Gyves v. City Of Houston, No. 4:2018cv00891 - Document 21 (S.D. Tex. 2018)
Court Description: MEMORANDUM OPINION AND ORDER granting 14 MOTION for Summary Judgment (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)
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Gyves v. City Of Houston Doc. 21 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. Dockets.Justia.com 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. -3- 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 -4- 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, -5- 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. -8- 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." -9- 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, -10- 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. -12-
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