Opinion
Civil Action No. 3:01-CV-0921-P
February 20, 2002
MEMORANDUM OPINION AND ORDER
Now before the Court are:
1. City of Farmers Branch, Farmers Branch Police Department, Cary Morgan and Theo Hirsch's (the "Municipal Defendants") Motion to Dismiss or, in the Alternative, Motion for a More Definite Statement, filed August 17, 2001;
2. Cary Morgan and Theo Hirsch's (the "Officers") Motion to Dismiss, or in the Alternative, Motion for a Rule 7(a) Reply, filed January 14, 2002.
Plaintiff did not file a response brief to the Municipal Defendants' Motion to Dismiss.
Plaintiff did not file a response brief to the Officers' Motion to Dismiss.
After full consideration of the Parties' briefing and the applicable law, for the reasons discussed herein, the Court hereby GRANTS in PART and DENIES in PART the Municipal Defendants' Motion to Dismiss. Further, the Court hereby GRANTS in PART and DENIES in PART the Officers' Motion to Dismiss. Finally, the Court hereby instructs the United States District Clerk to issue summons on Defendant Captain Roeder of the Farmers Branch Police Department, in connection with this lawsuit.
For the reasons set forth below in footnote 4, Plaintiff's claims against the Farmers Branch Police Department are hereby DISMISSED from this lawsuit WITH PREJUDICE.
FACTS
Jimmy James Mamoth ("Plaintiff") filed this suit seeking damages and injunctive relief under 42 U.S.C. § 1983, alleging that the harassment, improper arrest and detention, inadequate food and medical treatment, unlawful search and seizure, and excessive force he experienced during his arrest by certain Farmers Branch police and jail officials and during his pretrial detention at the Farmers Branch City Jail constituted violations of his rights under the Fourth, Eighth, and Fourteenth Amendments to the United States Constitution. (See generally Compl.) The City of Farmers Branch, the Farmers Branch Police Department, Cary Morgan ("Morgan") and Theo Hirsch ("Hirsch") (collectively, "Defendants") move the Court to dismiss Plaintiff's claims against them, asserting that Plaintiff has failed to plead facts sufficient to support a cognizable § 1983 claim. Plaintiff is currently incarcerated in the Collin County Detention Facility in McKinney, Texas and is representing himself in this proceeding as a pro se litigant. (See Compl. ¶ 1.)
The Farmers Branch Police Department is not a legal entity capable of being sued. See Hernandez v. City of Farmers Branch, NO. 3:01-CV-1184-G, 2002 WL 66162, at *5 (N.D.Tex. Jan 10, 2002) (finding that Farmers Branch Police Department is not a legal entity capable of being sued); Darby v. Pasadena Police Dep't, 939 F.2d 311, 313-14 (5th Cir. 1991) (finding that Texas county sheriffs and police departments are generally not legal entities capable of being sued). Therefore, Plaintiff's claims against the Farmers Branch Police Department will be construed as claims against the City of Farmers Branch, and the Farmers Branch Police Department is hereby DISMISSED from this lawsuit WITH PREJUDICE.
According to Plaintiff's Complaint, the Defendants in this lawsuit include (1) unidentified members of the Farmers Branch City Council, (2) Captain Roeder (Farmers Branch Police Captain), (3) Farmers Branch police officer Cary Morgan, (4) Farmers Branch police officer Theo Hirsch, (5) unidentified Farmers Branch police officers, and (6) unidentified Farmers Branch deputy sheriffs. (See Compl. at 1.) Plaintiff is suing all Defendants in both their official and individual capacities. Naming the defendants in their official capacities is the functional equivalent of naming the governmental entity itself — in this case, the City of Farmers Branch.
With respect to the Defendants in their individual capacities, process cannot issue against the unnamed Farmers Branch city council members, the unnamed Farmers Branch police officers, and the unnamed Farmers Branch deputy until Plaintiff has provided the Court with sufficient information (i.e. names, badge numbers, and/or physical descriptions) so that service can be effected on these individuals. Plaintiff is hereby placed on notice of his responsibility to obtain information on the unidentified Defendants' identities. Failure to provide this information to the Court within 120 days from the date of Plaintiff's First Amended Complaint (December 10, 2001) may subject this portion of the Complaint to dismissal without prejudice pursuant to Rule 4(m) of the Federal Rules of Civil Procedure. Further, Plaintiff named Captain Roeder of the Farmers Branch Police Department as a Defendant in his First Amended Complaint. The Court therefore instructs the United States District Clerk to issue a summons on Defendants Roeder in connection with this lawsuit.
I. The Arrest.
According to Plaintiff's Complaint, on October 18, 2000 at approximately 3:00 a.m., Plaintiff was arrested by Defendant Morgan and other Defendant Farmers Branch police officers (collectively, the "Police Officers") at the 12700 block of Stemmons Freeway in Farmers Branch, Texas. (Compl. ¶¶ 11-12.) The Police Officers placed Plaintiff in handcuffs, drew their weapons on him, and searched Plaintiff's vehicle. (Id. ¶ 13.) Plaintiff asked why he was being arrested, but none of the Police Officers responded to his question. (Id. ¶¶ 11-12.) Plaintiff insisted at that time that he had done nothing illegal. (Id.) Plaintiff alleges that during this arrest, he feared for his life. (Id. ¶¶ 13-14.)
Subsequent to the arrest, Plaintiff contends that the Police Officers released him and then immediately began to follow Plaintiff in their police vehicles. (Id. ¶ 15.) After this chase, Plaintiff was arrested by Defendants Hirsch and Morgan at 3823 Club Way in Farmers Branch, Texas. (Id. ¶ 16.) Plaintiff contends that during this arrest, Defendants Hirsch and Morgan forcibly removed Plaintiff from the bushes where he was wedged and stuck, even after Plaintiff told Defendants Hirsch and Morgan that he was stuck. (Id. ¶ 16.) Plaintiff contends that Defendants Hirsch and Morgan handcuffed Plaintiff, and then proceeded to physically assault Plaintiff by "kicking, beating, punching, and macing him." (Id. ¶ 17.) Plaintiff alleges that he begged Defendants Hirsch and Morgan to stop beating him, but that the assault continued, resulting in injuries. (Id. ¶ 18.) Plaintiff also maintains that he asked for medical attention at that time, but that Defendants Hirsch and Morgan refused his request. (Id. ¶ 19.) Plaintiff contends that Defendants Hirsch and Morgan transported Plaintiff to the Farmers Branch City Jail without providing Plaintiff with any medical attention. (Id. ¶ 19.)
II. Denial of Medical Care.
Plaintiff was booked into the Farmers Branch City Jail where he allegedly complained to jail officials about the assault he purportedly suffered at the hands of Defendants Hirsch and Morgan. (Id. ¶ 20.) According to the Complaint, Plaintiff described his injuries to an officer on duty and was told by that officer that "there was no medical staff at Farmers Branch City Jail, but when he . . . got to Lew Sterret, he would be able to see medical personnel." (Id. ¶ 24.) Plaintiff maintains that he asked several other unnamed deputy sheriffs (who are defendants in this action) for medical treatment while at the Farmers Branch City Jail, and that all of his requests were ignored. (Id. ¶ 25.)
Plaintiff also alleges that prior to his arrest and detainment, he had been suffering from "severe periodontal disease" and was receiving medical attention and medication for the disease. (Id. ¶ 25.) Plaintiff contends that this disease caused bleeding gums and severe pain from exposed nerves surrounding the teeth. (Id. ¶ 26.) Plaintiff alleges that he notified unnamed deputy sheriffs of the Farmers Branch City Jail "of his periodontal disease and injuries, and the serious consequences of failing to receive his medication, and of the extreme pain he was in. (Id. ¶ 27.) Yet these unnamed deputy sheriffs (who are defendants in this action) ignored Plaintiff's requests for medical assistance. (Id.) Plaintiff contends that Defendants deliberately refused to treat Plaintiff's serious dental condition because the City of Farmers Branch does not provide the Farmers Branch City Jail with any contract for medical personnel or any money for medical training of Farmers Branch City Jail deputy sheriffs. (Id.) Consequently, Plaintiff complains that he suffered daily pain and discomfort caused by his diseased gums and the injuries he sustained as a result of the alleged assault by Officers Hirsch and Morgan. (Id.) Plaintiff was incarcerated at the Farmers Branch City Jail from October 18, 2000 until October 26, 2000. (Id.¶ 28.)
III. Search and Possession of Contents of Plaintiff's Vehicle.
Following Plaintiff's booking into the Farmers Branch City Jail, Plaintiff's rented vehicle was searched by Defendant Morgan and other unnamed Farmers Branch police officers (who are defendants in this action). (Id. ¶ 21.) Plaintiff alleges that at the time of his arrest, he had $45,000.00 in cash in his vehicle. (Id. ¶ 31.) Plaintiff maintains that while he was in the Farmers Branch City Jail, Defendant Morgan and other unnamed Farmers Branch police officers conducted an inventory of his vehicle, yet failed to report the money that was in the vehicle. (Id. ¶ 31.) Plaintiff alleges that he and his wife have filed numerous requests with Defendant Roeder and the Farmers Branch Police Department concerning the money, and have received only one response. (Id. ¶ 31.) Plaintiff therefore concludes that his money was stolen by Defendants. (Id. ¶ 32.)
IV. Failure to Provide Adequate Nutrition.
Plaintiff further contends that while detained at the Farmers Branch City Jail, Plaintiff was denied sufficient nutrition to sustain his health. (Id. ¶ 28.) Plaintiff maintains that he requested additional food, but that his requests were denied. (Id.) Consequently, Plaintiff lost ten pounds during his nine-day detention. (Id.)
V. Inadequate Hygiene.
Plaintiff also contends that during the nine days he was detained at the Farmers Branch City Jail, Plaintiff was refused access to a shower, was not permitted to brush his teeth, and was denied other daily hygienic necessities. (Id. ¶ 29.)
DISCUSSION
Defendants have filed two motions to dismiss — first, on behalf of the City of Farmers Branch and Defendants Morgan and Hirsch in their official capacities; and second, on behalf of Officers Morgan and Hirsch in their individual capacities.
I. Standard for Motion to Dismiss.
Rule 12(b)(6) of the Federal Rules of Civil Procedure permits a defendant to move for dismissal of the plaintiffs pleading on the grounds that the complaint fails to state a claim for which relief can be granted. See Fed.R.Civ.P. 12(b)(6). A complaint is subject to Rule 12(b)(6) dismissal if the plaintiff has failed to allege sufficient facts on which a recognized legal claim could be based. See Rubinstein v. Collins, 20 F.3d 160, 173 (5th Cir. 1994). In deciding a motion to dismiss, the court takes all factual allegations contained in the complaint as true and resolves any ambiguities or doubts regarding sufficiency of the claim in favor of the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Fernandez-Montes v. Allied Pilots Ass'n, 987 F.2d 278, 284 (5th Cir. 1993). A plaintiff, however, must plead specific facts, not mere conclusory allegations, to avoid dismissal. See Guidry v. Bank of LaPlace, 954 F.2d 278, 281 (5th Cir. 1992).
II. Whether Defendants Violated Plaintiff's Constitutional Rights.
A § 1983 action may be brought against a person in his individual capacity, a person in his official capacity, or against a governmental entity. See Board of the County Comm'rs of Bryan County v. Brown, 520 U.S. 397, 403 (1997). In this case, Plaintiff has named all defendants in both their individual and official capacities. (See Compl. at 1.) To name a defendant in his official capacity is functionally equivalent to naming the governmental entity, in this case the City of Farmers Branch, as a defendant. See Castro Romero v. Becken, 256 F.3d 349, 355 (5th Cir. 2001). Therefore, a plaintiff proceeds against a defendant acting in his official capacity just as he would proceed in a suit against the county. See id.
It is now a well-accepted constitutional principle that the State, because it possesses the power to restrain the liberty of its citizens and may thereby deprive them of the ability to care for themselves, is under an affirmative duty to tend to the "basic human needs" of state prisoners and detainees by providing them with essential care and protection. See Hare v. City of Corinth, 74 F.3d 633, 639 (5th Cir. 1996). The duty to protect a detainee from harm arises from the "special relationship" that exists between the State and those whom it holds in custody against their will. Johnson v. Dallas Indep. Sch. Dist., 38 F.3d 198, 202 (5th Cir. 1994).
For convicted prison inmates, the constitutional right to be secure from avoidable injury arises from the Eighth Amendment's prohibition against cruel and unusual punishment. Estelle v. Gamble, 429 U.S. 97, 104 (1976). Pretrial detainees, by comparison, are guaranteed rights at least coextensive with those of prisoners under the procedural and substantive due process provisions of the Fourteenth Amendment. Partridge v. Two Unknown Police Officers, 791 F.2d 1182, 1186 (5th Cir. 1986). Plaintiff, who is proceeding pro se, contends that his claims against Defendants arise under the Eight Amendment and the Fourteenth Amendment. (See Compl. ¶ 14.) Because pro se complaints are to be construed liberally, the Court interprets Plaintiff's Complaint as asserting a claim under the Fourteenth Amendment only, since Plaintiff was a pretrial detainee during the relevant time period. See Haines v. Kerner, 404 U.S. 519 (1976).
To establish liability on the part of an individual jail official for constitutional deprivations resulting from episodic acts or omissions, the plaintiff must show that the official acted with subjective deliberate indifference to the detainee's constitutional rights. Hare, 74 F.3d at 643. Subjective deliberate indifference, in turn, means that the "official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Farmer v. Brennan, 511 U.S. 825, 837 (1994).
While individual jail officials may be held liable for acts or omissions causing constitutional deprivations if they acted with subjective deliberate indifference to the constitutional rights of detainees, more is required to establish liability on the part of the governmental entity that employs these officials. This is so because under well-settled law a municipality cannot be held liable pursuant to 42 U.S.C. § 1983 on the basis of respondeat superior. See Monell v. Dep't of Soc. Servs., 436 U.S. 658 (1978); Eugene v. Alief Indep. Sch. Dist., 65 F.3d 1299, 1304 (5th Cir. 1995). Instead, to establish municipal liability, the plaintiff must demonstrate that the alleged constitutional deprivation resulted from the city's policy or custom.See Campbell v. City of San Antonio, 43 F.3d 973, 977 (5th Cir. 1995). In other words, under § 1983, municipal liability "attaches where — and only where — a deliberate choice to follow a course of action is made from among various alternatives by the official or officials responsible for establishing final policy with respect to the subject matter in question." Pembaur v. City of Cincinnati, 475 U.S. 469, 483 (1986); Rhyne v. Henderson County, 973 F.2d 386, 392 (5th Cir. 1992).
A. City of Farmers Branch — Municipal Liability.
As stated earlier, this lawsuit against Defendants Roeder, Morgan, and Hirsch, and all other city employees in their official capacities is the same as the suit against the City of Farmers Branch. See Turner v. Mouma Municipal Fire and Police Civil Svc. Bd., 229 F.3d 478, 483 (5th Cir. 2000); Bennett v. Pippin, 74 F.3d 578, 584 (5th Cir. 1996).
The Fifth Circuit recently clarified the law governing municipal liability for § 1983 claims in Piotrowski v. City of Houston. "Under the decisions of the Supreme Court and [the Fifth Circuit], municipal liability under section 1983 requires proof of three elements: a policymaker; an official policy; and a violation of constitutional rights whose `moving force' is the policy or custom." Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th Cir. 2001). "The description of a policy or custom and its relationship to the underlying constitutional violation, moreover, cannot be conclusory; it must contain specific facts." Spiller v. City of Texas City Police Dep't, 130 F.3d 162, 167 (5th Cir. 1997).
Throughout Plaintiff's Complaint, Plaintiff pleads rote allegations of the existence of "policies, practices, customs, and rules" established by Defendants. (See Compl. ¶¶ 22, 23, 28, 30.) For example, Plaintiff contends that "[D]ue to practices, policies, customs, and rules established under the color of State law by policymakers of Defendants Farmers Branch City Council Members, and that were carried out by Defendants Captain Roeder, and Farmers Branch City Jail Deputy Sheriffs, [Plaintiff] was denied sufficient nutritional value to preserve his health." (Compl. ¶ 28.) Plaintiff does not plead any facts to demonstrate that a policy or custom existed. He does not even state what the alleged policy is or was. Therefore, with respect to Plaintiffs' allegations against the municipality and its employees acting in their official capacities, Plaintiff has failed to plead facts that show that a policy or custom existed with respect to (1) the alleged physical assault on Plaintiff during his arrest; (2) the alleged denial of adequate nutrition; and (3) the alleged denial of hygienic conditions. (See Compl. ¶¶ 22-23, 28, 30.) For this reason, Defendants' motion to dismiss Plaintiff's § 1983 claims against the City of Farmers Branch arising from (1) the alleged physical assault on Plaintiff during his arrest, (2) the alleged denial of adequate nutrition, and (3) the alleged denial of hygienic conditions is hereby GRANTED with prejudice.
In contrast, Plaintiff does plead specific facts concerning the alleged unconstitutional policy in effect concerning medical care denied by the Farmers Branch City Jail. Specifically, Plaintiff contends that the Farmers Branch City Council, the municipal policymaker, has implemented an official policy that deprived the Farmers Branch City Jail of contracts for medical personnel and money for medical training of jail employees. (Compl. ¶ 27.) Plaintiff alleges that the Farmers Branch City Council refused to provide the Farmers Branch City Jail with trained medical personnel. (Id.) Plaintiff further contends that the City Jail's refusal to provide Plaintiff with the requested medical assistance resulted from the implementation of that policy. (Id.) Specifically, Plaintiff pleads that "upon arrival at Farmers Branch City Jail, [Plaintiff] told an officer on duty about his injuries. The officer told [Plaintiff] that there was no medical staff at Farmers Branch City Jail, but, when he — [Plaintiff] — got to Lew Sterret, he would be able to see medical personnel." (Compl. ¶ 24.) Plaintiff alleges he went without medical assistance for the entire period of his detention — nine days. (Id. ¶¶ 25-28.) Plaintiff has sufficiently pled the existence of a municipal policy that caused Plaintiff's alleged injuries. Therefore, Plaintiff has pled a claim for relief against the City of Farmers Branch with respect to his denial-of-medical-assistance claim and Defendants' Motion to Dismiss is DENIED with respect thereto.
Defendants' reliance on the "deliberate indifference" requirement is misplaced. (Defs.' Mot. at 8-9.) Only when dealing with a facially lawful policy is a plaintiff required to plead that the policy was enacted with "deliberate indifference" to its known or obvious consequences. See Piotrowski v. City of Houston, 237 F.3d 567, 580 (5th Cir. 2001). In this case, the jail policy alleged by Plaintiff, which provides no trained medical staff and plainly denies inmates access to medical personnel for diagnosis and treatment of health problems, violates the constitutional requirement that inmates be given access to adequate medical care — on its face. See Hare v. City of Corinth,, 74 F.3d 633, 639 (5th Cir. 1996).
B. Individual Liability — Cary Morgan and Theo Hirsch.
The issue of qualified immunity should be resolved at the earliest possible stage of litigation. Geter v. Fortenberry, 849 F.2d 1550, 1553 (5th Cir. 1988). Government officials performing discretionary functions are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Anderson v. Creighton, 483 U.S. 635, 638 (1987); Pfannstiel v. City of Marion, 918 F.2d 1178, 1183 (5th Cir. 1990). When a government official claims immunity, a plaintiff must satisfy a heightened pleading standard. A plaintiff must allege with sufficient particularity all material facts establishing his right to recovery, including facts that demonstrate why the official cannot successfully maintain his immunity defense. Jacquez v. Procunier, 801 F.2d 789, 791 (5th Cir. 1991); Elliott v. Perez, 751 F.2d 1472, 1473 (5th Cir. 1985); Sappington v. Ulrich, 868 F. Supp. 194, 198 (E.D.Tex. 1994).
Whether an individual protected by qualified immunity may be held personally liable for an allegedly unlawful official action generally turns on the "objective legal reasonableness" of the action in light of clearly established law. Anderson, 483 U.S. at 639. Plaintiff claims that (1) he was unlawfully arrested by Defendant Morgan (Compl. ¶ 11); (2) he was physically assaulted by Defendants Hirsch and Morgan (Compl. ¶ 16); and (3) his car was unlawfully searched and items were unlawfully seized by Morgan (Compl. ¶¶ 31-32). The defense of qualified immunity is a bar to denial of these claims unless the plaintiff demonstrates (1) the violation of a clearly established constitutional right and (2) that the defendants' conduct was objectively unreasonable. Nerren v. Livingston Police Dep't, 86 F.3d 469, 473 (5th Cir. 1996); Pfannstiel, 918 F.2d at 1186.
Defendants Hirsch and Morgan are not implicated in Plaintiff's claims for denial of medical care (Compl. ¶¶ 22, 24-26), denial of food (Compl. ¶ 28), and denial of daily hygiene (Compl. ¶ 29). In fact, Plaintiff has not named any specific individual with respect to these claims.
1. Unlawful Arrest.
Plaintiff has failed to plead any facts in support of his claim of illegal arrest. (See generally Compl.) Consequently, Plaintiff has failed to demonstrate that Morgan violated a clearly established constitutional right and has failed to demonstrate that Morgan's conduct — whatever it may have been — was objectively unreasonable. Because Plaintiff has failed to allege with sufficient particularity any material facts establishing why Morgan cannot successfully maintain his immunity defense, the Court orders that the Officers' Motion to Dismiss be GRANTED with prejudice.
2. Excessive Force.
Review of the record and pleadings reveals that Plaintiff has met the heightened pleading standard invoked when the Officers asserted the defense of qualified immunity. Plaintiff contends that Morgan and other unnamed police officers "placed Plaintiff in handcuffs, drew weapons on him, and placed him in fear for his life." (Compl. ¶ 13.) Plaintiff also contends that Defendants "release[d]" Plaintiff and then "follow[ed] the plaintiff in their Farmers Branch Police Vehicles, further placing [Plaintiff] in fear for his life." (Compl. ¶ 15.) In his responses to the Magistrate Judge's Questionnaire, Plaintiff explains that "the officers thought [Plaintiff] was resisting arrest." (Pl's Questionnaire at No. 4A.) He explains that he was not resisting arrest, but was "trapped in some bushes-hedges and a six-foot fence. (Id. at No. 2.) He further explains that "the officers used physical force — excessive force in extricating, removing the complainant, macing complainant, grabbing his arm-leg and physically pulling complainant." (Id; see Compl. ¶ 16.) After Plaintiff was "maced and physically removed from the bushes by Defendants [Morgan and Hirsch], Defendants [Morgan and Hirsch] handcuffed Plaintiff and started to physically assault Plaintiff by kicking, beating, punching, and macing him." (Compl. ¶ 17; Pl.'s Questionnaire at No. 2.) "Even after Plaintiff begged Defendants [Morgan and Hirsch] to quit beating him, Defendants [Morgan and Hirsch] continued the assault on Plaintiff." (Compl. ¶ 18.)
To overcome Morgan and Hirsch's qualified immunity defense, Plaintiff must present facts that indicate that no reasonable officer could have believed this conduct was permissible under the law as it existed at the time of the incident. Anderson v. Creighton, 483 U.S. 635, 639 (1987);Harper v. Harris County. Texas, 21 F.3d 597, 600-01 (5th Cir. 1994). In October of 2000, the "core judicial inquiry" in an excessive force assessment of reasonableness focused on "whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm." Hudson v. McMillan, 503 U.S. 1, 6 (1992). Factors relevant to this determination include the threat the officials reasonably perceived, the need for the use of force, the efforts made to minimize the force used, the relationship between the need for using force and the amount of force used, and the degree of injury inflicted.Id.
In this case, Plaintiff has not pled sufficient facts to establish that the force used on Plaintiff prior to his handcuffing was excessive under the circumstances. Because Plaintiff has failed to describe with particularity the circumstances leading to the alleged arrest, car chase, first use of mace, and assault prior to handcuffing, the Court cannot determine whether Defendants Hirsch's and Morgan's conduct was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm to Plaintiff.
However, Plaintiff's allegations concerning the assault that was committed subsequent to handcuffing are sufficient to state a claim of excessive force. Plaintiff contends that he was kicked, beaten, punched, and maced by Officers Morgan and Hirsch after they had already placed Plaintiff in handcuffs. (Compl. ¶ 17; Pl.'s Questionnaire at No. 2.) Because Plaintiff has pled that he was already handcuffed at the time of this assault and that he was begging Officers Morgan and Hirsch to stop beating him, the Court concludes that Plaintiff has pled that the force was not applied in a good-faith effort to maintain or restore discipline. For these reasons, the Officers' Motion to Dismiss is hereby DENIED with respect to Plaintiffs claim of excessive force.
3. Search of Vehicle and Seizure of Property.
Plaintiff contends that subsequent to his arrest, Defendant Morgan and other unnamed Farmers Branch police officers searched Plaintiff's rented vehicle without a warrant and conducted an illegal inventory of Plaintiff's rented vehicle. (Compl. ¶¶ 21, 23, 31.) Plaintiff contends that Defendant Morgan and other unnamed police officers failed to report Plaintiff's money that was in his vehicle. (Compl. ¶ 31.)
It is well established that warrantless searches and seizures are per se unreasonable unless they fall within a few narrowly defined exceptions. United States v. Cardenas, 9 F.3d 1139, 1147 (5th Cir. 1993). One such exception to the warrant requirement exists for a search incident to a lawful arrest. United States v. Barlow, 17 F.3d 85, 89 (5th Cir.), (1994). After making a lawful arrest, an officer may search a suspect's vehicle for the purpose of taking an inventory. See Colorado v. Bertine, 479 U.S. 367, 371 (1987).
In this case, Plaintiff acknowledges that he was arrested by Defendants Hirsch and Morgan. (Compl. ¶ 16.) Because Plaintiff has not alleged facts concerning the circumstances of his arrest, the Court is unable to determine the lawfulness of the arrest and thus, Plaintiff has failed to overcome Defendants Hirsch and Morgan's qualified immunity defense with respect to the allegation that an unlawful search was conducted. Therefore, the Officers' Motion to Dismiss is hereby GRANTED with prejudice.
Plaintiff also complains that $45,000.00 of his personal property was unlawfully seized from his vehicle following his arrest. When the loss of property is not intentional, but merely negligent, no cause of action under § 1983 is present. See Daniels v. Williams, 474 U.S. 327, 328 (1986); Davidson v. Cannon, 474 U.S. 344, 347 (1986). Where mere negligence is involved in causing a deprivation or damage to property, no procedure for compensation is constitutionally required. Id. Therefore, to the extent that Plaintiff's seizure claim is predicated on negligence, it lacks an arguable basis in law and should be dismissed.
On the other hand, if Plaintiff is claiming that he was intentionally deprived of his personal property, the United States Supreme Court has held that the intentional deprivation of property by state employees does not constitute a civil rights violation as long as the state provides a meaningful post-deprivation remedy. See Hudson v. Palmer, 468 U.S. 517, 533 (1984); Nickens v. Melton, 38 F.3d 183, 184-85 (5th Cir. 1994);Holloway v. Walker, 790 F.2d 1170, 1174 (5th Cir.). In this case, a post-deprivation remedy is available. Under Texas state common-law, Plaintiff may sue for conversion to remedy his alleged property loss.See Hernandez v. City of Farmers Branch, NO. 3:01-CV-1184-G, 2002 WL 66162, at *5 (N.D.Tex. Jan 10, 2002); Murphy v. Collins, 26 F.3d 541, 543 (5th Cir. 1994); Myers v. Adams, 728 S.W.2d 771 (Tex. 1987). Conversion occurs when there is an unauthorized and unlawful exercise of dominion and control over the personal property of another that is inconsistent with the rights of the owner. See Beam v. Voss, 568 S.W.2d 413, 420-21 (Tex.Civ.App.-San Antonio 1978, no writ). Therefore, if a Farmers Branch police officer exercised unauthorized and unlawful control over Plaintiff's personal property ( i.e. seized his cash) he has a cause of action in conversion. Such a common-law action in state court would be sufficient to meet constitutional due process requirements. See Murphy, 26 F.3d at 543-44. In light of this adequate state common-law remedy, Plaintiff's claim based on the confiscation of $45,000 in cash lacks an arguable basis in law. Therefore, the Officers' Motion to Dismiss is hereby GRANTED with respect to Plaintiff's seizure of property claim and Plaintiff's seizure of property claim is hereby DISMISSED WITH PREJUDICE.
For the reasons stated herein, the Court hereby GRANTS in PART and DENIES in PART the Municipal Defendants' Motion to Dismiss. Additionally, the Court hereby GRANTS in PART and DENIES in PART the Officers' Motion to Dismiss. The Court further instructs the United States District Clerk to issue a summons on Defendant Roeder of the Farmers Branch Police Department, with respect to this lawsuit.