Jamieson v. Shaw

E. GRADY JOLLY, Circuit Judge,

dissenting:

Because I cannot accept that the district court abused its discretion in finding that the second amendment to the complaint would be futile, I respectfully dissent. The plaintiffs here, after ample opportunity to examine and correct the deficiencies of the complaint, were nevertheless unable to adequately allege the existence of an official policy or custom as required by the City of Oklahoma v. Tuttle, — U.S. -, 105 S.Ct. 2427 , 85 L.Ed.2d 791 (1985); nor were they able to allege facts, especially such as pertain to malice as required by our decision in Shillingford, that would demonstrate the use of unreasonable force; indeed, under Gamer the facts as alleged in the complaint authorized the police conduct in question here. Although the majority correctly reminds us of the right of the plaintiff to an opportunity to prove his case, we need not be blind to the right of the defendant here — the right not to be put through unnecessary and futile litigation with all its attendant expense that needlessly drains the public purse.

I

In holding that the district court abused its discretion in disregarding the conclusory allegations of the complaint, the majority ignores a host of our cases. Recently, we plainly stated: “We, and other courts, have tightened the application of Rule 8 where the very nature of the litigation compels it. In the now familiar cases invoking 42 U.S.C. § 1983 , we consistently require the claimant to state specific facts, not merely conclusory allegations.” Elliott v. Perez, 751 F.2d 1472, 1479 (5th Cir.1985). The list of cases rejecting the majority’s approach is extensive. Hilliard v. Board of Pardons and Paroles, 759 F.2d 1190, 1193 (5th Cir.1985) (Hill, J. joining) (“To cure the defect in his ... allegation, [the plaintiff] would need to allege facts, not the ‘theoretical foundation’ of the claim.” (emphasis in original)); Arsenaux v. Roberts, 726 F.2d 1022 (5th Cir.1982) (more than conclusory allegations necessary to state a claim under section 1983); Hanson v. Town of Flower Mound, 679 F.2d 497 (5th Cir.1982) (pleader must allege facts, not legal conclusions to state a claim under section 1983); Johnson v. Wells, 566 F.2d 1016 (5th Cir.1978) (in a section 1983 action applicant must allege facts which, if proved, warrant the relief he seeks); Parish v. N.C.A.A., 506 F.2d 1028 (5th Cir.1975) (conclusory allegations no substitute for factual showing of actual discriminatory intent); Cook v. Whiteside, 505 F.2d 32 (5th Cir.1974) (complaint insufficient to state a claim under section 1983 where it failed to allege facts). See also Slotnick v. Staviskey, 560 F.2d 31 (1st Cir.1977) (complaints cannot survive motion to dismiss if they contain conclusory allegations but do not support their claims with references to *1215 material facts) (cited with approval in Sparks v. Duval County Ranch, 604 F.2d 976, 978 (5th Cir.1979) (en banc)). For similar holdings in other circuits, see, e.g., Hurney v. Carver, 602 F.2d 993 (1st Cir.1979); Albany Welfare Rights Org. Day Care Center, Inc. v. Schreck, 463 F.2d 620 (2d Cir.1972), cert. denied, 410 U.S. 944 , 93 S.Ct. 1393 , 35 L.Ed.2d 611 (1973); Rotolo v. Borough of Charleroi, 532 F.2d 920 (3d Cir.1976); Place v. Shepherd, 446 F.2d 1239 (6th Cir.1971); Cohen v. Illinois Institute of Technology, 581 F.2d 658 (7th Cir.1978), ce rt. denied, 439 U.S. 1135 , 99 S.Ct. 1058 , 59 L.Ed.2d 97 (1979); Harley v. Oliver, 539 F.2d 1143 (8th Cir.1976); Uston v. Airport Casino, Inc., 564 F.2d 1216 (9th Cir.1977); Taylor v. Nichols, 558 F.2d 561 (10th Cir.1977).

Moreover, the cases cited by the majority do not support its position that the district court abused its discretion. Chitimacha, Emory and Pan-Islamic all affirm district court denials of leave to amend: “The [district] court can consider many factors in exercising its discretion ‘such as ... futility of the amendment ... ’,” Pan-Islamic, 632 F.2d at 546. Under Dussouy, we are required to defer to the district court if there is any substantial reason to hold that an amendment would be futile. Such substantial reasons clearly exist here.

I want to emphasize that this was a second amended complaint. We are not assessing a hastily drawn statement by lawyers with a legitimate case but too busy to observe technical rules of pleading. Fed.R.Civ.P. 11 should make clear that the district court did not abuse its discretion in implying that the failings of the complaint are not merely technical. Rule 11 now requires “reasonable inquiry” to assure that a complaint be “well grounded in fact ”:

The new language stresses the need for some prefiling inquiry into both the fact and the law____ The standard is one of reasonableness under the circumstanc-es____ This standard is more stringent than the original good-faith formula and is thus expected that a greater range of circumstances will trigger its violation.

Fed.R.Civ.P. 11, 1983 Advisory Committee Note.

It is only reasonable, and surely within the trial court’s discretion regarding a second amendment, to require a plaintiff whose claim depends on a pattern of brutality of public officials to be able to identify one or two such incidents before being allowed to conduct discovery. Public brutality is not, after all, something that can be discovered only in the defendants’ files.

II

Let me demonstrate why it is pellucid to me that the district court should be affirmed and why Holly Springs, Mississippi, should not have to pay tax dollars to defend this case. Tuttle held that proof of a custom or policy of excessive force could not rest on a single incident. Here, no other incident involving injury or threat of injury is alleged even in general terms. The complaint in this respect is therefore inadequate.

The majority holds that a plaintiff may state a claim of excessive force against a city by alleging a single incident together with a summary allegation that the incident resulted from a “policy” or “custom” of failure to train. Addressing the issue of whether a “policy” of “failing to train” could support such a section 1983 action, Tuttle expressed skepticism:

[E]ven assuming that such a “policy” would suffice, it is open to question whether a policymaker’s “gross negligence” in establishing police training practices could establish a “policy” that constitutes a “moving force” behind subsequent unconstitutional conduct, or whether a more conscious decision on the part of the policymaker would be required.

Tuttle, 105 S.Ct. at 2436 n. 7.

Similarly, Languirand, held that “a municipality is not liable under section 1983 for ... failing to train the particular officer in question, in the absence of evidence of at least a pattern of similar incidents in which *1216 citizens were injured or endangered ... or that serious incompetence or misbehavior was ... widespread throughout the police force.” 717 F.2d at 228. After Langui-rand, the specificity required of complaints seeking relief under section 1983 demands more than the sweeping allegations that Holly Springs had “perpetuated a policy and procedure ... which policy was in violation of the United States Constitution Amendment Four” and other such conclu-sory allegations of “policy.”

Nor can allegations that the defendants failed to instruct police personnel not to stop citizens without “probable cause” substitute for a pattern of injury: “The fact that a municipal ‘policy’ might lead to ‘police misconduct’ is hardly sufficient to satisfy Monell’s requirement that the particular policy be the ‘moving force’ behind a constitutional violation.” Tuttle , — U.S. at-n. 8, 105 S.Ct. at 2436 n. 8 (emphasis in original). And, once again, no other incident of “unconstitutional stops” is alleged. Therefore, the claims against those defendants whose liability may only be predicated on official custom and policy, in particular the City of Holly Springs, its chief of police, and the Chief of the Mississippi Highway Patrol, should be dismissed.

Ill

The complaint fails to state a claim under either Garner or Shillingford. Jamieson’s complaint is that the roadblock constituted unreasonable force or, alternatively, that the crash was “proximately caused” by the pre-chase stop. 1 The complaint is quite specific as to the nature of the chase:

On or about July 25, 1982, at approximately 2:25 a.m. on Mississippi Highway 7, approximately 11.4 miles north of Holly Springs, Mississippi ... Jamieson was a guest passenger in a vehicle operated by ... Gammons. [The] police officers pulled their vehicles in behind the vehicle driven by ... Gammons ... [who] started driving at a high rate of speed trying to get away from the ... [officers]. [The officers] knew that ... Gammons was a mental patient 2 and had behaved in this manner before____ [The officers] pursued ... Gammons at a high rate of speed causing ... Gammons to drive at a higher rate of speed, thus endangering the lives of the other passengers in the Gammons vehicle.

The complaint goes on to say that to stop Gammons from speeding on hilly, dark Highway 7, the police set up a roadblock and that “Gammons was unable to see the unlighted patrol car [i.e., the roadblock] as he drove his vehicle over the top of a hill.”

We need only apply Garner to these facts as alleged to see they preclude liability: “Where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force.” Garner, — U.S. at-, 105 S.Ct. at 1701 (emphasis added). Yet setting up a roadblock to stop a speeding car can scarcely be considered “deadly force.”

To challenge the long-standing police practice of setting up roadblocks to stop speeding cars on the theory that the police should have known that a driver would have eventually slowed down, or that the roadblock should have been better lit, cannot be characterized as anything other than “litigation involving inappropriate second-guessing of police officers’ split-second decisions.” Garn er, at -, 105 S.Ct. at 1706 . In recent fourth amendment cases, the Court has repeatedly stressed this point:

A court ... should take care to consider whether the police are acting in a swiftly developing situation, and in such cases the court should not indulge in unrealistic second-guessing____ A creative judge engaged in post hoc evaluation of *1217 police conduct can almost always imagine some alternative means by which the objectives of the police might have been accomplished.

United States v. Sharpe, — U.S.-, 105 S.Ct. 1568, 1576 , 84 L.Ed.2d 605 (1985) (quoted in United States v. Montoya de Hernandez, — U.S.-, 105 S.Ct. 3304 , 87 L.Ed.2d 381 (1985) (reversing circuit court for “second-guessing” law enforcement authorities)). The majority, however, does not even suggest an alternative to setting up a roadblock. Indeed, one respected commentator has written:

It is not uncommon for the police to barricade a road with police cars ... in order to stop a person who has fled from the police at such a high rate of speed that it would be impossible or highly dangerous to try to overtake him. Their authority to do so is unquestioned; it “is inherent in the power and the duties of law enforcement officers if those duties are to be effectively discharged.” Consequently, ... the practice is not constitutionally objectionable.

LaFave, Search and Seizure, Vol. 3 at 145 (omitting cites and footnotes).

If ever a case amounted to second-guessing the police, this, I respectfully suggest, is it.

IV

The plaintiffs do not allege conduct “inspired by malice” and constituting an abuse of power that “shocks the conscience” as required by Shillingford. Shillingford, at 265. The complaint contains no allegation that might support “malice,” or anything like malice. Accordingly, the majority’s reasoning that the issue of “motive” needs to be developed at trial is unsupportable; there is no adequate allegation of motive to be developed. Nor is my conscience shocked by the allegations of the complaint. I, for one at least, am not surprised that police would use a roadblock to stop a speeding car on a hilly, dark, two-lane road in Marshall County, Mississippi, especially when, as the complaint itself alleges, a significant danger to life and property has been created by the speeding car.

V

Therefore, because I am totally unconvinced that the district judge abused his discretion in denying leave to file the second amended complaint, and because I am convinced that further proceedings in this case will lead to a futile result for all parties, I respectfully dissent.

. At oral argument the plaintiffs’ attorney stated, "Yes sir, they [the police] had the probable cause and the right to stop them [the speeding car] at that time, but they still had to use reasonable methods to do it.”

. No further mention is made of Gammons’ mental condition; the complaint does not allege his mental problem was in any way serious.