Jackson v. Ferretis et al
Filing
17
MEMORANDUM OPINION AND ORDER granting 10 MOTION to Dismiss 6 Amended Complaint Pursuant to Rule 12(b)(6). (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)
United States District Court
Southern District of Texas
ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
BRANDON RAY JACKSON,
Plaintiff,
v.
ANTUAR FERRETIS, OFFICER and
NEW CANEY INDEPENDENT SCHOOL
DISTRICT,
Defendants.
§
§
§
§
§
§
§
§
§
§
§
September 21, 2017
David J. Bradley, Clerk
CIVIL ACTION NO. H-17-1922
MEMORANDUM OPINION AND ORDER
Plaintiff, Brandon Ray Jackson ("Plaintiff"), sued defendants
Antuar Ferretis and New Caney Independent School District ( "NCISD")
(collectively "Defendants") in the 284th Judicial District Court of
Montgomery
defendant,
County,
Texas. 1
Plaintiff
brings
police officer Antuar Ferret is,
-
individual capacities,
under 42 U.S.C.
claims
against
in his official and
1983 for violation of
§
civil rights guaranteed by the Fourth, Fifth, and Eighth Amendments
to the United States Constitution.
Plaintiff brings claims against
NCISD under the Texas Tort Claims Act for negligent conduct of its
employees,
and under 42 U.S.C.
§
1983
Defendants timely removed to this court. 2
is
New Caney
Independent
School
for municipal liability.
Pending before the court
District
and Antuar
Ferret is'
1
See Plaintiff's Original Petition, Exhibit 2 to Defendants'
Notice of Removal, Docket Entry No. 1-2.
2
See Defendants' Notice of Removal, Docket Entry No. 1.
Motion for Partial Dismissal of Plaintiff's Second Amended Complaint
Pursuant to Rule 12 (b) ( 6)
for
Partial
(Docket Entry No. 10) ("Defendants' Motion
Dismissal").
For
the
reasons
set
forth
below,
Defendants' Motion for Partial Dismissal will be granted.
I.
Factual Allegations and Procedural Background
On July 21,
bicycle
at
2016,
NCISD's
plaintiff Brandon Jackson was riding his
Texan
Drive
Stadium.
Officer
Ferretis
approached Jackson in his NCISD Police Department patrol car as
Jackson was leaving the parking lot.
During the ensuing pursuit
Officer Ferretis' patrol car hit Jackson, causing several injuries.
Plaintiff alleges that Officer Ferretis was at all times acting
under color of state law as an agent and employee of NCISD. 3
Jackson initially filed a personal injury lawsuit in state
court
against
NCISD
and Officer
Ferretis
in his
official
and
individual capacities under the Texas Tort Claims Act and 42 U.S.C.
§
1983 ("Section 1983").
Defendants removed the action to federal
court and sought partial dismissal of Jackson's federal and state
law claims.
Jackson then filed a Second Amended Complaint in which
he asserts a claim against Officer Ferretis under Section 1983 in
his official and individual capacities and against NCISD under the
Texas Tort Claims Act and under Section 1983. 4
Defendants move for
3
See Plaintiff's Second Amended Complaint, Docket Entry No. 6,
p. 4 ~ 18.
4
See Plaintiff's Second Amended Complaint, Docket Entry No. 6,
p. 3 ~~ 16, 17; pp. 5-6 ~~ 29-32.
-2-
partial
dismissal
of
Plaintiff's
Second
Amended
Complaint.
Defendants ask the court to dismiss (i) Plaintiff's claim against
NCISD and Officer Ferretis in his official capacity under Section
1983,
and
(ii)
Plaintiff's claims arising under the
Fifth and
Eighth Amendments to the United States Constitution against Officer
Ferretis in his official and individual capacities. 5
opposes Defendants' Motion to Dismiss. 6
Plaintiff
However, Plaintiff did not
respond to Defendants' arguments to dismiss the claims under the
Fifth and Eighth Amendments.
Each claim will be analyzed under the
standard of review set forth below.
II.
Standard of Review
Under the Federal Rules of Civil Procedure a pleading must
contain "a short and plain statement of the claim showing that the
pleader is entitled to relief."
Fed.
R.
Ci v.
P.
8 (a) ( 2) .
A
plaintiff's pleading must provide the grounds of his entitlement to
relief, and "a formulaic recitation of the elements of a cause of
action will not do.
S.
Ct.
1955,
1965
II
(2007).
Bell Atlantic Corp. v. Twombly,
"' [N] aked assertion [s] '
127
devoid of
'further factual enhancement'" or "[t]hreadbare recitals of the
elements
of
a
cause
of
action,
statements, do not suffice."
supported
by
See Ashcroft v.
5
mere
Iqbal,
See Defendants' Motion for Partial Dismissal,
No. 10.
6
conclusory
129
s. Ct.
Docket Entry
See Plaintiff's Response to Defendants' Partial Motion to
Dismiss Plaintiff's Second Amended Complaint, Docket Entry No. 12.
-3-
1937, 1949 (2009).
"[C]onclusory allegations or legal conclusions
masquerading as factual conclusions will not suffice to prevent a
motion to dismiss."
F.2d 278,
284
Fernandez-Montes v. Allied Pilots Ass'n, 987
(5th Cir.
1993).
Instead,
"[a]
claim has facial
plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged."
A Rule 12(b) (6)
pleadings
and
is
Iqbal, 129 S. Ct. at 1949.
motion tests the formal sufficiency of the
"appropriate
when
a
defendant
attacks
the
complaint because it fails to state a legally cognizable claim."
Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001), cert.
denied sub nom. Cloud v. United States, 122 S. Ct. 2665 (2002).
To
defeat a motion to dismiss, a plaintiff must plead "enough facts to
state a claim to relief that is plausible on its face."
127 S. Ct. at 1974.
Twombly,
The court does not "strain to find inferences
favorable to the plaintiffs" or "accept conclusory allegations,
unwarranted deductions, or legal conclusions."
Southland Securities
Corp. v. INSpire Insurance Solutions, Inc., 365 F.3d 353, 361 (5th
Cir.
2004)
(internal
quotation
marks
"[C] ourts are required to dismiss,
Insurance Co.
(Texas),
Flynn v.
citations
pursuant to
claims based on invalid legal theories,
otherwise well-pleaded."
and
omitted).
[Rule 12 (b) (6)],
even though they may be
State Farm Fire and Casualty
605 F. Supp. 2d 811,
820
(W.D. Tex. 2009)
(citing Neitzke v. Williams, 109 S. Ct. 1827, 1832 (1989)).
-4-
III.
A.
Analysis
Jackson Abandoned Claims Under the Fifth and Eight Amendments
Plaintiff did not address Defendants' arguments for dismissal
of
Plaintiff's
claims
Accordingly,
the
Plaintiff. 7
As
abandoned.
588 n.1
court
such,
under
the
treats
this
Fifth
the
and
Eighth
arguments
court will
dismiss
as
Amendments.
unopposed
those
claims
by
as
See Black v. North Panola School Dist., 461 F.3d 584,
(5th Cir.
2006)
(holding that the plaintiff's failure to
defend a claim in responses to motions to dismiss or to otherwise
pursue it beyond her complaint constituted abandonment of the claim)
(citing Vela v. City of Houston, 276 F.3d 659, 679 (5th Cir. 2001)).
Alternatively, Plaintiff's claims under the Fifth and Eighth
Amendments have no merit whether the court treats them as abandoned
or not.
Neither the Fifth nor the Eighth Amendment applies to the
municipal actors
in this case.
The protections of
the Eighth
Amendment apply only to "convicted prisoners and do not apply to
pretrial detainees," and the Fifth Amendment applies "only to the
actions of the federal government,
municipal government."
1996) .
and not to the actions of a
Morin v. Caire, 77 F.3d 116, 120 (5th Cir.
Therefore, Plaintiff's claims under the Fifth and Eighth
Amendments
against
Officer
Ferretis
in
both
his
official
and
individual capacities have no merit.
7
See Local Rules of the United States District Court for the
Southern District of Texas, Rule 7.4 ("Failure to respond will be
taken as a representation of no opposition.").
-5-
B.
Section 1983 Claims Against NCISD and Officer Ferretis
1.
Claim Against Officer Ferretis
Plaintiff sued Officer Ferretis in both his individual and
official capacities under Section 1983. 8
Public officials like
Officer Ferretis may be sued pursuant to 42 U.S.C.
official and/or their personal capacities.
S. Ct. 358, 361-63
3099
(1985)).
(1991)
§
1983 in their
Hafer v.
Melo,
112
(citing Kentucky v. Graham, 105 S. Ct.
But the real party in interest in an official-
capacity suit is the governmental entity, not the named official,
because
" [s] tate
officers
capacity are not 'persons'
sued
for
damages
in
their
official
for purposes of the suit because they
assume the identity of the government that employs them." Id. at
Therefore,
362.
Plaintiff may bring Section 1983 claims against
Officer Ferretis in his individual capacity only and against NCISD
through Officer Ferretis' official capacity.
2.
Municipal Liability Claims Against NCISD
Plaintiff attempts to establish municipal liability against
NCISD by claiming that NCISD's Chief of Police has policy-making
authority and that NCISD has a custom of intentionally disregarding
public safety. 9
A governmental entity can be sued and subjected to
monetary damages and injunctive relief under Section 1983 only if
8
See Plaintiff's Second Amended Complaint, Docket Entry No. 6,
PP. 3-4.
9
See Plaintiff's Second Amended Complaint, Docket Entry No. 6,
pp. 5-6.
-6-
its official policy or custom causes a person to be deprived of a
federally protected right.
of
the
City of New York,
Monell v. Department of Social Services
98
S.
Ct.
2018,
2037-38
(1978).
A
governmental entity may not be held liable under Section 1983 on
the basis of respondeat superior or vicarious liability.
2036.
(1)
Id. at
Governmental liability under Section 1983 requires proof of
a policy maker;
violation of a
policy or custom.
(2)
an official policy or custom; and (3)
constitutional right
whose moving force
is
a
the
Id.; Cox v. City of Dallas, Texas, 430 F.3d 734,
748 (5th Cir. 2005), cert. denied, 126 S. Ct. 2039 (2006).
For the first element, "[u]nder Texas law, the final policymaking authority in an independent school district rests with the
district's board of trustees."
Dist.,
65 F.3d 1299, 1304
Eugene v. Alief Independent School
(5th Cir. 1995)
(citing Jett v. Dallas
Independent School Dist., 7 F.3d 1241, 1245
(5th Cir. 1993).
An
official policy or custom requires a policy statement or decision
that is officially adopted and promulgated by the district or by a
policy maker; or a widespread practice constituting a custom that
fairly represents district policy.
Eugene, 65 F.3d at 1304.
The
third element "requires the plaintiff to prove causation; that is,
that
the policy or custom is
violation."
the cause
in fact
of
the
rights
Crawford v. City of Houston Texas, 260 F. App'x 650,
652 (5th Cir. 2007).
To survive Defendants' Motion for Partial Dismissal, Plaintiff
must assert plausible factual allegations
-7-
to support the three
elements of municipal liability.
Plaintiff identified the policy
maker as the NCISD Board of Trustees, but later argues that the
Board
delegated
policy-making
authority
to
NCISD's
Chief
of
Police. 10 Plaintiff contends that the Board delegated policy-making
authority to the Chief of Police in the NCISD Police Department's
Policy Manual, which states that "the right to modify or rescind
any provision in this policy manual is reserved to the chief of
police."
But,
whether
an
official
possesses
policy-making
authority for purposes of municipal liability is a question of
state and local law.
482 (1986) .
Pembaur v. City of Cincinnati, 475 U.S. 469,
Texas law is clear that policy-making authority vests
with the school district's board of trustees, and Plaintiff has not
overcome this rule by stating the Board delegated that authority to
the Chief of Police.
board of
trustees
of
department and that
superintendent.
The Texas Education Code provides that the
any school
district
may create a
police
the Chief of Police is accountable to the
Tex.
Educ .
Code
§
3 7 0 81 .
The NCISD Board of
Trustees adopted a policy manual approving formation of the NCISD
Police
Department
and
stating
that
the
Chief
of
Police
is
accountable to the Superintendent. 11
10
See Plaintiff's Second Amended Complaint, Docket Entry No. 6,
p. 5 ~ 29.
11
See New Caney Independent School District's
Ferretis' Reply Brief, Docket Entry No. 13, p. 4.
-8-
and
Antuar
Because Plaintiff acknowledges in his Second Amended Complaint
that
NCISD
injuries, 12
does
he
not
have
must
a
written
demonstrate
a
policy
custom
that
of
violations attributable to the policy maker.
Houston,
291 F.3d 325,
violations
violations,
are
not
that
330-31
the
(5th Cir.
persistent,
constitute
237 F.3d 567,
581
(5th Cir.
repeated,
that
widespread
demonstrate
custom
of
a
required
(quoting Bennett v.
Slidell, 728 F.2d 762, 768 n.3 (5th Cir. 1984)).
facts
constant
for
Piotrowski v. City of Houston,
2001)
this case was a single incident,
City of
But "[i]solated
custom and policy as
municipal section 1983 liability."
his
constitutional
Pineda v.
2002).
often
caused
City of
The accident in
and Plaintiff has not alleged
pattern of
constitutional
similar
incidents
violations.
or any
Therefore,
Plaintiff has no basis for Section 1983 claims against NCISD.
IV.
Conclusions and Order
For the reasons explained above, Plaintiff failed to state a
claim
arising
under
the
Fifth
and
Eighth
Amendments
to
the
United States Constitution against Officer Ferretis in his official
and individual capacities.
Plaintiff's action against Officer
Ferretis in his official capacity has no merit.
Plaintiff has
failed to state a claim upon which relief can be granted against
NCISD under 42 U.S.C.
12
Id. at 5-6
~
§
1983.
Therefore, Defendants' Motion for
30.
-9-
Partial Dismissal of Plaintiff's Second Amended Complaint Pursuant
to Rule 12(b) (6)
(Docket Entry No. 10) is GRANTED, and these claims
are DISMISSED WITH PREJUDICE.
Still pending before the court are
1983
(ii)
claims
negligence
against
claims
Officer
against
(i)
Ferret is
New
Caney
Plaintiff's Section
individually
Independent
and
School
District under the Texas Tort Claims Act.
SIGNED at Houston, Texas, on this~&~ day of September, 2017.
UNITED
-10-
LAKE
DISTRICT JUDGE
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