Tipps vs The Texas Department of Public Safety, et al
Filing
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ORDER GRANTING 24 Partial Motion to Dismiss. Signed by Judge David Ezra. (rf)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
MELANIE LEE TIPPS,
)
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Plaintiff,
)
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vs.
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STEVE MCCRAW; RUDY
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ZARATE; and JOSEPH
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KOSMALSKI,
)
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Defendants.
)
_____________________________ )
NO. SA-12-CV-00766-DAE
ORDER GRANTING DEFENDANTS’ PARTIAL MOTION TO DISMISS
On May 3, 2013, the Court heard a Partial Motion to Dismiss brought
by Defendants Joseph Kosmalski and Rudy Zarate. Shana Molinare, Esq.,
appeared at the hearing on behalf of Defendants Joseph Kosmalski and Rudy
Zarate; Chad Van Brunt, Esq., appeared on behalf of Plaintiff Melanie Lee Tipps.
After reviewing the motion and the supporting and opposing memoranda, the Court
GRANTS the Partial Motion to Dismiss (doc. # 24).
BACKGROUND
Plaintiff Melanie Lee Tipps (“Plaintiff”) brings this action
under 42 U.S.C. § 1983 for civil rights violations along with common-law claims
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for false imprisonment, malicious prosecution, and intentional infliction of
emotional distress. (“FAC,” doc. # 22.)
In November 2010, Trooper Rudy Zarate (“Zarate”) made a telephone
phone call to Plaintiff, informing her that the Texas Department of Public Safety
was conducting an investigation into hundreds of false identification documents
(hereinafter “fake IDs”). (Id. ¶ 7.) He stated that her image and name appeared on
at least three fake IDs found at nightclubs in San Antonio. (Id.) Plaintiff denied
any wrongdoing and expressed concern that she had been the victim of identity
theft. (Id.) According to Plaintiff, Trooper Zarate insisted that she travel from
Austin, where Plaintiff resides, to his office in San Antonio for an interview or
otherwise face arrest. (Id.) Plaintiff explained that she was currently employed as
Director of Marketing at Austin Telco Federal Credit Union and that she was
uncomfortable requesting time off work for a felony investigation. (Id.) When she
asked why a personal appearance was necessary, Trooper Zarate allegedly stated
that most people physically appeared to provide a sworn statement. (Id.) Plaintiff
then offered to mail Trooper Zarate a notarized, sworn statement denying any
involvement with the crime. (Id.) According to Plaintiff, Trooper Zarate informed
her that if she did not personally appear in San Antonio, he would have her
arrested. (Id.) Plaintiff explained that it seemed completely unnecessary to travel
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to San Antonio, that she had informed him of everything that she knew, and that
she was willing to provide him an affidavit by mail. (Id.) Trooper Zarate replied
that he would send her a letter stating that there was probable cause for her arrest
and that she needed to make an appointment to come to a Department of Public
Safety Office in San Antonio. (Id.)
On November 18, 2010, Trooper Zarate and Trooper Joseph
Kosmalski (“Kosmalski”) sent Plaintiff a letter notifying her of the pending
criminal investigation, stating that charges against her were imminent and
requesting that she make an appointment to come to their office in San Antonio.
(Id. Ex. 1.) That same day, Plaintiff produced an “Affidavit for Changing the
Driver License or Identification Card Number When the License or Identification
Card Holder is a Victim of a Forgery Crime” (id. Ex. 2) along with a sworn
statement that she had no involvement in the creation or distribution of fake IDs
(id. Ex. 3). She then mailed these documents to Trooper Zarate. (Id. ¶ 8.) Soon
thereafter, Plaintiff received the letter sent by Troopers Zarate and Kosmalski.
(Id.) There was no further communication between Plaintiff and the Troopers.
(Id.)
On March 21, 2011, two affidavits sworn by Trooper Kosmalski and
signed by Trooper Zarate were presented to the magistrate in Bexar County, Texas.
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(Id. Ex. 4, Ex. 5.) The affidavits asserted, inter alia, that the Troopers had good
reason to believe that Plaintiff had committed the crimes of Tampering with
Governmental Record in violation of Texas Penal Code § 37.10(a) and Fraudulent
Use or Possession of Identifying Information in violation of Texas Penal Code
§ 32.51. (Id.) Two arrest warrants were secured. (Id. Ex. 6, Ex. 7.)
On August 8, 2011, Plaintiff was arrested at the Houston airport upon
returning from a family vacation. (Id. ¶ 10.) She was taken to jail and held
without bond. (Id.) Her parents, who were with her at the time of her arrest,
immediately hired an attorney. (Id.) Plaintiff’s counsel contacted Bexar County
Assistant District Attorney Joanne Woodruff, who determined that there was no
probable cause for Plaintiff’s arrest and filed motions in state court to dismiss the
criminal charges against Plaintiff. (Id. Ex. 8, Ex. 9.) The magistrate granted the
motions, and Plaintiff was released from prison soon thereafter. (Id.) According to
Plaintiff, she subsequently lost her job and suffered severe mental anguish in
addition to incurring attorney fees for her criminal defense and for the expunction
of her criminal record. (Id. ¶ 11.)
On August 10, 2012, Plaintiff filed suit in this Court against Troopers
Zarate and Kosmalski as well as the Texas Department of Public Safety (“DPS”)
for civil rights violations under 42 U.S.C. § 1983 and for false imprisonment,
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malicious prosecution, and intentional infliction of emotional distress. (Doc. # 1.)
On September 6, 2012, the DPS filed a Motion to Dismiss (doc. # 7) and Troopers
Zarate and Kosmalski filed a Partial Motion to Dismiss (doc. # 8). On September
27, 2012, Plaintiff filed a Motion for Leave to Amend, seeking to remove the DPS
from the suit and to add DPS Director Steven C. McCraw. (Doc. # 12.) The Court
granted Plaintiff’s Motion for Leave to Amend, which rendered moot the motions
to dismiss.
On February 11, 2013, Plaintiff filed a First Amended Complaint
against Troopers Zarate and Kosmalski and DPS Director Steven McCraw. (Doc.
# 22.) In her First Amended Complaint, Plaintiff again brings claims for civil
rights violations under 42 U.S.C. § 1983 and for false imprisonment, malicious
prosecution, and intentional infliction of emotional distress. (Id.) On February 14,
2013, Troopers Zarate and Kosmalski filed a Partial Motion to Dismiss Plaintiff’s
First Amended Complaint. (Doc. # 24.) On February 26, 2013, Plaintiff filed a
Response in opposition to the motion. (Doc. # 25.)
STANDARD OF REVIEW
Rule 12(b)(6) authorizes dismissal of a complaint for “failure to state
a claim upon which relief can be granted.” Review is limited to the contents of the
complaint and matters properly subject to judicial notice. See Tellabs, Inc. v.
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Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007). In analyzing a motion to
dismiss for failure to state a claim, “[t]he 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. Dallas Area Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004)). To
survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead “enough facts to
state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007). “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.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009).
A complaint need not include detailed facts to survive a Rule 12(b)(6)
motion to dismiss. See Twombly, 550 U.S. 544, 555–56 (2007). In providing
grounds for relief, however, a plaintiff must do more than recite the formulaic
elements of a cause of action. See id. at 556–57. “The tenet that a court must
accept as true all of the allegations contained in a complaint is inapplicable to legal
conclusions,” and courts “are not bound to accept as true a legal conclusion
couched as a factual allegation.” Iqbal, 556 U.S. at 678 (internal quotations and
citations omitted). Thus, although all reasonable inferences will be resolved in
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favor of the plaintiff, the plaintiff must plead “specific facts, not mere conclusory
allegations.” Tuchman v. DSC Commc’ns Corp., 14 F.3d 1061, 1067 (5th Cir.
1994); see also Plotkin v. IP Axess Inc., 407 F.3d 690, 696 (5th Cir. 2005) (“We
do not accept as true conclusory allegations, unwarranted factual inferences, or
legal conclusions.”).
DISCUSSION
Troopers Zarate and Kosmalski bring a Partial Motion to Dismiss,
arguing that Plaintiff’s state-law tort claims are barred by § 101.106(f) of the Texas
Tort Claims Act. For the reasons stated below, the Court agrees and GRANTS the
Partial Motion to Dismiss (doc. # 24).
I.
History of Texas Tort Claims Act § 101.106(f)
“The Texas Tort Claims Act provides a limited waiver of immunity
for certain suits against governmental entities and caps recoverable damages.”
Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 655 (Tex. 2008).
This waiver of immunity does not extend to claims arising out of intentional torts.
See Tex. Civ. Prac. & Rem. Code § 101.057 (excluding waiver for a claim “arising
out of assault, battery, false imprisonment, or any other intentional tort”); Morgan
v. City of Alvin, 175 S.W.3d 408, 418 (Tex. App. 2004).
Before the Texas State Legislature passed the Texas Tort Claims Act
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in 1969, “if [a] suit against the government was barred by immunity, a plaintiff
could sue and recover against a government employee-actor in his individual
capacity even though, were he sued for the same conduct in his official capacity, he
would be shielded by derived governmental immunity.” Franka v. Velasquez, 332
S.W.3d 367, 383 (Tex. 2011). In 1985, the Texas Legislature amended the Texas
Tort Claims Act to add § 101.106(f), which provided: “A judgment in an action or
a settlement of a claim under this chapter bars any action involving the same
subject matter by the claimant against the employee of the governmental unit
whose act or omission gave rise to the claim.” See Garcia, 253 S.W.3d at 656.
The amendment only barred suits against government employees when claims
were reduced to a judgment. Id.
In 2003, as part of a comprehensive effort to reform the tort system,
the Texas Legislature amended § 101.106 of the Texas Tort Claims Act. Id.
Section 101.106, entitled “Election of Remedies,” requires a plaintiff, at the time
suit is filed, to make an election between suing the governmental unit under the
Texas Tort Claims Act or proceeding against the employee alone. Id. at 657. “The
revision’s apparent purpose was to force a plaintiff 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 unit is
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vicariously liable, thereby reducing the resources that the government and its
employees must use in defending redundant litigation and alternative theories of
recovery.” Id.
However, § 101.106(f) does not provide an “election of remedies” to a
plaintiff as much as provide government employees immunity from suit in certain
instances. See Univ. of Tex. Health Sci. Ctr. v. Bailey, 332 S.W.3d 395, 401 (Tex.
2011). Section 101.106(f) of the Texas Tort Claims Act provides in pertinent part:
(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 under this chapter against the governmental unit,
the suit is considered to be against the employee in the employee’s official
capacity only.
Tex. Civ. Prac. & Rem. Code § 101.106(f). Thus, a defendant is entitled to
dismissal under section 101.106(f) upon proof that the plaintiff’s suit (1) was based
on conduct within the scope of the defendant’s employment with a governmental
unit and (2) could have been brought against the governmental unit under the Tort
Claims Act. Anderson v. Bessman, 365 S.W.3d 119, 124 (Tex. App. 2011). The
statute strongly favors dismissal of governmental employees. Waxahachie Indep.
Sch. Dist. v. Johnson, 181 S.W.3d 781, 785 (Tex. App. 2005).
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II.
Scope of Employment With a Governmental Unit
The first prong of § 101.106(f) is whether the conduct at issue was
within the scope of the defendant’s employment with a governmental unit. This
first component encompasses two inquiries: “whether the individual defendant was
an employee of a governmental unit and whether the acts alleged fall within the
scope of that employment at the relevant time.” Anderson, 365 S.W.3d at 124.
There is no dispute that Troopers Zarate and Kosmalski were employees of a
governmental unit, the DPS. However, the parties essentially dispute whether the
actions taken by Troopers Zarate and Kosmalski fell within the scope of their
employment.
The Texas Tort Claims Act 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 and about the performance of a task lawfully
assigned to an employee by competent authority.” Tex. Civ. Prac. & Rem. Code
§ 101.001(5). The Restatement (Third) of Agency provides:
An employee acts within the scope of employment when performing work
assigned by the employer or engaging in a course of conduct subject to the
employer’s control. 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.
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Restatement (3d) of Agency § 7.07. “An official acts within the scope of her
authority if she is discharging the duties generally assigned to her.” City of
Lancaster v. Chambers, 883 S.W.2d 650, 658 (Tex. 1994) (finding that on-duty
police officers, pursuing a suspect in squad car, did not act outside the scope of
their authority in driving without regard for safety of others). This is true even if
the employee, in discharging her duties, acts in part to serve the employee’s or a
third party’s interest. Hopkins v. Strickland, No. 01-12-00315-CV, 2013 WL
1183302, at *3 (Tex. App. Mar. 21, 2013) (citing Anderson, 365 S.W.3d at
125–26).
Plaintiff’s claims for false imprisonment, malicious prosecution, and
intentional infliction of emotional distress all arise directly out of the criminal
investigation of the fake IDs, application for a warrant, and eventual arrest of
Plaintiff by Troopers Zarate and Kosmalski. As law enforcement officers,
Troopers Zarate and Kosmalski were generally acting within the scope of their
duties in investigating a potential crime, applying for a warrant, and making an
arrest. Even if conducted with improper motives or in an improper manner, their
actions remain within the general scope of duties of law enforcement officers. See
Chambers, 883 S.W.2d at 658 (rejecting notion that high-speed chase was outside
the scope of police officers’ work because they lacked discretion to drive in way
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that endangers others); Ballantyne v. Champion Builders, Inc., 144 S.W.3d 417,
425–26 (Tex. 2004) (holding that members of city’s Board of Adjustment acted
within scope of authority in revoking building permit where statute conferred
authority to revoke, even though court had determined that the Board was
incorrect).
Plaintiff argues that she is suing Troopers Zarate and Kosmalski in
their individual capacities. More specifically, Plaintiff contends that if the
Troopers acted in “bad faith,” they would not be entitled to “official immunity.”
She correctly states that public officials are only entitled to official immunity from
suits arising from the performance of their “(1) discretionary duties in (2) good
faith as long as they are (3) acting within the scope of their authority.” See
Chambers, 883 S.W.2d at 653.
However, Plaintiff conflates official immunity with the statutory
immunity provided by § 101.106(f). See Franka, 332 S.W.3d at 393 (Medina, J.,
dissenting) (explaining that the two defenses “should not be confused”). Under
Texas law, official immunity is a common-law defense that protects public
officials from individual liability. See Ballantyne, 144 S.W.3d at 424. By
contrast, § 101.106(f) provides statutory immunity to government employees
“based on conduct within the general scope of that employee’s employment [that]
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could have been brought . . . against the governmental unit.” Tex. Civ. Prac. &
Rem. Code § 101.106(f). Moreover, § 101.106(f) protects employees even in their
individual capacities, as the Texas Supreme Court clarified in its recent opinion
Franka v. Velasquez, 332 S.W.3d 367 (Tex. 2011). The court held that § 101.106
“foreclose[s] suit against a government employee in his individual capacity if he
was acting within the scope of employment.” Id. at 381 (emphasis added).
Although this cuts off an avenue of recovery for plaintiffs, this result, the Texas
Supreme Court explained, is exactly what the Texas legislature intended. Id. at
384. By waiving governmental immunity for the governmental unit, the court
reasoned that “the Legislature correspondingly sought to discourage or prevent
recovery against an employee.” Id.
Plaintiff also invokes the so-called ultra vires exception to no avail.
“Under Texas law, a suit against a government employee in his official capacity is
a suit against his government employer with one exception: an action alleging that
the employee acted ultra vires.” Franka, 332 S.W.3d at 383. An ultra vires action
is one in which the plaintiff seeks “relief in an official-capacity suit against a
government actor who allegedly has violated statutory or constitutional provisions
by acting without legal authority or by failing to perform a purely ministerial act.”
Lazarides v. Farris, 367 S.W.3d 788, 801 (Tex. App. 2012) (citing City of El Paso
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v. Heinrich, 284 S.W.3d 366, 372–73 (Tex. 2009)). Governmental immunity does
not bar such ultra vires claims, but the only remedies available to a successful
plaintiff are prospective declaratory and injunctive relief. Heinrich, 284 S.W.3d at
376, 380; see Lowell v. City of Baytown, 356 S.W.3d 499, 501 (Tex. 2011)
(explaining “retrospective monetary remedies are generally barred by
governmental immunity”). Plaintiff seeks damages, not prospective injunctive or
declaratory relief, in this case; thus, the ultra vires exception does not apply.
Finally, to the extent Plaintiff argues dismissal is improper at the
motion to dismiss stage of the proceedings, her argument is not supported by Texas
case law. See, e.g., Illoh v. Carroll, No. 14-09-01001-CV, 2012 WL 1570991, at
*1 (Tex. App. May 3, 2012) (reversing the trial court’s denial of defendant’s
motion to dismiss brought under § 101.106(f)); Lieberman v. Romero, No.
05-08-01636-CV, 2011 WL 1879241, at *2 (Tex. App. May 18, 2011) (affirming
the trial court’s grant of defendants’ motion to dismiss under § 101.106(f)).
III.
“Could Have Been Brought Under” the Texas Tort Claims Act
The second prong of § 101.106(f) is whether suit “could have been
brought against the government unit under the Tort Claims Act.” Anderson, 365
S.W.3d at 124.
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In Franka, the Texas Supreme Court construed the phrase “could have
been brought under this chapter against the governmental unit” in section
101.106(f). See Franka, 332 S.W.3d at 369. The issue in Franka was whether a
government employee must demonstrate the suit could successfully be brought
against the governmental unit to qualify for statutory immunity under § 101.106(f).
See id. at 375. The court held that, for the purposes of § 101.106(f), a tort action
“could have been brought under” the Texas Tort Claims Act regardless of whether
the Act waives immunity1 for the tort action. Id. In this case, even though the
Texas Tort Claims Act does not waive liability for common-law intentional torts,
they arise “under” the Act for purposes of § 101.106(f). Thus, Plaintiff’s state-law
claims for false imprisonment, malicious prosecution, and intentional infliction of
emotional distress all “could have been brought under” the Texas Tort Claims Act
against the DPS, a governmental unit.
In sum, because the First Amended Complaint alleges acts within the
scope of Troopers Zarate and Kosmalski’s employment, and because Plaintiff’s
claims “could have been brought under” the Texas Tort Claims Act against the
1
Prior to Franka, a majority of Texas courts had interpreted “could have
been brought under this chapter against the governmental unit” to mean the suit
must be one where the state has waived its sovereign immunity. See Franka, 332
S.W.3d at 382 n.67.
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DPS, Plaintiff’s state-law intentional tort claims are barred by the Texas Tort
Claims Act.
CONCLUSION
For the reasons stated above, the Court GRANTS the Partial Motion
to Dismiss (doc. # 24).
IT IS SO ORDERED.
DATED: San Antonio, Texas, May 22, 2013.
_____________________________
David Alan Ezra
Senior United States District Judge
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