Matthews v. Harris County, Texas et al
Filing
39
MEMORANDUM OPINION mooting 21 MOTION to Dismiss 14 Amended Complaint/Counterclaim/Crossclaim etc., , granting in part, denying in part 27 Third MOTION to Dismiss , granting in part, denying in part 32 MOTION to Dismiss 14 Amended Complaint/Counterclaim/Crossclaim etc., , mooting 16 MOTION to Dismiss First Amended Complaint (Signed by Magistrate Judge Nancy K Johnson) Parties notified.(sjones, 4)
United States District Court
Southern District of Texas
ENTERED
August 10, 2018
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
BENJAMIN MATTHEWS,
§
§
§
§
§
§
§
§
§
Plaintiff,
v.
HARRIS COUNTY, et al.,
Defendants.
David J. Bradley, Clerk
CIVIL ACTION NO. H-18-0014
MEMORANDUM OPINION
Pending before the court1 is Defendant Harris County’s Motion
to Dismiss Plaintiff’s First Amended Complaint (Doc. 16), Defendant
Harris
County’s
Motion
to
Dismiss
Plaintiff’s
Second
Amended
Complaint (Doc. 21), Defendant Harris County’s Third Motion to
Dismiss (Doc. 27), and Defendant Eric McCartney’s (“McCartney”)
Motion to Dismiss (Doc. 32). The court has considered the motions,
the responses, all other relevant filings, and the applicable law.
For the reasons set forth below, Defendant Harris County’s Motion
to Dismiss Plaintiff’s First Amended Complaint and Motion to
Dismiss Plaintiff’s Second Amended Complaint are DENIED AS MOOT,
and Defendant Harris County’s Third Motion to Dismiss and Defendant
McCartney’s Motion to Dismiss are GRANTED IN PART AND DENIED IN
PART.
1
The parties consented to proceed before the undersigned magistrate
judge for all proceedings, including trial and final judgment, pursuant to 28
U.S.C. § 636(c) and Federal Rule of Civil Procedure 73. See Doc. 38, Ord. Dated
July 11, 2018.
I.
Plaintiff
filed
Case Background
this
civil
rights
action
against
Harris
County, a Harris County deputy sheriff now denoted as Defendant
McCartney, and a sports bar alleging violations of Plaintiff’s
constitutional rights, and asserting various state law causes of
action.2
A.
The case was removed to this court on January 2, 2018.3
Factual Background
On June 14, 2016, Plaintiff was leaving a sports bar after it
had closed.4
Defendant McCartney, who was employed by the sports
bar as a private security guard, was patrolling the parking lot
outside the sports bar and wearing his Harris County uniform.5
Defendant McCartney approached Plaintiff as he was getting into his
vehicle.6
At that time, Plaintiff had not committed any acts
contrary to the law.7
Defendant McCartney immediately became
hostile toward Plaintiff, asking if Plaintiff had a desire to go to
jail.8
Plaintiff, answering that he did not want to go to jail,
attempted to close his car door, but Defendant McCartney used his
2
See Doc. 1, Not. of Removal.
3
See id.
4
See Doc. 14, Pl.’s Orig. Compl. p. 2.
5
Id. p. 4.
6
Id.
7
Id. p. 2.
8
Id. p. 4.
2
nightstick to prevent the door from fully closing.9
When Plaintiff
again attempted to close his car door, Defendant McCartney used his
nightstick to keep the door from completely shutting and ordered
Plaintiff to exit the car.10
Upon exiting, Plaintiff noticed damage to his vehicle that he
believed had been caused by Defendant McCartney.11
As Plaintiff
voiced his suspicions to Defendant McCartney, Defendant McCartney
ordered him to put his hands behind his back.12 Defendant McCartney
subsequently handcuffed Plaintiff.13
As two officers from the
Houston
approached
Police
Department
(“HPD”)
Plaintiff
and
Defendant McCartney, Plaintiff complained to them that Defendant
McCartney had damaged his vehicle.14
Upon hearing Plaintiff’s complaint, Defendant McCartney used
his taser on Plaintiff, who was handcuffed.15 Plaintiff fell to the
ground, and as he was lying on the ground, Defendant McCartney
repeatedly
kicked and tased him.16
At some point, Defendant
McCartney roughly tore the taser prongs from Plaintiff’s chest and
9
Id. p. 2.
10
Id.
11
Id.
12
Id. p. 3.
13
Id.
14
Id.
15
Id.
16
Id.
3
instructed the HPD officers to transport Plaintiff to the county
jail.17
Plaintiff was not told of the reason for his arrest.18
The HPD officers transported Plaintiff to the jail.19 However,
upon arrival, they were told by the jail deputies that Plaintiff
could not be booked in his present physical condition.20
officers transported Plaintiff to Ben Taub Hospital.21
The HPD
After the
HPD officers escorted Plaintiff into the hospital, they removed his
handcuffs and departed.22
No charges stemming from this incident
have been filed against Plaintiff.23
The hospital treated Plaintiff and released him.24
Plaintiff
returned to the hospital roughly one week later complaining of
pain.25
B.
Procedural Background
On December 12, 2017, Plaintiff filed this action against
Harris County, an officer “E. McKenny,” and the sports bar.26
17
Id.
18
Id.
19
Id.
20
Id.
21
Id.
22
Id.
23
Id.
24
Id.
25
Id. pp. 3–4.
26
See Doc. 1-3, Pl.’s Orig. Pet.
4
Defendant Harris County removed to this court on January 2, 2018,
and filed a motion to dismiss on January 5, 2018.27
Plaintiff
amended his complaint purportedly to comply with federal standards
on February 19, 2018.28
Plaintiff moved for leave to file a second
amended complaint on February 22, 2018.29
The only proposed change
was to correct the name of the deputy sued from “E. McKenny” to
Defendant McCartney.30
Defendant Harris County filed a motion to dismiss the first
amended complaint on February 26, 2018.31 On February 27, 2018, the
court granted Plaintiff’s motion for leave to file a second amended
complaint.32 Shortly after leave was granted, the case was referred
to the undersigned.33
Subsequently,
Defendant
Harris
County
filed
a
motion
to
dismiss Plaintiff’s second amended complaint on March 8, 2018,
wholly incorporating its first motion to dismiss and pointing out
that the only change in the amendment was “the spelling of a
27
See Doc. 1, Not. of Removal; Doc. 2, Def.’s Mot. to Dismiss.
28
See Doc. 11, Pl.’s 1 st Am. Compl.
29
Pl.’s 2
d
See Doc. 13, Pl.’s Mot. for Leave to File 2 d Am. Compl.; Doc. 14,
Am. Compl.
30
Id.
31
See Doc. 16, Mot. to Dismiss Pl.’s 1 st Am. Compl.
32
See Doc. 17, Ord. Dated Feb. 17, 2018.
33
See Doc. 20, Ord. Dated Mar. 2, 2018.
5
name.”34
Plaintiff responded on March 29, 2018.35
On April 25, 2018, Defendant Harris County filed a third
motion to dismiss, again wholly incorporating the first motion to
dismiss and adding new arguments.36
Plaintiff filed a response on
May 8, 2018, with new supplemental exhibits.37
Defendant McCartney filed his motion to dismiss on May 16,
2018.38
Plaintiff responded on June 4, 2018.39
II.
Legal Standard
Federal Rule of Civil Procedure (“Rule”) 12(b)(6) allows
dismissal of an action whenever the complaint, on its face, fails
to
state
a
claim
upon
which
relief
can
be
granted.
When
considering a motion to dismiss, the court should construe the
allegations in the complaint favorably to the pleader and accept as
true all well-pleaded facts.
Harold H. Huggins Realty, Inc. v.
FNC, Inc., 634 F.3d 787, 803 n.44 (5th Cir. 2011)(quoting True v.
Robles, 571 F.3d 412, 417 (5th Cir. 2009)).
The court may also
34
See Doc. 21, Def.’s Mot. to Dismiss Pl.’s 2d Am. Compl.
35
See Doc. 25, Pl.’s Resp. to Def.’s Mot. to Dismiss Pl.’s 2 d Am.
36
See Doc. 27, Def.’s 3d Mot. to Dismiss.
37
See Doc. 28, Pl.’s Resp. to Def.’s 3d Mot. to Dismiss.
Compl.
38
See Doc. 32, Def.’s Mot. to Dismiss Pl.’s 2 d Am. Compl. In one of
Defendant Harris County’s motions, it raises the argument that Defendant
McCartney was never served.
See Doc. 27, Def.’s 3 d Mot. to Dismiss. However,
Defendant McCartney filed his motion to dismiss with no mention of the
insufficiency of service. Therefore the court finds Defendant Harris County’s
motion to be moot.
39
See Doc. 33, Pl.’s Resp. to Def.’s Mot. to Dismiss.
6
consider, in addition to the complaint itself, “any documents
attached to the complaint[] and any documents attached to the
motion to dismiss that are central to the claim and referenced by
the complaint.”
Lone Star Fund V (U.S.), L.P. v. Barclays Bank
PLC, 594 F.3d 383, 387 (5th Cir. 2010).
A complaint need not contain “detailed factual allegations”
but must include sufficient facts to indicate the plausibility of
the claims
asserted,
speculative level.”
raising
the
“right to
relief
above
the
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Plausibility means that the factual content “allows the court to
draw the reasonable inference that the defendant is liable for the
misconduct alleged.”
provide
“more
than
Iqbal, 556 U.S. at 678.
labels
and
conclusions”
A plaintiff must
or
recitation of the elements of a cause of action.”
U.S. at 555.
“a
formulaic
Twombly, 550
In other words, the factual allegations must allow
for an inference of “more than a sheer possibility that a defendant
has acted unlawfully.”
Iqbal, 556 U.S. at 678.
III.
Analysis
The court addresses the parties’ arguments by claim, beginning
with the state law claims of assault, battery, false imprisonment,
negligence, and negligent hiring.
The court then addresses the
remaining constitutional claims of false arrest, unlawful seizure,
excessive force, and property damage.
7
A.
State Law Claims
A Texas county is a “governmental unit” covered by the Texas
Tort
Claims
Act
(“TTCA”).
Tex.
Civ.
Prac.
&
Rem.
Code
§
101.001(3)(B). Texas governmental units enjoy immunity from claims
unless Texas has consented to allowing suit.
Tex. Dep’t of Parks
& Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex. 2004). Generally,
the TTCA waives immunity for property damage, personal injury, and
death caused by wrongful acts of employees if arising “from the
operation
or
use
of
a
motor-driven
vehicle
or
motor-driven
equipment” or caused by “a condition or use of tangible personal or
real property.”
See Tex. Civ. Prac. & Rem. Code § 101.021.
No
waiver of immunity is available for claims “arising out of assault,
battery, false imprisonment, or any other intentional tort.”
Tex.
Civ. Prac. & Rem. Code § 101.057.
“Because the [TTCA] is the only, albeit limited, avenue for
common-law recovery against the government, all tort theories
alleged against a governmental unit . . . are assumed to be ‘under
[the Tort Claims Act]’ for the purposes of [Tex. Civ. Prac. & Rem.
Code § (“Section”)] 101.106"
Mission Consol. Indep. Sch. Dist. v.
Garcia, 253 S.W.3d 653, 659 (Tex. 2008); see also Bustos v. Martini
Club, 599 F.3d 458, 463 (2010).
The purpose of Section 101.106 is
to force plaintiffs “to decide at the outset whether an employee
acted independently and is thus solely liable, or acted within the
general scope of his or her employment such that the governmental
8
unit is vicariously liable, thereby reducing the resources that the
government and its employees must use in defending redundant
litigation and alternative theories of recovery.”
S.W.3d at 657.
Mission, 253
Plaintiffs must make the irrevocable election of
whom to bring claims against at the outset of litigation.
Tort
Claims
Act's
election
scheme
is
intended
to
“[T]he
protect
governmental employees by favoring their early dismissal when a
claim regarding the same subject matter is also made against the
governmental employer.”
Id.
The Texas Supreme Court has held that a plaintiff’s “nonchoice
[is] an election to sue only the government.”
Univ. of Tex. Health
Sci. Ctr. v. Rios, 542 S.W.3d 530, 537 (Tex. 2017) (citing Tex.
Dep’t of Aging & Disability Servs. v. Cannon, 453 S.W.3d 411, 417
(Tex. 2015)).
Additionally, “[t]he TTCA strongly favors dismissal
of suits against government employees.”
Carter v. Diamond URS
Huntsville, LLC, 175 F. Supp. 3d 711, 175 (S.D. Tex. 2016) (quoting
Tipps v. McCraw, 945 F. Supp. 2d 761, 766 (W.D. Tex. 2013)).
Two
ways an employee may be dismissed from a suit are outlined in
Section 101.106 (e) and (f), which state:
(e) If a suit is filed under this chapter
against both a governmental unit and any of
its employees, the employees shall immediately
be dismissed on the filing of a motion by the
governmental unit.
(f) If a suit is filed against an employee of
a governmental unit based on conduct within
the
general
scope
of
that
employee’s
employment and if it could have been brought
9
under this chapter against the governmental
unit, the suit is considered to be against the
employee in the employee’s official capacity
only. On the employee’s motion, the suit
against the employee shall be dismissed unless
the
plaintiff
files
amended
pleadings
dismissing the employee and naming the
governmental unit as defendant on or before
the 30th day after the date the motion is
filed.
Expanding on Section 101.106 (f), the Texas Supreme Court has held
that “a suit against an employee in his official capacity is not a
suit against the employee; it is, in all but name only, a suit
against the governmental unit.” Texas Adjutant General’s Office v.
Ngakoue,
408
S.W.3d
350,
357
(Tex.
2013)
(citing
Franka
v.
Velasquez, 332 S.W.3d 367, 382 n.68 (Tex. 2011)) (emphasis in
original).
The TTCA defines “scope of employment” as “the performance for
a governmental unit of the duties of an employee’s office or
employment and includes being in or about the performance of a task
lawfully assigned to an employee by competent authority.”
Civ. Prac. & Rem. Code § 101.001(5).
Tex.
The Texas Supreme Court has
turned to the Restatement (Third) of Agency to provide additional
clarity to the definition.
Alexander v. Walker, 435 S.W.3d 789,
792 (Tex. 2014). “An employee’s act is not within the scope of
employment when it occurs within an independent course of conduct
not intended by the employee to serve any purpose of the employer.”
Id. (quoting Restatement (Third) of Agency § 7.07(2) (2006)).
In specific regard to peace officers, “engaging in an arrest
10
is
conduct
that
is
generally
within
an
officer’s
scope
of
employment; it is not an independent course of conduct that fails
to serve any purpose of the employer.”
See Fink v. Anderson, 477
S.W.3d 460, 467 (Tex. App.—Houston [1st Dist.] 2015, no pet.)
(summarizing the Texas Supreme Court's holding in Alexander, 435
S.W.3d at 792).
Courts have held that a police officer “who uses
excessive force is still acting within the ‘scope of employment’
for purposes of the TTCA.”
Orr v. Copeland, No. A-14-CV-212-LY,
2015 WL 3901654, at *2 (W.D. Tex. 2015) (citing Tipps, 945 F. Supp.
2d at 766-67 (W.D. Tex. 2013). “Even if conducted with improper
motives or in an improper manner, [officer’s] actions remain within
the general scope of duties of law enforcement officers.”
Tipps,
945 F. Supp. 2d at 767 (citing City of Lancaster v. Chambers, 883
S.W.2d 650, 658 (Tex. 1994); Ballantyne v. Champion Builders, Inc.,
144 S.W.3d 417, 425-26 (Tex. 2004)).40
Plaintiff’s complaint raised state-law claims of assault,
battery, and false imprisonment against Defendant McCartney, as
well as state law causes of actions for negligence and negligent
hiring against Defendant Harris County.
40
While Section 101.106 (e)
Plaintiff does not dispute that Defendant McCartney was acting within
the course and scope of his employment with Harris County.
See Doc. 14, Pl.’s
2d Am. Compl. p. 7–8
(“. . . [Defendant] McCartney, acting in the course and
scope of his employment with [Harris County]...”).
Plaintiff contends that
Defendant McCartney is not entitled to official immunity because Defendant
McCartney cannot demonstrate that he was “performing a discretionary duty, acting
in good faith, and acting within the scope of his lawful authority.” Id. p. 8.
Plaintiff is confusing official immunity with the statutory immunity provided by
Section 101.106 (f). See Carter, 175 F. Supp. 3d at 752.
11
allows for dismissal of an employee when both an employee and the
governmental unit are sued, this section was not triggered because
Defendant Harris County did not file the present motion to dismiss
on this basis.
fit.
Section 101.106 (f) is also a less than perfect
Plaintiff’s suit against Defendant McCartney is based on an
arrest, which is within the general scope of his employment, and
could have been brought against county, however the governmental
unit is already named as a defendant and therefore cannot be
substituted.
It is clear that under the intended purpose of
Section 101.106, Defendant McCartney should be dismissed;41 however,
if immunity has been waived, a suit against Defendant Harris County
may continue.
See Ngakoue, 408 S.W.3d at 359 (“If the plaintiff
fails to substitute the government . . . then the case must be
dismissed . . . [b]ut a suit against the governmental unit for
which immunity is otherwise waived may go forward, just as a suit
proceeds against the government when an employee is dismissed under
[Section 101.106 (e)].”) (internal citations omitted).
Regardless of which defendant is the proper party for the
state law tort claims, the court turns to whether the TTCA waives
immunity for the actions.
The court addresses the validity of all
of Plaintiff’s claims.
Assault, battery, and false imprisonment are claims arising
41
Because the court has dismissed the state law claims against
Defendant McCartney, the court need not consider Plaintiff’s respondeat superior
allegations regarding these dismissed claims.
12
out of intentional torts, which are specifically excluded from
waiver of governmental immunity.
See Section 101.057.
Plaintiff
cannot evade the intentional tort exception by simply pleading
negligence
where
intentional
the
tort;
essence
simple
of
his
claims
characterization
of
arises
the
from
an
claims
as
negligence is insufficient to avoid application of the intentional
torts exception. Tarrant Cty. Hosp. Dist. v. Henry, 52 S.W.3d 434,
441 (Tex. App.-Fort Worth 2001, no pet.)(“A plaintiff cannot,
however,
circumvent
the
intentional
tort
exception
simply
by
pleading negligence.”).
Plaintiff has not alleged any negligent conduct on the part of
Defendant McCartney, but instead has pled assault, battery, and
false imprisonment which are clearly intentional torts.
Plaintiff
attempts
Defendant
to
recharacterize
the
intentional
acts
of
McCartney’s alleged assault of Plaintiff using “a taser, handcuffs,
a nightstick and boots” as negligent use of tangible property.42
But these acts are clearly intentional as a matter of law.
See
City of Waco v. Williams, 209 S.W.3d 216, 223-24 (Tex. App.—Waco
2006, pet. denied) (“Plainly, . . . the [plaintiffs] have alleged
claims that ‘arise out’ of the officers’ use of force—repeated
Tasering—against the decedent, which allege the intentional tort of
assault. There is, properly speaking, no such thing as a negligent
assault.”) (internal quotations marks and citations omitted); see,
42
Doc. 14, Pl.’s 2d Am. Compl. p. 7.
13
e.g., Campbell v. City of San Antonio, 43 F.3d 973, 978 n.8 (5th
Cir. 1995)(applying Texas law) (“The heart of [the plaintiff’s]
allegations of negligent use of tangible personal property does
indeed seem merely a part of a larger claim for false arrest or
false imprisonment.”).
Plaintiff has not alleged any facts that
would support a negligence claim apart from his intentional tort
claims.
See Henry, 52 S.W.3d at 441.
Therefore, the negligence
claim is not viable and must be dismissed.
Turning to Plaintiff’s negligent hiring claim, the Fifth
Circuit has held that “failure to train or supervise is not a
proper cause of action under the TTCA.”
Goodman v. Harris Cty.,
571 F.3d 388, 394 (5th Cir. 2009) (citing Tex. Dep’t of Pub. Safety
v. Petta, 44 S.W.3d 575, 580 (Tex. 2001)).
A cause of action “for
negligent supervision or training must satisfy the TTCA’s use of
tangible property requirement.”
Tex. Dep’t of Crim. Justice-Cmty.
Justice Assistance Div. v. Campos, 384 S.W.3d 810, 815 (Tex. 2012)
(citing
Petta,
44
S.W.3d
at
581).
Plaintiff,
without
any
elaboration, contends that Defendant Harris County “negligently
hired, retained, trained, entrusted authority and personal property
to, and supervised [Defendant] McCartney.”43
Plaintiff has failed
to alleged that a “use” of tangible property was involved in
Defendant Harris County’s failure to train and supervise, thus, the
TTCA does not waive Defendant Harris County’s immunity for this
43
Id.
14
claim. For the reasons set forth, Plaintiff’s state law claims are
barred by the TTCA and must be dismissed.44
B.
Constitutional Claims
A plaintiff can establish a prima facie case under 42 U.S.C.
§ 1983 (“Section 1983”) for the deprivation of civil rights by
establishing: (1) a violation of a federal constitutional or
statutory right; and (2) that the violation was committed by an
individual acting under the color of state law.
Doe v. Rains Cty.
Indep. Sch. Dist., 66 F.3d 1402, 1406 (5th Cir. 1995).
The statute
creates no substantive rights but only provides remedies for
deprivations of rights created under federal law.
Graham v.
Connor, 490 U.S. 386, 393-94(1989).
The constitutional claims alleged against Defendants McCartney
and Harris County are for false arrest, unlawful seizure, excessive
force, and excessive and unnecessary property damage in violation
of
the
Fourth
Amendment,
which
protects
“unreasonable searches and seizures.”
an
individual
U.S. Const. amend. IV.
from
The
court first discusses the claims against Defendant McCartney and
then examines the claims against the county.45
44
The court finds that all tort claims against Defendant Harris County
should be dismissed, thus, there is no need to discuss the issue of notice.
45
Defendants argue that Plaintiff was trespassing at the sports bar,
and therefore no constitutional violations existed.
However, in a 12(b)(6)
motion to dismiss, the court only considers the well-pled allegations within the
complaint. Defendants Harris County and McCartney filed extraneous documents,
which were neither attached to the complaint nor central to the claim and
referenced therein. See Lone Star Fund, 594 F.3d at 387. Therefore, the court
has not considered arguments based on those documents at this pleading stage.
15
1.
False Arrest
When bringing a claim for false arrest in violation of the
Fourth Amendment, a plaintiff must show that the officer did not
have probable cause to arrest.
See Evans v. City of Meridian
Miss., 630 F. App’x 312, 315 (5th Cir. 2015)(unpublished); Brown v.
Lyford,
243
F.3d
185,
(5th
189
Cir.
2001)(stating
that
the
constitutional tort of false arrest requires “a showing of no
probable cause”).
Probable cause exists “when the totality of the
facts and circumstances within a police officer’s knowledge at the
moment of arrest are sufficient for a reasonable person to conclude
that the suspect had committed or was committing an offense.”
Turner v. Driver, 848 F.3d 678, 694 (5th Cir. 2017).
belief
that
probable
cause
is
present
must
The officer’s
be
objectively
reasonable; it is irrelevant what his subjective beliefs were.
Anderson v. Creighton, 483 U.S. 635, 641 (1987).
Plaintiff alleged that at the time he was arrested he had not
acted in
any
knowledge,
no
way
that
charges
was
were
contrary
ever
to
the
filed.
law and,
Based
on
the
to
his
facts
Plaintiff alleged in his complaint, there was no probable cause
evident for his arrest.
Plaintiff has therefore stated sufficient
facts to support a constitutional claim of false arrest.
2.
Unlawful Seizure
“[W]henever
a
police
officer
accosts
an
individual
and
restrains his freedom to walk away, he has ‘seized’ that person.”
16
Terry v. Ohio, 392 U.S. 1, 16 (1968).
Although probable cause is
required to support a warrantless arrest, police officers may
detain an individual for investigative purposes based on the less
demanding standard of a reasonable suspicion of criminal activity.
Goodson v. City of Corpus Christi, 202 F.3d 730, 736 (5th Cir.
2000).
Reasonable suspicion is a less stringent standard than
probable cause and exists “when the detaining officer can point to
specific and articulable facts that, when taken together with
rational inferences from those facts, reasonably warrant the search
and seizure.”
U.S. v. Estrada, 459 F.3d 627, 631 (5th Cir. 2006).
In other words, investigative stops are constitutional when based
on
“a
particularized
and
objective
basis
for
suspecting
particular person stopped of criminal activity.”
the
Navarette v.
California, 572 U.S. 393, 134 S. Ct. 1683, 1687 (2014) (quoting
United States v. Cortez, 449 U.S. 411, 417-18 (1981)).
Plaintiff alleged that, when Defendant McCartney approached
him, Plaintiff was in the process of leaving the sports bar and had
not broken any laws.
Plaintiff further maintained that Defendant
McCartney
him
prevented
from
leaving
the
bar
nightstick to keep his car door from closing.
by
using
his
Construing the
allegations in Plaintiff’s complaint favorably to him and accepting
as
true
the
well-pleaded
facts,
the
court
finds
that
the
allegations are sufficient to assert that Defendant McCartney
seized
Plaintiff,
preventing
him
17
from
leaving
without
any
reasonable suspicion.
Plaintiff has alleged sufficient facts in
his complaint, therefore this claim should not be dismissed.
3.
Excessive Force
The Fourth Amendment, applied to state actors through the
Fourteenth Amendment, protects “[t]he right of the people to be
secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures.”
U.S. Const. amend. IV.
In
order to establish an excessive-force claim, a plaintiff must show:
(1) an injury; (2) that resulted directly and only from the use of
force that was excessive; and (3) the force used was unreasonable.
Carnaby v. City of Houston, 636 F.3d 183, 187 (5th Cir. 2011)(citing
Freeman v. Gore, 483 F.3d 404, 416 (5th Cir. 2007)).
Defendants argue that Plaintiff has no excessive force claim
because
he
suffered
minor
or
incidental
injuries.
“The
determination of whether a plaintiff’s alleged injury is sufficient
to support an excessive force claim is context-dependent and is
‘directly related to the amount of force that is constitutionally
permissible under the circumstances.’” Freeman v. Gore, 483 F.3d
404, 416 (5th Cir. 2007) (citing Ikerd v. Blair, 101 F.3d 430, 435
(5th Cir. 1996)).
Defendant Harris County cites Freeman to show
that minor and incidental injuries that occur in connection with
effectuating an arrest do not rise to a constitutional claim for
excessive force.
However, Plaintiff’s allegations are that Defendant McCartney
18
repeatedly tased and kicked Plaintiff while he was handcuffed on
the ground, tore the taser prongs from Plaintiff’s chest, and left
him in such a physical condition that the deputies at the jail
would not book him.
These allegations clearly raise a claim of
excessive force.
4.
Property Damage
The
U.S.
Supreme
Court
has
held
that
“[e]xcessive
or
unnecessary destruction of property in the course of a search may
violate the Fourth Amendment.” United States v. Ramirez, 523 U.S.
65, 71 (1998).
The Fifth Circuit has applied this standard only to
the unnecessary destruction of property during the execution of a
search or arrest warrant. See Richie v. Wharton Cty. Sheriff Dep’t
Star Team, 513 F. App’x 382, 386 (5th Cir. 2013) (unpublished).
Likewise, district courts have applied the Ramirez standard of
“excessive or unnecessary destruction of property” only in cases in
which the damage occurred during the execution of search or arrest
warrants.
See, e.g. Clark v. Fiske, No. SA-05-CA-0485-FB, 2005 WL
3617731, at *3 (W.D. Tex. Sept. 20, 2005) (unpublished).
While
Plaintiff pled there was damage to his vehicle, it was not as a
result
of
the
execution
of
a
search
warrant.
Plaintiff’s
allegation of damage to his vehicle during his encounter with
Defendant
McCartney
protection.
does
not
fall
within
This claim cannot survive.
19
this
constitutional
5. County Liability
A county may be held liable under Section 1983 only for its
own illegal acts, not pursuant to a theory of vicarious liability.
Connick v. Thompson, 563 U.S. 51 (2011)(quoting Pembaur v. City of
Cincinnati, 475 U.S. 469, 479 (1986)). To succeed on a claim under
Section 1983, the plaintiff must establish, not only that an
individual state actor violated their constitutional rights, but
that “(1) an official policy (2) promulgated by the municipal
policymaker (3) was the moving force behind the violation of a
constitutional right.” Peterson v. City of Fort Worth, Tex., 588
F.3d 838, 847 (5th Cir. 2009)(citing Piotrowski v. City of Houston,
237 F.3d 567, 578 (5th Cir. 2001)).
“Official [local-government]
policy includes the decisions of a government’s lawmakers, the acts
of its policymaking officials, and practices so persistent and
widespread as to practically have the force of law.” Connick, 563
U.S. at 60; see also Peterson, 588 F.3d at 850.
In order to allege a constitutional violation against Harris
County, Plaintiff
violated
must
Plaintiff’s
plead
it,
and not
constitutional
rights
a
county
by
employee,
alleging
facts
supporting the existence of a policy that was the moving force
behind each allegation.
The court has found that Plaintiff has
stated claims for false arrest, unreasonable seizure and excessive
force.
20
Defendant Harris County argues that Plaintiff cannot meet the
elements of county liability under Section 1983 because he has not
identified a policy or custom which led to the alleged violations
of Plaintiff’s constitutional rights.
Plaintiff, in his response,
asserts that he has specifically pled the existence of a widespread
custom.
Plaintiff points out in his response that his complaint
stated:
There is a widespread practice of officials or
employees of Harris County, Texas, including
Sheriff’s deputies, of using excessive force
in violation of the clearly established
constitutional rights of the citizenry. This
practice is so common and well settled as to
constitute a custom that fairly represents
policy. In this specific instance, the County
adopted and ratified McCartney’s use of
objectively unreasonable and excessive force
[as well as unlawful arrest and detention]
against [Plaintiff].
This incident was
reported to the Harris County Sheriff’s Office
Internal Affairs Division, specifically, to
Sergeant
Gary
Rodgers.
Harris
County
officials and policymakers declined to punish
McCartney in anyway, thereby ratifying and
adopting the widespread and unlawful practice
custom, and policy . . . that has, and
continues
to,
permeate
the
Sheriff’s
department and other law enforcement officials
and employees of Harris County, Texas.46
While the Fifth Circuit has recognized ratification as a
theory of liability against a municipality when the behavior of a
state actor is approved by the policymaker, it has refused to find
ratification “simply because a municipality failed to punish an
46
See Doc. 14, pp. 11-12 (emphasis added).
21
actor for those actions on one occasion and [has] refused to infer
an official policy from a single isolated failure to punish an
officer’s misconduct.”
Henderson v. Anderson, 463 F. App’x 247,
250 (5th Cir. 2012) (unpublished) (citing Valle v. City of Houston,
613 F.3d 536, 542-43 (5th Cir.2010)); Fraire v. City of Arlington,
957
F.2d
1268,
1278
(5th
Cir.
1992).
Precedent
limits
the
application of ratification to “extreme factual situation[s]” and
explains that “a policymaker who defends conduct that is later
shown to be unlawful does not necessarily incur liability on behalf
of the [local government].”
Peterson 588 F.3d at 848 (citing Coon
v. Ledbetter, 780 F.2d 1158, 1161-62 (5th Cir. 1986)). “[A] showing
of such extreme situations requires more than a showing that the
[local
government]
failed
to
adequately
punish
the
offending
officer for illegal conduct.” Rodriguez v. City of Houston, 651 F.
App’x 282, 286 (5th Cir. 2016) (unpublished) (citing Peterson 588
F.3d at 848) (emphasis added).
In the present case, Plaintiff has failed to provide any facts
of unconstitutional policies and has merely presented threadbare
recitals of the cause of action.
While the Fifth Circuit has held
that a custom or policy can be established based decisions made by
a policy maker in an isolated decision, Plaintiff has failed to
present anything more than conclusory allegations and only points
to an internal affairs investigation that did not result in any
punishment.
The allegations are too vague to raise more than
22
speculation that an official policy was the moving force behind the
violation of his constitutional rights, which is not enough to
state a claim under Twombly and Iqbal.
IV.
Conclusion
Based on the foregoing, the court DENIES AS MOOT Defendant
Harris
County’s
Complaint
and
Motion
Motion
to
to
Dismiss
Dismiss
Plaintiff’s
Plaintiff’s
First
Amended
Second
Amended
Complaint, and GRANTS IN PART AND DENIES IN PART Defendant Harris
County’s Third Motion to Dismiss and Defendant McCartney’s Motion
to Dismiss.
Plaintiff has already amended his complaint twice.
The court
is reluctant to grant further opportunities to amend because it
believes that additional facts will not overcome the applicable
law. However, if Plaintiff believes that he can adequately address
the pleading deficits cited in this memorandum, he must file a
motion for leave to amend concurrently with timely-filed objections
to this memorandum.
In light of the findings above, the court notes that the
following claims remain against Defendant McCartney: Plaintiff’s
Section 1983 claims for violation of his Fourth Amendment right to
be free from (1) false arrest, (2) unlawful seizure, and (3)
excessive force.
SIGNED in Houston, Texas, this 10th
day of August, 2018.
23
______________________________
U.S. MAGISTRATE JUDGE
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