Henrise v. Horvath ( 2002 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________________
No. 01-10649
__________________________
JAMES T. HENRISE,
Plaintiff-Appellant,
versus
JOHN D. HORVATH; CLARENCE V. JOHNS; WARREN BOX; ROBIN FLORES; CITY
OF DESOTO, TEXAS
Defendants-Appellees.
___________________________________________________
Appeal from the United States District Court
for the Northern District of Texas
(3:97-CV-2472-L)
___________________________________________________
June 28, 2002
Before WIENER and DENNIS, Circuit Judges, and LITTLE*, District
Judge.
WIENER, Circuit Judge**:
The district court dismissed the action of Plaintiff-Appellant
James Henrise pursuant to Rule 12(b)(6) of the Federal Rules of
Civil Procedure (“Rule 12(b)(6)”) for failure to state a claim on
which relief could be granted. Henrise appeals the district
*
Chief Judge of the Western District of Louisiana, sitting
by designation.
**
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
1
court’s dismissal of his action, which asserted claims under 42
U.S.C. § 1983 and § 1985(2) against Defendants-Appellees John
Horvath, Clarence Johns, Warren Box, Robin Flores (collectively,
the “individual defendants”), and the City of DeSoto, Texas (“the
City”). We affirm the district court’s dismissal of Henrise’s §
1983 claims against all the defendants, but reverse the court’s
dismissal of his § 1985(2) claim against the individual defendants
only.
I. Facts and Proceedings
We set forth the operative facts as they appear in Henrise’s
Second Amended Complaint, which is the version of the facts that
the district court considered when it granted the defendants’ Rule
12(b)(6) motion to dismiss the action. For purposes of ruling on
such a motion, the district court properly accepted as true —— as
do we —— the facts as they were set forth in the complaint. We
neither recite nor consider, however, arguments and conclusional
allegations in the complaint.
Henrise was hired as a police officer by the City of DeSoto,
Texas, in January 1985. He received training and gained experience
by serving for substantial periods in both the Criminal
Investigations Division (“CID”) and Special Investigation Unit
(“SIU”). Henrise eventually received the “Top Cop” award from the
DeSoto Citizens Police Academy Alumni. He holds a Master Peace
Officer Certification from the Texas Commission on Law Enforcement
Officer Standards and Education, and retains his departmental
2
seniority in the rank of sergeant. While working in the SIU,
Henrise was under the command of Lt. P. Paul Pothen. As part of
its official function, the SIU undertook investigations into public
corruption, vice, narcotics, and organized crime.
In August 1994, Defendant Horvath was confirmed as the Chief
of Police of the City of DeSoto. Based on their work in the SIU
during the early part of 1995, Henrise and Pothen formed the good
faith belief that Horvath was involved in serious misconduct which
had criminal implications. This included, but was not limited to,
the release of confidential police murder investigation files to a
civilian investigator, the removal of and failure to return
material physical evidence related to a murder investigation, and
the acceptance of both public and private funds to finance a family
vacation to Europe, purportedly on “police business.” In addition,
the SIU uncovered what appeared to it to be significant public
corruption, including bribery, surrounding high ranking DeSoto
public officials and their cohorts.
In the spring of the following year, Horvath, acting as Chief
of Police, had a private meeting with Henrise. In that meeting,
Chief Horvath demanded that Henrise provide him with any known
information that was adverse to Pothen, and to observe Pothen and
report back any newly discovered adverse information. Henrise
expressly refused Horvath’s demand then and there. Henrise alleges
in his complaint that it was during this meeting that he first
became aware that Horvath was searching for a way to terminate
3
Pothen, and that Horvath was first put on notice, by Henrise
himself, that he would not assist the chief in that scheme, but
instead would oppose it.
Henrise and Pothen furnished detailed information to the
DeSoto City Manager, Ron Holifield, about the misconduct in which
they believed Chief Horvath had engaged, but Holifield did not act
on those complaints. At or around the same time, a city employee,
Linda Bertoni, filed a 19-page sworn statement with the City
Manager, the City Mayor, and City Council members in which Police
Chief Horvath’s misconduct was set out in detail. The City did not
investigate Horvath’s activities in response to Bertoni’s
notification, either.
According to Henrise, the “end result” of his and Pothen’s
complaint about Horvath was that both officers were placed on
administrative leave by Horvath, and were charged in a complaint
regarding an unrelated search conducted by the SIU. On the advice
of counsel, Henrise agreed to accept a one-day suspension to
resolve the matter, and then return to duty with the same rank and
seniority. Henrise has consistently maintained that he did
absolutely nothing wrong regarding the search in question, and only
accepted the suspension so that he could return to police work.
Pothen, on the other hand, was fired, then pursued his appellate
remedies under state civil service laws and later sought other
remedies in federal court. During this time, Henrise maintained a
strong association with Pothen, both as a fellow officer and close
4
police friend. Henrise stresses that police officers rely on each
other for emotional and physical support both on duty (including in
life-threatening situations) and off.
After Pothen was fired, he placed the City and the individual
defendants on notice that he would challenge his termination.
Henrise contends that all the individual defendants were aware that
Henrise maintained a close personal relationship with Pothen and
knew that he would testify favorably on Pothen’s behalf and
adversely to the City and Horvath.
When Henrise returned to work after his one-day suspension, he
reported to defendant Warren Box, Captain of Police for the DeSoto
Police Department. Even though Henrise’s status was for regular
duty, Box assigned him to such demeaning tasks as enforcing
handicapped parking, serving as municipal court bailiff, filing
citations, and moving boxes. Henrise emphasizes that he was a
highly trained investigator with seniority in his position,
characterizing as “menial” all of the tasks to which he was
assigned by Box.
Henrise maintains that the assignments of degrading tasks by
Box were only the first in a long series of retaliatory and
harassing acts against him. Henrise alleges that these acts were
done in an effort to punish him for his association with Pothen, to
intimidate him into not testifying on Pothen’s behalf, and to
retaliate against him for continuing to associate with Pothen and
vowing to provide truthful testimony on Pothen’s behalf in federal
5
court. Other alleged harassing and retaliatory instances cited by
Henrise include the initiation by Box of a “baseless internal
affairs investigation” against Henrise for allegedly violating
departmental regulations regarding the security of records (access
to which Henrise, a senior sergeant in the department, was
entitled), and Box’s denial of Henrise’s right to bid on normal
patrol shift assignments.
In an effort to confirm his beliefs about why he was being
singled out and punished, Henrise met with Horvath to discuss the
matter. Henrise asserts that Horvath became angry during this
meeting, and “tersely berated” Henrise “in unmistakable terms” for
not severing his relationship with Pothen. In the same meeting,
Horvath characterized Pothen in vulgar language and referred to a
meeting between Pothen and Henrise that had taken place a week
earlier in a local hotel. That reference made Henrise realize that
Horvath was tracking Henrise’s off-duty time spent with Pothen, and
convinced Henrise that the actions taken against him were based
directly on his association with Pothen.
Henrise asserts that after this meeting with Horvath, the
following events took place, which Henrise maintains were either
retaliatory or designed to discourage him from testifying on
Pothen’s behalf or destroy his credibility if he did testify: (1)
Horvath rescheduled Henrise’s shift, assigning a sergeant with less
seniority than Henrise to supervise him; (2) Henrise was again
denied the opportunity to bid for a supervisory position on a
6
patrol shift; (3) a “false” complaint was filed against Henrise
with the Civil Service Commission; (4) an intimidating conversation
with defendant Clarence V. Johns, a Captain with the DeSoto Police
Department, took place on the same day that Pothen filed his
federal lawsuit, the thrust of which conversation was disapproval
of Henrise’s continued association with Pothen; (5) an article was
approved by Captain Johns and then published in the Dallas Morning
News, containing “false information” about an “unnamed officer,”
whom anyone familiar with the DeSoto police department would
recognize as Henrise; and (6) Box commenced yet another internal
affairs investigation of Henrise concerning a class “C” ticket that
Henrise was “superficially involved with.” (Contrary to customary
policy, avers Henrise, defendant Robin Flores, the Records Division
Supervisor for the DeSoto Police Department, elected to assert a
formal internal affairs complaint instead of contacting Henrise to
resolve the “trivial matter.”) The investigator of this complaint
concluded that Henrise should be cleared of the allegations, but
Box and Horvath re-opened the investigation, forced a second
interview with the investigator that included defendant Johns, with
the objective, according to Henrise, of sustaining the “baseless”
complaint against Henrise.
Henrise filed a formal grievance with City Manager Holifield,
against defendant Johns (presumably for his approval of the Dallas
Morning News article, although the complaint does not say). As
with the complaint filed against Horvath, however, Henrise received
7
no response from the City.
Horvath left the position of Police Chief, and was replaced by
acting police chief W.M. Broadnax. When Henrise went to Broadnax
to inquire about the status of “a complaint Henrise had filed
against Horvath,”1 Broadnax reportedly “exploded” at Henrise,
swearing at him and referring to Pothen’s attorney by name in his
anger, thereby evidencing, Henrise asserts, Broadnax’s negative
opinion of Pothen, Henrise, and Pothen’s federal lawsuit in which
Henrise was to be a material witness.
Henrise filed “several” complaints with the City against
Horvath, Johns, and later Broadnax. Henrise alleges that each such
complaint constituted actual notice to the City that Henrise was
being subjected to harassment that amounted to retaliation and
punishment. None of the complaints were investigated or acted on
by the City.
In the fall of 1997, Henrise filed his complaint in the
district court, invoking 42 U.S.C. §§ 1983 and 1985, and naming as
defendants Horvath, Johns, Box, and Flores in their individual
capacities, and the City of DeSoto. Henrise sued the individual
defendants under § 1983 “pursuant to the First and Fourteenth
Amendments” “for retaliating against him and punishing him for his
continued association with Pothen, and for their conspiracy which
1
Henrise’s petition neither clarifies which “complaint
against Horvath” Henrise was inquiring about, nor specifies to
whom that complaint was made.
8
was carried out and designed for that purpose.” He also sued the
individual defendants under § 1985(2) “for their conspiratorial
attempts to prevent him from testifying in the litigation brought
in federal court by Pothen, and for punishing [Henrise] regarding
the same.” Last, under § 1983, he sued the City pursuant to the
First and Fourteenth Amendments for “the actions of its policymaker
—— the police chief —— and for knowingly permitting the individual
Defendants to retaliate against, threaten, punish, and intimidate
[him].”
After the filing of a series of amended complaints, answers,
counter-claims, motions to dismiss, a motion for summary judgment,
and responses thereto, the district court ruled for the first time
on the dismissal motions of the individual defendants and the City.
With respect to the City, the district court denied the motion to
dismiss without prejudice, and required Henrise to file an amended
complaint that would “meet the basic requirements for pleading
municipal liability under Section 1983.” With respect to the
individual defendants, the court required Henrise to file a reply
to their defense of qualified immunity, “enumerating the specific
conduct of each Defendant on which Plaintiff predicates his claims
for which each Defendant should be held personally liable.”
Henrise filed a Second Amended Complaint, which was his third
attempt to detail his case against the defendants, the district
court having highlighted the deficiencies of his earlier attempts.
In response, all defendants submitted motions to dismiss, to which
9
Henrise had an opportunity to respond. Having before it (1) the
defendants’ motions to dismiss, (2) the defendants’ motion for
summary judgment (which remained pending from earlier in the
proceedings), (3) Henrise’s motion for a continuance, and (4) the
individual defendants’ alternative motion to strike the Second
Amended Complaint, the court ruled for the second time, rendering
a memorandum opinion and order.
In that opinion, the district court granted the individual
defendants’ and City’s motions to dismiss. The individual
defendants’ dismissal motion was granted because the district court
concluded that Henrise failed to allege the violation of a
constitutionally protected right, and that he therefore could not
prove any set of facts that would entitle him to relief. In the
alternative, the court held that even if Henrise had alleged the
violation of a constitutional right, it was by no means a right
that was clearly established at the time, so that the individual
defendants were, in any event, entitled to qualified immunity. As
for the § 1985(2) conspiracy claims against the individual
defendants, the district court concluded that Henrise failed to
show the requisite agreement among the defendants to deter Henrise
from testifying in the federal litigation. Last, with respect to
Henrise’s claims against the City, the district court found the
complaint “lacking in that it does not contain basic and
fundamental allegations to put DeSoto on notice as to the bases for
its claims regarding municipal policy or custom.” The court went
10
on to state that even if Henrise had adequately shown that the
City had an unconstitutional policy, he failed to state a
constitutional claim for which relief could be granted. The court
concluded that Henrise’s claim must fail as a matter of law,
because the court could find no underlying constitutional
violation.
Having ruled on these motions to dismiss, the district court
then denied the individual defendants’ alternative motion to strike
the Second Amended Complaint, and dismissed as moot the defendants’
summary judgment motion and Henrise’s motion for a continuance.
Henrise timely filed a notice of appeal from the district court’s
order.
II. Analysis
A. Standard of Review
We review de novo a district court’s dismissal for
failure to state a claim under Rule 12(b)(6). In
considering a motion to dismiss, the complaint should be
construed in favor of the plaintiff, and all facts
pleaded should be taken as true. Motions “to dismiss for
failure to state a claim [are] ‘viewed with disfavor, and
[are] rarely granted.’” A Rule 12(b)(6) dismissal will
not be affirmed “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.” However,
“conclusory allegations or legal conclusions masquerading
as factual conclusions will not suffice to prevent a
motion to dismiss.” In the context of a 12(b)(6) motion
in a section 1983 suit, the focus should be “whether the
complaint properly sets forth a claim of a deprivation of
rights, privileges, or immunities secured by the
Constitution or laws of the United States caused by
persons acting under color of state law.” If there is no
deprivation of any protected right the claim is properly
11
dismissed.1
B. Discussion
Henrise contends that the district court erred in three
fundamental ways: (1) by concluding that he failed to allege the
violation of a constitutional right; (2) by determining that he did
not sufficiently allege a conspiracy; and (3) by finding that his
complaint did not afford the City sufficient notice of his claims.
Our painstaking review of the record satisfies us that the district
court dealt generously with Henrise throughout the course of the
proceedings, and did not err as to contentions (1) and (3). We
differ with the court, however, on contention (2), convinced that
Henrise did allege facts sufficient, if proved, to show a
conspiracy and thus survive a Rule 12(b)(6) motion to dismiss. We
therefore affirm the district court’s ruling as to Henrise’s § 1983
claims against the City and the individual defendants for violation
of a constitutional right. We reverse the district court’s ruling
as to Henrise’s § 1985(2) conspiracy claims against the individual
defendants, however, and remand for further proceedings.
1. Failure to allege the violation of a constitutional right
Two subsidiary arguments are subsumed within Henrise’s
contention that the district court erred when it determined that he
failed to allege the violation of a constitutional right. The
1
Southern Christian Leadership Conference v. Supreme Court
of Louisiana, 252 F.3d 781, 786 (5th Cir. 2001) (internal
citations omitted).
12
first subsidiary argument is that the district court erred in
determining that Henrise’s complaint failed to allege an actionable
violation of his right to freedom of association. The second is
that the district court unfairly characterized Henrise’s complaint
as alleging only freedom of association claims under the First
Amendment despite allegations in his complaint that, according to
Henrise, state two separate free speech claims. The first argument
is wholly without merit; the second, although facially troubling,
also proves meritless on closer examination.
a. Freedom of assocation
Henrise insists that the district court erred in dismissing
his freedom of association claim. Quoting extensively from Roberts
v. United States Jaycees,2 the district court noted correctly that
there are two categories of freedom of association claims. As the
district court explained,
The first category is epitomized by “highly personal
relationships” such as marriage and family, and the
personal affiliations that necessarily “attend the
creation and sustenance of these highly personal
relationships.” [Roberts, 468 U.S. at 618-20]; Hobbs v.
Hawkins, 968 F.2d 471, 482 (5th Cir.1992). The second
category recognizes “associational rights derivative of
the First Amendment rights of speech, assembly, petition
for redress of grievances, and exercise of religion.”
Hobbs. v. Hawkins, 968 F.2d at 482.
After “closely examin[ing]” Henrise’s complaint, the district court
concluded that he was asserting the first type of freedom of
association claim —— those “epitomized ‘by highly personal
2
468 U.S. 609, 617-18 (1984).
13
relationships’ such as marriage and family.” As the district court
noted,
Nowhere in the Plaintiff’s Complaint does he allege that
he joined with or associated himself with Pothen for the
express purpose of speaking out on mismanagement,
corruption or illegal activity that may have been
occurring in the DeSoto Police Department. ...
Plaintiff’s claim is based not on his desire to exercise
any right secured by the First Amendment but on his
personal friendship with Pothen —— nothing more.
We agree with the district court. There is no indication in
the complaint that Henrise was alleging the second type of freedom
of association claim. Restricted to consideration of only the
first type, therefore, the district court did not err when it
refused to classify Henrise’s close personal and professional
friendship with Pothen as the type of highly personal relationship
that earns First Amendment protection. Despite Henrise’s attempt
to cast police officers’ friendships as special and unique, those
friendships still are not the type of intimate human relationship
that demand protection as a “fundamental element of human
liberty.”3 Henrise’s insistence on appeal that, “[a]t the time of
the filing of the Plaintiff’s Complaint and at the time he was
retaliated against and punished by the individual Defendants, the
First Amendment right of freedom of association was clearly
established,” is to no avail. Albeit true that this right was
clearly established, Henrise’s association with Pothen simply was
not the kind of familial or intimately close personal relationship
3
Roberts, 468 U.S. at 618.
14
that is protected by that right. The district court did not err in
this determination.
b. Free speech
Henrise also insists that he alleged two distinct free speech
claims as well, and that the district court erred in characterizing
his complaint as alleging only freedom of association claims under
the First Amendment. In particular, Henrise asserts in his
appellate brief that his complaint “contains claims of retaliation
for his speech [in reporting Horvath’s suspected criminal activity
to the City Manager] as well as the Plaintiff’s anticipated
testimony in support of Pothen’s federal lawsuit coupled with his
association with Pothen.” (Emphasis ours.) As such, Henrise
appears to be classifying both his report of Horvath’s suspected
criminal activity and his intended future testimony on Pothen’s
behalf as protected speech, asserting that the allegations of his
complaint validly state a claim for retaliation for those two
instances of speech.
As an initial matter, we note that Henrise’s Second Amended
Complaint alleges only the following three causes of action:
39. Pursuant to the First and Fourteenth Amendments, and
procedurally pursuant to 42 U.S.C. § 1983, Plaintiff sues
the individual Defendants for retaliating against him and
punishing him for his continued association with Pothen,
and for their conspiracy which was carried out and
designed for that purpose.
40. Pursuant to the first clause of 42 U.S.C. § 1985(2),
Plaintiff sues the individual Defendants for their
conspiratorial attempts to prevent him from testifying in
the litigation brought in federal court by Pothen, and
15
for punishing Plaintiff regarding the same.
41. Pursuant to the First and Fourteenth Amendments, and
procedurally pursuant to 42 U.S.C. § 1983, Plaintiff sues
the City of DeSoto for the actions of its policymaker ——
the police chief —— and for knowingly permitting the
individual Defendants to retaliate against, threaten,
punish, and intimidate Plaintiff. The City was on actual
notice of this conduct, and failed to prevent it from
occurring and recurring and by [sic] ratifying such
conduct.
[Emphasis added.]
Taking Henrise’s own expression of his causes of action at
face value, he fails to allege a constitutional free speech claim
at all in ¶ 39, the only paragraph in which any constitutional (as
distinguished from statutory) causes of action are proffered
against the individual defendants. The only constitutional claim
asserted in ¶ 39 involves freedom of association, which, as we have
noted, is not applicable on these facts.
Moving to ¶ 40, and setting aside for the moment the fact that
this paragraph expresses a statutory cause of action for
conspiracy, we note that it does pertain to prospective testimony.
Construing the complaint extremely liberally, therefore, we
possibly could glean a free speech claim from ¶ 40 premised on the
fact that Henrise intended to provide testimony at Pothen’s trial
and so informed the defendants. Last, regardless of which of the
three cause-of-action paragraphs is liberally construed, the causes
of action as Henrise chose to express them offer no indication that
he means to cast his report of Horvath’s suspected criminal
activity as an exercise of free speech for which he suffered
16
retaliation.
Out of an abundance of caution, however, we have reviewed the
entire record on appeal to see whether Henrise can legitimately
claim to have alerted the court and the defendants through other
pleadings to the fact that he meant to rely, at least in part, on
a freedom of speech claim premised on his and Pothen’s report of
Horvath’s suspected criminal activity. For the most part, our
record search has uncovered only repeated assertions similar to the
following, taken from Henrise’s reply to the defendants’ motion to
dismiss his Second Amended Complaint:
Plaintiff alleges that after Pothen was terminated and
Henrise was returned to work, Horvath engaged in a
systematic pattern of retaliation against Henrise. This
retaliation was because Henrise refused to sever his
association with Pothen, and because Henrise was to
testify favorably in Pothen’s federal lawsuit.
[Emphasis added.]
In fairness, we must note that there is one instance in the
record when Henrise equates his report of Horvath’s suspected
criminal conduct with an exercise of free speech. In his reply to
the defendants’ motion for summary judgment,4 Henrise stated:
4
The district court did not err by not considering
Henrise’s summary judgment response brief, however. “In
reviewing a Rule 12(b)(6) motion to dismiss for failure to state
a claim, [the district] court’s review is limited to the
allegations contained in the pleadings themselves. ...
[D]ocuments incorporated by reference or attached to the
pleadings as exhibits are considered part of the pleadings for
all intents and purposes.” Harris v. Castle Motor Sales, Inc.,
2001 WL 477241, at *1 (N.D. Ill. 2001) (emphasis added). We
discuss Henrise’s summary judgment response only to show that he
made the free speech legal argument prior to submitting his
Second Amended Complaint; yet he failed to state any free speech
17
Although the primary thrust of plaintiff’s claims
center on the retaliation he suffered as a result of his
relationship with Pothen and the favorable testimony he
rendered to Pothen against defendants, plaintiff has
alleged that it was initially his speech against Horvath
which resulted in his suspension from the police
department.
We note, however, that this reply was filed before the district
court ruled on the first motions to dismiss. In that writing, the
district court explained that it had
reviewed Plaintiff’s First Amended Complaint and finds
that the Complaint is lacking in specificity and
particularity as to the conduct, acts, or omissions of
each Individual Defendant. The Complaint must allege
what each Defendant did to cause Plaintiff to be deprived
of a constitutionally protected right and therefore be
liable to Plaintiff personally. In other words,
Plaintiff must state specifically how each Defendant
retaliated against him and conspired to deprive him of a
constitutionally or statutorily protected right. This is
really not that difficult of a task if the facts for a
cause of action exist. If the facts exist, all Plaintiff
has to do is allege the elements of a First Amendment
retaliation claim, state facts which would establish
those elements, and state the conduct of each Defendant
that caused him to be subjected to unlawful retaliation.
[Emphasis added.]
Despite these generous and detailed instructions by the court,
when Henrise submitted his Second Amended Complaint (his “third
bite at the apple,” as the district court later characterized it),
Henrise once again failed to state clearly that he was alleging a
claim against the defendants based on their retaliation for his
exercise of free speech (in the form of reporting Horvath’s
conduct). Given the numerous opportunities afforded to Henrise to
cause of action in that amended complaint.
18
“get it right,” therefore, and his continued insistence in every
document (other than the excerpt quoted above) that his retaliation
claims rested only on his freedom of association and his
prospective testimony, we conclude that the district court did not
err by refusing to consider any free speech claim based on the
report by Henrise and Pothen of Horvath’s conduct.
There remains, however, the possibility, alluded to above,
that Henrise’s Second Amended Complaint might, by very liberal
construction, be read to include a retaliation claim based on
Henrise’s prospective testimony in Pothen’s federal lawsuit. In
the end, though, we must reject this possibility. His Second
Amended Complaint simply does not allege such a cause of action
against the individual defendants. As noted, the only related
cause of action to be found is stated in ¶ 40. That cause of
action, however, is expressly based on 42 U.S.C. § 1985(2). It is
neither a constitutional claim nor a claim against the individual
defendants except insofar as it alleges their participation in a
conspiracy. As observed in connection with Henrise’s free speech
claim premised on the report of Horvath’s criminal activity, this
was Henrise’s third attempt to articulate the causes of action he
wished to assert against the defendants, and he simply failed ——
despite coaching by the district court —— to allege any
constitutional free speech claim whatsoever against the individual
defendants.
It is hornbook law that a Rule 12(b)(6) dismissal motion
19
should not be granted unless it appears to the district court
“beyond doubt that the plaintiff can prove no set of facts in
support of his claim which would entitle him to relief.”5 It is
also well-settled that the court must take all well-pleaded facts
and allegations within the complaint as true when ruling on a Rule
12(b)(6) motion.6 The question that usually confronts a district
court in this context is whether the plaintiff has alleged
sufficient facts to demonstrate an ability to prove all the
elements of the stated cause of action. Here, however, the
district court was faced with precisely the inverse problem:
Perhaps the court could cobble together Henrise’s alleged facts to
constitute a free speech cause of action against the individual
defendants, particularly Horvath; but Henrise himself, in three
attempts, never identified such a cause of action. However
plaintiff-friendly the 12(b)(6) standard may be, it does not
require (or even permit) a court to “lawyer” a plaintiff’s case,
especially a plaintiff who is already represented by counsel. We
therefore agree with the district court that Henrise failed to
state a constitutional free speech claim, and we affirm the
district court’s ruling that Henrise failed to allege the violation
of a constitutional right by the individual defendants.
5
Conley v. Gibson, 355 U.S. 41, 45-46 (1957) (emphasis
added).
6
Brown v. Nationsbank Corp., 188 F.3d 579, 585 (5th Cir.
1999).
20
2. Conspiracy
Paragraph 40 of Henrise’s Second Amended Complaint expressly
alleges a cause of action against the individual defendants under
the “first clause of 42 U.S.C. § 1985(2).” That statute provides
a cause of action when
two or more persons in any State or Territory conspire to
deter, by force, intimidation, or threat, any party or
witness in any court of the United States from attending
such court, or from testifying to any matter pending
therein, freely, fully, and truthfully ....7
In considering this claim, the district court stated:
The court is aware that Plaintiff contends that
Defendants engaged in a conspiracy to prevent or
intimidate him from providing testimony favorable to
Pothen and adverse to the City of DeSoto; however, the
court does not understand the basis of this conclusory
allegation because Henrise has not pleaded specific facts
supporting a conspiracy. He has not stated what each
individual Defendant did to promote or further the
alleged conspiracy. As the essence of a conspiracy is an
agreement or meeting of the minds of the participants, no
facts are alleged that an agreement existed or which
state the nature of each individual Defendant’s acts. A
hodgepodge of unrelated acts does not a conspiracy make,
which is all Plaintiff sets forth. Other than
Plaintiff’s conclusions, there are no specific facts
which would indicate that Defendants conspired to prevent
or intimidate Henrise from testifying on behalf of
Pothen. ... The conclusory allegations set forth in
Plaintiff’s Complaint are simply too slender of a reed to
support a claim under § 1985(2). [Emphasis added.]
We have reviewed the Second Amended Complaint and must disagree
with the district court’s conclusions on this point.
In ¶ 29, Henrise alleges that:
[o]n May 4, 1996 plaintiff’s immediate supervisor, Lt.
7
42 U.S.C. § 1985(2).
21
William R. Ransom, stated that defendants Box and Johns
were actively compiling a dossier on Henrise to use to
try and terminate Henrise.
This allegation is not merely conclusional. The suggestion that
Henrise will call an independent witness to state that two police
officials were working together to “actively compil[e] a dossier on
Henrise” contradicts the district court’s finding that “no facts
are alleged that an agreement existed.” Admittedly, the alleged
purpose of the “dossier” was to “terminate” Henrise, not to prevent
him from testifying, as § 1985(2) requires. It demands no great
inferential leap, however, for a court to surmise that the same
parties conspiring to “terminate” Henrise just might be doing so
for the ultimate purpose of “intimidat[ing] or threat[ening] [him]
... from testifying to any matter pending [in federal court],
freely, fully, and truthfully,” as the statute requires. We are
therefore satisfied that Henrise pleaded facts in support of his §
1985(2) conspiracy claim sufficient to survive the pro-plaintiff
requisites of a Rule 12(b)(6) motion. We therefore reverse the
district court’s dismissal of that claim.
3. Insufficient notice of claims against the City
To reiterate, Henrise alleged the following cause of action
against the City as defendant:
41. Pursuant to the First and Fourteenth Amendments, and
procedurally pursuant to 42 U.S.C. § 1983, Plaintiff sues
the City of DeSoto for the actions of its policymaker ——
the police chief —— and for knowingly permitting the
individual Defendants to retaliate against, threaten,
punish, and intimidate Plaintiff. The City was on actual
notice of this conduct, and failed to prevent it from
22
occurring and recurring and by [sic] ratifying such
conduct.
As we have seen, the district court denied the City’s first motion
to dismiss Henrise’s claims. In doing so, the court observed that
[r]equiring a plaintiff to identify the specific policy
or custom and allege that the policy or custom adopted by
the municipality or policymaking official was the ‘moving
force’ behind the constitutional violation is in no way
inconsistent with notice pleading or the mandate of
[Leatherman v. Tarrant County Intelligence & Coordination
Unit8]. ... [T]he allegations of a complaint must not be
conclusory; otherwise, a defendant is not placed on
notice of the grounds for the claim. Conclusory
allegations cannot survive a motion to dismiss. See
[Guidry v. Bank of LaPlace9]. [Emphasis added.]
The district court then reviewed the elements that a plaintiff
must allege if he wishes to impose liability on a municipality:
To support a claim based upon the existence of an
official custom or policy, the Plaintiff must plead facts
which show that: 1) a policy or custom existed; 2) the
governmental policy makers actually or constructively
knew of its existence; 3) a constitutional violation
occurred; and 4) the custom or policy served as the
moving force behind the violation.10
Comparing Henrise’s First Amended to this standard, the district
court stated:
The court has reviewed Plaintiff’s Complaint in
detail and finds that it does not contain these basic and
fundamental allegations to put DeSoto on notice as to the
bases for its claims regarding municipal policy or
custom.
8
507 U.S. 163 (1993).
9
954 F.2d 278, 281 (5th Cir. 1992).
10
Meadowbriar Home for Children, Inc. v. Gunn, 81 F.3d 521,
532-33 (5th Cir. 1996) (citing Palmer v. City of San Antonio, 810
F.2d 514, 516 (5th Cir. 1987)).
23
...
Plaintiff’s Complaint does not meet the basic
requirements for pleading municipal liability under
Section 1983 as set forth in [Spiller v. City of Texas
City11] and Meadowbriar. The Court concludes that the
allegations in Plaintiff’s Complaint are conclusory,
including the reference to Defendant Horvath as a
policymaker, and as such fail to state a claim upon which
relief can be granted.
Plaintiff states that he has not pleaded “his best
case with respect to DeSoto.” ... Plaintiff will get his
chance to do so because, rather than dismiss his
Complaint, the court will permit Plaintiff to amend his
Complaint in accordance with this order. In this regard,
Plaintiff is strongly admonished to ride his best pony in
the race, as he will not get another chance to race
against De Soto.
When it reviewed the Second Amended Complaint, the district
court found that, despite its earlier admonishment, “little, if
anything, of substance has been added to it that is different from
the Plaintiff’s First Amended Complaint.” As the “Complaint [was]
still lacking in that it [did] not contain basic and fundamental
allegations to put De Soto on notice as to the bases for its claims
regarding municipal liability,” the district court dismissed
Henrise’s claims against the City for failure to state a claim.
Our close reading of the Second Amended Complaint confirms the
district court’s conclusions. The Second Amended Complaint
contains a conclusional insistence, without support, that “[i]f
Horvath was not the ‘official’ policymaker, by custom the DeSoto
Chief of Police is deemed the de facto policymaker in his capacity
as the highest ranking law enforcement and police administrator
11
130 F.3d 162 (5th Cir. 1997).
24
within the City of De Soto,” and an allegation that, “[b]y failing
to act or investigate Henrise’s complaints regarding retaliation by
its Chief of Police, the City engaged in a deliberate and
unmistakable course of conduct among various alternatives.” These
allegations fall far short of meeting the requirements for the
imposition of municipal liability. Merely insisting that the
police chief is the “de facto policymaker” will not make it so,12
and the failure of the City to investigate Henrise’s complaints of
retaliation does not constitute a pervasive and widespread practice
sufficient to show a municipal “custom” warranting the same
attention as a written policy.13 We therefore affirm the district
12
We have, in any event, previously noted the Supreme
Court’s reservations concerning the theory of a “de factor”
policymaker. See Gros v. City of Grand Prairie, Tex., 181 F.3d
613, 616 n.2 (5th Cir. 1999) (“The Supreme Court has rejected the
principle of a ‘de facto policymaker.’ See [City of St. Louis v.
Praprotnik, 485 U.S. 112, 131 (1988)].”).
In addition, we note in passing the presence of a logical
inconsistency in Henrise’s allegations that the chief of police
is the policymaker, and that the objectionable “policy” is the
City’s failure to investigate Henrise’s complaints of
retaliation. If the policy is not to investigate the police
chief’s retaliatory conduct, then the police chief is not the
policymaker that Henrise needs; he needs to identify a
policymaker who promoted the policy of not investigating the
complaints of retaliation. On the other hand, if he prefers to
cast the police chief as the policymaker, then he needs to
identify a course of conduct engaged in by that individual ——
e.g., the retaliatory conduct itself —— to serve as the “policy.”
13
If the plaintiff cannot point to a “policy statement,
ordinance, regulation, or decision that is officially adopted and
promulgated by the municipality’s lawmaking officers,” as Henrise
cannot, then the plaintiff must instead show 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
25
court’s dismissal of Henrise’s claims against the City.
III. Conclusion
Our de novo review confirms that the district court determined
correctly that Henrise failed to allege a constitutional violation
against the individual defendants under 42 U.S.C. § 1983, and that
his complaint also lacked the “basic and fundamental allegations to
put De Soto on notice as to the bases for its claims regarding
municipal liability.” We therefore affirm the district court’s
dismissal of Henrise’s § 1983 claims against the individual
defendants and the City. We disagree with the district court’s
conclusion, however, that Henrise failed to plead facts showing the
requisite agreement for a conspiracy, so we reverse the district
court’s dismissal of Henrise’s conspiracy claims against the
individual defendants under 42 U.S.C. § 1985(2), and remand the
case for further proceedings.
AFFIRMED IN PART; and REVERSED AND REMANDED IN PART.
that fairly represents municipal policy.” Johnson v. Moore, 958
F.2d 92, 94 (5th Cir. 1992) (quoting Bennett v. City of Slidell,
735 F.2d 861, 862 (5th Cir. 1984) (en banc)) (emphasis added).
26