Basler v. Barron et al
Filing
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MEMORANDUM OPINION AND ORDER GRANTING IN PART, DENYING IN PART 14 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM .(Signed by Judge Gray H. Miller) Parties notified.(rkonieczny, 4)
United States District Court
Southern District of Texas
ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
GENE GERARD BASLER,
Plaintiff,
v.
DEPUTY ERIK LANCE BARRON, et al.,
Defendants.
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April 27, 2016
David J. Bradley, Clerk
CIVIL ACTION H-15-2254
MEMORANDUM OPINION & ORDER
Pending before the court is defendant Deputy Erik Lance Barron’s (“Deputy Barron”) motion
to dismiss (Dkt. 18) plaintiff Gene Gerard Basler’s second amended complaint (“Dkt. 16”).1 Having
considered the motion, response, and applicable law, the court is of the opinion that Deputy Barron’s
motion to dismiss should be DENIED in part and GRANTED in part.
I. BACKGROUND
Basler alleges that his constitutional rights were violated during an incident that transpired
on June 20, 2014. Dkt. 16 at 4. Basler contends that at approximately 4:55 p.m., he was riding his
bicycle east on Grant Road and stopped at the intersection of Grant Road and Tomball Parkway. Id.
He witnessed Deputy Barron step out in front of a car traveling west on Tomball Parkway and almost
get hit. Id. Basler observed the car brake, swerve, strike a road flare, and pull over. Id. Basler
alleges that Deputy Barron made abusive, frightening, unprofessional, and inappropriate shouts and
gestures towards the driver of the car after the near collision. Id. at 5. Basler contends that in fear
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Deputy Barron previously filed a motion to dismiss (Dkt. 14) Basler’s first amended complaint.
Dkt. 7. The previously filed motion to dismiss is superseded and rendered moot by Barron’s subsequent
motion to dismiss. Dkt. 18. Therefore, the previously filed motion to dismiss (Dkt. 14) is DENIED.
for the driver’s safety, he began recording Deputy Barron with his iPhone’s digital recorder. Id. at
6. Basler claims that when Deputy Barron noticed Basler recording, he shouted at Basler to leave
and “move on” or he would be arrested. Id. at 6. Basler states that he did not leave but instead asked
Deputy Barron why he would be arrested if he was standing at a safe distance away and not
interfering with the investigation. Id. Basler alleges that Deputy Barron sprinted across the roadway
to Basler, seized him by his chest and shirt, lifted him off his bicycle, and slammed his face into the
sidewalk causing bruising, pain, soreness, and stiffness to his face and chest. Id. at 7. Basler further
alleges that Deputy Barron put his knee into Basler’s back and wrestled his iPhone from his hand
to stop the recording. Id. Deputy Barron subsequently handcuffed Basler and forced him into the
police car. Id. Basler claims that Deputy Barron taunted him by “wagg[ing] Basler’s iPhone in front
of Basler’s face” and telling him “I got your phone now and I’m going to enter it into evidence!
Name and badge number? I don’t have to give you my name and badge number! You are nothing
to me. You’re less than nothing to me!” Id. at 7–8. Basler was subsequently charged with
Interference with Public Duties under § 38.15 of the Texas Penal Code. Id. at 8. Basler was
detained in Harris County Jail from June 20, 2014, until June 22, 2014. Id. at 9. All criminal
charges against Basler were dropped on July 23, 2015. Id. at 9.
On December 31, 2015, Basler filed his second amended complaint (Dkt. 16) against Deputy
Barron in his individual capacity, asserting four separate claims under 42 U.S.C. § 1983, one claim
under the Privacy Protection Act (42 U.S.C. § 2000aa), and various state law intentional torts.
Dkt. 16 at 9–12. Deputy Barron filed a motion to dismiss Basler’s § 1983 claims and Privacy
Protection Act claim, arguing that he had probable cause to arrest Basler and is therefore entitled to
qualified immunity. Dkt. 18 at 3. Deputy Barron also argues that the election-of-remedies provision
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of the Texas Tort Claims Act requires that all state law intentional tort claims against him be
dismissed. Id. at 11.
II. LEGAL STANDARD
A court may dismiss a complaint for “failure to state a claim upon which relief can be
granted.” Fed. R. Civ. P. 12(b)(6). To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must
plead “enough facts to state a claim to relief that is plausible on its face.” Gines v. D.R. Horton, Inc.,
699 F.3d 812, 816 (5th Cir. 2012) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.
Ct. 1955 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937 (2009). “Factual allegations must
be enough to raise a right to relief above the speculative level . . . on the assumption that all the
allegations in the complaint are true (even if doubtful in fact).” Twombly, 550 U.S. at 555. As part
of the Twombly-Iqbal analysis, the court proceeds in two steps. First, the court separates legal
conclusions from well-pled facts. Iqbal, 556 U.S. at 678–79. Second, the court reviews the wellpled factual allegations, assumes they are true, and then determines whether they “plausibly give rise
to an entitlement of relief.” Id. at 679.
Though a defendant can seek dismissal on an affirmative
defense, dismissal will be granted only if the defense is “established by the face of the complaint.”
Janvey v. Suarez, 978 F. Supp. 2d 685, 702 (N.D. Tex. 2013). For example, a statute of limitations
may support dismissal under Rule 12(b)(6) where it is evident from the plaintiff’s pleadings that the
action is barred and the pleadings fail to raise some basis for tolling. Jones v. Alcoa, Inc., 339 F.3d
359, 366 (5th Cir. 2003).
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III. ANALYSIS
A. Judicial Notice of the Magistrate Court’s Order
Deputy Barron requests this court to take judicial notice of a court order in which a
magistrate judge found probable cause for Basler’s arrest. Dkt. 18 at 4–5; Dkt. 18-1. Basler in turn,
moves to strike the order as improper external evidence. Dkt. 21 at 2. Judicial notice applies to
indisputable facts that are “generally known” or “can be accurately and readily determined from
sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201. The court may take
judicial notice of a court order. Davis v. Bayless, 70 F.3d 367, 372 (5th Cir. 1995) (taking judicial
notice of state court orders). Generally, when considering a motion to dismiss for failure to state a
claim, a district court must limit itself to the pleadings, including attachments thereto. Collins v.
Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000). However, federal courts are
permitted to refer to matters of public record when deciding a Rule 12(b)(6) motion to dismiss.
Davis, 70 F.3d at 372 (citing Cinel v. Connick, 15 F.3d 1338, 1343 n.6 (5th Cir. 1994)). Because
the order is a public record, the court takes judicial notice of the existence of the court order.
However, judicial notice of the court order does not equate to judicial notice of the existence of
probable cause. Indeed, Basler disputes the facts that support the magistrate judge’s probable cause
finding. Basler’s assertion that Deputy Barron “manufactur[ed] probable cause” is central to several
of Basler’s claims against Deputy Barron. Dkt. 16 at 11–12. Because judicially noted facts must
not be subject to reasonable dispute, the court cannot judicially note that there was probable cause
for Basler’s arrest as a matter of law. Fed. R. Evid. 201(b).
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B. § 1983 Claims
For a plaintiff to state a claim under § 1983 he “must first show a violation of the
Constitution or of federal law, and then show that the violation was committed by someone acting
under color of state law.” Atteberry v. Nocona Gen. Hosp., 430 F.3d 245, 252–53 (5th Cir. 2005).
State actors are subject to civil liability when, “under color of any statute, ordinance, regulation,
custom, or usage, of any State,” that official subjects, or causes to be subjected, a person “to the
deprivation of any rights, privileges, or immunities secured by the Constitution and laws [of the
United States].” 42 U.S.C. § 1983. Public officials sued in their personal capacity for monetary
damages under § 1983 may be able to assert a common-law defense of absolute or qualified
immunity from suit. Imbler v. Pachtman, 424 U.S. 409, 418–19, 96 S. Ct. 984 (1976). Public
officials sued in their official capacity are protected by the Eleventh Amendment, which bars suits
by private citizens against a state in federal court, unless the Eleventh Amendment is shown not to
apply or the Ex Parte Young exception applies. K.P. v. LeBlanc, 627 F.3d 115, 124 (5th Cir. 2010).
Basler asserts four causes of action against Deputy Barron under 42 U.S.C. § 1983: (1)
unreasonable seizure in violation of the Fourth and Fourteenth Amendments; (2) excessive force in
violation of the Fourth Amendment; (3) violation of his right to freedom of speech under the First
Amendment; and (4) malicious prosecution in violation of the Fourth Amendment. Dkt. 16 at 9–11.
C. Qualified Immunity
Deputy Barron asserts that all of Basler’s § 1983 claims fail as a matter of law because Basler
failed to allege facts that waive Deputy Barron’s qualified immunity. Dkt. 18 at 3 (citing Ashcroft
v. al-Kidd, 563 U.S. 731, 131 S. Ct. 2074, 2080 (2011)). Qualified immunity shields federal and
state officials from civil damages liability under § 1983 in their individual capacities unless a
plaintiff can show “(1) that the official violated a statutory or constitutional right, and (2) that the
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right was clearly established at the time of the challenged conduct.” Ashcroft, 131 S. Ct. at 2077;
see also Ramirez v. Martinez, 716 F.3d 369, 375 (5th Cir. 2013). When an official asserts qualified
immunity, the first step is to identify the allegedly infringed constitutional right. Graham v. Connor,
490 U.S. 386, 394, 109 S. Ct. 1865 (1989).
If the allegations do not establish a violation of a constitutional right, the [official]
is entitled to qualified immunity. . . If the allegations could make out a constitutional
violation, we must ask whether the right was clearly established—that is, whether it
would be clear to a reasonable [official] that his conduct was unlawful in the
situation he confronted. . . . If an [official] makes a reasonable mistake as to what the
law requires, [he] is entitled to immunity.
Price v. Roark, 256 F.3d 364, 369 (5th Cir. 2001) (citations and internal quotation marks omitted).
The conduct need not be prohibited by a specific judicial mandate; rather, the unlawfulness
need only be “readily apparent from relevant precedent in sufficiently similar situations.” Atteberry,
430 F.3d at 257. Here, Basler alleges that Deputy Barron infringed upon his First and Fourth
Amendment rights. Dkt. 16 at 9–10. Baser claims that Deputy Barron violated his First Amendment
right to record the police without interfering in police activity. Dkt. 21 at 8. It is well established
that the gathering of information about government affairs or matters of public concern—including
recording police activity—is protected by the First Amendment. E.g., Enlow v. Tishomingo County,
962 F.2d 501 (5th Cir. 1992) (assuming the plaintiff’s allegations were true, the court held that
arresting the plaintiff for photographing a police raid where he did not interfere violated the
plaintiff’s First Amendment rights); Shillingford v. Holmes, 634 F.2d 263, 264, 266 (5th Cir. 1981)
(stating that police officer’s “unprovoked and unjustified” assault of plaintiff who “was
photographing what the policeman did not want to be memorialized” and “was not involved in the
arrest incident and did not interfere with the police in any fashion” established a deprivation of
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constitutional rights), abrogated on other grounds by Valencia v. Wiggins, 981 F.2d 1440 (5th Cir.
1993).
Basler contends that Deputy Barron violated his Fourth Amendment rights by arresting him
and seizing his property without probable cause and by using excessive force. Dkt. 16 at 9–11.
Deputy Barron’s alleged probable cause to arrest Basler—which the magistrate judge subsequently
found based on Deputy Barron’s representations—was Basler’s interference with the duties of a
public servant. Dkt. 18 at 4; Dkt. 18-1. Because Basler’s constitutional claims arise out of an
allegedly unlawful arrest, meeting the elements of his § 1983 claims implicitly requires him to show
an absence of probable cause to support his arrest. Russell v. Altom, 546 F. App’x 432, 436–437 (5th
Cir. 2013); Buehler v. City of Austin, No. A-13-CV-1100-ML, 2015 WL 737031, at *9 (W.D. Tex.
Feb. 20, 2015).
Deputy Barron cites Cuadra v. Houston Independent School District to support his contention
that a magistrate court order finding probable cause is conclusive evidence that probable cause
existed. Dkt. 18 at 5 (citing 626 F.3d 808, 813 (5th Cir. 2010)). In Cuadra, the court held that “if
facts supporting an arrest are placed before an independent intermediary such as a magistrate or
grand jury, the intermediary’s decision breaks the chain of causation for false arrest.” 626 F.3d at
813 (internal quotations marks omitted). However, “the chain of causation remains intact if ‘it can
be shown that the deliberations of that intermediary were in some way tainted by the actions of the
defendant.’” Id. at 813 (quoting Hand v. Gary, 838 F.2d 1420, 1428 (5th Cir. 1988)). “The chain
of causation is broken only where all the facts are presented to the grand jury or other independent
intermediary where the malicious motive of the law enforcement officials does not lead them to
withhold any relevant information from the independent intermediary.” Id.
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Basler alleges that Deputy Barron’s malicious motives caused him to withhold key facts from
the magistrate judge. Dkt. 16 at 9–12. For example, Basler claims that Deputy Barron had to shout
to be heard and had to sprint down the road to reach and arrest Basler. Dkt. 21 at 4. Basler contends
that had the magistrate judge heard these facts, the judge would have found that Basler was at a safe
distance away from Deputy Barron and that he therefore did not have no probable cause to arrest
Basler. Id.
Deputy Barron contends that these allegations are not sufficient to prove that the magistrate’s
deliberations were tainted. Dkt. 18 at 5. Although the court in Cuadra held that the plaintiff’s
allegations, without more, were insufficient to withstand summary judgment, the facts in Cuadra are
distinguishable. 626 F.3d 808 at 813. In that case, the plaintiff admitted to part of the alleged
wrongdoing and both a district attorney and two separate grand juries found probable cause for
arrest. Id. Here, Basler alleges specific, material facts that Deputy Barron intentionally withheld
from the magistrate. Assuming these allegations are true, the magistrate judge’s finding of probable
cause would not be entitled to a presumption of validity. U.S. v. Kolodziej, 706 F.2d 590, 598 (5th
Cir. 1983) (finding that a magistrate judge’s determination of probable cause was not entitled to a
presumption of validity when “the magistrate never considered the affidavit purged of its tainted
material”). Accordingly, Deputy Barron’s motion to dismiss Basler’s § 1983 claims on the basis of
qualified immunity is DENIED.
D. Excessive Force Claim
In addition to the qualified immunity defense, Deputy Barron moves to dismiss Basler’s
excessive force claim on the ground that insufficient force was used against Basler. Dkt. 18 at 7.
To establish an excessive use of force claim, a plaintiff must show “(1) an injury (2) which resulted
directly and only from the use of force that was excessive to the need and (3) the force used was
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objectively unreasonable.” Glenn v. City of Tyler, 242 F.3d 307, 314 (5th Cir. 2001) (citation
omitted). The injury must be more than a de minimis injury and must be evaluated in the context
that the force was used. Mitchell v. Baggett, No. 4:13-CV-2221, 2014 WL 2973627, at *2 (S.D. Tex.
July 2, 2014) (Hoyt, J.). In an excessive force claim arising under the Fourth Amendment, the
reasonableness of the officer’s actions requires careful attention to the facts and circumstances of
each particular case, including the severity of the crime, whether the suspect posed an immediate
threat to the safety of the officer or others, and whether he was actively resisting arrest or attempting
to evade arrest by flight. Graham, 490 U.S. at 396.
Basler contends that he was stationary and straddling his bicycle with one hand on the
handlebars and his other hand on his cell phone when Deputy Barron sprinted over, grabbed his shirt
and chest, lifted him off his bike and slammed him onto the sidewalk. Dkt. 16 at 7. Basler further
alleges that Deputy Barron put his knee into Basler’s back and wrestled Basler’s iPhone from his
hand in order to stop the recording. Id. Deputy Barron’s conduct allegedly resulted in bruising, pain,
soreness, and stiffness to Basler’s face and chest. Id. Basler contends that this degree of force was
unreasonable because the severity of his alleged crime was not proportional to the force used against
him: he was not posing a threat, exhibiting a weapon, or attempting to flee. Id. The court finds that
Basler’s complaint sufficiently alleges facts to support his claim that the force used by Deputy
Barron was objectively unreasonable.
Deputy Barron also asserts that the injuries alleged by Basler are de minimis. Dkt. 18 at 6.
However, a showing of significant injury is no longer required in an excessive force claim. Flores
v. City of Palacios, 381 F.3d 391, 400 (5th Cir. 2004) (rejecting the “significant injury” requirement
for Fourth Amendment excessive force claims and holding that a plaintiff need only allege “an
injury”); Glenn, 242 F.3d at 314 (“Although a showing of significant injury is no longer required
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in the context of an excessive force claim, we do require a plaintiff asserting an excessive force claim
to have suffered at least some form of injury.”) (internal quotations marks omitted). Deputy Barron
compares Basler’s alleged injuries to cases where courts have held that handcuffing a suspect too
tightly, without more, does not amount to excessive force. Lockett v. New Orleans City, 607 F.3d
992, 999 (5th Cir. 2010); see also Freeman v. Gore, 483 F.3d 404, 417 (5th Cir. 2007) (holding that
minor, incidental injuries that occur in connection with the use of handcuffs during arrest do not give
rise to a constitutional claim for excessive force). Basler’s case, however, is distinguishable from
these cases because Basler’s alleged injuries were not incidental to being handcuffed. Dkt. 21 at 7.
Basler alleges that his injuries—bruising, pain, soreness, and stiffness to his face and chest—were
caused by Deputy Barron’s actions prior to arrest. Dkt. 16 at 7. Basler alleges that Deputy Barron
grabbed Basler’s shirt and chest, lifted him off of his bike, slammed him onto the sidewalk, shoved
his face into the sidewalk, and placed his knee into Basler’s back. Id. The court finds that these
facts are sufficient to show that Basler’s alleged injuries are not de minimis.
E. Privacy Protection Act (“PPA”) Claim
Basler asserts a cause of action for the seizure/destruction of journalistic work product in
violation of 42 U.S.C. § 2000aa. Dkt. 16 at 11. Basler claims that Deputy Barron wrongfully seized
and partially destroyed Basler’s iPhone because he believed that Basler would disseminate the
recording by broadcast or other similar form of public communication. Id. Deputy Barron contends
that because he suspected Basler of committing a crime (i.e., failure to comply with a lawful
command of a peace officer) and allegedly had probable cause to that effect, Basler’s PPA claim
should be dismissed. Dkt. 18 at 8. The PPA states that “this provision shall not impair or affect the
ability of any government officer or employee, pursuant to otherwise applicable law, to search for
or seize such materials, if—there is probable cause to believe that the person possessing such
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materials has committed or is committing the criminal offense to which the materials relate.” 42
U.S.C.A. § 2000aa (West). However, for the reasons stated above, Basler’s pleadings raise factual
issues as to whether Deputy Barron had probable cause to believe Basler was committing a crime.
Accordingly, Basler’s PPA claim should not be dismissed at this stage of the proceedings.
F. Texas Constitution Claims
Basler has abandoned his claims alleging violations of the Texas Constitution.2
G. State Law Intentional Tort Claims
Deputy Barron correctly asserts that Basler cannot seek relief from Deputy Barron on his state
law intentional tort claims because he is barred by the election-of-remedies provision of the Texas
Torts Claims Act (“TTCA”). Dkt. 18 at 9. The TTCA 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 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 governmental unit as defendant
on or before the 30th day after the date the motion is filed.
Tex. Civ. Prac. & Rem. Code Ann. § 101.106(f) (West 2003).
“Application of the TTCA’s election-of-remedies provision requires a determination as to
‘whether an employee acted independently and is thus solely liable, or acted within the general scope
of his or her employment such that the governmental unit is vicarious liable.’” Alexander v. Walker,
435 S.W.3d 789, 789–90 (Tex. 2014) (quoting Mission Consol. Indep. Sch. Dist. v. Garcia, 253
S.W.3d 653, 657 (Tex. 2008)). The TTCA mandates this determination in order to reduce the
resources that the government and its employees must use in defending redundant litigation and
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Dkt. 21 at 10 (stating that “Plaintiff’s claims pursuant to the Texas Constitution . . . were voluntarily
dismissed in his current complaint”).
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alternative theories of recovery. Id. To that end, the statute compels “dismissal of government
employees when suit should have been brought against the government.” Id. (quoting Tex. Adjutant
Gen.’s Office v. Ngakoue, 408 S.W.3d 350, 355 (Tex. 2013)).
In Alexander, the plaintiff sued two police officers for a series of state law claims all
stemming from the officers’ conduct incident to the plaintiff’s arrest. Id. at 789. Because the
plaintiff did not allege any independent actions by the officers, the court found that the officers acted
within their official capacity only and dismissed them from the suit under the election-of-remedies
provision. Id. at 792.
Basler’s seconded amended complaint purports to assert only negligence claims against
Harris County. Dkt. 16 at 13–16. On the other hand, the complaint purports to assert Basler’s
intentional torts claims (i.e., assault, unlawful restraint, malicious prosecution, and conversion)
solely against Deputy Barron. Id. at 12. Moreover, the face of the complaint states that Deputy
Barron is being sued “in his individual capacity.” Id. at 1. However, Basler fails to allege that
Deputy Barron acted independently. On the contrary, Basler alleges that “at all times relevant to this
complaint . . . [Deputy] Barron acted within the course and scope of [his] employment or agency as
[an] investigative and law enforcement official.” Id. at 3. Accordingly, the court finds that Deputy
Barron’s alleged conduct falls within the scope of his employment.
Moreover, the court finds that Basler’s intentional tort claims “could have been brought
under this chapter against the governmental unit.” Tex. Civ. Prac. & Rem. Code Ann. § 101.106(f).
In Franka, the Texas Supreme Court held that “for section 101.106(f), ‘suit could have been brought’
under the Act against the government regardless of whether the Act waives immunity from suit.”
Franka v. Velasquez, 332 S.W.3d 367, 385 (Tex. 2011); see also Alexander, 435 S.W.3d at 792
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(finding that, based on the holding in Franka, the plaintiff’s intentional tort claims—including
assault, false arrest, and malicious prosecution—could have been brought under the TTCA against
the government). Therefore, because Basler’s intentional tort claims against Deputy Barron were
based on conduct within the general scope of his employment and could have been brought under
the TTCA against Harris County, these claims are considered to be against Deputy Barron in his
official capacity only. Tex. Civ. Prac. & Rem. Code Ann. § 101.106(f). As the Texas Supreme
Court has held, “a suit against an employee in his official capacity is not a suit against the employee;
it is, in all but name only, a suit against the governmental unit.” Ngakoue, 408 S.W.3d at 357.
In response, Basler argues that this court’s supplemental jurisdiction over Basler’s state law
claims renders Deputy Barron’s TTCA defense inapplicable. Dkt. 21 at 10 (citing 28 U.S.C.
§ 1367). However, Basler fails to explain why this court’s supplemental jurisdiction should deprive
Deputy Barron of the right to assert a defense (recognized under Texas law) to Basler’s state law
claims. Accordingly, Deputy Barron is entitled to dismissal of Basler’s state law intentional tort
claims against him pursuant to § 101.106(f).
IV. CONCLUSION
Deputy Barron’s motion to dismiss is GRANTED in part and DENIED in part. The court
GRANTS the motion to dismiss Basler’s state law intentional tort claims against Deputy Barron.
The motion is DENIED as to Basler’s remaining claims.
Signed at Houston, Texas on April 27, 2016.
___________________________________
Gray H. Miller
United States District Judge
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