Carter et al v. Diamond URS Huntsville, LLC et al
Filing
28
MEMORANDUM AND ORDER granting in part 3 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM ; denying 5 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM , (Signed by Judge Melinda Harmon) Parties notified.(arrivera, 4)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
MELISSA CARTER and CHRIS SMITH,§
§
Plaintiffs,
§
VS.
§
§
DIAMOND URS HUNTSVILLE, LLC,
§
d/b/a THE CONNECTION AT
§
HUNTSVILLE, ASSET CAMPUS
§
HOUSING, INC.,THE CITY OF
§
HUNTSVILLE, TEXAS, OFFICER
§
STACEY SMITH-GALLAR, and
§
OFFICER CHRISTOPHER MYERS,
§
§
Defendants.
§
Civ. A. H-14-2776
OPINION AND ORDER
Pending before the Court in the above referenced cause,
removed from state court on federal question jurisdiction and
seeking damages for two “startlingly similar”1 unconstitutional
arrests and detentions without probable cause and use of excessive
force, in violation of
42 U.S.C. § 1983, the Fourth and Fourteenth
Amendments of the United States Constitution, Texas common law
torts (false arrest, assault and battery, malicious prosecution,
false imprisonment, negligence, and conspiracy), and the Texas
Constitution, are (1)
Defendants the City of Huntsville, Texas
(“the City”), Stacey Smith, and Christopher Myers’ (“Myers’”)
motion to dismiss Plaintiffs Melissa Carter (“Carter”) and Chris
Smith’s
claims
under
Federal
Rule of Civil Procedure
12(b)(6)(instrument #3), and (2) Defendants Diamond URS Huntsville,
LLC d/b/a The Connection at Huntsville (“The Connection”) and Asset
1
Plaintiffs’ First Original Petition, #1-1, Ex. A at p. 1.
-1-
Campus Housing, Inc.’s (“ACH’s”)
motion to dismiss pursuant to
Rule 12(b)(6) (#5).
I.
Allegations of Plaintiffs’ First Original Petition (#1-1)
At the relevant time, Defendants Stacy Smith and Myers were
officers employed by the City’s Police Department.
Stacey Smith
was also employed by The Connection as a resident security officer.
Furthermore Stacy Smith was the estranged wife of Plaintiff Chris
Smith, and they were in the midst of an acrimonious divorce.
Defendants
allegedly
constitutional
rights
conspired
by
to
detaining,
violate
assaulting
Plaintiffs’
and
battering,
falsely arresting, and maliciously prosecuting Carter and Chris
Smith.
Purportedly Myers “had a history and pattern of abusing his
office and power, particularly acting in concert with Defendant
Stacey
Smith,”
and
Stacy
Smith
allegedly
“had
collaborating with Myers in abusing police power.”
a history of
#1-1 at pp. 3
and 7.
The Original Petition first addresses the arrest of Carter.
On August 15, 2012 Carter was asleep in her apartment at The
Connection when loud banging on her front door awakened her.
Through a peep hole she saw a uniformed Huntsville Police officer,
who turned out to be Myers.
When she opened the door, Myers told
her that there had been a complaint about a man running into her
apartment and that there was a smell of marijuana coming from
there.
Carter told him there was no man or marijuana in her
apartment and that he was welcome to look.
Myers entered and
ordered her to stand outside, where a female officer, subsequently
-2-
identified as Stacey Smith, was waiting.
Carter insisted she
wanted to stay in her house while he looked around, but Myers
allegedly became incensed, ordered her out, and physically attacked
her, pulling her arms behind her back, bending her over a bar, and
laying his full body weight against her,
causing her extreme pain.
Myers accused her of resisting arrest, cuffed her hands so tightly
that they caused excruciating pain, pulled her to her feet, led her
out to her front porch, and shoved her to the ground.
observed these actions, but did and said nothing.
Stacey Smith
Other officers
arrived with a drug dog, which sat down outside Carter’s closed
apartment door; one officer stated that the dog made a “hit.”
One
officer led Carter through her apartment while she was handcuffed,
humiliated, and crying in extreme pain.
The officer then turned
her over to Myers, who transported her to the Walker County jail
without ever telling her why she had been arrested.
After spending
the night and the next day there, she was informed that Myers and
Stacey Smith had charged her with Interference with Public Duties.
The charges were subsequently dismissed.
Although Carter filed a
complaint, it was ignored after Myers was indicted for Felony
Official Oppression by a Grand Jury for a previous, similar attack.
Myers later entered into a plea agreement and promised never to
work in law enforcement again.
Stacey Smith is still employed at
the Huntsville Police Department.
The petition further alleges that Chris Smith’s vehicle was
hit by a tractor trailer rig at approximately 11:25 p.m. on August
20, 2012.
Officers responded and ticketed the driver of the rig
-3-
for lack of insurance and of a trailer tag.
Learning that Stacy
Smith’s estranged husband had been hit in a traffic accident, Myers
decided to use the event in a conspiracy with her against Chris
Smith.
Even though Chris Smith had been fully interviewed, Myers
drove up to the scene of the accident and ordered Chris Smith to
step on a line as he was exiting his vehicle.
Myers then accosted
Chris Smith, insisted Smith was drunk, and ordered him to submit to
a test.
Smith passed the test, but Myers then drew and pointed his
fire arm at Smith, arrested him, handcuffed him, and took him into
custody, charging him with Driving Under the Influence.
spent the night in jail.
Smith
These charges were also later dismissed.
Carter and Chris Smith allege that Myers and Stacey Smith used
their authority as police officers without probable cause to abuse,
harass, detain, and arrest them, to physically assault Carter with
excessive force, in accordance with the City’s alleged practice of
arresting individuals without probable cause when they fail to do
what the officers unconstitutionally demand.
Carter sues for false
arrest, assault and battery, malicious prosecution and false
imprisonment against all defendants; Chris Smith sues for assault
and battery, false imprisonment, and malicious prosecution against
Myers and conspiracy against Myers and Stacey Smith.
They charge
the City with a “systemic practice and failure to train” and allege
that the City knew of the violent manner in which Myers treated
citizens of Harris County and that he used excessive force, as
evidenced by his subsequent prosecution and plea agreement to never
against serve as a law enforcement officer.
-4-
They further allege
that Defendants, acting in concert, intended to commit the torts to
harm Carter and Chris Smith and caused Plaintiffs emotional and
physical injuries.
Carter and Chris Smith charge The Connection and ACH, through
their agent Stacey Smith, with instigating and effecting the
assault and battery, unlawful arrest and detention, and malicious
prosecution of Carter by misrepresenting material information to
the
police
about
Carter
and
soliciting
their
and
the
City’s
participation.
Finally, Plaintiffs assert that Defendants had a duty to
protect Carter from injury, failed to perform that duty, and their
failure caused her emotional and physical injury.
II.
Standard of Review
Federal Rule of Civil Procedure 8(a)(2) provides, “A pleading
that states a claim for relief must contain . . . a short and plain
statement of the claim showing that the pleader is entitled to
relief.”
pursuant
When a district court reviews a motion to dismiss
to
Fed.
R.
Civ.
P.
12(b)(6),
it
must
construe
the
complaint in favor of the plaintiff and take all well-pleaded facts
as true. Randall D. Wolcott, MD, PA v. Sebelius, 635 F.3d 757, 763
(5th Cir. 2011), citing Gonzalez v. Kay, 577 F.3d 600, 603 (5th Cir.
2009).
The plaintiff’s legal conclusions are not entitled to the
same assumption.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)(“The
tenet that a court must accept as true all of the allegations
contained in a complaint is inapplicable to legal conclusions.”),
-5-
citing Bell Atlantic Corp. v. Twombly, 556 U.S. 662, 678 (2007);
Hinojosa v. U.S. Bureau of Prisons, 506 Fed. Appx. 280, 283 (5th
Cir. Jan. 7, 2012).
“While a complaint attacked by a Rule 12(b)(6) motion to
dismiss does not need detailed factual allegations, . . . a
plaintiff’s
obligation
‘entitle[ment]
to
to
relief’
provide
the
‘grounds’
requires
more
than
of
his
labels
and
conclusions, and a formulaic recitation of the elements of a cause
of action will not do . . . .”
S.
Ct.
1955,
1964-65
Bell Atlantic Corp. v. Twombly, 127
(2007)(citations
omitted).
“Factual
allegations must be enough to raise a right to relief above the
speculative level.”
Federal
Practice
Id. at 1965, citing 5 C. Wright & A. Miller,
and
Procedure
§
1216,
pp.
235-236
(3d
ed.
2004)(“[T]he pleading must contain something more . . . than . . .
a statement of facts that merely creates a suspicion [of] a legally
cognizable right of action”). “Twombly jettisoned the minimum
notice pleading requirement of Conley v. Gibson, 355 U.S. 41 . . .
(1957)[“a complaint should not be dismissed for failure to state a
claim unless it appears beyond doubt that the plaintiff can prove
no set of facts in support of his claim which would entitle him to
relief”], and instead required that a complaint allege enough facts
to state a claim that is plausible on its face.”
St. Germain v.
Howard,556 F.3d 261, 263 n.2 (5th Cir. 2009), citing In re Katrina
Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007)(“To survive
-6-
a Rule 12(b)(6) motion to dismiss, the plaintiff must plead ‘enough
facts to state a claim to relief that is plausible on its face.’”),
citing Twombly, 127 S. Ct. at 1974).
“‘A claim has facial
plausibility when the pleaded factual content allows the court to
draw the reasonable inference that the defendant is liable for the
misconduct alleged.’”
Montoya v. FedEx Ground Package System,
Inc., 614 F.3d 145, 148 (5th Cir. 2010), quoting Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009).
to
a
“probability
The plausibility standard is not akin
requirement,”
but
asks
for
more
“possibility that a defendant has acted unlawfully.”
U.S. at 556.
than
a
Twombly, 550
Dismissal is appropriate when the plaintiff fails to
allege “‘enough facts to state a claim to relief that is plausible
on its face’” and therefore fails to “‘raise a right to relief
above the speculative level.’”
Montoya, 614 F.3d at 148, quoting
Twombly, 550 U.S. at 555, 570.
In Ashcroft v. Iqbal, 556 U.S. at 679, the Supreme Court
stated that “only a complaint that states a plausible claim for
relief survives a motion to dismiss,” a determination involving “a
context-specific task that requires the reviewing court to draw on
its judicial experience and common sense.”
“[T]hreadbare recitals
of the elements of a cause of action, supported by mere conclusory
statements do not suffice” under Rule 12(b).
1949.
The
plaintiff
must
plead
specific
conclusory allegations, to avoid dismissal.
-7-
Iqbal, 129 S. Ct. at
facts,
not
merely
Collins v. Morgan
Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000). “Dismissal
is proper if the complaint lacks an allegation regarding a required
element necessary to obtain relief . . . .“
Rios v. City of Del
Rio, Texas, 444 F.3d 417, 421 (5th Cir. 2006), cert. denied, 549
U.S. 825 (2006).
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 under Rule 15(a) before dismissing the action with
prejudice.
Great Plains Trust Co v. Morgan Stanley Dean Witter &
Co., 313 F.3d 305, 329 (5th Cir. 2002)(“District courts often afford
plaintiffs at least one opportunity to cure pleading deficiencies
before dismissing a case, unless it is clear that the defects are
incurable
or
the
plaintiffs
unwilling
or
unable
to
advise
amend
in
the
a
court
manner
that
that
they
will
are
avoid
dismissal.”); United States ex rel. Adrian v. Regents of the Univ.
of Cal., 363 F.3d 398, 403 (5th Cir. 2004)(“Leave to amend should
be freely given, and outright refusal to grant leave to amend
without a justification . . . is considered an abuse of discretion.
[citations omitted]”).
The court should deny leave to amend if it
determines that “the proposed change clearly is frivolous or
advances a claim or defense that is legally insufficient on its
face . . . .”
6 Charles A. Wright, Arthur R. Miller & Mary Kay
Kane, Federal Practice and Proc. § 1487 (2d ed. 1990).
III. Motions to Dismiss
-8-
A.
Defendants’ the City, Smith and Myers’ Motion to Dismiss (#3)
Defendants insist that Plaintiffs fail to state a claim to
relief that is plausible.
Because it is clear to the Court from Plaintiffs’ response to
this
motion
that
they
are
not
familiar
with
the
pleading
requirements for section 1983 actions and for particular common law
causes of action
in federal court, and because their Texas state
court pleading requirements are different from those in federal
court,2 the Court sets out what is required of them to state a
2
While the petition here fails to meet the heightened
federal pleading requirements under Twombly and Iqbal, the
situation is complicated by the fact that
“Texas follows a ‘fair notice’ pleading standard, which
looks to whether the opposing party can ascertain from
the pleading the nature and basic issues of the
controversy and what testimony will be relevant at
trial.” Penley v. C.L. Westbrook, 146 S.W. 3d 220, 232
(Tex. App.-–Fort Worth 2004)(citing Horizon/CMS
Healthcare Corp. v. Auld, 34 S.W. 3d 887, 896 (Tex.
2000)), [rev’d on other grounds, 231 S.W. 3d 389 (Tex.
2007)]. “The test of the ‘fair notice’ pleading
requirement is whether an opposing attorney of
reasonable competence, with pleadings before him, can
ascertain [the] nature and basic issues of controversy
and testimony probably relevant.” City of Alamo v.
Casas, 960 S.W. 2d 240, 251 (Tex. App.--Corpus Christi
1997, pet. denied). “A petition is sufficient if it
gives fair and adequate notice of the facts upon which
the pleader basis his claim.” Auld, 34 S.W. 3d at 897.
A party’s pleadings are to be construed liberally in
favor of the pleader. Id.
KIW, Inc. v. Zurich American Ins. Co., No. Civ. A. H-05-3240,
2005 WL 3434977, *3 (S.D. Tex. Dec. 14, 2005). Thus
pleading
standards are far more lenient in Texas state court, as
summarized in 1 Tex. Prac. Guide Civil Pretrial § 5:39
(Database updated through September 2010):
-9-
claim, in response to Defendants’ contentions.
Those claims which
are not cognizable as a matter of law the Court dismisses with
prejudice; for others which may be curable, the Court grants leave
to Plaintiffs to file an amended complaint.
1.
Fourteenth Amendment Claims
First, as a matter of law Plaintiffs fail to state a claim
under the Fourteenth Amendment.
Pretrial deprivations of liberty,
excessive force, seizure of a free citizen, and arrest without
probable
cause
reasonableness
fall
under
standard,
Fourteenth Amendment.
and
the
are
Fourth
not
Amendment
cognizable
and
its
under
the
Albright v. Oliver, 510 U.S. 266, 274-75
(1994); Graham v. Connor, 490 U.S. 386, 395 (1989); Cuadra v.
Houston I.S.D., 626 F.3d 808, 814 (5th Cir. 2010).
The Court
A petition is sufficiently pleaded if one can
reasonably infer a cause of action or defense from what
is specifically stated. Boyles v. Kerr, 855 S.W. 2d
593, 601 (Tex. 1993); In re Credit Suisse First Boston
Mortgage Capital, LLC, 273 S.W. 3d 843, 850 (Tex. App.–Houston [14th Dist.] 2008, orig. proceeding)(petition
can be sufficient if a claim reasonably may be inferred
from what is specifically stated, and thus, a petition
is not necessarily defective even if the plaintiff has
not specifically alleged one of the elements of a
claim); In re P.D.D., 256 S.W. 3d 834, 939 (Tex. App.-Texarkana 2008, no pet.); San Saba Energy, L.P. v.
Crawford, 171 S.W. 3d 323 (Tex. App.--Houston [14th
Dist.] 2005, no pet.); Tull v. Tull,159 S.W. 3d 758,
762 (Tex. App.-Dallas 2005, no pet) . . . .Woolam v.
Tussing, 54 S.W. 3d 442. 448 (Tex. App.--Corpus Christi
2001, no pet.)(pleadings will generally be construed as
favorably as possible to the pleader; the court will
look to the pleader’s intendment and the pleading will
be upheld even if some element of a cause of action has
not been specifically alleged, and every fact will be
supplied that can reasonably be inferred from what is
specifically stated) . . . .
-10-
therefore
dismisses
Plaintiffs’
claims
under
the
Fourteenth
Amendment of the Federal Constitution with prejudice.
2.
Municipal Liability
Defendants assert that Plaintiffs fail to state a claim
against the City under § 1983 and fail to allege facts to support
their conclusory allegations against it.
The Court agrees and
advises Plaintiffs’ counsel that Plaintiffs’ pleadings fail to
satisfy the pleading standards for the following reasons.
Title 42 U.S.C. § 1983 does not grant substantive rights, but
provides a vehicle for a plaintiff to vindicate rights protected by
the United States Constitution and other federal laws. Albright v.
Oliver, 510 U.S. 266, 271 (1994).
It provides a cause of action
for individuals who have been “depriv[ed] of [their] rights,
privileges, or immunities secured by the Constitution and laws” of
the United States by “a person” acting under color of state law.
Id.
Municipalities
and
other
bodies
of
“persons” within the meaning of § 1983.
Social Services, 436 U.S. 658, 690 (1978).
local
government
are
Monell v. Department of
“A municipality cannot
be held liable solely because it employs a tortfeasor--or, in other
words, a municipality cannot be held liable under § 1983 on a
respondeat superior theory.”
Id. at 691.
v. Harris, 489 U.S. 378, 392 (1989).
See also City of Canton
The bar on vicarious
liability means that the municipality can only be liable where the
municipality itself causes the constitutional violation at issue.
-11-
Monell, 436 U.S. 658.
the
execution
of
A municipality may be liable under § 1983 if
one
of
its
customs
plaintiff of his constitutional rights.
or
policies
deprives
a
Monell, 436 U.S. at 690-
91.
To state a claim for municipal liability under § 1983, a
plaintiff must identify (a) a policy maker, (b) an official policy
[or
custom
or
widespread
practice],
and
(c)
a
violation
of
constitutional rights whose “moving force” is the policy or custom.
Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th Cir. 2001)(a
plaintiff
must
show
that
the
unconstitutional
conduct
is
attributable to the municipality through some official custom or
policy
that
is
the
“moving
force”
behind
the
constitutional
violation)(citing Monell, 436 U.S. at 694), cert. denied, 534 U.S.
820 (2001).
The Fifth Circuit has defined an official policy for
purposes of § 1983 as “‘[a] policy statement, ordinance, regulation
or decision that is officially adopted and promulgated by the
municipality’s law-making officials or by an official to whom the
lawmakers have delegated policy-making authority.’” Okon v. Harris
County Hospital District, 426 Fed. Appx. 312, 316 (5th Cir. May 23,
2011), quoting Bennett v. City of Slidell, 735 F.2d 861, 862 (5th
Cir. 1984)(en banc), cert. denied, 472 U.S. 1016 (1985).
When a
policymaker commits the act at issue, that act may establish the
policy if the policymaker must be “unconstrained by policies
imposed from a higher authority.”
-12-
Okon, 426 Fed. Appx. at 316,
citing Hampton Co. v. Nat’l Sur. LLC v. Tunica County, 543 F.2d
221, 227 (5th Cir. 2008).3
Alternatively, a policy may be “‘a
persistent widespread practice of city officials or employees,
which,
although
not
authorized
by
officially
adopted
and
promulgated policy, is so common and well settled as to constitute
a custom that fairly represents municipal policy.’”
Id., citing
id., and Zarnow v. City of Wichita Falls, 614 F.3d 161, 169 (5th
Cir. 2010)(“A pattern of conduct is necessary only when the
municipal actors are not policymakers”)[, cert. denied, 131 S. Ct.
3059 (2011)].
“A pattern requires similarity and specificity;
[p]rior indications cannot simply be for any and all ‘bad’ or
unwise acts, but rather must point to the specific violation in
question. . . . A pattern also requires ‘sufficiently numerous
prior incidents,’ as opposed to ‘isolated instances.’” Peterson v.
City of Fort Worth, Texas, 588 F.3d 838, 851 (5th Cir. 2009).
A plaintiff cannot conclusorily allege a policy or a custom
and its relationship to the underlying constitutional violation;
instead the plaintiff must plead specific facts.
Spiller v. City
of Texas City, Police Dep’t, 130 F.3d 162, 167 (5th Cir. 1997),
citing Fraire v. Arlington, 957 F.2d 1268, 1277 (5th Cir. 1992).
“Allegations of an isolated incident are not sufficient to
show the existence of a custom or policy.”
3
Fraire v. City of
In such a case the court must determine which official or
government body has final policymaking authority for the local
government unit regarding the action in dispute. Id.
-13-
Arlington, 957 F.2d 1268, 1278 (5th Cir. 1992); see also Rivera v.
Houston I.S.D., 349 F.3d 244, 247 (5th Cir. 2003)(“[I]solated
unconstitutional actions by municipal employees will almost never
trigger liability.”), citing Bd. of Cnty. Comm’rs v. Brown, 520 US.
397, 403 (1997).
“The governing body of the municipality or an
official to whom that body has delegated policy-making authority
must have actual or constructive knowledge of such a custom.”
Okon, 426 Fed. Appx. at 316, citing Bennett, 735 F.2d at 862.
“‘Actual knowledge may be shown by such means as discussions at
council
meetings
or
receipt
of
written
information,’”
while
“constructive knowledge ‘may be attributed to the governing body on
the ground that it would have known of the violations if it had
properly exercised its responsibilities, as, for example, where the
violations were so persistent and widespread that they were the
subject of prolonged public discussion or of a high degree of
publicity.’” Id., citing Bennett v. City of Slidell, 728 F.2d 762,
768 (5th Cir. 1984)(en banc), cert. denied, 472 U.S. 1016 (1985).
If policymakers do not have notice that a source of training is
deficient in a specific respect, they “can hardly be said to have
deliberately chosen a training program that will cause violations
of constitutional rights.”
Connick v. Thompson, 131 S. Ct. 1350,
1360 (2011).
There is a rare exception to the requirement that a
plaintiff show a custom or policy where a plaintiff’s injury is a
-14-
“patently obvious” or “highly predictable” result of inadequate
training, as when a municipality “arms its police force with
firearms and deploys the armed officers into the public to capture
fleeing felons without training the officers in the constitutional
limitation on the use of deadly force,” and the municipality’s
policy
makers
inadequate.
consciously
chose
Speck v. Wiginton,
a
training
program
Fed. Appx.
that
was
, 2013
WL
1195829, at *2 (5th Cir. Mar. 17, 2015), citing Oklahoma City v.
Tuttle, 471 U.S. 808, 823-24 (1985), and Connick v. Thompson, 131
S. Ct. 1350, 1361 (2011).
A “pattern of similar constitutional
violations by untrained employees is ‘ordinarily necessary’ to
demonstrate deliberate indifference for purposes of failure to
train.’”
Id., quoting Connick v. Thompson, 131 S. Ct. 1350, 1360
(2011).
The narrow exception to this rule requires “ the highly
predictable consequence of a failure to train would result in the
specific injury suffered, and that the failure to train represented
the moving force behind the constitutional violation.”
Valle v.
City of Houston, 613 F. 3d 536, 549 (5th Cir. 2010)(“[I]n the one
case in which we found a single incident sufficient to support
municipal liability, there was an abundance of evidence about the
proclivities of the particular officer involved in the use of
excessive force.,” and citing Brown v. Bryan County, OK, 219 F.3d
450, 462 (5th Cir. 2000)(“finding deliberate indifference based on
the police officer’s known ‘personal record of recklessness and
-15-
questionable judgment,’ inexperience, exuberance, and involvement
in
forcible
arrest
situations.”).4
“[S]howing
merely
that
additional training would have been helpful in making difficult
decisions does not establish municipal liability. ‘[P]rov[ing] that
an injury or accident could have been avoided if an [employee] had
had better or more training, sufficient to equip him to avoid the
particular injury-causing conduct’ will not suffice.”
Connick v.
Thompson, 131 S. Ct. 1350, 1363-64 (2011), citing Canton, 498 U.S.
at 391.
“[T]he lack of any similar violations indicates that a
violation could not be the ‘highly predictable consequence’ of a
failure to train.”
Id. at 550, quoting Thompson v. Connick, 578
F.3d 293, 299 (5th Cir. 2009), aff’d in part and rev’d in part, 578
F.3d 293(2009)(en banc), rev’d, 131 S. Ct. 1350 (2011), and Conner,
209 F.3d at 797 (“holding that if a failure to train was ‘so likely
to result in the violation of constitutional rights,’ the plaintiff
4
The panel continued, 613 F.3d at 549,
On the other hand, we have rejected claims of
deliberate indifference even where a municipal employer
knew of a particular officer’s proclivities for
violence or recklessness. See, e.g., [Davis, 219 F.3d
382-85 (finding no deliberate indifference even though
city was aware that officer fired weapon
inappropriately, had a propensity for violence, and had
received citizen complaints about the officer); Snyder
v. Trepagnier, 142 F.3d 791, 798 (1998)(rejecting claim
of deliberate indifference even though evidence showed
officer was extremely stressed, may have had quick
temper, and was aggressive). This court has been wary
of finding municipal liability on the basis of a single
incident to avoid running afoul of the Supreme Court’s
consistent rejection of respondeat superior liability.
-16-
‘would be able to identify other instances of harm arising from the
failure to train.’”).5
“Deliberate indifference” is a “stringent standard, requiring
proof that a municipal actor disregarded a known or obvious
consequence of his action,” for which “[a] showing of simple or
even
heightened
negligence
will
not
suffice”;
it
requires
a
plaintiff to show that “‘in the light of the duties assigned to
specific officers or employees the need for more or different
training is so obvious, and the inadequacy so likely to result in
the violation of constitutional rights, that the policymakers of
the
city
can
reasonably
indifferent to the need.’”
be
said
to
have
been
deliberately
Valle v. City of Houston, 613 F.3d 536,
547 (5th Cir. 2010)(quoting City of Canton, 489 U.S. at 390), cert.
denied, 131 S. Ct. 2094 (2011).
“Usually a plaintiff must show a
pattern of similar violations, and in the case of an excessive
force claim . . . the prior act must have involved injury to a
third party.”
Id.; Rodriguez v. Avita, 871 F.2d 552, 554-55 (5th
5
See, e.g., Snyder v. Trepagnier, 142 F.3d 791, 798-99 (5th
Cir. 1998)(“[W]e have held that proof of a single violent
incident ordinarily is insufficient to hold a municipality liable
for inadequate training. The plaintiff must demonstrate ‘at
least a pattern of similar incidents in which the citizens were
injured . . . to establish the official policy requisite to
municipal liability under section 1983.”)(citing Rodriguez v.
Avita, 871 F.2d 552, 554-55 (5th Cir. 1989)(“[S]even judges of
the Court agreed in general that a single shooting incident by a
police officer was insufficient as a matter of law to establish
the official policy requisite to municipal liability under §
1983.”), cert. granted in part, 525 U.S. 1098 (1999), cert.
dism’d, 526 U.S. 1083 (1999).
-17-
Cir. 1959).
To state a claim against a municipality under § 1983 that will
not be dismissed under Rule 12(b)(6), an individual plaintiff can
provide fair notice by “inter alia describ[ing] (1) past incidents
of misconduct by the defendant to others; (2) multiple harms that
occurred to the plaintiff himself; (3) the involvement of multiple
officials in the misconduct; or (4) the specific topic of the
challenged policy or training inadequacy. . . . Those types of
details, together with any elaboration possible, help to (1)
‘satisfy the requirement of providing not only ‘fair notice’ of the
nature
of
the
claim,
but
also
‘grounds’
on
which
the
claim
rests,’and (2) ‘permits the court to infer more than the mere
possibility of misconduct.’”
Flanagan v. City of Dallas, Texas,
No. 3:13-CV-4231-M-BK, 2014 WL 4747952, at *3 (N.D. Tex. Sept. 23,
2014), citing Thomas v. City of Galveston, 800 F. Supp. 2d 826,
843-44 (S.D. Tex. 2011); Twombly, 550 U.S. at 555 n.3; and Iqbal,
556 U.S. at 679.
For example in Flanagan, id. at *10, the district
court found adequately pleaded a claim of excessive force by the
Dallas Police Department (“DPD”) against the City of Dallas to
survive a Rule 12(b)(6) challenge:
Plaintiffs have . . . pleaded several facts from which
one could make a reasonable inference of a persistent,
widespread practice by DPD officers or otherwise using
excessive force rising to the level of a custom having
the force of official City policy.
In particular,
Plaintiffs alleged in their amended complaint that (1)
the policy of the DPD to shoot first and ask questions
later; (2) Councilman Caraway informed the media that
-18-
there were training issues within the DPD that had
resulted in the killing of an unarmed individual; (3)
Dallas is at the top of the list of police misconduct
statistics in the South along with several other Texas
cities; (4) Dallas is ranked number 11 in police
misconduct incidents; (5) the total number of officerinvolved shootings was 144; (6) 86 grand juries have been
convened to investigate police misconduct (although only
two indictments have been returned); (7) 60 unarmed
African-American men have been killed by DPD officers
over the past 13 years; (8) at least 12 other shootings
of unarmed individuals by DPD officers took place during
the year of Allen’s death (Plaintiffs describe the
derails of three of the shootings, all of which occurred
after the incident involving Allen [and pointing out
similarities to allegations regarding Allen’s shooting in
that the individuals involved were not provoking or
resisting the police when they were shot]); and (9) there
are 94 open DPD internal affairs investigation into
officer-involved shootings.
The district court further noted, id. at *11,
Plaintiffs allege that, on average, more than four
unarmed people have been killed by DPD officers each year
for the past dozen years and that there are nearly 100
open internal investigations into such shootings and have
been nearly as many grand jury proceedings. While it is
a close call, taking all of their allegations to be true,
Plaintiffs have pled sufficient facts, at the motion to
dismiss stage, from which one could make a reasonable
inference of a persistent, widespread practice by DPD
officers of using excessive force rising to the level of
a custom having the force of official City policy.
Id.6, citing Oporto v. City of El Paso, No. 10-CV-110-KC, 2010 WL
6
In Flanagan, 2014 WL 4747952 at *13, the district court
found the following allegations inter alia sufficient to plead
that the City of Dallas failed “to provide proper training in the
use of deadly force amounts to deliberate indifference to the
rights of a person with whom the police come into contact”:
(1) a witness stated that Allen was unarmed and
complying with Officer Staller’s instructions before
Officer Staller shot him repeatedly; (2) at least 12
other shootings of unarmed individuals by DPD officers
-19-
3503457, at *6 (W.D. Tex. 2010), and Rivera v. City of San Antonio,
No. SA-06-CA-235-XR, 2006 WL 3340908, at *12 (W.D. Tex. 2006).
“In limited circumstances, a local government’s decision not
to train certain employees about their legal duty to avoid violating
citizens’ rights may rise to the level of an official government
policy for purposes of § 1983.
A municipality’s culpability for a
deprivation of rights is at its most tenuous where a claim turns on
a failure to train.”
Connick v. Thompson, 131 S. Ct. 1350, 1359
(2011), citing Oklahoma City v. Tuttle, 471 U.S. 808, 822-23
(1985)(“[A] ‘policy of ‘inadequate training’‘ is ‘far more nebulous,
and a good deal further removed from the constitutional violation,
than was the policy in Monell).
police
officers,
the
To prevail on a failure to train
plaintiff
must
show
“(1)
that
the
municipality’s training procedures were inadequate, (2) that the
municipality was deliberately indifferent in adopting its training
policy, and (3) that the inadequate training policy directly caused
the violations in question.”
Zarnow, 614 F.3d at 170, citing World
Wide Street Preachers Fellowship v. Town of Columbia, 591 F.3d 747,
756 (5th Cir. 2009).
To impose liability on a municipality based on
took place during the year Allen died, and over 60
unarmed African-American men have been killed by DPD
officers since 2001; (3) although Officer Staller had
been the subject of several complaints, at least two of
which involved inappropriate use of force, he was still
permitted to carry a firearm; and (4) both Councilman
Caraway and Chief Brown acknowledged the need for
further DPD training.
-20-
inadequate training, the plaintiff must “allege with specificity how
a particular training program is defective.”
Roberts v. City of
Shreveport, 397 F.3d 287. 293 (5th Cir. 2005).
To prove deliberate
indifference in a failure to train case
under § 1983, a plaintiff
must show that the failure to train was equivalent to “a deliberate
or conscious choice to endanger constitutional rights.”
Trepagnier, 142 F.3d 791, 799 (5th Cir. 1998).7
Snyder v.
For the single-
instance exception to the requirement of a custom or pattern of
similar
violations,
“a
plaintiff
must
prove
that
the
highly
predictable consequence of a failure to train would result in the
specific injury suffered, and the failure to train represented the
moving force behind the constitutional violation.”
Sanders-Burns
v. City of Plano, 594 F.3d 366, 381 (5th Cir. 2010).
To show that a municipality’s failure to train was the “moving
force” that caused the constitutional injury requires “a heightened
standard of causation”: “the plaintiff must establish a ‘direct
7
In Flanagan, 2014 WL 4747952 at *12, the district court
found that Plaintiffs adequately pleaded deliberate indifference
in factual allegations to support their claim that the police
chief, as the City’s final policymaker, “adopted or maintained
the policy of police use of excessive force with deliberate
indifference to its known or obvious consequences” and “was at
fault for Allen’s death”: “(1) Officer Staller’s lack of
information regarding Allen’s description and the fact that he
was unarmed; (2) Officer Staller’s firing of ten bullets at
Allen, seven of which struck him, and then attempting to reload
his gun; (3) the shooting of 12 other unarmed individuals by DPD
members in 2013; (4) the deaths of over 60 unarmed AfricanAmerican men at the hands of DPD officer since 2001; and (5) the
94 open internal affairs investigations relating to officer
involved shootings.”
-21-
link’ between the municipal policy and the constitutional injury,”
i.e., a connection “more than a mere ‘but for’ coupling between
cause and effect”; “[t]he deficiency in training must be the actual
cause of the constitutional violation.”
Valle v. City of Houston,
613 F.3d 536, 546 (5th Cir. 2010), cert. denied, 131 S. Ct. 2094
(2011), citing City of Canton, 489 U.S. at 391-92; Brown v. Bryan
County, OK, 219 F.3d 450, 461 (5th Cir. 2000), cert. denied, 532
U.S. 1007 (2001); Board of County Com’rs of Bryan County, OK v.
Brown, 520 U.S. 397, 404 (1997); and Thompson v. Connick, 578 F.3d
293, 300 (5th Cir. 2009).
“A municipality may be liable for the failure of a policymaker
to take precautions to prevent harm, provided that the omission is
an intentional choice and not merely a negligent oversight.
Negligent training will not support a § 1983 claim a against a
municipality, nor is it sufficient to show that ‘injury or accident
could have been avoided if an officer had better or more training.’”
Boston v. Harris County, Texas, No. Civ. A. H-11-1566, 2014 WL
1275921, at *90 (S.D. Tex. Mar. 26, 2014), citing City of Canton,
489 U.S. at 390.
A “city’s ‘policy of inaction’ in light of notice
that its program will cause a constitutional violation ‘is the
functional equivalent of a decision by the city itself to violate
the Constitution.’”
Connick v. Thompson, 131 S. Ct. 1350, 1360
(2011, citing Canton, 489 U.S. at 395.
The real party in interest in a suit against a person in his
-22-
official capacity is the governmental entity and not the named
official. Hafer v. Melo, 502 U.S. 21, 25 (1991). See also Kentucky
v. Graham, 473 U.S. 159, 165-66 (1985)(“Official-capacity suits .
. . ‘generally represent only another way of pleading an action
against an entity of which the officer is an agent.’”), citing
Monell v. New York City Dept. of Social Services, 436 U.S. 658, 690
n.55 (1978).
Thus suit against individual Defendants Myers and
Stacey Smith in their official capacities is a suit against the City
and must be pleaded as such.
3.
Qualified Immunity
Myers and Stacey Smith assert they are entitled to qualified
immunity in their individual capacities, and that Plaintiffs have
failed to plead specific facts to overcome that qualified immunity.
Defendants argue that the allegations against them (i.e., that while
officers where investigating the smell of marijuana in Carter’s
apartment, Myers accused Carter of resisting arrest; Chris Smith
alleges Myers falsely arrested him for drunk driving, but makes no
allegations against Stacey Smith other than that she divorced him)
do not state a claim against Myers or overcome Stacey Smith’s
qualified immunity.
Qualified immunity, an affirmative defense to a suit under
42
U.S.C. § 1983, protects government officials in their personal
capacity, while performing discretionary functions, not only from
suit, but from “liability for civil damages insofar as their conduct
does not violate clearly established statutory or constitutional
-23-
rights of which a reasonable person would have known.”
Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982); Pearson v. Callahan, 555 U.S.
223,
, 129 S. Ct. 808, 815 (2009).
Thus the Court examines
whether the “officer’s conduct violated a constitutional right,” and
“whether the right was clearly established” at the time of the
conduct.
Saucier v. Katz, 533 U.S. 194, 201 (2001).
may be addressed first.
clearly
established
sufficiently
clear
Either prong
Pearson, 129 S. Ct. at 808.
when
[such]
“the
contours
that
a
of
reasonable
the
A right is
right
[are]
official
would
understand that what he is doing violated that right.”
Werneck v.
Garcia, 591 F.2d 386, 392 (5th Cir. 2009)(citations omitted).
See
also Freeman v. Gore, 483 F.3d 404, 411 (5th Cir. 2007)(the court
applies
an
objective
standard
“based
on
the
viewpoint
of
a
reasonable official in light of the information available to the
defendant and the law that was clearly established at the time of
defendant’s actions.”). To be clearly established, “‘[t]he contours
of the right must be sufficiently clear that a reasonable official
would understand what he is doing violates that right.’”
Kinney v.
Weaver, 367 F.3d 337, 349-50 (5th Cir. 2004), quoting Anderson v.
Creighton, 483 U.S. 635, 640 (1987)). “The ‘clearly established’
standard does not mean that official’s conduct is protected by
qualified
immunity
unless
‘the
previously been held unlawful.’”
very
action
in
question
has
Id. at 350, quoting Anderson, 483
U.S. at 640. “Where no controlling authority specifically prohibits
-24-
a defendant’s conduct, and when the federal circuit courts are split
on the issue, the law cannot be said to be clearly established.”
Morgan v. Swanson, 659 F.3d 359, 372 (5th Cir. 2011), cert. denied,
132 S. Ct. 2740 (2012). Officials who act reasonably but mistakenly
are
entitled
to
qualified
immunity;
the
defense
protects
all
government employees but “the plainly incompetent or those who
knowingly violate the law.”
Anderson, 483 U.S. at 641; Malley v.
Briggs, 475 U.S. 335, 341 (1986).
“[A] 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 federal
statute as alleged by the plaintiff.”
Thompson v. Upshur County,
Texas, 245 F.3d 447, 457 (5th Cir. 2001).
to
qualified
immunity
if
his
or
her
The officer is “entitled
conduct
was
objectively
reasonable in light of the legal rules that were clearly established
at the time of his or her actions,” even if the conduct violated the
plaintiff’s constitutional right.
McClendon v. City of Columbia,
305 F.3d 314, 323 (5th Cir. 2002)(en banc).
Although
qualified
immunity
is
an
affirmative
defense,
“plaintiff has the burden to negate the assertion of qualified
immunity once properly raised.”
214, 217 (5th Cir. 2009).
Collier v. Montgomery, 569 F.3d
To meet this burden the plaintiff must
allege facts showing that the defendants committed a constitutional
violation under the current law and that the defendants’ actions
-25-
were objectively unreasonable in light of the law that was clearly
established at the time of the actions complained of.
Atteberry v.
Nocona General Hosp., 430 F.3d 245, 253 (5th Cir. 2005).
In Elliott v. Perez, 751 F.2d 1472, 1473 (5th Cir. 1985), the
Fifth Circuit held that when defendant-official raises a qualified
immunity defense in his individual capacity, a heightened pleading
standard must be met by Plaintiff to show with factual detail and
particularity
why
the
defendant
qualified immunity defense.
1429-34
(5th
Cir.
1995)(en
official
cannot
maintain
the
In Schultea v. Wood, 47 F.3d 1427,
banc),
discussing
development
of
qualified immunity defense and pleading rules, the Fifth Circuit
further opined, “When a public official pleads the affirmative
defense of qualified immunity in his answer, the district court may,
on the official’s motion or its own, require the plaintiff to reply
to that defense in detail.
By definition, the reply must be
tailored to the assertion of qualified immunity and fairly engage
its allegations.
A defendant has an incentive to plead his defense
with some particularity because it has the practical effect of
requiring particularity in the reply.”
In Morgan v. Hubert, 335
Fed. Appx. 466, 472-73 (5th Cir. 2009), the Fifth Circuit reviewed
Schultea’s standard (requiring plaintiff to support a “claim with
sufficient precision and factual specificity to raise a genuine
issue as to the illegality of defendant’s contact at the time of the
alleged acts”).
The panel pointed to the reasoning in Schultea in
-26-
requiring
a
heightened
pleading
standard
in
the
face
of
a
defendant’s assertion of qualified immunity:
We did not ground any such requirement in Rule 9(b), but
nevertheless required a plaintiff to plead more than
conclusions. Specifically, we reasoned that “a plaintiff
cannot be allowed to rest on general characterizations,
but must speak to the factual particulars of the alleged
actions, at least when those facts are known to the
plaintiff and are not peculiarly within the knowledge of
defendants
[emphasis
added
by
Morgan
panel].”
“Heightened pleading requires allegations of fact
focusing specifically on the conduct of the individual
who caused the plaintiffs’ injury.” Reyes v. Sazan, 168
F.3d 158, 161 (5th Cir. 1999).
Morgan, 335 Fed. Appx. at 469-70, citing Schultea, 47 F.3d at 143234.
A denial of qualified immunity at the motion to dismiss stage,
to the extent that it turns on a matter of law, is an appealable
final decision under 28 U.S.C. § 1291 because qualified immunity is
immunity from suit and, necessarily, shields the official from the
burdens of discovery.
Ashcroft v. Iqbal, 129 S. Ct. at 1946.;
Porter v. Valdez, 424 Fed. App’x 382, 385 (5th Cir. 2011), citing
Hill v. City of Seven Points, No. 00-41436, 2002 WL 243261, *4 (5th
Cir. Jan. 17, 2002)(“Such appellate review is premised upon the
reality that, in some instances, if an order is not reviewed before
the issuance of a final judgment, the practicality of reviewing that
order is lost.”).
Thus in their amended complaint, Plaintiffs must address and
plead facts to rebut Defendants’ qualified immunity defense.
4.
Immunity Under Texas Law
-27-
a.
Governmental Immunity to Texas Common Law Claims
The
State
of
Texas8
has
sovereign
immunity
and
its
municipalities and political subdivisions have governmental immunity
from claims for damages except where the Legislature waived that
immunity in the Texas Tort Claims Act (“TTCA”).
Humphreys v. City
of Ganado, Texas, 467 Fed. Appx. 252, 256 (5th Cir. Mar. 26, 2012),
citing Tex. Civ. Prac. & Rem. Code § 101.021, and Reata Constr.
Corp. v. City of Dallas, 197 S.W. 3d 371, 374-76 (Tex. 2006).
The
Texas Legislature’s limited waiver of immunity is for tort claims
arising out of the use of publicly owned automobiles, for premises
defects, and for injuries arising out of conditions or use of
8
Neither a State nor its officials acting in their official
capacities are “persons” under § 1983. Hafer v. Melo, 502 U.S.
21, 22-23 (1991). This is true even if the § 1983 action is
brought in state court. Will v. Michigan Dep’t of State Police,
491 U.S. 58, 71 (1989). Furthermore in the absence of a waiver
by the State, the Eleventh Amendment of the United States
Constitution bars suits for damages in federal court by a citizen
of a state against his own state or against a state agency or
department. Pennhurst State School and Hospital v. Halderman,
465 U.S. 89, 100 (1984). It also bars suits against state
officials when “the state is the real, substantial party in
interest,” i.e., when a decision in the case would function
against the sovereign state, impacting the public treasury,
interfering with public administration, or compelling the state
to act or refrain from acting. Id. at 101; Ford Motor Company v.
Dep’t of Treasury of Indiana, 323 U.S. 459, 464 (1945), overruled
on other grounds, Lapides v. Bd. of Regents of Univ. System of
Georgia, 535 U.S. 613 (2002)(state’s own removal of a suit to
federal court constitutes a waiver of its Eleventh Amendment
immunity); Kentucky v. Graham, 473 U.S. 159, (1985)((“[A]
judgment against a public servant in his official capacity
imposes liability on the entity he represents . . . .”), quoting
Brandon v. Holt, 469 U.S. 464, 471 (1985).
-28-
property and premises defects.
101.021.
Tex. Civ. Prac. & Rem. Code §
It does not waive immunity for intentional torts, such as
assault and battery, malicious prosecution, false arrest. Tex. Civ.
Prac. & Rem. Code § 101.057 (expressly excludes waiver for a claim
“arising out of assault, battery, false imprisonment, or any other
intentional tort.”).
See, e.g., Muhammad v. Newell, 3-08-CV-1426-
BD, 2009 WL 2482142, at *3 (N.D. Tex. Aug. 12, 2009)(limited waiver
of TTCA “does not extend to claims ‘arising out of assault, battery,
false imprisonment, or any other intentional tort”); Chalmers, 2014
WL 1778946, at *4 (false imprisonment).
Defendants contend that because Carter and Chris Smith assert
only intentional state tort claims against the City and because
Plaintiffs fail to show that any injury they sustained was caused
by any condition or use of tangible property or publicly owned
automobiles, their tort claims for damages against the City and
against the Officers in their official capacities are barred.
The
Court agrees.
Furthermore, Defendants assert, “A rose is a rose and an
intentional
tort
is
an
intentional
tort so Plaintiffs cannot
circumvent the operative provisions of the Tort Claims Act by
seeking to mischaracterize an intentional tort as mere negligence.”
#3 at p. 10, citing Morgan v. City of Alvin, 175 S.W. 3d 408, 418-19
(Tex.
App.--Houston
[1st
Dist.]
2004,
no
pet.)(“[T]he
conduct
appellant complains of as negligence is the same conduct that forms
the basis of his assault claim . . . . Thus, appellant’s negligence
-29-
claim . . . is in essence an intentional tort claim and does not
fall within the Tort Claims Act’s waiver of government immunity.”),
and Cameron County v. Ortega, 291 S.W. 3d 495, 498-99 (Tex. App.-Corpus Christi 2009, no pet.)(“Texas law states that, even if a
claim is framed in negligence, when the facts pleaded amount to an
intentional tort, the claim does not cause a waiver of sovereign
immunity under the TTCA. . . . . In other words, a plaintiff cannot
circumvent the intentional nature of his claim by calling the action
negligent. [citations omitted]”).
Here, too, the Court agrees that
the negligence claim here is based on the same conduct as the
intentional tort claims and that Plaintiffs cannot assert it because
it is a futile attempt to circumvent those intentional tort claims
which are not waived by the TTCA.
Moreover, under the TTCA, which “covers all tort theories that
may be alleged against a governmental entity whether or not it
waives that immunity,” “‘[i]f suit is filed . . . against both a
governmental unit and any of its employees, the employees shall
immediately
be
dismissed
governmental unit.’”
on
the
filing
of
a
motion
by the
Tex. Civ. Prac. & Rem. Code § 101.106(e);Gil
Ramirez Group, LLC v. Houston I.S.D.,
F.3d
, 2015 WL 2383797,
at *11 (5th Cir. May 18, 2015), citing Mission Consol. I.S.D. v.
Garcia, 253 S.W. 3d 653, 658 (Tex. 2008)(interpreting § 101.106(e)
to cover all tort claims, including those for which immunity was
waived by the TTCA).
See also Bustos v. Martini Club, Inc. , 599
F.3d 458, 463 (Tex. 2010)(any state common law tort claim brought
against a governmental unit and its employees, including intentional
-30-
torts, will allow the employee defendants to be dismissed if the
governmental unit moves to do so).
Here the City, Stacey Smith, and
Myers assert that Plaintiffs’ claims against Stacey Smith and Meyers
in
their
individual
capacities
are statutorily barred by §
101.106(e) because under § 101.106(a), “[t]he filing of a suit under
this chapter against a governmental unit constitutes an irrevocable
election by the plaintiff and immediately and forever bars any suit
or recovery by the plaintiff against any individual employee of the
governmental unit regarding the same subject matter.”
true under Tex. Civ. Prac. & Rem. Code § 101.106(f)
The same is
9
if the
employees have been sued in their official capacity Morales v. City
of Sugar Land, No. Civ. A. H-13-3575, 2015 WL 162203, at *7 (S.D.
Tex. Apr. 9, 2015), citing Stinson v. Fontenot, 435 S.W. 3d 793, 794
(Tex. 2014)(per curiam).10
9
Section 101.106(f) provides,
If a suit is filed against an employee of a
governmental unit based on conduct within the general
scope of that employee’s employment and if it could
have been brought under this chapter against the
governmental unit, the suit is considered to be one
against the employee in the employee’s official
capacity only. On the employee’s motion, the suit
against the employee shall be dismissed unless the
plaintiff files amended pleadings dismissing the
employee and naming the government unit as defendant on
or before the 30th day after the date the motion is
filed.
10
The Court would point out that when an employee acts
ultra vires, i.e., outside the scope of his authority, the suit
is against him in his individual capacity, but section 101.106's
election of remedies provision still applies. Molina v.
Alvarado,
S.W. 3d
, No. 14-0536, 2015 WL 2148055, at *2
(Tex. May 8, 2015). If a plaintiff at the time he files suit
-31-
Therefore, because the City of Huntsville has so requested, the
Court dismisses with prejudice all the tort claims for damages under
Texas law (false arrest, assault and battery, malicious prosecution,
false imprisonment, negligence, and conspiracy) asserted against
Stacey Smith and Myers in their individual capacities pursuant to
§ 101.106(e).
b.
Official Immunity to Texas Common Law Claims
The official immunity defense under Texas law is “substantially
the same” as that of federal qualified immunity.
Crostley v. Lamar
County, Texas, 717 F.3d 410, 424 (5th Cir. 2013).
Under the
affirmative defense of official immunity, a government employee may
be immune from a suit that arises from (1) his performance of
discretionary duties (2) in good faith, (3) if he was acting in the
course and scope of his authority.
City of Brazoria, Texas v.
Ellis, No. 14-14-00322-CV, 2015 WL 3424732, at *4 (Tex. App.-Houston [14th Dist.] May 28, 2015), citing City of Pasadena v.
Belle, 297 S.W. 3d 525, 530 (Tex. App.--Houston [14th Dist.] 2009),
and Green v. Alford, 274 S.W. 3d 5, 16 n.11 (Tex. App.--Houston
[14th Dist. 2008, pet. denied).
Under this defense, good faith is
“a standard of objective legal reasonableness that disregards the
police officer’s subjective state of mind.”
Id., citing Belle, 297
does not have sufficient information to determine whether the
governmental unit’s employee is acting within the scope of his
employment, “the prudent choice” is to sue the employee and
“await a factual resolution of that question”; if instead he sues
both “before being required to do so by the election-of-remedies
provision . . . [t]hat choice is still an irrevocable election
under section 101.106.” Id. at *3.
-32-
S.W. 3d at 530.
The burden of proof is first on the officers to show they are
entitled to official immunity from Plaintiffs’ claims.
id.
Id., citing
Defendants bear the burden to prove conclusively that “a
reasonably prudent police officer, under the same or similar
circumstances, could have believed his actions were justified based
on the information that he possessed at the time.” Id., citing id.
Requiring a balancing test, good faith is judged on how a reasonably
prudent officer could have assessed the need, i.e., the urgency of
the circumstances requiring police intervention, to which an officer
responds and the officer’s course of action, based on his perception
of the facts at the time of the event.
Id., citing Wadewitz v.
Montgomery, 915 S.W. 2d 464, 467 (Tex. 1997).
Then in order to
rebut such a showing by Defendants, Plaintiffs must then demonstrate
that “no reasonable person in the officer’s position could have
thought the facts were such that they justified the officer’s
actions.”
Id., citing id. The Texas Supreme Court opined in
Wadewitz at 467, for rebuttal and to raise a genuine issue of
material
fact for trial, a party must address the following
need/risk factors:
In the context of an emergency response, need is
determined by factors such as the seriousness of the
crime or accident to which the officer responds, whether
the officer’s immediate presence is necessary to prevent
injury or loss of life or to apprehend a suspect, and
what alternative courses of action, if any, are available
to achieve a comparable result. The ‘risk’ aspect of
good faith, on the other hand, refers to the
countervailing public safety concerns: the nature and
severity of harm that the officer’s actions could cause
(including injuries to bystanders as well as the
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possibility that an accident would prevent the officer
from reaching the scene of the emergency), the likelihood
that any harm would occur, and whether any risk of harm
would be clear to a reasonably prudent officer.
Defendants here have not yet filed an Answer and have thus not
pleaded the affirmative defense of official immunity.11
From the
submissions currently in the record the Court observes that if they
do, and if they meet their burden to show they are entitled to
official immunity, possible issues here are whether Stacey Smith was
acting in the course and scope of her authority as a police officer
and whether both or either officer was acting in good faith.
5.
Texas Constitution
Plaintiffs’ Original Petition states they are seeking damages
for violations of the Texas Constitution.
Not only have they failed
to identify the provisions they claim have been violated, but there
is no Texas law equivalent to § 1983, and the Texas Constitution
does not create an implied private right of action for money
damages.
1995).12
City of Beaumont v. Bouillion, 896 S.W. 2d 143, 147 (Tex.
Historically and currently Texas common law has not and
11
Although the City, Stacey Smith and Myers have filed a
motion for leave to file first amended answer (#25), which claims
that in state court they filed an answer summarily denying all
claims in the Original Petition, that answer was not included in
the removal papers, and the Court does not know what affirmative
defenses it might have raised.
12
Sovereign immunity does not shield a governmental entity
from suit for equitable relief for a violation of constitutional
rights. Bouillion, 896 S.W. 2d at 149; see City of Elsa v.
M.A.L., 226 S.W. 3d 390, 392 (Tex. 2007)(suits for injunctive
relief may be maintained against governmental entities); Harris
County Hosp. Dist. v. Tomball Regional Hosp., 283 S.W. 3d 838,
849 (Tex, 2009)(citing Harris County Hosp. Dist.). Plaintiffs’
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does not provide a cause of action for damages for the violation of
constitutional rights.
Id. at p. 150.
See also Alcorn v. Vaksman,
877 S.W. 2d 390, 404 (Tex. App.--Houston [1
st
Dist.] 1994, writ
denied)(en banc)(holding university officials are immune in their
official capacities for monetary claims based on violations of the
Texas Constitution).
B.
Defendants The Connection and ACH’s Motion to Dismiss (#5)
Asserting that the two incidents alleged in this suit occurred
five days apart and have nothing factually in common other than that
they occurred in the City and allegedly involved Myers and Stacey
Smith, The Connection and ACH argue that Stacey Smith does not
appear to assert any claims against them and Carter seeks monetary
damages based on alleged violations of § 1983 and Texas tort law.
The Connection and ACH move to dismiss the § 1983 claims on the
ground that they are private corporations, not state actors, and
they do not act under the color of state law.
Oil Co., 457 U.S. 922, 929-30 (1982).
Lugar v. Edmondson
To impose liability under the
statute on a private corporation, the corporation must jointly
participate in the conduct actionable under § 1983.
Bray v.
Alexandria Women’s Health Clinic, 506 U.S. 263, 330 n.28 (1993)(If
private parties jointly participated with officials action under
color of state law in the challenged conduct, they would be liable
under § 1983)(citing Lugar, 457 U.S. at 931; Adickes v. S.H. Kress
& Co., 398 U.S. 144, 150, 152 (1970)(holding that a private party’s
Original Petition, however, clearly seeks only monetary damages.
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joint participation with a state official in a conspiracy to
discriminate would constitute both
“state action essential to show
a direct violation of petitioner’s Fourteenth Amendment equal
protection rights” and an action “under color of law for purposes
of” § 1983)(“To act ‘under color of law” does not require that the
[defendant) be an officer of the State.
willful
participant
in
joint
It is enough that he is a
activity
with
the
State or its
agents.”).13
The fact that Stacy Smith was allegedly a “resident security
officer”
for
the
Connection
cannot
impose
liability
on The
Connection because a private corporation “cannot be held liable
under § 1983 on a respondeat superior theory.”
Monell, 436 U.S. at
691. See also Goodzari v. Hartzog, 2014 WL 722109, at *6 (S.D. Tex.
2014)((“Goodzari’s respondeat superior claim must be dismissed
because . . . Memorial Health System is not vicariously responsible
13
This Court notes that in Priester v. Lowndes County, 354
F.3d 414, 420 (5th Cir. 2004), cert. denied, 543 U.S. 829 (2004),
the Fifth Circuit opined,
For a private citizen . . . to be liable under section
1983, the plaintiff must allege that the citizen
conspired with or acted in concert with state actors.
Mylett v. Jeane, 879 F.2d 1272, 1275 (5th Cir. 1989).
This court has held that a non-state actor may be
liable under 1983 if the private citizen was a “willful
participant in joint activity with the State or its
agents.” [Cinel v. Connick, 15 F.3d 1338, 1343 (5th
Cir. 1994).] The plaintiff must allege: (1) an
agreement between the private and public defendants to
commit an illegal act and (2) a deprivation of
constitutional rights. Id. Allegations that are
merely conclusory, without reference to specific facts,
will not suffice. Brinkmann v. Johnston, 793 F.3d
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for the actions of either Officer Gonzalez or individual Memorial
Hermann Hospital Defendants”; “a respondeat superior claim against
Gonzalez is not cognizable under § 1983.”)
Furthermore in the context of an arrest the Fifth Circuit
requires that the police must have acted “according to a
preconceived plan and on the say-so of the private actor, not on the
basis of their own investigation.”
62, 62 (5th Cir. 1989).
Bartholomew v. Lee, 889 F. 2d
See also Simms v. Jefferson Downs Racing
Ass’n, 778 F.2d 1068, 1079 (5th Cir. 1985)(where plaintiff claims a
private party acted under color of law as part of a conspiracy to
effect an unlawful arrest, the plaintiff must demonstrate that “the
police
in
effecting
the
arrest
acted
in
accordance
with
a
‘preconceived plan’ to arrest a person merely because he was
designated for arrest by the private party.”).
that
Plaintiffs
here
Defendants contend
have failed to do so, but have merely
speculated that there was a conspiracy.
As
for
the
state
law
tort
claims
(false arrest, false
imprisonment, assault, battery, and malicious prosecution), under
Texas law to establish a cause of action involving injury by an offduty, privately employed police officer, the police officer must be
performing
a
private
duty,
such
as
protecting an employer’s
property, ejecting trespassers, or enforcing the employer’s rules,
to impose vicarious liability on The Connection.
Ogg v. Dillard’s,
Inc., 239 S.W. 3d 409, 418 (Tex. App.--Dallas 2007, pet. denied).
When a police officer is enforcing general laws, his private
employer has no vicarious liability for his acts even if the
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employer directed the actions.
Plaintiffs
do
not
plead
any
Id. (and cases cited therein).
facts
showing
Stacey Smith was
performing a private duty at the time of the alleged incident.
Last of all, The Connection and ACH urge, Plaintiffs must show
that the private defendant initiated or procured the prosecution.
Kroger Texas, LP v. Suberu, 216 S.W. 3d 788, 792 & n.3 (Tex. 2006).
The private party must be the cause-in-fact of the prosecution and
not merely the aiding or abetting of law enforcement in bringing it
about.
Browning-Ferris Indus. v. Lieck, 881 S.W. 2d 288, 293 (Tex.
1994)(“In order to charge a private person with responsibility for
the initiation of proceedings by a public official, it must . . .
appear that his desire to have the proceedings initiated, expressed
by direction, request or pressure of any kind, was the determining
factor in the official’s decision to commence the prosecution, or
that the information furnished by him upon which the official acted
was known to be false.”)(citing Restatement (Second) of Torts § 653,
cmt. g (1977)); in accord, King v. Graham, 126 S.W. 3d 75, 76 (Tex.
2003)(per curiam).
Only Carter filed a response to this motion, which the Court
finds to be conclusory and factually deficient. In it (#9 at p. 2),
Carter summarily asserts that The Connection and ACH “in a common
course of action, jointly (conspiracy), intentionally and knowingly
performed the illegal arrest of Plaintiff Carter for arbitrary and
personally motivated reasons.”
The same is true of her allegations
that “Stacey Smith, in her capacity as agent for the Connection,
acted jointly and in concert with Defendant Chris Myers in the
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deprivation of” Carter’s constitutional rights and “instituted and
effected the unlawful arrest and detention by misrepresenting
material information to the police regarding” Carter. Id. at p. 3.
While insisting Myers “had a pattern of abuse,” and that Stacey
Smith “had a history of collaborating with Myers in abusing police
power,” Carter fails to identify any specific examples.
2, 4.
Id. at pp.
Indeed Carter’s response is replete with such boiler plate
and broad statements, unsupported by facts or by Plaintiffs’ barebones allegations in their Original Petition, which, after all, is
the focal point of Rule 12(b)(6).
In their reply (#11), The Connection and ACH state they were
never served with a copy of Carter’s response.
They also highlight
the disparity between allegations in Carter’s response and their
absence in the Original Petition.
The Court agrees that the many
specific pleading deficiencies identified by The Connection and ACH
need repleading to state a claim.
only
The Court emphasizes that the
mention of ACH in the Original Petition is it is “the
management company operating The Connection [#1-1 at p. 2, ¶ 4],”
but Plaintiffs fail to plead any facts or cite any authority that
would impose liability on ACH for that reason.
Moreover because
Plaintiffs’ pleadings in their Original Petition against both The
Connection and ACH are so “bare bones,” the Court cannot tell
whether Plaintiffs have cognizable claims against them.
Therefore
the Court will permit Plaintiffs to file an amended complaint to
attempt to state viable claims against these two entities.
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ORDER
Accordingly, for the reasons stated above, the Court
ORDERS that Defendants the City, Stacey Smith, and Myers’
motion to dismiss (#3) is GRANTED IN PART and the following claims
are DISMISSED with prejudice:
Defendants
under
§
(1) Plaintiffs’ claims against all
1983 and the Fourteenth Amendment;
(2)
Plaintiffs’ tort claims under Texas common law (false arrest,
assault and battery, malicious prosecution, false imprisonment,
negligence, and conspiracy) against Stacey Smith and Myers pursuant
to Tex. Civ. Prac. & Rem. Code § 101.106(e); (3) Plaintiffs’ tort
claims against the City under
Tex. Civ. Prac. & Rem. Code §
101.057; and (4) Plaintiffs’ claims for damages for violations of
the Texas Constitution.
The Court further
ORDERS that Defendants the City, Stacey Smith, and Myers’
motion to dismiss (#3) is otherwise DENIED, and Plaintiffs are
granted leave to file a amended complaint within twenty days of
entry of this Opinion and Order to attempt to state cognizable
claims against Movants under § 1983 and the Fourth Amendment, with
specific facts supporting the pleading requirements for each.
Conclusory, general allegations do not satisfy Rule 12(b)(6).
The Court further
ORDERS that The Connection and ACH’s motion to dismiss (#5) is
also DENIED, with leave again granted to Plaintiffs to file an
amended complaint that meets pleading requirements for claims
against them.
Failure
to
file
adequate
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pleadings
and
pleadings with
sufficient facts to state cognizable claims against all Defendants
will result in dismissal of those claims failing to satisfy Rule
12(b)(6) and the elements of each cause of action.
SIGNED at Houston, Texas, this 10th day of June, 2015.
________________________________
MELINDA HARMON
UNITED STATES DISTRICT JUDGE
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