Morin v. Moore
| Decision Date | 23 October 2002 |
| Docket Number | No. 01-40752.,01-40752. |
| Citation | 309 F.3d 316 |
| Parties | Dan MORIN, Individually and as Representative of the Estate of Margarita Flores, Deceased, Plaintiff-Appellant, v. Ralph D. MOORE; Joseph Vasquez; Jim Schoepner; City of Harlingen, Defendants-Appellees. Donald Morin; Diana Morin; Jennifer May Gwin; Danny Morin; Ruben Rios, Sr., as next friend of Ruben Rios, a minor; Maria D. Lopez, as next friend of Brian Morin, a minor, Plaintiffs-Appellants, v. Ralph D. Moore; Joseph Vasquez; Jim Schoepner; City of Harlingen, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Roger W. Hughes (argued), Tom Lockhart, Scott Thomas Clark, Adams & Graham, Harlingen, TX, for Ralph D. Moore, Joseph Vasquez, Jim Schoepner and City of Harlingen.
Walter J. Passmore, Passmore, Walker & Twenhafel, McAllen, TX, for Ralph D. Moore and Jim Schoepner.
David Kenneth Sergi (argued), San Marcos, TX, Larry L. Warner, Law Offices of Larry Warner, Brownsville, TX, for Dan Morin.
Appeals from the United States District Court for the Southern District of Texas.
Before DAVIS, DeMOSS and STEWART, Circuit Judges.
Dan Morin, individually and as a representative of the Estate of Margarita Flores (the "Dan Morin plaintiffs"), and Donald Morin, Diana Morin, Jennifer May Gwin, Danny Morin, Ruben Rios, Sr., as next friend of Ruben Rios, and Maria D. Lopez, as next friend of Brian Morin (the "Donald Morin plaintiffs") (collectively, the "Morins"), appeal from the district court's Rule 12(b)(6) dismissal of their 42 U.S.C. § 1983 and state tort law claims. For the reasons set forth below, we AFFIRM in part, REVERSE in part, and REMAND.
The Morins filed separate complaints for damages pursuant to § 1983 against the City of Harlingen, Texas ("the City"), two of its police officers, and its police chief for alleged violations of their Fourth and Fourteenth Amendment rights.1 The Morins alleged that prior to 1994, defendant Officer Joseph Vasquez wrongfully came into possession of an "AK-47" assault rifle with the permission of Police Chief Jim Schoepner during Officer Vasquez's employment with the Harlingen Police Department — the rifle having been given to the police department by a private citizen to be destroyed. In September of 1997, Officer Vasquez allegedly "transferred" or "made available" the weapon to Officer Ralph Moore (collectively with Officer Vasquez, the "officers"). Officer Moore allegedly stored the weapon in his son's, Ernest Moore's ("Ernest's") bedroom. According to the Morins, the officers knew that Ernest was a psychologically unstable drug user that revered the Nazi ideology.
The Morins alleged that on July 7, 1998, Ernest procured the weapon from his bedroom and opened fire on Dan Morin, Margarita Flores, and Delia Morin, killing both Margarita Flores and Delia Morin. Allegedly, Ernest was upset that his ex-girlfriend, Julie Cox, was in a relationship with Dan Morin. The Morins further alleged that the City and Police Chief Schoepner created a dangerous environment and maintained unconstitutional polices and procedures, which ultimately allowed the officers to take possession of the assault rifle, despite their lack of training on use and storage of the weapon.
The Morins filed state law claims for negligent entrustment, ordinary negligence, and misuse of property under section 1.01 of the Texas Tort Claims Act ("TTCA"). The Donald Morin plaintiffs also alleged that Officer Moore breached his duty as a Harlingen police officer by not taking the necessary steps to prevent the commission of the crime at issue.
The defendants filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), as well as on qualified immunity grounds. The magistrate judge issued a report recommending that the complaint be dismissed because the Morins failed to plead a constitutional injury. Specifically, the magistrate judge determined that the Morins failed to state a claim under the Fourth Amendment because there was no allegation that the defendants deliberately directed force toward the Morins.
Regarding the Fourteenth Amendment claim, the magistrate judge noted that the theory had yet to be adopted by the Fifth Circuit. Nevertheless, the magistrate judge concluded that even analyzing the qualified-immunity issue under the theory, the Morins were not denied their due process rights because Officer Vasquez's transfer of the rifle to Officer Moore could not be characterized as a governmental decision within the meaning of the theory. As a result, the magistrate judge determined that the individual defendants were entitled to qualified immunity. The magistrate judge also determined that the City could not be held liable.
Regarding the state-law claims, the magistrate judge dismissed the Morins' negligent entrustment claim because the claim was lacking proof of a positive act, i.e. that Officer Moore gave Ernest the rifle. The magistrate judge further held that Texas law does not impose liability on the police for failing to take action to prevent a crime.
The Dan Morin plaintiffs objected to the magistrate judge's report and recommendation. After conducting a de novo review, the district court adopted the recommendations of the magistrate judge and dismissed the Morins' claims with prejudice. The Donald Morin plaintiffs filed a timely notice of appeal from the portion of the judgment dismissing their § 1983 claims and upholding the qualified-immunity defense. The Dan Morin plaintiffs filed a timely notice of appeal from the district court's order granting the motion to dismiss.
We review a Rule 12(b)(6) dismissal de novo, accepting all well-plead facts as true. Mowbray v. Cameron County, Tex., 274 F.3d 269, 276 (5th Cir.2001). Questions of fact are viewed in the light most favorable to the plaintiffs, and questions of law are reviewed de novo. Id. "Rule 12(b)(6) motions should not be granted unless it appears beyond a doubt that the plaintiff[s] can prove no set of facts in support of [their] claim which would entitle [them] to relief." Castro Romero v. Becken, 256 F.3d 349, 353 (5th Cir.2001) (internal quotations and citations omitted).
The following three issues raised on appeal are: whether the district court erred in (1) determining that the Morins did not state a federal claim against the City under the state-created danger theory, (2) granting the individual defendants qualified immunity, and (3) dismissing the Morins' state-law claims. We now turn to these issues.
The Morins argue that the district court's dismissal of their federal claims against the City was erroneous in light of this Court's decision in McClendon v. City of Columbia, 258 F.3d 432, 436 (5th Cir. 2001) () ("McClendon I"). The Morins also argue that the district court erred in its determination that, even if the state-created danger theory was viable, the plaintiffs did not plead sufficient allegations to support the theory.
Before we can reach the merits of the Morins' claims, we must first address two procedural issues. First, we must determine whether the Dan Morin plaintiff's non-specific objection to the magistrate judge's report and recommendation is sufficient. The City and the officers argue that such a blanket objection is insufficient to preserve an objection. Thus, the City and officers urge us to apply a plain error standard of review, despite the district court's statement that it conducted a de novo review of the entire file.
An issue reviewed de novo by the district court will ordinarily be held to have been properly objected to before it was reviewed. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1429 (5th Cir. 1996) (en banc). The district court in this case conducted a de novo review of the Dan Morin plaintiffs' objections. Therefore, the City and officers' assertion that plain-error review applies is not supported. See also Meister v. Tex. Adjutant Gen's Dep't, 233 F.3d 332, 336 (5th Cir.2000) (). As such, we will apply a de novo standard of review to the Dan Morin plaintiffs' claims.
Despite being warned of the consequences for failing to timely object, the Donald Morin plaintiffs did not file objections, timely or otherwise, to the magistrate judge's report and recommendations. Ordinarily, the failure to file written objections to the magistrate judge's report within ten days of service mandates plain-error review on appeal. Douglass, 79 F.3d at 1429. However, because the district court conducted a de novo review of the objections raised by the Dan Morin plaintiffs, and these objections were equally applicable to the Donald Morin plaintiffs, we will apply a de novo standard of review to the Donald Morin plaintiffs' claims as well.
Second, the Donald Morin plaintiffs argue to this Court that the dismissal of their state-law claims was erroneous despite the fact that this argument was not included in their notice of appeal. The Donald Morin plaintiffs' notice of appeal states that they appealed "from the final judgment and order dismissing Plaintiffs' complaint for failure to state a cause of action based on 42 U.S.C. § 1983 and based on qualified immunity that was entered in this cause on the 16th Day of May, 2001." Federal Rule of Appellate Procedure 3(c)(1)(B) requires that the notice of appeal "designate the judgment, order, or part thereof being appealed." (emphasis added). This Court broadly construes Rule 3(c)'s...
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