O'Brien v. City of Kemah et al

Filing 19

OPINION AND ORDER granting 17 Motion to Dismiss for Failure to State a Claim and all claims asserted by Plaintiff, Brandy OBrien, against Defendant, City of Kemah, are DISMISSED.(Signed by Magistrate Judge John R Froeschner) Parties notified.(sanderson, 3)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION
BRANDY O’BRIEN

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V.
CITY OF KEMAH
and COUNTY OF GALVESTON

CIVIL ACTION NO. G-13-156

OPINION AND ORDER
Before the Court is the “Motion to Dismiss for Failure to State a Claim” of Defendant,
City of Kemah (City). The Court ordered O’Brien to file her response to the Motion by August
23, 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 officers of the Kemah Police Department
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 City liable for the
actions of the Police Department’s personnel.
The City 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 City be held liable under § 1983 solely because it employs a tort feasor. Id. at 692
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 City to be held liable for

constitutional harm, a Plaintiff must allege and show the harm suffered was a result of City 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 City officials or City
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 City’s policy or custom is not the alleged cause of O’Brien’s

injury, her constitutional claim against the City lacks any legal or factual basis and must be
dismissed.1
O’Brien has also asserted claims against the City for malicious prosecution, defamation and
intentional infliction of emotional distress. None of these claims against the City have merit: a
governmental entity, like the City, is immune from claims of intentional torts. Taylor v. Gregg,
36 F.3d 453, 457 (5th Cir. 1994) (citing City of San Antonio v. Dunn, 796 S.W. 2d 258, 261
(Tex. App. -- San Antonio, 1990, writ denied)
Under the circumstances, the Court sees no need to address the other arguments raised by
the City in its Motion to Dismiss.
For the foregoing reasons, it is ORDERED that the “Motion to Dismiss for Failure to State
a Claim” (Instrument no. 17) of Defendant, City of Kemah, is GRANTED and all claims asserted
by Plaintiff, Brandy O’Brien, against Defendant, City of Kemah, are DISMISSED.
DONE at Galveston, Texas, this

11th

1

day of September, 2013.

The Court notes that O’Brien was given the opportunity to amend her complaint, but
failed to do so.
2