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Arevalo v. City of Farmers Branch

United States District Court, N.D. Texas, Dallas Division

November 20, 2017

EVA AREVALO, INDIVIDUALLY AND AS NEXT FRIEND OF E.R., A MINOR, Plaintiff,
v.
CITY OF FARMERS BRANCH, TEXAS, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          SIDNEY A. FITZWATER, UNITED STATES DISTRICT JUDGE

         This is an action under 42 U.S.C. § 1983 by the mother of a teenager shot by an off-duty police officer, seeking relief against defendants City of Farmers Branch, Texas (“Farmers Branch”), its Chief of Police, Sid Fuller (“Chief Fuller”), and Farmers Branch police officer Ken Johnson (“Officer Johnson”). Farmers Branch and Chief Fuller move to dismiss under Fed.R.Civ.P. 12(b)(6) for failure to state a claim on which relief can be granted, presenting the questions whether Farmers Branch is subject to municipal liability and whether plaintiff has overcome Chief Fuller's defense of qualified immunity. For the reasons that follow, the court holds that plaintiff has failed to plausibly plead that Farmers Branch is subject to municipal liability, and it defers a ruling on whether Chief Fuller is entitled to qualified immunity pending plaintiff's filing a Rule 7(a) reply and receipt of supplemental briefing after the reply is filed.

         I

         Because this case is the subject of a prior memorandum opinion and order, see Arevalo v. City of Farmers Branch, 2017 WL 1153230 (N.D. Tex. Mar. 28, 2017) (Fitzwater, J.) (“Arevalo I”), the court will only recount the background facts and procedural history that are pertinent to this decision.

         This is a suit under 42 U.S.C. § 1983 by plaintiff Eva Arevalo (“Arevalo”), individually, and on behalf of her son E___ R ___ (“E.R.”), [1] against defendants Framers Branch, Chief Fuller, and Officer Johnson. According to Arevalo's second amended complaint, [2] Officer Johnson observed E.R. and J___ C ___ (“J.C.”)[3] attempting to burglarize Officer Johnson's personal vehicle in the parking lot of the Brookhaven Apartments. After identifying himself as a police officer, Officer Johnson pursued E.R. and J.C. as they fled in their own vehicle. Officer Johnson succeeded in ramming E.R.'s vehicle from the rear, causing it to spin out and come to a rest near the corner of Spring Valley Road and Marsh Lane. While E.R. was in a defenseless position inside his car, Officer Johnson entered the street and fired 17 shots at E.R. without provocation, hitting him in both the hand and the head.

         The second amended complaint alleges that, before being hired as a Farmers Branch police officer, Officer Johnson had been “disciplined on at least three different occasions for excessive force, ” in addition to receiving two excessive force complaints filed against him during his eight-year stint as an officer with Dallas Area Rapid Transit. 2d Am. Compl. 4. In his capacity as chief of the Farmers Branch Police Department, Chief Fuller hired Officer Johnson with actual knowledge of his prior disciplinary record, and “provided no training to Officer Johnson on the use of deadly force.” 2d Am. Compl. 5.

         Arevalo initially brought this lawsuit not only against Farmers Branch, Chief Fuller, and Officer Johnson, but against Adara Communities, LLC (“Adara”) (the manager of Brookhaven Apartments) and Brookhaven Apartments, LLC (“Brookhaven”) (the owner of the Brookhaven Apartments).[4] Arevalo's suit included federal-law claims under § 1983 against Farmers Branch, Chief Fuller, and Officer Johnson, and state-law negligence claims against Adara and Brookhaven. Officer Johnson, Chief Fuller, and Farmers Branch each moved to dismiss the complaint, and Adara and Brookhaven moved for judgment on the pleadings. In Arevalo I the court denied Officer Johnson's motion to dismiss and allowed Arevalo's § 1983 claims for excessive force to proceed, staying the action against Officer Johnson pending his criminal trial. The court granted, however, Adara and Brookhaven's motion for judgment on the pleadings and Farmers Branch and Chief Fuller's motion to dismiss. The court concluded that Arevalo's § 1983 claims against Farmers Branch must be dismissed because she had failed to allege facts supporting the existence of an official custom or policy that resulted in the violation of E.R.'s constitutional rights. The court also held that Arevalo had failed to allege sufficient facts to state a plausible claim under § 1983 against Chief Fuller for failure to train.

         The court granted Arevalo leave to amend her federal-law claims against Farmers Branch and Chief Fuller, however, and she has now filed a second amended complaint. Arevalo reasserts her claims under § 1983 against Farmers Branch and Chief Fuller for violations of E.R.'s Fourth Amendment rights. She alleges that Chief Fuller, individually, and Farmers Branch (through Chief Fuller's actions) were deliberately indifferent to E.R.'s constitutional rights in two ways: first, they hired Officer Johnson despite his history of using excessive force, and, second, Chief Fuller failed to train Officer Johnson in the proper use of deadly force.

         Farmers Branch and Chief Fuller now move to dismiss under Rule 12(b)(6), contending that Arevalo has failed in her second amended complaint to state a claim on which relief can be granted. Arevalo opposes the motion.

         II

         Under Rule 12(b)(6), the court evaluates the pleadings by “accept[ing] ‘all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff.'” In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007) (quoting Martin F. Eby Constr. Co. v. Dall. Area Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004)). To survive a motion to dismiss, Arevalo must allege enough facts “to state a claim of relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant[s] [are] liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “The plausibility standard is not akin to a ‘probability requirement, ' but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id.; see also Twombly, 550 U.S. at 555 (“Factual allegations must be enough to raise a right to relief above the speculative level[.]”). “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not ‘show[n]'-‘that the pleader is entitled to relief.'” Iqbal, 556 U.S. at 679 (quoting Fed.R.Civ.P. 8(a)(2)). Furthermore, under Rule 8(a)(2), a pleading must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Although “the pleading standard Rule 8 announces does not require ‘detailed factual allegations, '” it demands more than “‘labels and conclusions.'” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). And “‘a formulaic recitation of the elements of a cause of action will not do.'” Id. (quoting Twombly, 550 U.S. at 555).

         III

         The court first considers Farmers Branch's motion to dismiss Arevalo's failure to train and hiring claims.[5]

         A

         A municipality is a “person” subject to suit under § 1983 under certain circumstances. See Monell v. Dep't of Soc. Servs. of N.Y., 436 U.S. 658, 690 (1978). Although a municipality cannot be held liable simply on a theory of respondeat superior, id. at 691, it can be held liable if a deprivation of a constitutional right is inflicted pursuant to an official policy or custom, Piotrowski v. City of Houston, 237 F.3d 567, 579 (5th Cir. 2001). Municipal liability requires proof of three elements: “(1) an official policy (or custom), of which (2) a policy maker can be charged with actual or constructive knowledge, and (3) a constitutional violation whose ‘moving force' is that policy or custom.” Valle v. City of Houston, 613 F.3d 536, 541-42 (5th Cir. 2010) (quoting Pineda v. City of Houston, 291 F.3d 325, 328 (5th Cir. 2002)) (internal quotation marks omitted).

         The first element requires that Arevalo adequately plead an official policy or custom. “[A] policy can be shown through evidence of an actual policy, regulation, or decision that is officially adopted and promulgated by lawmakers or others with policymaking authority.” Id. at 542 (citing Burge v. St. Tammany Parish, 336 F.3d 363, 369 (5th Cir. 2003)). Although a “single decision by a [policymaker] may, under certain circumstances, constitute a policy for which a municipality may be liable[, ] . . . this ‘single incident exception' is extremely narrow and gives rise to municipal liability only if the municipal actor is the final policymaker. Id. (citations, brackets and some internal quotation marks omitted). A custom is “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.” Piotrowski, 237 F.3d at 579 (quoting Webster v. City of Houston, 735 F.3d 838, 841 (5th Cir. 1984) (en banc) (per curiam)).

         To satisfy the second element, Arevalo must adequately plead the identity of a policy maker with “final policymaking authority.” Rivera v. Hous. Indep. Sch. Dist., 349 F.3d 244, 247 (5th Cir. 2003) (citing City of St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988)). “A ‘policymaker' must be one who takes the place of a governing body in a designated area of city administration.” Webster, 735 F.2d at 841 (citing Bennett v. City of Slidell, 728 F.2d 762, 769 (5th Cir. 1984) (en banc)). “City policymakers not only govern conduct; they decide the goals for a particular city function and devise the means of achieving those goals. . . . [T]hey are not supervised except as to the totality of their performance.” Bennett, 728 F.2d at 769. “[The court's] analysis must also take into account the difference between final decisionmaking authority and final policymaking authority, a distinction that this circuit recognized as fundamental[.] . . . [D]iscretion to exercise a particular function does not necessarily entail final policymaking authority over that function.” Bolton v. City of Dallas, 541 F.3d 545, 548-49 (5th Cir. 2008) (per curiam) (citations omitted); see also Jett v. Dall. Indep. Sch. Dist., 7 F.3d 1241, 1247 (5th Cir. 1993) (explaining distinction between final policymaking authority and mere decisionmaking).

         The third element requires that Arevalo adequately plead that the municipal policy or custom was the “moving force” of the constitutional deprivation, which requires a “high threshold of proof.” Piotrowski, 237 F.3d at 580 (citing Monell, 436 U.S. at 694). The “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.” Valle, 613 F.3d at 542 (quoting Bd. of Cnty. Comm'rs v. Brown, 520 U.S. 397, 404 (1997)) (internal quotation marks omitted). Arevalo therefore “must demonstrate that a municipal decision reflects deliberate indifference to the risk that a violation of a particular constitutional or statutory right will follow the decision.” Id. (quoting Brown, 520 U.S. at 411) (internal quotation marks omitted); see also Piotrowski, 237 F.3d at 579 (“[E]ven a facially innocuous policy will support liability if it was promulgated with deliberate indifference to the ‘known or obvious consequences' that constitutional violations would result.” (quoting Brown, 520 U.S. at 407)). Simple or even heightened negligence, however, is insufficient to meet the deliberate indifference requirement. Piotrowski, 237 F.3d at 579 (quoting Brown, 520 U.S. at 407).

         Farmers Branch moves to dismiss Arevalo's § 1983 claims on the grounds that Arevalo has failed to demonstrate the existence of a city policy; that Arevalo has failed to plead the existence of a final policymaker; and that the decisions to hire and not to provide deadly force training to Officer Johnson do not amount to deliberate indifference or the “moving force” behind the violation of E.R.'s constitutional rights. Arevalo contends that she has sufficiently pleaded all three requirements for municipal liability.

         B

         The court first considers Farmers Branch's claim that Arevalo has failed to identify an official custom or policy.

         1

         “‘Municipal liability for section 1983 violations results if a deprivation of constitutional rights was inflicted pursuant to official custom or policy.'” Pogue v. City of Dallas, 2014 WL 3844675, at *3 (N.D. Tex. Aug. 4, 2014) (Boyle, J.) (quoting Piotrowski, 237 F.3d at 579). A plaintiff's allegations regarding the policy or custom cannot be conclusory, and they must contain specific facts showing the existence of such a custom. Spiller of City of Texas City Police Dep't, 130 F.3d 162, 167 (5th Cir. 1997) (citing Fraire v. City of Arlington, 957 F.2d 1268, 1278 (5th Cir. 1992)). “A single incident unaccompanied by supporting history will likely be an inadequate basis for inferring such a custom or usage unless the actor or actors involved had been given official policy-making authority.” Renfro v. City of Kaufman, 27 F.Supp.2d 715, 717 (N.D. Tex. 1998) (Fish, J.) (citing Worsham v. City of Pasadena, 881 F.2d 1336, 1339-40 (5th Cir. 1989)).

         2

         Arevalo alleges that Chief Fuller, as a policymaker, failed to train the Farmers Branch Police Department in the use of deadly force. “The actions of Chief Fuller failing to institute proper training [regarding the use of deadly force] of the officers employed by the City of Farmers Branch” resulted Officer Johnson violating E.R's constitutional rights.[6] 2d Am. Compl. 8; see also Id. at 7 (“The policies, customs, and practices of the City as alleged herein regarding the training of its law enforcement officers resulted the violation of E.R.'s Fourth Amendment rights.”). She asserts that “such inadequate training described herein can justifiably be said to represent ‘city policy.'” Id. at 9.

         The court holds that these allegations are conclusory. Besides perfunctorily alleging the inadequacy of use of force training, Arevalo points to no official training policy, regulation, or custom that resulted in Officer Johnson's not receiving any training on the use of deadly force. Nor does Arevalo “plausibly allege that Farmers Branch hired any other employee with a similar record in a similar manner, or that it had a policy or custom of doing so.” Arevalo I, 2017 WL 1153230, at *11. In her second amended complaint, “Arevalo has only alleged that a single episode occurred in which Farmers Branch knowingly hired (or acted with conscious indifference in hiring) an incompetent law enforcement officer whom it then failed to adequately train on the use of deadly force.” Id. These allegations do not alone permit the court to “draw the reasonable inference that there was a widespread practice that was so common and well-settled as to constitute a custom that fairly represented municipal policy.” Id.

         Applying the single-incident exception, however, remains a possibility. Besides her conclusory allegations of city policy, Arevalo alleges that Chief Fuller-and thus Farmers Branch-chose to hire, and failed to train, Officer Johnson specifically. “This single decision on the part of Chief Fuller not to train Officer Johnson on the use of deadly force, ” 2d Am. Compl. 5, and Chief Fuller's decision to hire him, can each be sufficient to satisfy Monell's requirement of an official city policy. To qualify, however, Chief Fuller must have had final policymaking authority. See Valle, 613 F.3d at 542; Bolton, 541 F.3d at 548; Woodard v. Andrus, 419 F.3d 348, 352 (5th Cir. 2005).

         C

         The court must therefore determine whether Arevalo has sufficiently alleged that Chief Fuller was a final policymaker.

         1

         Whether a city official is a final policymaker is a question of state and local law. Praprotnik, 485 U.S. at 124. As the court has noted, “a policymaker is one who takes the place of the governing body in a designated area of city administration, ” Pinedo v. City of Dallas, 2015 WL 221085, at *4 (N.D. Tex. Jan. 15, 2015) (Fitzwater, J.) (citing Webster, 735 F.2d at 841); governs not only conduct, but decides the goals for a particular city function, and devises the means of achieving those goals, Webster, 735 F.2d at 841; Bennett, 728 F.2d at 769; and is not supervised except as to the totality of his performance, Webster, ...


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