Jackson et al v. Harris County, Texas et al

Filing 37

ORDER entered GRANTING 23 MOTION to Dismiss 14 Amended Complaint/Counterclaim/Crossclaim etc., , GRANTING 26 MOTION to Dismiss 14 Amended Complaint/Counterclaim/Crossclaim etc., , GRANTING 22 MOTION to Dismis s 14 Amended Complaint/Counterclaim/Crossclaim etc., . The negligence claims are dismissed with prejudice, because amendment would be futile. The Americans with Disabilities Act claim, the race-discrimination claim, and the Fourth Amendment claims may go forward. The parties must submit a joint proposed scheduling order by May 4, 2018. (Signed by Chief Judge Lee H Rosenthal) Parties notified.(leddins, 4)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
MICHAEL JACKSON, et al.,
Plaintiffs,
VS.
HARRIS COUNTY, TEXAS, et al.,
Defendants.

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May 01, 2018
David J. Bradley, Clerk

CIVIL ACTION NO. H-17-3885

ORDER
Michael Jackson and Melanie Dobbs sued Harris County and Harris County Deputy Sheriffs
Juan Lerma and Ivan Cantu in state court, alleging that the officers used excessive force by tasing
Jackson while arresting him at his home. The defendants removed to federal court and moved to
dismiss. The plaintiffs filed an amended complaint. The defendants then moved to dismiss some
of the claims in the amended complaint, the plaintiffs responded, and the defendants replied.
(Docket Entries No. 23, 26, 30, 31, 32, 33).
The defendants have not moved to dismiss the Fourth Amendment claims and the Americans
with Disabilities Act claim. Those claims may go forward. The court heard argument on the
motions to dismiss the remaining counts. At the hearing, the court dismissed the state-law claims
against Lerma and Cantu in their individual capacities; denied the motion to dismiss the racediscrimination claim; and requested supplemental briefing on the negligence claims against the
County. (Docket Entry No. 35). This order considers the motion to dismiss the plaintiffs’ claims
for negligence and negligent training and supervision.
The Texas Tort Claims Act “waives sovereign immunity from suits arising both from: (1)
the negligent conduct of an employee if property damage, personal injury, or death arises from the
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operation or use of a motor-driven vehicle or equipment if the employee would be personally liable
to the claimant; and (2) from injuries caused by a condition or use of tangible personal property if
the governmental unit would, were it a private person, be liable to the claimant according to Texas
law.” Texas Dep’t of Pub. Safety v. Petta, 44 S.W.3d, 575, 581 (Tex. 2001). To avoid sovereign
immunity, the plaintiffs assert a claim for “negligent physical contact using tangible personal
property,” a tort claim for which sovereign immunity is waived, based on the defendants’ allegedly
negligent use of handcuffs and a taser. TEX. CIV. PRAC. & REM. CODE § 101.021(2).
The defendants correctly argue that this negligence claim is based on intentional conduct.
The plaintiffs cannot avoid the immunity bar by pleading an intentional tort as a negligence claim.
See Huong v. City of Port Arthur, 961 F. Supp. 1003, 1008 (E.D. Tex. 1997) (“Although Plaintiffs
have attempted to bring a claim for ‘negligence’ arising from the alleged conduct of Officer Leger,
Plaintiffs have described their claims arising from the shooting as the intentional tort of excessive
force. Furthermore, regardless of the language used, it is clear that Plaintiffs’ claims consist of
intentional torts.”). Because the conduct underlying the negligence claim—the use of a taser and
handcuffs—is intentional, the County is immune under the Texas Tort Claims Act. See Johnson v.
Waters, 317 F. Supp. 2d 726, 739 (E.D. Tex. 2004) (“When a plaintiff pleads facts which amount
to an intentional tort, no matter if the claim is framed as negligence, it is a claim for an intentional
tort and barred by the Texas Tort Claims Act.” (citing Petta, 44 S.W.3d at 580))
The next issue is whether the Texas Tort Claims Act bars the plaintiffs’ claim for negligent
training and supervision. The complaint allegations supporting this claim are that:
Harris County owed a legal duty to the Plaintiffs to hire, retain, train, and supervise
competent law enforcement officers as Sheriff’s deputies. Harris County breached
that duty when it negligently used real or tangible personal property in the hiring,

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retention, training, and supervision of Deputies Lerma and Cantu which caused
personal injuries to the Plaintiffs.
Harris County [is] not immune from suit under the Texas Tort Claims Act for
personal injuries caused by its negligent use of tangible real or personal property .
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Harris County’s negligence directly and proximately caused damages to the Plaintiffs
including past and future medical expenses, mental anguish, emotional distress, pain
and suffering, and lost wages.
(Docket Entry No. 14, ¶¶ 97–99).
The plaintiffs argue that, because the County’s training and supervision of Lerma and Canu
involved the negligent use of tangible real or personal property, the claim is not barred by the Texas
Tort Claims Act. The County argues that the negligent-training-and-supervision claim does not
involve tangible real or personal property.
The Texas Supreme Court has considered and rejected an argument similar to the
claims here:
Petta’s claim that the Department negligently failed to furnish the proper training,
instruction, training manuals, and documents to Rivera also fails. To state a claim
under the Tort Claims Act, a plaintiff must allege an injury resulting from the
“condition or use of tangible personal or real property.” We have long held that
information is not tangible personal property, since it is an abstract concept that lacks
corporeal, physical, or palpable qualitites. In Dallas County v. Harper, we
concluded that simply reducing information to writing on paper does not make the
information “tangible personal property.” And in Kassen v. Hatley, we specifically
held that the information in an emergency room procedures manual is not tangible
personal property. Thus, while instructional manuals can be seen and touched, the
Legislature has not waived immunity for negligence involving the use, misuse, or
non-use of the information they contain. Because written information in the form of
instructions and manuals is not tangible personal property, we conclude that the
information contained in the Department’s policy and training manuals in this case
is not tangible personal property and, accordingly, does not give rise to a claim under
the Tort Claims Act. Likewise, Petta’s claims that the Department failed to devise
adequate tests to assess Rivera’s emotional competence, and that it failed to
discipline Rivera after the incident, also involve the misuse or non-use of information
and are thus barred by sovereign immunity.
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Finally, we note that Petta’s reliance on Young v. City of Dimmitt to support her
negligent training claim is misplaced. In Young, we disapproved of a court of
appeals’ statement that an officer’s intentional act necessarily precluded a suit for
negligence under the Tort Claims Act. In doing so, we simply pointed out that a
claim for negligent supervision or training was a distinct cause of action. Nothing
in what we said implied that this distinct cause of action was otherwise excepted
from satisfying the Tort Claims Act’s tangible personal property requirement. As we
stated above, Petta’s negligent training claim does not involve tangible personal
property. Accordingly, it is not cognizable under the Tort Claims Act.
Petta, 44 S.W.3d at 580–81 (citations omitted).
As in Petta, the negligent-training-and-supervision claim here does not involve tangible
personal property. The claim is barred by the Texas Tort Claims Act. Id. at 581. The negligence
claims are dismissed with prejudice, because amendment would be futile.
The Americans with Disabilities Act claim, the race-discrimination claim, and the Fourth
Amendment claims may go forward. The parties must submit a joint proposed scheduling order by
May 4, 2018.

SIGNED on May 1, 2018, at Houston, Texas.
______________________________________
Lee H. Rosenthal
Chief United States District Judge

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