52 F3d 339 Vialpando v. Ritter

52 F.3d 339

Timothy VIALPANDO, Plaintiff-Appellant,
William RITTER, in his capacity as District Attorney for the
City and County of Denver; Al Lacabe, in his capacity as a
Deputy District Attorney for the City and County of Denver;
John Simonet, in his capacity as Director of Corrections at
the Denver County Jail; Honorable Judge Federico Alvarez,
in his capacity as a District Court Judge for the City and
County of Denver, Defendants-Appellees.

No. 93-1429.
(D.C. No. 93-F-1494)

United States Court of Appeals, Tenth Circuit.

April 17, 1995.

NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.

Before ANDERSON, BALDOCK, and BRORBY, Circuit Judges.


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After examining the briefs and appellate record, this panel has determined unanimously to grant the parties' request for a decision on the briefs without oral argument. See Fed. R.App. P. 34(f) and 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument.


Plaintiff is an inmate in the custody of the Colorado Department of Corrections. He brought this 1983 action complaining of his treatment in the Denver County Jail while awaiting trial for the murder of a Denver County Deputy Sheriff. Although plaintiff had been ordered kept in the custody of the Arapahoe County Sheriff, he alleged that, each time his case is set for a court appearance in Denver, he is returned to the custody of the Denver County Sheriff's Department where he is physically and psychologically abused by Denver Deputy Sheriffs. App. at 5-6. Plaintiff sued defendants only in their official capacities and asked for both declaratory and injunctive relief. The district court, applying Fed.R.Civ.P. 12(b)(6), concluded that plaintiff had failed to state a claim upon which relief could be granted and dismissed plaintiff's claims against all defendants. In his brief to this court, plaintiff argues only the dismissal of defendant Simonet, the Director of Corrections at the Denver County Jail.


Because defendant was sued only in his official capacity, this suit is treated as a suit against his employer, the City and County of Denver. Kentucky v. Graham, 473 U.S. 159, 165-66 (1985). The vulnerability of municipalities to suits for constitutional torts, see Monell v. Dep't of Social Servs., 436 U.S. 658, 690 (1978), extends also to counties, see Pembaur v. City of Cincinnati, 475 U.S. 469 (1986). Local government liability, however, is not imposed on a respondeat superior theory. Jantz v. Muci, 976 F.2d 623, 630 (10th Cir.1992), cert. denied, 113 S.Ct. 2445 (1993). Instead, "in order for [a] County ... to be liable under 1983 the constitutional violation must be a result of a government custom or policy." Winters v. Board of County Comm'rs, 4 F.3d 848, 855 (10th Cir.1993)(citing Monell, 436 U.S. at 694), cert. denied, 114 S.Ct. 1539 (1994).


The district court dismissed the complaint against defendant because, fairly read, the complaint "has not, even arguably, alleged that the conditions at the Denver County Jail are the product of a governmental 'custom,' written or otherwise." App. at 12. The same standard applied by the district court guides our review of this conclusion. Ruark v. Solano, 928 F.2d 947, 949 (10th Cir.1991). Thus, "[a] complaint should not be dismissed unless, accepting plaintiff's allegations as true, it appears beyond doubt that plaintiff can prove no set of facts to support the claim for relief." Id.


Because there can be no municipal liability unless a policy or custom caused the injury, Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 113 S.Ct. 1160, 1162 (1993); see also Hafer v. Melo, 502 U.S. 21, 25 (1991), the allegation of an offending municipal policy or custom is an essential element of a plaintiff's case. A plaintiff can supply this element by various means. In addition to the existence of an express policy or custom, liability can arise from inadequate training, Winters, 4 F.3d at 855, or a practice so wide-spread as to constitute custom or usage with the force of law, Sauers v. Salt Lake County, 1 F.3d 1122, 1129 (10th Cir.1993). An allegation of facts pointing to the customary use of unconstitutional practice "so as to indicate an unarticulated [municipal] policy authorizing or encouraging such use" would also state a claim of municipal liability. Cowdrey v. City of Eastborough, 730 F.2d 1376, 1379 (10th Cir.1984).


"[A] municipality is liable under 1983 if there is a direct causal connection between the municipal policies in question and the constitutional deprivation." Berry v. City of Muskogee, 900 F.2d 1489, 1499 (10th Cir.1990). Plaintiff attempts to bolster the elements of his complaint by arguing that defendant's knowledge of the court order transferring plaintiff out of the custody of the Denver County Sheriff's Department and into the custody of Arapahoe County implies knowledge of the unconstitutional treatment of plaintiff. We find this chain of inference too attenuated to allege the existence of a municipal policy or custom directly linked to the harm which befell plaintiff.


Plaintiff alternatively urges us to imply such custom from the other facts alleged in his complaint. We decline this invitation. While we recognize that the standard to evaluate a motion to dismiss is liberal, see Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir.1982), "a liberal interpretation of a civil rights complaint may not supply essential elements of the claim that were not initially pled. Vague and conclusory allegations of official participation in civil rights violations are not sufficient to withstand a motion to dismiss." Id.

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Plaintiff finally argues that the appropriate remedy for his failure to allege a municipal policy or custom is to grant leave to amend the complaint. Our review of the district court docket sheet and other materials in the record, however, reveals no attempt by plaintiff to secure this type of relief from the district court. Absent extraordinary circumstances, this court will not consider an issue on appeal that was not decided first in the district court. Pell v. Azar Nut Co., 711 F.2d 949, 950 (10th Cir.1983).


The judgment of the United States District Court for the District of Colorado is AFFIRMED.


This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of the court's General Order filed November 29, 1993. 151 F.R.D. 470