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.

§
§
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§
§
§
§
§
§
§

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