Opinion
Civil Action No. 02-0200, Section "A" (5).
March 11, 2003
ORDER AND REASONS
Before the Court is a Rule 12(b)(6) Motion to Dismiss (Rec. Doc. 16) filed by defendants, the City of Hammond, through the Hammond Police Department, and Roddy Devall, in his individual and official capacity as Chief of Police of the Hammond Police Department. Defendants seek to dismiss plaintiff Debra Norwood's suit asserting that she states no cause of action under 42 U.S.C. § 1983. Plaintiff opposes the motion. The motion, set for hearing on February 12, 2003, is before the Court on briefs without oral argument. For the reasons that follow, the motion is GRANTED.
BACKGROUND
Plaintiff alleges that on or about April 23, 2001, defendant Roddy Devall ("Devall") threatened her when she made a public records request pursuant to a Hammond city ordinance. After Norwood alerted the City of Hammond about the threats and no action was taken, she filed this complaint pursuant to 42 U.S.C. § 1983 alleging that Defendants' actions under color of state law violated her First and Fourteenth Amendment rights. Norwood also alleged claims of intentional infliction of emotional distress and assault under state law.
THE PARTIES' CONTENTIONS
Defendants argue that Plaintiff states no cause of action under 42 U.S.C. § 1983 because the verbal threats allegedly made by Devall did not violate any of Norwood's constitutional rights. They assert that without more tangible adverse action on behalf of Devall or the City of Hammond, Norwood's complaint fails to state a violation of any right guaranteed by federal law.
The City of Hammond further argues that it cannot be held liable for the actions of its employees under section 1983 without a specific allegation that the City endorsed a policy or custom that would allow its officials to threaten and violate the constitutional rights of those citizens making public records requests.
In opposition, Norwood contends that pursuant to Federal Rule of Civil Procedure Rule 8 her complaint is sufficient to support her claim under section 1983 and her causes of action under Louisiana law. Norwood argues that her allegations support her claims under "notice pleading" and the verbal threats made by Devall support a finding that her First and Fourteenth Amendment rights were violated.
DISCUSSION
When considering a motion to dismiss under Federal Rule of Civil Procedure Rule 12(b)(6), the court must take the factual allegations of the complaint as true. David v. Assumption Parish Police Jury, 2003 WL 57039, *2 (E.D. La. Jan. 6, 2003). "All questions of fact and any ambiguities in the current controlling substantive law must be resolved in the plaintiff's favor." Lewis v. Fresne, 252 F.3d 352, 357 (5th Cir. 2001). A Rule 12(b)(6) motion should be granted only if it appears beyond a doubt that the plaintiff cannot prove any set of facts in support of his claim which would entitle him to relief. McKinney v. Irving Independent School District, 309 F.3d 312 (5th Cir. 2002). "However, conclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss." David, 2003 WL 57039 at *2.
A claim for relief under 42 U.S.C. § 1983 must allege the deprivation of a right secured by the Constitution or the laws of the United States by a defendant acting under color of state law. David v. Assumption Parish Police Jury, 2003 WL 57039, *2 (E.D. La. Jan. 6, 2003) (citing Calhoun v. Hargrove, 312 F.3d 730, 734 (5th Cir. 2002)). Claims for violations of state law are not cognizable under section 1983. Id.
In the instant case, Norwood alleges that Devall violated her First and Fourteenth Amendment rights when he made threatening comments to her when she filed a public records request pursuant to local law. Complaint at ¶ 3. Specifically, Norwood claims that Devall said that he knew what she was doing and she had better stop now. Devall told Norwood that he had fought bigger people and won, and that Norwood does not live in a glass house; and that he would get her if it takes twenty years. Id.
Accepting the allegations in Norwood's complaint as true, she nevertheless fails to state a claim for relief under 42 U.S.C. § 1983. Access to public records pursuant to state or local law is not a right guaranteed by federal law. "Neither the First Amendment nor the Fourteenth Amendment mandates a right of access to government information or sources of information within the government's control." Gaubert v. Denton, 1999 WL 350103, *5 (E.D. La. May 28, 1999) (citing Houchins v. KOED, Inc., 438 U.S. 1, 15, 98 S.Ct. 2588, 2597, 57 L.Ed.2d 553 (1978); American Civil Liberties Union v. State of Mississippi, 911 F.2d 1066, 1071-72 (5th Cir. 1990)). "The Constitution is neither a Freedom of Information Act nor an Official Secrets Act." Id. Rather, the only area in which the Supreme Court has found a constitutional right of access to public information is in the realm of criminal trials and certain criminal proceedings. Id. Simply said, the right Plaintiff was attempting to exercise when Devall allegedly threatened her was one guaranteed by local law and not by federal law, and therefore, is not a right protected by section 1983.
The Court notes that Congress has enacted legislation such as the Freedom of Information Act (FOIA) which grants citizens the right of access to public records in some instances but Norwood's complaint in no way suggests that her request was covered by the FOIA or any other federal law. See Complaint at ¶ 3.
Moreover, even if Norwoods public records request was protected by the United States Constitution, the conduct she alleges Devall committed does not rise to the level of an injury that would chill a person of ordinary firmness from continuing to engage in that activity. Courts in this jurisdiction have consistently held that claims of "mere threatening language or gestures of a state official do not, even if true, amount to constitutional violations." David, 2003 WL 57039 at *3. see McFadden v. Lucas, 713 F.2d 143, 146 (5th Cir. 1983); Bender v. Brumley, 1 F.3d 271, 274 n. 4 (5th Cir. 1993) "Citizens do not have a constitutional right to courteous treatment by the State. Verbal harassment and abusive language, while unprofessional and inexcusable, are simply not sufficient to state a constitutional claim under 42 U.S.C. § 1983." Id.; see Robertson v. Plano City of Texas, 70 F.3d 21 (5th Cir. 1995) (citing cases).
Norwood simply does not allege any tangible adverse action taken by Devall that would allow this court to find that she suffered a deprivation of a constitutional right. See Matherne v. Larpenter, 54 F. Supp.2d 684, 688 (E.D. La 1999), aff'd, 216 F.3d 1079 (5th Cir. 2000); see Colson v. Croham, 174 F.3d 498, 513 (5th Cir. 1999). Furthermore, Norwood was not denied the public records she sought.
In opposition to defendant's motion to dismiss, Norwood argues that Keenan v. Teleda, 290 F.3d 252 (5th Cir. 2002), supports her First Amendment claims. However, in order to establish a First Amendment retaliation claim a plaintiff must show that 1) she was engaged in a constitutionally protected activity, 2) the defendants' actions caused her to suffer an injury that would chill a person of ordinary firmness from continuing to engage in that activity, 3) the defendants' adverse actions were substantially motivated against the plaintiff's exercise of constitutionally protected conduct. Id. at 258. Norwood cannot, however, satisfy the first and third prongs under Keenan because as discussed above, making a request for public records pursuant to state law or local law is not a constitutionally protected activity.
Norwood also argues in opposition that her complaint should withstand dismissal because Federal Rule of Civil Procedure 8 requires only a "short and plain statement" rather than facts that show that she is entitled to relief. Plaintiff is correct that she need not "overplead" her case but she must at the very least plead facts that, when taken as true, state a claim under 42 U.S.C. § 1983 so as to confer jurisdiction upon this Court. That she has not done.
Finally, the Monell claims against the City of Hammond must be addressed. Monell v. Dep't of Social Services, 436 U.S. 658, 690, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). A governmental entity may not be held responsible for the acts of its employees under a theory of respondeat superior. Casanova v. City of Brookshire, 119 F. Supp.2d 639, 658 (S.D. Tex. 2000). Municipal liability inures only when the execution of a local government's policy or custom causes the injury. In order to hold a governmental entity liable for the acts of a non-policymaking 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. Id. (citing Meadowbriar Home for Children, Inc. v. Gunn, 81 F.3d 521, 532 (5th Cir. 1996)).
The Court has already determined that no constitutional violation occurred because Norwood was not engaged in a constitutionally protected activity. Assuming arguendo that she was engaged in federally protected activity, mere threats by officers do not rise to the level of a constitutional violation. Because no constitutional violation occurred, Norwood has no claim against the City of Hammond.
Based on the foregoing, Plaintiff states no claim for relief under federal law. Consequently, all of Plaintiff's federal claims are dismissed. Finally, the Court declines to exercise jurisdiction over the state law claims. 28 U.S.C. § 1367 (c)(3).
Accordingly;
IT IS ORDERED that the Rule 12(b)(6) Motion to Dismiss (Rec. Doc. 16) filed by defendants, the City of Hammond, through the Hammond Police Department, and Roddy Devall, in his individual and official capacity as Chief of Police of the Hammond Police Department should be and is hereby GRANTED. Plaintiff's federal claims are DISMISSED WITH PREJUDICE. Plaintiff's state law claims are DISMISSED WITHOUT PREJUDICE.