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finding the allegation that four police officers were involved in unconstitutional acts against plaintiff, without more, to be insufficient to indicate a failure to train or supervise
Summary of this case from Moreno v. City of Dall.Opinion
No. 3:02-CV-0742-G
July 5, 2002
MEMORANDUM ORDER
Before the court is the motion of the defendant City of Garland, Texas ("the City") to dismiss the claims against it for failure to state a claim on which relief can be granted. For the reasons discussed below, the motion is granted.
I. BACKGROUND
This case arises under 42 U.S.C. § 1983 and 1988, and under Texas law. Plaintiffs' Original Complaint and Jury Demand ("Complaint") ¶ 1; City of Garland's Motion to Dismiss for Failure to State a Claim 12 (b)(6) and Brief in Support ("Motion") at 1-2. The plaintiffs Richard A. Pivonka ("Pivonka") and Debra Pivonka (collectively, "the plaintiffs") claim the City and several individual City of Garland police officers violated their rights under the Fourth and Fourteenth Amendments to the United States Constitution. Complaint ¶ 1; Motion at 1. Specifically, the plaintiffs allege that on September 22, 2001, the defendant G.W. Collins ("Officer Collins") unlawfully seized and assaulted Pivonka and that three unnamed Garland police officers and another unidentified individual illegally searched the plaintiffs' residence. Complaint ¶¶ 8-15. The plaintiffs further claim that Pivonka was later falsely charged with assaulting Officer Collins. Id. ¶ 16. The plaintiffs commenced this case on April 11, 2002 alleging, inter alia, that the City, as well as the defendant police officers, violated the plaintiffs' rights protected by 42 U.S.C. § 1983 and 1988. The City filed the instant motion to dismiss on May 22, 2002, see Motion at 1, and the plaintiffs have responded. Plaintiffs' Response and Brief in Support to Defendant City of Garland's Motion to Dismiss ("Response") at 1.
II. ANALYSIS A. Standard for Dismissal Under Rule 12(b)(6)
Federal Rule of Civil Procedure 12(b)(6) authorizes dismissal of a complaint for "failure to state a claim upon which relief can be granted." However, a motion under Rule 12(b)(6) should be granted only if it appears beyond doubt that the plaintiffs could prove no set of facts in support of their claims that would entitle them to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Leffall v. Dallas Independent School District, 28 F.3d 521, 524 (5th Cir. 1994); see also Kaiser Aluminum Chemical Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1050 (5th Cir. 1982) (citing WRIGHT MILLER, Federal Practice and Procedure: Civil § 1357 at 598 (1969), for the proposition that "the motion to dismiss for failure to state a claim is viewed with disfavor and is rarely granted"), cert. denied, 459 U.S. 1105 (1983). In determining whether dismissal should be granted, the court must accept all well-pleaded facts as true and view them in the light most favorable to the plaintiffs. See Capital Parks, Inc. v. Southeastern Advertising and Sales System, Inc., 30 F.3d 627, 629 (5th Cir. 1994); Norman v. Apache Corporation, 19 F.3d 1017, 1021 (5th Cir. 1994); Chrissy F. by Medley v. Mississippi Department of Public Welfare, 925 F.2d 844, 846 (5th Cir. 1991).
Here, the City asserts that the plaintiffs have failed to state a claim under 42 U.S.C. § 1983 because the plaintiffs failed to plead specific facts "to put the City on notice as to the bases for their claims regarding municipal policy or custom." City of Garland's Reply to Plaintiffs' Response to the City's Motion to Dismiss for Failure to State a Claim 12(b)(6) ("Reply") at 3; see also Motion at 3-5.
B. Liability of the City 1. Section 1983 Claim
The Fifth Circuit clarified the law governing municipal liability for § 1983 claims in Piotrowski v. City of Houston. "Under the decisions of the Supreme Court and [the Fifth Circuit], municipal liability under section 1983 requires proof of three elements: a policymaker; an official policy; and a violation of constitutional rights whose 'moving force' is the policy or custom." Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th Cir.), cert. denied, ___ U.S. ___, 122 S.Ct. 53 (2001); see also Palmer v. City of San Antonio, Texas, 810 F.2d 514, 516 (5th Cir. 1987) (quoting Grandstaff v. City of Borger, Texas, 767 F.2d 161, 169 (5th Cir. 1985), cert. denied, 480 U.S. 916 (1987), abrogated on other grounds in Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 167 (1993)). However, the Supreme Court has determined that federal courts may not apply the heightened pleading requirement for § 1983 claims against government officials to similar claims against a city. See Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 164 (1993). Thus, to avoid dismissal of their claims against the city, the plaintiffs simply have to plead facts satisfying the notice pleading requirements of FED. R. Civ. P. 8(a).
A municipality may be liable under § 1983 if the execution of one of its customs or policies deprives the plaintiffs of their constitutional rights. A city cannot be liable under § 1983, however, merely because it employed a tortfeasor. See Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 691 (1978); Campbell v. City of San Antonio, 43 F.3d 973, 977 (5th Cir. 1995). According to the Supreme Court, "[t]he 'official policy' requirement . . . make[s] [it] clear that municipal liability [under § 1983] is limited to action for which the municipality is actually responsible . . . that is, acts which the municipality has officially sanctioned or ordered." Pembaur v. City of Cincinatti, 475 U.S. 469, 479-80 (1986). The policy or custom must be "the moving force of the constitutional violation." Palmer, 810 F.2d at 516 (quoting Monell, 436 U.S. at 694). Although the plaintiffs have introduced no official written policy regarding their § 1983 claim, such a policy may nevertheless exist in the form of an unwritten custom. The custom or policy must actually be that of the City's governing body before the City can be held liable. See Bennett v. City of Slidell, 728 F.2d 762, 767 (5th Cir. 1984) (en banc), cert. denied, 472 U.S. 1016 (1985).
A single incident unaccompanied by supporting history will likely be an inadequate basis for inferring such a custom unless the actor or actors involved had been given official policy-making authority. See Worsham v. City of Pasadena, 881 F.2d 1336, 1339-40 (5th Cir. 1989) (citations omitted); Palmer, 810 F.2d at 516-17. "[M]unicipal liability under 1983 attaches where — and only where — a deliberate choice to follow a course of action is made from among various alternatives by city policymakers." City of Canton, Ohio v. Harris, 489 U.S. 378, 389 (1989) (quoting Pembaur, 475 U.S. at 483-84).
The Fifth Circuit defines official policy 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. Actions of officers or employees of a municipality do not render the municipality liable under § 1983 unless they execute official policy as above defined.
Webster v. City of Houston, 735 F.2d 838, 841 (5th Cir.) (per curiam), aff'd in relevant part on rehearing, 739 F.2d 993 (5th Cir. 1984) (en banc); see also Johnson v. Moore, 958 F.2d 92, 94 (5th Cir. 1992).
Here, the plaintiffs allege that their constitutional rights were violated by the actions of the four defendant City of Garland police officers and that the City engaged in policies, practices and customs including: (1) developing and maintaining "policies or customs exhibiting deliberate indifference to the constitutional rights of persons in Garland, Texas. . . ." (Complaint ¶ 37); (2) having a policy and/or custom of inadequately and improperly investigating citizen complaints of police misconduct; and instead tolerating acts of police misconduct on the part of the City (Complaint ¶ 38); (3) having a policy and/or custom sanctioning (a) "the strip search of citizens for minor offenses", (b) "warrantless search of homes" and (c) "the use of cover charges to allow police officers to cover-up illegal arrests and/or police abuse" (Complaint ¶ 38); and (4) having a policy and/or custom to inadequately supervise and train its police officers, including the defendant officers, thereby failing to adequately discourage constitutional violations on the part of its officers. Complaint ¶ 39. According to the plaintiffs, the above policies and customs allegedly demonstrate "a deliberate indifference on the part of policymakers of the City of Garland, Texas, and were the cause of the violations of Plaintiffs' rights alleged herein." Id. ¶ 41.
As noted previously, the City argues that the plaintiffs' claims must fail because they have not alleged any specific policymaker responsible for promulgating the policy or custom which led to the alleged constitutional violations. Reply at 2. The court agrees with the City's contention that the plaintiffs' failure to plead specific facts on this element of a § 1983 claim renders the plaintiffs' complaint defective. The plaintiffs fail to identify any policymaker, be it the city council, the city manager or the chief of police, who promulgated policies and/or customs that caused the injury to the plaintiffs. Contrary to the plaintiffs' assertion, see Response at 6 (Plaintiffs "can find no valid authority for a requirement that the plaintiffs must identify the policymaker in their Complaint"), there is abundant case law in this circuit that a plaintiff must identify a policymaker in a § 1983 action against a municipality. See Piotrowski, 237 F.3d at 579 (noting that identifying a municipal policymaker who could be held responsible under § 1983 "is not an opaque requirement. . . ."); Webster, 735 F.2d at 840, 841 ("To render a city liable [under § 1983] actual or constructive knowledge of a 'custom' must be attributable to the governing body [of the municipality] or to officials to whom that body has delegated policy-making authority") (plaintiff identified the mayor, city council and chief of police as presumptive policymakers for the police); Grandstaff, 767 F.2d at 169 (noting that policymaker for the city is clearly identified); Henrise v. Horvath, 94 F. Supp.2d 768, 770-71 (N.D. Tex. 2000) (Lindsay, J.) (holding complaint fails to "meet the basic requirements for pleading municipal liability under Section 1983" and that allegations identifying the defendant Horvath as a policymaker are conclusory); Renfro v. City of Kaufman, 27 F. Supp.2d 715, 716 (N.D. Tex.) (Fish, J.) (noting that to state a valid claim under § 1983 against a municipal defendant, a plaintiff must identify: (1) a policy (2) of a policymaker (3) that caused (4) the plaintiff to be subject to the deprivation of a constitutional right), aff'd, 162 F.3d 93 (5th Cir. 1998) (table); McDonald v. City of Freeport, Texas, 834 F. Supp. 921, 934-35 (S.D. Tex. 1993) (denying motion to dismiss § 1983 claim against a municipality because the plaintiff did identify the city's final policymaker).
If all of the facts pled in the complaint are true, an assumption the court is bound to indulge on this motion, the plaintiffs have alleged — at most — that the City is liable for employing the defendant police officers. Response at 3 ("It is fair to suggest and/or contend that when four Garland police officers are involved in unconstitutional acts such as the ones described in the Complaint, that the City of Garland officials who have authority over these officers failed to either adequately supervise and/or train these individuals . . . ."). This allegation is insufficient to state a § 1983 claim against the City under the notice pleading standard prescribed by this Circuit. See Piotrowski, 237 F.3d at 579; Webster, 735 F.2d at 842. Accordingly, the City's motion to dismiss the plaintiffs' § 1983 claims against it is granted.
III. CONCLUSION
For the reasons discussed above, the motion to dismiss the plaintiffs' claims against the City is GRANTED. The plaintiffs are GRANTED leave to amend their complaint, within twenty days of this date, to remedy — if they can — the defects in their pleadings on the dismissed claims against the City. See FED. R. Civ. P. 15(a). If the plaintiffs amend their complaint, the City may re-urge its motion to dismiss if the City believes the amended complaint fails to state a claim upon which relief can be granted.
In Wicks v. Mississippi State Employment Services, 41 F.3d 991, 997 (5th Cir.), cert. denied, 515 U.S. 1131 (1995), the Fifth Circuit held that immediate dismissal is ordinarily not justified where a civil rights plaintiff has filed only one pleading and that pleading fails to allege specific facts sufficient to state a claim.
The court DENIES the City's request for the award of reasonable attorney fees for the preparation of its motion to dismiss.