Custer et al v. City of Houston et al
MEMORANDUM OPINION granting in part, denying in part 2 MOTION to Dismiss (Signed by Magistrate Judge Nancy K Johnson) Parties notified.(sjones, 4)
United States District Court
Southern District of Texas
November 15, 2017
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON POLICE DEPARTMENT and
CITY OF HOUSTON,
David J. Bradley, Clerk
CIVIL ACTION NO. H-17-1338
(collectively, Defendants”) Motion to Dismiss (Doc. 2).
has considered the motion, all other relevant filings, and the
For the reasons set forth below, the court GRANTS
IN PART and DENIES IN PART Defendants’ motion.
Plaintiff filed this action alleging violations of 42 U.S.C.
§ (“Section”) 1983, the Texas Tort Claims Act, and state law claims
of negligence and gross negligence.2
On May 1, 2017, Defendants
removed this case from the 269th District Court of Harris County,
Defendants filed the pending motion to dismiss on May 8,
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. 7, Ord. Dated
May 31, 2017.
See Doc. 1-4, Ex. D to Defs.’ Not. of Removal, Pl.’s Orig. Pet.
See Doc. 1, Defs.’ Not. of Removal.
2017.4 and Plaintiff has not filed a response.
factual account is derived from Plaintiff’s live complaint.
On March 5, 2015, two HPD officers drove into Plaintiff’s
Custer”) were not home.5
The officers walked around the exterior
of Plaintiff’s home and disabled the home’s security cameras.6
of the officers used his flashlight to break open the front door,
and the officers entered Plaintiff’s home.7
After they exited the
home, leaving the front door open, the officers took the mail out
vehicle and parked it down the street from Plaintiff’s house.9
Mr. Custer came home to find his house had been entered and
the security cameras disabled.10 After Mr. Custer called Plaintiff,
she came home from work and reviewed the footage on their security
Plaintiff’s neighbor also had footage of the incident
See Doc. 2, Defs.’ Mot. to Dismiss.
See Doc. 1-4, Ex. D to Defs.’ Not. of Removal, Pl.’s Orig. Pet. p.
See id. p. 2.
captured on his camera.12
Pursuant to Federal Rule of Civil Procedure (“Rule”) 12(b)(6),
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).
A complaint need not contain “detailed factual allegations”
but must include sufficient facts to indicate the plausibility of
the claims asserted, raising the “right to relief above the
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Plausibility means that the factual content “allows the court to
draw the reasonable inference that the defendant is liable for the
Iqbal, 556 U.S. at 678.
A plaintiff must
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.
Defendants contend that HPD is an improper party to this suit,
and that the claims under the TTCA and Section 1983 against the
City should be dismissed.
Additionally, the City argues that
exemplary damages are not available for these claims.
Houston Police Department
Plaintiff has sued both the HPD and the City; Defendants
contend that HPD was improperly sued as it has no legal existence
separate from the City.
Rule 17(b) mandates that an entity’s ability to be sued “is
determined . . . by the law of the state in which the district
court is held.”
Fed. R. Civ. P. 17(b); Darby v. Pasadena Police
Dep’t, 939 F.2d 311, 313 (5th Cir. 1991).
Houston is a home-rule
See, e.g., Houston Ass’n of Alcoholic Beverage Permit
Holders v. City of Houston, 508 F. Supp.2d 576, 583 (S.D. Tex.
municipalities the power to create a police department. Tex. Local
Gov. Code § 341.003; Darby, 939 F.2d at 313.
The City of Houston’s
charter gives the City the power to “sue and be sued,” but does not
give the HPD the power to be sued.
See Houston, Tex., Charter,
Art. II, § 1 (1905).
“In order for a plaintiff to sue a city department it must
subdivisions must be “separate and distinct corporate entit[ies]”
in order to sue or be sued.
Therefore, the Fifth Circuit has
said that “our 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.”
Id. (citations omitted).
Because HPD is not a separate legal entity from the City, and
does not have the power to sue or be sued, HPD is dismissed from
Texas Tort Claims Act
As a municipality, the City is entitled to the protection of
Mission Consol. Indep. Sch. Dist. v.
municipalities are protected by governmental immunity); see also
Tex. Civ. Prac. & Rem. Code § 101.001(3)(B).
units enjoy immunity from claims unless Texas has consented to
Tex. Dep’t of Parks & Wildlife v. Miranda, 133
S.W.3d 217, 224 (Tex. 2004).
Texas waives immunity for a limited number of situations as
described in the TTCA.
Garcia, 253 S.W.3d at 655; see also Tex.
Civ. Prac. & Rem. Code §§ 101.021-101.025.
Generally, the TTCA
waives immunity for property damage, personal injury, and 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.
See Tex. Civ. Prac. & Rem. Code §
In her complaint, Plaintiff makes claims under the TTCA and
separately makes claims for negligence and gross negligence.
“Because the Tort Claims Act is the only, albeit limited, avenue
for common-law recovery against the government, all tort theories
alleged against a governmental unit, whether it is sued alone or
together with its employees, are assumed to be ‘under [the Tort
Garcia, 253 S.W.3d at 659; see also Franka v.
Velasquez, 332 S.W.3d 367, 390 (Tex. 2011)(“the Tort Claims act is
the only means to sue the government for a tort.”).
Plaintiff’s claims for negligence and gross negligence must be
considered brought under the TTCA because Plaintiff made these
claims against a governmental unit.
The court agrees with Defendants that Plaintiff does not
allege personal injury in this case,13 but alleges that she suffered
property damage as the officers disabled her cameras and forced her
front door open with their flashlight.
However, “[t]he Texas Tort
Claims Act distinctly reflects that recovery for property damage
alone may arise in only one instance–when damages are proximately
caused by the operation or use of motor-driven vehicles or motor-
The court also takes note of the error pointed out by Defendants in
Plaintiff’s complaint. See Doc. 2, Defs.’ Mot. to Dismiss p. 4. In Plaintiff’s
complaint, there is a sentence stating “[t]he shooting death of John was a direct
and proximate result of the negligence of these two HPD officers.” Doc. 1-4, Ex.
D to Defs.’ Not. of Removal, Pl.’s Orig. Pet. p. 11. The court agrees that this
sentence appears to be an error as there are no factual allegations about anyone
named John or any shooting by HPD officers.
City of San Antonio v. Winkenhower, 875 S.W.2d
388, 390 (Tex. App.–San Antonio 1994, writ denied).
There is no
allegation that a motor vehicle or motor-driven equipment caused
damage to Plaintiff’s property; any negligence claims Plaintiff
brings against the City must be dismissed.
Additionally, to the extent that Plaintiff attempts to bring
any claims for intentional torts, these claims must also be
imprisonment, or any other intentional tort” are excepted from the
general waiver under the TTCA.
Tex. Civ. Prac. & Rem. Code §
A plaintiff can establish a prima-facie case under Section
198314 for the deprivation of civil rights by establishing: (1) a
violation of a federal constitutional or statutory right; and (2)
that the violation was committed by an individual acting under the
color of state law.
Doe v. Rains Cty. Indep. Sch. Dist., 66 F.3d
1402, 1406 (5th Cir. 1995).
The statute creates no substantive
rights but only provides remedies for deprivations of rights
The provision reads, in relevant part:
Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State . . ., subjects or causes to be subjected,
any citizen of the United States or other person within the jurisdiction
thereof to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party injured
in an action at law, suit in equity, or other proper proceeding for
redress . . . .
42 U.S.C. § 1983.
created under federal law.
Graham v. Connor, 490 U.S. 386, 393-94
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). 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 own wrongs.
Dep’t of Social Servs., 436 U.S. 658, 691 (1978)(emphasis in
In her complaint, Plaintiff alleges that the City is liable
for constitutional torts committed by the officers.
City may only be held liable for its own customs or policies, not
under a theory of respondeat superior.
Therefore, to the extent
that Plaintiff attempts to hold the City vicariously liable for the
acts of its officers under Section 1983, those claims must be
Policy or Custom
To succeed on a claim under Section 1983, the 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, 436 U.S. at 690-91); see also Connick, 563 U.S. at
“Official municipal 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.”
Connick, 563 U.S. at 61.
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, Texas, 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
generically restating the elements of municipal liability.”
Such allegations could include “past incidents of misconduct to
others, multiple harms that occurred to the plaintiff, misconduct
that occurred in the open, the involvement of multiple officials in
the misconduct, or the specific topic of the challenged policy or
Id. (citing cases).
Courts have recognized that, under limited circumstances, the
failure to train or to supervise its employees may give rise to
local-government liability under Section 1983.
See id.; Zarnow v.
City of Wichita Falls, Texas, 614 F.3d 161, 169, 170 (5th Cir.
In failure-to-train cases, a plaintiff must prove the
indifference, and causation. Zarnow, 614 F.3d at 170.
A local government can be held liable only when its failure to
train or to supervise amounted to deliberate indifference to the
constitutional rights of its citizens.
Connick, 563 U.S. at 61
(quoting City of Canton, Ohio v. Harris, 489 U.S. 378, 388 (1989)).
In order to show deliberate indifference by the municipality, a
plaintiff must generally show a pattern of similar constitutional
violations by untrained employees. Connick, 563 U.S. at 62. Where
the question is not whether the officers received any training in
the constitutional requirements, but whether the officers received
additional training would have created a better officer or would
have reduced the likelihood of a constitutional violation but must
prove that the “officers were so untrained as to be unaware” of
Pineda v. City of Houston, 291 F.3d
325, 333 (5th Cir. 2002); see also Harris, 489 U.S. at 391.
Supreme Court has cautioned, “[a] municipality’s culpability for a
deprivation of rights is at its most tenuous where a claim turns on
a failure to train.”
Connick, 563 U.S. at 61.
Plaintiff alleges that the City is liable “for failing to
supervise and train its police officers, and for overlooking and
covering up officer misconduct . . . [the City] had a general
policy, pattern and/or practice of not disciplining police officers
for their conduct . . . which amounted to a departmental policy of
overlooking constitutional violations.”15
Doc. 1-4, Doc. 1-4, Ex. D to Defs.’ Not. of Removal, Pl.’s Orig. Pet.
alleges that the City failed to train and supervise officers “on
the Fourth Amendment requirements that officers entering a person’s
home to conduct a search have a warrant based on probable cause,
that warrantless searches inside a home are per se unreasonable
specifically established exceptions to this general rule exist ..
. [the City] fail[ed] to adequately train its HPD officers . . .
regarding the availability of alternative means of investigation
The court finds that Plaintiff’s allegation that the City had
a policy of overlooking constitutional violations fails to put the
City on notice of the alleged training deficiency and how the City
had been placed on notice of the training deficiency such that it
amounted to deliberate indifference. However, the court finds that
Plaintiff’s allegation that the City failed to train its officers
on the Fourth Amendment’s warrant requirement is specific and is
factually related to the allegations in this case.
The City argues it is immune from punitive damages under
The court agrees.
In City of Newport v. Fact
Concerts, Inc., 453 U.S. 247, 271 (1981), the Supreme Court held
that “a municipality is immune from punitive damages under 42
Id. at 9-10.
U.S.C. § 1983.” Therefore, Plaintiff may not seek punitive damages
against the City for its Section 1983 claim.
Based on the foregoing, Defendants’ motion to dismiss is
GRANTED IN PART and DENIED IN PART.
HPD is DISMISSED from this
action. Plaintiff’s claims against the City under the TTCA and for
negligence and gross negligence are DISMISSED. Plaintiff’s Section
1983 claim for failure to train based on the alleged City policy of
overlooking constitutional violations is DISMISSED for failure to
state a claim upon which relief can be granted. The only remaining
claim is Plaintiff’s failure to train claim based on the City’s
failure to train on the Fourth Amendment’s warrant requirement.
SIGNED in Houston, Texas, this 15th day of November, 2017.
U.S. MAGISTRATE JUDGE
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