Leatherman v. TARRANT COUNTY NARCOTICS I. & C. UN.

• Decision Date: 22 January 1991
• Docket Number: Civ. A. No. 4-89-842-A.
• Parties: Charlene LEATHERMAN, Kenneth Leatherman, as Individuals and Next Friends of Travis Leatherman; Gerald Andert, Kevin Lealos, Jerri Lealos, as Individuals and Next Friends of Shane Lealos; Travor Lealos, Pat Lealos, Donald Andert, Lucy Andert, Plaintiffs, v. TARRANT COUNTY NARCOTICS INTELLIGENCE AND COORDINATION UNIT, Tarrant County, Texas, Tim Curry, in His Official Capacity as Director of Tarrant County Narcotics and Coordination Unit, Don Carpenter, City of Lake Worth, Texas, City of Grapevine, Texas, Defendants.
• Court: U.S. District Court — Northern District of Texas

755 F. Supp. 726

Charlene LEATHERMAN, Kenneth Leatherman, as Individuals and Next Friends of Travis Leatherman; Gerald Andert, Kevin Lealos, Jerri Lealos, as Individuals and Next Friends of Shane Lealos; Travor Lealos, Pat Lealos, Donald Andert, Lucy Andert, Plaintiffs, v. TARRANT COUNTY NARCOTICS INTELLIGENCE AND COORDINATION UNIT, Tarrant County, Texas, Tim Curry, in His Official Capacity as Director of Tarrant County Narcotics and Coordination Unit, Don Carpenter, City of Lake Worth, Texas, City of Grapevine, Texas, Defendants.

Civ. A. No. 4-89-842-A.

United States District Court, N.D. Texas, Fort Worth Division.

January 22, 1991.

William W. Harris, Bedford, Tex., Don Gladden, Fort Worth, Tex., for plaintiffs.

Van Thompson, Jr., Barrie Howard, Asst. Dist. Atty., Fort Worth, Tex., for Tarrant County Narcotics Intelligence and Coordination Unit.

Rex McEntire, Fort Worth, Tex., for City of Lake Worth Tex.

Paul V. Enriquez, Dallas, Tex., for City of Grapevine, Tex.

MEMORANDUM OPINION AND ORDER

McBRYDE, District Judge.

Came on to be considered (1) the motions of defendants The Tarrant County Narcotics Intelligence and Coordination Unit ("TCNICU"); Tim Curry ("Curry"), in his official capacity as Director of TCNICU; Tarrant County, Texas ("Tarrant"); and Don Carpenter ("Carpenter"), in his official capacity as Sheriff of Tarrant, to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) and for summary judgment pursuant to Fed.R. Civ.P. 56, and (2) the motion of defendant City of Grapevine, Texas ("Grapevine") to dismiss pursuant to Rule 12(b)(6). The court has determined that the dismissals sought by such motions should be granted and that the claims against the remaining defendant, City of Lake Worth, Texas, ("Lake Worth") should also be dismissed.

Nature and History of the Litigation

This § 1983¹ action was removed to this court from a state district court. When removed, it was an action by Charlene Leatherman and Kenneth Leatherman, as individuals and next friends of Travis Leatherman, as plaintiffs (the "Leatherman plaintiffs"), against TCNICU and Tarrant, as defendants.

Shortly after the removal occurred, TCNICU and Tarrant filed a motion to dismiss pursuant to Rule 12(b)(6) and a motion for summary judgment pursuant to Rule 56. The court, acting through Judge David O. Belew, Jr., granted the requested dismissal by order signed February 1, 1990. Plaintiffs moved to vacate the dismissal, which the court, acting through Judge Belew, did by order signed March 8, 1990. The order vacating the dismissal directed the Leatherman plaintiffs to amend their complaint within twenty (20) days. Their amended complaint was filed March 23, 1990. Not only did it restate the claims of the Leatherman plaintiffs, but it added new plaintiffs, who asserted causes of action based on a set of facts that was separate and distinct from the set of facts upon which the Leatherman plaintiffs were basing their claims and a new group of defendants.² The added plaintiffs were Gerald Andert, Donald Andert, Lucy Andert, Pat Lealos and Kevin and Jerri Lealos, individually and in their capacities as next friends of Shane and Travor Lealos, minors (the "Andert/Lealos plaintiffs"); and, the newly named defendants were Curry, in his official capacity, Carpenter, in his official capacity, Grapevine and Lake Worth.

The motions that are now before the court were filed in response to the allegations of the amended complaint. Lake Worth has answered, but has not moved for dismissal.

The claims of the Leatherman plaintiffs are predicated on things that happened at the time of a putative drug raid on the Leatherman home. Allegations of the amended complaint assert as to the Leathermans that: (1) in May 1989 the Leatherman home was entered and searched by law enforcement officers employed by and under the control of TCNICU, Tarrant and Lake Worth; (2) during the course of the search two dogs belonging to the Leathermans were shot to death; (3) the officers threatened to shoot two of the Leathermans; (4) after the officers realized that none of the items described in the warrant pursuant to which they entered the Leatherman home were present, the officers frolicked in the driveway and yard of the residence; and (5) the conduct of the law enforcement officers deprived the Leathermans of rights they have under the fourth and fourteenth amendments of the United States Constitution.

An earlier, unrelated, putative drug raid gave rise to the claims of the Andert/Lealos plaintiffs. The allegations in reference to those plaintiffs are that: (1) in January 1989 law enforcement officers of Grapevine and TCNICU broke into the Lealos home under authority of a search warrant; (2) one of the officers clubbed Gerald Andert in the head; (3) the officers held the Andert and Lealos family members at gunpoint, causing them to fear for their lives, and forced them to lie face down on the floor, and, in the course of doing so, the officers shouted obscenities and threats at family members who made requests for identification of the intruders; (4) after having discovered from a search of the Lealos residence no items that could form the basis of criminal prosecution, the officers left the premises without an apology; and (5) the conduct of the law enforcement officers deprived the Andert/Lealos plaintiffs of their fourth and fourteenth amendment rights.

None of the law enforcement officers who participated in the activities described in the amended complaint are named as defendants. The sole defendants are TCNICU, Tarrant, Curry, in his official capacity, Carpenter, in his official capacity, Grapevine, and Lake Worth.

Allegations Directed Against Curry and Carpenter:

No allegations are made against Curry or Carpenter in a non-official capacity.

The allegations against Curry are that, at pertinent times, he, as director of TCNICU, was vested with official authority and responsibility for establishing policies for and supervising the day-to-day operations and practices of law enforcement personnel participating in and compromising TCNICU; that TCNICU acted by and through "its official policymaker", Curry, in respect to policies and practices of TCNICU having to do with training of its officers; and, that a custom and policy of TCNICU of which plaintiffs complain was so persistent and widespread that Curry, as the official policymaker of TCNICU, either knew or should have known of its existence.

The allegations against Carpenter are virtually identical to those against Curry except that the complaint against Carpenter is in his capacity as Sheriff of Tarrant, and the allegations against him are in reference to the conduct of Tarrant and are based on his alleged capacity as the "official policymaker" of Tarrant.

No recovery is sought by plaintiffs from Curry or Carpenter.

The Theories of Recovery Alleged Against the Public Entity Defendants:

After alleging acts of allegedly wrongful conduct on the part of the law enforcement officers who engaged in the raids of which plaintiffs complain, plaintiffs seek to impose responsibility on the public entities by boilerplate, conclusionary allegations pertaining, first, as to all public entity defendants, to adequacy of training of the law enforcement officers and, second, as to TCNICU, to an alleged custom and practice to prepare affidavits and cause the issuance and execution of search warrants predicated on no more than the detection of odors associated with illegal drug manufacturing.

The Threshold Reason why Dismissal Should be made as to Curry and Carpenter

In Brandon v. Holt, 469 U.S. 464, 105 S.Ct. 873, 83 L.Ed.2d 878 (1985), the Supreme Court made clear that an action brought under § 1983 against a police official in his official capacity is tantamount to an action against the public entity for which the official is alleged to act. Individual liability of the official cannot flow from a suit against him in his official capacity. A judgment against him in that 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. Brandon, 469 U.S. at 471-72, 105 S.Ct. at 877-78.

Inasmuch as Curry and Carpenter are sued only in their respective official capacities, and the respective entities they are alleged to represent are joined as party defendants, there is no reason why Curry or Carpenter should continue to be defendants in this action. The court is ordering their dismissal. There appear to be other reasons why Curry and Carpenter should be dismissed from the suit, but the court does not need to go beyond this threshold reason.

The Inspirations for Plaintiffs' "Inadequate Training" and "Custom and Practice" Allegations

The inadequate training allegations are inspired by the holding of the Supreme Court in City of Canton v. Harris, 489 U.S. 378, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989). Plaintiffs allege, in a conclusionary way, the elements of a § 1983 inadequate training cause of action, as defined in City of Canton, against each of the public entity defendants.

Plaintiffs' "custom and practice" allegations related to the obtaining of search warrants on the basis of nothing more than detection of odors associated with illegal drug manufacturing have their genesis in the Supreme Court's Monell v. New York City Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), opinion. Again, plaintiffs have used in a conclusionary way the words that speak the cause of action defined by the Supreme Court.

Particularity Required in a Pleading that Purports to Assert a § 1983 Action Against a Public Entity

The Fifth Circuit repeatedly has held that district courts should hold plaintiffs in § 1983 actions such as this to a high degree of particularity in their pleadings. See Rodriguez v. Avita, 871 F.2d 552 (5th Cir.1989); Palmer v. City of San Antonio, Texas, 810 F.2d 514 (5th Cir.1987); Elliott v. Perez,...