Davenport v. Rodriguez

• Decision Date: 09 May 2001
• Docket Number: No. CIV. A. G-00-755.,CIV. A. G-00-755.
• Citation: 147 F.Supp.2d 630
• Parties: Patricia DAVENPORT v. Ronald RODRIGUEZ et al.
• Court: U.S. District Court — Southern District of Texas

147 F.Supp.2d 630

Patricia DAVENPORT v. Ronald RODRIGUEZ et al.

No. CIV. A. G-00-755.

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

May 9, 2001.

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Robert Thomas Rice, Rice Vaughan, et al., Angleton, Chad Matthews, Sanes & Matthews, Angela Dione Johnson, Sanes & Matthews, Houston, for Patricia Ann Davenport, plaintiff.

William Scott Helfand, Magenheim Bateman, et al., Houston, Robert L. LeBoeuf, LeBoeuf & Wittenmyer, Angleton, for Ronald Rodriguez, the City of Brazoria, Texas, Tina Stewart, Vernon Stewart, Brazoria County Stewart Food Market, Inc., defendants.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS, OR, IN THE ALTERNATIVE, MOTION FOR A MORE DEFINITE STATEMENT

KENT, District Judge.

Plaintiff Patricia Davenport brings this action against, inter alia, Officer Ronald Rodriguez, the City of Brazoria, and the grocery store where she worked. Plaintiff's claims arise from her arrest for allegedly stealing twenty-five dollars. Now before the Court is Defendants' Motion to Dismiss, or in the Alternative, Motion for a More Definite Statement. For the reasons stated below, Defendants' Motion is GRANTED IN PART and DENIED IN PART.

I. BACKGROUND

Plaintiff was formerly employed with Defendant Stewart Food Market, Inc. ("Stewart Food") as a cashier. If Plaintiff's allegations are believed, the following events transpired. On July 22, 1999, while she was at work, Plaintiff was escorted to an upstairs room of the store by Defendant Tina Stewart. In this room, she was confronted by Defendant Vernon Stewart the owner of Stewart Food, and Police Officer Ronald Rodriguez ("Officer Rodriguez"). Mr. Stewart accused Plaintiff of stealing twenty-five dollars from a cash register and placing it in her pocket. He then stated that he was filing charges against her. At this point, Officer Rodriguez arrested Plaintiff. Plaintiff was handcuffed, "shoved into a patrol car," and taken to the police station where she was photographed, strip searched, and forced to change clothes in public view. She was then held in a cell for two hours before being read her Miranda rights and being allowed to make a phone call. Plaintiff was released an hour later after a detective went to Stewart Food to investigate. The allegedly stolen money was not found on Plaintiffs person. Officer Rodriguez told her upon leaving, however, "you're being released, but still under investigation. My gut feeling is that you are guilty. We are going to investigate you, and I will come to your house and arrest you. We didn't find any money, we don't know what you did with it."

Plaintiff brings an action under 42 U.S.C. § 1983 against Officer Rodriguez and the City of Brazoria ("the City") for alleged constitutional violations. In particular, she alleges that Officer Rodriguez arrested her without probable cause and used excessive force in violation of Plaintiff's Fourth Amendment rights. In addition, Plaintiff alleges that the City is liable for inadequately performing background checks on the officers it employs and having a "get tough" policy of intimidation against the employees of Stewart Food. These policies and customs, Plaintiff contends, caused the constitutional violations. In addition, Plaintiff brings state law claims for negligence and intentional infliction of emotional distress.

Plaintiff further alleges that three individual Defendants, Officer Rodriguez, Vernon Stewart, and Tina Stewart falsely stated to Plaintiff's granddaughter and others that Plaintiff was a thief. Thus, Plaintiff brings a defamation action against these three Defendants, as well as a claim for intentional infliction of emotional distress.

II. ANALYSIS

Pursuant to Fed.R.Civ.P. 12(b)(6), Defendants have moved to dismiss Plaintiff's § 1983 and state law tort claims on the grounds that they fail to state a claim upon which relief can be granted. In the alternative, Defendants have moved pursuant to Fed.R.Civ.P. 12(e) for a more definite statement of the basis of Plaintiff's constitutional claims against Officer Rodriguez.

When considering a motion to dismiss under Fed.R.Civ.P. 12(b)(6), the Court accepts as true all well-pleaded allegations in the complaint, and views them in a light most favorable to the plaintiff. See Malina v. Gonzales, 994 F.2d 1121, 1125 (5th Cir.1993). Unlike a motion for summary judgment, a motion to dismiss should be granted only when it appears without a doubt that the plaintiff can prove no set of facts in support of her claims that would entitle her to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957); Tuchman v. DSC Communications Corp., 14 F.3d 1061, 1067 (5th Cir.1994). The United States Court of Appeals for the Fifth Circuit has noted that dismissal for failure to state a claim is disfavored and will be appropriate only in rare circumstances. Mahone v. Addicks Util. Dist. Of Harris County, 836 F.2d 921, 926 (5th Cir.1988). Finally, the Court notes that recent judicial attempts to impose a "heightened pleading standard" for § 1983 claims against municipalities have been expressly rejected by the Supreme Court. See Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 167, 113 S.Ct 1160, 1163, 122 L.Ed.2d 517 (1993) ("We think it impossible to square the "heightened pleading standard" applied by the Fifth Circuit in this case with the liberal system of "notice pleading" set up by the Federal Rules."). Thus § 1983 claims against municipalities are governed by the standard of Fed.R.Civ.P. 8(a)(2), and Plaintiff need only submit "a short and plain statement of the claim showing the pleader is entitled to relief."

Since Defendants filed their Motion to Dismiss, the Court has given Plaintiff leave to amend her Complaint. Plaintiff has accordingly filed a Third Amended Original Complaint. There is no question that this is now the "live" Complaint, superseding the Second Amended Original Complaint. However, there is some question respecting the precise effect Plaintiff's amendment must have on Defendants' Motion to Dismiss. At least one panel of the Fifth Circuit has stated that a Motion to Dismiss filed in response to an Original Complaint does not address a subsequently filed Amended Complaint. See Dean v. Ford Motor Credit Co., 885 F.2d 300, 302 (5th Cir.1989) (stating that for purposes of preserving an appeal, a Rule 12(b)(6) Motion filed in response to an Original Complaint did not address the amended Complaint). Read by itself, that language would seem to indicate that Defendants' Rule 12(b)(6) Motion is void. However, such an interpretation seems to elevate form over substance. See 6 Charles Alan Wright, Arthur R. Miller, & Mary Kay Kane, Federal Practice & Procedure § 1476 (1990). A more natural interpretation is one that would consider the differences between the Original Complaint and the amended version. To the extent that the defects raised in the Motion to Dismiss remain in the Amended Complaint, a court should simply apply the Motion to that pleading. See Wright & Miller, supra, § 1476 (stating that a court should not require defendants to file a new Motion to Dismiss "simply because an amended pleading was introduced while their motion was pending"). Thus, it becomes necessary to examine each of the claims articulated in Plaintiff's Third Amended Original Complaint in light of the defects in her Second Amended Original Complaint raised by Defendants' Motion to Dismiss.

A. Plaintiff's Claims under § 1983

Section 1983 provides that any person who, under color of state law, deprives another of "any rights, privileges or immunities secured by the Constitution and laws shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress ...." 42 U.S.C. § 1983. "Rather than creating substantive rights, § 1983 simply provides a remedy for the rights that it designates." Johnston v. Harris County Flood Control Dist., 869 F.2d 1565, 1573 (5th Cir.1989).

Before Plaintiff can successfully assert § 1983 as a valid cause of action against Defendants, Plaintiff must first identify one or more specific constitutionally protected rights that have been infringed. See Graham v. Connor, 490 U.S. 386, 394, 109 S.Ct. 1865, 1870, 104 L.Ed.2d 443 (1989).

1. Constitutional Violations

Plaintiff alleges two constitutional violations as the basis of her § 1983 action. First, she claims that she was arrested without probable cause, in violation of her Fourth Amendment rights against unreasonable searches and seizures. Second, she claims that Officer Rodriguez used excessive force in arresting her, also in violation of her Fourth Amendment rights. The Court finds that Plaintiff has stated a claim for false arrest, but not for excessive force.

An individual has a clearly established right to be free from unlawful arrest. See Duckett v. City of Cedar Park, 950 F.2d 272, 278 (5th Cir.1992). An arrest or detention may be unlawful if it is accomplished without due process of law as required by the United States Constitution. See Baker v. McCollan, 443 U.S. 137, 144-45, 99 S.Ct. 2689, 2694-95, 61 L.Ed.2d 433 (1979). Police officers are thus required under the Fourth Amendment to make a determination of probable cause before performing a custodial arrest. See Martin v. Thomas, 973 F.2d 449, 453 (5th Cir.1992); Fields v. City of S. Houston, 922 F.2d 1183, 1189 (5th Cir.1991). An officer has probable cause to arrest if, at the time of the arrest, he had knowledge that would warrant a prudent person's belief that the person arrested had already committed or was committing a crime. See Gladden v. Roach, 864 F.2d 1196, 1199 (5th Cir.1989).

Plaintiff has alleged that Officer Rodriguez lacked probable cause to arrest her. Officer Rodriguez did not witness the alleged criminal behavior and thus presumably made his decision to arrest based on the accusation of Mr....