Vanskiver v. City of Seabrook, Texas

Filing 13

MEMORANDUM OPINION AND ORDER granting 2 MOTION to Dismiss 1 Amended Complaint. (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)

United States District Court
Southern District of Texas

ENTERED
January 24, 2018

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

AMANDA VANSKIVER,

§
§
§
§
§
§
§
§
§

Plaintiff,

v.
CITY OF SEABROOK, TEXAS,
Defendants.

David J. Bradley, Clerk

CIVIL ACTION NO. H-17-3365

MEMORANDUM OPINION AND ORDER

Plaintiff, Amanda Vanskiver ("Plaintiff"),
the City of Seabrook,

Texas

sued defendant,

("Defendant" or "the City"),

234th Judicial District Court of Harris County, Texas. 1

in the

Plaintiff

asserts claims against Defendant under the Texas Tort Claims Act
and under 42 U.S.C.

§

1983 for the actions of its employee in

violation of civil rights guaranteed by the Fourth Amendment to the
United States Constitution.
to this court. 2

Defendant timely removed this action

Pending before the court is Defendant's Motion to

Dismiss (Docket Entry No. 2).

Vanskiver filed Plaintiff's Response

to Defendant's Motion to Dismiss
Entry No.

3),

("Plaintiff's Response")

Defendant filed a Reply

(Docket Entry No.

(Docket
4),

and

Vanskiver filed Plaintiff's Supplemental Response to Defendant's

1

See Plaintiff's Original Petition, Exhibit A to Defendant's
Notice of Removal and Jury Demand, Docket Entry No. 1-1.
2

See Defendants' Notice of Removal and Jury Demand ("Notice of
Removal"), Docket Entry No. 1.

Reply to Plaintiff's Response

to Defendant's Motion to Dismiss

("Plaintiff's Supplemental Response")
reasons set forth below,

(Docket Entry No. 5) .

For the

Defendant's Motion to Dismiss will be

granted.
I.

Factual Allegations and Procedural Background

On January 28,
physical
Hough. 3

injuries

2017,

caused

plaintiff Amanda Vanskiver sustained
by

Defendant's

employee,

Officer

D.

Plaintiff alleges that Officer Hough wrongfully placed her

under arrest and then put weight and pressure on her arms and
shoulders with his baton, causing Plaintiff to fracture her arm. 4
Plaintiff alleges that Officer Hough was at all times "acting under
the color of the laws and regulations of the City of Seabrook,
Texas." 5

Plaintiff also alleges that

Officer Hough was acting under regulations, policies and
customs that enabled him to act with deliberate
indifference to the constitutional rights of indi victuals,
including without limitation, your Plaintiff. These
policies and customs failed to adequately train and
supervise their employees and encouraged Defendant's
employee, specifically Officer Hough, to ignore the
constitutional rights of persons similarly situated to
6
Plaintiff, including your Plaintiff.
Plaintiff

alleges

that

"[a]ll

actions

and

inactions

of

the

employees of the Defendant are imputed to the Defendant under the

3

Plaintiff's Original Petition,
Removal, Docket Entry No. 1-1, p. 2.

5

Id.

6

Id. at 2-3.
-2-

Exhibit

A

to

Notice

of

legal

theory of

Respondeat

Superior. " 7

The

City argues

that

Vanskiver has failed to plead facts that would support a claim for
relief against the City.
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.

Civ.

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.

19 55

If

19 6 5

I

( 2 0 0 7) .

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."
1937, 1949 (2009).

supported

by

See Ashcroft v.

mere

Iqbal,

conclusory
129

s. Ct.

"[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.

Instead,

1993).

"[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)
pleadings

7

and

is

(6)

Iqbal, 129 S. Ct. at 1949.

motion tests the formal sufficiency of the

"appropriate

when

Id. at 3.
-3-

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.

605 F. Supp.

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
2d 811,

820

(W.D. Tex.

2009)

(citing Neitzke v. Williams, 109 S. Ct. 1827, 1832 (1989)).

III.
A.

Analysis

Section 1983 Claims Against the City of Seabrook

42

u.s.c.

§

1983 provides a private right of action for the

deprivation of rights, privileges, and immunities secured by the
Constitution or laws of the United States.

Section 1983 states:

Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory
or the District of Columbia, 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
-4-

proper proceeding for redress, except that in any action
brought against a judicial officer for an act or omission
taken in such officer's judicial capacity, injunctive
relief shall not be granted unless a declaratory decree
was violated or declaratory relief was unavailable.
42 u.s.c.

§

1983.

"[Section]

1983

'is not itself a

source of

substantive rights,' but merely provides 'a method for vindicating
federal rights elsewhere conferred.'"
1865, 1870 (1989)
n. 3

(1979)).

a

s.

Ct.

(quoting Baker v. McCollan, 99 S. Ct. 2689, 2694

A complainant under

suffered "(1)

Graham v. Connor, 109

deprivation of a

§

1983 must allege that she

right secured by federal

law

(2) that occurred under color of state law, and (3) was caused by
a state actor."
Cir. 2004)
1986)).

Victoria W. v. Larpenter, 369 F.3d 475, 482 (5th

(citing Bush v. Viterna, 795 F.2d 1203, 1209 (5th Cir.
Plaintiff must also allege that the constitutional or

statutory deprivation she suffered was
negligence.
1998)

See Sanchez v.

Swyden,

not

the

139 F.3d 464,

result of mere
469

(5th Cir.

("we have required proof that the official's actions went

beyond mere negligence before that tort takes on constitutional
dimensions") .
The

Supreme

Court

held

that

municipalities

are

"persons"

subject to suit under Section 1983, but that municipalities cannot
he held liable on a respondeat superior basis, i.e., a municipality
cannot be held liable simply because one of its employees violated
a person's federal rights.
of the City of New York,

Monell v. Department of Social Services
98 S. Ct.

2018,

2035-36

(1978).

For a

municipality to be held liable under Section 1983, the municipality
-5-

itself must cause the violation through its policies or customs.
Id. at 2037-38.

To establish municipal liability under Section

1983 plaintiffs
must show the deprivation of a federally protected right
caused by action taken "pursuant to an official municipal
policy."
A plaintiff must identify: " ( 1) an
official policy (or custom), of which (2) a policyrnaker
can be charged with actual or constructive knowledge, and
(3) a constitutional violation whose 'moving force' is
that policy or custom."
Valle v.

City of Houston,

613 F.3d 536,

cert. denied, 13 S. Ct. 2094

(2011)

541-42

(5th Cir.

(citing Monell,

2010),

98 S. Ct. at

2037-38, and quoting Pineda v. City of Houston, 291 F.3d 325, 328
(5thCir. 2002)).
Plaintiff,s
because

a

respondeat

governmental

superior

entity

Section 1983 on the basis of
liability.
survive

may

Motion

not

be

respondeat

Monell, 98 S. Ct. at 2036.

Defendant's

claim

to

will

be

dismissed

held

liable

under

superior or vicarious

For the remaining claims to

Dismiss,

Plaintiff

must

assert

plausible factual allegations to support the three elements of
municipal liability.
1.

Policymaker

The

plaintiff

must

policyrnaking authority

"identify

.

II

a

policyrnaker

Rivera v.

with

final

Houston Independent

School Dist., 349 F.3d 244, 247 (5th Cir. 2003).

A policyrnaker is

someone who has the responsibility of setting municipal policy with
respect to the action ordered.

Pembaur v. City of Cincinnati, 106
-6-

S.

Ct.

1292,

1299

S.

Ct.

915,

924

chargeable

with

(1986);

City of St.

( 1988) .

The

awareness

of

final
the

Louis v.

Praprotnik,

108

policymaker must also

"be

custom."

Milam v.

San Antonio, 113 F. App'x 622, 625 n.3 (5th Cir. 2004).

City of

Whether an

official possesses final policymaking authority for purposes of
municipal liability is a question of state and local law.
106

Pembaur,

s. Ct. at 1300.
Plaintiff did not allege that Officer Hough was a policymaker

or identify any other policymaker for the City in her Original
Petition.

Plaintiff argues in her Response that Officer Hough was

a policymaker "by virtue of his position as a peace officer" and
the issue "should not be contested here." 8

She alleges no other

facts regarding Officer Hough's final policymaking authority with
Nor does Plaintiff allege that

respect to the action ordered.

Officer Hough, as a policymaker, established, approved of, or was
aware of any unconstitutional policy.

Plaintiff has therefore not

alleged facts that plausibly satisfy this requirement of Monell.
2.

Official Policy, Custom, or Practice

An official policy may be shown either with

(1)

a policy

statement, ordinance, regulation, or decision that is officially
adopted and promulgated by someone with policymaking authority, or
(2)

"[a]

8

persistent,

widespread practice of

city officials or

Plaintiff's Response, Docket Entry No. 3, pp. 5-6.
-7-

employees, which, although not authorized by officially adopted and
promulgated policy, is so common and well settled as to constitute
a

custom

St.

that

fairly

Tammany Parish,

represents

municipal

336 F.3d 363,

Bennett v. City of Slidell,

369

policy."

(5th Cir.

735 F.2d 861,

862

Burge v.

2003)

(quoting

(5th Cir.

1984)).

Where the municipal actors are not policymakers, the Plaintiff must
show a pattern of unconstitutional conduct.

Zarnow v.

Wichita

(5th

Falls,

Texas,

"Alternatively,

614

F.3d

circumstances

municipal

liability

policymaker."
not

the

169

Cir.

2010).

it may be shown that a final policymaker took a

single unconstitutional action."
those

161,

City of

are
only

Id. (emphasis in original) .

"extremely narrow
if

the

municipal

Valle, 613 F. 3d at 542.

persistent,

often repeated,

and

give[]

actor

is

But

rise
a

to

final

"Isolated violations are
constant

violations,

that

constitute custom and policy as required for municipal section 1983
liability."
Cir.

2001)

Piotrowski v. City of Houston, 237 F.3d 567, 581 (5th
(quoting Bennett,

728 F. 2d at 768 n. 3) .

To properly

state a claim "[t] he description of a policy or custom and its
relationship

to

the

underlying constitutional violation

cannot be conclusory; it must contain specific facts."
City of Texas City,

Police Dept.,

130 F.3d 162,

167

Spiller v.
(5th Cir.

1997).
Plaintiff has not alleged that the City had a relevant policy
statement, ordinance,

regulation, or decision that is officially
-8-

adopted.

Alleging that Officer Hough acted "under regulations,

policies and customs" 9 is a conclusory statement unsupported by
factual allegations necessary to properly allege that a policy or
custom existed.
a

pattern

of

Vanskiver failed to allege facts that demonstrate
similar

incidents

constitutional violations.
person

with

final

any

widespread

custom

of

Vanskiver must therefore allege that a

policymaking

unconstitutional action.

or

authority

took

the

single

But as explained in Part III(A) (1) above,

Plaintiff has not alleged that a person with policymaking authority
caused her injuries.

Plaintiff has therefore failed to allege the

deprivation of a federally protected right that resulted from an
official municipal policy.
3.

Moving Force Causation

Under the third requirement
force"

causation --

cause in fact

of

Houston Texas,

"that is,

the

260

F.

Plaintiff must allege

that the policy or custom is the

rights violation."
App' x

"moving

650,

652

Crawford v.

(5th Cir.

City of

2007)

"[A]

plaintiff must show that the municipal action was taken with the
requisite degree

of

culpability and must

demonstrate

a

direct

causal link between the municipal action and the deprivation of
federal rights."

Board of the County Comm' rs of Bryan County,

Oklahoma v. Brown, 117 S. Ct. 1382, 1385 (1997).

9

Plaintiff's Original Petition,
Removal, Docket Entry 1-1, p. 2.
-9-

Exhibit

This means "[a]

A

to

Notice

of

plaintiff

must

demonstrate

deliberate

indifference

particular

constitutional

decision."

Id.

at

that

to

the

or

1392.

a

municipal

risk

statutory

"Deliberate

that

decision
a

reflects

violation

right

will

indifference

of

follow
is

a

a
the

high

standard--'a showing of simple or even heightened negligence will
not suffice."'

Valle, 613 F.3d at 542 (quoting Brown, 117 S. Ct.

at 1390) .
Plaintiff has not alleged that the City's policy or custom was
a

moving

force

of

Plaintiff's

rights

violation.

Plaintiff's

conclusory allegation that the City's policies and customs "enabled
[Officer

Hough]

to

act

with

deliberate

indifference

to

the

constitutional rights of individuals, including without limitation,
your Plaintiff" does not state facts that plausibly show a causal
link between municipal action and a
federally

protected

rights

or

any

deprivation of Plaintiff's
deliberate

indifference

to

Plaintiff's rights.
4.

Failure to Train

"A municipality's failure to train its police officers can
without question give rise to§ 1983 liability."

World Wide Street

Preachers Fellowship v. Town of Columbia, 591 F.3d 747,
Cir. 2009)

(citations omitted).

756 (5th

However, when a plaintiff seeks to

impose Section 1983 liability on a municipality for its failure to
train

its

employees,

normal

tort

standards

are

heightened standards of culpability and causation.
-10-

replaced

with

City of Canton,

Ohio v.

Harris,

109 S.

Ct.

1197,

plausible failure-to-train claim,

1204-05

(1989)).

To plead a

a plaintiff must allege facts

that allow the court to draw the reasonable inference that
(1) the municipality's training policy or procedure was
inadequate; ( 2) the inadequate training policy was a
"moving force" in causing violation of the plaintiff's
rights; and (3)
the municipality was deliberately
indifferent in adopting its training policy.
Valle, 613 F.3d at 544 (citing Sanders-Burns v. City of Plano, 594
F.3d 366, 381 (5th Cir. 2010); Pineda, 291 F.3d at 332).

Liability

for failure to train "depends upon whether it should have been
obvious .

. or .

. whether [there was]

that the failure to train
of the Fourth Amendment."
F.3d 450,

460

(5th Cir.

sufficient notice [ ]

was likely to lead to a violation
Brown v. Bryan County,

2000).

Oklahoma,

219

A plaintiff can allege facts to

plausibly suggest deliberate indifference for purposes of failure
to

train

by

pleading

a

"'pattern

of

violations by untrained employees.'"
City, ___ F.3d ___ , 2018 WL 386661,
(citing

Connick

v.

Thompson,

131

similar

constitutional

Pena v. City of Rio Grande
*7
S.

(5th Cir. Jan. 12, 2018)
Ct.

1350,

1360

(2011)).

Alternatively, a plaintiff may allege deliberate indifference based
on the

single

incident,

but

that

circumstance

is

rare

and

"a

plaintiff must prove that the highly predictable consequence of a
failure to train would result in the specific injury suffered, and
that the failure to train represented the moving force behind the
constitutional violation."

Sanders-Burns, 594 F. 3d at 381 (internal

citations and quotations omitted) .
-11-

As to the City's failure to train, Plaintiff alleges:
These policies and customs failed to adequately train and
supervise their employees and encouraged Defendant's
employee, specifically Officer Hough, to ignore the
constitutional rights of persons similarly situated to
Plaintiff, including your Plaintiff, and resulted in
violations of 1) The Texas Tort Claims Act; 2) the
constitutional rights protecting her from excessive force
under the 4th Amendment to the U.S. Constitution; and/or
3)

42

u.s. c.

19 8 3 . 10

This conclusory allegation does not provide any facts from
which the court can draw the reasonable inference that a pattern
exists.

Nor does the bare language in the allegation contain any

facts sufficient to claim this incident was a "highly predictable"
result

of

inadequate

training.

Plaintiff's

Original

Petition

therefore fails to allege facts sufficient to support a claim of
municipal liability for failure to train.
Conclusion

5.

Plaintiff's generic, conclusory allegations of the elements of
municipal
U.S.C.

liability fail

§ 1983

to state a

claim for relief under 42

against the City of Seabrook.

The Motion to Dismiss

this claim will therefore be granted.
B.

Texas State Claims
1.

Texas Tort Claims Act ("TTCA")

Plaintiff alleges that the City of Seabrook "violated the
Texas Tort Claims Act which specifically waives municipal immunity

10

Id.

at 2-3.
-12-

for personal

injuries

caused from use

of

tangible property. " 11

Plaintiff alleges that her injuries resulted from Officer Hough's
excessive use of force in putting weight and pressure on her arms
with his baton. 12
A Texas municipality may not be held liable for Texas common
law causes of action unless the Texas legislature has waived its
governmental immunity.
589 (Tex. 2014).

City of Watauga v. Gordon, 434 S.W.3d 586,

Immunity is waived for claims brought under the

TTCA, Tex. Civ. Prac.

& Rem.

TTCA requires

state

(1)

conduct

from

the

Code §§ 101.001, et seq.

law claims
of

a

to

arise

governmental

in one
unit's

of

Id.

The

two ways:

employee

that

involves the operation of a motor-driven vehicle or equipment; or
(2) from the condition or use of tangible personal property or real
property if the governmental unit would, were it a private person,
be liable to the claimant under Texas law.

Tex. Civ. Prac. & Rem.

Code § 101.021.
The TTCA does not waive immunity for intentional torts such as
assault,

battery,

or false imprisonment.

See Tex.

Civ.

Prac.

&

Rem. Code§ 101.057(2); Franka v. Velasquez, 332 S.W.3d 367, 376 &
n.35 (Tex. 2011).
law.

False arrest is an intentional tort under Texas

See Stinson v.

Fontenot,

435 S.W.3d 793,

793

(Tex.

2014)

(including "wrongful arrest" and "malicious prosecution" in a list

11

Id. at 2.

12Id.

-13-

of intentional torts).

The Texas Supreme Court held as a matter of

state law, "[c]laims of excessive force in the context of a lawful
arrest arise out of a battery rather than negligence, whether the
excessive force was intended or not."

Gordon, 434 S.W.3d at 593.

A claim properly stated as an intentional tort may not be restated
as a claim for negligence.

Lopez-Rodriguez v. City of Levelland,

Texas, 100 F. App'x 272, 275 (5th Cir. 2004)

(per curiam).

Plaintiff's claim for use of excessive force
tort,

Because

is an intentional

Plaintiff has failed to state a claim under the TTCA,

and

Defendant's Motion to Dismiss this claim will be granted.
2.

Notice Requirement

The City of Seabrook also argues that Plaintiff's TTCA claim
should be dismissed because Plaintiff failed to present a timely
notice

of

claim.

The

Texas

Civil

Practice

and Remedies

Code

§ 101.101 provides:
(a) A governmental unit is entitled to receive notice of
a claim against it under this chapter not later than six
months after the day that the incident giving rise to the
claim occurred.
The notice must reasonably describe:
(1) the damage or injury claimed;
(2) the time and place of the incident; and
(3) the incident.
Tex. Civ. Prac. & Rem. Code§ 101.101(a).

The statute also states:

(b) A city's charter and ordinance provisions requiring
notice within a charter period permitted by law are
ratified and approved.

-14-

Id.

§

101.101(b).

The

Texas

Government

Code

provides

that

"[s]tatutory prerequisites to a suit, including the provision of
notice,

are jurisdictional requirements in all suits against a

governmental entity."

Tex.

Gov't Code

§

311.034.

The City of

Seabrook Charter, Section 11.18 states:
Before the City shall be liable for any claim for damages
for the death or personal injuries of any person or for
damages to property, the complainant or his or her
authorized
representative
shall
notify
the
City
Secretary.
The notification shall be in writing and
shall state specifically how, when and where the death,
injury, or damage occurred; the amount of loss claimed;
and the identity of any witnesses upon whom it is relied
to establish the claim. The notification shall be filed
within forty-five (45) days of the date of injury,
damage, or death.
No action at law shall be brought
against the City until at least sixty ( 6 0) days have
elapsed since the date of notification; after this
period, the complainant may then have two (2) years in
which to bring an action of law. 13
City of Seabrook, TX, Code of Ordinances, art. XI,

§

11.18 (2007).

Plaintiff has failed to allege facts which show she timely
presented a notice of claim to the City.

In her Response Vanskiver

attaches a July 24, 2017, notice letter she forwarded to the City
in support of her argument that she provided proper notice. 14
since the alleged violation occurred on January 28,

13

Certificate - City of Seabrook, attached
Motion to Dismiss, Docket Entry No. 2-1, p. 2.

to

But

2017, 15 the

Defendant's

14

See Plaintiff's Response, Docket Entry No. 3, p. 3; Letter
to City Attorney for Seabrook, July 24, 2017, attached to
Plaintiff's Response, Docket Entry No. 3-1, p. 1.
15

Plaintiff's Original Petition,
Removal, Docket Entry No. 1-1, p. 2.
-15-

Exhibit

A

to

Notice

of

notification letter was not filed within 45 days of the date of
injury.

Because Plaintiff's notice of claim was untimely,

she

failed to meet the jurisdictional requirements of the Texas Civil
Practice and Remedies Code
C.

101.101(b).

§

Plaintiff's Requests for Leave to Amend

In her Response Plaintiff seeks leave to amend. 16

Likewise,

in her Supplemental Response "Plaintiff respectfully requests that
Defendant's Motion to Dismiss be denied or,

in the alternative,

that Plaintiff be granted leave to amend her petition and file an
Original Federal Complaint to satisfy any and all defects contained
[in] her state pleading." 17
"Rule 15(a) requires a trial court 'to grant leave to amend
"freely," and . . .
amend."'

'evinces a bias in favor of granting leave to

Jones v. Robinson Property Group, L.P., 427 F.3d 987, 994

(5th Cir. 2005)

(quoting Lyn-Lea Travel Corp. v. American Airlines,

283 F.3d 282, 286 (5th Cir.), cert. denied, 123 S. Ct. 659 (2002)).
A court must possess a substantial reason to deny a request for
leave

to

instead,

amend,

but

leave

to

amend

is

left to the court's discretion.

City of Sherman,

Texas,

33 F. 3d 526,

529

not

automatic

Id.

(citing Halbert v.

(5th Cir.

and

1994)) .

is,

The

Fifth Circuit has stated that

16

Plaintiff's Response, Docket Entry No. 3, p. 6.

17

Plaintiff's Supplemental Response, Docket Entry No. 5, p. 3.
-16-

[g]ranting leave to amend .
is not required if the
plaintiff has already pleaded her "best case." . . . A
plaintiff has pleaded her best case after she is
"apprised of the insufficiency" of her complaint . . . .
A plaintiff may indicate she has not pleaded her best
case by stating material facts that she would include in
an amended complaint to overcome the deficiencies
identified by the court.
Wiggins

v.

Division, _

Louisiana

State

University-Health

Care

Services

Fed. App'x - - ' 2017 WL 4479425, *2 (5th Cir. Oct. 6,

2017).

Moreover,

a

"court need not grant a

amend."

Legate v. Livingston, 822 F.3d 207, 211 (5th Cir.), cert.

denied, 137 S. Ct. 489

futile motion to

(2016) and 137 S. Ct. 1139 (2017)

(citing

Stripling v. Jordan Production Co., 234 F.3d 863, 872-73 (5th Cir.
2000)).

"Futility is determined under Rule 12 (b) (6)

standards,

meaning an amendment is considered futile if it would fail to state
a claim upon which relief could be granted."
Plaintiff has neither filed a

Id.

formal motion to amend nor

submitted a proposed amended complaint.

Instead,

plaintiff has

urged the court to deny Defendant's Motion to Dismiss,
asked the

court

for

leave

to amend

in

the

and has

alternative . 18

In

Plaintiff's Response and Supplemental Response she adds factual
allegations that were not present in her Original Petition.

In her

Response Plaintiff alleges that Officer Hough was a policymaker for

laid.

-17-

the

City

of

Seabrook, 19

and

adds

the

following

facts

in

her

Supplemental Response:
It
is alleged that Officer Hough was
arresting
Plaintiff's son in front of Plaintiff's residence for an
unrelated offense when Plaintiff emerged from her house
and asked Officer Hough, in a concerned but unthreatening
manner, why the police officer was arresting her son.
Officer Hough dismissed her question with a profanitylaced outburst and then arrested Plaintiff for assaulting
a peace officer. After Plaintiff had been handcuffed by
another officer at the scene, but before she could be
placed in the back of a patrol car, Officer Hough brought
his baton down on Plaintiff's cuffed wrists with enough
force to cause a compound fracture of the bones in the
right wrist. Plaintiff has had to undergo surgery to set
the bones and to have a permanent metal rod installed in
her arm. She will experience pain and disability for the
rest of her life. 20
These added facts do not cure the deficiencies of the Original
Petition.

They do not allege any facts demonstrating a municipal

policy or

custom,

a

policymaker,

a

causal

elements of failure-to-train liability.

or

any

Nor do they establish that

the City has waived immunity under the TTCA.
above.

connection,

See§§ III(A)-(B),

Because of Plaintiff's failure to respond to Defendant's

Motion to Dismiss with facts that would be capable of establishing
municipal

liability under Section 1983

or the TTCA,

the court

concludes that amendment would be futile.

19

Plaintiff's Response, Docket Entry No. 3, pp. 5-6.

20

Plaintiff's Supplemental Response, Docket Entry No. 5, p. 2.
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IV.

Conclusions and Order

For the reasons explained above, Plaintiff has failed to state
a

claim upon which relief

Seabrook under 42 U.S.C.

§

can be granted against

the

City of

1983 or under the Texas Tort Claims Act.

Therefore, Defendant's Motion to Dismiss (Docket Entry No. 2)

is

GRANTED, and this action will be dismissed with prejudice.
SIGNED at Houston, Texas, on this 24th day of January, 2018.

UNITED

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DISTRICT JUDGE