Babb v. Dorman

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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NO. 92-1984
________________________

WILLIAM BABB,

Plaintiff-Appellant,

versus

DAVID ANTHONY DORMAN, and CITY OF RICHARDSON, TEXAS,

Defendants-Appellees.

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Appeal from the United States District Court
for the Northern District of Texas
________________________

(September 19, 1994)

Before HENDERSON*, SMITH, and EMILIO M. GARZA, Circuit Judges.

HENDERSON, Circuit Judge:

----------------------------------------

* Circuit Judge of the Eleventh Circuit, sitting by designation.
 William Babb appeals from the final judgment entered in the

United States District Court for the Northern District of Texas

dismissing his 42 U.S.C. § 1983 complaint against David Anthony

Dorman and the City of Richardson, Texas. For the reasons stated

below, we affirm.

I. BACKGROUND

This case arose out of the circumstances surrounding Babb's

arrest and prosecution for public intoxication, in violation of

Tex. Penal Code Ann. § 42.08. According to the facts alleged in

his amended complaint,1 Babb and an intoxicated female passenger

were traveling eastbound on East Arapaho Road in the City of

Richardson, Texas (the "City") during the early morning hours of

May 27, 1990 when the passenger became ill. Feeling that she might

vomit at any moment, she suddenly thrust open the door on her side

of the moving vehicle. After checking the view from behind and

without violating any traffic laws, Babb pulled the automobile to

the side of the road to assist her. Shortly thereafter, Dorman, an

officer with the City police department, pulled up from behind in

his squad car. He checked Babb's driver's license and questioned

him about his prior activities that night, including his alcohol

consumption. Babb explained that earlier he had been out playing

darts and was forced to pull over when his passenger became ill.

He also informed Dorman that he had consumed approximately five

1
Babb filed his original petition on May 30, 1991. On June
11, 1991, he filed an amended complaint pursuant to Fed.R.Civ.P.
15(a), which permits a party to amend a pleading once, as a matter
of course, at any time before service of a responsive pleading.

2
beers over the course of several hours, but stated that he was not

intoxicated and felt fine. Dorman then requested Babb to step out

of the automobile to perform several field sobriety tests. When

Babb told Dorman that he was unable to effectuate three of the four

tests because of back and knee injuries, Dorman placed him under

arrest for driving while intoxicated ("DWI").

Babb was then transported to the City jail where he was

videotaped performing various tests and answering questions. In

addition, he was administered a Breathalyzer test, which registered

a blood alcohol content of 0.08, a level below that required under

Texas law for presumptive intoxication.2 At that point, Dorman

changed the charge from DWI to public intoxication.3 Babb alleged

that Dorman did so pursuant to an unconstitutional policy

promulgated by the City whereby persons arrested for DWI are

instead charged with public intoxication, without regard to

probable cause, whenever a Breathalyzer test reveals a blood

alcohol content of less than 0.10. He contended further that, in

accordance with another City policy, Dorman caused the destruction

2
The term "intoxicated" is defined by Texas law as "(A) not
having the normal use of mental or physical faculties by reason of
the introduction of alcohol, a controlled substance, a drug, or a
combination of two or more of those substances into the body; or
(B) having an alcohol concentration of 0.10 or more."
Tex.Rev.Civ.Stat.Ann. § 67011-1(a)(2)(A), (B). To be convicted of
the offense of driving while intoxicated, a person must be impaired
by drugs or alcohol to the degree required by § 67011-1(a)(2)(A),
(B), while driving or operating a motor vehicle in a public place.
Id. §67011-1(b).
3
An individual commits the offense of public intoxication if
he "appears in a public place under the influence of alcohol or any
other substance, to the degree that [he] may endanger himself or
another." Tex. Penal Code Ann. § 42.08(a).

3
of the videotaped interview, which would have established that he

was not a danger to himself or others. On January 3, 1991, Babb

went to trial for and was acquitted of the charge of public

intoxication.

Babb subsequently filed this lawsuit urging that Dorman and

the City, acting separately and in concert, willfully, knowingly

and purposely deprived him of his constitutional rights of access

to favorable evidence and to be free from arrest, detention and

malicious prosecution without probable cause, as guaranteed by the

Fourth, Fifth, Sixth and Fourteenth Amendments. In addition to

these federal causes of action he alleged state common law claims

for false arrest, false imprisonment and malicious prosecution.

Aside from the accusation about the destruction of the

videotape, Babb advanced in his amended complaint certain legal

conclusions in an effort to lend credence to his argument

concerning the absence of the elements necessary to sustain the

charge of public intoxication. In particular, he claimed that (1)

the City jail was not a "public place" as specified in the public

intoxication statute4 and (2) the crime of public intoxication

requires a greater degree of intoxication to authorize a conviction

than that necessary for a charge of DWI. Babb reasoned that the

fact that Dorman chose not to charge him with DWI confirmed that

4
"Public place" is defined as "any place to which the public
or a substantial group of the public has access and includes, but
is not limited to, streets, highways, and the common areas of
schools, hospitals, apartment houses, office buildings, transport
facilities, and shops." Tex. Penal Code Ann. § 1.07(a)(29).

4
his conduct did not rise to the necessary level of danger

proscribed by the statute.

Along with their answers to the complaint, the defendants

filed a joint motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6),

asserting that the allegations made therein were insufficient to

meet the "heightened" pleading requirement necessary to overcome a

defense of qualified immunity available to Dorman.5 In addition,

they maintained that the statements charging a conspiracy between

Dorman and the City were conclusory and therefore failed to state

a claim for relief.

Babb responded to the motion to dismiss, reiterating the

factual allegations of his complaint and arguing once again that

Dorman's failure to pursue the charge of DWI proved that he was

possessed of the normal use of his mental and physical faculties

within the meaning of the DWI statute. He extrapolated that,

given the retention of these capacities, he could not possibly have

been such a danger to himself or others as required by Texas law to

support his arrest for public intoxication. He repeated that the

City jail where he was charged with the offense was not a "public

place" within the meaning of the public intoxication statute and

5
The qualified immunity defense is available to individual
municipal officials, but not to municipalities. See Leatherman v.
Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S.
, , 113 S.Ct. 1160, , 122 L.Ed.2d 517, 523 (1993). To
survive a motion to dismiss in cases where the qualified immunity
defense is raised, a plaintiff must state facts, which if proven,
would defeat the defense. See Jacquez v. Procunier, 801 F.2d 789
(5th Cir. 1986); Elliott v. Perez, 751 F.2d 1472 (5th Cir. 1985);
see also Schultea v. Wood, No. 93-2186, 1994 WL 384497, slip op.
5636, 5639 n.2 (5th Cir. Aug. 9, 1994).

5
that these factors, considered together, established the lack of

probable cause for the charge. With respect to the heightened

pleading standard, he alleged

that Defendant DORMAN knew or should have
known that the legal standards for the offense
of Public Intoxication are greater than that
for DWI. Clearly, the complaint demonstrates
that Defendant Dorman knew or should have
known that if Plaintiff could not be arrested
for the offense of DWI, no probable cause
would exist to arrest Plaintiff for the
offense of Public Intoxication. . . . Further,
the Plaintiff contends that the jail is not a
public place as defined by Texas law.
Further, Plaintiff's Complaint clearly
contends that the arrest for Public
Intoxication was accomplished without probable
cause.

(R1-49).

The district court granted the defendants' motion and

dismissed the claims for damages against Dorman as well as the

conspiracy count against the City. Babb then sought leave to amend

the complaint and submitted a proposed second amended complaint,

which was substantively identical to the amended complaint under

scrutiny here, except for an added allegation that Dorman's actions

violated clearly established law. (See R1-74, ¶ 19). The district

court denied leave to amend, granted the City's motion for summary

judgment on the charges respecting its alleged illegal policies and

entered final judgment in favor of the defendants.6

6
The district court did not specifically address Babb's
pendant state law claims in any of its orders. Nevertheless, they
were implicitly denied with the entry of final judgment. Babb did
not brief the dismissal of these claims on appeal, nor did he refer
to them at oral argument. We therefore treat them as abandoned.
See Price v. Digital Equip. Corp., 846 F.2d 1026, 1028 (5th Cir.
1988). Babb also appears to have ceded on appeal his charge

6
 II. DISCUSSION

On appeal, Babb urges again that there was no probable cause

to charge him with public intoxication and that his pleadings were

sufficient to defeat Dorman's qualified immunity defense. He also

claims that the district court abused its discretion by denying him

leave to file the second amended complaint. He further challenges

the dismissal of the conspiracy count, as well as the grant of

summary judgment to the City.

Our review of the record reveals that summary judgment in

favor of the City was plainly warranted and does not merit further

discussion. Although the City concedes on appeal that the district

court's reasoning behind its dismissal of the conspiracy count was

faulty, with which we agree,7 we nevertheless affirm for the reason

that Babb's allegations regarding the conspiracy are conclusory at

most. See Lynch v. Cannatella, 810 F.2d 1363, 1369-70 (5th Cir.

1987) (bald allegations of conspiracy are insufficient to state a

against Dorman with respect to the destruction of the videotape.
His argument in this regard is confined to the grant of summary
judgment to the City. In any event, were we to consider the merits
of the dismissal of this contention, we would affirm for failure to
state a claim for relief under Arizona v. Youngblood, 488 U.S. 51,
58, 109 S.Ct. 333, 337, 102 L.Ed.2d 281, 289 (1988) (only the bad
faith destruction of potentially useful evidence may constitute a
denial of due process).
7
The district court dismissed this count on the ground that
the City could not conspire with a person who was immune from
liability. However, the Supreme Court has upheld municipal
liability for § 1983 violations notwithstanding the qualified
immunity of the individual municipal defendants. See Brummett v.
Camble, 946 F.2d 1178, 1182 (5th Cir. 1991) (citing Owen v. City of
Independence, 445 U.S. 622, 638, 100 S.Ct. 1398, 1409, 63 L.Ed.2d
673, 685-86 (1980)), cert. denied, U.S. , 112 S.Ct. 2323,
119 L.Ed.2d 241 (1992).

7
§ 1983 claim); Coral Petroleum, Inc. v. Banque Paribas-London, 797

F.2d 1351, 1355 n.3 (5th Cir. 1986) (district court's judgment may

be affirmed on any appropriate ground). We address Babb's

remaining contentions in turn.

A. Probable cause and sufficiency of the complaint

In Elliott v. Perez, 751 F.2d 1472 (5th Cir. 1985), this court

announced a heightened pleading standard which must be satisfied

whenever there is alleged a defense of qualified immunity. In such

cases, the complaint must "state with factual detail and

particularity the basis for the claim which necessarily includes

why the defendant-official cannot successfully maintain the defense

of immunity." Id. at 1473. Before us, Babb takes the position

that Elliott is no longer valid authority after Leatherman v.

Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S.

, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993), in which the Supreme

Court struck down the heightened pleading requirement in § 1983

actions against municipalities. See id. at , 113 S.Ct. at ,

122 L.Ed.2d at 524. In so doing, however, the Court cautioned that

"municipalities do not enjoy immunity from suit - either absolute

or qualified - under § 1983." Id. at , 113 S.Ct. at , 122

L.Ed.2d at 523. The Court, thus, had "no occasion to consider

whether . . . qualified immunity jurisprudence would require a

heightened pleading in cases involving individual government

officials." Id. Given this express reservation of the issue, we

decline to read into Leatherman any change in the law respecting

actions against individual municipal defendants and conclude that

8
we are still bound by Elliott and its progeny in determining

whether Babb stated a claim against Dorman.

"Qualified" or "good faith" immunity shields government

officials performing discretionary functions from liability "unless

their conduct violates 'clearly established statutory or

constitutional rights of which a reasonable person would have

known.'" Jacquez v. Procunier, 801 F.2d 789, 791 (5th Cir. 1986)

(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727,

2738, 73 L.Ed.2d 396, 410 (1982)); see also Streetman v. Jordan,

918 F.2d 555, 556 (5th Cir. 1990); Saldana v. Garza, 684 F.2d 1159,

1162-65 (5th Cir. 1982), cert. denied, 460 U.S. 1012, 103 S.Ct.

1253, 75 L.Ed.2d 481 (1983). The protection afforded by the

defense is an "immunity from suit, not simply immunity from

liability." Geter v. Fortenberry, 849 F.2d 1550, 1552 (5th Cir.

1988). Consequently, we have long held that "questions regarding

qualified immunity are resolved on the face of the pleadings and

with limited resort to pre-trial discovery." James v. Sadler, 909

F.2d 834, 838 (5th Cir. 1990); see also Hunter v. Bryant, 502 U.S.

, , 112 S.Ct. 534, 536, 116 L.Ed.2d 589, 595 (1991)

(stressing the importance of resolving the immunity issue at the

earliest possible stage of the litigation since it entails an

entitlement to immunity from suit and not merely a defense to

liability).

In suits alleging illegal arrest, the qualified immunity

determination turns on whether "'a reasonable officer could have

believed [the arrest] to be lawful, in light of clearly established

9
law and the information the . . . officer[ ] possessed.' Even law

enforcement officials who 'reasonably but mistakenly conclude that

probable cause is present' are entitled to immunity." Hunter, 502

U.S. at , 112 S.Ct. at 536, 116 L.Ed.2d at 595 (quoting Anderson

v. Creighton, 483 U.S. 635, 641, 107 S.Ct. 3034, 3039-40, 97

L.Ed.2d 523, 531-32 (1987)); see also Gorra v. Hanson, 880 F.2d 95,

97 (8th Cir. 1989) ("the issue is 'not probable cause in fact but

"arguable" probable cause.'") (quoting Floyd v. Farrell, 765 F.2d

1, 5 (1st Cir. 1985)); Saldana, 684 F.2d at 1164 (police officer

may be immune from liability under § 1983 even if it is later

determined that probable cause for an arrest did not exist). The

qualified immunity defense protects "all but the plainly

incompetent or those who knowingly violate the law." Malley v.

Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 1096, 89 L.Ed.2d 271,

278 (1986). Thus, a qualified immunity defense cannot succeed

where it is obvious that a reasonably competent officer would find

no probable cause. Id. On the other hand, "if officers of

reasonable competence could disagree on this issue, immunity should

be recognized." Id. Keeping in mind Elliott's heightened pleading

requirement, therefore, we must look to whether Babb has alleged

sufficient facts from which it can be discerned that no reasonable

officer could have believed that probable cause existed to arrest

him for public intoxication.8 Our review of this question is de

8
This determination is an objective one. See Harlow, 457 U.S.
at 815-19, 102 S.Ct. at 2736-39, 73 L.Ed.2d at 408-11. That is,
where an officer's conduct violates clearly established law, his
immunity defense must ordinarily fail despite his good faith belief
to the contrary because "a reasonably competent public official

10
novo. Elder v. Holloway, 510 U.S. , , 114 S.Ct. 1019, 1023,

127 L.Ed.2d 344, 351 (1994).

Babb's contention that Dorman knew or should have known there

was no probable cause to change the charge to one for public

intoxication turns in large measure upon his assertion that, as a

matter of law, the Texas public intoxication statute requires a

degree of intoxication greater than that necessary to sustain a

conviction for DWI. He claims this is so because the Texas

legislature specifically provided that public intoxication is not

a lesser included offense of DWI, see Tex. Penal Code Ann.

§ 42.08(g), and because Texas caselaw uniformly recognizes that a

high degree of impairment must be present to justify an arrest for

public intoxication.

We have observed on more than one occasion that, "'in holding

our law enforcement personnel to an objective standard of behavior,

our judgment must be tempered with reason.'" Gassner v. City of

should know the law governing his conduct." Id. at 819, 102 S.Ct.
at 2738, 73 L.Ed.2d at 411. By the same token, Babb's conclusory
allegation that Dorman purposefully deprived him of his
constitutional rights is insufficient to subject Dorman "either to
the costs of trial or to the burdens of broad-reaching discovery."
Id. at 817-18, 102 S.Ct. at 2738, 73 L.Ed.2d at 410; see also
Malley, 475 U.S. at 341, 106 S.Ct. at 1096, 89 L.Ed.2d at 278 (an
allegation of malice is insufficient to defeat qualified immunity
if the defendant acted in an objectively reasonable manner);
Jureczki v. City of Seabrook, Tex., 760 F.2d 666, 669 (5th Cir.
1985) (an officer's bad faith in obtaining or executing an arrest
warrant does not give rise to a § 1983 action where probable cause
exists; likewise, an officer's good intent is irrelevant when he
contravenes settled law), cert. denied, 475 U.S. 1045, 106 S.Ct.
1261, 89 L.Ed.2d 571 (1986). Babb's allegation that his arrest was
motivated by a City policy is irrelevant, therefore, to the
qualified immunity issue.

11
Garland, Tex., 864 F.2d 394, 397 (5th Cir. 1989) (quoting Saldana,

684 F.2d at 1165).

An officer on the beat is not expected to have
and apply the knowledge of a constitutional
scholar, whose stock in trade is giving
concrete application to lofty, abstract legal
principles. . . . Rather, we ask only that he
act in accordance with what a reasonable
officer "should or should not know about the
law he is enforcing."

Id. (quoting Saldana, 684 F.2d at 1165).

While it is true that public intoxication may not be a lesser

included offense of DWI, this fact alone does not preclude a police

officer from charging an individual with public intoxication rather

than DWI when, in the exercise of his discretion, the circumstances

warrant an arrest for that offense. Furthermore, after conducting

an exhaustive review of the Texas cases dealing with public

intoxication, we can confidently state that it is not clearly

established that the offense of public intoxication requires, in

all instances, a degree of intoxication greater than that for DWI.9

9
None of the cases cited by Babb address the degree of
inebriation necessary under Texas law to support the crime of
public intoxication as opposed to DWI; nor did we discover any such
cases through our independent research. The cases construing the
existence of probable cause for a public intoxication arrest focus
on whether the defendant was "in a position to be a danger to
himself or another - walking down the middle of the street, in a
car, attempting to purchase tire chains for a car - or was in such
an extreme state of intoxication that the suspect was incoherent
and/or staggering and swaying." See Berg v. State, 720 S.W.2d 199,
201 (Tex.App.-Houston [14th Dist.] 1986, writ ref'd) (and the cases
cited therein). It follows that the degree of intoxication
required to sustain such a charge will vary with the complexity of
the task being performed by the individual and the attendant
surroundings.

12
 We further hold that, in light of the facts alleged and the

established law, a reasonable officer could have believed that he

was justified in holding the appellant for public intoxication.10

According to the amended complaint, Dorman knew that Babb was

operating an automobile after having consumed five beers, which

resulted in a blood alcohol content of 0.08. He also knew that

Babb had entrusted to his care, an extremely intoxicated passenger

who required sudden assistance at a time when Babb was traveling on

a public road.11 Even treating as true Babb's contentions that he

did not feel intoxicated or violate any traffic laws, as we must on

a motion to dismiss, a blood alcohol level of 0.08 indicates some

intoxication and impairment. We cannot say, under these

circumstances, that an officer could not have reasonably believed

that Babb was a danger to himself or others within the meaning of

Tex. Penal Code Ann. § 42.08(a). To defeat the motion to dismiss,

Babb was required to allege facts showing not only that this charge

was illegal, but that it "was so illegal as to violate clearly

established law." Saldana, 684 F.2d at 1165. This, he failed to

do.

The fact that Babb was later acquitted of the offense is of no

consequence. For purposes of probable cause, "[t]he determination

as to the possible danger element is reviewed not under the

10
We need not and do not decide whether probable cause actually
existed.
11
Babb's claim that the City jail was not a "public place" is
spurious. Although Babb may not have been a danger to himself or
others while at the jail, the arrest in this case was based upon
his conduct while on a public street.

13
standard used in a judicial determination of guilt," Berg v. State,

720 S.W.2d 199, 201 (Tex.App.-Houston [14th Dist.] 1986, writ

ref'd), but rather by "whether at that moment the facts and

circumstances within [Dorman's] knowledge and of which [he] had

reasonably trustworthy information were sufficient to warrant a

prudent man in believing that [Babb] had committed or was

committing an offense[,]" Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct.

223, 225, 13 L.Ed.2d 142, 145 (1964). We therefore affirm the

district court's finding that his amended complaint failed to

allege facts sufficient to overcome Dorman's qualified immunity

defense.12

B. Denial of leave to amend

Babb also contends that the district court abused its

discretion by denying him leave to amend his complaint a second

time after dismissing the claims against Dorman for failure to

satisfy the heightened pleading requirement. Ordinarily, a

district court should provide a plaintiff with the opportunity to

cure such a defect. Procunier, 801 F.2d at 792. Here, however,

12
We could also affirm the dismissal of the complaint on the
alternative ground that Babb failed to contest his initial arrest
for DWI. The constitution is not offended by the absence of
probable cause for an arrest where probable cause exists for a
crime other than the one charged "provided that the 'crime under
which the arrest is made and [the] crime for which probable cause
exists are in some fashion related.'". Gassner, 864 F.2d at 398
(internal quotation marks and citations omitted). The offenses of
DWI and public intoxication are sufficiently related within the
meaning of this rule. Trejo v. Perez, 693 F.2d 482, 486 (5th Cir.
1982); see also, United States v. Hathorn, 451 F.2d 1337, 1341 (5th
Cir. 1971) (per curiam opinion on petition for rehearing)
(upholding the legality of an arrest for DWI on the ground that the
defendant could have been arrested for public drunkenness).

14
Babb filed a detailed response to the motion to dismiss in which he

urged that his amended complaint was sufficient. Moreover, his

proposed second amended complaint added nothing to aid in the

determination of the qualified immunity issue except for the legal

conclusion that Dorman's actions violated clearly established law.

However, "[t]o state a claim, a pleader must allege facts, not

legal conclusions." Hanson v. Town of Flower Mound, 679 F.2d 497,

504 (5th Cir. 1982). On this record we find no error in denying

the amendment. Another pleading "would do nothing but prolong the

inevitable, and would only subject the defendants to exactly those

hardships the [qualified] immunity doctrine is supposed to

relieve." Procunier, 801 F.2d at 793.

III. CONCLUSION

Having carefully considered the facts as alleged and the

relevant law pertaining thereto, we agree with the district court

that the appellant has failed to rebut Dorman's asserted good faith

immunity defense. The district court's judgment is therefore

AFFIRMED.

15