Foster v. Tarrant County

Cid. KIT COUR

NORTHERN FILED OF TEXAS

IN THE UNITED STATES DISTRICT CpuURT

NORTHERN DISTRICT OF TEXAS

*} f

FORT WORTH DIVISION APR 17 2020

CLERK, U.S. DISTRICT COURT

ANTONTO J. FOSTER, § By

8 ee

Plaintiff, §

§

VS. § NO, 4:20-CV-113-A

§

TARRANT COUNTY SHERIFE’S §

DEPARTMENT, ET A.,

§

Defendants. §

MEMORANDUM OPINION AND ORDER

Came on for consideration the motions of defendants Tarrant

County, Texas ("County") and Jose Arroyo ("Arroyo") to dismiss.

Plaintiff, Antonio J. Foster, has failed to respond to the

motions, which are ripe for ruling. The court, having considered

the motions, the record, and applicable authorities, finds that

the motions should be granted.

I.

Plaintiff's Claims

On February 10, 2020, plaintiff filed his complaint. Doc.?

1. By order signed February 13, 2020, the court ordered that

County be substituted for "Tarrant County Sheriff's Department"

as defendant and directed the clerk to facilitate service. Doc.

7. The court also ordered County to file a document identifying

'The "Doc. __“ reference is to the number of the item on the docket in this case.

defendants John Doe #1 and John Doe #2, id., which it has done.

Doc. 11. The record does not reflect that those defendants have

been served.

Plaintiff alleges that County "allowed a common practice &

policy to persist which is unconstitutional." Doc. 1 at 3. He

says that guards are encouraged to use excessive force against

pretrial detainees and are not properly and adequately trained

on how to handle inmates with mental health issues. Id. at 6.

Plaintiff alleges that Arroyo hit him in the face with a closed

fist while plaintiff was in hand restraints. Id. at 3. Plaintiff

gays that this was not done to restore discipline, but was done

with the intent to cause plaintiff physical harm. Id. at 4.

Plaintiff admits that he spit on Arroyo before Arroyo hit him.

Id. at PageID? 7, He says that Arroyo lied in reporting that he

hit plaintiff with an open hand to subdue him. Id. at PageID 8.

IT.

Applicable Legal Principles

A. Pleading

Rule 8(a) (2) of the Federal Rules of Civil Procedure

provides, in a general way, the applicable standard of pleading.

It requires that a complaint contain "a short and plain |

statement of the claim showing that the pleader is entitled to

2 The "PageID _" reference is to the page number assigned by the court's electronic filing system and is used

because the item is a handwritten statement attached to the typewritten form complaint.

relief," Fed. R. Civ. P. 8{a)(2}, “in order to give the

defendant fair notice of what the claim is and the grounds upon

which it rests,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555

(2007) (internal quotation marks and ellipsis omitted). Although

a complaint need not contain detailed factual allegations, the

"showing" contemplated by Rule 8 requires the plaintiff to do

more than simply allege legal conclusions or recite the elements

of a cause of action. Twombly, 550 U.S. at 555 & n.3. Thus,

while a court must accept all of the factual allegations in the

complaint as true, it need not credit bare legal conclusions

that are unsupported by any factual underpinnings. See Ashcroft

v. Iqbal, 556 U.S. 662, 679 (2009) ("While legal conclusions can

provide the framework of a complaint, they must be supported by

factual allegations.").

Moreover, to survive a motion to dismiss for failure to

state a claim, the facts pleaded must allow the court to infer

that the plaintiff's right to relief is plausible. Iqbal, 556

U.S. at 678. To allege a plausible right to relief, the facts

pleaded must suggest liability; allegations that are mérely

consistent with unlawful conduct are insufficient. Id. In other

words, where the facts pleaded do no more than permit the court

to infer the possibility of misconduct, the complaint has not

shown that the pleader is entitled to relief. Id. at 679.

"Determining whether a complaint states a plausible claim for

relief . . . [is] a context-specific task that requires the

reviewing court to draw on its judicial experience and common

sense." Id.

In considering a motion to dismiss for failure to state a

claim, the court may consider documents attached to the motion

if they are referred to in the plaintiff's complaint and are

central to the plaintiff's claims. Scanlan v. Tex. A&M Univ., 343

F.3d 533, 536 (5th Cir. 2003). The court may also refer to

matters of public record. Papasan v. Allain, 478 U.S. 265, 268

n.1 (1986); Davis v. Bayless, 70 F.3d 367, 372 n.3 (5th Cir.

1995); Cinel v. Connick, 15 F.3d 1338, 1343 n.6 (5th Cir: 1994).

This includes taking notice of pending judicial proceedings.

Patterson v. Mobil Oil Corp., 335 F.3d 476, 481 n.1 (5th Cir.

2003). And, it includes taking notice of governmental websites.

Kitty Hawk Aircargo, Inc. v. Chao, 418 F.3d 453, 457 (5th Cir.

2005); Coleman v. Dretke, 409 F.3d 665, 667 (Sth Cir. 2005).

B. Municipal Liability

The law is clearly established that the doctrine of

respondeat superior does not apply to § 1983 actions. Monell Vv.

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). Liability

may be imposed against a municipality only if the governmental

body itself subjects a person to a deprivation of rights or

causes a person to be subjected to such deprivation. Connick v.

Thompson, 563 U.S. 51, 60 (2011). Local governments are

responsible only for their own illegal acts. Id. (quoting

Pembaur v, Cincinnati, 475 U.S. 469, 479 {1986)). Thus,

piaintiffs who seek to impose liability on local governments

under § 1983 must prove that action pursuant to official

municipal policy caused their injury. Monell, 436 U.S. at 691.

Specifically, there must be an affirmative link between the

policy and the particular constitutional violation alleged. City

of Oklahoma City v. Tuttle, 471 U.S. 808, 823 (1985).

Proof of a single incident of unconstitutional activity is

not sufficient to impose liability, unless proof of the incident

includes proof that was caused by an existing,

unconstitutional policy, which policy can be attributed to a

municipal policymaker. Tuttle, 471 U.S. at 823-24, (If the

policy itself is not unconstitutional, considerably more proof

than a single incident will be necessary to establish both the

requisite: fault and the causal connection between the policy and

the constitutional deprivation. Id. at 824.) Thus, to establish

municipal liability requires proof of three elements: a

policymaker, an official policy, and a violation of

constitutional rights whose moving force is the policy or

custom. Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th

Cir. 2001).

The Fifth Circuit has been explicit in its definition of

an “official policy” that can lead to liability on the part of a

governmental entity, giving the following explanation in an

opinion issued en banc in response to a motion for rehearing in

Bennett v. City of Slidell:

1. A policy statement, ordinance, regulation, or

decision that is officially adopted and promulgated by

the municipality's lawmaking officers or by an

official to whom the lawmakers have delegated

policy-making authority; or

2. 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. Actual or

constructive knowledge of such custom must be

attributable to the governing body of ‘the municipality

or to an official to whom that body had delegated

policy-making authority.

Actions of officers or employees of a municipality do

not render the municipality liable under § 1983 unless

they execute official policy as above defined.

735 F.2d 861, 862 (5th Cir. 1984) (per curiam).

The general rule is that allegations of isolated incidents

are insufficient to establish a custom or policy. Fraire v. City

of Arlington, 957 F.2@ 1268, 1278 (5th Cir. 1992); McConney v.

City of Houston, 863 F.2d 1180, 1184 (5th Cir. 1989); Languirand

v. Hayden, 717 F.2d 220, 227-28 (Sth Cir. 1983).

Cc. Qualified Immunity

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

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 Hariow, 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. Mullenix v. Luna, 136 S. Ct.

305, 308 (2015); Mailey v. Briggs, 475 U.S, 335, 341 (1986);

Fraire v. City of Arlington, 957 F.2d 1268, 1273 (5th Cir.

1992}. "(Aln 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. Siegert, 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. Further, that the officer himself may have

created the situation does not change the analysis. That he

could have handled the situation better does not affect his

entitlement to qualified immunity. Young v. City of Killeen, 775

F.2d 1349, 1352-53 (5th Cir. 1985),

When a defendant relies on qualified immunity, the burden

is on the plaintiff to negate the defense. Kavacic ve

villarreal, 628 F.3d 209, 211 (5th Cir. 2010); Foster v. City of

Lake Jackson, 28 F.3d 425, 428 (5th Cir. 1994). Although Supreme

Court precedent does not require a case directly on point,

existing precedent must place the statutory or constitutional

question beyond debate. White v. Pauly, 137 S. Ct. 548, 551

(2017). That is, the clearly established law upon which

plaintiff relies should not be defined at a high level of

generality, but must be particularized to the facts of the case.

Id. at 552. Thus, the failure to identify a case where an

officer acting under similar circumstances was held to have

violated a plaintiff’s rights will most likely defeat the

plaintiff's ability to overcome a qualified immunity defense.

Id.; Surratt v McClarin, 851 F.3d 389, 392 (5th Cir. 2017).

IV.

Analysis

As County notes, it cannot be held liable simply because it

employed Arroyo or the other defendants.* And, plaintiff has not

pleaded any facts to establish a policy for which it could be

held liable. He makes nothing but conclusory allegations.

Plaintiff has only described two incidents regarding his

treatment. He has not described a policy officially adopted by a

policymaker. He has not shown that there is a persistent,

widespread practice so common and well-settled as to constitute

a custom that fairly represents County policy. Nor has he

alleged facts to show that such practice must be attributable to

County's governing body or to an official to whom County has

delegated policy-making authority. Bennett, 735 F.2d at 862.

As for Arroyo, plaintiff has failed to show that Arroyo is

not entitled to qualified immunity. The fact that plaintiff was

able to spit on Arroyo, which plaintiff admits, shows that

plaintiff was not under control and that Arroyo could take steps

such as he did to get plaintiff under control. See Griggs v.

Brewer, 841 F.3d 308, 316 {5° Cir. 2016); Mills v. Mackel, No.

5:17-CV-135-KS-MTP, 2019 WL 4667332, at *4 (S.D Miss. July i7,

2019), report and recommendation adopted, 2019 WL 4658367 (S.D.

+ To the extent plaintiff asserts claims against Arroyo in his official capacity, those are claims against County.

Kentucky v. Graham, 473 U.S, 159, 165-66 (1985).

Miss. Sept. 24, 2019). Further, other cases have held that it is

reasonable to respond to being spat upon as Arroyo did.

Yarborough v. Loftis, No. 6:14-CV-950, 2017 WL 9288033, at *7

(E.D. Tex. Octo. 18, 2017), report and recommendation adopted,

2018 WL 387910 (E.D. Tex. Jan. 12, 2018); Moore v. Nixon, No.

5:16-CV-119-C, 2017 WL 11476340, at *3 n.2 (N.D..Tex. Apr. 25,

2017), report and recommendation adopted, 2018 WL 10149999 (N.D.

Tex. Jan. $, 2018). Spitting on a corrections officer is a

felony in Texas. Tex. Penal Code § 22.11 (West 2019) .*

Vv.

Order

The court ORDERS that the mctions to dismiss be, and are

hereby, granted, and plaintiff's claims against County. and

Arroyo.be, and are hereby, dismissed with prejudice.

The court determines that there is no just reason for delay

in, and hereby directs, entry of final judgment as to the

dismissal of such claims.

SIGNED April 17, 2020. ,

TORS? NcBRYDE

Un¥ted States District/Judge

4 Arroyo argues that plaintiff's claims are barred by Heck v. Humphrey, $12 U.S. 477, 486-87 (1994). The court

need not reach this ground of the motion.