Groden v. City of Dall.

• Decision Date: 16 June 2016
• Docket Number: No. 15-10073,15-10073
• Citation: 826 F.3d 280
• Parties: Robert Groden, Plaintiff–Appellant v. City of Dallas, Texas; Sergeant Frank Gorka, Defendants–Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

826 F.3d 280

Robert Groden, Plaintiff–Appellant

v.City of Dallas, Texas; Sergeant Frank Gorka, Defendants–Appellees.

No. 15-10073

United States Court of Appeals, Fifth Circuit.

Filed June 16, 2016

Don Bradley Kizzia, Brown Fox, P.L.L.C., Anthony Thomas Ricciardelli, Kizzia Johnson, P.L.L.C., Dallas, TX, for Plaintiff–Appellant.

Barbara Elaine Rosenberg, Esq., James Carroll Butt, Attorney, James Bickford Pinson, Assistant City Attorney, Jason G. Schuette, Esq., Senior Litigation Attorney, Tatia R. Wilson, City Attorney's Office for the City of Dallas, Dallas, TX, for Defendants–Appellees.

Before KING, JOLLY, and PRADO, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

Robert Groden seeks to establish Monell¹ liability against the city of Dallas for his allegedly unconstitutional arrest. He argues that the city adopted an unconstitutional policy of retaliating against unpopular-but constitutionally-protected speech and that, acting under this policy, Officer Frank Gorka illegally arrested Groden. The district court dismissed Groden's claims against the city of Dallas under Federal Rule of Civil Procedure 12(b)(6), primarily because his complaint did not name the specific municipal policymaker. The Supreme Court has stated more than once, however, that the identity of the policymaker is a question of law. Accordingly, for purposes of Rule 12(b)(6), we hold that a plaintiff is not required to single out the specific policymaker in his complaint; instead, a plaintiff need only plead facts that show that the defendant or defendants acted pursuant to a specific official policy, which was promulgated or ratified by the legally authorized policymaker. Here, the statutorily authorized policymaker is the Dallas city council. Groden pled sufficient facts to show that the city council promulgated or ratified the illegal-arrest policy and thus that this policy was attributable to the city of Dallas. We further conclude that, in all other relevant respects, Groden pled a sufficient complaint to survive a dismissal on the pleadings. Accordingly, we reverse the 12(b)(6) dismissal of Groden's Monell claim.

I.

Groden is the author of several books claiming to reveal the truth behind the assassination of President Kennedy. Groden sells his books and magazines on the grassy knoll area of Dealey Plaza in Dallas. Groden alleges that his sales were legal but nevertheless annoyed a nearby business, the Sixth Floor Museum.

In the summer of 2010, a spokesperson for the city of Dallas announced that the city planned to “crack down” on vendors selling goods on Dealey Plaza. After this announcement, a Dallas police officer, Sergeant Frank Gorka, arrested Groden. The city charged Groden with violating Dallas City Code § 32-10, which prohibits selling merchandise in a park. The city courts, however, determined that Dealey Plaza is not a park and quashed Groden's indictment; the city appealed, and lost.

Groden sued the city of Dallas and Gorka under 42 U.S.C. § 1983. Groden alleged that the city had adopted a policy—which he termed the “crackdown policy”—of arresting vendors in Dealey Plaza despite knowing that no law provided probable cause for the arrests; he further alleged that Gorka arrested him pursuant to this crackdown policy. According to Groden, the city had adopted the crackdown policy to punish him and other vendors for unpopular (but constitutionally protected) speech. The city moved under Federal Rule of Civil Procedure 12(b)(6) to dismiss Groden's claims against the city; the district court granted this motion. The suit against Officer Gorka in his individual capacity, however, proceeded to trial. The jury returned a general verdict for Officer Gorka. After the trial, Groden filed a motion for a new trial, which the district court denied. This appeal followed.

II.

We “review de novo a district court's grant or denial of a Rule 12(b)(6) motion to dismiss, accepting all well-pleaded facts as true and viewing those facts in the light most favorable to the plaintiff.” Hines v. Alldredge , 783 F.3d 197, 200–01 (5th Cir. 2015). Municipalities are not liable for the unconstitutional actions of their employees under respondeat superior. Monell v. Dep't of Soc. Servs. , 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Instead, “[t]o establish municipal liability under § 1983, a plaintiff must show that (1) an official policy (2) promulgated by the municipal policymaker (3) was the moving force behind the violation of a constitutional right.” Peterson v. City of Fort Worth, Tex. , 588 F.3d 838, 847 (5th Cir. 2009).

III.

The district court identified two reasons to dismiss Groden's Monell claims against the city. First, the district court dismissed the complaint because Groden did not plead the identity of the policymaker of the alleged city policy. Second, the district court held that Groden did not plead that the city of Dallas adopted an unconstitutional policy or that the policy was the moving force behind his constitutional violation. Both of these reasons for dismissal, however, are flawed.²

A.

First, the district court held that Groden is required to plead the specific identity of the city policymaker. This holding presents a question of first impression: whether a § 1983 claim against a municipality under Monell must allege the specific identity of the policymaker.³ Following the clear indication of Supreme Court precedent, we hold no: the specific identity of the policymaker is a legal question that need not be pled; the complaint need only allege facts that show an official policy, promulgated or ratified by the policymaker, under which the municipality is said to be liable.⁴

The Supreme Court recently addressed the pleading requirements for § 1983 cases in Johnson v. City of Shelby, Miss. , ––– U.S. ––––, 135 S.Ct. 346, 190 L.Ed.2d 309 (2014) (per curiam). In Johnson, this circuit had held that a § 1983 claim should be dismissed because the plaintiffs' complaint did not state the proper legal theory for the requested relief—the complaint failed to mention § 1983 at all. The Supreme Court reversed, saying that the plaintiffs' complaint “stated simply, concisely, and directly events that, they alleged, entitled them to damages from the city. Having informed the city of the factual basis for their complaint, they were required to do no more to stave off threshold dismissal for want of an adequate statement of their claim.” Id. at 347 (emphasis added). Further, the Supreme Court held that when a complaint contains sufficient “factual allegations,” a court should not grant a motion to dismiss “for imperfect statement of the legal theory supporting the claim asserted.” Id. at 346 (emphasis original).

Furthermore, the Supreme Court has repeatedly emphasized that the identity of the policymaker is a question of law, not of fact—specifically, a question of state law. See, e.g. , City of St. Louis v. Praprotnik , 485 U.S. 112, 124, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988) (“We begin by reiterating that the identification of policymaking officials is a question of state law.”).⁵ By combining Praprotnik 's holding that the identity of the policymaker is a question of state law with Johnson 's holding that courts should not grant motions to dismiss § 1983 cases “for imperfect statement of the legal theory,” we see that courts should not grant motions to dismiss for failing to plead the specific identity of the policymaker. Johnson , 135 S.Ct. at 346. Thus, to survive a motion to dismiss, Groden needed only to plead facts—facts which establish that the challenged policy was promulgated or ratified by the city's policymaker. Groden's complaint did not need to supply an answer to the legal question of the specific identity of the city's policymaker under the relevant statutory scheme.⁶

Our circuit applied this distinction between facts—which must be pled in a complaint and, ultimately, proven to a jury—and law in a recent § 1983 case, Advanced Technology Building Solutions, LLC v. City of Jackson, Mississippi, 817 F.3d 163, 168–69 (5th Cir.2016). In Advanced Technology, the plaintiff alleged that the city of Jackson denied approval to a building project that Advanced Technology wished to pursue. Advanced Technology further alleged that the mayor caused this project to be denied in retaliation for its criticism of the mayor. Advanced Technology contended that the mayor's act of retaliation was itself an unconstitutional policy of the city and thus that the city was liable under § 1983. The case was tried to a jury, which awarded Advanced Technology $600,000.

After the trial, however, the city moved for a judgment as a matter of law. In considering this motion, the district court consulted state law and concluded that the city council—and not the mayor—was the final policymaker; consequently, Advanced Technology was not entitled to recovery unless it showed that the city council had denied the project. Because all of Advanced Technology's evidence related to the mayor and none related to the city council, the district court set aside the jury verdict in favor of the plaintiff and entered judgment for the city.

On appeal, Advanced Technology argued that “[b]ased on the facts presented at trial, the jury reasonably made the conclusion that [the] Mayor [ ] was acting as a final policymaker.” More pointedly, Advanced Technology advocated that the jury should determine the identity of the policymaker. We disagreed. We held that the jury's finding was irrelevant—the only issue was whether Mississippi law established that the mayor was the final policymaker. Under Mississippi law the city council is the final policymaker; thus, we affirmed the judgment as a matter of law. Id. at 167–69 (citing Miss. Code. Ann. § 43-35-33 ).

Advanced Technology thus makes clear that identifying the policymaker is not the role of the jury; instead, the relevant question in Advanced Technology was whether the plaintiff had presented enough evidence for the jury to conclude that...