May et al v. Andres et al

Motion to Dismiss for Failure to State a Claim, Second MOTION to Dismiss for Lack of Jurisdiction

N.D. Tex.March 31, 2017

IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS DALLAS DIVISION JORDAN MAY, JASMINE MAY, § AND AVA MAY, as next of kin of § JUAN ONEIL MAY decedent, and § JINDIA MAY BLUNT, individually § and as representative of THE ESTATE § OF JUAN ONEIL MAY, deceased, § Plaintiffs, § § v. § CIVIL ACTION NO. 3:16-CV-1674-L § CITY OF ARLINGTON, TEXAS, § a municipality, and THEDRICK § ANDRES, individually and in his § official capacity as a Police Officer § for the City of Arlington, § Defendants. § DEFENDANT CITY OF ARLINGTON’S SECOND MOTION TO DISMISS UNDER RULES 12(b)(1) AND 12(b)(6) AND BRIEF FILED IN RESPONSE TO PLAINTIFFS’ FIRST AMENDED ORIGINAL COMPLAINT Robert Fugate Texas Bar No. 00793099 Deputy City Attorney robert.fugate@arlingtontx.gov Cynthia Withers Texas Bar No. 00791839 Senior Attorney cynthia.withers@arlingtontx.gov City Attorney’s Office City of Arlington Mail Stop #63-0300 P.O. Box 90231 Arlington, Texas 76004-3231 Telephone: (817) 459-6878 Facsimile: (817) 459-6897 ATTORNEYS FOR DEFENDANT CITY OF ARLINGTON Case 3:16-cv-01674-L Document 20 Filed 03/31/17 Page 1 of 32 PageID 185 i TABLE OF CONTENTS Table of Contents ........................................................................................................... i Table of Authorities ...................................................................................................... ii I. Identification of Live Pleadings and Procedural Background ...........................2 II. Grounds for Dismissal .......................................................................................2 III. Factual Background ...........................................................................................3 IV. Applicable Procedural Standards .......................................................................3 A. Rule 12(b)(1) standard ...........................................................................4 B. Rule 12(b)(6) standard ...........................................................................5 V. Arguments and Authorities ................................................................................6 A. All federal claims against Arlington fail under Monell .........................7 B. Arlington retains governmental immunity from Texas state law claims based on intentional conduct ....................................................12 C. Neither federal nor state law allows for exemplary damages against governmental entities ..............................................................20 D. Jindia May Blunt lacks standing to bring claims in her individual capacity ...............................................................................22 VI. Relief ................................................................................................................24 Signature ......................................................................................................................24 Certificate of Service ...................................................................................................25 Case 3:16-cv-01674-L Document 20 Filed 03/31/17 Page 2 of 32 PageID 186 ii TABLE OF AUTHORITIES CASES Aguillard v. McGowen, 207 F.3d 226 (5th Cir. 2000) ....................................................................................... 23-24 Allen v. Wright, 468 U.S. 737 (1984) .......................................................................................................... 24 Arbaugh v. Y & H Corp., 546 U.S. 500 (2006) ............................................................................................................ 4 Ashcroft v. Iqbal, 556 U.S. 662 (2009) ......................................................................................................... 4-5 Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) .................................................................................................... 5-6,11 Bennett v. City of Slidell, 735 F.2d 861 (5th Cir. 1984) (en banc, per curiam) ........................................................... 9 Bian v. Clinton, 605 F.3d 249 (5th Cir. 2010) (vacated as moot) ................................................................. 4 Blackburn v. City of Marshall, 42 F.3d 925 (5th Cir. 1995) ................................................................................................ 6 Brazier v. Cherry, 293 F.2d 401 (5th Cir. 1961) ............................................................................................ 23 Brown v. Bryan County, 219 F.3d 450 (5th Cir. 2000) .............................................................................................. 9 City of Dallas v. Gatlin, 329 S.W.3d 222 (Tex. App.-Dallas 2010, no pet.) ......................................................... 21 City of Galveston v. State, 217 S.W.3d 466 (Tex. 2007) ............................................................................................. 21 City of Garland v. Rivera, 146 S.W.3d 334 (Tex. App.-Dallas 2004, no pet.) ......................................................... 17 City of Laredo v. Nuno, 94 S.W.3d 786 (Tex. App.-San Antonio 2002, no pet.) ........................................... 14, 17 Case 3:16-cv-01674-L Document 20 Filed 03/31/17 Page 3 of 32 PageID 187 iii City of Newport v. Fact Concerts, Inc., 453 U.S. 247 (1981) .................................................................................................. 3, 6, 20 City of North Richland Hills v. Friend, 337 S.W.3d 387 (Tex. App.-Fort Worth 2011), rev'd on other grounds, 370 S.W.3d 369 (Tex. 2012) ...................................................... 21 City of Watauga v. Gordon, 434 S.W.3d 586 (Tex. 2014) ............................................................................................. 14 Coffey v. Johnson, 142 S.W.3d 414 (Tex. App.-Eastland 2004, no pet.) ..................................................... 23 Collins v. Morgan Stanley Dean Witter, 224 F.3d 496 (5th Cir. 2000) .............................................................................................. 6 Durbin v. City of Winnsboro, 135 S.W.3d 317 (Tex. App.-Texarkana 2004, pet. denied) ........................................... 21 Eastland County Coop. Dispatch v. Poyner, 64 S.W.3d 182 (Tex. App.-Eastland 2001, pet. denied) ................................................ 17 Escobar v. Harris County, 442 S.W.3d 621 (Tex. App.-Houston [1st Dist.] 2014, no pet.) .................................... 16 Evans v. City of Houston, 246 F.3d 344 (5th Cir. 2001) .............................................................................................. 9 Fernandez-Montes v. Allied Pilots Ass’n, 987 F.2d 278 (5th Cir. 1993) .............................................................................................. 6 FW/PBS, Inc. v. City of Dallas, 493 U.S. 215 (1990) .......................................................................................................... 24 Handley v. City of Seagoville, Texas, 798 F.Supp. 1267 (N.D. Tex. 1992) ................................................................................. 23 Harris County v. Cabazos, 177 S.W.3d 105 (Tex. App.-Houston [1st Dist.] 2005, no pet.) ............................... 14-16 Hidalgo County v. Dyer, 358 S.W.3d 698 (Tex. App.-Corpus Christi 2011, no pet.) ........................................... 15 Hobart v. City of Stafford, 784 F.Supp.2d 732 (S.D. Tex. 2011) .......................................................................... 15, 18 Case 3:16-cv-01674-L Document 20 Filed 03/31/17 Page 4 of 32 PageID 188 iv Holland v. City of Houston, 41 F.Supp.2d 678 (S.D. Tex. 1999) ............................................................................ 15, 18 Home Builders Ass’n of Miss., Inc. v. City of Madison, 143 F.3d 1006 (5th Cir. 1998) ............................................................................................ 4 Huong v. City of Port Arthur, 961 F.Supp. 1003 (E.D. Tex. 1997) ............................................................................ 15, 18 Jackson v. Widnall, 99 F.3d 710 (5th Cir. 1996) .............................................................................................. 11 Kellough v. Bertrand, 22 F.Supp.2d 602 (S.D. Tex. 1998) ............................................................................. 18-19 Kuhl v. City of Garland, 910 S.W.2d 929 (Tex. 1995) (per curiam) ........................................................................ 21 Limon v. City of Balcones Heights, 485 F.Supp.2d 751 (W.D. Tex. 2007)............................................................................... 18 Little v. Schafer, 319 F.Supp. 190 (S.D. Tex. 1970) .............................................................................. 16, 19 Medrano v. City of Pearsall, 989 S.W.2d 141 (Tex. App.-San Antonio 1999, no pet.) ............................................... 17 McCord v. Mem’l Med. Cntr. Hosp., 750 S.W.2d 362 (Tex. App.-Corpus Christi 1988, no writ) ........................................... 18 Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978) ..................................................................................................... 2, 6-8 Morgan v. City of Alvin, 175 S.W.3d 408 (Tex. App.-Houston [1st Dist.] 2004, no pet.) ............................... 16-17 Oklahoma City v. Tuttle, 471 U.S. 808 (1985) .......................................................................................................... 11 Papasan v. Allain, 478 U.S. 265 (1986) .......................................................................................................... 11 Pembaur v. City of Cincinatti, 475 U.S. 469 (1986) .......................................................................................................... 11 Case 3:16-cv-01674-L Document 20 Filed 03/31/17 Page 5 of 32 PageID 189 v Pineda v. City of Houston, 291 F.3d 325 (5th Cir. 2002) ......................................................................................... 9-10 Pineda v. City of Houston, 175 S.W.3d 276 (Tex. App.-Houston [1st Dist.] 2004, no pet.) .................................... 14 Piotrowski v. City of Houston, 237 F.3d 567 (5th Cir. 2001) .............................................................................................. 9 Pluet v. Frazier, 355 F.3d 381 (5th Cir. 2004) ............................................................................................ 23 R2 Invs., LDC v. Phillips, 401 F.3d 638 (5th Cir. 2005) .............................................................................................. 6 Ramming v. United States, 281 F.3d 158 (5th Cir. 2001) .............................................................................................. 4 Rhyne v. Henderson County, 973 F.2d 386 (5th Cir. 1992) ............................................................................................ 23 Riggs v. City of Pearland, 177 F.R.D. 395 (S.D. Tex. 1997) ................................................................................. 18-19 Russell v. Ingersoll-Rand Co., 795 S.W.2d 243 (Tex. App.-Houston [1st Dist.] 1990), aff'd, 841 S.W.3d 343 (Tex. 1992) .................................................................................... 24 San Antonio v. Dunn, 796 S.W.2d 258 (Tex. App.-San Antonio 1990, writ denied)................................... 17-18 Sanders v. City of Grapevine, 218 S.W.3d 772 (Tex. App.-Fort Worth 2007, pet. denied) .......................................... 21 Schultea v. Wood, 47 F.3d 1427 (5th Cir. 1995) (en banc) ............................................................................ 11 Spiller v. City of Tex. City, Police Dep’t, 130 F.3d 162 (5th Cir. 1997) ............................................................................................ 10 Spotts v. United States, 613 F.3d 559 (5th Cir. 2010) .............................................................................................. 4 St. Tammany Parish v. Fed. Emergency Mgmt. Agency, 556 F.3d 307 (5th Cir. 2009) .............................................................................................. 4 Case 3:16-cv-01674-L Document 20 Filed 03/31/17 Page 6 of 32 PageID 190 vi Stephens v. Dallas Area Rapid Transit, 50 S.W.3d 621 (Tex. App.-Dallas 2001, pet. denied) .................................................... 22 Tarrant County Hosp. Dist. v. Henry, 52 S.W.3d 434 (Tex. App.-Fort Worth 2001, no pet.) ................................................... 14 Texas Dep’t of Crim. Justice v. Campos, 384 S.W.3d 810 (Tex. 2012) (per curiam) ........................................................................ 13 Texas Dep’t of Public Safety v. Petta, 44 S.W.3d 575 (Tex. 2001) .................................................................................... 13-14, 19 Webster v. Houston, 735 F.2d 838 (5th Cir. 1984) (en banc, per curiam) ......................................................... 10 Wolcott v. Sebelius, 635 F.3d 757 (5th Cir. 2011) .............................................................................................. 4 STATUTES 42 U.S.C. § 1983 ............................................................................................... 7, 12, 20, 23 42 U.S.C. § 1988 ............................................................................................................... 23 TEX. CIV. PRAC. & REM. CODE § 71.004 ............................................................... 7, 23-24 TEX. CIV. PRAC. & REM. CODE § 71.021 ........................................................................ 23 TEX. CIV. PRAC. & REM. CODE § 101.023 ...................................................................... 23 TEX. CIV. PRAC. & REM. CODE § 101.024 ......................................................... 3, 6, 20-22 TEX. CIV. PRAC. & REM. CODE § 101.057 ................................................. 2, 12-13, 16, 19 TEX. PENAL CODE § 9.31 ................................................................................................ 8-9 TEX. PENAL CODE § 22.01 ................................................................................................. 3 FEDERAL RULES FED. R. CIV. P. 8(a)(2) ......................................................................................................... 5 FED. R. CIV. P. 12(b)(1) ......................................................................................... in passim FED. R. CIV. P. 12(b)(6) ......................................................................................... in passim FED. R. CIV. P. 12(h)(3) ...................................................................................................... 5 Case 3:16-cv-01674-L Document 20 Filed 03/31/17 Page 7 of 32 PageID 191 IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS DALLAS DIVISION JORDAN MAY, JASMINE MAY, § AND AVA MAY, as next of kin of § JUAN ONEIL MAY decedent, and § JINDIA MAY BLUNT, individually § and as representative of THE ESTATE § OF JUAN ONEIL MAY, deceased, § Plaintiffs, § § v. § CIVIL ACTION NO. 3:16-CV-1674-L § CITY OF ARLINGTON, TEXAS, § a municipality, and THEDRICK § ANDRES, individually and in his § official capacity as a Police Officer § for the City of Arlington, § Defendants. § DEFENDANT CITY OF ARLINGTON’S MOTION TO DISMISS UNDER RULES 12(b)(1) AND 12(b)(6) AND BRIEF FILED IN RESPONSE TO PLAINTIFFS’ FIRST AMENDED ORIGINAL COMPLAINT TO THE HONORABLE JUDGE LINDSAY, UNITED STATES DISTRICT JUDGE: Defendant City of Arlington (“Arlington”) respectfully files its Second Motion to Dismiss Plaintiffs’ claims pursuant to FED. R. CIV. P. 12(b)(1) and 12(b)(6). In support hereof, Arlington respectfully shows the Court the following: Case 3:16-cv-01674-L Document 20 Filed 03/31/17 Page 8 of 32 PageID 192 Arlington’s Second Motion to Dismiss and Brief 2 I. Identification of Live Pleadings and Procedural Background 1.01 The live complaint is Plaintiffs’ First Amended Original Complaint, filed on March 17, 2017. 1 Plaintiffs allege civil rights violations and seeks redress under 42 U.S.C. § 1983. 2 The complaint also alleges state law claims for negligence, intentional infliction of emotional distress, and assault. 3 The First Amended Original Complaint was filed after the Court’s Memorandum Opinion and Order (Doc. 12), which addressed the motions to dismiss filed by Officer Thedrick Andres and the Arlington Police Department. The Court allowed Plaintiffs the opportunity to file an amended pleading. 4 Likewise, the Court allowed the Defendants to file a second motion to dismiss if an adequate ground exists. 5 II. Grounds for Dismissal 2.01 Arlington may not be held liable under § 1983 unless the wrongful conduct of an employee is pursuant to policy or custom of Arlington. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978). Plaintiffs fail to identify any such policy or custom. 2.02 The Texas Tort Claims Act (“TTCA”) does not waive Arlington’s immunity for claims alleging intentional torts. See TEX. CIV. PRAC. & REM. CODE § 101.057. Texas courts have repeatedly barred claims for intentional acts of police officers. Accordingly, Plaintiffs claims TTCA claim (“Third Cause of Action”), 6 intentional infliction of emotional distress claim (to the extent based on Texas law) (“Seventh Cause of Action”), 7 and assault 1 Plaintiffs’ First Amended Original Complaint (Doc. 17, PageID 122-46). 2 Id. 3 Id. at pp.19-20, 22-23 (PageID 140-41, 143-44). 4 See Memorandum Opinion and Order (Doc. 12), p.21. 5 Id. 6 See Plaintiffs’ First Amended Original Complaint (Doc. 17), pp.19-20 (PageID 140-41). 7 See id. at p.22 (PageID 143). Case 3:16-cv-01674-L Document 20 Filed 03/31/17 Page 9 of 32 PageID 193 Arlington’s Second Motion to Dismiss and Brief 3 claim based on § 22.01 of the Texas Penal Code (“Eighth Cause of Action”) 8 should be dismissed with prejudice for lack of jurisdiction. See FED. R. CIV. P. 12(b)(1). 2.03 The Plaintiffs’ claim for punitive damages against Arlington is barred because there is no applicable waiver of immunity for a punitive damage claim under either federal or Texas state law. See City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 249-71 (1981); TEX. CIV. PRAC. & REM. CODE § 101.024. The punitive damage claims should be dismissed with prejudice for lack of jurisdiction. See FED. R. CIV. P. 12(b)(1). 2.04 Jindia May Blunt, as sister of Juan Oneil May, 9 lacks standing to bring claims in her individual capacity. Accordingly, all claims by Jindia May Blunt asserted in her individual capacity should be dismissed with prejudice for lack of jurisdiction. III. Factual Background 3.01 Plaintiffs’ factual allegations are stated in Plaintiffs’ First Amended Original Complaint. 10 IV. Applicable Procedural Standards 4.01 Arlington contends that the Court lacks jurisdiction over (1) Plaintiffs’ Texas state law claims, (2) Plaintiffs’ claim for exemplary damages under federal and state law, and (3) Plaintiff Jindia May Blunt’s wrongful death claims in her individual capacity. These claims are challenged under Rule 12(b)(1). Plaintiffs’ remaining claims are challenged under Rule 12(b)(6) because they fail to state claims upon which relief can be granted. 8 See id. at p.22-23 (PageID 143-44). 9 See id. at p.2, ¶¶4-5 (Doc. 17, PageID 123). 10 See id. at pp.3-7 (Doc. 17, PageID124-28). Case 3:16-cv-01674-L Document 20 Filed 03/31/17 Page 10 of 32 PageID 194 Arlington’s Second Motion to Dismiss and Brief 4 A. Rule 12(b)(1) standard. 4.02 The lack of subject-matter jurisdiction is a ground for the dismissal under Rule 12(b)(1). FED. R. CIV. P. 12(b)(1). “Subject-matter jurisdiction cannot be forfeited or waived and should be considered when fairly in doubt.” Ashcroft v. Iqbal, 556 U.S. 662, 671 (2009). The contention that a federal court lacks subject-matter jurisdiction may be raised by a party or the Court (on its own initiative) at any stage in the litigation, even after trial and the entry of judgment. Arbaugh v. Y & H Corp., 546 U.S. 500, 506 (2006). 4.03 In applying Rule 12(b)(1), the district court "has the power to dismiss for lack of subject matter jurisdiction on any one of three separate bases: (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts." Spotts v. United States, 613 F.3d 559, 565-66 (5th Cir. 2010) (quoting St. Tammany Parish v. Fed. Emergency Mgmt. Agency, 556 F.3d 307, 315 (5th Cir. 2009) (internal quotation marks omitted in Spotts)). “A district court properly dismisses a case for lack of subject matter jurisdiction ‘when the court lacks the statutory or constitutional power to adjudicate the case.’” Bian v. Clinton, 605 F.3d 249, 252 (5th Cir. 2010) (vacated as moot) (quoting Home Builders Ass’n of Miss., Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998)). 4.04 “The party asserting jurisdiction bears the burden of proof for a 12(b)(1) motion to dismiss.” Wolcott v. Sebelius, 635 F.3d 757, 762 (5th Cir. 2011) (citing Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001). “When a Rule 12(b)(1) motion is filed in conjunction with other Rule 12 motions, the court should consider the Case 3:16-cv-01674-L Document 20 Filed 03/31/17 Page 11 of 32 PageID 195 Arlington’s Second Motion to Dismiss and Brief 5 Rule 12(b)(1) jurisdictional attack before addressing any attack on the merits.” Id. “The district court must dismiss the action if it finds that it lacks subject matter jurisdiction.” Id. (citing FED. R. CIV. P. 12(h)(3)). B. Rule 12(b)(6) standard. 4.05 Rule 12(b)(6) recognizes that the failure to state a claim upon which relief can be granted is a ground for the dismissal of a complaint. FED. R. CIV. P. 12(b)(6). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, (2007)). The plausibility standard requires more of plaintiffs than simply alleging facts that indicate relief is possible; the Supreme Court explained: A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a “probability requirement,” but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are “merely consistent with” a defendant's liability, it “stops short of the line between possibility and plausibility of ‘entitlement to relief.’” Id. (internal citations omitted). Where “well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not ‘show[n]’-‘that the pleader is entitled to relief.’” Iqbal, 556 U.S. at 679 (quoting FED. R. CIV. P. 8(a)(2)). Thus, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. at 678. “[O]nly a complaint that states a plausible claim for relief survives a motion to dismiss.” Id. at 679. 4.06 “While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.” Id. “A pleading that offers ‘labels and Case 3:16-cv-01674-L Document 20 Filed 03/31/17 Page 12 of 32 PageID 196 Arlington’s Second Motion to Dismiss and Brief 6 conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’” Id. at 678 (quoting Twombly, 550 U.S. at 555). “Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Id. (quoting Twombly, 550 U.S. at 557). Pleadings that consist of “no more than conclusions, are not entitled to the assumption of truth.” Id. at 679. In short, “conclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss.” Fernandez-Montes v. Allied Pilots Ass’n, 987 F.2d 278, 284 (5th Cir. 1993). 4.07 The devotion to the plaintiff's complaint does not extend to “conclusory allegations or unwarranted deductions of fact.” Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000). Courts should not “strain to find inferences favorable to the plaintiffs”. R2 Invs., LDC v. Phillips, 401 F.3d 638, 642 (5th Cir. 2005). Moreover, “[d]ismissal is proper if the complaint lacks an allegation regarding a required element necessary to obtain relief.” Blackburn v. City of Marshall, 42 F.3d 925, 931 (5th Cir. 1995) (citing 2A Moore’s Federal Practice ¶ 12.07 [2.-5] at 12-91). V. Arguments and Authorities 5.01 Arlington’s Second Motion to Dismiss presents four independent grounds. First, the plaintiffs have failed to identify a policy or practice by Arlington that caused their alleged harm. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690-91 (1978). Second, Arlington’s governmental immunity has not been waived for Plaintiffs’ Texas state law claims, all of which are based on intentional conduct. See TEX. CIV. PRAC. & REM. CODE § 101.057. Third, Arlington is immune from exemplary damages under both federal and Texas state law. See City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 249-71 (1981); TEX. CIV. PRAC. & REM. CODE § 101.024. Last, Jindia May Blunt, as Case 3:16-cv-01674-L Document 20 Filed 03/31/17 Page 13 of 32 PageID 197 Arlington’s Second Motion to Dismiss and Brief 7 the sister of Juan Oneil May, lacks standing to pursue claims in her individual capacity. See TEX. CIV. PRAC. & REM. CODE § 71.004(a). A. All federal claims against Arlington fail under Monell. 5.02 The Court previously admonished Plaintiffs that their original complaint did not adequately set forth allegations to show that they have suffered a constitutional injury as a result of a policy or custom of the City of Arlington, which is required when suing a governmental entity pursuant to 42 U.S.C. § 1983. 11 The Court further stated: “In this regard, Plaintiffs must set forth sufficient facts for the court to reasonably infer that Juan May’s death resulted from an unconstitutional policy or custom of the City of Arlington.” 12 Once again, the Plaintiffs have failed to state facts demonstrating how any City of Arlington policy or custom is in play. 5.03 Plaintiffs own version of events shows Arlington had no involvement. 13 The incident occurred in Duncanville, not Arlington, when Juan May and Officer Andres were both attending a mutual friend’s birthday celebration. 14 On what Plaintiffs describe as a “typical adult birthday celebration,” Juan May suggested that Officer Andres “dance on the stripper pole that was located inside the party bus.” 15 According to Plaintiffs, Officer Andres took offense. 16 Words were exchanged. 17 Juan May started the fight by hitting Officer Andres in the face. 18 Plaintiffs allege that Patrick May joined in the fight 11 See Memorandum Opinion and Order, p.15 (Doc. 12, PageID 73). 12 See id. (emphasis added). 13 See Plaintiffs’ First Amended Original Complaint, pp.3-7 (Doc. 17, PageID 124). 14 See id. at p.3, ¶12. 15 See id. at ¶¶12-13. 16 See id. at ¶13. 17 See id. at pp.4-5, ¶¶13-14. 18 See id. at p.4, ¶14. Case 3:16-cv-01674-L Document 20 Filed 03/31/17 Page 14 of 32 PageID 198 Arlington’s Second Motion to Dismiss and Brief 8 after attempted to break it up. 19 In this two-on-one fight, Plaintiffs allege Officer Andres “swung his arms wildly as he struck both Juan and Patrick May”; however, Plaintiffs state Officer Andres “lost his footing and fell to the ground” and allege that Juan May walked away as, apparently, Patrick May continued to fight the downed Officer Andres. 20 5.04 Upon getting to his feet, Officer Andres ran to his car while his wife unlocked the door with the remote. 21 Although the facts demonstrate that Officer Andres was attempting to get away, Plaintiffs allege “people” yelled that Officer Andres was going to get a gun. 22 In a purported attempt to “prevent escalation”, “Juan May followed Officer Andres”. 23 Ironically, Plaintiffs allege that Juan May attempted to “calm” Officer Andres after telling him to dance on a stripper pole, exchanging words, hitting him in the face, and knocking him to the ground in a two-on-one fight, all of which is Plaintiffs’ version of events. 24 Juan May pursued Officer Andres to his car. 25 Juan May then “reached out to grab Officer Andres”, resulting in the final struggle and Juan May being shot. 26 These facts - Plaintiffs’ version - demonstrate an act of self-defense by Officer Andres. See TEX. PENAL CODE § 9.31. 5.05 Arlington may not be held liable under § 1983 unless the wrongful conduct of an employee is pursuant to policy or custom of Arlington. Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978). An official municipal policy is "[a] policy statement, ordinance, regulation or decision that is officially adopted and promulgated by 19 See id. 20 See id. 21 See id. at p.5, ¶14. 22 See id. 23 See id. 24 See id. 25 See id. Case 3:16-cv-01674-L Document 20 Filed 03/31/17 Page 15 of 32 PageID 199 Arlington’s Second Motion to Dismiss and Brief 9 the municipality's lawmaking officers or by an official to whom the lawmakers have delegated policy-making authority." Evans v. City of Houston, 246 F.3d 344, 358 (5th Cir. 2001) (quoting Brown v. Bryan County, 219 F.3d 450, 457 (5th Cir. 2000) (quoting Bennett v. City of Slidell, 735 F.2d 861, 862 (5th Cir. 1984) (en banc, per curiam)) (alteration in Evans). 5.05 In the present case, the Plaintiffs have not pointed to any policy of Arlington that would have led their alleged harm. More specifically, Plaintiffs have failed to plead any facts describing an unconstitutional policy or custom that was the moving force behind any alleged violations of their civil rights. Plaintiffs allege no Arlington custom or policy related to their claim. Moreover, Plaintiffs’ own allegations are fully consistent with Officer Andres acting in self-defense, as allowed by Texas state law. TEX. PENAL CODE § 9.31. The fact that Plaintiffs’ allegations are consistent with an act of self-defense by Officer Andres make any further analysis of Arlington’s policies or custom irrelevant. This is simply not a matter that involves Arlington. 5.06 Even in the absence of state law providing legislative protection for self- defense, 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) of a constitutional violation whose moving force is that policy or custom. Pineda v. City of Houston, 291 F.3d 325, 328 (5th Cir. 2002) (citing Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th Cir. 2001)). Existence of municipal policy or custom may be established in one of two ways: 1. A policy statement, ordinance, regulation or decision that is officially adopted and promulgated by the municipality’s 26 See id. Case 3:16-cv-01674-L Document 20 Filed 03/31/17 Page 16 of 32 PageID 200 Arlington’s Second Motion to Dismiss and Brief 10 lawmaking officers or by an official to whom the lawmakers have delegated policy-making authority; or 2. A persistent, widespread practice of city officials or employees, which, although not authorized by officially adopted and promulgated policy, is so common and well settled as to constitute a custom that fairly represents municipal policy. Actual or constructive knowledge of such custom must be attributable to the governing body of the municipality or to an official to whom that body had delegated policy-making authority. Actions of officers or employees of a municipality do not render the municipality liable under § 1983 unless they execute official policy as above defined. Pineda, 291 F.3d at 328 (quoting Webster v. City of Houston, 735 F.2d 838, 841 (5th Cir. 1984) (en banc, per curiam). Plaintiffs have not alleged an official policy or custom under the required standards. 5.07 In considering Plaintiffs’ First Amended Original Complaint (Doc. 17), Plaintiffs have not pointed to an officially adopted policy of Arlington that would have caused objective deliberate indifference to their constitutional rights. Moreover, it is not enough to allege that an illegal custom exists; municipal policymakers, who are the persons capable of subjecting a municipality to liability, must be chargeable with awareness of the custom. See Pineda, 291 F.3d at 330-31. 5.08 Fifth Circuit case law is clear that the “description of a policy or custom and its relationship to the underlying constitutional violation, moreover, cannot be conclusory; it must contain specific facts.” Spiller v. City of Texas City, 130 F.3d 162, 167 (5th Cir. 1997). Plaintiffs make no factually specific allegations against Arlington’s policy makers concerning their alleged violations. Rather, Plaintiffs simply make general, unconnected and conclusory statements about failure to train and failure to Case 3:16-cv-01674-L Document 20 Filed 03/31/17 Page 17 of 32 PageID 201 Arlington’s Second Motion to Dismiss and Brief 11 supervise theories. 27 “Allegations of constitutional violations must be pleaded with ‘factual detail and particularity,’ not mere conclusory allegations.” Jackson v. Widnall, 99 F.3d 710, 715-16 (5th Cir. 1996) (citing Schultea v. Wood, 47 F.3d 1427, 1430 (5th Cir. 1995) (en banc)). Conclusory allegations in general are inadequate to withstand a motion to dismiss. See Papasan v. Allain, 478 U.S. 265, 286 (1986); see also Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007). 5.09 Plaintiffs’ claims against Arlington fail to state a claim under 42 U.S.C. § 1983 because Arlington may not be held liable under any theory of vicarious liability or respondeat superior on the basis of some act or omission of an officer or employee unless such act or omission is pursuant to a “policy” adopted by Arlington or the Arlington City Council or by a city official empowered to act in a policy making capacity for Arlington. See Monell, 436 U.S. at 691. Plaintiffs have not alleged any policy by Arlington, whether by council action or ordinance, to violate their rights. Because Plaintiffs have not plead sufficient factual matter to show that Arlington adopted and implemented a policy which caused their alleged injuries, their claims fail to state a claim against Arlington upon which relief can be granted. See Ashcroft v. Iqbal, 556 U.S. 662, 678-80 (2009). 5.10 As a last ditch effort to entangle Arlington, Plaintiffs state Arlington failed to train a single police officer. 28 But the alleged facts - Juan May fighting Officer Andres and pursuing Officer Andres to his car - do not show egregious facts. In any event, a “single incident” theory still requires a showing of official policy or custom. See Pembaur v. City of Cincinnati, 475 U.S. 469, 478 n.6 (1986) (citing Oklahoma City v. Tuttle, 471 U.S. 808, 831-32 (1985). 27 See Plaintiffs’ First Amended Original Complaint, pp.15-17 (Doc. 17, PageID 136). Case 3:16-cv-01674-L Document 20 Filed 03/31/17 Page 18 of 32 PageID 202 Arlington’s Second Motion to Dismiss and Brief 12 5.11 Applying the Monell standard and the requirements prohibiting conclusory allegations, it is clear that Plaintiffs fail to make a case against Arlington. For these reasons, all claims against Arlington under 42 U.S.C. § 1983 fail, and should be dismissed pursuant to FED. R. CIV. P. 12(b)(6). The Plaintiffs’ complaint does not meet the standards of Iqbal and Twombly. B. Arlington retains governmental immunity from Texas state law claims based on intentional conduct. 5.12 The Plaintiffs assert a hodgepodge of state law claims against Arlington that all evolve from the Plaintiffs’ allegations that Officer Andres shot Juan May. 29 Specifically, Plaintiffs assert state law claims against Arlington as follows: (1) Texas Tort Claims Act (Third Cause of Action); intentional infliction of emotional distress (Seventh Cause of Action); and assault (Eighth Cause of Action). 30 But state law does not waive jurisdiction for claims against a municipality involving intentional torts. Texas law is clear that there is no waiver of immunity for municipalities for claims based on intentional torts. 5.13 In determining its jurisdiction over potential state claims, the Court need look no further than the express language of the Texas Tort Claims Act (“TTCA”), which explicitly bars these claims. TEX. CIV. PRAC. & REM. CODE § 101.057. Section 101.057 provides: § 101.057. Civil Disobedience and Certain Intentional Torts This chapter does not apply to a claim: *** 28 See id. at pp.18-19. 29 See Plaintiffs’ First Amended Original Complaint (Doc. 17), p.5, ¶15. 30 See id. at pp. 19-20, 22-23. Case 3:16-cv-01674-L Document 20 Filed 03/31/17 Page 19 of 32 PageID 203 Arlington’s Second Motion to Dismiss and Brief 13 (2) arising out of assault, battery, false imprisonment, or any other intentional tort, including a tort involving disciplinary action by school authorities. Id. Thus, the plain language of the statute is clear that the waiver of immunity contained within the TTCA is not applicable to Plaintiffs’ claims for the shooting death of Juan May., all of which are intentional torts under Texas law. 5.14 Of course, Texas courts interpret Section 101.057 exactly as it is written. In a case brought against the Texas Department of Public Safety and a state trooper, the Texas Supreme Court explained: The specific conduct - hitting the window, calling a tow truck, aiming the gun, blocking Petta in with the cruiser, and firing at Petta’s tires - is clearly intentional. The allegations fit squarely within section 101.057’s exclusion of claims arising out of assault, battery, and false imprisonment. Texas Dep’t of Public Safety v. Petta, 44 S.W.3d 575, 576, 580 (Tex. 2001). 5.15 The Texas Supreme Court reaffirmed its analysis in a case where the plaintiffs alleged that two officers of the Nueces County Substance Abuse Treatment Facility (“SATF”) sexually harassed and assaulted the plaintiffs while they were at the SATF. Texas Dep’t of Crim. Justice v. Campos, 384 S.W.3d 810, 812-13 (Tex. 2012) (per curiam). The plaintiffs alleged that government property was used in the alleged assaults by the officers. Id. at 814. However, the “property was only used with intent to accomplish the assaults of which the Plaintiffs complain.” Id. Accordingly, the Texas Supreme Court held that “the property’s use is encompassed within the exclusion of claims arising from intentional torts.” Id. (citing TEX. CIV. PRAC. & REM. CODE § 101.057(2); Petta, 44 S.W.3d at 580). Case 3:16-cv-01674-L Document 20 Filed 03/31/17 Page 20 of 32 PageID 204 Arlington’s Second Motion to Dismiss and Brief 14 5.16 In a recent case involving a police officer, the Texas Supreme Court reversed the Fort Worth Court of Appeals for failing to apply the intentional tort exception of the TTCA. City of Watauga v. Gordon, 434 S.W.3d 586, 587-94 (Tex. 2014). The plaintiff, who had been arrested and handcuffed, claimed that the officer negligently used the handcuffs. Id. at 587-88, 590-91. The Court of Appeals believed that the plaintiff had stated “a claim for negligence instead of battery because, as Gordon alleged, the officers did not intend to injure him and he did not resist arrest.” Id. at 590-91. Accordingly, the Court of Appeals affirmed the trial court’s order denying the City of Watauga’s plea to the jurisdiction. Id. at 588. The Texas Supreme Court “conclude[d], however, that the underlying claim is for battery.” Id. at 588. Thus, “the city’s governmental immunity has not been waived for this intentional tort”. Id. The Texas Supreme Court reversed the lower court and dismissed the case. Id. 5.17 In addition to the City of Watauga case, intermediate courts have squarely rejected attempts by plaintiffs to frame intentional conduct as negligence in hopes of avoiding the limited waiver of the TTCA. The Houston First District Court of Appeals explained: If a plaintiff pleads facts which amount to an intentional tort, no matter if the claim is framed as negligence, the claim generally is for an intentional tort and is barred by the TTCA. See Tex. Dep’t of Pub. Safety v. Petta, 44 S.W.3d 575, 580 (Tex. 2001); City of Laredo v. Nuno, 94 S.W.3d 786, 789 (Tex. App.-San Antonio 2002, no pet.); Tarrant County Hosp. Dist. v. Henry, 52 S.W.3d 434, 450 (Tex. App.-Fort Worth 2001, no pet.); Medrano v. City of Pearsall, 989 S.W.2d 141, 144 (Tex. App.-San Antonio 1999, no pet.). A plaintiff cannot circumvent the intentional tort exception by couching his claims in terms of negligence. Pineda v. City of Houston, 175 S.W.3d 276, 282 (Tex. App.-Houston [1st Dist.] 2004, no pet.); see also Harris County, Texas v. Cabazos, 177 S.W.3d 105, 111 (Tex. App.- Case 3:16-cv-01674-L Document 20 Filed 03/31/17 Page 21 of 32 PageID 205 Arlington’s Second Motion to Dismiss and Brief 15 Houston [1st Dist.] 2005, no pet.) (“If a plaintiff pleads facts which amount to an intentional tort, no matter if the claim is framed as negligence, the claim generally is for an intentional tort and is barred by the TTCA.”). After noting that the TTCA does not waive immunity for claims arising from any intentional tort, the Corpus Christi Court of Appeals explained: In determining whether a plaintiff’s claims are barred by immunity, we look to the substance of the claims alleged because governmental immunity cannot be circumvented by artful pleading. Hidalgo County v. Dyer, 358 S.W.3d 698, 704 (Tex. App.-Corpus Christi 2011, no pet.). Likewise, a federal district court reviewed Texas law and said: “Where the essence of a claim under the TTCA arise from an intentional tort, allegations of negligence are insufficient to avoid the § 101.057 exception to liability.” Hobart v. City of Stafford, 784 F.Supp.2d 732, 761 (S.D. Tex. 2011) (quoting Holland v. City of Houston, 41 F.Supp.2d 678, 713 (S.D. Tex. 1999)). The federal district court further explained: The Court agrees that a claim based on negligence that caused death would not be barred by the intentional tort exception of the TTCA. However, as the cases discussed above illustrate, courts in Texas have squarely rejected reliance solely on the name used by a plaintiff to describe the tort, in favor of a functional inquiry that considers whether the alleged misconduct constitutes an intentional tort. See Holland, 41 F. Supp. 2d at 714 ("Plaintiffs cannot circumvent the intentional tort exception to waiver of municipal liability by simply pleading negligence when the shooting event upon which they base their claims is actually an intentional tort.") (quoting Huong [v. City of Port Arthur], 961 F. Supp. [1003,] 1009 [(E.D. Tex. 1997)]). Id. at 762-63. 5.18 In 1970, the same year that the TTCA became effective, a federal district court held that a plaintiff could not avoid the exception now stated in Case 3:16-cv-01674-L Document 20 Filed 03/31/17 Page 22 of 32 PageID 206 Arlington’s Second Motion to Dismiss and Brief 16 Section 101.057(2) by “pretending to base his claim” on negligence, rather than assault. Little v. Schafer, 319 F.Supp. 190, 191-93 (S.D. Tex. 1970). Specifically, the plaintiff alleged two municipalities negligent in employing the police officers and had negligently entrusted night-sticks to the officers. Id. at 191-92. Although Texas state courts had not yet addressed the issue, the Little Court explained: “[T]he plain language of the exception vitiates employment of the fiction that plaintiff is not really speaking of assault.” Id. at 192. Thus, from the outset of the TTCA, courts have thoroughly rejected the notion that a plaintiff can defeat the exception stated in Section 101.057(2) by simply relabeling intentional acts as negligence. 5.19 In cases specifically involving police use of force, numerous Texas intermediate courts of appeals and federal courts have applied the intentional tort exception found in Section 101.057(2), including: • Escobar v. Harris County, 442 S.W.3d 621, 625-28 (Tex. App.-Houston [1st Dist.] 2014, no pet.) (despite allegations of negligence, governmental immunity is not waived for officer’s intentional discharge of pistol); • Harris County v. Cabazos, 177 S.W.3d 105, 107-13 (Tex. App.-Houston [1st Dist.] 2005, no pet.) (despite plaintiffs’ negligence allegations including assertion that officers incorrectly believed that decedent was armed and dangerous, governmental immunity is not waived for officer’s intentional discharge of pistol); • Morgan v. City of Alvin, 175 S.W.3d 408, 417-19 (Tex. App.-Houston [1st Dist.] 2004, no pet.) (regardless of whether claim is brought as assault or Case 3:16-cv-01674-L Document 20 Filed 03/31/17 Page 23 of 32 PageID 207 Arlington’s Second Motion to Dismiss and Brief 17 negligence, governmental immunity is not waived for officer’s alleged physical assault of plaintiff, including allegations that plaintiff was “harassed, manhandled, and assaulted”); • Pineda v. City of Houston, 175 S.W.3d 276, 277, 281-84 (Tex. App.-Houston [1st Dist.] 2004, no pet.) (despite plaintiff’s allegation of negligence, governmental immunity is not waived for intentional discharge of pistols by officers); • City of Garland v. Rivera, 146 S.W.3d 334, 336-38 (Tex. App.-Dallas 2004, no pet.) (despite plaintiff’s allegation of negligence, governmental immunity is not waived for intentional use of pepper spray, handcuffs, and police service dog); • City of Laredo v. Nuno, 94 S.W.3d 786, 787-90 (Tex. App.-San Antonio 2002, no pet.) (despite phrasing claims in terms of negligence, governmental immunity is not waived for intentional use of handcuffs and excessive force in arrest); • Eastland County Coop. Dispatch v. Poyner, 64 S.W.3d 182, 197-99 (Tex. App.- Eastland 2001, pet. denied) (governmental immunity is not waived for officers intentional use of firearms); • Medrano v. City of Pearsall, 989 S.W.2d 141, 142-45 (Tex. App.-San Antonio 1999, no pet.) (despite allegations of “negligent assault,” governmental immunity not waived for alleged assault by police officer, including allegations of beating and choking arrested plaintiff with a baton/flashlight); • San Antonio v. Dunn, 796 S.W.2d 258, 261 (Tex. App.-San Antonio 1990, writ denied) (governmental immunity is not waived for police officer’s use of excessive force, including tight application of handcuffs, and false arrest of Case 3:16-cv-01674-L Document 20 Filed 03/31/17 Page 24 of 32 PageID 208 Arlington’s Second Motion to Dismiss and Brief 18 plaintiff); • McCord v. Mem’l Med. Cntr. Hosp., 750 S.W.2d 362, 363 (Tex. App.-Corpus Christi 1988, no writ) (governmental immunity not waived for security guard’s intentional use of nightstick on plaintiff); • Hobart v. City of Stafford, 784 F.Supp.2d 732, 743, 761-63 (S.D. Tex. 2011) (despite allegations of negligence, governmental immunity was not waived by the TTCA for police officer’s lethal use of firearm); • Limon v. City of Balcones Heights, 485 F.Supp.2d 751, 753, 755-56 (W.D. Tex. 2007) (despite allegations of negligence, governmental immunity was not waived by the TTCA for police officers act of raping plaintiff in a patrol car); • Holland v. City of Houston, 41 F.Supp.2d 678, 712-14 (S.D. Tex. 1999) (despite allegations of negligence, governmental immunity was not waived by the TTCA for police officer’s lethal use of service revolver); • Kellough v. Bertrand, 22 F.Supp.2d 602, 605, 611-12 (S.D. Tex. 1998) (governmental immunity was not waived by the TTCA for plaintiff’s assault and intentional infliction of emotional distress claims based on factual allegations of unlawful arrest and excessive force by police officers); • Huong v. City of Port Arthur, 961 F.Supp. 1003, 1005, 1008-9 (E.D. Tex. 1997) (despite allegations of negligence, governmental immunity was not waived by the TTCA for police officer’s lethal use of firearm); • Riggs v. City of Pearland, 177 F.R.D. 395, 400, 405-06 (S.D. Tex. 1997) (governmental immunity was not waived by the TTCA for plaintiff’s claims of assault and battery, intentional infliction of emotional distress, and defamation Case 3:16-cv-01674-L Document 20 Filed 03/31/17 Page 25 of 32 PageID 209 Arlington’s Second Motion to Dismiss and Brief 19 based on factual allegations that police sprayed plaintiff with mace and handcuffed plaintiff); and • Little v. Schafer, 319 F.Supp. 190, 191-93 (S.D. Tex. 1970) (despite allegations of negligent hiring and negligent entrustment of night-sticks, governmental immunity was not waived by the TTCA for police officers alleged assault of plaintiff). 5.20 Plaintiffs’ Texas law claims - brought under the Texas Tort Claims Act, for intentional infliction of emotional distress, and for assault - clearly fall within the intentional tort exception of the TTCA. See TEX. CIV. PRAC. & REM. CODE § 101.057(2). Texas and federal courts have repeatedly held that similar police conduct fell within the intentional torts exception. Like other plaintiffs whose claims have been rejected, the Plaintiffs in this case assert “[t]he shooting death of Juan May was a direct and proximate result of the negligence of Officer Andres.” 31 Plaintiffs then assert that they “elect to proceed with their State law claims solely against the City of Arlington”. 32 But Arlington’s immunity has not been waived for Plaintiffs’ state law claims because, they are based on intentional conduct regardless of the negligence label. See, e.g., Texas Dep’t of Public Safety v. Petta, 44 S.W.3d 575, 580 (Tex. 2001). Moreover, the intentional infliction of emotional distress claim and assault claim are intentional torts, for which Arlington retains governmental immunity. See, e.g., Kellough, 22 F.Supp.2d at 611-12; Riggs, 177 F.R.D. at 405-06. Thus, Plaintiffs have failed to allege state law claims upon which relief can be granted. 31 See Plaintiffs’ First Amended Original Complaint, p.19, ¶71 (Doc. 17, PageID 140). 32 See id. Case 3:16-cv-01674-L Document 20 Filed 03/31/17 Page 26 of 32 PageID 210 Arlington’s Second Motion to Dismiss and Brief 20 C. Neither federal nor state law allows for exemplary damages against governmental entities. 5.21 The Court specifically admonished Plaintiffs that they “should not include a request for punitive or exemplary damages in their § 1983 claim against the City of Arlington when they file their amended pleading.” 33 But Plaintiffs, through their amended complaint, have continued to seek an award of exemplary damages against the City of Arlington. 34 Plaintiffs pray for exemplary damages to be awarded “jointly and severally” against the “Defendants”. 35 Because the Court lacks jurisdiction to award exemplary damages against Arlington under either federal or state law, Plaintiffs exemplary damage claim against Arlington should be dismissed with prejudice. 5.22 In City of Newport v. Fact Concerts, Inc., the Supreme Court specifically held that a municipality is not subject to claims for punitive damages for violations of civil rights. 453 U.S. 247, 271 (1981) (“[W]e hold that a municipality is immune from punitive damages under 42 U.S.C. § 1983.”). The Supreme Court summarized the holding, saying: In sum, we find that considerations of history and policy do not support exposing a municipality to punitive damages for the bad-faith actions of its officials. Because absolute immunity from such damages obtained at common law and was undisturbed by the 42d Congress, and because that immunity is compatible with both the purposes of § 1983 and general principles of public policy, we hold that a municipality is immune from punitive damages under 42 U.S.C. § 1983. Id. at 271. 5.23 Under Texas state law, the Texas Tort Claims Act expressly and unequivocally states that exemplary damages are not allowed against a governmental 33 See Memorandum Opinion and Order, p.18 (Doc. 12, PageID76). 34 See First Amended Original Complaint, p.23 (Doc. 17, PageID 144). Case 3:16-cv-01674-L Document 20 Filed 03/31/17 Page 27 of 32 PageID 211 Arlington’s Second Motion to Dismiss and Brief 21 entity. TEX. CIV. PRAC. & REM. CODE § 101.024. Without elaboration, Section 101.024 provides: “This chapter does not authorize exemplary damages.” Id. 5.24 Texas courts interpreting Section 101.024 have repeatedly held-as the plain language indicates-that there is no waiver of immunity for exemplary damages. The Texas Supreme Court, the Dallas Court of Appeals, and the Fort Worth Court of Appeals have recognized this, saying: • “[T]he Tort Claims Act caps actual damages and prohibits punitive damages.” Kuhl v. City of Garland, 910 S.W.2d 929, 931 (Tex. 1995) (per curiam) (citing TEX. CIV. PRAC. & REM. CODE §§ 101.023 & 101.024); see also City of Galveston v. State, 217 S.W.3d 466, 470 n.21 (Tex. 2007) (“prohibiting exemplary damages”). • “The TTCA specifically prohibits the recovery of exemplary damages for governmental functions.” City of North Richland Hills v. Friend, 337 S.W.3d 387, 397 (Tex. App.-Fort Worth 2011), rev’d on other grounds, City of North Richland Hills v. Friend, 370 S.W.3d 369 (Tex. 2012). • “The Tort Claims Act ‘does not authorize exemplary damages.’” City of Dallas v. Gatlin, 329 S.W.3d 222, 226 (Tex. App.-Dallas 2010, no pet.) • “Additionally, the trial court would also be without jurisdiction to impose any punitive damages against the City.” Sanders v. City of Grapevine, 218 S.W.3d 772, 779 n.5 (Tex. App.-Fort Worth 2007, pet. denied) (citing TEX. CIV. PRAC. & REM. CODE § 101.024; Durbin v. City of Winnsboro, 135 S.W.3d 317, 325 (Tex. App.-Texarkana 2004, pet. denied)). 35 Id. Case 3:16-cv-01674-L Document 20 Filed 03/31/17 Page 28 of 32 PageID 212 Arlington’s Second Motion to Dismiss and Brief 22 • “When a governmental entity is sued under the Tort Claims Act, exemplary damages cannot be assessed against the entity.” Stephens v. Dallas Area Rapid Transit, 50 S.W.3d 621, 632 (Tex. App.-Dallas 2001, pet. denied) (citing TEX. CIV. PRAC. & REM. CODE § 101.024). Thus, the clear legislative language of Section 101.024 is buttressed by equally clear case law and yields a single conclusion: The TTCA does not waive immunity for exemplary damages claims. 5.25 Plaintiffs’ exemplary damages claim is barred under federal or state law. Because Arlington is immune from Plaintiffs’ exemplary damages claim, the Court should dismiss, with prejudice, Plaintiffs’ claim for exemplary damages against Arlington for lack of subject matter jurisdiction. See FED. R. CIV. P. 12(b)(1). D. Jindia May Blunt lacks standing to bring claims in her individual capacity. 5.26 Plaintiff Jindia May Blunt is suing in both her individual capacity and as the representative of the estate of Juan Oneil May. 36 Plaintiffs say that Jindia May Blunt is the “surviving sister of decedent, Juan Oneil May.” 37 Jindia May Blunt seeks wrongful death damages in her individual capacity upon her allegation that she was “mentally and emotionally injured and damaged as a proximate result of decedent’s wrongful death, including but not limited to Plaintiff’s loss of familial relations, decedent’s society, comfort, protection, companionship, love, affection, solace and moral support.” 38 As the sister of Juan May, Jindia May Blunt lacks standing to bring wrongful death claims in her 36 Plaintiffs’ First Amended Original Complaint, p.2, ¶¶4-5 (Doc. 17, PageID 123). 37 Id. at ¶4. 38 Id. at pp.7-8, ¶27. Case 3:16-cv-01674-L Document 20 Filed 03/31/17 Page 29 of 32 PageID 213 Arlington’s Second Motion to Dismiss and Brief 23 individual capacity. Thus, the individual claim of Jindia May Blunt should be dismissed with prejudice for lack of jurisdiction. 5.27 “Standing under the Civil Rights Statutes is guided by 42 U.S.C. § 1988, which provides that the state common law is used to fill the gaps in administration of civil rights suits.” See Pluet v. Frazier, 355 F.3d 381, 383 (5th Cir. 2004) (citing 42 U.S.C. § 1988(a)). In a case involving a death, a plaintiff must have standing under the state's wrongful death or survival statutes to pursue a federal civil rights claim. See id. at 383-84 (citing Rhyne v. Henderson County, 973 F.2d 386, 390-91 (5th Cir. 1992) (finding that standing under Texas wrongful death and survival statutes is incorporated into the federal civil rights statutes); Brazier v. Cherry, 293 F.2d 401, 409 (5th Cir. 1961) (looking to Georgia wrongful death and survival statutes to determine standing under federal civil rights statutes)); see also Rhyne v. Henderson Co., 973 F.2d 386, 390-91 (5th Cir. 1992); Handley v. City of Seagoville, Texas, 798 F.Supp. 1267, 1269 (N.D. Tex. 1992). Thus, the Court must look to Texas state law to determine whether a plaintiff has standing to bring a wrongful death or survival claim under 42 U.S.C. § 1983. Aguillard v. McGowen, 207 F.3d 226, 231 (5th Cir. 2000). “The Texas Wrongful Death and Survival Statutes, Tex. Civ. Prac. & Rem. Code §§ 71.004 and 71.021, set forth the parties who can bring suit.” Id. 5.28 An action to recover damages under Texas Wrongful Death Act is for the “exclusive benefit of the surviving spouse, children, and parents of the deceased.” TEX. CIV. PRAC. & REM. CODE § 71.004(a); Coffey v. Johnson, 142 S.W.3d 414, 417 (Tex. App.-Eastland 2004, no pet.). The surviving spouse, children, and parents of the deceased “may bring the action or one or more of those individuals may bring the action Case 3:16-cv-01674-L Document 20 Filed 03/31/17 Page 30 of 32 PageID 214 Arlington’s Second Motion to Dismiss and Brief 24 for the benefit of all.” Id. at § 71.004(b). The “purpose of the Texas Wrongful Death Act is to compensate decedent’s beneficiaries for their loss of future care, maintenance, and support.” Russell v. Ingersoll-Rand Co., 795.W.2d 243, 247 (Tex. App.-Houston [1st Dist.] 1990), aff'd, 841 S.W.2d 343 (Tex. 1992). 5.29 Jindia May Blunt, as the surviving sister of the deceased Juan O’Neil May, lacks standing in her individual capacity to bring a wrongful death claim because she is not within the class of individuals named in the statute with authority to bring such action. See Aguillard, 207 F.3d at 231; TEX. CIV. PRAC. & REM. CODE § 71.004(a). Siblings are not within the scope of the Texas wrongful death and survivor statutes. Id. Because Plaintiff Jindia May Blunt lacks standing to pursue a wrongful death claims for the death of Juan Oneil May in her individual capacity, the claims of Jindia May Blunt in her individual capacity should be dismissed for lack of jurisdiction. See FED. R. CIV. P. 12(b)(1); FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231 (1990) (quoting Allen v. Wright, 468 U.S. 737, 750 (1984) (“The federal courts are under an independent obligation to examine their own jurisdiction, and standing ‘is perhaps the most important of [the jurisdictional] doctrines.’”) (alteration in FW/PBS, Inc.). Alternatively, Jindia May Blunt’s wrongful death claims in her individual capacity should be dismissed for failure to state a claim upon which relief can be granted. See FED. R. CIV. P. 12(b)(6). VI. Relief 6.01 Based on the foregoing grounds, Defendant City of Arlington prays that the Court dismiss Plaintiffs’ claims and grant any further relief to which it is entitled. Respectfully submitted, s/ Robert Fugate .. Case 3:16-cv-01674-L Document 20 Filed 03/31/17 Page 31 of 32 PageID 215 Arlington’s Second Motion to Dismiss and Brief 25 Robert Fugate Texas Bar No. 00793099 Deputy City Attorney robert.fugate@arlingtontx.gov Cynthia Withers Texas Bar No. 00791839 Senior Attorney cynthia.withers@arlingtontx.gov City of Arlington, City Attorney's Office Physical Address: 101 South Mesquite Street, 3rd Floor Arlington, Texas 76010 Mailing Address: Mail Stop #63-0300 Post Office Box 90231 Arlington, Texas 76004-3231 Telephone: (817) 459-6878 Facsimile: (817) 459-6897 ATTORNEYS FOR DEFENDANT CITY OF ARLINGTON Certificate of Service On March 31, 2017, I electronically submitted Defendant City of Arlington’s Second Motion to Dismiss Under Rule 12(b)(1) and 12(b)(6) and Brief Filed in Response to Plaintiffs’ First Amended Original Complaint to the Clerk of the Court for the U.S. District Court, Northern District of Texas, using the electronic case filing system of the Court. I hereby certify that I served a true and correct copy on the attorneys of record in this case by electronic notice to all counsel of record via the ECF System for the Northern District of Texas. See FED. R. CIV. P. 5(b)(2)(E) & Local Rule 5.1(d). Further, a courtesy copy will be mailed by certified mail/return receipt requested to: Mr. Anthony P. Eiland 5787 S. Hampton Road, Ste. 270 Dallas, Texas 75232 Mr. Nigel H. Redmon 5787 S. Hampton Road, Ste. 270 Dallas, Texas 75232 s/ Robert Fugate .. Robert Fugate Case 3:16-cv-01674-L Document 20 Filed 03/31/17 Page 32 of 32 PageID 216