Finstad v. City of Pelican Bay, Texas et al
Filing
16
MEMORANDUM OPINION and ORDER granting 11 MOTION to Dismiss, granting 12 MOTION to Dismiss... all claims and causes of action alleged by plaintiff against City or Calloway be, and are hereby, dismissed. See Order for further specifics. (Ordered by Judge John McBryde on 9/9/2014) (krg)
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IN THE UNITED STATES DISTRI T COUFT
NORTHERN DISTRICT OF TE AS
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FORT WORTH DIVISION
ROBIN FINSTAD,
CLERK, U.S.DISTIUCTC6CRT
§
.By _ _-;;:-~---
§
§
§
Plaintiff,
vs.
CITY OF PELICAN BAY, TEXAS,
ET AL.
I
Defendants.
§
§
§
§
§
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... 9 20J4
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NO.· 4:14 -CV-488 -A
MEMORANDUM OPINION
and
ORDER
Before the court for consideration and decision are the
motions of defendants, City of Pelican Bay, Texas,
("City") and
Cass Calloway ("Calloway"), to dismiss for the failure of
plaintiff, Robin Finstad, to state a claim upon which relief can
be granted.
After having considered such motions, the response
of plaintiff, the replies of City and Calloway, plaintiff's
complaint, and applicable legal authorities, the court has
concluded that both motions should be granted and that all claims
and causes of action asserted by plaintiff against City and
Calloway should be dismissed.
I.
Plaintiff's Complaint
Plaintiff, who apparently is a current or former member of
City's city council, seeks to recover actual and punitive
damages, attorney's fees, court costs, and pre- and post-judgment
interest against defendants as a result of what plaintiff refers
to as an unlawful detention and arrest "for allegedly fleeing
from the police."
Compl. at 4,
~
1.13.
In summary form, the
conclusory allegations made by plaintiff in support of her prayer
for monetary relief are as follows:
City's Police Department, at the instruction of its nowdeceased mayor, Clifford Tynes ("Tynes"), and at the advice of
its city attorney, Calloway, began a campaign of intimidation and
retaliation against plaintiff for her having questioned the
finances of City under Tynes's stewardship, including the costs
of Calloway's bills to City for his legal services.
Calloway and
Tynes conspired to falsely accuse and arrest plaintiff.
City is a mayor-council form of government.
mayor, was the policy maker for City.
Tynes, as
He had the power to hire
and fire City's department heads, and to establish policies and
customs for City, including the police department.
While Gilbert Townes ("Townes") was City's chief of police,
Tynes on several occasions ordered Townes to find a way to make
an unlawful arrest of plaintiff because she was asking too many
questions about the budget and the operations of City, including
legal expenses paid to Calloway.
Tynes told Townes that if he
did not arrest plaintiff, he would be fired.
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When Townes
continued to refuse to make an unlawful arrest of plaintiff,
Tynes fired Townes.
It was policy, custom, and practice of Tynes to try to cause
his political opponents, such as plaintiff, to be charged
criminally, arrested, and confined in an effort to exercise his
political will and intimidate his political opponents.
Consistent with Tynes's policies, customs, and practices, Tynes
ordered the arrest of plaintiff even though there was no legal
reason for her to be arrested and she had not committed any
crime.
After firing Townes, Tynes appointed a new chief of police
for City, James Frawley ("Frawley").
Immediately thereafter,
Tynes ordered Frawley to arrest plaintiff.
Following the orders
of Tynes and Calloway, "Plaintiff was unlawfully detained and
arrested for allegedly fleeing from the police."
Id.
Calloway
has a prior history of conspiring to have persons arrested who
question his actions and/or fees," id. at 6,
~
5.04, and
"Calloway conspired with . . . Tynes and aided and abetted
Tynes in the false arrest of Plaintiff," id., ~ 5.05.
The false
charge was dropped following plaintiff's arrest.
For the deliberate violation of her civil rights by City,
"Plaintiff seeks damages to compensate for her injuries, damages,
and/or suffering," and she "brings [the] action under 42 U.S.C.
3
§§
1983 and 1988, the First, Fourth, and Fourteenth Amendments to
the United States Constitution, and other constitutional
provisions and laws of the State of Texas and the United States
for the deprivation of her rights under color of law and in
violation of federal laws and the laws of the State of Texas."
Id. at 4, ~ 1.15.
II.
Grounds of the Motions to Dismiss
Both motions are predicated on the broad proposition that
the conclusory allegations of plaintiff's complaint fail to
satisfy the pleading requirements of Rule 8{a} {2} of the Federal
Rules of Civil Procedure as defined by the Supreme Court in Bell
Atl. Corp. v. Twombly, 550
556
u.s.
u.s.
554 {2007} and Ashcroft v. Iqbal,
662 {2009}.
City maintains that for plaintiff to state a cause of action
against it under
§
1983 she must plead facts showing that {1} a
policy or custom of City existed;
(2} City's policy makers
actually or constructively knew of its existence;
{3} a violation
of plaintiff's constitutional rights occurred; and {4} the custom
or policy served as the moving force behind the violation, and
that plaintiff has failed to satisfy those pleading requirements.
Consequently, City asserts, plaintiff has not factually alleged a
cause of action against City under
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§
1983, which is the statutory
vehicle through which plaintiff must assert whatever federal
claims she contends she has against City.
As to whatever state law claims plaintiff might be trying to
assert against City, City argues that it has sovereign immunity
from any such claim; and, City adds that to whatever extent
plaintiff might be seeking to assert a claim against City under
the Texas Tort Claims Act ("Act"), such a claim would be
unsuccessful because the Act expressly excludes from its scope
any intentional tort such as the intentional tort of false arrest
alleged by plaintiff against City.
City adds that both federal and state law are clear that in
no event could plaintiff successfully assert a claim against City
for punitive damages.
City and Calloway both maintain that plaintiff has not
satisfied the plausibility pleading requirements mandated by the
Supreme Court in Twombly and Iqbal as to her claim that Tynes and
Calloway caused her to be unlawfully arrested.
They note in
their motions the absence of any allegations in the complaint of
the factual details surrounding her arrest or that would lead to
a plausible conclusion that her arrest was the result of Tynes
and Calloway instructing the police chief to arrest her
unlawfully.
Both defendants note that absent from the complaint
are any allegations of fact that, if believed, would lead to the
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conclusion that plaintiff had not engaged in conduct that
provided probable cause for her to be arrested by a member or
members of City's police department.
Calloway adds in his motion that plaintiff has failed to
identify factually any facts that would support plaintiff's
conclusory allegation that Calloway conspired with Tynes to have
plaintiff unlawfully arrested, or that the arrest of which
plaintiff complains was the product of any such conspiracy.
III.
Analysis
A.
Legal Standards to be Applied
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,
Twombly, 550 U.S. at 555.
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.
555 & n.3.
Id. at
Thus, while a court must accept all of the factual
allegations in the complaint as true, it need not credit bare
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legal conclusions that are unsupported by any factual
underpinnings.
See Iqbal, 556 U.S. at 669 {"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 under Rule 12{b) {6), 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.
U.S. at 566-69.
Twombly, 550
"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."
B.
Iqbal, 556 U.S. at 679.
Plaintiff Failed to Make a Plausible Assertion That Her
Alleged Unlawful Arrest Was Caused by Any Policy, Custom, or
Practice Adopted or Created by the Governing Body of City
Plaintiff alleged that u[i]t was the policy, custom and
practice of Mayor Tynes to try and get his political opponents,
such as Plaintiff Finstad, charged with criminal charges,
arrested, and confined in an effort to exercise his political
will and intimidate his political opponents" and that
u[c]onsistent with Mayor Tynes [sic] policies, customs, and
practices, Mayor Tynes ordered the arrest of Plaintiff Finstad
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even though there was no legal reason to do so and she had not
committed any crime."
Compl. at 3-4, , 1.12.
Apparently
plaintiff assumes that a policy, custom, or practice of Tynes is
attributable to City, and that City somehow becomes liable under
the respondeat superior doctrine for damages resulting from
Tynes's pursuit of his policy, custom, or practice.
Plaintiff is
mistaken.
By Texas statute, the mayor of a Texas municipality is
charged with the obligation to "actively ensure that the laws and
ordinances of the municipality are properly carried out"; and, he
"shall perform the duties and exercise the powers prescribed by
the governing body of the municipality."
§
22.042(a).
Tex. Local Gov't Code,
Plaintiff does not identify in her complaint the
governing body of City.
Presumably it is City's city council.
Whatever it is, plaintiff has made no allegation of fact that the
governing body of City had any policy, custom, or practice of
allowing City officials, including the mayor, to cause illegal
arrests to be made.
As the Supreme Court hastened to emphasize in Pembaur v.
Cincinnati, "not every decision by municipal officers
automatically subjects the municipality to
§
1983 liability" and
that "[m]unicipal liability attaches only where the decision
maker possesses final authority to establish municipal policy
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with respect to the action ordered."
475 U.S. 469, 481 (1986).
The failure of plaintiff to allege facts that, if believed, would
lead to the conclusions that City had a policy, custom, or
practice of having its officials cause unlawful arrests to be
made and that plaintiff's arrest was the result of such a policy,
custom, or practice is fatal to her alleged federal law claims
against City.
C.
As a Matter of Law Plaintiff's Alleged State Law Claims
Against City Lack Merit
City has sovereign immunity from state law claims absent a
clear and unambiguous expression by the Texas Legislature of its
intent to waive immunity.
See Wichita Falls State Hasp. v.
Taylor, 106 S.W.3d 692, 696 (Tex. 2003); see also, Tex. Gov't
Code
§
311.034.
Any claim against a governmental entity in the nature of a
tort are assumed to be brought pursuant to the Act.
Mission
Consol. !.S.D. v. Garcia, 253 S.W.3d 653, 659 (Tex. 2008).
For
plaintiff to bring a state law claim against City on the basis of
an alleged unlawful arrest, she would have to find basis for it
in the Act.
She claims that she was harmed by the intentional
conduct of Tynes in causing her to be unlawfully arrested.
Thus,
her claim fails as a matter of law because City's sovereign
immunity is preserved for such a false arrest claim.
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See Morris
v. Copeland, 944 S.W.2d 696, 699 (Tex. App.--Corpus Christi,
1997, no writ).
D.
Plaintiff Failed to Allege a Plausible Claim of Unlawfulness
of the Arrest She Sought to Attribute in Her Pleading to
Tynes and Calloway
Conspicuously absent from plaintiff's complaint is any
allegation that the officer or officers of City who arrested her
did not have probable cause to believe that she had engaged in
conduct that would make such an arrest appropriate.
She alleged
that Tynes ordered her arrest even though there was no legal
reason to do so, but she failed to allege that when she was
actually arrested she had not engaged in conduct that caused the
arresting officer or officers to have a legitimate reason-probable cause--for arresting her.
Plaintiff has chosen not to provide any of the details
surrounding her arrest other than that it was for allegedly
fleeing from the police.
She simply has failed to satisfy her
pleading obligation to plead facts that would make plausible her
claim that the officer or officers who arrested her intentionally
acted unlawfully as opposed to responding to what he or they
perceived was illegal conduct on her part.
This provides an
additional reason why the claims against City must be dismissed
and a reason why the claims against Calloway must be dismissed.
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E.
Plaintiff's Conspiracy Allegations Against Calloway are
Insufficient
Plaintiff made conclusory allegations that Calloway
conspired with Tynes to falsely accuse and arrest plaintiff,
Compl. at 2,
~
1.04, that Calloway had a prior history of
conspiring to have persons arrested who questioned his actions
and/or fees,
id. at 6, ~ 5.04, and that Tynes conspired with
Calloway to order plaintiff's false arrest and in her false
arrest, id., ~ 5.05.
None of those broad conclusory allegations
are supported by any facts that would make them plausible.
Much
less is there any allegation of fact that the actual arrest of
which plaintiff complained was the product of any conspiracy of
which Calloway was a part.
This provides another reason why
Calloway's motion must be granted.
IV.
Order
For the reasons stated above,
The court ORDERS that the motions of City and Calloway to
dismiss be, and are hereby, granted; and
The court further ORDERS that all claims and causes of
action alleged by plaintiff against City or Calloway be, and are
hereby, dismissed.
SIGNED September 9, 2014.
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