Carmona v. City of Houston, et. al.
MEMORANDUM OPINION granting in part 6 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM (Signed by Magistrate Judge Nancy K Johnson) Parties notified.(sjones, 4) (Main Document 19 replaced on 8/15/2017) (sjones, 4).
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
JULIAN CARMONA, Individually, §
and as next of friend of
J.C., JR., AND J.C.,
WILLIAM WRIGHT, JR., and
THE CITY OF HOUSTON,
CIVIL ACTION NO. H-16-3664
(“City”) and William Wright, Jr.’s, (“Wright”) Motion to Dismiss
The court has considered the motion, Plaintiffs’
response, Defendants’ reply, and Plaintiffs’ surreply, all other
relevant filings, and the applicable law.
For the reasons set
forth below Defendants’ motion is GRANTED IN PART AND DENIED IN
Plaintiffs2 filed this action in state court, and Defendants
removed it to federal court on December 15, 2016.3
In the live
pleading, Plaintiffs allege violations of 42 U.S.C. § (“Section”)
The parties consented to proceed before the undersigned magistrate
judge for all proceedings, including trial and final judgment, pursuant to 28
U.S.C. § 636(c) and Federal Rule of Civil Procedure 73. See Doc. 1, Ord. Dated
December 15, 2016.
witnessed the incident.
See Doc. 1, Not. of Removal.
1983 and state tort claims of assault, intentional infliction of
emotional distress, false imprisonment, slander, and malicious
prosecution, stemming from his arrest and detainment on April 1,
On April 1, 2016, Plaintiff Julian Carmona (“Carmona”) parked
at a convenience store located in Cypress, Texas.5
his vehicle’s door and his licensed handgun “inadvertently” fell
out, and without delay he “calmly and immediately” placed the
handgun back inside of his vehicle.6
Thereafter, Wright, an off-duty, uniformed Houston Police
Officer, quickly exited an unmarked vehicle and pointed his service
weapon at Carmona, accusing him of pointing his handgun at the
convenience store’s concrete parking lot in the presence of his two
minor children who were seated in the back of Carmona’s vehicle.8
Carmona complied and was then handcuffed, arrested, taken to jail,
See Doc. 3, Pls.’ Am. Compl.
See id. p. 2.
See id. p. 3.
and charged with the felony offense of aggravated assault.9
filmed the confrontation
surveillance footage from the convenient store shows that Carmona
did not point his handgun at anyone, including Wright.11
Carmona was eventually no-billed by a grand jury, and the
Harris County District Attorney’s Office dismissed the aggravated
On June 15, 2016, Plaintiffs filed their original petition in
the 215th Judicial District Court of Harris County, Texas, bringing
claims solely against Wright for assault, intentional infliction of
emotional distress, false imprisonment, slander, and malicious
On June 27, 2016, Wright filed a motion to dismiss Plaintiffs’
original petition, based on the Texas Tort Claims Act’s election of
remedies clause, which provides that an employee acting in his
individual or official capacity must be dismissed and the employer
See id. p. 3.
See id. pp. 3-4.
See Doc. 1-5, Pls.’ Orig. Pet.
named in his place.14
Tex. Civ. Prac. & Rem. § 101.106(e).
On July 5, 2016, Plaintiffs filed a supplementation to their
original complaint.15 The supplementation joined Defendant City and
claimed that the City was liable for Wright’s actions under the
doctrine of respondeat superior.16 The supplementation also argued
that Wright should not be dismissed from the lawsuit as immunity
did not apply to a state actor who commits a negligent or wrongful
On December 9, 2016, the City filed a motion to dismiss
Wright under Section 101.106(e) of the Texas Tort Claims Act and
sought to dismiss the remaining claims against the City for want of
subject matter jurisdiction.18
On December 13, 2016, Plaintiffs again supplemented their
original complaint against the City and Wright, maintaining their
constitutional rights under the Fourth and Fourteenth Amendments.19
Specifically, Plaintiffs alleged that Wright falsely claimed that
See Doc. 1-5, Def. Wright’s Mot. to Dismiss Pls.’ Orig. Pet.
See Doc. 1-5, Pls.’ 1st Supplementation to Pls.’ Orig. Pet. in Resp.
to Def. Wright’s Mot. to Dismiss.
See Doc. 1-5, Defs.’ Mot. to Dismiss & Plea to the Jurisdiction p.
52 of 100.
See Doc. 1-5, Pls.’ 3d Supplementation to Pls.’ Orig. Pet. in Resp.
to Def. Wright’s Mot. to Dismiss & Def. City’s Mot. to Dismiss & Plea to the
Carmona pointed his handgun at Wright, that a grand jury returned
a no-bill on the charge thereby confirming a lack of probable cause
for his arrest, and that Plaintiff was harmed by being unable to
take diabetic medication during his arrest and by the forceful
manipulation of his wrists during handcuffing.20 Plaintiffs did not
concluding, “Defendant Wright also negligently violated [Plaintiff]
Carmona’s fourth and fourteenth amendment rights under the United
On December 14, 2016, Plaintiffs filed a supplemental response
which alleged that the City was liable under a negligence per se
standard of care.22
On December 15, 2016, Defendants removed this
action to federal court based on federal question jurisdiction.23
Plaintiffs filed an amended complaint on December 27, 2016.24
Plaintiffs continued to maintain claims under state tort law, as
well as claims arising under the U.S. Constitution pursuant to
On January 6, 2017, Defendants collectively filed a motion to
See id. pp. 70-71 of 100.
See Doc. 1, Not. of Removal.
See Doc. 1-5, Pls.’ Supplemental Resp. & Br. in Supp. of Pls.’ Resp.
to Def. Wright’s Mot. to Dismiss & Def. City’s Mot. to Dismiss & Plea to the
See Doc. 1, Not. of Removal.
See Doc. 3, Pls.’ Am. Comp.
dismiss Plaintiffs’ amended complaint arguing: (1) a lack of
subject matter jurisdiction based on governmental immunity; and,
(2) failure to state a claim.25
Plaintiffs subsequently filed a
response to Defendants’ Motion to Dismiss on January 11, 2017.26
Defendants then jointly filed a reply to Plaintiffs’ response.27
Thereafter, on January 20, 2017, Plaintiffs filed a surreply to
On February 7, 2017, both parties consented
to proceed before the undersigned.29
The court now considers Defendants’ Motion to Dismiss.
Pursuant to the federal rules, dismissal of an action is
appropriate whenever the court lacks subject matter jurisdiction.
Fed. R. Civ. P. 12(b)(1); 12(h)(3).
Federal courts may exercise
jurisdiction over cases only as authorized by the United States
Constitution and the jurisdictional statutes. Kokkonen v. Guardian
Life Ins. Co. of Am., 511 U.S. 375, 377 (1994); see also Howery v.
Allstate Ins. Co., 243 F.3d 912, 916 (5th Cir. 2001).
See Doc. 6, Defs.’ Mot. to Dismiss.
See Doc. 8, Pls.’ Resp. in Opp’n to Defs.’ Mot. to Dismiss for
Failure to State a Claim.
See Doc. 9, Defs.’ Reply to Pls.’ Resp. to Defs.’ Mot. to Dismiss.
See Doc. 10, Pls.’ Surreply to Defs.’ Reply to Pls.’ Resp. to Defs.’
Mot. to Dismiss.
See Doc. 18, Ord. Dated Feb. 7, 2017.
presumption that the cause falls outside the court's limited
Kokkonen, 511 U.S. at 377; Howery, 243 F.3d at 916,
Generally, a district court has original jurisdiction of “all
civil actions arising under the Constitution, laws, or treaties of
the United States.”
28 U.S.C. § 1331.
A defendant may remove any
civil action if the federal district court would have original
28 U.S.C. § 1441.
Federal courts may only hear
cases that either: (1) involve a federal question; or, (2) where
defendant, and the amount-in-controversy exceeds $75,000.
U.S.C. § 1332.
The court, in determining whether it is properly
vested with subject matter jurisdiction, is “free to weigh the
evidence and resolve factual disputes in order to satisfy itself
that it has the power to hear the case.”
Krim v. pcOrder.com,
Inc., 402 F.3d 489, 494 (5th Cir. 2005)(quoting Montez v. Dep't of
Navy, 392 F.3d 147, 149 (5th Cir. 2004)).
The court should decide
the Federal Rule of Civil Procedure (“Rule”) 12(b)(1) motion before
addressing any attack on the merits. Ramming v. United States, 281
F.3d 158, 161 (5th Cir. 2001).
Lujan v. Defenders of Wildlife, 504
U.S. 555, 559 (1992).
To survive a Rule 12(b)(6) motion to dismiss, a plaintiff’s
properly pleaded complaint must include factual content above a
See Cevallos v. Silva, 541 F. App’x. 390, 392-
dismissal of an action is appropriate whenever the complaint, on
its face, fails to state a claim upon which relief can be granted.
When considering a motion to dismiss, the court should construe the
allegations in the complaint favorably to the pleader and accept as
true all well-pleaded facts.
Sullivan v. Leor Energy, LLC, 600
F.3d 542, 546 (5th Cir. 2010).
When reviewing a Rule 12(b)(6) motion, the court must be
allegations” but must include sufficient facts to indicate the
plausibility of the claims asserted, raising the “right to relief
above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007); see also Ashcroft v. Iqbal, 556 U.S. 662, 678
Plausibility means that the factual content “allows the
court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.”
Iqbal, 556 U.S. at 678.
must provide “more than labels and conclusions” or “a formulaic
recitation of the elements of a cause of action.”
U.S. at 555.
In other words, the factual allegations must allow
for an inference of “more than a sheer possibility that a defendant
has acted unlawfully.”
Iqbal, 556 U.S. at 678.
requires only “a short and plain statement of the claim showing
that the pleader is entitled to relief,” in order to “give the
defendant fair notice of what the . . . claim is and the grounds
upon which it rests.”
Twombly, 550 U.S. at 555.
In Plaintiffs’ amended complaint, they allege claims for civil
rights violations under the Fourth and Fourteenth Amendments, as
well as for assault, intentional infliction of emotional distress,
false imprisonment, slander, and malicious prosecution. Defendants
move to dismiss all of Plaintiffs’ claims, and the City also argues
that it is immune from exemplary damages.
Fourth and Fourteenth Constitutional Claims
Plaintiff Carmona alleged that his rights under the Fourth and
without probable cause and employed excessive force during the
arrest. The Fourth Amendment protects “[t]he right of people to be
secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures.”
U.S. Const. amend. IV.
Plaintiffs allege to have been violated.30
To bring a claim of excessive force in violation of the Fourth
Amendment, a plaintiff must allege (1) an injury; which (2)
resulted directly and only from the use of force that was excessive
Although Plaintiffs mentions the Fourteenth Amendment, the court does
not consider Plaintiffs’ complaint to have stated a substantive due process
claim. “These types of claims [for excessive force] brought under Section 1983
must be analyzed under the explicit textual sources of constitutional protection
found in the Fourth Amendment, not the more subject standard of substantive due
process.” Graham v. Connor, 490 U.S. 386, 394 (1989).
to the need; and, (3) the force used was objectively unreasonable.
Glenn v. City of Tyler, 242 F.3d 307, 314 (5th Cir. 2001).
a claim for excessive force, the plaintiff must have suffered more
than a de minimis injury.
The injury is evaluated in the
context in which the force was deployed.
Even assuming the absence of probable cause, an excessive
force claim is evaluated independently of an unlawful arrest claim;
therefore, that an arrest was unlawful does not necessarily mean
that any force used was excessive.
Freeman v. Gore, 483 F.3d 404,
417 (5th Cir. 2007)(noting that an excessive force claim is separate
and distinct from an unlawful arrest claim and is analyzed without
regard to whether the arrest itself was justified). In short, the
reasonableness of the force deployed is evaluated apart from the
justiciability of an unlawful arrest.
In Freeman, the court found that bruising from handcuffing did
not give rise to an excessive force claim in violation of the
Accordingly, when officers effectuate
an arrest and minor injuries result, those injuries do not give
rise to a constitutional claim of excessive force.
Carmona averred that he suffered physical pain in the course
of being handcuffed and suffered additional distress because his
arrest and detention interfered with his ability to take his
Because handcuffing is a necessary component
to effectuate an arrest, Carmona would need to allege facts that
the pain was excessive and extended beyond a contemporaneous
See Glenn v. City of Tyler, 242 F.3d 307, 314-15 (5th Cir.
2001)(concluding that “handcuffing too tightly, without more, does
not amount to excessive force”). Furthermore, Carmona’s detention,
not the officer’s excessive force, prevented him from taking his
medication. The lack of opportunity to take his medication relates
directly to his unlawful arrest claim and must be evaluated
separately from his excessive force claim.
See Freeman, 483 F.3d
Carmona has failed to allege that the force used was excessive
to the need and that the pain suffered was more than de minimis;
therefore, Carmona has failed to allege an excessive force claim
under the Fourth Amendment.
When bringing a claim for false arrest in violation of the
Fourth Amendment, a plaintiff must show that the officer did not
See Evans v. City of Meridian
have probable cause to arrest.
Miss., 630 Fed. App’x 312, 315 (5th Cir. 2015)(unpublished); Brown
v. Lyford, 243 F.3d 185, 189 (5th Cir. 2001)(stating that the
constitutional tort of false arrest requires “a showing of no
Probable cause exists “when the totality of the
facts and circumstances within a police officer’s knowledge at the
moment of arrest are sufficient for a reasonable person to conclude
that the suspect had committed or was committing an offense.”
Turner v. Driver, 848 F.3d 678, 694 (5th Cir. 2017).
reasonable; it is irrelevant what his subjective beliefs were.
Anderson v. Creighton, 483 U.S. 635, 641 (1987).
A grand jury indictment is usually sufficient to establish
See Gerstein v. Pugh, 420 U.S. 103, 117 (1975).
When facts supporting an arrest “are placed before an independent
intermediary such as a magistrate or grand jury, the intermediary’s
decision breaks the chain of causation for false arrest, insulating
the initiating party.”
Cuadra v. Houston Indep. Sch. Dist., 626
F.3d 808, 813 (5th Cir. 2010).
The chain of causation remains
intact, unless “it can be shown that the deliberations of the
intermediary were tainted by the actions of the defendant.”
v. Gary, 838 F. 2d 1420, 1428 (5th Cir. 1988). Moreover, “the chain
of causation is broken only where all the facts are presented to
the grand jury, where the malicious motive of the law enforcement
officials does not lead them to withhold any relevant information
from the intermediary . . . .”
Id. at 1427-28.
Here, the court takes judicial notice of the magistrate
judge’s determination of probable cause.26 When there is a probable
cause finding by a magistrate judge before a no-bill, a plaintiff
cannot predicate his Fourth Amendment claim on a grand jury’s
Doc. 6-1, Ex. 1 to Defs.’ Mot. to Dismiss, Compl.; Doc. 6-2, Ex. 2
to Defs.’ Mot. to Dismiss, Probable Cause Determination.
See, e.g., Tittle v. Raines, 231 F. Supp. 2d 537,
554-555 (N.D. Tex. 2002).
Whether a charge is later dropped or a
defendant is found not guilty is immaterial to the probable cause
analysis. Buehler v. City of Austin/Austin Police Dep't, No. A-13CV-1100-ML, 2015 WL 737031, * at 12 (W.D. Tex. Feb. 20, 2015); See
Baker v. McCollan, 443 U.S. 137, 145 (1979). The Constitution does
not guarantee that only the guilty may be arrested. See Baker, 443
U.S. at 145.
However, “When a police affiant makes statements in a search
warrant affidavit which are intentionally false or made with
reckless disregard for the truth, the statements must be excised
from the affidavit before determining whether the affidavit affords
probable cause for the issuance of the warrant.”
790 S.W.2d 609, 611 (Tex. Crim. App. 1990).
Hass v. State,
Because an affidavit
supporting a warrant has a presumption of validity, it is the
statements in order to obtain a magistrate judge’s determination
based on materially false statements.
See Cates v. State, 120
S.W.3d 352, 356 (Tex. Crim. App. 2003) (citing Ramsey v. State, 579
S.W.2d 920, 922-23 (Tex. Crim. App. 1979)).
In their response to the motion to dismiss, Plaintiffs rely
heavily on the no-bill to raise a fact issue of Wright’s lack of
probable cause to arrest Carmona.
Plaintiffs’ argument in this
falsified his affidavit to justify the arrest that forms the basis
of Carmona’s false arrest claim.
The court finds that Plaintiffs
have adequately alleged a claim for false arrest.
Governmental officials are entitled to qualified immunity from
liability for civil damages “unless [(1)] the official violated a
established at the time of the challenged conduct.”
Howards, 566 U.S. 658, 664 (2012)(citing Ashcroft v. al-Kidd, 563
U.S. 731, 735 (2011)).
Courts have discretion to determine in
which order the two prongs are considered.
al-Kidd, 563 U.S. at
Qualified immunity protects an officer regardless of whether
the error was “a mistake of law, a mistake of fact, or a mistake
based on mixed questions of law and fact.”
Pearson v. Callahan,
555 U.S. 223, 231 (2009)(quoting Groh v. Ramirez, 540 U.S. 551, 567
It is beyond argument that a person who swears to facts in an
affidavit is aware that he does so under penalties of perjury.
officer who knowingly, intentionally, or recklessly, falsifies or
omits statements to be included in an affidavit, violates a
citizen’s Fourth Amendment right to be free from illegal search and
seizure and may not claim a qualified immunity from suit.
v. Delaware, 438 U.S. 154, 171 (1978).
Consequently, if Carmona’s
version of the incident is believed, Wright falsified his affidavit
and the arrest was without probable cause.
There can be no
qualified immunity for perjured testimony.
Defendants’ motion to dismiss on the basis of qualified
immunity must be denied at this time.
City of Houston Liability
A city may be held liable under Section 1983 only for its own
illegal acts, not pursuant to a theory of vicarious liability.
Connick v. Thompson, 563 U.S. 51, 60 (2011).
To succeed on a claim
against the City, a plaintiff must demonstrate that the City “had
some inadequate custom or policy that acted as the moving force
behind a constitutional violation.”
Forgan v. Howard Cty., Tex.,
494 F.3d 518, 522 (5th Cir. 2007)(citing Monell v. Dep't of Soc.
Servs. of N.Y., 436 U.S. 658, 690-91 (1978)).
policy includes the decisions of a government's lawmakers, the acts
of its policymaking officials, and practices so persistent and
widespread as to practically have the force of law.”
U.S. at 61.
The Supreme Court has also recognized that the rejection of
respondeat superior means that “a municipality cannot be held
liable solely because it employs a tortfeasor,” but only for its
Monell v. Department of Social Services, 436 U.S. 658
To establish municipal liability under Section 1983, a
plaintiff must identify a policymaker, an inadequate official
policy, and a constitutional violation whose moving force is the
policy, policymaker, or custom.
See Connick v. Thompson, 563 U.S.
officials and employees can fairly represent a de facto policy when
it is an adopted, persistent, and widespread practice. See Bennett
v. Slidell, 728 F.2d 762, 772 (5th Cir. 1984); accord Brown v. Bryan
Cty., Okla., 219 F.3d 450, 457 (5th Cir. 2000).
Under limited circumstances, the Supreme Court has held that
the failure to train or to supervise its employees may give rise to
Thompson, 563 U.S. 51, 60 (2011).
In failure-to-train cases, a
policymaker’s deliberate indifference, and causation.
City of Wichita Falls, 614 F.3d 161, 170 (5th Cir. 2010).
Fifth Circuit has directly addressed the plaintiff’s evidentiary
burden of showing a genuine dispute of material fact as to the
existence of a de facto policy.
See Hicks-Fields v. Harris Cty.
860 F.3d 803, 813 (5th Cir. 2017).
This court has found that at the motion to dismiss stage, a
plaintiff “need not specifically state what the policy is . . . but
may be more general.”
Thomas v. City of Galveston, 800 F. Supp.2d
826, 843 (S.D. Tex. 2011).
A plaintiff must still “provide fair
notice to the defendant and this requires more than genetically
allegations could include “past incidents of misconduct to others,
multiple harms that occurred to the plaintiffs, misconduct that
occurred in the open, the involvement of multiple officials in the
misconduct, or the specific topic of the challenged policy or
Here, Plaintiffs alleged that the City is liable for Wright’s
conduct under Section 1983 because of a general failure to train.
produce documents pertaining to HPD’s guidelines and policies with
respect to officer training, firearm standards and use of deadly
force regulation as requested by Plaintiffs’ in the state court
Even liberally construing Plaintiffs’ complaint, they have not
alleged either an official policy or a widespread custom that
caused a constitutional violation.
The accusations lodged are
neither specific enough to give the City fair notice nor specific
enough to connect Wright’s conduct with the City’s failure to
See City of Houston, 291 F.3d 325, 332 (5th Cir. 2002).
“The inadequacy of [the] training must be closely related to the
Defects in a particular training program must be
specifically alleged. Roberts v. City of Shreveport, 397 F.3d 287,
293 (5th Cir. 2005).
Ultimately, Plaintiffs fail to meet the legal standard set
The court will allow Plaintiffs the opportunity to
amend and replead this claim with greater specificity within
fourteen days of the entry of this order.
The failure to train
allegations must be specifically addressed to the remaining claim
against Wright - that he falsified his affidavit supporting the
Texas Tort Claims Act
The TTCA provides that a person having a claim may sue a
municipality, for damages that are allowed by the TTCA.
Civ. Prac. & Rem. § 101.025; 101.001(2)(B). However, in Texas, the
doctrine of governmental immunity applies, meaning that, absent a
constitutional or statutory waiver of governmental immunity, a city
may not be held liable for any of its actions.
Univ. of Tex.
Medical Branch v. York, 871 S.W.2d 175, 177 (Tex. 1994).
Generally, the TTCA waives immunity for municipalities, but
these municipalities can be held liable for property damage,
personal injury, or death caused by wrongful acts of employees if
arising from the use of a motor-driven vehicle or from a condition
or use of tangible personal or real property.
& Rem. Code § 101.021.
See Tex. Civ. Prac.
Claims excluded from the Act’s general
waiver are those that arise out of “assault, battery, false
imprisonment, or any other intentional tort”.
Tex. Civ. Prac. &
Rem. Code § 101.057.
Under the election of remedies provision of the TTCA, any suit
filed against both a municipality and its employee acting in his
employee on the filing of a motion by the governmental unit.
Tex. Civ. Prac. & Rem. Code § 101.106(e). “Because the Tort Claims
Act is the only, albeit limited, avenue for common-law recovery
governmental unit, whether it is sued alone or together with its
employees, are assumed to be ‘under [the Tort Claims Act].’”
Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 655
n.2 (Tex. 2008).
This includes intentional tort claims.
The crux of Plaintiffs’ claim is that Wright, a municipal
actor, assaulted, falsely imprisoned, slandered, and maliciously
prosecuted Carmona through the negligent use of his Houston Police
Assault, intentional infliction of emotional
distress, false imprisonment, slander, and malicious prosecution
are intentional torts; and, therefore, the court must consider
Plaintiffs’ intentional tort claims against the City and Wright to
be brought under the TTCA.
See Donohue v. Dominguez, 486 S.W.3d
50, 54 (Tex. App.-San Antonio 2016, pet. denied)(holding “any civil
claims brought for false imprisonment . . . are claims subject to
the Texas Tort Claims Act”); See Franka v. Velasquez, 332 S.W.3d
367, 381 (Tex. 2011); Fink v. Anderson, 477 S.W.3d 460, 468 (Tex.
App.-Houston [1st Dist.] 2015, no pet.)(stating that malicious
prosecution is an intentional tort).
intentional-tort claims, governmental immunity applies and the
state-law claims should be dismissed.
F.3d 353, 363 (5th Cir. 2017).
See Quinn v. Guerrero, 863
Although Plaintiffs’ description of
Wright’s alleged conduct is couched in terms of negligence, these
claims are nonetheless intentional torts and are barred by the
See Harris Cty. v. Cabazos, 177 S.W.3d 105, 112 (Tex.
App.—Houston [1st Dist.] 2005, no pet.); Huong v. City of Port
Arthur, 961 F. Supp. 1003, 1008-09 (E.D. Tex. 1997)(holding a
plaintiff cannot circumvent the intentional tort exception by
couching his claims in terms of negligence).
Plaintiffs’ intentional tort claims against the City and
Wright must be dismissed.
Plaintiffs seek exemplary damages for Defendants' allegedly
malicious conduct under Tex. Civ. Prac. & Rem. Code § 41.003(a).
Texas Civil Practice and Remedies Code § 101.024 explicitly states
that governmental immunity is not waived for exemplary damages.
See Tex. Civ. Prac. & Rem. Code § 101.024; City of Houston v.
Johnson, 353 S.W.3d 499, 503 (Tex. App.-Houston [14th Dist.] 2011,
pet. denied). Plaintiffs’ claim for exemplary damages on the state
law causes of action must be dismissed.
Based on the foregoing, the court GRANTS the City of Houston’s
Motion to Dismiss, and recommends that Wright’s Motion to Dismiss
be GRANTED IN PART, DENIED IN PART.
The following claim remains:
Plaintiffs’ claim of false arrest against Wright.
If Plaintiffs intend to amend their allegations concerning the
City’s failure to train, they must do so within fourteen days.
SIGNED in Houston, Texas, this 15th day of August, 2017.
U.S. MAGISTRATE JUDGE
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