Callis v. Sellars

• Decision Date: 27 February 1996
• Docket Number: Civil Action No. H-94-4391.
• Citation: 931 F. Supp. 504
• Parties: Mary CALLIS, Plaintiff, v. Officer Michael K. SELLARS, the City of Houston Chief of Police, Sam Nuchia, Sergeant Michael Fite and Sergeant L.L. Shoemaker, Defendants.
• Court: U.S. District Court — Southern District of Texas

931 F. Supp. 504

Mary CALLIS, Plaintiff, v. Officer Michael K. SELLARS, the City of Houston Chief of Police, Sam Nuchia, Sergeant Michael Fite and Sergeant L.L. Shoemaker, Defendants.

Civil Action No. H-94-4391.

United States District Court, S.D. Texas, Houston Division.

February 27, 1996.

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Ken E. Harper, Houston, TX, for Mary Callis.

Richard H. Cobb, Houston, TX, Robert Louis Cambrice, City of Houston Legal Dept., Houston, TX, for Michael K. Sellars.

Robert Louis Cambrice, City of Houston Legal Dept., Houston, TX, for City of Houston, Sam Nuccia, Martin Fite, L.L. Shoemaker.

MEMORANDUM AND ORDER

ATLAS, District Judge.

Plaintiff Mary Callis ("Callis") has filed this suit against Houston Police Officers Michael K. Sellars ("Sellars"), Martin Fite ("Fite") and L.L. Shoemaker ("Shoemaker"), Houston Police Chief, Sam Nuchia ("Nuchia"), and the City of Houston ("City") pursuant to 42 U.S.C. § 1983, alleging violations of her Fourteenth Amendment rights and pendent state law tort claims. Callis allegedly was raped by Sellars in December 1992, sexually harassed thereafter, and sexually assaulted by him in March 1993 during a police "sting" set up to secure Sellars' arrest. Pending before the Court is Shoemaker's Motion to Dismiss Doc. # 3; Fite's Motion to Dismiss Doc. # 5; Nuchia's Motions to Dismiss Docs. # 7 and 9; the City's Motion to Dismiss Doc. # 11; the City's, Nuchia's, Fite's and Shoemaker's Motion to Stay Discovery Doc. # 29; and the City's, Nuchia's, Fite's and Shoemaker's Motion to Strike Portions of Plaintiff's Memorandum in Opposition to Defendants' Motion to Dismiss Doc. # 38.

I. Factual Background

Plaintiff alleges that, while driving her car on or about December 27, 1992, she was stopped by Sergeant Sellars, who allegedly told her that her vehicles tags were not "looking right," and that she had four outstanding traffic warrants. Plaintiff's Complaint, at 3. Plaintiff further alleges that Sellars asked her if she would be home that evening, and that he later stopped by to discuss the outstanding warrants. Sellars allegedly returned to Plaintiff's home at 1:00 a.m. on December 28, 1992 and, after repeatedly telling her that he did not want her to go to jail for the outstanding warrants, raped her.

Sellars allegedly continued sexually harassing Plaintiff. In March 1993, Callis contacted the police and, in turn, the Internal Affairs Division of the Houston Police Department ("I.A.D."). According to Plaintiff's complaint, Defendant Shoemaker, an I.A.D. sergeant, persuaded Plaintiff that the only way to convict Sellars was to set up a meeting in which Sellars would make admissions while being taped by I.A.D. Although the complaint does not specify how this was arranged, it seems as if Plaintiff contacted Sellars in order to propose a meeting.¹ This meeting was held at Plaintiff's home in March 1993. Surveillance was implemented by Defendants Shoemaker and Fite. Plaintiff seems to allege that Fite and another officer were hidden in Plaintiff's bedroom closet² in order to secure evidence against Sellars. During this so-called "sting" operation, Shoemaker and Fite were only to allow Sellars to make incriminating statements, at which point Fite was to emerge from the closet and arrest Sellars. Plaintiff alleges, however, that Shoemaker and Fite allowed Sellars to make unwanted sexual advances and to sexually assault Plaintiff before they attempted to make an arrest.³

II. Defendants' Motions to Dismiss

A. Nuchia's Motions to Dismiss

Nuchia moves the Court to dismiss pursuant to FED.R.CIV.P. 12(b)(5), arguing that Plaintiff's attempt at service on him was improper as a matter of law under FED. R.CIV.P. 4. Nuchia also moves to dismiss pursuant to FED.R.CIV.P. 12(b)(6), arguing that Plaintiff does not sufficiently plead the existence of a policy or custom which was the moving force behind the deprivation of Plaintiff's constitutional rights. Since Nuchia has been sued only in his official capacity, and the public entity which he allegedly represents (i.e., the City of Houston) has been joined as a defendant, there is no reason why Nuchia should continue to be a defendant in this action. See Brandon v. Holt, 469 U.S. 464, 471-72, 105 S.Ct. 873, 877-78, 83 L.Ed.2d 878 (1985) (a judgment against a police officer in his official capacity is the same as a judgment against the public entity he represents, assuming that the public entity has received notice and an opportunity to respond). The Court therefore grants Nuchia's dismissal and will address Plaintiff's allegations concerning the City's or the Houston Police Department's alleged policies in connection with the City's Motion to Dismiss.

B. Defendants' Rule 12(b)(6) Motions

Defendants Fite, Shoemaker and the City move the Court to dismiss this action pursuant to FED.R.CIV.P. 12(b)(6), arguing that (1) Plaintiff's claims against Defendants in their individual capacities are barred by Defendants' qualified immunity; and (2) the facts alleged by Plaintiff do not establish the City's custom, practice or policy of violating her constitutional rights, as required to prove Plaintiff's claims against Defendants in their official capacities.

Rule 12(b)(6) motions to dismiss should not be granted "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, 102, 2 L.Ed.2d 80 (1957).

III. Legal Analysis

A. Plaintiff's Official Capacity Claims

Plaintiff's Allegations. — Under Monell v. Dep't of Social Servs. of City of N.Y., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), a municipality sued pursuant to Section 1983 cannot be held liable for the actions of its employees on a theory of respondeat superior. However, municipalities may be sued for damages or for declarative and injunctive relief when execution of their policies or customs results in the deprivation of constitutional rights. Id. at 694, 98 S.Ct. at 2037-38; Hang On, Inc. v. City of Arlington, 65 F.3d 1248 (5th Cir.1995). In order to state a claim against a municipal defendant under Section 1983, Plaintiff must sufficiently plead the existence of a policy or custom which was the "moving force" behind the deprivation of her constitutional rights. Monell, 436 U.S. at 694, 98 S.Ct. at 2037-38.⁴

Plaintiff attempts to allege several official policies in connection with the police sting that she claims resulted in the deprivation of her constitutional rights. In her Supplemental Response to Defendants' Motion to Dismiss Doc. # 37 ("Supplemental Response"),⁵ Plaintiff argues that "the Defendant, Sam Nuccia sic ... approved and ratified the policy implemented by the Internal Affairs Officers of utilizing private individuals to further their investigation of criminals and police officers and thereby placing private citizens in danger and then failing to protect them from harm." Supplemental Response, at 7. In Plaintiff's Supplemental Response, she also alleges a "policy implemented by Nuchia of requiring additional proof and/or requiring private citizens to undergo additional requirements in order to file a complaint against a Houston Police Officer as opposed to private citizens."⁶ Id. The City is charged with the same policies, the implementation of which, Plaintiff contends, "resulted in constitutional violations of the Fourteenth Amendment due process clause and equal protection clause and thereby resulted in injury to the Plaintiff...." Id. at 8.

Plaintiff's Due Process Claim. — Plaintiff fails to articulate her due process claim, although she argues that a "special relationship" existed between herself and the City, the Houston Police Department ("HPD"), and I.A.D. She seems to argue that this is a substantive due process claim implicating her liberty interest. As the court explained in Sherrell v. City of Longview, 683 F.Supp. 1108 (E.D.Tex.1987),

plaintiff has pleaded sufficient facts to claim that a `special relationship' may have been created between himself and the defendants municipal police department and individual officers by their acts, thus imposing upon the defendants an affirmative duty to protect the plaintiff from an abusive police officer. Their failure or refusal to protect him, if proven, would violate the plaintiff's Fourteenth Amendment's liberty interest. (citations omitted).

Sherrell, 683 F.Supp. at 1113.

In Sherrell, the plaintiff was a young child who was assaulted and seriously injured by a police officer who had abused the boy on two previous occasions. Although complaints had been made respecting the earlier incidents, the police refused to arrest the officer, allegedly pursuant to a "policy of dealing with police officers involved in domestic violence in a manner other than normal citizens were dealt with, that being, not arresting them and assigning them for counseling." Id. at 1111. In finding that a "special relationship" may have existed between the City, the Police Department and young boy, the court stated:

The state by its acts may ... create a `special relationship' with a specific individual, that imposes upon it a constitutional duty to care for and protect the individual from known harms.... A `special relationship' and hence a duty to protect may exist where the police have knowledge of specific threats of violence to an individual victim by a known attacker, yet refuse to act.

Id. at 1113.

The basis for the due process claim in Sherrell was the repeated refusal of the police to arrest an officer whom the department knew had abused a young boy. Although Plaintiff argues that Sherrell is analogous to her case and, consequently, that the City and the Police Department had a duty to protect her from a known "sexual assaulter and abuser," Plaintiff ignores a crucial distinction between the cases. In Sherrell, the...