Black et al v. City Of Austin

Filing 10

REPORT AND RECOMMENDATIONS that the District Court GRANT the Citys 6 Motion to Dismiss, and DISMISS Plaintiffs 4 Amended Original Complaint, WITH PREJUDICE. Signed by Judge Dustin M. Howell. (klw)

Case 1:22-cv-00276-RP Document 10 Filed 01/17/23 Page 1 of 10

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
BRYAN BLACK, LEAH BLACK,
Plaintiffs
v.
CITY OF AUSTIN,
Defendant

§
§
§
§
§
§
§

No. 1:22-CV-00276-RP

REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
TO:

THE HONORABLE ROBERT PITMAN
UNITED STATES DISTRICT JUDGE
Before the Court is Defendant City of Austin’s Motion to Dismiss Plaintiffs’

Amended Original Complaint, Dkt. 6; and all related briefing. After reviewing these
filings and the relevant case law, the undersigned issues the following report and
recommendation, recommending that the District Court grant the City’s motion.
I.

BACKGROUND

The facts underlying claims in this case arise out of a 2019 domestic
disturbance between Plaintiffs, spouses Bryan and Leah Black. Dkt. 4, at 2-4.
According to the complaint, a “third party who was not physically located at the
Plaintiffs’ home in Hays County” called 911 on September 30, 2019, or October 1,
2019, to report the incident. Dkt. 4, at 2. Because the couple lives in Buda, Texas,
that city’s police department conducted the initial investigation. Id. However, the
complaint goes on to allege that another call was subsequently made to the Austin
Police Department because Bryan Black is an APD officer. Id., at 3. APD then
1

Case 1:22-cv-00276-RP Document 10 Filed 01/17/23 Page 2 of 10

initiated an internal affairs investigation into Bryan’s alleged actions. Dkt. 6, at 3.
The Blacks state that on October 1, 2019, APD seized Bryan Black’s cell phone and
issued a “NO CONTACT ORDER” requiring him to cease communications with his
wife and to not return to his home. Dkt. 4, at 3-4. The order was issued in connection
with the internal affairs investigation. Dkts. 4, at 4; 6, at 3. The Blacks contend that
neither of them requested this order, and that the order created distress in their home
and relationship. Dkt. 4, at 4. The no-contact order remained in effect until March
24, 2020, when APD indefinitely suspended Bryan Black and he was no longer subject
to the order. Id.
The Blacks assert claims under 42 U.S.C. § 1983, contending that (1) the nocontact order violated their rights under the First Amendment, by preventing them
from speaking to each other; (2) APD’s seizure of Bryan Black’s phone violated his
rights under the Fourth Amendment; (3) the no-contact order violated their Fifth
Amendment rights, by unconstitutionally depriving Bryan Black of his property
without just compensation; (4) the no-contact order deprived Bryan Black of his
procedural due process rights; and (5) the no-contact order violated the couple’s
Fourteenth Amendment right to be married. Id., at 5-7.
The City moved to dismiss the claims as untimely. Dkt. 2. The Blacks amended
their complaint, Dkt. 4, mooting the original motion to dismiss. The City now moves
to dismiss the amended complaint, arguing the amendments did not, and cannot, cure
the Blacks’ fatal statute-of-limitations problem. Dkt. 6.

2

Case 1:22-cv-00276-RP Document 10 Filed 01/17/23 Page 3 of 10

II.
A.

LEGAL STANDARD

12(b)(1)

Federal Rule of Civil Procedure 12(b)(1) allows a party to assert lack of subjectmatter jurisdiction as a defense to suit. Fed. R. Civ. P. 12(b)(1). Federal district courts
are courts of limited jurisdiction and may only exercise such jurisdiction as is
expressly conferred by the Constitution and federal statutes. Kokkonen v. Guardian
Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). A federal court properly dismisses a
case for lack of subject-matter jurisdiction when it lacks the statutory or
constitutional power to adjudicate the case. Home Builders Ass’n of Miss., Inc. v. City
of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998). “The burden of proof for a Rule
12(b)(1) motion to dismiss is on the party asserting jurisdiction.” Ramming v. United
States, 281 F.3d 158, 161 (5th Cir. 2001), cert. denied, 536 U.S. 960 (2002).
“Accordingly, the plaintiff constantly bears the burden of proof that jurisdiction does
in fact exist.” Id. In ruling on a Rule 12(b)(1) motion, the court may consider any one
of the following: (1) the complaint alone; (2) the complaint plus undisputed facts
evidenced in the record; or (3) the complaint, undisputed facts, and the court’s
resolution of disputed facts. Lane v. Halliburton, 529 F.3d 548, 557 (5th Cir. 2008).
B.

12(b)(6)

Pursuant to Rule 12(b)(6), a court may dismiss a complaint for “failure to state
a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). In deciding a
12(b)(6) motion, a “court accepts ‘all well-pleaded facts as true, viewing them in the
light most favorable to the plaintiff.’” In re Katrina Canal Breaches Litig., 495 F.3d
191, 205 (5th Cir. 2007) (quoting Martin K. Eby Constr. Co. v. Dall. Area Rapid
3

Case 1:22-cv-00276-RP Document 10 Filed 01/17/23 Page 4 of 10

Transit, 369 F.3d 464, 467 (5th Cir. 2004)). “To survive a Rule 12(b)(6) motion to
dismiss, a complaint ‘does not need detailed factual allegations,’ but must provide the
plaintiff’s grounds for entitlement to relief—including factual allegations that when
assumed to be true ‘raise a right to relief above the speculative level.’” Cuvillier v.
Taylor, 503 F.3d 397, 401 (5th Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007)). That is, “a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570).
A claim has facial plausibility “when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. “The tenet that a court must accept as true all of the
allegations contained in a complaint is inapplicable to legal conclusions. Threadbare
recitals of the elements of a cause of action, supported by mere conclusory statements,
do not suffice.” Id. A court ruling on a 12(b)(6) motion may rely on the complaint, its
proper attachments, “documents incorporated into the complaint by reference, and
matters of which a court may take judicial notice.” Dorsey v. Portfolio Equities,
Inc., 540 F.3d 333, 338 (5th Cir. 2008) (citations and internal quotation marks
omitted). A court may also consider documents that a defendant attaches to a motion
to dismiss “if they are referred to in the plaintiff’s complaint and are central to her
claim.” Causey v. Sewell Cadillac-Chevrolet, Inc., 394 F.3d 285, 288 (5th Cir. 2004).
But because the court reviews only the well-pleaded facts in the complaint, it may
not consider new factual allegations made outside the complaint. Dorsey, 540 F.3d at

4

Case 1:22-cv-00276-RP Document 10 Filed 01/17/23 Page 5 of 10

338. “[A] motion to dismiss under 12(b)(6) ‘is viewed with disfavor and is rarely
granted.’” Turner v. Pleasant, 663 F.3d 770, 775 (5th Cir. 2011) (quoting Harrington
v. State Farm Fire & Cas. Co., 563 F.3d 141, 147 (5th Cir. 2009)).
III.

DISCUSSION

A claim is time-barred and subject to dismissal under Rule 12(b)(6)1 where the
claim was clearly filed after the applicable statute of limitations had run and it was
evident from the pleadings that the plaintiff was not entitled to the benefit of the
discovery rule. Kansa Reinsurance Co. v. Congressional Mortg. Corp., 20 F.3d 1362,
1366-70 (5th Cir. 1994). The statute of limitations for claims brought under § 1983 is
determined by looking to the forum state’s limitations period for personal-injury torts.
Wallace v. Kato, 549 U.S. 384, 387 (2007). In Texas, the statute of limitations for a
§ 1983 claim is two years. Piotrowski v. City of Houston, 237 F.3d 567, 576 (5th Cir.
2001).
The statute of limitations begins to run when the plaintiff becomes aware that
he has suffered an injury or has sufficient information to know of the injury. Matter
of Hoffman, 955 F.3d 440, 444 (5th Cir. 2020). The City argues that the Blacks’ claims
in this case accrued, and the two-year statute of limitations clock began to run, in

The City moves to dismiss under Federal Rule of Civil Procedure 12(b)(1), arguing the
Blacks have failed to state a cognizable § 1983 claim and thus cannot overcome the City’s
governmental immunity, Dkt. 6, at 6-7; and Rule 12(b)(6), arguing that the Blacks’ claims
are barred by the applicable statute of limitations, id., at 9-13. Though the City urges the
Court to rule on the 12(b)(1) basis first, its 12(b)(1) argument—that Plaintiffs cannot
overcome the City’s immunity because they cannot state a cognizable claim—is premised on
its 12(b)(6) statute-of-limitations argument. Setting aside the differences in burdens and
presumptions, the dispositive legal question to be answered—whether the statute of
limitations bars Plaintiffs’ claims—is the same.
1

5

Case 1:22-cv-00276-RP Document 10 Filed 01/17/23 Page 6 of 10

October 2019 when APD issued the two orders giving rise to their claims—the nocontact order and the order directing Bryan Black to turn over his phone to the
Department. Dkt. 6, at 10-11. And, the City contends, because the Blacks waited until
March 23, 2022, over two years and five months after these orders, their claims are
untimely.
The Blacks do not dispute the applicability of the two-year statute of
limitations to § 1983 claims generally. But they disagree that limitations bar their
claim, arguing that the “continuing tort doctrine” extends the accrual of their claims,
rendering them timely. Dkt. 8, at 2-5. “In a continuing-tort case, the wrongful conduct
continues to effect additional injury to the plaintiff until that conduct stops.” Gen.
Universal Sys., Inc., v. HAL, Inc., 500 F. 3d 444, 451, 452 (5th Cir. 2007) (citing
Upjohn Co. v. Freeman, 885 S.W.2d 538, 542 (Tex. App.—Dallas 1994, writ denied));
see also Rogers v. Ardella Veigel Inter Vivos Trust No. 2, 162 S.W. 3d 281, 290 (Tex.
App.—Amarillo 2005, pet. denied) (“[E]ach act creates a separate cause of action, and
the cause does not accrue, for purposes of limitations, until the misconduct ends.”).
The Blacks here argue that the City’s seizure of Bryan’s phone and its contents
amounted to an “ongoing seizure” that would fall within the continuous-tort doctrine,
citing Upjohn as the authority for an Erie guess supporting this position. Dkt. 8, at
4-5. Similarly, the Blacks contend that the no-contact order amounted to a “continual
interference” with their constitutional rights, again citing Upjohn.2 Id.

The Dallas Court of Appeals in Upjohn held that the continuous-tort doctrine applied to
forestall accrual of the applicable statute of limitations to plaintiffs’ claims based on a
patient’s continued use of a medication. 885 S.W.2d at 542-44. In that same opinion, the court
2

6

Case 1:22-cv-00276-RP Document 10 Filed 01/17/23 Page 7 of 10

As for the seizure of the phone, the Fifth Circuit has explicitly rejected
application of the continuing-tort doctrine in this context, concluding that it does not
apply to a one-time seizure:
Huerta argues that the seizure of his funds constituted a “continuing
tort” that tolled the limitations period because he was deprived of his
money every day that it was not in his possession. The argument has no
merit.... The government seized his money once. Though Huerta
experienced the consequences of that injury afterwards, the continued
poverty he alleges does not convert the one-time seizure into an ongoing
tort.
Huerta v. United States, 384 F. App’x 326, 328 (5th Cir. 2010); see also Matter of
Hoffman, 955 F. 3d at 444 n.3 (“In any event, the search and seizure here—a single
incident—does not amount to a continuing tort, one which would forever suspend the
statute of limitations absent the horses’ return.”). As with the funds in Huerta, the
City here seized Bryan Black’s phone and its data once. Accordingly, the continuingtort doctrine does not apply to their claims based on this one-time seizure.
The Blacks’ attempt to extend the doctrine to their claims based on the nocontact order fares no better. Indeed, their own authority (see Dkt. 8, at 2-3)
acknowledges that “[t]he doctrine of continuing tort, with its extension of accrual
date, is rooted in a plaintiff’s inability to know that the ongoing conduct is causing
him injury.” Exxon Mobil Corp. v. Rincones, 520 S.W.3d 572, 592 (Tex. 2017) (citing
Upjohn, 885 S.W.2d at 542). “[C]are must be taken to distinguish between 1) repeated
injury proximately caused by repetitive wrongful or tortuous acts and 2) continuing

observed in dicta that “[t]he concept of continuous injury … has been expanded to include
false-imprisonment cases.” Id. at 542 (emphasis removed).

7

Case 1:22-cv-00276-RP Document 10 Filed 01/17/23 Page 8 of 10

injury arising from one wrongful act. While the former evinces a continuing tort, the
latter does not.” Rogers, 162 S.W.3d at 290.
The Blacks cannot credibly argue that they were unable to know of the ongoing
injurious effects of the no-contact order from the moment it issued, nor do they argue
as much. Instead, the Blacks focus on the conclusion reached in cases where the
continuing-tort doctrine has been applied, i.e., that “‘[a] claim for a continuing tort
does not accrue until the defendant’s wrongful conduct ceases.’” Dkt. 8, at 5 (quoting
Rincones, 520 S.W.3d at 592). But they ignore the prerequisite finding of the
claimant’s “inability to know that the ongoing conduct is causing him injury.”
Rincones, 520 S.W.3d at 592 (emphasis added). Like their wrongful-seizure claims,
the Blacks’ claims based on the no-contact order fall within that second category of
claims addressed by the court in Rogers—a “continuing injury arising from one
wrongful act”—which do not fall within the limited scope of the continuing-tort
doctrine. 162 S.W.3d at 290; see Rincones, 520 S.W.3d at 593 (observing that the
doctrine “might provide needed protections to plaintiffs in certain situations” but that
it did not apply in that case, and noting “the ‘fact that damage may continue to occur
for an extended period after accrual does not prevent limitations from starting to
run.’” (quoting Murray v. San Jacinto Agency, Inc., 800 S.W.2d 826, 828 (Tex. 1990))).
The undersigned concludes that the continuing-tort doctrine does not apply to
the claims asserted in the Blacks’ Amended Original Complaint and that those claims
are, therefore, untimely under the applicable two-year statute of limitations.
Accordingly, the undersigned recommends that the District Court grant the City’s

8

Case 1:22-cv-00276-RP Document 10 Filed 01/17/23 Page 9 of 10

motion to dismiss. And because further amendment cannot cure the defects identified
here, the undersigned recommends that the District Court dismiss the complaint with
prejudice.

In

accordance

IV.

RECOMMENDATION

with

the

foregoing

discussion,

the

undersigned

RECOMMENDS that the District Court GRANT the City’s motion to dismiss, Dkt.
6, and DISMISS Plaintiffs’ Amended Original Complaint, Dkt. 4, WITH
PREJUDICE.
V.

WARNINGS

The parties may file objections to this Report and Recommendation. A party
filing objections must specifically identify those findings or recommendations to
which objections are being made. The District Court need not consider frivolous,
conclusive, or general objections. See Battle v. United States Parole Comm’n, 834 F.2d
419, 421 (5th Cir. 1987). A party’s failure to file written objections to the proposed
findings and recommendations contained in this Report within fourteen days after
the party is served with a copy of the Report shall bar that party from de novo review
by the District Court of the proposed findings and recommendations in the Report
and, except upon grounds of plain error, shall bar the party from appellate review of
unobjected-to proposed factual findings and legal conclusions accepted by the District
Court. See 28 U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140, 150-53 (1985);
Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).

9

Case 1:22-cv-00276-RP Document 10 Filed 01/17/23 Page 10 of 10

SIGNED January 17, 2023.

DUSTIN M. HOWELL
UNITED STATES MAGISTRATE JUDGE

10