Rivera v. Duck et al

Filing 16

MEMORANDUM OPINION AND ORDER GRANTING 10 MOTION to Dismiss Plaintiff's Amended Complaint with Brief in Support. The court GRANTS Rivera leave to amend his complaint only to cure the pleading deficiencies as set forth in this order within 21 days of the date of this order. If Rivera chooses to amend his complaint and allege claims against C. C., the court ORDERS Rivera to serve C. C. within twenty-one (21) days from the date of this order. (Signed by Judge Gray H Miller) Parties notified.(rkonieczny, 4)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
RICHARD RIVERA,

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Plaintiff,
v.
JUSTIN DUCK, et al.,
Defendants.

CIVIL ACTION H-17-2404

MEMORANDUM OPINION AND ORDER
Pending before the court is a motion to dismiss filed by defendants Noe Diaz and Justin Duck
(collectively, “Defendants”1 ). Dkt. 10. Plaintiff Richard Rivera responded. Dkt. 11. Having
considered the live complaint, motion, response, and applicable law, the court is of the opinion that
Defendants’ motion should be GRANTED.
I. BACKGROUND
This is a civil rights lawsuit involving Rivera’s arrest, conviction, and eventual acquittal.2
See Dkt. 9 at 5–6. Rivera began working as a peace officer for the Texas Department of Public
Safety in 1981. Id. at 3. In 2008, he took an approved side job at a rodeo while still employed as
a peace officer. Id. at 1. The rodeo added horse racing in 2013. Id. at 1.
On October 12, 2013, Defendants and Officer C. C. arrested and jailed Rivera for the felony
of conducting a horse race where betting occurred without a license. Id. at 2. He was convicted in

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Defendant Officer C. C. is not a party to this motion and is thus not included when the court
refers to “Defendants.”
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For the purposes of a motion to dismiss, the court accepts all well-pled facts contained in
Rivera’s amended complaint as true. Kaiser Aluminum & Chem. Sales, Inc. v. Avondale Shipyards,
Inc., 677 F.2d 1045, 1050 (5th Cir. 1982).

the 338th District Court of Harris County on November 12, 2014. Id. at 4. He claims that his
conviction resulted, in part, from the testimony of Duck, Diaz, and C. C. Id. at 4. Rivera asserts that
at some point before October 12, 2015, he sought to retain counsel to assert a false arrest claim, but
the attorneys opted not to represent him, indicating that a false arrest claim requires probable cause
and that his conviction undermined that necessary element. Id. at 5. On November 17, 2016, the
First Court of Appeals of Texas overturned his conviction. Id. at 5. On account of the trial
expenses, attorneys’ fees, bond fees, ruined credit, loss of reputation, and temporary loss of his peace
officer’s license and its earning potential, Rivera alleges losses of $500,000 or more. Id. at 2, 4–5.
Rivera sued Defendants and C. C. for: (1) conspiracy; (2) violations of the Fourth, Fifth, and
Fourteenth Amendments under 42 U.S.C. § 1983; and (3) supervisor liability under 42 U.S.C.
§ 1983.3 Dkt. 9 at 5–6. In their motion to dismiss, Defendants argue that each claim fails. Dkt. 10.
II. LEGAL STANDARD
Rule 8(a)(2) requires that the pleading contain “a short and plain statement of the claim
showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). A party against whom claims
are asserted may move to dismiss those claims when the nonmovant has failed “to state a claim upon
which relief can be granted.” Fed. R. Civ. P. 12(b)(6).
To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must plead “enough facts to state
a claim to relief that is plausible on its face.” In re Katrina Canal Breaches Litig., 495 F.3d 191, 205
(5th Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955 (2007)).

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Although not included in his original or amended complaint, Rivera’s response to
Defendants’ motion to dismiss states that he “also brings a Texas malicious prosecution claim.” Dkt.
11 at 13 n. 9. The pleadings must state a plaintiff’s claims for relief to provide notice to opposing
parties. Fed. R. Civ. P. 8(a)(2); Anderson v. U.S. Dept. of Hous. & Urban Dev., 554 F.3d 525, 528
(5th Cir. 2008). Thus, Rivera failed to allege a Texas malicious prosecution claim.
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“Factual allegations must be enough to raise a right to relief above the speculative level on the
assumption that all the allegations in the complaint are true (even if doubtful in fact).” Twombly,
550 U.S. at 555 (citations omitted). While the allegations need not be overly detailed, a plaintiff’s
pleading must still provide the grounds of his entitlement to relief, which “requires more than labels
and conclusions,” and “a formulaic recitation of the elements of a cause of action will not do.” Id.;
see also Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937 (2009). “[C]onclusory allegations or
legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to
dismiss.” Blackburn v. City of Marshall, 42 F.3d 925, 931 (5th Cir. 1995). 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.” Iqbal, 556 U.S. at 678.
Evaluating a motion to dismiss is a “context-specific task that requires the reviewing court
to draw on its judicial experience and common sense.” Id. at 679. “Ultimately, the question for a
court to decide is whether the complaint states a valid claim when viewed in the light most favorable
to the plaintiff.” NuVasive, Inc. v. Renaissance Surgical Ctr., 853 F. Supp. 2d 654, 658 (S.D. Tex.
2012).
III. ANALYSIS
Defendants contend that: (1) Rivera’s Fourth and Fifth Amendment claims fail because they
are barred by the statute of limitations; (2) his Fourteenth Amendment claim fails because it is for
false arrest which arises under the Fourth Amendment, not the Fourteenth Amendment; (3) his
supervisor liability claim fails because he did not allege that Diaz was a supervisor, that Diaz failed
to supervise, that any failure to supervise was causally connected with a violation of Rivera’s rights,
or that Diaz exhibited a pattern of similar rights violations via other false arrests; and (4) his
conspiracy claim fails under the intracorporate conspiracy doctrine. Dkt. 10 at 2–5.
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A.

Fourth Amendment Claim
Rivera’s amended complaint does not specify which factual allegations constitute a Fourth

Amendment violation. See Dkt. 9 at 6. Defendants assume that Rivera’s Fourth Amendment claim
is for false arrest. See Dkt. 10 at 2–3. Defendants argue that Rivera had two years from his arrest
on October 12, 2013, to file that claim and that the claim should be dismissed because he did not file
suit until August 7, 2017. Id. at 2–3.
If Rivera’s Fourth Amendment claim is for false arrest or imprisonment, it is subject to a twoyear statute of limitations that commenced when he was first “detained pursuant to legal process.”
Jaramillo v. Renner, 697 F. App’x 326, 326 (5th Cir. 2017) (per curiam) (citing Wallace v. Kato, 549
U.S. 384, 388, 127 S. Ct. 1091 (2007)). But the court cannot conclude that Rivera’s claim is barred
by the statute of limitations based on Defendants’ speculations regarding the basis for the underlying
claim.4 Still, Rivera must plead enough facts to show that the claim is plausible. See In re Katrina,
495 F.3d at 205 (quoting Twombly, 550 U.S. at 570). Rivera did not meet that burden. Thus,
Defendants’ motion to dismiss Rivera’s Fourth Amendment claim is GRANTED. The court
GRANTS Rivera leave to amend to clarify the factual basis for, and nature of, his Fourth
Amendment claim. See Jacquez v. Procunier, 801 F.2d 789, 792 (5th Cir. 1986) (“Dismissing an
action after giving the plaintiff only one opportunity to state his case is ordinarily unjustified.”).

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Further, the statute of limitations for false arrest began to run “when he appeared before the
examining magistrate and was bound over for trial,” not the date of Rivera’s arrest. Wallace, 549
U.S. at 392. The complaint, motion, and response all fail to provide the date when Rivera was
“detained pursuant to legal process,” so the court cannot yet determine if Fourth Amendment claims
for false arrest and false imprisonment would be barred by the statute of limitations.
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B.

Fifth Amendment Claim
Rivera claims that Defendants violated the Fifth Amendment by depriving him of liberty

without due process of law. Dkt. 9 at 6. Like the Fourth Amendment claim, Rivera does not state
which facts support a Fifth Amendment violation. See id. Defendants view Rivera’s Fifth
Amendment claim as relating to his arrest and prosecution. See Dkt. 10 at 3. They note that their
involvement with the arrest and prosecution ended in November 2014 when Rivera was convicted.
Id. at 3; see Dkt. 9 at 2. Defendants also note that the statute of limitations for § 1983 claims is two
years. See Dkt. 10 at 3. Accordingly, they argue that the statute of limitations ran no later than
November 2016 and that Rivera’s claim is therefore barred. Id. Rivera’s response does not mention
the Fifth Amendment. See Dkt. 11.
The statute of limitations for § 1983 claims is two years. See Wallace, 549 U.S. at 387; Tex.
Civ. Prac. & Rem. Code § 16.003(a)–(b). But “the statute of limitations does not begin running on
section 1983 prosecution claims until proceedings have terminated in the plaintiff’s favor.” Price
v. City of San Antonio, 431 F.3d 890, 894 (5th Cir. 2005). As explained in Castellano v. Fragozo,
“constitutional deprivations suffered in a state court prosecution” do not “accrue[] until the
conviction has been set aside where, as here, the suit calls the validity of the conviction into play.”
352 F.3d 939, 959 (5th Cir. 2003) (en banc).
According to Rivera’s complaint, Rivera was first arrested and jailed on October 12, 2013.
Dkt. 9 at 2. He was then convicted on November 12, 2014. Id. The First Court of Appeals of Texas
overturned the conviction on November 17, 2016. Id. After the Texas Court of Criminal Appeals
refused the State of Texas’s petition for discretionary review on March 8, 2017, the Texas district
court entered a judgment of acquittal on April 21, 2017. Id. Rivera sued Defendants on August 7,
2017. See Dkt. 1. Thus, if Rivera’s Fifth Amendment claim is based on a constitutional violation
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that took place during his prosecution, the cause of action did not accrue until at least November 17,
2016—within two years of when Rivera sued.
However, because Rivera failed to specify the grounds for his Fifth Amendment violation
claim in his complaint, Defendants’ motion to dismiss that claim is GRANTED. See In re Katrina,
495 F.3d at 205. The court GRANTS Rivera leave to amend to clarify the factual basis for, and
nature of, his Fifth Amendment claim against Defendants.5 See Jacquez, 801 F.2d at 792.
C.

Fourteenth Amendment Claim
Rivera claims Defendants violated the Fourteenth Amendment by depriving him of liberty

without due process of law. Dkt. 9 at 6. Like the Fourth and Fifth Amendment claims, Rivera does
not state which factual allegations support a Fourteenth Amendment violation. See id. Defendants
construe Rivera’s Fourteenth Amendment claim as relating to the wrongful arrest. Dkt. 10 at 5.
They argue that the claim “is properly considered under the Fourth Amendment, not the Fourteenth
Amendment,” and that the court should therefore dismiss it. Dkt. 10 at 3.
The Fourth Amendment’s privacy rights apply to state actors by way of the Fourteenth
Amendment. Albright v. Oliver, 510 U.S. 266, 310 n.28, 114 S. Ct. 807 (1994). Further, § 1983
claims based on Fourth Amendment violations should be considered under the Fourth Amendment,
not the Fourteenth Amendment. See Blackwell v. Barton, 34 F.3d 298, 302 (5th Cir. 1994). But
claimants may assert non-Fourth Amendment claims under the Fourteenth Amendment. Cf. Daniels
v. Williams, 474 U.S. 327, 331, 106 S. Ct. 662 (1986) (listing examples). Thus, without knowing

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Although the court grants Rivera leave to amend his complaint to properly assert a Fifth
Amendment claim, a claim for “a denial of his right to due process” under the Fifth Amendment will
fail because Defendants are state actors, not federal actors. See Jones v. City of Jackson, 203 F.3d
875, 880 (5th Cir. 2000).
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the basis for Rivera’s Fourteenth Amendment claim, the court cannot determine if the claim should
be considered under the Fourth Amendment instead.
Because Rivera failed to specify the grounds for his Fourteenth Amendment claim,
Defendants’ motion to dismiss that claim is GRANTED. See In re Katrina, 495 F.3d at 205. The
court GRANTS Rivera leave to amend to clarify the factual basis for, and nature of, his Fourteenth
Amendment claim against Defendants. See Jacquez, 801 F.2d at 792. However, Blackwell bars any
Fourteenth Amendment claim based on alleged Fourth Amendment violations. 34 F.3d at 302.
D.

Supervisor Liability
In Rivera’s complaint, he alleges that “Ranger Diaz was aware of what was happening to

Trooper Rivera and had a duty to supervise but failed to intervene and prevent the Constitutional
violations from occurring.” Dkt. 9 at 6. Rivera also asserts that Diaz provided “guidance and
training” to Duck who “investigated and then arrested and jailed Trooper Rivera.” Id. at 2.
Defendants argue in their motion to dismiss that “Rivera’s one sentence accusation against Ranger
Diaz fails to meet” the legal requirements for a § 1983 supervisor liability claim. Dkt. 10 at 5. They
argue that Rivera has not alleged that: (1) Diaz was a supervisor; (2) Diaz failed in performing any
supervisory duties; (3) there was a causal link between a duty to supervise and the alleged violations
of Rivera’s rights; (4) any failure on Diaz’s part “amounted to deliberate indifference”; or (5) an
“unnamed subordinate was involved in a pattern of similar incidents.” Id. Rivera’s response does
not address these arguments. See Dkt. 11.
As a prerequisite to a § 1983 claim, a plaintiff “must identify defendants who were either
personally involved in the constitutional violation or whose acts are causally connected to the
constitutional violation alleged.” Roberts v. City of Shreveport, 397 F.3d 287, 291–92 (5th Cir.
2005) (quoting Woods v. Edwards, 51 F.3d 577, 583 (5th Cir. 1995)). “Supervisory officials cannot
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be held liable under section 1983 for the actions of subordinates . . . on any theory of vicarious or
respondeat superior liability. Estate of Davis ex rel. McCully v. City of N. Richland Hills, 406 F.3d
375, 381 (5th Cir. 2005). “To establish § 1983 liability against supervisors, the plaintiff must show
that: (1) the [supervisor] failed to supervise or train the officer; (2) a causal connection existed
between the failure to supervise or train and the violation of the plaintiff’s rights; and (3) the failure
to supervise or train amounted to deliberate indifference to the plaintiff’s constitutional rights.”
Roberts, 397 F.3d at 292.
“For an official to act with deliberate indifference, the official must both be aware of facts
from which the inference could be drawn that a substantial risk of serious harm exists, and he must
also draw the inference.” McCully, 406 F.3d at 381 (quoting Smith v. Brenoettsy, 158 F.3d 908, 912
(5th Cir. 1998)). “Deliberate indifference requires a showing of more than negligence or even gross
negligence.” Id. “To satisfy the deliberate indifference prong, a plaintiff usually must demonstrate
a pattern of violations and that the inadequacy of the training is ‘obvious and obviously likely to
result in a constitutional violation.’” Cousin v. Small, 325 F.3d 627, 637 (5th Cir. 2003) (quoting
Thompson v. Upshur County, 245 F.3d 447, 459 (5th Cir. 2001)). “[A] single incident is usually
insufficient to demonstrate deliberate indifference.” McCully, 406 F.3d at 382.
Though Rivera asserts that Diaz trained and guided Duck’s efforts to investigate and arrest
Rivera, he has not pled facts indicating that Diaz’s actions amounted to deliberate indifference. See
Dkt. 9 at 6. Accordingly, Rivera’s supervisory liability claim fails, and Defendants’ motion to
dismiss the claim is GRANTED. However, the court GRANTS Rivera leave to amend to properly
plead the cause of action if he has grounds to do so. See Jacquez, 801 F.2d at 792.

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E.

Conspiracy
Rivera alleges that “Defendants conspired . . . to arrest, prosecute, and convict [him] when

they knew there was no probable cause.” Dkt. 9 at 6. Defendants argue that members “of a single
legal entity . . . cannot conspire” and that because “Diaz and Duck are both employees of the Texas
Department of Public Safety . . . as a matter of law, they cannot have conspired to violate Rivera’s
constitutional rights.” Dkt. 10 at 3–4. Rivera does not respond to this argument. See Dkt. 11.
Under the intracorporate conspiracy doctrine—as applied to claims under 42 U.S.C.
§ 1985(3)—members of an entity like a department of a state government “constitute a ‘single legal
entity which is incapable of conspiring with itself.’” Thornton v. Merch., 526 F. App’x 385, 388 (5th
Cir. 2013) (quoting Benningfield v. City of Houston, 157 F.3d 369, 378 (5th Cir. 1998));
Benningfield, 157 F.3d at 373–74, 378–79 (applying the intracorporate conspiracy doctrine to bar
a § 1985(3) conspiracy claim in a suit against employees of a police department). The same
reasoning has been applied in cases involving 42 U.S.C. § 1983. See LaFleur v. McClelland, No.
4:13-CV-425, 2013 WL 5148181, at *4 (S.D. Tex. Sept. 11, 2013) (“As a matter of law, police
officers conducting government operations with other police officers are not subject to conspiracy
claims under § 1983.”).
Central to Rivera’s conspiracy allegation is the notion that “DPS Agent Justin Duck in
concert with Ranger Diaz and Officer C. C. investigated and then arrested and jailed Trooper
Rivera.” Dkt. 9 at 4. And while Defendants argue that the intracorporate conspiracy doctrine shields
them because they were employees of the Texas Department of Public Safety, the amended
complaint, motion to dismiss, and response do not explain if C. C. also works for that department.
That fact is essential for the court to determine Defendants’ potential liability for conspiring with
C. C. against Rivera, so it is unclear if the intracorporate conspiracy doctrine bars the claim.
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However, “a conspiracy claim is not actionable without an actual violation of section 1983.”
Hale v. Townley, 45 F.3d 914, 920 (5th Cir. 1995) (citation omitted). Because Rivera has failed to
properly allege a § 1983 claim, the court sua sponte raises this ground for dismissal and GRANTS
Defendants’ motion to dismiss. See Harris v. Rivera, No. 3:11-CV-3013-D, 2013 WL 246709, at
*13 (N.D. Tex. Jan. 23, 2013). The court GRANTS Rivera leave to amend his complaint to address
this deficiency if he has grounds to do so.
IV. CONCLUSION
Defendants Diaz and Duck’s motion to dismiss (Dkt. 10) is GRANTED. Rivera’s claims are
DISMISSED WITHOUT PREJUDICE. The court GRANTS Rivera leave to amend his complaint
only to cure the pleading deficiencies as set forth in this order. Rivera may not allege new causes
of action not alleged in his amended complaint. If Rivera chooses to amend his complaint, he must
file another amended complaint within twenty-one (21) days from the date of this order.
Further, Rivera has not served C. C. with summons even though more than ninety days have
passed since Rivera filed his complaint on August 7, 2017. See Fed. R. Civ. P. 4(m) (providing
ninety days for service). If Rivera chooses to amend his complaint and allege claims against C. C.,
the court ORDERS Rivera to serve C. C. within twenty-one (21) days from the date of this order.
Signed at Houston, Texas on May 11, 2018.

___________________________________
Gray H. Miller
United States District Judge

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