Opinion
CIVIL ACTION NO: 02-0516 SECTION: "T" (1)
September 6, 2002
ORDER AND REASONS
The parties consented to the trial of this matter before a magistrate judge. Rec. doc. 5. Before the undersigned is the motion of the defendant, Rodney J. Strain, Jr., Sheriff of St. Tammany Parish ("Sheriff Strain"), to dismiss pursuant to Fed.R.Civ.P. 12(b)(1)(4)(5) and (6). Rec. doc. 10. The plaintiff, David Yates ("Yates"), is represented by counsel. For the reasons discussed below Yates' claims against the unidentified parties and Sheriff Strain in his individual capacity are dismissed with prejudice and the resolution of the claim against Sheriff Strain in his official capacity pursuant to 42 U.S.C. § 1983 is delayed to give Yates a final opportunity to amend his pleadings to state a claim.
PROCEDURAL BACKGROUND
The initial pleading by Yates is captioned as "Civil Rights Petition." Rec. doc. 1. This pleading named the following as defendants: (1) City of Covington; (2) Covington Chief of Police; and (3) individual police officers only identified as "A, B, C and D". On April 5, 2002, Yates filed a pleading that was captioned as "Second Supplemental and Amending Petition." Rec. doc. 2. Although the caption employed the word "Second", this was Yates' first amendment to his complaint. See Rec. doc. 12. The second supplemental and amending petition deleted the original defendants and substituted as defendants, St. Tammany Parish, Sheriff Strain and three officers only identified as "X, Y and Z." Rec. doc. 2. St. Tammany Parish moved to dismiss the complaint. Rec. doc. 3. There was no opposition from Yates and the District Court entered judgment dismissing St. Tammany Parish with prejudice. Rec. doc. 9. Yates then filed a pleading captioned as "Third Supplemental and Amending Petition" (actually Yates' second amendment to his complaint). No parties were added by this pleading. Rec. doc. 15. Sheriff Strain and the unidentified deputies remain the only defendants.
The Clerk's docket sheet shows the action terminated as to the City of Covington and the Covington Chief of Police.
Sheriff Strain filed an answer to these pleadings. Rec. doc. 6. There was a preliminary conference and a pretrial conference was set for January 6, 2003 and trial on February 10, 2003. Rec. doc. 15.
Sheriff Strain's motion to dismiss asserts the following defenses pursuant to Fed.R.Civ.P. 12(b): (1) lack of jurisdiction over the subject matter; (2) insufficiency of process; (3) insufficiency of service of process; and (4) failure to state a claim upon which relief can be granted. Rec. doc. 10.
YATES' ALLEGATIONS
Yates' original petition, as amended, alleges jurisdiction pursuant to 42 U.S.C. § 1983. Yates sues the defendants, Sheriff Strain and unidentified officers X, Y and Z, in their individual and official capacities. Yates alleges that on June 4, 2001 while he was incarcerated: (1) the unidentified police officers physically assaulted, battered and abused Yates by striking, beating and kicking him; (2) these unidentified officers also sprayed him with mace; and (3) this was done for no justifiable reason and without provocation.
Yates alleges that Sheriff Strain: (1) as a matter of unwritten custom, policy and deliberate indifference, condoned and/or ignored the continued abusive conduct of St. Tammany Parish police officers; (2) failed to take appropriate measures to prevent the continuing abusive conduct of the officers that assaulted Yates; and (3) failed to officially train St. Tammany Parish police officers on the performance of their duties.
Yates alleges that the conduct of the unidentified police officers: (1) shocks the conscience; (2) deprived him of his rights under the U.S. and Louisiana Constitutions and laws; (3) was motivated by their intent to harm him and not in furtherance of any legitimate government interest; and (4) caused him bodily injury and pain such that he is disabled and unable to conduct his business. Yates alleges that Sheriff Strain is liable to him pursuant to 42 U.S.C. § 1983 and that the conduct of the unidentified officers was an assault and battery on him in violation of Louisiana law. Sheriff Strain is alleged to be liable for the acts of the officers pursuant to the doctrine of respondeat superior.
INSUFFICIENCY OF PROCESS
Sheriff Strain contends that Yates did not institute his action by the filing of a "Complaint." Instead, Yates employed a petition. Sheriff Strain also contends that the original defendants were deleted and not dismissed. Sheriff Strain argues that the pleadings do not allege who employs the unidentified officers. Sheriff Strain argues that, taken together, these pleadings are so deficient as to warrant dismissal for insufficiency of process. Yates contends he followed the procedure described in West's Federal Forms.
Sheriff Strain correctly argues that he employs only deputies. Police officers are not employed by him. Sheriff Strain urges that the undersigned take judicial notice of this fact. In order to evaluate Yates' complaint, the undersigned will assume Yates' is referring to deputies rather than police officers. Hereafter the unidentified persons will be referred to as deputies.
The description of permitted pleadings in Fed.R.Civ.P. 7(a) does not include a petition. Pursuant to Fed.R.Civ.P. 15(a), a party may amend his pleading once as a matter of course at any time before a responsive pleading is served. Yates amended his pleadings to delete the defendants and substitute Sheriff Strain and the X, Y and Z deputies. Yates does not allege by whom X, Y and Z are employed, but he does allege that Sheriff Strain is liable for their alleged violations of Louisiana law. Yates' pleadings must be interpreted as alleging that deputies X, Y and Z are employed by Sheriff Strain or were under his direction and control. Yates has not followed the Federal Rules of Civil Procedure, but his pleadings are not so deficient as to constitute insufficiency of process.
INSUFFICIENCY OF SERVICE OF PROCESS
Sheriff Strain argues that the unidentified deputies have not been served and they should be dismissed as defendants in the action. Yates contends that once these defendants are identified through discovery, they will be named, cited and served.
A complaint or other affirmative pleading may name an unknown defendant by using a "John Doe" appellation or other description if the plaintiff has been unable to ascertain the real identity of the defendant. A plaintiff using the John Doe appellation must not only allege that the defendant is unknown, but also provide or attempt to provide, an adequate description or other known information so that service of process can at least be attempted. . . .
The court will not permit use of the "Doe" designation for a defendant if the plaintiff's ignorance of the defendant's true identity is the result of wilful neglect or lack of reasonable inquiry. If reasonable inquiry would have revealed the true identity, a pleading naming John Doe defendants will be dismissed. . . .
Yates also argues that Sheriff Strain should have disclosed their names pursuant to the initial disclosure obligations under Fed.R.Civ.P. 26(a)(1). Pursuant to Fed.R.Civ.P. 26(a)(1)(A), a party is required to provide only the name and, if known, the address and telephone number of each individual likely to have discoverable information that the disclosing party may use to support its claims or defenses.
2 James Wm. Moore, et al., Moore's Federal Practice ¶ 10.02[2][d] (3d ed. 1997). Yates has not provided any description or other known information so that service on the unidentified deputies can be attempted, nor is there any record that he has sought their identities through discovery.
Assuming for the moment reasonable inquiry would not have produced the names of the deputies, Yates now faces a much bigger hurdle. Yates states that the statute of limitations does not bar him from adding the deputies once he learns their identities and that his claim pursuant to 42 U.S.C. § 1983 does not prescribe for two years. Yates is wrong on both counts. In this § 1983 action, the court looks to the forum state's personal-injury limitation period, and in Louisiana that is one year. See Jacobsen v. Osborne, 133 F.3d 315, 319 (5th Cir. 1998). More than one year has elapsed since Yates alleges that he was assaulted by the unidentified deputies on or about June 4, 2001. Any attempt to add the individual deputies, more than a year after the incident, is futile unless, pursuant to Fed.R.Civ.P. 15(c), it relates back to the date that Yates filed his original petition. In Jacobsen the Fifth Circuit held that, pursuant to Fed.R.Civ.P. 15(c), a proposed amendment to add new parties to replace "John Doe" defendants did not relate back to the date of the original complaint and did not defeat a limitations bar as to the putative parties. Id. at 320-21. The claim against the unidentified deputies has prescribed. Even if Yates learns their identities, any attempt to amend to add them after the one year period would be futile.
LACK OF SUBJECT MATTER JURISDICTION AND FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED
Sheriff Strain's contention that this court lacks jurisdiction over the subject matter and that the complaint fails to state a claim upon which relief can be granted rests on the same argument. Yates does not allege that Sheriff Strain was personally involved in the alleged abusive conduct that caused him injury. Sheriff Strain contends that Yates' allegations fall short of showing either that the abusive conduct resulted from an unofficial custom or policy or that such conduct resulted from a single decision by a high-ranking official responsible for setting final policy. Sheriff Strain has put the sufficiency of Yates' allegations at issue.
A. Standard for Motion to Dismiss.
"A motion to dismiss for failure to state a claim upon which relief can be granted is a disfavored means of disposing of a case." Kennedy v. Tangipahoa Parish Library Board of Control, 224 F.3d 359, 365 (5th Cir. 2000) (citations omitted). "A motion to dismiss an action for failure to state a claim 'admits the facts alleged in the complaint, but challenges plaintiff's right to relief based upon those facts.'" Crowe v. Henry, 43 F.3d 198, 203 (5th Cir. 1995) (quoting Ward v. Hudnell, 366 F.2d 247, 249 (5th Cir. 1966)). "The district court may not dismiss a complaint under rule 12(b)(6) 'unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000) (quoting Conley v. Gibson, 78 S.Ct. 99, 102 (1957). In order to avoid dismissal for failure to state a claim, however, a plaintiff must plead specific facts, not mere conclusory allegations.Kaiser Aluminum Chemical Sales v. Avondale Shipyards, 677 F.2d 1045 (5th Cir. 1982). That being said, it is well established that courts do not have to accept every allegation in the complaint as true in considering its sufficiency. 5A Wright Miller, Federal Practice Procedure § 1357 (2d ed. 1990) at 311. Courts do not have to accept legal conclusions, unsupported conclusions, unwarranted references, or sweeping legal conclusions cast in the form of factual allegations. Causey v. The Parish of Tangipahoa, 167 F. Supp.2d 898, 903 (E.D.La. 2001).
B. Analysis of Individual Capacity Claims Against Sheriff Strain.
Yates alleges that Sheriff Strain is sued in his individual and official capacities. In Turner v. Houma Municipal Fire and Police Civil Service Bd., 229 F.3d 478 (5th Cir. 2000), the Fifth Circuit said, "[t]he performance of official duties creates two potential liabilities, individual-capacity liability for the person and official-capacity liability for the municipality." Id. at 484. Where the defendant is sued in both his individual and official capacities, Turner shows the necessity of considering such claims separately.
Although Sheriff Strain is sued in his individual capacity, there are no allegations against him in that capacity. Yates alleges that Sheriff Strain: (1) permitted an unofficial policy of abusive conduct by his deputies; (2) failed to prevent the continuation of such behavior; and (3) failed to train his deputies. These allegations go Sheriff Strain's alleged liability in his official capacity. Sheriff Strain answered and raised his personal immunity defense. Rec. doc. 6. "One of the principal purposes of the qualified immunity doctrine is to shield officers not only from liability, but also from defending against a lawsuit." Jackson v. City of Beaumont Police Department, 958 F.2d 616 (5th Cir. 1992); Salas v. Carpenter, 980 F.2d 299 (5th Cir. 1992). Yates contends that his allegations satisfy the federal notice pleading requirement. Rec. doc. 11. Yates misunderstands his pleading requirement.
[T]o commence a lawsuit against a public official for acts for which he is potentially immune, the complaint must allege with particularity all material facts on which the claimant contends he will establish his right to recovery, which will include detailed facts supporting the contention that the plea of immunity cannot be sustained.Morrison v. City of Baton Rouge, 761 F.2d 242, 244-45 (5th Cir. 1985) (Citations, quotation marks and brackets omitted). Yates fails to state a claim upon which relief can be granted against Sheriff Strain in his individual capacity.
C. Analysis of Official Capacity Claims Against Sheriff Strain.
In Turner the Fifth Circuit said:
Official-capacity suits generally represent only another way of pleading an action against an entity of which an officer is an agent. Accordingly, a § 1983 suit naming defendants only in their official capacity does not involve personal liability to the individual defendant.229 F.3d at 483 (Citations and quotation marks omitted). In Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 113 S.Ct. 1160 (1993), the Supreme Court held that since municipalities do not enjoy either absolute or qualified immunity from suit, plaintiffs need not satisfy a heightened pleading standard when suing such entities. Applying the Court's reasoning in Leatherman, the Fifth Circuit Court of Appeals has ruled that defendants sued in their official capacities do not get the added protection of heightened pleading standards. Anderson v. Pasadena Independent School Dist., 184 F.3d 439 (5th Cir. 1999). Therefore, the undersigned must analyze the claim against Sheriff Strain in his official capacity under the liberal pleading requirements of Rule 8(a) of the Federal Rules of Civil Procedure.
Yates alleges that his constitutional rights were violated when a beating was administered by three unidentified deputies. While a municipality may be held liable under section 1983, Monell v. New York City Dept. of Social Serv., 98 S.Ct. 2018, 2035 (1978), it cannot be held liable under section 1983 solely because it employs a tortfeasor. Id. at 2035. Rather, a plaintiff must identify a municipal "policy" or "custom" that caused his or her injury. Id. at 2027. In Board of the County Commissioners of Bryan County v. Brown, 117 S.Ct. 1382 (1997), the test set out in Monell was significantly narrowed when the Supreme Court stated:
[I]t is not enough for a § 1983 plaintiff 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, 117 S.Ct. at 1388.
Under section 1983, the "requisite degree of culpability" is that the municipality acted with at least "deliberate indifference" to the consequences of its actions. Yates must show not only that the deputies violated his constitutional rights, but that the Sheriff's policies were the "moving force" behind his injury. To show an unconstitutional policy or custom, Yates must identify the policy or custom, connect the policy or custom with the government entity itself, and show that the particular injury was incurred because of the execution of that policy. Bennett v. City of Slidell, 728 F.2d 762, 767 (5th Cir. 1984) (en banc). If Yates fails to allege an official policy or custom, then his claim is subject to dismissal. See Meadowbriar Home for Children, Inc. v. Gunn, 81 F.3d 521, 532-33 (5th Cir. 1996).
Yates alleges that there was an unwritten custom or policy to condone and ignore beatings by St. Tammany Parish deputies.
[T]he [Supreme] Court has long recognized that a plaintiff may be able to prove the existence of a widespread practice that, although not authorized by written law or express municipal policy, is "so permanent and well settled as to constitute a 'custom or usage' with the force of law."City of St. Louis v. Praprotnik, 108 S.Ct. 915, 926 (1988) (Citations omitted). In Hamilton v. Rodgers, 791 F.2d 439 (5th Cir. 1986), the Fifth Circuit held that a dozen racial incidents over a two and a half year period were too few to constitute a persistent, widespread practice so common and well-settled as to constitute a custom. Id. at 443. Yates has not alleged a single instance of abusive conduct by St. Tammany Parish deputies that pre-dates the June 4, 2001, incident.
In Pembaur v. City of Cincinnati, 106 S.Ct. 1292, 1292 (1986), the Supreme Court held that under appropriate circumstances municipal liability may be imposed for a single decision by municipal policy makers. It cited as an example Owen v. City of Independence, 100 S.Ct. 1398 (1980), where a city council passed a resolution firing a plaintiff without a pre-termination hearing. In Hamilton v. Rodgers, 791 F.2d 439, 443 at n. 1 (5th Cir. 1986), the Fifth Circuit held that appropriate circumstances existed only when the decision constituted an act of official government policy. A decision by a high-ranking official responsible for setting final government policy was needed as the basis for the claim. Id. Although Sheriff Strain is a high-ranking official, Yates does not allege that he ordered the beating administered by the deputies.
At the most basic level of analysis, Yates does not allege specific facts. See Fraire v. Arlington, 957 F.2d 1268 (5th Cir. 1992) (allegations of custom cannot be conclusory); Aston v. City of Cleburne, 2000 WL 217876 (N.D.Tex.2/22/2000) (motion to dismiss granted when plaintiff does not plead specific, identifiable unconstitutional policy);Spiller v. City of Texas City, Police Department, 130 F.3d 162, 167 (5th Cir. 1997) (allegation that actor's violations were "in compliance with" the municipality's customs insufficient because it is conclusory); andClouatre v. Westwego Police Officer Linda Taylor, et al., 1998 WL 46819 (E.D.La.2/4/98) (allegation that "it is the policy of the defendant," with nothing more, is conclusory and does not allege sufficient facts from which to infer a policy or custom). Moreover, by alleging that acts of the unidentified deputies were in accord with the unwritten policy and custom of Sheriff Strain, Yates fails to allege the necessary causation requirement. See Spiller v. City of Texas City, Police Department, 130 F.3d 162, 167 (5th Cir. 1997) (allegation that policies "led to" the unconstitutional acts is insufficient to allege causation). Yates alleges no direct casual link between the alleged beating and either the alleged policy of condoning such beatings or the failure Sheriff Strain to train his officers. If the undersigned accepted Yates' allegations as sufficient to state a claim against Sheriff Strain in his official capacity, the Supreme Court's requirement in Brown that a plaintiff demonstrate that the deliberate conduct of the municipality was the moving force behind the alleged injury would be nullified.
CONCLUSION
Sheriff Strain's attempt to dismiss the claims against him for insufficiency of process will be denied. Because Yates cannot substitute the deputies, who he alleges beat him, for the fictitious deputies, his claims against the fictitious deputies will be dismissed with prejudice. Yates completely fails to comply with the heightened pleading requirements for a § 1983 claim against Sheriff Strain in his individual capacity and Sheriff Strain's motion to dismiss will be granted.
Yates' only remaining claim is his § 1983 claim against Sheriff Strain in his official capacity. For the reasons described above, Yates' petition as amended fails to state such a claim. Yates' opposition to the motion shows that he misunderstands his burden in pleading a § 1983 claim against Sheriff Strain in his official capacity. "A motion to dismiss for failure to state a claim upon which relief can be granted is a disfavored means of disposing of a case." Kennedy v. Tangipahoa Parish Library Board of Control, 224 F.3d 359, 365 (5th Cir. 2000) (citations omitted). A dismissal under Rule 12(b)(6) generally is not final and the plaintiff is usually given leave to amend his complaint. 5A Wright, Miller and Marcus, Federal Practice and Procedure § 1357 (2d ed. 1990). Sheriff Strain's motion to dismiss the official capacity claims will be continued to October 9, 2002, at which time it shall be taken under submission on briefs and without oral argument. Yates shall file an amended complaint that contains the allegations required to state a claim for relief against Sheriff Strain in his official capacity pursuant to 42 U.S.C. § 1983. Yates is not permitted to add any parties to the suit in this amended complaint. Yates shall file the amended complaint within ten (10) working days of the entry of this minute entry. If Sheriff Strain concludes the amended complaint fails to state a claim upon which relief may be granted against him, Sheriff Strain shall file a supplemental memorandum in support of his motion to dismiss by Tuesday, October 1, 2002. Yates shall file any opposition memorandum by no later than Tuesday, October 8. Yates shall not be granted a further opportunity to amend his pleadings to state a claim against Sheriff Strain.
IT IS ORDERED that:
1. Sheriff Strain's motion to dismiss (Rec. doc. 10) is DENIED in PART, GRANTED in PART and CONTINUED in PART in accord with the terms of this order and reasons;
2. The claims against the unidentified deputies are DISMISSED WITH PREJUDICE;
3. Yates' claim pursuant to 42 U.S.C. § 1983 against Sheriff Strain in his individual capacity is DISMISSED WITH PREJUDICE;
4. Yates is GRANTED leave to amend his complaint against Sheriff Strain in his official capacity and shall do so within ten (10) working days of the entry of this order and reasons; and
5. Sheriff Strain's motion to dismiss with respect to Yates' claim pursuant to 42 U.S.C. § 1983 against him in his official capacity is CONTINUED and RESET for October 9, 2002 at 9:00 a.m. in accord with the terms of this order and reasons.