Opinion
Civil Action No. 3:00-CV-2372-D
May 18, 2001
MEMORANDUM OPINION AND ORDER
Plaintiff Kevin Hinds ("Hinds") sues defendants Gary Slagel, Mayor of the City of Richardson ("City"), Bill Keffler, City Manager of the City, Kenneth Yarbrough, the City Chief of Police, and Raymond Noah ("Judge Noah"), the City Municipal Judge, in their official and individual capacities, arising from his November 1, 1998 warrantless arrest by City police officers for a class C misdemeanor, the towing and impoundment of his vehicle, which was located on his private property, and court proceedings conducted by Judge Noah following his arrest. On March 19, 2001 defendants filed a motion to dismiss under Fed.R.Civ.P. 12(b)(6). On March 28, 2001 defendants filed an amended motion to dismiss. Hinds has responded to both motions. The court grants the motion in part, denies it in part, and orders Hinds to file a Rule 7(a) reply no later than 30 days after this memorandum opinion and order is filed.
In view of the filing of the amended motion to dismiss, defendants' March 19, 2001 motion to dismiss is denied as moot.
I
Hinds brings this pro se action under 42 U.S.C. § 1983, seeking relief on the ground that he was subjected to an unreasonable search and seizure, in violation of his federal constitutional rights. He contends he was unlawfully arrested without a warrant or probable cause and jailed for a non-jailable class C misdemeanor offense rather than being taken directly before a magistrate, and that his car was illegally seized and impounded. Hinds also complains that Judge Noah violated his rights while arraigning him on the misdemeanor charges against him and in requiring that he post a bond to secure his release before he was afforded a trial or found guilty of the charges.In their amended motion, defendants contend that Hinds' official capacity claims are redundant because he has also sued the City. They also assert that the individual defendants are entitled to official immunity and qualified immunity, that Judge Noah is entitled to absolute judicial immunity, and that the City is entitled to sovereign immunity.
They also assert that the individual defendants are entitled to official immunity. This argument is based on their being sued in their official capacities. See Am. Mot. at 3, ¶ 5. Considering the court's dismissal of these official capacity claims, see infra § II(A), the court need not address this ground of their motion.
II A
The court agrees that Hinds' official capacity claims are redundant of his action against the City. A suit against a government official in his official capacity is only another way of pleading an action against an entity of which the official is an agent. Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690 n. 55 (1978). If the government entity receives notice and an opportunity to respond, an official-capacity suit is treated as a suit against the entity. Ky. v. Graham, 473 U.S. 159, 166 (1985). A suit against a municipal official in his official capacity is not a suit against him personally, because the real party in interest is the entity. Id. There is no longer any need to bring official-capacity actions. Accordingly, Hinds' official capacity claims are dismissed.
B
Defendants also contend the individual defendants are entitled to qualified immunity. The court declines at the Rule 12(b)(6) stage to dismiss Hinds' complaint on this basis without first requiring a Rule 7(a) reply and then affording defendants a chance to move to dismiss or for summary judgment once they have reviewed the reply.
Hinds is not required to anticipate the defense of qualified immunity and provide greater specificity in his complaint. Todd v. Hawk, 72 F.3d 443, 446 (5th Cir. 1995) (per curiam) (citing Schultea v. Wood, 47F.3d 1427, 1433-34 (5th Cir. 1995) (en banc)). Instead, a two-step procedure applies. The plaintiff must initially "file a short and plain statement of his claim pursuant to Rule 8(a)(2)." Id. This pleading is then "followed by a more particularized reply pursuant to Rule 7." Id. Where, as here, the public official "pleads the affirmative defense of qualified immunity in his answer, the district court may, on the official's motion or on its own, require the plaintiff to reply to that defense in detail." Schultea, 47 F.3d at 1433. "[T]he reply must be tailored to the assertion of qualified immunity and fairly engage its allegations." Id. "Heightened pleading requires allegations of fact focusing specifically on the conduct of the individual who caused the plaintiff's] injury." Reyes v. Sazan, 168 F.3d 158, 161 (5th Cir. 1999).
Accordingly, the court declines to dismiss Hinds' actions against the individual defendants at this juncture based on qualified immunity. He must file a Rule 7(a) reply no later than 30 days after this memorandum opinion and order is filed.
C
Defendants next maintain that Judge Noah is entitled to judicial immunity under federal and state law. Hinds responds that Judge Noah admits to imposing a bail requirement on individuals arrested for non-jailable offenses and incarcerating them if they cannot meet the bail requirement. Citing Pulliam v. Allen, 466 U.S. 522 (1984), he contends that Judge Noah does not enjoy immunity from injunctive or declaratory relief for such action and for an award of attorney's fees, even if he concededly is immune from an award of damages. The court agrees with Hinds that, to the extent he seeks injunctive or declaratory relief against Judge Noah under § 1983, his suit may proceed. See Pulliam, 466 U.S. at 541 (holding that judicial immunity is not a bar to § 1983 action seeking prospective injunctive or declaratory relief). Otherwise, his action against Judge Noah is dismissed.
Hinds cannot recover attorney's fees under § 1988 — the statutory corollary to § 1983 — because he does not allege that he is an attorney. See Schinzing v. City of Burleson, Civil Action No. 3:95-CV-1595-D, slip op. at 4n.4 (N.D. Tex. May 22, 1996) (Fitzwater, J.) (holding that pro se litigant who was not attorney could not recover attorney's fees under § 1988, the attorney's fee statute that applies to § 1983 actions) (citing Cofield v. Atlanta, 648 F.2d 986, 988 (5th Cir. Unit B June 1981) (holding that "section 1988 is not to compensate a worthy advocate but to enable and encourage a wronged person to retain a lawyer")). He cannot recover any relief under Texas law because Judge Noah is entitled to absolute judicial immunity. See, e.g., Spencer v. City of Seagoville, 700 S.W.2d 953, 957-58 (Tex.App. 1985, no writ) (on rehearing).
The action against Judge Noah is therefore dismissed except to the extent that Hinds sues him under § 1983 for prospective injunctive or declaratory relief.
D
The City moves to dismiss on the ground that it is entitled to sovereign immunity. The predicate for this assertion is not sovereign immunity in its usual sense, but is instead the contention that Hinds has failed to plead a municipal custom or policy. What the City is actually arguing is that it cannot be held liable on the basis of respondeat superior, which is a well established legal doctrine. See Monell v. Dep't of Soc. Servs., 436U.S. 658, 691 (1978); Reimer v. Smith, 663 F.2d 1316, 1323 (5th Cir. Dec. 1981). Hinds responds that the City should not be dismissed "unless and until it provides proof that the actions taken by its officers w[ere] not a direct result of its own rules, regulations, ordinances, policy and custom." P. Resp. at 5.Hinds must establish that a "deprivation of rights protected by the Constitution or federal law" was inflicted pursuant to an official municipal policy. See Campbell v. City of San Antonio, 43 F.3d 973, 977 (5th Cir. 1995). He is obligated to establish that a municipal policy or custom actually inflicted the constitutional injury that he alleges. Monell, 436 U.S. at 694. The burden to prove policy, custom, or practice is on the plaintiff. The defendant municipality need not disprove it. See, e.g., Bennett v. City of Slidell, 728 F.2d 762, 767 (5th Cir. 1984) (en banc). Hinds must also show that "there is 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).
Hinds' 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. Nevertheless, in the context of a Rule 12(b)(6) motion, "[t]he court may dismiss a claim [only] when it is clear that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief." Jones v. Greninger, 188 F.3d 322, 324 (5th Cir. 1999) (per curiam) (citing Fee v. Herndon, 900 F.2d 804, 807 (5th Cir. 1990)). "In analyzing the complaint, [the court] will accept all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff. Id. (citing Doe v. Hillsboro Indep. Sch. Dist., 81 F.3d 1395, 1401 (5th Cir. 1996)). "The issue is not whether the plaintiff will ultimately prevail, but whether he is entitled to offer evidence to support his claim." Id. (citing Doe, 81 F.3d at 1401). "Thus, the court should not dismiss the claim unless the plaintiff would not be entitled to relief under any set of facts or any possible theory that he could prove consistent with the allegations in the complaint." Id. (citing Vander Zee v. Reno, 73 F.3d 1365, 1368 (5th Cir. 1996)). Under the highly deferential standard of Conley v. Gibson, 355 U.S. 41, 45-46 (1957), and viewing the allegations of Hinds' amended complaint in the light most favorable to him for purposes of deciding the motion to dismiss, see, e.g., Royal Bank of Canada v. FDIC, 733 F. Supp. 1091, 1094 (N.D. Tex. 1990) (Fitzwater, J.), the court is unable to say that he can prove no set of facts, consistent with the allegations, that would entitle him to relief against the City. The court therefore denies the amended motion to dismiss in this respect.
* * *
The court grants in part and denies in part defendants' March 28, 2001 amended motion to dismiss and orders Hinds to file a Rule 7(a) reply no later than 30 days after this memorandum opinion and order is filed. The court denies defendants' March 19, 2001 motion to dismiss as moot.
SO ORDERED