Garcia v. State of Texas et al
MEMORANDUM OPINION AND ORDER DENYING AS MOOT 17 MOTION for More Definite Statement GRANTING MOTION to Dismiss Complaint, GRANTING IN PART, DENYING IN PART 58 MOTION to Dismiss, DENYING 37 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM , GRANTING MOTION for More Definite Statement (Signed by Judge Gray H Miller) Parties notified.(rkonieczny, 4)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HARRIS COUNTY, et al.,
CIVIL ACTION H-16-2134
MEMORANDUM OPINION & ORDER
Pending before the court are (1) defendant City of Houston’s motion to dismiss or, in the
alternative, motion for a more definite statement (Dkt. 17); (2) defendant Harris County’s motion
to dismiss or, in the alternative, motion for a more definite statement (Dkt. 37); and (3) defendant
Officers Timothy Huerta, Brittany Ann Jones, and M.S.’s (collectively, “individual defendant
officers”) motion to dismiss or, in the alternative, motion for a more definite statement (Dkt. 58).
Having considered the motions, responses, replies, and the applicable law, the court is of the opinion
that (1) the City of Houston’s motion to dismiss (Dkt. 17) should be GRANTED; (2) Harris County’s
motion to dismiss (Dkt. 37) should be DENIED and its motion for a more definite statement should
be GRANTED; and (3) the individual defendant officers’ motion to dismiss (Dkt. 58) should be
GRANTED IN PART and DENIED IN PART and their motion for a more definite statement should
This case is about accusations of civil rights violations and the alleged unlawful termination
of plaintiff Denise Garcia’s employment at the Harris County District Attorney’s Office
(“HCDAO”). Dkt. 35. Garcia’s allegations stem from her complaint about the police officers’
behavior during a traffic stop. Id. Garcia is suing Harris County, the City of Houston, and City of
Houston Police Officers Richard Leal III, Huerta, Jones, and M.S. under 42 U.S.C. § 1983 and
§ 2000e (“Title VII”).1 Id.
On November 14, 2014, Garcia drove away from a relative’s residence in Houston, with her
toddler son and the child’s father, Salvador Rodriguez, as passengers. Id. Several blocks from the
residence, Garcia was pulled over by Officers Leal and Huerta. Id. at 3. Garcia alleges that she was
“driving legally and committed no traffic violations.” Id. The City of Houston and the individual
defendant officers counter that Garcia was stopped for failing to signal to change lanes. Dkt. 41 at
5. The City of Houston admits that the police followed Garcia after seeing her at a location they
were surveilling for drug activity. Dkt. 17 at 4. Garcia claims that she was at the location to pick
up her child’s father to go to a doctor’s appointment. Dkt. 35 at 3.
Garcia states that she cooperated with the police through the duration of the stop and
produced her driver’s license and insurance information as requested. Dkt. 35 at 4. During the stop,
the police officer began to question her passenger, Rodriguez. Id. Garcia says that she advised
Rodriguez that he did not have to answer any questions. Id. Garcia alleges that immediately
following her advice to Rodriguez, Officer Leal threatened Garcia with arrest, causing her to be
frightened to speak to Rodriguez again. Id.
After checking Rodriguez’s identification, the police found outstanding warrants against him
and arrested him. Id. Garcia claims that she had no knowledge of the existence of any warrants or
any criminal activity on the part of Rodriguez. Id.
Officer Leal was served with Garcia’s second amended complaint on May 17, 2017.
Dkt. 64. His deadline to answer is on June 7, 2017, and at this time he has neither answered nor
joined any of the motions to dismiss. Id. Therefore, the court does not address the claims against
him in this Memorandum Opinion and Order.
Additionally, during the stop, Officers Leal and Heurta asked to search Garcia’s vehicle. Id.
Garcia claims that Officer M.S., who was working undercover at the residence where she picked up
Rodriguez, instructed the other officers to attempt to search the vehicle. Id. at 3. Garcia claims she
refused to give consent to the search. Id. Officers Leal and Heurta allegedly ordered Garcia to exit
her vehicle, and searched her car, including the trunk, and Officer Jones searched Garcia’s body.
Id. at 4. Officer Heurta also placed Garcia in handcuffs and Garcia alleges she was held in a patrol
car for approximately 45 minutes to an hour during Rodriguez’s arrest. Id. Garcia alleges that
during this detention, Officer Huerta seized her cell phone and erased “a section of her phone
recordings of the events.” Id. Eventually, Garcia was released. Id. at 5. The individual defendant
officers admit to searching the car and Garcia and detaining Garcia, claiming their actions were
lawful as incident to Rodriguez’s arrest. Dkts. 17, 37, 41. The individual defendant officers deny
deleting the contents of the cell phone video and claim that they only entered the trunk because
Garcia gave them permission to look for her child’s bottle in the trunk. Id.
On November 17, 2014, Garcia filed a complaint with the Houston Police Department
Internal Affairs Division (“IAD”) regarding the traffic stop. Dkt. 35 at 5. Garcia claimed that she
was racially profiled and the traffic stop was illegal. Id. Garcia alleges that, after she filed the IAD
complaint, “at least” Officer M.S. contacted the HCDAO regarding the complaint and that she was
questioned by her employer about the events of the traffic stop. Id.
On November 20, 2014, the HCDAO placed Garcia on administrative leave with pay pending
an investigation. Id. at 6. On December 19, 2014, the HCDAO terminated Garcia’s employment.
Id. Later, through an open records request, Garcia received a copy of a memo stating that she was
terminated for dishonesty regarding both the traffic stop and her awareness of Rodriguez’s criminal
history. Id. Garcia alleges that she was honest at all times and these reasons were “pre-textual.” Id.
On November 4, 2016, Garcia filed her second amended complaint against the defendants.
Dkt. 35. First, Garcia asserts causes of action against Harris County under Title VII for termination
due to race, national origin, and/or retaliation and under § 1983 for civil rights violations. Dkt. 34
at 10–13. Second, Garcia asserts causes of action against the individual defendant officers and the
City of Houston under § 1983 for violation of her rights for freedom of speech, to petition the
govenmernment for redress of grievances, and to be free from unreasonable searches and seizures,
under the First, Fourth, and Fourteenth Amendments to the United States Constitution. Dkts. 35 at
15–16. The City of Houston, the individual defendant officers, and Harris County have all moved
to dismiss Garcia’s claims, or in the alternative, moved for a more definite statement. Dkts. 17 (City
of Houston), 37 (Harris County), 58 (individual defendant officers). Garcia responded. Dkts. 36,
45, 61. The City of Houston and Harris County replied. Dkts. 41, 46.
II. LEGAL STANDARDS
Motion to Dismiss
“Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the
claim showing that the pleader is entitled to relief.’” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127
S. Ct. 1955, 1964–65 (2007). In considering a Rule 12(b)(6) motion to dismiss a complaint, courts
generally must accept the factual allegations contained in the complaint as true. Kaiser Aluminum
& Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1050 (5th Cir. 1982). The court
does not look beyond the face of the pleadings in determining whether the plaintiff has stated a claim
under Rule 12(b)(6). Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir. 1999).
“[A] complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual
allegations, [but] a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’
requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of
action will not do.” Twombly, 550 U.S. at 555 (citations omitted). The “[f]actual allegations must
be enough to raise a right to relief above the speculative level.” Id. The supporting facts must be
plausible—enough to raise a reasonable expectation that discovery will reveal further supporting
evidence. Id. at 556.
Motion for a More Definite Statement
“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.” Fed. R. Civ. P. 12(e). However, motions for more definite statement are “generally
disfavored.” Lehman Bros. Holding, Inc. v. Cornerstone Mortg. Co., No. 09-0672, 2009 WL
1504977, at *1 (S.D. Tex. May 29, 2009) (Rosenthal, J.) (collecting authorities). “When a defendant
is complaining of matters that can be clarified and developed during discovery, not matters that
impede his ability to form a responsive pleading, an order directing the plaintiff to provide a more
definite statement is not warranted.” Id. (citations omitted).
42 U.S.C. § 1983
Section 1983 prohibits “persons” acting under the color of law from depriving another of any
“rights, privileges, and immunities secured by the Constitution and laws . . . .” 42 U.S.C. § 1983.
For a plaintiff to state a claim under § 1983, the plaintiff “must first show a violation of the
Constitution or of federal law, and then show that the violation was committed by someone acting
under color of state law.” Atteberry v. Nocona Gen. Hosp., 430 F.3d 245, 252–53 (5th Cir. 2005).
Municipalities and cities qualify as “persons” under § 1983. Monell v. Dep’t of Soc. Serv.,
436 U.S. 658, 690, 98 S. Ct. 2018 (1978). To state a claim for municipal liability under § 1983, a
plaintiff must identify (a) a policymaker, (b) an official policy or custom or widespread practice, and
(c) a violation of constitutional rights whose “moving force” is the policy or custom. Id. at 694; see
also Piotrowski v. City of Hous., 237 F.3d 567, 578 (5th Cir. 2001) (“[M]unicipal liability under
section 1983 requires proof of three elements: a policymaker; an official policy; and a violation of
constitutional rights whose ‘moving force’ is the policy or custom.” ).
III. INDIVIDUAL DEFENDANT OFFICERS’ AND CITY OF HOUSTON’S MOTIONS TO DISMISS
The City of Houston and the individual defendant officers filed motions to dismiss Garcia’s
second amended complaint for failure to state a claim, or alternatively, a motion for a more definite
statement. Dkts. 17; 41; 58.2 The court will consider Garcia’s objection to evidence offered with
the individual defendants officers’ motion to dismiss, then consider the motions to dismiss the Title
VII claim and the § 1983 claims, and finally turn to the alternative motions for a more definite
The individual defendant officers included the police report as an exhibit to their motion to
dismiss. Dkt. 58, Ex. A. Garcia objects to the court considering the exhibit. Dkt. 61 at 3.
Additionally, Garcia objects to the individual defendant officers’ recitation of some of the facts that
differ from her allegations in the second amended complaint. Dkt. 61 at 6. For a motion to dismiss,
the court accepts all well-pled facts contained in Garcia’s second amended complaint as true, despite
arguments or exhibits disputing those facts offered in the defendants’ motions to dismiss. Twombly,
550 U.S. at 555; Avondale Shipyards, 677 F.2d at1050. Therefore, Garcia’s objections (Dkt. 61 at
6) are SUSTAINED.
The City of Houston’s live motion to dismiss (Dkt. 17) was filed in response to Garcia’s
first amended complaint. On November 4, 2016, Garcia both responded to the City of Houston’s
motion to dismiss and filed her second amended complaint. Dkts. 35, 36. The City of Houston
replied and in its reply, it addressed Garcia’s second amended complaint. See Dkt. 41 at 7. The
court interprets the City of Houston’s reply as reasserting its motion to dismiss as a responsive
pleading to the second amended complaint and will address the motion accordingly.
Title VII Claims
With respect to the Title VII cause of action, Garcia’s second amended complaint charges
that “the Defendants discriminated and/or retaliated against [her] in connection with . . . [her
employment].” Dkt. 35 at 13. “Title VII prohibits employers from discriminating against employees
on the basis of race, color, religion, sex, or national origin.” Boyd v. State Farm Ins. Co., 158 F.3d
326, 328 (5th Cir. 1998) (citing 42 U.S.C. § 2000–2(a)). However, even though Garcia uses the term
“Defendants” collectively in her second amended complaint with respect to her Title VII cause of
action, Garcia only states facts that establish that one co-defendant, Harris County, as her employer.
The City of Houston, having never employed Garcia, argues that it cannot “intentionally
engage in unlawful employment practices” with respect to her termination under Title VII. Dkt. 17
at 9 (quoting Dkt. 35 at 10). The City of Houston makes its motion to dismiss “assuming” that
Garcia is only asserting § 1983 claims against it, not a Title VII claim. Id. Garcia does not challenge
this assumption in her response. Dkt. 36. The court agrees that Garcia’s second amended complaint
does not establish how the City of Houston could engage in an employment action against a nonemployee.
Garcia also references “retaliation” when describing the allegations of her Title VII
complaint. Dkt. 35 at 10–11. Title VII permits a retaliation claim in instances in which an employee
has complained of an unlawful employment practice or made a Title VII charge against an employer
and the complaint is a motivating factor of the adverse employment action. 42 U.S. § 2000e–3(a).
Here, though, Garcia is not alleging that she made any complaints regarding unlawful employment
practices or under Title VII prior to her termination. Dkt. 35. Therefore the court concludes that
Garcia’s retaliation claim is brought under §1983, not Title VII.
To the extent that Garcia may be attempting to assert a Title VII claim against the City of
Houston or any other defendant besides Harris County, the court finds that this claim should be
§ 1983 Claims
First, the court will address the individual defendant officers’ and the City of Houston’s
arguments that Garcia’s claims should be dismissed because she did not establish that she had her
Constitutional rights violated, as required for a § 1983 claim. Dkt. 17 at 9; Dkt. 37 at 10–14. Then,
with respect to the surviving claims, the court will turn to the individual defendant officers’ defense
of qualified immunity. Dkt. 37 at 8–9. Finally, the court will address the City of Houston’s
argument that Garcia did not establish that it should be subject to municipal liability under § 1983.
Dkt. 17 at 11–13; Dkt. 41 at 10–13.
1. Constitutional Violations
Garcia asserts that the individual defendant officers and the City of Houston violated her
rights to the freedom of speech, to petition the government for redress of grievances, and to be free
from unreasonable searches and seizures in violation of the First, Fourth, and Fourteenth
Amendments of the United States Constitution or that the defendants retaliated against her for the
exercise of those rights. Dkt. 35 at 15. In their motions to dismiss, the individual defendant officers
and the City of Houston argue that Garcia’s rights were not violated. Dkt. 17 at 10; Dkt. 58 at 9.
a. Freedom of Speech and Freedom to Petition
Garcia claims that her First Amendment rights to speech and to petition the government for
redress of grievances were violated or that she was terminated in retaliation for exercising these
rights. Dkt. 35 at 11-13. Garcia alleges her rights were violated during two instances of her First
Amendment conduct: (1) her advice to her boyfriend to remain silent while being questioned during
the traffic stop, and (2) her filing of the IAD complaint.
To assert a claim for violation of the right of freedom of speech under the First Amendment,
Garcia must establish that “(1) [she] was ‘engaged in constitutionally protected activity;’ (2) [the
defendants’] actions caused [her] ‘to suffer an injury that would chill a person of ordinary firmness
from continuing to engage in that activity;’ and (3) [The defendants’] adverse actions ‘were
substantially motivated against [Garcia’s] exercise of constitutionally protected conduct.’” Singleton
v. Darby, 609 F. App’x 190, 193 (5th Cir. 2015) (quoting Keenan v. Tejeda, 290 F.3d 252, 258 (5th
“The right to petition [the government for redress of grievances] is cut from the same cloth
as the other guarantees of [the First] Amendment, and is an assurance of a particular freedom of
expression.” McDonald v. Smith, 472 U.S. 479, 482, 105 S. Ct. 2787 (U.S. 1985). Therefore, the
court will address Garcia’s complaints under freedom of speech and the right to petition collectively
as a First Amendment claim. See Borough of Duryea, Pa. v. Guarnieri, 564 U.S. 379, 398, 131 S.
Ct. 2488 (2011) (“The framework used to govern Speech Clause claims by public employees, when
applied to the Petition Clause, will protect both the interests of the government and the First
Amendment right.”); Gibson v. Kilpatrick, 838 F.3d 476, 481 (5th Cir. 2016) (“Retaliation claims
under both [the Speech Clause and the Petition Clause] are analyzed in the same way”).
First, Garcia alleges that her right to the freedom of speech was violated when she was
silenced from giving Rodriguez advice by Officer Leal’s threat of arrest. Dkt. 35 at 4. The City of
Houston and the individual defendant officers do not address this particular speech in their motions
to dismiss, but rather make a general argument that none of Garcia’s rights were violated. Dkts. 17,
41, 58. Garcia does not allege any involvement on the part of Officers Jones or M.S. in the threat,
only Officer Leal and Officer Heurta. Dkt. 35 at 4. Therefore, the court concludes that the claim
regarding this instance of speech with respect to Officer Jones and Officer M.S. should be
With respect to the claim against Officer Huerta, Garcia does not allege that Officer Heurta
actually heard the threat, only that he was within “earshot.” The court does not find that this alleged
action, which the court infers as hearing another officer issue this threat, would serve to chill speech
nor has Garcia made any argument that Officer Huerta’s action was substantially motivated to stifle
Garcia from exercising her First Amendment rights. Singleton, 609 F. App’x at 193. Therefore, the
court concludes that Garcia’s claim against Officer Heurta for this instance of speech should be
Second, Garcia alleges that she was retaliated against for exercising her right to the freedom
of speech and right to petition because her termination was caused by her filing of an IAD complaint
with the Houston Police Department following the traffic stop. Dkt. 35 at 11. The defendants offer
various narratives regarding when and how Garcia’s employer was contacted regarding the events
associated with the traffic stop. See Dkt. 41 at 2 and Dkt 48 at 55 (alleging that the HCDAO was
called by an IAD investigator after the decision to terminate Garcia was made). But see Dkt. 41 at
14 and Dkt. 58 at 11 (stating that Officer M.S. called the HCDAO the day of the traffic stop and
prior to the filing of the IAD complaint). Though results of the legal analysis may be dependant on
the timeline, for the purposes of the motion to dismiss, the court must accept Garcia’s well-pled facts
as true—that Officer M.S. contacted the HCDAO after Garcia filed her IAD complaint but before
she was terminated. Dkt. 35 at 5.
As an initial matter, the individual defendant officers and the City of Houston challenge the
retaliation cause of action because they were not Garcia’s employer and did not terminate her
themselves. Dkt. 17 at 9. However, the Fifth Circuit has allowed retaliation claims to proceed
against defendants who indirectly caused the termination of a plaintiff without being his direct
employer. See, e.g., Culbertson v. Lykos, 790 F.3d 608, 619 (5th Cir. 2015) (holding a third-party
accountable for retaliation based on indirect actions sufficiently related to the termination); Beattie
v. Madison Cty. Sch. Dist., 254 F.3d 595, 603 (5th Cir.2001) (imputing a defendants’ improper
motives to an employer when the decision was made based on the defendants’ motivations).
Therefore, the court concludes that the complaint should not be dismissed on these grounds.
The court now turns to whether Garcia’s second amended complaint states a claim of First
Amendment retaliation. For a First Amendment retaliation claim, Garcia must show that “(1) [s]he
suffered an adverse employment action; (2) [her] speech involved a matter of public concern;
(3) [her] interest in speaking outweighs the employer's interest in promoting efficiency in the
workplace; and (4) [her] speech motivated the employer’s adverse employment action.” Gibson, 838
F.3d at 481 (citing Charles v. Grief, 522 F.3d 508, 510 n.2 (5th Cir. 2008)). First, it is wellestablished that termination of employment is an adverse employment action. Victoria Indep. Sch.
Dist., 168 F.3d 216, 220 (5th Cir.) (quoting Harrington v. Harris, 118 F.3d 359, 365 (5th Cir. 1997)
(“Adverse employment actions are discharges, demotions, refusals to hire, refusals to promote, and
reprimands.”). Second, in the Fifth Circuit, complaints regarding police misconduct are always
treated as matter of public concern, so the IAD complaint qualifies as a matter of public concern.
Teague v. City of Flower Mound, Tex., 179 F.3d 377, 381 (5th Cir. 1999) (“[S]peech regarding
police misconduct constitutes a matter of public concern.”). Third, none of the defendants make an
argument that HCDAO’s interest in an efficient workplace outweighs the importance of an IAD
Having pled facts in support of meeting these three elements in her complaint, Garcia must
finally plead facts that her speech—filing the IAD complaint—was the reason for her termination.
Gibson, 838 F.3d at 481. Garcia admits that her file states she was fired for lying about the events
of the traffic stop, not for the IAD complaint, but she also alleges this is a “pre-textual” excuse.
Dkt. 35 at 6. Given Garcia’s allegations regarding the timeline of her termination, the allegation that
Officer M.S. contacted HCDAO directly about the IAD complaint, and the questioning Garcia was
subjected to about the traffic stop, the court concludes that Garcia has stated a sufficient factual basis
to support her claim that she was terminated in retaliation for filing the IAD complaint. Kilpatrick,
838 F.3d at 481. Therefore, the court concludes that Garcia has sufficiently pled enough facts to
support a claim of First Amendment retaliation. Gibson, 838 F.3d at 481.
Finally, Officers Jones and Heurta argue that they should not be held responsible for Officer
M.S.’s phone call to the HCDAO. Dkt. 58 at 14. Garcia’s second amended complaint states “at least
Officer M.S.” contacted Harris County. Dkt. 35 at 5. Garcia did not allege any of the other
individual defendant officers contacted the HCDAO regarding her IAD complaint. Dkt. 35; Dkt. 41
at 14. The court concludes that the retaliation allegations against the Officers Jones and Heurta
should be DISMISSED. However, the court concludes Garcia has properly stated a claim against
Officer M.S. for committing First Amendment retaliation.
b. Unreasonable Search and Seizure
Garcia claims that her Fourth Amendment right to be free of an unreasonable search and
seizure was violated by the following actions: (1) the search of her car, (2) her detention in a patrol
car during Rodriguez’s arrest, and (3) the deletion of her cell phone video. Dkt. 16 at 9–11; Dkt. 35
at 4. The Fourth Amendment offers protection against an unreasonable search and seizure. Glenn
v. City of Tyler, 242 F.3d 307, 313 (5th Cir. 2001). During a traffic stop, limited searches and
seizures are permitted when there is a “reasonable and articulable suspicion that a person has
committed a crime.” United States v. Santiago, 310 F.3d 336, 340 (5th Cir. 2002) (citing Terry v.
Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868 (1968)).
The parties each make arguments about whether Garcia’s detention was for a reasonable
length of time, whether the search of Garcia and her car was supported by the circumstances of the
stop, and whether Garcia’s detention was reasonable during Rodriguez’s arrest. Dkt 36 at 9–13; Dkt.
41 at 5–13; Dkt. 58. The City of Houston and the individual defendant officers argue that their
actions were reasonable given what they observed before and during the traffic stop and arrest of
Rodriguez, and that Garcia’s claims should therefore be dismissed. Id. Neither the City of Houston
nor the individual officer defendants address the accusation that one of the officers deleted Garcia’s
cell phone video. Id.
The court need not reach any conclusions on these disputes for the purposes of the motions
to dismiss. As a threshold matter, Garcia alleges that she was not violating any traffic laws when
Officers Leal and Heurta initiated the traffic stop. Dkts. 35 at 3; 61 at 11. Under Terry, the analysis
for whether a search following a traffic stop is permissible under the Constitution begins with a
determination of whether there was reasonable suspicion for the stop and whether “the officer’s
action was justified at its inception.” United States v. Brigham, 382 F.3d 500, 506 (5th Cir. 2004)
(en banc) (citing Terry, 392 U.S. at 19–20). For a motion to dismiss, the court must accept Garcia’s
well-pled facts as true. Twombly, 550 U.S. at 555. Accepting the fact that Garcia did not violate any
traffic laws as true, the officers had no reasonable suspicion to perform the traffic stop, and,
consequently, any subsequent search or seizure would be a violation of Garcia’s rights. Brigham,
382 F.3d at 506. Therefore, Garcia properly stated a claim of violation of her Fourth Amendment
rights to be free from an unreasonable search and seizure.
c. Fourteenth Amendment
The City of Houston argues that the Fourteenth Amendment is not applicable to Garcia’s
claims because Garcia’s detention and search was not an arrest, so it does not implicate due process
concerns of an arrest without probable cause. Dkt. 17 at 10–11 (citing Graham v. Connor, 490 U.S.
386, 386, 109 S. Ct. 1865 (U.S. 1989)). In response, Garcia argues that she was arrested when she
was handcuffed and placed in the patrol car, and so the Fourteenth Amendment is implicated. Dkt.
36 at 9 (citing United States v. Vargas, 643 F.2d 296, 298 (5th Cir. 1981)). The Fifth Circuit has
held that the use of handcuffs singly or in combination with other forms of detention does not
automatically turn an investigatory detention into an arrest. United States v. Campbell, 178 F.3d
345, 349 (5th Cir. 1999) (citing United States v. Sanders, 994 F.2d 200, 206–07 (5th Cir.1993)).
“Whether a detention is an arrest or merely a Terry-stop depends on the ‘reasonableness’ of the
intrusion under all the facts.” United States v. Abdo, 733 F.3d 562, 565 (5th Cir. 2013). “[P]olice
may take reasonable actions under the circumstances to ensure their own safety, as well as the safety
of the public, during an encounter with a suspect.” Id.
Because Garcia’s second amended complaint includes assertions that she was cooperative
and that she had not committed a traffic violation (making the stop without reasonable suspicion),
she has stated a claim that her detention may not have been a reasonable intrusion or necessary for
the safety of the police or public given the circumstances. Dkt. 35.
In summary, Garcia has stated a claim for violations of her rights under the First Amendment
for retaliation by Officer M.S., the Fourth Amendment for unreasonable search and seizure, and
under the Fourteenth Amendment for her detention. Now, the court turns to the individual defendant
officers’ defense of qualified immunity.
2. Qualified Immunity.
Qualified immunity shields federal and state officials from civil damages liability under
§ 1983 in their individual capacities unless a plaintiff can show “(1) that the official violated a
statutory or constitutional right, and (2) that the right was clearly established at the time of the
challenged conduct.” Ashcroft v. al-Kidd, 563 U.S. 731, 131 S. Ct. 2074, 2077 (2011); see also
Ramirez v. Martinez, 716 F.3d 369, 375 (5th Cir. 2013). When an official asserts qualified
immunity, the first step is to identify the allegedly infringed constitutional right. Graham v. Connor,
490 U.S. 386, 394, 109 S. Ct. 1865 (1989). The second step is to “ask whether the right was clearly
established; that is, whether it would be clear to a reasonable [official] that [the official’s] conduct
was unlawful in the situation [the official] confronted. . . . If an [official] makes a reasonable mistake
as to what the law requires, [the official] is entitled to immunity.” Price v. Roark, 256 F.3d 364, 369
(5th Cir. 2001) (citations and internal quotation marks omitted). The court has already addressed
the allegedly infringed upon constitutional rights, so it will turn to the second step of the analysis.
First, for Garcia’s unreasonable search and seizure and detention claims, it is a wellestablished principle that a traffic stop requires reasonable suspicion and that performing a stop and
subsequent search without such suspicion is a violation of a constitutional right. Terry, 392 U.S. at
19–20. Because this right is clearly established, if Garcia’s allegations are taken as true, then the
individual defendant officers’ cannot claim qualified immunity.
Second, the court considers the First Amendment retaliation complaint against Officer M.S.
Because the individual defendant officers’ motion to dismiss is based on a different timeline of
events in which Officer M.S. contacts the HCDAO before the IAD complaint rather than after, they
do not make an argument with regard to their qualified immunity on this claim. Dkt. 58. Further,
the court has already addressed how Garcia has established a claim that her First Amendment rights
may have been violated by Officer M.S. as a matter of well-established law. See supra pp. 8–11.
Therefore, at the motion to dismiss stage, Officer M.S. cannot establish that he is entitled to qualified
immunity on this claim.
3. City of Houston’s Municipal Liability
The City of Houston also argues that Garcia’s second amended complaint has not stated a
claim to support a finding of municipal liability. Dkt. 17 at 11 (citing to Monell v. Dep’t of Soc.
Serv., 436 U.S. 658, 690, 98 S. Ct. 2018 (1978)). To meet the “official policy” element of a § 1983
claim under Monell against a municipality, the plaintiff must either allege (1) a written policy or
procedure that is officially adopted or promulgated by the policymaking authorities of a
governmental agency; or (2) a persistent, widespread practice of governmental agency officials or
employees which, although not officially promulgated or adopted, is so common and well settled as
to constitute a policy or custom that fairly represents the agency’s policy. Piotrowski, 237 F.3d at
“The description of a policy or custom and its relationship to the underlying constitutional
violation, moreover, cannot be conclusory; it must contain specific facts.” Spiller v. City of Tex.
City, Police Dep’t, 130 F.3d 162, 167 (5th Cir. 1997) (citing Fraire v. Arlington, 957 F.2d 1268,
1278 (5th Cir. 1992)). “Allegations of an isolated incident are not sufficient to show the existence
of a custom or policy.” Fraire, 957 F.2d at 1278; see also Rivera v. Hous. Indep. Sch. Dist., 349
F.3d 244, 247 (5th Cir. 2003) (“‘[I]solated unconstitutional actions by municipal employees will
almost never trigger liability.’” (quoting Piotrowski, 237 F.3d at 578)). For a Monell claim, the
plaintiff must establish a widespread practice or custom by providing evidence of numerous similar
incidents. See Pineda v. City of Hous., 291 F.3d 325, 329 (5th Cir. 2002) (finding insufficient
incidents to create enough evidence of a municipal custom of illegal conduct).
Here, Garcia argues that she purposely amended her complaint to include three specific
incidents of improper Houston Police Department searches and seizures. Dkt. 61 at 4. However,
all these events occurred before 2009 and are not similar to Garcia’s case. For instance, none
involves a traffic stop. Dkt. 35 at 7–8. Garcia also alleges in her complaint a failure to train without
providing any supporting facts or example incidents. Id. at 5. Additionally, Garcia’s second
amended complaint does not allege any other prior instances of the City of Houston retaliating
against public employees for IAD complaints or that it has any policy or practice of doing so.
The City of Houston argues that these three incidents, absent other allegations, are
insufficient to establish a municipal custom, policy, or practice.3 Dkt. 17 at 12. The court agrees,
these three incidents occurring five years before Garcia’s traffic stop are not sufficiently numerous
or similar to support an argument that Garcia’s complaint is a result of a widespread custom or
practice of the municipality.
Therefore, the court finds that Garcia’s complaint, even as amended, is insufficient to state
a claim that the alleged violations of her First, Fourth, and Fourteenth Amendment rights are the
result of a municipal custom, policy, or practice on the part of the City of Houston. Monell, 436 U.S.
at 690. The court concludes that the City of Houston’s motion to dismiss should be GRANTED.
Garcia also makes an indirect challenge to having to plead more facts by reminding the
court that the Supreme Court rejected any heightened pleading standard for municipal liability
claims. Dkt. 61 at 7 (citing Leatherman v. Tarrant Cty. Narcotics Intelligence & Coordination Unit,
507 U.S. 163, 168, 113 S. Ct. 1160 (1993)). This court is not applying a heightened pleading
standard to these claims, but is merely requiring that the second amended complaint be pled with the
specificity required by Federal Rule of Civil Procedure 12(b)(6).
Motion for a More Definite Statement and Leave to Amend
Both City of Houston and the individual defendant officers filed an alternative motion for
a more definite statement. Dkt. 17 at 4; Dkt. 58 at 15. Because the court has dismissed Garcia’s
claims against the City of Houston, its alternative motion for a more definite statement is DENIED
AS MOOT. Dkt. 17. With respect to the individual defendant officers, the court finds that the
claims against them are neither vague nor ambiguous. The court concludes the individual defendant
officers’ motion for a more definite statement should be DENIED. Dkt. 58.
Second, in her responses, Garcia asks that the court to allow her the opportunity to amend
in lieu of dismissal. Dkt. 36 at 4; Dkt 61 at 12. Garcia already amended her complaint twice prior
to the court’s deadline for amendment. After the deadline for amendments has passed, Rule 15(a)(2)
of the Federal Rules of Civil Procedure allows a party to “amend its pleading only with the opposing
party’s written consent or the court’s leave.” Fed. R. Civ. P. 15(a)(2). Leave to amend should be
freely given absent “undue delay, bad faith or dilatory motive on the part of the movant, repeated
failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing
party by virtue of allowance of the amendment, [and] futility of [the] amendment.” Foman v. Davis,
371 U.S. 178, 182, 83 S. Ct. 227 (1962).
Garcia does not present the court with a proposed amendment or explain how an amended
complaint would permit her claims to survive another Federal Rule of Civil Procedure Rule 12(b)(6)
motion to dismiss. When a party makes “‘a bare request in opposition to a motion to dismiss [,]
without any indication of the particular grounds on which the amendment is sought[,] . . . [its
request] does not constitute a motion within the contemplation of Rule 15(a).’” See U.S. ex rel.
Willard v. Humana Health Plan of Tex. Inc., 336 F.3d 375, 387 (5th Cir. 2003) (quoting Confederate
Mem’l Ass’n v. Hines, 995 F.2d 295, 299 (D.C. Cir. 1993)) (internal punctuation omitted); see also
Nolasco v. CitiMortgage, Inc., No. H-12-1875, 2012 WL 3648414, at *7 (S.D. Tex. Aug. 23, 2012)
(denying a motion for leave to amend when the plaintiff did not present the court with reasons to
support the survival of an amended complaint).
Garcia has failed to cure any pleading deficiencies with her prior two amendments and the
court concludes that any additional amendments by Garcia would be futile. Therefore, Garcia’s
motions for leave to amend her complaint against the individual defendant officers (Dkt. 61 at 12)
and the City of Houston (Dkt. 36 at 7) are DENIED.
IV. HARRIS COUNTY’S MOTION TO DISMISS
Harris Count filed a motion to dismiss, or alternatively, a motion for a more definite
statement regarding Garcia’s causes of actions against it under § 1983.4 Dkt. 37. Harris County is
not moving to dismiss Garcia’s Title VII claims. Id. at 2 (“Plaintiff’s amended pleadings provided
sufficient notice of her claims against the county, to proceed under Title VII, [and] the county filed
an answer. . . .”). Harris County argues that Garcia’s second amended complaint is defective in two
ways: (1) it does not identify “an official policy, custom or widespread practice” as required for
municipal liability under Monell; and (2) it fails to allege the specific constitutional violation that
Garcia is charging. Dkts. 37, 46 (citing Monell, 436 U.S. at 690)).
Harris County suggests that there may be a dispute over whether its present motion to
dismiss is allowed as a responsive pleading to the second amended complaint. Dkt. 37 at 2; See
Dkt. 36 at 2 (addressing Harris County’s mooted motion to dismiss (Dkt. 12)). However, the court
does not find any indication in Garcia’s response to the live motion to dismiss that she is asserting
this argument. Dkt. 45. To the extent that this is an issue, “[an] amended complaint supersedes the
previous complaint and renders it of no legal effect unless the amended complaint specifically refers
to and adopts or incorporates by reference the earlier pleading.” King v. Dogan, 31 F.3d 344, 346
(5th Cir. 1994); see, e.g., U.S. ex rel. Bias v. Tangipahoa Par. Sch. Bd., 816 F.3d 315, 322 (5th Cir.
2016); Sam v. La., 409 F. App’x 758, 762 (5th Cir. 2011). Here, the second amended complaint
superseded the first amended complaint, rendering it of no legal effect. Therefore the defendants are
entitled to file a responsive pleading, including a motion to dismiss, in response to the second
amended complaint. Tangipahoa Par. Sch. Bd., 816 F.3d at 322 (“[A] defendant may file a new
responsive pleading” following the amendment of a complaint.).
First, Harris County argues that Garcia’s complaint does not specify an “an official policy,
custom or widespread practice” of Harris County that would subject it to liability. Dkt. 37 at 5–6.
Garcia counters that her claim of liability is based on the decision of someone with “final
policymaking authority,” making it an official policy of Harris County. Dkt. 45 at 2 (citing to City
of St. Louis v. Praprotnik, 485 U.S. 112, 127, 108 S. Ct.. 915 (1988)). “A single decision by a
policymaker to follow a course of action can be considered municipal policy.” Culbertson v. Lykos,
790 F.3d 608, 624 (5th Cir. 2015); see also Beattie v. Madison Cty. Sch. Dist., 254 F.3d 595, 602
(5th Cir. 2001); Brady v. Fort Bend Cty., 145 F.3d 691, 698 (5th Cir. 1998) (“[A] single action by
a municipal official possessing final policymaking authority regarding the action in question
constitutes the official policy of the municipality . . . .”). Determining if a party is a final
policymaker is not an “all or nothing” inquiry and the party need not be responsible for all the policy
of the municipality. McMillian v. Monroe Cty., Ala., 520 U.S. 781, 785, 117 S. Ct. 1734 (1997).
However, the policymaker must be the final policymaker “in that area” or “on that particular issue”
of the business of the municipality. Id.; Praprotnik, 485 U.S. at 123. The official’s status as a
policymaker is a matter of state law. Jett v. Dall. Indep. Sch. Dist., 491 U.S. 701, 737, 109 S. Ct..
Here, Garcia argues that the decision to terminate her was made by Devon Anderson, the
District Attorney, or by delegated authority to Belinda Hill, her first assistant. Dkt. 35 at 3. Further,
Garcia points to Texas statutory authority that states that the county district attorney has authority
over the employment of office personnel. Dkt. 45 at 7 (citing to Tex. Gov’t Code Ann. § 41.102).
Garcia buoys her argument with the allegation that the termination decision was made without
following the appropriate Harris County human resources procedures. Id. Harris County’s brief
reply does not challenge Garcia’s allegations that a “final policymaker” made the decision to
terminate Garcia. Dkt. 46. The court finds that Garcia has asserted enough facts to state a claim that
the decision for her termination was made by a final policymaker, and, on those grounds, represents
an official policy of the municipality. Therefore, the court concludes that Harris County’s motion
to dismiss on these ground should be DENIED. Dkt. 37.
Second, Harris County argues that Garcia’s claim did not state the specific constitutional
violation that was behind the decision to terminate her. Dkt. 37 at 6–7. Garcia’s second amended
complaint alleges facts in association with First, Fourth, and Fourteenth Amendment constitutional
violations. Dkt. 35. However, Garcia fails to identify which of these specific constitutional
violations are implicated in her cause of action against Harris County rather than its co-defendants.
Dkt. 35 at 13 (stating only that Garcia “also sues” Harris County under § 1983). Though Garcia later
describes causes of action for specific constitutional violations of her rights to freedom of speech,
to petition the government for redress of grievances, and to be free from unreasonable searches and
seizures, the facts describing each of these causes of action only identify the police officers and the
City of Houston as violating those rights. Dkt. 35 at 16. Some of the alleged facts in the second
amended complaint are unlikely to apply to the claims against Harris County (e.g. Garcia’s Fourth
Amendment claims regarding the search of her car). Dkt. 35 at 4. But some of the alleged facts in
the second amended complaint might be intended to apply to Harris County (e.g. Garcia’s claim of
free speech retaliation). Id. at 10.
Therefore, the court concludes Garcia’s second amended complaint is too vague and
ambiguous for Harris County to reasonably prepare a response to the § 1983 claims as stated. Harris
County’s alternate motion for a more definite statement is GRANTED. Dkt. 37. Garcia is
ORDERED to amend her pleading within twenty (20) days of the date of this order, with the
amendment limited to the specifics necessary to establish the legal and factual bases of her § 1983
claims against Harris County.
The individual defendant officers’ motion to dismiss is DENIED IN PART and GRANTED
IN PART. Dkt. 58. The individual defendant officers’ motion to dismiss is DENIED IN PART with
respect to Garcia’s claims against the individual defendant officers under the Fourth and Fourteenth
Amendments and against Officer M.S. for First Amendment retaliation for filing the IAD complaint.
Id. The individual defendants officers’ motion to dismiss is GRANTED IN PART with respect to
Garcia’s claims against the Officers Heurta and Jones for violation of her First Amendment rights
and Officer M.S. for First Amendment violation regarding her giving advice to Rodriguez to stay
silent and the claims are DISMISSED WITH PREJUDICE. Id. The individual defendant officers’
alternate motion for a more definite statement is DENIED. Id.
The City of Houston’s motion to dismiss is GRANTED. Dkt. 17. The City of Houston’s
alternate motion for a more definite statement is DENIED AS MOOT. Id. Garcia’s claims against
the City of Houston are DISMISSED WITH PREJUDICE. Id.
Garcia’s request for leave to amend her complaint against the City of Houston (Dkt. 36 at 4)
and the individual defendant officers (Dkt. 61 at 12) is DENIED.
Harris County’s motion to dismiss is DENIED. Dkt. 37. Harris County’s alternate motion
for a more definite statement is GRANTED. Dkt. 37. Garcia is ORDERED to amend her complaint
within twenty (20) days of the date of this order, subject to the limitations described herein.
Signed at Houston, Texas on June 2, 2017.
Gray H. Miller
United States District Judge
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