Burkett v. City of Haltom City, Texas et al, No. 4:2014cv01041 - Document 48 (N.D. Tex. 2015)
Court Description: Memorandum Opinion and Order..Plaintiff's claims against defendants are dismissed. (Ordered by Judge John McBryde on 6/30/2015) (wrb)
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Burkett v. City of Haltom City, Texas et al Doc. 48 ' f l.!.!l,-: #' (4 rpq i (r; jy '-yy .y, ; )-p ) q ) - ( , j t- ' ' -j - ' . , N0RT)jjs pj:-tc.ojyrx4g lrt )j.jj y - , . J ;: ) ) jv, 4.. , , . A, , , ç ( . : ,p ï IN THE UN ITED STATES DISTRICT COURT -N 1 . . . . NORTHERN WORTH DIVISION DISTRICT OF TEXA FORT Jg g j # gj t f f ! l $ ' CLIRK,p.s. sTql; (otj j S pl (y y yj. YANIRA ZAMORA BURKETT , ' '. . . Plaintif f , ; b y . , . - .. . ; NO . 4 :14-CV -1041-A CITY OF HALTOM CITY , TEXAS, ET AL ., Defendants . MEMORANDUM OPIN ION AND ORDER Came on for consideration the motion of defendant City of Haltom City (ucity' and the motion of defendants Officers ') Oliver, K. Nichols, and A . Whitley ( nofficers/) to dismiss. ' ( These are the second motions to dismiss filed by defendants, as earlier motions were made moot by the filing of an amended complaint.) The court, having considered the motions, the responses of plaintiff, Yanira Zamora Burkett , the replies, the record , and applicable authorities , finds that the motions should be granted . 1. Plaintiff's Claims On December 23, 2014 , plaintiff filed her complaint to recover for deprivation of civil rights and personal injury. Defendants answered and the officers asserted entitlement to Dockets.Justia.com qualified immunity . On April 27, 2015 , having obtained leave of court, plaintiff filed her first amended complaintx In her statement of claim , pl.'s first am . compl . at 1, plaintiff says that her claims are based on the officers ' unreasonable and unnecessary actions, including the unlawful stopp ing and detaining of plaintiff, unnecessary use of force , unlaw ful arrest , unlawful search of plaintiff and her vehicle , and false imprisonment . Her claims arise out of her arrest on Augu st 27, 2013, by Officer Oliver , who alleged falsely ( plaintiff claims) that plaintiff did not live at the address listed on her driver's license . Grounds of the Motions Defendants urge that plaintiff has failed to plead sufficient facts to state a claim against any of them that rises above a speculative level . Further, they urge that plaintiff made an irrevocable election to sue the City for the actions of the officers and that she cannot now allege claims against the officers ind i idually . v l 'e amended compl nti al tt cet l h oft orgi ,butt addii ar al t 'h T ai s mos wi he engt he i nal he tons e mos entr y concl y,f iel usor onnul c r cia i de d ofaddii f t t s ai e t tons voi tonal ac s o uppor pl ntf ' cl m s t ai ifs ai . 111 . Standard of Rev iew Rule 8 ( 2) of the Federal Rules of Civil Procedure a)( provides, in a general way , the applicable standard of pleading . requires that a complaint contain 'a short and plain statement of the claim show ing that the pleader is entitled to reliefz' ' 8( ( a) 2) Fed . 'in order to give the defendant fair ' notice of what the claim is and the grounds upon which it rests,' ' Bell Atl. Corp . v . Twomblv , 550 U . 544, 555 ( S. 2007) ( internal quotation marks and ellipsis omitted). Although a complaint need not contain detailed factual allegations , the 'showing' ' ' contemp lated by Rule 8 requires the plaintiff to do more than simply allege legal conclusions or recite the elements of a cause of action . Twombly , 550 U . . at 555 & n .3 . Thus , while a court S must accept al1 of the factual allegations in the complaint as true , it need not credit bare legal conclusions that are unsupported by any factual underpinnings . See A shcroft v . Igbal, 556 U . . S ( 2009) (n While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.n). Moreover , to survive a motion to dismiss for failure to state a claim under Rule 12( 6), the facts pleaded must allow b)( the court to infer that the plaintiff ' right to relief is s plausible . Icbal , 556 U . . at 678 . To allege a plausible right S relief, the facts p leaded must suggest liability ; allegations that are merely consistent with unlawful conduct are insufficient . Id . In other words , where the facts pleaded do no more than permit the court to infer the possibility of misconduct, the complaint has not shown that the pleader is entitled to relief. Id . at 679 . f ' Determining whether a complaint states a plausible claim for relief E is) a context-specific task that requires the reviewing court to draw on its judicial experience and common sense .' Id . ' IV . Analysis A. The federal law claims In her original complaint , p laintiff clearly sued the officers in their official capacitiesx Pl.'s compl. at ! 5. Official capacity suits ugenerally represent only another way of p leading an action against an entity of which an officer is an agent.' Kentucky v . Graham, 473 U. . ' S 165 ( lg8slt citation omitted). Thus, to the extent plaintiff still asserts official capacity claims , these claims are against the employer of the officers, which plaintiff alleges is the Haltom City Police Department . However , the Haltom City Police Department is not an 2 ef ec ofherhavi done s wih r r t t sat l cl m si dicus ed i r The f t ng o t ega d o he t e aw ai s s s nf a. entity capable of being sued . Darby v . Pasadena Police Dep 't , 939 F . 311, 313 ( h Cir . 1991). The proper defendant is the City . 2d 5t Roqers v . Nueces County Jail, No . C-07-410, 2007 WL 4367814 , *4 ( D . Tex . Dec. 13, 2007). S. 3 Regardless , plaintiff has not alleged in her amended complaint any facts that would support an action against the City . Section 1983 does not allow a governmental entity to be held v icariously liable for the actions of its officers under a theory of respondeat superior . 42 U .S .C . 5 1983 ; Bd . of Comm 'rs v . Brown, 520 U.S. 397, 403 ( 1997). A governmental entity may be liable under j 1983 if the execution of one of its customs or policies deprives plaintiff of a constitutional right . Monell v . Dep't of Social Servsw 436 U . 658, 690-91 ( S. 1978). To hold the City liable under 5 1983 thus requires the plaintiff to uinitially allege that an official policy or custom was a cause in fact of the deprivation of rights inflicted .' Spiller v . Texas ' City Police Deprt, 130 F. 162, 167 ( h Cir . 1997)( 3d 5t internal quotation marks and citation omitted). To meet that requirement, plaintiff must allege na policymaker ; an official policy ; and a violation of constitutional rights whose ' mov ing force ' is the policy or custom .' Cox v . city of Dallas, 430 F. 734, 748 ( h ' 3d 5E 3tappear t tpl ntf i no l rcl m i t t Halom Ciy PolceDeparm e i a I s ha ai if s onge ai ng hat he t t i t nt s se a e def nt now alegi t ti i ç he 1 enf cementa m oft muni palt 'ofHalom Ciy. par t enda , l ng ha t s ç aw or t r he ci iy' t t Pl' a c mpla 2, 7. .s m. o . t ! 5 Cir. zoosl l internal citations omitted); Piotrowski v . City of Houston, 237 F. 567, 578 ( h Cir . 2001). Moreover, the 3d 5t description of a policy or custom and its relationship to the underly ing constitutional violation ucannot be conclusory ; it must contain specific facts.' Soiller, l30 F.3d at ' Plaintiff must establish that her claims are based on official policy of the City , not the policy of an individual official, the policy must be made by one to whom the governing body gave authority to make policy . Bennett v . City of Slidell , 728 F .2d 762, 769 ( h Cir. 1984). The general rule is that allegations of 5L isolated incidents are insufficient to establish a custom or policy . Fraire v . City of Arlinqton , 1268, 1278 Cir. 1992). Here, plaintiff does not identify a policymaker, an official policy , or a violation of constitutional rights brought about by such policy or custom . Nor does p laintiff allege any facts to show that what allegedly happened to her is more than an isolated incident . Rather , with regard to City , she makes only conclusory allegations that do not meet the test of Twombly and Icbal or any of the other cited authorities. See, e. q., pl.'s am. compl. at !$ 59-61 . Thus , her constitutional claims against the City must be dismissed . Plaintiff's claim s against the officers individually for use of excessive force are governed by the Supreme Court 's June 22 , 2015 , op inion in Kinqsley v . Hendrickson, No . 14-6368, slip op . ( . June 22, 2015), which the parties have not had an U S. opportunity to address . The Supreme Court has made clear that excessive force claims of a pretrial detainee , such as plaintiff, may proceed if the plaintiff shows that the force purposely or knowingly used against her was objectively unreasonable. Kingsley , slip op . at 6 . Factors the court considers in determining reasonableness or unreasonableness include : the relationship between the need for the use of force and the amount of force used ; the extent of the plaintiff's injury; any effort made by the officer to temper or to lim it the amount of force; the severity of the security problem at issue; the threat reasonably perceived by the officer; and whether the plaintiff was actively resisting . T = at X- . Still, uan officer enjoys qualified immunity and is not liable for excessive force unless he has violated a l clearly established' right, such that would E have been) clear to a reasonable officer that his conduct was unlawful in the situation he confronted .'' Id . at 10. Here , plaintiff relies on the sparse ' facts she has pleaded and refers to a video of the arrest, which is cited in her amended complaint . The v ideo does not support plaintiff's claim of excessive force . Moreover, plaintiff has l not come forward with any authority to establish that the officers violated any clearly established right . In this case , addition to alleging excessive force, plaintiff alleges claims for false arrest and imprisonment, illegal search , and malicious prosecution . Plaintiff maintains that she should not have been arrested for a Class C misdemeanor, erroneously citing the dissenting opinion in Atwater v . Citv of Lago Vista, 532 U . 318, 364 ( S. 2001)( O'Connor, dissenting) without so noting. There, the majority held that an officer who has probable cause to believe that an indiv idual has committed even a very minor criminal offenses in his presence may , without violating the Fourth Amendment , arrest the offender . 532 U .S . at 354 . Thus, plaintiff does not have a claim for false arrest and imprisonment . And , the 1aw is clear that a search of the arrestee and the immediate area subject to her control is proper. United States v . Robinson, 414 U.S. 218, 224 ( 1973). Thus, the illegal search claim must also be dismissed . Lastly , plaintiff concedes that she cannot pursue her malicious prosecution claim . The disposition of these claims supports the court's determination 4Fhe cour i consi i t vi asi i r e enced i , and i a centalpal of pl ntf ' ' ts derng he deo t s ef r n s r ' , ai ifs t a nde c ant Coli v. o g n S a e De n W itr 22 F.d496 4 - 9 ( tCi. 0 . me d ompli . lns M r a t nly a te , 4 3 , 98 9 5h r 200 ) 5n t cas , ashe e,t ofens wasa m ide ea undert TexasTr ns aton Code. I hat e r he f e s m nor he a port i At trv. t o Lag Vit , 2U. 318 32 ( 01 . wae Ciy f o sa 53 S. , 3 20 ) that the excessi e force claim does not overcome the officers' v entitlement to qualified immunity . B. The state law claims In addition to her alleged constitutional claims , plaintiff has pleaded a number of state law claims against a1l defendants . These are set forth at pages 17-19 of the amended complaint and are said to be claims for false imprisonment and arrest, wrong ful detention , assault, battery , malicious prosecution , abuse of process, liability arising out of governmental functions, negligent use of tangible personal property , defamation , intentional infliction of emotional distress, gross negligence, and negligence . Texas law is clear that the City is entitled to sovereign immunity unless there is a clear and unamb iguous waiver of immun ity by the Legislature . Wichita Falls State Hosp . v . Taylor , S. . 692, 696 ( W 3d Tex. 2003)) Federal Siqn v . Texas S. Univ ., 951 S. . 401, 405 ( W 2d Tex. 1997). Any claim in the nature of a tort may only be brought pursuant to the Texas Tort Claims Act . Mission Consol . Indep . Sch . Dist . v . Garcia , 253 S . .3d 653, 659 W ( Tex . 2008) That is, the Tort Claims Act provides the only waiver of sovereign immunity and all tort theories asserted against a governmental unit are assumed to be under the Tort Claims Act . Id . There is no waiver of immunity for claims arising out of assau lt, battery , false imprisonment, or any other intentional tort . Tex . Civ . Prac . & Rem . Code 5 101 .057. Here , despite her attempts to plead around the facts alleged , plaintiff has asserted intentional torts for which there is no waiver of immunity . See Texas Dep 't of Pub . Safety v . Petta , 44 S . .3d W 58O ( Tex. 2001); Delaney v . Univ . of Houston , 835 S. . 56, 60 W 2d ( Tex . 1992). The City's merely engaging in governmental functions does not , as plaintiff argues , automatically waive sovereign immunity . Ethio Expre ss Shuttle Serv ., Inc . v . Citv of Houston , - 164 S . . 751, 756-57 ( W 3d Tex . App . -Houston ( h Dist .) 2005, no 14t pet .). Nor can plaintiff avoid dismissal by couching her claims as a request for declaratory judgment. City of Houston v. Williams, 216 S. . 827, 828-29 ( W 3d Tex . 2007). By filing her state 1aw tort claims against the City , plaintiff made an irrevocable election that immediately and forever bars her from any su it or recovery against an individual employee of the City regarding the same subject matter. Tex. Civ. Prac. & Rem . Code 5 101.106 ( a). See Molina v. Alvarado, 0536, 2015 WL 2148055, ( Tex. May 8, 2015). Plaintiff's argument regarding the constitutionality of the election of remedies provision is not persuasive . See Thomas v . Oldham , 895 S. . 352, 357 ( W 2d Tex . 1995). See also Franka v . Velasguez, 332 S. . 367, 385 ( W 3d Tex . 2011). Plaintiff's amended complaint cannot undo what has been done . But , plaintiff cou ld not pursue these claims in any event . The individual defendants have the right to have their employer substituted in their p lace , but the claim s pursued are intentional torts for which sovereign immunity has not been waived. Tex . Civ . Prac. & Rem . Code 5 101.106( f); Mission Consol . Indep . Sch . Dist . v . Garcia, 253 S . .3d at 657 7 W Hu ff v . Refugio Cnty . Sheriff 's Dept v, No . 6:13-CV -032 , 2013 WL 5574901, *3-4 ( D . Tex. Oct. 9, 2013). S. V. Order For the reasons discussed herein , The court ORDERS that Rlaintiff's claims against defendants be, and are hereby , dismissed . SIGNED June 30, 2015 . ' a . .2 ' 'v * v . a- . ' , àu xc ss nited States Dist * ' y ' X ' N t + ,î / z 11 , 7 ct Judge
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