1Some of the language in the amended complaint indicates that

plaintiff might be attempting to sue the Police Department of Hurst,

Texas, as a separate entity. Inasmuch as the Police Department is

only a part of the City of Hurst, the court does not consider that

the Police Department is a separate defendant. Other than the

individual defendants who are sued in their official capacities, the

only defendant in this action is the City of Hurst.

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

ANTONIO C. JONES, §

§

Plaintiff, §

§

VS. § NO. 4:05-CV-798-A

§

THE CITY OF HURST, ET AL., §

§

Defendants. §

Memorandum Opinion

and

ORDER

Defendants, The City of Hurst, Texas, ("City"),1 Tim Wallace

("Wallace") and Richard Winstanley, ("Winstanley") have moved to

dismiss certain claims asserted in this action by plaintiff,

Antonio C. Jones. Having considered the motion, plaintiff's

response, and the applicable authorities, the court concludes

that the motion should be granted in part, and that plaintiff

should amend his complaint.

I.

Plaintiff's Complaint

In the complaint filed December 15, 2005, plaintiff seeks 

relief under (a) Title VII of The Civil Rights Act, 42 U.S.C. §

2000e, et seq., for alleged discrimination on the basis of

plaintiff's race and for retaliation because of his complaint of

 

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2

discrimination, (b) 42 U.S.C. § 1983 for denial of equal

protection, and (c) 42 U.S.C. § 1985 for conspiracy to deny

plaintiff's civil rights. Plaintiff brought this action against

the City and against both Wallace and Winstanley in their

official capacities. 

In a section of the complaint entitled "NATURE OF THE CASE"

plaintiff provides the following overview of the main factual

bases of his complaints:

Plaintiff, a Black Hurst Police Detective was bypassed for

promotion by the City of Hurst. The City of Hurst deemed

that Plaintiff was not medically capable of performing the

prescribed duties. Plaintiff had three years prior been

cleared medically with no restrictions. Only after

Plaintiff was to receive promotion to a supervisory

position did the City of Hurst deem Plaintiff unfit for

the prescribed position. During the testing, assessment,

and subsequent selection process there were [sic.] no

mention of the Plaintiff's medical condition. An appeal

to the City of Hurst by Plaintiff was denied, however, the

City of Hurst made several promises to the Plaintiff in

lieu of promotional appeal. It is Plaintiff's belief that

the City of Hurst bypassed Plaintiff because of his race.

Compl. at 2 ¶ 8. (emphasis in original). The factual statements

in the complaint disclose that plaintiff contends that the

conduct alleged in the above-quoted language occurred in the year

2003. Plaintiff also complains that in March 2005, City "took

away Plaintiff's right to be a Police Officer," Compl. ¶ 19 at 5,

ostensibly because plaintiff had failed a medical physical, and

later, after a civil service hearing, demoted plaintiff from a

detective position to the department's patrol division. In

committing these acts, plaintiff contends, City deprived, and

conspired to deprive, plaintiff of various constitutional rights. 

 

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II.

Grounds of the Motion

Defendants maintain that certain of plaintiff's claims

should be dismissed because he fails to state a claim upon which

relief can be granted. Specifically, defendants urge that: (a)

plaintiff's Title VII claims against Wallace and Winstanley fail

because individuals cannot be sued under 42 U.S.C. § 2000e, et

seq.; (b) plaintiff's Title VII claims based on the events of

2003 are barred because plaintiff failed to timely pursue his

administrative remedies with respect to those claims; (c)

plaintiff's claims under §§ 1983 and 1985 as to the 2003 events

are barred by limitations; (d) all claims under §§ 1983 and 1985

fail as a matter of law because plaintiff does not identify any

municipal policy or policymaker responsible for the alleged

unconstitutional injury; and (e) because plaintiff asserts a

claim under Title VII for the events occurring in 2005, he cannot

at the same time assert claims under 42 U.S.C. §§ 1983 and 1985

for that same conduct. 

III.

Applicable Standards Under

Fed. R. Civ. P. 12

The standards for deciding a motion to dismiss for failure

to state a claim are well settled. The court's task is to

determine "not whether a plaintiff will ultimately prevail but

whether the claimant is entitled to offer evidence to support the

claims." Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). A

complaint "should not be dismissed for failure to state a claim

 

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2The Fifth Circuit has held that Title VII does not impose

liability upon individuals. See Pfau v. Reed, 125 F.3d 927, 935-36

(5th Cir. 1997). So, even if Wallace and Winstanley had been sued in

their individual capacities, they would have no liability to

plaintiff under Title VII. 

4

unless it appears beyond doubt that the plaintiff can prove no

set of facts that would entitle him to relief." Conley v.

Gibson, 355 U.S. 41, 45-46 (1957). The court construes the

allegations of the complaint favorably to the pleader. Scheuer,

416 U.S. at 236. However, the court does not accept conclusory

allegations or unwarranted deductions of fact as true. Tuchman

v. DSC Communications Corp., 14 F.3d 1061, 1067 (5th Cir. 1994);

Guidry v. Bank of LaPlace, 954 F.2d 278, 281 (5th Cir. 1992).

IV.

Dismissal of the Individual Defendants

The court concludes that City is the only defendant to this

action. A suit against governmental officials in their official

capacities is the same as a suit against the governmental entity. 

See Kentucky v. Graham, 473 U.S. 159, 165 (1985). Plaintiff has

not sued Wallace and Winstanley in their individual capacities,

only in their official capacities. Accordingly, the court is

dismissing all of plaintiff's claims against Wallace and

Winstanley.2 

 

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3 Plaintiff's Charge of Discrimination is attached to his

complaint.

5

V.

Procedural Bars as to Claims Based on 2003 Events

A. Claims Under Title VII Based on 2003 Events

Before a plaintiff may file a civil action under Title VII

he must timely pursue available administrative remedies, which

includes the filing of a complaint with the Equal Employment

Opportunity Commission ("EEOC") within 300 days after an alleged

violation occurs. See 42 U.S.C. § 2000e-5(b), (e); Dao v.

Auchlan Hypermarket, 96 F.3d 787, 789 (5th Cir. 1996). The face

of plaintiff's Charge of Discrimination3 filed with the EEOC on

September 22, 2005, shows that certain of the alleged violations

giving rise to his Title VII claims occurred in October 2003,

more than 300 days before the Charge of Discrimination was filed. 

The court concludes that plaintiff failed to file a timely EEOC

complaint with regard to any claims he might have based on events

occurring before November 26, 2004.

B. Claims Under Sections 1983 and 1985 Based on 2003 Events

The pertinent statute of limitations period for plaintiff's

§§ 1983 and 1985 claims is two years. Flores v. Cameron Co., 92

F.3d 258, 271 (5th Cir. 1996); see also Helton v. Clements, 832

F.2d 332, 334 (5th Cir. 1987). Thus, plaintiff's §§ 1983 and

1985 claims relating to any event occurring before this action

was filed on December 15, 2003, are barred by limitations.

 

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6

VI.

The Claims That Are Not Procedurally Barred

Plaintiff asserts claims based on the 2005 events under 28

U.S.C. §§ 1983 and 1985 as well as Title VII. City, citing 

Great Am. Fed. Sav. & Loan Ass'n v. Novotny, 442 U.S. 366 (1979),

contends that the law does not permit the assertion of both. The

rule of the Fifth Circuit seems to be against City's contention. 

See Johnson v. Harris County Flood Control Dist., 869 F.2d 1565,

1576 (5th Cir. 1989). This is a matter the court will consider

further as the case progresses, but, for the time being, the

court is rejecting City's contention.

However, the court does have a concern as to the adequacy of

plaintiff's allegations as to the 2005 events. A municipality

can be sued and subjected to monetary damages and injunctive

relief under 28 U.S.C. §§ 1983 and 1985 only if an official

policy or custom of the municipality caused the plaintiff to be

deprived of a federally protected right. Board of County Comm'rs

v. Brown, 520 U.S. 397, 403 (1997); see also Monell v. Department

of Soc. Servs., 436 U.S. 658, 694 (1978). To support a claim

based on the existence of a custom or policy, the plaintiff must

plead facts to show that: (1) a policy or custom existed; (2)

governmental policymakers actually or constructively knew of its

existence; (3) a constitutional violation occurred; and (4) the

custom or policy served as the moving force behind the violation. 

Meadowbriar Home for Children, Inc. v. Gunn, 81 F.3d 521, 532-33

(5th Cir. 1996). A description of the policy or custom and its

 

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4 Plaintiff argues incorrectly that he need only "allege that

defendants deprived him off rights secured by the Constitution or

federal statutes" to state a § 1983 claim. Pl.'s Resp. at 3. 

Plaintiff's position ignores the long-established rule that "Congress

(continued...)

7

relationship to the underlying constitutional violation cannot be

conclusory; it must contain specific facts. Spiller v. City of

Tex. City, 130 F.3d 162, 167 (5th Cir. 1997). The plaintiff must

establish that his claims are based on the municipality's

official policy, not the policy of an individual official. 

Bennett v. City of Slidell, 728 F.2d 762, 769 (5th Cir. 1984).

"The fact that a particular official--even a policy-making

official--has discretion in the exercise of particular functions

does not, without more, give rise to municipal liability based on

an exercise of that discretion." Pembaur v. City of Cincinnati,

475 U.S. 469, 481-82 (1986).

Whether an official had final policymaking authority is a

question of state law. Id. at 483. Generally, one is not a

policymaker unless the governmental entity, through its

lawmakers, has delegated exclusive policymaking authority to that

employee, agency, or board, and cannot review his or its

decisions. City of St. Louis v. Praprotnik, 485 U.S. 112, 127

(1988). In sum, "municipal liability under § 1983 attaches

where--and only where--the deliberate choice to follow a course

of action is made from among various alternatives by the official

or officials responsible for establishing final policy with

respect to the subject matter in question." Pembaur, 475 U.S. at

483-84.4

 

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4

(...continued)

did not intend municipalities to be held liable unless action

pursuant to official municipal policy of some nature caused a

constitutional tort." Monell v. Department of Soc. Servs., 436 U.S.

658, 691 (1978).

8

While the court has serious reservations about the adequacy

of the allegations of the complaint relative to the §§ 1983 and

1985 claims, the court, rather than to dismiss those claims, is

ordering plaintiff to replead with appropriate specificity.

VII.

O R D E R

For the reasons stated herein,

The court ORDERS that all of plaintiff's claims and causes

of action asserted against Wallace and Winstanley be, and are

hereby, dismissed without prejudice.

The court further ORDERS that all of the claims and causes

of action asserted by plaintiff under 28 U.S.C. §§ 1983 and 1985

against City based on events occurring before December 15, 2003,

be, and are hereby, dismissed.

The court further ORDERS that all of the claims and causes

of action asserted by plaintiff under Title VII against City

based on events occurring before November 26, 2004, be, and are

hereby, dismissed.

The court further ORDERS that from this point forward the

sole defendant in this action is City, that the parties show on

all items filed with the papers in this action that the defendant

is "City of Hurst, Texas," and that the style of this action be

"Antonio C. Jones, Plaintiff v. City of Hurst, Texas, Defendant."

 

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The court further ORDERS that:

(a) By March 15, 2006, plaintiff shall file an amended

complaint that reflects the rulings made by the court

herein (namely, that the only proper defendant to this

action is City, and the only claims remaining are those

relating to the events described in the complaint as

occurring in 2005).

(b) The amended complaint shall not contain any claim that

is not asserted in plaintiff's original complaint.

(c) If plaintiff continues to assert in his amended

complaint claims against City under 28 U.S.C. §§ 1983

and 1985, he shall allege with specificity in the

amended complaint (i) each official policy or custom of

City that he claims caused him to be deprived of a

federally-protected right, (ii) each fact that he

claims establishes that City policymakers actually or

constructively knew of the existence of the custom or

policy of which he complains, (iii) each fact

establishing that a constitutional violation occurred,

and (iv) each fact establishing that the custom or

policy of which he complains served as the moving 

 

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force behind the violation. Specific facts, rather

than conclusions, must be alleged.

SIGNED March 2 , 2006.

 /s/ John McBryde 

JOHN McBRYDE

United States District Judge

 

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