Opinion
NO. 4:01-CV-0409-A
September 5, 2001
MEMORANDUM OPINION and ORDER
Came on for consideration the motions of defendants Officer Allen Hill ("Hill"), Officer J. A. Wallace ("Wallace"), Officer G. Crane ("Crane"), Officer Todd Espy ("Espy"), Officer Joe Walley ("Walley"), Officer S. A. Johnson ("Johnson"), Officer L.W. Irving ("Irving"), Officer A. J. Kancel ("Kancel"), Officer R. P. Murphy ("Murphy"), and Officer Kevin Brown ("Brown") for judgment on the pleadings or to dismiss. The court, having considered the motions, the response of plaintiff, Ann Shelton, the record, and applicable authorities, finds that the motions should be granted.
I. Procedural Background
On May 16, 2001, plaintiff filed her original complaint in this action. By order signed July 3, 2001, the court granted defendants' motions to compel a Rule 7(a) reply, and ordered that by 4:30 p.m. on July 20, 2001, plaintiff file a Rule 7(a) reply "addressing her claims against each defendant in a separate section of the reply." On July 20, plaintiff filed her Rule 7(a) reply, which failed to comply with the court's July 3 order in that it did not address the claims against each officer separately. Movants now contend that they are entitled to judgment as a matter of law as a result of plaintiff's failure to comply with the court's order and as a result of her failure to allege conduct that constitutes a violation by any of them of plaintiff's constitutional rights sufficient to overcome a qualified immunity defense. Plaintiff does not address her failure to comply with the court's order, although she urges that she has pleaded sufficient facts to overcome the qualified immunity defense of each of the movants.
II. Controlling Principles of Law
Qualified immunity insulates a government official from civil damages liability when the official's actions do not "violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). For a right to be "clearly established," the right's contours must be "sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson v. Creighton, 483 U.S. 635, 640 (1987). Individual liability thus turns on the objective legal reasonableness of the defendant's actions assessed in light of clearly established law at the time. Hunter v. Bryant, 502 U.S. 224, 228 (1991); Anderson, 483 U.S. at 639-40. In Harlow, the court explained that a key question is "whether that law was clearly established at the time an action occurred" because "[i]f the law at that time was not clearly established, an official could not reasonably be expected to anticipate subsequent legal developments, nor could he fairly be said to `know' that the law forbade conduct not previously identified as unlawful." 457 U.S. at 818. In assessing whether the law was clearly established at the time, the court is to consider all relevant legal authority, whether cited by the parties or not. Elder v. Holloway, 510 U.S. 510, 512 (1994). If public officials of reasonable competence could differ on the lawfulness of defendant's actions, the defendant is entitled to qualified immunity. Malley v. Briggs, 475 U.S. 335, 341 (1986); Fraire v. City of Arlington, 957 F.2d 1268, 1273 (5th Cir.), cert. denied, 506 U.S. 973 (1992). "[A]n allegation of malice is not sufficient to defeat immunity if the defendant acted in an objectively reasonable manner." Malley, 475 U.S. at 341.
In analyzing whether an individual defendant is entitled to qualified immunity, the court considers whether plaintiff has alleged any violation of a clearly established right, and, if so, whether the individual defendant's conduct was objectively reasonable. Siegert v. Gilley, 500 U.S. 226, 231 (1991); Duckett v. City of Cedar Park, 950 F.2d 272, 276-80 (5th Cir. 1992). In so doing, the court should not assume that plaintiff has stated a claim, i.e., asserted a violation of a constitutional right. Sieqert, 500 U.S. at 232. Rather, the court must be certain that, if the facts alleged by plaintiff are true, a violation has clearly occurred. Connelly v. Comptroller, 876 F.2d 1209, 1212 (5th Cir. 1989). A mistake in judgment does not cause an officer to lose his qualified immunity defense. In Hunter, the Supreme Court explained:
The qualified immunity standard "gives ample room for mistaken judgments" by protecting "all but the plainly incompetent or those who knowingly violate the law. " Malley, [475 U.S.] at 343. . . . This accommodation for reasonable error exists because "officials should not err always on the side of caution" because they fear being sued.502 U.S. at 229.
The law is clearly established that the doctrine of respondent superior does not apply to § 1983 actions. Monell v. New York City Dep't of Soc. Servs., 436 U.S. 658, 691 (1978); Williams v. Luna, 909 F.2d 121, 123 (5th Cir. 1990). Rather, the misconduct of a subordinate must be affirmatively linked to the action or inaction of the supervisor.Southard v. Texas Bd. of Crim. Justice, 114 F.3d 539, 550 (5th Cir. 1997). A supervisor may be liable under § 1983 if he, by action or inaction, demonstrates deliberate indifference to a plaintiff's constitutionally protected rights. Id. at 551. "`[D]eliberate indifference' is a stringent standard of fault, requiring proof that a municipal actor disregarded a known or obvious consequence of his action." Board of Comm'rs of Bryan Cty. v. Brown, 520 U.S. 397, 410 (1997). Neither a supervisory official nor a governmental entity can be held liable for failing to adopt policies to prevent constitutional violations. See, e.g., Vela v. White, 703 F.2d 147, 153 (5th Cir. 1983); Reimer v. Smith, 663 F.2d 1316, 1323 (5th Cir. 1981); Wanger v. Bonner, 621 F.2d 675, 680 (5th Cir. 1980). Moreover, a plaintiff must allege more than an isolated incident of purported harm to establish a claim against such person or entity.
Fraire, 957 F.2d at 1278; McConney v. City of Houston, 863 F.2d 1180, 1184 (5th Cir. 1989); Languirand v. Hayden, 717 F.2d 220, 227-28 (5th Cir. 1983), cert. denied, 467 U.S. at 1215 (1984). Without a pattern or practice of recurring constitutional violations, neither negligence nor gross negligence suffices as a basis for liability. Stokes v. Bullins, 844 F.2d 269, 274 (5th Cir. 1988). There must be a link between the policy and the particular constitutional violation alleged. City of Oklahoma City v. Tuttle, 471 U.S. 808, 823 (1985).
Bald allegations of a conspiracy are insufficient to state a cause of action. Any allegation of conspiracy must be supported by specific operative facts. Lynch v. Cannatella, 810 F.2d 1363, 1369-70 (5th Cir. 1987). To state a claim under 42 U.S.C. § 1985, plaintiff must show a conspiracy, an invidious, class-based discriminatory animus, and the intent to deprive plaintiff of a federally protected right. United Bhd. of Carpenters v. Scott, 463 U.S. 825, 834-35 (1983).
Claims for discrimination under § 1983 are parallel to those brought under Title VII, 42 U.S.C. § 2000e to 2000e-17. Southard, 114 F.3d at 554. The elements of a claim are: (1) membership in a protected class; (2) plaintiff was qualified for her position; (3) defendant made an adverse employment decision despite plaintiff's qualifications; and (4) plaintiff was replaced by a person outside the protected class. Id. Adverse employment actions include discharges, demotions, refusals to hire, refusals to promote, and reprimands. Id. at 555. They do not include undesirable work assignments. Id.
To establish a sexually hostile work environment, plaintiff must show: (1) sexually discriminatory intimidation, ridicule, and insults which are (2) sufficiently severe or pervasive that they (3) alter conditions of employment and (4) create an abusive working environment according to a reasonable person's standard. DeAngelis v. El Paso Mun. Police Officers Ass'n, 51 F.3d 591, 594 (5th Cir. 1995). In assessing the environment, the court may consider "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance."Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993). The court may also consider the effect on the employee's psychological well-being. Id.
To prevail on a claim for retaliation, plaintiff must show that: (1) she engaged in protected activity; (2) an adverse employment action followed; (3) plaintiff's exercise of a protected right was a substantial or motivating factor in defendant's actions. Harrington v. Harris, 118 F.3d 359, 365 (5th Cir. 1997); Southard, 114 F.3d at 554. A plaintiff cannot prevail over a qualified immunity defense with mere conclusory statements evidencing only a personal belief that a defendant was motivated by an impermissible animus. Id.
III. Law Applied to the Facts Pleaded
The court can only surmise that plaintiff failed to comply with the court's July 3 order requiring her to address the claims against each defendant in a separate section of the reply because, when analyzed in that manner, the facts alleged by plaintiff are insufficient to overcome each defendant's claim of qualified immunity. When all the conclusory allegations are distilled, very few facts are left. For example, plaintiff focuses on the "childish antics" of Hill, including exposing himself on several occasions. However, plaintiff does not allege that she ever witnessed any of these acts. Nor does she allege any facts to support a conclusion that Hill's acts were directed at her or any other woman. At most, plaintiff has alleged that Hill was obsessed with his sex organ and that his coworkers were aware of his long-standing obsession.Plaintiff's claims against the remaining movants are even more conclusory. She does not allege any facts to demonstrate deliberate indifference by any of them to her constitutionally protected rights. Plaintiff's reliance on inference and innuendo is insufficient to overcome the defense of qualified immunity.
IV. ORDER
For the reasons discussed herein,
The court ORDERS that the motions to dismiss be, and are hereby, granted and that plaintiff's claims against movants be, and are hereby, dismissed pursuant to FED. R. Civ. P. 12(b)(6).
The court determines that there is no just reason for delay in, and hereby directs, entry of final judgment as to the dismissal of plaintiff's claims against movants. SIGNED September5, 2001.