Opinion
3:01-CV-1184-G.
December 12, 2001
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b), and an order of the court in implementation thereof, this case has been referred to the United States magistrate judge. The findings, conclusions and recommendation of the magistrate judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS: Type of Case: This is a civil rights complaint brought pursuant to 42 U.S.C. § 1983.
Parties: Plaintiff is presently incarcerated at the Gurney Unit of the Texas Department of Criminal Justice — Institutional Division (TDCJ-ID) in Tennessee Colony, Texas. He was incarcerated at the Dallas County Jail when he filed the complaint in this case.
Defendants are the City of Farmers Branch, unidentified Farmers Branch police officers, and the Farmers Branch Police Department. The court has not issued process in this case. However, on July 26 and October 24, 2001, the magistrate judge issued questionnaires to Plaintiff who filed his answers on September 4 and November 19, 2001, respectively.
Statement of Case: The complaint alleges excessive use of force during Plaintiff's arrest, seizure of personal property and cash from Plaintiff's vehicle at the time of his arrest, and denial of medical care and unreasonable conditions of confinement at the Farmers Branch City Jail for the six-day period following his arrest. Plaintiff seeks the return of his personal property and $58,000 in cash, and monetary damages in the amount of $1,000,000.00.
The material allegations asserted in Plaintiff's complaint and in his answers to the magistrate judge's questionnaires are as follows:
On January 14, 2001, Plaintiff was arrested by the Farmers Branch Police Department following a car wreck with a squad car. Upon his arrest Hemandez was allegedly punched repeatedly in the stomach while in handcuffs. As he fell to the ground, Plaintiff alleges he was kicked in his back and knees. He states he experienced cuts and bruises and his eyeglasses were damaged because of the excessive use of force. He was subsequently prosecuted and convicted of the offense of aggravated assault of a public servant. However, the victim of the assault was a person other than the unidentified Farmers Branch police officers whom Hernandez claims physically abused him after he had been subdued and handcuffed. See Answer to Supplemental Question 1.
Upon his arrival at the Farmers Branch City Jail Plaintiff requested medical attention for his injuries. However, his requests were ignored. During his six-day confinement at the city jail, Plaintiff was denied hygiene items and showers, and allegedly provided inadequate food, which caused him to lose six pounds. Plaintiff's personal property and $58,000 in cash were allegedly seized from his vehicle following his arrest. Findings and Conclusions: The court has permitted Plaintiff to proceed in forma pauperis. His complaint is, thus, subject to screening under 28 U.S.C. § 1915A, which imposes a screening responsibility on the district court. Section 1915A reads in pertinent part as follows:
It is unclear what personal property, in addition to the $58,000 in cash, was seized from Plaintiff's vehicle. (See Complaint at 4).
The court shall review . . . as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity [and] [o]n review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint (1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief."28 U.S.C. § 1915A(a) and (b) (emphasis added). See also 28 U.S.C. § 1915(e)(2)(B) ("Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . (B) the action or appeal — (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.").
Both sections 1915A(b) and 1915(e)(2)(B) provide for sua sponte dismissal if the Court finds that the complaint is "frivolous" or that it "fails to state a claim upon which relief may be granted." A complaint is frivolous, if it "lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 1831-32, 104 L.Ed.2d 338 (1989). A complaint fails to state a claim upon which relief may be granted when it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957).
The complaint seeks to sue the City of Farmers Branch for excessive use of force during Plaintiff's arrest, seizure of the personal property and $58,000 in cash from Plaintiff's car following his arrest, and denial of medical care and unreasonable conditions of confinement during Plaintiff's confinement at the Farmers Branch City Jail.
In Monell v. Dep't of Social Servs., 436 U.S. 658, 691-95, 98 S.Ct. 2018, 2036-38, 56 L.Ed.2d 611 (1978), the Supreme Court held that a municipality, such as the City of Farmers Branch, is liable under § 1983 for acts of its employees or agents only when an official acts at the direction of the municipality or pursuant to a municipal policy or custom. The Court specifically held that a municipality is not vicariously liable for the acts of its employees, stating that "a local government may not be sued under § 1983 for an injury inflicted solely by its employees or agents." Id. at 694, 98 S.Ct. at 2037.
Plaintiff's complaint, even when liberally construed, does not allege the necessary facts to establish municipal liability under Monell for the excessive use of force and seizure of personal property that he experienced following his arrest. Plaintiff does not allege that the City of Farmers Branch or any of its employees implemented an unconstitutional policy or acted in such a way that resulted in Plaintiff's injury. He merely alleges that every police department has enacted policies concerning the training and supervision of police officers, the use of force, and search and seizure's procedures. (Answer to Questions 13-14). Therefore, Plaintiff's claims against the City of Farmers Branch for excessive use of force and seizure of his personal property lack an arguable basis in law.
Plaintiff's claims for denial of medical care during his confinement at the Farmers Branch City Jail also lack an arguable basis in law. To state a colorable claim for the denial of medical care under the Eighth Amendment, convicted inmates must allege acts or omissions "sufficiently harmful to evidence a deliberate indifference to serious medical needs." Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 292, 50 L.Ed.2d 251 (1976); Norton v. Dimazana, 122 F.3d 286, 291 (5th Cir. 1997). "Deliberate indifference encompasses only unnecessary and wanton infliction of pain repugnant to the conscience of mankind."Norton, 122 F.3d at 291. It occurs when a prison official subjectively knows of and disregards a substantial risk to the inmate's health or safety. Farmer v. Brennan, 511 U.S. 825, 837-840, 114 S.Ct. 1970, 1979-80, 128 L.Ed.2d 811 (1994). Under the Due Process Clause of the Fourteenth Amendment, the same standard applies to pretrial detainees, such as Plaintiff, who complain of episodic acts or omissions resulting in the denial of medical care. Olabisiomotosho v. City of Houston, 185 F.3d 521, 526 (5th Cir. 1999); Hare v. City of Corinth, Miss., 74 F.3d 633, 650 (5th Cir. 1996).
It appears that Plaintiff's injuries were not serious. He did not continue to complain of the pain in his back, knees or neck during his subsequent confinement at the Dallas County Jail, nor in the lawsuit he filed against Dallas County. See Williams, et al. v. Gibson, et al., 3:O1cv400- (N.D. Tex., Dallas Div.). Moreover, Plaintiff concedes he is not currently receiving medical treatment from TDCJ-ID for any of the injuries inflicted following his arrest. (See Answer to Question 9). Accepting as true Plaintiff's allegations with respect to the denial of medical care, he has failed to raise a claim cognizable under § 1983.
Plaintiff's conditions of confinement claim fares no better. The treatment of a pre-trial detainee is governed by substantive protections of the Due Process Clause of the Fourteenth Amendment. This constitutional right protects the detainee's right to be free from punishment prior to an adjudication of guilt. See Bell v. Wolfish, 441 U.S. 520, 535 n. 16, 99 S.Ct. 1861, 1872 n. 16, 60 L.Ed.2d 447 (1979). In Hare, 74 F.3d at 644, the Fifth Circuit Court of Appeals concluded that the appropriate standard for analyzing constitutional challenges by pretrial detainees depends on whether the prisoner is attacking a condition of confinement or an episodic act or omission. A condition of confinement case is a constitutional attack on "general conditions, practices, rules, or restrictions of pretrial confinement." Id. In such a case the assumption is that the practice was intentional and, therefore, the inquiry is whether the practice in question was "reasonably related to a legitimate governmental purpose." Id. at 640. If the alleged harm is a particular act or omission of one or more officials, the action is characterized as an "episodic act or omission" case. Id. at 645. Under the latter scenario, the detainee is required to establish that the officials had actual subjective knowledge of a substantial risk of serious harms but responded with deliberate indifference to that risk. Id. at 643 and 650.
In this case, Plaintiff's allegations raise facts challenging both episodic acts and conditions of confinement. Under either of the above standards, Plaintiff's allegations fail to raise a due process violation. None of the alleged conditions or episodic acts are sufficiently egregious to amount to punishment. Plaintiff's allegations that Defendants denied him hygiene items and showers, and provided him with inadequate food for the six-day period he was confined at the Farmers Branch City Jail are insufficient to state a claim of constitutional dimensions. Such a temporary inconvenience is not the type of extreme deprivation that amounts to punishment. Moreover, the daily management of prison operations is best left to the knowledge and expertise of prison administrators. Rhodes v. Chapman, 452 U.S. 337, 349, 101 S.Ct. 2392, 2400-2401, 69 L.Ed.2d 59 (1981).
Alternatively, Plaintiff's conditions of confinement claims should be dismissed under 42 U.S.C. § 1997e(e). That section, enacted into law on April 26, 1996, provides that "[n]o Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury." Since Plaintiff has not suffered any physical injury as a result of the conditions of confinement alleged in the complaint, except for minimal weight loss, § 1997e(e) bars his claim for compensatory damages for mental pain and suffering.
Next Plaintiff complains about the seizure of personal property and $58,000 in cash from his vehicle following his arrest. When the loss of property is not intentional, but merely negligent no cause of action under § 1983 is present. Daniels v. Williams, 474 U.S. 327, 328, 106 S.Ct. 662, 663, 88 L.Ed.2d 662 (1986); Davidson v. Cannon, 474 U.S. 344, 347, 106 S.Ct. 668, 670, 88 L.Ed.2d 677 (1986). Where mere negligence is involved in causing a deprivation or damage to property, no procedure for compensation is constitutionally required. Id. Therefore, to the extent that Plaintiff's seizure claim is predicated on negligence, it lacks an arguable basis in law and should be dismissed as frivolous.
On the other hand, if Hemandez is claiming that he was intentionally deprived of his personal property, the United States Supreme Court has held that the intentional deprivation of property by state employees does not constitute a civil rights violation as long as the state provides a meaningful post-deprivation remedy. Hudson v. Palmer, 468 U.S. 517, 533, 104 S.Ct. 3194, 3204, 82 L.Ed.2d 393 (1984); accord Nickens v. Melton, 38 F.3d 183, 184-85 (5th Cir. 1994), cert. denied, 514 U.S. 1025 (1995); Holloway v. Walker, 790 F.2d 1170, 1174 (5th Cir.) (finding no breach of federally guaranteed constitutional rights, even where a high level state employee intentionally engages in tortuous conduct, as long as the state system as a whole provides due process of law), cert. denied, 479 U.S. 984 (1986). "In essence, the doctrine protects [a governmental entity] from liability for failing to provide a pre-deprivation process in situations where it cannot anticipate the random and unauthorized actions of its officers." Myers v. Klevenhagen, 97 F.3d 91, 94 (5th Cir. 1996). A plaintiff bears the burden to establish that the state's post-deprivation remedy is inadequate. Id. at 94-95.
Under Texas state common-law, Hernandez may sue for conversion to remedy his alleged property loss. Murphy v. Collins, 26 F.3d 541, 543 (5th Cir. 1994); Myers v. Adams, 728 S.W.2d 771 (Tex. 1987). Conversion occurs when there is an unauthorized and unlawful exercise of dominion and control over the personal property of another which is inconsistent with the rights of the owner. Beam v. Voss, 568 S.W.2d 413, 420-21 (Tex.Civ.App. — San Antonio 1978, no writ.) Therefore, if a Farmers Branch police officer exercised unauthorized and unlawful control over Plaintiff's personal property and cash — i.e. seized his cash — he has a cause of action in conversion. Such a common-law action in state court would be sufficient to meet constitutional due process requirements. Murphy, 26 F.3d at 543-44. In light of this adequate state common-law remedy, Plaintiff's claim based on the confiscation of his personal property and $58,000 in cash lacks an arguable basis in law.
Finally, the Court sua sponte notes that the Farmers Branch Police Department is not a proper party in a § 1983 action. A governmental department cannot engage in litigation "unless the true political entity has taken explicit steps to grant the servient agency with jural authority." Darby v. Pasadena Police Dep't, 939 F.2d 311, 313-14 (5th Cir. 1991). Governmental offices and departments do not have a separate legal existence.See Ruggiero v. Litchfield, 700 F. Supp. 863, 865 (M.D.La. 1988) (local sheriffs office is not legal entity subject to suit). Accordingly, in the alternative, Plaintiff's claims against the Farmers Branch Police Department should be dismissed as they lack an arguable basis in law.
Accepting as true Plaintiff's allegations as to the force used by the unidentified police officers, the magistrate judge concludes that Plaintiff has arguably raised a claim for excessive use force in violation of the Fourth Amendment. See Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 1871, 104 L.Ed.2d 443 (1989) ("all claims that law enforcement officers have used excessive force . . . in the course of an arrest, investigatory stop, or other `seizure' of a free citizen should be analyzed under the Fourth Amendment and its `reasonableness' standard"). Plaintiff's allegations that the police officers viciously punched him in the stomach and kicked him in his knees and back without provocation and while he was in handcuffs raise a claim that the force used may have been excessive to the need and that such conduct was objectively unreasonable. See Ikerd v. Blair, 101 F.3d 430, 433-34 (5th Cir. 1996) (setting out the elements of an excessive force claim). Therefore, Plaintiff's claim of excessive use of force is not subject to dismissal at the screening stage .
Plaintiff has been given an opportunity to expound on the factual allegations of his complaint by way of questionnaire.See Berry v. Brady, 192 F.3d 504, 507 (5th Cir. 1999) (reaffirming use of a questionnaire as useful and proper means for court to develop factual basis of pro se plaintiff's complaint); Eason v. Thaler, 14 F.3d 8, 9 (5th Cir. 1994) (same); Watson v. Ault, 525 F.2d 886, 892-93 (5th Cir. 1976) (same). Because he has failed to allege any cognizable claim for relief against the City of Farmers Branch and the Farmers Branch Police Department under § 1983, the same should be dismissed with prejudice as frivolous pursuant to §§ 1915A(b)(1) and 1915(e)(2)(B)(i). Plaintiff's claim for excessive use of force against the unidentified police officers is not subject to dismissal at the screening stage. However, process cannot issue until Hemandez has provided the court sufficient information — i.e., badge numbers, names and/or physical descriptions of the presently unidentified defendant police officers — so that service can be effected on these individuals.
RECOMMENDATION:
For the foregoing reasons, it is recommended that the District Court enter its order dismissing Plaintiff's complaint against the City of Farmers Branch and the Farmers Branch Police Department with prejudice pursuant to the provisions of 28 U.S.C. § 1915A(b) and 1915(e)(2).
It is further recommended that Plaintiff s claims against the unidentified Farmers Branch police officers be held in abeyance pending Plaintiff's providing the court with information with respect to such defendants' identities.
Plaintiff is placed on notice of his responsibility to obtain information on the police officers' identities. Failure to provide such information may subject this portion of the complaint to dismissal without prejudice pursuant to Rule 4(m), Federal Rules of Civil Procedure.
A copy of this recommendation will be mailed to Plaintiff.
NOTICE
In the event that you wish to object to this recommendation, you are hereby notified that you must file your written objections within ten days after being served with a copy of this recommendation. Pursuant to Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415 (5th Cir. 1996) (en banc,) a party's failure to file written objections to these proposed findings of fact and conclusions of law within such ten-day period may bar a de novo determination by the district judge of any finding of fact or conclusion of law and shall bar such party, except upon grounds of plain error, from attacking on appeal the unobjected to proposed findings of fact and conclusions of law accepted by the district court.