Civil Rights – Municipal – Civil Practice – Pleadings – Conclusory Allegations – Tort/Negligence – Battery – Fleeing Suspect – Hit with Car

Purcell v. City of Greensboro (Lawyers Weekly No. 12-03-0561, 10 pp.) (James A. Beaty, J.) 1:11-cv-00577; M.D.N.C.

Holding: Plaintiff makes no factual allegations that the defendant-police officer who ran him down with a patrol car was acting pursuant to a policy of the defendant-city. Mere conclusory allegations are insufficient to state a claim.

The city’s motion to dismiss is granted.

Suspected of drunk driving, plaintiff fled on foot. Defendant Boyer drove his patrol car into plaintiff in an attempt to stop and apprehend him. Boyer’s vehicle also hit a stopped patrol car.

As a result of the incident, plaintiff sustained compound comminuted fractures to his leg, which had to be amputated.

To state a cause of action against a municipality under 42 U.S.C. § 1983, a plaintiff must plead (1) the existence of an official policy or custom, (2) that the policy or custom is fairly attributable to the municipality, and (3) that the policy or custom proximately caused the deprivation of a constitutional right. A policy or custom for which a municipality may be held liable can arise in four ways: (1) through an express policy, such as a written ordinance or regulation; (2) through the decisions of a person with final policymaking authority; (3) through an omission, such as a failure to properly train officers, that manifests deliberate indifference to the rights of citizens; or (4) through a practice that is so “persistent and widespread” as to constitute a custom or usage with the force of law.

Plaintiff has failed to plead any facts to support his allegations from which the court could reasonably infer the existence of a policy or custom attributable to the city and that such policy or custom proximately caused the constitutional deprivation that plaintiff alleges.

Plaintiff alleges that the city condoned and encouraged officers in the improper use of excessive force and violence towards members of the public, including plaintiff, that the city condoned the use of “curbside justice” by its officers, that the city condoned and encouraged the infliction of summary punishment on persons in custody, that the city failed to establish a policy for using force in detaining and apprehending suspects, and that city policymakers found a violation for Officer Boyer hitting the other police car, but found no violation for hitting him. Plaintiff appears to suggest that the incident that caused his injury was indicative of a larger pattern or practice by which the city actually encouraged its officers to use excessive force when investigating and apprehending suspects and by which the city evidenced indifference and inaction when confronted with patterns of unlawful treatment of African Americans. However, plaintiff offers no other specific instances of police misconduct which would suggest that the incident here alleged was anything but a singular act by an individual officer. Facts relating to the incident surrounding plaintiff’s injury, standing alone, do not suffice to establish the existence of a policy or custom by which the city encouraged its officers to use excessive force and violence when investigating and apprehending suspects.

Further, in alleging that the city failed to adequately train, supervise and control officers in the use of force in the investigation and apprehension of suspects, plaintiff fails to allege any supporting facts of even a general nature which would suggest the existence of the alleged deficiency in training.

Motion granted.