Rios v. City of Del Rio, Tex.

• Decision Date: 27 March 2006
• Docket Number: No. 04-50774.,04-50774.
• Citation: 444 F.3d 417
• Parties: Ricardo RIOS, II; Marisela Rios, Individually and as next friend of their minor children, Ricardo Rios III, Laura Yvette Rios and Ivn Alejandro Rios, Plaintiffs-Appellees, v. The CITY OF DEL RIO, TEXAS; et al., Defendants, Wesley Wilson; Manuel Herrera, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

444 F.3d 417

Ricardo RIOS, II; Marisela Rios, Individually and as next friend of their minor children, Ricardo Rios III, Laura Yvette Rios and Ivn Alejandro Rios, Plaintiffs-Appellees, v. The CITY OF DEL RIO, TEXAS; et al., Defendants, Wesley Wilson; Manuel Herrera, Defendants-Appellants.

No. 04-50774.

United States Court of Appeals, Fifth Circuit.

March 27, 2006.

Broadus A. Spivey (argued), Yii-Chwen (Francis) Pan, Spivey & Ainsworth, Austin, TX, Raul A. Rios, The Rios Law Firm, San Antonio, TX, for Plaintiffs-Appellees.

Patrick C. Bernal (argued), Alan Troy Ozuna, Denton, Navarro, Rocha & Bernal, San Antonio, TX, for Defendants-Appellants.

Appeal from the United States District Court for the Western District of Texas.

Before GARWOOD, SMITH and DeMOSS, Circuit Judges.

GARWOOD, Circuit Judge:

This is an appeal from the denial of a motion to dismiss on the basis of qualified immunity.

Ricardo Rios II (Rios), joined by his wife and minor children, filed this suit in November 2003 against the City of Del Rio, Texas, its Chief of Police Manuel Herrera (Herrera), and its police officer Wesley Wilson (Wilson), seeking to recover, under 42 U.S.C. § 1983 and state law, damages for personal injuries sustained when, on the evening of June 30, 2002, Rios, then on duty as a U.S. Customs Enforcement Officer at the Del Rio Port of Entry, was struck by a City Police Department vehicle being driven by an escaping City prisoner, Reymundo Avalos (Avalos). The defendants jointly answered and filed a Rule 12(b)(6) motion to dismiss, Wilson and Herrera claiming qualified immunity. Following denial of the motion in July 2004, Wilson and Herrera timely brought this interlocutory appeal under Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985).¹

The complaint asserts that "Mr. Rios was subjected to negligence, injury, gross misconduct and damages from the deadly use of force in violation of rights guaranteed to him by the Fourth and Fourteenth Amendments." It alleges that at all relevant times Wilson and Herrera were, respectively, City of Laredo police officer and Chief of Police, acting within the course and scope of their employment, and — under the heading "FACTS" — the following:

"4.2 On June 30, 2002, Mr. Rios was thirty-six years old and he was on-duty as a U.S. Customs Enforcement Officer at the Del Rio Port of Entry along the United States border with Acuna, Coah., Mexico when he was struck and severely injured by a City Police Department patrol unit driven by an escaping prisoner, Mr. Reymundo Avalos.

4.3 Customs Officers at the Del Rio Port of Entry, including Mr. Rios, were responding to the City Police Department's request for assistance in intercepting a car chase which commenced at 617 Holt Street.

4.4 Mr. Reymundo Avalos was an adult person who had a criminal history in the City including a penchant or tendency to escape police custody which was well known to the police officers of the City Police Department, and he was known by the nickname around the City Police Department as "Houdini."

4.5 On the evening of June 30, 2002, Reymundo Avalos, had been placed under arrest by Officer Wesley Wilson.

4.6 Officer Wilson improperly left the prisoner Reymundo Avalos in the backseat of his patrol vehicle while the keys were in the ignition and the engine running while he visited with a person who lived in the neighborhood.

4.7 Mr. Avalos escaped from confinement in the rear sat, commandeered the patrol car, and sped away.

4.8 The City Police Department issued an "all points alert" on the escaping prisoner, Reymundo Avalos, and proceeded to channel Reymundo Avalos towards the International Bridge.

4.09 The City Police Department did not clearly inform the Del Rio Port of Entry Customs Officers that the vehicle being driven by Reymundo Avalos was an official marked patrol car of the City Police Department.

4.10 Del Rio Police Department officers pursued the patrol car being driven by Reymundo Avalos and had opportunities to divert or disable that vehicle, but failed to do so.

4.11 As the stolen vehicle driven by Reymundo Avalos approached the open lane, the vehicle violently struck Mr. Rios.

4.12 Mr. Rios sustained devastating injuries from the violent impact by that vehicle ...."

It is also alleged that "[t]he City" was "acting with deliberate indifference ... breaching their duty to provide Officer Wilson with adequate supervision and training regarding the reasonable containment of prisoners in custody" and that "[t]he facts stated" in the "Facts" section of the complaint "constitute intentional, deliberate, and conscious indifference to well-known standards in the management of the City Police Department in the training on, demonstrated proficiency in, and the safe handling of individuals in custody...."

Additional allegations are that "Officers of the City Police Department were aware of previous attempts of the prisoner to flee from their custody," "were aware that their actions increased danger to others including Mr. Rios" and "were aware of department and state law" [citing Tex. Trans. Code § 545.404] "that an operator of a motor vehicle may not leave a vehicle unattended without" stopping the engine, locking the ignition and removing the key from the ignition. It is also alleged that "Defendants acted with deliberate indifference to Mr. Rios' safety, by creating an environment which would not have existed for the crime to occur otherwise," and that

"7.1 ... with an intentional, a deliberate, and a conscious indifference to the lives and safety of other persons, including Mr. Rios, the City adopted or maintained, through its final policymakers, unconstitutional policies and customs, and failed to implement constitutional and proper policies and procedures, which proximately caused or resulted in the violation of the constitutional rights of Mr. Rios ....

7.2 Officer Wilson acted willfully, deliberately, maliciously, or with reckless disregard for Mr. Rios' constitutional rights when, with knowledge of Reymundo Avalos' previous attempts to flee police custody, Officer Wilson left Mr. Avalos unattended in an operative police unit on June 30, 2002."

DISCUSSION

Standard of Review

Our review of a district court's decision on a 12(b)(6) motion is, as we said in Campbell v. City of San Antonio, 43 F.3d 973, 975 (5th Cir.1995):

"... de novo, accepting all well-pleaded facts as true and viewing those facts in the light most favorable to [the plaintiff]. Walker v. S. Cent. Bell Tel. Co., 904 F.2d 275, 276 (5th Cir.1990); Heaney v. United States Veterans Admin., 756 F.2d 1215, 1217 (5th Cir.1985) .... dismissal [is not proper] `"unless it appears beyond doubt that [the plaintiff] can prove no set of facts in support of [her] claim which would entitle [her] to relief.'" Heaney, 756 F.2d at 1217 (quoting Conley v. Gibson, 355 U.S. 41, 45, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957)). However, `the complaint must contain either direct allegations on every material point necessary to sustain a recovery ... or contain allegations from which an inference fairly may be drawn that evidence on these material points will be introduced at trial.' 3 WRIGHT & MILLER, FEDERAL PRACTICE AND PROCEDURE: CIVIL 2D § 1216 at 156-159 (footnote omitted). `[A] statement of facts that merely creates a suspicion that the pleader might have a right of action' is insufficient. Id. at 163 (footnote omitted). `Dismissal is proper if the complaint lacks an allegation regarding a required element necessary to obtain relief...' 2A MOORE'S FEDERAL PRACTICE ¶ 12.07 [2.-5] at 12-91 (footnote omitted). The court is not required to `conjure up unpled allegations or construe elaborately arcane scripts to' save a complaint. Gooley v. Mobil Oil Corp., 851 F.2d 513, 514 (1st Cir.1988). Further, `conclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss.' Fernandez-Montes v. Allied Pilots Ass'n, 987 F.2d 278, 284 (5th Cir.1993)."²

Where the issue is one of qualified immunity, Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), states the relevant test as follows:

"A court required to rule upon the qualified immunity issue must consider, then, this threshold question: Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right?

...

If no constitutional right would have been violated were the allegations established, there is no necessity for further inquiries concerning qualified immunity." Id. at 2156.³

Constitutional violation; state-created danger

The complaint makes plain that Rios asserts a Fourteenth Amendment substantive due process right to be free from state deprivation of his bodily integrity liberty interest.⁴ In DeShaney v. Winnebago County, 489 U.S. 189, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989), the Court held that "[a]s a general matter ... a State's failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause," but recognized an exception respecting individuals in certain "special relationships" with the state, id. at 1004, an exception which it described and explained as follows:

"In the substantive due process analysis, it is the State's affirmative act of restraining the individual's freedom to act on his own behalf — through incarceration, institutionalization, or other similar restraint of personal liberty — which is the `deprivation of liberty' triggering the protections of the Due Process Clause, not its failure to act to protect his liberty interests against harms inflicted by other means." Id. at 1006.

Rios was injured from being struck by the patrol car "driven by an escaping prisoner, Mr. Reymundo Avalos" who had earlier "commandeered" the vehicle after having "escaped from confinement in the rear seat ... and sped away." Obviously, Avalos is a purely...