William Babb, Plaintiff-appellant, v. David Anthony Dorman, and City of Richardson, Texas,defendants-appellees, 33 F.3d 472 (5th Cir. 1994)

William Babb appeals from the final judgment entered in the United States District Court for the Northern District of Texas dismissing his 42 U.S.C. § 1983 complaint against David Anthony Dorman and the City of Richardson, Texas. For the reasons stated below, we affirm.

This case arose out of the circumstances surrounding Babb's arrest and prosecution for public intoxication, in violation of Tex. Penal Code Ann. Sec. 42.08. According to the facts alleged in his amended complaint,¹  Babb and an intoxicated female passenger were traveling eastbound on East Arapaho Road in the City of Richardson, Texas (the "City") during the early morning hours of May 27, 1990 when the passenger became ill. Feeling that she might vomit at any moment, she suddenly thrust open the door on her side of the moving vehicle. After checking the view from behind and without violating any traffic laws, Babb pulled the automobile to the side of the road to assist her. Shortly thereafter, Dorman, an officer with the City police department, pulled up from behind in his squad car. He checked Babb's driver's license and questioned him about his prior activities that night, including his alcohol consumption. Babb explained that earlier he had been out playing darts and was forced to pull over when his passenger became ill. He also informed Dorman that he had consumed approximately five beers over the course of several hours, but stated that he was not intoxicated and felt fine. Dorman then requested Babb to step out of the automobile to perform several field sobriety tests. When Babb told Dorman that he was unable to effectuate three of the four tests because of back and knee injuries, Dorman placed him under arrest for driving while intoxicated ("DWI").

Babb was then transported to the City jail where he was videotaped performing various tests and answering questions. In addition, he was administered a Breathalyzer test, which registered a blood alcohol content of 0.08, a level below that required under Texas law for presumptive intoxication.²  At that point, Dorman changed the charge from DWI to public intoxication.³  Babb alleged that Dorman did so pursuant to an unconstitutional policy promulgated by the City whereby persons arrested for DWI are instead charged with public intoxication, without regard to probable cause, whenever a Breathalyzer test reveals a blood alcohol content of less than 0.10. He contended further that, in accordance with another City policy, Dorman caused the destruction of the videotaped interview, which would have established that he was not a danger to himself or others. On January 3, 1991, Babb went to trial for and was acquitted of the charge of public intoxication.

Babb subsequently filed this lawsuit urging that Dorman and the City, acting separately and in concert, willfully, knowingly and purposely deprived him of his constitutional rights of access to favorable evidence and to be free from arrest, detention and malicious prosecution without probable cause, as guaranteed by the Fourth, Fifth, Sixth and Fourteenth Amendments. In addition to these federal causes of action he alleged state common law claims for false arrest, false imprisonment and malicious prosecution.

Aside from the accusation about the destruction of the videotape, Babb advanced in his amended complaint certain legal conclusions in an effort to lend credence to his argument concerning the absence of the elements necessary to sustain the charge of public intoxication. In particular, he claimed that (1) the City jail was not a "public place" as specified in the public intoxication statute⁴  and (2) the crime of public intoxication requires a greater degree of intoxication to authorize a conviction than that necessary for a charge of DWI. Babb reasoned that the fact that Dorman chose not to charge him with DWI confirmed that his conduct did not rise to the necessary level of danger proscribed by the statute.

Along with their answers to the complaint, the defendants filed a joint motion to dismiss pursuant to Fed. R. Civ. P. 12(b) (6), asserting that the allegations made therein were insufficient to meet the "heightened" pleading requirement necessary to overcome a defense of qualified immunity available to Dorman.⁵  In addition, they maintained that the statements charging a conspiracy between Dorman and the City were conclusory and therefore failed to state a claim for relief.

Babb responded to the motion to dismiss, reiterating the factual allegations of his complaint and arguing once again that Dorman's failure to pursue the charge of DWI proved that he was possessed of the normal use of his mental and physical faculties within the meaning of the DWI statute. He extrapolated that, given the retention of these capacities, he could not possibly have been such a danger to himself or others as required by Texas law to support his arrest for public intoxication. He repeated that the City jail where he was charged with the offense was not a "public place" within the meaning of the public intoxication statute and that these factors, considered together, established the lack of probable cause for the charge. With respect to the heightened pleading standard, he alleged

that Defendant DORMAN knew or should have known that the legal standards for the offense of Public Intoxication are greater than that for DWI. Clearly, the complaint demonstrates that Defendant Dorman knew or should have known that if Plaintiff could not be arrested for the offense of DWI, no probable cause would exist to arrest Plaintiff for the offense of Public Intoxication.... Further, the Plaintiff contends that the jail is not a public place as defined by Texas law. Further, Plaintiff's Complaint clearly contends that the arrest for Public Intoxication was accomplished without probable cause.

(R1-49).

The district court granted the defendants' motion and dismissed the claims for damages against Dorman as well as the conspiracy count against the City. Babb then sought leave to amend the complaint and submitted a proposed second amended complaint, which was substantively identical to the amended complaint under scrutiny here, except for an added allegation that Dorman's actions violated clearly established law. (See R1-74, p 19). The district court denied leave to amend, granted the City's motion for summary judgment on the charges respecting its alleged illegal policies and entered final judgment in favor of the defendants.⁶ 

On appeal, Babb urges again that there was no probable cause to charge him with public intoxication and that his pleadings were sufficient to defeat Dorman's qualified immunity defense. He also claims that the district court abused its discretion by denying him leave to file the second amended complaint. He further challenges the dismissal of the conspiracy count, as well as the grant of summary judgment to the City.

Our review of the record reveals that summary judgment in favor of the City was plainly warranted and does not merit further discussion. Although the City concedes on appeal that the district court's reasoning behind its dismissal of the conspiracy count was faulty, with which we agree,⁷  we nevertheless affirm for the reason that Babb's allegations regarding the conspiracy are conclusory at most. See Lynch v. Cannatella, 810 F.2d 1363, 1369-70 (5th Cir. 1987) (bald allegations of conspiracy are insufficient to state a Sec. 1983 claim); Coral Petroleum, Inc. v. Banque Paribas-London, 797 F.2d 1351, 1355 n. 3 (5th Cir. 1986) (district court's judgment may be affirmed on any appropriate ground). We address Babb's remaining contentions in turn.A. Probable cause and sufficiency of the complaint

In Elliott v. Perez, 751 F.2d 1472 (5th Cir. 1985), this court announced a heightened pleading standard which must be satisfied whenever there is alleged a defense of qualified immunity. In such cases, the complaint must "state with factual detail and particularity the basis for the claim which necessarily includes why the defendant-official cannot successfully maintain the defense of immunity." Id. at 1473. Before us, Babb takes the position that Elliott is no longer valid authority after Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. ----, 113 S. Ct. 1160, 122 L. Ed. 2d 517 (1993), in which the Supreme Court struck down the heightened pleading requirement in Sec. 1983 actions against municipalities. See id. at ----, 113 S. Ct. at 1163, 122 L. Ed. 2d at 524. In so doing, however, the Court cautioned that "municipalities do not enjoy immunity from suit--either absolute or qualified--under Sec. 1983." Id. at ----, 113 S. Ct. at 1162, 122 L. Ed. 2d at 523. The Court, thus, had "no occasion to consider whether ... qualified immunity jurisprudence would require a heightened pleading in cases involving individual government officials." Id. Given this express reservation of the issue, we decline to read into Leatherman any change in the law respecting actions against individual municipal defendants and conclude that we are still bound by Elliott and its progeny in determining whether Babb stated a claim against Dorman.

"Qualified" or "good faith" immunity shields government officials performing discretionary functions from liability "unless their conduct violates 'clearly established statutory or constitutional rights of which a reasonable person would have known.' " Jacquez v. Procunier, 801 F.2d 789, 791 (5th Cir. 1986) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738, 73 L. Ed. 2d 396, 410 (1982)); see also Streetman v. Jordan, 918 F.2d 555, 556 (5th Cir. 1990); Saldana v. Garza, 684 F.2d 1159, 1162-65 (5th Cir. 1982), cert. denied, 460 U.S. 1012, 103 S. Ct. 1253, 75 L. Ed. 2d 481 (1983). The protection afforded by the defense is an "immunity from suit, not simply immunity from liability." Geter v. Fortenberry, 849 F.2d 1550, 1552 (5th Cir. 1988). Consequently, we have long held that "questions regarding qualified immunity are resolved on the face of the pleadings and with limited resort to pre-trial discovery." James v. Sadler, 909 F.2d 834, 838 (5th Cir. 1990); see also Hunter v. Bryant, 502 U.S. 224, ----, 112 S. Ct. 534, 536, 116 L. Ed. 2d 589, 595 (1991) (stressing the importance of resolving the immunity issue at the earliest possible stage of the litigation since it entails an entitlement to immunity from suit and not merely a defense to liability).

In suits alleging illegal arrest, the qualified immunity determination turns on whether " 'a reasonable officer could have believed [the arrest] to be lawful, in light of clearly established law and the information the ... officer [ ] possessed.' Even law enforcement officials who 'reasonably but mistakenly conclude that probable cause is present' are entitled to immunity." Hunter, 502 U.S. at ----, 112 S. Ct. at 536, 116 L. Ed. 2d at 595 (quoting Anderson v. Creighton, 483 U.S. 635, 641, 107 S. Ct. 3034, 3039-40, 97 L. Ed. 2d 523, 531-32 (1987)); see also Gorra v. Hanson, 880 F.2d 95, 97 (8th Cir. 1989) ("the issue is 'not probable cause in fact but "arguable" probable cause.' ") (quoting Floyd v. Farrell, 765 F.2d 1, 5 (1st Cir. 1985)); Saldana, 684 F.2d at 1164 (police officer may be immune from liability under Sec. 1983 even if it is later determined that probable cause for an arrest did not exist). The qualified immunity defense protects "all but the plainly incompetent or those who knowingly violate the law." Malley v. Briggs, 475 U.S. 335, 341, 106 S. Ct. 1092, 1096, 89 L. Ed. 2d 271, 278 (1986). Thus, a qualified immunity defense cannot succeed where it is obvious that a reasonably competent officer would find no probable cause. Id. On the other hand, "if officers of reasonable competence could disagree on this issue, immunity should be recognized." Id. Keeping in mind Elliott 's heightened pleading requirement, therefore, we must look to whether Babb has alleged sufficient facts from which it can be discerned that no reasonable officer could have believed that probable cause existed to arrest him for public intoxication.⁸  Our review of this question is de novo. Elder v. Holloway, 510 U.S. ----, ----, 114 S. Ct. 1019, 1023, 127 L. Ed. 2d 344, 351 (1994).

Babb's contention that Dorman knew or should have known there was no probable cause to change the charge to one for public intoxication turns in large measure upon his assertion that, as a matter of law, the Texas public intoxication statute requires a degree of intoxication greater than that necessary to sustain a conviction for DWI. He claims this is so because the Texas legislature specifically provided that public intoxication is not a lesser included offense of DWI, see Tex. Penal Code Ann. Sec. 42.08(g), and because Texas caselaw uniformly recognizes that a high degree of impairment must be present to justify an arrest for public intoxication.

We have observed on more than one occasion that, " 'in holding our law enforcement personnel to an objective standard of behavior, our judgment must be tempered with reason.' " Gassner v. City of Garland, Tex., 864 F.2d 394, 397 (5th Cir. 1989) (quoting Saldana, 684 F.2d at 1165).

An officer on the beat is not expected to have and apply the knowledge of a constitutional scholar, whose stock in trade is giving concrete application to lofty, abstract legal principles.... Rather, we ask only that he act in accordance with what a reasonable officer "should or should not know about the law he is enforcing."

Id. (quoting Saldana, 684 F.2d at 1165).

While it is true that public intoxication may not be a lesser included offense of DWI, this fact alone does not preclude a police officer from charging an individual with public intoxication rather than DWI when, in the exercise of his discretion, the circumstances warrant an arrest for that offense. Furthermore, after conducting an exhaustive review of the Texas cases dealing with public intoxication, we can confidently state that it is not clearly established that the offense of public intoxication requires, in all instances, a degree of intoxication greater than that for DWI.⁹ 

We further hold that, in light of the facts alleged and the established law, a reasonable officer could have believed that he was justified in holding the appellant for public intoxication.¹⁰  According to the amended complaint, Dorman knew that Babb was operating an automobile after having consumed five beers, which resulted in a blood alcohol content of 0.08. He also knew that Babb had entrusted to his care, an extremely intoxicated passenger who required sudden assistance at a time when Babb was traveling on a public road.¹¹  Even treating as true Babb's contentions that he did not feel intoxicated or violate any traffic laws, as we must on a motion to dismiss, a blood alcohol level of 0.08 indicates some intoxication and impairment. We cannot say, under these circumstances, that an officer could not have reasonably believed that Babb was a danger to himself or others within the meaning of Tex. Penal Code Ann. Sec. 42.08(a). To defeat the motion to dismiss, Babb was required to allege facts showing not only that this charge was illegal, but that it "was so illegal as to violate clearly established law." Saldana, 684 F.2d at 1165. This, he failed to do.

The fact that Babb was later acquitted of the offense is of no consequence. For purposes of probable cause, " [t]he determination as to the possible danger element is reviewed not under the standard used in a judicial determination of guilt," Berg v. State, 720 S.W.2d 199, 201 (Tex.App.--Houston [14th Dist.] 1986, writ ref'd), but rather by "whether at that moment the facts and circumstances within [Dorman's] knowledge and of which [he] had reasonably trustworthy information were sufficient to warrant a prudent man in believing that [Babb] had committed or was committing an offense [,]" Beck v. Ohio, 379 U.S. 89, 91, 85 S. Ct. 223, 225, 13 L. Ed. 2d 142, 145 (1964). We therefore affirm the district court's finding that his amended complaint failed to allege facts sufficient to overcome Dorman's qualified immunity defense.¹² 

Babb also contends that the district court abused its discretion by denying him leave to amend his complaint a second time after dismissing the claims against Dorman for failure to satisfy the heightened pleading requirement. Ordinarily, a district court should provide a plaintiff with the opportunity to cure such a defect. Procunier, 801 F.2d at 792. Here, however, Babb filed a detailed response to the motion to dismiss in which he urged that his amended complaint was sufficient. Moreover, his proposed second amended complaint added nothing to aid in the determination of the qualified immunity issue except for the legal conclusion that Dorman's actions violated clearly established law. However, " [t]o state a claim, a pleader must allege facts, not legal conclusions." Hanson v. Town of Flower Mound, 679 F.2d 497, 504 (5th Cir. 1982). On this record we find no error in denying the amendment. Another pleading "would do nothing but prolong the inevitable, and would only subject the defendants to exactly those hardships the [qualified] immunity doctrine is supposed to relieve." Procunier, 801 F.2d at 793.

Having carefully considered the facts as alleged and the relevant law pertaining thereto, we agree with the district court that the appellant has failed to rebut Dorman's asserted good faith immunity defense. The district court's judgment is therefore AFFIRMED.