Doe AW v. Burleson County, TX ( 2023 )

Case: 22-50918 Document: 00516962421 Page: 1 Date Filed: 11/09/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
November 9, 2023
No. 22-50918 Lyle W. Cayce
____________ Clerk
Jane Doe AW,
Plaintiff—Appellant,
versus
Burleson County, Texas,
Defendant—Appellee,
______________________________
Jane AW Doe,
Plaintiff—Appellant,
versus
Burleson County, Texas,
Defendant—Appellee.
______________________________
Appeal from the United States District Court
for the Western District of Texas
USDC Nos. 1:20-CV-126, 1:20-CV-14
______________________________
Before Southwick, Engelhardt, and Wilson, Circuit Judges.
Kurt D. Engelhardt, Circuit Judge:
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This case turns on whether a county official, alleged to have sexually
assaulted a county employee, possessed final policymaking authority
sufficient to hold the county liable under 42 U.S.C. § 1983. Because the
Court holds that the official here lacked final policymaking authority over the
specific area implicated by the employee’s allegations, we AFFIRM the
judgment of the district court dismissing the Section 1983 claim against the
county.
I. Factual and Procedural Background
Plaintiff Jane Doe AW, a former criminal clerk in the Burleson County
Attorney’s Office, alleged that Burleson County Judge Mike Sutherland used
his power and authority as a county judge to sexually assault her on several
occasions. Doe claimed that Sutherland sexually assaulted her once in his
restaurant, Funky Junky, LLC (“Funky Junky”), and twice in his office.
According to Doe, when she complained to Sutherland about the abuse, she
was terminated from her job. Sutherland later resigned from his position as
County Judge pursuant to a voluntary agreement before the State
Commission on Judicial Conduct.
After consolidation, transferred venue, and an amended complaint,
Doe ultimately asserted claims under 42 U.S.C. § 1983 and for sexual assault,
vicarious liability, and intentional infliction of emotional distress against
three defendants: Funky Junky, Sutherland, and Burleson County (the
municipality). On report and recommendation of the Magistrate Judge, the
district court dismissed the vicarious liability claims against Funky Junky
with prejudice under Federal Rule of Civil Procedure 12(b)(6). The district
court denied the other defendants’ initial dispositive motions.
On November 6, 2020, Burleson County moved for summary
judgment on Doe’s Section 1983 claim against it. The district court initially
adopted the Magistrate Judge’s recommendation that Burleson County’s
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motion for summary judgment be denied. In the interim, the parties
consented to the referral of their case to the Magistrate Judge for trial
purposes. On December 10, 2020, Doe settled with Sutherland, and the
district court dismissed her claims against him, as well as the remaining
claims against Funky Junky, with prejudice. As a result, Burleson County
filed a motion for reconsideration concerning the denied motion for summary
judgment, which the Magistrate Judge granted based on Doe’s recent
settlement with Sutherland. The Magistrate Judge entered final judgment,
dismissing with prejudice Doe’s claims against Burleson County.
The very next day, the Magistrate Judge set aside that final judgment.
The Magistrate Judge then issued a new order denying Burleson County’s
motion for summary judgment and setting the case for trial. The first jury
trial resulted in a mistrial, after the removal of two jurors from the panel based
on conversations those jurors had with Doe. At the pretrial conference for
the second jury trial, Doe claims that the Magistrate Judge denied Doe’s
challenge of a juror for cause, stating “I am inclined only to grant a strike for
cause if both sides agree to it.” 1
Before the second trial date, the Magistrate Judge ordered briefing and
heard argument on the issue of whether Sutherland, as Burleson County
Judge, had final policymaking authority for purposes of Doe’s claim against
_____________________
1
Doe describes the jury selection issue as if there were two separate trials and two
separate jury selections. However, the record clearly shows that the second trial date was
vacated, and thus, the trial never occurred. The transcript Doe cited for the Magistrate
Judge’s comment regarding challenges for cause appears to be from the final pretrial
conference for the second trial. The Court views the argument surrounding the jury
selection issue as follows: Doe made a challenge for cause at the original trial, the
Magistrate Judge denied the challenge, and later at the pretrial conference for the second
trial, the Magistrate Judge made the above-quoted statement regarding her preferred way
to handle challenges for cause, in preparation for the anticipated jury selection at the second
trial.
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Burleson County. The Magistrate Judge concluded that Sutherland “did not
have final policymaking authority for any area relevant to [Doe’s] claim
against Burleson County,” and therefore, “no claim asserted by [Doe]
remains to be tried.” The Magistrate Judge therefore vacated the second trial
setting and allowed Burleson County to file a second motion to dismiss.
On September 14, 2022, the Magistrate Judge granted Burleson
County’s Federal Rule of Civil Procedure 12(c) motion and dismissed Doe’s
remaining claim with prejudice. The Magistrate Judge found that Doe failed
to identify any provision of Texas law that delegates final policymaking
authority to Sutherland as it relates to Doe’s claim, and thus, Doe had
insufficiently pled a Section 1983 claim against Burleson County. The district
court entered final judgment, ordering that Doe take nothing against
Burleson County. Doe timely appealed the judgment.
II. Standard of Review
“We evaluate a motion under Rule 12(c) for judgment on the
pleadings using the same standard as a motion to dismiss under Rule 12(b)(6)
for failure to state a claim.” Gentilello v. Rege, 627 F.3d 540, 543–44 (5th Cir.
2010). Thus, this Court reviews a dismissal on the pleadings de novo,
“accepting all well-pleaded facts as true and viewing those facts in the light
most favorable to the plaintiff.” Bustos v. Martini Club Inc., 599 F.3d 458, 461
(5th Cir. 2010) (citation omitted); Romero v. Brown, 937 F.3d 514, 519 (5th
Cir. 2019). “[T]he central issue is whether, in the light most favorable to the
plaintiff, the complaint states a valid claim for relief.” Hughes v. Tobacco Inst.,
Inc., 278 F.3d 417, 420 (5th Cir. 2001) (citation omitted) (alteration in
original).
III. Analysis
Doe raises three issues on appeal: (1) whether Sutherland, as the
Burleson County Judge, was a policymaker with final decision-making
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authority for Burleson County with respect to Doe’s claim; (2) whether the
Magistrate Judge abused her discretion when she reversed and vacated a
prior order on a dispositive motion; and (3) whether the Magistrate Judge
erred in indicating that she would deny a party’s challenge for cause unless
the parties agreed on the challenge.
Turning to the first issue, Doe argues that Burleson County is liable
under Section 1983 because Sutherland, while County Judge, violated Doe’s
constitutional rights by sexually assaulting her on multiple occasions. We
conclude that Sutherland did not possess final policymaking authority in any
area relevant to Doe’s claim, and therefore, affirm the district court’s
judgment for Burleson County.
Burleson County, as a municipality, is only liable for the actions of its
employees when an official policy or custom causes the plaintiff’s injury.
Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 691–94 (1978);
see City of St. Louis v. Praprotnik, 485 U.S. 112, 122 (1988) (“Aware that
governmental bodies can act only through natural persons, the Court
concluded that these governments should be held responsible when, and only
when, their official policies cause their employees to violate another person’s
constitutional rights.”); Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th
Cir. 2001) (“[T]he unconstitutional conduct must be directly attributable to
the municipality through some sort of official action or imprimatur.”).
Accordingly, to succeed on a Monell claim, a plaintiff must show “that (1) an
official policy (2) promulgated by the municipal policymaker (3) was the
moving force behind the violation of a constitutional right.” Davidson v. City
of Stafford, Texas, 848 F.3d 384, 395 (5th Cir. 2017), as revised (Mar. 31, 2017)
(citing Culbertson v. Lykos, 790 F.3d 608, 628 (5th Cir. 2015)).
In some cases, where there may not be an express policy or custom in
place to satisfy the first element of a Monell claim, the plaintiff can instead
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allege that the action of a single “policymaker” caused the injury. “In rare
circumstances, a single unconstitutional action may be sufficient to impose
municipal liability if undertaken by the municipal official or entity possessing
final policymaking authority for the action in question.” Id. (citation and
internal quotation marks omitted); City of St. Louis v. Praprotnik, 485 U.S. at
123 (“[A]n unconstitutional governmental policy could be inferred from a
single decision taken by the highest officials responsible for setting policy in
that area of the government’s business.”). But “only those municipal
officials who have ‘final policymaking authority’ may by their actions subject
the [municipality] to § 1983 liability.” City of St. Louis v. Praprotnik, 485 U.S.
at 123.
“A final policymaker is one that has the responsibility for making law
or setting policy in any given area of a local government’s business”—in
other words, “one that decides the goals for a particular city function and
devises the means of achieving those goals.” Sweetin v. City of Texas City,
Texas, 48 F.4th 387, 392 (5th Cir. 2022) (cleaned up). “When a final policy
maker makes the relevant decision, and when that decision is within the
sphere of the policy maker’s final authority, the existence of a well-
established, officially-adopted policy will not insulate the municipality from
liability.” Bennett v. Pippin, 74 F.3d 578, 586 (5th Cir. 1996) (citation and
internal quotation marks omitted). And “whether a particular official has
‘final policymaking authority’ is a question of state law.” City of St. Louis v.
Praprotnik, 485 U.S. at 123 (emphasis removed). Accordingly, Doe’s claim
against Burleson County turns on whether Sutherland possessed final
policymaking authority under Texas law for the actions in question.
In support of her claim, Doe points solely to the provision of the Texas
Constitution that sets up the County Commissioners Court, asserting that
this provision gives a county judge, as “presiding officer” of the court, final
authority “over all county business.” Tex. Const. art. V, § 18(b).
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Sutherland, before his resignation, was the County Judge for Burleson
County. As this Court explained in Daves v. Dallas County, Texas, “the Texas
constitution’s county judges have such judicial functions as provided by law.
The judge also presides over the county’s five-member governing body.
Thus, that county judge is not a judicial officer only. There are various
executive and ministerial functions conferred as well.” 22 F.4th 522, 535 (5th
Cir. 2022) (cleaned up). “In addition to his judicial duties, a Texas county
judge is charged by the state constitution and statutes with the performance
of numerous executive, legislative and administrative chores in the day-to-
day governance of the county.” Familias Unidas v. Briscoe, 619 F.2d 391, 404
(5th Cir. 1980). “Thus, at least in those areas in which he, alone, is the final
authority or ultimate repository of county power, his official conduct and
decisions must necessarily be considered those of one ‘whose edicts or acts
may fairly be said to represent official policy’ for which the county may be
held responsible under section 1983.” Id. (quoting Monell, 436 U.S. at 694).
The question, then, is whether the factual scenario here involves an area in
which Sutherland “alone” had the final say over policymaking.
The answer is clear: despite his position as County Judge, Sutherland
lacked the requisite policymaking authority to hold Burleson County liable
for his alleged sexual misconduct. Monell requires that “the municipal
official . . . possess[] final policymaking authority for the action in question.”
Davidson, 848 F.3d at 395 (emphasis added) (citation and internal quotation
marks omitted). Even if the Texas constitutional provision gave Sutherland,
as County Judge, broad ability to oversee operations in the county, this
authority is immaterial because Doe fails to establish that Sutherland
possessed the requisite authority as it relates specifically to the alleged sexual
abuse (i.e., the basis for Doe’s Monell claim). Besides there being no “policy”
to shoehorn Doe’s allegations into, it is hard to imagine that Sutherland
would be considered the “ultimate repository of county power” if he engages
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in independent, private sexual assault against another. 2 See Familias Unidas,
619 F.2d at 404. As the Magistrate Judge correctly noted, Doe cannot
“identify Sutherland’s sphere of final policymaking authority” through
which Monell liability could attach to Burleson County here. See Webb v. Town
of Saint Joseph, 925 F.3d 209, 217 (5th Cir. 2019) (“A true policymaker must
decide the goals for a particular city function and devise the means of achieving
those goals.”) (emphasis added) (citation and internal quotation marks
omitted). Doe’s claim seems to sound instead in respondeat superior, but this
is an impermissible theory upon which to base a Monell claim. See Sweetin, 48
F.4th at 392 (“But a city cannot be held liable under § 1983 on a respondeat
superior theory of liability.”); Doe v. Edgewood Indep. Sch. Dist., 964 F.3d 351,
366 (5th Cir. 2020) (holding school district was not liable under Section 1983
for employees’ acts of sexual abuse so as to “avoid imposing respondeat
superior liability, which the Supreme Court has rejected in the [Section] 1983
context”).
Ultimately, this is a square-peg-round-hole case: Doe simply cannot
make the facts fit the theory of liability. In sum, the broad ability to make
decisions (along with the rest of the commissioner’s court) for the county’s
business generally is distinguishable from Sutherland’s personal
responsibility for his alleged sexual misconduct against an employee of the
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2
Doe alleges that Sutherland was “acting under the color of law each and every
time he summoned her to come to his county judge’s office, alleging the need to assist him
with county business, like notarizing documents and picking up documents.” Appellant’s
Br. at 10. Regardless of the reason Sutherland may have used to entice Doe into his office,
and even if he had the authority to so summon her (a point of contention between the
parties), this does not change our conclusion that Sutherland was not acting as a final
policymaker at the relevant time. Rather, Doe’s allegations concern Sutherland engaging
in his own independent misconduct, unrelated to his position as County Judge. As noted
above, Doe also fails to connect this misconduct to a particular area of policymaking over
which Sutherland had the requisite authority. Neither the location of certain incidents of
alleged sexual assault nor the title Sutherland held as County Judge alter this conclusion.
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County Attorney’s Office. 3 Not only is there no Texas law delegating
authority to county judges to establish personnel policies in various offices,
there is also a complete lack of connection between Sutherland’s own alleged
misconduct and official policymaking under Monell. 4 See Webb, 925 F.3d at
220 (“A common thread running throughout the Supreme Court’s and our
own caselaw on municipal liability is that such liability is limited to action for
which the municipality is actually responsible.”) (citation and internal
quotation marks omitted). Doe fails to establish that Sutherland had the
requisite final policymaking authority to hold Burleson County liable for his
actions here, regardless of his general ability to make decisions regarding
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3
The Burleson County Attorney, Susan Deski, testified that she alone has
authority over “the day-to-day operations of the Office of the Burleson County Attorney
including hiring and firing decisions related to personnel. The Burleson County
Judge . . . [has] no oversight or authority over the operation of the Burleson County
Attorney’s Office.” Deski Aff. 1–2. Deski also stated that, to her knowledge, there was no
statutory authority requiring—or even allowing—the Burleson County Judge to set policy
for her office. Id. at 2. Even further, the Burleson County Judge appointed to fill
Sutherland’s vacancy stated that he has policymaking authority over his own office, which
includes himself and one secretary, but that he has no authority over other offices, such as
the County Attorney’s Office. Schroeder Aff. 1–2. While this testimony alone cannot
resolve the issue here, the two verified affidavits, taken together with the lack of Texas law
supporting Doe’s arguments, further demonstrate that Sutherland lacked the requisite
authority to impose Monell liability on Burleson County here. See Covington v. City of
Madisonville, Texas, No. 22-20311, 2023 WL 5346375, at *2 (5th Cir. Aug. 18, 2023)
(approving district court’s holding that declaration by police chief corroborated finding of
lack of final policymaking authority).
4
Doe also cites to the employment policy on harassment issued by the County
Attorney’s Office, which lays out procedures for reporting harassment and filing claims,
but the policy does not indicate that the County Judge created it, implemented it, or has
final say over its enforcement. The policy instead lists the County Judge as a possible
person to report to and as an aid for investigative purposes. The employment policy
therefore does not help Doe’s case.
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county business. Thus, the district court correctly dismissed Doe’s Section
1983 claim against Burleson County. 5
As to the second and third issues Doe raises on appeal, the Court holds
that Doe’s arguments are frivolous. Even if the issues were adequately
briefed and therefore not waived, United States v. Lindell, 881 F.2d 1313, 1325
(5th Cir. 1989), Doe does not—and cannot—point to any valid legal basis to
support her arguments. These arguments are thus dismissed as frivolous.
IV. Conclusion
For the foregoing reasons, the judgment of the district court is
AFFIRMED.
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5
Doe conceded at the district court that if Sutherland is not considered the final
policymaker for the county, she lacks a viable claim against Burleson County.
10