Palmer v. City of San Antonio, Tex., 86-2392

• Decision Date: 23 February 1987
• Docket Number: No. 86-2392,86-2392
• Citation: 810 F.2d 514
• Parties: John David PALMER, Plaintiff-Appellant, v. CITY OF SAN ANTONIO, TEXAS, et al., Defendants-Appellees. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 514

810 F.2d 514

John David PALMER, Plaintiff-Appellant, v. CITY OF SAN ANTONIO, TEXAS, et al., Defendants-Appellees.

No. 86-2392

Summary Calendar.

United States Court of Appeals Fifth Circuit.

Feb. 23, 1987.

Rehearing Denied March 25, 1987.

Arthur G. Guzman, San Antonio, Tex., for plaintiff-appellant.

Steven W. Arronge, Asst. Co. Atty., City of San Antonio, San Antonio, Tex., for defendants-appellees.

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

Before CLARK, Chief Judge, GARWOOD and HILL, Circuit Judges.

ROBERT MADDEN HILL, Circuit Judge:

In this action, John David Palmer (Palmer) appeals from the order of the district court dismissing his action under 42 U.S.C. Sec. 1983. We affirm the district court's dismissal of the city of San Antonio but remand for consideration of Palmer's claim against defendant Williamson in his individual capacity.

I.

A dismissal for failure to state a claim upon which relief may be granted cannot be upheld "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957). In reviewing such a dismissal, we must examine only the pleadings, accept the factual averments as true, and view them in the light most favorable to the plaintiff. Rankin v. City of Wichita Falls, Texas, 762 F.2d 444, 446 (5th Cir.1985). We set out the facts of the case using these principles.

On July 17, 1983, Palmer was driving an automobile with a passenger in Converse, Texas, when officers Michael Williamson (Williamson) and Harold Bellamy (Bellamy) of the San Antonio police department attempted to stop Palmer's automobile for allegedly disrupting and endangering the neighborhood by squealing tire noise and speeding. Williamson and Bellamy were both off duty at the time in question. Williamson, dressed in a bathing suit and carrying a pistol, jumped into the street in front of Palmer's automobile. Ballamy remained off the street. When Palmer tried to get away, Williamson tried to grab him through the window of the automobile while pointing his pistol at him. As Palmer left the scene in his automobile, Williamson fired his pistol at Palmer and hit the left side of Palmer's automobile.

Palmer stopped his automobile about a mile later in order to inspect it. As he started to return to the scene to find out who had shot at him, a truck suddenly blocked his automobile. Apparently, Williamson had commandeered a truck to follow Palmer's automobile. With his gun drawn, Williamson then pulled Palmer from the automobile. Palmer was arrested by the city of Converse police and charged with public intoxication and assault with a motor vehicle. As Palmer was 16 years old he was tried in Juvenile Court. He was convicted of engaging in delinquent conduct, but that judgment was reversed on appeal.

Subsequently, Palmer filed a complaint in federal court under 42 U.S.C. Sec. 1983 ¹ against the city of San Antonio and police officers Williamson and Bellamy alleging a violation of his constitutional rights. The district court dismissed the complaint on the basis that Palmer had only sued the police officers in their official capacity and that Palmer had not alleged any policy or custom of the city of San Antonio that had caused him to be deprived of a federal or constitutional right. Palmer subsequently filed this appeal.

II.

A.

In his amended complaint, Palmer alleged that:

The Defendant police officers of the Defendant CITY OF SAN ANTONIO, TEXAS, engaged in the following practices, so common and well settled, of using unnecessary physical force when arresting persons, and of unauthorized and improper discharge of firearms; that the Defendant CITY OF SAN ANTONIO, TEXAS, knew or should have known of the conduct of their police officers, yet with deliberate indifference and gross negligence failed to provide proper training to its officers, and/or take disciplinary measures; and that the Defendant CITY OF SAN ANTONIO, TEXAS, impliedly or tacitly authorized, approved or encouraged such conduct of its police officers.

In Webster v. City of Houston, 735 F.2d 838, 841 (5th Cir.1984) (en banc), we established a standard to govern the imposition of municipal liability:

A municipality is liable under Sec. 1983 for a deprivation of rights protected by the Constitution or federal laws that is inflicted pursuant to official policy.

Official policy is:

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 Sec. 1983 unless they execute official policy as above defined.

More specifically, Palmer must identify "(1) a policy (2) of the city's policymaker (3) that caused (4) the plaintiff to be subjected to a deprivation of constitutional right." Grandstaff v. City of Borger, Texas, 767 F.2d 161, 169 (5th Cir.1985). Similarly, an isolated incident is not sufficient to show that a custom exists. As we stated in Bennett v. City of Slidell, 728 F.2d 762, 768 n. 3 (5th Cir.1984) (en banc), cert. denied, 472 U.S. 1016, 105 S.Ct. 3476, 87 L.Ed.2d 612 (1985): "Isolated violations are not the persistent, often repeated, constant violations that constitute custom and policy." The Supreme Court has elaborated on the causal requirement by holding that the connection must be more than de facto; the policy or custom must be "the moving force of the constitutional violation." Monell v. New York City Dept. of Social Services, 436 U.S. 658, 694, 98 S.Ct. 2018, 2037, 56 L.Ed.2d 611 (1978). See also City of Oklahoma City v. Tuttle, 471 U.S. 808, 105 S.Ct. 2427, 2433-34, 85 L.Ed.2d 791 (1985) (plurality opinion).

Palmer alleges that the actions of Williamson and Bellamy reflect a policy of inadequate training on the part of the city of San Antonio, that the city policy caused the police officers to violate his rights, and thus that the city is liable under section 1983. In Grandstaff, however, we noted that

[a]n "inadequate" training program alone is not ordinarily the moving force behind an injured plaintiff's harm, because the police officer who injures the plaintiff does not rely upon inadequate training as tacit approval of his conduct. It is not enough that the city could, but does not, reduce the risk of harm to the plaintiff.

767 F.2d at 169. If, however, the police officers know at the time they act that the use of excessive force when arresting persons will meet with the approval of city policymakers, then the causation requirement has been met. Grandstaff, 767 F.2d at 169.

We have also consistently required a section 1983 plaintiff to state specific facts and not merely conclusory allegations. Elliott v. Perez, 751 F.2d 1472, 1479 & n. 20 (5th Cir.1985) (citing cases). While it might be possible that a basis for municipal liability exists in this case, Palmer states no facts in his complaint to support his assertion that San Antonio authorized and approved the practice of its police officers using excessive force when making arrests or that such a well settled practice of doing so existed. Although Palmer has already amended his complaint once, the complaint still fails to meet the requirements of Elliott. As we have made clear, the assertion of a single incident is not sufficient to show that a policy or custom exists on the part of a municipality. Slidell, 728 F.2d at 768 n. 3. Palmer failed to allege that there are prior incidents which, if taken as true, would reveal the existence of an unconstitutional custom on the part of San Antonio. Accordingly, we affirm the district court's order of dismissal with respect to the city of San Antonio.

B.

After finding that Palmer failed to specify a policy or custom of San Antonio which would make the city liable under section 1983, the district court dismissed the complaint. Although admittedly Palmer's complaint was not as artfully drafted as it should have been, we believe that the district court erred in not also evaluating Palmer's complaint as a section 1983 action against Williamson and Bellamy individually.

Paragraph VII of Palmer's amended complaint states:

Each and all of the acts of the Defendants alleged herein were done by the Defendants, and each of them, not as individuals, but under the color and pretense of the statutes, ordinances, regulations, custom and usage of the State of Texas, the City of San Antonio, and the County of Bexar, and under the authority of their office as policemen of such city.

The district court interpreted this paragraph as alleging acts by the defendant officers in their official capacities as employees of the city of San Antonio only, thus requiring a specific allegation of a constitutionally deficient policy or custom of the city. It apparently reached this conclusion because paragraph VII of the complaint states that the acts were done "... not as individuals ...". The difficulty with the district court's interpretation is that an examination of Palmer's complaint as a whole and other papers filed with the district court and this court indicate that Palmer's...