Opinion
No. 3:00-CV-2372-D
May 29, 2002
CONCLUSIONS AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
The City of Richardson, Texas ("City" or "Defendant") filed a motion for summary judgment on April 10, 2002. The District Court referred the motion to the United States Magistrate Judge for recommendation pursuant to 28 U.S.C. § 636(b). Kevin Hinds, Plaintiff, did not file a timely response to the motion.
Factual and Procedural Background
Plaintiff filed this suit pursuant to 42 U.S.C. § 1983 against the City and its officials: Gary Slagel, Mayor; Bill Keffler, City Manager; Kenneth Yarbrough, Police Chief; and Raymond Noah ("Judge Noah"), Municipal Judge. His lawsuit arises from his November 1, 1998 warrantless arrest by City police officers for a class C misdemeanor. Plaintiff claimed the officers subjected him to an unreasonable search and seizure, arrested him without a warrant or probable cause, wrongfully jailed him for a class C misdemeanor, and illegally seized and impounded his car. In a Memorandum Opinion and Order entered May 18, 2001, the District Court dismissed the official capacity claims against the individuals and Judge Noah, except to the extent Plaintiff sues Judge Noah under 42 U.S.C. § 1983 for prospective injunctive or declaratory relief. The District Court also dismissed Plaintiff's claims for attorney's fees under § 1988. On November 29, 2001, the District Court dismissed with prejudice Plaintiff's claims against Gary Slagel, Bill Keffler and Kenneth Yarbrough. Plaintiff's claims against Judge Noah for declaratory and injunctive relief and his claims against the City are pending. The City now seeks summary judgment.
Standard of Review
Summary judgment is appropriate if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, 477 U.S. 242, 250 (1986). When, as here, a defendant does not have the burden of proof at trial, that party may carry its summary judgment obligation by pointing out to the court that there is an absence of evidence to support a plaintiff's claims. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once a movant does so, the burden shifts to the nonmovant to adduce facts showing a genuine issue for trial. Id at 324. An issue of fact is genuine if the evidence supporting its resolution in favor of the party opposing summary judgment, together with any inference in that party's favor that the evidence allows, would be sufficient to support a verdict in that party's favor. Hilton v. Southwestern Bell Tel. Co., 936 F.2d 823, 827 (5th Cir. 1991) (per curiam). The failure of the nonmovant to establish a genuine issue of material fact as to every essential element of his claim mandates entry of summary judgment against him with respect to that claim. Dunn v. State Farm Fire Casualty Co., 927 F.2d 869, 872 (5th Cir. 1991).
In general, FED. R. Civ. P. 56 obligates the nonmovant at the summary judgment stage of the proceedings to designate the specific facts in the record that create genuine issues precluding summary judgment. A district court has no duty to survey the entire record in search of evidence to support a non-movant's opposition. Jones v. Sheehan, Young, Culp, P.C., 82 F.3d 1334, 1338 (5th Cir. 1996) (citing Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994); Nissho-Iwai Am. Corp. v. Kline, 845 F.2d 1300, 1307 (5th Cir. 1988) (on rehearing). To satisfy his burden at the summary judgment stage of the proceedings, the nonmovant must identify specific evidence in the record and articulate precisely how that evidence supports his claim. Forsyth, 19 F.3d at 1537 (citing Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir. 1992).
When a party does not refer to items in the record, his evidence is not properly before the court for purposes of deciding the summary judgment motion. Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915 (5th Cir. 1992); Nissho-Iwai, 845 F.2d at 1307 (denying rehearing on the grounds that the deposition on which the plaintiff attempted to rely was not made part of the competent summary judgment record before the district court). If a plaintiff fails to respond to a properly supported summary judgment motion, he cannot meet his burden of designating specific facts showing that there is a genuine issue for trial. Stults v. Conoco, 76 F.3d 651, 657 (5th Cir. 1996).
A municipality may not be held vicariously liable pursuant to § 1983 for the actions of its employees. Monell v. Department of Social Servs., 436 U.S. 658, 691 (1978) (holding that "a municipality cannot be held liable under § 1983 on a respondent superior theory."). To avoid summary judgment, a plaintiff must offer evidence that would allow a reasonable jury to find that his injury resulted from the exercise of the City's "official policy." Id. at 694; Bennett v. City of Slidell, 728 F.2d 762, 766 (5th Cir. 1984) (en banc). An official policy is:
1. A policy statement, ordinance, regulation, or decision that is officially adopted and promulgated by the municipality's lawmaking officers or by an official to whom the lawmakers have delegated policy-making authority; or
2. A persistent, widespread practice of city officials or employees, which, although not authorized by officially adopted and promulgated policy, is so common and well settled as to constitute a custom that fairly represents municipal policy. Actual or constructive knowledge of such custom must be attributable to the governing body of the municipality or to an official to whom that body had delegated policy-making authority. Actions of officers or employees of a municipality do not render the municipality liable under § 1983 unless they execute official policy as above defined.
Webster v. City of Houston, 735 F.2d 838, 841 (5th Cir.), reh'g granted on other grounds, 739 F.2d 993 (1984) (en banc).
Thus when someone seeks to establish an "official policy" on the basis of an informal but "persistent, widespread practice of city officials or employees," he must make a showing both of the existence of the practice and of actual or constructive knowledge on the part of the government body or officials to whom the body has delegated policymaking power. A plaintiff must demonstrate that, through its deliberate conduct, the City was the "moving force" behind the alleged injury. Bd. of County Com'rs of Bryan County Okla. v. Brown, 520 U.S. 397, 404 (1997). The burden to prove policy, custom, or practice is on the plaintiff; the defendant municipality need not disprove it. See, e.g., Bennett, 728 F.2d at 767. The plaintiff must also show "a direct causal link between a municipal policy or custom and the alleged constitutional deprivation." City of Canton, Ohio v. Harris, 489 U.S. 378, 385 (1989).
Analysis
Plaintiff's assertions against the City seem to rest primarily on the concept of respondeat superior. See 1st Am. Compl. at ¶¶ 25-26. Although he also appears to attempt to assert that the persons in question acted according to municipal policy, custom, or practice, see id at ¶¶ 13, 17, 19, 22, and 26, he does not allege a direct causal link between a municipal policy or custom and the alleged constitutional deprivation. Plaintiff has not filed a response to defendant's motion for summary judgment; he has neither designated any facts contained in a response as creating a genuine issue of material fact, nor articulated how such facts support his claims. A summary judgment nonmovant who does not respond to the motion is relegated to his unsworn pleadings, which do not constitute summary judgment evidence. See, e.g., Solo Serve Corp. v. Westowne Assocs., 929 F.2d 160, 165 (5th Cir. 1991).
To establish municipal liability on the basis of a failure to train, a plaintiff must be able to show that the failure amounts to deliberate indifference to the rights of those who come in contact with the party's employees. See City of Canton, 489 U.S. at 388. A showing of gross negligence on the part of the municipality is insufficient. Id. at 389 n. 7. Plaintiff has alleged that his civil rights were violated by Richardson police officers and a municipal judge, but his allegations that the City is responsible because it failed to properly train its employees are purely conclusory allegations. Plaintiff has not identified any facts in the record sufficient to demonstrate that the City's training was inadequate, that the City had actual or constructive knowledge of the inadequacies, that the City's training practices amounted to deliberate indifference to the rights of individuals and to show that he suffered damages as a direct result of the City's deliberate indifference. Accordingly, the City is entitled to summary judgment on Plaintiff's § 1983 claims against it.
RECOMMENDATION
The Court recommends Defendant City of Richardson's Motion for Summary Judgment, filed April 10, 2002, be granted and that Plaintiff take nothing by way of its cause of action against the City.
INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO APPEAL/OBJECT
The United States District Clerk shall serve a true copy of these conclusions and recommendation on the parties. Pursuant to Title 28, United States Code, Section 636(b)(1), any party who desires to object to these conclusions and recommendation must serve and file written objections within ten days after being served with a copy. A party filing objections must specifically identify those conclusions or recommendation to which objections are being made. The District Court need not consider frivolous, conclusory or general objections. A party's failure to file such written objections to these proposed conclusions and recommendation shall bar that party from a de novo determination by the District Court. See Thomas v. Arn, 474 U.S. 140, 150, 106 S.Ct. 466, 472 (1985). Additionally, any failure to file written objections to the proposed conclusions and recommendation within ten days after being served with a copy shall bar the aggrieved party from appealing the legal conclusions of the Magistrate Judge that are accepted by the District Court, except upon grounds of plain error. See Douglass v. United Services Auto. Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc).