Torres v. City of Houston et al
Filing
31
MEMORANDUM AND ORDER granting 23 Defendant Lauren Bard's Motion for Summary Judgment; granting 24 City of Houston's Motion to Dismiss for Failure to State a Claim, and requiring Plaintiff's counsel to complete CLE requirements.(Signed by Judge Nancy F. Atlas) Parties notified.(TDR)
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.
§
§
§
§
§
§
§
§
CIVIL ACTION NO. H-12-2323
MEMORANDUM AND ORDER
This case is before the Court on the Motion for Summary Judgment [Doc. # 23]
filed by Defendant Lauren Bard, to which Plaintiff Jose Jose Torres filed a Response
[Doc. # 27], and Bard filed a Reply [Doc. # 28]. Also pending is the Motion to
Dismiss [Doc. # 24] filed by Defendant City of Houston (the “City”), to which
Plaintiff filed a Response [Doc. # 26], and the City filed a Reply [Doc. # 29]. Having
reviewed the full record and applicable legal authorities, the Court grants both
Motions and dismisses this case with prejudice.
I.
FACTUAL AND PROCEDURAL 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
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her. Plaintiff alleges that 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.”
Plaintiff alleges that the case was assigned to Houston Police Department
(“HPD”) Officer “N.R. Barnes” with the juvenile sex unit. See Second Amended
Complaint [Doc. # 19], ¶ 12. Plaintiff alleges that, a few days later, the girl reported
to Officer Barnes that she believed the attacker was “the cable guy.” Before the
attack, Plaintiff had visited the girl’s home 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.
Plaintiff alleges that his criminal defense attorney and an
investigator were interviewing the victim’s mother and step father when ADA Bard
telephoned the mother and told her not to talk to the attorney and the investigator
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because “they are on the other side.” See Affidavit of Nick Ramirez, Exh. to
Response to Bard’s Motion for Summary Judgment.1
The victim’s mother later recanted her statement that Plaintiff had been inside
the house, and a new ADA was assigned to the case. The new ADA sought and
obtained the dismissal of all 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, and asserting a variety 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 each filed a Motion to Dismiss. By
Memorandum and Order [Doc. # 12] entered December 14, 2012, the Court granted
both motions, but allowed Plaintiff an opportunity to attempt to assert a § 1983 claim
against the City based on an official policy, and/or to assert a § 1983 claim against the
HPD officer in her individual capacity. See Memorandum and Order, p. 10. The
Court cautioned Plaintiff that the Amended Complaint must assert only a claim under
1
It appears from Ramirez’s Affidavit that he told the victim’s mother and step-father
only that he “was doing a follow-up as to what happened.” See Ramirez Aff.,
unnumbered page 2. There is nothing to indicate that Ramirez advised the victim’s
mother that he represented the criminal defendant accused of assaulting her daughter,
or otherwise made clear that he was there on behalf of the criminal defendant. Later,
when Bard telephoned and advised the mother that Ramirez was there on Torres’s
behalf, the mother stated that she did not want to talk to them and asked them to leave
the house. See id., unnumbered page 3.
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§ 1983 and must comply with the requirements of Rule 11 of the Federal Rules of
Civil Procedure. See id. at 12. The Court did not grant leave for Plaintiff to name
Bard as a defendant in the amended pleading.
On January 14, 2013, Plaintiff filed his First Amended Complaint [Doc. # 13].
Plaintiff again named Bard as a Defendant, and again asserted against the City the
same § 1985 claim that was previously dismissed. Plaintiff again named “N.R. Barn”
in the “Defendants” section, but not in the caption, and again stated falsely that she
had “made her appearance.” The same day, Plaintiff also filed a Motion for Leave to
File Amended Petition [Doc. # 14] and a Motion to Vacate the Dismissal Order as to
Bard [Doc. # 15]. At the pretrial conference on January 31, 2013, the Court denied
the Motion for Leave to File Amended Petition because many of the claims proposed
therein patently lacked merit, and ordered Plaintiff instead to file a Second Amended
Complaint within the parameters discussed during the conference. See Hearing
Minutes and Order [Doc. # 18]. The Court granted the City’s Motion to Strike the
First Amended Complaint. The Court denied Plaintiff’s Motion to Vacate the
Dismissal Order as to Bard, except to the extent that Plaintiff was granted leave to file
only a defamation claim against Bard if he could satisfy the requirements of Imbler
v. Pachtman, 424 U.S. 409 (1976). See id.
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On February 28, 2013, Plaintiff filed his Second Amended Complaint [Doc.
# 19]. Thereafter, Bard filed her Motion for Summary Judgment, and the City filed
its Motion to Dismiss. After Plaintiff failed to respond to either motion, the Court
issued an Order [Doc. # 25] directing Plaintiff to respond by May 7, 2013. Plaintiff
filed his responses by the extended deadline, and movants filed replies. The pending
motions are now ripe for decision.
II.
CLAIMS AGAINST “N.R. BARN” OR “N.R. BARNES”
“N.R. Barnes” has never been named as a Defendant in the caption of any
complaint filed by Plaintiff in this case. In all three complaints, however, Plaintiff
named “N.R. Barn,” a Houston Police Officer, in the “Defendants” section. In the
“Facts” section of each Complaint, Plaintiff identified “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” was named in any of the causes of action in any of the
complaints. The Court noted these problems with the Original Complaint when it
issued its Memorandum and Order [Doc. # 12] on December 14, 2012, but allowed
Plaintiff to attempt to assert a § 1983 claim against the correctly-named police officer
in her individual capacity. When Plaintiff filed his Second and Third Amended
Complaints, however, he failed to address any of the problems identified by the Court
in connection with “N.R. Barn.” Moreover, there is no evidence that Plaintiff has
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served “N.R. Barn.” As a result, pursuant to Rule 4(m) of the Federal Rules of Civil
Procedure, any claims Plaintiff may purport to assert against HPD Officer “N.R.
Barn” or “N.R. Barnes” are dismissed.
III.
MOTION FOR SUMMARY JUDGMENT BY LAUREN BARD
Plaintiff alleges in the Second Amended Petition that Bard made defamatory
statements to the media.2 Bard has moved for summary judgment, arguing that any
defamation claim based on the statement she made to the media is time-barred, and
that Plaintiff has failed to present evidence that she made any other statement to the
media.
A.
Standard for Summary Judgment
Rule 56 of the Federal Rules of Civil Procedure mandates the entry of summary
judgment, after adequate time for discovery and upon motion, 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 will bear the burden at trial. 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); see also Baton Rouge Oil and Chem. Workers Union v.
ExxonMobil Corp., 289 F.3d 373, 375 (5th Cir. 2002). Summary judgment “should
2
Plaintiff in the Second Amended Complaint continues to assert claims that were
previously dismissed as within Bard’s absolute prosecutorial immunity. The only
claim Plaintiff was allowed to refile against Bard is a defamation claim. All other
claims remain dismissed.
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be rendered if 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(a); Celotex,
477 U.S. at 322-23; Weaver v. CCA Indus., Inc., 529 F.3d 335, 339 (5th Cir. 2008).
For summary judgment, the initial burden falls on the movant to identify areas
essential to the non-movant’s claim in which there is an “absence of a genuine issue
of material fact.” Lincoln Gen. Ins. Co. v. Reyna, 401 F.3d 347, 349 (5th Cir. 2005).
The moving party, however, need not negate the elements of the non-movant’s case.
See Boudreaux v. Swift Transp. Co., 402 F.3d 536, 540 (5th Cir. 2005). The moving
party may meet its burden by pointing out “‘the absence of evidence supporting the
nonmoving party’s case.’” Duffy v. Leading Edge Prods., Inc., 44 F.3d 308, 312 (5th
Cir. 1995) (quoting Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 913 (5th Cir.
1992)).
If the moving party meets its initial burden, the non-movant must go beyond the
pleadings and designate specific facts showing that there is a genuine issue of material
fact for trial. Littlefield v. Forney Indep. Sch. Dist., 268 F.3d 275, 282 (5th Cir. 2001)
(internal citation omitted). “An issue is material if its resolution could affect the
outcome of the action. A dispute as to a material fact is genuine if the evidence is
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such that a reasonable jury could return a verdict for the nonmoving party.” DIRECT
TV Inc. v. Robson, 420 F.3d 532, 536 (5th Cir. 2006) (internal citations omitted).
In deciding whether a genuine and material fact issue has been created, the
court reviews the facts and inferences to be drawn from them in the light most
favorable to the nonmoving party. Reaves Brokerage Co. v. Sunbelt Fruit &
Vegetable Co., 336 F.3d 410, 412 (5th Cir. 2003). A genuine issue of material fact
exists when the evidence is such that a reasonable jury could return a verdict for the
non-movant. Tamez v. Manthey, 589 F.3d 764, 769 (5th Cir. 2009) (citing Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). The non-movant’s burden is not
met by mere reliance on the allegations or denials in the non-movant’s pleadings. See
Diamond Offshore Co. v. A&B Builders, Inc., 302 F.3d 531, 545 n.13 (5th Cir. 2002).
Likewise, “conclusory allegations” or “unsubstantiated assertions” do not meet the
non-movant’s burden. Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co.,
530 F.3d 395, 399 (5th Cir. 2008). Instead, the nonmoving party must present specific
facts which show “the existence of a genuine issue concerning every essential
component of its case.” Am. Eagle Airlines, Inc. v. Air Line Pilots Ass’n, Int’l, 343
F.3d 401, 405 (5th Cir. 2003) (citation and internal quotation marks omitted). In the
absence of any proof, the court will not assume that the non-movant could or would
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prove the necessary facts. Little, 37 F.3d at 1075 (citing Lujan v. Nat’l Wildlife Fed’n,
497 U.S. 871, 888 (1990)).
The Court may make no credibility determinations or weigh any evidence. See
Chaney v. Dreyfus Serv. Corp., 595 F.3d 219, 229 (5th Cir. 2010) (citing Reaves
Brokerage Co., 336 F.3d at 412-413). The Court is not required to accept the
nonmovant’s conclusory allegations, speculation, and unsubstantiated assertions
which are either entirely unsupported, or supported by a mere scintilla of evidence.
Id. (citing Reaves Brokerage, 336 F.3d at 413). Affidavits cannot preclude summary
judgment unless they contain competent and otherwise admissible evidence. See FED.
R. CIV. P. 56(c)(4); Love v. Nat’l Med. Enters., 230 F.3d 765, 776 (5th Cir. 2000);
Hunter-Reed v. City of Houston, 244 F. Supp. 2d 733, 745 (S.D. Tex. 2003).
B.
Statute of Limitations
It is undisputed that Bard spoke with reporters in February 2011.3 The statute
of limitations for a defamation claim is one year. See TEX. CIV. PRAC. & REM. CODE
§ 16.002(a). Plaintiff filed this lawsuit on August 6, 2012, well after the one-year
statute of limitations expired as to the February 2011 statements.
3
The substance of Bard’s statements in February 2011 is disputed.
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In response to Bard’s Motion for Summary Judgment based on the statute of
limitations, Plaintiff argues that “the statute of limitations is a state matter” and that
Texas law provides that:
If a filed pleading relates to a cause of action . . . that is not subject to a
plea of limitation when the pleading is filed, a subsequent amendment or
supplement to the pleading that changes the facts or grounds of liability
of defense is not subject to a plea of limitation unless the amendment or
supplement is wholly based on a new, distinct, or different transaction
or occurrence.
See Response [Doc. # 27], pp. 5-6 (quoting TEX. CIV. PRAC. & REM. CODE § 16.068).
The defamation claim in the Original Complaint in this case, however, was subject to
a plea of limitation as to the statements in February 2011. As a result, § 16.068 does
not affect whether the claim regarding the February 2011 statements is time-barred.
Bard is entitled to summary judgment that Plaintiff’s defamation claim based on her
statements in February 2011 is time-barred.
C.
Claims Based on Other Statements
In his defamation claim in the Second Amended Complaint, Plaintiff alleges
that on August 5, 2011, an unidentified “spokesperson for the Harris County District
Attorney’s Office” released to the media an allegedly false and defamatory statement
about Plaintiff. See Second Amended Complaint, p. 17.
Bard has presented sworn testimony that she is not the spokesperson who made
any statement on August 5, 2011. See Bard Affidavit, Exh. C to Motion for Summary
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Judgment, p. 2. Indeed, Bard has stated under oath that she did not make any
statements to the media after the indictment against Plaintiff was dismissed on
August 3, 2011. Plaintiff has presented no evidence to the contrary. As a result,
Plaintiff has failed to present evidence that raises a genuine issue of material fact that
Bard made any statements other than the time-barred statement in February 2011.
Plaintiff argues in his Response that the Court cannot grant summary judgment
because “Plaintiff states Defendant Bard said certain things and Defendant Bard
states, ‘no, I did not,’” creating “a fact question for a jury to decide.” See Response,
p. 5. Bard has presented sworn testimony that she did not make the challenged
statements in August 2011, and Plaintiff has not presented evidence to the contrary.
Plaintiff’s unsupported allegation that Bard was the “unnamed spokesperson” in
August 2011 does not raise a genuine issue of material fact. See Delta & Pine Land
Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 399 (5th Cir. 2008); Diamond
Offshore Co. v. A&B Builders, Inc., 302 F.3d 531, 545 n.13 (5th Cir. 2002) (nonmovant’s burden is not met by mere reliance on the allegations or denials in the nonmovant’s pleadings).
D.
Other Arguments in Plaintiff’s Response
In addition to the arguments discussed above, Plaintiff in his Response argues
that the Code of Judicial Conduct prohibits judges from making public comments
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about pending matters. See Response, p. 6. It is unclear to what this argument relates.
There are no allegations that Bard is a judge, or that any judge made public comments
regarding Plaintiff’s case while it was pending.
Plaintiff argues also that the Court cannot grant summary judgment on
Plaintiff’s defamation claim because “there is the issue of injunctive relief pending.”
See id. at 7. The requested injunctive relief relates to a City policy “which would not
allow defense counsel to interview key witnesses.”4 See Second Amended Complaint,
p. 22. Bard (in her individual capacity) is not a proper defendant for this claim for
injunctive relief because there is no evidence that Bard, a Harris County prosecutor,
individually or officially has any authority to change HPD written policies.
Additionally, the Court did not grant leave for Plaintiff to assert a claim for injunctive
relief against Bard and, as noted below, the claim for injunctive relief is being
dismissed as against the City.
Bard is entitled to summary judgment on Plaintiff’s defamation claim.
4
Plaintiff in his Response to Bard’s Motion for Summary Judgment concedes that the
policy, which relates only to HPD officers, actually allows the police officers to speak
to defense counsel. Plaintiff complains, however, that “upon reading it closely, it
only allows speaking to the attorney’s [sic] if the police officer wants to talk to them.”
See Response, p. 7.
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IV.
CITY’S MOTION TO DISMISS
A.
Standard for Motion to Dismiss
Plaintiff asserts constitutional claims against the City of Houston pursuant to
42 U.S.C. § 1983. Plaintiff, in the Second Amended Complaint, also asserts claims
that were previously dismissed, such as a conspiracy claim, a § 1985 claim, and a
§ 1983 claim based on ratification. The only claim against the City of Houston that
Plaintiff was allowed to pursue in the Second Amended Complaint is a § 1983 claim
based on an official policy, and all other claims remain dismissed for the reasons
stated in the Court’s December 14, 2012 Memorandum and Order.
A motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil
Procedure is viewed with disfavor and is rarely granted. Turner v. Pleasant, 663 F.3d
770, 775 (5th Cir. 2011) (citing Harrington v. State Farm Fire & Cas. Co., 563 F.3d
141, 147 (5th Cir. 2009)). The complaint must be liberally construed in favor of the
plaintiff, and all facts pleaded in the complaint must be taken as true. Harrington, 563
F.3d at 147. The complaint must, however, contain sufficient factual allegations, as
opposed to legal conclusions, to state a claim for relief that is “plausible on its face.”
See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Patrick v. Wal-Mart, Inc., 681 F.3d
614, 617 (5th Cir. 2012). When there are well-pleaded factual allegations, a court
should presume they are true, even if doubtful, and then determine whether they
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plausibly give rise to an entitlement to relief. Iqbal, 556 U.S. at 679. Additionally,
regardless of how well-pleaded the factual allegations may be, they must demonstrate
that the plaintiff is entitled to relief under a valid legal theory. See Neitzke v.
Williams, 490 U.S. 319, 327 (1989); McCormick v. Stalder, 105 F.3d 1059, 1061 (5th
Cir. 1997).
B.
Requirements for § 1983 Claim Against Municipality
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 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.
Official Policy. – Plaintiff in this case identified a policy adopted by the City
of Houston based on a blogger’s report of a memorandum from the HPD Chief’s
Command/Legal Services that precluded officers from having discussions with
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criminal defense attorneys regarding a pending criminal case “without first obtaining
express permission” from the prosecutor. See Exhibit C to First Amended Complaint.
At the pretrial conference on January 31, 2013, Plaintiff’s counsel represented to the
Court that this policy was the only policy at issue. Additionally, Plaintiff’s counsel
stated that the policy, “if in fact I’m able to prove it, that’s the only thing I can hang
my hat on.” See Transcript, Exh. A to City’s Motion, p. 25.
The uncontroverted evidence in the record establishes that this policy, issued
as HPD Circular No. 10-0701-138 on July 1, 2010, was no longer in effect at the time
Plaintiff was arrested in February 2011. Indeed, on August 18, 2010, HPD Circular
No. 10-0818-181 was issued to supersede the July 1, 2010 Circular, and to clarify that
“permission from the prosecutor is NOT required before speaking to a criminal
defense attorney about a pending case.” See HPD Circular No. 10-0818-181, Exh. B
to Motion to Dismiss (emphasis in original). Therefore, the policy on which Plaintiff
now attempts to base his § 1983 claim is an official HPD policy that police officers
may speak with defense counsel, but are not required to do so.
Cause of Constitutional Injury. – Plaintiff asserts a § 1983 claim based on
alleged violations of his rights under the Fourth, Sixth, and Eighth Amendment.5
5
Plaintiff in the Second Amended Complaint asserts a § 1983 claim based on alleged
violations of the Fourteenth Amendment, but in his Response he does not address the
City’s Motion to Dismiss this claim.
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Plaintiff fails to explain how the policy of allowing, but not requiring, police officers
to speak with defense counsel caused any of these alleged constitutional violations.
The Fourth Amendment claim appears to be that the City falsely accused
Plaintiff of a crime that he did not commit and prepared a false affidavit to support the
issuance of an arrest warrant. Plaintiff mentions a search, but states that he allowed
himself to be searched. See Second Amended Complaint, ¶ 60. Plaintiff complains
that Bard and HPD Officer Barnes interfered with his attempts to interview the
victim’s mother, but alleges that the interference occurred after his arrest. As a result,
Plaintiff has not alleged factual support for the conclusory allegation that the policy
regarding HPD officers’ contact with defense counsel caused him to be falsely
arrested.
Plaintiff asserts a § 1983 claim based on an alleged violation of his Sixth
Amendment right to confront witnesses and to have effective assistance of counsel.
The “right to confront witnesses” is a right to confront witnesses during trial. See
California v. Green, 399 U.S. 149, 157 (1970). Plaintiff in his Response argues that
defense counsel cannot “know which witnesses to use if he is not allowed to interview
them.” See Response, p. 5. Plaintiff does not explain, however, how an HPD policy
allowing, but not requiring, police officers to talk with defense counsel precludes
defense counsel from knowing which witnesses to use.
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The identity of the
investigating officer, even if he declines to speak with defense counsel, is known.
Indeed, it is undisputed that Plaintiff’s criminal defense counsel in this case knew the
identity of the HPD investigating officer.
Plaintiff’s § 1983 claim based on an alleged violation of the Eighth Amendment
involves the amount of bail imposed in Plaintiff’s criminal case. Plaintiff does not
explain how an HPD policy regarding officers’ communications with criminal defense
counsel could conceivably cause a judge to impose bail that is excessive and violates
the Eighth Amendment. Instead, in response to the City’s Motion to Dismiss this
claim, Plaintiff argues that “had the police done their job properly, Plaintiff would not
ever have been arrested.” See Response, p. 6.
Plaintiff has failed to allege factually that the HPD’s identified official policy
caused the alleged violations of his constitutional rights under the Fourth, Sixth, and
Eighth Amendments. The City is entitled to dismissal of Plaintiff’s § 1983 claim.6
VI.
REQUESTS FOR SANCTIONS
A.
42 U.S.C. § 1988
Bard seeks to recover attorneys’ fees pursuant to 42 U.S.C. § 1988. Section
1988 allows the Court, in its discretion, to award attorneys’ fees to the prevailing
party in a § 1983 action. See Funeral Consumers Alliance, Inc. v. Serv. Corp., Int’l,
6
Because Plaintiff has failed to state a claim for relief under § 1983 based on the
identified HPD policy, he is not entitled to injunctive relief regarding the policy.
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695 F.3d 330, 340 (5th Cir. 2012). Plaintiff in his Response did not address Bard’s
request for fees pursuant to § 1988. Nonetheless, the Court exercises its discretion in
this case against awarding Bard her attorneys’ fees.
Bard was represented by an Assistant District Attorney and, as a result, did not
incur attorneys’ fees in the traditional sense. Moreover, as is explained below, the
Court concludes that it is more appropriate in this case to require Plaintiff’s counsel
to obtain further education in the areas of federal civil rights law and federal civil
procedure.
B.
28 U.S.C. § 1927
The City seeks to recover attorneys’ fees pursuant to 28 U.S.C. § 1927, which
allows the Court to impose sanctions against an attorney who unreasonably and
vexatiously multiplies the proceedings in a case. Specifically, § 1927 provides:
Any attorney or other person admitted to conduct cases in any court of
the United States or any Territory thereof who so multiplies the
proceedings in any case unreasonably and vexatiously may be required
by the court to satisfy personally the excess costs, expenses, and
attorneys’ fees reasonably incurred because of such conduct.
28 U.S.C. § 1927. Sanctions pursuant to § 1927 “are not to be awarded lightly. They
require ‘evidence of bad faith, improper motive, or reckless disregard of the duty
owed to the court.’” Gonzalez v. Fresenius Med. Care N. Am., 689 F.3d 470, 479 (5th
Cir. 2012) (quoting Edwards v. Gen. Motors Corp., 153 F.3d 242, 246 (5th Cir.
1998)).
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Plaintiff’s response to the City’s Motion for attorneys’ fees pursuant to § 1927,
in its entirety, is as follows:
The terms used by the City are (1) bad faith, (2) improper notice,
(3) reckless disregard to the duty owed to the court. Other terms include
unreasonable and vexatious.
One can only wonder as to how many of these terms could be
applied, due to shoddy police work which is the product of the standing
policy, if the end result would have been the incarceration of Plaintiff for
something he did not even dream of doing.
Perhaps he needs some help to get restarted in his life, after all, he
did not have a record at all.
Response to Motion to Dismiss, p. 6.
The Court does not find that Plaintiff’s counsel acted in bad faith or with an
improper motive. Instead, as discussed below, the Court finds that Plaintiff’s attorney
has limited knowledge and experience in the areas of federal civil procedure and
federal civil rights law. Consequently, the Court in the exercise of its discretion
declines to impose the City’s attorneys’ fees on Plaintiff’s counsel as a sanction
pursuant to § 1927.
C.
Court’s Inherent Power
“Courts of justice are universally acknowledged to be vested, by their very
creation, with power to impose silence, respect, and decorum, in their presence, and
submission to their lawful mandates.” Chambers v. NASCO, Inc., 501 U.S. 32, 43
(1991). The Court’s inherent powers are “governed not by rule or statute but by the
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control necessarily vested in courts to manage their own affairs so as to achieve the
orderly and expeditious disposition of cases.” Id. (quoting Link v. Wabash R. Co., 370
U.S. 626, 630-631 (1962)); see also Citizens Bank & Trust Co. v. Case, 937 F.2d
1014, 1023 (5th Cir. 1991) (holding that Court’s inherent power to sanction is based
on the need to control court proceedings and to protect the exercise of judicial
authority in connection with those proceedings). “A primary aspect of [the Court’s]
discretion is the ability to fashion an appropriate sanction for conduct which abuses
the judicial process.” Chambers, 501 U.S. at 44-45.
In this case, the Court finds that sanctions are appropriate because Plaintiff’s
attorney repeatedly and willfully failed to comply with Court orders. The Court notes
also that throughout this lawsuit, Plaintiff’s counsel has displayed a serious lack of
understanding of the fundamental aspects of federal civil rights law, federal civil
procedure, and this Court’s published procedures. Plaintiff filed this lawsuit on
August 6, 2012, but did not have summons issued until October 24, 2012, after the
Court issued warnings pursuant to Rule 4(m) of the Federal Rules of Civil Procedure.
The Court dismissed Plaintiff’s claims against Defendant Bard, the City of Houston,
and “N.R. Barn.” See Memorandum and Order [Doc. # 12]. The Court permitted
Plaintiff to file an Amended Complaint against the City of Houston asserting only a
claim under § 1983 based on an official policy. See id., p. 10. The Court also
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permitted Plaintiff to file an Amended Complaint against the HPD officer
individually, asserting only a claim under § 1983. See id. at 12.
On January 14, 2013, the deadline for the amended complaint, Plaintiff filed a
First Amended Complaint [Doc. # 13] that again asserted the dismissed claims against
Bard and the dismissed claims against the City that were not based on § 1983.
Plaintiff continued to assert erroneously that Defendant “N.R. Barn . . has made her
appearance.” See First Amended Complaint, ¶ 6.
Plaintiff’s counsel failed to appear for a conference on January 28, 2013,
because he was having telephone issues.
At the rescheduled conference on
January 31, 2013, the Court noted that Plaintiff’s counsel’s statements, though his
secretary, indicated that counsel believed the Court preferred counsel to participate in
conferences by telephone. See Hearing Transcript, Exh. A to City’s Motion, p. 3. The
Court notified counsel that the opposite was true and that “it’s made quite clear” in the
Court’s published procedures. See id.
The Court then explained clearly to counsel the defects in the Original
Complaint and in the First Amended Complaint, which the Court struck. The Court
noted that counsel stated in the Original and First Amended Complaints that “N.R.
Barn” had made an appearance “which is not true and . . . there’s been no service on
her.” See id. at 6. The Court directed Plaintiff’s counsel to file a Second Amended
Complaint, and told counsel he was required to “buy this record” so that the Second
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Amended Complaint could comply with the Court’s instructions. See id. at pp. 7-8.
The Court admonished Plaintiff’s counsel that he “must comply with the requirements
. . .. You must. It is my final warning.” See id. at 10.
Counsel did not comply with the Court’s order to buy the record,7 and the
Second Amended Complaint failed to comply with the Court’s instructions given
during the January 31 conference. The Third Amended Complaint again stated falsely
that “Defendant N.R. Barn . . . has made her appearance.” See Third Amended
Complaint, ¶ 6. Plaintiff included claims against Bard other than a defamation claim,
and included dismissed claims against the City other than the § 1983 claim.
At the January 31 conference, the Court directed Plaintiff to respond to
Defendant’s dispositive motions by April 11, 2013. See Trans., p. 23. Plaintiff failed
to file a response to either Bard’s Motion for Summary Judgment or the City’s Motion
to Dismiss by the April 11 deadline. In the interests of justice, however, the Court
allowed Plaintiff an additional amount of time in which to respond to the pending
motions. See Order [Doc. # 25].
At the January 31 conference, the Court discussed with Plaintiff’s counsel the
conflict that would arise should he become a witness in the case. See Trans., pp. 2122. Counsel assured the Court that any affidavits would be provided by his
7
Counsel purchased neither a copy of the transcript nor an audio recording of the
hearing.
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investigator, and that he understood he could be required to have a separate attorney
represent Plaintiff if he (Plaintiff’s current attorney) became a witness. See id. at 22.
In support of his Response to the City’s Motion to Dismiss, however, Plaintiff’s
counsel submitted his own affidavit.
In the affidavit, counsel describes his
conversations with the victim’s father and the father’s attorney. See Affidavit of Juan
Angel Guerra, Exh. to Response [Doc. # 26].
The conduct of Plaintiff’s counsel throughout this litigation has been
unacceptable and sanctionable under the Court’s inherent powers.
He failed
repeatedly to comply with the Court’s orders, and made false statements in pleadings.
The Court believes, however, that counsel’s misconduct was not based on malice but,
instead, was the result of his lack of familiarity with federal civil procedure and with
substantive federal civil rights law. As a result, rather than impose monetary sanctions
on Plaintiff’s attorney, the Court requires counsel, as a remedial and prophylactic
measure more than a sanction, to complete seven (7) hours of Continuing Legal
Education (“CLE”) in federal civil procedure and seven (7) hours of CLE in federal
civil rights law. See, e.g., Willhite v. Collins, 459 F.3d 866, 870 (8th Cir. 2006)
(suggesting CLE as an appropriate sanction); In re Vialet, 460 F. App’x 30, 32-33 (2d
Cir. Feb. 7, 2012); In re Hsu, 451 F. App’x 37, 39 (2d Cir. Dec. 19, 2011) (citing In
re Zhang, 376 F. App’x 104, 108-09 (2d Cir. May 10, 2010); Edmonds v. Seavey, 379
F. App’x 62, 65 (2d Cir. May 27, 2010); In re Thomas, 250 F.3d 744, 2001 WL
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274750, *1 (5th Cir. Feb. 22, 2001); Bullard v. Chrysler Corp., 925 F. Supp. 1180,
1191 (E.D. Tex. 1996). These hours are in addition to the CLE required of all active
attorneys, and may not be taken through on-line courses. Plaintiff must present
evidence by December 31, 2013, that he has complied with this requirement. Failure
to comply may result in the rescission of counsel’s admission to practice in this
district.
V.
CONCLUSION AND ORDER
Based on the foregoing, Plaintiff’s defamation claim against Defendant Bard
based on statements in February 2011 is time-barred, and Plaintiff has failed to present
evidence that Bard made any other statements.
Plaintiff in his Second Amended Complaint has failed to allege a factual basis
for his § 1983 claims against the City of Houston. Accordingly, it is hereby
ORDERED that Defendant Lauren Bard’s Motion for Summary Judgment
[Doc. # 23] 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. # 24]
is GRANTED and the claims against it are DISMISSED WITH PREJUDICE. It
is further
ORDERED that by December 31, 2013, Attorney Juan Angel Guerra shall
present evidence that he has completed seven (7) hours of CLE in the area of federal
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civil rights law, and seven (7) hours of CLE in the area of federal civil procedure.
These CLE hours are in addition to the CLE required of all active attorneys, and may
not be taken through on-line CLE courses.
The Court will issue a separate final judgment.
SIGNED at Houston, Texas, this 31st day of May, 2013.
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