Bernice M. DeRouen v. The Falls County Sheriff Department, Ricky Scaman, Deputy Sheriff, in his Individual and Official Capacities--Appeal from 82nd District Court of Falls County

IN THE

TENTH COURT OF APPEALS

No. 10-07-00258-CV

Bernice M. DeRouen,

Appellant

v.

The Falls County Sheriff s Department,

and Ricky Scaman, Deputy Sheriff, in

his Individual and Official Capacities,

Appellees

From the 82nd District Court

Falls County, Texas

Trial Court No. 36,364

MEMORANDUM Opinion

Bernice M. DeRouen sued the Falls County Sheriff s Department and Deputy Sheriff Ricky Scaman, in his individual and official capacities, alleging false imprisonment and injuries suffered during her arrest and transport to jail. The County filed a plea to the jurisdiction and a no-evidence motion for summary judgment, which the trial court granted.[1] DeRouen, acting pro se, contends that the trial court erred by holding that (1) her affidavit is insufficient and failed to raise a material fact issue of evidence ; (2) her claim is barred by the statute of sovereign immunity because there was no violation of a policy or custom ; and (3) she failed to present any evidence to support a no-evidence summary judgment that a policy or custom of the County which was the moving force of DeRouen s constitutional harm. We construe these arguments as a challenge to the granting of the County s plea to the jurisdiction and no-evidence motion for summary judgment. We affirm in part and reverse and remand in part.

FACTUAL BACKGROUND

DeRouen was visiting her daughter when police arrived at the home. DeRouen answered the door and several officers entered the home without a search warrant despite DeRouen s protests. DeRouen placed her finger on an officer s shoulder and informed him that he needed a warrant. DeRouen was arrested. She claimed that she was handcuffed with the cuffs too tight on my wrist, manhandled in the process of being handcuffed, pulled out of the house without my shoes and in clothes not suitable for winter weather, and paraded through the black part of the City of Lott. During DeRouen s transport to the jail, officers searched another home and pursued a vehicle. DeRouen remained handcuffed, all the while experiencing pain in her neck, hands, and arms. After the cuffs were removed and she was later released, she continued experiencing numbness and pain. She alleged that she was unlawfully imprisoned, treated with greater force than that necessary to arrest me, and the officers were unprofessional, almost hateful, and certainly spiteful.

Plea to the Jurisdiction

A plea to the jurisdiction challenges the trial court s power to determine the subject matter of the suit. Vela v. Waco Indep. Sch. Dist., 69 S.W.3d 695, 698 (Tex. App. Waco 2002, pet. withdrawn). We review a plea based on sovereign immunity de novo because the question of whether a court has subject matter jurisdiction is a matter of law. Hoff v. Nueces County, 153 S.W.3d 45, 48 (Tex. 2004); see Vela, 69 S.W.3d at 698. Where the pleading requirement has been met and evidence has been submitted to support the plea that implicates the merits of the case, we take as true all evidence favorable to the nonmovant. Tex. Dep t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex. 2004) (citing Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997)). We indulge every reasonable inference and resolve any doubts in the nonmovant s favor. Id.

DeRouen s Pleadings

In her petition, DeRouen alleged that: (1) her transport was performed in a circuitous and dangerous fashion ; (2) her neck, arms and hands were injured; (3) she was jailed without provocation and unlawfully jailed in violation of due process of law upon a warrantless arrest, her civil rights, and with cruel insensitivity to her rights; and (4) the officers actions were negligent and willful physical abuse and false imprisonment. She also alleged a claim under 42 U.S.C. 1983. She sought damages for medical expenses, physical injuries, pain and suffering, and emotional distress, as well as humiliation, embarrassment, fear, frustration and general mental anguish.

Sovereign Immunity

[S]overeign immunity deprives a trial court of subject matter jurisdiction for lawsuits in which the state or certain governmental units have been sued unless the state consents to suit. Miranda, 133 S.W.3d at 224. The Tort Claims Act waives sovereign immunity for the following areas of liability: (1) injury caused by the operation or use of a motor-driven vehicle; (2) injury caused by a condition or use of tangible personal property; and (3) injury caused by a premises defect. See Tex. Civ. Prac. & Rem. Code Ann. 101.021 (Vernon 2005).

Operation or Use of a Motor-Driven Vehicle

As to her complaint regarding the manner in which she was transported, DeRouen alleges that her hands were cuffed behind her back and, together with the mode of transport, injured Plaintiff s neck, arms and hands. It is not the use of a motor vehicle that caused DeRouen s alleged injuries, but the manner in which she was handcuffed. She has not pleaded personal injury arising out the use of a motor-driven vehicle. See Tex. Civ. Prac. & Rem. Code Ann. 101.021(1)(A); see also DART v. Whitley, 104 S.W.3d 540, 542-44 (Tex. 2003) (plea to jurisdiction properly granted where injuries did not arise out of the use of a motor-driven vehicle); Tex. Natural Res. Conservation Comm n v. White, 46 S.W.3d 864, 869 (Tex. 2001) (use of the vehicle must have actually caused the injury ). The trial court properly granted the County s plea to the jurisdiction as to DeRouen s claims arising from the operation or use of a motor-driven vehicle.

False Imprisonment

The County argues that DeRouen s false imprisonment claim falls within the intentional-tort exception to the waiver of sovereign immunity, which provides that the Tort Claims Act does not apply to claims arising out of assault, battery, false imprisonment, or any other intentional tort. Tex. Civ. Prac. & Rem. Code Ann. 101.057(2) (Vernon 2005); see State Dep t of Pub. Safety v. Petta, 44 S.W.3d 575, 580-81 (Tex. 2001); see alsoDelaney v. Univ. of Houston, 835 S.W.2d 56, 59 (Tex. 1992); Watson v. Dallas Indep. Sch. Dist., 135 S.W.3d 208, 220 (Tex. App. Waco 2004, no pet.). DeRouen s false/unlawful imprisonment claim falls squarely within this exception. See Tex. Civ. Prac. & Rem. Code Ann. 101.057(2); see also Morris v. Copeland, 944 S.W.2d 696, 697, 698-99 (Tex. App. Corpus Christi 1997, no writ) (sovereign immunity barred claims for false imprisonment, false arrest, and others). The trial court properly granted the County s plea to the jurisdiction as to DeRouen s false imprisonment claim.

Use of Tangible Personal Property

DeRouen contends that she was handcuffed too tightly, causing her to suffer injury and constituting misuse of tangible personal property. To the extent that she alleges intentional misuse of the handcuffs, such as through excessive use of force or an assault, DeRouen s suit is barred by section 101.057. See Tex. Civ. Prac. & Rem. Code Ann. 101.057(2). However, DeRouen further alleges that the officer s conduct was negligent. She alleges that she suffered injury, not that the officer intended to injure her. See Durbin v. City of Winnsboro, 135 S.W.3d 317, 324-25 (Tex. App. Texarkana 2004, pet. denied). Intent to injure cannot necessarily be inferred from the act of improperly handcuffing DeRouen. See id. at 325. By alleging that she suffered injury as a result of the officer s negligent use of the handcuffs, DeRouen pleaded a cause of action for use of tangible personal property under the Tort Claims Act. See Tex. Civ. Prac. & Rem. Code 101.021(2); see also Harrison v. Texas Dep t of Criminal Justice-Institutional Div., 915 S.W.2d 882, 889-90 (Tex. App. Houston [1st Dist.] 1995, no writ) (inmate s allegation that he suffered injuries when TDCJ employees negligently restrained him utilizing security devices stated a claim against the TDCJ under the Tort Claims Act).

Because the trial court possessed subject matter jurisdiction over DeRouen s claim regarding negligent use of tangible personal property, it erred by granting the County s plea to the jurisdiction as to this claim.

SUMMARY JUDGMENT

  In its no-evidence motion for summary judgment, the County argued that it could not be liable for a section 1983 claim because DeRouen failed to present any evidence of harm caused by a policy or custom of the County. DeRouen argues that her affidavit was sufficient to withstand summary judgment and that the trial court erred by determining that she failed to present evidence of a policy or custom.

Standard of Review

A no-evidence summary judgment is reviewed under the same standard as a directed verdict. See Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 581 (Tex. 2006). We review the evidence presented by the motion and response in the light most favorable to the party against whom the summary judgment was rendered, crediting evidence favorable to that party if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not. Id. at 582. A no-evidence summary judgment will be defeated if the non-movant produces some evidence raising an issue of material fact on the elements challenged by the movant. Id.

Analysis

Section 1983 offers no respondeat superior liability. Pineda v. City of Houston, 291 F.3d 325, 328 (5th Cir. 2002), cert. denied, 537 U.S. 1110, 123 S. Ct. 892, 154 L. Ed. 2d 782 (2003). Municipalities face 1983 liability when execution of a government s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury . Id. (quoting Monell v. Dep t of Social Servs., 436 U.S. 658, 694, 98 S. Ct. 2018, 2037, 56 L. Ed. 2d 611 (1978)). Proof of municipal liability sufficient to satisfy Monell requires: (1) an official policy (or custom), of which (2) a policy maker can be charged with actual or constructive knowledge, and (3) a constitutional violation whose moving force is that policy (or custom). Id.

DeRouen presented no evidence of a policy or custom, either in her affidavit or by any other means. The record contains no documents or testimony establishing a custom or policy regarding use of force, similar incidents of force, or a routine use of force. See Hallmark v. City of Fredericksburg, 94 S.W.3d 703, 708 (Tex. App. San Antonio 2002, pet. denied). Because DeRouen failed to present any evidence that her constitutional rights were violated as the result of a custom or policy of the County, the trial court properly granted the County s no-evidence motion for summary judgment on DeRouen s section 1983 claim. See Tex. R. Civ. P. 166a(i); see also Pineda, 291 F.3d at 328.

CONCLUSION

Because the trial court erred by granting the County s plea to the jurisdiction as to DeRouen s claim for negligent use of tangible personal property, we reverse the judgment as to that claim and remand this cause to the trial court for further proceedings consistent with this opinion. We affirm the judgment in all other respects.

FELIPE REYNA

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

(Chief Justice Gray concurring and dissenting with a note)*

Affirmed in part; reversed and remanded in part

Opinion delivered and filed July 23, 2008

[CV06]

* ( Chief Justice Gray concurs in the judgment to the extent that it affirms the trial court s judgment and dissents to the judgment of this Court to the extent that it does not affirm the trial court s judgment. A separate opinion will not issue. )

[1] The trial court also granted Scaman s motion to dismiss filed in his individual capacity. DeRouen does not challenge this dismissal.