Spencer v. City of Seagoville

• Decision Date: 18 November 1985
• Docket Number: No. 05-83-00813-CV,05-83-00813-CV
• Citation: 700 S.W.2d 953
• Parties: O.B. SPENCER, Appellant, v. CITY OF SEAGOVILLE, Texas, Don Smith, Sherry Koleszar, and Marion Hoy, Appellees.
• Court: Texas Court of Appeals

Page 953

700 S.W.2d 953

O.B. SPENCER, Appellant, v. CITY OF SEAGOVILLE, Texas, Don Smith, Sherry Koleszar, and Marion Hoy, Appellees.

No. 05-83-00813-CV.

Court of Appeals of Texas Dallas.

Nov. 18, 1985.

Charles Turner, Dallas, for appellant.

Marc H. Richman, Dallas, for appellees.

Before TUNKS ¹, C.J., and ALLEN and KEITH ², JJ.

ON MOTION FOR REHEARING

TUNKS, Chief Justice (Retired).

We grant appellant's motion for rehearing in part, withdraw our former opinion, and substitute the following opinion. O.B. Spencer brought suit in the trial court asserting that appellees violated his civil rights under 42 U.S.C. § 1983. The appellees, from whom Spencer sought recovery of money damages, are the City of Seagoville, Texas, a municipal corporation; Don Smith, mayor and municipal judge of Seagoville; Sherry Koleszar, Secretary of Seagoville and clerk of its municipal court; and Marian Hoy, deputy clerk of Seagoville's municipal court.

Spencer appeals from a summary judgment granted in favor of the appellees. In two points of error, Spencer maintains that the trial court erred in rendering summary judgment for appellees because (1) there are disputed issues of fact and (2) the defenses presented by appellees do not bar his section 1983 suit. In a third point of error presented by supplemental brief, Spencer contends that summary judgment was improperly based on his failure to state a cause of action. We reverse the judgment in favor of the City and remand that cause, but we affirm the judgments in favor of the individual defendants.

Spencer's second amended petition states that Koleszar and Hoy signed and filed complaints against him for his failure to appear in court in connection with traffic citations. Acting on these complaints, Smith issued several warrants for Spencer's arrest. Spencer claims that the warrants were legally insufficient because they were based on complaints which appeared false on their face. Pursuant to the arrest warrants, Dallas County Sheriff's deputies arrested and jailed Spencer. He alleges that these deputies, hired to act as police officers for Seagoville, treated him cruelly during both his arrest and his incarceration. He says he was later acquitted of the traffic offenses.

Moreover, Spencer claims that his arrest and incarceration resulted from his criticism of Seagoville's administration and that Smith, Koleszar, and Hoy, employees of Seagoville, instigated his arrest and incarceration to embarrass and harass him in the presence of his friends and other Seagoville citizens. Further, Spencer alleges that he has been falsely imprisoned and maliciously prosecuted and that such actions were taken against him in violation of his constitutional right to free speech.

Claim Against The City

The City's motion for summary judgment was based on three grounds: 1) the doctrine of sovereign immunity, (2) the plaintiff's failure to give notice to the City under the Texas Tort Claims Act, TEX.REV.CIV.STAT.ANN. art. 6252-19 § 16 (Vernon Supp.1985), and (3) the defendant's lack of control over the actions of the Sheriff's deputies. Since these are the only grounds asserted in the motion for summary judgment, we may uphold the judgment only on these grounds. Roling v. McGeorge, 645 S.W.2d 886, 887 (Tex.App.--Tyler 1983, no writ); Avinger v. Campbell, 499 S.W.2d 698, 702 (Tex.Civ.App.--Dallas), writ ref'd n.r.e. per curiam, 505 S.W.2d 788 (Tex.1974).

The doctrine of sovereign immunity is not an absolute bar to a section 1983 suit against the City. In Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), the Supreme Court held that private individuals may directly sue municipalities under section 1983 for constitutional deprivations inflicted upon them pursuant to a governmental custom, policy, ordinance, regulation, or decision. Thus, the City's plea of sovereign immunity was not, in and of itself, enough to show that the City was entitled to judgment as a matter of law.

To hold a city liable under section 1983 for unconstitutional acts of its employees, a plaintiff is required to plead and prove three elements: (1) an official policy or custom that (2) causes the plaintiff to be subjected to (3) a denial of a constitutional right. Batista v. Rodriguiz, 702 F.2d 393, 397 (2d Cir.1983). In other words, the plaintiff bears the burden of showing that the city "maintained or practiced an unconstitutional or unlawful 'policy' or 'custom,' ... and second that that policy or custom 'caused' or was the 'moving force' behind the violation." Dominguez v. Beame, 603 F.2d 337, 341 (2d Cir.1979), cert. denied, 446 U.S. 917, 100 S.Ct. 1850, 64 L.Ed.2d 271 (1980); Augustyniak v. Koch, 588 F.Supp. 793, 799 (S.D.N.Y.1984).

The City's allegation in its motion for summary judgment and proof in its supporting affidavits that it had no control over the deputies might, if uncontroverted, establish that no city policy or custom caused any deprivation of rights related to the manner of Spencer's arrest or incarceration. However, even if we assume that the City established this allegation as a matter of law, we could not conclude that the City is entitled to judgment. Assuming that no policy or custom of the City caused any deprivation related to the manner of Spencer's arrest or incarceration, it still may be that a policy or custom of the City was the moving force instigating an unlawful arrest of Spencer. The motion for summary judgment makes no allegation denying this possibility; nor does the summary judgment proof negate it.

Nor does Spencer's failure to give notice under the Texas Tort Claims Act bar his section 1983 cause of action. Most courts that have confronted this issue have refused to bar a plaintiff for failure to comply with the notice of claim provisions of local tort claims acts. Brown v. United States, 742 F.2d 1498 (D.C.Cir.1984) (en banc), cert. denied, 471 U.S. 1073, 105 S.Ct. 2153, 85 L.Ed.2d 509 (1985) (and see cases cited at 1509 n. 6); also see Burroughs v. Holiday Inn, 606 F.Supp. 629 (W.D.N.Y.1985); Bell v. Metropolitan School District of Shakamak, 582 F.Supp. 3, 5 (S.D.Ind.1983); Firestone v. Fritz, 119 Ill.App.3d 685, 75 Ill.Dec. 83, 87, 456 N.E.2d 904, 908 (1983); cf. Gipson v. Township of Bass River, 82 F.R.D. 122, 126-27 (D.N.J.1979) ("[a] state tort claims statute simply cannot be used to bar a federal right"); but see Deary v. Three Un-Named Police Officers, 746 F.2d 185, 193-94 (majority opinion) and 199 (Higginbotham, J., concurring and dissenting) (3d Cir.1984); Indiana Department of Public Welfare v. Clark, 478 N.E.2d 699, 701-02 (Ind.Ct.App.1985); Mills v. County of Monroe, 59 N.Y.2d 307, 464 N.Y.S.2d 709, 451 N.E.2d 456 (1983), cert. denied, 464 U.S. 1018, 104 S.Ct. 551, 78 L.Ed.2d 725. We need not decide, however, whether the Texas notice of claims provision is ever applicable to a section 1983 action. The circumstances of this case are such that we may reserve judgment on that broad question. Instead, we decide only that given the circumstances of this case, the notice of claims provision is not here applicable.

Spencer does not purport to sue under the Texas Tort Claims Act. Indeed, he could not have sued under it. See TEX.REV.CIV.STAT.ANN. art. 6252-19 § 14(10) (Vernon 1970) (no claim allowed under Tort Claims Act for false imprisonment or other intentional tort). We could hardly expect Spencer to comply with the procedures of the Tort Claims Act when he could not have proceeded under it. We must view him as taking another avenue for relief outside the terms of that Act. We note also that in all the cases we have found in which courts have applied notice of claims statutes to section 1983 suits, the plaintiff apparently had recourse under the local statute. Deary, 746 F.2d at 193; Indiana Department of Public Welfare, 478 N.E.2d at 701-02; Mills, 59 N.Y.2d at 309, 464 N.Y.S.2d at 710, 451 N.E.2d at 457. Thus, in this case we cannot regard the notice of claim provision as a "procedural precondition to sue," as the court regarded it in the Indiana Department of Public Welfare case. Indiana Department of Public Welfare, 478 N.E.2d at 702.

Neither can we regard it as a statute of limitations. Since section 1983 has no statute of limitations, courts must borrow a statute of limitations from the law of the forum State. Wilson v. Garcia, 471 U.S. ----, ---- - ----, 105 S.Ct. 1938, 1942-43, 85 L.Ed.2d 254, 260-61 (1985). The United States Supreme Court, in Wilson v. Garcia, explicitly rejected state tort claims acts as a source for the appropriate section 1983 statute of limitations. Wilson, 471 U.S. at ----, 105 S.Ct. at 1949, 85 L.Ed.2d at 268. Instead, the court held that section 1983 suits have the character of personal injury actions and that the general state statute of limitations for personal injury actions should consequently apply to them. Id., --- U.S. at ---- - ----, 105 S.Ct. at 1949, 85 L.Ed.2d at 268-69. We therefore cannot borrow the notice of claim provision from the Texas Tort Claims Act as a statute of limitations. We conclude that Spencer's failure to comply with the notice of claim provision does not justify the summary judgment in favor of the City. Hence, none of the grounds asserted in the City's motion for summary judgment support the judgment in favor of the City.

In its appellate brief, however, the City argues that Spencer did not even plead a section 1983 cause of action, since he failed to allege that some City policy or custom was the cause of his deprivation of constitutional rights. Our examination of Spencer's second amended petition reveals that the City is right about the deficiency in Spencer's pleading. But even so, we cannot uphold the summary judgment on that ground because of the City's failure to assert it in its motion for summary judgment.

Moreover, even if the City's motion for summary judgment had pointed out Spencer's failure to state a cause of action, w...