Ondrej v. City of San Antonio et al, No. 5:2021cv00281 - Document 26 (W.D. Tex. 2021)
Court Description: MEMORANDUM OPINION AND ORDER re 20 Motion to Dismiss filed by City of San Antonio. For these reasons, the Court GRANTS IN PART and DENIES IN PART the City of San Antonios Motion for Judgment on the Pleadings. To the extent the Westall Plaintiffs seek punitive damages against the City, this claim is dismissed.. Signed by Judge Jason K. Pulliam. (mgr)
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Ondrej v. City of San Antonio et al Doc. 26 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION MARLO ONDREJ, INDIVIDUALLY AS SURVIVING MOTHER OF HANNAH QUINN WESTALL AND AS THE REPRESENTATIVE OF THE ESTATE OF HANNAH WESTALL, AND THE STATUTORY BENEFICIARY J.B.M.; Plaintiff, v. Case No. SA-21-CV-00281-JKP CITY OF SAN ANTONIO, DAVID M. PERRY, Defendants. MEMORANDUM OPINION AND ORDER Before the Court is the City of San Antonio’s Motion for Judgment on the Pleadings (styled “Motion to Dismiss”) filed pursuant to Federal Rule of Civil Procedure 12(c). ECF Nos. 20,22. Plaintiffs responded. ECF No. 21. Upon consideration, the Court concludes the Motion shall be GRANTED IN PART and DENIED IN PART. Factual Background Plaintiff, Marlo Ondrej, the parent of decedent Hannah Westall, brings suit individually and on behalf of the Estate of Hannah Westall and Westall’s daughter (“the Westall Plaintiffs”). At the time relevant to this action, Defendant Sergeant David Perry was employed as a San Antonio Police Officer. On March 20, 2019, Sgt. Perry responded to an emergency call reporting a woman walking down the street near an elementary school with what appeared to be an “Uzi” in her waist- Dockets.Justia.com band. Both the police dashcam and the dashcam of a citizen-passerby reveal Sgt. Perry stopped his patrol vehicle a few feet in front of Westall as she was walking in the parking lot of a public shopping center.1 Westall was vaping at the time. Upon approaching Westall in the parking lot, Sgt. Perry commanded her to stop. Westall stopped immediately and raised her hands, but then turned her body revealing she was carrying a weapon. Westall slowly lowered her right hand toward the gun in her waistband, although she did not touch or reach for the weapon. Almost immediately, Sgt. Perry fired five rounds at Westall which resulted in seven strikes. Westall died at the scene from her injuries. A subsequent search revealed the gun in Westall’s waistband was a toy replica. The Westall Plaintiffs filed suit against the City of San Antonio (“the City”) and Sgt. Perry. Against the City, the Westall Plaintiffs assert causes of action for damages under 42 U.S.C. § 1983, pursuant to Monell v. Department of Social Services, 436 U.S. 658 (1978). The Westall Plaintiffs allege the following conduct, policies, and customs by the City caused the violation of Westall’s constitutional rights under the Fourth, Eighth, and Fourteenth Amendments to the U.S. Constitution: (a) The inadequacy of SAPD’s policies, training, supervision, or discipline relating to the use of deadly force; (b) The inadequacy of SAPD’s policies, training, supervision, or discipline relating to the use of non-lethal control devices and tactics which if mandated to be used by all SAPD Officers would have prevented the violation of WESTALL’s constitutional rights; (c) The adoption of a completely subjective use of force policy that allows the use of deadly force to the unchecked discretion of officers on the scene; (d) The adoption of a policy that allows officers to use the degree of force that the officer feels brings the situation quickly under control as per his or her individual judgment even if that method is deadly force; 1 Neither of the dashcams provide audio of the incident, and Sgt. Perry’s bodycam was not activated. 2 (e) Lack of any training to properly respond to persons experiencing a mental health crisis including but not limited to all proper de-escalation techniques; (f) Using excessive and/or deadly force against WESTALL although she posed no immediate threat of harm to Sgt. Perry or to other persons; and (g) Employing an unwritten policy and practice of making false statements about constitutional violations of SAPD officers while at the same time concealing the evidence of the violations. The City now moves for judgment on the pleadings on all these allegations pursuant to Federal Rule 12(c). Legal Standard “[A]fter the pleadings are closed—but early enough not to delay the trial—a party may move for judgment on the pleadings.” Fed. R. Civ. P. 12(c). The standard for determination of a Federal Rule 12(c) motion is the same as that for determination of a Federal Rule 12(b)(6) motion for dismissal for failure to state a claim. Doe v. MySpace, Inc., 528 F.3d 413, 418 (5th Cir. 2008). To provide opposing parties fair notice of the asserted cause of action and the grounds upon which it rests, every pleading must contain a short and plain statement of the cause of action which shows the pleader is entitled to relief. Fed. R. Civ. P. 8(a)(2); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); see also Conley v. Gibson, 355 U.S. 41, 47 (1957). To satisfy this requirement, the complaint must plead “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. The focus is not on whether the plaintiff will ultimately prevail, but whether that party should be permitted to present evidence to support adequately asserted claims. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Twombly, 550 U.S. at 563 n.8. Thus, to warrant dismissal under Federal Rule 12(c), a complaint must, on its face, show a bar to relief or demonstrate “beyond doubt that the plaintiff can prove no set of facts in support 3 of his claim which would entitle him to relief.” See Fed. R. Civ. P. 12(b)(6); Clark v. Amoco Prod. Co., 794 F.2d 967, 970 (5th Cir. 1986). Dismissal “can be based either on a lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory.” Frith v. Guardian Life Ins. Co., 9 F. Supp.2d 734, 737–38 (S.D.Tex. 1998). Courts are not to apply a heightened pleading standard to § 1983 claims against municipal defend- ants. See Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 168 (1993). This Court will accept the facts asserted in a plaintiff’s complaint as true and view them in the light most favorable to the Plaintiff. Clark, 794 F.2d at 970. The Court will not accept as true “conclusory allegations, unwarranted factual inferences, or legal conclusions.” Great Lakes Dredge & Dock Co. LLC v. La. State, 624 F.3d 201, 210 (5th Cir. 2010). Likewise, a formulaic recitation of the elements of a cause of action will not suffice to adequately state a claim. PSKS, Inc. v. Leegin Creative Leather Prods., Inc., 615 F.3d 412, 417 (5th Cir. 2010). “While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.” Ashcroft v. Iqbal, 556 U.S. at 679. Discussion The City argues the Westall Plaintiffs do not allege sufficient facts to support the asserted causes of action for municipal liability based upon unconstitutional policies and failure to train employees under 42 U.S.C. § 1983. A. Municipal Liability “Section 1983 provides a federal cause of action for the deprivation, under color of law, of a citizen’s rights, privileges, or immunities secured by the Constitution and laws of the United States.” Livadas v. Bradshaw, 512 U.S. 107, 132 (1994). To state a claim for violation of § 1983, 4 a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States and must allege the deprivation was committed by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). A municipality is responsible only for its own illegal acts and cannot be held liable on a respondeat superior theory of recovery under § 1983. Connick v. Thompson, 563 U.S. 51, 60 (2011); Monell v. Dep’t of Social Servs. of City of New York, 436 U.S. 658, 691, 694 (1978). Consequently, when a plaintiff asserts a cause of action against a municipality for violation of § 1983, the alleged deprivation of constitutional rights must be connected to an official custom, policy, practice, ordinance or regulation. Monell, 436 U.S. at 690–94; Jones v. Lowndes County, Miss., 678 F.3d 344, 349 (5th Cir. 2012); Flores v. Cameron County, 92 F.3d 258, 263 (5th Cir. 1996). Thus, to survive a Federal Rule 12(c) challenge to a claim of municipal liability under § 1983, a plaintiff must allege: (1) a policy or custom existed; (2) the governmental policy makers actually or constructively knew of its existence; (3) a constitutional violation occurred by a person acting under the color of state law; and (4) the custom or policy served as the moving force behind the violation. Meadowbriar Home for Children, Inc. v. G.B. Gunn, 81 F.3d 521, 532-33 (5th Cir. 1996). Official policy usually exists in the form of written policy statements, ordinances, or regulations, but may also arise in the form of a widespread practice that is so common and wellsettled as to constitute a custom that fairly represents municipal policy. Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th Cir. 2001); Olson as Next Friend of H.J. v. City of Burnet, Tex., A-20-CV-00162-JRN, 2020 WL 9076545, at *3 (W.D. Tex. July 17, 2020). A policy is official only when it results from the decision or acquiescence of the municipal officer or body with final policymaking authority over the subject matter of the offending policy. James v. Harris Cnty., 5 577 F.3d 612, 617 (5th Cir. 2009). “Acts of omission, as well as commission, may serve as a predicate for finding a policy or custom.” Batiste v. City of Beaumont, 421 F.Supp.2d 969, 987 (E.D.Tex. 2005) (citing Doe v. Taylor Indep. Sch. Dist., 15 F.3d 443, 463 (5th Cir.1994)) (emphasis in original). The official policy itself must be unconstitutional or, if not, must have been adopted with deliberate indifference to the known or obvious fact that such constitutional violations would result. Groden v. City of Dallas, 826 F.3d 280, 284 (5th Cir. 2016). To state a claim based upon a “failure to train”, a plaintiff must allege a constitutional violation is a highly predictable consequence of that failure. Bd. of County Comm’rs of Bryan County, Okla. v. Brown, 520 U.S. 397, 409 (1997); City of Canton v. Harris, 489 U.S. 378, 387-91 (1989). (1) Allegation (g): Employing Unwritten Policy of Making False Statements about Constitutional Violations of SAPD Officers and Concealing Evidence of Violations The Westall Plaintiffs allege the City violated Westall’s constitutional rights by utilizing “unwritten policy and custom of Chief McManus and City Policymakers to make false statements regarding the constitutional violations of SAPD officers and then to conspire together to conceal the video evidence of the violations. . . .” ECF No. 1, Orig. Compl., pp. 2-3. To support this cause of action, the Westall Plaintiffs allege Sgt. Perry made false statements regarding the fatal shooting, and Chief McManus repeated these false statements in a press conference, thereby committing a Class B misdemeanor. Id. at pp. 14-15. In addition, the Westall Plaintiffs allege Chief McManus and City of San Antonio Policymakers “conspired together to enforce the City policy of concealing video evidence while at the same time standing by a false narrative regarding Sgt. Perry’s fatal shooting….” Id. at p. 16. Finally, the Westall Plaintiffs allege the City denied their requests for information regarding the incident, compelling a ruling from the Texas Attorney General’s Office. The Westall Plaintiffs conclude, “[t]he willingness of Chief 6 McManus, the City Attorney and City Policymakers to conceal facts regarding civil rights violations only leads to more such violations and more unnecessary deaths.” Id. at p. 19. The basis of this asserted cause of action is ambiguous. The Westall Plaintiffs do not clearly indicate whether the cause of action is based upon conspiracy, or unwritten policy, or both. In any event, review of the Original Complaint reveals the factual allegations are not sufficient to impose liability upon the City for violation of § 1983 with regard to conspiracy or a widespread custom or practice that constitutes an unconstitutional policy. The Westall Plaintiffs do not adequately allege a widespread practice or custom existed, nor give any reference to other incidences in which this alleged unwritten policy was followed. Instead, the Westall Plaintiffs support this cause based upon the facts pertaining to this action, only. These factual allegations, alone, do not support a cause of action for municipal liability under § 1983 based upon a widespread policy or custom. More importantly, these facts cannot support an allegation that this conduct resulted in violation of Westall’s constitutional rights because the alleged conduct occurred after Westall’s death. Because events occurring after death cannot form a basis for a deceased’s action under § 1983, any unwritten policy or conspiratorial conduct could not have violated any existing constitutional right of Westall. See Whitehurst v. Wright, 592 F.2d 834, 840 (5th Cir. 1979). Finally, the Westall Plaintiffs fail to assert this alleged conspiratorial conduct served as the moving force behind any constitutional violation (if one existed). See Meadowbriar Home for Children, Inc., 81 F.3d at 532-33. For these reasons, the City’s Motion for Judgement on the Pleadings is GRANTED with regard to allegation (g): any assertion that the City employed an unwritten policy of making false statements and hiding video evidence or engaged in conspiracy to do so. 7 (2) Allegations (a) – (d), (f)2: The City’s Use of Force Policy With regard to allegations (a) through (d) and (f) in the Original Complaint, the City contends it is entitled to judgment on the pleadings because a Court in this Western District already held its Use of Force Policy to be sufficient and constitutionally sound. In addition, the City contends the factual allegations demonstrate the Westall Plaintiffs cannot prove a § 1983 cause of action. In support of the § 1983 causes of action based upon the inadequacy of the City’s Use of Force policies, the Westall Plaintiffs allege: [The City], and its Policymakers, Chief of Police William McManus, City Manager Erik Walsh, the San Antonio City Council, and Mayor Ron Nirenberg, acting through official policies, practices, and customs, and with deliberate callous, and conscious indifference to the constitutional rights of WESTALL, failed to implement and/or enforce the policies, procedures; and practice necessary to provide constitutionally adequate protection and assistance to WESTALL…. ECF No. 1, p. 24. Within the Original Complaint, the Westall Plaintiffs allege: (1) the City’s use of force policy exists and is inadequate; (2) governmental policy makers actually or constructively knew of the existence of such inadequate policies; (3) several constitutional violations occurred that were a direct result of the deficient policies, specifically the violation of Westall’s constitutional rights; (4) the constitutional violations were committed by Sgt. Perry, a person acting under the color of state law; and (5) the municipal policies were adopted with deliberate indifference to the rights of citizens. ECF No. 1, pp. 11-13, 22-24. The Westall Plaintiffs’ contentions, while not a model of clarity, are sufficient to allege a cause of action against the City pursuant to § 1983 based on the City’s purportedly deficient policies regarding police officers’ use of force. The Westall Plaintiffs’ factual allegations are suffi2 The Court interprets allegation (e) to pertain only to the cause of action asserted against Sgt. Perry, individually. 8 cient to state a plausible claim of municipal liability and to provide the City with enough notice to respond to the claims and engage in discovery. At this stage of the litigation, the Westall Plaintiffs must only plead enough to adequately state a claim, and they satisfied this requirement. Accordingly, the Westall Plaintiffs plead sufficient facts related to their challenge to the City’s use-of-force policy to survive Federal Rule 12(c) scrutiny. See e.g., Steverson v. Forrest County, No. 2:12-CV-169-KS-MTP, 2013 WL 2897914, at *5-*6 (S.D. Miss. June 13, 2013); Greenwood v. City of Yoakum, Civil Action No. V-07-78, 2008 WL 1858902, at *3 (S.D. Tex. Apr. 24, 2008); Jacobs v. Port Neches Police Dep’t, No. 1:94-CV-767, 1996 WL 363023, at *13 (E.D. Tex. June 26, 1996)(all finding similar factual allegations sufficient to satisfy the pleading standard in use-of-force cases). The City’s argument that a Court in this District already determined its use of force policies to be adequate and not violative of § 1983 must also fail for many reasons. Most importantly, at this stage in the litigation, this Court must only determine whether the Westall Plaintiffs alleged sufficient facts to state a viable cause of action. This determination is dependent upon review of the Original Complaint in this case, only. Thus, the City’s Federal Rule 12(c) motion as it pertains to the City’s Use of Force policies is DENIED. (3) Allegation (e): Failure to Train Officers to Respond to Persons Experiencing a Mental Health Crisis, Including De-Escalation Techniques The City contends the Westall Plaintiffs’ allegations pertaining to failure to train must fail because they do not allege a pattern of violations related to mental-health calls, but instead refer to general use-of-force situations which do not involve a person experiencing a mental health crisis. The City also contends the Westall Plaintiffs’ allegation referring to the City’s sub- 9 sequent initiation or amendment of its policy with regard to officers’ treatment of mental health situations cannot serve as basis for meeting its pleading burden. In “limited circumstances,” a municipality’s failure to train its employees to avoid violating the rights of citizens may rise to the level of an official government policy to impose § 1983 liability. Connick, 563 U.S. at 61; World Wide Street Preachers Fellowship v. Town of Columbia, 591 F.3d 747, 756 (5th Cir. 2009). To assert a claim for municipality liable under § 1983 based on a policy of failure to train or inadequate training, the plaintiff must allege: (1) the subject training procedures of the municipality’s policymaker were inadequate; (2) the failure to supervise or train amounted to deliberate indifference to the plaintiff’s constitutional rights; and (3) a causal connection existed between the failure to supervise or train and the violation of the plaintiff’s rights. Roberts v. City of Shreveport, 397 F.3d 287, 292 (5th Cir. 2005). Baker v. Putnal, 75 F.3d 190, 200 (5th Cir. 1996); Benavides v. County of Wilson, 955 F.2d 968, 972 (5th Cir. 1992). A single constitutional violation resulting from inadequate training is ordinarily insufficient to hold a municipality liable for inadequate training. Thompson v. Upshur Cnty., 245 F.3d 447, 459 (5th Cir. 2001) (citing Snyder v. Trepagnier, 142 F.3d 791, 798-99 (5th Cir. 1998)). Usually, to satisfy the element of deliberate indifference, the plaintiff must allege a pattern of similar violations “to establish the official policy requisite to municipal liability under § 1983.” Thompson v. Upshur Cnty., 245 F.3d at 459. Only when a failure to train reflects a “deliberate” or “conscious” choice by a municipality can it be held liable for such a failure under § 1983. See City of Canton, 489 U.S. at 388. Thus, the plaintiff must allege facts to support the need for more or different training, or the alleged inadequacy is “so likely to result in the violation of constitutional rights, that the policymakers . . . can reasonably be said to have been delib10 erately indifferent to the need,” and “the failure to provide proper training may fairly be said to represent a policy for which the municipality is responsible.” City of Canton, 489 U.S. at 390; Thompson v. Upshur Cnty., 245 F.3d at 459. There are several problems with the Westall Plaintiffs’ allegations in the Original Complaint to support the cause for municipal liability based upon failure to train police officers to deescalate a situation involving a person in a known mental health crisis. To begin, the Westall Plaintiffs attempt to satisfy the burden of demonstrating a pattern of similar constitutional violations, or a “widespread practice” with facts and statistics about the City’s Police Department officers’ use of excessive force in instances that did not involve an individual who was in a mental health crisis. The incidences cited do not have the requisite specificity and similarity to establish a pattern or common practice. See Thompson v. Upshur Cnty., 245 F.3d at 459. “Prior indications cannot simply be for any and all bad or unwise acts but rather must point to the specific violation in question.” Peterson v. City of Fort Worth, Tex., 588 F.3d 838, 851 (5th Cir. 2009). The Westall Plaintiffs failed to allege any pattern of similar incidents in which citizens who were in a mental health crisis were injured by a police officer’s failure to use de-escalation techniques. Therefore, dismissal of this cause is warranted on this basis. Further, to the extent the Westall Plaintiffs attempt to allege the single incident involving Westall demonstrates the City’s deliberate indifference, their allegations are still insufficient. The fact that “a particular officer may be unsatisfactorily trained will not alone suffice to fasten liability on the [municipality], for the officer’s shortcomings may have resulted from factors other than a faulty training program.” City of Canton, 489 U.S. at 390; see also Farmer v. Brennan, 511 U.S. 825 (1994) “[P]roof of a single instance, rather than a pattern of similar violations normally will not sustain a plaintiff’s claim that such a lack of training or supervision caused a vio11 lation of her constitutional rights.” See Cozzo v. Tangipahoa Par. Council-President Gov’t, 279 F.3d 273, 286-87 (5th Cir. 2002). Thus, the Westall Plaintiffs’ allegations pertaining to this incident, alone, do not satisfy the deliberate indifference element. Further, accepting the facts as alleged in the Original Complaint as true, the Westall Plaintiffs failed to allege sufficient facts to support an argument that Sgt. Perry knew or had reason to know Westall had or was exhibiting mental health issues or exhibited signs of mental crisis. Instead, based upon the facts as alleged, Sgt. Perry was dispatched following several calls about a woman walking around a commercial establishment in front of a school with a weapon that looked like an “Uzi” on her back. The caller did not indicate a mental crisis or mental disturbance in place. There are no facts plead, or that can be reasonably inferred, to indicate Sgt. Perry had notice that Westall was in a mental health crisis. For this reason, the Westall Plaintiffs cannot support a cause of action based upon a failure to train for situations involving individuals in a mental health crisis, as this does not pertain to the facts as plead. Accordingly, the Court deems the Westall Plaintiffs’ allegations of the City’s failure to train or supervise its police officers to respond to mental-health calls are not sufficient to pass Federal Rule 12(c) scrutiny. B. Exemplary Damages The City contends it is entitled to dismissal of any claim for exemplary or punitive dam- ages because municipalities are immune from the imposition of punitive damages under § 1983. In response, the Westall Plaintiffs affirm they do not seek punitive damages against the City, but only with regard to their cause of action asserted against Sgt. Perry. 12 The Original Complaint is not clear with regard to this point. Consequently, to the extent the Original Complaint reflects any attempt to obtain punitive damages against the City, its’ Federal Rule 12(c) Motion for Judgment on the Pleadings is GRANTED. Conclusion For these reasons, the Court GRANTS IN PART and DENIES IN PART the City of San Antonio’s Motion for Judgment on the Pleadings. To the extent the Westall Plaintiffs seek punitive damages against the City, this claim is dismissed. To the extent the Westall Plaintiffs assert a § 1983 action against the City based upon a theory of conspiracy to employ an unwritten policy of making false statements and concealing evidence, this action is dismissed. To the extent the Westall Plaintiffs assert a § 1983 action against the City based upon a theory of failure to train police officers to properly respond to persons experiencing a mental health crisis, including but not limited to all proper de-escalation techniques, this action is dismissed. The City’s Federal Rule 12(c) motion as it pertains to the City’s Use of Force policies is DENIED It is so ORDERED. SIGNED this 18th day of November, 2021. JASON PULLIAM UNITED STATES DISTRICT JUDGE 13
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