Gyves v. City Of Houston
Filing
21
MEMORANDUM OPINION AND ORDER granting 14 MOTION for Summary Judgment (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)
Case 4:18-cv-00891 Document 21 Filed in TXSD on 10/30/18 Page 1 of 12
United States District Court
Southern District of Texas
ENTERED
October 30, 2018
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
MARK GYVES,
§
§
§
§
§
§
§
§
§
Plaintiff,
v.
CITY OF HOUSTON,
Defendant.
David J. Bradley, Clerk
CIVIL ACTION NO. H-18-0891
MEMORANDUM OPINION AND ORDER
Plaintiff Mark Gyves ("Plaintiff" or "Gyves") sued Defendant
the
City
of
Houston
("Defendant"
or
violations of his constitutional rights.
"the
City")
for
alleged
Pending before the court
is the City of Houston's Motion for Summary Judgment ("the City's
MSJ")
(Docket Entry No. 14) .
For the reasons stated below,
the
City of Houston's Motion for Summary Judgment will be granted.
I.
Factual Backqround 1
Plaintiff's claims arise from an incident that occurred at
Houston's George Bush Intercontinental Airport
( "IAH") .
IAH is
managed by the Houston Airport System ("HAS"), and pilots who fly
1
See Plaintiff's Verified Amended Complaint for Declaratory
and Injunctive Relief and Application for Temporary Restraining
Order and Preliminary Injunction ("Plaintiff's Amended Complaint"),
Docket Entry No. 13, pp. 3-7; the City's MSJ, Docket Entry No. 14,
pp. 5-7; Plaintiff's Response to Defendant's Motion for Summary
Judgment ("Plaintiff's Response to the City's MSJ"), Docket Entry
No. 18, pp. 3-7.
Case 4:18-cv-00891 Document 21 Filed in TXSD on 10/30/18 Page 2 of 12
in and out
of
IAH are
subject
to
HAS
rules
and
regulations.
Plaintiff is a commercial pilot who flies aircraft for Republic
Airlines.
On or about December 18,
aircraft that landed at IAH.
2017,
Plaintiff piloted an
After the aircraft's arrival,
and
after the passengers and some crew members had deplaned, Plaintiff
sought to exit the aircraft in order to reach the restrooms in the
terminal.
Plaintiff was unable to reach the terminal through the
jetway because the entrance to the terminal had been sealed for
security reasons.
Instead, Plaintiff exited the jetway through a
sealed emergency exit door by activating its emergency release
(called
the
"blue
pull
station"),
which
admonition "Life Safety Emergency Only."
was
marked
with
the
The blue pull station is
located inside the jetway and allows for emergency entry into the
terminal.
United Airlines had posted written instructions on the
jetway door advising crew members on what to do in the event of an
emergency requiring exit from the jetway.
The posted instructions
did not direct crew members to activate the blue pull station.
When Plaintiff activated the blue pull station and used the
emergency exit to enter the terminal, HAS Operations was notified
of
a
potential
security
breach
at
the
gate.
HAS
Operations
personnel members, including Robert Losack ( "Losack"), responded to
the security breach and began to conduct an investigation.
When Plaintiff
returned to the gate about an hour later,
Losack confronted Plaintiff about the security breach.
refused to cooperate with Losack' s
-2-
Plaintiff
investigation or answer any
Case 4:18-cv-00891 Document 21 Filed in TXSD on 10/30/18 Page 3 of 12
questions without the presence of counsel.
About a month later,
Plaintiff received a Notice of Violation ("NOV") from HAS stating
that he had violated HAS Operating Instruction Rule 41.
Rule 41
provides that it is a Class II violation to "[f]ail[] or refuse[]
to fully, completely, timely and truthfully cooperate -- including
appearing when and at the place designated, with an investigation,
audit or a proceeding by or instituted by or flowing from the acts
of any Division of HAS." 2
Class II violations require permanent
loss of ID badges and access rights to all HAS airports. 3
Plaintiff contested the NOV.
On February 20, 2018, Plaintiff
participated in a hearing on the NOV before an adjudication hearing
officer with the Houston municipal court system. 4
represented
by
counsel
and
given
evidence in response to the NOV.
the
Plaintiff was
opportunity
to
present
After hearing evidence presented
by both sides, the adjudication hearing officer sustained the NOV
and found that Plaintiff violated HAS Rule 41.
Plaintiff's Amended
Complaint alleges that in banning him from all Houston airports,
HAS
violated
his
constitutional
rights
under
the
Eighth
and
Fourteenth Amendments and that the City is liable for HAS's conduct
2
See Operating Instruction: Tenant Violations
Offenses,
Charging Instrument,
Due Process Provisions,
Exhibit B to
Plaintiff's Amended Complaint, Docket Entry No. 13-2, p. 23.
4
See Municipal Court Hearing Ruling on NOV #10613, Exhibit A
to Plaintiff's Amended Complaint, Docket Entry No. 13-1.
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Case 4:18-cv-00891 Document 21 Filed in TXSD on 10/30/18 Page 4 of 12
under United States Code
§
1983.
Plaintiff also seeks injunctive
and declaratory relief.
II.
Standard of Review
Summary judgment is appropriate if the movant establishes that
there is no genuine dispute about any material fact and the movant
is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(a).
Disputes about material facts are genuine "if the evidence is such
that a reasonable jury could return a verdict for the nonmoving
party."
Anderson v.
Liberty Lobby,
Inc.,
106 S.
Ct.
2505,
2510
(1986).
The moving party is entitled to judgment as a matter of
law if "the nonmoving party has failed to make a sufficient showing
on an essential element of her case with respect to which she has
the burden of proof."
Celotex Corp. v. Catrett, 106 S. Ct. 2548,
2552 (1986).
A party moving for summary judgment "must 'demonstrate the
absence of a genuine issue of material fact,' but need not negate
the elements of the nonmovant' s case."
37 F.3d 1069, 1075 (5th Cir. 1994)
Celotex, 106 S. Ct. at 2553).
Little v. Liquid Air Corp.,
(en bane)
(per curiam)
(quoting
"If the moving party fails to meet
this initial burden, the motion must be denied, regardless of the
nonmovant' s response."
Id.
If the moving party meets this burden,
Rule 56(c) requires the nonmovant to go beyond the pleadings and
show
by
affidavits,
admissions on file,
depositions,
answers
to
interrogatories,
or other admissible evidence that specific
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Case 4:18-cv-00891 Document 21 Filed in TXSD on 10/30/18 Page 5 of 12
facts exist over which there is a genuine issue for trial.
Id.
The nonmovant "must do more than simply show that there is some
metaphysical doubt as to the material facts."
Matsushita Electric
Industrial Co., Ltd. v. Zenith Radio Corp., 106 S. Ct. 1348, 1356
(1986).
In reviewing the evidence "the court must draw all reasonable
inferences in favor of the nonmoving party,
credibility determinations
or weigh
Sanderson Plumbing Products,
the
and it may not make
evidence."
Inc., 120 S. Ct. 2097,
Reeves
2110
v.
(2000).
The court resolves factual controversies in favor of the nonmovant,
"but only when there is an actual controversy, that is, when both
parties have submitted evidence of contradictory facts."
Little,
37 F.3d at 1075.
III.
To state a claim under
§
Analysis
1983 a plaintiff must
(1) allege a
violation of a right secured by the Constitution or laws of the
United States and (2) demonstrate that the alleged deprivation was
committed by a person acting under color of state law.
§
1983.
under
§
42 U.S.C.
A local government entity (like a city) may be held liable
1983 for constitutional violations committed pursuant to a
governmental policy or custom.
Monell v.
Department of Social
Services of City of New York, 98 S. Ct. 2018, 2035-038 (1978).
impose
liability on a
municipality,
the plaintiff
To
must prove:
(1) a violation of a recognized, constitutionally protected right,
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Case 4:18-cv-00891 Document 21 Filed in TXSD on 10/30/18 Page 6 of 12
resulting from (2) a municipal policy or custom,
official policymaker,
implementation,
that
(4)
(3) created by an
through deliberately indifferent
is the "moving force" of the alleged injury.
(5)
Id. at 2037-038.
The City argues that it is entitled to summary judgment on
Plaintiff's claims for three reasons:
First, Plaintiff's substan-
tive due process rights under the Fourteenth Amendment were not
violated.
fines
Second,
under
regardless
violated,
the
of
Plaintiff's right to be free
Eighth
whether
Plaintiff
Amendment
was
Plaintiff's
cannot
hold
not
from excessive
violated.
constitutional
the
City
liable
Third,
rights
under
§
were
1983
because Plaintiff has failed to articulate a claim for municipal
liability under Monell.
failed
to
meet
the
Defendant also argues that Plaintiff has
requirements
for
granting
declaratory
or
injunctive relief.
A.
Fourteenth Amendment Substantive Due Process Claim
Plaintiff alleges that the City's conduct violated his right
to
substantive
"Substantive
due
due
process
process
under
'bars
the
certain
Fourteenth
arbitrary,
Amendment.
wrongful
government actions regardless of the fairness of the procedures
used to implement them.'"
(5th Cir. 2010).
Hamilton v. Foti, 372 F. App'x 480, 485
"'The touchstone of due process is protection of
the individual against arbitrary action of government.'"
Sacramento v. Lewis, 118 S. Ct. 1708, 1716 (1998)
-6-
County of
(citing Wolff v.
Case 4:18-cv-00891 Document 21 Filed in TXSD on 10/30/18 Page 7 of 12
McDonnell,
94 S.
Ct.
2963,
2976
(1974)).
A plaintiff bringing a
substantive due process claim has the burden of proving (1) that the
defendant deprived him of a constitutionally protected right and (2)
that
the
government action bears
legitimate government interest.
Agriculture
and
Forestry,
819
denied, 137 S. Ct. 305 (2016).
no rational
relationship to a
Cripps v. Louisiana Department of
F.3d
221,
232
(5th
Cir.),
cert.
Plaintiff has not presented evidence
sufficient to create a fact issue on either element.
Plaintiff's arguments fail to state a claim for a substantive
due process violation.
Plaintiff argues that in denying his access
rights to all HAS airports, the City has infringed on his liberty
interest
in
employment,
Constitution.
"While
which
property
is
protected
interests
by
are
the
Texas
protected
by
procedural due process even though the interest is derived from
state law rather than the [United States] Constitution, substantive
due
process
rights
Constitution."
are
only
by
the
[United
States]
Regents of the University of Michigan v. Ewing, 106
S. Ct. 507, 515 (1985)
omitted) .
created
(J. Powell, concurring)
(internal citations
The right to liberty under the Fourteenth Amendment is
not unlimited-- "[t]here is no absolute freedom to do as one wills
or to contract as one chooses . . . . Liberty implies the absence of
arbitrary restraint, not immunity from reasonable regulations and
prohibitions imposed in the
Coast Hotel Co. v.
Parrish,
interests of
57 S.
quotations omitted)
-7-
Ct.
578,
the community."
582
(1937)
(internal
Case 4:18-cv-00891 Document 21 Filed in TXSD on 10/30/18 Page 8 of 12
In license suspension cases (like those cited by Plaintiff),
because
the
continued
possession
of
the
license
may
"become
essential to the pursuit of a livelihood," suspension of a license
involves state action sufficient to trigger the protections of
procedural due process.
(1971) .
Bell v.
In Plaintiff's Response
Burson,
to
the
91
S.
Ct.
1586,
City's MSJ,
1589
Plaintiff
complains that the City failed to give him a meaningful hearing,
but Plaintiff failed to plead claims in his Amended Complaint to
vindicate any violation of his right to procedural due process. 5
Plaintiff
violation.
fails
to
establish
His amended complaint
a
substantive
fails
due
process
to articulate a
right
protected by the United States Constitution that the City violated
in denying his access to HAS airports.
Violation of a state law
property right does not necessarily give rise to a substantive due
process claim.
Ewing, 106 S. Ct. at 515
5
(J. Powell, concurring)
The "Violation of the Due Process Clause of Fourteenth
Amendment" count in Plaintiff's Original Complaint sounded in
procedural
due
process,
but
Plaintiff's Amended Complaint
eliminated references to Plaintiff's opportunity to be heard and to
appeal. Compare Plaintiff's Original Verified Complaint for
Declaratory and Injunctive Relief and Application for Temporary
Restraining Order and Preliminary Injunction, Docket Entry No. 1,
pp. 7-9, with Plaintiff's Amended Complaint, Docket Entry No. 13,
pp. 7-8.
Even if Plaintiff had alleged a procedural due process
violation, there is no evidence that procedural due process was
insufficient.
See the City's MSJ, Docket Entry No. 14, pp. 6-7.
Procedural due process requires notice and an opportunity to be
heard after (or before) a property right is taken away. Cleveland
Board of Education v. Loudermill, 105 S. Ct. 1497, 1495-496 (1985).
Plaintiff was given notice and a hearing at which Plaintiff
appeared with counsel before a neutral decision maker and was given
the opportunity to present evidence to contest the violation. See
id.
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Case 4:18-cv-00891 Document 21 Filed in TXSD on 10/30/18 Page 9 of 12
("Even if one assumes the existence of a property right, however,
not every such right is entitled to the protection of substantive
due process.").
Plaintiff fails to cite to any right protected by
the United States Constitution that was violated by the City in
barring Plaintiff's access to HAS airports.
Plaintiff has also failed to present evidence sufficient to
raise a genuine issue of material fact as to whether Rule 41 lacks
a
rational
relationship
to
a
legitimate
government
interest.
Plaintiff's arguments that loss of access to HAS airports was not
rationally related
to
HAS's
goals
in ensuring
the
safety and
efficiency of HAS airports are conclusory and unpersuasive.
The
City has a significant interest in preventing pilots who violate
airport safety rules from flying in and out of Houston's airports.
Plaintiff and Defendant agree that in analyzing a substantive
due process claim courts are to ask "whether the behavior of the
governmental officer is so egregious, so outrageous, that it may
fairly be said to shock the contemporary conscience."
F.3d at 232.
only
that
Plaintiff
Cripps, 819
In Plaintiff's Response to the City's MSJ, he argues
the
was
City's
denied
conduct
his
shocks
liberty
and
the
conscience
property
because
rights.
But
Plaintiff does not point to any extreme or outrageous conduct by an
officer
of
the
City
that
caused
a
deprivation
of
any
right
guaranteed by the United States Constitution or to any conduct by
an officer of the City that "shocks the conscience."
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Case 4:18-cv-00891 Document 21 Filed in TXSD on 10/30/18 Page 10 of 12
Due process prohibits laws so vague that a person of ordinary
intelligence
must
necessarily
guess
as
to
their
application.
Okpalobi v. Foster, 190 F.3d 337, 357 (5th Cir. 1999).
is
facially
vague
indeterminacy that
punishes."
when
"it
is
it precludes
plagued
with
A provision
such
fair notice of
hopeless
the conduct
it
City of El Cenizo, Texas v. Texas, 890 F.3d 164, 190
(5th Cir. 2018)
(citing Johnson v. United States, 135 S. Ct. 2551,
2556-58 (2015))
(internal quotations omitted)
provision
so
is
enforcement."
Id.
standardless
that
it
"A facially vague
invites
(internal quotations omitted) .
arbitrary
Plaintiff has
not presented evidence to create a fact issue as to whether the
word
"investigation"
"exacting standard." 6
Rule
41
as
used
in
Rule
41
is
vague
under
this
See id.
required
full,
timely,
complete,
and
truthful
participation by crew members in an "investigation" by any division
of
HAS.
Mr.
Losack,
a
HAS
personnel member,
questions about the security breach at the gate.
to answer Mr. Losack's questions.
asked Plaintiff
Plaintiff refused
A person of common intelligence
faced with Rule 41 would understand that failing to answer airport
personnel's questions about a suspected security breach constitutes
failure
to
cooperate
with
an
investigation.
The
fact
that
Plaintiff was not aware of the rule (or its consequences) does not
make Rule 41 unconstitutionally vague.
6
See Plaintiff's Response
No. 18, p. 12.
to the City's MSJ,
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Docket Entry
Case 4:18-cv-00891 Document 21 Filed in TXSD on 10/30/18 Page 11 of 12
For the reasons stated above, Plaintiff has failed to raise a
fact issue as to whether the City violated his due process rights
under the Fourteenth Amendment.
B.
Eighth Amendment Excessive Fines Claim
The Eighth Amendment provides that "excessive bail shall not
be required,
nor excessive fines imposed .
amend. VIII.
2805
Const.
The purpose of the Eighth Amendment is to limit the
government's power to punish.
2801,
U.S.
II
(1993).
Austin v. United States, 113 S. Ct.
"The notion of punishment,
as we commonly
understand it, cuts across the division between the civil and the
criminal law."
(1989).
United States v.
Halper,
109 S.
Ct.
1892,
1901
The Fifth Circuit has assumed without deciding that the
Eighth Amendment
applies
to
Amendment's
Process
Clause.
Due
the
states
through
Cripps,
819
the
Fourteenth
F.3d
at
234;
Vanderbilt Mortgage and Finance, Inc. v. Flores, 692 F.3d 358, 374
(5th Cir. 2012).
The Excessive Fines clause requires that fines
imposed are neither grossly disproportional to the gravity of the
offenses nor beyond those prescribed by statute.
Cripps, 819 F.3d
at 234-35.
The HAS rules provided that violations of Rule 41 are punished
with a lifetime ban from HAS airports.
Plaintiff's punishment was
exactly the punishment mandated by the rules, and therefore did not
go beyond what the rules authorize.
Plaintiff has also failed to
show that the ban from HAS airports is "grossly disproportional" to
the
gravity
of
the
alleged
offense.
-11-
HAS
is
responsible
for
Case 4:18-cv-00891 Document 21 Filed in TXSD on 10/30/18 Page 12 of 12
ensuring that Houston's airports are safe and secure.
HAS must be able
efficiently.
to
To do this,
investigate security breaches quickly and
Plaintiff,
in
refusing
to
cooperate
with
an
investigation, interfered with HAS's ability to ensure the safety
of Houston airports.
Although Plaintiff's punishment was punitive,
it also served the remedial purpose of ensuring that Plaintiff will
no
longer
interfere
with
HAS's
airport
safety
objectives.
Plaintiff has failed to raise a genuine dispute of material fact as
to whether the City violated his Eighth Amendment right to be free
from excessive fines.
IV.
Conclusion
For the reasons stated above, Plaintiff has failed to raise a
genuine dispute of material fact as to whether the City violated
his constitutional rights under either the Eighth or Fourteenth
Amendment.
Because Plaintiff has not shown that his constitutional
rights were violated, his claims under§ 1983 fail.
Houston's Motion for Summary Judgment
7
The City of
(Docket Entry No.
14)
is
therefore GRANTED.
SIGNED at Houston, Texas, on this 30th day of
SIM LAKE
UNITED STATES DISTRICT JUDGE
7
Because Defendant is entitled to summary judgment on
Plaintiff's constitutional claims under § 1983, Defendant is also
entitled to summary judgment on Plaintiff's claims for injunctive
and declaratory relief.
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