Huff v. Refugio County Sheriff's Department et al

Filing 29

MEMORANDUM AND ORDER denying in part and granting in part 23 Second MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM (Signed by Judge Gregg Costa) Parties notified.(ccarnew, 3)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
VICTORIA DIVISION
SAMUEL ROOSEVELT HUFF,
Plaintiff,
VS.
REFUGIO COUNTY SHERIFF'S
DEPARTMENT, et al,
Defendants.

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§ CIVIL ACTION NO. 6:13-CV-00032
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MEMORANDUM AND ORDER

Plaintiff Samuel Huff brings this lawsuit against the Refugio County
Sheriff’s Department, Refugio County, and two of its corrections officers, Ernest
Yanez and Cameron Payne. Huff alleges that he sustained serious injuries after
Yanez and Payne attacked him, unprovoked, while he was being detained in a
county holding cell.

Huff asserts federal and state law claims against the

Defendants, who in turn argue that Huff’s claims should be dismissed for failure to
state a claim, and further, that the doctrines of qualified and sovereign immunity
bar this suit. For the reasons explained below, the Court will dismiss all of Huff’s
claims except for his federal constitutional claim against Yanez and Payne in their
individual capacities.

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I.

Background1
Huff was arrested by the City of Refugio Police Department on March 18,

2011. He was then placed in a holding cell, which was under the control of the
Refugio County Sheriff’s Department. Docket Entry No. 20 ¶ 8. Two corrections
officers, Yanez and Payne, removed his handcuffs and requested that he take off
his shoes. Huff alleges that though he did not provoke the officers, and in fact
complied with their request, Yanez and Payne repeatedly slammed him into the
holding cell’s cement floor and walls. They then violently jerked his arm behind
his back, which resulted in broken bones. Docket Entry No. 20 ¶ 8. After the
incident, Huff alleges that the officers refused to provide Huff with medical
attention for a significant period of time. Docket Entry No. 20 ¶ 8.
Huff brings section 1983 claims against Yanez and Payne in their individual
and official capacities for use of excessive force. He also brings section 1983
claims against the Sheriff’s Department and the County for maintaining a policy of
using excessive force and for failing to provide employees with proper supervision
and training. Finally, he brings state law assault and battery claims against Yanez
and Payne.
After Huff filed suit, the Defendants moved to dismiss Huff’s claims.
Docket Entry No. 17. The Court allowed Huff to replead rather than ruling on the
1

The background section is based on allegations in Plaintiff’s First Amended Complaint, see
Docket Entry No. 20, which the Court must assume to be true at this stage.
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Defendants’ first motion to dismiss. After Huff filed an amended complaint, see
Docket Entry No. 20, the Defendants once again moved to dismiss. Docket Entry
No. 23. In their renewed motion to dismiss, they assert immunity defenses and
argue that Huff has otherwise failed to adequately plead his claims.
II.

Rule 12 Standard of Review
Federal Rule of Civil Procedure 12(b)(6) allows dismissal if a plaintiff fails

to state a claim upon which relief may be granted. Fed. R. Civ. P. 12(b)(6). In
evaluating a Rule 12(b)(6) motion, the “court accepts ‘all well-pleaded facts as
true, viewing them in the light most favorable to the plaintiff.’” Martin K. Eby
Constr. Co. v. Dallas Area Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004)
(quoting Jones v. Greninger, 188 F.3d 322, 324 (5th Cir. 1999)). The court does
not look beyond the face of the pleadings to determine whether the plaintiff has
stated a claim. Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir. 1999). To survive
a motion to dismiss, a claim for relief must be “plausible on its face.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007).
III.

Claims Against the Individual Defendants
1. The Federal Excessive Force Claim
Huff attempts to bring excessive force claims against Yanez and Payne in

both their individual and official capacities. As a preliminary matter, “claims
against an individual acting in his official capacity are properly dismissed as
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redundant when the entity with which the individual is associated is also a
defendant.” Gaalla v. Citizens Med. Ctr., 2012 WL 2870701, at *4 (S.D. Tex. July
10, 2012) (collecting cases). Because Refugio County is also a defendant in this
lawsuit, Huff’s claim against Yanez and Payne in their official capacities will be
dismissed.
For the excessive force claim brought against Yanez and Payne in their
individual capacities, Huff invokes the Fourth, Fifth, Eighth and Fourteenth
Amendments. Defendants correctly point out that most of these provisions do not
apply to a pretrial detainee such as Huff. The Fourth Amendment applies to force
used during an arrest, see Valencia v. Wiggins, 981 F.2d 1440, 1443–44 (5th Cir.
1993) (“We do not believe that the Fourth Amendment provides an appropriate
constitutional basis for protecting against deliberate official uses of force occurring
. . . after the incidents of arrest are completed) (emphasis in original), and the
Eighth applies to force used against those who are serving time for a conviction,
see Whitley v. Albers, 475 U.S. 312, 327 (1986) (noting that the Eighth
Amendment serves as “the primary source of substantive protection to convicted
prisoners”).

The Fourteenth Amendment’s Due Process Clause provides the

proper framework for considering claims involving excessive force against pretrial
detainees. Valencia, 981 F.2d at 1443, 1445–46; see also Bell v. Wolfish, 441 U.S.
520, 535 (1979) (“[U]nder the Due Process Clause, a detainee may not be punished
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prior to an adjudication of guilt in accordance with due process of law.”) 2
When the excessive force claim is considered under the proper rubric of the
Fourteenth Amendment, Yanez and Payne raise an additional challenge: that the
complaint “does not set forth any specific actions by Defendants Yanez and
Payne.” Docket Entry No. 23 ¶ 15. This argument relies on the “heightened
pleading standard” in which “plaintiffs suing government officials in their
individual capacities must allege specific conduct giving rise to a constitutional
violation.” See Anderson v. Pasadena Indep. Sch. Dist., 184 F.3d 439, 443 (5th
Cir. 1999). Defendants claim Huff has not met this challenge because he has not
specified which of the two jailers “violently and repeatedly slammed [] Plaintiff
into the cement wall” and which one “jerked his arm behind his back.” Docket
Entry No. 20 ¶ 8.
Defendants take the principle requiring a plaintiff to identify individual
conduct attributable to each public official too far. That rule typically results in
dismissals when individual policymakers are named as defendants without any
allegation about their specific role in formulating the challenged policy. See, e.g.,
Stevens v. Hayes, 2012 WL 2572790, at *13 (W.D. Tex. July 2, 2012) (dismissing
a failure to train claim against federal policymakers because the plaintiffs provided
“no facts concerning what the defendants’ actions or lack of actions even were.”);
2

Huff’s invocation of the Fifth Amendment fails because its Due Process Clause applies only to
the federal government.
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Woods v. Director’s Review Comm., 2012 WL 1098365, at *3 (S.D. Tex. Mar. 30,
2012) (dismissing a section 1983 claim against a correctional institutions director
where the plaintiff introduced no evidence of “any overt act . . . or policy
implemented” by the correctional director that resulted in a constitutional
deprivation); McGiffin v. Valdez, 2008 WL 4372719, at *3 (S.D. Tex. Sept. 19,
2008) (dismissing a claim against a county official with no personal involvement
in the alleged unconstitutional conditions of the plaintiff’s jail cell).
Here we are not dealing with allegations against policymakers, but
allegations that two individuals had direct involvement in applying excessive force.
The allegation is that both were present in the cell when the force was applied.
This is more than sufficient at the pleading stage, even under the heightened
standard applied to public officials sued in their individual capacity. See, e.g.,
Shaw v. Hardberger, 2007 WL 1174202, at *4–5 (W.D. Tex. Apr. 19, 2007)
(denying two of the six defendant officers’ qualified immunity claims where the
two officers were alleged to be present at the altercation); see also Bias v. Lundy,
188 F. App’x. 248, 249–50 (5th Cir. 2006) (vacating the grant of qualified
immunity as to two officers who were alleged to have attacked the plaintiff, but
affirming as to four officers where the plaintiff presented no evidence of their
involvement in the use of excessive force). Discovery can flesh out the remaining
detail of which officer slammed Huff to the floor and which officer brought his
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arm behind his back. See Arnold v. Moore, 980 F. Supp. 28, 37 (D.D.C. 1997)
(denying a motion to dismiss where the plaintiff sued unnamed corrections officers
for an alleged beating).
The Fourteenth Amendment excessive force claim brought against Yanez
and Payne in their individual capacities—a claim that, if proven, demonstrates a
violation of clearly established rights3—therefore survives the Rule 12 stage.
2. The State Law Claims
Huff also brings state law assault and battery claims against Yanez and
Payne. Texas law, however, treats such claims as being directed against Refugio
County, the governmental entity that employs them, rather than against the
government employees individually. The state, therefore, can shield itself from
liability through the sovereign immunity doctrine. And because the County has not
waived its sovereign immunity for intentional torts like assault and battery, Huff’s
state law claims must be dismissed.
The common law doctrine of sovereign immunity protects states and their
political subdivisions from suits for money damages. Reata Constr. Corp. v. City

3

See, e.g., Valencia, 981 F.2d at 1447 (noting “no difficulty” finding a constitutional violation
had occurred when a jail official hit a detainee’s head against jail bars and applied a chokehold);
Paige v. Sauseda, 2011 WL 8184443, at *5 (N.D. Tex. July 7, 2011) (denying a claim of
qualified immunity when prison officers punched and kicked the plaintiff while he was on the
floor in hand restraints); Brown v. Lippard, 472 F.3d 384, 386 (5th Cir. 2006) (affirming the
denial of qualified immunity when a correctional officer struck a prisoner several times in the
head, back and shoulders, and tried to ratchet the prisoner’s handcuffed arms up and over his
head).
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of Dallas, 197 S.W.3d 371, 374 (Tex. 2006) (citations omitted). The Texas Tort
Claims Act provides a limited waiver of immunity for certain suits against
governmental entities. Tex. Civ. Prac. & Rem. Code Ann. § 101.021; Reata
Constr. Corp., 197 S.W.3d at 373–74.

But the Act specifically preserves

immunity against intentional torts, such as assault and battery. Tex. Civ. Prac. &
Rem. Code § 101.057(2) (immunity applies to claims “arising out of assault,
battery . . . or any other intentional tort”).
The Texas Tort Claims Act also has the effect of extending sovereign
immunity to government employees. Subsection 101.106(f) of the Act states:
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 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.
Tex. Civ. Prac. & Rem. Code Ann. § 101.106(f). Thus, for subsection 101.106(f)
to apply to a suit against a government employee, two conditions must be met:
(1) the conduct at issue must have been within the general scope of the defendant’s
employment; and (2) the suit could have been brought “under this chapter” against
the governmental unit. Id. The Texas Supreme Court recently construed the
second condition to cover any “claim [] in tort and not under another statute that
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independently waives immunity.” Franka v. Velasquez, 332 S.W.3d 367, 381
(Tex. 2011); see also Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653,
658 (Tex. 2008) (“[W]e have never interpreted ‘under this chapter’ to only
encompass tort claims for which the Tort Claims Act waives immunity.”).
Given this broad construction, Huff’s claims “could have been brought”
against Refugio County under the Tort Claims Act even though the Act does not
waive the County’s immunity from such claims. Franka, 332 S.W.3d at 381.
Furthermore, Yanez and Payne were both acting within the general scope of their
employment when they were in Huff’s cell. See Herrera v. Aguilar, 2013 WL
4784125, at *3 (W.D. Tex. Sept. 6, 2013) (“If the conduct is the kind the employee
is employed to perform, occurs substantially within the authorized time and space
limits, and is actuated, at least in part, by a purpose to serve the employer[,] such
action is within the scope even if the employee . . . uses forbidden means of
accomplishing results.”) (citations and internal quotations omitted). Thus, Yanez
and Payne are entitled to dismissal of Huff’s assault and battery claims.
IV.

Claims Against Governmental Entities
Huff claims that the Refugio County Sheriff’s Department and Refugio

County are liable for Huff’s injuries because the County adopted a “turn a blind
eye” policy to the use of excessive force and because the County failed to
adequately train Yanez and Payne. These claims fail for the reasons discussed
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below.
1. Refugio County Sheriff’s Department
First, the Refugio County Sheriff’s Department is not a legal entity separate
from Refugio County, and therefore, it cannot be sued. “In order for a plaintiff to
sue a city [or county] department, it must enjoy a separate legal existence.” Darby
v. Pasadena Police Dep’t, 939 F.2d 311, 313 (5th Cir. 1991) (quotations omitted);
see also Jacobs v. Port Neches Police Dep’t., 915 F. Supp. 842, 844 (E.D. Tex.
1996) (“In Texas, county sheriff’s and police departments generally are not legal
entities capable of being sued, absent express action by the superior corporation
(the county, in the case of the sheriff’s department) to grant the servient agency
with jural authority.” (citation omitted)). Huff concedes that the Refugio County
Sheriff’s Department is not a legal entity separate from the County. Docket Entry
No. 26 ¶ 10. Therefore, his claim against it will be dismissed.
2. Refugio County
While Refugio County has the capacity to be sued, Huff must still meet the
standards required to establish municipal liability under section 1983.
“[M]unicipal liability under Section 1983 requires proof of three elements: [1] a
policymaker; [2] an official policy; and [3] a violation of constitutional rights
whose ‘moving force’ is the policy or custom.” Piotrowski v. City of Houston, 237
F.3d 567, 578 (5th Cir. 2001). “A local government entity may be sued if it is
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alleged to have caused a constitutional tort through a policy statement, ordinance,
regulation, or decision officially adopted and promulgated by that body’s officers.”
Zarnow v. City of Wichita Falls, Tex., 614 F.3d 161, 166 (5th Cir. 2010)
(quotations omitted). Municipals may also be liable “where the constitutional
deprivation is pursuant to a governmental custom, even if such custom has not
received formal approval.” Id. (quoting Monell v. New York City Dep’t of Soc.
Servs., 436 U.S. 658, 690–91 (1978)). “[I]t is nearly impossible to impute lax
disciplinary policy to [a municipal government] without showing a pattern of
abuses that transcends the error made in a single case.” Piotrowski, 237 F.3d at
582.
a. “Turn a Blind Eye” Policy
Though Huff generally contends that the County “turned a blind eye” to the
use of excessive force by its employees, and that this constituted a County policy
or custom, he fails to allege any facts to support this claim. He does not describe,
for instance, a single other incident in which the County turned a blind eye to its
officers using excessive force.

This dearth of prior, similar incidents almost

invariably results in dismissal. Compare, e.g., McCoy v. Lowndes Cnty., Miss.,
2009 WL 2986324, at *7–8 (N.D. Miss. Sept. 15, 2009) (dismissing a policy of
excessive force claim when the plaintiffs provided no evidence of any other claims
of excessive force brought against county officials); Allen v. Burnett, 2013 WL
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2151218, at *3 (N.D. Tex. May 17, 2013) (dismissing a municipal liability claim
when the plaintiff only alleged one improper police action—which was committed
against him—in arguing that the police department had adopted an unconstitutional
policy or custom), with Oporto v. City of El Paso, 2010 WL 3503457, at *5 (W.D.
Tex. Sept. 2, 2010) (denying a motion to dismiss a policy of excessive force claim
when the plaintiff alleged thirty-two prior incidents of excessive deadly force);
Barr v. City of San Antonio, 2006 WL 2322861, at *4 (W.D. Tex. July 25, 2006)
(denying a motion to dismiss a policy of excessive force claim where the plaintiff
alleged four similar lawsuits naming the defendant, even though the plaintiff did
not provide the court with a list of those cases). Huff argues that the County
established a policy of excessive force by failing to reprimand Yanez and Payne
after the incident. Docket Entry No. 20 ¶ 21. This argument might be effective to
establish a future “turn a blind eye” policy, but it does not establish a custom or
policy in existence at the time Huff was in the County’s custody. See Monell, 436
U.S. at 690–91 (requiring that the constitutional deprivation have occurred
pursuant to a governmental custom).
Unlike his claims against Yanez and Payne, his claim against the County
contains no more than “[t]hreadbare recitals of the elements of a cause of action.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Without even “minimal factual
allegations” identifying a Refugio County policy that caused the alleged excessive
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force, the Court will dismiss Huff’s section 1983 claim against the County. See
Thomas v. City of Galveston, Tex., 800 F. Supp. 2d 826, 842–43 (S.D. Tex. 2011).
b. Failure to Train or Supervise
Huff also alleges that the County failed to properly train its officers. To
succeed on that claim, Huff must show (1) that the County had inadequate training
procedures; (2) that inadequate training caused the officers to injure him; and (3)
that the municipal policymakers were deliberately indifferent when they adopted
the training policy. Pineda v. City of Houston, 291 F.3d 325, 331–32 (5th Cir.
2002). “‘[D]eliberate indifference’ is a stringent standard of fault, requiring proof
that a municipal actor disregarded a known or obvious consequence of his action.”
Porter v. Epps, 659 F.3d 440, 446–47 (5th Cir. 2011) (quoting Connick v.
Thompson, 131 S.Ct. 1350, 1360 (2011)). “A pattern of similar constitutional
violations by untrained employees is ordinarily necessary to demonstrate deliberate
indifference.” Id. at 447 (internal quotation marks omitted).4
Huff’s failure to train argument fails for the same reasons his “turn a blind
eye” argument does: it restates the basic elements of a failure to train claim without
providing any factual allegations of prior “excessive force” problems that would
give the County a reason to think its training was deficient. His sole allegation is
4

The Court notes that Huff’s reliance on the “single incident exception” to this rule, which states
that a single incident can show deliberate indifference, is unavailing. See Valle v. City of
Houston, 613 F.3d 536, 542 (5th Cir. 2010). That exception only applies when “the municipal
actor is a final policymaker.” Id. As a county policymaker was not directly involved in the
alleged excessive force in this case, that doctrine does not help Huff.
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that the County failed to instruct its officers that they could not slam non-resisting
individuals into cement walls and floors and violently jerk an individual’s arms
behind his back. Docket Entry No. 20 ¶ 24. Failure to train claims, like excessive
force “policy” claims, generally require that plaintiffs show a pattern of prior
misbehavior by untrained employees. “[W]ithout notice that a course of training is
deficient in a particular respect, decisionmakers can hardly be said to have
deliberately chosen a training program that will cause violations of constitutional
rights.” Epps, 659 F.3d at 447 (internal quotations omitted); see also Valle, 613
F.3d at 548 (finding no deliberate indifference in failure to train claim where the
plaintiff did not allege any prior specific instances of excessive force or official
awareness of prior excessive force); Frahm v. Refugio Cnty., Tex., 2012 WL
1805329, at *5 (S.D. Tex. May 16, 2012) (dismissing a failure to train claim for
failing “to identify a single individual in the County’s custody beside Frahm who
was allegedly denied proper medical treatment by an untrained employee”).
Standing alone, without any allegations of similar violations by other untrained
corrections officers, Huff’s failure to train allegation is insufficient to withstand a
Rule 12(b)(6) motion.
V.

Conclusion
For the foregoing reasons, Defendants’ Motion to Dismiss Plaintiff’s First

Amended Complaint (Docket Entry No. 23) is DENIED IN PART and
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GRANTED IN PART.

Huff’s section 1983 claim based on the Fourteenth

Amendment against Ernest Yanez and Cameron Payne in their individual
capacities will go forward. Huff’s section 1983 claims against Yanez and Payne in
their official capacities, the Refugio County Sheriff’s Department, and Refugio
County, as well as his state law assault and battery claims against Yanez and
Payne, are DISMISSED.

SIGNED this 9th day of October, 2013.

___________________________________
Gregg Costa
United States District Judge

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