IRMA CARRILLO RAMIREZ, Magistrate Judge.
Before the Court for recommendation is Defendant City of Dallas's Rule 12(b)(6) Motion to Dismiss, and Brief in Support, filed April 26, 2019 (doc. 55). Based on the relevant filings and applicable law, the motion should be
Jareer Jaser (Plaintiff) sues his former employer, several of its employees, the City of Dallas (the City), and Officer Tony Black (Officer Black) and Sergeant Mohaer of the Dallas Police Department (DPD), asserting wrongful discharge and employment discrimination claims, state law claims, and claims for violation of his civil rights and various federal and state criminal and civil statutes. (See docs. 3, 21.)
Plaintiff, an "Arab citizen of the United States of America, of Asian and Jordanian descent," was employed as a legal lead financial analyst by AT&T Services, Inc. (AT&T) beginning in December 2012. (doc. 21 at 10, 14.) On or about November 13, 2016, Plaintiff was arrested and charged with felony possession of a controlled substance. (Id. at 16.) After he was reassigned to a new division at AT&T, he executed a new employment agreement on September 15, 2017 (Employment Agreement). It provided, in relevant part, that his employment was subject to termination for cause and without notice if he was convicted of a felony. (Id. at 17.) Although his criminal case was pending at the time he signed the agreement, he did not disclose it to AT&T. (Id. at 16-17.)
On January 26, 2018, Plaintiff arrived at work at 9:00 AM, and two of his managers took him to the "investigation room" and "interrogated" him about his arrest. (Id. at 25.) They finished questioning him at noon, but he was locked in the room "against his will" and unable to take his medicine and eat lunch. (Id. at 26.) At 1:25 PM, one of Plaintiff's managers informed him that he was being suspended for failing to disclose the arrest and felony drug possession charge. (Id.) When he asked to meet with human resources, the head of AT&T's "asset protection" arrived and threatened to call the police if he did not surrender his company-issued laptop and leave the premises. (Id.) Plaintiff alleges that because none of the managers had the authority to suspend him or take his laptop under the terms of the Employment Agreement, he told them to contact the police, "believing that the police would document the incident." (Id.)
When Officer Black arrived in the room, the asset protection head directed him to "recover the laptop and accost [Plaintiff]." (Id. at 27.) Plaintiff attempted to explain to Officer Black that he was being unlawfully retaliated against by his manager, but he ignored him and "proceeded [to] act unlawfully malicious towards [him], threatening him with force and arrest before initiating physical contact with [him] to recover the laptop and remove him from company property and intensifying the humiliation that was surrounding him that day." (Id.) Plaintiff eventually surrendered his laptop to Officer Black and left the premises. (Id. at 30.) He alleges that despite being in his DPD uniform, Officer Black had been "off-duty" and was actually working security for AT&T at the time of the incident. (Id. at 28.)
Plaintiff alleges that AT&T had "set an artificial deadline of February 6, 2018 for [him] to avoid termination by demonstrating that his felony charge had been dropped."
In May 2018, Plaintiff filed a complaint against Officer Black with DPD's internal affairs unit, alleging that he had failed to submit a police report for the January 26, 2018 incident; he later amended the complaint to include claims for assault, battery, and conspiracy. (Id. at 29.) On June 11, 2018, Sergeant Hampton of the DPD called Plaintiff, informing him that she had concluded the investigation of his complaint, but Officer Black's "chain of command" needed to approve her report. (Id.) She allegedly told him that Officer Black had violated DPD's "code of conduct" when he failed to report his physical contact with Plaintiff. (Id.)
On December 31, 2018, Plaintiff filed a 113-page complaint asserting 45 causes of action against the City and 18 other defendants. (doc. 3.) After twice amending his complaint, on March 21, 2019, Plaintiff obtained leave to file a 180-page third amended complaint that contained 1,260 paragraphs, incorporated 310 pages of exhibits, and asserted 65 causes of action against the City and 19 other defendants. (See docs. 7, 8, 21.)
Plaintiff sues the City under a theory of vicarious liability, asserting claims under 42 U.S.C. § 1983 against it and Officer Black, in his individual and official capacities, for violations of his rights under the First, Fourth, and Fourteenth Amendments to the Constitution.
Plaintiff claims that Officer Black's physical contact and taking of his laptop "without a valid warrant, consent, or probable cause" violated his right to be free from unreasonable searches and seizures under the Fourth and Fourteenth Amendments. (Id. at 119.) He also claims that Officer Black violated his right to substantive due process and right to exercise his First Amendment rights when he "silenced [him] during the call and failed to take down any information in writing" and prevented him from "being able to adequately defend himself personally and professionally against [his manager's] false and reckless accusations." (Id. at 27, 119.) He argues the City is vicariously liable for Officer Black's unconstitutional conduct because "[a]ll actions that form the basis of this lawsuit were performed pursuant to policies and procedures, customs and practices of [the City]," and he was "acting in the course and scope of his employment for the City of Dallas and DPD." (Id. at 13-14, 119.)
On April 26, 2019, the City moved to dismiss Plaintiff's § 1983 claims against it under Rule 12(b)(6) for failure to state a claim. (doc. 55.) Plaintiff filed a response on May 29, 2019 (doc. 66), and the City filed a reply on June 13, 2019 (doc. 75). The City's motion is now ripe for recommendation.
The City moves to dismiss Plaintiff's § 1983 claims on grounds that his third amended complaint fails to plead a plausible claim for relief against it. (See doc. 55.)
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). Under the 12(b)(6) standard, a court cannot look beyond the face of the pleadings.
"[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").
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).
The City first moves to dismiss Plaintiff's § 1983 claims against it under the theory of respondeat superior based on Officer Black's alleged violation of his constitutional rights. (See doc. 55 at 5.) Plaintiff contends that Officer Black violated his rights by making physical contact with him and seizing his laptop without cause or a valid warrant, and by failing to file a police report about the January 26, 2018 incident. (doc. 21 at 6, 13-14, 118-19.)
Section 1983 does not allow a municipality to be held vicariously liable for its officers' actions on a theory of respondeat superior.
The City cannot be held vicariously liable for Officer Black's actions. See Brown, 520 U.S. at 403; see also Valle v. City of Houston, 613 F.3d 536, 541 (5th Cir. 2010) (citing Monell, 436 U.S. at 690-91) ("It is well established that a city is not liable under § 1983 on the theory of respondeat superior."). Plaintiff's § 1983 claims against the City under the theory of respondeat superior should be dismissed for failure to state a claim.
The City contends that Plaintiff has failed to plead facts that would support a finding of municipal liability against it. (doc. 55 at 5-8.)
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). "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." Piotrowski, 237 F.3d at 578 (citing Monell, 436 U.S. at 694); see also Valle, 613 F.3d at 541-42; Cox v. City of Dallas, 430 F.3d 734, 748 (5th Cir. 2005). The official policy requirement means that "municipal liability under § 1983 is limited to action for which the municipality is actually responsible." Pembaur v. City of Cincinnati, 475 U.S. 469, 479-80 (1986).
"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 Street 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.
Plaintiff contends that "[a]ll actions that form the basis of this lawsuit were performed pursuant to policies and procedures, customs and practices of [the City]." (docs. 21 at 13-14; 66 at 27-28.) He alleges that Officer Black "deprived [him] of his right to be free of unreasonable searches and seizures pursuant to the Fourth and Fourteenth Amendments to the United States Constitution, in that Defendants entered and recovered [his] laptop without a valid warrant, without consent, without probable cause, and without privilege." (doc. 21 at 27, 119.) He also alleges that "[he] has a property interest in his position as Lead Financial Analyst that falls within the scope of substantive due process and a constitutional right to exercise his First Amendment right," and Officer Black "without privilege silenced and deprived [him] of the constitutional and statutory right incident to his status as a member of AT&T." (Id. at 119.) His third amended complaint does not specifically identify a policy, practice, or procedure that was officially adopted and promulgated by the City's policymakers, however. (See id.) Rather, he alleges only that Officer Black "took his actions while acting under the color of law and in the course and scope of his employment with the City of Dallas." (Id. at 119.) His response clarifies that he is alleging that the City's "customs, policies, and practices" that were the cause of the alleged constitutional violations against him include "warrantless searches and seizures of minority citizens [and] the denial of substantive due process." (doc. 66 at 27-28.)
Plaintiff does not allege any facts showing a pattern of similar incidents of alleged unreasonable searches and seizures or substantive due process violations. (See docs. 21 at 27; 66 at 27-28.) He only sets out the January 26, 2018 incident, and generally argues that Officer Black was acting within the scope of his employment when he allegedly violated his constitutional rights. (doc. 21 at 14.) A single incident is insufficient to infer an official policy or custom; plaintiffs "must show a `persistent and widespread practice.'" See World Wide Street Preachers Fellowship, 591 F.3d at 753-54; 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."). As in Spiller, mere assertions that individuals were "acting in compliance with the municipality's customs, practices or procedures" is insufficient to plead municipal liability. See Spiller, 130 F.3d at 167. Moreover, he has also failed to plead sufficient facts from which it can be inferred that there was a policy or persistent widespread practice of "warrantless searches and seizures of minority citizens" and "the denial of substantive due process." (See doc. 66 at 27-28.) Mere assertions that there was a policy is insufficient to allege municipal liability for any constitutional violation. See Kremelberg v. Keeling, No. 15-CV-3695-K, 2016 WL 7744408, at *10 (N.D. Tex. Dec. 12, 2016), adopted by 2017 WL 131822 (N.D. Tex. Jan. 12, 2017) (allegation that there was a policy, and assertion that discovery would be required to prove that officers were following policy, were insufficient to allege municipal liability under Spiller). Because Plaintiff essentially relies on a single incident plus generalities and conclusions, he has not sufficiently alleged an official policy or custom for municipal liability. See World Wide Street Preachers Fellowship, 591 F.3d at 753-54; see, e.g., Hester, 2012 WL 1430539, at *3 (stating that a "single alleged incident is insufficient to infer" an official policy or custom).
Plaintiff appears to assert a § 1983 claim against the City for its alleged failure to train, discipline, or supervise Officer Black. (See doc. 66 at 27-28.)
"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)). 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 [constitutional] 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 Street Preachers Fellowship, 591 F.3d at 756 (quoting City of Canton v. Harris, 489 U.S. 378, 389 (1989)) (internal quotation marks omitted).
Here, Plaintiff alleges that Officer Black's alleged violations of his constitutional rights were caused by the City's customs, policies, and practices including:
(See doc. 66 at 27-28.) He contends that the City and its policymakers were responsible for establishing all policies for the DPD, including the training of its police officers, "but [they] failed to implement and enforce such policies, practices and procedures for the DPD that respected [his] constitutional rights." (doc. 21 at 6.) He claims that the City's "failure to implement the necessary policies and the (de facto) implementation of unconstitutional policies, caused [him] to experience [] unwarranted and excruciating physical and mental anguish." (Id.)
Plaintiff's allegations focus only on Officer Black's actions against him. He makes no allegations of similar incidents occurring in the past in support of his assertion that the City failed to adequately train, supervise, or discipline its employees in the "warrantless searches and seizures of minority citizens" or "the denial of substantive due process." (See doc. 66 at 27-28.) He makes only conclusory allegations regarding the City's alleged failures, and his 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 act in such a way that the constitutional rights of citizens were at risk. See Peterson, 588 F.3d at 849 (quoting Brown, 219 F.3d at 461). Additionally, he alleges no facts to support his assertion that the City's failure to train reflects deliberate indifference on the part of its policymakers. See id. Because he makes only formulaic recitations of the elements, and relies on general and conclusory allegations, his allegations do not support a finding of municipal liability under a theory of failure to train. See Twombly, 550 U.S. at 555.
Plaintiff has failed to allege sufficient facts to raise his right to relief above the speculative level on his municipal liability claims against the City. See Twombly, 550 U.S. at 555. Because he appears to rely on a theory of respondeat superior and has not sufficiently alleged an official policy or custom, the City's motion to dismiss should be granted, and his § 1983 claims against it should be dismissed.
Plaintiff appears to seek declaratory and injunctive relief under federal law and attorney's fees under 42 U.S.C. § 1988 against all defendants, including the City. (See doc. 21 at 3, 99-101, 167-68, 175-78.) The City does not move to dismiss these claims, however. (See doc. 55.)
In addition, Plaintiff also asserts claims against Officer Black in his official capacity under § 1981 for discrimination, retaliation, hostile work environment, and violations of the Fourth, Fifth, Sixth, and Fourteenth Amendments; under § 1985(c) for conspiracy to interfere with his civil rights; for violations of the Hobbs Act, RICO, and §§ 1961 and 1962; for violations of his constitutional rights under the First and Fourteenth Amendments; and for tortious interference with employment agreement and prospective relations, civil conspiracy to commit tortious interference with employment agreement, defamation, and negligence under state law.
The City's Rule 12(b)(6) motion to dismiss 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).
