Opinion
No. 1:01-CV-131-C
June 3, 2002
ORDER
On this day, the Court considered Defendants Taylor County, Taylor County Sheriff's Department, and Jack Dieken's Motion for Summary Judgment filed March 21, 2002. On April 9, 2002, Plaintiff; Brenda Madigan, filed her Response to Defendants' Motion. On April 29, 2002, Defendants filed their Reply. Having considered all of the relevant arguments and summary judgment evidence, the Court is of the opinion that Defendants Taylor County, Taylor County Sheriff's Office, and Jack Dieken's Motion for Summary Judgment should be GRANTED.
I. BACKGROUND
Plaintiff; Brenda Madigan, brings this lawsuit against Defendants, Taylor County, Taylor County Sheriff's Department, Sheriff Jack Dieken, and Stephen McNally, claiming violations of her rights under the Eighth and Fourteenth Amendments of the U.S. Constitution pursuant to 42 U.S.C. § 1983. According to Madigan's she received a telephone call at her home from Defendant McNally indicating he had a warrant for her. Defendant McNally allegedly told Madigan that he could avoid arresting her if she paid the court costs and a fine or she could turn herself in and pay a bondsman to bail her out. Madigan could not afford to do either and was somewhat confused because she had previously made arrangements with the County Attorney's Office regarding the matter. Defendant McNally allegedly told Madigan not to worry, that they could work something out. Defendant McNally allegedly asked Madigan if he could come to her home to work the matter out. Initially Madigan protested, but after reassurances from Defendant McNally, Madigan allowed Defendant McNally to come to her home.
Defendant McNally arrived at Madigan's home and asked if the two could speak in private. During the conversation, Defendant McNally allegedly began touching Madigan. Madigan did not cry out because she was home alone with her young children and was fearful that Defendant McNally would harm or arrest her. Madigan asserts that she attempted to resolve the situation by attempting to talk to Defendant McNally, but to no avail. Defendant McNally allegedly blocked Madigan from the door and began to masturbate and asked Madigan if she wanted to help him "regroup."
After Defendant McNally left Madigan's home, she contacted the Taylor County Sheriff's Department and reported the incident. Madigan agreed to have her telephone wiretapped. On October 13, 1999, the Taylor County Sheriffs Department taped a conversation between Madigan and Defendant McNally, implicating McNally in both pursuit of Madigan as well as his apologies for the previous incident.
II. STANDARD
Summary judgment is appropriate only if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," when viewed in the light most favorable to the non-moving party, "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." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). Internal quotations omitted). A dispute about a material fact is "genuine" if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Id. at 24. In making its determination, the court must draw all justifiable inferences in favor of the non-moving party. Id. at 255. Once the moving party has initially shown "that there is an absence of evidence to support the nonmoving party's case," Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986), the non-movant must come forward, after adequate time for discovery, with significant probative evidence showing a triable issue of fact. FED. R. CIV.P. 56(e); State Farm Life Ins. Co. v. Gutterman, 896 F.2d 116, 118 (5th Cir. 1990). Conclusory allegations and denials, speculation, improbable inferences, unsubstantiated assertions, and legalistic argumentation are not adequate substitutes for specific facts showing that there is a genuine issue for trial. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428 (5th Cir. 1996) (en banc); SEC v. Recile, 10 F.3d 1093, 1097 (5th Cir. 1993). To defeat a properly supported motion for summary judgment, the non-movant must present more than a mere scintilla of evidence. See Anderson, 477 U.S. at 251. Rather, the non-movant must present sufficient evidence upon which a jury could reasonably find in the non-movant's favor. Id.
III. DISCUSSION
Plaintiff sued Defendants under § 1983 seeking redress for Defendants' violations of Plaintiff's constitutional rights by those acting under color of state law. Section 1983 provides:
Every person who, under color of any statute, ordinance, regulation, custom, or usage . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the patty injured in an action at law, suit in equity, or other proper proceeding for redress.42 U.S.C. § 1983 (1994). Section 1983 is not itself a source of substantive rights but merely provides "a method of vindicating federal rights conferred elsewhere." Albright v. Oliver, 510 U.S. 266, 271 (1984) (internal quotations omitted).
To establish a claim under § 1983, a plaintiff must prove that a person acting under the color of state law deprived the plaintiff of a right secured by the Constitution or the laws of the United States. Marlin v. Thomas, 973 F.2d 449, 452Z53 (5th Cir. 1992); Augustine v. Doe, 740 E.2d 322, 324-25 (5th Cir. 1984). A plaintiff must further prove that the alleged constitutional deprivation was not the result of mere negligence. Farmer v. Brennan, 511 U.S. 825, 835 (1994). The negligent deprivation of life, liberty, or property is not a constitutional violation. Campbell v. City of San Antonio, 43 F.3d 973, 977 (5th Cir. 1995).
While a local government may be held liable in a case brought under 42 U.S.C. § 1983, it can be found liable only when the local government itself causes the constitutional deprivation. See Smith v. Blue, 67 F. Supp.2d 686 (S.D. Tex. 1999) (applying the law of municipalities to a county). The United States Supreme Court has held that a county cannot be held liable under 42 U.S.C. § 1983 under a theory of respondant superior. Bd. of County Comm'rs of Bryan County, Okla. v. Brown, 520 U.S. 397, 403 (1997) (citing Pembaur v. Cincinnati, 475 U.S. 469, 478-79 (1986)). Furthermore, it is not enough for a § 1983 plaintiff merely to identify conduct properly attributable to a county. The plaintiff must also demonstrate that, through deliberate conduct, the county was the "moving force" behind the injury alleged. That is, a plaintiff must show that the county action was taken with the requisite degree of culpability and must demonstrate a direct causal link between the county action and the deprivation of federal rights. Brown, 520 U.S. at 404.
Thus, if a § 1983 suit is brought against a county, the claim must be based upon the implementation or execution of a policy or custom which was officially adopted by that body's officers. Meadowbriar Home for Children, Inc. v. Gunn, 81 F.3d 521, 532 (5th Cir. 1996) (citing Krueger v. Reimer, 66 F.3d 75, 76 (5th Cir. 1995)). To support a claim based upon the existence of an official custom or policy, the plaintiff must plead facts which show that (1) a policy or custom existed; (2) the government policymakers 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, 81 F.3d at 532 (citing Palmer v. City of San Antonio, 810 F.2d 514, 516 (5th Cir. 1987)).
A local government entity, such as Defendant Taylor County, does not enjoy immunity from suit, either absolute or qualified, under § 1983. Leatherman v. Tarrant County Narcotics Intelligence Coordination Unit, 507 U.S. 163, 166 (1993). In addition, a county enjoys no § 1983 immunity regardless of any qualified immunity that might be afforded its officials. Colle v. Brazos County, 981 F.2d 237, 244 n. 36 (5th Cir. 1993). "A suit against the Sheriff in his official capacity is a suit against the County." Rennet v. Pippin, 74 F.3d 578, 584 (5th Cir. 1996). In short, a county can be sued under § 1983, but the county cannot be held liable unless the county's official policy or custom caused the constitutional injury. Id. Defendant Taylor County may be held liable if Plaintiff can demonstrate that the implementation of an official policy or custom caused Plaintiff's constitutional deprivation.
The law is well settled that an "official policy" is:
1. A policy statement, ordinance, regulation, or decision that is officially adopted and promulgated by the [county's] lawmaking officers or by an official to whom the [county] has delegated policymaking authority; or
2. A persistent, widespread practice of [county] 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 the [county's] policy.
Johnson v. Moore, 958 F.2d 92, 94 (5th Cir. 1992). In addition, "it has long been recognized that, in Texas, the county sheriff is the county's final policymaker in the area of law enforcement." Turner v. Upton County, 915 F.2d 133, 136 (5th Cir. 1990). Thus, Defendant Dieken is unquestionably Defendant Taylor County's final policymaker in the area of law enforcement, and Defendant Taylor County can be held accountable for the illegal or unconstitutional actions of Defendant Dieken.
To demonstrate a county policy or custom, Plaintiff must allege a pattern of similar instances in which other individuals were injured or endangered by the intentional misconduct and/or that serious incompetence or misbehavior was general or widespread. McClendon v. City of Columbia, 258 F.3d 432, 441 (5th Cir. 2001). The Fifth Circuit has determined:
A [county] "policy" must be a deliberate and conscious choice by a [county's] policymaker. While the [county] policymaker's failure to adopt a precaution can be the basis for § 1983 liability, such omission must amount to an intentional choice, not merely an unintentionally negligent oversight. The Supreme Court has held that [county] failure to adopt a policy does not constitute such an intentional choice unless it can be said to have been "deliberately indifferent." A failure to adopt a policy can be deliberately indifferent when it is obvious that the likely consequences of not adopting a policy will be deprivation of rights.
Colle, 981 F.2d at 245-46 (internal citations and quotations omitted).
Plaintiffs Original Petition alleged that Defendant McNally endangered Plaintiff by sexually assaulting her in her home when he arrived to serve an arrest warrant. Plaintiff alleged that because Defendant Dieken allegedly knew of previous suspect behavior by Defendant McNally and refused to terminate Defendant McNally's course of conduct, Defendant Dieken thereby condoned Defendant McNally's illegal acts and transformed Defendant Dieken's acceptance of Defendant McNally's custom, policy, or practice into Defendant Taylor County's official custom, policy, or practice. Further, Plaintiff alleged that Defendants had a custom, policy, or practice of permitting Defendant McNally unlimited access to female suspects and that the Defendants' policies and procedures were deliberately indifferent, reckless, and dangerous.
An official acts with subjective deliberate indifference if he "had subjective knowledge of a substantial risk of serious harm to [an individual] but responded with deliberate indifference to that risk." Hare v. City of Corinth, 74 F.3d 633, 650 (5th Cir. 1996). Plaintiff has offered no competent evidence supporting the existence of an official policy or custom of Defendant Taylor County which was subsequently implemented by Defendant Dieken in violation of Plaintiff's constitutional rights. Further, this Court's review of the record finds no proof regarding a policy statement, ordinance, regulation, decision, or deliberate or conscious choice on the part of Defendant Dieken to officially adopt and promulgate an official policy on behalf of Defendant Taylor County. Nor can Plaintiff show that Defendant Dieken responded with deliberate indifference to a risk of harm to Plaintiff. To the contrary, Plaintiffs own deposition testimony shows that Defendant was not present at the time Defendant McNally went to Plaintiff's house and also supports the contention that reasonable steps were taken to see that Plaintiff was not placed in jeopardy again. In addition, there is evidence that Defendant Dieken had adopted policies to address sexual harassment and conduct unbecoming of an officer as well as numerous other policies.
Plaintiff has offered no evidence establishing a pattern of similar instances in which other individuals were injured when they were served with a warrant. Further, Plaintiff's speculation, unsubstantiated assertions, and belief that Defendants' actions were based on official policies, customs, and practices are not adequate substitutes for specific facts showing that there is a genuine issue for trial. Having failed to demonstrate the existence of an official policy, Plaintiff's evidence simply does not substantiate a finding that Defendant Dieken implemented a policy so deficient that it was a repudiation of Plaintiff's constitutional rights and was the moving force behind the unconstitutional violation Plaintiff alleges.
Among the claims advanced by the Plaintiff is the claim that Defendants failed to properly train Defendant McNally. In Canton v. Harris, the Supreme Court held that a municipality can, in some circumstances, be held liable under section 1983 "for constitutional violations resulting from its failure to train municipal employees." 489 U.S. 378, 380 (1989). The Canton Court concluded that if a city employee violates another's constitutional rights, the City may be liable if it had a policy or custom of failing to train its employees and that failure to train caused the constitutional violation. Id. at 388. In particular, the Court held that the inadequate training of police officers could be characterized as the cause of the constitutional tort W and only if, the failure to train amounted to "deliberate indifference" to the rights of persons with whom the police come into contact. Id.
In the present case, Plaintiff has presented no evidence that Defendants' failure to train Defendant McNally amounted to "deliberate indifference" Proof of more than a single instance of lack of training causing a violation of constitutional rights is normally required before such lack of training constitutes deliberate indifference. Snyder v. Trepagnier, 142 E.3d 791, 798-99 (5th Cir. 1998). Plaintiff must generally demonstrate at least a pattern of similar violations. Id at 798. However, a single incident of an alleged constitutional violation resulting from the failure to train may serve as a basis for liability so long as that violation was an obvious consequence of the failure to train. Brown v. Bryan County, Okla., 219 F.3d 454, 460 (5th Cir. 2000). Furthermore, the inadequacy of training alleged must be obvious and obviously likely to result in a constitutional violation. Snyder, 142 F.3d at 799. Plaintiff has only presented evidence of this one instance. Defendants, on the other hand, have presented evidence that there have been no prior reports of such incidents, thereby proving that the alleged inadequacy of training was not obvious or obviously likely to result in a constitutional violation. Moreover, Defendants provided evidence that Defendant McNally, as well as other officers, had in fact received extensive training. Plaintiff's unsubstantiated allegations of a failure to train simply do not support a claim of deliberate indifference.
Having failed to demonstrate the existence of an official policy or a failure to train, Plaintiff's evidence simply does not substantiate a finding that Defendant Dieken failed to train or implemented a policy that was so deficient that it was a repudiation of Plaintiff's constitutional rights and was the moving force behind the unconstitutional violation Plaintiff alleges. Therefore, this Court finds that Plaintiff has failed to establish § 1983 liability against Defendant Taylor County. Taylor County Sheriff's Department, and Defendant Dieken in his official capacity.
Plaintiff has also alleged § 1983 claims falling within the Eighth Amendment. This claim fails as the Eighth Amendment protects only those who have been convicted. U.S.C.A. Const. Amend. 8; Baker v. Putnal, 75 F.3d 190, 199 (5th Cir. 1996). As to Plaintiff's Fourteenth Amendment equal protection violation, Plaintiff made no assertion to support such a claim.
IV. CONCLUSION
For the reasons set forth above, the Court is of the opinion that Defendants Taylor County, Taylor County Sheriffs Department, and Jack Dieken's Motion for Summary Judgment should be GRANTED. All relief not expressly granted is denied.