Opinion
EP-04-CA-0431-FM.
January 9, 2006
MEMORANDUM OPINION AND ORDER GRANTING SUMMARY JUDGMENT FOR DEFENDANT THE CITY OF EL PASO.
On this day, the Court considered the "City of El Paso and El Paso Police Department's Motion for Summary Judgment" [Rec. No. 38], "Appendix of Material and Disputed Facts in Support of Defendants' Motion for Summary Judgment" [Rec. No. 39], "Plaintiff's Response to the Motion for Summary Judgment of the City of El Paso and El Paso Police Department" [Rec. No. 40], "Appendix to Plaintiff's Response to the Motion for Summary Judgment of the City of El Paso and El Paso Police Department" [Rec. No. 41], "City of El Paso's Objections to Plaintiff's Summary Judgment Evidence" [Rec. No. 42], "City of El Paso's Motion to Strike the Affidavit of George A. DeAngelis as Summary Judgment Evidence" [Rec. No. 43], "City of El Paso's Motion to Strike the Affidavit of Corda Shonerd as Summary Judgment Evidence" [Rec. No. 44], "City of El Paso's Supplemental Objections to Plaintiff's Summary Judgment Evidence" [Rec. No. 45], "Plaintiff's Response to the City of El Paso's Motion to Strike the Affidavit of Corda Shonerd" [Rec. No. 46] and "Plaintiff's Response to the City of El Paso's Motion to Strike the Affidavit of George DeAngelis" [Rec. No. 47]. After careful consideration of the motion, summary judgment evidence, and applicable case law, the Court is of the opinion that "City of El Paso and El Paso Police Department's Motion for Summary Judgment" [Rec. No. 38] should be GRANTED.
I. FACTUAL AND PROCEDURAL BACKGROUND
Through his "Third Amended Complaint" [Rec. No. 27] Jamie Luevano, ("Plaintiff") brings this action for relief pursuant to 42 U.S.C. 1983, alleging the use of excessive force, unlawful post-arrest assault, denial of medical care and assistance while in the El Paso Police Department's ("EPPD") custody and failure to provide prompt medical treatment to Plaintiff. The facts surrounding Plaintiff's arrest and custody as asserted by Plaintiff have been thoroughly described in this Court's previous "Memorandum Opinion and Order Denying Summary Judgment" [Rec. No. 33]. Plaintiff asserts that the City of El Paso, acting through its political subdivision, EPPD, caused Plaintiff's injuries by "failing to properly train, supervise and control the conduct of Defendants Peralta and Guerrero, by failing to train members of the EPPD to enforce the laws in effect in the State of Texas and by failing to promulgate, issue and enforce appropriate procedures and regulations concerning the use of force by members of the EPPD, and by its adoption or de facto adoption of the custom, policy and practice of conscious, deliberate indifference to use of unreasonable force." [Rec. No. 27].
Plaintiff supports his assertion that Defendants the City of El Paso and its political subdivision EPPD have violated Plaintiff's constitutional rights by two theories he proposes constitute an unconstitutional policy, practice, procedure or custom. The first is that EPPD's contract with the District Attorney's Office known as the DIMS project creates an improper attorney/client relationship and a conflict of interest when El Paso Police Officers are accused of crimes because the District Attorney's Office might have to bring charges against its own client the EPPD. Furthermore, Plaintiff asserts the project "takes the Judicial Branch out of the process, and eliminates an opportunity for a victim of excessive force to make an outcry to the Judicial Branch of government." [Rec. No. 41]. The second is that "there is an overwhelming record of Internal Affairs complaints made against members of the [El Paso Police Department] in the last few years," very few of which result in disciplinary action or termination. [Rec. No. 41]. Although proposals were made to institute a tracking system to identify police officers with multiple complaints, this idea was rejected. Plaintiff asserts that by rejecting the tracking system, Defendant the City of El Paso has turned a blind eye to the conduct of its police officers which constitutes deliberate indifference and forms a custom that fairly represents municipal policy.
Defendants the City of El Paso and its political subdivision, the EPPD, now move for summary judgment pursuant to FED. R. CIV. P. 56(c). Defendants assert that it:
does not have a policy, custom or practice that authorizes, encourages or tolerates improper or illegal activities by officers within the Department. All officers are taught the rules of the Department, the laws of the State of Texas and the United States Constitution concerning probable cause for arrest, the elements of the criminal offense, the use of force allowed and permitted in effecting an arrest, the care and treatment of prisoners in custody after an arrest. Improper and illegal conduct is not tolerated by the Department. The Department takes all allegations of improper conduct seriously and promptly investigates the same, with appropriate action taken if there is a problem.
[Rec. No. 39].
II. SUMMARY JUDGMENT STANDARD
Summary judgment shall be rendered when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. FED.R.CIV.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986); Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998). A dispute regarding a material fact is "genuine" if the evidence is such that a reasonable jury could return a verdict in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When ruling on a motion for summary judgment, the court is required to view all inferences drawn from the factual record in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co., Inc. v. Zenith Radio Corp., 475 U.S. 574, 585-87 (1986); Ragas, 136 F.3d at 458. Further, the court "may not make credibility determinations or weigh the evidence" in ruling on motion for summary judgment. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150-152 (2000).
Once the moving party has made an initial showing that there is no evidence to support the nonmoving party's case, the party opposing the motion must come forward with competent summary judgment evidence of the existence of a genuine fact issue. Matsushita, 475 U.S. at 586. Mere conclusory allegations are not competent summary judgment evidence, and thus are insufficient to defeat a motion for summary judgment. Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir. 1996). Unsubstantiated assertions, improbable inferences, and unsupported speculation are not competent summary judgment evidence. See Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir. 1994), cert. denied, 513 U.S. 871 (1994). The party opposing summary judgment is required to identify specific evidence in the record and to articulate the precise manner in which that evidence supports his claim. Ragas, 136 F.3d at 458.
Rule 56 does not impose a duty on the court to "sift through the record in search of evidence" to support the nonmovant's opposition to the motion for summary judgment. Id.; see also Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915-16 n. 7 (5th Cir. 1992), cert. denied, 506 U.S. 832 (1992). "Only disputes over facts that might affect the outcome of the suit under the governing laws will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248. Disputed fact issues which are "irrelevant and unnecessary" will not be considered by a court in ruling on a summary judgment motion. Id. If the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to its case and on which it will bear the burden of proof at trial, summary judgment must be granted. Celotex, 477 U.S. at 322-23.
III. ANALYSIS
Section 1983 provides a claim against anyone who, under color of state law, deprives another of his or her constitutional rights. 42 U.S.C. § 1983. In Monell v. New York City Dept. of Social Servs., the Supreme Court recognized municipal liability under § 1983 where the execution of a municipal policy or custom inflicts a constitutional deprivation. 436 U.S. 658, 691 (1978). In recognizing municipal liability, the Court made it clear that a municipality may only be held liable when an action taken pursuant to official municipal policy or custom caused the constitutional violation. Id.; see also Collins v. City of Harker Heights, 503 U.S. 115, 120 (1992). The Court held that a "municipality cannot be held liable solely because it employs a tortfeasor — or, in other words, a municipality cannot be held liable under § 1983 on a respondeat superior theory." Monell, 436 U.S. at 691. "Congress did not intend municipalities to be held liable unless deliberate action attributable to the municipality directly caused a deprivation of federal rights." Board of County Comm'rs of Bryan County v. Brown, 520 U.S. 397, 415 (1997).
The term "municipality" means a government entity below the state level. See Bryan County v. Brown, 520 U.S. 397, 416 (1997) (Souter, J., dissenting). Defendant City of El Paso is a governmental entity below the state level.
Thus, Plaintiff's claim in his Third Amended Complaint [Rec. No. 27] for liability under the doctrine of Respondeat Superior is clearly erroneous and must be dismissed.
In order to hold a governmental entity liable for the acts of a nonpolicymaking employee, the plaintiff must allege and prove that: "(1) a policy or custom existed; (2) the governmental policy makers actually or constructively knew of its existence; (3) a constitutional violation occurred; and (4) the custom or policy served as the moving force behind the violation." Meadowbriar Home For Children, Inc. v. Gunn, 81 F.3d 521, 532-33 (5th Cir. 1996). At the summary judgment stage, Plaintiff must be able to raise a genuine question of material fact on each of these elements.
A. DIMS OFFICIAL POLICY
When analyzing a § 1983 claim against a municipality, the Court must first decide if the Defendant promulgated "an official policy, practice, or custom," which could subject it to § 1983 liability. Monell, 436 U.S. at 690-94. "[T]he unconstitutional conduct must be directly attributable to the municipality through some sort of official action or imprimatur." Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th Cir. 2001). Moreover, when proceeding under § 1983, "each and any policy which allegedly caused constitutional violations must be specifically identified by a plaintiff." Id.
Circuit precedent defines official policy or custom as:
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. Actual or constructive knowledge of such custom must be attributable to the governing body of the municipality or to an official to whom that body had delegated policy-making authority.Johnson v. Moore, 958 F.2d 92, 94 (5th Cir. 1992) (quoting Bennett v. City of Slidell, 735 F.2d 861, 862 (5th Cir. 1984), cert. denied, 472 U.S. 1016 (1985)). Wrongful conduct by an officer without policymaking authority cannot be considered a municipal "policy." See Collins v. City of Harker Heights, 503 U.S. 115, 121 (1992).
In addition to all of the other elements, Plaintiff must show a direct, causal link between a municipal policy and the constitutional deprivations. City of Canton v. Harris, 489 U.S. 378, 385 (1989); "It is only when the `execution of the government's policy or custom . . . inflicts the injury that the municipality may be held liable under § 1983." Id. (citations omitted). The Supreme Court has held:
[I]t is not enough for a § 1983 plaintiff merely to identify conduct properly attributable to the municipality. The plaintiff must also demonstrate that through its deliberate conduct, the municipality was the `moving force' behind the injury alleged. That is, 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.Brown, 520 U.S. at 404.
Defendant moves for summary judgment on several grounds, including the assertion that there is no evidence of a policy or custom which was the moving force behind the alleged constitutional violation. Here, there is not sufficient evidence of any such causal link or "moving force" that supports Plaintiff's civil rights claim.
Plaintiff argues that the DIMS program is an unconstitutional policy. Plaintiff supports this argument with DIMS project documents and the affidavit of George A. DeAngelis. [Rec. No. 41]. Mr. DeAngelis has held managerial positions with EPPD and most recently was the Assistant Chief of Operations/Chief of Staff in 2002. Mr. DeAngelis claims that the DIMS policy is unconstitutional because the EPPD pays the District Attorney's Office for services which "destroys the objectivity of the District Attorney's Office" including issues of possible police misconduct. [Rec. No. 41].
Viewing all inferences in the light most favorable to the nonmoving party, this Court accepts Plaintiff's factual allegations as true for purposes of ruling on this motion. Assuming, arguendo and for the sole purpose of deciding this motion that the Plaintiff has established that Defendant promulgated an "official policy" which is unconstitutional, namely the DIMS project, Plaintiff has provided no evidence that the DIMS project was the "moving force" behind the Police Officer Defendant's alleged excessive force or failure to provide prompt medical treatment. There is no dispute that by acting in conformity to the DIMS project EPPD officers will not bring the arrested person before a magistrate. It is simply insufficient to assert that EPPD officers following DIMS rules "causes them to use excessive force" or to "fail to provide prompt medical care" (emphasis added). In fact, because the DIMS policy comes into use after the alleged excessive force or failure to provide prompt medical care, the only argument that can be made is that the police officers do not think they will be caught for alleged excessive force or failure to provide prompt medical care. Similarly, Plaintiff's argument that the District Attorney lacks objectivity and will not indict EPPD officers is only speculation. Clearly, the District Attorney's office is not barred from indicting EPPD officers. These arguments are mere speculation and insufficient to prove that the DIMS project, even if found unconstitutional, is the moving force behind the alleged excessive force or failure to provide prompt medical treatment. Thus, Plaintiff is speculating that the DIMS project was the moving force behind the alleged excessive force and failure to provide prompt medical treatment claims. Speculation is not competent summary judgment evidence. See Forsyth, 19 F.3d at 1533.
Plaintiff has failed to adequately articulate a policy of Defendant authorizing or condoning excessive uses of force or lack of provision of medical care. Accordingly, Plaintiff's § 1983 claim against Defendant warrants dismissal because Plaintiff has not come forward with evidence of a sufficient policy maintained by Defendant that was the moving force behind the alleged violation of his constitutional rights. B. Custom Adopted with "Deliberate Indifference" to Constitutionally Protected Rights
A municipality may also be sued "for constitutional deprivations visited pursuant to governmental `custom' even though such a custom has not received formal approval through the body's official decision making channels." Monell, 436 U.S. at 690-91. The Fifth Circuit has consistently held that evidence of random or isolated incidents involving employees are not sufficient to exhibit custom. See Fraire v. City of Arlington, 957 F.2d 1268, 1278 (5th Cir. 1992). "Isolated violations are not the persistent, often repeated constant violations that constitute custom and policy" as required for municipal section 1983 liability. Bennett v. City of Slidell, 728 F.2d 762, 768 n. 3 (5th Cir. 1984), cert. denied, 472 U.S. 1016 (1985). "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 to ensure that the municipality is not held liable solely for the actions of its employee." Bryan County, 520 U.S. at 405 (citing City of Canton, 489 U.S. at 391-92). "Under certain circumstances a municipality may incur § 1983 liability for its employees' acts when a municipal policy of hiring or training causes those acts." Benavides v. County of Wilson, 955 F.2d 968, 972 (5th Cir. 1992). In this case, the plaintiff must show: (1) the training or hiring procedures of the municipality's policymaker were inadequate; (2) the municipality's policymaker was deliberately indifferent in adopting the hiring or training policy; and (3) the inadequate hiring or training policy directly caused the plaintiff's injury. City of Canton, 489 U.S. at 385-87; Benavides, 955 F.2d at 972.
Additionally, the "plaintiff must demonstrate that a municipal decision reflects deliberate indifference to the risk that a violation of a particular constitutional or statutory right will follow the decision." Brown, 520 U.S. at 410. A municipality acts with "deliberate indifference" in adopting an otherwise constitutional policy if
in light of the duties assigned to specific officers or employees, the need for more or different training is so obvious, and the inadequacy so likely to result in violations of constitutional rights, that the policymakers of the city can reasonably be said to have been deliberately indifferent to the need.City of Canton, 489 U.S. at 389. Further, "[d]eliberate indifference is a stringent standard of fault, requiring proof that a municipal actor disregarded a known or obvious consequence of his action." Brown, 520 U.S. at 410.
Defendant has argued, amongst other things, that it does not have a custom made with deliberate indifference which was the cause of Plaintiff's injuries. Plaintiff argues that there is a custom within the EPPD to fail to discipline officers resulting from internal affairs complaints. Furthermore, according to Plaintiff, because the EPPD chose not to implement a proposed tracking system to identify police officers who have allegedly multiple complaints against them, the EPPD is deliberately indifferent to the alleged multiple violations. Moreover, according to Plaintiff, the failure to train in this manner or custom of not disciplining EPPD officers caused Plaintiff's injuries.
Plaintiff has presented the Court with numerous accounts of internal affairs investigations. [Rec. No. 41]. There is no evidence presented that any of the investigations were either faulty or failed to discipline an officer when a violation was supported. Moreover, even though Plaintiff would like the EPPD to have implemented the tracking system, there is no evidence that any EPPD management official "disregarded a known or obvious consequence of his action." Brown, 520 U.S. at 410. Instead, Plaintiff merely states conclusory allegations that are insufficient to satisfy our Circuit's "deliberate indifference" standard of fault. The Fifth Circuit has held that in "cases invoking 42 U.S.C. § 1983 we consistently require the claimant to state specific facts, not merely conclusory allegations." Elliott v. Perez, 751 F.2d 1472, 1479 (5th Cir. 1985). Although the numbers of excessive force complaints against the EPPD appear too numerous to Plaintiff to result in such few disciplinary actions, Plaintiff has not established that there is a custom of inadequate discipline or training by the EPPD. There are reasons for failing to discipline officers resulting from internal affairs investigations other than improper investigation and falsification of records, namely unfounded claims and insufficient evidence to support disciplinary action.
It should be noted that Mr. DeAngelis asserts without corroboration that the EPPD failed to properly and impartially investigate citizen complaints and that the EPPD falsifies police reports and arrest affidavits. Although Plaintiff asserts in subsequent responses to motions that Mr. DeAngelis is basing his accusations on personal knowledge, as Defendant points out, he has not based his accusations on a specific example of any incident. "[U]nsubstantiated assertions . . . do not adequately substitute for specific facts showing a genuine issue for trial." TIG Ins. Co. v. Sedgwick James of Washington, 276 F.3d 754, 759 (5th Cir. 2002). Without deciding whether Mr. DeAngelis has been appropriately qualified or designated as an expert witness, the Court must find that these unsubstantiated accusations are not appropriate summary judgment evidence. Furthermore, Mr. DeAngelis' accusations standing by themselves are insufficient to establish a custom of the EPPD.
Furthermore, even if Plaintiff had shown that the EPPD had inadequate training or procedures and were deliberately indifferent, Plaintiff must also establish that such inadequate training was the cause of Plaintiff's injuries. Mr. DeAngelis provided evidence attempting to support that failing to implement the tracking system caused Plaintiff's injuries. Mr. DeAngelis states:
When my proposals were declined by the EPPD, this fact was published to the officers through police union publications. The police officers on the street were therefore aware that we had not implemented any use of force checklist, and that EPPD was therefore not scrutinizing and tracking their conduct nor identifying repeat offenders on excessive use of force in similar issues. The police officers are smart enough to know that if the EPPD is not identifying patterns of conduct on the part of particular police officers and tracking excessive use of force complaints made against them, then the likelihood of that particular officer being subject to discipline is diminished.
[Rec. No. 41]. Plaintiff has not shown that failing to implement a tracking system made any officer use excessive force against Plaintiff. Rather, he simply speculates that officers who feel that they are less likely to get disciplined for their actions will use force excessively on more than one occasion.
Accordingly, Plaintiff's § 1983 claim against Defendant warrants dismissal because Plaintiff cannot show that Defendant maintained any policy or custom with deliberate indifference to federally protected rights which caused Plaintiff's injuries.
IV. CONCLUSION
"The very mission of the summary procedure is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." John Hancock Mutual Life Ins. Co. v. Johnson, 736 F.2d 315, 317 (5th Cir. 1984). Defendants have demonstrated that they are entitled to judgment as a matter of law because there is no genuine issue as to any material fact. As set forth above, the Plaintiff has failed to establish an "official policy" or "custom" which was the "moving force" behind the alleged violations for the purposes of § 1983 liability. Furthermore, Plaintiff has failed to establish a genuine issue of material fact that the official policy or custom was undertaken with "deliberate indifference" to the rights of the citizenry or that the Defendant's action was the "moving force" behind the injury alleged. As such, the Court concludes that Defendant's motion for summary judgment is meritorious and should be GRANTED. IT IS THEREFORE ORDERED that the "City of El Paso and El Paso Police Department's Motion for Summary Judgment" [Rec. No. 38] is GRANTED. IT IS FURTHER ORDERED that the "City of El Paso's Motion to Strike the Affidavit of George A. DeAngelis as Summary Judgment Evidence" [Rec. No. 43] and "City of El Paso's Motion to Strike the Affidavit of Corda Shonerd as Summary Judgment Evidence" [Rec. No. 44] are DENIED as MOOT.