Opinion
Civil Action No. 3:04-CV-1794-M.
October 26, 2004
MEMORANDUM OPINION AND ORDER
Before the Court is "Defendant's Motion to Dismiss Under Fed.R.Civ.P. 12(b)(6)," filed on August 26, 2004. The Court is of the opinion that the allegations in Plaintiffs' pro se Complaint are insufficient to state a claim under 42 U.S.C. § 1983. The Court GRANTS Defendant's Motion to Dismiss, but GRANTS Plaintiffs an opportunity to amend their Complaint within thirty days of the date of this Order so they may have an opportunity to cure their pleading deficiencies.
Background
Plaintiff Johnson owns a small business in Dallas, Texas. Plaintiffs Calloway and Brown are employees of Johnson. Plaintiff Andrews is not mentioned in Plaintiffs' Complaint with respect to the events in issue, and his role in the events alleged is unknown. Plaintiffs are suing the City of Dallas under 42 U.S.C. § 1983, alleging violations of their rights to equal protection under the Fourteenth Amendment, their rights to free association under the First Amendment, and their rights under the Fourth Amendment to be free from unlawful search and seizure. In addition, they are attempting to assert a state law claim for "civil harassment".
Plaintiffs' pro se Complaint arises out of two separate alleged incidents involving City of Dallas police officers. Plaintiffs contend that on April 10, 2003, five Dallas police officers harassed Plaintiffs while visiting Johnson's store. Plaintiffs claim that the officers directed racial epithets towards them, and that one of the officers slapped Plaintiff Calloway in the face and grabbed his shirt. The officers then arrested Plaintiffs Brown and Calloway, purportedly pursuant to outstanding warrants. After the officers left, Plaintiffs allegedly discovered that $800 was missing (presumably belonging to Johnson). Plaintiffs surmise that the officers stole the money. During a second alleged incident, a different group of officers visited Johnson's store and charged him with disorderly conduct. Johnson claims that the charge against him was unfounded, and that the conduct of the police department has harmed his business. Plaintiffs claim that both incidents were motivated by Plaintiffs' race and by Brown's gender. Plaintiffs insinuate that the officers' visit to their store included an unlawful search and seizure, and infringed upon their freedoms of association.
Analysis
A city is not automatically liable for violations of constitutional rights committed by its employees. In order to assert a claim against a municipality under § 1983, a plaintiff must allege a constitutional injury, incurred in connection with the execution of a municipal custom or policy, and which is caused by the custom or policy. Bennett v. City of Slidell, 728 F.2d 762, 767 (5th Cir. 1984). A city can be liable for either: (1) an official action, ordinance or regulation, 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." Webster v. City of Houston, 735 F.2d 838, 841 (5th Cir. 1984).
Here, Plaintiffs have failed to allege sufficiently that any city custom or policy is the source of their constitutional injuries. In their Complaint, Plaintiffs' only reference to custom or policy is their assertion that Dallas police officers enforce laws "in the way they see fit . . . even if it does not comply with the standard practice of interpretation by the same group of officers in identical situations." In their Response to Defendant's Motion, Plaintiffs attempt to make a supplementary allegation that the Dallas City Council has a custom of granting officers excessive discretionary authority and then neglecting to act when it has knowledge of the officers' constitutional abuses. Even if this allegation were in Plaintiffs' Complaint, the Court is of the opinion that Plaintiffs have not sufficiently articulated a claim for relief under § 1983.
Plaintiffs' assertions that the Dallas Police Department "has a history of out of control police officers" and that the City Council "has a custom of ignoring the actions of the abusive officers by allowing the department to retain such officers," do not, by themselves, demonstrate the existence of an actionable custom. In order for a municipal custom to support liability under § 1983, it must be "promulgated with deliberate indifference to the known or obvious consequences that constitutional violations would result." Piotrowski v. City of Houston, 237 F.3d 567, 579 (5th Cir. 2001). The Supreme Court has held that even a showing of heightened negligence is insufficient to prove municipal culpability. Bd. of Comm'rs of Bryan County v. Brown, 520 U.S. 397, 407 (1997). Plaintiffs do not, however, allege that the City Council knew or should have known that its alleged custom would cause police officers to violate their constitutional rights. Furthermore, even if the City Council should have known the risks of its alleged policy of inaction, Plaintiffs do not allege that the City Council was deliberately indifferent to the rights of persons in Plaintiffs' position. They do not claim that the City Council's inaction was motivated by racial animus, by any desire to limit First Amendment freedom of association, or by any desire to infringe upon Fourth Amendment rights. Assuming all of Plaintiffs' allegations are true, they reflect, at worst, only negligence on the part of the City Council.
Aside from this infirmity, Plaintiffs' pleadings are also insufficient under § 1983 because they rely exclusively on evidence of two incidents of alleged police misconduct, both involving Plaintiffs. In order for a plaintiff to prove that municipal custom was the source of his constitutional injury, a plaintiff has the burden of demonstrating repeated, similar constitutional violations. Bennett, 728 F.2d at 768 n. 3. The required showing is particularly stringent when a plaintiff alleges he was injured by a policymaker's inaction. The Fifth Circuit has held that it is nearly impossible "to impute lax disciplinary policy to the City without showing a pattern of abuses that transcends the error made in a single case." Piotrowski, 237 F.3d at 582. Here, Plaintiffs do not plead other instances in which the Dallas City Council's alleged policy of inaction caused Dallas police officers to violate another person's rights under the First Amendment, Fourth Amendment or Fourteenth Amendment. Without demonstrating such a pattern, Plaintiffs cannot prove that there is a sufficiently widespread custom, so as to support municipal liability. Id. Accordingly, Defendant's Motion to Dismiss is granted with respect to Plaintiffs' § 1983 claims.
The Court also grants Defendant's Motion to Dismiss with respect to Plaintiffs' civil harassment claim. The Texas Tort Claims Act does not waive a governmental unit's immunity from liability for intentional torts committed by its employees. See University of Texas Medical Branch at Galveston v. Hohman, 6 S.W.3d 767, 777 (Tex.App.-Houston [1st Dist.] 1999, pet. dism'd w.o.j.). Since Plaintiffs have not identified any statute, other than § 1983, that allows the assertion of claims of harassment against a city government, their state law harassment claim is barred as a matter of law.
When considering motions to dismiss under Fed.R.Civ.P. 12(b)(6), the Court holds pro se complaints to less stringent standards than pleadings drafted by lawyers. Calhoun v. Hargrove, 312 F.3d 730, 733 (5th Cir. 2002). A pro se plaintiff should ordinarily be given at least one opportunity to amend his complaint before the Court dismisses the action. See Schultea v. Wood, 27 F.3d 1112, (5th Cir. 1994). Since Plaintiffs' pro se Complaint does not allege the requisite elements of a claim under 42 U.S.C. § 1983 or Texas state law, the Court GRANTS Defendant's Motion to Dismiss, but GRANTS plaintiffs an opportunity to amend their Complaint within thirty days of the date of this Order.
SO ORDERED.