LEATHERMAN v. TARRANT NARC. UNIT, (N.D.Tex. 1991)

In the now familiar cases involving42 U.S.C. § 1983we consistently require the claimant to state specific facts, not merely conclusory allegations.

Similarly, an isolated incident is not sufficient to show that a custom exists. As we stated inBennett v. City of Slidell,728 F.2d 762,768n. 3 (5th Cir. 1984) (en banc),cert. denied,472 U.S. 1016,105 S.Ct. 3476,87 L.Ed.2d 612(1985): "IsolatedWest Page 730violations are not the persistent, often repeated, constant violations that constitute custom and policy."

We have also consistently required a section 1983 plaintiff to state specific facts and not merely conclusory allegations.Elliott v. Perez,751 F.2d 1472,1479n. 20 (5th Cir. 1985) (citing cases). While it might be possible that a basis for municipal liability exists in this case, Palmer states no facts in his complaint to support his assertion that San Antonio authorized and approved the practice of its police officers using excessive force when making arrests or that such a well settled practice of doing so existed. Although Palmer has already amended his complaint once, the complaint still fails to meet the requirements ofElliott.As we have made clear, the assertion of a single incident is not sufficient to show that a policy or custom exists on the part of a municipality.Slidell,728 F.2d at 768n. 3. Palmer failed to allege that there are prior incidents which, if taken as true, would reveal the existence of an unconstitutional custom on the part of San Antonio. Accordingly, we affirm the district court's order of dismissal with respect to the city of San Antonio.

Such a pleading does no more than describe a single incident of arguably excessive force applied by one officer — a description decked out with general claims of inadequate training and gross negligence, all concededly stemming from the single incident and nowhere else. It is clear from counsel's quoted colloquy with the trial judge that he has pled his case fully and has nothing to add, that the sole foundation for his general and conclusory allegations of "gross negligence" and "grossly inadequate training" was the pleaded incident itself. Under the rules ofTuttleandLanguirand [v. Hayden,717 F.2d 220(5th Cir. 1983)] discussed above, there is no case — not as a matter of pleading, merely, but as one of conceded fact.

At the time entry was demanded the officers were possessed of evidence which a magistrate might have found to be probable cause for issuing a search warrant. We cannot sustain defendant's contention, erroneously made, on the strength ofTaylor v. United States,286 U.S. 1[52 S.Ct. 466,76 L.Ed. 951(1932)], that odors cannot be evidence sufficient to constitute probable grounds for any search. That decision held only that odors alone do not authorize a search without warrant. If the presence of odors is testified to before a magistrate and he finds the affiant qualified to know the odor, and it is one sufficiently distinctive to identify a forbidden substance, this Court has never held such a basis insufficient to justify issuance of a search warrant. Indeed it might very well be found to be evidence of most persuasive character.

The agent's identification of the odor of marijuana is enough to support probable cause to search.See, e.g., United States v. Villarreal,5 Cir., 1978,565 F.2d 932,937. No warrant is required for the search of an automobile under such circumstances.

McKee must present some evidence of such a policy in order to survive the defendants' summary judgment motion. When the nonmovant fails to make a sufficient showing on an essential element of her case, the moving party is entitled to summary judgment "since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial."

Based onCity of Canton,we conclude that a judgment could not properly be entered against Robinson in this case based on supervisory liability absent an identification by Sample of a specific supervisory practice or procedure that Robinson failed to employ and specific findings by the district court that (1) the existing custom and practice without that specific practice or procedure created an unreasonable risk of prison overstays, (2) Robinson was aware that this unreasonable risk existed, (3) Robinson was indifferent to that risk, and (4) Diecks' failure to assure that Sample's complaint received meaningful consideration resulted from Robinson's failure to employ that supervisory practice or procedure. . . .

On remand, the district court should bear in mind that under the teachings ofCity of Cantonit is not enough for a plaintiff to argue that the constitutionally cognizable injury would not have occurred if the superior had done more than he or she did. The district court must insist that Sample identify specifically what it is that Robinson failed to do that evidences his deliberate indifference. Only in the context of a specific defalcation on the part of the supervisory official can the court assess whether the official's conduct evidenced deliberate indifference and whether there is a close causal relationship between the "identified deficiency" and the "ultimate injury."

Here the instructions allowed the jury to infer a thoroughly nebulous "policy" of "inadequate training" on the part of the municipal corporation from the single incident described earlier in this opinion, and at the same time sanctioned the inference that the "policy" was the cause of the incident. Such an approach provides a means for circumventing Monell's limitations altogether. Proof of a single incident of unconstitutional activity is not sufficient to impose liability under Monell, unless proof of the incident includes proof that it was caused by an existing, unconstitutional municipal policy, which policy can be attributed to a municipal policymaker. Otherwise the existence of the unconstitutional policy, and its origin, must be separately proved. But where the policy relied upon is not itself unconstitutional, considerably more proof than the single incident will be necessary in every case to establish both the requisite fault on the part of the municipality, andWest Page 733the causal connection between the "policy" and the constitutional deprivation. Under the charge upheld by the Court of Appeals the jury could properly have imposed liability on the city based solely upon proof that it employed a nonpolicy- making officer who violated the Constitution. The decision of the Court of Appeals is accordingly reversed.

We hold that municipal liability under § 1983 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. SeeTuttle,supra [471 U.S.] at 823,85 L.Ed.2d 791,105 S.Ct. 2427[at 2436] (" `policy' generally implies a course of action consciously chosen from among various alternatives").

On the other hand, the language of § 1983, read against the background of the same legislative history, compels the conclusion that Congress did not intend municipalities to be held liable unless action pursuant to official municipal policy of some nature caused a constitutional tort. In particular, we conclude that a municipality cannot be held liablesolelybecause it employs a tortfeasor — or, in other words, a municipality cannot be held liable under § 1983 on a respondeat superior theory.

We conclude, therefore, that a local government may not be sued under § 1983 for an injury inflicted solely by its employees or agents.

Long before the filing of the pleading quoted above, it had been laid down as the law of our Circuit that in "cases invoking 42 U.S.C. § 1093 we consistently require the claimant to state specific facts, not merely conclusory allegations."Elliottv. Perez,751 F.2d 1472,1479(5th Cir. 1985), and see authorities from this and other circuits cited at note 20. Cases such asElliott,where the immunity to suit of governmental officials is at stake, present a special and acute subset of the general run. In view of the enormous expense involved today in litigation, however, of the heavy cost of responding to even a baseless legal action, and of Rule 11's new language requiring reasonable inquiry into the facts of the case by an attorneybeforehe brings an action, applying the stated rule to all § 1983 actions has much to recommend it. There can be scant imposition, after all, in requiring a pleader who has already inquired into the facts of his case to replead his understanding of them, as our authorities cited have often suggested. . . .