Drake v. City of Haltom City, 106 F. App'x 897

Drake v. City of Haltom City

106 F. App'x 897

5th Cir.

2004

Check Treatment

Docket

Lakenya S DRAKE, Plaintiff-Appellant v. CITY OF HALTOM CITY; et al., Defendants, City of Haltom City, Defendant-Appellee. Jane Doe 2, Plaintiff-Appellant, v. City of Haltom City; et al, Defendants, City of Haltom City, Defendant-Appellee. Atara Marie Hubbard, Plaintiff-Appellant, v. City of Haltom City; et al, Defendants, City of Haltom City, Defendant-Appellee. Patricia Lynn Sanders, Plaintiff-Appellant, v. City of Haltom City, et al, Defendants, City of Haltom City, Defendant-Appellee. Jane Doe # 7, Plaintiff-Appellant, v. City of Haltom City, et al, Defendants, City of Haltom City, Defendant-Appellee.

Nos. 03-10594, 03-10632, 03-10595, 03-10636, 03-10598

United States Court of Appeals, Fifth Circuit

Aug. 10, 2004

106 Fed. Appx. 897

Before KING, Chief Judge, and DeMOSS and STEWART, Circuit Judges.

states that no implied promises were made in that agreement. The only explicit limitation imposed upon the use of Aguilera‘s cooperation statements was the Government‘s promise not to prosecute her based upon those statements. The plea agreement contains neither an explicit nor an implicit promise not to use the cooperation statements to determine Aguilera‘s sentence. Consequently, the use of these statements is arguably permitted by § 1B1.8, and even if consideration of these statements was an error it does not rise to the level of plain error because the error is not clear or obvious. See Olano, 507 U.S. at 732-34, 113 S.Ct. 1770.

Even if the district court‘s consideration of Aguilera‘s cooperation statements when it determined her sentence is a violation of § 1B1.8 that constitutes plain error, we still decline to exercise our discretion to correct this forfeited error because it does not seriously affects the fairness, integrity, or public reputation of the judicial proceeding. United States v. Olano, 507 U.S. 725, 735-36, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). The district court only considered Aguilera‘s cooperation statements when evaluating her claim that she was a minor participant in this criminal enterprise. Aguilera is attempting to secure a § 3B1.2 minor role reduction while using § 1B1.8 to prevent the district court from considering information relevant to that determination. Although § 1B1.8 seems to protect statements made by the defendant to the government and the probation officer, it clearly does not condone the presentation of half truths to the district court. Moreover, Aguilera‘s cooperation statements were only part of the evidence considered when determining whether Aguilera had a minor role. The other evidence, including the fact that the vehicle containing the electronically sealed compartment used to transport the drugs was registered to Aguilera, indicates that Aguilera did not have a minor role. Therefore, the fact that Aguilera‘s cooperation statements were part of the evidence before the district court when it made its § 3B1.2 minor role determination does not affect the fairness or integrity of that determination.

The plea agreement in this case is reasonably understood to permit the use of Aguilera‘s self-incriminating statements to determine her sentence guideline range, and the use of those statements was not a breach of the plea agreement. The use of Aguilera‘s cooperation statements did not violate § 1B1.8 because the terms of the plea agreement do not prohibit the use of those statements in sentencing. Moreover, even if the use of Aguilera‘s cooperation statements was a plain error violation of § 1B1.8, we decline to exercise our discretion to correct the forfeited error because it did not affect the fairness and integrity of the sentencing determination. For the above reasons we AFFIRM the sentence imposed by the district court.

Christopher Lee Barnes, Jack B. Krona, Pezzulli Kinser, Dallas, TX, for Plaintiff-Appellant.

James Thomas Jeffrey, Jr., Law Offices of Jim Jeffrey, Arlington, TX, for Defendant-Appellee.

PER CURIAM: ^*

LaKenya Drake, Jane Doe No. 2, Atara Hubbard, Patricia Sanders, and Jane Doe No. 7 (collectively, “Appellants“) appeal the district court‘s orders dismissing their 42 U.S.C. § 1983 claims against the City of Haltom City and the district court‘s orders denying their motions for leave to file amended complaints. Their existing complaints allege that the City‘s failure to institute adequate training and/or supervision of its jailers caused one of the jailers to sexually assault them while they were in the City jail.¹

We review de novo dismissals under Rule 12(b)(6). Beanal v. Freeport-McMoRan, Inc., 197 F.3d 161, 164 (5th Cir.1999). We note that motions to dismiss are disfavored and are rarely granted. Id. Dismissal should not be granted “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.” Id. (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)).

The City argues that the district court correctly dismissed Appellants’ claims under Rule 12(b)(6) because Appellants failed to allege a “non-conclusory” ground for holding the City liable for their injuries. First, we disagree that Appellants’ allegations are “conclusory“; their complaints meet Rule 8‘s requirement of a “short and plain statement of the claim” and the complaints gave the City fair notice of the Appellants’ claims and the grounds upon which their claims rest. FED.R.CIV.P. 8(a); see also Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 168, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993) (quoting Conley, 355 U.S. at 47, 78 S.Ct. 99). Second, although the City is correct that a municipality cannot be held liable under § 1983 on a theory of respondeat superior, Monell v. Dep‘t of Soc. Servs., 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), both the Supreme Court and this court have recognized that a municipality is subject to § 1983 liability when the municipality‘s policies regarding employee training and/or supervision were obviously inadequate, and the resulting lack of training and/or supervision was likely to (and actually did) lead to a constitutional violation. E.g., City of Canton v. Harris, 489 U.S. 378, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989); Brown v. Bryan County, 219 F.3d 450 (5th Cir.2000).²

The City cites Barney v. Pulsipher, 143 F.3d 1299 (10th Cir.1998), for the proposition that sexual assault of detainees is not an obvious consequence of a City‘s failure to train or to supervise its jailers. Barney, however, was decided on a motion for summary judgment, not a motion to dismiss, and the summary-judgment record in Barney showed that the jailer who committed the assaults had received instruction on “offenders’ rights, staff/inmate relations, sexual harassment, and cross-gender search and supervision.” Id. at 1308. We are unwilling to say, at this point, that it is not obvious that male jailers who receive no training and who are left virtually unsupervised might abuse female detainees. Thus, we hold that Appellants have stated cognizable claims against the City under § 1983.³

We conclude, however, that the district court did not abuse its discretion by denying Appellants’ motions for leave to file amended complaints. The district court has already permitted Appellants to file amended complaints, and most were permitted to file three amended complaints. Furthermore, Appellants did not seek leave to file their amended complaints in a timely manner. See Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962); see also McLean v. Int‘l Harvester Co., 817 F.2d 1214, 1224 (5th Cir. 1987).

Accordingly, we REVERSE the district court‘s orders dismissing Appellants’ § 1983 claims against the City for failing to train or to supervise its jailers, AFFIRM the district court‘s orders denying Appellants’ motions for leave to amend, and REMAND each of these cases for proceedings consistent with this opinion.

Notes

Appellants’ complaints contained a number of other allegations against the City. Appellants have not appealed the district court‘s decisions to dismiss these claims, however.

We agree with the City that Appellants’ other theories of municipal liability are inadequate. The City cannot be liable for its single decision not to train or to supervise the jailer who perpetrated the sexual assault because Appellants did not allege that there was anything special about that jailer that should have put the City on notice of a particular need to train or to supervise him. Cf. . Furthermore, a theory of “ratification” is inapplicable on the facts of this case. Cf. (plurality opinion).

We express no opinion regarding who the City‘s final policymakers are. The district court should decide this question in the first instance.

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.