Escamilla v. City of Houston, et al
Filing
12
MEMORANDUM AND ORDER GRANTING 7 Defendants Motion to Dismiss 1 Complaint under Rule 12(b)(1) and (6). Plaintiff Escamilla's state law negligence claims against Defendant City of Houston and claims for punitive damages are DISMISSED with prejudice for lack of subject matter jurisdiction. Plaintiff's 42 USC 1983 claims against Defendant Charles A. McClelland, Jr., sued in his official capacity, are DISMISSED with prejudice for failure to state a claim upon which relief can b e granted. It is further ORDERED that Plaintiff's claims against Defendants Christopher Thompson and B.M. Bookman are DISMISSED without prejudice for want of prosecution. Plaintiff's request for leave to replead is GRANTED and Plaintiff within 14 days after the date of this Order may file an Amended Complaint against Chief McClelland consistent with Rule 11(b) of FRCP. (Signed by Judge Ewing Werlein, Jr) Parties notified. (marflores, 4)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
JOSE ESCAMILLA,
Plaintiff,
v.
B.M. BOOKMAN, Individually
and in his Official Capacity,
CHRISTOPHER THOMPSON,
Individually and in his
Official Capacity, CHARLES
A. MCCLELLAND, Jr., in his
Official Capacity, and
CITY OF HOUSTON,
Defendants.
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CIVIL ACTION NO. H-14-2528
MEMORANDUM AND ORDER
Pending is Defendants City of Houston and Chief of Police
Charles A. McClelland, Jr.’s, Rule 12(b)(1) and 12(b)(6) Partial
Motion to Dismiss Plaintiff’s Original Complaint (Document No. 7).
After carefully considering the motion, response, and applicable
law, the Court concludes as follows.
I. Background
This
case
arises
from
injuries
allegedly
sustained
by
Plaintiff Jose Escamilla (“Plaintiff”) at the hands of Houston
police officers when they “were forcing the Plaintiff into an
ambulance” that had responded to Plaintiff’s 911 emergency call.1
1
Document No. 1 ¶ 12 (Orig. Compl.).
Plaintiff
alleges
that
he
accidentally
took
medication
that
belonged to his roommate, Jason Nix (“Nix”), that was stored in a
bathroom medicine cabinet they shared.
mistake
and
informing
Nix,
emergency response team.2
they
decided
After discovering his
to
call
911
for
an
However, by the time Defendant Officers
Christopher Thompson (“Thompson”) and B. K. Bookman (“Bookman”)
arrived as part of the 911 response team, Plaintiff was feeling
fine and “believed that he did not need any immediate medical help
anymore.”3
Plaintiff further alleges that when the ambulance
arrived, he and his roommate gave information about the situation,
but they explained that he no longer needed immediate medical
attention.4
Nevertheless, the Officers ordered Plaintiff to get
into the ambulance and approached Plaintiff, who raised his hand up
and reiterated that he was refusing treatment.5
Plaintiff alleges
that Officer Thompson then approached Plaintiff, who was backing
away from the ambulance and the Officers, and Officer Thompson
grabbed Plaintiff’s raised hands, raised him up, and slammed him to
the ground.6
Officer Thompson then pinned Plaintiff down and
handcuffed him, even though Plaintiff alleges that he put up no
2
Id. ¶¶ 12-13.
3
Id. ¶¶ 13-14.
4
Id. ¶ 14.
5
Id. ¶ 16.
6
Id. ¶¶ 16-17.
2
resistence and was crying in pain, asking Officer Thompson to
stop.7
Plaintiff was then lifted from the ground and transported
to the hospital, where Plaintiff alleges the Officers lied to the
hospital staff, telling them that Plaintiff fell from standing.8
Based on the foregoing allegations, Plaintiff alleges, among other
claims, official capacity claims against Defendant Houston Police
Chief
Charles
A.
McClelland,
Jr.
(“Chief
McClelland”),
and
negligence claims under the Texas Tort Claims Act (“TTCA”) against
the City of Houston (“the City”).9
Chief McClelland moves to
dismiss the official capacity claims against him for failure to
state a claim, and the City moves for dismissal of Plaintiff’s
negligence claims, arguing that Plaintiff’s negligence claims are
actually intentional tort claims, from which the City is immune.10
II. Rule 12(b)(1) Motion
A.
Negligence Claim Against the City of Houston
Plaintiff alleges under the TTCA that the City is liable for
Plaintiff’s injuries as his injuries were the “direct and proximate
7
Id. ¶ 18.
8
Id. ¶¶ 19-21.
9
Id. ¶¶ 31-67.
10
Document No. 7.
3
result of the negligence of the officers.”11
Plaintiff further
alleges that the City “is liable for injuries [Plaintiff] suffered
. . . proximately caused by a City employee’s commission of a
wrongful act in the course and scope of his employment through the
use or misuse of tangible personal property; namely, Defendant
officers service weapon required by his employer, the City of
Houston.”12
The City, claiming governmental immunity, moves under
Rule 12(b)(1) to dismiss these claims.13
Because governmental immunity deprives the court of subject
matter jurisdiction, “[a] Rule 12(b)(1) motion is appropriate when
dismissal is sought based on governmental immunity.”
Mariscal v.
Ochoa, CIV. A L-09-91, 2010 WL 466710, at *1 & n.3 (S.D. Tex.
Feb. 9, 2010) (Kazen, J.); see also Finna Fail, LP v. Moore, CIV.A.
H-10-2045, 2010 WL 5437272, at *4 (S.D. Tex. Dec. 27, 2010) (Hoyt,
J.) (“The Court does not have subject matter jurisdiction over this
dispute
because
the
defendants
have
governmental
immunity.”)
(granting Rule 12(b)(1) motion to dismiss).
“Under
the
common-law
doctrine
of
sovereign
immunity,
a
municipality is immune from tort liability for its own acts or the
acts
of
its
immunity.”
agents
unless
the
Texas
Tort
Claims
Act
waives
City of Amarillo v. Martin, 971 S.W.2d 426, 427 (Tex.
11
Document No. 1 ¶¶ 60, 62.
12
Id. ¶ 62.
13
Document No. 7 at 5-8.
4
1998).
Section 101.057 of the Texas Civil Practices and Remedies
Code provides that any limited waiver of sovereign immunity does
not apply where the claim arises out of an intentional tort.
Gillum v. City of Kerrville, 3 F.3d 117, 123 (5th Cir. 1993) (“This
provision
shields
municipalities
from
suits
arising
out
of
intentional torts committed by governmental employees.”); TEX. CIV.
PRAC. & REM. CODE ANN. § 101.057 (“This chapter does not apply to a
claim . . . arising out of . . . any other intentional tort”).
Plaintiff
argues
that
“[t]he
officers
were
negligent
in
carrying out their duty when they used excessive force in carrying
out that duty.”14
The gravamen of Plaintiff’s Original Complaint
is that Officers Bookman and Thompson intentionally or recklessly
used excessive force in not respecting his refusal of medical
treatment.
Specifically, Plaintiff alleges that
Officer Christopher Thompson forcefully approached the
Plaintiff, got hold of Plaintiff’s hands, raised the
Plaintiff up in the air and slammed the Plaintiff into
the ground.
The officer also pinned the Plaintiff down, rolled the
Plaintiff around and put his whole body on top of the
Plaintiff in the pelvis area as he handcuffed the
Plaintiff even though Plaintiff did not put up any form
of resistance.
The plaintiff was crying in pain and
asking the officer to stop the brutalization but the
officer failed to heed to Plaintiff’s cry.
. . .
14
Document No. 10 at 8.
5
All of the above acts were done by the Defendants
intentionally,
knowingly,
willfully,
wantonly,
maliciously
and/or
recklessly
in
disregard
for
15
Mr. Escamilla’s federally protected right . . .
These are not allegations of “negligence.”
Officer Thompson’s
actions, which Plaintiff alleges constitute excessive force, are
based on intentional actions.
“Claims of excessive force in the
context of a lawful arrest arise out of a battery rather than
negligence, whether the excessive force was intended or not.” City
of Watauga v. Gordon, 434 S.W.3d 586, 593 (Tex. 2014).
According
to the facts alleged by Plaintiff, the Officers intended their
actions and even ignored Plaintiff’s cries of pain and requests for
the Officers to stop.
0958-D,
2015
WL
See Pinedo v. City of Dallas, No. 3:14-CV-
221085,
at
*10
(N.D.
Tex.
Jan.
15,
2015)
(Fitzwater, J.) (“Even if it is assumed that Officers Robinson and
Meltabarger did not intend the extent of the harm they caused
Junior, they did intend the unwanted touching--the use of a firearm
as well as a Taser.”).
The TTCA’s limited waiver of sovereign
immunity does not extend to such intentional conduct of a tortious
nature as pled by Plaintiff, and the City of Houston’s governmental
immunity therefore bars Plaintiff’s putative “negligence” action
against the City. Plaintiff’s “negligence” claims against the City
are dismissed for lack of subject matter jurisdiction.
15
Document No.1 ¶¶ 17-18, 22.
6
B.
Punitive Damages
In his assault claim, Plaintiff alleges that “Defendants are
liable for compensatory and exemplary damages arising from their
negligence and gross negligence.”
To the extent that Plaintiff
seeks exemplary damages from the City, this claim also is dismissed
for lack of jurisdiction based on the City’s governmental immunity.
TEX. CIV. PRAC. & REM. CODE ANN. § 101.024 (“This chapter does not
authorize exemplary damages.”).
III. Rule 12(b)(6) Motion for Dismissal of Chief McClelland
In the caption of his suit, Plaintiff names Chief McClelland
as a Defendant in his “official capacity,” along with the City of
Houston.
A suit against the Chief of Police in his official
capacity is merely another way of pleading a suit against the City
of Houston.
See Turner v. Houma Mun. Fire & Police Civil Serv.
Bd., 229 F.3d 478, 483 (5th Cir. 2000).
The official capacity
claims arising under Section 1983 against Chief McClelland are
tantamount to Section 1983 claims against the City of Houston, and
are therefore dismissed as to Chief McClelland for failure to state
a claim upon which relief can be granted against Chief McClelland.
Chief McClelland will be dismissed as a Defendant.
7
IV. Dismissal of Officers Thompson and Bookman
By Order Signed January 12, 2015, the Court ordered Plaintiff
to show cause why this case should not be dismissed for want of
prosecution under Federal Rule of Civil Procedure 4(m).16 Plaintiff
subsequently served the City and Chief McClelland but still, more
than a year after Plaintiff filed this suit, Plaintiff has never
served Officers Bookman and Thompson.
Therefore, Plaintiff’s
claims against Officers Bookman and Thompson are dismissed without
prejudice for want of prosecution.
See FED. R. CIV. P. 4(m).
V. Leave to Replead
Plaintiff requests that he be allowed to replead any part of
his complaint that is insufficiently plead.17
Leave to amend a
complaint shall be “freely given when justice so requires.”
R. CIV. P. 15(a)(2); Foman v. Davis, 83 S. Ct. 227, 230 (1962).
FED.
In
light of the above analysis, it seems doubtful that a meritorious
claim can be pled against Chief McClelland but, nonetheless,
Plaintiff is granted leave within 14 days after the date of this
Order to file an Amended Complaint against Chief McClelland if he
can do so consistent with the requirements of Rule 11(b) of the
Federal Rules of Civil Procedure.
16
Document No. 3.
17
Document No. 10 at 9.
8
VI. Order
For the foregoing reasons, it is
ORDERED that Defendants City of Houston and Chief of Police
Charles A. McClelland, Jr.’s, Rule 12(b)(1) and 12(b)(6) Partial
Motion to Dismiss Plaintiff’s Original Complaint (Document No. 7)
is GRANTED. Plaintiff Jose Escamilla’s state law negligence claims
against Defendant City of Houston and claims for punitive damages
are
DISMISSED
with
prejudice
for
lack
of
subject
matter
jurisdiction under the Texas Tort Claims Act and by reason of the
City’s governmental immunity, and Plaintiff’s 42 U.S.C. § 1983
claims against Defendant Charles A. McClelland, Jr., sued in his
official capacity, are DISMISSED with prejudice for failure to
state a claim upon which relief can be granted against Chief
McClelland.
It is further
ORDERED that Plaintiff’s claims against Defendants Christopher
Thompson and B.M. Bookman are DISMISSED without prejudice for want
of prosecution.
It is further
ORDERED that Plaintiff’s request for leave to replead is
GRANTED, and Plaintiff within 14 days after the date of this Order
may file an Amended Complaint against Chief McClelland if Plaintiff
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can do so consistent with Rule 11(b) of the Federal Rules of Civil
Procedure.
The Clerk will enter this Order and provide a correct copy to
all parties.
SIGNED at Houston, Texas, on this 2nd day of October, 2015.
____________________________________
EWING WERLEIN, JR.
UNITED STATES DISTRICT JUDGE
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