O'Brien v. City of Kemah et al

Filing 16

OPINION AND ORDER granting 5 Motion to Dismiss and all claims asserted by Plaintiff, Brandy OBrien, against Defendant, Galveston County, are DISMISSED..(Signed by Magistrate Judge John R Froeschner) Parties notified.(sanderson, )

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION
BRANDY O’BRIEN
V.
CITY OF KEMAH
and COUNTY OF GALVESTON

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CIVIL ACTION NO. G-13-156

OPINION AND ORDER
After Plaintiff, Brandy O’Brien (O’Brien), failed to file a timely Amended Complaint, this
Court entered a briefing schedule to address the merits of the Motion to Dismiss of the Defendant,
County of Galveston (County). The Court ordered O’Brien to file her response to the Motion by
July 15, 2013. To date, no response has been filed and the Court has had no related contact from
O’Brien or her attorney. The Motion is, therefore, ripe for determination.
In her original petition, O’Brien alleges that employees of the Galveston County Sheriff’s
Office intentionally engaged in unlawful conduct by periodically stopping and detaining her and
ultimately arresting her for charges that were later dismissed. O’Brien seeks to hold the County
liable for the actions of the Sheriff Department’s personnel.
The County cannot be held liable on either a theory of respondieat superior or vicarious
liability. Monell v. New York City Dep’t of Social Services, 436 U.S. 658, 691 (1978)

Nor

can the County be held liable under § 1983 solely because it employs a tort feasor.
Commissioners of Bryan County v. Brown, 520 U.S. 397, 403 (1996)

Moreover, isolated

incidents of misconduct, like those alleged by O’Brien, are insufficient. Fraire v. City of
Arlington, 957 F.2d 1268, 1278 (5th Cir. 1992) For a County to be held liable for constitutional

harm, a Plaintiff must allege and show the harm suffered was a result of County policy or custom.
Hare v. City of Corinth, MS., 74 F.3d 633 (5th Cir. 1996) Nowhere in her petition does O’Brien
allege any official policy or persistent wide-spread practice of County officials or County
employees, which constituted any actionable custom or practice, that was the moving force behind
O’Brien’s alleged constitutional harm. Palmer v. City of San Antonio, 810 F.2d 514, 516 (5th Cir.
1987)

Consequently, since the County’s policy or custom is not the alleged cause of O’Brien’s

injury, her constitutional claim against the County lacks any legal or factual basis and must be
dismissed.
O’Brien has also asserted claims against the County for malicious prosecution, defamation
and intentional infliction of emotional distress. None of these claims against the County have
merit: a governmental entity, like the County, is immune from claims of intentional torts. Harris
County v. Sykes, 136 S.W. 3d 635, 638 (Tex. 2004)
For the foregoing reasons, it is ORDERED that “Defendant Galveston County’s Motion
to Dismiss” (Instrument no. 5) is GRANTED and all claims asserted by Plaintiff, Brandy O’Brien,
against Defendant, Galveston County, are DISMISSED.
DONE at Galveston, Texas, this

24th

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day of July, 2013.