Davis v. City of Fort Worth et al, No. 4:2014cv00491 - Document 81 (N.D. Tex. 2014)
Court Description: Memorandum Opinion and Order granting in part, denying in part 65 Dismiss for Failure to State a Claim filed by Amy Olson, 63 Dismiss for Failure to State a Claim filed by Dacian Halmagean re: 65 Motion to Dismiss for Failure to Sta te a Claim, 63 Motion to Dismiss for Failure to State a Claim The claims and causes of action asserted against Olson and Halmagean in their official capacities are dismissed w/o prej; all state law claims asserted by plaintiff against Olson and Halmagean are dismissed. (Ordered by Judge John McBryde on 10/30/2014) (wrb)
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Davis v. City of Fort Worth et al Doc. 81 U. DI k: If-)) S. S7'tC- ( tRT ' NORTHERN DI :TRI OFTEXAS CT . I THE UNI N TED STATES DISTRIC Cot 7 FI LED NORTHERN DISTRICT OF TE AS FORT WORTH DI VISI ON 0C 3 0 ) ; i NELDA DAVIS , CLERI t.s pfTRl ccy r G l . s cT qu' By - Plaintiff , . - De y put l . NO . 4 :14 -CV -49l-A THE CITY OF FORT WORTH , ET AL ., Defendants . MEMORANDUM OPIN ION and ORDER Now before the court for consideration and ruling are the motions of defendants Officer Amy Olson (n Olson' and Officer ') Dacian Halmagean (u Halmagean' to dismiss for failure to state a ') claim . The court has concluded that such motions shou ld be granted in part and denied in part , as set forth below . Histo ry and Nature of the Litiqation , - - - The court hereby refers to , and adopts by reference , for the history and nature of this litigation the discussions on those subjects contained in the memorandum opinion and order issued in this action on October 29, 2014 . The motions to dismiss now under consideration were filed by Olson and Halmagean on September 10, 2014 . Dockets.Justia.com II. The Parts of the Motions that the Court is Grantinq A. The Official Capacity Claim s Against Olson and Halmaqean are Redundant Plaintiff , Nelda Davis, sues Olson and Halmagean in their official capacities as police officers with the Fort Worth Police Department as well as indiv idually . Inasmuch as the Fort Worth Police Department is simply a department of the City of Fort Worth (ucity/ '), the effect of the official capacity claims against the Fort Worth Police Department is that they are actually official capacity claim s against City . The official capacity claims are redundant inasmuch as they are deemed to be claims against City , which also is a defendant . Monell v . New York Dep't of Soc. Servsw 436 U . 658, 690 n .55 ( S. 1978). See also Pearlman v . Citv of Fort Worth , Tex ., No . 4 :08-CV -393-A , 2008 WL 4787650 ( . . Tex . Oct . 30, 2008), aff' 400 F . App' 956 N D d x ( 5th Cir. 2010). Therefore, the official capacity claims against Olson and Halmagean are being dismissed without prejudice. B. The state Law Claims M ainst Olson and Halmaqean are Beinq - - Dismissed Olson and Halmagean each asserts as a ground for dismissal of the state law claims applicability of section 101.106(f) of 2 the Texas Civil Practice and Remedies Code , which reads as follows : 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 su it 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 p laintiff 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 . A review of the allegations in plaintiff's second amended complaint discloses that plaintiff clearly is claiming that the police officer defendants were acting within the scope of their general employment as police officers for City when they engaged in the conduct about which plaintiff complains . The 'it could ' have been brought under this chapter against the governmental unit' element of section l01.106( is satisfied by the principle ' f) announced by the Texas Supreme Court in Mission Consol . Indep . Sch . Dist . v . Garcia that : ' A)ll tort theories alleged against the governmental '( unit , whether it is sued alone or together with its employees, are assumed to be under ( the Tort Claims Act) for purposes of section 101.106.' ' 253 S. . 653, 659 ( W 3d Tex. zoo8ll quotation marks omitted). See also Kelemen v . Elliott, 260 S. . 518, 522 ( W 3d Tex. App.--Houston ( 1st Dist.) 2008, no pet.); Pearlman, 2008 WL 4787650 at *2-4, aff'd 4O0 F . App 'x at 959 . Thus, not only could City have been sued, was sued as a defendant in this action , and the suit is presumed to have been brought under the Tort Claims Act for the purposes of section 101.106 . The motions of Olson and Halmagean seeking dismissal of the state law claims pursuant to section 101.106( Were filed more than thirty days ago, on September 10, f) 2014. Therefore, the court is dismissing plaintiff's state law claims against Olson and Halmagean . 111 . The Remaininq Claima Though Olson and Halmagean have made persuasive arguments as to why plaintiff's claims ( claims of excessive force and unreasonable seizure under the Fourth Amendment , and failure to render medical care in alleged v iolation of the Eighth Amendment and the Due Process Clause of the Fourteenth Amendment) against them under 42 U . . . j 1983 should be dism issed, the court is S C reluctant to make a summary disposition of any of those claims based on the motions of the officers to dismiss for failure to state a claim . The court has concluded that the more appropriate method of seeking a summary disposition as to the remaining claims would be through the motion for summary judgment procedures contemplated by Rule 56 of the Federal Rules of Civ il Procedure. Therefore, the court is denying the motions to 4 dismiss as to those claims . If Olson and Halmagean wish to seek summary disposition of those claims by motions for summary ludgment, the court suggests that they make a timely filing of those motions . IV . ORDER For the reasons stated above , The court ORDERS that the motions to dismiss filed by Olson and Halmagean be granted in part and denied in part , as set forth above . The court further ORDERS that the claims and èauses of action asserted against olson and Halmagean in their official capacities be, and are hereby, dismissed without prejudice. The court further ORDERS that a11 state law claims asserted by plaintiff against Olson and Halmagean be , and are hereby , dism issed for the reasons stated above . SIGNED October 2014 . : t Z y r' Z y, ' z / J BRYDE ited States Di ict Judge ' , / ç t ; . /' . / ' l r p l 5
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