Case 3:10-cv-01280-F Document 7 Filed 07/14/10 Page 1 of 25 PageID 51

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

ROBERT GRODEN, §
Plaintiff, §
§ CIVIL ACTION NO.
v. §
§ 3:10-CV-1280-F
CITY OF DALLAS, et al. §
Defendants. §

DEFENDANT CITY OF DALLAS’ MOTION PURSUANT

TO RULE 12(b)(6) TO DISMISS PLAINTIFF’S CLAIMS

AGAINST IT, AND BRIEF IN SUPPORT

CITY ATTORNEY OF THE CITY OF DALLAS

JAMES C. BUTT
Assistant City Attorney
Texas Bar No. 24040354
james.butt@dallascityhall.com
JASON G. SCHUETTE
Executive Assistant City Attorney
Texas Bar No. 17827020
jason.schuette@dallascityhall.com
VICTORIA W. THOMAS
Assistant City Attorney
Texas Bar No. 24059913
victoria.thomas@dallascityhall.com

Dallas City Hall 7BN

1500 Marilla Street
Dallas, Texas 75201
214.670.3519
214.670.0622 – Fax

Attorneys for Defendant City of Dallas

 Case 3:10-cv-01280-F Document 7 Filed 07/14/10 Page 2 of 25 PageID 52

TABLE OF CONTENTS

TABLE OF AUTHORITIES ......................................................................................................... iii

I. SUMMARY OF MOTION..................................................................................................1

II. ARGUMENT AND AUTHORITIES REQUIRING DISMISSAL.....................................2

A. Applicable Legal Standards .....................................................................................2

1. The standard for dismissal under Rule 12(b)(6): does the

complaint state a valid claim for relief?.......................................................2

2. A complaint must state sufficient non-conclusory facts to

permit the reasonable inference that the defendant is liable ........................3

B. Groden’s Complaint Fails to Plead a Plausible Claim for Relief

Against the City Under 42 U.S.C. § 1983................................................................4

1. Municipal liability under section 1983 ........................................................4

2. Groden’s factual allegations regarding Monell liability ..............................6

C. First Amendment Is Not Applicable ........................................................................9

D. Fifth Amendment Is Not Applicable........................................................................9

E. Eighth Amendment Is Not Applicable...................................................................10

F. Groden’s Fourteenth Amendment Claim Fails as a Matter of Law.......................10

G. Groden’s Section 1985 Is Inapplicable, and Must Be Dismissed ..........................11

H. Groden Is Not Entitled To Equitable Relief ..........................................................13

III. CONCLUSION..................................................................................................................17

CERTIFICATE OF SERVICE ......................................................................................................19

Defendant City of Dallas’ Motion Pursuant to Rule 12(b)(6)

to Dismiss Plaintiff’s Claims Against It, and Brief in Support
Robert Groden v. City of Dallas, et al.; Civil Action No. 3:10-CV-1280-F ECF ii
 Case 3:10-cv-01280-F Document 7 Filed 07/14/10 Page 3 of 25 PageID 53

TABLE OF AUTHORITIES

CASES

Albright v. Oliver,
510 U.S. 266 (1994)................................................................................................................ 13

Ashcroft v. Iqbal,
129 S. Ct. (2009)....................................................................................................................... 3

Baskin v. Parker,
602 F.2d 1205 (5th Cir. 1979) .................................................................................................. 5

Bd. of Comm’rs v. Brown,

520 U.S. 397 (1997).............................................................................................................. 5, 6

Bell Atl. Corp. v. Twombly,

550 U.S. 544 (2007)...................................................................................... 3, 4, 5, 7, 8, 10, 16

Bennett v. City of Slidell,

728 F.2d 762 (5th Cir. 1984) .................................................................................................... 5

Beran v. United States,

759 F.Supp. 886 (D.D.C. 1991). ............................................................................................. 12

Blackburn v. City of Marshall,

42 F.3d 925 (5th Cir. 1995) .................................................................................................... 11

Bradt v. Smith,
634 F.2d 796 (5th Cir. 1981) ................................................................................................. 15

Brawer v. Horowitz,
535 F.2d 830 (3d Cir. 1976).............................................................................................. 14, 15

Carolina-Virginia Racing Association v. Cahoon,

214 F.2d 830 (4th Cir. 1954). ................................................................................................. 20

City of Amarillo v Griggs Southwest Mortuary, Inc.,

406 S.W.2d 230 (Tex. App.–Amarillo 1966, reh’g den.) ....................................................... 20

City of Canton v. Harris,

489 U.S. 378 (1989).................................................................................................................. 7

City of Dallas v. Harris,

157 S.W.2d 710 (Tex.App.—Dallas 1941, reh’g den.) .......................................................... 11

Defendant City of Dallas’ Motion Pursuant to Rule 12(b)(6)

to Dismiss Plaintiff’s Claims Against It, and Brief in Support
Robert Groden v. City of Dallas, et al.; Civil Action No. 3:10-CV-1280-F ECF iii
 Case 3:10-cv-01280-F Document 7 Filed 07/14/10 Page 4 of 25 PageID 54

City of La Marque v. Braskey,

216 S.W.3d 861 (Tex. App.—Houston 2007, rev. den.) ........................................................ 20

Conley v. Gibson,
355 U.S. 41 (1957).................................................................................................................... 3

Conn v. Gabbert,
526 U.S. 286 (1999)................................................................................................................ 13

County Ethics Comm. v. Garden State Bar Ass’n,

457 U.S. 423 (1982)................................................................................................................ 17

DeSpain v. Johnston,
731 F.2d 1171 (5th Cir. 1984). ............................................................................................... 18

Deville v. Marcantel,
567 F.3d 156 (5th Cir. 2009) .................................................................................................... 8

Dobbins v. Los Angeles,

195 U.S. 223, 241 (1904)........................................................................................................ 20

Estate of Davis ex rel. McCully v. City of North Richland Hills,

406 F.3d 375 (5th Cir. 2005) .................................................................................................... 7

Fernandez-Montes v. Allied Pilots Ass’n,

987 F.2d 278 (5th Cir. 1993) .................................................................................................... 3

Fraire v. City of Arlington,

957 F.3d 1267 (5th Cir. 1992) ................................................................................................ 10

Griffin v. Breckenridge,
403 U.S. 88 (1971).................................................................................................................. 15

Hicks v. Miranda,
422 U.S. 332 (1975)................................................................................................................ 18

Hilliard v. Ferguson,
30 F.3d 649 (5th Cir. 1994) .................................................................................................... 15

In re Katrina Canal Breaches Litig.,

495 F.3d 191 (5th Cir. 2007) .................................................................................................... 2

Ingraham v. Wright,
430 U.S. 651 (1977)................................................................................................................ 12

Jackson v. Procunier,
789 F.2d 307 (5th Cir. 1986) .................................................................................................... 2

Defendant City of Dallas’ Motion Pursuant to Rule 12(b)(6)

to Dismiss Plaintiff’s Claims Against It, and Brief in Support
Robert Groden v. City of Dallas, et al.; Civil Action No. 3:10-CV-1280-F ECF iv
 Case 3:10-cv-01280-F Document 7 Filed 07/14/10 Page 5 of 25 PageID 55

Jones v. City of Jackson,

203 F.3d 875 (5th Cir. 2000) .................................................................................................. 12

Jones v. City of Jackson,

203 F.3d 875 (5th Cir. 2000) .................................................................................................. 12

Kaiser Alum. & Chem. Sales, Inc. v. Avondale Shipyards, Inc.,

677 F.2d 1045 (5th Cir. 1982) .................................................................................................. 3

Leatherman v. Tarrant County Narcotics Intel. & Coord. Unit,

507 U.S. 163 (1993)................................................................................................................ 10

Louisiana Debating & Literary Ass’n v. City of New Orleans,

42 F.3d 1483 (5th Cir. 1995) .................................................................................................. 17

Martin K. Eby Constr. Co. v. Dallas Area Rapid Transit,

369 F.3d 464 (5th Cir. 2004) .................................................................................................... 2

Monell v. Dep’t of Soc. Servs.,

436 U.S. 658 (1978).............................................................................................................. 1, 9

Morin v. Caire,
77 F.3d 116 (5th Cir. 1996) ...................................................................................................... 2

Moss & Co. v. McCarthy,

191 F. 202 (C.C.N.D. Cal. 1911) ............................................................................................ 16

Parratt v. Taylor,
451 U.S. 527 (1981)................................................................................................................ 13

Samuels v. Mackell,
401 U.S.66 (1971)................................................................................................................... 17

Slavin v. Curry,
574 F.2d 1256 (5th Cir.), modified, 583 F.2d 779 (5th Cir. 1978) (reh. en banc den.) .......... 15

Smith v. Brenoettsy,
158 F.3d 908 (5th Cir. 1998) .................................................................................................... 7

Spiller v. City of Texas City,

130 F.3d 162 (5th Cir. 1997) .............................................................................................. 9, 10

Thomas and Windy City Hemp Dev. Bd. v. Chicago Park Dist.,
534 U.S. 316 (2002)................................................................................................................ 11

United States v. Lanier,

520 U.S. 259 (1997)................................................................................................................ 13

Defendant City of Dallas’ Motion Pursuant to Rule 12(b)(6)

to Dismiss Plaintiff’s Claims Against It, and Brief in Support
Robert Groden v. City of Dallas, et al.; Civil Action No. 3:10-CV-1280-F ECF v
 Case 3:10-cv-01280-F Document 7 Filed 07/14/10 Page 6 of 25 PageID 56

Washington v. United States Dep’t of Hous. & Urban Dev.,

953 F. Supp. 762 (N.D. Tex. 1996) .......................................................................................... 2

Younger v. Harris,
401 U.S. 37 (1971).................................................................................................................. 16

STATUTES

42 U.S.C. § 1983..................................................................................................... 1, 4, 5, 9, 10, 11

42 U.S.C. § 1985......................................................................................................................... 1, 2

RULES

Fed. R. Civ. P. 1.............................................................................................................................. 3

Fed. R. Civ. P. 12(b)(6)........................................................................................................... 1, 2, 9

Fed. R. Civ. P. 8(a)(2)................................................................................................................. 4, 9

Defendant City of Dallas’ Motion Pursuant to Rule 12(b)(6)

to Dismiss Plaintiff’s Claims Against It, and Brief in Support
Robert Groden v. City of Dallas, et al.; Civil Action No. 3:10-CV-1280-F ECF vi
 Case 3:10-cv-01280-F Document 7 Filed 07/14/10 Page 7 of 25 PageID 57

TO THE HONORABLE COURT:

Defendant City of Dallas (“City”), pursuant to Rule 12(b)(6) of the Federal Rules of Civil

Procedure, files its motion to dismiss all claims alleged against the City in Plaintiff’s Original

Complaint (“Complaint”) (Doc. #1).

I. SUMMARY OF MOTION

Plaintiff, Robert Groden (“Groden”), alleges claims against the City pursuant to 42

U.S.C. §§ 1983 and 1985 arising from two encounters between Groden and Dallas police

officers, Sergeant Frank Gorka (“Gorka”) and Senior Corporal Rodney Nevils (“Nevils”)

(collectively, the “Officers”), on or about June 13, 2010 and June 19, 2010.1 Groden alleges that

Gorka and Nevils violated his First, Fourth, Fifth, Eighth, and Fourteenth Amendment rights and

falsely imprisoned and maliciously prosecuted him. Groden alleges that the City is liable under

sections 1983 and 1985. Groden seeks general, special, and punitive damages, attorney’s fees,

and costs.

The City is entitled to dismissal of Groden’s claims against it because the Complaint fails

to plead facts comprising even a formulaic recitation of the elements of a municipal liability

claim under section 1983 and Monell v. Department of Social Services.2 Groden’s well-pleaded

factual allegations do not permit this Court to draw a reasonable inference that the City is liable

for Gorka’s alleged wrongdoing.3 Because Groden’s allegations as to the City are purely

conclusory assertions of misconduct and liability devoid of factual enhancement, and are at best

“merely consistent with” municipal liability, Groden fails to state a plausible claim against the

City under section 1983. Finally, Groden fails to state a plausible claim against the City under

1
Nevils was dismissed by stipulation on 13 July 2010; see doc. #5.
2
Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978) (holding that municipalities are “persons” subject to suit and
liability under 42 U.S.C. § 1983).
3
Groden has agreed to dismiss Nevils from this lawsuit due to Nevils’ lack of involvement.

Defendant City of Dallas’ Motion Pursuant to Rule 12(b)(6)

to Dismiss Plaintiff’s Claims Against It, and Brief in Support
Robert Groden v. City of Dallas, et al.; Civil Action No. 3:10-CV-1280-F Page 1
 Case 3:10-cv-01280-F Document 7 Filed 07/14/10 Page 8 of 25 PageID 58

section 1985 because he alleges no facts asserting a conspiracy. Therefore, the City is entitled to

dismissal of Groden’s claims against it.

II. ARGUMENT AND AUTHORITIES REQUIRING DISMISSAL

A. Applicable Legal Standards

1. The standard for dismissal under Rule 12(b)(6): does the complaint
state a valid claim for relief?

Rule 12(b)(6) provides for dismissal of a claim if the complaint fails to state a claim upon

which relief can be granted.4 A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency

of the claims stated in the complaint, and such a motion must be evaluated solely on the basis of

the pleadings.5 There are two primary considerations for a court’s analysis of the propriety of a

motion to dismiss under Rule 12(b)(6). First, the allegations contained in the complaint are to be

construed in the plaintiff’s favor and all well-pleaded facts are to be accepted as true.6 However,

conclusory statements in a complaint are not to be accorded a presumption of truth.7 Therefore,

conclusory allegations and legal conclusions masquerading as factual assertions are not adequate

to prevent dismissal for failure to state a claim.8

Second, the Supreme Court held in Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007), that

the factual allegations in a complaint must be enough to raise a right to relief above the

speculative level on the assumption that all of the allegations are true.9 That is, it is no longer

sufficient that relief could be granted under some theoretical set of facts consistent with a

4
Fed. R. Civ. P. 12(b)(6); see also Washington v. United States Dep’t of Hous. & Urban Dev., 953 F. Supp. 762,
768 (N.D. Tex. 1996).
5
Jackson v. Procunier, 789 F.2d 307, 309 (5th Cir. 1986); see also Morin v. Caire, 77 F.3d 116, 120 (5th Cir. 1996).
6
In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007 (quoting Martin K. Eby Constr. Co. v.
Dallas Area Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004)).
7
Kaiser Alum. & Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1050 (5th Cir. 1982); Washington,
953 F. Supp at 768.
8
Fernandez-Montes v. Allied Pilots Ass’n, 987 F.2d 278, 284 (5th Cir. 1993).
9
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (abrogating Conley v. Gibson, 355 U.S. 41 (1957)).

Defendant City of Dallas’ Motion Pursuant to Rule 12(b)(6)

to Dismiss Plaintiff’s Claims Against It, and Brief in Support
Robert Groden v. City of Dallas, et al.; Civil Action No. 3:10-CV-1280-F Page 2
 Case 3:10-cv-01280-F Document 7 Filed 07/14/10 Page 9 of 25 PageID 59

complaint’s allegations, which was the familiar standard the Supreme Court established in

Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Rather, under Twombly, plaintiffs must “nudge[]

their claims across the line from conceivable to plausible.”10 Therefore, to survive a motion to

dismiss made pursuant to Rule 12, a complaint must contain sufficient factual matter, accepted as

true, to “state a claim for relief that is plausible on its face.”11

2. A complaint must state sufficient non-conclusory facts to permit the

reasonable inference that the defendant is liable

The Supreme Court clarified the scope and application of Twombly in Ashcroft v. Iqbal,

129 S. Ct. 1937 (2009). Iqbal makes clear that the Twombly decision was based upon the

Supreme Court’s interpretation and application of Rule 8, which “governs the pleading standard

‘in all civil actions and proceedings in the United States district courts.’”12 Therefore,

Twombly’s (and Iqbal’s) requirements apply to Groden’s allegations against the City.

The legal foundation of this motion is set out in section IV-A of the opinion of the Court

in Iqbal. In summary, Iqbal held that the following standards apply when evaluating the

sufficiency of any federal complaint:

• The Rule 8 pleading standard “demands more than an unadorned, the-defendant-

unlawfully-harmed-me accusation.”13

• A complaint must be plausible on its face. “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.”14

• “A pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the

elements of a cause of action will not do.’”15

10
Twombly, 550 U.S. at 570.
11
Twombly, 550 U.S. at 570.
12
Iqbal, 129 S. Ct. at 1953 (citing Twombly, 550 U.S. at 554 (applying Fed. R. Civ. P. 1)).
13
Iqbal, 129 S. Ct. at 1949 (citing Twombly, 550 U.S. at 555).
14
Iqbal, 129 S. Ct. at 1949 (citing Twombly, 550 U.S. at 556).
15
Iqbal, 129 S. Ct. at 1949 (citing Twombly, 550 U.S. at 555).

Defendant City of Dallas’ Motion Pursuant to Rule 12(b)(6)

to Dismiss Plaintiff’s Claims Against It, and Brief in Support
Robert Groden v. City of Dallas, et al.; Civil Action No. 3:10-CV-1280-F Page 3
 Case 3:10-cv-01280-F Document 7 Filed 07/14/10 Page 10 of 25 PageID 60

• A complaint is insufficient if it merely tenders “‘naked assertion[s]’ devoid of ‘further

factual enhancement.’”16

The Iqbal Court stated that its decision in Twombly was supported by two principles, from which

the foregoing standards were derived. “First, the tenet that a court must accept as true all of the

allegations contained in a complaint is inapplicable to legal conclusions.”17 Thus, and critically,

“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory state-

ments, do not suffice.”18 Second, “where the well-pleaded facts do not permit the court to infer

more than the mere possibility of misconduct, the complaint has alleged - but it has not

‘show[n]’ - ‘that the pleader is entitled to relief.’”19 Thus, Iqbal directs that a court considering a

motion to dismiss “can choose to begin by identifying pleadings that, because they are no more

than conclusions, are not entitled to the assumption of truth.”20 Such conclusions are not “well-

pleaded” factual allegations, and do not plausibly give rise to an entitlement to relief.

B. Groden’s Complaint Fails to Plead a Plausible Claim for Relief Against

the City Under 42 U.S.C. § 1983

1. Municipal liability under section 1983

A plethora of cases have expounded upon the standards for imposing liability on a

municipality under section 1983. It is well-settled that a municipality cannot be liable under a

theory of respondeat superior,21 and isolated unconstitutional actions by municipal employees

will almost never trigger municipal liability.22 Rather, and as the Fifth Circuit emphasized in

16
Iqbal, 129 S. Ct. at 1949 (citing Twombly, 550 U.S. at 557).
17
Iqbal, 129 S. Ct. at 1949.
18
Iqbal, 129 S. Ct. at 1949 (citing Twombly, 550 U.S. at 555).
19
Iqbal, 129 S. Ct. at 1950 (applying Fed. R. Civ. P. 8(a)(2) (requiring “ a short and plain statement of the claim
showing the pleader is entitled to relief[.]”)).
20
Iqbal, 129 S. Ct. at 1950.
21
Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th Cir. 2001) (citing Bd. of Comm’rs v. Brown, 520 U.S. 397,
403 (1997)); see also Baskin v. Parker, 602 F.2d 1205, 1208 (5th Cir. 1979).
22
Piotrowski, 237 F.3d at 578 (citing Bennett v. City of Slidell, 728 F.2d 762, 768 n.3 (5th Cir. 1984)).

Defendant City of Dallas’ Motion Pursuant to Rule 12(b)(6)

to Dismiss Plaintiff’s Claims Against It, and Brief in Support
Robert Groden v. City of Dallas, et al.; Civil Action No. 3:10-CV-1280-F Page 4
 Case 3:10-cv-01280-F Document 7 Filed 07/14/10 Page 11 of 25 PageID 61

Piotrowski v. City of Houston, 237 F.3d 567 (5th Cir. 2001), to hold the City liable under section

1983 a plaintiff must establish that an “official policy” of the municipality – not the policy of an

individual city official – was the “moving force” and actual cause of the loss of constitutional

rights and any resultant harm.23

The Fifth Circuit reiterated in Piotrowski that, while official policy “is ordinarily

contained in duly promulgated policy statements, ordinances, or regulations,” it may arise from a

custom, previously defined by the Fifth Circuit in Webster v. City of Houston as

a persistent, widespread practice of City officials or employees, which,

although not authorized by officially adopted and promulgated policy, is
so common and well-settled as to constitute a custom that fairly represents
municipal policy.24

However, it is not sufficient that a plaintiff simply offer the raw assertion that there was a custom

having the force of municipal policy. Piotrowski requires the plaintiff to specifically identify the

official policy (custom) that is alleged to have caused the constitutional harm:

It follows that that each and any policy which allegedly caused constitu-
tional violations must be specifically identified by a plaintiff, and it must
be determined whether each one is facially constitutional or
unconstitutional. 25

However, Groden does not specifically identify any facially unconstitutional City “policy” (as

defined by Webster) as the moving force and actual cause of his alleged injuries.

Absent a facially unconstitutional policy or custom, municipal liability under section

1983 can only arise from a custom having the force of official policy if the municipal policy-

makers were deliberately indifferent to the “‘known or obvious consequences’ that constitutional

23
Piotrowski, 237 F.3d at 578.
24
Piotrowski, 237 F.3d at 579 (citing Webster v. City of Houston, 735 F.2d 838, 841 (5th Cir. 1984); Brown, 520
U.S. at 405-07).
25
Piotrowski, 237 F.3d at 579-80.

Defendant City of Dallas’ Motion Pursuant to Rule 12(b)(6)

to Dismiss Plaintiff’s Claims Against It, and Brief in Support
Robert Groden v. City of Dallas, et al.; Civil Action No. 3:10-CV-1280-F Page 5
 Case 3:10-cv-01280-F Document 7 Filed 07/14/10 Page 12 of 25 PageID 62

violations would result” from the custom.26 Countless Fifth Circuit decisions have explained that

deliberate indifference imposes a strict standard of fault. For example, in Estate of Davis ex rel.

McCully v. City of North Richland Hills, 406 F.3d 375 (5th Cir. 2005), the Fifth Circuit stated

that “[f]or an official to act with deliberate indifference, the official must both be aware of facts

from which the inference could be drawn that a substantial risk of serious harm exists, and he

must also draw the inference.”27 Thus, a sufficient complaint must provide adequate “factual

content” to make deliberate indifference by the City’s official policymakers not merely conceiv-

able, but plausible in the context of the facts alleged.28

In a similar vein, the Supreme Court held in City of Canton v. Harris, 489 U.S. 378

(1989), that a Monell claim based upon a “policy” of inadequate police training requires proof of

“deliberate indifference” to the rights of persons with whom the police will come into contact.29

Likewise, a claim based upon a municipality’s failure to supervise or discipline its police officers

requires the same showing of deliberate indifference to the constitutional rights of citizens.30 In

order to plead a Monell claims are based upon alleged customs and deficient training and

supervision, Groden must plead facts supporting deliberate indifference by the City’s final

policymakers to a specific inadequacy in the City’s supervision or training of its officers.

Groden has failed to plead such facts.

2. Groden’s factual allegations regarding Monell liability

Groden pleads his assertions regarding the City’s alleged liability as in paragraph 29 of

26
Piotrowski, 237 F.3d at 579.
27
Estate of Davis, 406 F.3d at 381 (citing Smith v. Brenoettsy, 158 F.3d 908, 912 (5th Cir. 1998) (internal quotation
marks and citations omitted).
28
See Iqbal, 129 S. Ct. at 1949 (citing Twombly, 550 U.S. at 556) (“A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.”).
29
Canton, 489 U.S. at 388.
30
Deville v. Marcantel, 567 F.3d 156, 171 (5th Cir. 2009) (citing Piotrowski, 237 F.3d at 581).

Defendant City of Dallas’ Motion Pursuant to Rule 12(b)(6)

to Dismiss Plaintiff’s Claims Against It, and Brief in Support
Robert Groden v. City of Dallas, et al.; Civil Action No. 3:10-CV-1280-F Page 6
 Case 3:10-cv-01280-F Document 7 Filed 07/14/10 Page 13 of 25 PageID 63

his Complaint.

The actions of the City of Dallas, through their actions of the Dallas Police
Department and their officers, have denied plaintiff his First Amendment
freedom of speech, prevented his lawful and peaceable assembly in a
public place, violated Plaintiff’s rights under the Fourteenth Amendment
to not be deprived of liberty, as well as Plaintiff’s Due Process Rights in
arresting Plaintiff based on either no applicable ordinance or based on
unenforceable ordinances that are unconstitutionally vague.

Clearly, Groden’s allegations fall squarely within that class of conclusory allegations

described by the Supreme Court in Twombly and Iqbal as “‘naked assertion[s]’ devoid of ‘further

factual enhancement.’”31

Twombly and Iqbal require far more than the sparse, conclusory, buzz-word laden

allegations Groden pleads. Groden fails to plead any factual content that would support his

generalized assertions and conclusions.

Moreover, even assuming, arguendo, that Groden has adequately pleaded the existence of

an unconstitutional City custom or policy – though what facts support such a contention that a

custom or policy exists remains a mystery – Groden pleads no facts that would permit the

conclusion that the unidentified custom/policy was the moving force behind the Officers’ alleged

misconduct. Groden pleads no facts to render it plausible that a policy promulgated or condoned

by the City was the “moving force” and actual cause of the Officers’ alleged misconduct. In

Monell, the Supreme Court held that, in addition to culpability, there must be a direct causal link

between the municipal policy and the constitutional deprivation.32 But here, Groden pleads no

facts that render it plausible that the City’s official policies were the cause-in-fact of the

Officers’ alleged misconduct and Groden’s alleged injuries.

Further still, Groden pleads no facts that would reasonably permit the conclusion that

31
Iqbal, 129 S. Ct. at 1949 (citing Twombly, 550 U.S. at 557).
32
Monell, 436 U.S. at 694.

Defendant City of Dallas’ Motion Pursuant to Rule 12(b)(6)

to Dismiss Plaintiff’s Claims Against It, and Brief in Support
Robert Groden v. City of Dallas, et al.; Civil Action No. 3:10-CV-1280-F Page 7
 Case 3:10-cv-01280-F Document 7 Filed 07/14/10 Page 14 of 25 PageID 64

there was deliberate indifference on the part of the City’s final policymaker. Groden fails to

plead circumstances that would, if true, make it plausible that the City’s policymakers were both

“aware of facts from which the inference could be drawn that a substantial risk of serious harm

exists,” and that the City’s policymakers drew the inference. Groden fails to plead any facts to

permit a conclusion that the City’s final policymakers were subjectively aware of any alleged

deficiencies in DPD enforcement of City ordinances such that there was an appreciable risk of

the harms that Groden alleges, or that those policymakers failed to take remedial action once

they became aware of a specific risk of harm.

It bears repeating that Groden’s pleading is insufficient to state a valid Monell claim.

Groden does not specify the offending City policies or customs. In Spiller v. City of Texas City,

130 F.3d 162 (5th Cir. 1997), the Fifth Circuit stated that “[t]he description of a policy or custom

and its relationship to the underlying constitutional violation, moreover, cannot be conclusory; it

must contain specific facts.”33 The Spiller court held that Spiller’s non-descript and conclusory

policy allegations were insufficient to state a claim:

[Spiller’s] assertion that Texas City is liable because “Spurgeon was

acting in compliance with the municipality's customs, practices or
procedures” is insufficient because it is conclusory. Equally deficient are
her allegations regarding the liability of the Texas City Police Department.
To begin with, Spiller fails to allege that the three departmental policies
she identifies were causally connected to Spurgeon's misconduct. Instead,
she merely asserts that these three policies have “led to” unspecified
“unconstitutional arrests and confinements.” In addition, the first depart-
mental policy she identifies-“indiscriminately requesting identification of
citizens”–is not implicated by the circumstances of her arrest. Further, her
allegation that the department also “operate[s] in a manner of total
disregard for the rights of African American citizens” is insufficient
because it is conclusory. Finally, her contention that the department has a

33
Spiller, 130 F.3d at 167 (citing Fraire v. City of Arlington, 957 F.3d 1267, 1277 (5th Cir. 1992) (requiring section
1983 plaintiffs to plead “specific facts, not merely conclusory allegations”)).

Defendant City of Dallas’ Motion Pursuant to Rule 12(b)(6)

to Dismiss Plaintiff’s Claims Against It, and Brief in Support
Robert Groden v. City of Dallas, et al.; Civil Action No. 3:10-CV-1280-F Page 8
 Case 3:10-cv-01280-F Document 7 Filed 07/14/10 Page 15 of 25 PageID 65

third policy of “engag[ing] in conduct toward African American citizens

without regard to probable cause to arrest” is both vague and conclusory.34

In candor, Spiller was decided at a time when the Fifth Circuit applied “heightened pleading” to

municipal liability claims. The Supreme Court held in Leatherman v. Tarrant County Narcotics

Intel. & Coord. Unit, 507 U.S. 163 (1993), that the Fifth Circuit’s application of heightened

pleading to section 1983 claims against municipalities could not be reconciled with the “liberal

system of notice pleading set up by the Federal Rules.”35 Nonetheless, the Supreme Court’s

more recent holdings in Twombly and Iqbal make clear that a complaint must, at the least, plead

sufficient factual matter to make a claim plausible. Because Groden’s Complaint fails to do so, it

is insufficient under Rule 12(b)(6), and the City is entitled to dismissal.

C. First Amendment Is Not Applicable

Groden alleges deprivation of rights under the First Amendment. A City may prevent its

parks and common places from being used by any citizen or class of citizens for conducting any

kind of commercial activity. City of Dallas v. Harris, 157 S.W.2d 710 (Tex.App.—Dallas 1941,

reh’g den.). The City’s content-neutral prohibition of sale of merchandise at Dealey Plaza is a

permissible restriction of commercial activity. See Thomas and Windy City Hemp Dev. Bd. v.

Chicago Park Dist., 534 U.S. 316 (2002). As in Thomas, the ordinance here is content neutral.

Indeed, the ordinance is not directed at communicative activities, but vending activities, and has

nothing to do with the content of speech. That is, the City’s regulation of vending on the

premises of Dealey Plaza is simply a content-neutral time, place, and manner restriction.

D. Fifth Amendment Is Not Applicable

Groden alleges deprivation of rights under the Fifth Amendment of the United States

34
Spiller, 130 F.3d at 167.
35
Leatherman, 507 U.S. at 168 (citing Fed. R. Civ. P. 8(a)(2)).

Defendant City of Dallas’ Motion Pursuant to Rule 12(b)(6)

to Dismiss Plaintiff’s Claims Against It, and Brief in Support
Robert Groden v. City of Dallas, et al.; Civil Action No. 3:10-CV-1280-F Page 9
 Case 3:10-cv-01280-F Document 7 Filed 07/14/10 Page 16 of 25 PageID 66

Constitution. The Fifth Amendment applies only to violations of constitutional rights by the

United States or a federal actor. Jones v. City of Jackson, 203 F.3d 875, 880 (5th Cir. 2000). See

also Blackburn v. City of Marshall, 42 F.3d 925, 930 (5th Cir. 1995).

E. Eighth Amendment Is Not Applicable

It is well-settled that the prohibition against cruel and unusual punishment afforded by

the Eighth Amendment applies only to convicted persons. Ingraham v. Wright, 430 U.S. 651,

671 n.40 (1977). Groden does not plead that he was wrongfully convicted. Secondly, where, as

here, Groden challenges the fact of his post-arrest/ pretrial detention and not the conditions of his

confinement, no claim lies under the Eighth Amendment. In Jones v. City of Jackson, 203 F.3d

875 (5th Cir. 2000), the Fifth Circuit held that, where a plaintiff challenges the fact of his

incarceration, rather than the conditions of his confinement, no claim is stated under the Eighth

Amendment as a matter of law.36 Here, Groden’s claims clearly relate to the fact of his arrest,

not the conditions of his confinement.

F. Groden’s Fourteenth Amendment Claim Fails as a Matter of Law

Groden generally alleges that he was deprived of his Fourteenth Amendment rights. (See

Complaint at 8, paragraph 29.) To the extent that Groden has successfully pleaded a viable claim

for relief under section 1983 (which is denied for the reasons discussed above), Groden

nonetheless fails to state a claim upon which relief can be granted under the Fourteenth

Amendment as a matter of law, and that claim must be dismissed.

Groden’s Fourteenth Amendment claim fails because the Fourth Amendment is the

textual source of constitutional protection from unreasonable searches and seizures. In Conn v.

Gabbert, 526 U.S. 286 (1999), the Supreme Court held that “challenges to the reasonableness of

36
Jones, 203 F.3d at 880.

Defendant City of Dallas’ Motion Pursuant to Rule 12(b)(6)

to Dismiss Plaintiff’s Claims Against It, and Brief in Support
Robert Groden v. City of Dallas, et al.; Civil Action No. 3:10-CV-1280-F Page 10
 Case 3:10-cv-01280-F Document 7 Filed 07/14/10 Page 17 of 25 PageID 67

a search by government agents clearly fall under the Fourth Amendment, not the Fourteenth.”37

In Albright v. Oliver, 510 U.S. 266 (1994), the Supreme Court held that “it is the Fourth

Amendment, not substantive due process,” that addresses claims arising from a pretrial

deprivation of liberty.”38 And, finally, in United States v. Lanier, 520 U.S. 259 (1997), the

Supreme Court reiterated that a substantive due process claim may not be maintained when a

specific constitutional provision (here, the Fourth Amendment) protects the right allegedly

violated.39 Here these rights are the right to liberty and the right not to be subjected to

unreasonable searches. Both fall squarely within the scope of the Fourth Amendment.

To the extent that Groden attempts to assert a procedural due process claim under the

Fourteenth Amendment, that path is foreclosed by Parratt v. Taylor, 451 U.S. 527 (1981). In

Parratt, the Supreme Court held that, where state law provides an adequate post-deprivation

remedy, a plaintiff is barred from claiming, through section 1983, a procedural due process

violation. Texas provides an adequate post-deprivation remedy for wrongful seizure (arrest) in

the form of a claim for false arrest or imprisonment, and a remedy for a knowingly wrongful

prosecution in the form of a claim for malicious prosecution. For all of these reasons, the Court

should dismiss Groden’s Fourteenth Amendment claim.

G. Groden’s Section 1985 Is Inapplicable, and Must Be Dismissed

42 U.S.C. § 1985(2) provides:

If two or more persons in any State or Territory conspire to deter, by force,

intimidation, or threat, any party or witness in any court of the United
States from attending such court, or from testifying to any matter pending
therein, freely, fully, and truthfully, or to injure such party or witness in
his person or property on account of his having so attended or testified, or
to influence the verdict, presentment, or indictment of any grand or petit

37
Conn, 526 U.S. at 292.
38
Albright, 510 U.S. at 271.
39
Lanier, 520 U.S. at 272 n.7.

Defendant City of Dallas’ Motion Pursuant to Rule 12(b)(6)

to Dismiss Plaintiff’s Claims Against It, and Brief in Support
Robert Groden v. City of Dallas, et al.; Civil Action No. 3:10-CV-1280-F Page 11
 Case 3:10-cv-01280-F Document 7 Filed 07/14/10 Page 18 of 25 PageID 68

juror in any such court, or to injure such juror in his person or property on
account of any verdict, presentment, or indictment lawfully assented to by
him, or of his being or having been such juror; or if two or more persons
conspire for the purpose of impeding, hindering, obstructing, or defeating,
in any manner, the due course of justice in any State or Territory, with
intent to deny to any citizen the equal protection of the laws, or to injure
him or his property for lawfully enforcing, or attempting to enforce, the
right of any person, or class of persons, to the equal protection of the laws
....

Two broad categories of conspiracies are described in section 1985(2).40 The first four clauses of

section 1985(2) describe conspiracies designed to obstruct the course of justice in the federal

judicial system.41 The last two clauses of section 1985(2) describe conspiracies designed to

interfere with the equal protection of the laws.42

Groden’s section 1985 claim fails as a matter of law because a corporate entity, such as a

city, and its employees constitute “a single legal entity which is incapable of conspiring with

itself.”43 Because Groden’s conspiracy allegation is that the City’s police officers conspired

among themselves (or with other unnamed City employees), this claims must fail.

Because the first four clauses of section 1985(2) refer to conspiracies that are designed to

obstruct the course of justice “in any court of the United States,” a plaintiff seeking to recover

under those clauses must show a nexus between the alleged conspiracy and a proceeding in

federal court.44 Because the last two clauses of section 1985(2) refer to conspiracies designed to

deny or interfere with equal protection rights, a plaintiff seeking to recover under those clauses

must show a racial or otherwise class-based discriminatory animus.45 In Griffin v. Breckenridge,

40
Brawer v. Horowitz, 535 F.2d 830, 839-40 (3d Cir. 1976).
41
Brawer, 535 F.2d at 839-40.
42
Brawer, 535 F.2d at 839-40.
43
Hilliard v. Ferguson, 30 F.3d 649, 653 (5th Cir. 1994).
44
Brawer, 535 F.2d at 840.
45
Slavin v. Curry, 574 F.2d 1256, 1262 (5th Cir.), modified, 583 F.2d 779 (5th Cir. 1978) (reh. en banc den.);
Brawer, 535 F.2d at 840.

Defendant City of Dallas’ Motion Pursuant to Rule 12(b)(6)

to Dismiss Plaintiff’s Claims Against It, and Brief in Support
Robert Groden v. City of Dallas, et al.; Civil Action No. 3:10-CV-1280-F Page 12
 Case 3:10-cv-01280-F Document 7 Filed 07/14/10 Page 19 of 25 PageID 69

403 U.S. 88 (1971), the Supreme Court interpreted the intent to deprive one of “equal protection

of the laws” under section 1985 to mean that some racial or other class-based discriminatory

animus must deprive the conspirators’ actions. The Fifth Circuit has applied the Griffin rationale

to claims under 1985(2), as that part of the statute also refers to equal protection of laws.46

Groden’s complaint fails to allege a viable claim under any clause of section 1985(2).

Groden alleges no nexus whatsoever between the alleged conspiracy and any federal proceeding.

Nor does Groden’s complaint allege, or plead any facts sufficient to suggest, a racial or class-

based invidiously discriminatory animus behind the actions of which he complains. In fact, there

is no evidence that Groden was subjected to racial discrimination by any of the officers or the

City of Dallas. While the Court must accept Groden’s factual allegations as true, Groden must

plead “enough facts to state a claim to relief that is plausible on its face.”47 Groden has failed to

do so.

H. Groden Is Not Entitled To Equitable Relief

Federal courts have long recognized the limited office and jurisdiction of a court of

equity. It has no jurisdiction over the prosecution, the punishment, or the pardon of crimes or

misdemeanors or over the appointment or removal of public officers. Moss & Co. v. McCarthy,

191 F. 202, 204 (C.C.N.D. Cal. 1911). The Supreme Court held in Younger v. Harris, 401 U.S.

37 (1971), that a federal court may not enjoin a pending state criminal proceeding unless there is

a threat of great and immediate irreparable injury. The Court wrote that abstention was

necessary in the interest of ‘comity,’ that is, a proper respect for state functions, a recognition of

the fact that the entire country is made up of a Union of separate state governments, and a

continuance of the belief that the National Government will fare best if the States and their

46
See, i.e., Bradt v. Smith, 634 F.2d 796 (5th Cir. 1981).
47
Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007).

Defendant City of Dallas’ Motion Pursuant to Rule 12(b)(6)

to Dismiss Plaintiff’s Claims Against It, and Brief in Support
Robert Groden v. City of Dallas, et al.; Civil Action No. 3:10-CV-1280-F Page 13
 Case 3:10-cv-01280-F Document 7 Filed 07/14/10 Page 20 of 25 PageID 70

institutions are left free to perform their separate functions in their separate ways. This, perhaps

for lack of a better and clearer way to describe it, is referred to by many as ‘Our Federalism’ . . . .

What the concept does represent is a system in which there is sensitivity to the legitimate

interests of both State and National Governments, and in which the National Government,

anxious though it may be to vindicate and protect federal rights and federal interests, always

endeavors to do so in ways that will not unduly interfere with the legitimate activities of the

States. Id. at 44. In Younger the Court quoted Fenner v. Boykin for the proposition that any

federal claim should be urged as a defense in state court “unless it plainly appears that this

course would not afford adequate protection.” Id. at 45 (quoting 271 U.S. 240, 244 (1926)). In a

companion case, Samuels v. Mackell, 401 U.S.66 (1971), the Court recognized that the Younger

prohibition applies also to intervention by way of declaratory relief. Abstention under Younger

“is generally deemed appropriate [when] assumption of jurisdiction by a federal court would

interfere with pending state proceedings, whether of a criminal, civil, or even administrative

character.” Word of Faith World Outreach Center Church, Inc. v. Morales, 986 F.2d 962, 966

(5th Cir.), cert. denied, 510 U.S. 823 (1993) (citations omitted).

In considering whether Younger abstention applies, then, this Court

must answer three relevant questions: (1) whether the state

proceedings “constitute an ongoing state judicial proceeding;” (2)
whether the proceedings “implicate important state interests:” and
(3) whether there is “an adequate opportunity in the state
proceedings to raise constitutional challenges.”

La. Debating & Literary Ass’n v. City of New Orleans, 42 F.3d 1483, 1490 (5th Cir. 1995)

(quoting County Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 432 (1982)). All three

of these conditions are met in this case.

Defendant City of Dallas’ Motion Pursuant to Rule 12(b)(6)

to Dismiss Plaintiff’s Claims Against It, and Brief in Support
Robert Groden v. City of Dallas, et al.; Civil Action No. 3:10-CV-1280-F Page 14
 Case 3:10-cv-01280-F Document 7 Filed 07/14/10 Page 21 of 25 PageID 71

First, the municipal court prosecution is a “judicial proceeding” and furthermore is

“ongoing.” The test for whether a state judicial proceeding is “ongoing” so as to invoke the

Younger doctrine is not whether the state proceeding was commenced before the federal case

was filed but rather whether the state proceeding was commenced “before any proceedings of

substance on the merits have taken place in the federal court.” Hicks v. Miranda, 422 U.S. 332,

349 (1975). Because there have been no proceedings on the merits of this case, the criminal

prosecution in municipal court is “ongoing.”

Second, the City has an important interest in enforcing its ordinances regarding

commercial activity in its parks through criminal prosecution without interference by the federal

courts. Here, the City is prosecuting Groden for violation of the very ordinance he is challenging

in this case. In the criminal prosecution the City is acting in the furtherance of its important

interest in regulating commercial activities in its public parks. The Fifth Circuit relied on

Younger in DeSpain v. Johnston, 731 F.2d 1171, 1176 (5th Cir. 1984).

The state has a strong interest in enforcing its criminal laws. If the
only risk to the state defendant’s federal rights is one that can be
eliminated by the defense to a single criminal prosecution, the
balance tips heavily in favor of the state government and its
interest in enforcing its criminal laws. The Younger doctrine
establishes a presumption that the federal courts should abstain in
cases in which a state criminal proceeding is pending.

DeSpain at 1176 (5th Cir. 1984) (citation omitted; citing Younger, 401 U.S. at 47). Based upon

the fact that Groden is attempting to raise issues concerning the validity of his potential future

conviction, the proceeding clearly implicates important state interests.

Third, the state forum affords Groden an adequate opportunity to raise his federal law

issues. Chapter 45 of the Code of Criminal Procedure sets out the procedure for cases alleging

violations of municipal ordinances and states that one objective of that chapter is “to provide fair

Defendant City of Dallas’ Motion Pursuant to Rule 12(b)(6)

to Dismiss Plaintiff’s Claims Against It, and Brief in Support
Robert Groden v. City of Dallas, et al.; Civil Action No. 3:10-CV-1280-F Page 15
 Case 3:10-cv-01280-F Document 7 Filed 07/14/10 Page 22 of 25 PageID 72

notice to a person appearing in a criminal proceeding before a justice or municipal court and a

meaningful opportunity for that person to be heard.” Id. art. 45.001(1). Criminal proceedings in

the municipal courts are to be conducted in accordance with chapter 45, and if that chapter does

not provide a governing rule of procedure, the municipal judge is to apply the other general

provisions of the Code of Criminal Procedure to the extent necessary to achieve the objectives of

chapter 45. Id. art. 45.002. The State of Texas also provides Groden with adequate appellate

remedies to challenge the validity of the Ordinance. Appellate jurisdiction of a Dallas municipal

court case lies in a Dallas County criminal court of appeals. Tex. Gov’t Code § 30.01595.

Groden would have the right to a further appeal to the Court of Appeals for the Fifth Judicial

District of Texas to challenge the constitutionality of the park ordinance. Tex. Code Crim. Proc.

art. 4.03. Finally, the Texas Court of Criminal Appeals would have jurisdiction to review any

decision of the Texas Fifth Court of Appeals. Id. art. 4.04, § 2. Therefore, Groden will have a

full and fair opportunity to raise his constitutional defenses in the municipal court prosecution

and on appeal to the county court of criminal appeals and the Fifth Court of Appeals, and

potentially the Texas Court of Criminal Appeals. Cf. State v. Portillo, No. 08-09-00187-CR,

2010 WL 1741339 (Tex. App.—El Paso Apr. 30, 2010, no pet.) (holding, on state’s appeal from

an order suppressing cocaine found in the defendant’s possession during a search incident to his

arrest for violating the Ordinance, that the enactment of the Ordinance was a valid exercise of the

City’s police power; that the Ordinance was not pre-empted by the state constitution or the

general laws of the state; and that the enforcement of the Ordinance as to the defendant did not

violate due process).

An injunction will not issue to enjoin the enforcement of criminal statues claimed to be

unconsitutional in the absence of a clear showing of the invasion of a property right. Carolina-

Defendant City of Dallas’ Motion Pursuant to Rule 12(b)(6)

to Dismiss Plaintiff’s Claims Against It, and Brief in Support
Robert Groden v. City of Dallas, et al.; Civil Action No. 3:10-CV-1280-F Page 16
 Case 3:10-cv-01280-F Document 7 Filed 07/14/10 Page 23 of 25 PageID 73

Virginia Racing Association v. Cahoon, 214 F.2d 830, 833 (4th Cir. 1954). See also Dobbins v.

Los Angeles, 195 U.S. 223, 241 (1904). Similarly, under Texas law a court of equity does not

have jurisdiction to enjoin the enforcement of a penal ordinance or statute unless (1) it is

unconstitutional and (2) it threatens vested property rights with irreparable injury. City of La

Marque v. Braskey, 216 S.W.3d 861, 863 (Tex. App.—Houston 2007, review denied). Where

there is an adequate remedy at law such as a constitutionality defense in a criminal prosecution, a

court of equity lacks jurisdiction to enjoin enforcement of an ordinance in the absence of a

showing that the ordinance would cause irreparable injury to vested property rights. City of

Amarillo v Griggs Southwest Mortuary, Inc., 406 S.W.2d 230 (Tex. App.—Amarillo 1966,

rehearing denied).

Here Groden has no vested property right to sell his wares on City property, and he may

offer the same constitutionality arguments to the municipal court that he proffers in this

proceeding. Thus Groden is not entitled to equitable relief.

III. CONCLUSION

Groden’s allegations in his Complaint do not state a plausible claim for relief as to the

City. Groden’s allegations are vague and conclusory, and do not provide factual content beyond

labels, conclusions, and a formulaic recitation of the minimal elements of section 1983 municipal

liability claim. As a result of the lack of factual content in Groden’s Complaint, his section 1983

claims lacks facial plausibility because the Court cannot draw the reasonable inference that the

City is liable for the misconduct Groden alleges. Therefore, the City is entitled to dismissal of

Groden’s claims against it made pursuant to 42 U.S.C. § 1983. Even if Groden’s complaint were

sufficient under section 1983, his Fourteenth Amendment claim fails as a matter of law. Finally,

the Court should dismiss Groden’s claims under 42 U.S.C. § 1985 because this statute is not

Defendant City of Dallas’ Motion Pursuant to Rule 12(b)(6)

to Dismiss Plaintiff’s Claims Against It, and Brief in Support
Robert Groden v. City of Dallas, et al.; Civil Action No. 3:10-CV-1280-F Page 17
 Case 3:10-cv-01280-F Document 7 Filed 07/14/10 Page 24 of 25 PageID 74

applicable to the facts in this case.

WHEREFORE, Defendant City of Dallas prays that Plaintiff’s Complaint be dismissed

for failure to state a claim on which relief can be granted, that City recover all costs of suit, and

for such other and further relief to which the City is entitled.

Respectfully submitted,

CITY ATTORNEY OF THE CITY OF DALLAS

s/ JAMES C. BUTT
Assistant City Attorney
Texas Bar No. 24040354
james.butt@dallascityhall.com

s/ JASON G. SCHUETTE
Executive Assistant City Attorney
Texas Bar No.17827020
jason.schuette@dallascityhall.com

s/VICTORIA W. THOMAS
Assistant City Attorney
Texas Bar No. 24059913
victoria.thomas@dallascityhall.com

Dallas City Hall 7BN

1500 Marilla Street,
Dallas, Texas 75201
214.670.3519
214.670.0622 – Fax

Attorneys for Defendant City of Dallas

Defendant City of Dallas’ Motion Pursuant to Rule 12(b)(6)

to Dismiss Plaintiff’s Claims Against It, and Brief in Support
Robert Groden v. City of Dallas, et al.; Civil Action No. 3:10-CV-1280-F Page 18
 Case 3:10-cv-01280-F Document 7 Filed 07/14/10 Page 25 of 25 PageID 75

CERTIFICATE OF SERVICE

I certify that on 14 July 2010, I electronically filed the foregoing document with the clerk
of court for the U.S. District Court, Northern District of Texas, using the electronic case filing
system of the court. The electronic case filing system sent a “Notice of Electronic Filing” to the
following attorneys of record who have consented in writing to accept this Notice as service of
this document by electronic means:

Alex R. Tandy
Attorney at Law
777 Lonesome Dove Trail
Hurst, Texas 76054
Attorney for Plaintiff

s/ James C. Butt
Assistant City Attorney

Defendant City of Dallas’ Motion Pursuant to Rule 12(b)(6)

to Dismiss Plaintiff’s Claims Against It, and Brief in Support
Robert Groden v. City of Dallas, et al.; Civil Action No. 3:10-CV-1280-F Page 19