     Case: 15-10073        Document: 00513550017          Page: 1     Date Filed: 06/16/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                        No. 15-10073                        United States Court of Appeals
                                                                                     Fifth Circuit

                                                                                   FILED
ROBERT GRODEN,                                                                 June 16, 2016
                                                                              Lyle W. Cayce
                Plaintiff - Appellant                                              Clerk

v.

CITY OF DALLAS, Texas; SERGEANT FRANK GORKA,

                Defendants - Appellees




                     Appeal from the United States District Court
                          for the Northern District of Texas


Before KING, JOLLY, and PRADO, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
      Robert Groden seeks to establish Monell 1 liability against the city of
Dallas for his allegedly unconstitutional arrest.                He argues that the city
adopted an unconstitutional policy of retaliating against unpopular-but
constitutionally-protected speech and that, acting under this policy, Officer
Frank Gorka illegally arrested Groden. The district court dismissed Groden’s
claims against the city of Dallas under Federal Rule of Civil Procedure 12(b)(6),
primarily because his complaint did not name the specific municipal
policymaker. The Supreme Court has stated more than once, however, that



      1   Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658 (1978).
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the identity of the policymaker is a question of law. Accordingly, for purposes
of Rule 12(b)(6), we hold that a plaintiff is not required to single out the specific
policymaker in his complaint; instead, a plaintiff need only plead facts that
show that the defendant or defendants acted pursuant to a specific official
policy, which was promulgated or ratified by the legally authorized
policymaker. Here, the statutorily authorized policymaker is the Dallas city
council. Groden pled sufficient facts to show that the city council promulgated
or ratified the illegal-arrest policy and thus that this policy was attributable to
the city of Dallas. We further conclude that, in all other relevant respects,
Groden pled a sufficient complaint to survive a dismissal on the pleadings.
Accordingly, we reverse the 12(b)(6) dismissal of Groden’s Monell claim.
                                         I.
      Groden is the author of several books claiming to reveal the truth behind
the assassination of President Kennedy. Groden sells his books and magazines
on the grassy knoll area of Dealey Plaza in Dallas. Groden alleges that his
sales were legal but nevertheless annoyed a nearby business, the Sixth Floor
Museum.
      In the summer of 2010, a spokesperson for the city of Dallas announced
that the city planned to “crack down” on vendors selling goods on Dealey Plaza.
After this announcement, a Dallas police officer, Sergeant Frank Gorka,
arrested Groden. The city charged Groden with violating Dallas City Code
§ 32-10, which prohibits selling merchandise in a park.           The city courts,
however, determined that Dealey Plaza is not a park and quashed Groden’s
indictment; the city appealed, and lost.
      Groden sued the city of Dallas and Gorka under 42 U.S.C. § 1983.
Groden alleged that the city had adopted a policy—which he termed the
“crackdown policy”—of arresting vendors in Dealey Plaza despite knowing that
no law provided probable cause for the arrests; he further alleged that Gorka
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                                  No. 15-10073
arrested him pursuant to this crackdown policy. According to Groden, the city
had adopted the crackdown policy to punish him and other vendors for
unpopular (but constitutionally protected) speech.          The city moved under
Federal Rule of Civil Procedure 12(b)(6) to dismiss Groden’s claims against the
city; the district court granted this motion. The suit against Officer Gorka in
his individual capacity, however, proceeded to trial.         The jury returned a
general verdict for Officer Gorka. After the trial, Groden filed a motion for a
new trial, which the district court denied. This appeal followed.
                                        II.
      We “review de novo a district court’s grant or denial of a Rule 12(b)(6)
motion to dismiss, accepting all well-pleaded facts as true and viewing those
facts in the light most favorable to the plaintiff.” Hines v. Alldredge, 783 F.3d
197, 200–01 (5th Cir. 2015).          Municipalities are not liable for the
unconstitutional actions of their employees under respondeat superior. Monell
v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978).          Instead, “[t]o establish
municipal liability under § 1983, 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.” Peterson v. City of Fort Worth, Tex., 588
F.3d 838, 847 (5th Cir. 2009).
                                       III.
      The district court identified two reasons to dismiss Groden’s Monell
claims against the city.    First, the district court dismissed the complaint
because Groden did not plead the identity of the policymaker of the alleged city
policy. Second, the district court held that Groden did not plead that the city
of Dallas adopted an unconstitutional policy or that the policy was the moving
force behind his constitutional violation. Both of these reasons for dismissal,




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                                        No. 15-10073
however, are flawed. 2
                                               A.
       First, the district court held that Groden is required to plead the specific
identity of the city policymaker. This holding presents a question of first
impression: whether a § 1983 claim against a municipality under Monell must
allege the specific identity of the policymaker. 3 Following the clear indication


       2  The city argues we need not reach the merits of Groden’s appeal because the jury
verdict in favor of Officer Gorka blocks Groden from appealing the dismissal of his suit
against Dallas for the same constitutional violation. The city points out that, according to
Groden’s complaint, Gorka was the only officer who carried out Dallas’ allegedly
unconstitutional policy. Thus, if a jury found that Gorka did not violate the Constitution,
then Dallas could not have violated the Constitution through Gorka. Under the city’s
reasoning, the jury verdict renders the dismissal of Groden’s claims against the city correct—
even if the dismissal had been erroneous when it occurred. See City of Los Angeles v. Heller,
475 U.S. 796 (1986) (per curiam).
        As we have said above, the city’s argument is flawed: we do not know whether the jury
found that Gorka acted constitutionally when arresting Groden. The jury was charged on
both the constitutional issue and on qualified immunity and subsequently rendered a general
verdict. We cannot know which issue the jury found to be decisive. Heller’s holding applies
only when “no issue of qualified immunity was presented to the jury.” Id. at 798. Accordingly,
the jury’s verdict for Gorka does not prevent Groden from appealing the dismissal of his
claims against Dallas.
        3 Although this is a question of first impression in our circuit, several district courts

have held that complaints must specifically identify the policymaker. See, e.g., Covington v.
Covington, No. CIV.A. H-13-3300, 2015 WL 5178078, at *7 (S.D. Tex. Sept. 4, 2015). These
cases typically cite either other district court opinions or Piotrowski v. City of Houston, 237
F.3d 567, 578 (5th Cir. 2001). Piotrowski, however, is inapposite—it did not require plaintiffs
to plead the identity of the policymaker. Instead, it said only that “municipal liability under
section 1983 requires proof of three elements: a policymaker; an official policy; and a violation
of constitutional rights whose ‘moving force’ is the policy or custom.” Id. at 578. This
statement is simply an alternative articulation of the familiar requirements for Monell
liability: “(1) an official policy (2) promulgated by the municipal policymaker (3) was the
moving force behind the violation of a constitutional right.” Peterson, 588 F.3d at 847.
Moreover, as discussed in the text, the holdings of these district courts are at odds with the
Supreme Court.
        Similarly, some of our sister circuits have, in dicta, gestured towards a requirement
that plaintiffs plead the identity of the policymaker. But no circuit has held that plaintiffs
must, as a pleading requirement, identify the policymaker. See Santiago v. Warminster Twp.,
629 F.3d 121, 135 (3d Cir. 2010) (“The dispositive point is that, whether or not Chief Murphy
is a final policymaker, Santiago has failed to plead facts showing that his plan caused her
injury.”); Baxter by Baxter v. Vigo Cty. Sch. Corp., 26 F.3d 728, 736 (7th Cir. 1994) (“[W]e can
discern no sufficiently specific allegation of a policy or custom.”), abrogated on other grounds
by Guzman v. Sheahan, 495 F.3d 852 (7th Cir. 2007). See also Blue v. District of Columbia,
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                                       No. 15-10073
of Supreme Court precedent, we hold no: the specific identity of the
policymaker is a legal question that need not be pled; the complaint need only
allege facts that show an official policy, promulgated or ratified by the
policymaker, under which the municipality is said to be liable. 4
       The Supreme Court recently addressed the pleading requirements for
§ 1983 cases in Johnson v. City of Shelby, Miss., 135 S.Ct. 346 (2014) (per
curiam). In Johnson, this circuit had held that a § 1983 claim should be
dismissed because the plaintiffs’ complaint did not state the proper legal theory
for the requested relief—the complaint failed to mention § 1983 at all. The
Supreme Court reversed, saying that the plaintiffs’ complaint “stated simply,
concisely, and directly events that, they alleged, entitled them to damages from
the city. Having informed the city of the factual basis for their complaint, they
were required to do no more to stave off threshold dismissal for want of an
adequate statement of their claim.” Id. at 347 (emphasis added). Further, the
Supreme Court held that when a complaint contains sufficient “factual
allegations,” a court should not grant a motion to dismiss “for imperfect
statement of the legal theory supporting the claim asserted.”                    Id. at 346
(emphasis original).
       Furthermore, the Supreme Court has repeatedly emphasized that the
identity of the policymaker is a question of law, not of fact—specifically, a
question of state law. See, e.g., City of St. Louis v. Praprotnik, 485 U.S. 112,
124 (1988) (“We begin by reiterating that the identification of policymaking




811 F.3d 14, 20 (D.C. Cir. 2015) (citing dicta in Santiago and Baxter with approval when
dismissing a case because the plaintiff “never indicated the contours of any type of municipal
policy”). These off-hand, unspecific, remarks in dicta unaccompanied by analysis do not
persuade us to disregard the clear language of the Supreme Court.
        4 The plaintiff, of course, will name the entity that acted under the policy (here, the

city of Dallas) as a defendant. This level of identification is fundamental.
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                                       No. 15-10073
officials is a question of state law.”). 5 By combining Praprotnik’s holding that
the identity of the policymaker is a question of state law with Johnson’s
holding that courts should not grant motions to dismiss § 1983 cases “for
imperfect statement of the legal theory,” we see that courts should not grant
motions to dismiss for failing to plead the specific identity of the policymaker.
Johnson, 135 S. Ct. at 346. Thus, to survive a motion to dismiss, Groden
needed only to plead facts—facts which establish that the challenged policy
was promulgated or ratified by the city’s policymaker. Groden’s complaint did
not need to supply an answer to the legal question of the specific identity of the
city’s policymaker under the relevant statutory scheme. 6
       Our circuit applied this distinction between facts—which must be pled
in a complaint and, ultimately, proven to a jury—and law in a recent § 1983
case, Advanced Technology Building Solutions, LLC v. City of Jackson,
Mississippi, 2016 WL 1009754, at *5 (5th Cir. Mar. 14, 2016). In Advanced
Technology, the plaintiff alleged that the city of Jackson denied approval to a
building project that Advanced Technology wished to pursue.                       Advanced
Technology further alleged that the mayor caused this project to be denied in
retaliation for its criticism of the mayor. Advanced Technology contended that
the mayor’s act of retaliation was itself an unconstitutional policy of the city
and thus that the city was liable under § 1983. The case was tried to a jury,
which awarded Advanced Technology $600,000.



       5  Sometimes, a court can make this determination by consulting state statutes. Bolton
v. City of Dallas, Tex., 541 F.3d 545, 550 (5th Cir. 2008) (consulting the Texas Government
Code to determine the policymaker for Texas cities); Jett v. Dallas Indep. Sch. Dist., 7 F.3d
1241, 1245 (5th Cir. 1993) (consulting the Texas Educational Code to determine the
policymaker for Texas school districts). In other cases, courts may need to consult “local
ordinances and regulations.” Praprotnick, 485 U.S. at 125.
        6 Of course, plaintiffs (like defendants) can make legal arguments in their briefs to

support legal conclusions about the identity of the policymaker if that question is subject to
non-frivolous dispute.
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                                       No. 15-10073
       After the trial, however, the city moved for a judgment as a matter of
law. In considering this motion, the district court consulted state law and
concluded that the city council—and not the mayor—was the final
policymaker; consequently, Advanced Technology was not entitled to recovery
unless it showed that the city council had denied the project. Because all of
Advanced Technology’s evidence related to the mayor and none related to the
city council, the district court set aside the jury verdict in favor of the plaintiff
and entered judgment for the city.
       On appeal, Advanced Technology argued that “[b]ased on the facts
presented at trial, the jury reasonably made the conclusion that [the] Mayor []
was acting as a final policymaker.” More pointedly, Advanced Technology
advocated that the jury should determine the identity of the policymaker. We
disagreed. We held that the jury’s finding was irrelevant—the only issue was
whether Mississippi law established that the mayor was the final policymaker.
Under Mississippi law the city council is the final policymaker; thus, we
affirmed the judgment as a matter of law. Id. at *4–5 (citing Miss. Code. Ann.
§ 43-35-33).
       Advanced Technology thus makes clear that identifying the policymaker
is not the role of the jury; instead, the relevant question in Advanced
Technology was whether the plaintiff had presented enough evidence for the
jury to conclude that the statutorily authorized policymaker had promulgated
an unconstitutional policy. Analogously, the question we face today is whether
Groden has pled facts that, read in the light most favorable to Groden, show
that the statutorily authorized policymaker promulgated an unconstitutional
policy. 7


       7 As with any question of statutory interpretation, parties, on motion to dismiss a
complaint, may disagree and brief the issue for the court to determine. But failing to plead
these legal claims is not fatal to the cause of action and does not justify granting a 12(b)(6)
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                                       No. 15-10073
       To answer this question, we first turn to state law to find out just who is
the policymaker of the city of Dallas. Here, as is often the case, answering this
question is a simple matter of consulting our binding precedent: In Bolton, we
held that under Texas law, the final policymaker for the city of Dallas is the
Dallas city council. Bolton, 541 F.3d at 550 (citing Texas Local Gov’t Code Ann.
§ 25.029). Thus, to show that the city of Dallas acted unconstitutionally,
Groden must show that the city council promulgated or ratified an
unconstitutional policy. Accordingly, we now face a single question: whether
Groden pled facts that, read in the light most favorable to him, show that the
city council promulgated or ratified the challenged policy.
       We conclude that he did.             Groden alleged that the city “publicly
announced a new policy” of cracking down on vendors in Dealey Plaza and that
the city’s official “spokesman,” Vincent Golbeck, “gave media interviews
describing the new policy.” The allegation that an official city spokesperson
announced an official city policy allows for a reasonable pleading inference that
this crackdown policy was attributable to an official policy made by the
policymaker of the city (i.e., the city council). As noted above, Groden alleges
further that this crackdown policy authorized the illegal arrests of individuals
for engaging in annoying speech. Accordingly, Groden has pled sufficient facts
to suggest, for the purpose of a 12(b)(6) motion, that the city council
promulgated or ratified the crackdown policy of which he complains. 8
                                             B.
       The district court next held that Groden’s Monell claim should be



motion to dismiss.
        8 Of course, pleading a complaint sufficient to withstand a 12(b)(6) motion to dismiss

most certainly does not mean that Groden will ultimately prevail. If, for example, the city
proves that the city council did not directly or indirectly promulgate the crack-down policy,
then the city may well be entitled to summary judgment. We express no opinion on the merits
of this case in any other procedural posture.
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                                  No. 15-10073
dismissed because “Groden fail[ed] to plead a facially unconstitutional policy”
and, further, because Groden “fail[ed] to plead that the City’s ordinance was
the actual cause and ‘moving force’ behind the alleged unconstitutional actions
of the City’s police officer.” Both of these holdings, however, seem to misread
Groden’s allegations. Groden alleged that the city adopted a new policy to
“‘crack down’ on vendors in Dealey Plaza.” Groden alleges that this crackdown
policy—and not any official ordinance—was an unconstitutional policy that
was the moving force behind his unconstitutional treatment.
      According   to   Groden’s    complaint,    this   crackdown    policy   was
unconstitutional. He alleges that the crackdown policy consisted of arresting
individuals who were not committing any crimes. He further alleges that this
policy of arresting vendors without probable cause was carried out “to prevent
vendors . . . from exercising their First Amendment rights” in a way that was
annoying local businesses. To support this claim, Groden cites emails local
businesses sent to police complaining of vendors and providing descriptions,
apparently so police could target those vendors. If the city had a policy of
arresting people without probable cause in retaliation for annoying-but-
protected speech, such a policy would be unconstitutional.        See Reichle v.
Howards, 132 S. Ct. 2088, 2094 (2012). Since Groden has alleged that the city
had exactly this policy, he successfully alleged that the city had an
unconstitutional policy, and the district court erred by dismissing his
complaint on that ground.      Further, Groden has pled that Officer Gorka
arrested him based on this crackdown policy. He thus pled sufficient facts to
show that the alleged crackdown policy—not the ordinance—was the moving
force behind the city’s alleged unconstitutional arrest.
      Because none of the grounds cited by the district court support granting
the motion to dismiss, we hold that the district court erred in granting that


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                                       No. 15-10073
motion. 9
                                             IV.
       The district court identified two reasons to dismiss Groden’s complaint
against the city of Dallas. The first reason was founded on an error of law; the
other was based on an erroneous reading of Groden’s complaint. Accordingly,
we REVERSE the dismissal of Groden’s complaint against the city of Dallas
and REMAND the case to the district court for proceedings not inconsistent
with this opinion.
                                                        REVERSED and REMANDED.




       9Groden also argues that the district court erred by denying his motion for a new trial.
He contends that he suffered prejudice from the absence of the city of Dallas in his trial
against Officer Gorka. We find no error in the district court’s denial of this motion.
                                              10
