Jacobson-Boettcher v. Dowdy et al, No. 4:2018cv00853 - Document 15 (S.D. Tex. 2018)
Court Description: MEMORANDUM OPINION AND ORDER granting 5 Harris County's Partial MOTION to Dismiss 1 Complaint ; granting in part, denying in part 10 MOTION to Dismiss 1 Complaint . (Signed by Judge Sim Lake) Parties notified.(gclair, 4)
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Jacobson-Boettcher v. Dowdy et al Doc. 15 United States District Court Southern District of Texas ENTERED July 20, 2018 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIV ISION David J. Bradley, Clerk PENNY JACOBSON-BOETTCHER, In her Individual Capacity , Plaintiffs, C IVIL ACTION NO . H-18-0853 SERGEANT WILLIAM DOWDY, in His Individual Capacity , DEPUTY JACOB WALKER, in His Individual Capacity, HARRIS COUNTY , TEXAS, and DOES 1-10, Inclusive, Defendants. MEMORANDUM OPINION AND ORDER Plaintiff, against Penny defendants, Jacobson-Boettcher , Harris County, brings Texas, and this action Harris County Sheriff's employees, Sergeant William Dowdy (A 'Dowdy' Deputy Jacob '), Walker ( nWa1ker'), and Deputy Does 1-10r under 42 U.S.C. 5 1983 for ' violation civil rights guaranteed by the Fourth and Fourteenth Amendments to the United States Constitution . Pending before are Harris County's Answer and Partial Motion ( Docket Entry No. Dismiss and Defendants Harris County, Dowdy, and Walker's Motion to Dismiss ( nDefendants' Motion to Dismiss'lt ' Docket Entry No . Partial Motion the reasons set forth below, Harris County's Dism iss Dismiss will be granted be granted, and Defendants' Motion part and denied . Dockets.Justia.com 1. Standard of Review Defendants Dowdy, Walker, and Harris County , seek dism issal of the claims asserted against them under Federal Rule of Civil Procedure 12 ( 6). b)( 1 sufficiency attacks Rule 12 ( b)(6) motions test formal the pleadings and is ' 'appropriate when a defendant the complaint cognizable claim .' ' because fails state Rammin? v . United States, legally F.3d ( 5th Cir. 2001), cert . denied sub nom Cloud v . United States, 122 S. Ct. 2665 ( 2002). The court must accept the factual allegations of the complaint as true, view them the plaintiff, and draw light most favorable reasonable inferences plaintiff's favor . Id . To defeat a motion to dismiss pursuant Rule 12 ( 6), b)( claim plaintiff must plead uenough facts relief that plausible on its face .' ' Coro . v . Twomblv, 1955, ( 2007). state Bell Atlantic UA claim has facial plausibility when the plaintiff pleads factual content that allows court defendant Iabal, 129 S. not akin draw inference liable for the misconduct alleged .' ' that Ashcroft v . - 1937, 1949 ( 2009). nThe plausibility standard is Aprobability requirement r' sheer possibility nWhere reasonable asks for m ore than defendant has acted unlaw fully.' ' Id . complaint pleads facts that are ' merely consistent with ' defendant 's liability, 'stops short of possibility and plausib ility of entitlement between relief.' = ' Id lDefendants' Motion to Dism iss, Docket Entry No . 10, p . 1. Defendants also cite Rule 91a of the Texas Rules of Civil Procedure , which allows state courts to do what a federal court is allowed to do under Rule 12 ( b)(6). Rule 91a is not applicable to this action . II . Plaintiffs' Factual Alleqations Plaintiff alleges that on Saturdayr October 2016, she and her husband , Isaiah, went to Mo's Place at about 7 :30 p .m ., ordered two drinks, found a table, and sat down . Plaintiff and Isaiah remained at the same table most of the night because plaintiff had foot condition that prevented her from walking , dancing, and standing for prolonged periods. October At about A .M . Sunday , 2016, plaintiff and Isaiah moved closer to the dance floor, and while doing so the plaintiff accidentally bumped into another patron . Plaintiff tried to apologize for the bump , but the other patron comp lained to a staff member who told the plaintiff it was time go . When plaintiff questioned why , staff member summoned an off-duty , uniformed Harris County Sheriff's Deputy , Deputy Mook, who told plaintiff and Isaiah to leave the premises . Plaintiff alleges that b0th she and Isaiah immediately complied . As plaintiff and Isaiah began to exit Place, brought the tab for Isaiah to sign, and plaintiff and Isaiah then proceeded the building . Plaintiff alleges that once outside, Isaiah asked the valet if went to get their truck . The valet agreed . Plaintiff stood near a valet pole, approximately 12 feet away from the front door of Mo 's Place, waiting for Isaiah return with their truck. Plaintiff alleges that 17 . . . . Isaiah pulled up the truck and E PLAINTIFF) walked over to the truck . DOW DY then yelled at E PLAINTIFF) saying, Mget in the truck or you're going to jail,' to which E ' PLAINTIFF) responded, nbut why, I didn't do anything wrong .' DOWDY then stated nthat's it, you're ' going to jail.' ' 18. DOWDY approached ( PLAINTIFF) and instructed her to put her hands behind her back, which E plaintiff) complied. DOWDY arrested IPT. ATNTIFFJ in vioiation of her 4th amendment rights without probable cause . When DOWDY applied the handcuffs, E PLAINTIFF) complained they were too tight and informed DOWDY that she had Rheumatoid Arthritis. . DOWDY became angry , did not loosen the cuffs, but applied more pressure to her wrists by pushing downward on the cuffs. The valet parked the truck for Isaiah so Isaiah could stay with ( PLAINTIFFIX Plaintiff alleges that Dowdy called for a patrol unit , that due to the condition of her foot, plaintiff had to shift her weight from left right , and that her movement angered responded by bending her Dowdy who trash can and ultimately knocking her down to the ground injuring her shoulder and causing her briefly lose consciousness . Plaintiff alleges Dowdy and Deputy Walker telling her responded, can't get up like this. Arthritis and my feet are she awoke which have Rheumatoid Dowdy then pulled plaintiff up by handcuffs, stepping on her right foot and causing her shoe come off. When plaintiff failed walk toward defendants' patrol unit as fast as Dowdy wanted , she was pushed to the ground hitting her head . Deputy Walker then pulled her up and dragged her to the patrol unit . By this time the p laintiff was scream ing zplaintiff's Complaint r Docket Entry No . 1, pp . 7-8, %% 17-18 . 3 . Id 9 % 20 . pain and bleeding from her head , knees, and feet . Once patrol unit plaintiff's pain caused her Walker then vomit . pulled her out of the unit and asked Isaiah the console her, which he did . Plaintiff alleges that while Dowdy and Walker were deciding what charge her with , Sergeant Campbell arrived on the scene . She alleges that Dowdy or Walker told Campbell that she was going to jail, but Campbell saidr ushe's not going to the hospital./4 ' When asked she wanted plaintiff said , %Yesr' and was placed on % ' ambulancex Asserting she's going go the hosp ital stretcher and into an she nwas never charged with any violation of any 1aw ,'6 plaintiff alleges that ' WALKER in his incident report ufabricated' the sequence ' of events to avoid future liability for his actions and the actions of DOWDY . A true and correct copy of the nIncident Report' with intentional fabrications is ' attached at Exhibit A and incorporated by referencex 4 . at 10 % 22 . Id 5Id . % 22. 6 . at 11 % Id 7 . at % 24 . Id 111 . Harris Countv 's Partial Motion to Dism iss Harris County's Partial Motion Dismiss seeks dism issal any claim s that has asserted for consp iracy and violation of the Ninth Amendmentx Plaintiff responds that she Mdoes Harris County's allegations CSZ YXY .S9 I . S Partial Motion Dism iss as oppose any alleged conspiracy by Harris County and any Amendment Accordingly, Harris County's Partial Motion will be granted and conspiracy and for claim s plaintiff violation Dismiss asserted the Ninth Amendment will be dismissed with prejudice. IV . Defendants' Motion to Dismiss Citing 42 U .S. . $ 1983, plaintiff alleges that the Dowdy and C Walker are liable for arresting using excessive force against her without probable cause in violation Fourteenth Amendments, that Deputy Walker deception and violation her Fourteenth the Fourth and liable judicial Amendment right substantive due process for filing a false Incident Report with the Harris County Sheriff's Office, and that Harris County for failing liable train and supervise the individual defendants. Harris County, Dowdy, and Walker seek dism issal 8 Harris County's Answer and Partial Motion Entry No . 11, pp . 7 and 8. uthe entire Dism iss, Docket 9 Opposition to Harris County's Answer and Partial Motion to No Dismiss, Docket Entry No . 11, p . 1. case,'l arguing 'o plaintiff has failed to allege facts capable showing that she suffered a deprivation of constitutional rights because probable cause existed to In addition defendants argue that p laintiff's claims for excessive use of force should be she complains are minor injuries, incidental lawful arrest that do not give rise to for judicial deception against Walker should be dismissed because no charges have been filed and no judicial deception has occurred. A. Applicable Law 42 U .S .C . 5 1983 42 U .S .C . 5 1983 provides private right of action for the deprivation of rights, privileges, and immunities secured by the Constitution laws of the United States. Section 1983 states : Every person who , under color of any statute, ordinance, regulation , custom r or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress 5 1983. uE sectionq 1983 ' is itself a source substantive rights,' but merely provides 'a method for vindicating federal rights elsewhere conferred .'' Graham v . Conner, 109 S . ' l Defendants' Motion to Dismiss, Docket Entry No . lO, p . 7 . o 1865, 1870 ( 1989) n. ( quoting Baker v. Mccollan, 99 S. 2689, 2694 (1979)). To establish 5 1983 liability: plaintiff must prove she suffered a deprivation of a right secured by federal law ( that occurred under color of state law, and ( was caused 2) 3) by a state actor .' ' Victoria W . v . Larpenter , F .3d 475, ( 5th Cir. 2004). Plaintiff must also show that the constitutional deprivation suffered was intentional due deliberate indifference and not the result of mere negligence . 'The first inquiry ' 1983 suit' ' precise constitutional violation with which charged .' Graham , 109 S. ' must then be judged isolate the ( the defendantq at 1870 . reference the specific constitutional standard which governs that right .' ' Id . at 1871. Plaintiff's allegations that defendants' violating her rights to be free from false arrest and excessive use of force are claim s that must be analyzed under the Fourth Amendment . Tennessee v. Garner, 105 Id. at 1871-73 ( citing 1694, 1699-1707 ( 1985)). Official and Personal Liabilitv Public officials like the individual defendants, Dowdy and Walker, may be sued pursuant to 42 U . . . $ 1983 in either their S C official and/or their personal capacities. Hafer v. Melo, ll2 361-63 ( 1991) ( citing Kentuckv v . Graham, 105 3099 ( 1985)). E Tqhe distinction between official-capacity suits and personal-capacity suits is more than na mere pleading device .' . . . State officers sued for dam ages in their ' official capacity are not upersons' for purposes of the ' suit because they assume the identity of the governm ent that employs them . . . By contrast, officers sued in their personal capacity come to court as individuals. Id . at 362 . suit The real party interest the governmental entity , an official-capacity the named official . ( citing Graham, Id . at 3105) ( nsuits against state officials in their official capacity suits against the State.' '). should be treated as To state a personal-capacity claim under $ 1983 plaintiffs must allege that while acting under color of state 1aw defendants were personally involved in the deprivation of right secured by the laws States, or that defendants' Con stitution of the United wrongful actions were causally connected to such a deprivation . James v . Texas Collin Countv, 535 2008). Oualified Immunitv Public officials sued 5 1983 shielded their personal capacities under from by immunity. Saucier v. Katz, l21 S. doctrine 2151, 2156 ( 2001), overruled in Dart bv Pearson v . Callahan , Moualified immunity ( 2009). 'an entitlement not the other burdens of litigation,' qualified stand trial face effectively a case is erroneously perm itted to go to trial .' Id . The doctrine ' of qualified immunity was created - 9- balance interest compensating persons whose federally protected rights have been violated against the fear that personal liab ility might inhibit public officials in the discharge of their duties. See Johnston v . Citv of Houston, Texas, qualified immunity whether the F.3d 1056, 1059 ( 5th Cir. 1994). analysis plaintiff constitutional right; and established S. involves two-step alleged a inquiry : violation ( 2) whether that right was clearly the time alleged misconduct . at 815-16. within Pearson, discretion of the district decide which of the two steps to address first . court Courts exam ine each officer's actions determine whether he she Newman v. Guedrv, 703 F.3d ( 2013). The Id . independently entitled to qualified immunity . 762 ( 5th Cir. 2012), cert . denied, Once defendant asserts qualified immunity, the burden shifts to the plaintiff, who bears the burden of negating the defense of qualified immunity . B. Id . at 761. Application of the Law to the Plaintiff's A llegations Plaintiff's Claims for Unreasonable Seizure Are Subject to Dismissal as to Walker But Not as to Dowdv Dowdy and Walker argue that they are entitled to dismissal plaintiff's claim s for unreasonable seizure because probable cause existed to arrest her for criminal trespass and therefore , they are entitled claims .ll l Defendants' Motion to Dismiss, Docket Entry No . 10, pp . 2-4. l Applicable Law Plaintiff's allegations that Dowdy and Walker unreasonably seized her raise claims violation of the Fourth Amendment . The Fourth Amendment prohibits arrests made without probab le cause . Blackwell v . Barton, Amendment F.3d 298, made applicable Fourteenth Amendment . ( 5th Cir. 2009) 1994) The Fourth state defendants through the Severance v . Patterson, F .3d 490, The Supreme Court has defined probable cause as the nfacts and circum stances within the officer's know ledge that are sufficient to warrant prudent person, one reasonable caution, in believing, in the circum stances shown, that the suspect has comm itted , committing, Michiqan v . DeFillippo, 99 S. about 2627, commit an offense .' ' ( 1979)). This objective standard based on the facts known time of the arrest . an the officer at the Club Retro, L .L .C . v . Hilton , 568 F .3d 181, ( 5th Cir. 2009). Application of the Law to the Allegations Defendants argue that ' pllaintiff's 'E own complaint and attachments show the officers had probable cause to arrest her. The staff told her Sgt . Dowdy told leave . her Another deputy told her leave .'l '2 citing Texas leave . Penal Code l . at 3 . See also id . at 6 ( 2ld nln addition to her own factual basis in her complaint, g plaintiffq attaches the report of that ( continued...) 5 30.O5( a), and the Memorandum and Order Bradshaw v . Katrib, a sheriff's deputy who, like Dowdy and Walker, was sued arresting a patron crim inal trespass while working for second job. Defendants argue that it is uncontroverted that ( pjlaintiff was told to leave by staff, by 1aw enforcement, and then banned by the owne r 's son . As Judge Werlein noted in his Bradshaw opinion, ' ilt is irrelevant whether E 'E the officer) was belligerent or unjustified in issuing to E pqlaintiff the ban and the warning .' Memorandum at *15. The probable ' cause standard looks to the facts of which the officer was aware . . Plaintiff does not contradict that she was asked to leave several times, and she attached to her complaint the report that shows she and her husband are permanently banned from Mo's. Plaintiff's 4th and 14th Amendment claim s fail as a matter of law , and should be dismissed x3 Plaintiff argues that her claims for unreasonable seizure are not subject dismissal because she has alleged that 'Dowdy ' arrested E her) without anv Drobable cause whatsoever as w as waiting to get into the vehicle to leave the premises .'l Asserting '4 she has alleged that she nleft when asked and never returned to Mo 's Placez'1s plaintiff argues that her allegations are capable ' of show ing that she l zt... continued) night that shows the officers had probab le cause . Therefore based on her own complaint and her own attachments, the motion to dismiss should be granted.') ' H Defendants' M SJ, Docket Entry No . l opposition to Defendants' Motion 4 13, p. 3 % 6 ( emphasis in original). 1 jd 5 at Dismiss, Docket Entry was not trespassing as she was waiting for her husband to pick her up at the entrance to Mo's Place as he was getting the fam ily truck. It is quite obvious that Defendant Dowdy's unconstitutional actions occurred while Plaintiff was waiting for her husband to bring the truck to the entrancex 6 Plaintiff argues that Dowdy arrested her for simply saying nshe did nothing wrong,' 7 and that defendants misstate the allegations by /' by arguing that she failed she inquired what she leave when the alleged facts are that did wrong nwhile she was leaving .' ' /l Plaintiff argues that Judge Werlein's Memorandum Opinion and Order in Bradshaw inapposite because ul tqhe facts this case are substantially different .'lg Plaintiff argues the Bradshaw p laintiff ' was initially given a crim inal trespass warning and subsequently returned a few months later . Because of his returning after previously E having been) given a criminal trespass warning, the officer involved was granted qualified immunityx o Moreover, plaintiff disputes defendants' contention that the owner 's son banned her from returning to Mo 's Place .2 l The Texas criminal trespass statute, Texas Penal Code 5 30.05, states in pertinent part that A person comm its an offense the person enters or remains on or in property of another without effective consent and the person : 1 (d . 6j g l yd . 7 l (d 8j 19Id 2 Id O 2 d 11 at received notice to depart but failed to do so .' uNotice' is defined to include an ' ' oral communication nby the owner or someone with apparent authority to act for the owner.' Id . 5 3O.05( ( ' b) 2). 'An offense under this ' section a Class B misdemeanor Id. Defendants argue that probable cause arrest plaintiff existed because when Dowdy told plaintiff to get going to jail' ' 30.05 ( d). her truck, nor you're E pqlaintiff continued to argue with E him) her own admission ./z 'z she responded to Dowdy's directive to get into her truck by asking why, and that she protested she hadn't done anything wrong , plaintiff does allege - and defendants do not argue - that plaintiff ever refused to leave the premises, that plaintiff was not in the process complying w ith the directive arrested leave prem ises when Dowdy Nor have defendants cited any authority holding that questioning directive constitutes an offense . leave while, fact, leaving The Bradshaw case cited by defendants inapposite not only for the reasons argued by plaintiff, but also because involved a motion for summary judgment, not a motion to dismiss. Defendants' motion dismiss plaintiff's claim unreasonab le seizure against Dowdy will therefore be denied . Since plaintiff fails to allege any facts capable of showing that Walker participated her arrest, defendant's plaintiff's unreasonable seizure claim motion against Walker granted . H Defendants' Motion Dismiss, Docket Entry No . dism iss Plaintiff's Claim s for Excessive Use of Force Acainst - - Dowdv and Walker Are Not Subqect to Dismissal Plaintiff alleges that Dowdy and Walker violated the Fourth and Fourteenth Amendments by using excessive force against her .23 Defendants argue that these claims are subject because 'minor, incidental injuries that occur ' dismissal connection with the use of handcuffs to effectuate an arrest do not qive rise to a constitutional claim for excessive force .' 4 '2 ( a) Applicable Law To establish claim for of excessive force under the Fourth and Fourteenth Amendments, plaintiff must allege facts capable of showing that she suffered a seizure, and that she also suffered an injury; which resulted directly and only from a use of force that was clearly excessive to the need; and ( 3) the excessiveness force was objectively unreasonable. Flores v. Citv of Palacios, 381 F.3d 391, 396 ( 5th ( citing Graham, 109 S. 1871). ' Tlhe question 'E See 2004) whether the totality of the circumstances justified' that use of force. ' Tennessee v. Garner, S. 1694, ( 1985). Graham, at 1865, the Supreme Court articulated three considerations for courts to use when determ ining if a particular use of force was M complaint, Docket Entry No . M Defendants' Motion to Dismiss, Docket Entry reasonable under the circumstances or excessive to the need . These considerations - often referred to as the Graham factors - are : the severity of the crime at issue; posed an immediate threat whether the suspect police officers civilians; and whether the suspect was actively resisting arrest or attempting to evade arrest by fleeing the scene . Id . at 1872 . Application of the Law to the Allegations Defendants argue claims are subject to dismissal because E tlhe official report that g pllaintiff attaches to her own complaint shows she was intoxicated, fell, refused to get up and then vom ited in the officer's car . Her injuries are her own fault. She alternately told the officers to shoot her and arrest her. She refused medical treatment but for the intervention of her husband. While E pqlaintiff clearly disputes this rendition , it is attached to the complaint , and the court can consider it .25 Asserting that they are entitled qualified immunity from plaintiff's excessive force claims, and citing Ramirez v . Martinez, F.3d 369, 2013), defendants argue that ( pllaintiff must show that Walker and Dowdy DID NOT have probable cause at the time E pllaintiff was handcuffed and placed in the sheriff's car, where she vomited . In fact, Walker and Dowdy had clear know ledge of facts and circumstances sufficient to conclude that g pllaintiff had comm itted an offense - trespassing . In addition to her own factual basis in her complaint , she attaches the report of that night that M oefendants' Motion to Dism iss , Docket Entry - 16- shows the officers had probable cause . Therefore, based on her own complaint and her own attachments, the motion to dismiss should be granted. Because ( dlefendants had probable cause, as her own complaint shows, they did not violate her rights . The case should be dism issed with prejudice.z E Plaintiff argues that the report was created by Walker in an attempt cover' up the actions Defendant Dowdy. has challenged numerous statements made r andl the incident report as u ntru e . ,27 z ' With respect to the severity of her injuries, plaintiff argues that nE dlefendants attempt to convince this court that the injuries sustained by the E pqlaintiff were A minor and incidental' when they ' substantial injuries.'/z Although /' physical injury is not required showing of significant the context an excessive force claim , the Fifth Circuit does require plaintiffs asserting such claims to have suffered nmore than a de minimis injury.' ' Glenn v. Citv of Tvlerr 242 F.3d 307, 314 ( 5th Cir. 2001). The extent of the injury 'must be evaluated in the context in which the ' force was deployed .' Id . ( ' citing Williams v. Bramer, 180 F.3d 703 ( 5th Cir. 1999)). Plaintiff alleges that as actions, 2 (d 6j at 2 yd 7 at 2 Id 8 result of Dowdy 's and Walker's (shel suffered bruises, a black eye, recurring headaches, lacerations ( permanent scar above right eye and right wrist), abrasions, nerve ncrush' injury on right wrist, ' neck pain , memory loss, arm stiffness, tendonitisr scabs, inflammation rheumatoid nightmares, in joints, pustular psoriasis arthritis flare, fibromyalgia PTSD, stress, fear, emotional flare, flare, damage, depression and insomniax g Whether these injuries are sufficient excessive use support claims force also turns on whether the use of force that caused these injuries was clearly excessive need objectively unreasonable. Because plaintiff also alleges that the force about which she complains occurred after she had already been arrested and handcuffed, that she trespass, a non-violent Class alleged facts do herself, these injuries, and arrested criminal misdemeanor, and because the suggest that plaintiff posed a threat defendants, arresting officers was others, attempting that she resisted the flee , plaintiff suffered as she alleges, she was arrested without probable cause, her alleged injuries could plausibly support claims excessive use of force . Accordingly, defendants' motion to dismiss the excessive use of force claims assert against Dowdy and Walker will be denied . 29Id . at S 23. I - 18- Plaintiff's Claim for Judicial Decertion Acainst Walker Is Subqect to Dismissal Plaintiff alleges that Walker violated her right substantive due process guaranteed by the Fourteenth Amendment by fabricating facts in the Incident Report submitted to the Sheriff's Department in an effort Plaintiff alleges that WALKER, knew or should have known that by presenting a false incident report, would lead to the deprivation of E pllaintiff's civil rights. The E dqefendants, like any reasonable person, knew or should have known that ( pllaintiff had a constitutionally protected right not to be lied about in an incident reportx l Defendants argue that claim should dism issed because ug pllaintiff was not ultimately indictedr' Mno charges were filedr' ' ' and nl tqhere judicial deception,'3 and because ' tqhe /z 'E officers had probable cause based on her own complaint . Her complaint and shows there judicial deception constitutional violation .'3 '3 Individuals have process right unot deliberately fabricate evidence and use have police frame and bring false charges against E theml.' Cole v . Carson, 802 F.3d ' 2015). Claims for judicial deception under 5 1983 are M plaintiff's Complaint, Docket Entry 18-20 . 3lId . at 19 % 50. H Defendants' Motion to Dism iss, Docket Entry No . 3 d . at 3I - 19- typically used challenge judicially issued validity of a warrant or other instrument based on allegations that law enforcement agents submitted a false affidavit or report to the issuing judicial officer. See Sherwood v. Mulvihill, 113 F.3d 396, 1997). judicial deception claim establish plaintiffs must satisfy the two-part test developed by the Supreme Court in Franks v. Delaware, Franks and 2674, 2675-77 ( 1978). Under progeny the plaintiff must prove affiant knowingly and deliberately, or with for the truth , made false statements that reckless disregard om issions that create falsehood in applying for a warrant; that such statements or om issions are material, or necessary, to the finding of probable cause to issue a warrant . Franks, 98 S . at 2684-85 . lied he prepared and filed with the Harris County Sheriff's Departmentx 4 However, since plaintiff alleges that she was arrested w ithout warrant , that she has been charged , and that the Incident Report was falsified to justify Dowdy's and Walker's unreasonable seizure and use of excessive force against her, plaintiff's judicial deception claim is subject to dismissal because plaintiff fails to allege any judicial deception and has therefore failed state claim for judicial deception. Alternatively, court judicial deception is subject M plaintiff's Complaint , Docket Entry pp . 18-20 . dismissal because duplicates her claim s for unreasonable seizure and excessive use of force . See Cambridce Toxicolocv Group v. Exnicios, 495 F.3d 169, ( 5th 2007) ( recognizing that district courts have discretion to dismiss duplicative claims). Accordingly, defendants' motion to dism iss plaintiff's claim for judicial deception will be granted. Plaintiff's Claim Aqainst Harris Countv is Not Subn 'ect to Dismissal Plaintiff alleges that Harris County is liable under 42 U .S.C. 5 1983 for failing to train and supervise the individual defendants. In Monell v . Department of Social Services of the Citv of New York, 98 S. 2018, 2022, 2035-36 ( 1978), the Supreme Court held that municipalities are npersons' subject ' 5 1983, that municipalities resrondeat superior basis, suit under 42 held cannot liable on municipality cannot held liable simply because one of its employees violated a person's federal rights. For a municipality to be held liable under 5 1983, the municipality itself must cause the violation through policies . when execution of government's policy custom , whether made by its lawmakers or by those whose edicts acts may fairly be said to represent official policy, inflicts the injury that the government as an entity 5 1983.' Id . at 2037-38 . / responsible under Plaintiff alleges that Harris County r Texas has no policies in force to ensure its officers do not violate the constitutional rights of individuals when they are working a 2nd job in uniform and under color of state law . A true and correct copy of their policies and procedures are attached E asq Exhibit B and incorporated by reference as though fully pled herein . There have been numerous instances where rights have been violated by deputies of the Sheriff's Department .3 s Defendants argue that plaintiff's claims against Harris County /f should be dismissed because uthe officers had probable cause ./3 For the reasons stated 5 IV .B .1, above, the court has already concluded that p laintiff has alleged facts capable of establishing that the defendant officers her for crim inal trespass. not have probable cause to arrest Accordinglyr defendants' motion dismiss plaintiff's claims against Harris County will be denied . V. Conclu sions and Order the reasons explained above, Harris County's Partial Motion to Dismiss, Docket Entry No . GRANTED . For the reasons explained in 5 IV .B .1, above, the defendants' motion to dism iss p laintiff's claim s for unreasonable seizure GRANTED as Deputy Walker and DENIED as Sergeant Dowdy . For the reasons explained in 5 IV .B .2, above , the defendants' motion to dismiss plaintiff's claims for excessive use of force is DENIED . M plaintiff's Complaint , Docket Entry No . 1, p . 14 % M Defendants' Motion to Dismiss, Docket Entry For the reasons explained in 5 IV . .3, above, the defendants' B motion to dismiss plaintiff's claim for judicial deception asserted against Deputy Walker is GRANTED . For the reasons explained in 5 IV .B .4, above, the defendants' motion to dism iss the claim s asserted against Harris County, Texas, is DENIED . Accordingly, Defendants Harris County, Dowdy , and Walker's Motion Dismiss, Docket Entry GRANTED IN PART and DENIED IN PART . SIGHRD at Houston , Texas, on this the 20th day of July, 2018. f SIM LAKE UN ITED STATES DISTRICT JUDGE
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