IRMA CARRILLO RAMIREZ, Magistrate Judge.
Before the Court for recommendation is Defendants City of Carrollton and Caleb West's Partial Motion to Dismiss Plaintiffs' First Amended Complaint and Brief, filed December 20, 2018 (doc. 18). Based on the relevant filings and applicable law, the motion should be
Natalie Hickson and Lapresha Roquel Stanley, on behalf of herself and her minor son, and as the personal representative of the Estate of Malcom Hickson (Plaintiffs), sue the City of Carrollton (the City) and Carrollton Police Department (CPD) Officer Caleb West (Officer) in his official and individual capacities (collectively, Defendants) under 42 U.S.C. § 1983 for violations of Malcom Loren Hickson's (Hickson) Fourth Amendment rights; they also assert state law survival and wrongful death claims. (doc. 13 at 1-3, 12-13.)
Plaintiffs allege that on October 26, 2016, Hickson and his girlfriend were in a room at the InnTown Suites Extended Stay Residences in Carrollton, Texas. (doc. 13 at 4.) Hickson's girlfriend left the room to retrieve a backpack from his vehicle, and she was immediately detained by CPD officers and placed in a CPD vehicle. (Id.) Hickson was unaware that "[t]here were multiple CPD officers and CPD vehicles" waiting outside "armed with rifles, handguns, and other weapons and restraints," and the officers "did not attempt to breach the door of the unit after his girlfriend's exit, rather; they waited for Hickson's departure." (Id.) After his girlfriend did not return, Hickson "exited the unit and made his way to the parking lot of the InnTown Suites building," where he saw "multiple armed CPD officers with weapons drawn and pointed at [him] . . . ." (Id.) Hickson raised his hands in the air and surrendered without making "any furtive movements . . . ." (Id. at 5.) While his hands were in the air, clearly visible to Officer and the other CPD officers on the scene, he "was unexpectedly and without legal justification, shot by [Officer]." (Id.) None of the CPD officers on the scene attempted to detain or restrain Hickson, or to use non-lethal force to subdue him. (Id.) Hickson was transported to the hospital but pronounced dead approximately 30 minutes after the shooting. (Id.)
Plaintiffs allege that "Hickson did not pose a threat of harm to CPD officers," and that the officers "could have lawfully detained [him] using restraints or other non-lethal force." (Id.) They further allege that it was unnecessary and unreasonable to use lethal force given the circumstances because "Hickson was surrounded by multiple CPD officers with weapons drawn and [he] posed no immediate danger to [any of them]." (Id.) They assert that the City, through the CPD, failed to provide Officer adequate training in the use of deadly force, in proper arrest and confrontation techniques, and in appropriate methods and techniques to control these types of situations, and that it "knew or should have known that" Officer's training was inadequate. (Id. at 5-6.) They contend that Officer's "unlawful and unwarranted acts, lack of training and the official customs of the [City and the] CPD caused Hickson's wrongful death." (Id. at 6.) They further contend that they have "sustained substantial damages and pecuniary loss" as a result of Defendants' conduct." (Id.) They claim that the City, through the CPD, "has not implemented policies and procedures to aggressively curtai[l] certain death and/or injuries as a result of the improper use of deadly force and have not disciplined officers involved in the same." (Id. at 7.)
Defendants move to dismiss Plaintiffs' federal claims against the City and Officer in his official capacity, all of their state law claims, their claim for punitive damages against the City, and their joint and several liability claims under Rule 12(b)(6). (doc. 18 at 2, 8-9.)
Rule 12(b)(6) allows motions to dismiss for failure to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). Pleadings must show specific, well-pleaded facts, not mere conclusory allegations to avoid dismissal. Guidry v. Bank of LaPlace, 954 F.2d 278, 281 (5th Cir. 1992). The court must accept those well-pleaded facts as true and view them in the light most favorable to the plaintiff. Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996). "[A] well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of [the alleged] facts is improbable, and `that a recovery is very remote and unlikely.'" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007) (citation omitted). Nevertheless, a plaintiff must provide "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. at 555; accord Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (emphasizing that "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions"). The alleged facts must "raise a right to relief above the speculative level." Twombly, 550 U.S. at 555. In short, a complaint fails to state a claim upon which relief may be granted when it fails to plead "enough facts to state a claim to relief that is plausible on its face." Id. at 570 (emphasis added).
Iqbal, 556 U.S. at 678 (citations omitted). When plaintiffs "have not nudged their claims across the line from conceivable to plausible, their complaint must be dismissed." Twombly, 550 U.S. at 570; accord Iqbal, 556 U.S. at 678 (noting that "[d]etermining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense").
Defendants argue that Plaintiffs' federal claims against the City should be dismissed because they "have failed to adequately plead a cause of action for municipal liability under 42 U.S.C. § 1983." (doc. 18 at 15-22.)
Section 1983 "provides a federal cause of action for the deprivation, under color of law, of a citizen's `rights, privileges, or immunities secured by the Constitution and laws' of the United States." Livadas v. Bradshaw, 512 U.S. 107, 132 (1994). It "afford[s] redress for violations of federal statutes, as well as of constitutional norms." Id. To state a claim, a plaintiff must allege facts that show (1) he has been deprived of a right secured by the Constitution and the laws of the United States and (2) the deprivation occurred under color of state law. See Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 155 (1978); Cornish v. Corr. Servs. Corp., 402 F.3d 545, 549 (5th Cir. 2005).
Municipalities, including counties and cities, may be held liable under § 1983. Hampton Co. Nat'l Sur., LLC v. Tunica Cty., 543 F.3d 221, 224 (5th Cir. 2008). A municipality may be liable under § 1983 if the execution of one of its customs or policies deprives a plaintiff of his or her constitutional rights. Monell v. Dep't of Social Servs., 436 U.S. 658, 690-91 (1978); Jones v. City of Hurst, Tex., No. 4:05-CV-798-A, 2006 WL 522127, at *3 (N.D. Tex. Mar. 2, 2006) (citing Bd. of Cty. Comm'rs v. Brown, 520 U.S. 397, 403 (1997)). It is well-settled that a municipality cannot be liable under a theory of respondeat superior, however. Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th Cir. 2001) (citing cases). "Under the decisions of the Supreme Court and [the Fifth Circuit], municipal liability under section 1983 requires proof of three elements: a policy maker; an official policy; and a violation of constitutional rights whose `moving force' is the policy or custom." Id. (citing Monell, 436 U.S. at 694); see also Valle v. City of Houston, 613 F.3d 536, 541-42 (5th Cir. 2010); Cox v. City of Dallas, 430 F.3d 734, 748 (5th Cir. 2005).
"Official policy" is defined as:
Webster v. City of Houston, 735 F.2d 838, 841 (5th Cir. 1984) (per curiam); accord Pineda v. City of Houston, 291 F.3d 325, 328 (5th Cir. 2002). Where a policy is facially constitutional, a plaintiff must demonstrate that it was promulgated with deliberate indifference to known or obvious consequences that constitutional violations would result. Piotrowski, 237 F.3d at 579-80 & n.22; accord Peterson v. City of Fort Worth, 588 F.3d 838, 849-50 (5th Cir. 2009), cert. denied, 562 U.S. 827 (2010). "Deliberate indifference of this sort is a stringent test, and `a showing of simple or even heightened negligence will not suffice' to prove municipal culpability." Piotrowski, 237 F.3d at 579 (citation omitted) (stressing that "Monell plaintiffs [need] to establish both the causal link (`moving force') and the City's degree of culpability (`deliberate indifference' to federally protected rights)").
"The description of a policy or custom and its relationship to the underlying constitutional violation . . . cannot be conclusory; it must contain specific facts." Spiller v. 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)); accord Piotrowski, 237 F.3d 578-79. "[A] complaint must contain either direct allegations on every material point necessary to sustain a recovery . . . or contain allegations from which an inference fairly may be drawn that evidence on these material points will be introduced at trial." Campbell v. City of San Antonio, 43 F.3d 973, 975 (5th Cir. 1995) (citation omitted). In Spiller, the Fifth Circuit found insufficient an allegation that "[the officer] was acting in compliance with the municipality's customs, practices or procedures." Spiller, 130 F.3d at 167. It has also found that a single incident is not enough to infer an official policy or custom. See World Wide St. Preachers Fellowship v. Town of Columbia, 591 F.3d 747, 753-54 (5th Cir. 2009); Pineda, 291 F.3d at 329; Piotrowski, 237 F.3d at 581; see also Hester v. Dallas Cty. Jail, No. 3:11-CV-3099-B-BH, 2012 WL 1430539, at *3 (N.D. Tex. Mar. 6, 2012), adopted by 2012 WL 1437747 (N.D. Tex. Apr. 25, 2012) ("His single alleged incident is insufficient to infer that Dallas County has an official customary policy or custom of failing to protect inmates at the county jail.").
Defendants argue that Plaintiffs' claims against the City for failure to train and failure to supervise or discipline should be dismissed because they "do not allege with specificity how the City's training was defective, have failed to allege facts sufficient to establish that the City was deliberately indifferent in adopting any training policies, and have failed to allege facts sufficient to support their contention that an inadequate training policy of the City directly caused a Constitutional violation." (doc. 18 at 18.) They also contend that Plaintiffs have offered no factual allegations to support their claims for failure to supervise or discipline. (Id. at 21-22.)
"The failure to train can amount to a policy if there is deliberate indifference to an obvious need for training where citizens are likely to lose their constitutional rights on account of novices in law enforcement." Peterson, 588 F.3d at 849 (citing Brown v. Bryan Co., 219 F.3d 450, 458 (5th Cir. 2000), cert. denied, 131 S.Ct. 66 (2010)). In the Fifth Circuit, "to hold a municipality liable for failure to train an officer, it must have been obvious that `the highly predictable consequence of not training' its officers was that they `would apply force in such a way that the Fourth Amendment rights of [citizens] were at risk.'" Id. (quoting Brown, 219 F.3d at 461). "The failure to train must reflect a `deliberate' or `conscious' choice by a municipality." World Wide St. Preachers Fellowship, 591 F.3d at 756 (quoting City of Canton v. Harris, 489 U.S. 378, 389 (1989)) (internal quotation marks omitted).
Here, Plaintiffs allege that the City "failed to adequately train its officers on how to deal with individuals while executing a warrant and the subsequent use of deadly force," and that the City "failed to adequately supervise and/or discipline its employees in handling usual and recurring situations with which they deal . . . ." (doc. 13 at 9-11.) The City's failures allegedly reflect "a deliberate indifference" and "reckless and conscious disregard for the obvious risk that officers would use excessive or deadly force on citizens" by the City's policymakers, which "made the violation of Hickson's constitutional rights, including his death, a reasonable probability." (Id. at 10.) They claim that the City, under the direction of its policymakers, "developed and maintained a policy of deficient training of its police force in the use of force, including the proper use of deadly force and dealing with individuals during the execution of a warrant," and that CPD's training was "designed and implemented" by the City's policymakers. (Id.) Officer was "acting under color of law and . . . pursuant to customs, practices and policies of the City," according to Plaintiffs, and his actions resulted from or were within the scope of the `wrongful and reckless customs, policies, practices and/or procedures for which the [C]ity . . . knew or should have known but never provided the requisite and proper training." (Id. at 9-10.) They conclude that the City's "failure to properly train and discipline its deputies was the proximate cause of the violations of Hickson's constitutional rights." (Id. at 11.)
Plaintiffs' allegations focus only on Officer's actions against Hickson. They make no allegations of similar incidents occurring in the past in support of their assertion that the City failed to adequately train, supervise, or discipline its employees in the execution of warrants or use of deadly force. (See doc. 13.) They make only conclusory allegations regarding the City's alleged failures, and their allegations do not suffice to show that it was obvious that the highly predictable consequence of the City's alleged failure to train, supervise, or discipline was that its officers "`would apply force in such a way that the Fourth Amendment rights of [citizens] were at risk.'" Peterson, 588 F.3d at 849 (quoting Brown, 219 F.3d at 461.) Additionally, they allege no facts in support of their assertion that the City's alleged failures reflect deliberate indifference on the part of its policymakers. Because they make only formulaic recitations of the elements, and rely on general and conclusory allegations for their claims against the City, their allegations do not support a finding of municipal liability under the theories of failure to train, supervise, or discipline. Twombly, 550 U.S. at 555.
Defendants also move to dismiss any ratification claims asserted by Plaintiffs on grounds that they have offered no factual allegations in support of their claim. (doc. 18 at 20-22.)
The Supreme Court and Fifth Circuit have recognized that "a policy maker could `ratify' a subordinate's illegal conduct, thus putting the force of a municipal policy behind it[.]" Milam v. City of San Antonio, 113 F. App'x 622, 626 (5th Cir. 2004); see Praprotnik, 485 U.S. at 128 ("If the authorized policymakers approve a subordinate's decision and the basis for it, their ratification would be chargeable to the municipality because their decision is final"). The ratification theory "is necessarily cabined in several ways . . . to prevent [it] from becoming a theory of respondeat superior," however. Milam, 113 F. App'x at 626-27. Under this theory, "[p]olicymakers alone can create municipal liability, and so any violation must be causally traceable to them, not just to their subordinates." Id. at 627.
Here, Plaintiffs only generally state that they are asserting a ratification claim. (doc. 13 at 11.) They fail to allege any facts or provide any basis to support their claim, however. (See id.) Accordingly, to the extent they are asserting municipal liability based on any policymaker's ratification of Officer's conduct, they also fail to state a claim. See Reed v. Kerens Ind. Sch. Dist., No. 3:16-CV-1228-BH, 2017 WL 2463275, at *15 (N.D. Tex. June 6, 2017) (finding that the plaintiff's conclusory allegations were insufficient to establish municipal liability under the ratification theory); Khansari v. City of Houston, 14 F.Supp.3d 842, 871 (S.D. Tex. 2014) (determining that the plaintiffs "failed to allege facts capable of establishing a § 1983 claim that the City ratified the officers' conduct.").
Defendants also move to dismiss Plaintiffs' federal claims against Officer in his official capacity, all of their state law claims against both Defendants, their claim for punitive damages against the City, and their claim for joint and several liability. (doc. 18 at 2, 14-15, 22-26.) In their response, "Plaintiffs concede to West' dismissal" and state that they "will be proceeding only against the City on the Monell claims. Accordingly, Plaintiffs respectfully withdraw their request for punitive damages and for joint and several liability." (doc. 25 at 5.) Plaintiffs' federal claims against Officer in his official capacity, all of their state law claims against both Defendants, their claim for punitive damages against the City, and their claim for joint and several liability all of these claims should therefore also be dismissed.
Defendants assert that Plaintiffs' response indicates that the federal claims against Officer in his individual capacity should also be dismissed. (doc. 26 at 1.) Defendants did not move to dismiss the individual capacity claims, however. (doc. 18 at 2, 8-9.) Further, Plaintiffs' response expressly lists their concessions in response to Defendants' motion, and the list does not include the individual capacity claims against Officer, so those claims remain pending. (See doc. 25 at 16.)
Defendants' motion should be
A copy of these findings, conclusions and recommendation shall be served on all parties in the manner provided by law. Any party who objects to any part of these findings, conclusions and recommendation must file specific written objections within 14 days after being served with a copy. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). In order to be specific, an objection must identify the specific finding or recommendation to which objection is made, state the basis for the objection, and specify the place in the magistrate judge's findings, conclusions and recommendation where the disputed determination is found. An objection that merely incorporates by reference or refers to the briefing before the magistrate judge is not specific. Failure to file specific written objections will bar the aggrieved party from appealing the factual findings and legal conclusions of the magistrate judge that are accepted or adopted by the district court, except upon grounds of plain error. See Douglass v. United Servs. Automobile Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996).
