Opinion
Civil No. 3:99-CV-2255-H
February 22, 2000
MEMORANDUM OPINION AND ORDER
Before the Court are City of Cleburne's Motion and Brief to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(6), filed October 25, 1999, and all responses and replies thereto; Thomas Cowan's Motion and Brief Seeking Dismissal Pursuant to Rule 12(b)(6) and Schultea, filed October 25, 1999, and all responses and replies thereto; and Tom Hargrave's Motion and Brief Seeking Dismissal Pursuant to Rule 12(b)(6) and Schultea, filed October 25, 1999, and all responses and replies thereto.
Plaintiffs filed on December 15, 1999 a pleading styled "Plaintiff's Response to Defendants City of Cleburne, Chief Cowans and Tom Hargraves Response Opposing Plaintiff's Response to Motion to Dismiss." This document is a surreply which may not be filed without leave of court; thus the Court STRIKES this pleading, and does not consider it in ruling on the instant motions.
Having considered the motions and briefs of the parties, and for the reasons stated below, the Court GRANTS Defendant City of Cleburne's Motion to Dismiss, and GRANTS IN PART and DENIES IN PART Defendants Cowan and Hargrave's Motions to Dismiss.
I. BACKGROUND
This lawsuit arises out of an event that Plaintiff characterizes as a domestic disturbance. Plaintiffs Antonio Vidaurri and Robert Vidaurri were, at the time of the events in question, police officers for the City of Cleburne Police Department. Robert Vidaurri was divorced from Defendant Leona Vidaurri, a Johnson County Deputy Sheriff. After their divorce, it appears that Robert and Leona continued or resumed living together.
Apparently, living together didn't work out. On August 30, 1997, Robert and his brother, Antonio Vidaurri, visited the house that Robert and Leona allegedly shared in order to remove his property from the house. Leona arrived home to find Robert and Antonio there. As Plaintiffs euphemistically state, "at some point, words were exchanged" between Leona and Robert, the divorcees. Leona called the police, and shortly after, Plaintiff Steve Aston, a City of Cleburne Police Officer like Robert and Antonio, arrived at the scene. Steve Aston allegedly negotiated a settlement that allowed Robert to return later to retrieve his things. Steve did not charge either Robert or Antonio with criminal trespass, as he believed Robert had been paying rent and Antonio was present with the permission of Robert.
On November 7, 1997, Robert, Antonio and Steve Aston were arrested pursuant to an indictment for criminal trespass and booked into Johnson County Jail. They allege they were unlawfully detained for three hours after they posted the required bail. Plaintiffs allege that Leona, along with Defendants Tom Hargrave (Lieutenant, Cleburne Police Department), Thomas Cowan (Chief of Police, Cleburne Police Department), Ann Brown (Johnson County Sheriff's Department), Bob Alford (Sheriff, Johnson County), Johnson County, and the City of Cleburne violated their Fourth and Fourteenth Amendment rights, entitling them to damages under 42 U.S.C. § 1983. Plaintiffs also allege that these Defendants intentionally inflicted emotional distress, violated the Texas Constitution and Texas law, and conspired to violate their civil rights under § 1983.
Defendants City of Cleburne, Tom Hargrave and Thomas Cowan now move to dismiss the suit against them under Rule 12(b)(6) for failure to state a claim, and failure to overcome qualified immunity.
II. STANDARD FOR MOTION TO DISMISS
A. In General
In considering a motion to dismiss a complaint for failure to state a claim, the Court must accept as true the well-pleaded factual allegations and any reasonable inferences to be drawn from them. See Tuchman v. DSC Communications Corp., 14 F.3d 1061, 1067 (5th Cir. 1994). To avoid dismissal for failure to state a claim, however, a plaintiff "must plead specific facts, not mere conclusory allegations." Guidry v. Bank of LaPlace, 954 F.2d 278, 281 (5th Cir. 1992) (citation omitted). Thus, the Court will not accept as true any conclusory allegations or unwarranted deductions of fact. The Court may not look beyond the pleadings. See Mahone v. Addicks Util. Dist., 836 F.2d 921, 936 (5th Cir. 1988).
Dismissal for failure to state a claim is not favored by the law. See Mahone, 836 F.2d at 926. A Plaintiffs complaint "should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief" Conley v. Gibson, 355 U.S. 41, 45-46 (1957). However, "there are times when a court should exercise its power to dismiss a complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure." Mahone, 836 F.2d at 927 (emphasis in original).
B. Under Schultea
The Fifth Circuit requires that, when a public official pleads the affirmative defense of qualified immunity, a Court may require the plaintiff to reply to that defense in detail. See Schultea v. Wood, 47 F.3d 14276, 1433 (5th Cir. 1995). Qualified immunity requires that Plaintiff show that the public official "violated clearly established law of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Should Plaintiff's reply fail to plead facts sufficient to overcome an assertion of qualified immunity, the Court may dismiss the complaint for failure to state a claim. See Todd v. Hawk, 72 F.3d 443, 446 (5th Cir. 1995).
III. CITY OF CLEBURNE'S MOTION TO DISMISS
A. Federal claims
In order to establish the City of Cleburne's liability for violation of Plaintiffs' rights, Plaintiffs must show that a policy, ordinance, regulation, or decision officially adopted and promulgated by the municipality caused them to be deprived of their constitutional rights. See Monell v. New York City Department of Social Services, 436 U.S. 658 (1978). A plaintiff must identify the policy, connect the policy to the governmental entity itself and show that his injury was incurred because of the application of that specific policy. See Bennett v. City of Slidell, 728 F.2d 762, 767 (5th Cir. 1984), cert. denied, 472 U.S. 1016 (1985). Even a single application of a unconstitutional official policy can state a violation of an individual rights. See Oklahoma City v. Tuttle, 471 U.S. 808 (1985).
Plaintiffs complaint alleges in conclusory language that Plaintiffs' incurred injuries resulting from "a policy, custom and practice of the Defendants Johnson County and the City of Cleburne," but points to no specific, identifiable unconstitutional policy. Because the substance of Plaintiffs' claim concerns their false arrest and imprisonment, Plaintiffs must identify an unconstitutional City policy concerning arrest and imprisonment. Yet Plaintiffs identify no such policy, and plead no specific facts that connect their injuries to such an unconstitutional City policy. As Plaintiffs pleads only conclusory allegations of liability on behalf of the City, they cannot avoid dismissal for failure to state a claim.
To overcome their defects in pleading, Plaintiffs argue that Cowan is a policymaker for the City of Cleburne. Plaintiffs propose the invalid syllogism: Cowan allegedly makes policy, Cowan allegedly violated their rights, ergo a policy violated their rights. However, that conclusion presumes that every action by Cowan creates City policy, an untenable argument. Plaintiffs factual allegations at most state a constitutional violation by Cowan in his individual capacity, but fail to identify a policy attributable to the City that caused Plaintiffs' constitutional injury.
For the same reasons, the complaint contains no factual allegation that supports Plaintiffs' claim that the City of Cleburne participated in a conspiracy to violate Plaintiffs' constitutional rights. Moreover, Plaintiff's claim for punitive damages is void; punitive damages against a governmental entity are unavailable under § 1983. See City of Newport v. Fact Concerts Inc. 453 U.S. 247 (1981).
Therefore, Plaintiffs' federal claims against the City of Cleburne are dismissed.
B. State Law Claims
Defendant City of Cleburne further moves that the Court dismiss Plaintiffs' state law claims against the City of Cleburne. Plaintiffs offer no argument in opposition. Therefore, the Court holds that all state law claims against the City of Dallas are dismissed for the reasons stated below.
The complaint alleges that all Defendants, including the City of Cleburne, intentionally inflicted emotional distress on the Plaintiffs. Such a cause of action can be brought only if the City has waived its sovereign immunity under the Texas Tort Claims Act. See State v. Terrell, 588 S.W.2d 784 (Tex. 1979). It is clear that liability for intentional torts, including intentional infliction of emotional distress, is expressly excluded from the limited waiver of sovereign immunity included in the Texas Tort Claims Act. See TEX. CIV. PRAC. REM. CODE § 101.057(2). Therefore, Plaintiffs' cause of action for intentional infliction of emotional distress is dismissed as against the City of Cleburne.
The complaint further alleges that all Defendants, including the City of Cleburne, violated "the statutes, laws, and Constitution of the State of Texas" through malicious prosecution, false arrest and/or false imprisonment. Texas law provides no private cause of action for a violation of a right guaranteed by the Texas Constitution. See Beaumont v. Bouillon, 896 S.W.2d 143, 149 (Tex. 1995); Gillum v. City of Kerrville, 3 F.3d 117 (5th Cir. 1993). Therefore, Plaintiffs claims under the Texas Constitution are dismissed.
To the extent the complaint states a claim for liability of the City of Cleburne for false arrest, false imprisonment or malicious prosecution under state law, these claims are also intentional torts that are disallowed by the Texas Tort Claims Act. See TEX. Civ. PRAC. REM. CODE § 101.057(2); City of Hempstead v. KMIEC, 902 S.W.2d 118, 122 (Tex.App.-Houston [1st. Dist.] 1995, no writ) (sovereign immunity not waived for false arrest, malicious prosecution); Morris v. Copeland, 944 S.W.2d 696 (Tex.App.-Corpus Christi, 1997, no writ) (sovereign immunity not waived for false imprisonment). Therefore, Plaintiffs' state law claims are dismissed as against the City of Cleburne.
In sum, the City of Cleburne's Motion to Dismiss is GRANTED.
IV. COWAN AND HARGRAVE'S MOTION TO DISMISS
A. Federal claims
Defendants Cowan and Hargrave move that the Court dismiss Plaintiffs § 1983 and conspiracy claim for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6). Defendants argue that Plaintiffs merely allege supervisory liability of Cowan and Hargrave. To be liable under § 1983, a police supervisor must either be personally involved in the acts causing the deprivation of rights, or there must be a causal connection between an act of the police supervisor and the constitutional violation. See Harvey v. Andrist, 754 F.2d 569, 572 (5th Cir. 1985). Upon review of the complaint, it is clear that Plaintiffs allege the personal involvement of Cowan and Hargrave in the violations of Plaintiffs' rights. Indeed, the complaint alleges that Cowan and Hargrave ordered the unlawful detention of Plaintiffs in order to complete suspension paperwork.
Moreover, Plaintiffs' Schultea reply (located at pages three to seven of Plaintiffs' Response to Cowan and Hargrave's Motions to Dismiss) alleges that Cowan and Hargrave made an agreement with Bob Alford and/or Ann Brown, Johnson County officials, to unlawfully detain Plaintiffs after their arrest. An allegation of an agreement by state actors to deprive a person of their civil rights which results in such a deprivation is sufficient to state a claim of conspiracy under § 1983. See Pfannstiel v. City of Marion, 918 F.2d 1178, 1187 (5th Cir. 1990) (elements of conspiracy to violate civil rights are existence of conspiracy involving state action, and deprivation of civil rights in furtherance of conspiracy by a party to the conspiracy).
B. Claims under the Texas Constitution
Cowan and Hargrave move that Plaintiffs' claims under the Texas Constitution be dismissed. Texas law does not recognize a private cause of action for damages for deprivation of a right guaranteed by the Texas Constitution, with the narrow exception of a taking of property with just compensation. See Beaumont v. Bouillon, 896 S.W.2d 143, 149 (Tex. 1995); Gillum v. City of Kerrville, 3 F.3d 117 (5th Cir. 1993) (under Texas law, there is no state constitutional tort action as provided under § 1983 or Bivens). Therefore, Plaintiffs claims under the Texas Constitution are dismissed.
C. Qualified Immunity
Defendants Cowan and Hargrave assert in their motion to dismiss that, as public officials, they are protected by qualified immunity, and they request that Plaintiffs submit a reply under Rule 7(a) and Schultea tailored to the defense of qualified immunity. Rather than file a separate Schultea Reply, Plaintiffs allege certain facts regarding the conduct of Defendants Cowan and Hargrave relating to qualified immunity in their response to the motions to dismiss. (Pl.'s 11/16/99 Answer at 3-7). The Court considers these pages a competent Rule 7(a) reply and part of the complaint in this case. Upon review of the reply, the Court finds that Plaintiffs plead facts with the requisite specificity to state a constitutional claim.
To pursue a claim over an assertion of qualified immunity, a party must allege, with factual detail and particularity, acts that show that a public official "violated clearly established law of which a reasonable person would have known." See Schultea v. Wood, 47 F.3d 1427, 1434 (5th Cir. 1995). Plaintiffs meet this burden. Specifically, Plaintiffs allege that Cowan and Hargrave pursued criminal charges against Plaintiffs with the knowledge the charges were unmeritorious (Pl.'s Ans. at 3), that they concealed information from the grand jury and Texas Rangers (Pl.s Ans. at 6), and that they requested that Plaintiffs be unlawfully detained in order to process their suspensions (Pl's Ans. at 5). The fact that Defendants Cowan and Hargrave dispute the veracity of the allegations is inapposite; in reviewing a motion to dismiss, the Court must take all of Plaintiffs' factual allegations as true. See Tuchman v. DSC Communications Corp., 14 F.3d 1061, 1067 (5th Cir. 1994); Cf. Reyes v. Sazan, 168 F.3d 158, 161 (5th Cir. 1999) (review of Schultea reply does not require determining of factual assertions are true). Plaintiffs' allegations regarding Cowan and Hargrave's conduct are sufficient to establish a violation of a clearly established right (i.e. freedom from unlawful searches and seizures) of which a reasonable person would have known.
V. CONCLUSION
Upon review of the motions and briefs of the parties, the Court GRANTS Defendant City of Cleburne's Motion to Dismiss; therefore, Plaintiffs' claims against Defendant City of Cleburne are DISMISSED WITH PREJUDICE.
Further, for the reasons stated above, Defendants Cowan and Hargrave's Motion to Dismiss is GRANTED IN PART and DENIED IN PART. Plaintiffs' claims under the Texas Constitution are DISMISSED WITH PREJUDICE; Plaintiffs' claims against all defendants, with the exception of City of Cleburne, for violation of civil rights (under § 1983), conspiracy in violation of civil rights, intentional infliction of emotional distress, and malicious prosecution remain.
SO ORDERED.