Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit

• Decision Date: 28 February 1992
• Docket Number: No. 91-1215,91-1215
• Citation: 954 F.2d 1054
• Parties: Charlene LEATHERMAN, et al., Plaintiffs-Appellants, v. TARRANT COUNTY NARCOTICS INTELLIGENCE AND COORDINATION UNIT, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1054

954 F.2d 1054

22 Fed.R.Serv.3d 545

Charlene LEATHERMAN, et al., Plaintiffs-Appellants, v. TARRANT COUNTY NARCOTICS INTELLIGENCE AND COORDINATION UNIT et al., Defendants-Appellees.

No. 91-1215.

United States Court of Appeals Fifth Circuit.

Feb. 28, 1992.

Richard Gladden, Don Gladden, Fort Worth, Tex., for plaintiffs-appellants.

Van Thompson, Jr., Dist. Atty., Fort Worth, Tex., for Tarrant County, et al.

Wayne K. Olson, Rex McEntire, Fort Worth, Tex., for City of Lake Worth, Tex.

Kevin Keith, Dallas, Tex., for City of Grapevine, Tex.

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

Before GOLDBERG, SMITH, and DUHE, Circuit Judges.

GOLDBERG, Circuit Judge:

After police shot and killed their two dogs during the execution of a search warrant, plaintiffs brought this section 1983 action against the municipal defendants employing the police officers involved. They alleged that the municipalities had failed to adequately train their officers, and that such failure amounted to a municipal policy. The district court, 755 F.Supp. 726 (N.D.Tex.1991), dismissed the complaint because it did not satisfy this circuit's "heightened pleading requirement." Under the heightened pleading standard, a complaint must allege with particularity all material facts establishing a plaintiff's right of recovery, including "detailed facts supporting the contention that [a] plea of immunity cannot be sustained," Elliott v. Perez, 751 F.2d 1472, 1482 (5th Cir.1985), and, in cases like this one, facts that support the requisite allegation that the municipality engaged in a policy or custom for which it can be held responsible. Palmer v. City of San Antonio, 810 F.2d 514, 517 (5th Cir.1987). Because plaintiffs complaint does not satisfy the heightened pleading requirement, we affirm.

Dog Day Afternoon

This civil rights case arose out of two separate incidents involving the execution of search warrants by law enforcement officers with the Tarrant County Narcotics Intelligence and Coordination Unit. One incident involved Charlene Leatherman, her son Travis, and her two dogs, Shakespeare and Ninja. Ms. Leatherman and Travis were driving in Fort Worth when they were suddenly stopped by police cars. Police officers surrounded the two of them, shouting instructions and threatening to shoot them. The officers informed Ms. Leatherman that other law enforcement officers were in the process of searching her residence. The officers also informed her that the search team had shot and killed their two dogs. Ms. Leatherman and Travis returned to their home to find Shakespeare lying dead some twenty-five feet from the front door. He had been shot three times, once in the stomach, once in the leg, and once in the head. Ninja was lying in a pool of blood on the bed in the master bedroom. He had been shot in the head at close range, evidently with a shotgun, and brain matter was splattered across the bed, against the wall, and on the floor around the bed. The officers found nothing in the home relevant to their investigation. Rather than departing with dispatch, they proceeded to lounge on the front lawn of the Leatherman home for over an hour, drinking, smoking, talking, and laughing, apparently celebrating their seemingly unbridled power.

The other incident alleged in plaintiffs' amended complaint involved a police raid of the home of Gerald Andert pursuant to a search warrant. The warrant was issued on the basis that police officers had smelled odors associated with the manufacture of amphetamines emanating from the Andert home. At the time of the raid, Andert, a sixty-four year old grandfather, was at home with his family mourning the death of his wife; she had died after a three year battle with cancer. Without knocking or identifying themselves, the officers burst into the home and, without provocation, began beating Andert. First, an unidentified officer knocked him backwards. When Andert turned, he was greeted by two swift blows to the head inflicted by a club, presumably of the billy-style. His head wound would require eleven stitches. Other officers, in the meantime, shouted obscenities at the family members, who were still unaware of the intruders' identities. At gun point, the officers forced the family members to lie face down on the floor. The officers did not relent: they continued to insult the residents and threatened to harm them. After searching the residence for one and one-half hours and finding nothing in the residence related to narcotics activity, the officers finally left.

Plaintiffs sued the Tarrant County Narcotics Intelligence and Coordination Unit ("TCNICU"), Tim Curry (in his official capacity as director of that unit), Tarrant County, Don Carpenter (sheriff of Tarrant County), the City of Lake Worth, Texas, and the City of Grapevine, Texas, in connection with these two incidents. Their amended complaint ¹ alleged generally that the municipalities failed to formulate and implement an adequate policy to train its officers on the proper manner to execute search warrants and respond when confronted by family dogs. The allegations were of the "boilerplate" variety, alleging no underlying facts other than the events described above to support the assertions that the municipalities had adopted policies, customs, and practices condoning the conduct of the officers involved. ² The complaint did not name any of the officers in their individual capacities as defendants. ³

TCNICU, Tim Curry, and Don Carpenter moved the district court to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(6), or in the alternative, to enter summary judgment in their favor pursuant to Fed.R.Civ.P. 56. They argued first that the complaint did not adequately allege facts under this circuit's heightened pleading standard establishing that the municipality adopted a policy or custom countenancing the police conduct or that its failure to train amounted to deliberate indifference to the rights of the plaintiffs. Alternatively, the movants sought summary judgment, arguing that the evidence would fall short of establishing the necessary elements of municipal liability.

The district court granted the motion and dismissed all of plaintiffs' claims against all of the defendants, movants and nonmovants alike. The district court held that the complaint did not satisfy the heightened pleading standard, and that in any event, the evidence in the record demonstrated that all defendants were entitled to summary judgment as a matter of law. On appeal, plaintiffs urge this court to abandon the heightened pleading requirement, apparently conceding that their complaint does not satisfy that standard. Putting aside any pleading deficiencies, they also challenge the propriety of summary judgment. Finally, they contend that the district court's sua sponte dismissal of their claims against the nonmovants, defendants City of Grapevine and City of Lake Worth, was premature because the district court did not provide them with notice that it was contemplating dismissing their claims against those nonmoving defendants.

All Bark, No Bite

In Elliott v. Perez, 751 F.2d 1472 (5th Cir.1985), this circuit adopted the heightened pleading requirement for cases against state actors in their individual capacities. Reasoning that the doctrine of immunity should accord the defendant-official not only immunity from liability, but also immunity from defending against the lawsuit, id. at 1477-78 (citing Harlow v. Fitzgerald, 457 U.S. 800, 816-17, 102 S.Ct. 2727, 2737-38, 73 L.Ed.2d 396 (1982)), the Elliott court held that:

In cases against government officials involving the likely defense of qualified immunity we require of trial judges that they demand that the plaintiff's complaint 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.

Since Elliott, this circuit has, without fail, applied the heightened pleading requirement in cases in which the defendant-official can raise the immunity defense. E.g., Jacquez v. Procunier, 801 F.2d 789, 791-92 (5th Cir.1986); Geter v. Fortenberry, 849 F.2d 1550, 1553-54 (5th Cir.1988); Streetman v. Jordan, 918 F.2d 555, 557 (5th Cir.1990); Vinson v. Heckmann, 940 F.2d 114, 116 (5th Cir.1991); Husband v. Bryan, 946 F.2d 27, 30 (5th Cir.1991). We have written that "pleadings, replete with ... conclusory statements, do not defeat the officers' qualified immunity defense." Streetman, 918 F.2d at 557. Other circuits have similarly applied the heightened pleading requirement. For a collection of cases, see Schwartz and Kirklin, Section 1983 Litigation: Claims, Defenses and Fees, Vol. I, sec. 1.6 n. 106 (1991).

In Palmer v. City of San Antonio, 810 F.2d 514, 516-17 (5th Cir.1987), a panel of this court extended the heightened pleading requirement into the municipal liability context. The court assumed, sub silentio, that the heightened pleading requirement logically applied not only in cases against defendant-officials, but in all section 1983 cases, including cases brought against a municipality. The Palmer court did not explain why the heightened pleading requirement should be extended to defendant-municipalities, considering that municipalities cannot claim the immunity defense. See Owen v. City of Independence, Mo., 445 U.S. 622, 650, 100 S.Ct. 1398, 1415, 63 L.Ed.2d 673 (1980) (rejecting "a construction of section 1983 that would accord municipalities a qualified immunity for their good-faith constitutional violation"). A later panel of this court suggested that:

[i]n view of the enormous expense involved today in litigation, ... the heavy cost of responding to even a baseless legal action, and of Rule 11's new language requiring reasonable inquiry into the facts of the case by an attorney before he brings an action, applying the stated rule to all section 1983 actio...