     Case: 14-20015      Document: 00513002608         Page: 1    Date Filed: 04/13/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 14-20015                         United States Court of Appeals
                                  Summary Calendar                                Fifth Circuit

                                                                                FILED
                                                                            April 13, 2015
LIZZIE YOUNG,                                                              Lyle W. Cayce
                                                                                Clerk
              Plaintiff - Appellant

v.

CITY OF HOUSTON,

              Defendant - Appellee




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:12-CV-3533


Before HIGGINBOTHAM, JONES and HIGGINSON, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge:*
       Lizzie Young appeals an order granting the City of Houston’s motion to
dismiss Young’s 42 U.S.C. § 1983 action for damages and equitable relief. She
also appeals the denial of post-judgment relief. We AFFIRM.
       In October 2012, Young filed suit in Texas state court alleging that the
City of Houston (the “City”) acted under the color of state law and violated her



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                       No. 14-20015
rights when it terminated her from a program to provide dental care. Young
alleged that her income and age qualified her for a dental program funded by
the state and administered by the City, and that termination violated her
rights. Young was terminated when she would not agree to a treatment plan
developed after consultations with numerous dentists.
       The City answered the complaint and then removed to federal court.
Both parties consented to proceed before a magistrate judge. The magistrate
judge granted the City’s motion to dismiss, finding that Young had not shown
that the City had a policy, practice, or custom of violating her rights, or that
Young had a private right of action cognizable under § 1983. 1 The magistrate
judge denied Young’s motion to vacate the dismissal and her motion to
reconsider the denial. Young timely appealed.
       We first address Young’s contention that dismissal pursuant to Rule
12(b)(6) was void because the City had already filed its answer. We agree that
12(b)(6) relief was unavailable here because the City’s motion was made after
it had filed a responsive pleading. See Fed. R. Civ. P. 12(b); Jones v. Greninger,
188 F.3d 322, 324 (5th Cir. 1999). However, a defense of failure to state a claim
upon which relief can be granted may also be raised by a Rule 12(c) motion.
See Fed. R. Civ. P. 12(h). We therefore construe the City’s motion as a Rule
12(c) motion for judgment on the pleadings raising this defense. See Edwards
v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999).
       Viewing the City’s motion as a 12(c) motion has no effect on our review,
because a “motion for judgment on the pleadings under Rule 12(c) is subject to
the same standard as a motion to dismiss under Rule 12(b)(6).”                        Doe v.



       1The City brought its motion under Fed R. Civ. P. 12(b)(1), but the magistrate judge
construed it as a 12(b)(6) motion to dismiss for failure to state a claim. The magistrate judge
noted that the court has subject matter jurisdiction over § 1983 claims and the City had
conceded jurisdiction when it removed the case to federal court.
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                                     No. 14-20015
MySpace, Inc., 528 F.3d 413, 417 (5th Cir. 2008). We review the district court’s
grant of judgment on the pleadings de novo. Id. We assess whether, accepting
the factual allegations as true, the complaint states a plausible claim for relief.
See id.
      Young appeals the dismissal of her § 1983 claim. 2 Section 1983 “provides
a claim against anyone who, under color of state law, deprives another of his
or her constitutional rights.” Doe v. Taylor Indep. Sch. Dist., 15 F.3d 443, 452
(5th Cir. 1994) (internal quotation marks and citations omitted). Section 1983
applies to municipalities like the City of Houston, but municipalities are not
liable under a theory of respondeat superior. See Bd. of Cnty. Com’rs. of Bryan
Cnty., Okla. v. Brown, 520 U.S. 397, 403 (1997) (citing Monell v. New York City
Dep’t of Social Servs., 436 U.S. 658, 690 (1978)). In order to state a claim
against a municipality, a plaintiff must “identify a municipal ‘policy’ or ‘custom’
that caused the plaintiff’s injury.” Brown, 520 U.S. at 403. “Locating a ‘policy’
ensures that a municipality is held liable only for those deprivations resulting
from the decisions of its duly constituted legislative body or of those officials
whose acts may fairly be said to be those of the municipality.” Id. at 403–04.
      Young’s complaint does not allege that the City had a policy or custom
that caused Young’s injury. On the contrary, the complaint alleges that Young
was injured despite policies in place to prevent injury. The complaint alleges
that the City maintains policies to train its officials to serve the elderly
population, to educate employees to protect elderly rights, and to ensure
employees are qualified. Young alleges that her injury stemmed from City
employees’ disregard of these city policies. Essentially, Young alleges that the



      2  To the extent Young appeals claims brought under other constitutional or statutory
provisions, or against unnamed defendants, they are waived because Young does not raise or
brief them on appeal. See Adams v. Unione Mediterranea Di Sicurta, 364 F.3d 646, 653 (5th
Cir. 2004).
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City is liable because its employees did not abide by the City’s policies intended
to ensure proper treatment of elderly persons. This respondeat superior claim
is not cognizable under § 1983. See City of Canton, Ohio v. Harris, 489 U.S.
378, 389 (1989); Piotrowski v. City of Houston, 51 F.3d 512, 517 (5th Cir. 1995)
(holding that plaintiff did not state a § 1983 claim when she alleged injury
caused by actions of individual police officers, not by a city policy or custom).
       In her brief on appeal, plaintiff attempts to recharacterize her injury as
having been caused by the City’s policies, arguing that her injuries resulted
from the City’s “custom” of permitting ill-trained and unknowledgeable
employees to run the dental program. Our inquiry into whether Young has
adequately stated a claim for relief is limited to the four corners of the
complaint, and Young did not amend her complaint despite being given
fourteen days to do so by the magistrate judge. See Spivey v. Robertson, 197
F.3d 772, 774 (5th Cir. 1999). In any event, even Young’s brief confirms that
she is attempting to impose liability based on respondeat superior; Young
states that the City has acted “in total disregard of written policies.” 3
       Young also argues that the dismissal and denial of post-dismissal relief
violated her due process rights. First, Young argues that the magistrate judge
erred by failing to ensure she had pled her “best case” before dismissing the
complaint with prejudice. See Hale v. King, 642 F.3d 492, 503 (5th Cir. 2011).
Young’s argument is without basis because the magistrate judge did provide
Young an opportunity to amend her complaint. Second, Young takes issue with
the magistrate judge’s “sua sponte dismissal” of the complaint, but the


       3 Our policy of liberally construing pro se litigants’ complaints does not relieve Young
from her obligation to state a claim for relief. See Taylor v. Books A Million, Inc., 296 F.3d
376, 378 (5th Cir. 2002) (“[R]egardless of whether the plaintiff is proceeding pro se or is
represented by counsel, conclusory allegations or legal conclusions masquerading as factual
conclusions will not suffice to prevent a motion to dismiss.”) (internal quotation marks and
citations omitted).

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                                No. 14-20015
magistrate judge did not act sua sponte. The City moved to dismiss for failure
to state a claim, Young responded, and the magistrate judge granted the
motion. Moreover, after dismissal, Young was afforded the opportunity to
amend the complaint. Third, Young claims that the City’s filing of an answer
guaranteed her a jury trial. But federal procedural rules apply to this action,
and many rules—including Rules 12(c) and 56 of the Federal Rules of Civil
Procedure—permit judgment as a matter of law. Fourth, the magistrate judge
did not abuse her discretion by denying Young’s motions for post-judgment
relief. Young’s due process rights were not violated.
      For the foregoing reasons, we AFFIRM.




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