Samples v. Harris County et al

Filing 16

MEMORANDUM AND ORDER granting 3 Motion to Dismiss for Failure to State a Claim. Plaintiff granted leave to file amended complaint within 30 days of entry of this order. (Signed by Magistrate Judge Stephen Wm Smith) Parties notified.(jmarchand, 4)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
G REGORY T ODD S AMPLES,
Plaintiff,
vs.
H ARRIS C OUNTY, ET AL.,
Defendants.

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September 20, 2016
David J. Bradley, Clerk

C IVIL A CTION H-16-0829

MEMORANDUM AND ORDER
This civil rights case is before the court on defendants' motion to dismiss (Dkt. 3). The
motion is granted, but plaintiff will be given an opportunity to replead his 42 U.S.C. § 1983
claims.
Background Facts
Plaintiff Gregory Todd Samples alleges that on January 29, 2014, Harris County
Sheriff deputy McGregor received a call that a male, Samples, was disoriented in the 4000
block of Peninsula Gardens Way. McGregor and another deputy, Vadzemnieks responded
to the call. Although Samples allegedly presented no danger to the deputies, Vadzemnieks
tasered him. As a result of being tasered, Samples fell to the pavement and sustained a
serious head injury.
Samples filed suit against defendants in state court on January 21, 2016, asserting
claims under 42 U.S.C. § 1983 and, alternatively, for negligence. Samples alleges that Harris

County1 , Sheriff Hickman, and former Sheriff Garcia are responsible for his injuries because
they failed to have or enforce adequate policies for use of tasers, and failed to train or
supervise their officers. Samples further alleges that these defendants exhibited deliberate
indifference to his Constitutional rights by sanctioning the use of tasers against nonthreatening individuals under the influence of drugs, and failing to discipline officers for
such excessive force. See Dkt. 1-3 at13, ¶¶ 9-14, 18-24.
Defendants removed the case to federal court and now move to dismiss the case in its
entirety for failure to state a claim and immunity under the Texas Tort Claims Act (TTCA).
Motion to Dismiss Standards
In reviewing a pleading under Rule 12(b)(6), the “court accepts ‘all well-pleaded facts
as true, viewing them in the light most favorable to the plaintiff.’” Martin K. Eby Constr. Co.
v. Dallas Area Rapid Transit, 369 F.3d 464, 467 (5th Cir.2004) (quoting Jones v. Greninger,
188 F.3d 322, 324 (5th Cir.1999)). However, only facts are entitled to an assumption of truth;
legal conclusions unsupported by factual allegations do not suffice. Ashcroft v. Iqbal, 556
U.S. 662, 678-79 (2009). To survive 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.” Bell Atl. Corp. v.

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Samples's petition names as a defendant the Harris County Sheriff's Department. The Harris
County Sheriff's Department does not enjoy a separate legal existence from the County, thus
is not an entity with capacity to sue and be sued. See Darby v. Pasadena Police Dept., 939
F.2d 311, 313 (5th Cir. 1991); Breidel v. Harris County Sheriff's Office, No. 4:13cv23, 2014
WL 3891693 *7 (S.D. Tex. 2014). Any claim against Harris County Sheriff's Department is
duplicative of a claim against Harris County, which is already named as a defendant here.

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Twombly, 550 U.S. 544, 570 (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.” Iqbal, 556 U.S. at 678; Gonzalez v. Kay, 577 F.3d 600,
603 (2009).
Defendants' motion based on immunity is brought pursuant to Federal Rule of Civil
Procedure 12(b)(1). A motion under 12(b)(1) should be granted only if it appears certain that
the plaintiff cannot prove a plausible set of facts that establish subject-matter jurisdiction.
Lane v. Halliburton, 529 F.3d 548, 557 (5th Cir.2008). “[U]nder Rule 12(b)(1), the court may
find a plausible set of facts supporting subject matter jurisdiction by considering any of the
following: ‘(1) the complaint alone; (2) the complaint supplemented by undisputed facts
evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the
court's resolution of disputed facts.’” Id.
Analysis
1.

42 U.S.C. § 1983

42 U.S.C. § 1983 provides an individual with a private cause of action for the
deprivation of his Constitutional rights. City of St. Louis v. Praprotnik, 485 U.S. 112, 121
(1988). To establish a claim under § 1983, a plaintiff must show: (1) a violation of a right
secured by the Constitution or laws of the United States and (2) that the alleged deprivation
was committed by a person acting under color of state law. Pratt v. Harris Cty., Tex., 822
F.3d 174, 180 (5th Cir. 2016). A § 1983 claim may be brought against persons in their

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individual or official capacity,2 or against a governmental entity. Id. However, a municipality
or local government entity or its policy makers cannot be held liable under § 1983 on a
respondeat superior theory. Monell v. Dep't of Social Servs. of New York, 436 U.S. 658, 691
(1978). In other words, a municipality or local governmental entity is liable under § 1983
only for acts for which it is actually responsible. Doe on Behalf of Doe v. Dallas Independent
School Dist.,153 F.3d 211, 215-16 (5th Cir. 1998). Thus, Harris County is liable under §
1983 for Samples's injuries only if “(1) the enforcement of a municipal policy or custom was
(2) ‘the moving force’ of the violation of his federally protected rights.” Piotrowski v. City
of Houston, 237 F.3d 567, 568 (5th Cir. 2001).
Samples has not alleged facts to support his conclusory allegation that an official
policy or custom of Harris County was the moving force behind his injury. To the extent that
he alleges that Harris County defendants showed deliberate indifference by failing to enforce
an existing policy, Samples has alleged no facts that show a pattern or practice of such
deliberate indifference. In addition, Samples has alleged no facts supporting the individual
liability of deputy McGregor, who did not taser Samples. Reciting the elements of legal
theories alone does not meet federal pleading standards under Iqbal and Twombly. In his

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It is unclear whether Samples is asserting his claims against Hickman and Garcia in their
individual or official capacities. An "official capacity" claim is a claim against the
government entity, and Monell applies. Any claims against Hickman and Garcia in their
official capacities are considered here jointly with Harris County. In order to state a claim
against Hickman and Garcia in their individual capacity, Samples must make specific
allegations tying them to the actual excessive force that caused Samples injury. Ashcroft v.
Iqbal, 556 U.S. 662, 676 (2009). He has not done so.
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response to defendants' motion (Dkt. 12), Samples does nothing more than cut and paste
paragraphs from his original petition filed in state court, without offering any legal analysis
supporting his contention that the conclusory allegations contained therein are sufficient.
Although the court finds that Samples current pleading fails to state a claim under 42
U.S.C. § 1983, Samples will be given an opportunity to amend his pleading before the case
is dismissed. See Griggs v. Hinds Junior Coll., 563 F.2d 179, 180 (5th Cir. 1977) ("Granting
leave to amend is especially appropriate, in cases such as this, when the trial court has
dismissed the complaint for failure to state a claim."). Samples must, if he can do so in good
faith, allege with factual specificity what custom, policy, or practice of Harris County was
the motivating force behind the violation of his Constitutional rights. Samples also must,
should he desire to pursue § 1983 claims against individual defendants, allege specific acts
by each individual that violated his Constitutional rights.
2.

Negligence

Defendants argue that state law negligence claims against all defendants must be
dismissed for lack of jurisdiction under the Texas Tort Claims Act.3 The TTCA protects
governmental units from liability for most tort claims. This Act waives a governmental unit's
sovereign immunity only for tort claims arising from the operation of a motor vehicle and use
of tangible personal or real property. T EX. C IV. P RAC. & R EM. C ODE § 101.021. In addition,
the TTCA waiver does not apply to claims arising from the actions of an employee

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Samples does not address this issue in his response.
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responding to an emergency call, or the method of providing police protection.

Id.

§ 101.055. Thus, sovereign immunity bars any state law claim by Samples against Harris
County or against any individuals in their official capacities.
Furthermore, § 101.106(e) of the Texas Civil Practice and Remedies Code provides
that the filing of a suit against a governmental entity, such as Harris County, constitutes an
irrevocable election by a plaintiff and immediately and forever bars any suit or recovery
against individual employees regarding the same subject matter. This is the result even when
the suit against the governmental entity is not within the scope of the TTCA. Mission Consol.
I.S.D. v. Garcia, 253 S.W.2d 653, 657-59 (Tex. 2008). The election cannot be revoked by
amending the complaint to eliminate state causes of action against the County. Id. Thus, any
state law tort claim against the individual defendants also must be dismissed. As there is no
cure for these jurisdictional deficiencies, leave to replead will not be granted.
Conclusion and order
Defendants' motion to dismiss Samples's § 1983 claim is granted, but Samples is
granted leave to file an amended complaint within 30 days of entry of this order. Samples's
negligence claim against all defendants is dismissed with prejudice.
Signed at Houston, Texas on September 20, 2016.

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