Barkley v. Dillard Department Stores Inc. , 277 F. App'x 406 ( 2008 )


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  •            IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT United States Court of Appeals
    Fifth Circuit
    FILED
    May 2, 2008
    No. 07-20482                     Charles R. Fulbruge III
    Summary Calendar                           Clerk
    ROBERT BARKLEY
    Plaintiff-Appellant
    v.
    DILLARD DEPARTMENT STORES INC; HARRIS COUNTY TEXAS;
    WILLIAM WILKINSON, Individually
    Defendants-Appellees
    Appeal from the United States District Court
    for the Southern District of Texas
    USDC No. 4:06-CV-0843
    Before JOLLY, PRADO, and SOUTHWICK, Circuit Judges.
    PER CURIAM:*
    Before the court is an appeal by Plaintiff-Appellant Robert Barkley
    (“Barkley”) of the district court’s order granting the summary judgment motions
    of Defendants-Appellees Dillard’s Department Stores, Inc. (“Dillard’s”) and
    Harris County, Texas (“Harris County”). Because Dillard’s is not a state actor
    for purposes of 
    42 U.S.C. § 1983
    , we AFFIRM the district court’s grant of
    *
    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 R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
    No. 07-20482
    summary judgment to Dillard’s. Further, because Barkley failed to create a
    genuine issue of material fact that his injuries resulted from a policy or custom
    of Harris County, we AFFIRM the district court’s grant of summary judgment
    to Harris County.
    I. BACKGROUND
    The allegations in this case concern an incident that took place on May 7,
    2004, when Barkley was shot three times by Defendant-Appellee William
    Wilkinson (“Wilkinson”), a Harris County Sheriff’s Deputy. At the time of the
    shooting, Wilkinson was not on-duty as a deputy but was working as a private
    security guard for Dillard’s. Wilkinson was inside Dillard’s when he received a
    radio communication from James Wheat (“Wheat”), a Dillard’s employee who
    monitored all of the security cameras in Dillard’s. Wheat informed Wilkinson
    that a black male in a blue dress shirt (Barkley) who had previously shoplifted
    from Dillard’s was in the men’s department with a large Dillard’s bag. Wheat
    instructed Wilkinson to proceed to the men’s department in case the man
    attempted to shoplift again. While Wilkinson was making his way to the men’s
    department, Wheat informed Wilkinson that the man had just stolen Dillard’s
    merchandise and was leaving the store. Wheat then told Wilkinson that the
    man turned left upon exiting the store.
    Barkley’s account of the events that followed differs markedly from that
    of Wilkinson. Although we set forth both sets of facts, we take Barkley’s version
    as true for purposes of summary judgment. See Crawford v. Formosa Plastics
    Corp., 
    234 F.3d 899
    , 902 (5th Cir. 2000). Barkley admits that he shoplifted
    merchandise from Dillard’s and that he exited the store and walked at a “fast
    pace” to his car. Barkley states that it was only after he had backed out of his
    parking space that he heard Wilkinson yelling at him. Barkley lifted his hands
    off of the steering wheel and did not put the car into drive. Wilkinson then shot
    2
    No. 07-20482
    him three times, hitting him in the arm, jaw, and hand. Barkley managed to put
    his car in park and fell out of the door, at which time Wilkinson arrested him.
    Wilkinson, on the other hand, asserts that, upon exiting the store, Barkley
    turned around and saw Wilkinson pursuing him. Barkley began to run toward
    his car, and Wilkinson ran after Barkley ordering him to stop. According to
    Wilkinson, Barkley quickly backed out of the parking space and began driving
    toward Wilkinson at a fast speed. Wilkinson claims that he was “caught” in a
    confined area and feared for his life, so he discharged his weapon into the car
    three times. The car stopped, and Wilkinson arrested Barkley.
    Barkley filed suit against Dillard’s, Harris County, and Wilkinson,
    bringing claims under 
    42 U.S.C. § 1983
     and Texas state law.            All three
    defendants moved for summary judgment. The district court granted summary
    judgment to each defendant on Barkley’s federal law claims and then declined
    to exercise supplemental jurisdiction over Barkley’s remaining state law claims.
    See 
    28 U.S.C. § 1367
    (c). Barkley has appealed the judgment of the district court.
    Because he makes no arguments that the district court erred in granting
    Wilkinson’s motion for summary judgment, Barkley has abandoned that claim
    on appeal. Therefore, we consider only the claims against Dillard’s and Harris
    County.
    II. DISCUSSION
    A.    Standard of Review
    We review a district court’s order granting summary judgment de novo.
    High v. E-Systems Inc., 
    459 F.3d 573
    , 576 (5th Cir. 2006). Summary judgment
    is appropriate when there is no genuine issue of material fact and the moving
    party is entitled to a judgment as a matter of law. U.S. ex rel. Taylor-Vick v.
    Smith, 
    513 F.3d 228
    , 230 (5th Cir. 2008); see also FED. R. CIV. P. 56(c). The
    moving party has the initial burden of identifying the pleadings and evidence
    which it believes demonstrate the absence of a genuine issue of material fact.
    3
    No. 07-20482
    Celotex Corp. v. Catrett, 
    477 U.S. 317
    , 323 (1986). The non-moving party then
    has the responsibility of demonstrating specific facts showing that there is a
    genuine issue for trial. 
    Id. at 324
    . A genuine issue of material fact exists “‘if the
    evidence is such that a reasonable jury could return a verdict for the non-moving
    party.’” U.S. ex rel. Taylor-Vick, 
    513 F.3d at 230
     (quoting Anderson v. Liberty
    Lobby, Inc., 
    477 U.S. 242
    , 248 (1986)). All facts are considered in the light most
    favorable to the non-moving party, and all inferences must be drawn in that
    party’s favor. Crawford, 
    234 F.3d at 902
    .
    B.    Claims Against Dillard’s
    In its summary judgment order, the district court concluded that Barkley
    failed to show that Dillard’s was a state actor for purposes of establishing
    liability under 
    42 U.S.C. § 1983
    . Barkley contests that conclusion on appeal.
    “To state a claim under § 1983, a plaintiff must allege the violation of a
    right secured by the Constitution and laws of the United States, and must show
    that the alleged deprivation was committed by a person acting under color of
    state law.” West v. Atkins, 
    487 U.S. 42
    , 48 (1988) (emphasis added). However,
    a person need not be a state officer in order to act under color of state law.
    Rosborough v. Mgmt. & Training Corp., 
    350 F.3d 459
    , 460 (5th Cir. 2003) (per
    curiam). Instead, “a private entity acts under color of state law when that entity
    performs a function which is traditionally the exclusive province of the state.”
    
    Id.
     (internal quotation marks and citation omitted); see also Evans v. Newton,
    
    382 U.S. 296
    , 299 (1966) (noting that a private entity operates as a state actor
    when it is “endowed by the State with powers or functions governmental in
    nature”). Barkley contends that, when Dillard’s hired Wilkinson to “Enforce all
    State and Federal Laws” in his Harris County Sheriff’s uniform, Dillard’s
    became a state actor in that it was performing traditional state functions.
    This court has previously set forth the standard for demonstrating state
    action in circumstances such as this. In Morris v. Dillard Department Stores,
    4
    No. 07-20482
    Inc., 
    277 F.3d 743
     (5th Cir. 2001), the court considered whether Dillard’s was a
    state actor for purposes of a Fourth Amendment claim when it employed a
    municipal police officer as a private security guard and the officer arrested an
    individual suspected of shoplifting.       After reviewing the court’s previous
    decisions, we concluded that “we will not subject a merchant to § 1983 liability
    unless an officer has failed to perform [an] independent investigation” and that
    “evidence of a proper investigation may include such indicators as an officer’s
    interview of an employee, independent observation of a suspect, and the officer
    writing his own report.” Id. at 750. In Morris, the officer questioned the
    employee making the report of shoplifting, observed the alleged shoplifter (who
    did nothing illegal during that time), wrote down the license plate number of the
    alleged shoplifter’s car, arrested the alleged shoplifter after she confronted him,
    and wrote up his own police report detailing his actions and investigation. Id.
    The officer testified without contradiction that he did not make his decision to
    arrest the alleged shoplifter until after the individual confronted him, indicating
    that he was not acting solely on the basis of the employee’s report. Id. We held
    that this was evidence of an independent investigation that removed Dillard’s
    from liability as a state actor. Id.
    In this case, taking the facts in the light most favorable to Barkley, the
    evidence shows that Wilkinson received a report of shoplifting. He then spotted
    Barkley, who fit the description of the shoplifter, walking at a fast pace to his car
    while carrying a large Dillard’s bag. Dillard’s never ordered Wilkinson to arrest
    Barkley, and Wilkinson asserted without contradiction in his affidavit that he
    made the decision to apprehend Barkley based on his own analysis. Wilkinson
    further asserts that he would not have arrested an individual solely on the basis
    of a report by a Dillard’s employee without making his own investigation of the
    matter. In this instance, Wilkinson claims that he determined that, regardless
    5
    No. 07-20482
    of Dillard’s rules, he had the duty as a police officer to try and prevent any theft
    that might be occurring.
    Taking all of these facts into account, Barkley has failed to present
    sufficient evidence that Dillard’s was a state actor. Although Dillard’s notified
    Wilkinson of the shoplifter, Wilkinson made an independent decision to chase
    after and attempt to apprehend the suspect. These facts are in contrast with
    those in Smith v. Brookshire Brothers, Inc., 
    519 F.2d 93
     (5th Cir. 1975) (per
    curiam), in which we found that Brookshire was a state actor because “the police
    and [Brookshire] maintained a pre-conceived policy by which shoplifters would
    be arrested based solely on the complaint of the merchant.” Morris, 
    277 F.3d at 748-49
    . There is no evidence of a pre-conceived policy in this case. Therefore,
    based on the facts described above, we conclude that the district court did not err
    in deciding that Dillard’s was not a state actor. Consequently, we affirm
    summary judgment for Dillard’s.
    C.    Claims Against Harris County
    We turn now to Barkley’s claims against Harris County. The district court
    granted summary judgment to Harris County because it first granted summary
    judgment to Wilkinson. The district court reasoned that because no claims could
    be brought against Wilkinson, Harris County could not be liable. See, e.g., City
    of Los Angeles v. Heller, 
    475 U.S. 796
    , 799 (1986) (“If a person has suffered no
    constitutional injury at the hands of the individual police officer, the fact that
    the departmental regulations might have authorized the use of constitutionally
    excessive force is quite beside the point.”). The district court erred in employing
    this reasoning, however. Barkley’s claims against Wilkinson were dismissed, not
    because of a lack of a constitutional violation, but because Barkley failed to serve
    Wilkinson in a timely fashion, which permitted the statute of limitations to run.
    A ruling that Barkley’s claims against Wilkinson are untimely says nothing
    about whether Harris County (which was timely served) had a policy or custom
    6
    No. 07-20482
    that caused the deprivation of Barkley’s constitutional rights.1 Indeed, Harris
    County does not argue that the decision should be affirmed on this basis.
    Consequently, the district court erred in granting summary judgment to Harris
    County based solely on the grant of summary judgment to Wilkinson.
    Our inquiry does not end there, however, as we may affirm the grant of
    summary judgment on grounds other than those relied upon by the district court
    when the record contains an adequate and independent basis for the result. See
    Montgomery v. Brookshire, 
    34 F.3d 291
    , 297 (5th Cir. 1994); see also Stanley v.
    Trinchard, 
    500 F.3d 411
    , 428 (5th Cir. 2007) (noting that the court “may affirm
    summary judgment on any legal ground raised below, even if it was not the basis
    for the district court’s decision” (internal quotation marks omitted)). Harris
    County urges us to consider the merits of Barkley’s claim against it, specifically,
    whether Barkley has evidence of a policy or custom of Harris County that caused
    his injuries.
    It is well established that governmental liability under § 1983 must be
    premised on a government policy or custom that causes the alleged
    constitutional deprivation. Monell v. Dep’t of Soc. Servs., 
    436 U.S. 658
    , 694
    (1978). A policy may be a policy statement, ordinance, regulation, or decision
    that is officially adopted and promulgated by the government’s lawmaking
    officers or by an official to whom the lawmakers have delegated policy-making
    authority. Burge v. St. Tammany Parish, 
    336 F.3d 363
    , 369 (5th Cir. 2003). A
    custom is shown by evidence of a persistent, widespread practice of government
    officials or employees, which, although not authorized by officially adopted and
    promulgated policy, is so common and well settled as to constitute a custom that
    fairly represents government policy. 
    Id.
     Here, Barkley argues that Harris
    1
    Similarly, a municipality can be liable for a constitutional violation even when its
    police officers are entitled to qualified immunity for their actions. See, e.g., Glenn v. City of
    Tyler, 
    242 F.3d 307
     (5th Cir. 2001) (finding that police officers were entitled to dismissal based
    on qualified immunity but that claims remained against the city).
    7
    No. 07-20482
    County had a policy or custom of inadequately training its deputies, especially
    with respect to shooting at individuals in vehicles, and not properly investigating
    alleged instances of excessive force, thereby creating an atmosphere that
    permitted such uses of force.
    Wilkinson relies on three main pieces of evidence in making his claim: (1)
    allegations that Wilkinson previously used excessive force against Bonafacio
    Juarez (“Juarez”); (2) two newspaper articles detailing various incidents of
    officers shooting at vehicles and the government’s response; and (3) the expert
    report of Roger Clark.
    Turning first to the allegations regarding Juarez, Barkley asserts that
    Wilkinson used excessive force when he assaulted Juarez on October 6, 2003,
    and that Harris County therefore knew that Wilkinson was prone to using
    excessive force and did nothing about it.2 At the time of the alleged assault,
    Juarez was under arrest for drunk driving and handcuffed to a bench.
    Wilkinson claimed he hit Juarez after Juarez began to kick him. Harris County
    cleared Wilkinson of any wrongdoing, and Juarez subsequently pleaded guilty
    to attempted assault on a peace officer, although he currently denies those
    charges. This single allegation of excessive force is not sufficient evidence to put
    Harris County on notice that Wilkinson might need closer supervision or
    training, especially in light of the fact that the victim pleaded guilty to
    attempting to assault Wilkinson. Cf. Brown v. Bryan County, 
    219 F.3d 450
    , 454-
    55, 458 (5th Cir. 2000) (noting that deputy’s prior arrests for assault and battery,
    resisting arrest, public drunkenness, driving while intoxicated, possession of
    false identification, and other crimes indicated a need for further training).
    2
    Barkley also asserts that Wilkinson used excessive force in shooting another individual
    some time after the events of the instant case. We do not consider that shooting as it could not
    have informed Harris County’s judgment of Wilkinson at the time of Barkley’s shooting.
    8
    No. 07-20482
    Barkley also presented two articles from the Houston Chronicle that detail
    a four-month investigation into the use of force by Harris County deputies and
    Houston police officers. The first article noted that officers and deputies were
    going against their training by intentionally placing themselves in danger by
    stepping in front of vehicles, leading to an unusual number of shootings by
    officers. The second article reported that the Harris County Sheriff had adopted
    a new policy to further restrict when force could be used when a suspect was
    inside a vehicle.    We first note that newspaper articles are hearsay and
    inadmissible. Roberts v. City of Shreveport, 
    397 F.3d 287
    , 295 (5th Cir. 2005)
    (stating that newspaper articles are “classic, inadmissible hearsay”). Regardless,
    these articles do not evidence a policy or custom of unconstitutional shootings.
    Although the authors indicate their belief that many of the shootings were not
    justified, there is no evidence that the authors were employing any sort of
    constitutional standard. Further, the articles indicate that the officers were
    acting “in violation” of their training and that Harris County took steps to
    correct the matter as a result of the findings of the reporters. Thus, even were
    we to consider the articles as evidence, they do not indicate that Harris County
    had a policy or custom of permitting unconstitutional uses of force or that Harris
    County was deliberately indifferent to the need to train.
    Barkley next relies on the report of his police practices expert Roger Clark
    (“Clark”). In his report, Clark opines that Harris County has a custom and
    practice of permitting the use of excessive force by its deputies. To reach this
    conclusion, Clark states that he reviewed sixty-eight internal affairs files from
    Harris County regarding police shootings. His report then lists the name of each
    file and marks with an asterisk the ones in which Clark concluded the shooting
    was not justified. While Harris County found five of the sixty-eight shootings to
    be unjustified, Clark believed forty-two were not justified. Clark, however,
    provides no explanation for his conclusions—only asterisks. There is nothing in
    9
    No. 07-20482
    the report to suggest Harris County acted improperly other than Clark’s bare
    conclusion that numerous shootings were not justified. We do not accept such
    conclusory statements as sufficient evidence to overcome summary judgment.
    Guile v. United States, 
    422 F.3d 221
    , 227 (5th Cir. 2005) (“A claim cannot stand
    or fall on the mere ipse dixit of a credentialed witness.” (internal quotation
    marks omitted)); Calbillo v. Cavender Oldsmobile, Inc., 
    288 F.3d 721
    , 725 (5th
    Cir. 2002) (noting that conclusory allegations and unsubstantiated assertions are
    insufficient to overcome summary judgment).         Thus, Clark’s report is not
    sufficient to create a genuine issue of material fact regarding policy or custom.
    In order to hold Harris County liable for its lack of training, Barkley was
    required to present evidence that Harris County was deliberately indifferent to
    the need for more or better training. See City of Canton v. Harris, 
    489 U.S. 378
    ,
    389 (1989). Barkley has not identified any training deficiency. Indeed, there is
    no evidence of what training Wilkinson or any other officer received with respect
    to excessive force. Similarly, Barkley has not identified any deficiency in Harris
    County’s investigation of officer shootings, other than his disagreement with the
    conclusions reached by Harris County. Therefore, there is no evidence that
    Harris County failed to train Wilkinson or that it used improper methods to
    investigate officer shootings.
    Barkley bases part of his argument on the theory of ratification that we
    used in Grandstaff v. City of Borger, 
    767 F.2d 161
     (5th Cir. 1985), which
    concerned allegations that the police shot an innocent man. In Grandstaff, we
    upheld a jury verdict against a city based on a custom of reckless disregard for
    human life that was prevalent among the officers. 
    Id. at 170-72
    . There, the
    entire night shift of the Borger police department “poured” gunfire into a slow-
    moving pick-up truck “without awaiting any hostile act or sound . . . .” 
    Id. at 168
    (“They simply saw a target and fired.”). We characterized the events leading to
    the shooting as an “incompetent and catastrophic performance” and a “gross . . .
    10
    No. 07-20482
    abuse of the use of deadly weapons . . . .” 
    Id. at 171
    . We concluded that, because
    the officers received no reprimands or discharges from the city following such a
    flagrant use of excessive force, there must have been a preexisting disposition
    and policy of reckless disregard for life. 
    Id. at 171-72
    . Barkley urges us to reach
    the same result in this case.
    Grandstaff, however, has not enjoyed wide application in our circuit.
    Snyder v. Trepagnier, 
    142 F.3d 791
    , 797 (5th Cir. 1988). We have limited its
    ratification theory to “extreme factual situations.” 
    Id. at 798
     (refusing to apply
    Grandstaff to case in which police shot fleeing suspect in the back); Coon v.
    Ledbetter, 
    780 F.2d 1158
    , 1161-62 (5th Cir. 1986) (noting that a policymaker may
    defend the actions of his employees without incurring liability). The instant
    situation is not an extreme factual situation as in Grandstaff, but is more like
    Snyder, in which a single officer was involved in shooting a fleeing suspect.
    Consequently, we decline to apply the theory used by the court in Grandstaff.
    For the foregoing reasons, Barkley has failed to meet his burden of
    creating a genuine issue of material fact regarding whether his injuries were
    caused by a policy or custom of Harris County. We therefore affirm summary
    judgment for Harris County.
    III. CONCLUSION
    Because Dillard’s is not a state actor and because there is no evidence that
    Harris County had a policy or custom that caused Barkley’s injuries, we
    AFFIRM the judgment of the district court.
    AFFIRMED.
    11
    

Document Info

Docket Number: 07-20482

Citation Numbers: 277 F. App'x 406

Judges: Jolly, Per Curiam, Prado, Southwick

Filed Date: 5/2/2008

Precedential Status: Non-Precedential

Modified Date: 8/2/2023

Authorities (23)

Stanley v. Trinchard , 500 F.3d 411 ( 2007 )

Deborah Morris v. Dillard Department Stores, Inc, Dillard ... , 277 F.3d 743 ( 2001 )

Crawford v. Formosa Plastics Corp. , 234 F.3d 899 ( 2000 )

High v. E-Systems Inc Long , 459 F.3d 573 ( 2006 )

Glenn v. City of Tyler , 242 F.3d 307 ( 2001 )

United States Ex Rel. Taylor-Vick v. Smith , 513 F.3d 228 ( 2008 )

Roberts v. City of Shreveport , 397 F.3d 287 ( 2005 )

Calbillo v. Cavender Oldsmobile, Inc. , 288 F.3d 721 ( 2002 )

Rosborough v. Management & Training Corp. , 350 F.3d 459 ( 2003 )

sharon-grandstaff-individually-and-as-representative-of-the-estate-of , 767 F.2d 161 ( 1985 )

gerald-burge-plaintiff-appellee-cross-appellant-v-st-tammany-parish , 336 F.3d 363 ( 2003 )

bradley-guile-individually-and-as-representative-of-the-estate-of-emiko , 422 F.3d 221 ( 2005 )

Alton Montgomery v. O.A. \"Bob\" Brookshire, Sheriff of ... , 34 F.3d 291 ( 1994 )

Virdie L. Smith v. Brookshire Brothers, Inc. , 519 F.2d 93 ( 1975 )

billy-dan-coon-racheal-elizabeth-coon-who-sues-by-her-guardian-and-next , 780 F.2d 1158 ( 1986 )

jill-brown-plaintiff-appellee-cross-appellant-v-bryan-county-ok-bryan , 219 F.3d 450 ( 2000 )

Monell v. New York City Dept. of Social Servs. , 98 S. Ct. 2018 ( 1978 )

Evans v. Newton , 86 S. Ct. 486 ( 1966 )

City of Canton v. Harris , 109 S. Ct. 1197 ( 1989 )

City of Los Angeles v. Heller , 106 S. Ct. 1571 ( 1986 )

View All Authorities »