REVISED
United States Court of Appeals,
Fifth Circuit.
No. 97-40081.
Johnnie Faye SPILLER, Plaintiff-Appellant,
v.
CITY OF TEXAS CITY, POLICE DEPARTMENT; State of Texas; Mark
Spurgeon; City of Texas City, Defendants-Appellees.
Dec. 15, 1997.
Appeal from the United States District Court for the Southern
District of Texas.
Before REYNALDO G. GARZA, KING and BENAVIDES, Circuit Judges.
BENAVIDES, Circuit Judge:
Johnnie Faye Spiller, the plaintiff, brought suit against
defendants Texas City, its police department, and one of its police
officers, Mark Spurgeon, for Spurgeon's alleged violation of her
Fourth Amendment and Texas common law rights.1 The district court
dismissed Spiller's Fourth Amendment claims because they "fail[ed]
to state a claim upon which relief [could] be granted," Fed. R.
Civ. Pro. 12(b)(6), and accordingly declined to exercise
supplemental jurisdiction over her state law claims. Finding
Spiller to have alleged a violation of her Fourth Amendment rights,
we reverse in part, affirm in part, and remand the case for further
proceedings.
I.
1
Although Texas was also a named party, the plaintiff has
voluntarily dismissed her claim against the State.
1
The dismissal of a complaint under Rule 12(b)(6) is reviewed
de novo. House the Homeless, Inc. v. Widnall, 94 F.3d 176, 180
(5th Cir.1996). Viewing the allegations in the light most
favorable to the plaintiff, we will affirm "only if it appears that
no relief could be granted under any set of facts that could be
proven consistent with the allegations." Id. Consequently, we set
forth the facts as they are described in Spiller's complaint.
On July 15, 1994, Spiller, who is black, pulled her car into
a Chevron station in Texas City. She stopped at a pump being used
by Spurgeon, who is white. As she arrived, Spurgeon was finishing
pumping gasoline into his pickup truck. After he finished,
Spurgeon did not move his truck to allow Spiller to use the pump.
Instead, he began talking with a white man on the other side of the
pump. Because Spurgeon was not in uniform, Spiller did not know
that he was a police officer.
After waiting a few moments for Spurgeon to move his truck,
Spiller rolled down her car window and politely asked him to
"please pull up" so she could "get some gas." Spurgeon pretended
not to hear this remark, turned his back on Spiller, and continued
his conversation. Spiller then opened her car door, placed one
foot outside her car, and once again calmly and politely asked
Spurgeon to move his truck so she could get some gas. Although he
acknowledged this request, Spurgeon continued his conversation and
did not move his truck. A few moments later, he acknowledged, but
did not honor, a third polite request by Spiller that he move his
truck.
2
Having grown impatient with Spurgeon's behavior, Spiller next
opened her car door, again placed one foot on the pavement, and
told Spurgeon to "move his damn truck" because "the pumps were not
for socializing, they were for people to buy gas and go on about
their business." After hearing these remarks, Spurgeon confronted
Spiller and asked her to repeat what she had said. She did so and
Spurgeon then moved his truck.
After moving his truck, Spurgeon returned to confront Spiller
as she was seated in her car. This time he told her to get out of
her car. She refused. Spurgeon then told her to get out of the
car because she was under arrest for disorderly conduct. He began
laughing as he showed her his police badge.
After Spiller was arrested, a police officer searched her car
and she was confined in a jail cell that smelled of urine. She was
not prosecuted, however, because the criminal complaint against her
was dismissed.
II.
In support of their motion to dismiss, the defendants argued
that Spiller's allegations demonstrate that her Fourth Amendment
rights were not violated because there was probable cause for her
arrest for disorderly conduct. In addition, Spurgeon asserted that
even if Spiller's allegations stated a claim for the violation of
her constitutional rights under Section 1983, he was entitled to
qualified immunity because he reasonably believed he had probable
cause to arrest her for disorderly conduct. Further, Texas City
and its police department contended that the complaint did not
3
adequately allege that Spurgeon acted in accordance with an
official government policy or custom as is required for them to be
held liable under Section 1983.
Agreeing with the defendants, the district court dismissed
each of Spiller's Section 1983 claims because she failed to state
a claim for the violation of her Fourth Amendment rights by
Spurgeon. Consequently, the district court did not reach the
issues of qualified immunity or municipal liability, and it did not
rule on Spiller's request to amend her pleadings regarding the
liability of the city and the police department. Further, after
dismissing each of Spiller's Section 1983 claims, the district
court declined to exercise supplemental jurisdiction over her state
law claims. See 28 U.S.C. § 1367(c)(3) (allowing a district court
to decline to exercise supplemental jurisdiction when it "has
dismissed all claims over which it has original jurisdiction").
Before us on appeal are Spiller's assertions that she adequately
pleaded the violation of her Fourth Amendment rights by Spurgeon,
that Spurgeon is not entitled to qualified immunity, and that she
is entitled to amend her allegations of municipal liability on
remand if they are insufficient to withstand a motion to dismiss in
their present form.
III.
A. Spiller's Section 1983 Claim Against Spurgeon
Under the Fourth Amendment, an arrest must be based on
probable cause, which exists "when the totality of the facts and
circumstances within a police officer's knowledge at the moment of
4
arrest are sufficient for a reasonable person to conclude that the
suspect had committed or was committing an offense." United States
v. Levine, 80 F.3d 129, 132 (5th Cir.1996). Thus, in order for
Spiller to have pleaded a constitutional arrest for disorderly
conduct, a reasonable person would have to believe that the events
at the Chevron station described in her complaint showed that she
had intentionally or knowingly used profane, obscene, or
threatening language, see Tex. Penal Code. Ann. § 42.01(a)(1);
Ross v. Texas, 802 S.W.2d 308, 314 (Tex.Ct.App.1990) (construing
Texas' disorderly conduct statute to punish only "fighting
words"—"words likely to cause an average addressee to fight"); see
also Vela v. White, 703 F.2d 147, 152 (5th Cir.1983) (same); Texas
v. Rivenburgh, 933 S.W.2d 698, 701 (Tex.Ct.App.1996) (same); Duran
v. Furr's Supermarkets, Inc., 921 S.W.2d 778, 785 (Tex.Ct.App.1996)
(same), that "by its very utterance tends to incite an immediate
breach of the peace," Tex. Penal Code Ann. § 42.01(a)(1).
Although the word "damn" may be profane, the events alleged in
Spiller's complaint did not provide Spurgeon with probable cause to
believe that her reference to his truck was likely to incite an
immediate breach of the peace. To begin with, Spiller's expression
of frustration from inside her automobile was not part of a
confrontational face-to-face exchange. Under these circumstances,
her remark cannot reasonably be interpreted as an invitation to
fisticuffs. See Rivenburgh, 933 S.W.2d at 701 (affirming a lower
court's determination that the exchange of vulgar gestures and
mouthed words between the occupants of two different automobiles
5
did not provide a police officer with probable cause to arrest the
participants for disorderly conduct). Spiller's reference to
Spurgeon's truck, moreover, was unlikely to prompt an aggressive
reaction from anyone, let alone from a police officer who might
"reasonably be expected to exercise a higher degree of restraint
than an average citizen, and thus be less likely to respond
belligerently to fighting words." Lewis v. New Orleans, 415 U.S.
130, 135, 94 S.Ct. 970, 973, 39 L.Ed.2d 214 (1974) (Powell, J.,
concurring). Consistent with this expectation, Spurgeon initially
responded to Spiller's remark by moving his truck as she had
previously requested. Thus, as the sole addressee of Spiller's
remark, Spurgeon's own actions belie his assertion that he had
probable cause to believe that her comments threatened or caused a
breach of the peace. See Furr's Supermarkets, Inc., 921 S.W.2d at
785 (holding that a woman who called a police officer an "idiot"
during a parking dispute at a grocery store could not be arrested
for disorderly conduct). That Spiller's reference to Spurgeon's
"damn truck" was not threatening further undermines his assertion
that her speech threatened to disturb "the tranquility enjoyed by
the citizens of a community." Head v. Texas, 131 Tex.Crim. 96, 96
S.W.2d 981, 982 (Tex.Ct.Crim.App.1936). As it was, the only threat
to the tranquility normally enjoyed by those waiting in line to
purchase gasoline was Spurgeon's repeated refusal to move his
truck. We therefore conclude that Spiller's complaint adequately
alleges that Spurgeon violated her Fourth Amendment rights because
her contentions, if true, demonstrate that her arrest for
6
disorderly conduct was not supported by probable cause.
In the alternative, Spurgeon suggests that we should
nevertheless affirm the district court's dismissal of this Fourth
Amendment claim because he is immune from suit for this allegedly
unconstitutional arrest. Spiller's pleadings, however, do not
provide Spurgeon with a qualified immunity defense.
In order to be immune from Spiller's claim that he violated
her Fourth Amendment rights, Spurgeon must show that a reasonable
police officer could have believed that her arrest, as described in
her complaint, was lawful in light of clearly established law.
See, e.g., Anderson v. Creighton, 483 U.S. 635, 641, 107 S.Ct.
3034, 3039-40, 97 L.Ed.2d 523 (1987). A reasonable officer,
however, could not believe that Spiller's remark, without more,
provided probable cause to arrest her for disorderly conduct. This
is because, as noted above, her remark was not accompanied by any
threat to the public tranquility. Further, the clearly established
law at the time of Spiller's arrest indicates that her remark did
not constitute disorderly conduct under the circumstances allegedly
confronting Spurgeon at the Chevron station. For example, in Vela
v. White, 703 F.2d 147, 150-52 (5th Cir.1983), this Court held that
a Texas police officer lacked probable cause to arrest a woman for
disorderly conduct after she loudly referred to him as a "fool"
because there was "no evidence that [she] uttered any words which
would likely have a direct tendency to incite an ordinary person to
violence." Similarly, in Jimmerson v. Texas, 561 S.W.2d 5, 7
(Tex.Ct.Crim.App.1978) (en banc), the Texas Court of Criminal
7
Appeals held that the mere use of "some profane language," when
unaccompanied by evidence that this language was threatening under
the circumstances, did not provide probable cause for an "arrest
for disorderly conduct." In light of these decisions,2 it would be
unreasonable for a police officer to conclude that Spiller's remark
provided probable cause to arrest her for disorderly conduct.3
B. Spiller's Section 1983 Claims Against Texas City and Its Police
Department
As the above discussion demonstrates, the district court
erroneously predicated its dismissal of Spiller's Section 1983
claims against Texas City and its police department on its finding
that her complaint failed to state a claim for the violation of her
constitutional rights by Spurgeon. We must therefore consider
whether the dismissal of these claims should nonetheless be
affirmed because, as these two defendants argue, her complaint
fails to link Spurgeon's misconduct to a specific government policy
or custom.
2
Spiller also cites Rivenburgh, 933 S.W.2d 698, and Furr's
Supermarkets, Inc., 921 S.W.2d 778, in response to Spurgeon's
assertion that he is entitled to qualified immunity. Had these
cases been decided before the events giving rise to this suit,
Spiller's reliance on these decisions would be well founded.
3
At oral argument, Spurgeon placed great emphasis on this
court's decision in Fields v. City of South Houston, 922 F.2d 1183
(5th Cir.1991). In Fields, we held that when a state chooses to
adopt requirements for an arrest that are more stringent than those
found in the Fourth Amendment, the validity of that arrest, when
challenged in a Section 1983 case, will nevertheless be evaluated
under the applicable Fourth Amendment standards. Because we have
concluded that Spiller has alleged that Spurgeon lacked probable
cause under the Fourth Amendment to arrest her for disorderly
conduct, the decision in Fields is not implicated by Spiller's
pleadings.
8
In order to hold a municipality or a local government unit
liable under Section 1983 for the misconduct of one of its
employees, a plaintiff must initially allege that an official
policy or custom "was a cause in fact of the deprivation of rights
inflicted." Leffall v. Dallas Indep. Sch. Dist., 28 F.3d 521, 525
(5th Cir.1994). To satisfy the cause in fact requirement, a
plaintiff must allege that "the custom or policy served as the
moving force behind the [constitutional] violation" at issue,
Meadowbriar Home For Children, Inc. v. Gunn, 81 F.3d 521, 533 (5th
Cir.1996), or that her injuries resulted from the execution of the
official policy or custom, Fraire v. Arlington, 957 F.2d 1268, 1277
(5th Cir.1992). The description of a policy or custom and its
relationship to the underlying constitutional violation, moreover,
cannot be conclusory; it must contain specific facts. Id. at
1278.
The allegations of municipal liability contained in Spiller's
complaint do not meet these requirements. Her assertion that Texas
City is liable because "Spurgeon was acting in compliance with the
municipality's customs, practices or procedures" is insufficient
because it is conclusory. Equally deficient are her allegations
regarding the liability of the Texas City Police Department. To
begin with, Spiller fails to allege that the three departmental
policies she identifies were causally connected to Spurgeon's
misconduct. Instead, she merely asserts that these three policies
have "led to" unspecified "unconstitutional arrests and
confinements." In addition, the first departmental policy she
9
identifies—"indiscriminately requesting identification of
citizens"—is not implicated by the circumstances of her arrest.
Further, her allegation that the department also "operate[s] in a
manner of total disregard for the rights of African American
citizens" is insufficient because it is conclusory. Finally, her
contention that the department has a third policy of "engag[ing] in
conduct toward African American citizens without regard to probable
cause to arrest" is both vague and conclusory.
Notwithstanding Spiller's contention that she is entitled to
remedy these defects by amending her complaint on remand, an
affirmance of the district court's dismissal of her municipal
liability claims is required. This is because a plaintiff is not
entitled to "an opportunity to satisfy the heightened pleading
requirements" of municipal liability cases when she simply
"declares the adequacy of [her] complaint" in "response to the
motion to dismiss." Jacquez v. Procunier, 801 F.2d 789, 792-93
(5th Cir.1986); see also Babb v. Dorman, 33 F.3d 472, 479 (5th
Cir.1994) (affirming a district court's refusal to grant a
plaintiff leave to amend his complaint because he declared the
sufficiency of his pleadings and did not offer a sufficient amended
complaint in response to the defendant's motion to dismiss). In
this case, Spiller responded to the defendants' motion to dismiss
by asserting that "her pleadings in their present posture"
sufficiently alleged liability on the part of Texas City and its
police department.
Spiller may not avoid the implications of this perfunctory
10
response by noting that she also responded to the motion to dismiss
by requesting leave to amend her complaint within a reasonable
period of time. This request rings hollow in light of her failure
to amend her complaint as a matter of right and her failure to
furnish the district court with a proposed amendment during the two
months following the filing of the motion to dismiss and the order
granting that motion. See Babb, 33 F.3d at 479. Questioning at
oral argument, moreover, revealed that Spiller still cannot
adequately allege a basis for municipal liability and that
"remanding the case to allow another pleading would do nothing but
prolong the inevitable." Jacquez, 801 F.2d at 793.
IV.
For the foregoing reasons, we REVERSE the district court's
holding that Spiller failed to state a claim for the violation of
her Fourth Amendment rights, we AFFIRM the dismissal with prejudice
of her Section 1983 claims against Texas City and its police
department, and we REMAND her constitutional claims for further
proceedings not inconsistent with this opinion.
11