Barkley v. Dillard Department Stores Inc.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

May 2, 2008

No. 07-20482 Charles R. Fulbruge III

Summary Calendar Clerk

ROBERT BARKLEY

Plaintiff-Appellant

v.

DILLARD DEPARTMENT STORES INC; HARRIS COUNTY TEXAS;

WILLIAM WILKINSON, Individually

Defendants-Appellees

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:06-CV-0843

Before JOLLY, PRADO, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

Before the court is an appeal by Plaintiff-Appellant Robert Barkley

(“Barkley”) of the district court’s order granting the summary judgment motions

of Defendants-Appellees Dillard’s Department Stores, Inc. (“Dillard’s”) and

Harris County, Texas (“Harris County”). Because Dillard’s is not a state actor

for purposes of 42 U.S.C. § 1983, we AFFIRM the district court’s grant of

*

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

No. 07-20482

summary judgment to Dillard’s. Further, because Barkley failed to create a

genuine issue of material fact that his injuries resulted from a policy or custom

of Harris County, we AFFIRM the district court’s grant of summary judgment

to Harris County.

I. BACKGROUND

The allegations in this case concern an incident that took place on May 7,

2004, when Barkley was shot three times by Defendant-Appellee William

Wilkinson (“Wilkinson”), a Harris County Sheriff’s Deputy. At the time of the

shooting, Wilkinson was not on-duty as a deputy but was working as a private

security guard for Dillard’s. Wilkinson was inside Dillard’s when he received a

radio communication from James Wheat (“Wheat”), a Dillard’s employee who

monitored all of the security cameras in Dillard’s. Wheat informed Wilkinson

that a black male in a blue dress shirt (Barkley) who had previously shoplifted

from Dillard’s was in the men’s department with a large Dillard’s bag. Wheat

instructed Wilkinson to proceed to the men’s department in case the man

attempted to shoplift again. While Wilkinson was making his way to the men’s

department, Wheat informed Wilkinson that the man had just stolen Dillard’s

merchandise and was leaving the store. Wheat then told Wilkinson that the

man turned left upon exiting the store.

Barkley’s account of the events that followed differs markedly from that

of Wilkinson. Although we set forth both sets of facts, we take Barkley’s version

as true for purposes of summary judgment. See Crawford v. Formosa Plastics

Corp., 234 F.3d 899, 902 (5th Cir. 2000). Barkley admits that he shoplifted

merchandise from Dillard’s and that he exited the store and walked at a “fast

pace” to his car. Barkley states that it was only after he had backed out of his

parking space that he heard Wilkinson yelling at him. Barkley lifted his hands

off of the steering wheel and did not put the car into drive. Wilkinson then shot

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No. 07-20482

him three times, hitting him in the arm, jaw, and hand. Barkley managed to put

his car in park and fell out of the door, at which time Wilkinson arrested him.

Wilkinson, on the other hand, asserts that, upon exiting the store, Barkley

turned around and saw Wilkinson pursuing him. Barkley began to run toward

his car, and Wilkinson ran after Barkley ordering him to stop. According to

Wilkinson, Barkley quickly backed out of the parking space and began driving

toward Wilkinson at a fast speed. Wilkinson claims that he was “caught” in a

confined area and feared for his life, so he discharged his weapon into the car

three times. The car stopped, and Wilkinson arrested Barkley.

Barkley filed suit against Dillard’s, Harris County, and Wilkinson,

bringing claims under 42 U.S.C. § 1983 and Texas state law. All three

defendants moved for summary judgment. The district court granted summary

judgment to each defendant on Barkley’s federal law claims and then declined

to exercise supplemental jurisdiction over Barkley’s remaining state law claims.

See 28 U.S.C. § 1367(c). Barkley has appealed the judgment of the district court.

Because he makes no arguments that the district court erred in granting

Wilkinson’s motion for summary judgment, Barkley has abandoned that claim

on appeal. Therefore, we consider only the claims against Dillard’s and Harris

County.

II. DISCUSSION

A. Standard of Review

We review a district court’s order granting summary judgment de novo.

High v. E-Systems Inc., 459 F.3d 573, 576 (5th Cir. 2006). Summary judgment

is appropriate when there is no genuine issue of material fact and the moving

party is entitled to a judgment as a matter of law. U.S. ex rel. Taylor-Vick v.

Smith, 513 F.3d 228, 230 (5th Cir. 2008); see also FED. R. CIV. P. 56(c). The

moving party has the initial burden of identifying the pleadings and evidence

which it believes demonstrate the absence of a genuine issue of material fact.

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Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The non-moving party then

has the responsibility of demonstrating specific facts showing that there is a

genuine issue for trial. Id. at 324. A genuine issue of material fact exists “‘if the

evidence is such that a reasonable jury could return a verdict for the non-moving

party.’” U.S. ex rel. Taylor-Vick, 513 F.3d at 230 (quoting Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986)). All facts are considered in the light most

favorable to the non-moving party, and all inferences must be drawn in that

party’s favor. Crawford, 234 F.3d at 902.

B. Claims Against Dillard’s

In its summary judgment order, the district court concluded that Barkley

failed to show that Dillard’s was a state actor for purposes of establishing

liability under 42 U.S.C. § 1983. Barkley contests that conclusion on appeal.

“To state a claim under § 1983, a plaintiff must allege the violation of a

right secured by the Constitution and laws of the United States, and must show

that the alleged deprivation was committed by a person acting under color of

state law.” West v. Atkins, 487 U.S. 42, 48 (1988) (emphasis added). However,

a person need not be a state officer in order to act under color of state law.

Rosborough v. Mgmt. & Training Corp., 350 F.3d 459, 460 (5th Cir. 2003) (per

curiam). Instead, “a private entity acts under color of state law when that entity

performs a function which is traditionally the exclusive province of the state.”

Id. (internal quotation marks and citation omitted); see also Evans v. Newton,

382 U.S. 296, 299 (1966) (noting that a private entity operates as a state actor

when it is “endowed by the State with powers or functions governmental in

nature”). Barkley contends that, when Dillard’s hired Wilkinson to “Enforce all

State and Federal Laws” in his Harris County Sheriff’s uniform, Dillard’s

became a state actor in that it was performing traditional state functions.

This court has previously set forth the standard for demonstrating state

action in circumstances such as this. In Morris v. Dillard Department Stores,

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No. 07-20482

Inc., 277 F.3d 743 (5th Cir. 2001), the court considered whether Dillard’s was a

state actor for purposes of a Fourth Amendment claim when it employed a

municipal police officer as a private security guard and the officer arrested an

individual suspected of shoplifting. After reviewing the court’s previous

decisions, we concluded that “we will not subject a merchant to § 1983 liability

unless an officer has failed to perform [an] independent investigation” and that

“evidence of a proper investigation may include such indicators as an officer’s

interview of an employee, independent observation of a suspect, and the officer

writing his own report.” Id. at 750. In Morris, the officer questioned the

employee making the report of shoplifting, observed the alleged shoplifter (who

did nothing illegal during that time), wrote down the license plate number of the

alleged shoplifter’s car, arrested the alleged shoplifter after she confronted him,

and wrote up his own police report detailing his actions and investigation. Id.

The officer testified without contradiction that he did not make his decision to

arrest the alleged shoplifter until after the individual confronted him, indicating

that he was not acting solely on the basis of the employee’s report. Id. We held

that this was evidence of an independent investigation that removed Dillard’s

from liability as a state actor. Id.

In this case, taking the facts in the light most favorable to Barkley, the

evidence shows that Wilkinson received a report of shoplifting. He then spotted

Barkley, who fit the description of the shoplifter, walking at a fast pace to his car

while carrying a large Dillard’s bag. Dillard’s never ordered Wilkinson to arrest

Barkley, and Wilkinson asserted without contradiction in his affidavit that he

made the decision to apprehend Barkley based on his own analysis. Wilkinson

further asserts that he would not have arrested an individual solely on the basis

of a report by a Dillard’s employee without making his own investigation of the

matter. In this instance, Wilkinson claims that he determined that, regardless

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No. 07-20482

of Dillard’s rules, he had the duty as a police officer to try and prevent any theft

that might be occurring.

Taking all of these facts into account, Barkley has failed to present

sufficient evidence that Dillard’s was a state actor. Although Dillard’s notified

Wilkinson of the shoplifter, Wilkinson made an independent decision to chase

after and attempt to apprehend the suspect. These facts are in contrast with

those in Smith v. Brookshire Brothers, Inc., 519 F.2d 93 (5th Cir. 1975) (per

curiam), in which we found that Brookshire was a state actor because “the police

and [Brookshire] maintained a pre-conceived policy by which shoplifters would

be arrested based solely on the complaint of the merchant.” Morris, 277 F.3d at

748-49. There is no evidence of a pre-conceived policy in this case. Therefore,

based on the facts described above, we conclude that the district court did not err

in deciding that Dillard’s was not a state actor. Consequently, we affirm

summary judgment for Dillard’s.

C. Claims Against Harris County

We turn now to Barkley’s claims against Harris County. The district court

granted summary judgment to Harris County because it first granted summary

judgment to Wilkinson. The district court reasoned that because no claims could

be brought against Wilkinson, Harris County could not be liable. See, e.g., City

of Los Angeles v. Heller, 475 U.S. 796, 799 (1986) (“If a person has suffered no

constitutional injury at the hands of the individual police officer, the fact that

the departmental regulations might have authorized the use of constitutionally

excessive force is quite beside the point.”). The district court erred in employing

this reasoning, however. Barkley’s claims against Wilkinson were dismissed, not

because of a lack of a constitutional violation, but because Barkley failed to serve

Wilkinson in a timely fashion, which permitted the statute of limitations to run.

A ruling that Barkley’s claims against Wilkinson are untimely says nothing

about whether Harris County (which was timely served) had a policy or custom

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that caused the deprivation of Barkley’s constitutional rights.1 Indeed, Harris

County does not argue that the decision should be affirmed on this basis.

Consequently, the district court erred in granting summary judgment to Harris

County based solely on the grant of summary judgment to Wilkinson.

Our inquiry does not end there, however, as we may affirm the grant of

summary judgment on grounds other than those relied upon by the district court

when the record contains an adequate and independent basis for the result. See

Montgomery v. Brookshire, 34 F.3d 291, 297 (5th Cir. 1994); see also Stanley v.

Trinchard, 500 F.3d 411, 428 (5th Cir. 2007) (noting that the court “may affirm

summary judgment on any legal ground raised below, even if it was not the basis

for the district court’s decision” (internal quotation marks omitted)). Harris

County urges us to consider the merits of Barkley’s claim against it, specifically,

whether Barkley has evidence of a policy or custom of Harris County that caused

his injuries.

It is well established that governmental liability under § 1983 must be

premised on a government policy or custom that causes the alleged

constitutional deprivation. Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694

(1978). A policy may be a policy statement, ordinance, regulation, or decision

that is officially adopted and promulgated by the government’s lawmaking

officers or by an official to whom the lawmakers have delegated policy-making

authority. Burge v. St. Tammany Parish, 336 F.3d 363, 369 (5th Cir. 2003). A

custom is shown by evidence of a persistent, widespread practice of government

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 government policy. Id. Here, Barkley argues that Harris

1

Similarly, a municipality can be liable for a constitutional violation even when its

police officers are entitled to qualified immunity for their actions. See, e.g., Glenn v. City of

Tyler, 242 F.3d 307 (5th Cir. 2001) (finding that police officers were entitled to dismissal based

on qualified immunity but that claims remained against the city).

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No. 07-20482

County had a policy or custom of inadequately training its deputies, especially

with respect to shooting at individuals in vehicles, and not properly investigating

alleged instances of excessive force, thereby creating an atmosphere that

permitted such uses of force.

Wilkinson relies on three main pieces of evidence in making his claim: (1)

allegations that Wilkinson previously used excessive force against Bonafacio

Juarez (“Juarez”); (2) two newspaper articles detailing various incidents of

officers shooting at vehicles and the government’s response; and (3) the expert

report of Roger Clark.

Turning first to the allegations regarding Juarez, Barkley asserts that

Wilkinson used excessive force when he assaulted Juarez on October 6, 2003,

and that Harris County therefore knew that Wilkinson was prone to using

excessive force and did nothing about it.2 At the time of the alleged assault,

Juarez was under arrest for drunk driving and handcuffed to a bench.

Wilkinson claimed he hit Juarez after Juarez began to kick him. Harris County

cleared Wilkinson of any wrongdoing, and Juarez subsequently pleaded guilty

to attempted assault on a peace officer, although he currently denies those

charges. This single allegation of excessive force is not sufficient evidence to put

Harris County on notice that Wilkinson might need closer supervision or

training, especially in light of the fact that the victim pleaded guilty to

attempting to assault Wilkinson. Cf. Brown v. Bryan County, 219 F.3d 450, 454-

55, 458 (5th Cir. 2000) (noting that deputy’s prior arrests for assault and battery,

resisting arrest, public drunkenness, driving while intoxicated, possession of

false identification, and other crimes indicated a need for further training).

2

Barkley also asserts that Wilkinson used excessive force in shooting another individual

some time after the events of the instant case. We do not consider that shooting as it could not

have informed Harris County’s judgment of Wilkinson at the time of Barkley’s shooting.

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Barkley also presented two articles from the Houston Chronicle that detail

a four-month investigation into the use of force by Harris County deputies and

Houston police officers. The first article noted that officers and deputies were

going against their training by intentionally placing themselves in danger by

stepping in front of vehicles, leading to an unusual number of shootings by

officers. The second article reported that the Harris County Sheriff had adopted

a new policy to further restrict when force could be used when a suspect was

inside a vehicle. We first note that newspaper articles are hearsay and

inadmissible. Roberts v. City of Shreveport, 397 F.3d 287, 295 (5th Cir. 2005)

(stating that newspaper articles are “classic, inadmissible hearsay”). Regardless,

these articles do not evidence a policy or custom of unconstitutional shootings.

Although the authors indicate their belief that many of the shootings were not

justified, there is no evidence that the authors were employing any sort of

constitutional standard. Further, the articles indicate that the officers were

acting “in violation” of their training and that Harris County took steps to

correct the matter as a result of the findings of the reporters. Thus, even were

we to consider the articles as evidence, they do not indicate that Harris County

had a policy or custom of permitting unconstitutional uses of force or that Harris

County was deliberately indifferent to the need to train.

Barkley next relies on the report of his police practices expert Roger Clark

(“Clark”). In his report, Clark opines that Harris County has a custom and

practice of permitting the use of excessive force by its deputies. To reach this

conclusion, Clark states that he reviewed sixty-eight internal affairs files from

Harris County regarding police shootings. His report then lists the name of each

file and marks with an asterisk the ones in which Clark concluded the shooting

was not justified. While Harris County found five of the sixty-eight shootings to

be unjustified, Clark believed forty-two were not justified. Clark, however,

provides no explanation for his conclusions—only asterisks. There is nothing in

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No. 07-20482

the report to suggest Harris County acted improperly other than Clark’s bare

conclusion that numerous shootings were not justified. We do not accept such

conclusory statements as sufficient evidence to overcome summary judgment.

Guile v. United States, 422 F.3d 221, 227 (5th Cir. 2005) (“A claim cannot stand

or fall on the mere ipse dixit of a credentialed witness.” (internal quotation

marks omitted)); Calbillo v. Cavender Oldsmobile, Inc., 288 F.3d 721, 725 (5th

Cir. 2002) (noting that conclusory allegations and unsubstantiated assertions are

insufficient to overcome summary judgment). Thus, Clark’s report is not

sufficient to create a genuine issue of material fact regarding policy or custom.

In order to hold Harris County liable for its lack of training, Barkley was

required to present evidence that Harris County was deliberately indifferent to

the need for more or better training. See City of Canton v. Harris, 489 U.S. 378,

389 (1989). Barkley has not identified any training deficiency. Indeed, there is

no evidence of what training Wilkinson or any other officer received with respect

to excessive force. Similarly, Barkley has not identified any deficiency in Harris

County’s investigation of officer shootings, other than his disagreement with the

conclusions reached by Harris County. Therefore, there is no evidence that

Harris County failed to train Wilkinson or that it used improper methods to

investigate officer shootings.

Barkley bases part of his argument on the theory of ratification that we

used in Grandstaff v. City of Borger, 767 F.2d 161 (5th Cir. 1985), which

concerned allegations that the police shot an innocent man. In Grandstaff, we

upheld a jury verdict against a city based on a custom of reckless disregard for

human life that was prevalent among the officers. Id. at 170-72. There, the

entire night shift of the Borger police department “poured” gunfire into a slow-

moving pick-up truck “without awaiting any hostile act or sound . . . .” Id. at 168

(“They simply saw a target and fired.”). We characterized the events leading to

the shooting as an “incompetent and catastrophic performance” and a “gross . . .

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abuse of the use of deadly weapons . . . .” Id. at 171. We concluded that, because

the officers received no reprimands or discharges from the city following such a

flagrant use of excessive force, there must have been a preexisting disposition

and policy of reckless disregard for life. Id. at 171-72. Barkley urges us to reach

the same result in this case.

Grandstaff, however, has not enjoyed wide application in our circuit.

Snyder v. Trepagnier, 142 F.3d 791, 797 (5th Cir. 1988). We have limited its

ratification theory to “extreme factual situations.” Id. at 798 (refusing to apply

Grandstaff to case in which police shot fleeing suspect in the back); Coon v.

Ledbetter, 780 F.2d 1158, 1161-62 (5th Cir. 1986) (noting that a policymaker may

defend the actions of his employees without incurring liability). The instant

situation is not an extreme factual situation as in Grandstaff, but is more like

Snyder, in which a single officer was involved in shooting a fleeing suspect.

Consequently, we decline to apply the theory used by the court in Grandstaff.

For the foregoing reasons, Barkley has failed to meet his burden of

creating a genuine issue of material fact regarding whether his injuries were

caused by a policy or custom of Harris County. We therefore affirm summary

judgment for Harris County.

III. CONCLUSION

Because Dillard’s is not a state actor and because there is no evidence that

Harris County had a policy or custom that caused Barkley’s injuries, we

AFFIRM the judgment of the district court.

AFFIRMED.

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