REVISED United States Court of Appeals,

Fifth Circuit.

No. 97-40081.

Johnnie Faye SPILLER, Plaintiff-Appellant,

v.

CITY OF TEXAS CITY, POLICE DEPARTMENT; State of Texas; Mark Spurgeon; City of Texas City, Defendants-Appellees.

Dec. 15, 1997.

Appeal from the United States District Court for the Southern District of Texas.

Before REYNALDO G. GARZA, KING and BENAVIDES, Circuit Judges.

BENAVIDES, Circuit Judge:

Johnnie Faye Spiller, the plaintiff, brought suit against

defendants Texas City, its police department, and one of its police

officers, Mark Spurgeon, for Spurgeon's alleged violation of her

Fourth Amendment and Texas common law rights.1 The district court

dismissed Spiller's Fourth Amendment claims because they "fail[ed]

to state a claim upon which relief [could] be granted," Fed. R. Civ. Pro. 12(b)(6), and accordingly declined to exercise

supplemental jurisdiction over her state law claims. Finding

Spiller to have alleged a violation of her Fourth Amendment rights,

we reverse in part, affirm in part, and remand the case for further

proceedings.

I.

1 Although Texas was also a named party, the plaintiff has voluntarily dismissed her claim against the State.

1 The dismissal of a complaint under Rule 12(b)(6) is reviewed

de novo. House the Homeless, Inc. v. Widnall,

(5th Cir. 1996). Viewing the allegations in the light most

favorable to the plaintiff, we will affirm "only if it appears that

no relief could be granted under any set of facts that could be

proven consistent with the allegations."

Consequently, we set

forth the facts as they are described in Spiller's complaint.

On July 15, 1994, Spiller, who is black, pulled her car into

a Chevron station in Texas City. She stopped at a pump being used

by Spurgeon, who is white. As she arrived, Spurgeon was finishing

pumping gasoline into his pickup truck. After he finished,

Spurgeon did not move his truck to allow Spiller to use the pump.

Instead, he began talking with a white man on the other side of the

pump. Because Spurgeon was not in uniform, Spiller did not know

that he was a police officer.

After waiting a few moments for Spurgeon to move his truck,

Spiller rolled down her car window and politely asked him to

"please pull up" so she could "get some gas." Spurgeon pretended

not to hear this remark, turned his back on Spiller, and continued

his conversation. Spiller then opened her car door, placed one

foot outside her car, and once again calmly and politely asked

Spurgeon to move his truck so she could get some gas. Although he

acknowledged this request, Spurgeon continued his conversation and

did not move his truck. A few moments later, he acknowledged, but

did not honor, a third polite request by Spiller that he move his

truck.

2 Having grown impatient with Spurgeon's behavior, Spiller next

opened her car door, again placed one foot on the pavement, and

told Spurgeon to "move his damn truck" because "the pumps were not

for socializing, they were for people to buy gas and go on about

their business." After hearing these remarks, Spurgeon confronted

Spiller and asked her to repeat what she had said. She did so and

Spurgeon then moved his truck.

After moving his truck, Spurgeon returned to confront Spiller

as she was seated in her car. This time he told her to get out of

her car. She refused. Spurgeon then told her to get out of the

car because she was under arrest for disorderly conduct. He began

laughing as he showed her his police badge.

After Spiller was arrested, a police officer searched her car

and she was confined in a jail cell that smelled of urine. She was

not prosecuted, however, because the criminal complaint against her

was dismissed.

II.

In support of their motion to dismiss, the defendants argued

that Spiller's allegations demonstrate that her Fourth Amendment

rights were not violated because there was probable cause for her

arrest for disorderly conduct. In addition, Spurgeon asserted that

even if Spiller's allegations stated a claim for the violation of

her constitutional rights under Section 1983, he was entitled to

qualified immunity because he reasonably believed he had probable

cause to arrest her for disorderly conduct. Further, Texas City

and its police department contended that the complaint did not

3 adequately allege that Spurgeon acted in accordance with an

official government policy or custom as is required for them to be

held liable under Section 1983.

Agreeing with the defendants, the district court dismissed

each of Spiller's Section 1983 claims because she failed to state

a claim for the violation of her Fourth Amendment rights by

Spurgeon. Consequently, the district court did not reach the

issues of qualified immunity or municipal liability, and it did not

rule on Spiller's request to amend her pleadings regarding the

liability of the city and the police department. Further, after

dismissing each of Spiller's Section 1983 claims, the district

court declined to exercise supplemental jurisdiction over her state

law claims. See

(c)(3) (allowing a district court

to decline to exercise supplemental jurisdiction when it "has

dismissed all claims over which it has original jurisdiction").

Before us on appeal are Spiller's assertions that she adequately

pleaded the violation of her Fourth Amendment rights by Spurgeon,

that Spurgeon is not entitled to qualified immunity, and that she

is entitled to amend her allegations of municipal liability on

remand if they are insufficient to withstand a motion to dismiss in

their present form.

III.

A. Spiller's Section 1983 Claim Against Spurgeon

Under the Fourth Amendment, an arrest must be based on

probable cause, which exists "when the totality of the facts and

circumstances within a police officer's knowledge at the moment of

4 arrest are sufficient for a reasonable person to conclude that the

suspect had committed or was committing an offense." United States

v. Levine,

(5th Cir. 1996). Thus, in order for

Spiller to have pleaded a constitutional arrest for disorderly

conduct, a reasonable person would have to believe that the events

at the Chevron station described in her complaint showed that she

had intentionally or knowingly used profane, obscene, or

threatening language, see Tex. Penal Code. Ann. § 42.01(a)(1);

Ross v. Texas,

(Tex.Ct.App. 1990) (construing

Texas' disorderly conduct statute to punish only "fighting

words"—"words likely to cause an average addressee to fight"); see

also Vela v. White,

(5th Cir. 1983) (same); Texas

v. Rivenburgh,

(Tex.Ct.App. 1996) (same); Duran

v. Furr's Supermarkets, Inc.,

(Tex.Ct.App. 1996)

(same), that "by its very utterance tends to incite an immediate

breach of the peace,"

(a)(1).

Although the word "damn" may be profane, the events alleged in

Spiller's complaint did not provide Spurgeon with probable cause to

believe that her reference to his truck was likely to incite an

immediate breach of the peace. To begin with, Spiller's expression

of frustration from inside her automobile was not part of a

confrontational face-to-face exchange. Under these circumstances,

her remark cannot reasonably be interpreted as an invitation to

fisticuffs. See Rivenburgh,

(affirming a lower

court's determination that the exchange of vulgar gestures and

mouthed words between the occupants of two different automobiles

5 did not provide a police officer with probable cause to arrest the

participants for disorderly conduct). Spiller's reference to

Spurgeon's truck, moreover, was unlikely to prompt an aggressive

reaction from anyone, let alone from a police officer who might

"reasonably be expected to exercise a higher degree of restraint

than an average citizen, and thus be less likely to respond

belligerently to fighting words." Lewis v. New Orleans,

,

,

(1974) (Powell, J.,

concurring). Consistent with this expectation, Spurgeon initially

responded to Spiller's remark by moving his truck as she had

previously requested. Thus, as the sole addressee of Spiller's

remark, Spurgeon's own actions belie his assertion that he had

probable cause to believe that her comments threatened or caused a

breach of the peace. See Furr's Supermarkets, Inc.,

(holding that a woman who called a police officer an "idiot"

during a parking dispute at a grocery store could not be arrested

for disorderly conduct). That Spiller's reference to Spurgeon's

"damn truck" was not threatening further undermines his assertion

that her speech threatened to disturb "the tranquility enjoyed by

the citizens of a community." Head v. Texas,

,

(Tex.Ct.Crim.App. 1936). As it was, the only threat

to the tranquility normally enjoyed by those waiting in line to

purchase gasoline was Spurgeon's repeated refusal to move his

truck. We therefore conclude that Spiller's complaint adequately

alleges that Spurgeon violated her Fourth Amendment rights because

her contentions, if true, demonstrate that her arrest for

6 disorderly conduct was not supported by probable cause.

In the alternative, Spurgeon suggests that we should

nevertheless affirm the district court's dismissal of this Fourth

Amendment claim because he is immune from suit for this allegedly

unconstitutional arrest. Spiller's pleadings, however, do not

provide Spurgeon with a qualified immunity defense.

In order to be immune from Spiller's claim that he violated

her Fourth Amendment rights, Spurgeon must show that a reasonable

police officer could have believed that her arrest, as described in

her complaint, was lawful in light of clearly established law.

See, e.g., Anderson v. Creighton,

,

,

(1987). A reasonable officer,

however, could not believe that Spiller's remark, without more,

provided probable cause to arrest her for disorderly conduct. This

is because, as noted above, her remark was not accompanied by any

threat to the public tranquility. Further, the clearly established

law at the time of Spiller's arrest indicates that her remark did

not constitute disorderly conduct under the circumstances allegedly

confronting Spurgeon at the Chevron station. For example, in Vela

v. White,

(5th Cir. 1983), this Court held that

a Texas police officer lacked probable cause to arrest a woman for

disorderly conduct after she loudly referred to him as a "fool"

because there was "no evidence that [she] uttered any words which

would likely have a direct tendency to incite an ordinary person to

violence." Similarly, in Jimmerson v. Texas,

(Tex.Ct.Crim.App. 1978) (en banc), the Texas Court of Criminal

7 Appeals held that the mere use of "some profane language," when

unaccompanied by evidence that this language was threatening under

the circumstances, did not provide probable cause for an "arrest

for disorderly conduct." In light of these decisions,2 it would be

unreasonable for a police officer to conclude that Spiller's remark

provided probable cause to arrest her for disorderly conduct.3

B. Spiller's Section 1983 Claims Against Texas City and Its Police Department

As the above discussion demonstrates, the district court

erroneously predicated its dismissal of Spiller's Section 1983

claims against Texas City and its police department on its finding

that her complaint failed to state a claim for the violation of her

constitutional rights by Spurgeon. We must therefore consider

whether the dismissal of these claims should nonetheless be

affirmed because, as these two defendants argue, her complaint

fails to link Spurgeon's misconduct to a specific government policy

or custom.

2 Spiller also cites Rivenburgh,

, and Furr's Supermarkets, Inc.,

, in response to Spurgeon's assertion that he is entitled to qualified immunity. Had these cases been decided before the events giving rise to this suit, Spiller's reliance on these decisions would be well founded. 3 At oral argument, Spurgeon placed great emphasis on this court's decision in Fields v. City of South Houston,

(5th Cir. 1991). In Fields, we held that when a state chooses to adopt requirements for an arrest that are more stringent than those found in the Fourth Amendment, the validity of that arrest, when challenged in a Section 1983 case, will nevertheless be evaluated under the applicable Fourth Amendment standards. Because we have concluded that Spiller has alleged that Spurgeon lacked probable cause under the Fourth Amendment to arrest her for disorderly conduct, the decision in Fields is not implicated by Spiller's pleadings.

8 In order to hold a municipality or a local government unit

liable under Section 1983 for the misconduct of one of its

employees, a plaintiff must initially allege that an official

policy or custom "was a cause in fact of the deprivation of rights

inflicted." Leffall v. Dallas Indep. Sch. Dist.,

(5th Cir. 1994). To satisfy the cause in fact requirement, a

plaintiff must allege that "the custom or policy served as the

moving force behind the [constitutional] violation" at issue,

Meadowbriar Home For Children, Inc. v. Gunn,

(5th

Cir. 1996), or that her injuries resulted from the execution of the

official policy or custom, Fraire v. Arlington,

, 1277

(5th Cir. 1992). The description of a policy or custom and its

relationship to the underlying constitutional violation, moreover,

cannot be conclusory; it must contain specific facts. Id. at

1278.

The allegations of municipal liability contained in Spiller's

complaint do not meet these requirements. Her 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 departmental policy she

9 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 third policy of "engag[ing] in

conduct toward African American citizens without regard to probable

cause to arrest" is both vague and conclusory.

Notwithstanding Spiller's contention that she is entitled to

remedy these defects by amending her complaint on remand, an

affirmance of the district court's dismissal of her municipal

liability claims is required. This is because a plaintiff is not

entitled to "an opportunity to satisfy the heightened pleading

requirements" of municipal liability cases when she simply

"declares the adequacy of [her] complaint" in "response to the

motion to dismiss." Jacquez v. Procunier,

(5th Cir. 1986); see also Babb v. Dorman,

(5th

Cir. 1994) (affirming a district court's refusal to grant a

plaintiff leave to amend his complaint because he declared the

sufficiency of his pleadings and did not offer a sufficient amended

complaint in response to the defendant's motion to dismiss). In

this case, Spiller responded to the defendants' motion to dismiss

by asserting that "her pleadings in their present posture"

sufficiently alleged liability on the part of Texas City and its

police department.

Spiller may not avoid the implications of this perfunctory

10 response by noting that she also responded to the motion to dismiss

by requesting leave to amend her complaint within a reasonable

period of time. This request rings hollow in light of her failure

to amend her complaint as a matter of right and her failure to

furnish the district court with a proposed amendment during the two

months following the filing of the motion to dismiss and the order

granting that motion. See Babb,

. Questioning at

oral argument, moreover, revealed that Spiller still cannot

adequately allege a basis for municipal liability and that

"remanding the case to allow another pleading would do nothing but

prolong the inevitable." Jacquez,

.

IV.

For the foregoing reasons, we REVERSE the district court's

holding that Spiller failed to state a claim for the violation of

her Fourth Amendment rights, we AFFIRM the dismissal with prejudice

of her Section 1983 claims against Texas City and its police

department, and we REMAND her constitutional claims for further

proceedings not inconsistent with this opinion.

11