Jacobson-Boettcher v. Dowdy et al
Filing
15
MEMORANDUM OPINION AND ORDER granting 5 Harris County's Partial MOTION to Dismiss 1 Complaint ; granting in part, denying in part 10 MOTION to Dismiss 1 Complaint . (Signed by Judge Sim Lake) Parties notified.(gclair, 4)
United States District Court
Southern District of Texas
ENTERED
July 20, 2018
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIV ISION
David J. Bradley, Clerk
PENNY JACOBSON-BOETTCHER,
In her Individual Capacity ,
Plaintiffs,
C IVIL ACTION NO . H-18-0853
SERGEANT WILLIAM DOWDY, in His
Individual Capacity , DEPUTY
JACOB WALKER, in His Individual
Capacity, HARRIS COUNTY , TEXAS,
and DOES 1-10, Inclusive,
Defendants.
MEMORANDUM OPINION AND ORDER
Plaintiff,
against
Penny
defendants,
Jacobson-Boettcher ,
Harris
County,
brings
Texas,
and
this
action
Harris
County
Sheriff's employees, Sergeant William Dowdy (A
'Dowdy' Deputy Jacob
'),
Walker (
nWa1ker'), and Deputy Does 1-10r under 42 U.S.C. 5 1983 for
'
violation
civil rights guaranteed by the Fourth and Fourteenth
Amendments to the United States Constitution .
Pending before
are Harris County's Answer and Partial Motion
(
Docket Entry No.
Dismiss
and Defendants Harris County, Dowdy, and
Walker's Motion to Dismiss (
nDefendants' Motion to Dismiss'lt
' Docket
Entry No .
Partial Motion
the reasons set forth below, Harris County's
Dism iss
Dismiss will be granted
be granted, and Defendants' Motion
part and denied .
1.
Standard of Review
Defendants Dowdy, Walker, and Harris County , seek dism issal of
the claims asserted against them under Federal Rule of Civil
Procedure
12 ( 6).
b)( 1
sufficiency
attacks
Rule
12 (
b)(6) motions test
formal
the pleadings and is '
'appropriate when a defendant
the
complaint
cognizable claim .'
'
because
fails
state
Rammin? v . United States,
legally
F.3d
(
5th Cir. 2001), cert . denied sub nom Cloud v . United States, 122
S. Ct. 2665 (
2002). The court must accept the factual allegations
of the complaint as true, view them
the
plaintiff,
and
draw
light most favorable
reasonable
inferences
plaintiff's favor . Id . To defeat a motion to dismiss pursuant
Rule 12 ( 6),
b)(
claim
plaintiff must plead uenough facts
relief that
plausible on its face .'
'
Coro . v . Twomblv,
1955,
(
2007).
state
Bell Atlantic
UA claim has
facial plausibility when the plaintiff pleads factual content that
allows
court
defendant
Iabal, 129 S.
not akin
draw
inference
liable for the misconduct alleged .'
'
that
Ashcroft v .
-
1937, 1949 (
2009). nThe plausibility standard is
Aprobability requirement r'
sheer possibility
nWhere
reasonable
asks for m ore than
defendant has acted unlaw fully.'
'
Id .
complaint pleads facts that are '
merely consistent with '
defendant 's
liability,
'stops
short of
possibility and plausib ility of entitlement
between
relief.' =
' Id
lDefendants' Motion to Dism iss, Docket Entry No . 10, p . 1.
Defendants also cite Rule 91a of the Texas Rules of Civil
Procedure , which allows state courts to do what a federal court is
allowed to do under Rule 12 (
b)(6). Rule 91a is not applicable to
this action .
II . Plaintiffs' Factual Alleqations
Plaintiff alleges that on Saturdayr October
2016, she and
her husband , Isaiah, went to Mo's Place at about 7 :30 p .m ., ordered
two drinks, found a table, and sat down .
Plaintiff and Isaiah
remained at the same table most of the night because plaintiff had
foot condition that prevented her from walking , dancing, and
standing for prolonged periods.
October
At about
A .M .
Sunday ,
2016, plaintiff and Isaiah moved closer to the dance
floor, and while doing so the plaintiff accidentally bumped into
another patron . Plaintiff tried to apologize for the bump , but the
other patron comp lained to a staff member who told the plaintiff it
was time
go .
When plaintiff questioned why ,
staff member
summoned an off-duty , uniformed Harris County Sheriff's Deputy ,
Deputy Mook, who told plaintiff and Isaiah to leave the premises .
Plaintiff alleges that b0th she and Isaiah immediately complied .
As plaintiff and Isaiah began to exit
Place,
brought
the tab for Isaiah to sign, and plaintiff and Isaiah then proceeded
the building .
Plaintiff alleges that once outside, Isaiah asked the valet if
went to get their truck .
The valet agreed . Plaintiff stood near a valet pole, approximately
12 feet away from the front door of Mo 's Place, waiting for Isaiah
return with their truck.
Plaintiff alleges that
17 . . . . Isaiah pulled up the truck and E
PLAINTIFF)
walked over to the truck .
DOW DY then yelled at
E
PLAINTIFF) saying, Mget in the truck or you're going to
jail,' to which E
'
PLAINTIFF) responded, nbut why, I didn't
do anything wrong .' DOWDY then stated nthat's it, you're
'
going to jail.'
'
18. DOWDY approached (
PLAINTIFF) and instructed her to
put her hands behind her back, which E
plaintiff)
complied. DOWDY arrested IPT.
ATNTIFFJ in vioiation of her
4th amendment rights without probable cause . When DOWDY
applied the handcuffs, E
PLAINTIFF) complained they were
too tight and informed DOWDY that she had Rheumatoid
Arthritis.
. DOWDY became angry , did not loosen the
cuffs, but applied more pressure to her wrists by pushing
downward on the cuffs. The valet parked the truck for
Isaiah so Isaiah could stay with (
PLAINTIFFIX
Plaintiff alleges that Dowdy called for a patrol unit , that
due to the condition of her foot, plaintiff had to shift her weight
from
left
right , and that her movement angered
responded by bending her
Dowdy who
trash can and ultimately knocking
her down to the ground injuring her shoulder and causing her
briefly lose consciousness .
Plaintiff alleges
Dowdy and Deputy Walker telling her
responded,
can't get up like this.
Arthritis and my feet are
she awoke
which
have Rheumatoid
Dowdy then pulled plaintiff up by
handcuffs, stepping on her right foot and causing her shoe
come off.
When plaintiff failed
walk toward
defendants'
patrol unit as fast as Dowdy wanted , she was pushed to the ground
hitting her head . Deputy Walker then pulled her up and dragged her
to the patrol unit .
By this time the p laintiff was scream ing
zplaintiff's Complaint r Docket Entry No . 1, pp . 7-8, %% 17-18 .
3 .
Id
9 % 20 .
pain and bleeding from her head , knees, and feet .
Once
patrol unit plaintiff's pain caused her
Walker then
vomit .
pulled her out of the unit and asked Isaiah
the
console her, which
he did .
Plaintiff alleges that while Dowdy and Walker were deciding
what
charge her with , Sergeant Campbell arrived on the scene .
She alleges that Dowdy or Walker told Campbell that she was going
to jail, but Campbell saidr ushe's not going to
the hospital./4
'
When asked
she wanted
plaintiff said , %Yesr' and was placed on
%
'
ambulancex
Asserting
she's going
go the hosp ital
stretcher and into an
she nwas never charged with any
violation of any 1aw ,'6 plaintiff alleges that
'
WALKER in his incident report ufabricated' the sequence
'
of events to avoid future liability for his actions and
the actions of DOWDY . A true and correct copy of the
nIncident Report' with intentional fabrications is
'
attached at Exhibit A and incorporated by referencex
4 . at 10 % 22 .
Id
5Id .
% 22.
6 . at 11 %
Id
7 . at % 24 .
Id
111 . Harris Countv 's Partial Motion to Dism iss
Harris County's Partial Motion
Dismiss seeks dism issal
any claim s that has asserted for consp iracy and violation of the
Ninth Amendmentx
Plaintiff responds that she Mdoes
Harris County's
allegations
CSZ YXY .S9
I
.
S
Partial Motion
Dism iss as
oppose
any alleged
conspiracy by Harris County and any
Amendment
Accordingly, Harris County's Partial Motion
will be granted and
conspiracy and
for
claim s
plaintiff
violation
Dismiss
asserted
the Ninth Amendment will be
dismissed with prejudice.
IV .
Defendants' Motion to Dismiss
Citing 42 U .S. . $ 1983, plaintiff alleges that the Dowdy and
C
Walker are liable for arresting
using excessive force
against her without probable cause in violation
Fourteenth Amendments, that Deputy Walker
deception
and
violation
her
Fourteenth
the Fourth and
liable
judicial
Amendment
right
substantive due process for filing a false Incident Report with the
Harris County Sheriff's Office, and that Harris County
for failing
liable
train and supervise the individual defendants.
Harris County, Dowdy, and Walker seek dism issal
8
Harris County's Answer and Partial Motion
Entry No . 11, pp . 7 and 8.
uthe entire
Dism iss, Docket
9 Opposition to Harris County's Answer and Partial Motion to
No
Dismiss, Docket Entry No . 11, p . 1.
case,'l arguing
'o
plaintiff has failed to allege facts capable
showing that she suffered a deprivation of constitutional rights
because probable cause existed to
In addition defendants argue that p laintiff's claims for excessive
use of force should be
she
complains are minor injuries, incidental
lawful arrest that do
not give rise to
for judicial deception against Walker should be dismissed because
no charges have been filed and no judicial deception has occurred.
A.
Applicable Law
42 U .S .C . 5 1983
42 U .S .C . 5 1983 provides
private right of action for the
deprivation of rights, privileges, and immunities secured by the
Constitution
laws of the United States.
Section 1983 states :
Every person who , under color of any statute, ordinance,
regulation , custom r 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
proper proceeding for redress
5 1983.
uE
sectionq 1983 '
is
itself a source
substantive rights,' but merely provides 'a method for vindicating
federal rights elsewhere conferred .'' Graham v . Conner, 109 S .
'
l Defendants' Motion to Dismiss, Docket Entry No . lO, p . 7 .
o
1865, 1870 (
1989)
n.
(
quoting Baker v. Mccollan, 99 S.
2689, 2694
(1979)). To establish 5 1983 liability: plaintiff must prove
she suffered
a deprivation of a right secured by federal
law ( that occurred under color of state law, and ( was caused
2)
3)
by a state actor .'
'
Victoria W . v . Larpenter ,
F .3d 475,
(
5th Cir. 2004). Plaintiff must also show that the constitutional
deprivation
suffered was intentional
due
deliberate
indifference and not the result of mere negligence .
'The first inquiry
'
1983 suit'
'
precise constitutional violation with which
charged .' Graham , 109 S.
'
must then be judged
isolate the
(
the defendantq
at 1870 .
reference
the specific constitutional
standard which governs that right .'
'
Id . at 1871.
Plaintiff's
allegations that defendants' violating her rights to be free from
false arrest and excessive use of force are claim s that must be
analyzed under the Fourth Amendment .
Tennessee v. Garner, 105
Id. at 1871-73
(
citing
1694, 1699-1707 (
1985)).
Official and Personal Liabilitv
Public officials like the individual defendants, Dowdy and
Walker, may be sued pursuant to 42 U . . . $ 1983 in either their
S C
official and/or their personal capacities.
Hafer v. Melo, ll2
361-63 (
1991) (
citing Kentuckv v . Graham, 105
3099 (
1985)).
E
Tqhe distinction between official-capacity suits and
personal-capacity suits is more than na mere pleading
device .' . . . State officers sued for dam ages in their
'
official capacity are not upersons' for purposes of the
'
suit because they assume the identity of the governm ent
that employs them . . .
By contrast, officers sued in
their personal capacity come to court as individuals.
Id . at 362 .
suit
The real party
interest
the governmental entity ,
an official-capacity
the named official .
(
citing Graham,
Id . at
3105) (
nsuits against state
officials in their official capacity
suits against the State.'
').
should be treated as
To state a personal-capacity claim
under $ 1983 plaintiffs must allege that while acting under color
of state 1aw defendants were personally involved in the deprivation
of
right secured by the laws
States,
or
that
defendants'
Con stitution of the United
wrongful
actions
were
causally
connected to such a deprivation . James v . Texas Collin Countv, 535
2008).
Oualified Immunitv
Public officials sued
5
1983
shielded
their personal capacities under
from
by
immunity. Saucier v. Katz, l21 S.
doctrine
2151, 2156 (
2001), overruled
in Dart bv Pearson v . Callahan ,
Moualified immunity
(
2009).
'an entitlement not
the other burdens of litigation,'
qualified
stand trial
face
effectively
a case is erroneously perm itted to go to trial .' Id . The doctrine
'
of qualified immunity was created
-
9-
balance
interest
compensating persons whose federally protected rights have been
violated against the fear that personal liab ility might inhibit
public officials in the discharge of their duties. See Johnston v .
Citv of Houston, Texas,
qualified
immunity
whether
the
F.3d 1056, 1059 (
5th Cir. 1994).
analysis
plaintiff
constitutional right; and
established
S.
involves
two-step
alleged
a
inquiry :
violation
(
2) whether that right was clearly
the time
alleged misconduct .
at 815-16.
within
Pearson,
discretion of the district
decide which of the two steps to address first .
court
Courts exam ine each officer's actions
determine whether he
she
Newman v. Guedrv, 703 F.3d
(
2013).
The
Id .
independently
entitled to qualified immunity .
762 (
5th Cir. 2012), cert . denied,
Once
defendant asserts qualified
immunity, the burden shifts to the plaintiff, who bears the burden
of negating the defense of qualified immunity .
B.
Id . at 761.
Application of the Law to the Plaintiff's A llegations
Plaintiff's Claims for Unreasonable Seizure Are Subject
to Dismissal as to Walker But Not as to Dowdv
Dowdy and Walker argue that they are entitled to dismissal
plaintiff's claim s for unreasonable seizure because probable cause
existed to arrest her for criminal trespass and therefore , they are
entitled
claims .ll
l Defendants' Motion to Dismiss, Docket Entry No . 10, pp . 2-4.
l
Applicable Law
Plaintiff's allegations that Dowdy and Walker unreasonably
seized her raise claims
violation of the Fourth Amendment . The
Fourth Amendment prohibits arrests made without probab le cause .
Blackwell v . Barton,
Amendment
F.3d 298,
made applicable
Fourteenth Amendment .
(
5th Cir. 2009)
1994)
The Fourth
state defendants through the
Severance v . Patterson,
F .3d 490,
The Supreme Court has defined probable cause as
the nfacts and circum stances within the officer's know ledge that
are sufficient to warrant
prudent person,
one
reasonable
caution, in believing, in the circum stances shown, that the suspect
has comm itted ,
committing,
Michiqan v . DeFillippo, 99 S.
about
2627,
commit an offense .'
'
(
1979)). This
objective standard based on the facts known
time of the arrest .
an
the officer at the
Club Retro, L .L .C . v . Hilton , 568 F .3d 181,
(
5th Cir. 2009).
Application of the Law to the Allegations
Defendants
argue
that
' pllaintiff's
'E
own
complaint
and
attachments show the officers had probable cause to arrest her.
The staff told her
Sgt . Dowdy
told
leave .
her
Another deputy told her
leave .'l
'2
citing
Texas
leave .
Penal
Code
l . at 3 . See also id . at 6 (
2ld
nln addition to her own factual
basis in her complaint, g
plaintiffq attaches the report of that
(
continued...)
5 30.O5(
a), and the Memorandum and Order
Bradshaw v . Katrib,
a sheriff's deputy who, like Dowdy and Walker, was sued
arresting a patron
crim inal trespass while working
for
second
job. Defendants argue that
it is uncontroverted that (
pjlaintiff was told to leave
by staff, by 1aw enforcement, and then banned by the
owne r 's son .
As Judge Werlein noted in his Bradshaw
opinion, ' ilt is irrelevant whether E
'E
the officer) was
belligerent or unjustified in issuing to E
pqlaintiff the
ban and the warning .' Memorandum at *15. The probable
'
cause standard looks to the facts of which the officer
was aware . . Plaintiff does not contradict that she was
asked to leave several times, and she attached to her
complaint the report that shows she and her husband are
permanently banned from Mo's. Plaintiff's 4th and 14th
Amendment claim s fail as a matter of law , and should be
dismissed x3
Plaintiff argues that her claims for unreasonable seizure are
not subject
dismissal because she has alleged that 'Dowdy
'
arrested E
her) without anv Drobable cause whatsoever as
w as
waiting to get into the vehicle to leave the premises .'l Asserting
'4
she has alleged that she nleft when asked and never returned
to Mo 's Placez'1s plaintiff argues that her allegations are capable
'
of show ing that she
l
zt...
continued)
night that shows the officers had probab le cause . Therefore based
on her own complaint and her own attachments, the motion to dismiss
should be granted.')
'
H Defendants' M SJ, Docket Entry No .
l opposition to Defendants' Motion
4
13, p. 3 % 6 (
emphasis in original).
1 jd
5
at
Dismiss, Docket Entry
was not trespassing as she was waiting for her husband to
pick her up at the entrance to Mo's Place as he was
getting the fam ily truck.
It is quite obvious that
Defendant Dowdy's unconstitutional actions occurred while
Plaintiff was waiting for her husband to bring the truck
to the entrancex 6
Plaintiff argues that Dowdy arrested her for simply saying nshe did
nothing wrong,' 7 and that defendants misstate the allegations by
/'
by arguing that she failed
she inquired
what
she
leave when the alleged facts are that
did wrong nwhile
she was leaving .' '
/l
Plaintiff argues that Judge Werlein's Memorandum Opinion and Order
in Bradshaw
inapposite because ul
tqhe facts
this case are
substantially different .'lg Plaintiff argues the Bradshaw p laintiff
'
was initially given a crim inal trespass warning and
subsequently returned a few months later . Because of his
returning after previously E
having been) given a criminal
trespass warning,
the
officer
involved
was
granted
qualified immunityx o
Moreover, plaintiff
disputes
defendants'
contention
that
the
owner 's son banned her from returning to Mo 's Place .2
l
The Texas criminal trespass statute, Texas Penal Code 5 30.05,
states in pertinent part that
A person comm its an offense
the person enters or remains on or in property of another
without effective consent and the person :
1 (d .
6j
g
l yd .
7
l (d
8j
19Id
2 Id
O
2 d
11
at
received notice
to depart but failed to do so .' uNotice' is defined to include an
'
'
oral communication nby the owner or someone with apparent authority
to act for the owner.' Id . 5 3O.05( (
'
b) 2). 'An offense under this
'
section
a Class B misdemeanor
Id.
Defendants argue that probable cause
arrest plaintiff existed
because when Dowdy told plaintiff to get
going to jail'
'
30.05 (
d).
her truck, nor you're
E
pqlaintiff continued to argue with E
him)
her own admission ./z
'z
she responded
to Dowdy's directive to get into her truck by asking why, and that
she protested she hadn't done anything wrong , plaintiff does
allege - and defendants do not argue - that plaintiff ever refused
to leave the premises,
that plaintiff was not in the process
complying w ith the directive
arrested
leave
prem ises when Dowdy
Nor have defendants cited any authority holding that
questioning
directive
constitutes an offense .
leave
while,
fact,
leaving
The Bradshaw case cited by defendants
inapposite not only for the reasons argued by plaintiff, but also
because
involved a motion for summary judgment, not a motion to
dismiss.
Defendants' motion
dismiss plaintiff's claim
unreasonab le seizure against Dowdy will therefore be denied . Since
plaintiff fails to allege any facts capable of showing that Walker
participated
her
arrest,
defendant's
plaintiff's unreasonable seizure claim
motion
against Walker
granted .
H Defendants' Motion
Dismiss, Docket Entry No .
dism iss
Plaintiff's Claim s for Excessive Use of Force Acainst
-
-
Dowdv and Walker Are Not Subqect to Dismissal
Plaintiff alleges that Dowdy and Walker violated the Fourth
and Fourteenth Amendments by using excessive force against her .23
Defendants argue that these claims are subject
because 'minor, incidental injuries that occur
'
dismissal
connection with
the use of handcuffs to effectuate an arrest do not qive rise to
a constitutional claim for excessive force .' 4
'2
(
a) Applicable Law
To establish
claim for
of excessive force under the
Fourth and Fourteenth Amendments, plaintiff must allege facts
capable of showing that she suffered a seizure, and that she also
suffered
an injury;
which resulted directly and only from
a use of force that was clearly excessive to the need; and (
3) the
excessiveness
force was objectively unreasonable.
Flores v. Citv of Palacios, 381 F.3d 391, 396 (
5th
(
citing Graham, 109 S.
1871). ' Tlhe question
'E
See
2004)
whether
the totality of the circumstances justified' that use of force.
'
Tennessee v. Garner,
S.
1694,
(
1985).
Graham,
at 1865, the Supreme Court articulated three considerations
for courts to use when determ ining if a particular use of force was
M complaint, Docket Entry No .
M Defendants' Motion to Dismiss, Docket Entry
reasonable under the circumstances or excessive to the need . These
considerations - often referred to as the Graham factors - are :
the severity of the crime at issue;
posed an immediate threat
whether the suspect
police officers
civilians; and
whether the suspect was actively resisting arrest or attempting
to evade arrest by fleeing the scene .
Id . at 1872 .
Application of the Law to the Allegations
Defendants argue
claims are
subject to dismissal because
E
tlhe official report that g
pllaintiff attaches to her
own complaint shows she was intoxicated, fell, refused to
get up and then vom ited in the officer's car .
Her
injuries are her own fault.
She alternately told the
officers to shoot her and arrest her.
She refused
medical treatment but for the intervention of her
husband.
While
E
pqlaintiff clearly
disputes this
rendition , it is attached to the complaint , and the court
can consider it .25
Asserting
that
they
are
entitled
qualified
immunity
from
plaintiff's excessive force claims, and citing Ramirez v . Martinez,
F.3d 369,
2013), defendants argue that
(
pllaintiff must show that Walker and Dowdy DID NOT have
probable cause at the time E
pllaintiff was handcuffed and
placed in the sheriff's car, where she vomited . In fact,
Walker and Dowdy had clear know ledge of facts and
circumstances sufficient to conclude that g
pllaintiff had
comm itted an offense - trespassing .
In addition to her own factual basis in her
complaint , she attaches the report of that night that
M oefendants' Motion to Dism iss , Docket Entry
-
16-
shows the officers had probable cause . Therefore, based
on her own complaint and her own attachments, the motion
to dismiss should be granted. Because (
dlefendants had
probable cause, as her own complaint shows, they did not
violate her rights . The case should be dism issed with
prejudice.z
E
Plaintiff argues that the report was created by Walker in an
attempt
cover' up the actions
Defendant Dowdy.
has challenged numerous statements made
r
andl
the incident report as
u ntru e . ,27
z
'
With respect to the severity of her injuries, plaintiff argues
that nE
dlefendants attempt to convince this court that the injuries
sustained by the E
pqlaintiff were A
minor and incidental' when they
'
substantial injuries.'/z Although
/'
physical injury is not required
showing of significant
the context
an excessive
force claim , the Fifth Circuit does require plaintiffs asserting
such claims to have suffered nmore than a de minimis injury.'
'
Glenn v. Citv of Tvlerr 242 F.3d 307, 314 (
5th Cir. 2001). The
extent of the injury 'must be evaluated in the context in which the
'
force was deployed .' Id . (
'
citing Williams v. Bramer, 180 F.3d
703 (
5th Cir. 1999)).
Plaintiff alleges that as
actions,
2 (d
6j
at
2 yd
7
at
2 Id
8
result of Dowdy 's and Walker's
(shel suffered bruises, a black eye, recurring headaches,
lacerations (
permanent scar above right eye and right
wrist), abrasions, nerve ncrush' injury on right wrist,
'
neck pain , memory loss, arm stiffness, tendonitisr scabs,
inflammation
rheumatoid
nightmares,
in
joints, pustular psoriasis
arthritis
flare,
fibromyalgia
PTSD, stress, fear, emotional
flare,
flare,
damage,
depression and insomniax g
Whether these injuries are sufficient
excessive use
support claims
force also turns on whether the use of force that
caused these injuries was clearly excessive
need
objectively unreasonable. Because plaintiff also alleges that the
force about which she complains occurred after she had already been
arrested
and handcuffed, that
she
trespass, a non-violent Class
alleged facts do
herself,
these injuries, and
arrested
criminal
misdemeanor, and because the
suggest that plaintiff posed a threat
defendants,
arresting officers
was
others,
attempting
that she resisted the
flee ,
plaintiff suffered
as she alleges, she was arrested without
probable cause, her alleged injuries could plausibly support claims
excessive use of force .
Accordingly, defendants' motion to
dismiss the excessive use of force claims assert against Dowdy and
Walker will be denied .
29Id . at
S 23.
I
-
18-
Plaintiff's Claim for Judicial Decertion Acainst Walker
Is Subqect to Dismissal
Plaintiff
alleges
that
Walker
violated
her
right
substantive due process guaranteed by the Fourteenth Amendment by
fabricating facts in the Incident Report submitted to the Sheriff's
Department in an effort
Plaintiff alleges that
WALKER, knew or should have known that by presenting a
false incident report, would lead to the deprivation of
E
pllaintiff's civil rights. The E
dqefendants, like any
reasonable
person,
knew
or
should
have
known
that
(
pllaintiff had a constitutionally protected right not to
be lied about in an incident reportx l
Defendants argue that
claim
should
dism issed because
ug
pllaintiff was not ultimately indictedr' Mno charges were filedr'
'
'
and nl
tqhere
judicial deception,'3 and because ' tqhe
/z
'E
officers had probable cause based on her own complaint .
Her
complaint
and
shows
there
judicial
deception
constitutional violation .'3
'3
Individuals have
process right unot
deliberately fabricate evidence and use
have police
frame and bring false
charges against E
theml.' Cole v . Carson, 802 F.3d
'
2015).
Claims for judicial deception under 5 1983 are
M plaintiff's Complaint, Docket Entry
18-20 .
3lId . at 19 % 50.
H Defendants' Motion to Dism iss, Docket Entry No .
3 d . at
3I
-
19-
typically used
challenge
judicially issued
validity of a warrant or other
instrument based on allegations that law
enforcement agents submitted a false affidavit or report to the
issuing judicial officer. See Sherwood v. Mulvihill, 113 F.3d 396,
1997).
judicial deception claim
establish
plaintiffs must satisfy the two-part test developed by the Supreme
Court in Franks v. Delaware,
Franks and
2674, 2675-77 (
1978). Under
progeny the plaintiff must prove
affiant knowingly and deliberately, or with
for the truth , made false statements
that
reckless disregard
om issions that create
falsehood in applying for a warrant;
that such statements
or om issions are material, or necessary, to the finding of probable
cause to issue a warrant .
Franks, 98 S .
at 2684-85 .
lied
he prepared and filed with the Harris County Sheriff's Departmentx 4
However, since plaintiff alleges that she was arrested w ithout
warrant , that she has
been charged , and that the Incident
Report was falsified to justify Dowdy's and Walker's unreasonable
seizure
and
use
of excessive
force
against
her, plaintiff's
judicial deception claim is subject to dismissal because plaintiff
fails to allege any judicial deception and has therefore failed
state
claim for judicial deception.
Alternatively,
court
judicial deception is subject
M plaintiff's Complaint , Docket Entry
pp . 18-20 .
dismissal because
duplicates her claim s for unreasonable
seizure and excessive use of force . See Cambridce Toxicolocv Group
v. Exnicios, 495 F.3d 169,
(
5th
2007) (
recognizing that
district courts have discretion to dismiss duplicative claims).
Accordingly, defendants' motion to dism iss plaintiff's claim for
judicial deception will be granted.
Plaintiff's Claim Aqainst Harris Countv is Not Subn
'ect to
Dismissal
Plaintiff alleges that Harris County is liable under 42 U .S.C.
5 1983 for failing to train and supervise the individual defendants.
In Monell v . Department of Social Services of the Citv of New York,
98 S.
2018, 2022, 2035-36 (
1978), the Supreme Court held that
municipalities are npersons' subject
'
5 1983,
that municipalities
resrondeat superior basis,
suit under 42
held
cannot
liable
on
municipality cannot
held
liable simply because one of its employees violated a person's
federal rights. For a municipality to be held liable under 5 1983,
the municipality itself must cause the violation through
policies .
when execution of
government's policy
custom , whether made by its lawmakers or by those whose edicts
acts may fairly be said to represent official policy, inflicts the
injury that the government as an entity
5 1983.' Id . at 2037-38 .
/
responsible under
Plaintiff alleges that
Harris County r Texas has no policies in force to ensure
its officers do not violate the constitutional rights of
individuals when they are working a 2nd job in uniform
and under color of state law . A true and correct copy of
their policies and procedures are attached E
asq Exhibit
B and incorporated by reference as though fully pled
herein . There have been numerous instances where rights
have been violated by deputies of the Sheriff's
Department .3
s
Defendants argue that plaintiff's claims against Harris County
/f
should be dismissed because uthe officers had probable cause ./3
For the reasons stated
5 IV .B .1, above, the court has already
concluded that p laintiff has alleged facts capable of establishing
that the defendant officers
her for crim inal trespass.
not have probable cause to arrest
Accordinglyr defendants' motion
dismiss plaintiff's claims against Harris County will be denied .
V.
Conclu sions and Order
the reasons explained
above, Harris County's
Partial Motion to Dismiss, Docket Entry No .
GRANTED .
For the reasons explained in 5 IV .B .1, above, the defendants'
motion to dism iss p laintiff's claim s for unreasonable seizure
GRANTED as
Deputy Walker and DENIED as
Sergeant Dowdy .
For the reasons explained in 5 IV .B .2, above , the defendants'
motion to dismiss plaintiff's claims for excessive use of force is
DENIED .
M plaintiff's Complaint , Docket Entry No . 1, p . 14 %
M Defendants' Motion to Dismiss, Docket Entry
For the reasons explained in 5 IV . .3, above, the defendants'
B
motion to dismiss plaintiff's claim for judicial deception asserted
against Deputy Walker is GRANTED .
For the reasons explained in 5 IV .B .4, above, the defendants'
motion to dism iss the claim s asserted against Harris County, Texas,
is DENIED .
Accordingly, Defendants Harris County, Dowdy , and Walker's
Motion
Dismiss, Docket Entry
GRANTED IN PART
and
DENIED IN PART .
SIGHRD at Houston , Texas, on this the 20th day of July, 2018.
f
SIM LAKE
UN ITED STATES DISTRICT JUDGE
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