Custer et al v. City of Houston et al

Filing 13

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

ENTERED
November 15, 2017

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
ROBIN CUSTER,
Plaintiff,
v.
HOUSTON POLICE DEPARTMENT and
CITY OF HOUSTON,
Defendants.

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David J. Bradley, Clerk

CIVIL ACTION NO. H-17-1338

MEMORANDUM OPINION
Pending
(“Defendant

before
City”)

the

court1

and

Houston

is

Defendants
Police

City

of

Houston

Department’s

(“HPD”)

(collectively, Defendants”) Motion to Dismiss (Doc. 2).

The court

has considered the motion, all other relevant filings, and the
applicable law.

For the reasons set forth below, the court GRANTS

IN PART and DENIES IN PART Defendants’ motion.
I.

Case Background

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,
Texas.3

Defendants filed the pending motion to dismiss on May 8,

1
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.
2

See Doc. 1-4, Ex. D to Defs.’ Not. of Removal, Pl.’s Orig. Pet.

3

See Doc. 1, Defs.’ Not. of Removal.

2017.4 and Plaintiff has not filed a response.

The following

factual account is derived from Plaintiff’s live complaint.
On March 5, 2015, two HPD officers drove into Plaintiff’s
driveway

while

Plaintiff

Custer”) were not home.5

and

her

husband

Ricky

Custer

(“Mr.

The officers walked around the exterior

of Plaintiff’s home and disabled the home’s security cameras.6

One

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
of

Plaintiff’s

mailbox.8

The

officers

then

re-entered

their

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
cameras.11

Plaintiff’s neighbor also had footage of the incident

4

See Doc. 2, Defs.’ Mot. to Dismiss.

5

See Doc. 1-4, Ex. D to Defs.’ Not. of Removal, Pl.’s Orig. Pet. p.

6

See id.

7

See id.

8

See id.

9

See id.

10

See id. p. 2.

11

See id.

3.

2

captured on his camera.12
II.

Legal Standard

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
speculative level.”

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.

misconduct alleged.”
provide

“more

than

labels

and

conclusions”

A plaintiff must
or

recitation of the elements of a cause of action.”
U.S. at 555.

“a

formulaic

Twombly, 550

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.
III. Analysis

12

See id.

3

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.
A.

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).
city.

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.
2007).

The

Texas

Local

Government

Code

gives

home-rule

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
enjoy

a

separate

(citations

and

legal

existence.”

internal

quotations

Darby,

939

omitted).

F.2d

at

313

Political

subdivisions must be “separate and distinct corporate entit[ies]”

4

in order to sue or be sued.

Id.

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
this action.
B.

Texas Tort Claims Act
As a municipality, the City is entitled to the protection of

governmental immunity.
Garcia,

253

S.W.3d

Mission Consol. Indep. Sch. Dist. v.

653,

655

n.2

(Tex.

2008)

(stating

that

municipalities are protected by governmental immunity); see also
Tex. Civ. Prac. & Rem. Code § 101.001(3)(B).

Texas governmental

units enjoy immunity from claims unless Texas has consented to
allowing suit.

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 §

5

101.021.
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
Claims Act].’”

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.”).

Therefore,

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-

13
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.

6

driven equipment.”

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
dismissed.

Claims

“arising

out

of

assault,

battery,

false

imprisonment, or any other intentional tort” are excepted from the
general waiver under the TTCA.

Tex. Civ. Prac. & Rem. Code §

101.057.
C.

Section 1983
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
14

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.

7

created under federal law.

Graham v. Connor, 490 U.S. 386, 393-94

(1989).
1.

Respondeat Superior

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.

Monell v.

Dep’t of Social Servs., 436 U.S. 658, 691 (1978)(emphasis in
original).
In her complaint, Plaintiff alleges that the City is liable
for constitutional torts committed by the officers.

However, the

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
dismissed.
2.

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
8

60-61.

“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.”

Id.

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
training inadequacy.”

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.
2010).

In failure-to-train cases, a plaintiff must prove the

inadequacy

of

the

procedures,

the

policymaker’s

deliberate

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

9

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
adequate

training,

the

plaintiff

cannot

rely

on

proof

that

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
constitutional limitations.

Pineda v. City of Houston, 291 F.3d

325, 333 (5th Cir. 2002); see also Harris, 489 U.S. at 391.

The

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

15

Additionally, Plaintiff

Doc. 1-4, Doc. 1-4, Ex. D to Defs.’ Not. of Removal, Pl.’s Orig. Pet.

p. 8.

10

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
and,

therefore,

unconstitutional,

and

what

and

when

the

few

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
other

than

illegal,

warrantless

searches

and

destruction

of

property.”16
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.
3.

Exemplary Damages

The City argues it is immune from punitive damages under
Section 1983.

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

16

Id. at 9-10.

11

U.S.C. § 1983.” Therefore, Plaintiff may not seek punitive damages
against the City for its Section 1983 claim.
IV.

Conclusion

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

12