Liggins v. Duncanville Texas

United States District Court

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

LOU LIGGINS §

: CIVIL ACTION NO. 3:20-CV-654-S

CITY OF DUNCANVILLE, TEXAS, et al. :

MEMORANDUM OPINION AND ORDER

This Memorandum Opinion and Order addresses Defendant’s Third Motion & Brief to

Dismiss (“Motion to Dismiss”) [ECF No. 38]. For the reasons that follow, the Court GRANTS

the Motion to Dismiss.

I BACKGROUND

This case concerns the shooting of Plaintiff Lou Liggins by a City of Duncanville (“City”)

police officer responding to an emergency call.! Plaintiff, who has a history of mental illness,

experienced a severe mental health episode and expressed suicidal ideations after he stopped taking

his medication. 3rd Am. Compl. [ECF No. 37] §§ 13-14. Plaintiff's mother contacted the

Duncanville Police Department and informed them of her son’s condition and that he was not

armed or dangerous. /d. {§ 17-18. According to Plaintiff, this information was communicated to

the officers arriving on the scene, including Officer Nathan Roach (“Officer Roach”) and the City’s

Chief of Police Robert Brown (“Chief Brown”). /d. □ 20. Plaintiff alleges that officers entered

the home with guns drawn, at which time Plaintiff attempted to retrieve his cell phone from his

pocket. Jd. 9] 32,36. As he did so, Officer Roach shot Plaintiff in the abdomen.” Jd. 937. Based

on these allegations, Plaintiff filed a complaint against Officer Roach and the City.

A more detailed summary of the factual and procedural background is set forth in this Court’s previous Memorandum

Opinion and Order [ECF No. 36].

? Tt remains unclear whether Plaintiff's gunshot wound was fatal. Plaintiff has not addressed this uncertainty

previously raised by the Court. See ECF No, 36 at 2 n.1, The Third Amended Complaint states that the shooting

The Court previously granted Officer Roach and the City’s motion to dismiss Plaintiff's

Second Amended Complaint [ECF No. 27]. See ECF No. 36. Specifically, the Court found that

Plaintiff's 42 U.S.C. § 1983 excessive force claim and Texas state law assault and battery claim

against Officer Roach were filed after the limitations period expired. See id. at 13. As to the

§ 1983 municipal liability claim against the City, the Court found that Plaintiff did not allege

sufficient facts to show that Chief Brown was a policymaker. See id. at 14-15. The Court also

found that Plaintiff failed to allege sufficient facts to show that the City had a policy or widespread

practice that was unconstitutional, or that Chief Brown’s decisions were made with deliberate

indifference that a constitutional violation would result. See id. at 17-19. After obtaining leave of

Court, Plaintiff filed the Third Amended Complaint, which is the live complaint before the Court.

In the Third Amended Complaint, Plaintiff removed Officer Roach as a defendant and

repleaded the same § 1983 municipal liability claims against the City for failure to train police

officers (Count 1) and Chief Brown’s alleged role as a policymaker for the City (Count 2). Id. 9§

52-70. However, in his Response, Plaintiff abandoned his failure to train claim, conceding that it

“lacks sufficient factual basis to demonstrate he is entitled to relief.” PI.’s Resp. [ECF No. 41] at

9n.1. The sole remaining claim, therefore, is Count 2, the policymaker claim. In addition to the

allegations included in his previous complaints, Plaintiff now cites Chapter 15 of the City of

Duncanville Code of Ordinances (“Duncanville Code of Ordinances”) and a publication by the

Texas Judicial Commission on Mental Health titled “Responding to the Mentally Ill: A Guide for

Texas Peace Officers” as additional support of his claims. /d. J§ 33, 44-51. Plaintiff also adds

that Officer Roach acted “upon the orders of” Chief Brown, alleging that Chief Brown’s orders

evinced a “deliberate indifference to [Plaintiff]’s constitutional rights.” Jd. J] 5, 69. The City

resulted in Plaintiff's “death” while also stating that Plaintiff has “lasting pain and physical limitations,” implying that

Plaintiff is still alive. 3rd Am. Compl. at $4 4, 40.

filed the instant Motion to Dismiss under Federal Rule of Civil Procedure 12(b)(6), arguing that

Plaintiff's additional allegations do not cure the deficiencies previously identified by the Court.

Il. LEGAL STANDARD

To defeat a motion to dismiss filed pursuant to Rule 12(b)(6), a plaintiff must plead

“enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly,

550 U.S. 544, 570 (2007); Reliable Consultants, Inc. v. Earle, 517 F.3d 738, 742 (Sth Cir. 2008).

To meet this “facial plausibility” standard, a plaintiff must “plead[] factual content that allows the

court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”

Ashcroft v. Ighal, 556 U.S. 662, 678 (2009). Plausibility does not require probability, but a plaintiff

must establish “more than a sheer possibility that a defendant has acted unlawfully.” Jd. The court

must accept well-pleaded facts as true and view them in the light most favorable to the plaintiff.

Sonnier y. State Farm Mut. Auto. Ins., 509 F.3d 673, 675 (Sth Cir. 2007). However, the court does

not accept as true “conclusory allegations, unwarranted factual inferences, or legal conclusions.”

Ferrer vy. Chevron Corp., 484 F.3d 776, 780 (5th Cir. 2007) (citation omitted). A plaintiff must

provide “more than labels and conclusions, and a formulaic recitation of the elements of a cause

of action will not do.” 7wombly, 550 U.S. at 555 (internal citations omitted). “Factual allegations

must be enough to raise a right to relief above the speculative level ... on the assumption that all

the allegations in the complaint are true (even if doubtful in fact).” /d. (internal citations omitted).

In ruling on a Rule 12(b)(6) motion, the court limits its review to the face of the pleadings.

See Spivey v. Robertson, 197 F.3d 772, 774 (Sth Cir. 1999). The pleadings include the complaint

and any documents attached to it. Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498-99

(5th Cir. 2000). However, the court may consider documents outside of the pleadings if they fall

within certain limited categories, including “documents incorporated into the complaint by

reference, and matters of which a court may take judicial notice.” Dorsey v. Portfolio Equities,

Ine., 540 F.3d 333, 338 (Sth Cir. 2008) (internal quotation marks omitted) (quoting Tellabs, Inc.

v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007)). The court may also consider documents

“attached to a motion to dismiss that ‘are referred to in the plaintiff's complaint and are central to

the plaintiff's claim.’” Sudlivan v. Leor Energy, LLC, 600 F.3d 542, 546 (Sth Cir. 2010) (quoting

Scanlan v. Tex. A & M Univ., 343 F.3d 533, 536 (5th Cir. 2003)).

The ultimate question is whether the complaint states a valid claim when viewed in the

light most table to the plaintiff. Great Plains Tr. Co. v. Morgan Stanley Dean Witter & Co.,

313 F.3d 305, 312 (Sth Cir. 2002). At the motion to dismiss stage, the court does not evaluate the

plaintiff's likelihood of success. It only determines whether the plaintiff has stated a claim upon

which relief can be granted. Mann v. Adams Realty Co., 556 F.2d 288, 293 (5th Cir. 1977).

Ti. ANALYSIS

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). To state a claim under § 1983, a plaintiff

must allege facts showing (1) he has been deprived of a night 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).

A municipal entity cannot be held vicariously liable under § 1983 for the individual acts of

its employees. 42 U.S.C. § 1983; see Bad. of Cnty. Comm'rs of Bryan Cnty. v. Brown, 520 U.S.

397, 403 (1997); Doe on Behalf of Doe v. Dallas Indep. Sch. Dist., 153 F.3d 211, 215 (5th Cir.

1998). “It is only when the ‘execution of the government’s policy or custom .. . inflicts the injury’

that the municipality may be held liable.” City ef Canton v. Harris, 489 U.S. 378, 385 (1989)

(citations omitted). Therefore, to impose § 1983 liability on the City, Plaintiff must sufficiently

allege “a policymaker; an official policy [or a custom]; and a violation of constitutional rights

whose ‘moving force’ is the policy or custom.” Piotrowski v. City of Hous., 237 F.3d 567, 578

(Sth Cir. 2001) (quoting Monell v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 658, 694 (1978).

A. Policymaker

Whether a city official is a policymaker is a question of state and local law. City of St.

Louis v. Praprotnik, 485 U.S. 112, 124-25 (1988). A policymaker is “one who takes the place of

the governing body in a designated area of city administration.” Zarnow v. City of Wichita Falls,

614 F.3d 161, 167 (5th Cir, 2010) (quoting Webster v. City of Hous., 735 F.2d 838, 841 (5th Cir.

1984) (en banc)). The policymaker must “decide the goals for a particular city function and devise

the means of achieving those goals.” /d. (quoting Bennett v. City of Slidell, 728 F.2d 762, 769 (Sth

Cir. 1984) (en banc)). Policymaking authority requires more than a showing of mere

decisionmaking authority. Bennett, 728 F.2d at 769. “Municipal liability attaches only where the

decisionmaker possesses final authority to establish municipal policy with respect to the action

ordered.” Pembaur v. City of Cincinnati, 475 U.S. 469, 481 (1986). While a municipality’s

governing body is typically its policymaker, the governing body may delegate policymaking

authority by: (1) express statement or formal action; or (2) conduct or practice. Bennett, 728 F.2d

at 769.

Plaintiff argues that Chief Brown is a policymaker because he is the highest-ranking police

officer within the Duncanville Police Department command structure and, according to the

Duncanville Code of Ordinances, his orders relating to the conduct of officers on the ground are

not subject to review. 3rd Am. Compl. {J 44-51 (citing Duncanville Code of Ordinances §§ 15-5,

15-7). The City, on the other hand, contends that Plaintiffs allegations are conclusory and Chief

Brown is, at most, a decisionmaker and not a policymaker. See Mot. to Dismiss 7-8. In support,

the City points to the Duncanville Charter and Code of Ordinances. See id. 6; see also ECF No.

38-1 at 2 (Duncanville Charter § 2.06) (“Except as otherwise provided by this Charter, all powers

of the City and the determination of all matters of policy shall be vested in the Council.”); id. at 6

(Duncanville Code of Ordinances § 15-4) (“The chief of police . . . shall operate directly under the

city manager.”).

The fact that Chief Brown’s on-the-ground orders are not reviewable, if in fact true, is not

by itself sufficient to demonstrate that he is a policymaker. The Fifth Circuit has stated that neither

complete discretionary authority nor the unreviewability of such authority automatically results in

municipal liability—there must be more. Zarnow, 614 F.3d at 168 (citing Bolton v. City of Dall.,

541 F.3d 545, 551 (5th Cir. 2008)). For example, in Zarnow, the plaintiff alleged that the Wichita

Falls chief of police was a policymaker. /d. at 167. In support, the plaintiff produced several

“General Orders” issued by the chief of police that addressed department policies. /d Each

General Order began with the language “it is the policy of this department” and proceeded to “set

out regulations addressing specific behaviors.” /d. The Fifth Circuit found that the General Orders

promulgated by the police chief sufficed to be the “more” that is needed to prove policymaking

authority. /d. at 168.

In contrast, Plaintiff's factual allegations do not show how Chief Brown’s authority to

make on-the-ground decisions demonstrates “final authority to establish municipal policy with

respect to the action ordered.” Pembaur, 475 U.S. at 481. Rather, the Duncanville Charter makes

clear that “all” policymaking authority is vested in the city council. ECF No. 38-1 at 2

(Duncanville Charter § 2.06). Plaintiff has not alleged facts to support the “more” that is required

to prove policymaking authority. See Arevalo v. City of Farmers Branch, No. 3:16-CV-1540-D,

2017 WL 5569841, at *6 (N.D. Tex. Nov. 20, 2017) (finding plaintiff failed to plausibly plead that

police chief was a final policymaker by relying on conclusory assertions); Doe v. City of

Springtown, No. 4:19-CV-0166-P, 2020 WL 1861682, at *3 (N.D. Tex. Apr. 14, 2020) (rejecting

plaintiffs assertion that Texas police chiefs are policymakers as a matter of law and finding that

plaintiff failed to plead sufficient facts to demonstrate that police chief was a policymaker).

Therefore, the Court finds that Plaintiff has not alleged sufficient facts to meet the “policymaker”

element.

B. Official Policy or Custom and Moving Force

An “official policy or custom” may take multiple forms. See Zarnow, 614 F.3d at 168. An

official policy is most clearly established through a policy statement formally announced by an

official policymaker. See id. When an “official policy” is not explicit, however, a persistent and

widespread practice by city officials that is so common and well settled as to constitute a “custom”

will suffice. See id. at 168-69, In addition, a single decision by a policymaker may, in rare

circumstances, constitute a policy. /d. at 169; Howell v. Town of Ball, 827 F.3d 515, 527 (Sth Cir.

2016).

Plaintiff does not allege a formal policy statement or a persistent and widespread practice.

Instead, he argues that despite the availability of certified mental health peace officers, a crisis

intervention team, non-lethal tools, and widely known literature that de-escalation techniques are

necessary for the proper handling of individuals with mental health issues, Chief Brown chose not

to use these resources and instead ordered officers into Plaintiffs home with live ammunition. 3rd

Am. Compl. Jf 62-70. Because Plaintiff claims that the City should be held liable based on Chief

Brown’s decisions, Plaintiff asserts a theory of § 1983 municipal liability based on a single

incident.

To establish a policy under the “single incident exception,” Plaintiff must show that Chief

Brown has final policymaking authority and that his decisions or orders were the “moving force”

behind the constitutional injury. Valle v. City of Hous., 613 F.3d 536, 543 (Sth Cir. 2010). To

meet the moving force element, Plaintiff must demonstrate that the policy (in this case, Chief

Brown's decisions) was unconstitutional or was adopted with deliberate indifference to the known

or obvious fact that such constitutional violations would result. See Webb v. Town of Saint Joseph,

925 F.3d 209, 219 (Sth Cir. 2019). Plaintiff does not allege that Chief Brown’s decisions were

unconstitutional. Rather, he claims that Chief Brown’s decisions exhibited a deliberate

indifference to Plaintiffs constitutional rights. /d. 69. To base deliberate indifference from a

single incident, “it should have been apparent to the policymaker that a constitutional violation

was the highly predictable consequence of a particular policy.” Burge v. St. Tammany Par., 336

F.3d 363, 373 (Sth Cir. 2003).

Even if Plaintiff had demonstrated that Chief Brown is a policymaker, Plaintiff has not

alleged sufficient facts to show deliberate indifference. First, Plaintiff's allegation that Chief

Brown refused to utilize mental health professionals or non-lethal tools is conclusory and lacks a

factual foundation. According to Plaintiff, Chief Brown told Plaintiffs mother that a negotiating

team would be sent to the scene. 3rd Am. Compl. § 21. This undercuts Plaintiff's allegation that

Chief Brown “refused” to utilize non-lethal options. See Mora v. Univ. of Tex. Sw. Med. Ctr., 469

F. App’x 295, 299 (5th Cir. 2012) (noting that when claims are “contradicted by the other facts

alleged in the complaint,” it can make “the claim implausible on its face”). Second, Plaintiff

merely concludes that Chief Brown’s orders evinced a deliberate indifference and cites to literature

pertaining to the importance of approaching a mentally-ill suspect in a non-confrontational

manner. /d. J] 33, 69. But deliberate indifference goes beyond the standards for negligence or

gross negligence. See Blanchard-Daigle v. Geers, 802 F. App’x 113, 116 (5th Cir. 2020). Thus,

the Court finds that Plaintiff has failed to demonstrate that Chief Brown’s decisions constitute the

type of “extreme circumstance” in which a single act is sufficient to impose municipal liability.

See id. at 117.

IV. CONCLUSION

Accepting well-pleaded facts as true and construing the Third Amended Complaint in the

light most favorable to Plaintiff, the Court does not identify any additional facts that marshal the

allegations in the complaint into the realm of plausibility required by Zwombly and Iqbal.

Accordingly, the Court GRANTS Defendant’s Third Motion & Brief to Dismiss [ECF No. 38].

Ordinarily, a court should not dismiss a claim that fails to meet the pleading requirements

“without granting leave to amend, unless the defect is simply incurable or the plaintiff has failed

to plead with particularity after repeated opportunitities to do so.” Hart v. Bayer Corp., 199 F.3d

239, 248 n.6 (Sth Cir. 2000). Even if Plaintiff sought leave to amend, which he has not, he has

already amended his complaint three times, with the benefit of two motions to dismiss and this

Court’s previous Memorandum Opinion and Order [ECF No. 36]. The allegations against the City

in the Third Amended Complaint do not differ significantly from those in the Second Amended

Complaint. It follows that the Third Amended Complaint should reflect Plaintiff's best efforts to

state a claim against the City. And since the Third Amended Complaint still does not allege enough

facts, granting leave for further amendment is futile. Plaintiff's Third Amended Complaint is

therefore DISMISSED WITH PREJUDICE.

SO ORDERED.

SIGNED January 21, 2022.

LE Selabin

UNITED STATES DISTRICT JUDGE