Residents Against Flooding et al v. Reinvestment Zone Number Seventeen, City of Houston, Texas et al
Filing
20
OPINION AND ORDER. Plaintiffs' motion for leave of Court to file their consolidated Sur-Reply 19 is GRANTED; the City's first motion to dismiss pursuant to Rules 12(b)(1) and 12(b)(6) is GRANTED for the reasons indicated and its motion f or more definite statement 5 is MOOT ; Defendants the Zone and the Authority's motion to dismiss is GRANTED for the reasons indicated, and their motion for a more definite statement 7 is MOOT ; and the City's Motion to Dismiss 17 First Amended Complaint 14 is GRANTED for the reasons indicated.(Signed by Judge Melinda Harmon) Parties notified.(rhawkins)
United States District Court
Southern District of Texas
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
§
§
§
§
§
Plaintiffs,
§
§
VS.
§
§
REINVESTMENT Zone NUMBER
§
SEVENTEEN, CITY OF HOUSTON,
§
TEXAS (TIRZ 17), MEMORIAL CITY §
REDEVELOPMENT AUTHORITY (AKA
§
TIRZ 17 REDEVELOPMENT AUTHORITY)§
AND THE CITY OF HOUSTON, TEXAS, §
§
Defendants.
§
ENTERED
May 09, 2017
David J. Bradley, Clerk
RESIDENTS AGAINST FLOODING,
ANITA GIEZENTANNER, VIRGINIA
GREGORY, LEE MARTIN, LOIS
MEYERS, AND BAYAN RAJI,
C.A. NO. H-16-1458
OPINION AND ORDER
The above referenced action seeks declaratory and injunctive
relief to enjoin the use of arbitrary government action that
benefits
private
commercial
interests
and
developers
within
Reinvestment Zone Number Seventeen City of Houston, Texas (“TIRZ1
1
“TIRZ” stands for “tax increment reinvestment zone,” pursuant
to Chapter 311 of the Texas Tax Code, also known as the Tax
Increment Financing Act.
Plaintiffs allege that TIRZ 17 was
created in 1999 because the area was “a menace to the public
health, safety, morals or welfare in its present condition and use”
because of the presence of unsanitary or unsafe conditions under
Tex. Tax Code § 311.005(a)(1)(“Criteria for Reinvestment Zone”) and
upon the City’s finding that “improvements in the Zone . . . will
be of general benefit to the municipality” under Texas Tax Code §
311.004(a)(7)(a)(“Contents of Reinvestment Zone Ordinance or
Order”).
The City created TIRZ 17 on July 21, 1999 by passing Ordinance
1999-759.
Subsequently the City created the Memorial City
Redevelopment Authority (the “Authority”) by adopting Resolution
No. 2002-26 on August 14, 2002. Expanding from its original duty
to undertake projects related to mobility and drainage to remedy
“blight” conditions in the area, the purpose of TIRZ 17 expanded to
-1-
17”) at the expense of substantial harm to hundreds of residential
homes
in
nearby
Memorial
City
neighborhoods,
allegedly
by
Defendants’ knowingly conveying stormwater out of the TIRZ 17
commercial areas into its residential areas, which lack adequate
infrastructure to deal with the flooding.
allegedly
seizes
Plaintiffs’
immediate
prioritization
of
real
flood
The flooding in effect
property.
relief
Plaintiffs
projects
for
seek
their
neighborhoods.
Pending before the Court are the following motions:
(1) Defendant the City of Houston’s Rule 12(b)(1) (the
“City’s”) motion to dismiss for lack of standing, Rule
12(b)(6) motion to dismiss for failure to state a claim,
“aid, assist and act on behalf of the City of Houston in the
performance of the City’s governmental and proprietary functions
with respect to the common good and general welfare of the Memorial
City Area.”
The names “TIRZ 17" and “the Authority” are used
interchangeably throughout the complaint because they function in
parallel as a single decision-making body. #14, ¶¶ 40-42, 47, 50.
Ordinance 2002-26. Paragraphs 145-46 state, “The purpose behind
the TIRZ is to give the tax revenue from a blighted area to local
decision-makers so they can fix the blight themselves. Eventually,
the local area is improved, attracting new development, the tax
base increases, and the TIRZ is dissolved so that the tax revenue
returns to benefit the entire city. Nevertheless this projected
course of action is not happening with TIRZ 17. The tax base has
increased far above projections, and TIRZ 17, which appears
captured by private developers, is unduly profiting by the
increased tax base, to the detriment of the public residential
areas around it.”
Plaintiffs describe multiple ways they have tried to use the
political process to remedy the flooding problems in their
residential areas, advocating before City Council and the TIRZ,
without success. Plaintiffs object to Defendants’ improving the
blight within TIRZ 17 by transferring it to Plaintiffs’ residential
neighborhoods. Because past experience has dissolved any trust
they had in Defendants, Plaintiffs conclude that they have to turn
to litigation and have filed this action.
-2-
and, in the alternative, Rule 12(e) motion for more
definite statement (instrument #5) regarding all claims
brought by Plaintiffs the Residents Against Flooding
(“RAF”),
Anita
Giezentanner,
Virginia
Gregory,
Lois
Meyers,2 and Bayan Raji;
(2) Defendants Reinvestment Zone Number Seventeen, City
of
Houston,
Texas
(the
“Zone”)
and
Memorial
City
Redevelopment Authority’s (the “Authority’s”3) motion to
dismiss, or, alternatively, for a more definite statement
(#7);
(3)
City’s
Motion
to
Dismiss
(#17)
First
Amended
Complaint; and
(4) Plaintiffs’ motion for leave of Court to file their
consolidated Sur-Reply (Sur-Reply, #19 at p.4, electronic
numbering).
(1) Because Plaintiffs filed their amended complaint (#14) to
expand their factual allegations in response to the Rule 12(e)
motions for more definite statement and to address issues as they
arose, (2) because the City in its reply (#17) asked the Court to
apply its motion to dismiss and subsequent briefing to Plaintiffs’
amended complaint (#14), which the City argues eliminated those of
Plaintiffs’ claims mooted by the passage of time, (3) because
2
Plaintiffs Lois Myers and Virginia Gregory are members and
supporters of the RAF. Non-plaintiff Roger Grindell, also an RAF
member, was added in the last amended complaint #14 ¶ 178.
3
Also known as the TIRZ 17 Redevelopment Authority.
-3-
Plaintiffs have not filed any objections to the City’s motion for
leave to file consolidated Sur-Reply, and (4) because much has
changed since the case was commenced, the Court grants Plaintiffs’
motion for leave of Court to file their consolidated Sur-Reply.
#19 at p. 4 of electronic numbering. The Court will therefore
review the pending motions to dismiss and other submissions with
respect to this amended complaint (#14).
Moreover, because the
briefing has been so extensive and has evolved as issues were
raised and argued by the parties, the Court finds that further
amendments are not necessary.
Furthermore,
because
the
Zone
and
the
Authority
filed
consolidated responses to both motions to dismiss, which overlap on
any number of issues, the Court summarizes each of the motions to
dismiss first, and then addresses the responses, replies, and
surreply.
Plaintiffs’ Allegations
Specifically,
Plaintiffs
complain
Authority have engaged in a pattern of:
that
the
City
and
the
(1) implementing drainage
and mobility infrastructure projects in and around TIRZ 17 that
efficiently convey stormwater out of the TIRZ 17 commercial areas
into the surrounding residential neighborhoods or into their overstrained
storm
systems;
(2)
approving
private
commercial
development within TIRZ 17 that elevated the commercial properties,
without any, or without sufficient, stormwater mitigation, causing
more stormwater to enter the residential neighborhoods; and (3)
-4-
postponing
infrastructure
neighborhoods,
benefit
often
private
in
projects
favor
commercial
of
to
help
the
non-essential
interests,”
causing
residential
projects
repeated
that
and
terrible flooding in hundreds of homes in the Memorial City area in
violation of the United States and Texas Constitutions. #14, First
Amended Complaint, ¶ 3.
Plaintiffs contend that Defendants had actual notice of the
drastic need to improve the drainage conditions of TIRZ 17 from
the repeated destructive floods (especially three “historic” floods
in 2009, 2014, and 2015), from numerous complaints from Memorial
area residents to the City, to its Planning Commission, to its
Flood and Drainage Committee, and to City Council, and from
multiple
studies
conducted
by
the
City,
the
Authority,
and
engineering firms (including the Walter P. Moore engineering firm
in 2003, Klotz Associates in 2004 and 2014, LAN Engineering in
2006, 2012, and 2014 Omega Engineering in 2008, and, in 2009, the
Harris County Flood Control District (“HCFCD”), which regulates and
maintains bayous and creeks).
In addition, Plaintiffs claim that
Defendants have a sophisticated hydrological model that can predict
the depth of flooding in any area when new drainage infrastructure
is added.
Currently, the Houston City Council appoints all Board members
of the TIRZ, all of whom have significant property or business
interests inside TIRZ 17, as well as those of the Authority; the
same members are appointed to serve on both the TIRZ’s and the
-5-
Authority’s boards contemporaneously. Upon information and belief,
the two boards hold simultaneous joint Board Meetings, deliberate
and take votes as a single unified entity without distinguishing
which one is taking an action, and keep minutes and records as if
they were a single committee. The City retains oversight over TIRZ
17 and has statutory power over the Authority to submit projects
and budgets, and the City has final approval over all proposals.
Approval of the TIRZ projects is memorialized in City ordinances.
Such
ordinances
also
approve
its
Capital
(“CIPs”), which are issued every five years.
B,C,D.
Improvement
Plans
See #14, Exhibits
Now that TIRZ 17 and the Authority exist, the City no
longer performs its own drainage projects in or near the TIRZ.
Plaintiffs bring four causes of action:
(1) violation of
substantive due process under the Fourteenth Amendment4 and 42
U.S.C. § 1983; (2) violation of the Texas Constitution Art. 1 § 195
4
Plaintiffs assert that the Fourteenth Amendment “prohibits
depriving any person of life, liberty or property without due
process of law” and “is intended to prevent government from abusing
its power.” #14, ¶ 188. Plaintiffs have been deprived of use of
their homes by Defendants’ arbitrary abuse of their power in
transferring the TIRZ 17 “blight” and flooding problems to
Plaintiffs,
consistently
postponing
flood
protection
for
Plaintiffs, prioritizing private commercial interests over the
residential interests, approving nonessential projects such as
beautification projects for TIRZ developers over flood relief for
Plaintiffs, failing to build flood protection for Plaintiffs, and
failing to require mitigation (such as detention) to protect
Plaintiffs’ homes. Plaintiffs maintain that Defendants’ decisions,
actions, and inactions lack a rational basis.
5
Article I, section 19 provides that no citizen of Texas shall
be deprived of his property except by due course of both procedural
and substantive law. For the same reasons as the previous federal
cause of action, Plaintiffs claim they have been deprived of their
-6-
(also known as the due course of law provision); (3) violation of
the Fourth Amendment and 42 U.S.C. § 1983 by unreasonable seizure
of their property; and (4) a declaratory judgment for state and
federal constitutional violations.
The declaratory and injunctive relief Plaintiffs seek is
to require immediate prioritization of flood relief
projects for neighborhoods; to enjoin the Defendants from
using TIRZ 17 funds for private development agreements to
enjoin the City from approving new commercial building
permits on large lots within TIRZ 17 until a finding is
made that the development does not increase flooding
risks in three residential neighborhoods; and to appoint
a Special Master that will oversee expenditure of TIRZ 17
funds and oversee projects designed to alleviate flooding
in the nearby residential areas. Id. at ¶ 24.
Plaintiffs note that the City participates in the Federal Flood
Insurance program and is therefore subject to federal statutory
regulation under 42 U.S.C. § 4001, et seq., and the federal
regulations enacted under the authority of these statutes.
Under
44 C.F.R. Part 65, participating communities are required to assist
FEMA’s efforts in providing up-to-date information on special flood
and flood-related erosion hazards.
On information and belief,
Plaintiffs assert that the City has not met these obligations.
Standards of Review
Rule 12(b)(1)
constitutionally
protected
property
rights
by
Defendants’
interference with Plaintiffs’ use of their homes, by the transfer
of TIRZ 17 blight and flooding problems to Plaintiffs, by favoring
private commercial interests within TIRZ 17 over protecting
Plaintiffs’ homes, and by failing to build flood protection for
Plaintiffs.
-7-
Rule 12(b)(1) allows a party to move for dismissal of an
action
for
lack
of
subject
matter
jurisdiction.
The
party
asserting that subject matter exists, here Plaintiffs, must bear
the burden of proof by a preponderance of the evidence for a
12(b)(1) motion.
New Orleans & Gulf Coast Ry. Co. v. Barrois, 533
F.3d 321, 327 (5th Cir. 2008); Ramming v. United States, 281 F.3d
158, 161 (5th Cir. 2001).
In reviewing a motion under 12(b)(1) the court may consider
(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.
Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir.
1981).
A motion to dismiss for lack of subject matter jurisdiction
under Rule 12(b)(1) is characterized as either a “facial” attack,
i.e., the allegations in the complaint are insufficient to invoke
federal jurisdiction, or as a “factual” attack, i.e., the facts in
the
complaint
questioned.
supporting
subject
matter
jurisdiction
are
In re Blue Water Endeavors, LLC, Bankr. No. 08-10466,
Adv. No. 10-1015, 2011 WL 52525, *3 (E.D. Tex. Jan. 6, 2011),
citing Rodriguez v. Texas Comm’n of Arts, 992 F. Supp. 876, 878-79
(N.D. Tex. 1998), aff’d, 199 F.3d 279 (5th Cir. 2000).
A facial
attack happens when a defendant files a Rule 12(b)(1) motion
without accompanying evidence.
521, 523 (5th Cir. 1981).
Paterson v. Weinberger, 644 F.2d
In a facial attack, allegations in the
-8-
complaint are taken as true.
Blue Water,
2011 WL 52525 at *3,
citing Saraw Partnership v. United States, 67 F.3d 567, 569 (5th
Cir. 1995).
If it is a factual attack, as is the case here, the Court may
consider any evidence (affidavits, testimony, documents, etc.)
submitted
by
the
parties
that
is
relevant
to
the
issue
of
jurisdiction. Id., citing Irwin v. Veterans Admin., 874 F.2d 1092,
1096 (5th Cir. 1989).
A defendant making a factual attack on a
complaint may provide supporting affidavits, testimony or other
admissible evidence.
Patterson v. Weinberger, 644 F.3d 521, 523
(5th Cir. 1981). The plaintiff, to satisfy its burden of proof, may
also submit evidence to show by a preponderance of the evidence
that
subject
matter
jurisdiction
exists.
Id.
The
court’s
consideration of such matters outside the pleadings does not
convert the motion to one for summary judgment under Rule 56(c).
Robinson v. Paulson, H-06-4083, 2008 WL 4692392 at *10 (S.D. Tex.
Oct. 28, 2008), citing Garcia, 104 F.3d at 1261.
“Unlike in a
facial attack where jurisdiction is determined upon the basis of
allegations of the complaint, accepted as true[,] when a factual
attack
is
made
truthfulness
upon
attaches
federal
to
jurisdiction,
the
no
plaintiffs’
presumption
of
jurisdictional
allegations, and the court is free to weigh the evidence and
satisfy itself as to the existence of its power to hear the case.
In a factual attack, the plaintiffs have the burden of proving that
federal jurisdiction does in fact exist.” Evans v. Tubbe, 657 F.2d
-9-
661, 663 (5th Cir. 1981).
In resolving a factual attack on subject
matter jurisdiction under Rule 12(b)(1), the district court, which
does not address the merits of the suit,6 has significant authority
“‘to weigh the evidence and satisfy itself as to the existence of
its power to hear the case.’”
Robinson v. Paulson, No. H-06-4083,
2008 WL 4692392, *10 (S.D. Tex. Oct. 22, 2008), quoting Garcia v.
Copenhaver, Bell & Assocs., 104 F.3d 1256, 1261 (11th Cir. 1997),
and citing Clark v. Tarrant County, 798 F.2d 736, 741 (5th Cir.
1986).
A court may sua sponte raise a Rule 12(b)(1) motion to dismiss
for lack of subject matter jurisdiction at any time.
Westland Oil
Development Corp. v. Summit Transp. Co., 481 F. Supp. 15 (S.D. Tex.
1979), aff’d, 614 F.2d 768 (1980).
See also Kidd v. Southwest
Airlines Co., 891 F.2d 540, 545 (5th Cir. 1990)(“[F]ederal courts
6
As the court explained in Taylor v. Dam, 244 F. Supp. 2d
747, 753 (S.D. Tex. 2003),
It is well settled that “a district court has broader
power to decide its own right to hear the case than it
has when the merits of the case are reached.”
[Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir.),
cert. denied, 454 U.S. 897 (1981).]
“Jurisdictional
issues are for the court--not the jury--to decide,
whether they hinge on legal or factual determinations.
Id. To determine whether jurisdiction exists, the court
will generally resolve any factual disputes from the
pleadings and the affidavits submitted by the parties.
See Espinoza v. Missouri Pac. R.R. Co., 754 F.2d 1247,
1248 n.1 (5th Cir. 1985). The court may also conduct an
evidentiary hearing and “may hear conflicting written and
oral evidence and decide for itself the factual issues
which determine jurisdiction.” Williamson, 645 F.2d at
413; see Menchaca v. Chrysler Credit Corp.,613 F.2d 507,
511-12 (5th Cir.), cert. denied, 449 U.S. 953 . . .
(1980).
-10-
must address jurisdictional questions sua sponte when the parties’
briefs do not bring the issue to the court’s attention.”).
The
Court may find lack of subject matter jurisdiction on any of the
following three bases:
with
undisputed
(1) the complaint; (2) the complaint along
facts
evidenced
in
the
record;
and
(3)
the
complaint along with undisputed facts and the court’s resolution of
disputed facts.
Barrera-Montenegro v. United States, 74 F.3d 657,
659 (5th Cir. 1996).
The Court’s dismissal of a case for lack of
subject matter jurisdiction is not a judgment on the merits and
does not preclude the plaintiff from pursuing his claim in a court
that properly has jurisdiction. Hitt v. City of Pasadena, 561 F.2d
606, 608 (5th Cir. 1977).
Rule 12(b)(6)
When a district court reviews a motion to dismiss pursuant 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).
plaintiff’s
legal
conclusions
are
not
entitled
to
the
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.”), 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).
-11-
“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
requires
‘grounds’
more
than
of
his
labels
and
conclusions, and a formulaic recitation of the elements of a cause
of action will not do . . . .”
Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555 (2007)(citations omitted). “Factual allegations must
be enough to raise a right to relief above the speculative level.”
Id. at 1965, citing 5 C. Wright & A. Miller, Federal Practice 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), quoting In re Katrina
Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007). “‘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
-12-
v. Iqbal, 556 U.S. 662, 678 (2009).
The plausibility standard is
not akin to a “probability requirement,” but asks for more than a
“possibility that a defendant has acted unlawfully.”
U.S. at 556.
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. 662, 679 (2009), 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). Iqbal, 556
U.S. at 678.
The plaintiff must plead specific facts, not merely
conclusory allegations, to avoid dismissal.
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).
Dismissal under Rule 12(b)(6) is proper not only where the
plaintiff fails to plead sufficient facts to support a cognizable
legal theory, but also where the plaintiff fails to allege a
-13-
cognizable legal theory.
Kjellvander v. Citicorp, 156 F.R.D. 138,
140 (S.D. Tex. 1994), citing Garrett v. Commonwealth Mortgage
Corp., 938 F.2d 591, 594 (5th Cir. 1991).
“A complaint lacks an
‘arguable basis in law’ if it is based on an indisputably meritless
legal theory’ or a violation of a legal interest that does not
exist.”
Ross v. State of Texas, Civ. A. No. H-10-2008, 2011 WL
5978029, at *8 (S.D. Tex. Nov. 29, 2011).
“Rule 12(b) is not a procedure for resolving contests about
the facts or the merits of a case.”
Gallentine v. Housing
Authority of City of Port Arthur, Tex., 919 F. Supp. 2d 787, 794
(E.D. Tex. Jan. 22, 2012), citing 5A Charles A. Wright & Arthur R.
Miller, Federal Practice and Procedure:
Civil 2d § 1356, at 294
(1990).
As noted, on a Rule 12(b)(6) review, although generally the
court may not look beyond the pleadings, the Court may examine the
complaint, documents attached to the complaint, and documents
attached to the motion to dismiss to which the complaint refers and
which are central to the plaintiff’s claim(s), as well as matters
of public record.
Lone Star Fund V (U.S.), L.P. v. Barclays Bank
PLC, 594 F.3d 383, 387 (5th Cir. 2010), citing Collins, 224 F.3d at
498-99; Cinel v. Connick, 15 F.3d 1338, 1341, 1343 n.6 (5th Cir.
1994).
See also United States ex rel. Willard v. Humana Health
Plan of Tex., Inc., 336 F.3d 375, 379 (5th Cir. 2003)(“the court may
consider . . . matters of which judicial notice may be taken”).
Taking judicial notice of public records directly relevant to the
-14-
issue in dispute is proper on a Rule 12(b)(6) review and does not
transform the motion into one for summary judgment.
Stryker Corp., 631 F.3d 777, 780 (5th Cir. 2011).
Funk v.
“A judicially
noticed fact must be one not subject to reasonable dispute in that
it
is
either
(1)
generally
known
within
the
territorial
jurisdiction of the trial court or (2) capable of accurate and
ready determination by resort to sources whose accuracy cannot
reasonably be questioned.”
Fed. R. Evid. 201(b).
“‘[D]ocuments that a defendant attaches to its motion to
dismiss are considered part of the pleadings if they are referred
to in the plaintiff’s complaint and are central to [its] claim.’”
Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498-99 (5th
Cir. 2000), quoting Venture Assocs. Corp. v. Zenith Data Sys.
Corp., 987 F.2d 429, 431 (7th Cir. 1993).
By such attachments the
defendant simply provides additional notice of the basis of the
suit to the plaintiff and aids the Court in determining whether a
claim has been stated.
Id. at 499.
The attachments may also
provide the context from which any quotation or reference in the
motion is drawn to aid the court in correctly construing that
quotation or reference.
In re Enron Corp. Securities, Derivative
& “ERISA” Litig., No. H-04-0087, 2005 WL 3504860, at 11 n.20 (S.D.
Tex. Dec. 22, 2005). “Where the allegations in the complaint are
contradicted by facts established by documents attached as exhibits
to
the
complaint,
allegations.”
the
court
may
properly
disregard
the
Martinez v. Reno, No. 3:97-CV-0813-P, 1997 WL
-15-
786250, at *2 (N.D. Tex. Dec. 15, 1997), citing Nishimatsu Const.
Co. v. Houston Nat’l Bank, 515 F.2d 1200, 1206 (5th Cir. 1975).
When conclusory allegations and unwarranted deductions of fact are
contradicted by facts disclosed in the appended exhibit, which is
treated as part of the complaint, the allegations are not admitted
as true.
Carter v. Target Corp., 541 Fed. Appx. 413, 417 (5th Cir.
Oct. 4, 2013), citing Associated Builders, Inc. v. Alabama Power
Co., 505 F.2d 97, 100 (5th Cir. 1974).
Rule 12(e) Motion for More Definite Statement
Rule 12(e) states, “A party may move for a more definite
statement of a pleading to which a responsive pleading is allowed
but which is so vague or ambiguous that the party cannot reasonably
prepare a response.” Such motions are not favored and are granted
sparingly. Mitchell v. E-Z Way Towers, Inc., 269 F.2d 126, 132 (5th
Cir. 1959); Conceal City, LLC v. Looper Law Enforcement, LLC, 917
F. Supp. 2d 611, 621 (N.D. Tex. 2013).
The motion must be made
prior to filing a responsive pleading and “must point out the
defects complained of and the details desired.”
Rule 12(e).
A
court should only grant a motion for more definite statement when
the
complaint
is
“so
excessively
vague
and
ambiguous
to
be
unintelligible and as to prejudice the defendant seriously in
attempting to answer it.”
Phillips v. ABB Combustion Eng’g, Inc.,
Civ. A. No. 13-594, 2012 WL 3155224, at *2 (E.D. La. June 19,
2013).
A motion for more definite statement should not be used as
a substitute for discovery; it should be used as a remedy for
-16-
unintelligible pleading, not for correcting a lack of detail.
Davenport v. Rodriguez, 147 F. Supp. 2d 630, 639 (S.D. Tex. 2001).
The court has considerable discretion in deciding whether to grant
such a motion.
Ditcharo v. United Parcel Service, Inc., 376 Fed.
Appx. 432, 440 n.9 (5th Cir. 2010), citing Old Time Enterprises,
Inc. v. International Coffee Corp., 862 F.2d 1213, 1217 (5th Cir.
1989).
The Court finds that none of pleadings is unintelligible here.
If anything they are to obtain more detail and obtain discovery.
There have been no objections to submissions.
The exchange of
information in responses, replies and the surreply have provided
more detail that the Court has used in ruling on the motions.
Rule 15(a)(2)
Once a party has amended its pleading, it “may amend its
pleading only with the opposing party’s written consent or the
court’s leave.
requires.”
The court should freely give leave when justice so
Fed. R. Civ. P. 15(a).
Applicable Law
Eleventh Amendment7 Immunity
7
The Eleventh Amendment states, “The Judicial power of the
United States shall not be construed to extend to any suit in law
or equity, commenced or prosecuted against one of the United States
by Citizens of another State, or by Citizens or Subjects of any
Foreign State.”
The Supreme Court has long “understood the
Eleventh Amendment to stand not so much for what it says, but for
the supposition . . .
which it confirms.” Seminole Tribe of
Florida v. Florida, 517 U.S. 44, 54 (1996). It presupposes that
“each State is a sovereign entity in our federal system” and that
“‘it is inherent in the nature of sovereignty not to be amenable to
the suit of an individual without its consent.’” Id., quoting Hans
v. Louisiana, 134 U.S. 1, 10 (1890). Moreover for over a century
-17-
A claim of Eleventh Amendment immunity is a jurisdictional bar
and must be addressed because, if meritorious, it deprives the
court of subject matter jurisdiction over the suit. Crane v. State
of Texas, 759 F.2d 412, 415 (5th Cir. 1985), amended on other
grounds on denial of rehearing, 766 F.2d 193 (5th Cir. 1985), cert.
denied, 474 U.S. 1020 (1985).
“The Eleventh Amendment bars an individual from suing a state
in federal court unless the state consents to suit or Congress has
clearly and validly abrogated the state’s sovereign immunity.”
Perez v. Region 20 Educ. Expense Bd., 307 F.3d 318, 326 (5th Cir.
2002), citing U.S. CONST. amend. XI; Coll. Sav. Bank v. Fla.
Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 670 (1990).
That consent must be clear and unequivocal. Pennhurst State School
& Hospital v. Halderman, 465 U.S. 88, 99 (1984). Although Congress
has the power under the commerce cause to abrogate Eleventh
Amendment
immunity
with
regard
to
rights
protected
Fourteenth Amendment, it has not often done so.
by
the
See Quern v.
Jordan, 440 U.S. 332, 342 (1979)(holding that 42 U.S.C. § 1983 does
not override the States’ Eleventh Amendment immunity.); Fitzpatrick
v. Bitzer, 427 U.S. 445, 456 (1976)(the Fourteenth Amendment grants
Congress the power to subject states to suit in federal court and
set aside the immunity bar of the Eleventh Amendment; “the Eleventh
Amendment,
and
the
principle
of
state
sovereignty
which
it
the Supreme Court has ruled that “federal jurisdiction over suits
against unconsenting States ‘was not contemplated by the
Constitution when establishing the judicial power of the United
States.” Id., citing id. at 15.
-18-
embodies, are necessarily limited by the enforcement provisions of
§ 5 of the Fourteenth Amendment.”).8
The range of the Eleventh Amendment is not limited to lawsuits
naming a state as a defendant and party of record; and often a suit
will be against a political subdivision, state instrumentalities,
and state agencies.
13 Wright & Miller et al., Federal Practice &
Proc. Juris § 3524.2 (Apr. 2017 update).
Under the Eleventh
Amendment,
[of
not
all
political
subdivisions
a
state]
automatically immunized when the state is immunized.”
Bishop, 238 F.3d 586, 589 (5th Cir. 2000).
court
must
determine
whether
that
are
Evans v.
The federal district
entity
or
individual
is
considered to be an “arm of the state” entitled to the state’s
immunity by examining “the essential nature and effect of the
proceeding.”
Ex parte Ayers, 123 U.S. 443, 490 (1887); Ex parte
Young, 209 U.S. 123, 151 (1906); Ford Motor Co. v. Dep’t of
Treasury of State of Indiana, 323 U.S. 459, 463 (1945).
In
addition in 1994 the Supreme Court held that “the impetus for the
Eleventh Amendment” was “the prevention of federal-court judgments
that must be paid out of a State’s treasury.”
Hess v. Port
Authority Trans-Hudson Corp., 513 U.S. 30. 404 (1994), citing
Fletcher, A Historical Interpretation of the Eleventh Amendment, 35
Stanford L. Rev. 1033, 1129 (1993).
The Hess court observed that
“Courts of Appeals have recognized the vulnerability of the State’s
8
For example Title VII and the ADEA were passed by Congress
pursuant to its powers under section 5 of the Fourteenth Amendment
and abrogated the states’ Eleventh Amendment immunity as to those
statutes.
-19-
purse
as
the
most
salient
factor
in
Eleventh
Amendment
determinations.” Id., citing inter alia Baxter v. Vigo Cty. School
Corp., 26 F.3d 728, 732-33 (7th Cir. 1994)(most significant factor
is whether the state is the real, substantial party in interest
because it seeks to impose a liability that must be paid from
public funds in the state treasury); Regents of the University of
California v. Doe, 519 U.S. 425, 903-04 (1997)(“[When the action is
in essence one for the recovery of money from the state, the state
is the real, substantial party in interest and is entitled to
invoke its sovereign immunity from suit even though individual
officials are nominal defendants.); Hutsell v. Sayre, 5 F.3d 996,
999 (6th Cir. 1993)(“The most important factor . . . is whether any
monetary judgment would be paid out of the state treasury.”), cert.
denied, 510 U.S. 1119 (1994); and Hudson v. City of New Orleans,
174 F.3d 677, 682 (5th Cir. 1999), cert. denied, 528 U.S. 1004
(1999)(holding that although Texas district attorneys were created
by the state constitution and were thus in some ways officers of
the state, district attorney’s office was not entitled to Eleventh
Amendment immunity because the office was funded by the county and
thus a judgment against the district attorney in his official
capacity would expend itself on the county’s treasury, the powers
of the district attorneys were limited to the county, the state
could
not
oversee
prosecutorial
decisions,
and
the
district
attorneys were elected by voters of the county). In 2002, the high
court further opined, “The preeminent purpose of state sovereign
immunity is to accord States the dignity that is consistent with
-20-
their status as sovereign entities.”
Thus its two purposes are to
protect the State’s treasury and its dignity.
The Fifth Circuit applies a six-factor test to determine
whether an entity is entitled to Eleventh Amendment immunity as an
arm of the state:
(1) whether the damage award ultimately comes
out of the State’s treasury; (2) whether state statutes and case
law consider the agency to be an arm of the state; (3) whether the
entity is concerned with local or statewide problems; (4) the
degree of authority independent from the state; (5) whether the
entity can sue and be sued in its own name; and (6) whether the
entity has the right to hold and use property.
Clark v. Tarrant
County, Texas, 798 F.2d 736, 744 (5th Cir. 1986); Correa v. The City
of Bay City,, 981 F. Supp. 477, 478-79 (S.D. Tex. 1997).
Generally counties, municipalities, municipal agencies, and
officers of them are determined not to be arms of the state and not
entitled to Eleventh Amendment immunity. In Pennhurst State School
& Hospital v. Halderman, 465 U.S. 89, 123 n.34 (1984), the Supreme
Court concluded that “the Eleventh Amendment does not apply to
counties and similar municipal corporations.”
See also Lake
Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U.S.
391 (1979)(We have “consistently refused to construe the [Eleventh]
Amendment to afford protection to political subdivisions such as .
. . municipalities, even though such entities exercise a ‘slice of
state power.’”); Monell, 436 U.S. at 690 n.54; Owen v. City of
-21-
Independence, 445 U.S. 622, 638 (Under federal law “there is no
tradition of immunity for municipal corporations.”)9
Because a state’s Eleventh Amendment immunity extends to any
state agency or entity deemed to be an “alter ego” or “arm” of the
state, a plaintiff does not have to name the state as a party in a
suit.
Id., citing Vogt v. Bd. of Commissioners, 294 F.3d 684, 688-
89 (5th Cir. 2002).
42 U.S.C. § 1983
Section 1983 does not create substantive rights but is a
procedural rule and offers a remedy providing a private cause of
action to redress a violation of federal law; there must be an
underlying federal constitutional or federal statutory violation as
a predicate to liability under the statute.
Johnston v. Harris
County Flood Control Dist., 869 F.2d 1565, 1574 (5th Cir. 1989).
To state a claim for a violation of 42 U.S.C. § 1983, a plaintiff
must establish a deprivation of a right secured by the United
States Constitution or other federal laws by a person acting under
color of state law.
Albright v. Oliver, 510 U.S. 266, 271 (1994).
The main purpose of the Civil Rights Act was “to provide protection
to those persons wronged by the ‘’[m]isuse of power, possessed by
virtue of state law and made possible only because the wrongdoer is
clothed with the authority of state law.’‘”
Owen, 445 U.S. at 650,
citing Monroe v. Pape, 365 U.S. 167 (1961).
9
State laws providing immunity from suit do not control the
application of federal law. Monell, 436 U.S. at 695 n.59.
-22-
“In Texas, sovereign immunity deprives a trial court of
subject matter jurisdiction for lawsuits in which governmental
units have been sued unless the state consents to suit against such
entities.
University of Texas Medical Branch at Galveston v. Kai
Hui Qi, 402 S.W. 3d 374, 380 (Tex. App.--Houston [14th Dist.] 2013),
citing Texas Dept. Of Parks and Wildlife v. Miranda, 133 S.W. 3d
217, 224 (Tex. 2004). The Texas Tort Claims Act provides a limited
waiver of sovereign immunity, from both suit and from liability.
Miranda, 133 S.W. 3d at 224, citing Tex. Civ. Prac. & Rem. Code §§
101.001-.109.
Section 101.021 of the Act states,
A governmental unit in the state is liable for:
(1) property damage, personal injury, and death
proximately caused by the wrongful act or omission or the
negligence of an employee acting within his scope of
employment if
(A) the property damage, personal injury, or death
arises from the operation or use of a motor-driven
vehicle or motor-driven equipment; and
(B) the employee would be personally liable to the
claimant according to Texas law; and
(2) personal injury and death so caused by a condition or
use of tangible or real property if the governmental unit
would, were it a private person, be liable to the
claimant according to Texas law.
“[T]he government may not be sued in tort unless a separate,
viable tort fits within the limited waiver provided by the [Texas
Tort Claims] Act.”
Rodriguez v. Christus Spohn Health Sys. Corp.,
628 F.3d 731, 736 (S.D. Tex. 2010).
The Texas Tort Claims Act does
not include a waiver for “legislative functions of a government
unit” and/or a City’s discretionary powers. Tex. Civ. Prac. & Rem.
Code §§ 101.052 and 101.056. Nor has the City “waived its immunity
-23-
by consenting to suit in federal court in the Texas Tort Claims Act
for § 1983 claims.”
4152, 2013 WL
Bishop v. City of Galveston, Tex., no. H-11-
960531, at *9 (S.D. Tex. Mar. 12, 2013), citing
Quern v. Jordan, 440 U.S. 332, 340-45 (1979). Nor does the Act
waive sovereign immunity for claims “arising out of assault,
battery, false imprisonment, or any other intentional tort.” Texas
Dep’t of Pub. Safety v. Petta, 44 S.W. 3d 575, 580 (Tex. 2001);
Tex. Civ. Prac. & Rem. Code § 101.057(2).
“The Congress which passed the Civil Rights Act of 1871 [the
predecessor to § 1983 enacted pursuant to § 5 of the Fourteenth
Amendment], . . .
did
intend municipalities and other local
governments to be included among those persons to whom § 1983
applies.”
Hutto v. Finney,
437 U.S. 678, 702 (1979), citing
Monell v. Dept. of Soc. Servs. of City of New York, 436 U.S. 658,
665, 690 (1978)(holding that municipalities are “persons” to whom
the Civil Rights Act of 1871 applies). Generally municipalities or
local government units are not liable for the constitutional torts
of their employees unless those employees act pursuant to an
official action or with official approval. Monell, 436 U.S. at 663
n.7.
“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.”
691.
one
Id. at
A municipality may be liable under § 1983 if the execution of
of
its
customs
or
constitutional rights.
policies
deprives
Id. at 690-91.
-24-
a
plaintiff
of
his
A § 1983 plaintiff must plead specific facts demonstrating a
constitutional deprivation and may not merely rest on conclusory
allegations.
Schultea v. Wood, 47 F.3d 1427, 1433 (5th Cir. 1995).
Moreover, because immunity of a municipal corporation from
punitive damages was well established at the time § 1983 was
enacted and there was no evidence that Congress intended to abolish
that immunity, today punitive damages are not recoverable against
a municipality in a § 1983 lawsuit absent express authorization by
a statute.
County of Newport v. Fact Concerts, 453 U.S. 247, 270-
71 (1981); Webster v. City of Houston, 689 F.2d 1229, 1234-37 (5th
Cir. 1982)(tracing legislative history of evolving § 1983).
“[T]he scope of a municipality’s immunity from liability under
§ 1983 is essentially one of statutory construction.” Owen v. City
of Independence, Mo., 445 U.S. 622, 635 (1980).
“‘By its terms, §
1983 ‘creates a species of tort liability that on its face admits
of no immunities.’”
(1976).
Id., quoting Imbler v. Pachtman, 424 U.S. 409
“Its language is absolute and unqualified; no mention is
made of any privileges, immunities, or defenses.
Instead the
statute states that it “imposes liability on ‘every person’ who,
under color of state law or custom, ‘subjects, or causes to be
subjected, any citizen of the United States to the deprivation of
any rights, privileges, or immunities secured by the Constitution
and laws.’”
Id., quoting § 1983.
Municipalities do not have
immunity from suit under § 1983 flowing from its constitutional
violations–-neither absolute nor qualified. Owen, 445 U.S. at 637;
Leatherman
v.
Tarrant
County
-25-
Narcotics
Intelligence
and
Coordination Unit, 507 U.S. 163, 166-67 (1993).
Furthermore, a
“municipality may not assert the good faith of its officers or
agents as a defense to liability under § 1983.”
Owen v. City of
Independents, 445 U.S. 622, 638 (1980).
To state a claim for municipal liability under Section 1983,
however, generally a plaintiff must identify (a) a policy maker,
(b) an official policy, and (c) a violation of constitutional
rights whose “moving force” is the policy or custom. Piotrowski v.
City of Houston (“Piotrowski II”), 237 F.3d 567, 578 (5th Cir.
2001), citing Monell, 436 U.S. at 694.
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 policymaking 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).
“[N]either a State nor its officials acting in their official
capacities are ‘persons’ under 1983.”
State Police, 491 U.S. 58, 71 (1989).
Will v. Michigan Dept. of
“An action by a citizen
against a state official in his official capacity is not a suit
against the official but rather is a suit against the official’s
office,” is “no different from a suit against the State itself,”
and is barred by the Eleventh Amendment, subject only to the
limited exception permitted by Ex Parte Young, 209 U.S. 123 . . .
(1908)(action seeking prospective injunctive relief against state
-26-
officer permissible against ongoing violations of federal law).10
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
policymakers”)[,
cert.
denied,
131
S.
Ct.
3059
not
(2011)].
“Allegations of an isolated incident are not sufficient to show the
existence of a custom or policy.”
Fraire v. City of Arlington, 957
F.2d 1268, 1278 (5th Cir. 1992). “The unconstitutional conduct must
be directly attributable to the municipality through some sort of
official action or imprimatur; isolated unconstitutional actions by
municipal employees will almost never trigger liability.”
10
Id.
Although the language of 1983 is broad and expressly denies
incorporation of common-law immunities, in some instances the
Supreme Court “has found that a tradition of immunity was so firmly
rooted in the common law and was supported by such strong policy
reasons that ‘Congress would have specifically so provided had it
wished to abolish the doctrine.’” Owen, 445 U.S. at 637-38 (“Where
the immunity claimed by a defendant was well established at common
law at the time § 1983 was enacted, and where its rationale was
compatible with the purposes of the Civil Rights Act, we have
construed the statute to incorporate that immunity. But there is
no tradition of immunity for municipal corporations, and neither
history nor policy support a construction of § 1983 that would
justify
the
qualified
immunity
accorded
the
City
of
Independence.”).
Examples of such immunity include absolute
judicial immunity from liability for damages from acts committed
within their judicial jurisdiction, local police officers’
enjoyment of a good faith and probable cause defense to § 1983
actions, qualified immunity for prison officials and officers,
absolute immunity for prosecutors in commencing and presenting the
States case, etc. Id.
-27-
Causes of Action with § 1983:
Fourth Amendment
The Fourth Amendment, which is made applicable to the States
by the Fourteenth Amendment, provides that the “right of the people
to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated. . . .”
A seizure of property takes place when “there is some meaningful
interference with an individual’s possessory interests in that
property”
by
a
government
agent
or
official.
Severance
v.
Patterson, 566 F.3d 490, 501 (5th Cir. 2009); U.S. v. Jacobson, 466
U.S. 109, 113 (1984), quoted by Soldal v. Cook County, Ill., 506
U.S. 61 (1984).
Fourteenth Amendment
The Fourteenth Amendment (“no state shall deprive any person
of life, liberty, or property, without due process of law”) also
forbids the state to deprive a person of property without due
process.
U.S. Const. amend. XIV, § 1.
procedural due process components.
It has both substantive and
County of Sacramento v. Lewis,
523 U.S. 833, 840 (1998).
Substantive
due
process
prohibits
‘arbitrary,
wrongful
government action regardless of the fairness of the procedures used
to implement them.”
Zinermon v. Burch, 494 U.S. 113, 125 (1990);
Lewis v. Univ. of Texas, 665 F.3d 625, 630-31 (5th Cir, 2011).
proper
test
for
substantive
“rational basis” test:
due
process
is
the
The
deferential
is the Defendant government’s action
rationally related to a legitimate governmental interest? FM Prop.
-28-
Operating Co. v. City of Austin, 93 F.3d 167, 174 (5th Cir. 1996).
Whether a rational relation exists is a question of law for the
court.
Simi, 236 F.3d at 249.
“‘A violation of substantive due
process, for example, occurs only when the government deprives
someone of liberty or property, . . . only when the government
works a deprivation of a constitutionally protected interest.’”
Id., quoting Brennan v. Stewart, 834 F. 2d 1248, 1257 (5th Cir.
1988); see also Dabbles v. Zoning Bd. Of Adjustment, 53 F.3d 592,
601 (3d Cir. 1995)(“[I]n situations where the governmental decision
in question impinges upon a landowner’s use and enjoyment of
property, a land-owning plaintiff states a substantive due process
claim where he or she alleges that the decision limiting the
intended land use was arbitrary or capricious.”).
Substantive due
process analysis is appropriate only in cases in which government
arbitrarily
abuses
its
power
constitutional protected rights.”
to
deprive
individuals
of
Id.
Under the procedural component of the Due Process Clause of
the Fourteenth Amendment the states must provide constitutionally
adequate procedures before depriving an individual of life, liberty
of property. Plaintiffs here must first show they have a protected
property interest and then that government action resulted in a
deprivation of that interest and that they failed to receive all
process due to them.
Jabary v. City of Allen, 547 Fed. Appx. 600,
606 (5th Cir. Nov. 25, 2013), citing Gentilello v. Rage, 627 F.3d
540, 544 (5th Cir. 2010).
It is not the deprivation of their
property rights, but the deprivation of their interest in that
-29-
property without due process of law that is unconstitutional. Id.
“Due Process’ means an “opportunity to be heard at a meaningful
time”, i.e., “‘prior to the deprivation of the . . . property right
at issue,’” “in a meaningful manner.”
Id., citing Cleveland Board
of Educ. v. Loudermill, 470 U.S. 532, 542 (1985).
Texas Constitution, Article 1, Section 19
Article
1,
§
19,
also
called
the
“due
course
of
law”
provision, provides a cause of action for deprivation of property:
“No citizen of this State shall be deprived of life, liberty,
property,
privileges
or
immunities,
or
in
any
manner
disenfranchised, except by the due course of the law of the land.”
There is no implied private right of action for money damages under
Article 1, section 19.
See Ray v. Houston Indep. Sch. Dist., Civ.
A. No. H-10-312, 2010 WL 2545577, at *4 (S.D. Tex. June 21,
2010)(listing cases holding same).
The standard of review for
constitutional challenges on substantive due process grounds is the
same for both state and federal due process clauses: “‘If the laws
passed
are
seen
to
have
a
reasonable
relation
to
a
proper
legislative purpose and are neither arbitrary nor discriminatory,
the requirements of due process are satisfied.’”
Lucas v. U.S.,
757 S.W. 2d 687, 695 (Tex. 1988), quoting Nebbia v. New York, 291
U.S. 502, 537 (1933).
The due course of law provision, like the federal due process
clause, contains a procedural and a substantive component. Barshop
v. Medina County Underground Water Conservation Dist., 925 S.W. 2d
618, 632-33 (Tex. 1996), citing Texas Workers’ Compensation Com’n
-30-
v. Garcia, 893 S.W. 2d 504, 525 (Tex. 1995).
With a procedural due
process claim that a plaintiff is being deprived of a property
right, the government must afford an appropriate and meaningful
opportunity
to
be
heard
regarding
plaintiff’s property rights.
a
decision
affecting
the
Smith v. City of League City, 338
S.W. 3d 114, 127 (Tex. App.--Houston [14th Dist.] March 17, 2011).
See also Jabary, 547 Fed. Appx. at 606 (“Due process requires an
‘opportunity to be heard at a meaningful time and in a meaningful
manner.’
Generally a “‘meaningful time’ means prior to the
deprivation of the liberty or property right at issue.’”), citing
Matthew v. Eldridge, 424 U.S. 319, 333 (1976), and Bowlby v. City
of Aberdeen, Miss., 681 F.3d 215, 220 (5th Cir. 2012).
A number of
Texas courts have concluded that section 19 provides an identical
guarantee to its federal due process counterpart. Garcia, 893 S.W.
2d at 525 (citing cases).
A plaintiff states a substantive due process claim when he
alleges that a city took his private property for a private
purpose, not a public use.
Id. at 127-28.
The Fifth Circuit, in
John Corp. v. City of Houston, 214 F.3d 573, 582-83 (5th Cir. 2000),
rejected “a blanket rule [that] the Takings Clause11 subsumes any
11
Unlike a “takings” clause under both Texas and federal
Constitutions, which require the taker to provide “adequate
compensation” (damages) or the prior owner’s consent when he takes
it for public use, Plaintiffs are seeking equitable relief in this
suit. When property is held subject to the valid exercise of the
police power, the municipality is not required to compensate the
landowner for resulting losses. Trail Enterprises, Inc. v. City of
Houston, 957 S.W. 2d 625, 630 (Tex. App.--Houston [14th Dist.] 1997,
rev. denied), cert. denied, 525 U.S. 1070 (1999).
-31-
substantive
due
process
claim
relating
to
a
deprivation
of
property.”
“‘[G]overnment action comports with substantive due process if
the
action
interest.’”
is
rationally
related
to
a
legitimate
government
Hidden Oaks Ltd. v. City of Austin, 138 F.3d 1036,
1044 (5th Cir. 1998), quoting FM Properties Operating Co. v. City
of Austin, 93 F.3d 167, 174 (5th Cir. 1996).
rational relation exists is a question of law.
Whether such a
Id., citing id.
As
the Fifth Circuit held in Shelton v. City of College Station, 780
F.2d 476, 477 (5th Cir. 1986), the “decisions of state zoning boards
do not violate substantive due process unless the court finds no
‘’conceivable rational basis’‘ on which the board might have based
its decision.’”
Id., citing Shelton.
If the City’s action is
rationally related to the protection of the health and safety of
citizens, it is not actionable as a violation of the Fourteenth
Amendment.
Hidden Oaks, 138 F.3d at 1044.
Since the Fourteenth
Amendment to the federal Constitution was adopted, federal courts
cannot rightfully interfere with the valid exercise of the police
power to protect the lives, health, and property of citizens
because there is no taking.
Mugler v. Kansas, 123 U.S. 623, 661-62
(1887).
Nevertheless,
“[t]he
Supreme
Court’s
entire
‘regulatory
takings’ law is premised on the notion that a city’s exercise of
its police powers can go too far, and if it does, there has been a
taking.” John Corp. v. City of Houston, 214 D.3d 573, 578 (5th Cir.
2000), citing Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415
-32-
(1922).
A violation of the Takings Clause does not occur until
just compensation has been denied.
Id.
Continuing Violation
In National Railroad Passenger Corp. v. Morgan, 536 U.S. 101
(2002), to clarify differences between traditional, discrete claims
of discrimination and continuing violations under Title XII of the
Civil Rights Act of 1964, the Supreme Court distinguished discrete
acts (such as termination, failure to promote, refusal to hire,
denial of transfer, which are individually actionable, and acts
that are not, but that may in aggregation establish a hostile work
environment
claim.
Discrete
acts
of
discrimination
must
be
asserted within the applicable statute of limitations period (the
180- or 300-day period for filing a charge with the appropriate
state
agency,
the
Texas
Workforce
Commission,
or
the
EEOC,
respectively); if filed later, they are time barred, even if
related to subsequent acts that are timely raised.
Id. at 113.
“Each discriminatory [discrete] act starts a new clock for filing
charges alleging that act.”
Id.
“Claims alleging discrete acts
are not subject to continuing violations doctrine.”
Heath, 850
F.3d at 737.
In contrast, acts which are not discrete and individually
actionable and all acts constituting the claim are part of the same
unlawful practice and when aggregated, make out a racial or sexual
hostile work environment claim, which involves repeated conduct and
the cumulative effect of ongoing acts and can happen at any time,
as long as they are connected in a pattern of similar actions that
-33-
continues into the applicable limitations period.
Id. at 105.
In
addition the Court found an exception to the statute of limitations
in hostile work environment claims, which would not be barred “as
long as all acts which constitute the claim are part of the
unlawful practice and at least one act falls within the time
period.
Id. at 113.
“[C]onsideration of the entire scope of work
environment claim, including behavior alleged outside the statutory
time period, is permissible for purposes of assessing liability, so
long as any act contributing to that hostile work environment takes
place within the statutory time period.”
Id.
As the Third Circuit
characterized it, “a plaintiff’s hostile environment claim ‘is
based on the cumulative effect of a thousand cuts, rather than on
any particular action taken by the defendant,’ so ‘the filing clock
cannot begin running with the first act because at that point
plaintiff has no claim; nor can a claim expire as to the first act
because the full course of conduct is actionable infringement,’”
Heath v. Board of Supervisors for the Southern University and
Agricultural and Mechanical College, 850 F.3d 731, 737 (5th Cir.
2017), quoting O’Connor v. City of Newark, 440 F.3d 125, 128 (3d
Cir. 2006).
Morgan rejected views of the Fifth and Seventh Circuits that
“‘the plaintiff may not base a suit on individual acts that
occurred outside the statute of limitations unless it would have
been unreasonable to expect the plaintiff to sue before the statute
ran on such conduct.”
Heath, 850 F.3d at 737.
the “on notice” factor:
It also rejected
“the date on which a plaintiff becomes
-34-
aware that he or she has an actionable Title VII claim is of no
regard in the context
of determining the timeliness of a hostile
work environment claim.”
Id.
The Heath panel concluded the continuing violation doctrine
“applies with equal force” to § 1983 claims.
It opined that
Morgan’s ‘distinction between ‘continuing violations’ and ‘discrete
acts’ is not an artifact of Title VII, but rather a generic feature
of federal employment law.”
850 F.3d at 739-40.
See also Boswell
v. Claiborne Parish Det. Ctr., 629 Fed. Appx. 580, 583 (5th Cir.
2015)(finding that a denial of medical attention and medication for
Boswell’s hernia was part of a continuing violation based on “a
failure to provide needed and requested medical attention,” which
included an untreated cold that developed into bronchitis and
walking pneumonia).
As the Morgan court observed, 536 U.S. at 116
(citations omitted),
Hostile environment claims are different in kind from
discrete acts.
Their very nature involves repeated
conduct. The “unlawful employment practice” therefore
cannot be said to occur on any particular day. It occurs
over a series of days or perhaps years and, in direct
contrast to discrete acts, a single act of harassment may
not be actionable on its own. [The] “‘mere utterance of
an . . . epithet which engenders offensive feelings in
a[n] employee . . . does not sufficiently affect the
conditions of employment to implicate Title VII.” Such
claims are based on the cumulative effect of individual
acts.
The statute of limitations for § 1983 is derived from state
law, which, as noted, in Texas is two years, while accrual is
governed by federal common law.
-35-
Id. at 740.
“The continuing
violation doctrine is a federal common law doctrine governing
accrual.”
Id.
Mootness and Ripeness
Article
III
of
the
federal
Constitution
limits
the
jurisdiction of federal courts to live cases and controversies.
U.S. Const. art. III, § 2; United States Parole Comm’n v. Geraghty,
445
U.S.
388,
395
(1980).
This
actual
case-or-controversy
requirement gives rise to the justiciability doctrines of standing,
mootness, political question, and ripeness.
DaimlerChrysler Corp.
v. Cuno, 547 U.S. 332, 352 (2006).
In addition, the ripeness doctrine also rests on prudential
reasons for refusing to exercise jurisdiction.
Reno v. Catholic
Social Services, Inc., 509 U.S. 43, 71 (1993). The main purpose of
the ripeness doctrine is “to prevent the courts, through avoidance
of premature adjudication, from entangling themselves in abstract
disagreements,”
hypothetical.
to
dismiss
cases
that
are
abstract
and
Abbott Labs. v. Gardner, 387 U.S. 136, 148 (1967),
overruled on other grounds, Califano v. Sanders, 430 U.S. 99
(1977).
“Ripeness separates those matters that are premature
because the injury is speculative and may never occur from those
that are appropriate for judicial review.” United Transp. Union v.
Foster, 205 F.3d 851, 857 (5th Cir. 2000). “Ripeness is a necessary
component of subject matter jurisdiction, and a court lacks the
authority to adjudicate issues presented before they are not yet
justiciable.”
Goliad County, Texas v. Uranium Energy Corp., CIV.
A. NO. V-08-18, 2009 WL 1586688, at *5 (S.D. Tex. June 5, 2009).
-36-
“Since standing and ripeness are essential components of federal
subject-matter jurisdiction, the lack of either can be raised at
any time by a party or by the court.” Sample v. Morrison, 406 F.3d
310, 312 (5th Cir. 2005)(per
curiam).
“A case is generally ripe
if any remaining questions are purely legal ones; conversely, a
case is not ripe if further factual development is required.”
Id.
In accord, Greenwich Ins. Co. v. Capsco Industries, Inc., No.
1:14CV297-LG-JCG, 2014 WL 5025856, at *1 (S.D. Miss. Oct. 8, 2014).
“If
an
intervening
circumstance
deprives
the
plaintiff
of
a
‘personal stake in the outcome of the lawsuit,’ at any point during
litigation, the action can no longer proceed and must be dismissed
as moot.”
Genesis Healthcare Corp. v. Symczyk, 133 S. Ct. 1523,
1528 (Apr. 16. 2013), citing Lewis v. Continental Bank Corp., 494
U.S. 472, 477-78 (1990).
“Jurisdictional issues such as mootness
and ripeness are legal questions for which review is de novo.”
Lopez v. City of Houston, 617 F.3d 336, 339 (5th Cir. 2010).
That a claim that is “capable of repetition, yet evading
review” is an exception to the mootness doctrine and to satisfy it
a party must meet a two-prong test:
“‘(1) the challenged action
was in its duration too short to be fully litigated prior to its
cessation or expiration, and (2) there was a reasonable expectation
that the same complaining party would be subjected to the same
action again.’”
Lopez, 617 F.3d at 340, quoting Weinstein v.
Bradford, 423 U.S. 147, 149 (1975).
For the second prong, “‘the
party invoking jurisdiction must show a ‘demonstrated probability’
or
‘reasonable
expectation,’
-37-
not
merely
a
‘theoretical
possibility,’ that it will be subject to the same government
action.’” Id., citing Libertarian Party v. Dardenne, 595 F.3d 215,
217 (5th Cir. 2010).
City of Houston’s Motion to Dismiss under Rules 12(b)(1), 12(b)(6)
or for More Definite Statement under Rule 12(e) (#5)
The
dual
nature,
one
part
governmental
and
the
other
proprietary, of a municipality (municipal corporation) at common law
gives rise to a particular kind of protection for the municipality
from tort liability when it is acting in its governmental capacity.
Owen, 445 U.S. at 644-45.
As explained in Owen, id.,
On the one hand, the municipality was a corporate body,
capable of performing the same “proprietary” functions as
any private corporation, and liable for its torts in the
same manner and to the same extent as well. On the other
hand, the municipality was an arm of the State, when
acting in the “governmental” or “public” capacity, it
shared the immunity traditionally accorded the sovereign.
The City of Houston first asserts that the state tort claims
against it in this suit,
which are all based on its performance of
governmental functions,12 are barred by the City’s governmental
12
The common law distinction between governmental and
proprietary acts is key when determining whether the City has
immunity from tort actions. As explained in JAMRO Ltd. v. City of
San Antonio, No. 04-16-00307, 2017 WL 993473, at *3-4 (Tex. App.-San Antonio March 15, 2017)
In regard to governmental immunity, the Texas Supreme
Court “has distinguished between those acts performed as
a branch of the state and those acts performed in a
proprietary,
nongovernmental
capacity.”
Wasson
Interests, Ltd. v. City of Jacksonville, 489 S.W. 3d 427,
430 (Tex. 2016). A municipality is immune for acts done
as a branch of the state, referred to as governmental
functions.
Id. at 433.
Governmental functions are
“functions enjoined on a municipality by laws . . . to be
exercised by the municipality in the interest of the
-38-
general public.”
“[S]overeign immunity does not[, however,] imbue a city
with a derivative immunity when it performs proprietary
functions.” Wasson Interests, Ltd., 489 S.W. 3d at 439.
Proprietary functions are “functions that a municipality
may, in its discretion, perform in the interest of the
inhabitants of the municipality. See Tex. Civ. Prac. &
Rem Code Ann. § 101.0215(b). A city is not immune in
performing a proprietary function regardless of “whether
a city commits a tort or breaches a contract, so long as
in each situation the city acts of its own volition for
its own benefit and not as a branch of the state.”
Wasson Interests, Ltd., 489 S.W. 3d at 439. Therefore,
“the common law distinction between governmental and
proprietary acts--known as the proprietary-governmental
dichotomy--applies in the contract claims context just as
it does in the tort-claims context.” Id. . . .
Chapter 311 of the Texas Tax Code, also known as the Tax
Increment Financing Act, enjoins on the City the
authority to create investment Zones to promote
development or redevelopment of an area that would not
occur solely through private investment. Tex. Tax Code
Ann. §§ 311.001, et seq. (West 2015).
When the City
adopted the ordinance creating TIRZ 17 at issue in this
case, the ordinance contained express findings that the
TIRZ met the criteria for a reinvestment Zone contained
in section 311.005(a)(1) and 311.005(a)(2). . . . Section
311.008(e) of the Code expressly provides, “The
implementation of a project plan to alleviate a condition
described by Section 311.005(a)(1), (2), or (3) and to
promote development or redevelopment of a reinvestment
Zone in accordance with this chapter serves a public
purpose.” Id. at § 311.08(e). Accordingly, the City’s
actions with regard to the TIRZ met the definition of a
governmental function because Chapter 311 enjoined on the
City has the authority to create the TIRZ to serve a
public purpose in the interest of the general public.
See Tex. Civ. Prac. & Rem. Code Ann. §101.0215(a).
Also, the ordinance allowed the use of the [Tax Increment
Financing] for proposed public improvements for the
Project which the ordinance defined to include the design
and construction of storm water pollution prevention,
streets and approaches, alleys, drainage, water, sewer,
gas electric, street lights/signs, a bridge, street
trees, and open space/park improvements. The legislature
has defined government functions to include: (1) street
construction and design, (2) bridge construction and
-39-
immunity, so this Court lacks subject matter jurisdiction over the
claims against it.13
City of Friendswood v. Horn, 489 S.W. 3d 515,
521-22 (Tex. App.--Houston [1st Dist.] Feb. 11, 2016, no pet.),14
citing
Rusk
2012)(“When
State
Hosp.
performing
v.
Black,
governmental
392
S.W.
3d
functions,
88,
a
95
(Tex.
political
subdivision derives governmental immunity from the state’s sovereign
immunity.
principles:
Governmental immunity encompasses the following two
(1) immunity from suit, which precludes a lawsuit
against the entity unless the Legislature has expressly consented
maintenance; (3) sanitary and storm sewers; (4)
waterworks; (5) parks; (6) maintenance of traffic signals
and signs; and (7) water and sewer service. See id.
Therefore, the City’s actions with regard to the TIRZ
were directed at financing public improvements which meet
the definition of governmental functions . . .
and thus governmental immunity bars the Court from asserting
subject matter jurisdiction over these actions done as a branch of
the state.
13
“Immunity from suit implicates a court’s subject-matter
jurisdiction and [in state court] is properly asserted in a plea to
jurisdiction.” JAMRO Ltd. v. City of San Antonio, No. 04-16-00307,
2017 WL 993473, at *2 (Tex. App.--San Antonio March 15, 2017),
citing Houston Belt & Terminal Ry. Co. v. City of Houston, 487 S.W.
3d 154, 160 (Tex. 2016).
14
Plaintiffs disagree, insisting that all the cases cited by
the City are inapposite or misapplied. City of Friendswood involves
a contract claim, but states that governmental immunity is waived
for valid constitutional claims; Sefzik is an ultra vires action;
Harris County v. Kerr sought monetary damages, so block quotes
taken by the City out of context have little relevance to this
suit. None of the cases cited by the City, insist Plaintiffs, over
comes the long established rule of law that plaintiffs can sue
governmental entities for equitable or injunctive relief for
constitutional violations. See Reyes v. N. Tex. Tollway Auth., 830
F. Supp. 2d 194, 206-08 (N.D. Tex. 2011)(applying state
governmental immunity defense to state constitutional claim, but
not to federal constitutional claim). Plaintiffs insist there is
no applicable immunity doctrine to the instant suit.
-40-
to the suit, and (2) immunity from liability, which precludes
judgment
against
the
government
even
if
the
Legislature
expressly consented to suit (citations omitted).”).15
has
The City of
Houston is immune from liability because no statute or common law
authorizes the relief Plaintiffs seek.16
With regard to the
15
Plaintiffs contend that City’s argument that it is
undertaking “government functions” is irrelevant because the City
bases its argument on the assumption that Plaintiffs are asserting
tort claims and have analyzed tort claims under that statute (#5 at
p. 7). Plaintiffs maintain their complaint does not allege any
common law tort claims or any claims under the Texas Tort Claims
Act, but simply constitutional violations under federal and state
law. In City of Friendswood the plaintiff brought both tort claims
and a constitutional takings claim.
The court discussed
Friendswood’s performance of governmental functions, but limited
its analysis to the tort claims. 489 S.W. 3d at 522-24. It did
not apply this analysis to the constitutional claim because a city
“does not have immunity from a valid [constitutional] claim.” Id.
at 524.
Thus, insist Plaintiffs, the City’s argument is not
apposite.
16
Plaintiffs respond (#11 at p.10) that the City cannot rely
on governmental immunity because it does not apply.
City of
Friendswood involves a contract claim but acknowledges that
governmental immunity is waived for valid constitutional claims,
while Sefzik is an ultra vires action. The Texas Supreme Court has
held that “[b]ecause Texas has no provision comparable to § 1983,
. . . there is no implied right of action for damages arising under
the free speech and free assembly sections of the Texas
Constitution.” City of Beaumont v. Bouillion, 896 S.W. 2d 143, 147
(Tex. 1995). Texas courts have repeatedly ruled that a plaintiff
may sue a governmental entity for alleged violations of the Texas
Constitution if it seeks injunctive relief. In Bouillion, 896 S.W.
at 148-49, the Texas Supreme Court opined that there is no
authority indicating that at the time the Texas Constitution was
written, it was intended to provide an implied private right of
action for damages for the violation of constitutional rights.”
Id. at 148. Furthermore, “the text of the Texas Bill of Rights
cuts against an implied private right of action for the damages
sought because it explicitly announces the consequences of
unconstitutional laws.” [In response this Court would emphasize
that Plaintiffs have sued only for injunctive and declaratory
judgment, and not for monetary damages.]
The guarantees found in the Bill of Rights are excepted
from the general powers of government; the State has no
-41-
second doctrine of proprietary functions a municipality was held to
the standards of a private corporation:
(1) it was held liable for
its proprietary acts and for governmental functions regarding which
the State had withdrawn the municipality’s immunity by consenting
to suit; (2) the second doctrine provided immunity only for its
“discretionary” or “legislative” activities, but not for those that
were “ministerial in nature.
Owen, 445 U.S. at 644-45.
Section
power to commit acts contrary to the guarantees found in
the Bill of Rights. Tex. Const. art. 1 § 29 [“To guard
against transgressions of the high powers herein
delegated, we declare that everything in this ‘Bill of
Rights’ is excepted out of the general powers of
government and shall forever remain inviolate, and all
laws contrary thereto, or to the following provisions,
shall be void.”]. Section 29 has been interpreted as
follows; any provision of the Bill of Rights is selfexecuting to the extent that anything done in violation
of it is void.
Hemphill v. Watson, 60 Tex. 679, 681
(1884). When a law conflicts with rights guaranteed by
Article 1, the Constitution declares that such acts are
void because the Bill of Rights is a limit on State
power.
id.
The framers of the Texas Constitution
articulated what they intended to be the means of
remedying a constitutional violation.
The framers
intended that a law contrary to a constitutional
provision is void. . . .
Thus suits for equitable
remedies for a violation of constitutional rights are not
prohibited.
Id. at 148-49. See also City of Houston v. Downstream Envtl., LLC,
444 S.W. 3d 24, 38 (Tex. App.--Houston [1st Dist.] 2014)(holding
that governmental immunity is waived for a due course of law
claim.).
The waiver of immunity also applies to suits for
declaratory relief.
Bd. of Trustees of Galveston Wharves v.
O’Rourke, 405 S.W. 3d 228, 237 (Tex. App.--Houston [1st Dist.]
2013)(“Governmental immunity ‘does not shield a governmental entity
from a suit for declaratory relief based on alleged constitutional
violations.’”). Contrary to Defendants’ contentions, plaintiffs
can sue governmental entities for equitable or injunctive relief
for constitutional violations. Furthermore no authority applies
state governmental immunity to federal constitutional claims.
-42-
1983 was one of the statutes passed by Congress that abrogated a
municipality’s governmental immunity.
Id. at 645-48.
The City charges that here Plaintiffs are trying to shoehorn
what are actually tort claims17 into Section 1983 violations, but
they fail to plead facts to meet the requirements of such a cause
of action.18
Plaintiffs cloak what are actually tort claims under
17
Disagreeing with Plaintiffs, this Court observes that in City
of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 709
(1999), the Supreme Court opined that
there can be no doubt that claims brought pursuant to §
1983 sound in tort.
Just as common-law tort actions
provide redress for interference with protected personal
or property interests, § 1983 provides relief for
invasions of rights protected under federal law.
Recognizing the essential character of the statute,
“‘[w]e have repeatedly noted that 42 U.S.C. § 1983
creates a species of tort liability.’” Heck v. Humphrey,
512 U.S. 477, 4833 (1994), quoting Memphis Community
School Dist. v. Stachura, 477 U.S. 299, 305 (1986).
18
To state a claim for a violation of 42 U.S.C. § 1983, a
plaintiff must establish (1) a deprivation of a right secured by
the United States Constitution or federal law, (2) that occurred
under color of state law, and (3) was caused by a state actor.
Municipal liability under 42 U.S.C. § 1983 requires the plaintiff
to plead and prove three elements:
a policymaker, an official
policy, and a violation of constitutional rights whose “moving
force” is the policy or custom. Monell v. New York City Dept. of
Soc. Servs., 436 U.S. 658, 694 (1978). Plaintiffs have failed to
allege facts demonstrating an official policy or custom, a required
element of a section 1983 claim against a municipality. Monell,
436 U.S. at 694-95. “While an unconstitutional official policy
renders a municipality culpable under § 1983, even a facially
innocuous policy will support liability if it was promulgated with
deliberate indifference to the ‘known or obvious consequences’ that
constitutional violations would bring.” Piotrowski II, 237 F.3d at
579, citing Board of County Commissioners of Bryan County, Okla. v.
Brown, 520 U.S. 397, 407 (1997). Furthermore a municipality may be
liable for damages only when an official policy or governmental
custom of the municipality causes the deprivation or violation of
the plaintiff’s constitutional rights. City of Canton v. Harris,
489 U.S. 378, 385 (1989)(A governmental entity does not incur
liability under § 1983 unless there exists “a direct causal link
between the municipal policy or custom and the alleged
-43-
a deceptive construction of constitutional law.
Plaintiffs fail to
state a claim under 42 U.S.C. § 1983 because they do not state facts
that, if true, would demonstrate violations of their constitutional
rights sufficiently to overcome Houston’s governmental immunity, and
they
fail
to
allege
causation.
Claiming
that
Defendants’
governmental actions to maintain and improve drainage and reduce the
occasions and severity of Houston’s flooding during rain storms
violated Plaintiffs’ constitutional rights, Plaintiffs fail to
allege that Defendants took any action concerning Plaintiffs’ real
property or caused any particularized injury.
Instead they claim
that governmental action relating to other property, not owned by
Plaintiffs (two roads, two apartment complexes, and two commercial
developments), deprived Plaintiffs of substantive due process and
property rights under the Fourteenth Amendment and constituted a
government seizure of their property in violation of the Fourth
Amendment19 and their property rights in violation of Article I,
constitutional violation.”); Spiller v. City of Texas City Police
Dept., 130 F.3d 162, 167 (5th Cir. 1997).
Failure to allege a
causal connection between the state official’s wrongful act and his
deprivation of life, liberty or property is fatal to his 1983
claim.
Furthermore, merely negligent conduct by a government
official that causes an unintended loss will not implicate the Due
Process clause. Daniels v. Williams, 474 U.S. 327, 328 (1986).
Nor have Plaintiffs asserted facts giving rise to any federally
protected constitutional rights. The RAF does not claim it owns
any property or has sustained any injury and has failed to plead
facts showing it has associational standing for others.
Furthermore, Plaintiffs’ § 1983 claims are barred by the two-year
statute of limitations.
Thus Plaintiffs’ claims should be
dismissed under Rules 12(b)(1) and 12(b)(6).
19
The City notes that Plaintiffs fail to state facts
sufficient to state a Fourth Amendment claim, for which the
elements are “(a) a meaningful interference with [their] possessory
interests in [their] property, which is (b) unreasonable because
-44-
Section 19 of the Texas Constitution.
Plaintiffs fail to plead how
their constitutional rights were violated or to state any facts
supporting the constitutional violation claims.
Plaintiffs fail to make separate allegations of deprivation of
property rights in violation of the Texas Constitution, but only
conclusory statements of some of the elements of a constitutional
violation.
They assert no facts showing that the City’s drainage
and mobility conduct was not rationally related to furthering a
legitimate interest of Houston; instead they allege facts showing
that
Houston
is
engaged
in
regulatory
functions
that
are
legitimately undertaken by Houston for the welfare of its citizens.
Under Texas law, “[T]he government may not be sued in tort
unless a separate, viable tort fits within the limited waiver
provided by the [Texas Tort Claims] Act.”
Rodriguez v. Christus
Spohn Health Systems Corp., 628 F.3d 731, 736 (S.D. Tex. 2010).20
the interference is unjustified by state law or, if justified, then
uncompensated.” Severance v. Patterson, 566 F.3d 490, 502 (5th Cir.
2009), citing Presley v. City of Charlottesville, 464 F.3d 480,
487-88 (4th Cir. 2006); U.S. Const. amend. IV. Plaintiffs allege
no facts showing that the City interfered with Plaintiffs’
possessory interests nor that the alleged interference is
unjustified by state law. Road improvements near their homes do
not state a claim for interference with Plaintiffs’ possessory
interests; private development of a grocery store or the design of
a retention pool in other neighborhoods does not state a claim for
interference with Plaintiffs’ possessory interests; nor do drainage
improvements for apartment residents in the vicinity of
Plaintiffs’ homes.
20
Just as sovereign immunity usually bars a court’s subject
matter jurisdiction over a suit against a state unless it expressly
consents to suit, governmental immunity similarly protects
subdivisions of the State, including counties, cities, and school
districts. Powell v. Greenville Indep. Sch. Dist., No. 3:10-CV0545-L-BH, 2010 WL 3359620, at *2 (N.D. Tex. June 24, 2010). Thus
a political subdivision is not liable for the acts of its employees
-45-
The Texas Tort Claims Act does not waive immunity for claims like
Plaintiffs’ in this case because the actions complained of all fall
under the “legislative function of a governmental unit” and/or the
City’s discretionary powers.
101.052, 101.056 (2013).
Tex. Civ. Prac. & Rem. Code §§
Furthermore the City has not “waived its
immunity by consenting to suit in federal court in the Texas Tort
Claims Act for § 1983.”
Bishop v. City of Galveston, No. 11-4152,
2013 WL 960531, at *9 (S.D. Tex. Mar. 12, 2013), citing Quern v.
Jordan, 440 U.S. 332, 340-45 (1979); Ross v. Texas Educ. Agency, 409
Fed. Appx. 765, 768-69 (5th Cir. Feb. 1, 2011).
Without a precise
waiver defined by the Texas Legislature, immunity is not waived.
Tex. Dept. of Transp. v. Sefzik, 355 S.W. 3d 618, 622 n.3 (Tex.
2011).
Nor can Plaintiffs avoid the City’s governmental immunity from
suit
by
characterizing
declaratory judgment.
4:14-CV-1041-A,
2015
their
tort
allegations
as
a
suit
for
Burkett v. City of Haltom City, Texas, No.
WL
3988099,
at
*4
(N.D.
Tex.
June
30,
2015)(“Any claim in the nature of a tort may only be brought
pursuant to the Tort Claims Act. . . .
Nor can plaintiff avoid
unless the Texas Tort Claims Act waives its governmental immunity.
Id. The Texas Act “waives governmental immunity in three general
areas:
‘use of publicly owned vehicles, premises defects, and
injuries arising from conditions or use of property.’”
Id. ,
citing Brown v. Montgomery County Hosp. Dist., 905 S.W. 2d 481, 484
(Tex. App.--Beaumont 1995); see also Tex. Civ. Prac. & Rem. Code §
101.021. For school districts the waiver is even more restricted,
i.e., to tort claims arising out of the negligent use or operation
of motor vehicles.
Tex. Civ. Prac. & Rem. Code §§ 101.021,
101.051.
In addition governmental immunity is not waived for
intentional torts. Id.; see also Tex. Civ. Prac. & Rem. Code §
101.057 (Texas Tort Claims Act).
-46-
dismissal by couching her claims as a request for declaratory
judgment.”), citing City of Houston v. Williams, 216 S.W. 3d 827,
828-29 (Tex. 2007).
Without a clear, unambiguous legislative
waiver, governmental immunity bars declaratory judgment actions
against the state and its political subdivisions.
3d at 621-22 & n.3.
Sefzik, 355 S.W.
The Federal Declaratory Judgment Act permits
a federal court to issue a declaratory judgment when there is “an
actual controversy within its jurisdiction”--the issues are “live”
or the parties have a “legally cognizable interest in the outcome.”
Powell v. McCormack, 395 U.S. 486, 496 (1969).
show
that
he
‘has
sustained
or
is
“The plaintiff must
immediately
in
danger
of
sustaining some direct injury’ as a result of the challenged
official conduct and the injury or threat of injury must be both
‘real and immediate,’ not ‘conjectural’ or ‘hypothetical.’”
of Los Angeles v. Lyons, 461 U.S. 95, 101-02 (1983).
City
Plaintiffs in
this suit have failed to allege facts showing there is a substantial
and continuing controversy between them and the City.
Plaintiffs seek improper injunctive and declaratory relief in
claiming that this Court should take over discretionary governmental
functions beyond its Article III power.
Courts lack jurisdiction
to take on the discretionary functions of the other branches of
government. The Supreme Court in Collins v. City of Harker Heights,
Texas, 503 U.S. 115, 128-29 (1992), opined,
Decisions concerning the allocation of resources to
individual programs, such as sewer maintenance, and to
particular aspects of those programs, . . . involve a
host of policy choices that must be made by locally
elected representatives, rather than by federal judges
-47-
interpreting the basic charter of Government for the
entire country.
The City is also immune from the specific injunctive relief
that Plaintiffs seek, asking the Court to act beyond its judicial
role
and
assume
Houston’s
zoning
authority
to
decide
which
commercial permits the City should issue and to prioritize flood
relief
projects
near
Plaintiffs’
properties.
That
relief
is
inappropriate, overly broad, and not “narrowly tailored to remedy
the specific action necessitating the injunction.” Fiber Sys. Int’l
v. Roehrs, 470 F.3d 1150, 1159 (5th Cir. 2006).
Plaintiffs briefly mention state-created danger as a
theory for imposing liability on the City, i.e., but the Fifth
Circuit has clearly stated that it has not recognized that claim.
See Rivera v. Houston Indep. Sch. Dist., 349 F.3d 244, 249 and n.5
(5th Cir. 2003); Piotrowski II, 237 F.3d at 584.
Rule 12(b)(6)
requires dismissal whenever a plaintiff’s claim is based on an
invalid legal theory.
Neitzke v. Williams, 490 U.S. 319, 327
(1989)(mentioning as an example of a “meritless legal theory”
“claims against which it is clear that defendants are immune from
suit”).
Even if state-created danger were recognized by the Fifth
Circuit, Plaintiffs fail to allege the essential elements with
supporting facts, as well as causation:
the plaintiff must show
that (1) “the state actors increased the danger to [them]; and (2)
“the state actors acted with deliberate indifference.”
Id.
To
allege deliberate indifference for purposes of a state-created
danger, plaintiff must show that the environment created by the
state was dangerous, [the state actors] must know it is dangerous,
-48-
and they must have used their authority that would not otherwise
have existed for the third party’s crime to occur.”
Dallas Indep. Sch. Dist., 38 F. 3d at 201.
Johnson v.
“The key to the state-
created danger cases . . . lies in the state actors’ culpable
knowledge and conduct in affirmatively placing an individual in a
position of danger, effectively stripping a person of her ability
to defend herself, or cutting off potential sources of private aid.”
Id.
In essence Plaintiffs seek to make the City help them before
any others in or near TIRZ 17 with respect to Houston’s flooding
problems, infrastructure needs, and community development. They ask
the Court to take over City government functions (i.e., requiring
implementation of all recommendations of a 2014 drainage study to
benefit Plaintiffs’ neighborhood, requiring Defendants to build
unidentified
prevent
drainage
Defendants
developer,
bar
projects
from
under
honoring
Defendants
from
a
the
Court’s
contract
entering
with
into
supervision,
a
non-party
contracts
with
unidentified parties, exclude commercial buildings on lots greater
than five acres unless they are overseen by the Court, require Court
oversight of the expenditure of funds and drainage projects until
the Court finds that Plaintiffs’ homes will receive adequate flood
protection, thus taking over the legislative and executive branches
of City government for the benefit of the six Plaintiffs without
regard to any other Houston residents.
The City insists that the
Court has no jurisdiction over these claims and the relief sought
-49-
because
Houston
has
governmental
immunity
from
both
suit
and
liability regarding them.
The grounds for Plaintiffs’ claims are six distinct occurrences
of government conduct relating to road improvements, apartment
drainage improvements, and commercial developments, all impacting
drainage and causing dangerous flooding, over the last ten years.
They provide few facts regarding these instances.
Plaintiffs
concede that they “live in and adjacent to the areas . . . [that
are] flood prone.”
Without any allegations regarding causation,
they argue that Defendants must be responsible for their properties
flooding during three occasions of severe rainfall in the past seven
years.
“Governmental functions” are “those functions that are enjoined
on a municipality by law and are given it by the state as part of
the state’s sovereignty . . . .”
101.0215 (2013).
Tex. Civ. Prac. & Rem. Code §
They include “street construction and design,”
“sanitary and storm sewers,” “sanitary and storm sewers,” “building
codes and inspection,” “zoning, planning, and plat approval.”
Id.
Governmental functions also include “community development or urban
renewal activities undertaken by municipalities and authorized under
Chapters 373 and 374, Local Government Code.” Id., citing Tex. Loc.
Gov’t Code §§ 373.001, et seq., and 374.001, et seq.
The only
conduct Plaintiffs challenge is Defendants’ exercise of governmental
functions designed to address flooding issues, e.g., widening and
lowering Bunker Hill Road, replacing storm sewers, rebuilding the
Bunker Hill bridge, approving construction of a 42" storm drain, and
-50-
approving a reimbursement contract for a developer’s storm water
detention.
Plaintiffs fail to specify any flood-impacted property except
by vague “neighborhood” references, including their own unspecified
properties, identify only the block where each individual plaintiff
lives, and do not claim that Defendants intended to injure or
deprive
them
of
their
property.
Plaintiff
speak
only
in
generalities.
In City of Friendswood, 489 S.W. 3d at 523-24, in which
governmental
flood
mitigation
decisions
were
unsuccessfully
challenged, the appellate court opined,
Both federal and state laws permit and provide incentives
for local governments to take measures to mitigate the
potential loss of life and property from future flood
events. See 42 U.S.C. § 4104c (anticipating that states
and communities will use funds made available from the
National Flood Mitigation Fund to plan and carry out
activities designed to reduce risk of flood damage to
structures covered under contracts for federal flood
insurance); Tex. Water Code Ann. § 16.315 (West
2008)(entitled “Political Subdivisions; Compliance with
Federal
Requirements”
and
authorizing
political
subdivisions “to take all necessary and reasonable
actions that are not less stringent than the requirements
and criteria of the National Flood Insurance Program,”
including “[m]aking appropriate land use adjustments to
constrict the development of land which is exposed to
flood damage and minimize damage caused by flood losses,”
“engaging
in
floodplain
management,
adopting
and
enforcing permanent land use and control measures,” and
“participating in floodplain management and mitigation
initiatives . . . developed by federal, state or local
government.
In another action, Harris County Flood Control Dist. v. Kerr,
No. 13-0303, 2016 WL 3418246, at *6 (Tex. June 17, 2016), Kerr
brought claims for inverse condemnation and nuisance against the
Harris County Flood Control District after a major flood.
-51-
While compensation to those whose property is taken for
public use is an important and constitutionally imposed
obligation of democratic government, governments must
also be allowed to survive financially and carry out
their public functions.
They cannot be expected to
insure against every misfortune occurring within their
geographical boundaries, under the theory that they could
have done more.
No government could afford such
obligations.
Id.
The RAF alleges that it is a “nonprofit organization” with
“associational standing on behalf of its members.”
The City points
out that an association has standing to bring suit on behalf of its
members when “(1) one or more of the organization’s members would
otherwise have standing in his or her right, (2) the interests which
the organization seeks to protect in the lawsuit are germane to the
purposes of the organization, and (3) the nature of the case does
not
require
the
participation
of
the
individual
members
as
plaintiffs to resolve the claims or prayers for relief at issue.”
Friends of the Earth, Inc. v. Chevron Chemical Co., 129 F.3d 827,
827-28 (5th Cir. 1997), citing Hunt v. Washington State Apple
Advertising Commission, 432 U.S. 333, 343 (1917); Warth v. Seldin,
422 U.S. 490, 511 (1975); Texas Association of Business v. Texas Air
Control Bd., 852 S.W. 2d 440, 447 (Tex. 1993).
The City charges
that the RAF makes no factual allegations showing the third required
element of associational standing, but only provides a “formulaic
recitation of the elements,” alleges that its “members, board
members and supports reside in and own property throughout the
Memorial
City
neighborhoods
Area,
and
the
including
south-side
-52-
the
Spring
Branch
neighborhoods
north-side
including
Fonn
Villas, Long Meadows, Memorial Pines, and Frostwood.”
These vague
allegations should be dismissed under Rule 12(b)(6).
Alternatively Plaintiffs’s amended complaint has affirmatively
shown that their claims are barred by the two-year statute of
limitations for section 1983 claims.
Tex. Civ. Prac. & Rem. Code
16.003(a)(2005)(“Except as provided by Sections 16.010, 16.0031, and
16.0045, a person must bring suit for trespass for injury to the
estate or to the property of another, conversion of personal
property, taking or detaining the personal property of another,
personal injury, forcible entry and detainer, and forcible detainer
not
later
than
accrues.”).
two
years
after
the
day
the
cause
of
action
Since there is no federal statute of limitations for
§ 1983, the “federal courts borrow the forum state’s general
personal injury limitations period.”
416, 418 (5th Cir. 1989).
Burrell v. Newsome, 883 F.2d
On the other hand, federal law controls
and defines the time of accrual as the time: “when plaintiff knows
or has reason to know of the injury which is the basis of the
action.”
Lavallee v. Listi, 611 F.2d 1120, 1131 (5th Cir. 1980).
A claim usually accrues “when [a] plaintiff has a complete and
present cause of action, i.e., at the point when “the plaintiff can
file suit and obtain relief.”
Bay Area Laundry and Dry Cleaning
Pension Trust Fund v. Ferbar Corp. of Cal., 522 U.S. 192, 201 (997).
The continuing violation doctrine applies “to claims that by their
nature accrue only after the plaintiff has been subjected to some
threshold amount of mistreatment” and “the limitations period begins
to run when the defendant has ‘engaged in enough activity to make
-53-
out an actionable . . . claim.’”
Gonzalez v. Hasty, 802
F.3d 212,
220 (2d. Cir. 2015), citing Morgan, 536 U.S. at 114-15, 117.
The
City argues that Plaintiffs did not file this suit timely.
The City further contends that Plaintiffs fail to allege facts
supporting any of the necessary elements for permanent injunctive
relief:
“(1) that they have suffered an irreparable injury; (2)
that remedies at law, such as monetary damages, are inadequate to
compensate for that injury; (3) that, considering the balance of
hardships between the plaintiff and defendant, a remedy in equity
is warranted; and (4) that the public interest would not be
disserved by a permanent injunction.”
547 U.S. 388, 391 (2006).
eBay v. MercExchange, LLC,
“An injury is ‘irreparable’ only if it
cannot be undone through monetary remedies.”
Northeastern Florida
Chapter of the Ass’n of Gen’l Contractors of America v. City of
Jacksonville, Florida, 896 F.2d 1283, 1285 (11th Cir. 1990).
“The
preliminary injunction is an extraordinary and drastic remedy not
to be granted until the movant [the plaintiff] ‘clearly carries the
burden of persuasion’ as to the four prerequisites.”
Id.
“The
possibility that adequate compensatory or other corrective relief
will be available at a later date, in the ordinary course of
litigation, weighs heavily against a claim of irreparable harm.”
Id., quoting Sampson v. Murray, 415 U.S. 61, 88 (1974).
“[F]or an
injunction to issue based on a past violation, [plaintiff] must
establish that there is a ‘real or immediate threat that he will be
wronged again.’”
2000).
Hainze v. Richards, 207 F.3d 795, 802 (5th Cir.
Plaintiffs have not alleged facts to show any real or
-54-
immediate threat of flooding or the relief that will prevent future
flooding, but they merely speculate and hypothesize.
“There must be a likelihood that irreparable harm will
occur. Speculative injury is not sufficient; there must
be more than an unfounded fear on the part of the
applicant. Thus, a preliminary injunction will not be
issued simply to prevent the possibility of some remote
future injury. A presently existing actual threat must
be shown.”
U.S. v. Emerson, 270 F.3d 203, 262 (5th Cir. 2001), quoting 9
Wright, Miller & Kane, Federal Practice & Procedure:
Civil 2D §
2948.1 at 153-56 (footnotes omitted, emphasis added).
Nor do Plaintiffs plead facts to show the threat of injury to
them is greater than the potential injury to Defendants posed by an
injunction.
Guy Carpenter & Co., Inc. v. Provenzale, 334 F.3d 459,
464 (5th Cir. 2003).
Plaintiffs ask the Court to enjoin the City
from issuing lawful commercial permits unless the Court or a Special
Master finds the proposed development will not have an impact on
flooding in Plaintiffs’ neighborhood.
The City claims that because
Houston lacks zoning regulations, denial of commercial permits in
some
neighborhoods,
when
Houston’s
permitting
regulations
are
satisfied, will cause chaos and impose a hardship on Houston. This
Court
should
not
usurp
the
City’s
discretion
in
fiscal
and
administrative oversight regarding approval of public improvements;
judicial review of municipal decisions would breach the separation
of judicial and legislative powers and prioritize the interests of
one or more individual landowners over municipal policy set for the
City as a whole.
Thus Plaintiffs’ proposed injunctive relief is
-55-
outside the scope of the Court’s jurisdiction and is unsupported by
the law.
Finally and alternatively, the City moves for a more definite
statement, specifically for Plaintiffs to replead in accordance with
Rule 8 to cure the following problems:
(1) failure to state the
dates on which each alleged wrongful act by Defendants occurred; (2)
specifically identify the location of Plaintiffs’ homes and the
dates
on
which
each
alleged
harmful
constitutional
violation
occurred to each particular location; (3) specify causation; (4)
identify by specific boundaries or other identifying characteristics
the members on whose behalf RAF allegedly sues in order to plead
associational standing; (5) identify geographic boundaries in which
each
alleged
constitutional
violation
occurred;
(6)
specify
Defendants’ inactions and how they caused harm to Plaintiffs; (7)
state any alleged policy, practice or custom that is a basis of
a
§ 1983 claim; (8) state facts showing the City’s intent to deprive
Plaintiffs of their constitutional rights; (9) specify each alleged
action or inaction by each Defendant; and (10) distinguish between
the Defendant for each alleged action or failure to act.
Defendants the Zone and the Authority’s Motion to Dismiss Or,
Alternatively, For a More Definite Statement (#7)
The Court only briefly references the issues raised by the City
and just discussed unless the Zone and the Authority have different
allegations about them.
The Zone and the Authority also contend with the City that
Plaintiffs seek improper judicial relief, given our tripartite
-56-
system of government.
The judiciary is authorized to interpret and
apply government policies, not write them.
What Plaintiffs seek is
to have this Court displace “the Houston City Council’s policymaking authority (and to act as a de facto zoning board) and dictate
how, where, and when the Defendants and the City may fund and
construct
flooding
and
drainage
improvements
commercial development within the Zone.”
or
approve
new
Although Plaintiffs seek
to recharacterize what at most is negligence into a series of
constitutional violations, the actuality is that none of Defendants
took any action or adopted any unconstitutional policy with the
intent to flood Plaintiffs’ properties.
The Zone and the Authority assert that Plaintiffs’ claims
should be dismissed for nine reasons.
First, the Zone is not a “suable entity,” separate and apart
from the City.
Instead the Zone is defined as a particular
geographic area of the City, for which the City has not taken the
steps to empower the Zone with jural authority.
Ex. A, p. 1
(creating and designating the Zone as a “contiguous geographic area
of the City”);
Darby v. City of Pasadena, 939 F.2d 311, 313 (5th
Cir. 1991)(“The capacity of an entity to sue or be sued ‘shall be
determined by the law of the state in which the district court is
held.’
Fed. R. Civ. P. 17(b).”), and Crull v. City of New
Braunfels, Tex., 267 Fed. Appx. 338, 341-42 (5th Cir. 2008)21(citing
21
Plaintiffs also distinguish the situation in Crull from that
in the instant case. Crull stands for the proposition that a City
police department is not a separate legal entity from the City.
Crull, 267 Fed. Appx. at 341-42. Texas Home Rule cities are merely
authorized by state law to operate a police department. Tex. Loc.
-57-
Darby)(“In order for a plaintiff to sue a department of a city, that
department must enjoy a separate legal existence.
Unless the
political entity that created the department has taken ‘explicit
steps to grant the servient agency with jural authority, the
department lacks the capacity to sue or be sued.”).
The Home Rule
Charter of the City of Houston, which is a home rule municipality,
reserved to the municipality the power to sue and be sued.
Rule Charter, City of Houston, Texas,
Art. II, § 1.
Home
Sections
311.003 and 311.008 of the Texas Tax Code grant the City all
authority to organize a tax increment reinvestment zone and all
powers necessary to carry out its purpose, as the City did in
creating the Zone.
Darby, 939 F.2d at 313 (“A Texas home rule city
is organized not unlike a corporation.
Like a corporation, it is
a single legal entity independent of its officers.
Also like a
corporation, a Texas city is allowed to designate whether one of its
own subdivisions can be sued as an independent entity.
Absent this
authorization, [Darby’s] suit no more can proceed against the police
department alone than it could against the accounting department of
a corporation. . . . Pursuant to these principles, we have held that
a political subdivision cannot pursue a suit on its own unless it
is a ‘separate and distinct’ corporate entity. . . . [O]ur cases
uniformly show that unless the true political entity has taken
explicit steps to grant the servient agency with jural authority,
Gov’t Code § 341.003. Unlike the tax increment zones, no statute
permits powers to be delegated to the police department nor
requires the City to reserve powers to itself. That is true for
other city departments.
-58-
the agency cannot engage in any litigation except in concert with
the government itself.”)(citations omitted).22 In the instant suit,
neither the Zone’s enabling Ordinance nor the City’s Charter grants
the Zone the power to sue or be sued.
Second, the Zone and the Authority complain that Plaintiffs
fail to identify a specific policy, practice or custom sufficient
to state a plausible claim for municipal liability under section
1983, nor have they shown that it or the final policy maker
(identified in the Complaint ¶ 53 as the City Council)had policymaking power :
“the Authority and TIRZ Boards recommend projects,
but the City Council has final approval”) was the moving force
behind the alleged deliberate deprivation of Plaintiffs’ rights
under the Fourth and Fourteenth Amendments.
See also Home Rule
Charter, City of Houston, Texas, Art. VII, § 10 (“All legislative
powers of the City shall be vested . . . in the City Council.”); Ex.
A at § 4. Plaintiffs have failed to do so and therefore have failed
to state a claim for which relief may be granted under Rule
12(b)(6).
The Zone and the Authority also contend that Plaintiffs’ § 1983
claims are barred by the two-year statute of limitations under Tex.
Civ. Prac. & Rem Code §§ 16.003 and their due course of law claim
22
Plaintiffs distinguish Darby from the situation in the
instant suit. In Darby, 939 F.2d at 312, the plaintiff sued only
the Pasadena Police Department and not the City. The Fifth Circuit
opined, “In order for a plaintiff to sue a city department, it must
enjoy a separate legal existence,” and the City took “explicit
steps to grant the servient agency with jural authority, the agency
cannot engage in any litigation except in concert with the
government itself.” Id. at 313. In contrast, Plaintiffs here have
sued the City and TIRZ 17 as co-defendants in this suit.
-59-
under Article I, § 19 of the Texas Constitution is barred by the
four-year residual statute of limitations under § 16.051 (“Every
action for which there is no express limitations period, except an
action for the recovery of real property, must be brought no later
than four years after the day the cause of action accrues.”). KingWhite v. Humble I.S.D., 803 F.3d 754, 760 (5th Cir. 2015)(generally
§ 1983 claims are subject to two-year statute of limitations);
Edwards v. Dist. Att. of Atacosa City, No. 04-14-00611-CV, 2015 WL
4478086, at *2 (Tex. App.--San Antonio July 22, 2015, no pet.)(Texas
Constitution’s due course of law claim is subject to four-year
statute of limitations).
The Zone and the Authority maintain that
the Complaint demonstrates that Plaintiffs’ § 1983 claims accrued
at the latest in 2009 because they allege wrongful conduct by
Defendants as early as 2007, when Defendants widened and lowered
Bunker Hill Road North of I-10 and replaced storm sewers in the
Bunker Hill Drainage Project that caused flooding in the residential
neighborhoods.
In addition, the due course of law claim also fails because
Defendants have clearly stated a conceivably rational basis for
their actions.
Univ. of Texas Med. Sch. at Houston v. Than, 901
S.W. 2d 926, 929 (Tex. 1995)(Although textually different with one
referring to “due process” and the other, “due course,” the terms
are “without meaningful distinction” and the Texas Supreme Court has
“traditionally
followed
contemporary
federal
due
process
interpretations of procedural due process.”); Mabee v. McDonald, 107
Tex. 139,
, 175 S.W. 676, 680 (Tex. 1915)(“‘Due process of law,’
-60-
as used in the fourteenth amendment, and ‘due course of the law of
the land,’ as used in Article I, § 19, of the Constitution of Texas
. . . according to the great weight of authority, are, in nearly if
not all respects, practically synonymous.”), rev’d on other grounds,
243 U.S. 90, 92 (1917).
Plaintiffs must negate any possible
rational, or “at least debatable, basis for Defendants’ Zone-related
initiatives.”
#7 at p, 3, ¶ 4.
Plaintiffs’ complaint concedes the
existence of rational bases for Defendants’ conduct in discussing
the City Council’s findings of benefit and public purpose in the
Ordinances which created the Zone and the Authority (Ex. A at §
1(b)-(c); Ex. B at § 2 and Attachment A, art. IV), in
Texas Tax
Code §§ 3.11,003(a) 311.007(a)(7)(A), and 311.005, and in the Plan
adopted by City Council, Ex. C, Attachment A pp. 1-2, Ex. E,
Attachment A at p.2.
reduction,
attracting
The reasons for their actions (blight
and
encouraging
private
commercial
development, alleviating traffic congestion, elevating the tax base,
upgrading water, sewage, and drainage infrastructure and improving
the common good and general welfare of the Memorial City Area) are,
as a matter of law, legitimate government interests.
See, e.g.,
Maryland Manor Associates v. City of Houston, 816 F. Supp. 2d 394,
407 (S.D. Tex. 2011)(controlling traffic flow is a legitimate
governmental interest); St Joseph Abbey v. Castille, 712 F.3d 215,
222 (5th Cir. 2013)(public or general welfare is a legitimate
interest);
Texas
Manufactured
Housing
Ass’n,
Inc.
v.
City
of
Nederland, 101 F.3d 1095, 1106 (5th Cir. 1996)(maintaining property
values is a legitimate government interest); Queeta’s Investments,
-61-
Inc. v. City of Hidalgo, No. M-04-272, 2005 WL 2416656, at *4 (S.D.
Tex. Sept. 30, 2005)(beautification is a legitimate government
interest); Norfolk Fed’n of Bus. Districts v. City of Norfolk,
No.
96-1746, 1996 WL 671293, at *3 (4th Cir. 1996)(reduction of urban
blight is a legitimate government interest).
Given these findings
and numerous rational bases for Defendants’ actions, Plaintiffs have
not and cannot establish a plausible substantive due process claim
under either the United States or Texas Constitutions.
The Zone and the Authority also maintain that the Fifth Circuit
does not recognize the state-created-danger theory of liability as
a subset of substantive due process.
Plaintiffs’ federal due process claim is not ripe because
Plaintiffs have not sought and have not been denied compensation
through
state
procedures,
or,
alternatively,
mislabeled federal takings claim.
it
is
merely
a
See John Corp., 349 F.3d at 583;
Stewart v. City Of New Orleans, 537 Fed. Appx. 552, 556 (5th Cir.
2013)(If a takings claim is brought with a substantive due process
claim, the court must perform a careful analysis to assess whether
the plaintiff has pleaded facts showing the two are independent.).
A takings claim is also not ripe for review until the claimant
seeks and has been denied just compensation through the proper state
procedures.
See Williamson County Regional Planning Commission v.
Hamilton Bank of Johnson City, 473 U.S. 172, 186 (1985); Urban
Developers LLC v. City of Jackson, 468 F.3d 281, 292-93 (5th Cir.
2006).
497.
Plaintiffs have not pleaded either.
Severance, 566 F.3d at
The Zone and the Authority instead maintain that “under the
-62-
cloak of substantive due process, Plaintiffs complain only that they
have ‘been deprived of [their] constitutionally protected . . .
property rights’ without due process of law; they do not claim they
have sought and been denied compensation through available state
procedures.
Therefore their due process claim is not ripe and
should be dismissed.
Steward, 537 Fed, Appx. at 556.
Next, the Zone and the Authority contend that since the
Fourth Amendment targets “misuse of power,” Plaintiffs have not pled
and cannot plead an intentional or willful act of physical control,
i.e., the taking must be willful.
See also Laughlin v. Olszewski,
102 F.3d 190, 193 (5th Cir. 1996)(“‘[T]he Fourth Amendment addresses
‘misuse of power.’ [citation omitted], not the accidental effects
of otherwise lawful government conduct.”). Plaintiffs fail to state
a Fourth Amendment claim because they do not allege a willful and
intentional seizure of any specific property. Nowhere do Plaintiffs
allege any conduct by Defendants evidencing a deliberate, willful
decision to flood their particular properties.
Instead they claim
only that Defendants were generally aware that the Memorial City
area and surrounding neighborhoods are susceptible to flooding and
that
a
combination
of
private
development,
infrastructure
improvements, failure to implement additional flood and drainage
projects, and a series of natural disasters contributed to alleged
flood damage to their properties. In other words, Plaintiffs allege
at most that Defendants were negligent in the adoption and execution
of
their
negligence
Zone-related
claim
into
policies
a
and
Fourth
-63-
then
Amendment
try
to
convert
violation.
that
Simple
negligence or unintentional consequences are insufficient to state
a viable Fourth Amendment claim. Brower v. County of Inyo, 489 U.S.
593, 596 (1989)(“Violation of the Fourth Amendment requires an
intentional acquisition of physical control. . . The detention or
taking itself must be willful.”); Laughlin v. Olszewski, 102 F.3d
at 193 (“While a seizure can occur where the specific object taken
or detained is unintentional, the detention or the taking, itself,
must be willful. . . . . “‘[T]he Fourth Amendment addresses ‘misuse
of
power,’
[citation
omitted],
not
the
accidental
effects
of
otherwise lawful government conduct.”).
In a similar case to the instant one, Harris County Flood
Control Dist. v. Kerr, 499 S.W. 3d 793 (Tex. 2016), a group of 400
homeowners claimed that a series of governmental decisions by the
defendants, including approval of private commercial development and
a
failure
to
implement
adequate
drainage
and
storm
water
infrastructure projects resulted in repeated flooding of their
properties in three severe storms.
The Court noted,
While compensation to those whose property is taken for
public use is an important and constitutionally imposed
obligation of democratic government, governments must
also be allowed to survive financially and carry out
their public functions.
They cannot be expected to
insure against every misfortune occurring within their
geographical boundaries, under the theory that they could
have done more.
No government could afford such
obligations.
Id. at *6.
The Zone and the Authority further assert that the RAF lacks
associational standing to sue on behalf of its unidentified members
because
it
has
not
alleged
that
-64-
it
owns
any
property
nor
demonstrated that any associational standing exists. Friends of the
Earth, Inc. v. Chevron Chemical Co., 129 F.3d 826, 827-28 (5th Cir.
1997)(“[A]n organization can assert ‘associational standing’ if it
can show that (1) one or more of the organizations’s members should
have standing in his or her own right; (2) the interests which the
organization seeks to protect in the lawsuit are germane to the
purposes of the organization; and (3) the nature of the case does
not require the participation of the individual affected members as
plaintiffs.”).
Last
of
all,
the
Zone
and
the
Authority
maintain
that
Plaintiffs are not entitled to declaratory or injunctive relief
because they have failed to state a viable substantive claim against
the Defendants.
The Zone and the Authority explain that the Zone is governed
by a Board of seven directors (the “Board”), who are appointed by
the City’s governing body.
Ex. A at § 4; Compl. at ¶49.
is
and
authorized
to
prepare
propose
project
The Board
development
and
financing plans for the Zone and to make recommendations to the City
Council regarding the administration, management, and operation of
the Zone, but it may not approve or implement a project development
or financing plan without approval and consent from the City.
Id.
The City Council also found that the Board “may not exercise any
power granted to the City under § 311.008 of the Texas Tax Code
without additional authorization from the City.
Id.
These powers
include “(1) caus[ing] project plans to be prepared, approv[ing] and
implement[ing] the plans, and otherwise achieving] the purpose of
-65-
the
plans;
(2)
enter[ing]
into
agreements,
including
with
bondholders, determined by the governing body of the municipality
to be necessary or convenient to implement project plans and achieve
their
purposes;
and
(3)
acquir[ing],
construct[ing],
reconstruct[ing], or install[ing] public works, facilities, or sites
or other public improvements, including utilities, streets, street
lights, water and sewer facilities, pedestrian malls and walkways,
parks, flood and drainage facilities, or parking facilities . . .
.
Tex. Tax Code § 311.008(b)(emphasis added).
Thus the City has
final authority to approve, authorize and fund all projects.
Id.;
Ex. A at §4; Compl. at ¶53.
On August 14, 2002 the City Council adopted Resolution 2002-26,
which approved the creation of the Authority, a local government
corporation, and adopted the Articles of Incorporation and By-Laws,
pursuant to Chapter 431 of the Texas Transportation Code.
Exhibit
B, City of Houston Resolution No. 2002-26; Compl. at ¶42.
The City
Council created the Authority as the operating and financing vehicle
for the Zone to (1) aid, assist and act on behalf of the City in the
performance of its governmental functions to promote the common good
and general welfare of the Memorial City area of Houston and
neighboring areas; (2) promote, develop, encourage and maintain
employment, commerce, and economic development in Houston; and (3)
aid, assist and act on behalf of the Zone in the (a) implementation
of the Project Plan and Reinvestment Zone Financing Plan, (b)
development of a policy to finance development of residential,
-66-
commercial and public properties in the [Zone], and (c) development
and implementation of a development policy for the [Zone].
Subsequently the Zone prepared and proposed a Project Plan and
Reinvestment Zone Finance Plan, which the City adopted in Ordinance
No. 1999-852, which approved the Plan, and to which City Council
twice approved amendments (Ordinance Nos. 2011-728 and 2014-1130 on
August 23, 2011 and December 10, 2014, respectively).
of Houston Ordinance No. 1999-852; Compl. ¶¶43-44.
E, Compl. ¶43.
Ex. C, City
Exhibits D and
The Plan was adopted to (1) preserve, conserve, and
redevelop the Zone; (2) remedy specific conditions that, if not
addressed, will pose long term risks to the area by increasing the
number of unproductive, under-developed properties and decreasing
area property values; and (3) create an environment attractive to
new and additional high quality development.
The Plan aimed to
redevelop and improve road and street conditions; water, sewage and
drainage infrastructure; public parks, green space and recreational
facilities; and pedestrian improvements (e.g., sidewalk systems and
ADA-compliant ramps) at key retail and commercial developments
within
the
Zone.
Ex.
E,
Attachment
A
at
p.2.
Plaintiffs’
complaints arise out of these various projects implemented in the
Zone or the City’s failure to prioritize and complete sufficient
additional storm water mitigation and drainage in areas experiencing
more frequent flooding.
The RAF fails to allege facts to plausibly support its claim
that it is a non-profit organization with associational standing to
sue on behalf of its members.
For associational standing RAF must
-67-
show “(1) its members would otherwise have standing to sue in their
own right, (2) the interests it seeks to protect are germane to the
organizations’s purpose, and (3) neither the claim asserted nor the
relief requested requires the participation in the lawsuit of each
of the individual members.”
Friends of the Earth, Inc., 129 F.3d
at 827-28. The RAF provides no facts to support the first and third
elements.
The RAF states that “its members, board members and
supporters reside in and own property throughout the Memorial City
Area, including the Spring Branch north-side neighborhoods, and the
south-side
neighborhoods
including
Memorial Pines and Frostwood.
Fonn
Villas,
Compl. at ¶178.
Long
Meadows,
The RAF fails to
state whether any of the unidentified members suffered flood damage
sufficient to have standing to sue in their own right.
Nor are
there any allegations showing that the claims asserted and the
relief requested do not require the participation of each of the
RAF’s members.
The fact that RAF members Lois Meyers and Virginia
Gregory have personally appeared to participate as individual
plaintiffs suggests that such individual participation is necessary.
Compl. at ¶¶30-31.
The Zone and the Authority claim that Plaintiffs’ requests for
declaratory and injunctive relief should also be dismissed.
The
Texas Declaratory Judgments Act, Tex. Civ. Prac. & Rem. Code §
37.001, et seq., (“TDJA”), is a procedural, not a substantive,
mechanism and thus does not apply to actions in federal court.
Utica Lloyd’s of Tex. v. Mitchell, 138 F.3d 208, 210 (5th Cir.
1998), citing Gasperini v. Center for Humanities, Inc., 518 U.S.
-68-
425, 427 (1996)(“Under the Erie doctrine, federal courts sitting in
diversity apply state substantive law and federal procedural law.”).
So, too, must Plaintiffs’ claim under the Federal Declaratory
Judgment Act (the “Act”), 28 U.S.C. § 2201, requesting the Court to
appoint
a
Special
Master
to
assume
the
policy-making
and
implementation duties of the City, the Zone, and the Authority.
Federal courts have broad discretion whether to grant or refuse a
declaratory judgment.
(5th Cir. 1991).
Torch, Inc. v. LeBlanc, 947 F.2d 193, 194
Furthermore the Act is a procedural device that
creates no substantive rights and requires the existence of a
justiciable controversy.
227, 239-41 (1937).
justiciable
Aetna Life Ins. Co. v. Haworth, 300 U.S.
The Zone and the Authority contend there is no
controversy
here
that
would
declaratory relief that Plaintiffs seek.
support
the
kind
of
Even if Plaintiffs state
a plausible basis for declaratory relief, the kind they seek is at
odds with the separation of powers in our tripartite system of
government in that they want the Court to take over the City’s role
in promulgating land use and drainage policies, dictate how, where
and when the Defendants and the City may fund and construct flooding
and drainage improvements or approve new commercial development
within the Zone.23
In addition, Plaintiffs’ “formulaic recitation
23
The separation of powers into three defined categories
(executive, legislature, and judiciary) is the tripartite frame
erected for our government by the Constitution to diffuse power and
thereby protect liberty. Bowsher v. Synar, 478 U.S. 714 (1986).
The Constitution did not “establish the three branches with
“precisely defined boundaries.”
INS v. Chada, 462 U.S. 919, 962
(1983), citing Buckley v. Valeo, 424 U.S. 1, 121 (1976)(per
curiam).
The court has been cautious in insuring that the
boundaries among the three branches should be established
-69-
of the elements of associational standing are insufficient to
survive a Rule 12(b)(6) challenge.
So, too, are the facts insufficient to support a grant of
injunctive
relief.
Moreover,
“a
party
seeking
a
temporary
injunction to compel a governmental agent to perform a mandatory
statutory duty must plead and prove either (1) a statute expressly
authorizing injunctive relief without a showing of a probable right
to relief sought or (2) imminent and irreparable harm (or both a
probable right to relief sought and a probable imminent, and
irreparable injury). Butnaru v. Ford Motor Co., 84 S.W. 3d 198, 204
(Tex. 2002).
The Zone and the Authority insist Plaintiffs have not
alleged, and cannot allege, facts giving rise to a plausible due
“‘according to common sense and the inherent necessities of the
government co-ordination.’” Id., quoting J.W. Hampton, Jr. & Co.
v. U.S., 276 U.S. 394, 406 (1928). Nevertheless, “where one branch
has impaired or sought to assume a power central to another branch,
the Court has not hesitated to enforce the doctrine.” Id., citing
Buckley, 424 U.S. at 123.
The separation of powers doctrine functionally “may be
violated in two ways. One branch may interfere impermissibly with
the other’s performance of its constitutionally assigned function.
Alternatively, the doctrine may be violated when one branch assumes
a function that more properly is entrusted to another.” INS v.
Chada, 462 U.S. at 963.
The application of the doctrine of separation of powers to the
judicial branch “preserves an independent and neutral judiciary,
relatively removed from the decisions and activities of the other
two branches. Discharging tasks other that the deciding of cases
and controversies would ‘involve the judges too intimately in the
process of policy and thereby weaken confidence in the
disinterestedness of their judicatory functions.’” In re Sealed
Cases, 838 F.2d 476, 512 (D.C. Cir. 1988). “Impartiality is one of
the central, constitutionally-ordained requirements of the federal
judicial office.” Application of President’s Com’n on Organized
Crime. 763 F.2s 1191, 1197 (11th Cir. 1985).
-70-
process, Fourth Amendment or due course of law claim so they are not
entitled to injunctive relief.
The Zone and the Authority alternatively seek a more definite
statement to cure an ambiguity or vagueness or failure to provide
sufficient information to allow a responsive pleading to be drafted
regarding the following:
(1) Plaintiffs’ failure to identify any
alleged policy, custom or practice that serves as the basis of the
§ 1983 claims; (2) the absence of any allegations that any policies
or actions by Defendants were effected with the intent to flood
Plaintiffs’ specific properties; (3) Plaintiffs’ global reference
to “Defendants” without indication as to which of the three entities
they have sued is engaged in which conduct; (4) Plaintiffs’ failure
to identify dates on which alleged wrongful act by which Defendant
occurred; (5) Plaintiffs’ failure to identify the specific location
of their properties; (6) Plaintiffs’ failure to specify whether
their claims relate to the complete taking of their property or
simply damage to their propery; (7) Plaintiffs’ failure to plead
whether they have sought compensation for the alleged damage to
their properties through available state procedures; (8) the RAF’s
failure to name the members on whose behalf it allegedly sues for
associational standing; and (9) Plaintiffs’ failure to specify
Defendants’ “inactions” and how they contributed to causing harm to
Plaintiffs.
Alternatively the Zone and the Authority ask the Court to
require Plaintiffs to replead in accordance with Rule 12(e) the
deficiencies listed above.
-71-
Plaintiffs’ Consolidated Response (#11)
Plaintiffs object that Defendants’ overly demanding pleading
standards disregard the fact that some facts are still unknown and
will require discovery.
Furthermore pleading all causation proof
is not required at this stage, only “a short and plain statement of
the claim showing that the pleader is entitled to relief” under
Rule 8(a)(2). Johnson v. City of Shelby, Miss., 135 S. Ct. 346, 346
(2014)(per curiam)(summarily reversing dismissal when lower court
imposed heightened pleadings standards in a case alleging § 1983
municipal
liability).
This
action
is
firmly
grounded
in
long
established case law in which the Fifth Circuit has recognized that
arbitrary decisions about the use of land may support a substantive
due process claim under the Fourteenth Amendment and unreasonable
interferences with one’s
interest in property may support a civil
seizure claim under the Fourth Amendment.
Plaintiffs list the following as their responses in opposition
to Defendants’ motions to dismiss:
(1) Qualified immunity is not a defense to claims for declaratory
and injunctive relief (Yates v. Stalder, 217 F.2d 332, 333 n.2 (5th
Cir.
2000);
regarding
state
constitutional
claims,
the
Texas
Constitution “authorizes suits for equitable or injunctive relief
for violations of the Texas Bill of Rights” (City of Beaumont v.
Bouillion, 896 S.W. 2d 143, 148-49 (Tex. 1995).
Because Plaintiffs
have pleaded for declaratory and injunctive relief, and not for
-72-
damages, no immunity doctrine applies.24
Morse v. Frederick, 551
U.S. 393, 432-33 (2007)(It is well established that in the context
of § 1983 and federal constitutional claims, a “‘qualified immunity’
defense applies in respect to damages actions, but not to injunctive
relief.”).
Moreover qualified immunity applies only to individual
officers in their individual capacities, but not to them in their
official capacities.
(“[N]o
‘qualified
Johnson v. City of Shelby, 135 S. Ct. at 347
immunity
analysis’
is
implicated.
.
.
as
petitioners asserted a constitutional claim against the city only,
not against any municipal officer.”).
2.
Under Monell, ordinances, decisions, actions or omissions by
Houston City Council and or the TIRZ Board constitute the requisite
“decision” or “policy” for § 1983 lawsuits against local government
units.
Municipalities and local government units are liable for
decisions made by their properly constituted bodies.
City of Cincinnati, 475 U.S. 469, 480 (1986).
Pembaur v.
An action by a city
council or other governing board satisfies Monell, 436 U.S. at 694
(“[I]t is when execution of a government’s policy or custom, whether
made by its lawmakers or by those whose edicts or acts may fairly
be said to represent official policy, inflicts the injury that the
24
See also Nueces County v. Ferguson, 97 S.W. 3d 205, 217
(Tex. App.--Corpus Christi 2002, no pert.)(Suits under the Texas
Constitution “are limited to equitable relief and do not allow a
claim for monetary damages except to the extent specifically
enunciated in the constitutional provision.”); Patel v. City of
Everman, 179 S.W. 3d 1, 13 (Tex. App.--Tyler 1004, pet. denied
(“The due process provisions of the Texas Constitution do not
provide for a cause of action for damages, but rather only for
direct claims seeking equitable relief.”); Vincent v. W. Tex. State
Univ., 895 S.W. 2d 469, 475 (Tex. App.--Amarillo 1995, no writ).
-73-
government as an entity is responsible under § 1983.”).
City of
Newport v. Fact Concerts, Inc., 453 U.S. 247, 249 (1981); Whisenant
v. City of Haltom City, 106 Fed. Appx. 915, 917 (5th Cir. 2004)(“The
City cannot be liable under § 1983 for having a ‘policy’ of
wrongfully incarcerating indigent defendants because the relevant
decisions were made by a municipal judge acting . . . ‘as a state
judicial officer’” because “‘his acts and omissions were not part
of a city policy or custom.
A municipality cannot be liable for
judicial conduct it lacks the power to require, control, or remedy
even if the conduct parallels or appears entangled with the desires
of the municipality.’”). City ordinances containing City Councils’s
actions approving the TIRZ Board’s CIPS are decisions or policies
giving rise to liability under Monell.
3.
There is precedent in the Fifth Circuit and in Texas for
substantive due process claims based on deprivation of property
rights.
Mikesa v. City of Galveston, 451 F.3d 376 (5th Cir.
2006)(reversal of district court’s summary judgment dismissal of
suit against the City of Galveston for refusing to grant permits for
reconnection of appellants’ homes to public utilities after a
tropical
storm
on
the
grounds
that
the
City’s
actions
were
rationally related to the protection of open access to the public
beach (substantive due process) and to the City’s obligation to
follow state law to protect the public beaches from interference
(equal protection).
The City had a legitimate state interest in
protecting public access to the public beach but failed to provide
a rational reason why refusing to reconnect utilities to houses
-74-
found on a public beach furthers the end of protecting public access
to public beaches (the requisite rational relationship)).
Md.
Manor Assocs. v. City of Houston, 816 F. Supp. 2d 394, 399-400(S.D.
Tex. 2011); Smith v. City of League City, 338 S.W. 3d 114 (Tex.
App.--Houston [14th Dist.] 2011).
Plaintiffs still argue that the state-created-danger theory
provides an alternative basis for alleging a substantive due process
claim even though the Fifth Circuit has expressly stated that it has
not adopted it so far. Scanlon v. Tex. A&M Univ., 343 F.3d 533, 537
(5th Cir. 2003).
4.
TIRZ erroneously mislabels Plaintiffs’ Fourteenth Amendment
claim as a takings claim.
The Fifth Circuit has clearly rejected
TIRZ’s suggestion that the Takings Clause subsumes all claims
involving property destruction resulting from governmental acts.
John Corp., 214 F.3d 573, 582-83 (5th Cir. 2000)(rejecting view that
the applicability of one constitutional amendment pre-empts the
guarantees of another; “[A] blanket rule that under Graham [v.
Connor, 490 U.S. 386, 395 (1989),25 the Takings Clause subsumes any
substantive due process claim relating to a deprivation due process
claim is both inconsistent with our precedents and with the approach
taken by a majority of other circuit courts.”).
In addition
according to the amended complaint Plaintiffs are not seeking
25
Graham held that “[w]here a particular Amendment ‘provides
an explicit textual source of constitutional protection’ against a
particular sort of government behavior, ‘that Amendment, not the
more generalized notion of ‘substantive due process,’ must be the
guide for analyzing these claims.’”
-75-
compensation, while a takings claim turns on the denial of just
compensation.
5. Plaintiffs have pled a Fourth Amendment claim, including willful
conduct.
The Fourth Amendment protects possessory interests in
one’s property. Plaintiffs allege that Defendants have seized their
homes and possessory interests by their willful actions, which
caused flooding in Plaintiffs’ homes.
Severance, 566 F.3d at 502.
6. Plaintiffs have properly pleaded relief. It is premature to ask
whether
Plaintiffs
equitable
remedies,
have
met
an
the
issue
standard
that
is
for
entitlement
properly
raised
on
to
a
preliminary injunction hearing or after a trial on the merits.
7.
Plaintiffs’ claims are not time barred, are ongoing, and their
limitations defense is prematurely raised.
Statute of limitations
is an affirmative defense for defendants, not a pleading requirement
for plaintiffs, and the defense usually must be resolved through
discovery
and
summary
judgment
or
trial.
Arlington, 657 F.3d 215, 240 (5th Cir. 2011).26
Frame
v.
City
of
Plaintiffs maintain
that if the Court reaches the limitations issue, their claims fall
under the continuing violation theory.
Jackson v. Galan, 868 F.2d
165, 168 (5th Cir. 1989)(“‘If . . . the statutory violation does not
occur at a single moment, but in a series of separate acts and if
the same alleged violation was committed at the time of each act,
then the limitations period begins anew with each violation and only
26
The Fifth Circuit also stated in Frame, 657 F.3d at 240, “To
be sure, a complaint may be subject to dismissal if its allegations
affirmatively demonstrate that the plaintiff’s claims are barred by
the statute of limitations and fail to raise some basis for
tolling.”
-76-
those violations preceding the filing of the complaint by the full
limitations period are foreclosed.’”)(citations omitted).
8.
Plaintiffs insist that TIRZ 17 may be sued because the City
Ordinance, which conveys on the TIRZ “all powers” that the City has
(with a few enumerated exceptions defined).27
Furthermore TIRZ is
an alter ego of the Authority: the two are alter egos, which are
suable as such, have identical boards and board decisions, and the
decisions are indistinguishable.
9.
The RAF has associational standing because it has members that
can sue in their own right, now including three named plaintiffs
who,
Defendants
concede,
can
sue.
The
third
element
of
associational standing, that an association’s claims not require
participation
of
constitutional,
individual
requirement
members,
and
is
a
“focuses
prudential,
on
not
matters
a
of
administrative convenience and efficiency.” Ass’n of Am. Physicians
& Surgeons, Inc. v. Tex. Med. Board, 627 F.3d 547, 551 (5th Cir.
2010).
In addition, Plaintiffs seek only equitable relief, so
prudential concerns are not at issue.
Id.; Warth v. Seldin, 422
U.S. 490, 515 (1975).
27
Plaintiffs are in error here. The Fifth Circuit’s “cases
uniformly show that unless the true political entity [here, the
home rule city] has taken explicit steps to grant to the servient
agency jural authority, the agency cannot engage in any litigation
except in concert with the government itself.” See Darby, 939 F.
2d at 313; in accord Thomas-Melton v. Dallas County Sheriff’s
Dept., 39 F.3d 320 (Table), No. 94-10049, 1994 WL 612546, at *2 (5th
Cir. 1994).
The subdivision must have “a separate legal
existence,” i.e., it must be a “separate and distinct corporate
entity” apart from the city.
Skyway Towers LLC v. City of San
Antonio, No. 5:14-CA-410-DAE, 2014 WL 3512837, at *5 (W.D. Tex.
July 14, 2014). This requirement is not met by a general grant of
“all powers.” Id.
-77-
10.
While Plaintiffs claim they have met all pleading standards,
in an abundance of caution they ask leave to file an amended
complaint.
Plaintiffs, asserting that Defendants rely on a constricted
interpretation of Monell and its progeny, highlight the following
passage in Monell, 436 U.S. at 690 (emphasis added):
[M]unicipalities and other local government units . . .
can be sued directly under § 1983 for monetary,
declaratory, or injunctive relief where . . . the action
that is alleged to be unconstitutional implements or
executes a policy statement, ordinance, regulation, or
decision officially adopted and promulgated by that
body’s officers.
See also Pembaur, 475 U.S. 480 (“No one has ever doubted, for
instance, that a municipality may be liable under § 1983 for a
single decision by its properly constituted legislative body-whether or not that body had taken similar action in the past or
intended to do so in the future--because even a single decision by
such a body unquestionably constitutes an act of official government
policy.”). Under various standards that identify or define official
policy, the City of Houston, acting through its City Council, is a
“policy maker”; or TIRZ 17 and the Authority acting through their
unified board, is the other “policy maker”; or TIRZ 17 board
decisions (CIPs and budgets) are presented to City Council, which
approves them in City Ordinances,28 are ordinances, decisions or
policies under Monell.
Furthermore the City’s action in approving
the project plans and the TIRZ actions in proposing project plans
28
See City Ordinances attached to First Amended Complaint.
-78-
are the “moving force” in the constitution violations under Monell
because they led to the flooding of Plaintiffs’ homes.
The due process clause, in addition to “‘guarantee[ing] more
than fair process,’” also “cover[s] a substantive sphere.”
County
of Sacramento v. Lewis, 523 U.S. 833, 840 (1998). “[T[he touchstone
of due process is the protection of the individual against arbitrary
action of government,” whether the fault lies in a denial of
fundamental procedural fairness or in the exercise of power without
any
reasonable
justification
governmental objective.
in
the
service
of
a
legitimate
Id. at 845-46.
The Fifth Circuit has concluded that a substantive due process
claim has two elements: (1) whether the plaintiff has been deprived
of
a
constitutionally
governmental
action
governmental interest.
protected
is
have
rationally
and
related
(2)
to
whether
a
the
legitimate
Mikeska v. City of Galveston, 451 F. 3d
376, 379 (5th Cir. 3006).
Plaintiffs
right,
A property right in one’s home, which
alleged,
is
constitutionally
protected
and
sufficient for substantive due process. Id. The remaining question
for this Court is “[w]hether Plaintiffs have alleged sufficient
facts,
liberally
Defendants
have
construed,
a
rational
that
basis
call
for
into
question
approving
TIRZ
whether
drainage
projects and deferring residential projects, given their knowledge
about flooding risks and the need for regional detention in the
neighborhoods surrounding TIRZ 17.”
#11 at p.18.
Plaintiffs urge
the Court to allow additional factual development before making a
determination.
-79-
Plaintiffs state that they do not object to remedying of blight
for the TIRZ 17 community as long as it is not transferred to
surrounding communities, of which they do complain.
These latter
activities transferring the blight to their homes are the basis of
Plaintiffs’ due process claim and they have no rational basis.
The
rational basis inquiry is made in reference to the decisions,
actions, inactions and approvals of the City of Houston and TIRZ 17
year after year regarding reducing flooding in TIRZ 17 but failing
to relieve it in Plaintiffs’ residential areas.
Plaintiffs argue
that spending tens of millions of dollars of public money to improve
flooding in one area that directly causes increased flooding in
adjacent areas without any effort to alleviate it is irrational,
arbitrary, and an abuse of governmental power.
Plaintiffs continue to insist they have stated a substantive
due process claim under the state-created-danger theory.
the Fifth
Although
Circuit has not adopted it, the Circuit has defined its
parameters under the substantive due process clause:
“a plaintiff
must show the defendants used their authority to create a dangerous
environment
for
the
plaintiff
and
that
defendants
acted
deliberate indifference to the plight of the plaintiff.”
343 F.3d at 537-38.
with
Scanlon,
See also Johnson v. Dallas I.S.D., 38 F.3d at
200 (explaining that every court to have accepted the theory has
“uniformly held that state actors may be liable if they created the
plaintiffs’ peril, increased their risk of harm, or acted to render
them more vulnerable to danger.”).
Plaintiffs contend that they
have pled facts that adequately support the state-created danger
-80-
theory in the face of a Rule 12(b)(6) challenge:
(1) Defendants’
actions have created a dangerous environment for Plaintiffs by
sending floodwaters into the neighborhoods without instituting any
drainage improvements as protection to offset the floodwaters; and
(2) Defendants acted with deliberate indifference by ignoring
Plaintiffs’ repeated and vocal complaints and numerous engineering
studies--which Defendants, themselves, commissioned–-showing the
desperate need of flood relief and a worsening situation.
TIRZ erroneously insists that Plaintiffs’ Fourteenth Amendment
claim is a “mislabeled” takings claim that is not ripe.
A takings
claim requires the denial of just compensation for property loss.
Plaintiffs here have not alleged they are seeking damages.
The
Fifth Circuit has held that “substantive due process claims alleging
deprivations of property are not necessarily subsumed under the
Takings Clause.” Simi Invs. Co. v. Harris County, 236 F.3d 240, 248
(5th Cir. 2000)(discussing John Corp.’s holding)(affirming district
court’s granting of damages to a plaintiff for a substantive due
process claim even after the plaintiff admitted its takings claim
was not ripe).
Plaintiffs, however, assert that the Takings Clause
does not apply to the present case.
Plaintiffs also insist that they state a cause of action for
substantive due course of law under the Texas Constitution when the
government deprives individuals of constitutionally protected rights
by an arbitrary use of its power, and that such a claim for
protection
is
congruent
with
one
under
the
United
States
Constitution. They have stated a claim under the Texas Constitution
-81-
in alleging that they have a property interest in their homes, that
Defendants’
actions
arbitrarily
favored
commercial
property
interests over their residential property interests, and Defendants’
actions lack a rational basis in failing to provide flood relief for
Plaintiffs after sending stormwaters into their neighborhoods.
Plaintiffs maintain that they have also stated a claim for an
unreasonable Fourth Amendment seizure of their property by the
government
in
using
the
public
fisc
to
send
stormwater
into
Plaintiffs’ private, real-property homes where no flooding had
previously occurred.
Plaintiffs
entitlement
to
also
contend
injunctive
that
relief
the
federal
(plaintiff
standard
has
suffered
for
an
irreparable injury; the remedies available at law are inadequate to
compensate for that injury; given the relative hardships a remedy
in equity is warranted; and the public interest would be served by
a permanent injunction) is not applicable for Rule 12(b) motions.
If the Court decides to apply it, Plaintiffs cite as an irreparable
injury that Plaintiffs’ homes have flooded multiple times, as an
inadequate remedy at law that Plaintiffs have spent thousands of
dollars for repairs with each flood, and feel unsafe in their own
homes for fear of rain entering them; after all the harm to
plaintiffs, the equities balance in their favor; and the continuing
nature of Plaintiffs’ injuries render a remedy of money damages
inadequate.
Plaintiffs
maintain
that
they
have
properly
pleaded
a
controversy between the parties for a claim under the Federal
-82-
Declaratory Judgment
Act.
American States Ins. Co. v. Bailey, 133
F.3d 363, 368 (5th Cir. 1998)(“A federal court may not issue a
declaratory judgment unless there exists ‘an actual controversy.’”).
In addition, Plaintiffs assert their § 1983 claims are not
time-barred.
Defendants have prematurely challenged limitations
because they sufficiently allege facts showing that Defendants’
actions are ongoing and that their 1983 claim did not accrue until
less than two years before they filed suit.
“Because the statute
of
and
limitations
is
an
affirmative
defense
not
a
pleading
requirement, it is an issue that must be resolved through discovery
and summary judgment or trial.”
Frame, 657 F.3d at 240.
Thus they
should not be dismissed before the opportunity for discovery and
summary judgment motion practice. Moreover federal law governs when
the cause of action accrues, that is “when the plaintiff becomes
aware he has suffered an injury or has sufficient information to
know that he has been injured.”
1184 (5th Cir. 1991).
Brummett v. Camble, 946 F.2d 1178,
Under the continuing violation doctrine, the
Supreme Court has held that claims “will not be time barred so long
as all acts which constitute the claim are part of the same unlawful
[] practice and at least one act falls within the time period.”
Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 122 (2002);
Havens Realty Corp v. Coleman, 455 U.S. 363, 380-81 (1982); Jackson
v. Galan, 868 F.2d 165, 168 (5th Cir. 1989)(applying continuing
violation doctrine to § 1983 due process claim and finding lawsuit
was timely as to most claims and “was not barred for purposes of
injunctive and declaratory relief”); Dews v. Town of Sunnyvale,
-83-
Texas, 109 F. Supp. 2d 526, 563 (N.D. Tex. 2000)(applying continuing
violation doctrine to § 1983 claim and finding no limitations bar).
Plaintiffs assert the doctrine applies here.
Plaintiffs have pled
“continuous unlawful acts by Defendants and identified “at least one
violation that is within the statute of limitations.”
Jackson, 908 F. Supp. 2d 834, 873 (S.D. Tex. 2012).
SEC v.
The TIRZ 17
Board of Directors typically submits CIPs to the City Council for
each calendar year, and for the 2015 calendar year the City Council
approved the CIP in December 2014--less than two years from when
Plaintiffs filed their suit. First Am. Compl. ¶ 53 (citing Exh. D).
That CIP contemplated projects for TIRZ 17, but no flood control
projects to benefit Plaintiffs’ residential neighborhoods despite
Defendants’ engineering reports that recommended flood alleviation
projects which, if implemented, would have provided flood relief to
numerous homes before the April 2016 flood event.
Furthermore Plaintiffs’ requested relief shows that this case
is not time barred. They do not ask for damages for flooding before
2014.
Instead they ask for injunctive relief to force Defendants
to take specific action to prevent future inundations and avoid
Plaintiffs’ being displaced again and enduring more expensive home
repairs.
In the alternative to the continuing violation doctrine,
Plaintiffs, viewing the complaint in the light most favorable to
Plaintiffs, contend that the allegations of the Complaint show that
Plaintiffs’ § 1983 claim did not accrue until either December 2014
or the flood event in 2015.
“[A] plaintiff’s awareness [of his
-84-
injury] encompasses two elements:
(1) the existence of the injury;
and (2) causation, the connection between the injury and the
defendant’s actions.”
Piotrowski v. City of Houston (“Piotrowski
I”), 51 F.3d 512, 516 (5th Cir. 1995).
Defendants pronounce the
2009 flood as “unprecedented” (#5 at p. 9), but then claim it should
represent the date of accrual: they cannot have it both ways. They
argue that it was not until the 2015 flood that Plaintiffs could
have reasonably been expected to understand that the flooding was
not an “unprecedented” act of God, but a repetitive man-made event
caused by Defendants’ ongoing actions within TIRZ 17.
About the
same time they reasonably expected Defendants would expend funds to
give them relief, as they actively advocated before City Council and
the TIRZ Board.
Plaintiffs insist that TIRZ is not merely a geographic area of
Houston, but also a suable entity according the City’s Ordinance and
also a suable alter ego of the Authority.
Under Chapter 311 of the
Texas Tax Code, the municipal ordinance creating a TIRZ must
describe its borders, establish a board of directors, create an
expiration date for the zone, include required legislative findings
regrading investment zone criteria, and create a tax increment fund.
Tex. Tax Code § 311.004(a)(1)-(7). City Ordinance 1999-759 creating
TIRZ 17 followed.
#7-1.
Subsequently the City approved TIRZ’s
first project plan and financing plan.
#7-3, Ordinance 1999-852.
The City created a seven-member Board to administer the TIRZ,
making the TIRZ, itself, a decision-making body separate and apart
from the City and able to hold meetings, deliberate, and take votes.
-85-
#7-1, Ordinance 1999-759 (functions of the Board).
The Ordinance
authorizes the TIRZ’s Board “to exercise all of the City’s powers
necessary to administer, manage, or operate the Zone . . . ,” in
other words, the City delegated the maximum authority permitted by
state law, with a separate legal existence from the City, making it
an entity that can sue and be sued.
Tex. Tax Code § 311.010(a).
#7-1 at p.8 (emphasis added);
The 2003 Tri-Party agreement among the
City, the Authority and the TIRZ 17 shows that the TIRZ was
considered separate from the other two, but with equal powers to
contract.
The City Charter art. II, § 1 (#7 at p. 13) states that
the “City of Houston, made a body politic and corporate by this Act,
. . . may sue and be sued, . . . implead and be impleaded in all
courts and places and in all matters whatsoever . . . ,” while Texas
Local Government Code § 51.075 states, “The municipality may plead
and be impleaded in any court.”
The Texas Tax Code § 311.008 lists
the powers that the City did reserve to itself, including power to
approve project plans, acquire property to implement project plans,
make agreements with bondholders, acquire or construct public works
to implement project plans, etc.
There are no express statements
anywhere reserving the power to sue and be sued just to the City,
however.
As for the alternative theory that TIRZ 17 is the alter ego of
the Authority and thus a suable entity, as noted supra, the two
share the same Board members and “function in parallel as a single
decision-making body.”
#1 ¶¶49-50.
-86-
As for the RAF’s having associational standing, the Supreme
Court held in Hunt v. Washington State Apple Advertising Commission,
432 U.S. at 343, that an association has standing to bring suit on
behalf of its members when (1) its members would otherwise have
standing to sue in their own right, (2) the interests it seeks to
protect are germane to the organization’s purpose, and (3) neither
the
claim
asserted
nor
the
relief
requested
requires
the
participation in the lawsuit of each of the individual members.
accord, Friends of the Earth, 129 F.3d at 827-28.
In
As noted, the
first two elements are constitutional requirements, while the third
is “solely prudential.”
F.3d at 550.
Ass’n of Am. Physicians & Surgeons, 627
Defendants have charged that Plaintiffs fail to
satisfy the first and the third elements. For the first, Plaintiffs
have pleaded that Plaintiffs Virginia Gregory and Lois Morris (and
later non-plaintiff Roger Grindell) are RAF members and supporters
who have been injured by the flooding, and Defendants have not
challenged that assertion. United Food and Commercial Workers Union
Local 751 v. Brown Group, Inc., 517 U.S. 544, 555, 558 (1996)(first
element satisfies Article III constitutional requirement when the
association
“include[s]
at
least
one
member
with
standing
to
present, in his or her own right, the claim.”); N.Y. State Club
A’ssn, Inc. v. City of New York, 487 U.S. 1, 9 (1988)(“[T]he purpose
of the first part of the Hunt test is simply to weed out plaintiffs
who try to bring cases, which could not otherwise be brought, by
manufacturing
foundation.”).
allegations
of
standing
that
lack
any
real
Plaintiffs argue that there is no doctrine or
-87-
authority, and Defendants fail to cite one, that an association must
have members separate from members listed as plaintiffs.
The RAF
has named Gregory, Morris, and Grindell, and represents that it has
similar additional members that could sue for purposes of the first
element.
In fact, Plaintiffs filed their Amended Complaint naming
non-plaintiff Roger Grindell as the third RAF member (#14, ¶178),
in the event that the Court requires one.
The third, prudential
element “focuses . . . on ‘matters of administrative convenience and
efficiency.’”
Ass’n of Am. Physicians & Surgeons, 627 F.3d at 551,
citing Brown Group, 517 U.S. at 557.
Courts evaluate this element
by looking at both the relief requested and the claims asserted.
Id.
When the plaintiffs seek damages, it is more difficult for an
association to sue on behalf of its members; where the claim
asserted requires the participation of members individually, rather
than as an association,” such as when the amount of damages varies
from one individual to another, the association should not sue on
behalf of its members.
United Food, 517 U.S. at 558; Tex. Assoc.
of Bus. v. Tex. Air Ctrl. Bd., 852 S.W. 2d 440, 447 (Tex. 1993).
In the case sub judice, Plaintiffs do not seek damages so the
prudential concern of judicial efficiency is not involved.
“If in
a proper case the association seeks a declaration, injunction, or
some other form of prospective relief, it can reasonably be supposed
that the remedy, if granted, will inure to the benefit of those
members of an association actually injured.
Indeed, in all the
cases in which the Fifth Circuit has expressly recognized standing
in associations to represent their members, the relief sought has
-88-
been of this kind [“declaration, injunction, or some form of
prospective relief”] and “it can reasonably be supposed that the
remedy, if granted, will inure to the benefit of those members of
the association actually injured.”
515.
Warth v. Seldin, 422 U.S. at
Plaintiffs maintain that judicial efficiency in this suit is
attained by having the RAF sue on behalf of its members, rather than
having a case with a hundred or more member plaintiffs seeking the
same relief.
Indeed, since the third prong is only prudential, a
court can abrogate the requirement.
Although maintaining that its original complaint satisfies all
pleading requirements, “in an abundance of caution” if the Court
finds it so requires, Plaintiffs request leave to file a more
definite statement.
The Zone and the Authority’s Reply (#16)
The Zone and the Authority highlight the fact that in their
Amended Complaint, Plaintiffs concede that the drainage policy which
they first challenged has since been replaced and that the new
policy includes the construction of the drainage and infrastructure
that Plaintiffs originally sought.
On August 30, 2016 in Ordinance
No. 2016-645 the City Council approved, adopted, and funded for the
2017 operating budget and for the 2017 CIP the following capital
improvements that were recommended in the 2014 Amendment to the LAN
Regional Drainage Study and that Plaintiffs had sought to have
implemented: (1) two W-140 Channel improvements intended to “reduce
street
ponding
and
flooding
in
the
surrounding
areas”;
(2)
construction of box culverts along Memorial Drive and North Gessner
-89-
to
improve
drainage
and
mobility
and
to
provide
additional
detention; and (3) construction of two additional detention basins
to mitigate flooding in surrounding residential and commercial
areas. Thus their section 1983 claim for injunctive relief has been
mooted by implementation of the new policy.
“[I]f the purported injury is ‘contingent [on] future events
that may not occur as anticipated, or indeed may not occur at all,’
the claim is not ripe for adjudication.”
617 F.3d 336, 342 (5th Cir.
2012).
Lopez v. City of Houston,
Plaintiffs’ abstract concerns
that Defendants will not implement the new policy do not present an
issue that is ripe for adjudication.
Monks v. Houston, 340 F.3d
279, 282 (5th Cir. 2003)(“A court should dismiss a case for lack of
‘ripeness’ when the case is abstract or hypothetical.”), citing New
Orleans Pub. Serv., Inc. v. Council of New Orleans, 833 F.2d 583,
586 (5th Cir. 1987); Mississippi State Democratic Party v. Barbour,
529 F.3d 538, 545 (5th Cir. 2008).
Even if the Court did not
previously consider the nonjusticiable nature of Plaintiffs’ claims,
it should do so now for other reasons.
the Zone is not a suable entity.
Plaintiffs reiterate that
State law determines the capacity
of a governmental entity to sue or be sued in federal court. Skyway
Towers LLC v. City of San Antonio, No. 5:14-CA-410-DAE, 2014 WL
3512837, at *4 (W.D. Tex. July 14, 2014), citing Fed. R. Civ. P.
17(b); 6A Wright, Miller & Kane, Federal Practice & Procedure:
Civil 2d § 1562 (2d ed. 1990).
Texas law allows a city “to
designate whether one of its own subdivisions can be sued as an
independent entity.”
Id., citing Darby, 939 F.2d at 313.
-90-
For
example, the Zone is not suable because the City has not explicitly
granted the Zone the ability to sue or be sued.
See Darby, 939 F.
2d at 313 (“[O]ur cases uniformly show that unless the true
political entity [here, the home rule city] has taken explicit steps
to grant to the servient agency jural authority, the agency cannot
engage in any litigation except in concert with the government
itself.”); in accord Thomas-Melton v. Dallas County Sheriff’s Dept.,
39 F.3d 320 (Table), No. 94-10049, 1994 WL 612546, at *2 (5th Cir.
1994).
The subdivision must have “a separate legal existence,”
i.e., it must be a “separate and distinct corporate entity” apart
from the city.
Skyway Towers LLC v. City of San Antonio, No. 5:14-
CA-410-DAE, 2014 WL 3512837, at *5 (W.D. Tex. July 14, 2014).
requirement is not met by a general grant of “all powers.”
This
Id.
If
the subdivision does not have such jural authority, it cannot be
sued with the city that created it.
Id.
Furthermore the Zone and
the Authority maintain that no authority supports Plaintiffs’ claim
that jural authority can be imputed by means of an alter ego theory,
and the Court has been unable to find any.
Next the Zone and the Authority assert that Plaintiffs’ § 1983
claims are barred by limitations despite the fact that their alleged
injuries are continuing. Plaintiffs claimed that their flooding was
caused by the first policy they challenged and that they had
“vocally and repeatedly” complained to City Council as early as
2007, 2011, and 2012, more than two years before they filed their
suit.
Thus the continuing violation theory does not apply here
because they admit they were aware of the discrete acts that gave
-91-
rise to their claims nine years before they filed suit.
They also
admit that they complained about a single discrete policy that
resulted in lingering flooding.
The Zone and the Authority argue that the § 1983 claims are
implausible because Defendants’ conduct is not the “moving force”
behind any alleged violations of Plaintiffs’ constitutional rights
because the “final policies” about which they complain are made, and
can only be made, by the City Council.
Meyers v. La Porte Indep.
School District, 277 Fed. Appx. 333, 335 (5th Cir. Dec. 20, 2887)
To meet the “irreducible constitutional minimum” of standing,
i.e., the “case or controversy” requirement of Article III, a
plaintiff must demonstrate he has experienced an “injury in fact”
that is “fairly traceable” to the defendant’s actions and that will
probably be remedied by a favorable decision. Bennett v. Spear, 520
U.S. 154, 162 (1997).
The
United States Supreme Court defines
“injury in fact” as “a concrete and particularized, actual or
imminent invasion of a legally protected interest” that is “actual
or imminent, not conjectural or hypothetical.”
of Wildlife, 504 U.S. 555, 560 (1992).
Lujan v. Defenders
Next ‘’there must be a
causal connection between the injury and the conduct complained ofthe injury has to be ‘fairly . . . traceable to the challenged
action of the defendant, and not . . . th[e] result [of] the
independent action of some third party not before the court.’’” Id.
Last it must be probable, not simply speculative, that a favorable
decision will remedy the injury.
Id. at 561.
-92-
“[T]o qualify as a case for federal court adjudication, a case
or controversy must exist at all stages of the litigation, not just
at the time the suit was filed.”
Bayou Liberty Ass’n, Inc. v. U.S.
Army Corps of Engineers, 217 F.3d 393, 396 (5th Cir. 2000).
Regarding Article III, a claim becomes moot, in other words there
is no longer a “case” or a ”controversy,” if the issues it raises
are no longer live or if the plaintiff lacks a legally cognizable
interest in the outcome.
Already, LLC v. Nike, Inc., 133 S. Ct.
721,
133
726
(2013),
aff’d,
S.
Ct.
721
(2013)(“[A]n
‘actual
contrast’ must exist not only ‘at the time the complaint was filed,’
but through ‘all stages’ of the litigation.”); Stauffer v. Gearhart,
741 F.3d 574, 582 (5th Cir. 2014)(“If the controversy between [the
parties] has been ‘resolved to the point that they no longer qualify
as ‘adverse parties with sufficient legal interests to maintain the
litigation,’ we are without power to entertain the case.”).
Furthermore when the government defendant voluntarily eliminates a
practice challenged as illegal, “courts are justified in treating
a voluntary governmental cessation of possible wrongful conduct with
some solicitude, mooting cases that might have been allowed to
proceed had the defendant not been a
public entity.”
Allied Home
Mortg. Corp. v. United States HUD, 618 Fed. Appx. 781, 786 (5th Cir.
2015).
The reason is that government actors, in the exercise of
their official duties, “are accorded a presumption of good faith
because they are public servants, not self-interested private
parties.”
Sossamon v. Lone Star State of Texas, 560 F.3d 316, 325
(5th Cir. 2009), aff’d, 563 U.S. 277 (2011).
-93-
Thus the Court should
find Plaintiffs’ claims are moot and should dismiss them due to a
lack of an Article III case or controversy.
Id.
The Zone and the Authority additionally assert that Plaintiffs
have not stated plausible substantive due process or due course of
law claims.
Plaintiffs’ pleading of a possible arbitrary basis for
Defendants’ actions is not what the law requires.
The proper test
for substantive due process is the deferential “rational basis”
test:
is the Defendant government’s action rationally related to
a legitimate governmental interest?
FM Prop. Operating Co. v. City
of Austin, 93 F.3d 167, 174 (5th Cir. 1996).
Whether a rational
relation exists is a question of law for the court.
Simi, 236 F.3d
at 249.
Defendants repeat that not only has the Fifth Circuit not
adopted the state-created-danger theory, but that theory applies
only where the alleged harm has been caused by a third party.
Kinsie v. Dallas County Hosp. Dist., 106 Fed. Appx. 192, 195 (5th
Cir. 2003)(per curiam), citing Randolph v. Cervantes, 130 F.3d 727,
731 (5th Cir. 1997); Piotrowski II, 237 F.3d at 583, 585; Johnson v.
Dallas I.S.D., 38 F.3d at 201.
There is no third party involved
here: Plaintiffs complain only that they are the “victims of
Defendants’ actions.”
The Zone and the Authority repeat that a Fourth Amendment
seizure claim requires a willful and intentional seizure, not just
evidence of an intentional policy, contrary to Plaintiffs’ erroneous
argument in their response that the intent element does not entail
intentional seizure, but only an allegation of an intentional
-94-
policy.
The Supreme Court in Brower v. City of Inyo, 489 U.S. 593,
596 (1989), opined that a “[v]iolation of the Fourteenth Amendment
requires an intentional acquisition of physical control,” i.e., “the
detention or taking itself must be willful. This is implicit in the
word ‘seizure.’ which can hardly be applied to an unknowing act.”
Id., citing Laughlin v. Olszewski, 102 F. 3d 190, 193 (5th Cir.
1996)(same and finding no seizure where the “interference with
[plaintiff’s] possessory interest in his property was a wholly
unintentional consequence of [defendant’s] otherwise lawful act.”).
The adoption of all government policy is intentional.
Finally they reiterate that Plaintiffs’ request for declaratory
and injunctive relief is improper because Plaintiffs ask to have
this Court take over the policymaking, budgeting, and implementation
decisions of elected officials, i.e., the Houston City Council.
Moreover, the new policy replacement containing the drainage and
infrastructure projects that Plaintiffs had been seeking, renders
Plaintiffs’ complaints moot and forecloses such relief.
City’s Reply (#17) to Plaintiffs’ Consolidated Response (#11) and
Motion to Dismiss First Amended Complaint (#14)
The City asks the Court to dismiss the First Amended Complaint
under Rules 12(b)(1) and 12(b)(6) for the same reasons as it stated
in
its
original
complaint.
motion
to
dismiss
(#5)
Plaintiffs’
previous
Reiterating the Zone and the Authority’s argument that
now the 2017 CIP and budget, memorialized in City Ordinances, have
mooted Plaintiffs’ original claims and that Plaintiffs no longer
have an actual case and controversy, so their claims are no longer
-95-
justiciable, the City further points out that Plaintiffs cannot
raise the “capable of repetition but evading review” exception to
the mootness doctrine. When the defendant is a governmental entity,
it is accorded the presumption of good faith for deciding whether
policy changes render a lawsuit against the government moot.
Sossamon, 560 F.3d at 325.
For the doctrine to apply, there must
be exceptional circumstances in which (1) the challenged action is
too short in duration to be fully litigated prior to the cessation
of expiration; and (2) there is a reasonable expectation that the
same complaining party will be subject to the same action again.
Bayou Liberty Ass’n, 217 F.3d at 398, quoting Spence v. Kemna, 523
U.S. 1, 17 (1998).
situation
is
The City observes that even though Plaintiffs’
capable
of
repetition
but
evading
review,
the
circumstances are not sufficient to entitle Plaintiffs to vent their
grievances in a federal judicial forum or revive their dispute,
which became moot before the next action can commence.
Friends of
the Earth, 528 U.S. at 189 (“[T]he mootness exception for disputes
capable of repetition yet evading review . . . will not revive a
dispute which became moot before the action commenced.”), citing
Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 109
(1998), and quoting Renne v. Geary, 501 U.S. 312, 320 (1991)).
Plaintiffs’ injuries for which they seek injunctive relief are being
redressed and their complaints about construction of drainage
improvement projects are currently underway.
They are in no
immediate danger of sustaining direct injury as the result of the
challenged
official
conduct.
Thus
-96-
Plaintiffs’
First
Amended
Complaint fails to state a claim for injunctive or declaratory
relief.
The City identifies eight issues to be ruled upon by the Court:
1.
Do Plaintiffs lack standing because their claims are
moot?
2.
Does the Court have jurisdiction over Plaintiffs’
claims that are not yet ripe?
3.
Does the City have immunity from suit and from
liability for claims arising from its implementation of
infrastructure and drainage projects, its regulation of
commercial projects, and its regulation of commercial
development?
4.
Have Plaintiffs alleged facts that would constitute
official policy or custom to give rise to a Section 1983
claim?
5.
Have
constitute
the
Plaintiffs
violations
alleged
of
any
facts
federally
that
would
protected
constitutional rights?
6.
Do the associational standing claims brought by the
RAF pass muster?
7.
Are Plaintiffs’ claims time barred?
8.
Are Plaintiffs entitled to injunctive relief?
The City repeats a number of previous arguments and asserts a
few new ones.
First, it reiterates that the City has absolute
immunity from any claims based on its performance of governmental
functions designed to address flooding problems, which are “enjoined
-97-
on a municipality by law and are given to it as part of the state’s
sovereignty,” and which expressly include “street construction and
design,”
“sanitary
and
storm
sewers,”
“building
codes
and
inspection,” “zoning, planning and plat approval,” and “engineering
functions.”
City of Friendswood, 489 S.W. 3d at 523; Tex. Civ.
Prac. & Rem. Code § 101.0215.
Governmental functions also include
“community development or urban renewal activities undertaken by
municipalities and authorized under Chapters 373 and 374, Local
Government Code.”
Id., citing Tex. Loc. Gov’t Code §§ 373.001, et
seq., 374.001, et seq.
All of the conduct of which Plaintiffs
complain is the exercise of governmental functions, “repackaged” as
tort claims alleged in the First Amended Complaint29 (#17 at p. 25)
and immune from liability and suit: “Defendants widened and lowered
Bunker Hill Road . . . and replaced storm sewers”; Defendants
“rebuilt the Bunker Hill bridge”; Defendant TIRZ 17 “approved
construction of a 42-inch storm drain”; Defendants “made changes to
the road and storm sewers along South Gessner Drive”; Houston
“approved
construction
of
a
shopping
29
center”;
and
Defendants
The Court agrees with Defendants that “the government may
not be sued in tort unless a separate, viable tort fits within the
limited waiver provided by the [Texas Tort Claims] Act.” Rodriguez
v. Christus Spohn Health Sys. Corp., 628 F.3d 731, 736 (S.D. Tex.
2010). The Texas Tort Claims Act does not include a waiver for
“legislative functions of a government unit” and/or the City’s
discretionary powers. Tex. Civ. Prac. & Rem. Code §§ 101.052 and
101.056. Nor has the City “waived its immunity by consenting to
suit in federal court in the Texas Tort Claims Act for § 1983
claims.” Bishop v. City of Galveston, Tex., no. H-11-4152, 2013 WL
960531, at *9 (S.D. Tex. Mar. 12, 2013), citing Quern v. Jordan,
440 U.S. 332, 340-45 (1979).
Plaintiffs try to shoehorn their
claims into the category of § 1983 claims, but fail to plead facts
to meet the required elements of a § 1983 claim under either the
Fourth or Fourteenth Amendments.
-98-
approved of a “reimbursement contract” for a developer’s water
detention facility.
#14, ¶ 85, 87, 90, 92, 105 and 134-37.
Plaintiffs cannot circumvent the City’s governmental immunity
from suit by labeling their tort allegations as a declaratory
judgment claim.
Burkett v. City of Haltom City, No 4:14-CV-1041-A,
2015 WL 3988099, at *4 (N.D. Tex. June 30, 2015)(plaintiff cannot
avoid dismissal by drafting her claims as a request for declaratory
judgment).
Without a clear and unambiguous waiver of government
immunity by the legislature, a declaratory judgment is usually moot
where “the question presented for decisions seeks a judgment upon
a matter which, even if the sought judgement were granted, could not
have any practical effect upon the parties.”
Ferreira v. Dubois,
963 F. Supp. 1244, 1262 (D. Mass. 1996), quoting Perez v. Sec’y of
Health, Educ., & Welfare, 354 F. Supp. 1342, 1346 (D.P.R. 1972).
The Federal Declaratory Judgment Act (“FDJA”) permits a federal
court to issue a declaratory judgment where there is “an actual
controversy within its jurisdiction within the meaning of Article
III”--the
issues
are
“live”
or
the
cognizable interest in the outcome.”
486, 496 (1969).
parties
have
a
“legally
Powell v. McCormack, 395 U.S.
Plaintiffs’ factual allegations do not show a
substantial and continuing controversy between Plaintiffs and the
City, i.e., that the plaintiff “‘has sustained or is immediately in
danger of sustaining some direct injury; as a result of the
challenged official conduct and the injury or threat of injury must
be both ‘real and immediate,’ not ‘conjectural’ or ‘hypothetical.’”
-99-
Lyons. 461 U.S. at 101-02.
Plaintiff have not alleged any facts to
support this element of declaratory relief.
Courts also have no jurisdiction to take over the discretionary
functions of
the other two branches of government.
In Collins v.
City of Harker Heights, Texas, 503 U.S. 115, 128-29 (1992), the
United States Supreme Court opined,
Decisions concerning the allocation of resources to
individual programs, such as sewer maintenance, and to
particular aspects of those programs, . . . involve a
host of policy choices that must be made by locally
elected representatives, rather than by federal judges
interpreting the basic charter of Government for the
entire country.
Furthermore, Defendants are immune from the specific injunctive
relief requested, i.e., having the judicial branch act outside its
prescribed role to become Houston’s zoning authority, deciding which
commercial permits the City should issue, and prioritizing flood
relief projects near Plaintiffs’ properties.
In addition, the
injunctive relief requested is overly broad, not “narrowly tailored
to remedy the specific action necessitating the injunction.”
Fiber
Sys. Int’l v. Roehrs, 470 F.3d 1150, 1159 (5th Cir. 2006).
Plaintiffs fail to state a claim under § 1983, the Fourteenth
and/or Fourth Amendments to the United States Constitution, and
Article 1, Section 19 of the Texas Constitution. They fail to plead
facts demonstrating that the City “acted pursuant to a specific
official policy, which was promulgated or ratified by a legally
authorized policymaker.
Groden v. City of Dallas, Texas, 826 F.3d
280, 282 (5th Cir. 2016).
The fact pattern presented in the Amended
Complaint is, at best, a few steps short of “fairly typical state
-100-
law tort” claims that do not rise to the level of substantive due
process violations. Kinzie, 106 Fed. Appx. at 193, quoting Collins,
503 U.S. at 128 (“The Supreme Court has ‘rejected claims that the
Due Process Clause should be interpreted to impose federal duties
that are analogous to those traditionally imposed by state law.’”).
Plaintiffs’ stated claims are not constitutional violations
flowing from government policy, but simply a litany of conclusory
complaints about drainage projects, which they argue are linked to
subsequent flooding of unspecified property, and which gloss over
the required elements of their substantive due process and Fourth
Amendment claims.
In essence they are repackaged tort claims
against the City lacking the key elements of causation and intent.
Collins, 503 U.S. at 128; Laughlin v. Olszewski, 102 F. 3d at 193
(citing
Brower,
489
U.S.
at
596)(a
seizure
under
the
Fourth
Amendment requires an intentional acquisition of physical control).
There are no facts alleged to support their claim of substantive
deprivation of their constitutional rights.
Plaintiffs fail to identify any City policy promulgated or
ratified by any City policymaker.
They do not allege facts to
establish a custom, policy practice of the City that was the moving
force behind the alleged constitutional violations.
They do not
allege facts demonstrating that any of them were deprived of a right
secured by the Constitution and federal laws as the result of any
alleged acts or omissions by the City.
survive the City’s motion to dismiss.
-101-
Thus Plaintiffs cannot
Nor have they pleaded facts stating a claim for violations of
the 14th and 4th Amendments to the United States Constitution, but
only conclusory allegations.
For the due process claim, Plaintiffs
must satisfy two requirements:
(1) do Plaintiffs have a protected
property interest, and if so, (2) did they receive all the process
that was due them?
Walls v. Cent. Contra Costa Transit Auth., 953
F.3d
(9th
963,
967-68
Cir.
2011).
The
City
complains
that
Plaintiffs make vague, general allegations of violations of their
rights under the Fourth and Fourteenth Amendments, as well as under
the Texas Constitution’s “due course of law” clause, Article I,
Section 19.
In addition they fail to allege causal link between
their complaints and the government “abusing its power,” such as by
“acting arbitrarily” without a “rational basis.”
#14, at 30-31, ¶¶
188-96.
Pleading in generalities and speculating about possible future
harm, Plaintiffs fail to describe specific examples of “failing to
build flood protection,” or “failing to require mitigation (such as
detention)” or “sending floodwaters into [Plaintiffs’ homes].”
Conclusory allegations and speculation will not defeat a motion to
dismiss under Rule 12(b)(6).
Twombly, 550 U.S. at 555.
In
analyzing a substantive due process claim, the sole question is
whether a rational relationship exists between the policy and a
conceivable legitimate objective.
If the question is in the least
debatable, there is no substantive due process violation.
Investment, 236 F.3d at 250-51.
-102-
Simi
Nor do Plaintiffs’ allegations satisfy the elements required
to
maintain
a
state-created-danger
substantive due process violation:
theory,
a
subset
of
the
“(1) a plaintiff must show that
the state actors increased the danger to plaintiff; and (2) a
plaintiff must show that the state actors acted with deliberate
indifference.”
Piotrowski I, 51 F.3d at 515.
To state a claim for
deliberate indifference, “[t]he environment created by the state
actors must be dangerous; they must know it is dangerous; and . .
. they must have used their authority to create an opportunity that
would otherwise not have existed for the third party’s crime to
occur.”
Johnson, 38 F.3d at 201.
“The key to the state-created
danger cases . . . lies in the state actors’ culpable knowledge and
conduct in ‘affirmatively placing an individual in a position of
danger, effectively stripping a person of her ability to defend
herself, or cutting off potential sources of private aid.’”
Id.
The City also points out that a plaintiff is not entitled to
governmental protection from non-state, third-party actors under
this theory under the facts here.
Randolph, 130 F.3d at 730 (“The
Due Process Clause of the Fourteenth Amendment confers upon an
individual the right to be free of state-occasioned damage to her
bodily integrity, not entitlement to government protection from
injuries caused by non-state actors.
Thus, as a general rule, ‘a
State’s failure to protect an individual against private violence
simply does not constitute a violation of the Due Process Clause’”),
citing DeShaney v Winnebago County Dep’t of Soc. Servs., 489 U.S.
189, 196-97 (1989).
States do not create a special danger by
-103-
facilitating expansion and beautification of detention ponds.
Plaintiffs fail to support with facts their broad allegation that
the
City
“created
a
dangerous
neighborhoods adjacent to TIRZ 17.”
environment
of
residential
They have not shown a causal
link between a City policy or custom and their alleged damage caused
by increased flooding.
Nor do Plaintiffs state facts sufficient to assert a Fourth
Amendment claim, the elements of which are “(a) a meaningful
interference with [plaintiffs’]
possessory interests in [their]
property, which is (b) unreasonable because the interference is
unjustified by state law or, if justified, then uncompensated.”
Severance, 464 F.3d at
487-88; U.S. Const. amend. IV.
Road
improvements near their homes are insufficient to state a claim for
interference with Plaintiffs’ possessory interests, nor do drainage
improvements for apartment residents in the vicinity of Plaintiffs’
homes, nor does private development of a grocery store or the design
of a retention pond in other neighborhoods. Because Plaintiffs fail
to allege a factual basis for the City’s causing any violation of
Plaintiffs’ constitutional rights under the Fourth and Fifteenth
Amendments, these claims should be dismissed.
The same is true of their claims for violations of Article I,
Section 19 of the Texas Constitution.
Plaintiffs did not make any
independent separate allegations of deprivations of property rights
relating to the Texas Constitution, but only conclusory statements
of some of the elements.
#14 at 32-33, ¶¶ 202-09.
There are no
facts alleged demonstrating that the municipal government’s drainage
-104-
and mobility conduct was not rationally related to furthering the
City’s legitimate interest.
Plaintiffs’ First Amended Complaint’s vague generalities about
the RAF’s members and the locations of their homes (#14 at 5, ¶¶3034) still show they lack standing and the RAF lacks associational
standing.
The RAF does not claim any harm to any property it owns
but asserts it “is suing on behalf of its members and supporters.”
#14 at 5, ¶29.
The RAF also fails to provide details to show the third element
of associational standing, “neither the claim asserted nor the
relief requested requires the participation in the lawsuit of the
individual members.” Friends of the Earth, 129 F.3d at 827-88 & n.5
(citing Hunt, 432 U.S. at 343) (association must demonstrate that
the individuals it seeks to represent possess sufficient “indicia
of
membership”).
Hunt
established
the
following
test:
“an
association has standing to sue on behalf of its members when (a)
its members would otherwise have standing to sue in their own right;
(b)
the
interests
it
seeks
to
protect
are
germane
to
the
organization’s purpose; and (c) neither the claim asserted nor the
relief requested requires the participation of each individual
members in the lawsuit.” Hunt, 432 U.S. at 343; see also Warth, 422
U.S.
at
511
(“Even
in
the
absence
of
injury
to
itself,
an
association may have standing solely as the representative of its
members. . . . The association must allege that its members, or any
one of them, are suffering immediate or threatened injury as a
result of the challenged action of the sort that would make out a
-105-
justiciable case had the members themselves brought the suit.
So
long as this can be established, and so long as the nature of the
claim and of the relief sought does not make the individual
participation
of
each
injured
party
indispensable
to
proper
resolution of the cause, the association may be an appropriate
representative of its members, entitled to invoke the court’s
jurisdiction.”); Texas Ass’n of Business v. Texas Air Control Bd.,
852 S.W. 2d 440, 447 (Tex. 1993)(Texas Supreme Court adopts the test
for
associational
standing
in
Hunt
v.
Washington
Advertising Commission, 432 U.S. at 343:
State
Apple
“an association has
standing to sue on behalf of its members when (a) its members would
otherwise have standing to sue in their own right; (b) the interests
it seeks to protect are germane to the organization’s purpose; and
(c) neither the claim asserted nor the relief requested requires the
participation of individual members in the lawsuit.”).
Moreover,
the Hunt court, id., highlighted the nature of the remedy that could
be sought by an association with standing to sue on behalf of its
members, described by the Supreme Court in Warth v. Seldin, 422 U.S.
at 515:
[W]hether an association has standing to invoke the
court’s remedial powers on behalf of its members depends
in substantial measure on the nature of the relief
sought.
If in a proper case the association seeks a
declaration,
injunction,
or
some
other
form
of
prospective relief, it can reasonably be supposed that
the remedy, if granted, will inure to the benefit of
those members of the association actually injured.
Indeed, in all cases in which we have expressly
recognized standing in associations to represent their
members, the relief sought has been of this kind.
-106-
The City charges that RAF ‘s claims of associational standing
fail because it does not allege the third element of the Hunt test,
but instead states that its “members, board members and supporters
reside in and own property throughout the Memorial City Area,
including the Spring Branch north-side neighborhoods, and the southside neighborhoods including Fonn Villas, Long Meadows, Memorial
Pines, and Frostwood.”
#14 at 27-28, ¶178.
The City observes,
citing authority, that because specific property rights are at issue
here, more is required to satisfy the third element of the Hunt test
for associational standing.
To show that a plaintiff has Article III standing requirements.
a plaintiff must show that (1) he has suffered an “injury in fact”
that is (a) concrete and particularized, and (b) is actual or
imminent, not conjectural or hypothetical; (2) the injury is fairly
traceable to the challenged action of the defendant; and (3) it is
likely, as opposed to merely speculative, that the injury will be
redressed by a favorable decision.”
U.S. Const. art. III, § 2, cl.
1; Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992).
In
a lawsuit to force compliance, the plaintiff bears the burden to
establish standing to demonstrate that, if unchecked by litigation,
the defendant’s alleged wrongful behavior will likely occur or
continue, and that the ‘threatened injury [to the plaintiff is]
certainly impending.’”
Friends of the Earth. 528 U.S. at 107,
quoting Whitmore v. Arkansas, 495 U.S. 149, 158 (1990).
The City insists that Plaintiffs are not entitled to injunctive
relief because they fail to allege facts supporting the essential
-107-
elements for it.
To warrant a permanent injunction, a plaintiff
must show “(1) that it has suffered an irreparable injury; (2) that
remedies available at law, such as monetary damages, are inadequate
to compensate for that injury; (3) that, considering the balance of
hardships between the plaintiff and defendant, a remedy in equity
is warranted; and (4) that the public interest would not be
disserved by a permanent injunction.”
547 U.S. 388, 391 (2006).
eBay v. MercExchange, LLC,
“[F]or an injunction to issue based on
a past violation, [plaintiff] must establish that there is a ‘real
or immediate threat that he will be wronged again,’”
F.3d 795, 802 (5th Cir. 2000).
Hainz, 207
Here Plaintiffs have failed to
allege facts to show any real or immediate threat of flooding.
Instead they speculate and hypothesize their properties will flood,
but fail to plead facts to show there is a real and immediate danger
of flooding or that the relief they seek will prevent future
flooding.
Instead they allege that they “live in a constant state
of anxiety each and every time it rains,” and “fear traveling too
far from their homes just so they can rush home if heavy rain
comes.”
#14 at 30, ¶185.
“Speculative injury is not sufficient;
there must be more than an unfounded fear on the part of the
applicant.”
Holland Am. Ins. Co. v. Succession of Roy, 777 F.2d
992, 997 (5th Cir. 1985).
In addition Plaintiffs fail to show that
the threat of injury to them is outweighed by the potential injury
to Houston from an injunction.
Guy Carpenter, 334 F.3d at 464.
Furthermore, Plaintiffs’ request for judicial oversight of municipal
functions is not in the public’s interest when done with only
-108-
Plaintiffs’ interest in mind (or by prioritizing the interests of
one or more landowners) over municipal policy set for the City as
a whole and when it would usurp the City’s discretion in fiscal and
administrative
oversight
in
approving
construction
of
public
improvements.
Plaintiffs’ Sur-Reply (#19)
In response to Defendants’ newly raised issues of mootness and
ripeness, Plaintiffs insist that their claims are not moot and the
issue of ripeness, “a disguised way to shift the burden of the
mootness inquiry onto Plaintiffs,” is not actually before the Court.
Plaintiffs argue that the CIP has not mooted this case because it
is merely a plan for appropriation without legal force.
The City
admits that CIPs can be, and often are, revised. Plaintiffs’ claims
survive because the new projects on the CIP represent an incomplete
list.
Furthermore
no
“policy”
has
changed
because,
Defendants have asserted, there is no “policy” at issue.
as
even
The CIP
was proposed by “decision” of TIRZ 17 and approved by an “ordinance”
of City Council as the basis of the Section 1983 liability.
“Where
the defendant[s’] voluntary cessation of allegedly illegal conduct
is claimed to moot a case,” Defendants
here bear, but cannot meet,
the “heavy burden” to “demonstrate not only that the conflict giving
rise to the claim is not ongoing, but also that the effects of any
illegality have been completely and irrevocably eradicated.”
Del
A. v. Roemer, 777 F. Supp. 1297, 1322 (E.D. La. 1991), citing County
of Los Angeles v. Davis, 440 U.S. 625, 631 (1979)(“We recognize
-109-
that, as a general rule, ‘voluntary cessation30 of allegedly illegal
conduct does not deprive the tribunal of power to hear and determine
the case, i.e., does not make the case moot’ ‘[b]ut jurisdiction,
properly acquired, may abate if the case becomes moot because (1)
it
can
be
said
with
assurance
that
‘there
is
no
reasonable
expectation that the alleged violation will recur . . . and (2)
30
This Court notes that the “voluntary cessation” exception to
mootness applies where the defendant voluntarily ceases the
challenged practice and thereby moots the plaintiff’s case.
American Civil Liberties Union of Massachusetts v. United States
Conference of Catholic Bishops,705 F.3d 44, 545 (1st Cir. 2013).
As explained in American Civil Liberties, id. (citations omitted,
The voluntary cessation exception “traces to the
principle that a party should not be able to evade
judicial review, or to defeat a judgment, by temporarily
altering questionable behavior.”
This is to avoid a
manipulative litigant immunizing itself from suit
indefinitely, altering its behavior long enough to secure
a dismissal and reinstating it immediately after. As
the Supreme Court stated last term, “such . . . maneuvers
designed to insulate a decision from review . . . must be
viewed with a critical eye,” and, as a result, “[t]he
voluntary cessation of challenged conduct does not
ordinarily render a case moot.”
However, even in
circumstances where the voluntary cessation exception
applies, a case may still be found moot if the defendant
meets “the formidable burden” of showing that it is
absolutely clear that the allegedly wrongful behavior
could not reasonably be expected to recur.
In accord, Sossamon, 560 F.3d at 324-25. To invoke the voluntary
cessation exception, the Fifth Circuit requires that there must be
a reasonable expectation that the challenged conduct will be
repeated following dismissal of the case.
American Civil
Liberties, 705 F.3d at 56.
If the court justifiably finds the
exception applies and “moots the case that might have been allowed
to go forward if the defendant had not been a public entity,
government actors in their sovereign capacity and in the exercise
of their official duties are accorded a presumption of good faith
because they are public servants, not self interested private
parties. Without evidence to the contrary, we assume that formally
announced changes to official government policy are not mere
litigation posturing.” Sossamon, 560 F.3d at 325.
-110-
interim relief or events have completely and irrevocably eradicated
the effects of the alleged violations.
When both conditions are
satisfied it may be said that the case is moot because neither party
has a legally cognizable interest in the final determination of the
underlying questions of fact and law.’”
For ripeness, the Court applies the same inquiry as that before
the CIP passed:
do the Plaintiffs have sufficient injury to make
the dispute with the Defendants concrete?
Contender Farms, LLP v.
U.S. Dept. of Agriculture, 779 F.3d 258, 267 (5th Cir. 2015).
Plaintiffs argue that they still have injuries of property losses
due to Defendants’ past decisions and ordinances, injuries that are
ripe for adjudication.
Plaintiffs highlight the fact that “it became City policy to
engage in a continuous process that includes annual review, revision
and
adoption
of
a
five-year
Capital
Improvement
Plan:
http://www.houstontx.gov/cip/17cipadopt/intofuction.pdf. #17 at 12.
The 2017-2021 CIP states that the five-year CIP is “revised annually
to include new projects, reflect changes in priorities and extend
the plan an additional year. . . . The plan is adjusted throughout
the year as needs dictate or when changes are made to existing
approved projects.”31
Thus CIPs are easily changeable.
They are
also not legally binding on the City or on the entities to which
funds are appropriate; they represent potential appropriation of
money for a particular project, which may or may not
for a variety of reasons.
31
be realized
Projects in CIPs may be altered, removed
http://www.houstontx/goc/cip/17cipadopt/introduction.pdf.
-111-
or added in a subsequent CIP.
For example the 2014-2018 CIP,
approved by Defendants on October 23, 2013, contained “the W140
channel improvements” project indicating completion of construction
by 2016. #14 at 104, 128 (showing project no. T1734); #128 (showing
$7 million budget for construction between 2015-2016).
came to pass.
It never
The W140 Channel Improvements are now pushed back to
2017-2018.
Plaintiffs contend no “policy” has changed.
Plaintiffs base
their § 1983 claims on Defendants’ deliberate “decisions” and
“ordinances.”
The CIP is not a “policy,” but a series of proposed
projects based on a “decision” by TIRZ 17.
TIRZ 17 proposes a CIP
and presents it to the City Council, which approves the CIP in an
ordinance.
The City decision is not a policy, but an “ordinance.”
Since Defendants previously argued that Plaintiff did not allege a
“policy” (#5 at 3, 14; #7 at 2, 15), it cannot now assert that they
do have one that has “changed.”
Furthermore,
under
Monell
and
progeny,
a
policy
becomes
significant when a City employee engages in illegal conduct because
”the unconstitutional conduct [of an employee] must be directly
attributable to the municipality through some sort of official
action or imprimatur.”
helps
“distinguish
Piotrowski II, 237 F.3d at 578.
individual
violations
perpetrated
A policy
by
local
government employees from those that can be fairly identified as
actions of the government itself.”
Id.
In § 1983 courts must find
a policy by a final decision maker or the final decision maker
cannot be liable for acts of the subordinate or employee.
-112-
Here, on
the other hand, the case is about a series of “decisions” or
“ordinances” by TIRZ 17, the Authority, and City Council, which are
all final decision makers for the projects that moved floodwaters
out
of
the
commercial
neighborhoods.
TIRZ
area
and
into
the
residential
Monell, 436 U.S. at 690; Pembaur, 475 U.S. at 480.
Therefore the passage of a new CIP does not represent a policy
change and cannot moot the case.
Defendants’ constant use of the
word “policy” must be construed cautiously.
In Monell it is used
to require a policy, while Defendants use it as a rhetorical
flourish that is not related to the facts of the case.
Thus the
passage of the new CIP does not constitute a policy change and
cannot “moot” the case.
None of the projects promised in the Tri-Party Contract in 2003
to
provide
regional
drainage
solutions
neighborhoods was ever implemented.
to
the
residential
Meanwhile other opportunities
for land acquisition for purposes of detention were lost as the land
was acquired for other uses.
Plaintiffs argue that Defendants
cannot reasonably be expected to be given a presumption of good
faith as their unfulfilled promises piled up and their actions were
not those of a public servant, but of self-interested private
parties.
Plaintiffs describe Defendants’ assertion that “Plaintiffs are
in no immediate danger of sustaining direct injury” now that the CIP
has been approved as “almost farcical, as each rain event is a
threat to the Plaintiffs and the promised projects continue to
change or be deferred.”
Even if the projects on the latest CIP are
-113-
implemented, the new CIP does not cover all the relief they have
requested or all the relief needed to remedy the constitutional
violations.
For example, if some projects listed in the LAN
Regional Drainage Study are part of the solution, not enough
development has occurred to determine if the LAN projects alone will
remedy the problems.
Court’s Decision
The Court addresses the claims against each Defendant.
Where
the same claim is brought against all Defendants and applies the
same way to all Defendants with the same result, the Court so states
with respect to the first Defendant to avoid redundancy.
The City
The Court dismisses the state-created-danger claims against all
three Defendants.
Rule 12(b)(6) requires dismissal whenever a
plaintiff’s claim is based on an invalid legal theory.
Neitzke v.
Williams, 490 U.S. 319, 327 (1989)(mentioning as an example of a
“meritless legal theory” “claims against which it is clear that
defendants are immune from suit”).
For years the Fifth Circuit has
clearly stated that it has not recognized a state-created danger
claim.
See Lefall v. Dallas I.S.D., 28 F.3d 521 (5th Cir. 1994)(“We
have found no cases in our circuit permitting § 1983 recovery for
a substantive due process violation predicated on a state-created
danger theory.”; Rivera v. Houston Indep. Sch. Dist., 349 F.3d 244,
249 and n.5 (5th Cir. 2003); Piotrowski II, 237 F.3d at 584 (noting
that the Fifth Circuit has never adopted the state-created danger
theory).
It has very recently reaffirmed that stance.
-114-
Paraza v.
Sessions,
(“We
have
Fed. Appx.
‘never
, 2017 WL 1013070, at *1 (March 14, 2017
explicitly
adopted
the
state-created
danger
theory.’ As such, Mayen Paraza has failed to allege a valid
constitutional challenge to his removal order.”), quoting Doe ex
rel. Magee v. Covington Cty. Sch. Dist. ex rel. Keys, 675 F.3d 849,
864 (5th Cir. 2012).
This Court refuses to do the contrary.
Accordingly, the Court dismisses state-created danger claims under
§ 1983 against all three Defendants under Rule 12(b)(6) for failure
to state a legally cognizable claim for relief under Texas law.
Moreover, even if the Court did find the claim cognizable under
Texas and Fifth Circuit law, Defendants have pointed out how the
facts here fail to support the elements of a state-created danger
theory.
“When a plaintiff seeks a remedy for constitutional violations
against municipalities or government actors, the ‘proper vehicle for
these allegations is [42 U.S.C.] § 1983,’” and not a claim arising
“directly under the Constitution.”
Hearth Inc. v. Dep’t Public
Welfare, 617 F.2d 381, 382-83 (5th Cir. 1980); Burns-Toole v. Byrne,
11 F.3d 1270, 1273 n.3 (5th Cir. 1994); Mitchell v. City of Houston,
Tex., 57 Fed. Appx. 211 (5th Cir. 2003)(“When a statutory mechanism
is available, 42 U.S.C. § 1983 being a prime example, plaintiffs
must invoke its protection.”).
takings claims under § 1983.
-115-
Plaintiffs have brought their
As discussed, Plaintiffs fail to plead a takings claim under
the Fifth Amendment32 against any of the Defendants.
There are two
types of “takings” under the Fifth Amendment: (1) a direct, physical
appropriation of property, real or personal, which is the “perhaps
the most serious form of invasion of an owner’s property interests,
depriving the owner of the rights to possess, use and dispose of the
property”; and (2) a “regulatory taking,” i.e., a restriction on the
use of property that went “too far.”
Horne v. Department of
Agriculture, 135 S. Ct. 2419, 2427 (2015), citing Pennsylvania Coal
Co. v. Mahon, 260 U.S. 393 (1922)(Holmes, J.).
complaint falls into the second category.
The instant
To determine how far is
“too far” requires the court to make an “‘ad hoc’ factual inquiry,”
which includes consideration of “factors such as economic impact of
the regulation, its interference with reasonable investment-backed
expectations, and the character of the government action.”
Id.,
citing Penn Central Transp. Co. v. New York City, 438 U.S. 104, 124
(1978).
clear
“The first category of cases requires courts to apply a
rule;
the
second
necessarily
entails
complex
factual
assessments of the purposes and economic effects of governmental
actions.’”
(1992).
Id. at 323, quoting Yee v. Escondido, 503 U.S. 519, 523
“When the government physically takes possession of an
interest in property for some public purpose, it has a categorical
duty to compensate the former owner . . . regardless of whether the
32
The Takings Clause, which applies to the states through the
Fourteenth Amendment, states that “private property [shall not] be
taken for public use, without just compensation.” Samaad v. City
of Dallas, 940 F.2d 925 (5th Cir. 1991), citing U.S. Const. amend.
V and Chicago B & Q.R.R., 166 U.S. 226 (1987).
-116-
interest that is taken constitutes an entire
part thereof.”
parcel or merely a
Tahoe-Sierra Preservation Council, Inc. v. Tahoe
Regional Planning Agency, 535 U.S. 302. 322 (2002), citing U.S. v.
Pewee Coal Co., 341 U.S. 114, 115 (1951).
Thus where a regulation
restricts the use but does not completely deprive an owner of
property rights, there may not be a taking, in which case the
regulation did not go “too far.”
The Supreme Court has long
proclaimed that “‘where an owner possesses a full ‘bundle’ of
property rights, the destruction of one ‘strand’ of the bundle is
not a taking.’”
(1979).33
Id., quoting Andrus v. Allard, 444 U.S. 51, 65-66
Once there is a taking, as when there is a physical
appropriation, payment from the government becomes an issue of just
compensation.
Horne, 135 S. Ct. at 2429.
“[J]ust compensation
normally is to be measured by ‘the market value of the property at
the time of the taking.’”
Id., quoting United States v. 50 Acres
of Land, 469 U.S. 24, 29 (1984).
Clearly with so many factual
determinations to be made, at the stage the Court could not make a
determination as to whether the City Council’s ordinances caused
regulatory taking.
33
As the Andrus Court opined, 444 U.S. at 65,
Suffice it to say that government regulation--by
definition-–involves the adjustment of rights for the
public good.
Often this adjustment curtails some
potential for the use or exploitation of private
property.
To require compensation in all such
circumstances would effectively compel the government to
regulate by purchase. “Government hardly could go on if
to some extent values incident to property could not be
diminished without paying for every such change in the
general law.” Pennsylvania Coal[, 260 U.S. at 413.]
-117-
Nevertheless regardless of the stage of the taking, the Fifth
Circuit has held that a takings claim under the Fifth Amendment “is
not ripe for adjudication until it is “ripe,” i.e., until (1) the
relevant governmental unit has reached a final decision as to how
the regulation will be applied to the landowner and (2) the
plaintiff has sought compensation for the alleged taking through
whatever adequate procedures the state provides.
Patterson, 566 F.3d 490 (5th Cir. 2009).
adopted
a
Fifth
Circuit
test
for
Severance v.
The Supreme Court has
ripeness
under
the
Fifth
Amendment’s takings clause: “such claims are not ripe until (1) the
relevant governmental unit [administrative agency] has reached a
final decision as to how the regulation will be applied to the land
owner, and (2) the plaintiff has sought compensation for the alleged
taking through whatever adequate procedures the state provides.”
Urban Developers, LLC v. City of Jackson, Miss., 468 F.3d 281, 29293 (5th Cir. 2006), citing Williamson County Reg’l Planning Comm’s
v. Hamilton Bank, 473 U.S. 172 (1985).
Plaintiffs fail to allege
that they have met either prong as to any of the three Defendants.
Thus any potential takings claim under the Fifth Amendment must be
also dismissed for lack of jurisdiction under Rule 12(b)(1) and for
failure to state a claim under 12(b)(6) if it is not ripe.
Hidden
Oaks Ltd. v. City of Austin, 138 F.3d 1036, 1041 (5th Cir. 1998).
Such
is
the
case
here.
Ripeness
is
part
of
subject
matter
jurisdiction, which must be established by the party invoking
federal jurisdiction. Abdelhak, 2011 13124298 at *10. Thus it must
also be dismissed under Rule 12(b)(1).
-118-
Protections
granted
in
afforded
Article
I,
under
section
procedural
19,
due
prohibiting
process
rights
deprivation
of
property, are congruent with those in the Federal Constitution.
Abdelhak v. City of San Antonio, Civil No. SA-09-CA-804-FB, 2011 WL
13124298, at *9 (W.D. Tex. Dec. 6, 2011); Price v. City of Junction,
Texas, 711 F.2d 582, 590 (5th Cir. 1983).
“Under both federal and
Texas law, regulatory takings must be ripe before a trial court will
have subject matter jurisdiction over the claim.” City of Carrolton
v. HEB Parkway South, Ltd., 327 S.W. 3d 787, 794 (5th Cir, 2010).
Under both federal and state law, “there must be a final decision
regarding the applications of the regulations to the property at
issue” before a taking of a property issue is ripe.
Id., citing
Mayhew v. Town of Sunnyvale, 964 S.W. 2d 922, 928 (Tex. 1998). Just
as a federal takings claim does not ripen until just compensation
is denied, “Texas follows federal jurisprudence, which requires ‘a
final decision regarding the application of the regulations to the
property at issue’. . . . A ‘final decision’ usually demands both
a rejected development plan and the denial of a variance from the
controlling regulations.”
Id. at 929.
Plaintiffs have failed to
allege that their claims are ripe under Article I, § 19, i.e., that
they received a final decision about their flooding complaints to
the relevant City entity and that they were denied just compensation
or a variance from the restrictive regulations.
Thus Plaintiffs’
taking claims under the Texas Constitution, like those under the
federal constitution, are not ripe and the Court dismisses them for
-119-
lack of jurisdiction under Rule 12(b)(1) and failure to state a
claim under Rule 12(b)(6).
The City maintains that Plaintiffs’ suit is time-barred. This
Court agrees that all claims against all Defendants under § 1983 are
time barred because Plaintiffs delayed in filing suit within two
years of accrual of their claims under Texas Civil Practice &
Remedies Code § 16.003(a) or four years under § 16.051, Texas’ fouryear residual statute of limitations, and because they do not
properly allege a continuing violation that would extend the period.
As discussed, since there is no federal statute of limitations for
§ 1983, the “federal courts borrow the forum state’s general
personal injury limitations period.”
416, 418 (5th Cir. 1989).
Under
Burrell v. Newsome, 883 F.2d
Tex. Civ. Prac. & Rem. Code
16.003(a) (2005)(“Except as provided by Sections 16.010, 16.0031,
and 16.0045, a person must bring suit for trespass for injury to the
estate or to the property of another, conversion of personal
property, taking or detaining the personal property of another,
personal injury, forcible entry and detainer, and forcible detainer
not
later
than
accrues.”).
two
years
after
the
day
the
case
of
action
In contrast to the statute of limitations, federal law
controls and defines the time of accrual as the time “when plaintiff
knows or has reason to know of the injury which is the basis of the
action.”
Lavallee v. Listi, 611 F.2d 1120, 1131 (5th Cir. 1980).
According to Plaintiffs’ amended complaint, TIRZ 17 was created
on July 21, 1999, with its original purpose to address drainage and
mobility.
The head of the RAF, Ed Browne, allegedly attended TIRZ
-120-
17 monthly board meetings since approximately 2004.
Plaintiffs
pleaded that their injury occurred in 2007 when Defendants allegedly
changed the drainage pattern by widening and lowering Bunker Hill
Road north of I-10, replaced storm sewers, and rebuilt Bunker Hill
bridge, which caused flood damage.
Furthermore Plaintiffs pleaded
that at a City Council meeting in 2007 Plaintiffs “vocally expressed
concerns that projects undertaken by or on approval of Defendants
were making their flooding problems worse.”
They also assert that
Defendants had “actual notice” that Plaintiffs were “victims of
Defendants’ actions” based on “in-person advocacy by Plaintiffs,”
which began with their first identified trip to City Council in 2009
when they began “advocating before City Council” and when they “put
Defendants on actual notice.”
Plaintiffs clearly knew of their
injury by 2009 when they were flooded, ten years after the RAF was
formed to address such problems.
Pointing to the first of three
“historic” floods also in 2009, Plaintiffs blame them on Defendants’
conduct once the TIRZ 17 was formed in 1999, before which the
surrounding residential neighborhoods had not flooded, but did so
afterwards.
Plaintiffs’
complaint
reveals
discrete,
separate
occurrences of flooding, related community meetings where Memorial
area residents voiced their complaints to the City, to its Planning
Commission, to its Flood and Drainage Committee, and to City
Council.
Even a single damaging flood is a discrete and obvious
event which waives a red flag at residents.
the
Also significant were
multiple studies conducted by the City, the Authority, and
engineering firms (including the Walter P. Moore engineering firm
-121-
in 2003, Klotz Associates in 2004 and 2014, LAN Engineering in 2006,
2012, and 2014 Omega Engineering in 2008, and, in 2009, and the
HCFCD, which indicate that substantial information was out there and
Plaintiffs could and should have filed suit long before they finally
did on May 25, 2016.
Not only did the two-year statute of limitations for personal
injury expire by 2011 at the latest, but the residual statute
expired by 2013. Because Plaintiffs cannot cure the problem, their
claims are time barred and must be dismissed.
The Court agrees with Defendants that Plaintiffs fail to state
a claim for municipal liability under § 1983 against any of them
because Plaintiffs fail to state supporting facts identifying a
policy, a policy maker to whom lawmakers have delegated policymaking authority, an ordinance, a regulation, a decision by a policy
maker, or a widespread custom that fairly represents a municipal
policy to deliberately, knowingly, and intentionally redirect flood
waters from the commercial district to the residential areas, and
constitute the moving force behind a violation of Plaintiffs’
constitutional rights.
The Zone and the Authority also complain
that Plaintiffs fail to identify a specific policy, practice or
custom sufficient to state a plausible claim for municipal liability
under section 1983, nor shown that it or the final policy maker
(identified in the Complaint ¶53 as the City Council) was the force
behind a violation of their constitutional rights:
“the Authority
and TIRZ Boards recommend projects, but the City Council has final
approval”) was the moving force behind the alleged deliberate
-122-
deprivation of Plaintiffs’ rights under the Fourth and Fourteenth
Amendments.
See also Home Rule Charter, City of Houston, Texas,
Art. VII, § 10 (“All legislative powers of the City shall be vested
. . . in the City Council.”); Ex. A at § 4.
Thus even if the claims
were not time-barred, because Plaintiffs have failed to identify the
requisite policy, they have failed to state a claim for which relief
may be granted under Rule 12(b)(6).
As discussed, claims brought under § 1983 sound in tort.
Plaintiffs fail to state a claim against the City for torts because
the Texas Tort Claims Act did not consent to suit for the type it
alleges here. The only possible tort that might fall into the three
excepted areas of the Texas Tort Claims Act is “property damage .
. . caused by the wrongful act or omission or the negligence of a[]
[City] employee acting within his scope of employment if . . . the
damage . . . arises from the operation or use of a motor-driven
vehicle or motor-driven equipment.”
101.021.
Tex. Civ. Prac. & Rem. Code §
There are no allegations of any
motor vehicles or motor-
driven equipment in the complaint. Moreover, although claiming that
Defendants’ governmental actions to maintain and improve drainage
and reduce the number and severity of Houston’s flooding during rain
storms temporarily may have violated Plaintiffs’ constitutional
property rights during isolated storms, Plaintiffs failed to allege
that Defendants took any action concerning Plaintiff’s real property
nor caused any particularized injury.
Not only have they failed to
identify what specific property was owned by which Plaintiff, but
Plaintiffs only mention that governmental action relating to other,
-123-
non-Plaintiff owned property (two roads, two apartment complexes,
and two commercial developments) deprived Plaintiffs of substantive
due process and property rights under the Fourteenth Amendment and
constituted a government seizure of their property in violation of
the Fourth Amendment and their property rights in violation of
Article I, Section 19 of the Texas Constitution.
Plaintiffs fail
to plead how their constitutional property rights were violated or
to state any facts supporting the constitutional violation claims.
Finally the City’s actions in attempting to regulate drainage of
flood waters for the health and safety of its public are legitimate
use of its police power and rationally related to the welfare of its
citizens.
The Court also agrees with the City that any state tort claims
that might be asserted against the City without § 1983 in this
action are based on the performance of governmental functions,
enjoined on the City by Chapter 311 of the Texas Tax Code and
Ordinance 1999-759, which created TIRZ 17, and against which it is
protected by governmental immunity derived from the State of Texas’s
sovereign immunity.
See footnote 11 of this Opinion and Order.
Because the Court lacks subject matter jurisdiction over them, the
Court dismisses the governmental functions claims against the City
under Federal Rule of Civil Procedure 12(b)(1).
As discussed previously and demonstrated by the Zone, the Zone
is not a “suable entity,” separate and apart from the City. Instead
the Zone is defined as a particular geographic area of the City, for
which the City has not taken the steps to empower the Zone with
-124-
jural authority.
Ex. A, p. 1 (creating and designating the Zone as
a “contiguous geographic area of the City”); Darby, 939 F.2d at 313
(5th Cir. 1991)(“The capacity of an entity to sue or be sued ‘shall
be determined by the law of the state in which the district court
is held.’
Fed. R. Civ. P. 17(b).”), and Crull v. City of New
Braunfels, Tex., 267 Fed. Appx. 338, 341-42 (5th Cir. 2008)(citing
Darby)(“In order for a plaintiff to sue a department of a city, that
department must enjoy a separate legal existence.
Unless the
political entity that created the department has taken ‘explicit
steps to grant the servient agency with jural authority, the
department lacks the capacity to sue or be sued.”).
The Home Rule
Charter of the City of Houston, which is a home rule municipality,
reserved to the municipality the power to sue and be sued.
Rule Charter, City of Houston, Texas,
Art. II, § 1.
Home
Sections
311.003 and 311.008 of the Texas Tax Code grant the City all
authority to organize a tax increment reinvestment zone and all
powers necessary to carry out its purpose, and the City so acted in
creating the Zone.
Darby, 939 F.2d at 313 (“A Texas home rule city
is organized not unlike a corporation.
Like a corporation, it is
a single legal entity independent of its officers.
Also like a
corporation, a Texas city is allowed to designate whether one of its
own subdivisions can be sued as an independent entity.
Absent this
authorization, [plaintiff’s] suit no more can proceed against the
police department alone [or the Zone here] than it could against the
accounting department of a corporation. . . . Pursuant to these
principles, we have held that a political subdivision cannot pursue
-125-
a suit on its own unless it is a ‘separate and distinct’ corporate
entity. . . . [O]ur cases uniformly show that unless the true
political entity has taken explicit steps to grant the servient
agency with jural authority, the agency cannot engage in any
litigation except in concert with the government itself.”)(emphasis
added by this Court)(citations omitted).
Subsequently the Fifth Circuit clarified the last sentence.
When sued in concert with the City, which has jural authority, suit
would be against the Zone in its official capacity, and thus
redundant of the suit against the City, not as a suit against the
zone separately and independently. (In Darby, because Darby failed
to show that the City of Pasadena granted its police department the
capacity to sue and be sued in separate litigation, his suit sought
to recover from a legal entity that does not exist for his purposes
and the district court did not abuse its discretion by dismissing
it.).
Even if the county were added as a defendant in Darby, the
court concluded that the plaintiff would still need to show that the
county subdivision was an entity with a separate legal existence in
order
to
engage
government.
in
litigation
with
it
in
concert
with
the
Skyway Towers, LLC, Civ. No. 5:14-CA-410-DAE, 2014 WL
3512837, at *5 (citing Darby and Thomas-Melton v. Dallas County
Sheriff’s Dep’t, 39 F.3d 320 (5th Cir. 1994)(even if the county were
added as a defendant, the plaintiff would still have to show that
a county defendant was an entity amenable to suit in order to engage
in litigation in concert with it with the government.).
“[C]ourts
routinely dismiss claims against government departments and agencies
-126-
that lack independent jural status, even when they are sued in
concert with the government entity.”
Lone Star Chapter Paralyzed
Veterans of America v. City of San Antonio, Civ. A. SA-10-CV-316-XR,
2010 WL 3155243, at *2 (W.D. Tex. Aug. 5, 2010)
In the instant
case, neither the Zone’s enabling Ordinance nor the City’s Charter
grants the Zone the power to sue or be sued.
The Court agrees with Plaintiffs that many questions remain as
to whether this suit is moot.
In addition to those raised by the
parties, the long history of repeated flooding in Houston, seemingly
becoming even more frequent with climate change, makes it far more
likely there will be recurrences than that there will not be and
that Plaintiffs will suffer from them.
Thus in light of the
circumstances, the Court finds that Plaintiffs’ fears of horrendous
flooding are not abstract and hypothetical.
They have shown how
slow, temporary, and uncertain are the various steps in drafting and
actually implementing the proposals in the CIPS for achieving the
kind of flood control desired by the residents around TIRZ 17.
Because Defendants offer nothing legally binding, they cannot show
the “effects of any illegality have been completely and irrevocably
eradicated.”
The Court cannot and will not make a determination of
whether the claims are moot as a matter of law.
But since they are
all dismissed under Rules 12(b)(1) and/or 12(b)(6), the issue itself
is moot.
Because the Court finds Plaintiffs have failed to plead viable
claims as a matter of law, the challenge to the RAF’s associational
standing is also now moot.
-127-
As Defendants have pointed out, bringing their suit as one for
declaratory judgment does not avoid dismissal without, a clear,
unambiguous waiver of the City’s governmental immunity and there is
no such waiver for the City under the facts here.
City of Houston
v. Williams, 216 S.W. 3d at 828-29; Sefzik, 355 S.W. 3d at 621-22
& n.3.
Furthermore, because Plaintiffs fail to assert a viable
cause of action, their prayers for a derivative declaratory judgment
or injunction must fail, too.
Accordingly, for the reasons stated above, the Court
ORDERS the following:
(1) Plaintiffs’ motion for leave of Court to file their consolidated
Sur-Reply (Sur-Reply, #19 at p.4) is GRANTED;
(2) the City’s first motion to dismiss pursuant to Rules 12(b)(1)
and 12(b)(6) is GRANTED for the reasons indicated and its motion for
more definite statement is MOOT (#5);
(3) Defendants the Zone and the Authority’s motion to dismiss is
GRANTED for the reasons indicated, and their motion for a more
definite statement is MOOT (#7); and
(4) the City’s Motion to Dismiss (#17) First Amended Complaint (#14)
is GRANTED for the reasons indicated.
SIGNED at Houston, Texas, this
9th
day of
May , 2017.
___________________________
MELINDA HARMON
UNITED STATES DISTRICT JUDGE
-128-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?