Rossi v. City Of Houston Police Officers et al
Filing
56
MEMORANDUM OPINION AND ORDER granting in part and denying in part 40 MOTION for Summary Judgment (Signed by Judge Kenneth M. Hoyt) Parties notified.(chorace)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
STEVEN D. ROSSI,
Plaintiff,
VS.
CITY OF HOUSTON, et al,
Defendants.
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CIVIL ACTION NO. 4:12-CV-957
MEMORANDUM OPINION AND ORDER
I.
INTRODUCTION
Pending before the Court is the defendants’, Officer C.R. Rohling, Houston Police
Officers 1, 2, 3 (“unidentified officers”) and the City of Houston (“Houston” or the “City”)
(collectively, “the defendants”), motion for summary judgment pursuant to Rule 56 of the
Federal Rules of Civil Procedure (Docket No. 40). Also before the Court is the plaintiff’s, Steven
Rossi, response (Docket No. 47) and the defendants’ reply (Docket No. 48). Having carefully
considered the parties’ submissions, the record and the applicable law, the Court finds and
concludes as follows.
II.
FACTUAL BACKGROUND
Steven Rossi is a resident of Harris County, Texas. The City of Houston is located in
Harris County, and Officer Rohling and the unidentified officers are police officers in the
Houston Police Department. This suit arises out of events that occurred in the early morning
hours of April 1, 2010.
The following facts are undisputed: on or about April 1, 2010, Rossi met two friends for
dinner at a restaurant near his home. When Rossi attempted to drive home after the meal, his
vehicle would not start. One of Rossi’s dinner companions jump-started his battery, which
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remedied the problem. As Rossi drove home, he observed a police car, overhead lights flashing
and siren wailing, pursuing his vehicle. Rossi did not stop; instead, he continued to his residence,
driving through the gate at the entrance of the driveway, before coming to a complete stop. Rossi
claims he did not stop because he was concerned his car battery would die again.
What happened next is the subject of dispute. Rossi claims that immediately upon exiting
his vehicle, Officer Rohling struck him in the temple with a police-issued flashlight. Rossi fell to
ground, more officers arrived on the scene, and he was handcuffed. Rossi further claims that
although he was bloodied, handcuffed and subdued, he was struck many more times by
Rohling’s flashlight. Because of the extent of his injuries, paramedics were called to the scene
and an ambulance transported him to the hospital for prompt medical attention.
Rohling claims that Rossi exited his vehicle after he parked it in the driveway. Rohling
states that he remained behind the door of his patrol car, attempted to initiate a high-risk vehicle
approach, and gave Rossi verbal commands. He was almost immediately joined by Officer
Jennifer Frank who was in the area of the pursuit. She parked just to the right of Rohling’s patrol
car. Both officers had their primary service weapons drawn. Rohling claims that Rossi began to
approach him, fists clenched, and both officers began holstering their weapons upon observing
that Rossi did not have a weapon. Rohling states that while he was holstering his firearm Rossi
attempted to punch him in the head, but he ducked and the blow landed on his neck. When Rossi
threw a second punch, Rohling attempted a cross strike to Rossi’s upper body region with the
flashlight in his left hand. Although Rohling attests he did not intend to strike Rossi in the head,
the flashlight did make contact with Rossi’s right temple, causing him to fall to the ground.
Rohling claims he had limited control of the flashlight because he is right-handed; he also claims
that Rossi moved his head into the strike path.
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During this exchange of blows, Officer Frank states that she was running around the back
of Rohling’s patrol car and did not see the altercation. However, she does admit that she saw
Rossi on the ground and attempting to get back on his feet. At this point, a third officer, James
Crawford, arrived at the scene. The officers were able to hold Rossi to the ground as he resisted
their efforts to handcuff him. After Rossi was subdued, the officers radioed for medical care and
he was transported by ambulance to a nearby hospital. Other than the single unintentional strike
by Rohling, all of the officers at the scene deny striking Rossi at any time.
Based on these events, Rossi brings this suit alleging at least thirteen violations of his
constitutional, statutory and common law rights.
III.
CONTENTIONS OF THE PARTIES
A.
The Defendants’ Contentions1
The defendants argue that summary judgment is appropriate for the claims against
Officer Rohling because he is entitled to qualified immunity, and the plaintiff cannot negate the
defense. They also argue that the claims against the unnamed officers should be dismissed
because it has been nearly two years since the complaint was filed and Rossi has yet to identify
the John Does. Furthermore, they contend that Rossi’s has failure to comply with the service
requirements of Federal Rule of Civil Procedure 4(m) requires dismissal. In the alternative, the
defendants argue that the unnamed officers are entitled to qualified immunity because Rossi
cannot show that any of their conduct violated a federal right or that their actions were
objectively reasonable in light of clearly established law. The defendants also contend that Rossi
has not pled a viable conspiracy claim under 42 U.S.C. § 1985; his allegations are overly generic
1
The defendants have not moved for summary judgment on Rossi’s claims of the right to be free from negligence in
the performance of police duties, to be free from summary punishment without trial, to be free from malicious
prosecution, to be free from false imprisonment, to be free from false arrest and to be free from denial of counsel.
See Org. Compl. § E ¶ 29 (g) – (j), (l), (n). The Court expresses no opinion on these claims.
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and do not satisfy the requisite culpability and causation requirements to establish municipal
liability; and his state law claims are barred because he did not provide timely notice to the City
and because the City is immune from liability for the intentional torts of its employees.
B.
Rossi’s Contentions
Rossi argues that summary judgment is inappropriate for any claim. Rossi maintains that
fact issues abrogate Officer Rohling’s invocation of qualified immunity. He also contends that he
was unaware of the identities of the other officers present at the scene of his arrest until
Rohling’s deposition on December 6, 2013, and he will promptly file for leave to amend his
complaint to identify the John Does by name. Moreover, Rossi argues, the unnamed officers are
not entitled to qualified immunity because they failed to intervene upon witnessing Rohling
blantantly violating Rossi’s constitutional rights. Rossi also outlines the nature of his conspiracy
claim, and argues that he has put forth the evidence necessary to establish municipal liability
against the City. Finally, Rossi contends that the email his mother sent to Houston Mayor Annise
Parker on April 7, 2010, a mere six days after the event that gave rise to his claims, is well within
the prescribed notice period.
IV.
STANDARD OF REVIEW
Rule 56 of the Federal Rules of Civil Procedure authorizes summary judgment against a
party who fails to make a sufficient showing of the existence of an element essential to the
party’s case and on which that party bears the burden at trial. See Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986); Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc).
The movant bears the initial burden of “informing the Court of the basis of its motion” and
identifying those portions of the record “which it believes demonstrate the absence of a genuine
issue of material fact.” Celotex, 477 U.S. at 323; see also Martinez v. Schlumber, Ltd., 338 F.3d
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407, 411 (5th Cir. 2003). Summary judgment is appropriate where “the pleadings, the discovery
and disclosure materials on file, and any affidavits show that there is no genuine issue as to any
material fact and that the movant is entitled to judgment as a matter of law.” FED. R. CIV. P.
56(c).
If the movant meets its burden, the burden then shifts to the nonmovant to “go beyond the
pleadings and designate specific facts showing that there is a genuine issue for trial.” Stults v.
Conoco, Inc., 76 F.3d 651, 656 (5th Cir. 1996) (citing Tubacex, Inc. v. M/V Risan, 45 F.3d 951,
954 (5th Cir. 1995); Little, 37 F.3d at 1075). “To meet this burden, the nonmovant must ‘identify
specific evidence in the record and articulate the ‘precise manner’ in which that evidence
support[s] [its] claim[s].’” Id. (citing Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir.), cert. denied,
513 U.S. 871, 115 S. Ct. 195, 130 L. Ed.2d 127 (1994)). It may not satisfy its burden “with some
metaphysical doubt as to the material facts, by conclusory allegations, by unsubstantiated
assertions, or by only a scintilla of evidence.” Little, 37 F.3d at 1075 (internal quotation marks
and citations omitted). Instead, it “must set forth specific facts showing the existence of a
‘genuine’ issue concerning every essential component of its case.” American Eagle Airlines, Inc.
v. Air Line Pilots Ass’n, Intern., 343 F.3d 401, 405 (5th Cir. 2003) (citing Morris v. Covan World
Wide Moving, Inc., 144 F.3d 377, 380 (5th Cir. 1998)).
“A fact is material only if its resolution would affect the outcome of the action . . . and an
issue is genuine only ‘if the evidence is sufficient for a reasonable jury to return a verdict for the
[nonmovant].’” Wiley v. State Farm Fire and Cas. Co., 585 F.3d 206, 210 (5th Cir. 2009)
(internal citations omitted). When determining whether a genuine issue of material fact has been
established, a reviewing court is required to construe “all facts and inferences . . . in the light
most favorable to the [nonmovant].” Boudreaux v. Swift Transp. Co., Inc., 402 F.3d 536,
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540 (5th Cir. 2005) (citing Armstrong v. Am. Home Shield Corp., 333 F.3d 566, 568 (5th Cir.
2003)). Likewise, all “factual controversies [are to be resolved] in favor of the [nonmovant], but
only where there is an actual controversy, that is, when both parties have submitted evidence of
contradictory facts.” Boudreaux, 402 F.3d at 540 (citing Little, 37 F.3d at 1075 (emphasis
omitted)). Nonetheless, a reviewing court is not permitted to “weigh the evidence or evaluate the
credibility of witnesses.” Boudreaux, 402 F.3d at 540 (quoting Morris, 144 F.3d at 380). Thus,
“[t]he appropriate inquiry [on summary judgment] is ‘whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so one-sided that one party must
prevail as a matter of law.’” Septimus v. Univ. of Hous., 399 F.3d 601, 609 (5th Cir. 2005)
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, (1986)).
V.
ANALYSIS AND DISCUSSION
A.
Claims Against Officer Rohling
The doctrine of qualified immunity reconciles the competing aims of vigorous
enforcement of the law and redress for victims of officials’ unlawful abuse of power. See Kinney
v. Weaver, 367 F.3d 337, 349 (5th Cir. 2004). Law enforcement officials “generally are shielded
from liability for civil damages insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person would have known.” Id. (quoting
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). This standard, which relies on the objective
reasonableness of an official’s conduct as measured by reference to clearly established law,
avoids excessive disruption of government functions, but also permits claims to proceed where
an official could be expected to know that certain conduct would violate an individual’s federal
rights. Id. at 350.
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In a motion for summary judgment, an official asserting the affirmative defense of
qualified immunity need only do so in good faith. See Hathaway v. Bazany, 507 F.3d 312, 319
(5th Cir. 2007). The official is not required to meet the typical summary judgment burden for a
claim of immunity. Id. Rather, once the official asserts the defense, the burden shifts to the
plaintiff to negate it. Poole v. City of Shreveport, 691 F.3d 624, 627 (5th Cir. 2012). “When a
defendant pleads qualified immunity as an affirmative defense and moves for summary judgment
on that basis, a court must decide (1) whether the facts alleged or shown by the plaintiff made
out a violation of a constitutional right, and (2) whether that right was clearly established at the
time of the defendant’s alleged misconduct.” Ontiveros v. City of Rosenberg, Tex., 564 F.3d 379,
382 (5th Cir. 2009). Officer Rohling has asserted qualified immunity and seeks summary
judgment on Rossi’s claims of unreasonable and warrantless seizure, seizure without probable
cause, and use of excessive force.2
i.
Seizure Claims
“The Fourth Amendment requires that all arrests be based on probable cause.” United
States v. Webster, 162 F.3d 308, 331 (5th Cir. 1998). Although the Supreme Court “has
expressed a preference for the use of arrest warrants when feasible, it has never invalidated an
arrest supported by probable cause solely because the officers failed to secure a warrant.”
Gerstein v. Pugh, 420 U.S. 103, 113 (1975). Probable cause is “defined in terms of facts and
circumstances sufficient to warrant a prudent man in believing that the (suspect) had committed
or was committing an offense.” Webster, 162 F.3d at 331 (quoting Gerstein, 420 U.S. at 113).
Accordingly, if Officer Rohling had probable cause to support Rossi’s arrest, both seizure claims
necessarily fail.
2
In his complaint, Rossi alleges unreasonable and warrantless search and seizure and search and seizure without
probable cause. However, the facts alleged in the complaint do not indicate that a search of Rossi’s person or effects
occurred. Therefore, the Court will only refer to Rossi’s seizure claims.
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It cannot be seriously disputed that Rohling had cause to believe that Rossi was engaged
in unlawful activity—namely, evading a police officer attempting to perform a traffic stop.
3
Because the facts were sufficient to warrant the belief that Rossi had committed a crime, the
Court grants Rohling summary judgment on both seizure claims.
ii.
Excessive Force Claim
The right to make an arrest necessarily carries with it the right to use some degree of
force or threat to affect the arrest. See Graham v. Connor, 490 U.S. 386, 396 (1989). The Fourth
Amendment, however, prohibits the use of excessive force by law enforcement officers in the
context of an arrest or investigatory stop of a free citizen. Id. at 394. Claims of excessive force
are analyzed under a “reasonableness” standard. Id. at 395.
To abrogate an officer’s claim of qualified immunity at the summary judgment stage, the
plaintiff must overcome two hurdles. First, the plaintiff must point to a genuine issue of material
fact as to whether he sustained “(1) an injury (2) which resulted from the use of force that was
clearly excessive to the need and (3) the excessiveness of which was clearly unreasonable.”
Tolan v. Cotton, 713 F.3d 299, 304 (5th Cir. 2013) (quoting Rockwell v. Brown, 664 F.3d 985,
991 (5th Cir. 2011)). Second, the plaintiff must establish a genuine dispute of material fact as to
“whether the allegedly violated constitutional rights were clearly established at the time of the
incident; and, if so, whether the [defendant’s conduct] was objectively unreasonable in the light
of that then clearly established law.” Id. at 305 (quoting Hare v. City of Corinth, 135 F.3d 320,
326 (5th Cir. 1998) (emphasis and alteration in original)). “The defendant’s acts are held to be
objectively reasonable unless all reasonable officials in the defendant’s circumstances would
have then known that the defendant’s conduct violated the United States Constitution or the
3
State law provides the following in pertinent part: “A person commits an offense if he intentionally flees from a
person he knows is a peace officer…attempting lawfully to arrest or detain him.” TEX. PEN. CODE § 38.04(a).
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federal statute as alleged by the plaintiff.” Thompson v. Upshur County, TX, 245 F.3d 447, 457
(5th Cir. 2001) (emphasis in original).
The Court will now determine whether Rossi has met this burden.
a.
Qualified Immunity—Prong One
It is undisputed that when Rossi was transported to the hospital, after being handcuffed
and subdued by officers, medical personnel determined that he sustained a number of injuries,
including an orbital floor fracture and internal hemorrhaging. It is also undisputed that these
injuries resulted from Rohling striking Rossi.
“Excessive force claims are necessarily fact-intensive; whether the force used is
‘excessive’ or ‘unreasonable’ depends on ‘the facts and circumstances of each particular case.’”
Deville v. Marcantel, 567 F.3d 156, 167 (5th Cir. 2009) (quoting Graham, 490 U.S. at 396).
Important factors to consider include “the severity of the crime at issue, whether the suspect
pose[d] an immediate threat to the safety of the officers or others, and whether he [was] actively
resisting arrest or attempting to evade arrest by flight.” Graham, 490 U.S. at 396. When
determining the objective reasonableness of the force employed by a peace officer, a court must
examine the level of force used versus the need for that force. See Staten v. Adams, 939
F.Supp.2d 715, 726 (S.D. Tex. 2013) (citing Ikerd v. Blair, 101 F.3d 430, 434 (5th Cir. 1996)).
“The need for force determines how much force is constitutionally permissible.” Id. (quoting
Bush v. Strain, 513 F.3d 492, 501 (5th Cir. 2008)).
There is a genuine dispute as to what occurred after Rossi and Officer Rohling exited
their vehicles. Viewing the facts in the light most favorable to the plaintiff, Rohling’s blow to
Rossi’s right temple and the continued strikes to Rossi’s head after he fell to the ground were
clearly excessive to any perceived need to affect an arrest. This is especially true in light of the
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fact that there were two other officers on the scene, meaning Rossi was not only unarmed, but
also outnumbered. Furthermore, that excessiveness was patently unreasonable.
Having determined that Rossi has pointed to a genuine issue of material fact so as to
overcome the first hurdle of the qualified immunity analysis, the Court will now determine
whether the allegedly violated Forth Amendment right was clearly established at the time of the
incident; and, if so, whether Officer Rohling’s conduct was objectively unreasonable.
b.
Qualified Immunity—Prong Two
By April 1, 2010, the day of this incident, the law was clearly established in the Fifth
Circuit that “repeatedly striking a non-resisting suspect is excessive and unreasonable force.”
Brown v. Lynch, 524 F. App’x 69, 81 (5th Cir. 2013) (citing cases). Because the parties dispute
the events of that morning, the Court is unable to make a determination as to the objective
reasonableness of Rohling’s actions. See Mangieri v. Clifton, 29 F.3d 1012, 1016 (5th Cir. 1994)
(“This court [is] unable to make the determination of the objective reasonableness of the officer’s
activities without settling on a coherent view of what happened in the first place.”) (internal
quotation omitted). However, if the facts are as Rossi asserts, the Court is of the opinion that
Rohling’s actions were objectively unreasonable.
Because Rossi has identified fact issues sufficient to negate Rohling’s claim of qualified
immunity, the Court denies the defendants’ motion for summary judgment on the excessive force
claim.
B.
Claims Against Unnamed Officers
In response to the defendants’ argument that the unnamed officers should be dismissed
from this action, Rossi stated that he would “ask for leave of this court to file simultaneously
with this response, an amended pleading which identifies the John Doe police officers by name.”
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[P.’s Resp. to Mot. for Summ. J. § II. B.] In the eight weeks since Rossi filed his response, he has
neither petitioned for leave nor filed an amended pleading. Moreover, Rossi has also failed to
comply with Rule 4(m)’s time limit for service. See FED. R. CIV. P. 4(m). Although Rossi has
stated a cognizable claim of bystander liability4 against the John Does, he has been deficient in
meeting these procedural obligations.
The Court orders Rossi to file an amended complaint naming the John Does and to serve
those officers. The amended complaint must be filed and the officers must be served within thirty
(30) days.
C.
Conspiracy Claim
Federal law proscribes conspiring to deprive an individual of their constitutional and
statutory rights. See 42 U.S.C. § 1985(3). The only defendants in this suit are the City and certain
of its police officers. “The City of Houston is a single legal entity and, as a matter of law, its
employees cannot conspire among themselves.” Swilley v. City of Houston, 457 F. App’x 400,
404 (5th Cir. 2012) (citing Benningfield v. City of Houston, 157 F.3d 369, 378 (5th Cir. 1998).
Accordingly, the Court grants the defendants summary judgment on this claim.
D.
Municipal Liability
A plaintiff seeking to impose section 1983 liability on a municipality is required to
identify a governmental policy or custom that caused his injury. See Board of Cnty Com’rs of
Bryan Cnty, Okl. V. Brown, 520 U.S. 397, 403 (1997) (citing Monell v. Dep’t of Soc. Servs. of
City of New York, 436 U.S. 658, 694 (1978). Specifically, the plaintiff must prove: “(1) an
official policy (or custom), of which (2) a policy maker can be charged with actual or
constructive knowledge, and (3) a constitutional violation whose ‘moving force’ is that policy (or
4
See Hale v.Townley, 45 F.3d 914, 919 (5th Cir. 1995) (“[A]n officer who is present at the scene and does not take
reasonable measures to protect a suspect from another officer’s use of excessive force may be liable under section
1983.”).
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custom).” Pineda v. City of Houston, 291 F.3d 325, 328 (5th Cir. 2012) (citing Piotrowski v. City
of Houston, 237 F.3d 567, 578 (5th Cir. 2001). In other words, liability cannot attach on a
respondeat superior basis; rather, “the municipality must cause the constitutional tort.” James v.
Dallas Hous. Auth., 526 F. App’x 338, 394 (5th Cir. 2013) (quoting Bolton v. City of Dallas,
Tex., 541 F.3d 545, 548 (5th Cir. 2008)).
Rossi’s theory of liability is that the City’s inadequate hiring and training policies, which
the City was deliberately indifferent5 in adopting, ultimately led to his injury. In the hiring
context, the plaintiff must show that the decision to hire a particular individual reflects
“deliberate indifference to the risk that a violation of a particular constitutional or statutory right
will follow the decision.” Brown, 219 F.3d at 460-61 (internal quotation omitted). Specifically,
“there must be evidence that would support a finding that it was obvious that the offending
officer in question was ‘highly likely to inflict the particular injury suffered by the plaintiff.” Id.
at 461 (internal quotation omitted). In the failure-to-train context, the plaintiff must establish that
the municipality’s training procedure was inadequate, that the inadequacy directly led to his
rights being violated, and the municipality was deliberately indifferent to the risk of harm
presented by the training procedure when it was adopted. See Valle v. City of Houston, 613 F.3d
536, 544 (5th Cir. 2010).
The plaintiff’s allegations, and the accompanying summary judgment evidence, do not
satisfy the high threshold showing necessary for the imposition of municipal liability. The
allegations in the complaint are simply a formulaic recitation of the Monell cause of action, and
the summary judgment response does not even attempt to identify the specific portions of the
5
“Deliberate indifference is a stringent standard, requiring proof that a municipal actor disregarded a known or
obvious consequence of his action. The causation element demands that the plaintiff show that the objectionable
municipal policy was the moving force behind the plaintiff’s injury.” Brown v. Bryan Cnty, OK, 219 F.3d 450, 457
(5th Cir. 2000) (internal quotations omitted).
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City’s hiring and training policies that are claimed to be deficient. It is not enough to merely
allege that “policy deficiencies within the Houston Police Department are inherently linked to
Mr. Rossi’s injuries,” and aver to an article in The Huffington Post and an on-going investigation
by the United States Department of Justice. Those things neither evidence that the City should
have known that Officer Rohling was highly likely to use excessive force in the execution of his
duties, nor do they show that the training he received was inadequate (let alone that the alleged
inadequacy led to Rossi’s injuries).
On this record, the Court finds that summary judgment is appropriate for all federal
claims asserted against the City of Houston.
E.
State Law Claims Against the City
The Texas Tort Claims Act requires a claimant to provide a municipality with formal,
written notice of a claim against it within six months of the incident giving rise to the claim. See
TEX. CIV. PRAC. & REM. CODE § 101.101. The Act also approves of a shorter notice period if
established by a municipal charter or ordinance Id. However, the Act expressly states that no
formal notice requirement applies if the municipality has “actual notice” of a claim. Id.
The defendants argue that summary judgment must be granted on Rossi’s claims because
he did not provide the required notice within the ninety-day period prescribed by the Charter of
the City of Houston. See Charter of the City of Houston, Art. IX § 11. Rossi has provided
evidence that his mother sent an email to Houston Mayor Annise Parker that described the events
of April 1, 2010. This email, he argues, satisfies the notice requirement.
It is well-settled that failure to abide by notice requirements is fatal to a claim. See City of
Houston v. Torres, 621 S.W.2d 588, 590 (1981). Although the email to Mayor Parker would
presumably create at least a fact issue as to whether the notice requirement was satisfied, that is
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not the case here; it is clear that the email did not contain all the information required by the
applicable provision of the Houston Charter.6 However, because the City had actual notice of
Rossi’s claim, it was not necessary for him to provide written notice. See TEX. CIV. PRAC. &
REM. CODE § 101.101(c); see also Cathy v. Booth, 900 S.W.2d 339, 341 (Tex. 1995) (“Actual
notice to a governmental unit requires knowledge of (1) a death, injury, or property damages; (2)
the governmental unit’s alleged fault producing or contributing to the death, injury, or property
damage; and (3) the identity of the parties involved.”). Rossi’s sworn affidavit, submitted on
April 14, 2010, as part of his formal complaint against Officer Rohling and the Houston Police
Department, certainly gave the City actual notice of his claim. Therefore, the Court rejects the
defendants’ argument that Rossi’s state law claims against the City fail because he did not
provide written notice.
The defendants also argue that Rossi’s state law claims against the City fail because the
Texas Tort Claims Act does not abrogate governmental immunity with respect to intentional
torts. See TEX. CIV. PRAC. & REM. CODE § 101.057. Assault and battery and intentional
infliction of emotion distress are both intention torts. Id.; see also Twyman v. Twyman, 855
S.W.2d 619, 621-22 (Tex. 1993). Section 101.057 of the Act is explicit; it “shields municipalities
from suits arising out of intentional torts committed by governmental employees.” Gillum v. City
of Kerrville, 3 F.3d 117, 123 (5th Cir. 1993) (citing City of Waco v. Hester, 805 S.W.2d 807,
810-12 (Tex.App.—Waco 1990, writ denied). Rossi does not contest this conclusion.
Accordingly, the Court grants the City summary judgment on Rossi’s state law claims.
6
For example, the email did not state “the amount for which [Rossi] will settle.” Charter of the City of Houston, Art.
IX § 11.
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VI.
CONCLUSION
For the foregoing reasons, the Court GRANTS in part and DENIES in part the
defendants’ motion for summary judgment.
It is so ORDERED.
SIGNED on this 21st day of February, 2014.
___________________________________
Kenneth M. Hoyt
United States District Judge
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