PALMER v. CITY OF SAN ANTONIO, TEX.

ROBERT MADDEN HILL, Circuit Judge:

In this action, John David Palmer (Palmer) appeals from the order of the district court dismissing his action under 42 U.S.C. § 1983. We affirm the district court's dismissal of the city of San Antonio but remand for consideration of Palmer's claim against defendant Williamson in his individual capacity.

I.

A dismissal for failure to state a claim upon which relief may be granted cannot be upheld "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957). In reviewing such a dismissal, we must examine only the pleadings, accept the factual averments as true, and view them in the light most favorable to the plaintiff. Rankin v. City of Wichita Falls, Texas, 762 F.2d 444, 446 (5th Cir.1985). We set out the facts of the case using these principles.

On July 17, 1983, Palmer was driving an automobile with a passenger in Converse, Texas, when officers Michael Williamson (Williamson) and Harold Bellamy (Bellamy) of the San Antonio police department attempted to stop Palmer's automobile for allegedly disrupting and endangering the neighborhood by squealing tire noise and speeding. Williamson and Bellamy were both off duty at the time in question. Williamson, dressed in a bathing suit and carrying a pistol, jumped into the street in front of Palmer's automobile. Ballamy remained off the street. When Palmer tried to get away, Williamson tried to grab him through the window of the automobile while pointing his pistol at him. As Palmer left the scene in his automobile, Williamson fired his pistol at Palmer and hit the left side of Palmer's automobile.

Palmer stopped his automobile about a mile later in order to inspect it. As he started to return to the scene to find out who had shot at him, a truck suddenly blocked his automobile. Apparently, Williamson had commandeered a truck to follow Palmer's automobile. With his gun drawn, Williamson then pulled Palmer from the automobile. Palmer was arrested by the city of Converse police and charged with public intoxication and assault with a motor vehicle. As Palmer was 16 years old he was tried in Juvenile Court. He was convicted of engaging in delinquent conduct, but that judgment was reversed on appeal.

Subsequently, Palmer filed a complaint in federal court under 42 U.S.C. § 19831 against the city of San Antonio and police officers Williamson and Bellamy alleging a violation of his constitutional rights. The district court dismissed the complaint on the basis that Palmer had only sued the police officers in their official capacity and that Palmer had not alleged any policy or custom of the city of San Antonio that had caused him to be deprived of a federal or constitutional right. Palmer subsequently filed this appeal.

II.

A.

In his amended complaint, Palmer alleged that:

In Webster v. City of Houston, 735 F.2d 838, 841 (5th Cir.1984) (en banc), we established a standard to govern the imposition of municipal liability:

More specifically, Palmer must identify "(1) a policy (2) of the city's policymaker (3) that caused (4) the plaintiff to be subjected to a deprivation of constitutional right." Grandstaff v. City of Borger, Texas, 767 F.2d 161, 169 (5th Cir.1985). Similarly, an isolated incident is not sufficient to show that a custom exists. As we stated in Bennett v. City of Slidell, 728 F.2d 762, 768 n. 3 (5th Cir.1984) (en banc), cert. denied, 472 U.S. 1016, 105 S.Ct. 3476, 87 L.Ed.2d 612 (1985): "Isolated violations are not the persistent, often repeated, constant violations that constitute custom and policy." The Supreme Court has elaborated on the causal requirement by holding that the connection must be more than de facto; the policy or custom must be "the moving force of the constitutional violation." Monell v. New York City Dept. of Social Services, 436 U.S. 658, 694, 98 S.Ct. 2018, 2037, 56 L.Ed.2d 611 (1978). See also City of Oklahoma City v. Tuttle, 471 U.S. 808, 105 S.Ct. 2427, 2433-34, 85 L.Ed.2d 791 (1985) (plurality opinion).

Palmer alleges that the actions of Williamson and Bellamy reflect a policy of inadequate training on the part of the city of San Antonio, that the city policy caused the police officers to violate his rights, and thus that the city is liable under section 1983. In Grandstaff, however, we noted that

767 F.2d at 169. If, however, the police officers know at the time they act that the use of excessive force when arresting persons will meet with the approval of city policymakers, then the causation requirement has been met. Grandstaff, 767 F.2d at 169.

We have also consistently required a section 1983 plaintiff to state specific facts and not merely conclusory allegations. Elliot v. Perez, 751 F.2d 1472, 1479 & n. 20 (5th Cir.1985) (citing cases). While it might be possible that a basis for municipal liability exists in this case, Palmer states no facts in his complaint to support his assertion that San Antonio authorized and approved the practice of its police officers using excessive force when making arrests or that such a well settled practice of doing so existed. Although Palmer has already amended his complaint once, the complaint still fails to meet the requirements of Elliot. As we have made clear, the assertion of a single incident is not sufficient to show that a policy or custom exists on the part of a municipality. Slidell, 728 F.2d at 768 n. 3. Palmer failed to allege that there are prior incidents which, if taken as true, would reveal the existence of an unconstitutional custom on the part of San Antonio. Accordingly, we affirm the district court's order of dismissal with respect to the city of San Antonio.

B.

After finding that Palmer failed to specify a policy or custom of San Antonio which would make the city liable under section 1983, the district court dismissed the complaint. Although admittedly Palmer's complaint was not as artfully drafted as it should have been, we believe that the district court erred in not also evaluating Palmer's complaint as a section 1983 action against Williamson and Bellamy individually.

Paragraph VII of Palmer's amended complaint states:

The district court interpreted this paragraph as alleging acts by the defendant officers in their official capacities as employees of the city of San Antonio only, thus requiring a specific allegation of a constitutionally deficient policy or custom of the city. It apparently reached this conclusion because paragraph VII of the complaint states that the acts were done "... not as individuals ...". The difficulty with the district court's interpretation is that an examination of Palmer's complaint as a whole and other papers filed with the district court and this court indicate that Palmer's complaint could be read to allege an action against the officers individually in addition to alleging an action against the officers in their official capacities. See also note 2, infra.

In his memorandum in support of his motion to set aside the district court's dismissal order, Palmer appears to separately raise the question of the police officers' individual liability under section 1983 from the question of the city's liability. The case Palmer cites, Gomez v. Toledo, 446 U.S. 635, 100 S.Ct. 1920, 64 L.Ed.2d 572 (1980), involved an individual's liability under section 1983 and not the question of a municipality's liability. Moreover, in his brief to this court, Palmer notes that he "alleges that [a]ppellees deprived him of a federal right by firing a pistol at [a]ppellant; pointing a pistol at [a]ppellant's head; and using unnecessary excessive force at the arrest of [a]ppellant." Palmer appears to be asserting that the individual police officers as well as the city of San Antonio are liable under section 1983.

Federal Rule of Civil Procedure 8(f) mandates that we construe complaints liberally "as to do substantial justice." See generally 5 C. Wright & A. Miller, Federal Practice and Procedure §§ 1215-16 (1969). In light of this standard, we believe that the district court should have construed Palmer's complaint as asserting that both the individual officers and the city of San Antonio were liable under section 1983.2 Thus, if the requirements of Elliot are met, we must remand the case so that the district court can consider Palmer's complaint against the officers in their individual capacity.

With regard to defendant Williamson, Palmer has set forth specific facts which satisfy the requirements of Elliot. Paragraph VIII of his complaint sets out in detail the actions of Williamson which allegedly violated Palmer's constitutional rights.3 Accordingly, the district court on remand must consider Palmer's action against Williamson in his individual capacity.4

The only mention of defendant Bellamy's actions, however, also occurs in Paragraph VIII of Palmer's complaint. Palmer merely asserts that Bellamy "attempted to stop plaintiff's automobile." The rest of the facts he sets out refer only to defendant Williamson. We do not feel this satisfies Palmer's burden to state specific facts under Elliot. Palmer states no facts in his complaint which indicate how Bellamy violated any of his rights. Cf. Hanson v. Town of Flower Mound, 679 F.2d 497, 504 (5th Cir.1982) (no allegation contained in complaint that car was stopped without probable cause; court properly dismissed section 1983 claim based on legality of search since "pleader must allege facts, not legal conclusions.") Consequently, the district court on remand can dismiss Palmer's section 1983 action against Bellamy in his individual capacity.

III.

We AFFIRM the district court's order of dismissal with respect to the city of San Antonio; we REVERSE the district court's order of dismissal with respect to officers Williamson and Bellamy; and we REMAND the case to the district court so the court can consider Palmer's complaint against Williamson and Bellamy in their individual capacities consistent with this opinion.

AFFIRMED IN PART, REVERSED IN PART, and REMANDED.