Zahorik v. Trott et al
Filing
133
OPINION AND ORDER granting in part and denying in part 51 Motion to Dismiss for Failure to State a Claim; DENIED IN PART as to the Heck bar and GRANTED IN PART as set forth above; and that the following claims are DISMISSED: (a) Plaintiffs claim under the Fair Credit Reporting Act; (b) Plaintiffs claims under§1985 and §1986; (c) Plaintiffs §1983 claims against the individually-named Defendants (Kylen, Pilsner, Gomez and Porretto) in their official capacity; (d) Plaintiffs Fir st and Fourth Amendment claims brought under §1983; (e) Plaintiffs municipal liability claim against the Defendant City; and (f) all Plaintiffs state law claims. It is the further ORDER of this Court that Defendants provide additional briefing within fourteen days (14) of the date this Order is entered addressing Plaintiffs substantive due process and malicious prosecution claims. After Defendants file their additional briefing, Plaintiff will then have ten (10) days after its filing to respond; and, a reply by Defendants, if any, is then due five (5) days after Plaintiffs response, if any, is filed with the clerk. (Signed by Magistrate Judge John R Froeschner) Parties notified.(sanderson, 3)
United States District Court
Southern District of Texas
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
ENTERED
May 05, 2016
David J. Bradley, Clerk
GALVESTON DIVISION
VINCENT ZAHORIK
§
§
§
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§
§
§
§
§
Plaintiff,
vs.
TRACY TROTT, et al.,
Defendants.
CIVIL ACTION NO. G-13-248
OPINION AND ORDER
Before the Court, with the consent ofthe Parties, is the "Motion to Dismiss" of Defendants
Jeremy Kylen, Mark Pilsner, Gilbert Gomez, Henry Porretto and the City of Galveston, Texas.
(Dkt. No. 51). In the Motion, Defendants seek the dismissal of all claims alleged against them
by Plaintiff. Defendants' Motion, having been adequately briefed, is ripe for consideration.
Having now considered the Parties' submissions and the applicable law the Court issues this
Opinion and Order.
I. BACKGROUND
Plaintiff Vincent Zahorik (Zahorik) filed this civil rights complaint on July 10, 2013,
against, inter alios, these Defendants.
Zahorik has alleged numerous violations of his
constitutional rights, including a conspiracy to commit them by all of the named Defendants, along
with state law claims. Zahorik's claims are all based on his belief that his "federally protected
credit report was unlawfully accessed by Defendants in an attempt to vindictively prosecute him
for filing bona-fide complaints with the FBI as well as collaborating with reporters in exposing
corruption by law enforcement personnel" during, what has now allegedly become, an inter-state
conspiracy to have Zahorik "arrested to prevent available redress in federal proceedings." (Dkt.
No.1).
Unfortunately, for Zahorik, after he filed a report with Officer Kylen of the Galveston
Police Department (GPD) claiming he was the victim ofldentity Theft and did not know who was
responsible, an investigation was conducted by GPD.
GPD's investigation determined that
Zahorik's statement to its officer was false because, at the time Zahorik made the report, he knew
that he was not the victim of Identity Theft. As a result, GPD brought a criminal charge against
Zahorik for making a false report to a peace officer, pursuant to Texas Penal Code §37.08.
Zahorik was then tried in state court1 and, on August 21, 2013, a jury found beyond a reasonable
doubt that Zahorik had committed the office and returned a verdict of "Guilty of False Report to
a Police Officer" as charged in the Information. The state court entered judgment against Zahorik
on August 22, 2013.
Following Zahorik's conviction in state court, this Court dismissed the instant civil rights
action and entered a final judgment as to the Tennessee Defendants based on lack of jurisdiction.
In terms of the Texas Defendants, 2 the Court dismissed Zahorik's claims against them with
prejudice to being reasserted until the Heck conditions were met. On September 9, 2015, nearly
two years after a jury found him guilty, Zahorik was successful in overturning his state court
conviction and, thereafter, he moved this Court to re-open his civil rights action. (Dkt. No. 113).
The Court granted Zahorik's motion to re-open as to the Texas Defendants and returned the
Complaint to the active docket. (Dkt. No. 124). With the case re-opened, the "Defendants'
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The state court criminal action occurred subsequent to the filing of the instant civil rights action.
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Defendant Galveston County, Texas was voluntarily dismissed shortly after the case was filed.
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Kylen, Pilsner, Gomez, Porretto and City Motion to Dismiss" (Dkt. No. 51), to which Zahorik
filed a response (Dkt. No. 62), is ripe for adjudication.
II. STANDARD OF REVIEW
Federal Rule of Civil Procedure 12(b)(6) provides that a party may move to dismiss an
action for "failure to state a claim upon which relief may be granted." FED. R. CIV. P. 12(b)( 6).
When considering a motion to dismiss under Fed. R. Civ. P. 12(b)(6), "the court accepts all wellpleaded facts as true, viewing them in the light most favorable to the plaintiff." In re Katrina
Canal Breaches Litig., 495 F.3d 191,205 (5th Cir.2007); see also, Scanlan v. Texas A&M Univ.,
343 F.3d 533, 536 (5th Cir. 2003). A court should not dismiss a complaint for failure to state a
claim unless the plaintiff has failed to plead "enough facts to state a claim to relief that is plausible
on its face." In re Katrina, 495 F.3d at 205 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 554,
(2007)).
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However, this requires more from a plaintiff than pleadings consisting only of
"threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements." Ashcroft v. Iqbal, 556 U.S. 662 (2009); Twombly, 550 U.S. at 550 (explaining that
"labels and conclusions, and a formulaic recitation of the elements of a cause of action will not
do[.]" ). Instead, the "[t]actual allegations must be enough to raise a right to relief above the
speculative level, on the assumption that all the allegations in the complaint are true (even if
doubtful in fact)." In re Katrina, 495 F.3d at 205 (quoting Twombly, 550 U.S. at 555) (internal
quotation marks, citations, and footnote omitted). In other words, a plaintiff must plead "factual
content that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged." Ashcroft, 129 S.Ct. at 1950. "Determining whether a complaint states a
plausible claim for relief' is a "context-specific task" which "requires the reviewing court to draw
on its judicial experience and common sense." /d. at 1949. "Where the well-pleaded facts do not
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permit the court to infer more than the mere possibility of misconduct, the complaint has
alleged-but it has not 'show[n]'-'that the pleader is entitled to relief."' /d. at 1950.
ill. DISCUSSION
A. The Heck Bar
Defendants argue that Zahorik's claims are barred by the Supreme Court's decision in
Heck v. Humphrey, 512 U.S. 477 (1994). Since Zahorik's conviction has been set-aside (Dkt.
No. 62 at 5), this argument must now be REJECTED.
B. Claims Brought Under Federal Law
Zahorik asserts a number of different causes of action against Defendants based on federal
law. Defendants maintain, for various reasons, that each of Zahorik's federal claims must be
dismissed. The Court will address each claim in turn.
1. Federal Fair Credit Reporting Act
In his fourth claim for relief, Zahorik purports to broadly allege that Defendants violated
"Section 619 of the Federal Fair Credit Reporting Act [FCRA] (15 U.S.C. §1681(q)). " 3 (Dkt.
No. 1 at 44). Based on Zahorik's pleadings and the many exhibits attached thereto, there are no
factual allegations that any of the Texas Defendants accessed his credit report in violation of the
statute. Accordingly, to the extent asserted against these Defendants, this claim is DISMISSED.
2. Claims Brought Under 42 U.S.C. §1985
Zahorik alleges that Defendants engaged in a conspiracy under §1985 to deprive him of
his rights. Although §1985 provides a cause of action for several types of conspiracies under
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The relevant portion of the FCRA provides that"[a]ny person who knowingly and willfully
obtains information on a consumer from a consumer reporting agency under false pretenses shall be fined
under title 18, United States Code, imprisoned for not more than two years, or both"
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subsections one through three, Zahorik does not expressly cite to the portion or portions of the
statute upon which he relies. 42 U.S.C. § 1985. 4
Defendants, interpreting Zahorik' s claims under subsection 3, argue that dismissal is
warranted because Zahorik fails to allege facts showing a conspiracy to either deprive a class of
persons of equal protection of the law or class-based invidious discriminatory animus. Insofar as
Zahorik could be heard to allege that Defendants conspired to violate his rights under 42 U.S.C.
§ 1985(3), the Court would agree that dismissal was warranted. To state a cognizable claim under
§ 1985(3), a plaintiff must allege that "(1) the defendants conspired (2) for the purposes of
depriving, either directly or indirectly, any person or class of persons of the equal protection of
the laws, or of equal privileges and immunities under the laws, and (3) one or more of the
conspirators committed some act in furtherance of the conspiracy, whereby (4) another person is
injured in his person or property or deprived of having and exercising any right or privilege of a
citizen of the United States, and (5) the action of the conspirators is motivated by a racial animus."
Wong v. Stripling, 881 F.2d 200, 202-03 (5th Cir.1989); see also, Horaist v. Doctor's Hosp. of
Opelousas, 255 F.3d 261, 270 (5th Cir.2001). In the present case, Zahorik's complaint against
these Defendants is entirely devoid of any factual allegations from which one could conclude that
either any race-based conspiracy or any class-based invidious discriminatory animus existed. See
Wong, 881 F.2d at 202-203. (a plaintiff asserting a§ 1985 claim must plead the operative facts
upon which his claim is based); Holdines v. Stroud, 808 F.2d 417, 424 (5th Cir.1987) (a plaintiff
must plead this claim with some specificity and conclusory or bald allegations are inadequate).
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The Court pauses to note that having reviewed the allegations in his Complaint, it is evident that
Zahorik does not state a claim under subsection one because there are no allegations in the Complaint that
Defendants' actions included a conspiracy to prevent, by force, intimidation or threat any person from
accepting or holding office or to injure a federal officer's person or property. 42 U.S.C. § 1985(1).
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However, in his response to Defendants' Motion to Dismiss Zahorik explains that he
brought his §1985 conspiracy claim under subsection 2. (Dkt. No. 62 at 8-9). Subsection 2
contains two parts. 42 U.S.C. § 1985(2). The first part "proscribes conspiracies that interfere
with the administration of justice in federal court, and the second part proscribes conspiracies that
interfere with the administration of justice in state court." Daigle v. Gulf State Utilities Co.,
Local Union No. 2286, 794 F.2d 974, 979-980 (5th Cir. 1986). Zahorik fails to state a plausible
claim under either part of subsection 2. Initially, while the first part of§ 1985(2) does not require
race or class-based animus (Kush v. Rutledge, 460 U.S. 719, 727 (1983)), it does require that
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there has been an interference with the federal court system. Seeley v. Brotherhood ofPainters,
Decorators & Paper Hangers ofAmerica, 308 F.2d 52, 58 (5th Cir.1962); see, Kush v. Rudedge,
460 U.S. 719 (1983). Zahorik's pleadings contain no factual allegations which would bring his
contentions within the confines of the first part of§ 1985(2). Turning to the second part, the Fifth
Circuit has directed that the race or class-based animus requirement of§ 1985(3) also applies to
claims under the second part of §1985(2). Kimble v. D.J. McDuffy, Inc., 648 F.2d 340, 346 (5th
Cir. 1981).
As discussed, Zahorik's pleadings fail to allege any facts to satisfy these
requirements, as such, he has failed to state a claim under the second part of §1985(2). Zahorik's
§1985 claim, therefore, should be DISMISSED.
3. Claims Brought Under 42 U.S.C. §1986
Zahorik also purports to bring a claim against these Defendants under §1986. See Dkt.
No. 1 at 45. A necessary requisite for bringing a claim under §1986 is an underlying §1985
claim. Irwin v. Veterans Administration, 874 F.2d 1092, 1095 (5th Cir.), aff'd, 498 U.S. 89
(1991) (§1985 conspiracy forms an integral part of a §1986 claim). Because no plausible claim
exists under §1985, this claim must also be DISMISSED.
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4. Claims Brought Under 42 U.S.C. §1983
Zahroik brings claims under §1983 against these Defendants in both their individual and
official capacities asserting his constitutional rights were violated. Defendants move for dismissal
of all his §1983 claims. To establish liability under§ 1983, a civil rights plaintiff must establish
two elements: (1) state action, i.e., that the conduct complained of was committed under color of
state law, and (2) a resulting violation of federal law, i.e., that the conduct deprived the plaintiff
of rights secured by the Constitution or laws of the United States. See Collins v. City ofHarker
Heights, 503 U.S. 115, 120 (1992); see also, Townsend v. Moya, 291 F.3d 859, 861 (5th
Cir.2002) (In short, "[s]ection 1983 provides a claim against anyone who, 'under color of state
law, deprives another of his or her constitutional rights.") (citing Doe v. Taylor lndep. Sch. Dist.,
15 F.3d 443, 452 (5th Cir.1994)).
a. Claims Against Individually-Named Defendants
i. Official Capacity Claims
Zahorik brings suit against the individually-named Texas Defendants in both their
individual and their official capacity. It is well established that a lawsuit against a government
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official in his official capacity is not a lawsuit against the individual but, rather, is a suit against
the official's office and is no different than a suit against the governmental unit which employs the
official. SeeHaferv. Melo, 502 U.S. 21,25 (1991); Wilv. MichiganDepartmentofStatePolice,
491 U.S. 58, 71 (1989); Kentucky v. Graham, 473 U.S. 159, 165-66 (1985). Because the City
is already a defendant in this case, any suit against the Defendants in their official capacity is
duplicative and warrants DISMISSAL.
ii. Qualified Immunity
Although a § 1983 claimant may not maintain an action against a state official in his official
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capacity, he may bring a cause of action against a state official acting in his capacity as an
individual. See Harrison v. Texas Dept. ofCriminal Justice-Institutional Div., 915 S. W .2d 882,
889 (Tex.App.-Houston [1st Dist.] 1995, no pet.). When a § 1983 claim is alleged against a
defendant in his individual capacity, as is the case here, it is subject to the affirmative defense of
qualified immunity. Under the doctrine of qualified immunity, an official sued in his individual
capacity is protected not only from liability, but also from having to stand trial. Mitchell v.
Forsyth, 472 U.S. 511, 526 (1985); Spann v. Rainey, 987 F.2d 1110, 1114 (5th Cir.1993).
In determining whether a defendant is entitled to qualified immunity, the courts have
historically engaged in a two-pronged analysis. Saucier v. Katz, 533 U.S. 194, 201 (2001).
Under Saucier, a court would first have to determine whether a "constitutional right would have
been violated on the facts alleged." Flores v. City ofPalacios, 381 F.3d 391, 395 (5th Cir.2004).
If a constitutional right were violated, a court would then have to move on to determine whether
"the defendant's actions violated clearly established statutory or constitutional rights of which a
reasonable person would have known." Id. The law may be deemed to be clearly established if
a reasonable official would understand that his conduct violates the asserted right. Anderson v.
Creighton, 483 U.S. 635, 640 (1987). However, the Supreme Court recently receded from the
Saucier by instructing courts "to exercise their sound discretion in deciding which of the two
prongs of the qualified immunity analysis should be addressed first in light of the circumstances
in the particular case at hand." Pearson v. Callahan, 555 U.S. 223 (2009).
b. First Amendment
Zahorik also brings a First Amendment retaliation claim against Defendants. He contends
that these Defendants retaliated against him in an attempt to discredit his credibility because he was
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engaged in speech concerning a matter of public policy and public interest. 5 (Dkt. No. 1 at 41).
The Texas Defendants move to dismiss Zahorik's First Amendment claim.
The First Amendment prohibits not only direct limits on individual speech but also adverse
governmental action against an individual in retaliation for the exercise of protected speech
activities." Keenan v. Tejeda, 290 F.3d 252, 258 (5 1h Cir.2002). To establish a First Amendment
retaliation claim, a plaintiff must show that: (1) he was engaged in constitutionally protected
activity; (2) the defendant's actions caused him to suffer an injury that would chill a person of
ordinary firmness from continuing to engage in that activity, and (3) the defendant's adverse
actions were substantially motivated by the constitutionally protected conduct. /d. Here, even
assuming that Zahorik could establish a First Amendment claim, the individually-named Texas
Defendants assert that they are entitled to the protections of qualified immunity. The Court
agrees. The many exhibits submitted by Zahorik with his Complaint, support that probable cause
existed, or a reasonable police officer could have believed that probable cause existed, to charge
Zahorik with filing a false report to a police officer (i.e., that he was the subject of Identity Theft
and he didn't know by whom) and obtain a warrant for his arrest. See Buckley v. Fitzsimmons,
509 U.S. 259, 268 (1993) (qualified immunity applies to public officials only if their conduct did
not violate clearly established law of which the reasonable person would be aware); Keenan, 290
F.3d at 261-62 (applying the test for qualified immunity, the Fifth Circuit has explained that "[i]f
probable cause existed ... or if reasonable police officers could believe probable cause existed,
they are exonerated"); see also, Mozzochi v. Borden, 959 F.2d 1174, 1180 (2d Cir.1992) ("An
individual does not have a right under the First Amendment to be free from a criminal prosecution
5
Zahorik claims he worked with investigative reporters to expose the police corruption and official
oppression that he had personally witnessed. (Dkt. No. 1 at 41).
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supported by probable cause that is in reality an unsuccessful attempt to deter or silence criticism
of the government"). Defendants' Motion to Dismiss Zahorik's First Amendment claim is,
therefore, GRANTED.
c. Fourth Amendment
Zahorik alleges that his Fourth Amendment rights were violated when he was falsely
arrested and detained. (Dkt. No. 1 at 42). Defendants maintain that Zahorik has failed to state
Fourth Amendment claim against them and, in the alternative, Defendants assert that they are
entitled to the protections of qualified immunity. (Dkt. No. 51 at 6).
The Fourth Amendment bestows the constitutional right upon a person to be free from
unreasonable seizures of both his person and effects. Terry v. Ohio, 392 U.S. 1, 9, 88 S. Ct.
1868, 20 L.Ed.2d 889 (1968). To establish a violation of his Fourth Amendment right to be free
from an unreasonable seizure of his person, Zahorik "must show that [these Defendants] lacked
probable cause." Deville v. Marcantel, 567 F.3d 156, 164 (5th Cir.2009); see also Rhodes v.
Prince, 360 Fed.Appx. 555, 558 (5th Cir .2010) ("To prevail on his Fourth Amendment false arrest
claim, [plaintiff] must sufficiently allege (1) that he was arrested, and (2) the arrest did not have
the requisite probable cause.") (citing Haggerty v. Tex. S. Univ., 391 F.3d 653, 655-56 (5th
Cir.2004)). Additionally, "[a]s applied to the qualified immunity inquiry, [Zahorik] must show
that [Defendants] could not have reasonably believed that they had probable cause to arrest
[Zahorik] for any crime." O'Dwyer v. Nelson, 310 Fed.Appx. 741, 745 (5th Cir.2009) (citing
Devenpeck v. Alford, 543 U.S. 146, 153 (2004)).
A review of the allegations in Zahorik's complaint, along with the many exhibits attached
thereto, shows that probable cause existed to charge Zahorik with committing the offense of
making a false report to a police officer - namely, that Zahorik was the victim of Identity Theft.
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Dkt. No. 1, Exs. J, X; see Resendiz v. Miller, 203 F.3d 902, 903 (5th Cir.2000) ("[p]robable
cause exists when the totality of facts and circumstances within a police officer's knowledge at the
moment of arrest are sufficient for a reasonable person to conclude that the suspect had committed
or was committing an offense"). In particular, Zahorik alleges that he had filed complaints with
several governmental agencies about representatives of the THP obtaining his credit report and
that he knew that his "credit report was accessed by [a THP] investigator, per the ADA's
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[Assistant District Attorney] request, as opposed to thinking a rouge agent was accessing this
information .... " and he knew this before he filed his fraudulent report to the GPD. (Dkt. No. 1,
Exs. B, C, F, G, H, J, P, U). Thus, "a fair probability existed that [Zahorik] filed a false report
with the Galveston Police Department." (Dkt. No. 51 at 6, Exs. J, X). See U.S. v. Antone, 753
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F.2d 1301, 1304 (5th Cir. 1985) ("[t]he probable cause issue must be analyzed under the 'totality
of the circumstances' as to whether there is a 'fair probability' that a crime is occurring"'); U.S.
v. Garcia, 179 F.3d 265, 269 (5th Cir. 1999) ("fair probability does not mean that a reasonable
officer would have thought it more likely than not that the defendant committed a felony; rather,
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it is something more than bare suspicion, yet it need not reach the fifty percent mark). Moreover,
based on the circumstances - as set forth in the Complaint and the attached exhibits - the GPD
officers are entitled to the protections of qualified immunity because they could have reasonably
believed that they had probable cause to charge and arrest Zahorik. (Dkt. No. 1, Exs. X, Y, Z,
AA, BB). O'Dwyer v. Nelson, 310 Fed.Appx. 741, 745 (5th Cir.2009). Defendants' Motion to
Dismiss Zahorik's Fourth Amendment claim is, therefore, GRANTED.
d. Fourteenth Amendment & Malicious Prosecution Claims
Zahorik asserts that Defendants violated his Fourteenth Amendment when he was falsely
arrested for exercising (or asserting) his right to privacy. (Dkt. No. 1 at 42). Zahorik also brings
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a claim against Defendants for malicious prosecution. (Dkt. No. I at 43, 46). Defendants move
for the dismissal of these claims on the basis of the decisions in Albright v. Oliver, 510 U.S. 266,
272 (1994) 6 and Castellano v. Fragozo, 352 F.3d 939, 942, 953 (5th Cir.2003). 7 (Dkt. No. 51 at
7). Because the post-Albright and Castellano decisions appear to qualify the holdings of these
decisions (see e.g., Boyd v. Driver, 579 F.3d 513 (5th Cir. 2009); Caudra v. Houston Ind. Sch.
Dist., 626 F.3d 808 (5th Cir.2010); Cole v. Carson, 802 F.3d 752, 765 (5th Cir. 2015)), the Court
is of the opinion that further briefing is warranted before it can rule on Defendants' Motion with
regard to these claims.
5. Defendant City of Galveston
Zahorik seeks to hold the City of Galveston, a governmental unit or municipality,
responsible for the actions of various city employees allegedly violating his constitutional rights
under the First, Fourth and Fourteenth Amendments under a municipal liability theory.
Defendants move for dismissal ofZahorik's municipal liability claims against the City because he
has failed to allege any facts which identify or describe a policy, custom or practice which caused
Zahorik's alleged constitutional deprivations.
A§ 1983 action against a municipality must be based upon a violation offederally-protected
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rights through implementation or execution of a policy or custom adopted by that body's officers.
Monell v. New York City Dep 't of Soc. Servs., 436 U.S. 658, 691 (1978); Krueger v. Reimer,
66 F.3d 75, 76 (5th Cir.1995). In order to assert a claim for municipal liability under §1983, a
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The Court in Albright determined that a claim of a substantive due process violation is not a
permissible means to seek relief for an allegation of unlawful detention.
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Defendants rely on this case for the proposition that simply causing charges to be filed, even
absent probable cause, does not violate the Constitution.
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plaintiff must establish proof of three elements: (1) a policymaker; (2) an official policy or custom;
and (3) a violation of a constitutional right whose "moving force" is the policy or custom.
Piotrowski v. City ofHouston, 237 F.3d 567, 578 (5th Cir.2001).
Having reviewed the Complaint, the Court finds that Zahorik makes broad allegations
against the City, but aside from his conclusory allegations, he does little to factually detail the
policy or custom he claims is involved and how the particular injury was incurred because of the
execution of that policy. See Spiler v. City of Texas City, Police Dept., 130 F.3d 162, 167 (5th
Cir.1997) ("[t]he description of a policy or custom and its relationship to the underlying
constitutional violation ... cannot be conclusory; it must contain specific facts."); Bennett v. City
of Slidell, 728 F.2d 762, 767 (5th Cir.1984) (reasoning that a §1983 plaintiff "must identify the
policy, connect the policy to the [governmental entity] itself, and show that the particular injury
was incurred because of the execution of that policy"). Furthermore, despite his contentions, 8
liability may not be imposed against a municipality based on theories of negligence or respondeat
superior. See Valle v. City ofHouston, 613 F.3d 536, 541 (5th Cir.2010) ("[i]t is well established
that a city is not liable under §1983 on the theory of respondeat superior"); Rhyne v. Henderson
County, 973 F.2d 386, 390-92 (5th Cir.1992) (municipalities cannot be liable for the constitutional
torts of their employees based on theories of either respondeat superior or mere negligence or
oversight).
Accordingly, following Twombly and Iqbal, Zahorik has the burden to allege facts that
show entitlement to relief. Club Retro, L.L.C. v. Hilton, 568 F.3d 181, 213 (5th Cir.2009).
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The crux of Zahorik's claim is that the City employed Chief Porretto, a well-known violator or
constitutional rights guaranteed by the U.S. Constitution," let him "reign as 'Top Cop,"' "failed to take
precautions against future violations" and that this led to his injury. (Dkt. No. 62 at 13-14).
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Well-pled facts that merely permit an inference of possible misconduct do not show entitlement
to relief as required by Rule 8(a)(2). Gonzalez v. Kay, 577 F.3d 600, 603 (5th Cir.2009) (relying
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on Iqbal), cert. denied, 559 U.S. 936 (2010). Without enough facts to permit the inference of an
official custom or policy that resulted in Zahorik's alleged injuries, his claims against the City
necessarily fail. See McClure v. Biesenbach, 355 F. App'x 800, 803-04 (5th Cir.2009) (finding
that a plaintiff must plead facts showing that a policy or custom existed to state a claim and
affirming dismissal of municipal liability claims because the complaint alleged insufficient facts).
Defendants' Motion to Dismiss Zahorik's municipal liability claims against the City is, therefore,
GRANTED.
C. State Law Claims
1. Claims Against the Individual Defendants
Defendants seek dismissal of all Zahorik's state law claims against the Defendants in their
individual capacities under the Texas Tort Claims Act ("TTCA ")based on the election of remedies
provision set forth in the Texas Civil Practices and Remedies Code. (Dkt. No. 51 at 11-12).
Texas law sets out a specific scheme for a plaintiff to pursue tort claims against the state
and its employees under the Texas Tort Claims Act. See Mission Consol. Indep. Sch. Dist. v.
Garcia, 253 S.W.3d 653, 655-56 (Tex.2008). There is an "Election of Remedies" provision,
under which the filing of a suit "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." TEX. CIV.
PRAc. &REM. CODE§ 101.106(a); see Rodriguez v. ChristusSpohnHealth Sys. Corp., 628 F.3d
731, 737-38 (5th Cir.2010). Thus, despite the apparent harshness of the application of this statute,
especially in cases, like this one, brought by pro se litigants, Defendants are correct in their
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position. See Mission Consol., 253 S.W.3d at 658-59 (explaining that "under this chapter" has
never been interpreted "to encompass tort claims for which the Tort Claims Act waives immunity"
and "all tort theories alleged against a governmental unit ... are assumed to be 'under [the Tort
Claims Act]"'); Bustos v. Martini Club Inc., 599 F.3d 458, 464 (5th Cir.2010) (acknowledging
that under Texas law the election of remedies provision applied and required dismissal of all
common law torts against the individual defendants). Thus, Defendant's Motion to Dismiss
Zahorik's state law claims against these individual Defendants is GRANTED.
2. Claims Against Defendant City of Galveston, Texas
Defendants maintain that Zahorik' s state law claims against the City must also be dismissed
because they are barred by governmental immunity. (Dkt. No. 51 at 11-12). Under the doctrine
of sovereign immunity, a governmental unit, such as the City of Galveston, 9 is not liable for the
torts of its officers or agents in the absence of a constitutional or statutory provision creating such
liability. Dallas County Mental Health & Mental Retardation v. Bossley, 968 S.W.2d 339, 341
(Tex.1998); State v. Terrell, 588 S.W.2d 784,785 (Tex.1979). While it is, of course, true that
the TTCA contains exceptions to governmental immunity for certain damage claims arising from
its governmental functions, 10 the waiver goes no further than what is expressly specified in the
Act. TEX. CIV. PRAC. & REM.CODE §101.021.
9
There is no question that the City of Galveston, Texas, is an entity to which the doctrine of
governmental immunity is applicable. See Gates v. City ofDallas, 704 S.W.2d 737,738-39 (Tex.1986)
(a governmental function is one which is public in nature and performed by the municipality "as the agent
of the State in furtherance of general law for the interest of the public at large."). In addition, police
matters, including police protections and control, fall within a municipality's governmental function. See
TEX. CIV. PRAC. & REM.CODE §101.0215(1).
I
1
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