Woods v. Keiffer et al

Filing 36

Memorandum Opinion and Order granting 27 Motion for Summary Judgment filed by John Keiffer re: 27 MOTION for Summary Judgment. The court ORDERS that all claims and causes of action asserted by plaintiff against Keifer be, and are hereby, dismissed and that all claims and causes of action deemed to have been asserted by plaintiff against County be, and are hereby, dismissed. (Ordered by Judge John McBryde on 5/19/2014) (mem)

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:-~-L;.s: DISTRICT COU i~ f
I NORTHEI{l'l DISTRICTOFTEXAS

FILED

IN THE UNITED STATES DISTR CT co~~Y
NORTHERN DISTRICT OF T XAS ~
FORT WORTH DIVISIO
2014

/

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TERRANCE WOODS,
Plaintiff,

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vs.
DEPUTY CONSTABLE KEIFER OF
TARRANT COUNTY, ET AL.,
Defendants.

CLERK, U.S. DISTRICT COtPT

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§

BY----~~-----­
Deput~'

NO. 4:13-CV-957-A

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MEMORANDUM OPINION
and
ORDER
Before the court for consideration and decision is the
motion of defendant Deputy Constable Keifer of Tarrant County,
Texas ("Keifer") for summary judgment.

After having considered

such motion, the response of plaintiff, Terrance Woods, thereto,
the entire record of the above-captioned action, and pertinent
legal authorities, the court has concluded that such motion
should be granted, that all claims and causes of action asserted
by plaintiff against Keifer should be dismissed, that Tarrant
County, Texas ("County") should be deemed to be a defendant by
virtue of plaintiff's claims against Keifer in his official
capacity, as well as his individual capacity, and that there
should be a dismissal, sua sponte, of all claims and causes of
action deemed by plaintiff to have been asserted against County
by reason of his action against Keifer in his official capacity.

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!

I.

Nature of Plaintiff's Complaint
Boiled down to their essence, the allegations of plaintiff's
complaint are that Keifer, as a deputy constable of County,
wrongfully executed a writ of possession that had.been issued by
a County Court at Law of County directing any constable of the
State of Texas to take possession of residential property owned
or occupied by plaintiff at 2716 Gillespie Court, Grand Prairie,
Texas 75052 and to deliver possession of the property to PennyMac
Loan Services, LLC ("PennyMac").

As so often is true in cases of

this sort, the allegations of the complaint are somewhat lacking
in clarity.

A more complete description of the allegations of

the complaint is found on pages 2-3 of the Memorandum Opinion and
Order issued in this action on February 12, 2014.

Named as

defendants were Keifer, PennyMac, Lauren E. Christoffel, Attorney
("Christoffel"), Barrett, Dappin, Frappier, Turner & Engel, LLC
("Law Firm") and John Does I-III.

The court has issued prior

orders and final judgments dismissing plaintiffts claims against
PennyMac, Christoffel, Law Firm, and John Does I-III.

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II.
Analysis
A.

Motion for Summary Judgment Standards
Rule 56(a) of the Federal Rules of civil Procedure provides

that the court shall grant summary judgment on a claim or defense
if there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.
P. 56(a); Anderson v. Liberty Lobby, Inc., 477
(1986).

Fed. R. Civ.

u.s.

242, 247

The movant bears the initial burden of pointing out to

the court that there is no genuine dispute as to any material
fact.

Celotex Corp. v. Catrett, 477

u.s.

317, 323, 325 (1986).

The movant can discharge this burden by pointing out the absence
of evidence supporting one or more essential elements of the
nonmoving party's claim, "since a complete failure of proof
concerning an essential element of the nonmoving party's case
necessarily renders all other facts immaterial."

Id. at 323.

Once the movant has carried its burden under Rule 56(a), the
nonmoving party must identify evidence in the record that creates
a genuine dispute as to each of the challenged elements of its
case.

Id. at 324; see also Fed. R. Civ. P. 56 (c)

asserting that a fact .

.

("A party

. is genuinely disputed must support

the assertion by

citing to particular parts of materials in

the record . . . . ").

If the evidence identified could not lead
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a rational trier of fact to find in favor of the nonmoving party
as to each essential element of the nonmoving party's case, there
is no genuine dispute for trial and summary judgment is
appropriate.
. 475

u.s.

Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

574, 587, 597 (1986).

The standard for granting a motion for summary judgment is
the same as the standard for rendering judgment as a matter of
law.

Celotex Corp., 477

u.s.

at 323.

If the record taken as a

whole could not lead a rational trier of fact to find for the
non-moving party, there is no genuine issue for trial.
Matsushita, 475 U.S. at 597; see also Boeing Co. v. Shipman, 411
F.2d 365, 374-75 (5th Cir. 1969)

(en bane)

(explaining the

standard to be applied in determining whether the court should
enter judgment on motions for directed verdict or for judgment
notwithstanding the verdict) .
B.

The Election-of-Remedies Ground of Keifer's Motion
Keifer asserts as one of the grounds of his motion that he

is entitled to be dismissed from this suit based upon section
101.106(f) of the Texas Civil Practice & Remedies Code, which
provides as follows:
(f)
If a suit is filed against an employee of a
governmental unit based on conduct within the general
scope of that employee's employment and if it could
have been brought under this chapter against the
governmental unit, the suit is considered to be against
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the employee in the employee's official capacity only.
On the employee's motion, the suit against the employee
shall be dismissed unless the plaintiff files amended
pleadings dismissing the employee and naming the
governmental unit as defendant on or before the 30th
day after the date the motion is filed.
There might be a debate as to whether section 101.106(f) is
applicable to this case inasmuch as plaintiff sued Keifer in his
official capacity as well as his individual capacity.

The naming

by plaintiff of Keifer as a defendant in his official capacity
was the equivalent of the naming by plaintiff of County as a
defendant.

See Monell v. Dep't of Soc. Servs. of City of New

York, 436 U.S. 658, 690 n.55 (1978); see also Turner v. Houma
Mun. Fire and Police Civil Serv., 229 F.3d 478 (5th Cir. 2000);
Goodman v. Harris County, 571 F.3d 388, 394 (5th Cir. 2009)
(noting that a county is a governmental unit) .

The court is

assuming, however, that the section has applicability to the
extent that if a plaintiff who has sued a governmental employee
in both capacities does not within the specified time file an
amended pleading dismissing the individual capacity claim against
the employee, that claim is subject to dismissal under section
101.106(f), leaving only the official capacity claim that is the
equivalent of a suit against the governmental entity.
The Texas Supreme Court has held that for purposes of
section 101.106(f) all common law tort theories alleged against a

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governmental unit are assumed to be under the Texas Tort Claims
Act.

See Franka v. Velasquez, 332 S.W.3d 367, 369 (Tex. 2011);

Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 659
(Tex. 2008).
April 16, 2014.

Keifer's motion for summary judgment was filed
Although more than thirty days have elapsed

since Keifer's motion was filed, plaintiff has not filed an
amended pleading dismissing Keifer in his individual capacity.
Therefore, Keifer is entitled to dismissal of the state law tort
claims against him in his individual capacity pursuant to the
provisions of section 101.106(f).
The provisions of sections 101.106(a) and (e) appear also to
have become operative in this action.

They read as follows:

(a) The filing of a suit under this chapter
against a governmental unit constitutes an irrevocable
election by the plaintiff and immediately and forever
bars any suit or recovery by the plaintiff against any
individual employee of the governmental unit regarding
the same subject matter.

* * * * *
(e) If a suit is filed under this chapter against
both a governmental unit and any of its employees, the
employees shall immediately be dismissed on the filing
of a motion by the governmental unit.
By suing Keifer in his official capacity, plaintiff has, in
effect, filed a suit against the governmental unit, County, thus
making an irrevocable election immediately barring any suit or
recovery by plaintiff against Keifer individually regarding the
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same subject matter.

Section 101.106(a), therefore, appears to

provide basis for dismissal of plaintiff's state law tort claims
against Keifer individually.
Section 101.106(e) appears to provide yet another basis for
dismissal of plaintiff's state law tort claims against Keifer
individually.

By suing Keifer in both his individual and

official capacities, plaintiff, in effect, sued the governmental
unit and Keifer, individually, at the same time.

The court knows

of no reason why it cannot sua sponte accomplish the dismissal
contemplated by section 101.106(e).

Accordingly, the court is

considering that section 101.106(e) provides an additional reason
for dismissal of all of plaintiff's state law claims against
Keifer.
The dismissal based on section 101.106 includes all of the
state law tort claims brought by plaintiff against Keifer.
C.

Plaintiff's Claims Under the United States Constitution Are
Without Merit
Keifer asserts the qualified immunity defense as a ground of

his motion.

That defense, if meritorious, would defeat whatever

claims plaintiff has asserted that Keifer violated his rights
under the United States Constitution.

When qualified immunity is

invoked by a defendant, the burden is on the plaintiff to
demonstrate inapplicability of the defense.

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McClendon v. City of

Columbia, 305 F.3d 314, 323

(5th Cir. 2002)

(en bane).

Here,

plaintiff has adduced no summary judgment evidence that would
raise an issue of fact that Keifer violated any of plaintiff's
Constitutional rights, much less that any such right that was
clearly established at the time.

u.s.

See Ashcroft v. al-Kidd,

, 131 S. Ct. 2074, 2080 (2011).

Moreover, the

summary judgment evidence establishes conclusively, and as a
matter of law, that an objectively reasonable constable, faced
with the circumstances facing Keifer, would not have thought that
his conduct violated any Constitutional right of plaintiff.
Thus, neither of the two prongs of qualified immunity are put in
issue by the summary judgment record.

None of the summary

judgment evidence suggests that the conduct of Keifer about which
plaintiff complains was not objectively reasonable in light of
clearly established law at the time.

See Davis v. McKinney, 518

F.3d 304, 317 (5th Cir. 2008).
D.

Plaintiff's Claims of Statutory Violations Against Keifer
Some of the allegations of the complaint suggest that

plaintiff is seeking to recover from Keifer based on alleged
violation of Texas statutes.

However, plaintiff has adduced no

summary judgment evidence that would support any claim that
Keifer violated any Texas statute, much less that Keifer did

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anything that might be interpreted to be a statutory violation
that caused any harm to plaintiff.
E.

Summary Judgment is Being Granted as to Plaintiff's Deemed
Claims Against County
As noted above, plaintiff, in effect, caused County to be a

party to this action by suing Keifer in Keifer's official
capacity as well as in his individual capacity.

The court sua

sponte has concluded that plaintiff's deemed claims against
County should be dismissed.
Plaintiff has alleged no facts that would suggest any legal
basis for liability against County by reason of any alleged
violation of the United States Constitution.

There is no

suggestion in the complaint, or in the summary judgment record,
that County had any custom, policy, or practice that led to any
improper conduct on Keifer's part.

Plaintiff's complaint is

predicated in its entirety on conduct in which Keifer engaged
pursuant to the lawfully issued writ of possession.

The fact

that Keifer made a mistake in the date he first used on his Final
Notice to Vacate is not a basis for legal liability against
Keifer, much less County.
Moreover, the election-of-remedies provision of section
101.106(b) of the Texas Civil Practice and Remedies Code would
appear to be yet another reason why the claims plaintiff has

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deemed to have made against County by reason of his suit against
Keifer in Keifer's official capacity should be dismissed.

The

filing of the suit against Keifer in his official capacity
constituted, according to section 101.106{b), an irrevocable
election by plaintiff that immediately barred any suit or
recovery by plaintiff against the governmental unit regarding the
same subject matter.

Thus, dismissal of all claims plaintiff is

deemed to have made against County under state tort law are
subject to dismissal by reason of plaintiff's election of
remedies.
The court has decided to sua sponte dismiss the claims
plaintiff is deemed to have made against County because the court
cannot conceive of anything plaintiff could have put in the
summary judgment record that would cause there to be an outcome
as to County different from dismissal.

Therefore, the court is

dismissing all of plaintiff's deemed claims against County.
III.

Order
Consistent with the rulings expressed above,
The court ORDERS that all claims and causes of action
asserted by plaintiff against Keifer be, and are hereby,
dismissed and that all claims and causes of action deemed to have

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been asserted by plaintiff against County be, and are hereby,
dismissed.
SIGNED May 19, 2014.

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