Babb v. Dorman

• Decision Date: 19 September 1994
• Docket Number: No. 92-1984,92-1984
• Citation: 33 F.3d 472
• Parties: William BABB, Plaintiff-Appellant, v. David Anthony DORMAN, and City of Richardson, Texas, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 472

33 F.3d 472

30 Fed.R.Serv.3d 801

William BABB, Plaintiff-Appellant, v. David Anthony DORMAN, and City of Richardson, Texas,

Defendants-Appellees.

No. 92-1984.

United States Court of Appeals, Fifth Circuit.

Sept. 19, 1994.

Douglas R. Larson, Mesquite, TX, for appellant.

Kevin Edward Oliver, David J. LaBrec, Strasburger & Price, Dallas, TX, for appellees.

Appeal from the United States District Court for the Northern District of Texas.

Before HENDERSON ^*, SMITH and EMILIO M. GARZA, Circuit Judges.

HENDERSON, Circuit Judge:

William Babb appeals from the final judgment entered in the United States District Court for the Northern District of Texas dismissing his 42 U.S.C. Sec. 1983 complaint against David Anthony Dorman and the City of Richardson, Texas. For the reasons stated below, we affirm.

I. BACKGROUND

This case arose out of the circumstances surrounding Babb's arrest and prosecution for public intoxication, in violation of Tex. Penal Code Ann. Sec. 42.08. According to the facts alleged in his amended complaint, ¹ Babb and an intoxicated female passenger were traveling eastbound on East Arapaho Road in the City of Richardson, Texas (the "City") during the early morning hours of May 27, 1990 when the passenger became ill. Feeling that she might vomit at any moment, she suddenly thrust open the door on her side of the moving vehicle. After checking the view from behind and without violating any traffic laws, Babb pulled the automobile to the side of the road to assist her. Shortly thereafter, Dorman, an officer with the City police department, pulled up from behind in his squad car. He checked Babb's driver's license and questioned him about his prior activities that night, including his alcohol consumption. Babb explained that earlier he had been out playing darts and was forced to pull over when his passenger became ill. He also informed Dorman that he had consumed approximately five beers over the course of several hours, but stated that he was not intoxicated and felt fine. Dorman then requested Babb to step out of the automobile to perform several field sobriety tests. When Babb told Dorman that he was unable to effectuate three of the four tests because of back and knee injuries, Dorman placed him under arrest for driving while intoxicated ("DWI").

Babb was then transported to the City jail where he was videotaped performing various tests and answering questions. In addition, he was administered a Breathalyzer test, which registered a blood alcohol content of 0.08, a level below that required under Texas law for presumptive intoxication. ² At that point, Dorman changed the charge from DWI to public intoxication. ³ Babb alleged that Dorman did so pursuant to an unconstitutional policy promulgated by the City whereby persons arrested for DWI are instead charged with public intoxication, without regard to probable cause, whenever a Breathalyzer test reveals a blood alcohol content of less than 0.10. He contended further that, in accordance with another City policy, Dorman caused the destruction of the videotaped interview, which would have established that he was not a danger to himself or others. On January 3, 1991, Babb went to trial for and was acquitted of the charge of public intoxication.

Babb subsequently filed this lawsuit urging that Dorman and the City, acting separately and in concert, willfully, knowingly and purposely deprived him of his constitutional rights of access to favorable evidence and to be free from arrest, detention and malicious prosecution without probable cause, as guaranteed by the Fourth, Fifth, Sixth and Fourteenth Amendments. In addition to these federal causes of action he alleged state common law claims for false arrest, false imprisonment and malicious prosecution.

Aside from the accusation about the destruction of the videotape, Babb advanced in his amended complaint certain legal conclusions in an effort to lend credence to his argument concerning the absence of the elements necessary to sustain the charge of public intoxication. In particular, he claimed that (1) the City jail was not a "public place" as specified in the public intoxication statute ⁴ and (2) the crime of public intoxication requires a greater degree of intoxication to authorize a conviction than that necessary for a charge of DWI. Babb reasoned that the fact that Dorman chose not to charge him with DWI confirmed that his conduct did not rise to the necessary level of danger proscribed by the statute.

Along with their answers to the complaint, the defendants filed a joint motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), asserting that the allegations made therein were insufficient to meet the "heightened" pleading requirement necessary to overcome a defense of qualified immunity available to Dorman. ⁵ In addition, they maintained that the statements charging a conspiracy between Dorman and the City were conclusory and therefore failed to state a claim for relief.

Babb responded to the motion to dismiss, reiterating the factual allegations of his complaint and arguing once again that Dorman's failure to pursue the charge of DWI proved that he was possessed of the normal use of his mental and physical faculties within the meaning of the DWI statute. He extrapolated that, given the retention of these capacities, he could not possibly have been such a danger to himself or others as required by Texas law to support his arrest for public intoxication. He repeated that the City jail where he was charged with the offense was not a "public place" within the meaning of the public intoxication statute and that these factors, considered together, established the lack of probable cause for the charge. With respect to the heightened pleading standard, he alleged

that Defendant DORMAN knew or should have known that the legal standards for the offense of Public Intoxication are greater than that for DWI. Clearly, the complaint demonstrates that Defendant Dorman knew or should have known that if Plaintiff could not be arrested for the offense of DWI, no probable cause would exist to arrest Plaintiff for the offense of Public Intoxication.... Further, the Plaintiff contends that the jail is not a public place as defined by Texas law. Further, Plaintiff's Complaint clearly contends that the arrest for Public Intoxication was accomplished without probable cause.

(R1-49).

The district court granted the defendants' motion and dismissed the claims for damages against Dorman as well as the conspiracy count against the City. Babb then sought leave to amend the complaint and submitted a proposed second amended complaint, which was substantively identical to the amended complaint under scrutiny here, except for an added allegation that Dorman's actions violated clearly established law. (See R1-74, p 19). The district court denied leave to amend, granted the City's motion for summary judgment on the charges respecting its alleged illegal policies and entered final judgment in favor of the defendants. ⁶

II. DISCUSSION

On appeal, Babb urges again that there was no probable cause to charge him with public intoxication and that his pleadings were sufficient to defeat Dorman's qualified immunity defense. He also claims that the district court abused its discretion by denying him leave to file the second amended complaint. He further challenges the dismissal of the conspiracy count, as well as the grant of summary judgment to the City.

Our review of the record reveals that summary judgment in favor of the City was plainly warranted and does not merit further discussion. Although the City concedes on appeal that the district court's reasoning behind its dismissal of the conspiracy count was faulty, with which we agree, ⁷ we nevertheless affirm for the reason that Babb's allegations regarding the conspiracy are conclusory at most. See Lynch v. Cannatella, 810 F.2d 1363, 1369-70 (5th Cir.1987) (bald allegations of conspiracy are insufficient to state a Sec. 1983 claim); Coral Petroleum, Inc. v. Banque Paribas-London, 797 F.2d 1351, 1355 n. 3 (5th Cir.1986) (district court's judgment may be affirmed on any appropriate ground). We address Babb's remaining contentions in turn.

A. Probable cause and sufficiency of the complaint

In Elliott v. Perez, 751 F.2d 1472 (5th Cir.1985), this court announced a heightened pleading standard which must be satisfied whenever there is alleged a defense of qualified immunity. In such cases, the complaint must "state with factual detail and particularity the basis for the claim which necessarily includes why the defendant-official cannot successfully maintain the defense of immunity." Id. at 1473. Before us, Babb takes the position that Elliott is no longer valid authority after Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. ----, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993), in which the Supreme Court struck down the heightened pleading requirement in Sec. 1983 actions against municipalities. See id. at ----, 113 S.Ct. at 1163, 122 L.Ed.2d at 524. In so doing, however, the Court cautioned that "municipalities do not enjoy immunity from suit--either absolute or qualified--under Sec. 1983." Id. at ----, 113 S.Ct. at 1162, 122 L.Ed.2d at 523. The Court, thus, had "no occasion to consider whether ... qualified immunity jurisprudence would require a heightened pleading in cases involving individual government officials." Id. Given this express reservation of the issue, we decline to read into Leatherman any change in the law respecting actions against individual municipal defendants and conclude that we are still bound by Elliott and its progeny in determining whether Babb stated a claim against Dorman.

"Qualified" or "good faith" immunity shields government officials performing discretionary functions from liability "unless their conduct violates 'clearly established statutory or constitutional rights of which a reasonable person would have...