Strangmeier v. The City of Houston Texas et al

Filing 23

REPLY to Response to 19 MOTION to Dismiss 13 Amended Complaint/Counterclaim/Crossclaim etc., filed by Annise Parker, The City of Houston Texas. (Stevens, Elizabeth)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
JOHN STRANGMEIER,
Plaintiff,
v.
CITY OF HOUSTON, ET AL.
Defendants.

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Civil Action No.: 4:11-CV-3463

CITY OF HOUSTON’S AND MAYOR ANNISE PARKER’S
REPLY TO PLAINTIFF’S RESPONSE TO MOTION TO DISMISS
In response to the City of Houston’s and Mayor Parker’s motion to dismiss the
complaint, Plaintiff John Strangmeier filed a response which misconstrues the standard of
review, fails to address a single legal argument raised in the defendants’ motion, and consists
primarily of cutting and pasting Strangmeier’s entire First Amended Original Complaint into
his response. The City and Mayor Parker file this reply simply to clarify the standard of
review applicable to the motion to dismiss, as Strangmeier has entirely failed to address any
other argument raised in the motion.
I. Argument and Authorities
While it is true that the Supreme Court has rejected a “heightened pleading standard”
in Section 1983 cases, the defendants’ basis for dismissal of Strangmeier’s complaint is not
that more facts are needed to support Strangmeier’s legal theories. Rather, the City’s and
Mayor Parker’s argument is that, taking Strangmeier’s factual allegations as true, there is
simply no viable legal theory to support any of Strangmeier’s claims. The question is not

whether enough facts have been stated, but whether the facts give rise to any claims.
As the Supreme Court explained in Ashcroft v. Iqbal, legal conclusions need not be
accepted as true. 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). And, “‘when
the allegations in a complaint, however true, could not raise a claim of entitlement to relief,
this basic deficiency should . . . be exposed at the point of minimum expenditure of time and
money by the parties and the court.’” Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir. 2007)
(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d
868 (2009)). In the context of prisoner and in forma pauperis lawsuits, the courts have noted
that a claim should be dismissed if “it is based on an indisputably meritless legal theory, such
as if the complaint alleges a violation of a legal interest that does not exist.” Samford v.
Dretke, 562 F.3d 674, 678 (5th Cir. 2009). See, e.g., Spiko v. County of Harris, Texas, 2011
WL 3300085 (S.D.Tex. Aug. 1, 2011) (unpublished opinion) (dismissing Section 1983
claims for wrongful arrest because the plaintiff failed to allege the elements necessary for
municipal liability and failed to state claims that were constitutional violations).
II. Conclusion
As the defendants have shown in their motion to dismiss, Strangmeier’s allegations
arising out of his receipt of a civil citation for running a red light do not give rise to any
viable constitutional or other claims and the complaint should be dismissed.

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Respectfully submitted,
DAVID M. FELDMAN
City Attorney
LYNETTE K. FONS
First Assistant City Attorney
DONALD J. FLEMING
Senior Assistant City Attorney
Chief, Labor Section
/s /Elizabeth L. Stevens
Elizabeth L. Stevens
Attorney In Charge
Senior Assistant City Attorney
Federal ID 20100; SBN 00792767
[e-mail]
Andrea Chan
Senior Assistant City Attorney
Federal ID 14940; SBN 04086600
[e-mail]
City of Houston Legal Department
P.O. Box 368
Houston, Texas 77001-0368
Phone: [phone]
Facsimile: [phone]
ATTORNEYS FOR DEFENDANT CITY OF
HOUSTON AND MAYOR ANNISE PARKER

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CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing Motion was served in
accordance with the Federal Rules of Civil Procedure on this the 23rd day of November,
2011.

Randall L. Kallinen
Law Office of Randall L. Kallinen PLLC
511 Broadway Street
Houston, Texas 77012

Via efiling

/s/ Elizabeth Stevens
Elizabeth Stevens

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