidavit and swore to the validity of the facts contained therein. Id. at 283. Reyna was within the scope because Plaintiffs alleged that “Reyna was provided with evidence both from the scene and interviews of attendees,” but directed that “'all bikers wearing colors' should be arrested.” Id. at 284.
Interestingly, Plaintiff here admits that he is a member of the McLennan County chapter of the Cossacks Motorcycle Club. Pl.'s 1st Am. Compl. at ¶ 15. He asserts that he had been a member of the Cossacks for a little over a year and that his “impression was that the club was comprised of members who did not consider themselves to be above the law, who had regular jobs, and who enjoyed the motorcycle-related fellowship that the club provided.” Id. at ¶ 16. He further alleges that the Cossacks Motorcycle Club is not a gang because “the FBI, Texas DPS, and leading law enforcement gang experts did not classify the Cossacks MC as a gang.” Id. at ¶ 43. Plaintiff also admits that he was “wearing a leather vest that displayed his membership” in the Cossacks MC. Id. at ¶ 15. Nonetheless, Plaintiff alleges that his actions during the shootout were lawful. Id. at ¶¶ 18-20. Plaintiff also alleges that the affidavit “omitted any material exculpatory facts particularized” to him. Id. at ¶ 37. Plaintiff does not allege which Defendant was in possession of these material exculpatory facts particularized to him.
The Terwilliger case lays out the blueprint for what Twin Peaks plaintiffs must allege to survive a motion to dismiss. The Terwilliger plaintiffs denied affiliation with the Cossacks. Terwilliger, 4 F.4th at 282. Plaintiff admits to being a member of the Cossacks MC. Pl.'s 1st Am. Compl. at ¶ 15. The Terwilliger plaintiffs claimed that their vests were entirely lawful. Plaintiff makes no such claim. The Terwilliger plaintiffs alleged that the defendants “deliberately excluded relevant information that would have weighed against individualized probable cause, such as video evidence, witness interviews, and membership in motorcycle clubs known to be independent and not affiliated with the Bandidos or Cossacks.” Terwilliger, 4 F.4th at 283. Plaintiff alleges that Defendants excluded relevant information obtained during his interview. Pl.'s 1st Am. Compl. at ¶ 33.
Plaintiff's denial that the Cossacks MC is a gang and that Plaintiff was associated with a gang are inadequate to survive. In Wilson, the Fifth Circuit noted that the Terwilliger plaintiffs successfully pleaded a Franks claim because they plausibly alleged that “they were not associated with the Bandidos or Cossacks.” Wilson, 33 F.4th at 207. The court expanded on that noting that “notably absent from many of the plaintiffs' complaints are any specific statements denying affiliation with the Bandidos or Cossacks or denying that they were wearing the ‘signs and symbols' of either group.” Id. at 213, n.8. Moreover, the court held that merely denying membership in a criminal street gang is a legal conclusion, not a fact, and that “many members of the Bandidos or Cossacks would also deny being members of a criminal street gang.” Id. For these reasons, Plaintiff's Franks claim against Reyna and Chavez should also be DISMISSED.
3. No Review by a Neutral and Detached Magistrate
Plaintiff also sues Stroman, Lanning, Reyna, Chavez, Frost, Schwartz, Rogers, and Swanton for violating his constitutional right to be free from arrest through legal process issued by a magistrate that was not detached and neutral. Pl.'s 1st Am. Compl. at ¶ 72-73. He alleges that the justice of the peace was not a neutral and detached magistrate because he was biased in favor of law enforcement because he was a retired peace officer with Texas DPS, he did not have the legal knowledge to accurately evaluate the affidavit, and he allegedly participated in the in the investigation. Id. at ¶ 74-77. Plaintiff's conclusion that the justice of the peace participated in the investigation is based on his allegation that the justice of the peace had personally seen the dead bodies at the crime scene. Id. at ¶ 77.
Plaintiff's assertion that the justice of the peace was biased because he was a retired peace officer is sheer speculation. He provides no facts to support this conclusion such as statements made by the justice of the peace indicating a bias towards law enforcement. Plaintiff's conclusion that the justice of the peace “was not an attorney and therefore did not possess the legal acumen to fairly evaluate the fill-in-the-name complaint affidavit” also falls flat. Id. at ¶ 76. For starters, the Fifth Circuit has held that the warrant affidavit is not facially deficient, which is the only determination the justice of the peace made regarding the arrest warrant affidavits. What's more, the Supreme Court has held that a magistrate need not be a judge or someone with legal training. Shadwick v. City of Tampa, 407 U.S. 345, 349 (1972). Finally, the mere fact that the justice of the peace saw dead bodies at the crime scene does not prevent him from being neutral and detached. Plaintiff's speculation fails to state a claim that Defendants caused him to be arrested through legal process issued by a magistrate that was not neutral and detached and should be DISMISSED.
B. Conspiracy
Plaintiff also sues the individual Defendants for conspiracy. He alleges that each Defendant “made at least one overt act in furtherance of the conspiracy described in the preceding paragraphs.” Pl.'s 1st Am. Compl. at ¶ 81. That is the full extent of Plaintiff's conspiracy allegations. This is even less detailed than the allegations in Terwilliger, which the Fifth Circuit found to be deficient. Plaintiffs' conspiracy claims should be DISMISSED.
C. Bystander and Supervisory Liability
Plaintiff sues all individual Defendants for bystander liability and sues Stroman and Lanning under a supervisory liability theory. Id. at ¶¶ 88-93. Both of these claims require an underlying constitutional violation. Whitley v. Hanna, 726 F.3d 631, 646 (5th Cir. 2013) (holding that an officer must know that a fellow officer is violating an individual's constitutional rights to be liable for a bystander liability claim); Estate of Davis ex rel. McCully v. City of N. Richland Hills, 406 F.3d 375, 381 (5th Cir. 2005) (holding that there must be a causal link between the failure to supervise and the violation of the plaintiff's rights for a supervisor to be liable for a failure to supervise). Because Plaintiff has failed to adequately allege that his constitutional rights were violated, Plaintiff's bystander and supervisory liability claims should be DISMISSED.
D. Monell claims against the City
Municipalities, including counties and cities, may be liable under § 1983. Hampton Co. Nat'l Sur., LLC v. Tunica Cnty., 543 F.3d 221, 224 (5th Cir. 2008). In a § 1983 lawsuit against a municipality, a plaintiff must show that his constitutional injury was the result of official policy, custom, or the act of an official policymaker. Monell v. Dep't of Social Servs., 436 U.S. 658, 690- 91 (1978). Municipalities such as the City of Waco and McLennan County cannot be liable under a theory of respondeat superior, however. Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th Cir. 2001). Municipal liability under § 1983 requires proof of three elements: (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. Pineda v. City of Houston, 291 F.3d 325, 328 (5th Cir. 2002); see also Valle v. City of Houston, 613 F.3d 536, 541- 42 (5th Cir. 2010).
The second element may be satisfied by a single decision by a policymaker.
To be sure, “official policy” often refers to formal rules or understandings . . . that are intended to, and do, establish fixed plans of action to be followed under similar circumstances consistently and over time .... However . . . a government frequently chooses a course of action tailored to a particular situation and not intended to control decisions in later situations. If the decision to adopt that particular course of action is properly made by that government's authorized decisionmakers, it surely represents an act of official government “policy” as that term is commonly understood. More importantly, where action is directed by those who establish governmental policy, the municipality is equally responsible whether that action is to be taken only once or to be taken repeatedly. To deny compensation to the victim would therefore be contrary to the fundamental purpose of § 1983.Pembaur, 475 U.S. 469, 480-81 (1986).
In the instant case, the plaintiffs invoke the single decision exception identified in Pembaur. In Pembaur, Simon Leis, the Hamilton County, Ohio prosecutor, began an investigation of Dr. Bertold Pembaur for welfare fraud. A grand jury was convened, and the case was assigned to an assistant prosecutor. During the investigation, the grand jury issued subpoenas for two employees of the clinic. When the employees failed to appear, the prosecutor obtained capias warrants for them.
Hamilton County Sheriff's Deputies attempted to execute the warrants at the clinic, but Pembaur refused them entry and blocked the entrance. The deputies contacted the assistant prosecutor assigned to the case, who in turn conferred with Simon Leis, who told the assistant prosecutor to direct the deputies to force their way into the clinic. On those instructions, Cincinnati police officers chopped through the door with an axe and county sheriff's deputies entered the clinic in search of the employees. The doctor later sued the city, the county, the assistant prosecutor, and other defendants under 42 U.S.C. § 1983, alleging that the defendants violated his Fourth and Fourteenth Amendment rights. Notably, the plaintiff did not sue Simon Leis, the Hamilton County Prosecutor, and Leis's individual liability was irrelevant. The question before the Court was whether the policymaker's informed decision to break into the clinic without a search warrant was fairly attributable to the county.
Applying this standard to the case before us, we have little difficulty concluding that the Court of Appeals erred in dismissing petitioner's claim against the county. The Deputy Sheriffs who attempted to serve the capiases at petitioner's clinic found themselves in a difficult situation. Unsure of the proper course of action to follow, they sought instructions from their supervisors. The instructions they received were to follow the orders of the County Prosecutor. The Prosecutor made a considered decision based on his understanding of the law and commanded the officers forcibly to enter petitioner's clinic. That decision directly caused the violation of petitioner's Fourth Amendment rights.Pembaur, 475 U.S. at 484 (emphasis added). In ordering the deputies to break into the clinic without a search warrant, the county prosecutor was acting as the final decisionmaker for the county, and the Court ruled that the county could therefore be held liable under § 1983. Id. In sum, Leis's subordinates informed him of the salient facts and circumstances of the case and Leis committed to a course of action that directly caused the violation of the plaintiff's rights. His decision was the primary and moving force behind the violation. Littell v. Houston Indep. Sch. Dist., 894 F.3d 616, 622-23 (5th Cir. 2018).
The instant cases are critically distinguishable from Pembaur. Should the Court dismiss Plaintiffs' individual capacity claims against Stroman because Plaintiffs' claims against him were conclusory, there are no allegations to support any unconstitutional activity on Stroman's part. Plaintiffs argue that Stroman's decision to arrest them ultimately caused a constitutional violation and that his directive therefore creates Pembaur liability for the City. This level of but-for causation, however, is not fairly attributable to the City. The Fifth Circuit has expressly held that “moving force” causation is more than “but for” causation. Doe v. Edgewood Indep. Sch. Dist., 964 F.3d 351, 365 (5th Cir. 2020). A plaintiff “must show that the final policymaker had the requisite degree of culpability and that [the municipality's] policies were the actual cause of the constitutional violation.” Id. The plaintiffs have failed to adequately plead any such allegation against Stroman and their claims against the City therefore fail as a matter of law. The Court should, therefore, dismiss Plaintiffs' claims against the City of Waco.
E. Monell claims against the County
Plaintiffs also argue that Defendant Reyna is the final policymaker for McLennan County with regard to the events at Twin Peaks. The County and Reyna dispute this. Local government liability in this context is guided by two considerations. McMillian v. Monroe Cnty., 520 U.S. 781, 785 (1997). First, a court must ask “whether governmental officials are final policymakers for the local government in a particular area, or on a particular issue.” Id. (citing Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 738 (1989)) (holding a court must identify “those officials who have the power to make official policy on a particular issue”); St. Louis v. Praprotnik, 485 U.S. 112, 123 (1988) (“[T]he challenged action must have been taken pursuant to a policy adopted by the official or officials responsible under state law for making policy in that area of the [municipality's] business.”). Second, a court looks to relevant state law. Id. (citing Jett, 491 U.S. at 737 (“‘[W]hether a particular official has “final policymaking authority” is a question of state law'” (quoting Praprotnik, 485 U.S. at 123))).
Here, the question is whether Defendant Reyna possessed final policymaking authority in the area of ordering arrests. Beyond Plaintiffs' bald conclusion that Reyna had the authority to order the police to make the arrests, there is nothing more before the Court to satisfy this factor. The Fifth Circuit has held that in Texas, the county sheriff is the county's final policymaker in the area of law enforcement-not the district attorney. Turner v. Upton Cnty., 915 F.2d 133, 136 (5th Cir. 1990) (citing Familias Unidas v. Briscoe, 619 F.2d 391, 404 (5th Cir. 1980)). “Among other responsibilities he is charged with preserving the peace in his jurisdiction and arresting all offenders.” Id. (citing Tex. Code Crim. P. arts. 2.13, 2.17). The sheriff is McLennan County's final policymaker in this area, and he can “define objectives and choose the means of achieving them” without county supervision. Rhode v. Denson, 776 F.2d 107, 109 (5th Cir. 1985).
In sum, Plaintiffs allege that Reyna wrongly determined that the plaintiffs should be arrested based only on their presence at Twin Peaks. As discussed above, the sheriff-not the district attorney-is the final policymaker regarding “preserving the peace and arresting all offenders.” Turner, 915 F.2d at 136 (emphasis added); Tex. Code Crim. P. arts. 2.17 (“Each sheriff . . . shall arrest all offenders against the laws of the State, in his view or hearing, and take them before the proper court for examination or trial .... He shall apprehend and commit to jail all offenders, until an examination or trial can be had.”) Thus, regardless of Reyna's involvement in helping to decide whether the arrests should be made, he did not have authority to make municipal policy. Pembaur, 475 U.S. at 480.
Plaintiffs argue that Reyna is McLennan County's final policymaker because he “was responsible for devising the overall prosecutorial goals and strategies” of the County on the day of the incident. Even assuming that is accurate, Reyna still cannot be the final policymaker in this context because Plaintiffs complain of wrongful arrests, not of wrongful prosecution. Thus, Reyna's prosecutorial goals and strategies are irrelevant to whether he was the final policymaker in the area of ordering and making arrests, because he had no authority to dictate policy in that area. Accordingly, the County cannot be held liable for Reyna's individual actions.
Plaintiffs also allege that “despite all the obvious wrongs no City of Waco or McLennan County employee has received any discipline or consequence due to their actions thereby ratifying their actions as policy of the City of Waco and McLennan County.” Id. at ¶ 265. Under certain circumstances, the Fifth Circuit has held that a single decision by a policy maker or a single incident of a constitutional deprivation may constitute a policy for which a municipality may be liable under § 1983. See Brown v. Bryan Cnty., 219 F.3d 450, 459 (5th Cir. 2000); Grandstaff v. City of Borger, 767 F.2d 161, 171 (5th Cir. 1985).
In Grandstaff, the Fifth Circuit permitted a jury to find a municipal policy after hearing evidence describing an extraordinary series of violent events and the subsequent failure to discipline officers involved in those events. 767 F.2d at 171-72. The Fifth Circuit's reasoning in Grandstaff was heavily influenced by the extreme facts of that case:
[I]n response to a minor traffic violation, three patrol cars engaged in a high speed chase during which they fired wildly at the suspected misdemeanant; the object of this chase took refuge on an innocent person's ranch, where the entire night shift of the city police force converged and proceeded to direct hails of gunfire at anything that moved; although nobody except the police was ever shown to have fired a shot, the innocent rancher was killed when the police shot him in the back as he was emerging from his own vehicle; after this “incompetent and catastrophic performance,” which involved a whole series of abusive acts, the officers' supervisors “denied their failures and concerned themselves only with unworthy, if not despicable, means to avoid legal liability.”Coon v. Ledbetter, 780 F.2d 1158, 1161 (5th Cir. 1986) (internal citations omitted).
Subsequent Fifth Circuit cases emphasize that the rationale presented in Grandstaff may only be applied to cases with equally extreme factual circumstances. Id. at 1161-62; see also Castro v. McCord, 259 Fed.Appx. 664, 669 (5th Cir. 2007); Snyder v. Trepagnier, 142 F.3d 791, 797-98 (5th Cir. 1998); Stokes v. Bullins, 844 F.2d 269, 274 n.8 (1988). In cases without equally extreme facts, the Fifth Circuit does not permit an inference of an unconstitutional custom or policy from a municipality's failure to discipline an officer for a single incident. See Fraire v. City of Arlington, 957 F.2d 1268, 1278-79 (5th Cir. 1992) (discussing Berry v. McLemore, 670 F.2d 30 (5th Cir. 1982)).
In the instant case, law enforcement officials arrested a large number of people in the confusing aftermath of a melee involving many injuries and multiple shootings in a group of hundreds of motorcyclists. Plaintiffs make no allegation of a culture of recklessness at the City or County. See Snyder, 142 F.3d at 798 (“The shooting of Snyder . . . hardly rises to the level of the ‘extreme factual circumstances' presented in Grandstaff-particularly given the absence of evidence suggesting a culture of recklessness in the NOPD.”). The plaintiffs make no allegation of wanton violence on the part of law enforcement, as occurred in Grandstaff. The fact that a policymaker defends conduct that is later shown to be unlawful “does not necessarily incur liability on behalf of the municipality.” Peterson v. City of Ft. Worth, 588 F.3d 838, 848 (5th Cir. 2009) (citing Coon, 780 F.2d at 1161-62). Even if this Court subsequently finds that the arrests at issue were unconstitutional, the facts alleged are not remotely close to the reckless violence and abuse of power discussed in Grandstaff. Accordingly, the undersigned RECOMMENDS that Plaintiffs' claims against the City and County be DISMISSED.
IV. CONCLUSION
For the reasons outlined above, the undersigned RECOMMENDS that Defendants Frost and Schwartz's Motion to Dismiss (ECF No. 28); Defendants Chavez, Lanning, Rogers, Stroman, Swanton, and City of Waco's Motion to Dismiss (ECF No. 29); Defendant Reyna's Motion to Dismiss (ECF No. 30); Defendant McLennan County's Motion to Dismiss (ECF No. 31); and the City of Waco's Motion to Supplement its Motion to Dismiss (ECF No. 52) be GRANTED and that Plaintiff's lawsuit be DISMISSED.
V. OBJECTIONS
The parties may wish to file objections to this Report and Recommendation. Parties filing objections must specifically identify those findings or recommendations to which they object. The District Court need not consider frivolous, conclusive, or general objections. See Battle v. U.S. Parole Comm'n, 834 F.2d 419, 421 (5th Cir. 1987).
A party's failure to file written objections to the proposed findings and recommendations contained in this Report within fourteen (14) days after the party is served with a copy of the Report shall bar that party from de novo review by the District Court of the proposed findings and recommendations in the Report. See 28 U.S.C. § 636(b)(1)(C); Thomas v Arn, 474 U.S. 140, 150-53 (1985); Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415 (5th Cir. 1996) (en banc). Except upon grounds of plain error, failing to object shall further bar the party from appellate review of unobjected-to proposed factual findings and legal conclusions accepted by the District Court. See 28 U.S.C. § 636(b)(1)(C); Thomas, 474 U.S. at 150-53; Douglass, 79 F.3d at 1415.