Boyd v. City of River Oaks, Texas et al
Filing
36
MEMORANDUM OPINION and ORDER granting in part and denying in part 22 Motion to Dismiss; granting 24 Motion to Dismiss... that (1) City's motion to dismiss be, and is hereby, granted as to plaintiffs' claims under the Texas Tort Claims A ct and their health care liability claim pursuant to Chapter 74 of the Texas Civil Practice & Remedies Code, and such claims be, and are hereby, dismissed with prejudice, and City's motion to dismiss be, and is hereby, denied, as to plaintiffs 039; claims pursuant to 42 U.S.C. § 1983; (2) All claims and causes of action asserted by plaintiffs against Carter in his official capacity be, and are hereby, dismissed without prejudice; (3) Legacy's motion to dismiss be, and is hereby, granted, and that all claims and causes of action against Legacy be, and are hereby, dismissed with prejudice... by 4:00 p.m. on January 23, 2014, plaintiffs file either proof of proper service of summons and complaint on J.C.W. Defendants, or an instrument containing a satisfactory explanation, in affidavit form, as to why such proof cannot be filed... see Order for further specifics. (Ordered by Judge John McBryde on 1/16/2014) (krg)
IN THE UNITED STATES DISTRICT C
NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
MICHAEL BOYD, ET AL.
§
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i
iJAN I 6 2014
CLERK~
§
Plaintiffs,
U.S. mSTR!CT CO CRT
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_NORTHERN DISTRIC. T Of Tf:XAS
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1
U.S.
By
§
D~"-~::1tt:·
§
vs.
§
§
CITY OF RIVER OAKS, TEXAS,
ET AL.
I
§
§
No. 4:13-CV-443-A
(Consolidated with
No. 4: 13-CV-511-A)
§
Defendants.
§
MEMORANDUM OPINION
and
ORDER
Came on for consideration two motions to dismiss pursuant to
Rule 12(b) (6) of the Federal Rules of Civil Procedure, one filed
by defendants City of River Oaks, Texas ("City") and Police Chief
Alvin Carter ("Carter") 1 (collectively, "City Defendants"), and
one by defendant Legacy Long Distance International, Inc. d/b/a
Legacy Inmate Communications ("Legacy").
Defendants J.C.W.
Electronics, Inc., J.C.W. Electronics I, L.P., and J.C.W.
Electronics I Ltd., L.L.P. d/b/a J.C.W. Inmate Payphone Systems
(collectively, "J.C.W. Defendants"), are not parties to the
motions to dismiss.
Plaintiffs 2 filed a response to each motion,
1
The consolidated amended complaint identifies the police chief as "Alvin Carter," while the motion
to dismiss names him as "Avin Carter." The court will refer to this defendant as he is named in the
consolidated amended complaint.
2
Plaintiffs are Michael Boyd, individually and as heir of Christine Sexton, deceased; Sarah-Raspberry
Epiphany Farmer, by and through her next friend, Troy Farmer; Thomas Sexton, individually and as heir
(continued ... )
and City Defendants filed a reply.
Having considered all of the
parties' filings, the Consolidated Amended Complaint that is the
subject of the motions, and the applicable legal authorities, the
court concludes that City Defendants' motion should be granted in
part and denied in part, and that Legacy's motion should be
granted.
I.
Background
Two groups of plaintiffs initiated separate actions against
the various defendants.
The parties moved to consolidate the
cases, which the court granted on July 17, 2013, and ordered the
parties to file a consolidated amended complaint that combined
all claims and causes of action by all plaintiffs against all
defendants.
Plaintiffs then filed their Consolidated Amended
Complaint, which makes the following factual allegations:
Christine Sexton ("Christine") was the mother of plaintiffs
Thomas Sexton and Sarah-Raspberry Epiphany Farmer; SarahRaspberry's father is Troy Farmer.
Christine's father is
plaintiff Michael Boyd, and her mother is plaintiff Judy Ernst.
On February 2, 2013, Christine dialed 911 requesting
assistance at her residence due to an assault by her live-in
( ... continued)
of Christine Sexton; Judy Ernst, individually and as heir of Christine Sexton; and the Estate of Christine
Sexton, by and through Thomas Sexton.
2
boyfriend, Richard Briere ("Briere").
City police officers had
previously responded to other incidents at Christine's residence
concerning Briere.
Officer Edward Sherif ("Sherif") was a
personal friend of Briers's and was aware that Christine had
previously been hospitalized after being assaulted by Briere.
Upon responding to the emergency call on February 2, 2013,
the officers arrested Christine on outstanding warrants for minor
violations.
A few days later, on February 5, 2013, at
approximately 6:00p.m., Christine's sister, Darla Crites
("Crites"), visited Christine at City's jail and stayed until
approximately 7:00p.m.
Briere was also at the jail, and Crites
assumed he had been visiting Christine.
Visitors were not
searched in any way prior to seeing prisoners, and the cells
holding detainees contained a slot that was open for serving food
and for communication between prisoners and visitors, thus posing
a risk to prisoners from visitors.
Crites was taken to Christine's cell, where Sherif "was
present to overhear and take part in the conversation."
Am. Compl. at 5.
Consol.
During the conversation, Crites noticed that
Christine was extremely emotionally distraught, and she told
Crites that she wanted to commit suicide by hanging herself but
could not figure out how to do it.
Crites saw that Christine was
still wearing the same clothes Crites had brought her on February
3
2, and had not showered since arriving at the jail.
Christine
"loudly and repeatedly voiced an intention to hang herself, and
begged and pleaded for Crites to do anything to get her out of
jail."
Id.
Sherif was present and overheard this conversation,
and terminated the visit after just a few minutes despite
Crites's attempts to continuing speaking with her sister.
Although Sherif overheard Christine's threats, he failed to take
them seriously.
Immediately after seeing Christine, Crites contacted City's
jail dispatcher at 7:20 p.m. and told the dispatcher about
Christine's suicidal threats, including her belief that Christine
was a danger to herself.
Crites expressed her intent to have
Christine placed in a mental health facility after Christine
posted bond.
Crites also asked the dispatcher for any recordings
of her visit with Christine where Christine voiced her suicidal
ideation.
The dispatcher indicated that someone would have to
return her call, which Sherif did at 7:42 p.m.
Sherif told
Crites no recordings existed of her visit with Christine.
Sherif
also refused to confirm that he had overheard Christine threaten
to harm herself and "stated that no further action would be taken
to protect the life and safety of Christine," even though jail
staff were aware of her suicide threat.
Id. at 6.
No jail
personnel conducted routine, periodic checks on Christine "as
4
required by customary jail standards for pre-trial detainees who
are potentially suicidal."
Id.
Christine was scheduled to be transferred to Tarrant County
Jail on February 6, 2013, and her family had arranged to post
bail.
Throughout the day of February 6, Crites continued to call
City's dispatcher to determine if Christine had been transferred
to Tarrant County.
At 8:56p.m., Crites was told that Christine
had been transferred.
This information was false.
Instead, Christine committed
suicide and was found by Sherif at approximately 6:00 p.m. on
February 6, 2013.
That day, Christine was offered lunch around
12:00 noon, but the food was removed untouched at around 12:30
p.m.
The camera inside Christine's cell depicted the following
sequence of events following removal of her lunch tray:
at
1:13:06 p.m., Christine picked up a large white tube sock from
under the bed; the sock was not Christine's and it is unknown how
it came to be in her cell.
the sock.
At 1:23:39, Christine again picked up
At 1:23:40 Christine "tie[d] the sock around her neck
for measurement directly in front of the camera."
Id.
At
1:23:49 Christine nodded in front of the camera, apparently
realizing the sock would fit around her neck.
Christine put the sock down on the bed.
again picked up the sock.
At 1:24:54,
At 1:25:56, Christine
At 1:26:10 Christine sat down directly
5
under, but out of view of, the camera.
This was the location
where her body was discovered several hours later, at 5:53 p.m.
No one appeared in the video to check on Christine until 5:53:21.
Christine tied the white tube sock around her neck, tied the
sock around a telephone cord provided in the cell, put her hand
on the toilet seat, and bent her knees "so that the leverage
provided the necessary pressure on the neck to asphyxiate her."
Id. at 7.
Although City knew Christine was deceased at 5:53
p.m., City personnel told Crites at 8:56p.m. that Christine had
been transferred to Tarrant County Jail.
City's jail policy manual has a section dedicated to suicide
prevention.
However, City took no action to protect Christine,
despite knowledge of her suicidal behavior and ideation.
City
jail personnel never placed Christine on suicide watch, did not
supervise her in any way while she was in custody, and failed to
check on her from 12:30 p.m. until she was found deceased at 5:53
p.m.
The camera in Christine's cell also did not show the area
where the telephone was located.
The telephone in Christine's
cell was owned and operated by J.C.W. Defendants as part of a
joint venture with City.
Plaintiffs asserted claims against City under the Texas Tort
Claims Act, 42 u.s.c.
§
1983, and a healthcare liability claim
pursuant to Chapter 74 of the Texas Civil Practice & Remedies
6
Code. 3
Against Legacy and J.C.W. Defendants plaintiffs asserted
claims of negligence, breach of implied warranty, breach of
express warranties, strict liability, and misrepresentation.
II.
Grounds of Defendants' Motions
A.
City Defendants' Motion
City Defendants move for dismissal on the following grounds:
plaintiffs failed to adequately plead a cause of action for
deprivation of Christine's Fourteenth Amendment rights;
plaintiffs' state law claims are barred by sovereign immunity, 4
which has not been waived, nor do these claims involve the
tangible use of property or a premises defect within the scope of
the statutory waiver of immunity; plaintiffs' claims do not
constitute a health care liability claim; plaintiffs' request for
exemplary damages on their federal law claim is barred by
sovereign immunity and the Eleventh Amendment to the
Constitution, and the request for exemplary damages as to their
3
Although he is named as a defendant, no claims or causes of action appear to be asserted against
Carter. The first three claims of the Consolidated Amended Complaint are expressly alleged against
City, while the remainder are against Legacy and the J.C.W. Defendants.
4
"Sovereign immunity refers to the State's immunity from suit and liability." Wichita Falls State
Hosp. v. Taylor, 106 S.W.3d 692, 694 n.3 (Tex. 2003). Governmental immunity affords the same
protection to political subdivisions of the State, including cities, and is the more appropriate term here.
Id. Both parties use the term "sovereign immunity" in their briefs, and the court will do likewise, as the
outcome is the same.
7
state law claims is barred by sovereign immunity; and all claims
against Carter are asserted against him in his official capacity
and are redundant of claims against City.
B.
Legacy's Motion
The essence of Legacy's motion is that plaintiffs have
failed to allege any factual allegations to support any of the
causes of action against it.
Instead, Legacy contends that all
of the causes of action against it assert legal conclusions, as
opposed to facts.
III.
Applicable Legal Principles
Rule 8(a) (2) of the Federal Rules of Civil Procedure
provides, in a general way, the applicable standard of pleading.
It requires that a complaint contain "a short and plain statement
of the claim showing that the pleader is entitled to relief,"
Fed. R. Civ. P. 8(a) (2), "in order to give the defendant fair
notice of what the claim is and the grounds upon which it rests."
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
quotation marks and ellipsis omitted) .
(internal
Although a complaint need
not contain detailed factual allegations, the "showing"
contemplated by Rule 8 requires the plaintiff to do more than
simply allege legal conclusions or recite the elements of a cause
of action.
Twombly, 550
u.s.
at 555 & n.3.
8
Thus, while a court
must accept all of the factual allegations in the complaint as
true, it need not credit bare legal conclusions that are
unsupported by any factual underpinnings.
556 U.S. 662, 679 (2009)
See Ashcroft v. Igbal,
("While legal conclusions can provide
the framework of a complaint, they must be supported by factual
allegations.")
Moreover, to survive a motion to dismiss for failure to
state a claim, the facts pleaded must allow the court to infer
that the plaintiff's right to relief is plausible.
Id.
To
allege a plausible right to relief, the facts pleaded must
suggest liability; allegations that are merely consistent with
unlawful conduct are insufficient.
550 u.s. at 557).
Id. at 678 (citing Twombly,
"Determining whether a complaint states a
plausible claim for relief .
[is] a context-specific task
that requires the reviewing court to draw on its judicial
experience and common sense."
Id. at 679. 5
5
In each of their responses, plaintiffs argued that in deciding a motion to dismiss, the court "must
consider the complaint in its entirety, as well as other sources courts ordinarily examine when ruling"
on such a motion. Pis.' Resp. to Legacy's Mot. to Dismiss at 4 (emphasis in original). The source of this
quote is Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308 (2007). The "other sources" referred
to in Tellabs include "documents incorporated into the complaint by reference, and matters of which a
court may take judicial notice." Id. at 322. To the extent plaintiffs rely on this language to suggest that
the court should consider the papers attached to their response to Legacy's motion, the court declines to
do so. The papers are unauthenticated and are neither "incorporated into the complaint by reference," nor
are the type of which the court may take judicial notice. Although the papers attached to plaintiffs'
response to City Defendants' motion are referred to, and relied on, in their Consolidated Amended
Complaint, they are also unauthenticated, and the court did not consider them in deciding that motion.
9
IV.
Application of Law to Facts
A.
Claims Against City
1.
Tort Claims Act
City, as a governmental entity, is immune from liability
unless a constitutional or statutory provision clearly and
unambiguously waives such immunity.
Wichita Falls State Hosp. v.
Taylor, 106 S.W.3d 692, 696 (Tex. 2003).
Pertinent here, the
Texas Tort Claims Act waives sovereign immunity for "personal
injury and death . . . caused by a condition or use of tangible
personal or real property if the governmental unit would, were it
a private person, be liable to the claimant according to Texas
law."
Tex. Civ. Prac. & Rem. Code§ 101.021(2).
Immunity is not
waived, however, when the governmental unit "merely 'allow[s]
someone else to use the property and nothing more.'"
Cnty. v. Posey, 290 S.W.3d 869, 871 (Tex. 2009)
(alteration in original)
Dallas
(per curiam)
(quoting San Antonio State Hosp. v.
Cowan, 128 S.W.3d 244, 246 (Tex. 2004)).
Rather, section
101.021(2) waives immunity only when the governmental unit itself
uses the property.
Texas A & M Univ. v. Bishop, 156 S.W.3d 580,
583 (Tex. 2005).
Opinions of the Texas Supreme Court interpreting section
101.021(2) demonstrate application of the above principles.
10
In
Cowan, the decedent was committed to a state hospital, where he
was allowed to keep his suspenders and walker with him.
S.W.3d at 245.
128
The decedent later used those items to commit
suicide, and the decedent's family sued under section 101.021(2).
Id.
The Supreme Court held that the hospital did not "use" the
personal property, as contemplated by section 101.021(2), merely
by allowing the decedent to have it, and so did not waive its
sovereign immunity.
Id. at 246.
Similarly, a state university did not "use" a knife in a
manner that waived sovereign immunity when faculty advisors
allowed a student in a theater production to use a real knife
that injured a second student.
Bishop, 156 S.W.3d at 583-84.
The court in Posey faced almost the identical factual
situation as the one now before the court.
for assaulting his mother.
Posey was arrested
290 S.W.3d at 871.
During intake,
the officer left blank a question inquiring into whether Posey
was believed to be a medical, mental health, or suicide risk.
Id.
Posey was eventually moved into a cell with a corded,
although non-working, telephone, and later committed suicide by
hanging himself with the telephone cord.
Id.
The court held
that the defendant-county "did no more than place Posey in a cell
with a corded telephone, which he used to commit suicide."
Id.
Consequently, the court found that Posey's suicide "did not arise
11
from the [c]ounty•s use of property."
Id.
(alterations in
original) . 6
These cases all point to the same conclusion in this action:
the factual allegations in the Consolidated Amended Complaint
allege nothing more than that City placed Christine in a cell
with a corded telephone, which she used to commit suicide.
No
facts are alleged showing any "use" by City of the tube sock, the
telephone, the camera and surveillance equipment, or the jail
design, sufficient to waive immunity as contemplated by section
101.021(2).
Accordingly, the court finds that City has not
waived its immunity, and plaintiffs have failed to state a claim
for relief, under the Texas Tort Claims Act.
2.
Claims Under 42 U.S.C.
§
1983
The court concludes that plaintiffs have alleged sufficient
factual allegations to survive dismissal of their claims under 42
U.S.C.
3.
§
1983, and the motion is denied as to such claims.
Health Care Liability Claim
Plaintiffs contend that City or its employees/agents failed
to admit Christine for inpatient care when she was suicidal,
and/or failed to prescribe medication or some form of treatment
that would ameliorate her suicidal condition.
6
Plaintiffs contend
Aithough plaintiffs contend that Dallas Cnty. v. Posey, 290 S.W.3d 869 (Tex. 2009) (per curiam),
was incorrectly decided, they have directed the court to no authority supporting that contention, nor to
any overturning it.
12
that City negligently diagnosed, ,treated, and supervised
Christine while she was incarcerated, and failed to follow proper
protocols for a suicidal prisoner.
According to plaintiffs, all
of these acts and omissions were the "direct and proximate cause"
of Christine's death in violation of Chapter 74 of the Texas
Civil Practice & Remedies Code.
Pls.' Consol. Am. Compl. at 14.
City maintains that dismissal of this claim is warranted
based on the clear language of section 74.003, which states that
"[t]his chapter does not waive sovereign immunity from suit or
from liability."
Tex. Civ. Prac. & Rem. Code§ 74.003.
Additionally, City argues that under this chapter, a "health care
liability claim" is "a cause of action against a health care
provider or physician."
Id. at§ 74.001(13).
"Health care
provider" is further defined as "any person, partnership,
professional association, corporation, facility, or institution
duly licensed, certified, registered, or chartered by the State
of Texas to provide health care . . .
II
Id. at (12) (A).
City
notes that neither it nor Carter fall within the definition of
"health care provider," so plaintiffs cannot assert claims
against them under Chapter 74.
In response, plaintiffs rely on Chapter 71 of the Texas
Civil Practice & Remedies Code, which is titled "Wrongful Death;
Survival; Injuries Occurring Out of State."
13
Under section
71.001, a "municipal corporation" is included in the definition
of persons against whom a wrongful death action may be brought,
and plaintiffs argue that this definition shows they may maintain
this claim against City.
Plaintiffs are mistaken.
A claim under
Chapter 71 of the Civil Practice & Remedies Code is distinct
from, and not equivalent to, a claim under Chapter 74.
Hence, a
definition in Chapter 71 has no bearing on the clear assertion of
sovereign immunity in Chapter 74, and the Chapter 74 claim is
dismissed.
Plaintiffs' reliance on Chapter 71 is puzzling, as no such
claims are asserted in the Consolidated Amended Complaint.
On
page 8 of the Consolidated Amended Complaint is the following
heading:
Notice:
All Causes of Action Asserted as Wrongful Death and
Survivorship Claims[.]
Under this heading, plaintiffs explain that they are all
"wrongful death beneficiaries of Decedent," and that "all causes
of action" seek damages "under the Texas wrongful death
statutes."
Consol. Am. Compl. at 8.
Page 10 of the Consolidated
Amended Complaint further states that the Estate alleges all
causes of action as "survivorship claims" and seeks recovery
"under the Texas survival statutes."
14
Id. at 10.
Following the
paragraph containing the "survivorship" language is a heading
identifying "Count One" as claims against City under the Texas
Tort Claims Act.
On page 2, in identifying the sources of their
causes of action, plaintiffs included Chapter 74, but not Chapter
71, of the Texas Civil Practice & Remedies Code.
Nowhere in the
Consolidated Amended Complaint is there a separate count or cause
of action pursuant to Chapter 71.
Wrongful death and survivor claims are separate and distinct
statutory claims, and both are distinct from healthcare liability
claims.
1998)
See
~,
Shepherd v. Ledford, 962 S.W.2d 28, 31 (Tex.
(discussing separately the Wrongful Death Act, Survival
Statute, and the predecessor to the Medical Liability statute in
Chapter 74); THI of Tex. at Lubbock I, LLC v. Perea, 329 S.W.3d
548, 568 (Tex. App.--Amarillo 2010, pet. denied)
(discussing
differences in the Wrongful Death Act and Survival statute) .
Hence, plaintiffs' blanket statement in the Consolidated Amended
Complaint that they assert "all causes of action" as wrongful
death and survivorship claims misapprehends the nature of those
statutory claims.
Nor does it appear that such claims would be viable against
City.
As discussed, any waiver of sovereign immunity must be
clear and unambiguous.
696.
Wichita Falls State Hosp., 106 S.W.3d at,
Other courts to consider the issue have failed to find a
15
waiver of immunity as to claims under Chapter 71.
See
~'
Saenz v. City of McAllen, 396 F. App'x 173, *179 {5th Cir. 2010);
City of Tex. City v. Suarez, No. 01-12-00848-CV, 2013 WL 867428,
at *5 {Tex. App.--Houston [1st Dist.] March 7, 2013, pet. filed
Nov. 26, 2013)
{mem. op.)
{holding no waiver of sovereign
immunity under Wrongful Death Act); Miller v. City of Fort Worth,
893 S.W.2d 27 {Tex. App.--Fort Worth 1994), writ dismissed by
agreement {Oct. 19, 1995), overruled on other grounds, City of
Fort Worth v. Robles, 51 S.W.3d 436 {Tex. App.--Fort Worth 2001,
pet. denied)
{rejecting claim of waiver by plaintiffs relying on
language in section 72.001); but see Whipple v. Deltscheff, 731
S.W.2d 700 {Tex. App.--Houston [14th Dist.] 1987, writ ref'd
n.r.e.)
{recognizing that county may be liable for wrongful death
under the waiver provisions of the Texas Tort Claims Act) .
These
authorities argue against reading into the Consolidated Amended
Complaint claims against City pursuant to the Wrongful Death or
Survivorship statutes.
4.
Punitive Damages
City argues that plaintiffs cannot recover punitive damages
from it for their federal or state law claims.
City is correct.
The Supreme Court has expressly held that municipalities are
immune from punitive damages under
§
1983.
City of Newport v.
Fact Concerts, Inc., 453 u.s. 247, 271 {1981).
16
Although
plaintiffs in their response protest that they are not barred
from seeking punitive damages under federal law, they cite to no
authority supporting that position.
Plaintiffs are barred from
recovering punitive damages from City in this action. 7
5.
Claims Against carter
City Defendants urge that all claims against Carter should
be dismissed because he was named as a defendant in his official
capacity only, and such claims are redundant of those asserted
against City.
Plaintiffs in their response seem to argue
primarily that Carter is not entitled to qualified immunity, and
maintain that "a careful reading" of the Consolidated Amended
Complaint includes factual allegations against Carter, "who
signed and was charged with the deficient jail policies in
question."
Pls.' Resp. to City Defs.' Mot. and Supporting Br. to
Dismiss Pls.' Consol. Am. Compl. at 20.
As an initial matter, Carter does not assert the defense of
qualified immunity, so plaintiffs' argument on that subject is
moot.
The court agrees with City Defendants that the claims
against Carter in his official capacity--the only capacity in
which he is named as a defendant--must be dismissed.
A suit against a government official in his or her official
7
As the court has dismissed plaintiffs' state law claims against City, it need not consider whether
plaintiffs could have recovered punitive damages under any of the theories asserted.
17
capacity represents "only another way of pleading an action
against an entity of which an officer is an agent."
Graham, 473 U.S. 159, 165 (1985)
Kentucky v.
(citation omitted).
The
Consolidated Amended Complaint identifies Carter as a party "in
his official capacity."
Consol. Am. Compl. at 2.
No indication
is given in the remainder of the Consolidated Amended Complaint
of an intention to name Carter in his individual capacity.
Because plaintiffs are suing Carter only in his official
capacity, and are also suing City, the entity of which Carter is
an agent, any claims against Carter are really claims against
City, and are dismissed.
B.
Claims Against Legacy
The court could discuss in detail each of the claims against
Legacy and the specific grounds for dismissal argued in Legacy's
motion.
However, the court finds that dismissal is warranted as
to each of these claims for essentially the same reason:
no
facts are alleged in the Consolidated Amended Complaint as would
support any such claims.
After being identified on page 3 of the Consolidated Amended
Complaint under the heading "Parties and Involved Individuals,"
Legacy disappears until page 14, where it reappears under the
heading "Claims Against J.C.W. and Legacy."
Under each of the
headings identifying the claims and causes of action against
18
Legacy, plaintiffs have offered nothing more than bare legal
conclusions.
Not a single fact is pleaded in the Consolidated
Amended Complaint that describes any action or failure to act by
Legacy that could support any of the causes of action against it.
While well-pleaded facts of a complaint are to be accepted as
true, legal conclusions are not "entitled to the assumption of
truth."
Iqbal, 556 U.S. at 679 (citation omitted).
Legal
conclusions, however, are all that are directed at Legacy.
The
court finds that plaintiffs have failed to allege anything as to
Legacy that would raise a right to relief up to, much less above,
the speculative level.
C.
See Bell Atl., 550 U.S. at 555.
No Service On J.C.W. Defendants
The court has determined that there is no record in the file
of the above action of service of summons and Consolidated
Amended Complaint upon any of the J.C.W. Defendants.
By the date
set forth below, plaintiffs must file either proof of proper
service of summons and Consolidated Amended Complaint on J.C.W.
Defendants, or an instrument containing a satisfactory
explanation, in affidavit form, as to why such proof cannot be
filed.
D.
Request to Replead
In the conclusion of their response to Legacy's motion to
dismiss, plaintiffs ask that they be permitted to replead.
19
Rule
LR 10.1(a) of the Local Civil Rules of the United States District
Court for the Northern District of Texas requires that each
motion must " (a) contain on its face a title clearly identifying
each included pleading, motion, or other paper;
II
The
response to Legacy's motion to dismiss does not indicate on its
face that it includes a motion or request to replead.
Plaintiffs
also did not inform the court of the additional facts they could
plead to correct the deficiencies in the Consolidated Amended
Complaint, and they did not attach to the response a proposed
amended Consolidated Amended Complaint.
Additionally, prior to the July 17, 2013 order consolidating
the two original actions, City Defendants filed a motion to
dismiss, raising the same grounds for dismissal as in the motion
now before the court. 8
Although that motion was rendered moot
when the parties moved to consolidate the two actions, plaintiffs
at that time were on notice of the purported defects in their
complaint as to City.
In the July 17, 2013 consolidation order, the court directed
plaintiffs to file an amended complaint.
In response, the two
sets of plaintiffs each filed a separate amended complaint.
court then ordered the parties to file a single, consolidated
8
Carter was not named as a defendant in the original complaint, so the first motion to dismiss
obviously did not address claims against him.
20
The
amended complaint.
Plaintiffs have thus had multiple
opportunities to amend their pleadings, and even had the benefit
of City's first motion to dismiss to alert them to potential
problems with their pleadings.
Presumably by this point
plaintiffs have pleaded their best case.
The court can see
nothing to be gained by giving plaintiffs yet another bite at the
apple.
Under these circumstances, the court is not permitting
plaintiffs to replead.
Sullivan v. Leor Energy, LLC, 600 F.3d
542, 551 (5th Cir. 2010).
* * * *
So the record is clear, all that remains of plaintiffs'
claims in this action are plaintiffs' claims against City
pursuant to 42 U.S.C.
§
1983, and plaintiffs' claims against
J.C.W. Defendants.
v.
Order
Therefore,
The court ORDERS that:
{1)
City's motion to dismiss be, and is hereby,
granted as to plaintiffs' claims under the Texas Tort Claims
Act and their health care liability claim pursuant to
Chapter 74 of the Texas Civil Practice & Remedies Code, and
such claims be, and are hereby, dismissed with prejudice,
21
and City's motion to dismiss be, and is hereby, denied, as
to plaintiffs' claims pursuant to 42 U.S.C.
(2)
§
1983;
All claims and causes of action asserted by
plaintiffs against Carter in his official capacity be, and
are hereby, dismissed without prejudice;
(3)
Legacy's motion to dismiss be, and is hereby,
granted, and that all claims and causes of action against
Legacy be, and are hereby, dismissed with prejudice.
The court determines that there is no just reason for delay
in, and hereby directs, entry of final judgment as to such
dismissals.
The court further ORDERS that by 4:00p.m. on January 23,
2014, plaintiffs file either proof of proper service of summons
and complaint on J.C.W. Defendants, or an instrument containing a
satisfactory explanation, in affidavit form, as to why such proof
cannot be filed.
If plaintiffs fail to comply with this order the court will
consider the dismissal, without further notice, of plaintiffs'
claims and causes of action against J.C.W. Defendants, as
authorized by Rule 4(m) of the Federal
SIGNED January 16, 2014.
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