Walker, et al. v. Parker County, Texas
Memorandum Opinion and Order...all claims asserted by plaintiffs against Parker County is dismissed; the court determines that there is no just reason for delay in, and hereby directs, entry of final-judgment as to such dismissal. The court further orders that the motion of Parker County for a more definite statement is denied as moot. (Ordered by Judge John McBryde on 6/1/2017) (wrb)
U.S. DISTRICT COURT
DISTRICT OF TEXAS
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
HERBERT J. WALKER and
JUDY WALKER, INDIVIDUALLY AND
AS INDEPENDENT ADMINISTRATORS
OF COY WALKER, DECEASED,
PARKER COUNTY, TEXAS, ET AL.,
Came on for consideration the motion of defendant Parker
County, Texas ("Parker County") to dismiss for failure to state a
claim upon which relief can be granted, filed in the abovecaptioned action on May 2, 2017. Plaintiffs, Herbert J. Walker
and Judy Walker,
Individually and as Independent Administrators
of Coy Walker, Deceased, have not filed a response, and the
motion is ripe for review. Having reviewed the motion, the
record, and applicable legal authorities, the court concludes
that the motion should be granted.
Construing plaintiffs' first amended complaint liberally,
see Johnson v. Atkins,
999 F.2d 99, 100 (5th Cir. 1993),
plaintiffs appear to assert claims under 42 U.S.C. § 1983 against
each of the defendants, Parker County, Deputy Brockway
("Brockway"), Officer Christopher Kristofek, Sheriff Larry
Fowler, H.L. Casey, Ranger Tracy McDonall, Ranger Bradford, Sgt.
Montgomery, Heather Case, Officer B. Overholt, and Eathan Stark
("Stark"). Additionally, under the heading titled "Count III
Deputy Stark and Deputy Brockway- Negligence," plaintiffs seem
to assert negligence claims against "Parker County Sheriff's
Office personnel, including but not limited to Defendants Stark
. . " Doc. 10 1 at , , 62-65. Plaintiffs sued Stark
and Brockway "individually and as agents and/or employees of
Defendant [Parker County]." Id. at ,
Plaintiffs recite the following as the factual bases of
14. On or about May 24, 2015, Brockway threatened
Coy Walker with bodily injury by pointing the Taser as
him and saying words to the effect of "I'll tase you".
15. On or about May 24, 2015, Brockway used force
and/or threat of force to remove Coy Walker from 2055
Ranger Highway, Weatherford, Texas.
16. On or about May 24, 2015, Brockway placed
handcuffs on the left hand of Coy Walker placing him
17. On or about May 24, 2015, Stark wrestled Coy
Walker to the ground.
18. On or about May 24, 2015, Stark slammed Coy
Walker's head to the ground.
The "Doc. "references are to the number of the item on the docket in this action.
19. On or about May 24, 2015, Stark jumped on the
neck of Coy Walker.
20. On or about May 24, 2015, Stark falsified an
allegation of assault on a public servant against Coy
Walker for purposes of arresting him and taking him
21. On or about May 24, 2015, Coy Walker was
searched and no weapons, illicit drugs, or contraband
22. On or about May 24, 2015, the property of
Herbert J. Walker was searched and no weapons, illicit
drugs, or contraband were located.
23. On or about May 24, 2015, Defendants including
Stark and Brockway failed to timely allow life-saving
24. On or about May 24, 2015, Defendants including
Stark and Brockway failed to timely transport Coy
Walker for the administration of timely and appropriate
life-saving medical treatment.
25. On or about May 24, 2015, Coy Walker died
while under the custody and control of Parker County
Grounds of the Motion
Parker County asserted three grounds in support of its
motion to dismiss:
1. Plaintiffs fail to allege a cause of action
against Parker County.
2. Plaintiffs fail to allege any facts which would
state an actionable claim against Parker County.
3. Plaintiffs fail to allege any facts showing a
Parker County policy was the moving force causing the
alleged constitutional injury.
Applicable Pleading 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
quotation marks and ellipsis omitted) . 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. See Twombly, 550 U.S. at 555 & n.3. 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. See Ashcroft v. Iqbal,
556 U.S. 662, 679 (2009)
("While legal conclusions can provide
the framework of a complaint, they must be supported by factual
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. Iqbal, 556
U.S. at 679. To allege a plausible right to relief, the facts
pleaded must suggest liability; allegations that are merely
consistent with unlawful conduct are insufficient. Twombly, 550
U.S. at 566-69. "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." Iqbal, 556 U.S. at 679.
Section 1983 Claims Against Parker County
A governmental entity, such as Parker County, can be
subjected to monetary damages or injunctive relief only if one of
its official policies caused a person to be deprived of a
federally protected right. Monell v. Dep't of Soc. Servs., 436
U.S. 658, 694
(1978). Parker County cannot be held liable under a
theory of respondeat superior or vicarious liability. Id.
Instead, liability may be imposed against a local government
1983 only "if the governmental body itself
subjects a person to a deprivation of rights or causes a person
to be subjected to such deprivation." Connick v. Thompson, 563
U.S. 51, 60
(quoting Monell, 436 U.S. at 692)
quotation marks omitted) . To hold Parker County liabie under
1983 thus requires plaintiff to "initially allege that an
official policy or custom was a cause in fact of the deprivation
of rights inflicted." Spiller v. City of Texas City, Police
Dept., 130 F.3d 162, 167 (5th Cir. 1997)
marks and citation omitted). Therefore, liability against local
government defendants pursuant to
1983 requires proof of a
policymaker, an official policy, and a violation of
constitutional rights whose "moving force" is the policy or
Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th
The Fifth Circuit has been explicit in its definition of an
"official policy" that can lead to liability on the part of a
governmental entity, giving the following explanation in an
opinion issued en bane in response to a motion for rehearing in
Bennett v. City of Slidell:
1. 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
2. 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 attributable to the
governing body of the municipality or to an official to
whom that body had delegated policy-making authority.
Actions of officers or employees of a municipality do
not render the municipality liable under § 1983 unless
they execute official policy as above defined.
735 F.2d 861, 862
(5th Cir. 1984)
Plaintiffs' allegations do not remotely state a § 1983 claim
upon which relief can be granted against Parker County. The
complaint alleges nothing pertaining to the existence of a
policymaker, nor does it allege any policy or custom of Parker
County apart from repeating in a conclusory manner that Parker
County's "customs, policies, and practices  were the moving
force behind the constitutional violations asserted herein." Doc.
2-4, 6-13. As noted above, Parker County cannot be held
liable under a theory of respondeat superior or vicarious
liability under§ 1983. Monell, 436 U.S. at 694. Whether or not
plaintiffs could successfully bring a claim against the
individual defendants named in the complaint, plaintiffs fail to
sufficiently allege facts that would suggest liability on the
part of Parker County as to plaintiffs' § 1983 claims.
Negligence Claims Against Parker County
To the extent plaintiffs' complaint could be read to assert
negligence claims against Parker County, such claims also fail.
The doctrine of sovereign immunity protects States from liability
for the negligence of its officers or agents, unless there is a
constitutional or statutory provision waiving immunity. Hall v.
Robinson, 618 F. App'x 759, 761 (5th Cir. 2015)
Tex. Tech Univ., 540 S.W.2d 297, 298
(citing Lowe v.
(Tex. 1976)). In Texas, the
Texas Tort Claims Act provides a waiver of sovereign immunity in
certain circumstances. Tex. Civ. Prac. & Rem. Code
Univ. of Tex. Med. Branch v. York, 871 S.W.2d 175, 177 (Tex.
1994). To state a claim under the Act, plaintiffs must allege an
injury resulting from the use of publicly-owned automobiles or a
"condition or use of tangible personal or real property." Tex.
Civ. Prac. & Rem. Code
101.021; Texas Dep't of Pub. Safety v.
Petta, 44 S.W.3d 575, 580 (Tex. 2001). Plaintiffs have not
alleged any facts that would overcome Parker County's entitlement
to sovereign immunity.
* * * * *
Plaintiffs' pending motion for leave to file an amended
complaint would not, if granted, cure plaintiffs' pleading
deficiencies as to its claims against Parker County. The motion
seeks to supplement its claims against Brockway and Stark "in
their indivisual compasity [sic]," and does not any assert new
facts or claims against Parker County. Nothing in plaintiffs'
complaint suggests that there are facts that plaintiffs could
plead to state a claim against Parker County. Providing
plaintiffs with yet another opportunity to amend their complaint
would be futile. See Stripling v. Jordan Prod. Co., LLC, 234 F.3d
(5th Cir. 2000).
The court ORDERS that all claims and causes of action
asserted by plaintiffs against Parker County be, and are hereby,
The court determines that there is no just reason for delay
in, and hereby directs, entry of final judgment as to such
The court further ORDERS that the motion of Parker County
for a more definite statement be, and is hereby, denied as moot.
SIGNED June 1, 2017.
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