Torres v. City of Houston et al
Filing
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MEMORANDUM AND ORDER Defendant Lauren Bards Motion to Dismiss [Doc. # 4] is GRANTED and the claims against her are DISMISSED WITH PREJUDICE. It is furtherORDERED that Defendant City of Houstons Motion to Dismiss [Doc. # 5] is GRANTED to the extent t hat the state law claims, the § 1985 claim, the § 1983 claim based on ratification, and the claim for punitive damages against it are DISMISSED. It is furtherORDERED that any claims that may be asserted against N.R. Barn or N.R. Barnes are DISMISSED. It is furtherORDERED that Plaintiff shall file an Amended Complaint against only the City of Houston and/or the police officer individually, and asserting only a claim under § 1983, by January 14, 2013. Plaintiffs Amended Complaint must contain factual allegations in support of his § 1983 claim and may not be based on conclusory allegations that merely track the legal requirements for a § 1983 claim. Additionally, Plaintiff is cautioned that the Amended Complaint mu st comply with the requirements of Rule 11 of the Federal Rules of Civil Procedure. Failure to file a proper amended complaint by the January 14, 2013 deadline will result in dismissal of this lawsuit for failure to prosecute and for failure violati on of this Order. It is furtherORDERED that the initial pretrial conference is rescheduled to January 28, 2013, at 1:00 p.m. ( Initial Conference set for 1/28/2014 at 01:00 PM in Courtroom 9F before Judge Nancy F. Atlas)(Signed by Judge Nancy F. Atlas) Parties notified.(sashabranner, )
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
JOSE JOSE TORRES,
Plaintiff,
v.
CITY OF HOUSTON and
LAUREN BARD,
Defendants.
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CIVIL ACTION NO. H-12-2323
MEMORANDUM AND ORDER
This case is before the Court on a Motion to Dismiss [Doc. # 4] filed by
Defendant Lauren Bard and a Motion to Dismiss [Doc. # 5] filed by Defendant City
of Houston. Plaintiff Jose Jose Torres filed a single Response [Doc. # 8] addressing
both Motions. Having reviewed the full record and applicable legal authorities, the
Court grants the Motions, but grants Plaintiff leave to file an amended complaint as
set forth herein.
I.
BACKGROUND
Plaintiff alleges that in July 2010, a 14-year old girl reported to police that she
was awakened to find a man standing over her. The girl reported that the man had a
knife and a screwdriver, with which he threatened her, and that he sexually assaulted
her. The girl told the police officer who responded to the family’s 911 call that she
could not identify the attacker because it “was too dark.”
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Plaintiff alleges that the case was assigned to Houston Police Officer “N.R.
Barnes” with the juvenile sex unit. See Original Complaint [Doc. # 1], ¶ 12. Plaintiff
alleges that, a few days later, the girl reported to Officer Barnes that she believed the
attacker was “the cable guy.” Plaintiff had visited the girl’s home before the attack
soliciting cable business. Plaintiff admitted to Officer Barnes that he had visited the
girl’s home, but disputed that he had been inside the house.
Plaintiff was arrested in February 2011. The probable cause affidavit was based
on the statements given by the victim and her mother, including the statement that
Plaintiff had been inside the house prior to the attack.
The case was assigned for prosecution to Assistant District Attorney (“ADA”)
Lauren Bard, who presented the case to a grand jury and obtained an indictment
against Plaintiff. The victim’s mother recanted her statement that Plaintiff had been
inside the house, and a new ADA was assigned to the case. The new ADA dismissed
the charges against Plaintiff.
Plaintiff filed this lawsuit against Defendants City of Houston and ADA Bard,
alleging federal claims under 42 U.S.C. § 1983 and § 1985.1 Plaintiff asserts a variety
1
In the Original Complaint, Plaintiff states that venue is proper in the Brownsville
Division of the Southern District of Texas and includes a section entitled “42 U.S.C.
§ 1983: Claims Against Willacy County.” It appears these are typographical errors.
Venue is clearly proper in the Houston Division in this case against the City of
Houston, and there are no factual allegations that would support a § 1983 claim
against Willacy County.
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of state law causes of action including “false imprisonment and official oppression,”
assault, intentional infliction of emotional distress, malicious prosecution, and
defamation. Defendants Bard and the City of Houston each filed a Motion to Dismiss,
to which Plaintiff filed a Response. The Motions to Dismiss are now ripe for decision.
II.
MOTION TO DISMISS BY LAUREN BARD
Plaintiff alleges that his case was assigned to ADA Bard, who presented the
case to a grand jury and obtained an indictment. Plaintiff alleges that Bard failed to
present evidence to the grand jury that would have exonerated him. Bard has moved
to dismiss the claims against her on the basis of absolute immunity.
“A prosecutor is absolutely immune from suit when she acts in her role as an
advocate for the state by initiating and pursuing prosecution.” Beck v. Tex. State Bd.
of Dental Exam’rs, 204 F.3d 629, 637 (5th Cir. 2000). This absolute immunity
extends to a “prosecutor’s conduct before a grand jury.” Burns v. Reed, 500 U.S. 478,
490 (1991). Moreover, a prosecutor’s absolute immunity extends to prosecutorial
conduct even when done in error, wantonly, or maliciously. See Harrell v. Rosenthal,
2008 WL 4649067, *1 (5th Cir. Oct. 21, 2008) (quoting Kerr v. Lyford, 171 F.3d 330,
337 (5th Cir. 1999)); see also Morrison v. City of Baton Rouge, 761 F.2d 242, 248
(5th Cir. 1985)).
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Although Plaintiff challenges Bard’s prosecutorial decisions and conduct before
the grand jury, he does not allege that Bard’s conduct was outside her role as an ADA,
seeking indictments by presenting cases to a grand jury. As a result, Bard is entitled
to absolute immunity for her prosecutorial decisions and conduct, even if allegedly
erroneous or malicious. Bard’s Motion to Dismiss is granted and the claims against
her are dismissed with prejudice.
III.
MOTION TO DISMISS BY CITY OF HOUSTON
A.
Claims Against “N.R. Barn”
It is unclear whether Plaintiff is asserting claims against “N.R. Barn.” In the
caption of the Original Petition, Plaintiff names only City of Houston and Lauren Bard
as Defendants. In the “Defendants” section, however, Plaintiff names “N.R. Barn” as
a Houston Police Officer. In the “Facts” section, Plaintiff identifies “N.R. Barnes” as
the juvenile sex unit officer to whom the investigation of this case was assigned.
Neither “N.R. Barn” nor “N.R. Barnes” is named in any of the causes of action, which
are asserted generally against “Defendants.” Therefore, it does not appear that
Plaintiff has sued “N.R. Barn” or “N.R. Barnes” as a named Defendant.
To the extent Plaintiff intended to sue either “N.R. Barn” or “N.R. Barnes” as
a Houston Police Officer, his lawsuit against the City of Houston operates as an
election to pursue his tort claims against the City rather than against the officer. See
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TEX. CIV. PRAC. & REM. CODE § 101.106(a) and (b); Mission Consol. Indep. Sch. Dist.
v. Garcia, 253 S.W.3d 653, 655 (Tex. 2008); Hintz v. Lally, 305 S.W.3d 761, 769
(Tex. App. – Houston [14th Dist.] 2010, no pet.). The City of Houston raised this
statutory election in its Motion to Dismiss, and Plaintiff’s Response did not address
the issue. Pursuant to § 101.106, any state law claims against “N.R. Barn” or “N.R.
Barnes” are dismissed.
Claims under § 1983 and § 1985 are not subject to the statutory election. See
Whitesell v. Newsome, 138 S.W.3d 393, 396 (Tex. App. – Houston [14th Dist.] 2004,
pet. denied). As explained below, Plaintiff’s allegations negate a claim under
§ 1985(2) and/or § 1985(3). Plaintiff may, however, attempt to assert a § 1983 claim
against the correctly-named police officer in her individual capacity within the
parameters set forth herein.
B.
State Law Claims Against City of Houston
The City of Houston seeks dismissal of Plaintiff’s state law claims on the basis
of its governmental immunity. The City of Houston enjoys governmental immunity
from suit in the performance of governmental functions unless the immunity has been
waived by the Legislature. See TEX. GOV’T CODE § 311.034; City of Galveston v.
State, 217 S.W.3d 466, 469 (Tex. 2007); Tooke v. City of Mexia, 197 S.W.3d 325,
343-44 (Tex. 2006). Police protection is a statutorily defined governmental function.
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TEX. CIV. PRAC. & REM. CODE § 101-0215(a)(1).
Additionally, all activities
associated with police protection are governmental. See Ethio Express Shuttle Serv.,
Inc. v. City of Houston, 164 S.W.3d 751, 756 (Tex. App. – Houston [14th Dist.] 2004,
no pet.). The City of Houston has not waived its governmental immunity for claims
such as assault, false imprisonment or any other intentional tort. See TEX. CIV. PRAC.
& REM. CODE § 101.057; Ethio, 164 S.W.3d at 758. As a result, the state law claims
against the City of Houston are dismissed.
C.
Federal Claims Against City of Houston
Plaintiff asserts constitutional claims against the City of Houston pursuant to
42 U.S.C. § 1983 and 1985, and seeks damages including punitive damages. It is
clearly established that municipalities such as the City of Houston are immune from
punitive damages under § 1983. See City of Newport v. Fact Concerts, Inc., 453 U.S.
247, 271 (1981); Webster v. City of Houston, 735 F.2d 838, 860 n.52 (5th Cir. 1984);
Roemer v. City of Houston, 2010 WL 3505156, *6 (S.D. Tex. Sept. 3, 2010).
Section 1983 – Plaintiff has failed to state a viable § 1983 claim against the
City of Houston. Under Monell v. Department of Social Services of the City of New
York, 436 U.S. 658 (1978), and its progeny, the fact that a plaintiff’s constitutional
rights may have been violated is not enough to impose liability on a municipality.
Instead, to impose liability on a municipality under § 1983 for the misconduct of its
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employee, a plaintiff must show not only a constitutional violation, but also that an
official policy promulgated by the municipality’s official policymaker was the cause
of the constitutional injury. See James v. Harris Cnty., 577 F.3d 612, 617 (5th Cir.
2009). Official policy can exist in the form of “written policy statements, ordinances,
or regulations, but may also arise in the form of a widespread practice that is so
common and well-settled as to constitute a custom that fairly represents municipal
policy.” Id. Plaintiff in this case does not allege an official policy adopted by the City
of Houston’s policymaker, or that the City of Houston has a persistent and widespread
practice of knowingly making false accusations against individuals. Consequently,
Plaintiff has failed to state a claim of municipal liability under § 1983.
Plaintiff has also failed to state a viable § 1983 claim against the City of
Houston based on a ratification theory. Under the ratification theory, if “the
authorized policymakers approve a subordinate’s decision and the basis for it, their
ratification would be chargeable to the municipality.” City of St. Louis v. Praprotnik,
485 U.S. 112, 127 (1988). To state a § 1983 claim based on ratification, the plaintiff
must allege that a city policymaker affirmatively approved both a subordinate's
decision and the unconstitutional basis for it. World Wide St. Preachers Fellowship
v. Town of Columbia, 591 F.3d 747, 755–56 (5th Cir. 2009). Plaintiff alleges that the
police officer brought false accusations against him and that, “[b]y taking no action,
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the City of Houston ratified the officer’s actions.” See Original Complaint [Doc. # 1],
¶ 36. This allegation of inaction is inconsistent with and negates any contention that
the official policymaker for the City of Houston affirmatively ratified any police
officer’s unconstitutional violation of Plaintiff’s rights by asserting false accusations
against him. As a result, the § 1983 claim based on ratification is dismissed.
Section 1985 – Plaintiff has failed to state a viable claim against the City of
Houston under § 1985. Title 42, United States Code, § 1985 prohibits three forms of
conspiracy to interfere with civil rights. Plaintiff does not identify the subsection
under which he asserts his § 1985 claim.
Subsection (1) prohibits conspiracies to prevent federal officers from
performing their official duties “by force, intimidation, or threat.” 42 U.S.C.
§ 1985(1). There are no allegations in Plaintiff’s Complaint that would support a
claim under § 1985(1).
The first part of subsection (2) prohibits conspiracies directed at the right to
participate in federal judicial proceedings.
42 U.S.C. § 1985(2).
Plaintiff’s
allegations all involve state, not federal, judicial proceedings. The second part of
§ 1985(2) applies to state court proceedings, but prohibits only conspiracies to deny
any citizen equal protection of the laws. Id.
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The first part of subsection (3) prohibits conspiracies to deprive “any person or
class of persons the equal protection of the laws.” 42 U.S.C. § 1985(3). The second
part of subsection (3) prohibits conspiracies aimed at preventing a person from voting.
Id. There are no allegations in the Complaint regarding Plaintiff being deprived of his
right to vote.
To the extent Plaintiff bases his § 1985 claim on the second part of § 1985(2)
or the first part of § 1985(3), he fails to state a claim under either section because he
has not alleged a conspiracy involving race or other class-based discrimination. See
Griffin v. Breckenridge, 403 U.S. 88, 102 (1971); Brandt v. Smith, 634 F.2d 796, 800
(5th Cir. 1981); Magic Carpet Limousines v. DFW Int’l Airport, 72 F. App’x 1001,
1002 (5th Cir. Aug. 22, 2003). Indeed, Plaintiff alleges instead that the sole
motivation for the alleged conspiracy was to have him arrested and humiliated
publicly. Plaintiff has failed to state a claim under § 1985 against any defendant.
IV.
LEAVE TO AMEND
When a plaintiff’s complaint fails to state a claim, the court should generally
give the plaintiff at least one chance to amend the complaint before dismissing the
action with prejudice. See Great Plains Trust Co. v. Morgan Stanley Dean Witter &
Co., 313 F.3d 305, 329 (5th Cir. 2002). Leave to replead should be permitted “unless
the defect is simply incurable or the plaintiff has failed to plead with particularity after
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repeated opportunities to do so.” Hart v. Bayer Corp., 199 F.3d 239, 248 n.6 (5th
Cir.2000).
In this case, Plaintiff’s claims against Lauren Bard are barred by absolute
prosecutorial immunity and repleading those claims would be futile. Any state law
claims Plaintiff intends to assert against “N.R. Barn” or “N.R. Barnes” are barred by
the statutory election pursuant to Texas law. As explained herein, Plaintiff’s claims
under § 1985, and the claims under § 1983 based on ratification, have been dismissed
based on defects that are incurable because Plaintiff has alleged facts that negate these
claims. Plaintiff’s state law claims and claim for punitive damages against the City
of Houston are clearly barred and any attempt to replead these claims would be futile.
The Court concludes, however, that Plaintiff should be given an opportunity to
attempt to assert a § 1983 claim against the City of Houston based on an official
policy of intentionally making false allegations leading to criminal prosecution, and/or
to assert a § 1983 claim against the police officer in her individual capacity. Plaintiff
must plead specific facts, rather than assert general allegations. See Spiller v. City of
Texas City Police Dept., 130 F.3d 162, 167 (5th Cir. 1997) (“The description of a
policy or custom and its relationship to the underlying constitutional violation . . .
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cannot be conclusory; it must contain specific facts.”). Additionally, Plaintiff may not
allege facts for which he has no good faith basis. See FED. R. CIV. P. 11(b).
V.
CONCLUSION AND ORDER
Based on the foregoing, the Court concludes that Defendant Lauren Bard has
absolute immunity from the claims asserted against her in Plaintiff’s Original
Complaint. To the extent Plaintiff intended to include “N.R. Barn” as a defendant,
Plaintiff has sued the City of Houston and that election requires dismissal of any state
law claims against “N.R. Barn.” The City of Houston has governmental immunity
from the state law claims, and it is immune from punitive damages. Plaintiff has
alleged facts that negate his § 1985 claim and his § 1983 claim against the City of
Houston based on ratification. Accordingly, it is hereby
ORDERED that Defendant Lauren Bard’s Motion to Dismiss [Doc. # 4] is
GRANTED and the claims against her are DISMISSED WITH PREJUDICE. It
is further
ORDERED that Defendant City of Houston’s Motion to Dismiss [Doc. # 5] is
GRANTED to the extent that the state law claims, the § 1985 claim, the § 1983 claim
based on ratification, and the claim for punitive damages against it are DISMISSED.
It is further
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ORDERED that any claims that may be asserted against “N.R. Barn” or “N.R.
Barnes” are DISMISSED. It is further
ORDERED that Plaintiff shall file an Amended Complaint against only the
City of Houston and/or the police officer individually, and asserting only a claim
under § 1983, by January 14, 2013. Plaintiff’s Amended Complaint must contain
factual allegations in support of his § 1983 claim and may not be based on conclusory
allegations that merely track the legal requirements for a § 1983 claim. Additionally,
Plaintiff is cautioned that the Amended Complaint must comply with the requirements
of Rule 11 of the Federal Rules of Civil Procedure. Failure to file a proper amended
complaint by the January 14, 2013 deadline will result in dismissal of this lawsuit for
failure to prosecute and for failure violation of this Order. It is further
ORDERED that the initial pretrial conference is rescheduled to January 28,
2013, at 1:00 p.m.
SIGNED at Houston, Texas, this 14th day of December, 2012.
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