Arevalo v. City of Farmers Branch

• Decision Date: 20 November 2017
• Docket Number: Civil Action No. 3:16-CV-1540-D
• Parties: EVA AREVALO, INDIVIDUALLY AND AS NEXT FRIEND OF E.R., A MINOR, Plaintiff, v. CITY OF FARMERS BRANCH, TEXAS, et al., Defendants.
• Court: U.S. District Court — Northern District of Texas

EVA AREVALO, INDIVIDUALLY AND AS NEXT FRIEND OF E.R., A MINOR, Plaintiff, v. CITY OF FARMERS BRANCH, TEXAS, et al., Defendants.

Civil Action No. 3:16-CV-1540-D

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION

November 20, 2017

MEMORANDUM OPINION AND ORDER

This is an action under 42 U.S.C. § 1983 by the mother of a teenager shot by an off-duty police officer, seeking relief against defendants City of Farmers Branch, Texas ("Farmers Branch"), its Chief of Police, Sid Fuller ("Chief Fuller"), and Farmers Branch police officer Ken Johnson ("Officer Johnson"). Farmers Branch and Chief Fuller move to dismiss under Fed. R. Civ. P. 12(b)(6) for failure to state a claim on which relief can be granted, presenting the questions whether Farmers Branch is subject to municipal liability and whether plaintiff has overcome Chief Fuller's defense of qualified immunity. For the reasons that follow, the court holds that plaintiff has failed to plausibly plead that Farmers Branch is subject to municipal liability, and it defers a ruling on whether Chief Fuller is entitled to qualified immunity pending plaintiff's filing a Rule 7(a) reply and receipt of supplemental briefing after the reply is filed.

I

Because this case is the subject of a prior memorandum opinion and order, see Arevalo v. City of Farmers Branch, 2017 WL 1153230 (N.D. Tex. Mar. 28, 2017) (Fitzwater, J.) ("Arevalo I"), the court will only recount the background facts and procedural history that are pertinent to this decision.

This is a suit under 42 U.S.C. § 1983 by plaintiff Eva Arevalo ("Arevalo"), individually, and on behalf of her son E___ R ___ ("E.R."),¹ against defendants Framers Branch, Chief Fuller, and Officer Johnson. According to Arevalo's second amended complaint,² Officer Johnson observed E.R. and J___ C___ ("J.C.")³ attempting to burglarize Officer Johnson's personal vehicle in the parking lot of the Brookhaven Apartments. After identifying himself as a police officer, Officer Johnson pursued E.R. and J.C. as they fled in their own vehicle. Officer Johnson succeeded in ramming E.R.'s vehicle from the rear, causing it to spin out and come to a rest near the corner of Spring Valley Road and Marsh Lane. While E.R. was in a defenseless position inside his car, Officer Johnson entered the street and fired 17 shots at E.R. without provocation, hitting him in both the hand and the head.

The second amended complaint alleges that, before being hired as a Farmers Branch police officer, Officer Johnson had been "disciplined on at least three different occasions for excessive force," in addition to receiving two excessive force complaints filed against him during his eight-year stint as an officer with Dallas Area Rapid Transit. 2d Am. Compl. 4. In his capacity as chief of the Farmers Branch Police Department, Chief Fuller hired Officer Johnson with actual knowledge of his prior disciplinary record, and "provided no training to Officer Johnson on the use of deadly force." 2d Am. Compl. 5.

Arevalo initially brought this lawsuit not only against Farmers Branch, Chief Fuller, and Officer Johnson, but against Adara Communities, LLC ("Adara") (the manager of Brookhaven Apartments) and Brookhaven Apartments, LLC ("Brookhaven") (the owner of the Brookhaven Apartments).⁴ Arevalo's suit included federal-law claims under § 1983 against Farmers Branch, Chief Fuller, and Officer Johnson, and state-law negligence claims against Adara and Brookhaven. Officer Johnson, Chief Fuller, and Farmers Branch each moved to dismiss the complaint, and Adara and Brookhaven moved for judgment on the pleadings. In Arevalo I the court denied Officer Johnson's motion to dismiss and allowed Arevalo's § 1983 claims for excessive force to proceed, staying the action against Officer Johnson pending his criminal trial. The court granted, however, Adara and Brookhaven's motion for judgment on the pleadings and Farmers Branch and Chief Fuller's motion to dismiss. The court concluded that Arevalo's § 1983 claims against Farmers Branch must be dismissed because she had failed to allege facts supporting the existence of an official custom or policy that resulted in the violation of E.R.'s constitutional rights. The court also held that Arevalo had failed to allege sufficient facts to state a plausible claim under § 1983 against Chief Fuller for failure to train.

The court granted Arevalo leave to amend her federal-law claims against Farmers Branch and Chief Fuller, however, and she has now filed a second amended complaint. Arevalo reasserts her claims under § 1983 against Farmers Branch and Chief Fuller for violations of E.R.'s Fourth Amendment rights. She alleges that Chief Fuller, individually, and Farmers Branch (through Chief Fuller's actions) were deliberately indifferent to E.R.'s constitutional rights in two ways: first, they hired Officer Johnson despite his history of using excessive force, and, second, Chief Fuller failed to train Officer Johnson in the proper use of deadly force.

Farmers Branch and Chief Fuller now move to dismiss under Rule 12(b)(6), contending that Arevalo has failed in her second amended complaint to state a claim on which relief can be granted. Arevalo opposes the motion.

II

Under Rule 12(b)(6), the court evaluates the pleadings by "accept[ing] 'all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff.'" In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007) (quoting Martin F. Eby Constr. Co. v. Dall. Area Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004)). To survive a motion to dismiss, Arevalo must allege enough facts "to state a claim of relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant[s] [are] liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id.; see also Twombly, 550 U.S. at 555 ("Factual allegations must be enough to raise a right to relief above the speculative level[.]"). "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not 'show[n]'—'that the pleader is entitled to relief.'" Iqbal, 556 U.S. at 679 (quoting Fed. R. Civ. P. 8(a)(2)). Furthermore, under Rule 8(a)(2), a pleading must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Although "the pleading standard Rule 8 announces does not require 'detailed factual allegations,'" it demands more than "'labels and conclusions.'" Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). And "'a formulaic recitation of the elements of a cause of action will not do.'" Id. (quoting Twombly, 550 U.S. at 555).

III

The court first considers Farmers Branch's motion to dismiss Arevalo's failure to train and hiring claims.⁵

A

A municipality is a "person" subject to suit under § 1983 under certain circumstances. See Monell v. Dep't of Soc. Servs. of N.Y., 436 U.S. 658, 690 (1978). Although a municipality cannot be held liable simply on a theory of respondeat superior, id. at 691, it can be held liable if a deprivation of a constitutional right is inflicted pursuant to an official policy or custom, Piotrowski v. City of Houston, 237 F.3d 567, 579 (5th Cir. 2001). Municipal liability requires proof of three elements: "(1) an official policy (or custom), of which (2) a policy maker can be charged with actual or constructive knowledge, and (3) a constitutional violation whose 'moving force' is that policy or custom." Valle v. City of Houston, 613 F.3d 536, 541-42 (5th Cir. 2010) (quoting Pineda v. City of Houston, 291 F.3d 325, 328 (5th Cir. 2002)) (internal quotation marks omitted).

The first element requires that Arevalo adequately plead an official policy or custom. "[A] policy can be shown through evidence of an actual policy, regulation, or decision that is officially adopted and promulgated by lawmakers or others with policymaking authority." Id. at 542 (citing Burge v. St. Tammany Parish, 336 F.3d 363, 369 (5th Cir. 2003)). Although a "single decision by a [policymaker] may, under certain circumstances, constitute a policy for which a municipality may be liable[,] . . . this 'single incident exception' is extremely narrow and gives rise to municipal liability only if the municipal actor is the final policymaker. Id. (citations, brackets and some internal quotation marks omitted). A custom is "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." Piotrowski, 237 F.3d at 579 (quoting Webster v. City of Houston, 735 F.3d 838, 841 (5th Cir. 1984) (en banc) (per curiam)).

To satisfy the second element, Arevalo must adequately plead the identity of a policy maker with "final policymaking authority." Rivera v. Hous. Indep. Sch. Dist., 349 F.3d 244, 247 (5th Cir. 2003) (citing City of St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988)). "A 'policymaker' must be one who takes the place of a governing body in a designated area of city administration." Webster, 735 F.2d at 841 (citing Bennett v. City of Slidell, 728 F.2d 762, 769 (5th Cir. 1984) (en banc)). "City policymakers not only govern conduct; they decide the goals for a particular city function and devise the means of achieving those goals. . . . [T]hey are not supervised except as to the totality of their performance." Bennett, 728 F.2d at 769. "[The court's] analysis must also take into account the difference between final decisionmaking authority and final policymaking authority, a...