Von Eschen v. City of Webster ( 2000 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-20059
Summary Calendar
KEVIN VON ESCHEN,
Plaintiff-Appellant,
versus
LEAGUE CITY TEXAS; CITY OF WEBSTER,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-99-CV-2133
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September 8, 2000
Before DAVIS, JONES and DeMOSS, Circuit Judges.
PER CURIAM:*
Kevin Von Eschen (Von Eschen) appeals the dismissal of his
42 U.S.C. § 1983 claim against the City of Webster and the City
of League City (defendants) pursuant to Fed. R. Civ. P. 12(b)(6).
Von Eschen alleged that officers employed by the defendants used
excessive force in arresting him. He additionally asserted that
the use of excessive force was a customary practice by officers
employed by defendants.
Von Eschen correctly argues that the district court erred in
refusing to consider the allegations in his amended complaint. "A
*
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that this opinion should not be published and is not precedent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. 00-20059
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party may amend the party's pleading once as a matter of course
at any time before a responsive pleading is served . . . ." Fed.
R. Civ. P. 15(a). The district court refused to consider Von
Eschen's amended complaint because defendants had filed their
motions to dismiss, which the court characterized as responsive
pleadings, and Von Eschen had not obtained permission from the
court to file his amended complaint as required by Fed. R. Civ.
P. 15(a). A motion to dismiss, however, is not a responsive
pleading that "extinguishes a plaintiff's right to amend a
complaint." Zaidi v. Ehrlich, 732 F.2d 1218, 1219-20 (5th Cir.
1984). Accordingly, because Von Eschen could exercise his right
to amend automatically, the district court should have considered
his amended complaint when reviewing defendants' motions to
dismiss. See id. at 1220.
We need not remand this case to the district court, however,
because, even considering the allegations of the amended
complaint, Von Eschen failed to establish that his alleged
deprivation of rights was caused by a custom or policy of the
defendants.
"To establish county/municipality liability under § 1983
. . . a plaintiff must demonstrate a policy or custom which
caused the constitutional deprivation." Colle v. Brazos County,
Tex., 981 F.2d 237, 244 (5th Cir. 1993); Monell v. Department of
Soc. Servs. of the City of New York, 436 U.S. 658, 690 (1978).
A policy may be "a persistent, widespread practice of city
officials or employees that, although not authorized by
officially adopted policy, is so common and well settled as to
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constitute a custom that fairly represents official municipal
policy." McConney v. City of Houston, 863 F.2d 1180, 1184 (5th
Cir. 1989). However, isolated instances of police misconduct are
inadequate to prove knowledge and acquiescence by policy makers.
Id. at 1184. Moreover, the allegations of a policy or custom and
its relationship to the constitutional violation cannot be
conclusory but must contain specific facts. Spiller v. City of
Texas City, 130 F.3d 162, 167 (5th Cir. 1997).
Von Eschen argued that defendants had a custom or practice
of condoning the use of excessive force. He maintains that
because defendants failed to address the officers' use of
excessive force, such excessive force became the unwritten policy
of defendants. Von Eschen's conclusional allegations of “policy"
were not sufficient to establish county/municipality liability
under § 1983. Spiller, 130 F.3d at 167. Accordingly, the
district court did not err in dismissing his § 1983 action for
failure to state a claim under Rule 12(b)(6).
Von Eschen's amended complaint also alleged a violation of
42 U.S.C. § 1986. Liability under § 1986 requires a finding of a
§ 1985 violation. 42 U.S.C. § 1986. Von Eschen did not allege
sufficient information to establish a claim under § 1985. Bryan
v. City of Madison, 213 F.3d 267, 276 (5th Cir. 2000).
Accordingly, the failure of the district court to address this
claim was harmless error.
Finally, we find no error in the district court's dismissal
of Von Eschen's state law claim of false arrest based upon the
immunity given defendants by the Texas Tort Claims Act. The
No. 00-20059
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district court correctly concluded that defendants are immune
from Von Eschen's claim of false arrest. See City of San Antonio
v. Dunn, 796 S.W.2d 258, 261 (Tex. Ct. App. 1990) (municipality
immune from claim arising out of intentional tort of false
arrest).
AFFIRMED.