Huynh et al v. City of Houston Texas et al
MEMORANDUM AND ORDER; 36 Amended MOTION to Dismiss 34 MOTION to Dismiss is GRANTED; All other pending motions, if any, are DENIED. (Signed by Judge Ewing Werlein, Jr) Parties notified.(kcarr, )
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
NGOC-CHI HUYNH and
TAI V. NYUYEN,
CITY OF HOUSTON, TEXAS and
MARK LEIJA, Individually and
in his Official Capacity as
Police Officer of the City
CIVIL ACTION NO. H-10-1303
MEMORANDUM AND ORDER
Plaintiffs Ngoc-Chi Huynh and Tai V. Nguyen, naturalized U.S.
citizens of Vietnamese origin, allege in their First Amended
Complaint filed through counsel, that City of Houston Police
Officer Mark Leija (“Leija”) violated their rights under the First,
Fifth, Fourteenth, and Fifteenth Amendments to the Constitution by
issuing excessive citations related to the operation of their
business and by sealing all of their slot machines.1
also allege that the City of Houston (“the City”) failed to provide
adequate training and supervision of Officer Leija, to discipline
officers for non-compliance with City policies, and to conduct a
Document No. 11 at 7; Document No. 12 at 2.
proper investigation of the circumstances that led to the shutdown
of their business.2
Pending is Defendants’ Amended Motion to Dismiss pursuant Rule
12(b)(6) of the Federal Rules of Civil Procedure (Document No.
Based on the motion, response,4 reply, and applicable law,
the Court concludes as follows.
Plaintiffs contend the following events gave rise to the
pending complaint: In 2003, Plaintiffs opened a game room business
in Houston, Texas.5
The City of Houston issued a permit and
documents that allowed them to open such business.6
performed all the legal requirements to open and operate their
Document No. 12 at 9-10.
Defendants’ Motion to Dismiss (Document No. 34) was made
moot by the Amended Motion, and is therefore denied.
Plaintiffs filed numerous exhibits in support of their
Document Nos. 39-42.
The court has exercised its
consideration would necessitate converting the motion to dismiss
into a motion for summary judgment. FED . R. CIV . P. 12(b)(d); Ware
v. Associated Milk Producers, Inc., 614 F.2d 413, 415 (5th Cir.
Document No. 11 at 3.
Id. at 6.
They did not sell food or drinks but provided free
individually-wrapped snacks and canned drinks to their patrons.8
In 2008, Officer Leija and other police officers started to
visit the game room and to issue citations for various municipal
On their first visit to the game room, some
police officers stood around observing customers while others
“walked around [and] checked every single inch of the building, and
about two officers [got] their citation booklet out and start[ed]
Plaintiffs contend they cooperated with the officers
but the officers never showed them why they received the citations
completed, Plaintiffs asked Officer Leija why there were so many
citations; he told them to sign the citations and to take them to
court if they had any objections.12
Plaintiffs allege that officers issued from 20 to 60 different
citations for bogus violations on each visit and often issued the
same or similar citations without checking to see if the premises
Id. at 3.
Id. at 3. The record shows that Plaintiffs’ business was
closed sometime in October 2008. Document No. 11 at 7.
Id. at 3-4.
Id. at 4.
had been modified or repaired.13
Plaintiffs contend that on one
occasion, Officer Leija issued a citation for an occupancy permit
even though such a permit does not need to be renewed.14
occasion, Leija was stopped by another officer before issuing the
citation for the occupancy permit.15
Plaintiffs claim that “[f]rom February 16, 2008[,] to the end
of the year, Officer Leija occasionally stopped by with a unit and
with the excused [sic] of checking on complaints and always walked
out with no less than 60 citations issued.”16
they “received the same citations for the same problem every time
Officer Leija stopped by to check on complaints.”17
Plaintiffs also contend that on one occasion, Officer Leija
mocked their religious beliefs by making reference to a Buddha
statue inside the game room and by joking with patrons that
Another police officer cautioned Leija to stop making fun of the
statue and to do his job; Leija complied.19
Id. at 3.
Id. at 6.
Id. at 5.
Plaintiffs contend that after the business was closed, Officer
Leija contacted the owner of a business next to Plaintiffs’ about
whether Plaintiffs had re-opened the game room.20
that Leija told the business owner that he “will kick and close all
the ‘Vietnamese’ business owners [out] of that area.”21
testimony in Municipal Court in a trial on Citation Number 2008 NT
misidentified the location of the air vent in question.22
Plaintiffs concede that the jury found Leija’s testimony more
reliable and fined Plaintiffs $1,000.23
Defendants on these allegations under the Texas Torts Claims Act24
and 42 U.S.C. §§ 1981 and 1983.25
Defendants, the City of Houston and Officer Mark Leija, move
to dismiss Plaintiffs’ § 1983 claims, asserting that they are
Plaintiffs’ municipal court conviction, they are not ripe, and they
Id. at 4.
TEX . CIV . PRAC . & REM. CODE ANN ., ch. 101.
Document No. 11 at 2, 7; Document No. 12.
are not supported by any constitutional violation.
immunity and that the City cannot be held liable because Plaintiffs
have failed to allege an official custom or practice of the City
leading to any alleged violation of Plaintiffs’ rights. Defendants
also move to dismiss the state tort claim because Plaintiffs have
failed to allege facts that fall within the limited waiver of
sovereign immunity in the Texas Torts Claims Act.26
II. Standard of Review
dismissal of an action for “failure to state a claim upon which
relief can be granted.”
FED . R. CIV . P. 12(b)(6).
When a district
court reviews the sufficiency of a complaint before it receives any
evidence either by affidavit or admission, its task is inevitably
a limited one.
Scheuer v. Rhodes, 94 S. Ct. 1683, 1686 (1974).
The issue is not whether the plaintiff will ultimately prevail, but
whether the plaintiff is entitled to offer evidence to support the
In considering a motion to dismiss under Rule 12(b)(6), the
district court should construe the allegations in the complaint
favorably to the pleader and accept as true all well-pleaded facts
in the complaint.
La Porte Constr. Co. v. Bayshore Nat’l Bank of
Document No. 36.
La Porte, Tex., 805 F.2d 1254, 1255 (5th Cir. 1986).
In ruling on
a rule 12(b)(6) motion, the district court may rely only on the
complaint and its proper attachments. Fin. Acquisition Partners LP
v. Blackwell, 440 F.3d 278, 286 (5th Cir. 2006).
dismissal, a complaint must plead “enough facts to state a claim to
relief that is plausible on its face.”
127 S. Ct. 1955, 1974 (2007).
Bell Atl. Corp. v. Twombly,
“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
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949
allegations . . . [the] allegations must be enough to raise a right
to relief above the speculative level, on the assumption that all
the allegations in the complaint are true (even if doubtful in
Twombly, 127 S. Ct. at 1964-65 (citations and internal
A motion to dismiss under Rule 12(b)(6) “is
viewed with disfavor and is rarely granted.” Harrington v. State
Farm Fire & Cas. Co., 563 F.3d 141, 147 (5th Cir. 2009).
Plaintiffs seek relief under 42 U.S.C. § 1983 for alleged
violations of their constitutional rights.27
Section 1983 does not
Document No. 11 at 2. Plaintiffs indicate that they also
seek relief under 42 U.S.C. § 1981 in paragraph 7 of their Amended
Complaint under the heading, “Nature of the Action.” Id. They do
create substantive rights, but rather is merely a procedural rule
that provides a private cause of action for redressing a violation
of federal law or “vindicating federal rights elsewhere conferred.”
Albright v. Oliver, 114 S. Ct. 807, 811 (quoting Baker v. McCollan,
99 S. Ct. 2689 (1979)).
“Thus, an underlying constitutional or
statutory violation is a predicate to liability under § 1983.”
Johnston v. Harris County Flood Control Dist., 869 F.2d 1565, 1574
(5th Cir. 1989).
To state a viable claim under § 1983, “a
plaintiff must (1) allege a violation of rights secured by the
Constitution or laws of the United States and (2) demonstrate that
the alleged deprivation was committed by a person acting under
color of state law.”
Leffall v. Dallas Indep. Sch. Dist., 28 F.3d
521, 525 (5th Cir. 1994).
A § 1983 plaintiff must support his
deprivation and may not simply rely on conclusory allegations.
Schultea v. Wood, 47 F.3d 1427, 1433 (5th Cir. 1995).
Defendants maintain that Plaintiffs’ complaints regarding
citations issued more than two years before they filed the present
not, however, specifically seek relief under § 1981 in Counts 1, 2,
or 3 of the Amended Complaint or the paragraphs incorporated
therein. Document No. 11 at 7; Document No. 12 at 2-5. Therefore,
the Court does not address their claims under this statute.
complaint on April 22, 2010, including the citations issued on
February 16, 2008, are barred by the statute of limitations.28
Because the Civil Rights Act does not provide a statute of
limitations for claims brought under its provisions, courts borrow
the statute of limitations from the law of the forum state.
Wallace v. Kato, 127 S. Ct. 1091, 1094 (2007); Burrell v. Newsome,
limitations period for personal injury actions. Stanley v. Foster,
464 F.3d 565, 568 (5th Cir. 2006); TEX . CIV . PRAC . & REM . CODE ANN .
§ 16.003(a) (Vernon 2002).
“Under federal law, a cause of action
accrues when the plaintiff knows or has reason to know of the
injury which is the basis of the action.”
Slack v. Carpenter,
7 F.3d 418, 419 (5th Cir. 1993).
Plaintiffs do not dispute that claims against Leija and the
City regarding citations issued before April 2008, are time-barred
but contend that there were other citations issued within two years
of the date they filed the present suit and that their claims with
Plaintiffs do not specify the dates that Leija and his squad issued
Document No. 36 at 11-12.
Document No. 38 at 4.
produced the 1,000 to 2,000 citations that they requested.30
Plaintiffs’ pleadings show that they had knowledge of some of
the citations that Leija and his squad issued more than two years
before Plaintiffs filed suit on April 22, 2010. Plaintiffs’ claims
that accrued before April 22, 2008, which was two years before the
date upon which Plaintiffs filed suit in 2010, are therefore timebarred and are properly dismissed with prejudice for failure to
state a claim.
Official Capacity Claims
A suit against Officer Leija in his official capacity as a
City of Houston Police Officer, is a suit against the City of
See Turner v. Houma Mun. Fire & Police Civil Serv. Bd.,
229 F.3d 478, 483 (5th Cir. 2000).
Because Plaintiffs have sued
the City of Houston, all duplicative official capacity claims
arising under § 1983 against Officer Leija, if any, are subject to
Id. Plaintiffs, however, attest in affidavits dated April
21, 2010, that Leija and the officers issued a total of 250
citations. Document No. 1 at 12, 14.
Plaintiffs allege that Officer Leija violated his rights under
the First, Fifth, Fourteenth, and Fifteenth Amendments.31
respect to these constitutional claims alleged against him in his
individual capacity, Officer Leija asserts the defense of qualified
Public officials acting within the scope of their official
duties are shielded from civil liability by the qualified immunity
See Harlow v. Fitzgerald, 102 S. Ct. 2727, 2738-39
Government officials are entitled to such immunity if
“their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
Id. at 2738.
Thus, to determine entitlement to qualified
immunity, the court must determine whether (1) taken in the light
most favorable to the party asserting the injury, whether the facts
alleged show the officer’s conduct violated a constitutional right;
and if so (2) whether the right was clearly established at the
Saucier v. Katz, 121 S. Ct. 2151, 2156 (2001); Pearson v.
Callahan, 129 S. Ct. 808, 818 (2009) (holding sequential two-step
process not mandatory, courts could determine which prong to
Document No. 11 at 7; Document No. 12 at 2.
Document No. 36 at 5-6.
address first “in light of the circumstances of the particular case
Defendants argue that Officer Leija is entitled to qualified
immunity because under the first prong Plaintiffs’ allegations fail
to rise to the level of a clearly established constitutional
Defendants are correct that Plaintiffs allege no facts that
would give rise to a violation of the First, Fifth, or Fifteenth
Plaintiffs’ pleadings do not show that Officer Leija
Document No. 36 at 5-6.
Plaintiffs assert in their jurisdictional statement that
this suit alleges violations of the Sixth Amendment but they make
no further allegations, factual or legal, that would give rise to
a Sixth Amendment claim. Document No. 11 at 2. Therefore, this
conclusory allegation has no merit.
Plaintiffs assert in paragraph 29 of the Amended Complaint
under the section entitled “Facts,” that Officer Leija “sealed all
the machines” thereby, violating the Fourth Amendment by seizing
their “personal property without a court order.”
Id. at 7.
Plaintiffs do not separately state a Fourth Amendment violation in
Counts 1, 2, or 3 of their Amended Complaint. To the extent that
Plaintiffs intend to assert a Fourth Amendment claim based on
Officer Leija’s sealing all of the machines “without a court
order,” however, Plaintiffs fail to allege specific facts
demonstrating a constitutional deprivation.
Plaintiffs plead nothing to rule out the presence of exigent
circumstances that required sealing the machines, immediate risks
to the public from food or other public safety violations
associated with the operation of the machines, or otherwise to
specify why a court order was required and on what particular
occasion or occasions.
Whether a search and seizure is
unreasonable within the meaning of the Fourth Amendment is
typically a fact-intensive inquiry. In this instance, Plaintiffs’
allegations are purely conclusory and inadequate “to raise a right
to relief above the speculative level.” Iqbal, 129 S. Ct. at 1949.
denied them the rights to free speech or press, the rights to
guaranteed by the First Amendment.
U.S. CONST . amend I.
First Amendment complaint is that Officer Leija violated their
right to the free exercise of religion because he once joked with
customers about their religion and their Buddha statue until
another officer admonished him.35
Plaintiffs do not allege that
Officer Leija restrained them from exercising their religious
beliefs pursuant to any law or municipal policy or ordinance by his
jokes or comments regarding their religion.
See Sch. Dist. of
Abington Tp., Pa. v. Schempp, 83 S. Ct. 1560, 1572 (1963) (noting
that “[t]he Free Exercise Clause . . . withdraws from legislative
power, state and federal, the exertion of any restraint on the free
exercise of religion”).
Because they allege no facts showing that
Officer Leija restrained them from the exercise of their religious
beliefs, Plaintiffs fail to state a cognizable First Amendment free
Likewise, Plaintiffs have not alleged that Leija denied or
abridged their right to vote as provided by the Fifteenth Amendment.
U.S. CONST . amend XV.
Moreover, Plaintiffs state no facts to show
that Leija is a federal actor and is therefore, subject to the
provisions of the Fifth Amendment.
See Jones v. City of Jackson,
203 F.3d 875, 880 (5th Cir. 2000) (noting
Document No. 11 at 5.
Amendment applies only to violations of constitutional rights by the
United States or a federal actor”).
Without sufficient factual matter, Plaintiffs fail to state a
claim for relief under the First, Fifth, Sixth, or Fifteenth
Amendments. See Gonzalez v. Kay, 577 F.3d 600, 603 (5th Cir. 2009).
Accordingly, Defendant Leija is entitled to qualified immunity on
Plaintiffs’ claims under the First, Fifth, Sixth, and Fifteenth
Amendment by giving them excessive tickets and sealing all their
Specifically, Plaintiffs allege that “[f]rom February
16, 2008, to the end of the year, Officer Leija “occasionally
stopped by with a unit . . . [to] check on complaints and always
walked out with no less than 60 citations issued.”37
indicated that they “received the same citations for the same
They claim that on one occasion, Leija mocked their
Document No. 12 at 2.
In an unincorporated paragraph,
Plaintiffs allege that Leija violated their rights “to be free from
discrimination in states [,] to have due process of law, [and] to
have equal protection of the law.” Document No. 11 at 7.
Document No. 11 at 5.
Plaintiffs allege that “[i]t was
clear from the beginning that the officers were intent on closing
Plaintiffs’ business because they were of Vietnamese Origin. The
police officers made these comments many times.” Id. at 3.
Id. at 5.
Plaintiffs also allege that “[e]ach time the
police came to Plaintiffs’ business they issued anywhere from 20 to
60 different citations. The majority of the citations were bogus
Buddha statue and joked with patrons about Plaintiffs’ religion,
business had closed, Officer Leija asked a nearby business owner
whether Plaintiffs had reopened their business and commented that
he would kick “all the Vietnamese business owners [out] of that
Plaintiffs took offense at this racist remark because they
are Vietnamese business owners and concluded that “Officer Leija
clearly made it his mission to close the Plaintiffs’ business on the
basis that Plaintiffs were Vietnamese nationals.”41
“To state a claim under the Equal Protection Clause, a § 1983
plaintiff must allege that a state actor intentionally discriminated
against the plaintiff because of membership in a protected class.”
Williams v. Bramer, 180 F.3d 699, 705 (5th Cir. 1999).
nature of state action involves discretionary decision-making and
the decision-maker engages in selective enforcement or prosecution
of the law based on membership in a protected class, the decisionmaker’s
Id. at 5.
Engquist v. Ore. Dep’t of Agr., 128 S. Ct.
and the officers spent little time if
They simply issued the same
without even seeing if the premises had been
from the officers’ previous visit.” Id. at
Id. at 6.
any ‘inspecting the
or similar citations
modified or ‘repairs’
2146, 2154 (2008); see also Bryan v. City of Madison, Miss., 213
F.3d 267, 277 (5th Cir. 2000).
Plaintiffs’ allegations, accepted as true, do not necessarily
give rise to an inference that Officer Leija applied a particularly
scrutinizing eye toward ordinance violations in their establishment
because of their national origin or religion, thereby explaining the
large number of bogus citations issued to Plaintiffs.
pleadings show that Leija stopped by the game room occasionally to
follow up on a complaint, that he issued approximately 60 citations
on each occasion for the same code violations, on one occasion he
mocked their religious beliefs during an inspection, and he made a
“racist” comment to a third party after Plaintiffs had closed their
Although Plaintiffs allege that most of the citations
issued by Officer Leija were bogus, they do not indicate that any
of the citations were dismissed or invalidated; nor do they indicate
that they actually made any of the repairs for which they were
Furthermore, Plaintiffs state no facts showing that Officer
Leija treated them differently than he treated other local business
operators similarly situated. Plaintiffs, therefore, fail to state
a cognizable Equal Protection claim.42
Because the nature of Plaintiffs’ alleged constitutional
Plaintiffs’ substantive due process claim is subject to the same
analysis. See Lindquist v. City of Pasadena, Tex., 525 F.3d 383,
387 (5th Cir. 2008)
(quoting Cty. of Sacramento v. Lewis, 118
S.Ct. 1708, 1714 (1998) for the proposition that “[w]here a
particular Amendment provides an explicit textual source of
Even if Plaintiffs had successfully stated a claim under the
Fourteenth Amendment, Defendants are correct that adjudication of
Plaintiffs’ § 1983 claim for selective application of the law based
upon either their race, national origin, or religion, in violation
of their equal protection rights, would necessarily impugn their
conviction on the citation involved in Cause No. 2008 NT 0419679,
and thus is barred by the “favorable termination rule” announced by
the Supreme Court in Heck v. Humphrey, 114 S. Ct. 2364, 2372-73
The favorable termination rule of Heck provides that “to
recover damages for an allegedly unconstitutional conviction or
unlawfulness would render a conviction or sentence invalid, a § 1983
plaintiff must prove that the conviction or sentence has been”
constitutional protection against a particular sort of government
behavior, that Amendment, not the more generalized notion of
substantive due process, must be the guide for analyzing these
Therefore, to the extent that Plaintiffs allege a
substantive due process claim, such claim is subject to dismissal
for failure to state a claim.
To the extent that Plaintiffs allege a procedural due process
violation, they fail to state a claim because their pleadings
reflect that they unsuccessfully challenged one citation in
municipal court. The complaint provides no basis to infer that
Plaintiffs were ever denied access to court to challenge other
See Woodard v. Andrus, 419 F.3d 348, 351 (5th Cir.
2005) (noting that “a state actor’s random and unauthorized
deprivation of a plaintiff’s property does not result in a
violation of procedural due process rights if the state provides an
adequate post-deprivation remedy”). Based on the foregoing, the
Court finds that Plaintiffs fail to state a cognizable claim under
the Fourteenth Amendment.
Document No. 36 at 12-13.
Heck, 114 S. Ct. at 2372.
The complaint must be
dismissed if “a judgment in favor of the plaintiff would necessarily
imply the invalidity of his conviction or sentence,” unless the
plaintiff can show that the conviction or sentence has already been
reversed on direct appeal or impaired by collateral proceedings.
Id. The purpose of this requirement is to avoid parallel litigation
of probable cause and guilt.
Id. at 2371.
“It also prevents the
convicted in the underlying criminal prosecution, which would run
counter to the judicial policy against creating two conflicting
resolutions arising from the same transaction.”
Gilles v. Davis,
427 F.3d 197, 209 (3rd Cir. 2005) (apply Heck to individual who has
no recourse under habeas statue).
“Heck’s bar applies to both
custodial and non-custodial § 1983 plaintiffs.”
Walker v. Munsell,
281 Fed. Appx. 388 (5th Cir. 2008) (citing Randell v. Johnson, 227
F.3d 300, 301–02 (5th Cir. 2000)).
Although the Fifth Circuit has
not ruled on the issue, at least three district courts in this
Circuit have addressed the applicability of Heck to convictions of
municipal ordinance citations.
See Cooper v. City of Plano, Civil
Action No.4:10cv689, 2011 WL 4344187 at *6 (E.D. Tex. Aug. 19, 2011)
(applying Heck bar to misdemeanor conviction of city ordinance),
rec. adopted, 2011 WL 4344186 (E.D. Tex. Sept. 14, 2011); Cormier
v. Lafayette City Parish Consol. Gov’t, Civil Action No.6:09cv0703,
2011 WL 5412960 at *6 (W.D. La. Nov. 8, 2011) (analyzing whether
Heck bars conviction of city ordinance for disorderly conduct);
Collins v. City of Hazelburst, 151 F. Supp. 2d 749, 751 (S.D. Miss.
2001) (suggesting in dicta that Heck bars claim for damages in civil
rights action brought by person convicted of violating a city
ordinance prohibiting beer-permit holders from admitting minors to
Plaintiffs’ pleadings reflect that they were convicted of at
least one violation of the City of Houston Municipal Code with
respect to food establishments.44
Section 20-19 of the City of
Houston Food Establishment Code provides that a “person who violates
any provision of this article, or rule, or regulation promulgated
by the health officer, shall be guilty of a misdemeanor and, upon
conviction thereof, shall be punished by a fine of not less than
$50.00 nor more than $2,000.00.”
TEXAS (FOOD ESTABLISHMENT CODE § 20-19(c)).
ORDINANCES , CITY
State law provides that a
person convicted of violating a city ordinance in a municipal court
may appeal the conviction to a county criminal court of law.
TEX. CODE CRIM . PROC . ANN . art. 44.17 (Vernon 2006).
Given the nature
of municipal ordinance conviction and the opportunity and means by
which to challenge the conviction, the favorable termination rule
of Heck applies to Plaintiffs’ municipal ordinance conviction.
Plaintiffs allege that Officer Leija was a bad cop when they
received that conviction because he testified untruthfully about the
Document No. 11 at 4.
location of the air vent at the trial in the City of Houston
Municipal Court Number 5.45
Plaintiffs do not allege, however, that
their conviction in Citation Number 2008 NT 0419679 has been
reversed on direct appeal or invalidated in any way. Therefore, any
relief on their allegation of perjury is barred by Heck.
Williams v. Martinez, 74 Fed. App’x 406 (5th Cir. 2003) (Bivens
invalidity of plaintiff’s conviction and was barred by Heck).46
Plaintiffs further label the “majority” of the citations as
“bogus,” and assert that they “performed all the requirements to
have the business open and operating as required by the law at all
However, granting relief on Plaintiffs’ equal
protection claim would necessarily impugn their conviction on any
issued citation in this case.
Cf. Yick Wo v. Hopkins, 6 S. Ct.
1064, 1073 (1886) (upon finding that an ordinance was selectively
enforced against Chinese nationals in violation of the Fourteenth
Amendment, holding that “the imprisonment of the petitioners is
Document No. 11, page 4.
Plaintiffs claim that Leija
testified that the vent was on the ceiling when in reality it was
on the side of the wall. Id.
See Little v. Butler, 848 F.2d 73, 76 (5th Cir. 1988)
(inconsistencies in witnesses’ testimony at trial are to be
resolved by trier of fact and do not suffice to establish that
certain testimony was perjured).
Id. at 3, 6.
therefore illegal, and they must be discharged”). Plaintiffs do not
allege that their conviction on any municipal ordinance citation has
invalidated in any way.
Therefore, to the extent that
Plaintiffs challenge any conviction on any municipal ordinance
citation as a violation of their right to equal protection, such
claims are barred by Heck.
See Bazemore v. Junker, Civil Action
No.3:10cv0720-B, 2010 WL 2404311, at * 1-2 (N.D. Tex. May 3, 2010),
rec. adopted, 2010 WL 2404308 (N.D. Tex. Jun. 15, 2010) (dismissing
prosecuted by the government because of his race” because the
prosecutors were immune from suit and because Heck barred the
claims); Rogers v. Ill. Dep’t of Corrs., Special Evaluation Unit,
160 F. Supp. 2d 972, 977 (N.D. Ill. 2001) (holding that Heck applied
to “selective prosecution” claims under § 1983).
And even if Plaintiffs’ equal protection claims were limited
only to citations not yet adjudicated, prevailing on those claims
would nonetheless require findings of facts inherently inconsistent
with their prior conviction because Plaintiffs’ equal protection
claim is based on the same set of facts common to all of the
This makes Heck equally applicable to the entirety of
See McCann v. Neilsen, 466 F.3d 619, 621-22
(7th Cir. 2006), quoted in part in Bush v. Strain, 513 F.3d 492, 498
n.14 (5th Cir. 2008) (“[A] plaintiff’s claim is Heck-barred despite
its theoretical compatibility with his underlying conviction if
specific factual allegations in the complaint are necessarily
inconsistent with the validity of the conviction . . . .”).
put, Plaintiffs’ allegations, taken in context and assumed to be
true, affirmatively demonstrate that there is no basis on which to
distinguish Officer Leija’s motives in issuing the citation upon
which Plaintiffs were adjudged guilty from the other citations he
issued: Plaintiffs allege that Leija’s entire course of conduct in
issuing hundreds of like citations was racially or religiously
Plaintiffs--out of business.
To prevail on this theory would
require Plaintiffs to show that Officer Leija’s policing of their
business, and his concomitant issuance of all the citations arising
therefrom, was motivated by Plaintiffs’ race or national origin or
See McCann, 466 F.3d at 621-22
(“It is irrelevant that
conviction; if he makes allegations that are inconsistent with the
conviction’s having been valid, Heck kicks in and bars his civil
suit.” (quoting Okoro v. Callaghan, 324 F.3d 488, 490 (7th Cir.
Plaintiffs further claim that the City of Houston failed to
investigate the shut down of their business as a result of Officer
“Municipal liability for civil rights violations under Section
1983 is based on causation rather than respondeat superior.” Bolton
v. City of Dallas, 541 F.3d 545, 548 (5th Cir. 2008).
municipal actor executes a government’s policy or custom that
inflicts a constitutional injury, the municipality as an entity may
bear responsibility under § 1983.
See Monell v. Dep’t of Soc.
Servs. of New York, 98 S. Ct. 2018, 2037-38 (1978).
liability under § 1983 claim for a constitutional violation requires
proof of (1) a policy maker; (2) an official policy; and (3) a
violation of a constitutional right whose moving force is the policy
These three elements are necessary to distinguish
individual violations perpetrated by local government employees from
those that can be fairly identified as actions of the government
In the absence of a constitutional violation, the
question of municipal liability is moot.
Heller, 106 S. Ct. 1571, 1573 (1986).
Document No. 12 at 3-4.
City of Los Angeles v.
To establish a municipality’s liability for a constitutional
tort, the plaintiff must show first, that the municipality adopted
a policy with “deliberate indifference” to its known or obvious
consequences, and second, that the municipality was the “moving
force” behind the constitutional violation.
v. Harris, 109 S. Ct. 1197, 1205 (1989).
City of Canton, Ohio
Since Monell, the Fifth
Circuit has defined “official policy” as:
A policy statement, ordinance, regulation, or
decision that is officially adopted and promulgated
by the municipality's lawmaking officers or by an
official to whom the lawmakers have delegated
policy-making authority; or
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. Actual or
constructive knowledge of such custom must be
municipality or to an official to whom that body had
delegated policy-making authority.
Nobby Lobby, Inc. v. City of Dallas, 970 F.2d 82, 92 (5th Cir.
As to deliberate indifference, courts have generally held
that “the inadequacy of police training may serve as the basis for
§ 1983 liability only where the failure
train amounts to
deliberate indifference to the rights of persons with whom the
police come in contact. . . . Only where a municipality’s failure
to train its employees in a relevant respect evidences a ‘deliberate
shortcoming be properly thought of as a city ‘policy or custom’ that
is actionable under § 1983.” City of Canton, 109 S. Ct. at 1204-05;
Baker v. Putnal, 75 F.3d 190, 200 (5th Cir. 1996); Valle v. City of
Houston, 613 F.3d 536 (5th Cir. 2010); Synder v. Trepagnier, 142
F.3d 791, 798-99 (5th Cir. 1998); see also Hobart v. City of
Stafford, 784 F. Supp. 2d 732 (S.D. Tex. 2011) (finding plaintiffs
had sufficiently alleged a failure to train).
The same rationale
applies to failure to supervise and punish claims.
v. City of Houston, 237 F.3d 567, 581-82 (5th Cir. 2001) (failure
to investigate and discipline police officers after family made
several complaints against them).
Stated another way, to establish
deliberate indifference, a plaintiff must show at least a pattern
of violations (fairly similar to what ultimately transpired) so that
the failure of the city to respond with different training, better
supervision, or punishment reflects a deliberate or conscious choice
to endanger constitutional rights.
See Valle, 613 F.3d at 547;
Hobart, 784 F. Supp. 2d at 751.
Plaintiffs fail to allege facts that would support a § 1983
municipal liability claims against the City of Houston. They do not
state a viable constitutional violation, reference any formal policy
statements, ordinances, regulations, or decisions, or identify any
pattern of similar incidents that seem to be consistent with
investigation, or discipline.
Moreover, Plaintiffs state no facts
that would give rise to an inference that any policy was adopted or
enforced with deliberate indifference.
Accordingly, Plaintiffs’ claims against the City of Houston are
subject to dismissal.
State Law Claims
Plaintiffs do not contest the City’s request for dismissal of
their state tort claims.49
Indeed, Plaintiffs failed to allege
facts falling within the City’s limited waiver of sovereign immunity
found in the Texas Tort Claims Act.
See TEX . CIV . PRAC . & REM . CODE
ANN. § 101.021(1)(A,(2) (Vernon 2005) (requiring personal injury to
“arise from the operation or use of a motor-driven vehicle or
motor-driven equipment,” or to be proximately caused “by a condition
or use of tangible personal or real property” for the governmental
unit to be liable).
Plaintiffs also appear to assert a claim under § 71.001 et seq.
of the Civil Practice and Remedies Code for violation of the First
and the Fourteenth Amendment.50
Section 71.001 lists definitions
Document No.38. Plaintiffs’ Amended Complaint asserts tort
claims only against the City. See Document No. 12 at 4-5. Had
Plaintiffs also asserted these claims against Officer Leija, they
would be subject to dismissal upon the City’s request because suit
against the City serves as an irrevocable election that “forever
bars any suit or recovery by the plaintiff against any individual
employee of the governmental unit regarding the same subject
matter.” TEX . CIV . PRAC . & REM . CODE ANN . § 101.106(a) (Vernon 2005).
Document No. 12 at 3.
pertinent to the cause of action for “any injury that causes an
individual’s death” set out in § 71.002.
This claim is subject to
dismissal because Plaintiffs allege no deaths in their Amended
Given the inadequacy of the pleading, the Court declines to
A district court may decline to exercise supplemental
jurisdiction if it has dismissed all the claims over which it had
28 U.S.C. § 1367(c)(3).
general rule in the Fifth Circuit “is to dismiss state claims when
the federal claims to which they are pendent are dismissed[,]”
Parker & Parsley Petroleum Co. v. Dresser Indus., 972 F.2d 580, 585
(5th Cir. 1992); Priester v. Lowndes County, 354 F.3d 414, 425 (5th
Cir. 2004), the Supreme Court has counseled that district court’s
should examine factors such as economy, convenience, fairness,
federalism, and comity in determining whether jurisdiction should
United Mine Workers v. Gibbs, 86 S. Ct. 1130, 1139
In light of the pleading deficiencies so apparent in the
fairness compels the Court to decline jurisdiction over Plaintiffs’
state law claims.
For the foregoing reasons, it is
ORDERED that the Amended Motion to Dismiss of the Defendants
City of Houston and Mark Leija (Document No.36) is GRANTED, and
Plaintiffs’ Ngoc-Chi T. Huynh and Tai V. Nguyen’s § 1983 claims
against Defendants the City of Houston and Mark Leija are DISMISSED
with prejudice for failure to state a claim pursuant to Rule
Plaintiffs’ state law tort claims are DISMISSED without
prejudice for lack of jurisdiction.
All pending motions, if any, are DENIED.
This is a FINAL JUDGMENT.
The Clerk will enter this Order and provide a correct copy to
SIGNED at Houston, Texas, on this 12th day of December, 2011.
EWING WERLEIN, JR.
UNITED STATES DISTRICT JUDGE