Opinion
SA-18-CV-00466-OLG
12-21-2018
LEOLA ADELENA STUART, Plaintiff, v. CITY OF SAN ANTONIO (S.A.P.D.); SAPD FNU MANKIEVEZ, IN HIS INDIVIDUAL CAPACITY; SAPD FNU SWEENEY, IN HIS INDIVIDUAL CAPACITY, Defendants.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
To the Honorable Chief United States District Judge Orlando L. Garcia:
This Report and Recommendation concerns Defendant the City of San Antonio's Motion to Dismiss [#10] and Defendant Peter Sweeney's Motion to Dismiss [#16]. Also before the Court is Plaintiff's Response to Defendant the City of San Antonio's Motion to Dismiss [#11] and Plaintiff's Response to Defendant Peter Sweeney's Motion to Dismiss [#18]. On November 16, 2018, the Honorable Orlando L. Garcia referred all pre-trial proceedings in this case to the undersigned for disposition pursuant to Federal Rule of Civil Procedure 72 and Rules CV-72 and 1(c) of Appendix C of the Local Rules of the United States District Court for the Western District of Texas [#22]. The undersigned has authority to enter this recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). For the reasons set forth below, it is recommended that both motions to dismiss be GRANTED.
I. Factual and Procedural Background
This is a civil rights case filed by pro se Plaintiff Leola Adelena Stuart ("Plaintiff") against the City of San Antonio ("the City") and two officers from the San Antonio Police Department ("the SAPD"). Plaintiff's Complaint alleges that the SAPD conducted a warrantless search of her apartment in October 2017. (Compl. [#3] at ¶¶ 5-6.) Additionally, Plaintiff complains that the SAPD has victimized her by ignoring her complaints of rape and stalking. (Id. at ¶ 4.) The Court construed Plaintiff's Complaint as asserting a claim under 42 U.S.C. § 1983 against the City for a violation of the Fourth Amendment. (Doc. 2 at 3.) On June 1, 2018, the Court granted Plaintiff's motion to proceed in forma pauperis, but ordered Plaintiff to file a more definite statement to provide additional factual support for her allegations against the City [#2].
Plaintiff filed a more definite statement on July 24, 2018 [#6]. After reviewing Plaintiff's More Definite Statement, the Court ordered the District Clerk to add SAPD Officers Mankievez and Sweeney, in their individual capacities, as defendants in this action [#7]. Officers Mankievez and Sweeney were served with a summons and a copy of the Complaint on September 5, 2018, making their answer due on September 26, 2018 [#12]. Officer Sweeney filed his Answer on October 1, 2018 [#13]. In lieu of filing an answer, the City moved to dismiss Plaintiff's Section 1983 claim for failure to state a claim under Rule 12(b)(6) on September 18, 2018 [#10]. Officer Sweeney moved for judgment on the pleadings under Rule 12(c) on October 15, 2018 [#16]. Officer Mankievez has not yet filed a responsive pleading or otherwise made an appearance in this case.
II. Legal Standard
Even though Officer Sweeney and the City filed motions under two different provisions of Rule 12—the City under Rule 12(b)(6) and Officer Sweeney under Rule 12(c)—the same legal standard governs the analysis of Plaintiff's claims against both defendants in this matter. See In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007) (holding that the standard for deciding a Rule 12(c) motion for judgment on the pleadings is the same as that for a Rule 12(b)(6) motion to dismiss for failure to state a claim). Here, Officer Sweeney filed a Rule 12(c) motion rather than a Rule 12(b)(6) motion because he has already filed an answer. See Jones v. Greninger, 188 F.3d 322, 324 (5th Cir. 1999) (noting when a defendant files a Rule 12(b) motion after its answer, that motion is properly understood as a Rule 12(c) motion for judgment on the pleadings). A party may move for judgment on the pleadings "[a]fter the pleadings are closed." Fed. R. Civ. P. 12(c). The Fifth Circuit has not clarified what "closed" means for purposes of Rule 12(c), but some courts in other circuits have held that a motion for judgment on the pleadings is premature unless every defendant has filed an answer. See, e.g., Shame on You Prods., Inc. v. Elizabeth Banks, 120 F. Supp. 3d 1123, 1142 (C.D. Cal. 2015), aff'd sub nom. Shame on You Prods., Inc. v. Banks, 690 F. App'x 519 (9th Cir. 2017); Habeeba's Dance of the Arts, Ltd. v. Knoblauch, No. 2:05-CV-926, 2006 WL 968642, at *2 (S.D. Ohio Apr. 10, 2006); Grassmueck v. Barnett, No. C03-122P, 2003 WL 22128337, at *2 (W.D. Wash. July 7, 2003). Even if Officer Sweeney's motion is technically premature, because Plaintiff is proceeding in forma pauperis, the Court can dismiss her claims at any time if the Court determines that Plaintiff's pleadings fail to state a claim on which relief may be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii). The standard for dismissal under 28 U.S.C. § 1915(e)(2)(B)(ii) is identical to that under Rule 12(b)(6). See DeMoss v. Crain, 636 F.3d 145, 152 (5th Cir. 2011). Thus, the same standard governs Plaintiff's claims against both the City and Officer Sweeney.
To avoid dismissal of her claims against the City and Officer Sweeney, Plaintiff must have pleaded sufficient facts, that if accepted as true, would "state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56, 570 (2007)); see Fed. R. Civ. P. 8(a)(2) (requiring "a short and plain statement of the claim showing that the pleader is entitled to relief."). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. Although a complaint does not need to contain "detailed factual allegations" to survive a motion to dismiss, the "[f]actual allegations must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555. The allegations pleaded must show "more than a sheer possibility that a defendant has acted unlawfully." Iqbal, 556 U.S. at 678.
A court considering a motion to dismiss must accept "all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff." Martin K. Eby Const. Co. v. Dallas Area Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004). While a court must accept all of the claimant's well-pleaded facts as true, it is not bound to accept as true conclusory allegations or allegations that merely restate the legal elements of a claim. See Chhim v. Univ. of Texas at Austin, 836 F.3d 467, 469 (5th Cir. 2016) (citing Iqbal, 556 U.S. at 678). In short, a claim should only be dismissed if a court determines that it is beyond doubt that the claimant cannot prove a plausible set of facts that support the claim and would justify relief. See Twombly, 550 U.S. at 570.
III. Analysis
Plaintiff maintains that SAPD officers (but not Officer Sweeney) conducted an illegal, warrantless search of her apartment in violation of the Fourth Amendment, as incorporated against the states by the Fourteenth Amendment. Plaintiff also maintains that Officer Sweeney ignored her complaints of rape and stalking. Because Plaintiff has failed to allege or identify a policy, practice, custom, or procedure of the City that was the moving force behind a violation of her constitutional rights, Plaintiff's Section 1983 claim against the City should be dismissed. And, because refusing to investigate or prosecute a reported crime is not actionable under Section 1983, Plaintiff's claim against Officer Sweeney should also be dismissed.
A. Plaintiff's claims against the City should be dismissed.
The Court should grant the City's motion to dismiss. Under Section 1983, "a municipality cannot be held vicariously liable for the constitutional torts of its employees or agents." Gros v. City of Grand Prairie, Tex., 181 F.3d 613, 615 (5th Cir. 1999) (citing Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 694 (1978)). Rather, "[a] municipality is liable only for acts directly attributable to it 'through some official action or imprimatur.'" Valle v. City of Houston, 613 F.3d 536, 541 (5th Cir. 2010) (quoting Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th Cir.2001)). To establish municipal liability under Section 1983, a plaintiff must identify "(1) an official policy (or custom), of which (2) a policy maker can be charged with actual or constructive knowledge, and (3) a constitutional violation whose "moving force" is that policy (or custom)." Pineda v. City of Houston, 291 F.3d 325, 328 (5th Cir. 2002) (citing Piotrowski, 237 F.3d at 581).
"An official policy must be either unconstitutional or have been adopted 'with deliberate indifference to the known or obvious fact that such constitutional violations would result.'" Shumpert v. City of Tupelo, 905 F.3d 310, 316 (5th Cir. 2018), as revised (Sept. 25, 2018) (quoting Johnson v. Deep E. Texas Reg'l Narcotics Trafficking Task Force, 379 F.3d 293, 309 (5th Cir. 2004)). "Deliberate indifference is a degree of culpability beyond mere negligence or even gross negligence; it 'must amount to an intentional choice, not merely an unintentionally negligent oversight.'" James v. Harris Cty., 577 F.3d 612, 617-18 (5th Cir. 2009) (quoting Rhyne v. Henderson Cty., 973 F.2d 386, 392 (5th Cir. 1992). "These requirements must not be diluted, for '[w]here a court fails to adhere to rigorous requirements of culpability and causation, municipal liability collapses into respondeat superior liability.'" Snyder v. Trepagnier, 142 F.3d 791, 796 (5th Cir. 1998) (quoting Bd. of Cty. Comm'rs of Bryan Cty., Okl. v. Brown, 520 U.S. 397, 415 (1997)).
"Alternatively, official policy is '[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.'" Brown v. Bryan Cty., OK, 219 F.3d 450, 457 (5th Cir. 2000) (quoting Bennett v. City of Slidell, 735 F.2d 861, 862 (5th Cir. 1984) (en banc)). "A pattern is tantamount to official policy when it is 'so common and well-settled as to constitute a custom that fairly represents municipal policy.'" Peterson v. City of Fort Worth, Tex., 588 F.3d 838, 850 (5th Cir. 2009) (quoting Piotrowski, 237 F.3d at 579). Where prior incidents are used to prove a pattern, they "must have occurred for so long or so frequently that the course of conduct warrants the attribution to the governing body of knowledge that the objectionable conduct is the expected, accepted practice of city employees." Davidson v. City of Stafford, Texas, 848 F.3d 384, 396 (5th Cir. 2017), as revised (Mar. 31, 2017) (quoting Webster v. City of Houston, 735 F.2d 838, 842 (5th Cir. 1984) (en banc). A pattern requires similarity and specificity; "[p]rior indications cannot simply be for any and all 'bad' or unwise acts, but rather must point to the specific violation in question." Estate of Davis ex rel. McCully v. City of N. Richland Hills, 406 F.3d 375, 383 (5th Cir. 2005). A pattern also requires "sufficiently numerous prior incidents," as opposed to "isolated instances." McConney v. City of Houston, 863 F.2d 1180, 1184 (5th Cir. 1989).
Plaintiff claims that Defendant Mankievez and other unidentified SAPD officers conducted an illegal, warrantless search of her apartment for drugs. (Compl. at ¶ 5.) Plaintiff alleges that the police officers who conducted the search told her that if she did not allow them to search her apartment, they would report that she had a methamphetamine lab there. (Id.) Plaintiff states that she has been unable to receive information about the search, as promised by the SAPD. (Id. at ¶ 6.) Finally, Plaintiff claims she has been subjected to six warrantless searches by officers from the SAPD between May 2001 and November 2011. (Doc. 6 at 5.)
Plaintiff has failed to plead sufficient facts to support a finding of municipal liability under 42 U.S.C. § 1983. Even accepting the factual allegations in Plaintiff's pleadings as true, Plaintiff has not stated a viable claim against the City. Plaintiff has not established any of the elements for municipal liability under Section 1983. Plaintiff has not alleged that the City has either an official policy of conducting warrantless searches or a persistent, widespread practice of conducting such searches. Plaintiff claims to have been subjected to a total of seven warrantless searches since May 2001. These alleged incidents do not, on the basis of this record, demonstrate that the City maintained an official policy of condoning warrantless searches. The Fifth Circuit has indicated that the size of a police department is relevant to determining whether a series of incidents can be called a pattern. See Peterson, 588 F.3d at 851. The SAPD consists of more than 2,000 full-time sworn officers, making it one of the largest police departments in the country. Given the department's size, and absent any evidence of its total number of warrantless searches between May 2001 and October 2017, seven incidents of warrantless searches over a period of seventeen years do not reflect a pattern that can be said to represent official policy of condoning warrantless searches. "To hold otherwise would be effectively to hold the City liable on the theory of respondeat superior, which is expressly prohibited by Monell." Peterson, 588 F.3d at 852.
See https://www.bjs.gov/content/pub/pdf/csllea08.pdf.
Additionally, Plaintiff has failed to identify a policy-making official for the City responsible for any warrantless-search policy or allege that a policy-making official was aware of, and deliberately indifferent to, a policy or practice of the City that was the moving force behind the alleged violations of her constitutional rights. Rather, Plaintiff's pleadings contain only conclusory allegations regarding the City's liability. Accordingly, Plaintiff's claims against the City should be dismissed.
B. Plaintiff's claims against Officer Sweeney should be dismissed.
The claims against Officer Sweeney should be dismissed for failure to state a claim on which relief may be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii). Plaintiff alleges that Officer Sweeney violated her constitutional rights by ignoring her complaints of rape and stalking. (Compl. at ¶ 4.) Plaintiff claims that on October 26, 2017, she filed a police report with SAPD in which she alleged that she had been raped. (Id.) Plaintiff further claims that Officer Sweeney, who is with the Special Victims Unit, failed to investigate her allegations of rape and stalking. (Id.) Instead, Officer Sweeney allegedly told Plaintiff that she was only going to document that Plaintiff "had relations with the accused." (Id.)
The Supreme Court has held that a private citizen lacks a judicially cognizable interest in the prosecution or non-prosecution of another. Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973); see DeShaney v. Winnebago Cty. Dep't of Soc. Servs., 489 U.S. 189, 197 (1989) ("As 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."). And the Fifth Circuit has clarified that the failure of police to investigate or prosecute an offense does not give rise to Section 1983 liability. See Piotrowski, 237 F.3d at 582. Because Plaintiff does not have a constitutional right to have an investigation conducted by Officer Sweeney, Plaintiff's claims against Officer Sweeney should be dismissed for failing to state a claim upon which relief can be granted.
IV. Conclusion and Recommendation
Having considered the motions and responses thereto, the undersigned recommends that Defendant the City of San Antonio's Motion to Dismiss [#10] be GRANTED and Defendant Peter Sweeney's Motion to Dismiss [#16] be GRANTED and that all claims asserted by Plaintiff against Defendants the City of San Antonio and Peter Sweeney be DISMISSED.
V. Instructions for Service and Notice of Right to Object/Appeal
The United States District Clerk shall serve a copy of this report and recommendation on all parties by either (1) electronic transmittal to all parties represented by attorneys registered as a "filing user" with the clerk of court, or (2) by mailing a copy to those not registered by certified mail, return receipt requested. Written objections to this report and recommendation must be filed within fourteen (14) days after being served with a copy of same, unless this time period is modified by the district court. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). The party shall file the objections with the clerk of the court, and serve the objections on all other parties. A party filing objection must specifically identify those findings, conclusions or recommendations to which objections are being made and the basis for such objections; the district court need not consider frivolous, conclusive or general objections. A party's failure to file written objections to the proposed findings, conclusions and recommendations contained in this report shall bar the party from a de novo determination by the district court. See Thomas v. Arn, 474 U.S. 140, 149-52 (1985); Acuña v. Brown & Root, Inc., 200 F.3d 335, 340 (5th Cir. 2000). Additionally, failure to file timely written objections to the proposed findings, conclusions and recommendations contained in this report and recommendation shall bar the aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the district court. See Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).
SIGNED this 21st day of December, 2018.
/s/_________
ELIZABETH S. ("BETSY") CHESTNEY
UNITED STATES MAGISTRATE JUDGE