Opinion
Civil No. 3: 04-CV-755-H.
January 13, 2005
MEMORANDUM OPINION AND ORDER
Before the Court are Defendants City of Terrell and Michael Sterrett's 12(b)(6) Motion to Dismiss Plaintiff's Fourth Amended Complaint, filed September 9, 2004; Plaintiff's Response, filed November 16, 2004; and Defendants' Reply, filed November 26, 2004. Upon review of the pleadings, briefs, and relevant authorities, the Court is of the opinion for the reasons stated below that Defendants' Motion should be GRANTED in part and DENIED in part.
I. BACKGROUND
Plaintiff's Fourth Amended Complaint, filed August 30, 2004, alleges that on January 22, 2002, unknown officers, i.e., Jane Doe and John Doe Defendants ("drug task force officers"), who were members of a drug task force unit acting as agents and representatives of the City, entered her apartment without a warrant or probable cause. (Pl.'s 4th Am. Compl. at 5.) The factual background which follows is taken from Plaintiff's Fourth Amended Complaint and assumed to be true by the Court.
The drug task force officers entered Plaintiff's home acting on a tip from Defendant Sterrett, a City Police Officer, claiming that Plaintiff was harboring a fugitive. ( Id. at 6-7.) The task force officers pushed their way past her boyfriend and into her apartment without a warrant. ( Id. at 6.) Plaintiff was in her bedroom, naked and eight-months pregnant, when the officers barged into her room. ( Id.) Although Plaintiff demanded to see a search warrant, the officers ignored her request, demanded that she dress, and then refused her request that a female officer replace the male officers to watch Plaintiff dress. ( Id. at 6-7.) Plaintiff "suffered great shame, embarrassment, indignity, and severe emotional distress because she was compelled to dress in the presence of strangers, male officers." ( Id. at 7.)
The officers searched her apartment and rummaged through her things. ( Id.) At one point, a drug task force officer had his hand on his gun in a threatening manner and threatened to arrest Plaintiff. ( Id.) Plaintiff informed the officers that she had served her sentence and requested that they verify this information with the Administrative Sergeant at the City Police Department. ( Id.) Contrary to municipal policy, "[t]he officer contacted the Administrative Sergeant at Terrell, yet did not verify her claim of already serving her sentence and/or paying for the charge or other statements to the police." ( Id. at 7, 8-9.) The Administrative Sergeant told the drug task force officers to arrest Plaintiff, which they did. ( Id.)
During the arrest, Plaintiff informed the officers that her two children would be returning from school to an empty house, but the drug task force officers callously ignored her. ( Id. at 8.) Plaintiff also informed the officers that she was suffering from an "rh factor" medical condition which could adversely affect the health of her unborn child, but that the drug task force officers refused her medical attention. ( Id.) After Plaintiff was taken to the police department and "booked in on previously-prosecuted/paid charges which were not removed from the computer warrant system" ( id. at 7-8), the City learned that it had wrongfully arrested Plaintiff, dropped the charges, and released her. ( Id. at 8.)
Plaintiff asserts claims under 42 U.S.C. § 1983 for the alleged "illegal search and seizure of Plaintiff's person, effects, and home;" "unlawful arrest, detention, and imprisonment;" violations of her "right to privacy of her home and person;" violations of her rights to due process of law, equal protection, freedom of speech, and freedom from the use of excessive force; and violations of her right to medical attention. Defendants Sterrett and the City now move to dismiss all of Plaintiff's claims against Sterrett and the City under Federal Rule of Civil Procedure 12(b)(6). Defendants claim that Plaintiff failed to plead facts sufficient to establish Defendant City's liability or overcome Defendant Sterrett's qualified immunity defense.
II. STANDARD OF REVIEW AND APPLICABLE LAW
A. 12(b)(6) Motion to Dismiss
In considering a motion to dismiss a complaint for failure to state a claim, the Court must accept as true the non-movant's well-pleaded factual allegations and any reasonable inferences to be drawn therefrom. Tuchman v. DSC Communications Corp., 14 F.3d 1061, 1067 (5th Cir. 1994). To avoid dismissal for failure to state a claim, however, a plaintiff "must plead specific facts, not mere conclusory allegations." Guidry v. Bank of LaPlace, 954 F.2d 278, 281 (5th Cir. 1992) (citation omitted). Thus, the Court will not accept as true any conclusory allegations or unwarranted deductions of fact. Generally, the Court may not look beyond the pleadings, except in instances where public officials' qualified immunity is raised. Compare Mahone v. Addicks Util. Dist., 836 F.2d 921, 936 (5th Cir. 1988) with Babb v. Dorman, 33 F.3d 472 (5th Cir. 1994), and Schultea v. Wood, 47 F.3d 1427 (5th Cir. 1995), and Elliot v. Perez, 751 F.2d 1472 (5th Cir. 1985).
Dismissal for failure to state a claim is not favored by the law. Mahone, 836 F.2d at 926. A plaintiff's "complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957); see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974) ("The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims."); Heimann v. National Elevator Industry Pension Fund, 187 F.3d 493, 502 (5th Cir. 1999) (court may dismiss a claim under 12(b)(6) only if "it appears that no relief could be granted under any set of facts that could be proved consistent with the allegations.") (quoting Barrientos v. Reliance Standard Life Ins. Co., 911 F.2d 1115 (5th Cir. 1990). However, "there are times when a court should exercise its power to dismiss a complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure." Mahone, 836 F.2d at 927.
B. Qualified Immunity
"Qualified immunity protects officers from suit unless their conduct violates a clearly established constitutional right." Mace v. City of Palestine, 333 F.3d 621, 623 (5th Cir. 2003); see also, Todd v. Hawk, 72 F.3d 443, 446 (5th Cir. 1995). The Court conducts a two step analysis to determine if an officer is entitled to qualified immunity. See Mace, 333 F.3d at 623. First, the Court determines if the facts, as alleged, show that the officer's conduct violated a clearly established constitutional right. Id. If the facts do show that the officer's conduct violated a clearly established constitutional right, the Court then determines if it "would be clear to a reasonable officer that his conduct was unlawful in the situation confronted." Id. at 624.
The burden of pleading to overcome the issue of qualified immunity rests with Plaintiff. See Salas v. Carpenter, 980 F.2d 299, 306 (5th Cir. 1992). Since Leatherman v. Tarrant Co. Narcotics Intelligence Coord. Unit, 507 U.S. 163, 113 S.Ct. 1160, 1163 (1993), this pleading requirement requires a specific factual allegation to support each material fact — generalized factual pleadings are insufficient to overcome a qualified immunity defense. See Reyes v. Sazan, 168 F.3d 158 (5th Cir. 1999); Schultea v. Wood, 47 F.3d 1427 (5th Cir. 1995) (en banc).
C. Municipal Liability
A municipality will not be liable under § 1983 on the basis of respondeat superior alone. See Monell v. Dept. of Social Services, 436 U.S. 658, 690 (1978). Municipal liability requires that the alleged unconstitutional action be the result of municipal policy. See id. at 690-91.
Municipal policy for purposes of section 1983 liability may consist of
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.Johnson v. Deep East Texas Reg'l Narcotics Trafficking Task Force [DETRNTTF], 379 F.3d 293, 309 (quoting Johnson v. Moore, 958 F.2d 92, 94 (5th Cir. 1992)). "[O]nly those municipal officers who have `final policymaking authority' may by their actions subject the government to § 1983 liability." City of St. Louis v. Praprotnik, 485 U.S. 112, 123, 108 S.Ct. 915, 924 (1988). Where a municipal policy, practice, or custom is alleged, it must reflect "deliberate indifference to the risk that a violation of a particular constitutional or statutory right will follow the decision." Bd. of County Comm'rs of Bryan County, Okl. v. Brown, 520 U.S. 397, 411, 117 S.Ct. 1382, 1392 (1997).
[A] direct causal connection must exist between the policy and the alleged constitutional deprivation. This connection must be more than a mere `but for' coupling between cause and effect. To form the basis of liability under § 1983, a municipal policy must be affirmatively linked to the constitutional violation and be the moving force behind it.DETRNTTF, 379 F.3d at 310. See also Callis v. Sellars, 931 F.Supp. 504, 505 (S.D. Tex. 1996). "Boiler plate allegations of municipal policy, entirely lacking in any factual support that a municipal policy does exist, are insufficient." Baxter v. Vigo County Schl. Corp., 26 F.3d 728, 736 (7th Cir. 1994). Where an official municipal policy exists, the constitution is violated when the policy is facially unconstitutional or when the policy, known by the final decisionmaking authority to be inadequate, is consciously implemented, results in a constitutional violation. See Gonzalez v. Ysleta Indep. Schl. Dist., 996 F.2d 745, 755-56 (5th Cir. 1993).
Therefore, to establish municipal liability, Plaintiff must allege (1) a constitutional violation; (2) the existence of a specific policy, practice, or custom; (3) that the identified policy, practice, or custom was the moving force behind the constitutional violation; (4) that the policy, practice, or custom was established by the final policymakers of the municipality or attributable to them; and (5) that either the official policy constitutes a facial violation of the constitution or that the final policymakers exhibited deliberate indifference as to Plaintiff's constitutional rights which were the subject of the constitutional violation. See DETRNTTF, 379 F.3d at 308-311.
III. ANALYSIS
Plaintiff alleges illegal search and seizure, excessive force, unlawful arrest, detention, and imprisonment, and violations of privacy and due process rights, all pursuant to 42 U.S.C. § 1983. Defendants move to dismiss all of Plaintiff's claims against them, arguing that Plaintiff has failed to allege sufficient facts to overcome Sterrett's right to qualified immunity or to establish municipal liability under 42 U.S.C. § 1983.
The Court dismissed some of Plaintiff's claims in its Memorandum Opinion and Order ("Order") entered August 17, 2004. The Court dismissed Plaintiff's medical inattention, equal protection, and free speech claims. (Order at 8-9.) The Parties repled these issues to preserve them for appeal without further material factual support or argument. Therefore the Court relies upon its Order for its reasoning in dismissing these claims. Defendants reassert their argument that Plaintiff's case was filed after the statute of limitations had lapsed for purposes of appeal. The Court relies upon its reasoning in its Order entered August 17, 2004, for its denial of Defendants' Motion on statute of limitations grounds.
A. Search and Seizure
Plaintiff claims that Defendants conducted an improper search and seizure of Plaintiff's person and property. (Pl.'s 4th Am. Compl. at 10.) Plaintiff's claims of unreasonable search and seizure are based on the Fourth Amendment. See Brower v. County of Inyo, 489 U.S. 593 (1989); Thomas v. Kipperman, 846 F.2d 1009, 1011 (5th Cir. 1988).
1. Defendant Sterrett
Plaintiff alleges an unconstitutional search and seizure as the direct result of Sterrett's telephone call. (Pl.'s 4th Am. Compl. at 6.) Plaintiff does not allege that Sterrett was directly involved in the search and seizure, but only that "[a]t the time Sterrett made the telephone call to the drug task force, he knew that persons living in the apartment across the hall from Earnheart had the same surname as the fugitive, and had a familial relationship, but intentionally directed the drug task force officers to Earnheart's residence instead." (Pl.'s 4th Am. Compl. at 6.) A reasonable inference exists from Plaintiff's Fourth Amended Complaint that Sterrett acted with reckless disregard for the truth of whether the fugitive might be present in Plaintiff's home. If Sterrett acted with reckless disregard for the truth or made the phone call, without legal basis, with the intent of harassing Plaintiff, the Court cannot dismiss Plaintiff's actions against Sterrett on the search and seizure claim. See Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674 (1978) (omissions and false statements in an affidavit supporting a warrant made knowingly and intentionally, or with reckless disregard for the truth, are not considered in determining whether probable cause exists). Accordingly, Defendants' Motion to Dismiss Plaintiff's unconstitutional search and seizure claims against Defendant Sterrett is DENIED.
2. Defendant City
Plaintiff asserts two municipal policies, practices, or customs which arguably might relate to Plaintiff's unconstitutional search and seizure claim: Defendant City (a) had a "widespread practice of favoritism with respect to Sterrett and `looked the other way' when it came to the sexual complaints or any other complaints against Sterrett" and permitted him to be a "rogue cop" (Pl.'s 4th Am. Compl. at 3, 4); and (b) had a practice of inadequately training or supervising its employees. ( Id. at 11.)
a. Policy, Practice, or Custom of "Looking the Other Way" Regarding Sterrett
As to the first alleged practice, Plaintiff's allegations are conclusory. Plaintiff fails to allege a factual basis to support Plaintiff's claim that the City "looked the other way" regarding any non-sexual complaint because Plaintiff fails to allege the existence of any non-sexual complaint.
As to Plaintiff's allegation that the City did not discipline Defendant Sterrett or "looked the other way" regarding sexual complaints, Plaintiff alleges that two City councilpersons and the City Personnel Director told the Police Chief that at least one African-American officer should be on the force. (Pl.'s 4th Am. Compl. at 4.) Sterrett is an African-American. ( Id. at 3.) This allegation, however, does not establish that the City's final decision makers (who presumably are the councilpersons) (1) wanted officer Sterrett to remain on the force; or (2) acted with deliberate indifference to the rights of the City's residents.
Plaintiff also alleges that "[t]he City and the Chief of Police . . . knew of at least a `dozen' sexual complaints against Sterrett as of 1998." (Pl.'s 4th Am. Compl. at 4.) Plaintiff, however, does not allege that City's policy of not disciplining Sterrett was the "moving force" behind Sterrett's phone call or the deprivation of Plaintiff's constitutional rights. Furthermore, Plaintiff does not allege, with specificity, that the final decision makers for the City acted with a deliberate indifference to the rights of Plaintiff which were allegedly violated. That is, Plaintiff fails to allege that the City's failure to discipline Sterrett for any alleged sexual misconduct had the known or obvious consequence of his phone call related to the possible presence of a fugitive in Plaintiff's home. Plaintiff also failed to allege with particularity that the City's final decision makers acted with deliberate indifference as to this known or obvious consequence. Therefore, Plaintiff has failed to plead the elements necessary to support municipal liability under 42 U.S.C. § 1983 for the alleged municipal practice of "looking the other way" and not disciplining Sterrett. Accordingly, the Court DISMISSES these claims against the City.
b. Policy, Practice, or Custom of Inadequate Training and Supervision
Plaintiff alleges that the City fails to train its officers in a manner which would prevent illegal searches and seizures. (Pl.'s 4th Am. Compl. at 11.) Plaintiff, however, fails to identify any specific inadequate training policy or supervision which was selected by the City's final decision makers and which caused Plaintiff's injury, let alone that such selection was a result of their deliberate indifference or that the policy is facially unconstitutional. Accordingly, Plaintiff's training and supervision claims must fail. See City of Canton v. Harris, 49 U.S. 378, 385-87, 389, 109 S.Ct. 1197, 1202-05 (1989) (training); Baker v. Putnal, 75 F.3d 190, 200 (5th Cir. 1996) (same); Doe v. Rains County Indep. Schl. Dist., 66 F.3d 1402, 1409 (5th Cir. 1995) (supervision); Lopez v. Houston Indep. Schl. Dist., 817 F.2d 351, 355 (5th Cir. 1987) (same). Accordingly, Plaintiff's unconstitutional search and seizure claims against Defendant City are DISMISSED.
Plaintiff also cursorily alleges that the City has a policy of not disciplining officers, but does not allege for what behavior discipline was appropriate but not meted out, or how such a failure is in any way related to or the cause of Plaintiff's alleged constitutional violations. For the same reasons provided in this section and elsewhere, the Court DISMISSES Plaintiff's failure to discipline claim not related to Sterrett for failure to state a claim upon which relief can be granted.
B. Unlawful Arrest, Detention, and Imprisonment
Under the Fourth Amendment, an individual may be arrested without a warrant if probable cause to do so exists. Graham v. Connor, 490 U.S. 386, 394 (1989); Papachristou v. City of Jacksonville, 405 U.S. 156 (1972). Probable cause exists when an officer has knowledge or trustworthy information which would create a belief in a person of reasonable caution that an offense has been committed. TEX. CODE CRIM. P., art. 14.01(b); United States v. Wadley, 59 F.3d 510, 512 (5th Cir. 1995); see Dunaway v. New York, 442 U.S. 200, 208 n. 9 (1979). Whether probable cause exists depends upon the officer's knowledge at the time of the arrest. Martin v. Thomas, 973 F.2d 449, 453 (5th Cir. 1992). So long as the officer's belief is reasonable, even if ultimately incorrect, liability cannot be imposed. Baker v. McCollan, 443 U.S. 137, 144-45 (1979). Therefore, the evidence necessary to support an arrest need not be sufficient to convict the arrested individual. United States v. Tinkle, 655 F.2d 617, 621 (5th Cir. 1981), cert. denied, 455 U.S. 924 (1982).
1. Defendant Sterrett
Whether the drug task force officers arresting Plaintiff had probable cause is not relevant to whether Sterrett violated Plaintiff's right to be free from unlawful arrest, detention, or imprisonment. Rather, the issue is whether Sterrett had probable cause to make the call. (Order at 7 n. 1.) A reasonable inference exists from Plaintiff's Fourth Amended Complaint that Plaintiff may be able to prove that Sterrett acted with reckless disregard for the truth as to the presence of the fugitive in Plaintiff's home. Therefore, Plaintiff has sufficiently pled that Sterrett lacked probable cause to make the phone call. Accordingly, Defendants' Motion to Dismiss Plaintiff's illegal arrest, detention, and imprisonment claims against Sterrett is DENIED.
2. Defendant City
Plaintiff alleges that the City had a policy of not confirming warrants prior to arrest. (Pl.'s 4th Am. Compl. at 10-11.) Plaintiff acknowledges that upon her request, a drug task force officer called the Administrative Sargent prior to arresting Plaintiff and that the Administrative Sargent "told the officer to arrest Plaintiff." ( Id. at 7.) Plaintiff does not allege that the Administrative Sargent did not check the computer warrant system before telling the officer to arrest Plaintiff. Plaintiff alleges that she was charged with "previously-prosecuted/paid charges which were not removed from the computer warrant system." ( Id. at 7-8.) Therefore, if the Administrative Sargent had checked the computer warrant system, the Administrative Sargent would have seen that there was an outstanding warrant. Therefore, the Administrative Sargent could have ordered the arrest of Plaintiff even if he had checked the computer warrant system. As a result, Plaintiff fails to establish an injury-in-fact arising from her allegation that the City had a policy of not confirming warrants prior to arrest.
Plaintiff also alleges that the City has a policy of not clearing warrants no longer outstanding. ( Id. at 10-11.) This is supported by her allegations that she was arrested on a cleared warrant and that the warrant was not cleared from the system. ( Id. at 7-8.) Plaintiff also alleges that the City policy makers knew of prior instances when individuals were arrested on paid warrants not cleared in the system. ( Id. at 9.) Plaintiff alleges that "[a]t one point, the City froze its warrants on two occasions because people were getting arrested after the warrants were cleared" and that the City "policy is to check and ensure that warrants or tickets have been paid when a detainee informs the City that payment of outstanding warrants or tickets has been made." ( Id.) Because the policy is not facially unconstitutional, Plaintiff must allege that the City's practice or custom is one based on deliberate indifference.
Plaintiff alleges that the policy is not adequately enforced. ( Id.) Plaintiff does not, however, allege that the lack of enforcement was the result of the City's deliberate indifference to the rights of individuals. It is well settled that a plaintiff must plead "that, through its deliberate conduct, the municipality was the `moving force' behind the injury alleged. That is, a plaintiff must show that the municipal action was taken with requisite degree of culpability and must demonstrate a direct causal link between the municipal action and the deprivation of federal rights." Bryan County, 520 U.S. at 404, 117 S.Ct. at 1388. This standard is one of "deliberate indifference as to [the policy's] known or obvious consequences . . . a showing of simple or even heightened negligence will not suffice." Id. at 407, 117 S.Ct. at 1390 (internal quotation and citation omitted). Plaintiff's pleadings have failed to meet this burden regarding her claim that the City had a policy of not clearing warrants no longer outstanding.
To the extent that Plaintiff alleges that the City's policy of not disciplining Sterrett is applicable in the unlawful arrest context, the Court finds the pleadings insufficient to establish municipal liability for the same reasons discussed above in the search and seizure context. Accordingly, Plaintiff's unlawful arrest, detention, and imprisonment claims against Defendant City are DISMISSED.
C. Violation of Privacy
Plaintiff also asserts a violation of the right to privacy based on the fact that the drug task force officers entered the apartment while she was naked and forced her to change in their company, without allowing Plaintiff to change in front of a female officer. (Pl.'s 4th Am. Compl. at 6-7.) Plaintiff does not provide any factual basis for an inference that Sterrett's call was the cause of the drug task force officers' alleged actions. Plaintiff therefore fails to meet her burden to plead facts sufficient to overcome Sterrett's qualified immunity defense. Accordingly, Plaintiff's right to privacy claim against Sterrett is DISMISSED. Similarly, Plaintiff alleges no municipal policy, practice, or custom responsible for the drug task force officers' behavior, let alone that such policy was made with deliberate indifference to Plaintiff's right to privacy. Accordingly, Plaintiff's privacy claim against Defendant City is DISMISSED.
D. Violation of Due Process
Violations of constitutional rights which are addressed by a specific amendment must analyzed under that amendment, rather than under the Due Process Clause. Graham v. Connor, 490 U.S. 386, 395 (1989). Plaintiff appears to allege only two violations which might be considered due process violations: her excessive force claim and her failure to protect her children claim. These claims are addressed in turn below.
1. Excessive Force
Plaintiff does not allege that Sterrett's phone call caused the use of excessive force by the drug task force officers. Therefore, Plaintiff fails to state a claim against Defendant Sterrett for the use of excessive force. Similarly, Plaintiff alleges no municipal policy, practice, or custom which is a "moving force" behind the drug task force officers' use of excessive force. Accordingly, Plaintiff's excessive force claims against Sterrett and the City are DISMISSED.
2. Failure to Protect Children
Plaintiff alleges that the arresting officers failed to protect her children by leaving them unsupervised upon her arrest. (Pl.'s 4th Am. Compl. at 8.) Plaintiff's claim that the drug task force officers failed to protect her children is analyzed under the State-Created Danger doctrine. Johnson v. Dallas Indep. Sch. Dist., 38 F.3d 198 (5th Cir. 1994). That doctrine has never been recognized by the Fifth Circuit. See Piotrowski v. City of Houston, 237 F.3d 567, 584 (5th Cir. 2001). This Court need not decide to do so since no harm was inflicted upon Plaintiff's children. Cf. Bright v. Westmoreland County, 380 F.3d 729, 737 (3d Cir. 2004) (requiring that the "harm ultimately caused [be] foreseeable" and that "the state [action be] in willful disregard for the safety of the plaintiff").
Plaintiff does not allege that her children were ever taken into state custody or that any defendant had a duty to take her children into custody. See Walton v. City of Southfield, 995 F.2d 1331 (6th Cir. 1993) (finding no special relationship or liability where parent was arrested and children were abandoned, when children were not taken into custody). Where there exists no special relationship between the state actors and the children, no duty may be imposed on the state actors to prevent harm caused by third parties. Id. Plaintiff also fails to allege that Defendant Sterrett was involved in the drug task force officers' decision regarding the supervision of Plaintiff's children or that a municipal policy, practice or custom existed which caused the alleged state-created danger. Plaintiff's emotional damages resulting from her fear of her children's safety is insufficient to establish a Due Process Clause violation.
For all of the above reasons, Plaintiff's due process claims based on the Defendants Sterrett and the City's failure to protect her children are DISMISSED. Additionally, the Court DISMISSES sua sponte Plaintiff's due process claims based on Defendants John and Jane Does alleged failure to protect Plaintiff's children for failure to state a claim based on the above reasoning.
3. Other
To the extent that Plaintiff claims other due process violations, those claims are DISMISSED as frivolous and unsupported by Plaintiff's pleadings.
D. Sexual Harassment
Plaintiff alleges that Sterrett used his position as officer to harass Plaintiff in a sexual manner. (Pl.'s 4th Am. Compl. at 3.) Plaintiff does not allege that Defendant Sterrett's phone call is related to Sterrett's past instances of sexual harassment. There being no nexus between the phone call and the alleged sexual harassment, Plaintiff cannot assert a continuing § 1983 violation of sexual harassment occurring prior to the phone call. The alleged sexual harassment took place prior to January 22, 2002. ( See Pl.'s 4th Am. Compl. at 3.) Plaintiff filed her case on January 22, 2004. Since a two year statute of limitations applies to this action, the Court concludes that Plaintiff's sexual harassment claims, to the extent they are raised, are barred by the statute of limitations. See Bell v. City of Houston, 115 Fed. Appx. 294 (5th Cir. 2004).
To the extent that Plaintiff's allegations of sexual harassment are related to the events of January 22, 2002, neither Plaintiff's pleadings nor Plaintiff's Response suggest that Sterrett's harassment violated the Constitution. Accordingly, Plaintiff's claims for sexual harassment against Defendants Sterrett and City under 42 U.S.C. § 1983 are DISMISSED.
IV. CONCLUSION
Now at the Fourth Amended Complaint, Plaintiff has had multiple opportunities to plead her case. The Court assumes that Plaintiff has pled her best case and will not allow further amendment to replead claims against Defendants Sterrett and the City. See Morin v. Caire, 77 F.3d 116, 121 (5th Cir. 1996); Jacquez v. Procunier, 801 F.2d 789, 792-93 (5th Cir. 1986); Morrison v. City of Baton Rouge, 761 F.2d 242, 246 (5th Cir. 1985). Defendants' Motion to Dismiss Plaintiff's Fourth Amended Complaint is GRANTED in part and DENIED in part. Specifically, Defendants' Motion is DENIED as to Plaintiff's illegal search and seizure and unlawful arrest, detention, and imprisonment claims against Defendant Sterrett. These claims remain ripe for adjudication.
The Motion is GRANTED in all other respects. Accordingly, all of Plaintiff's claims against Defendant City of Terrell are DISMISSED. Additionally, the Court DISMISSES sua sponte Plaintiff's claims that Defendants John and Jane Does failed to protect her children for failure to state a claim upon which relief can be granted. Plaintiff's claims against Defendants John and Jane Does remain ripe for adjudication in all other respects.
Discovery as to the identity of the remaining defendants shall now proceed with the Court to issue a new scheduling order.
SO ORDERED.