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Residents Against Flooding v. Reinvestment Zone Number Seventeen

United States District Court, S.D. Texas, Houston Division

May 9, 2017




         The above referenced action seeks declaratory and injunctive relief to enjoin the use of arbitrary government action that benefits private commercial interests and developers within Reinvestment Zone Number Seventeen City of Houston, Texas (“TIRZ[1] 17”) at the expense of substantial harm to hundreds of residential homes in nearby Memorial City neighborhoods, allegedly by Defendants' knowingly conveying stormwater out of the TIRZ 17 commercial areas into its residential areas, which lack adequate infrastructure to deal with the flooding. The flooding in effect allegedly seizes Plaintiffs' real property. Plaintiffs seek immediate prioritization of flood relief projects for their neighborhoods.

         Pending before the Court are the following motions:

(1) Defendant the City of Houston's Rule 12(b)(1) (the “City's”) motion to dismiss for lack of standing, Rule 12(b)(6) motion to dismiss for failure to state a claim, and, in the alternative, Rule 12(e) motion for more definite statement (instrument #5) regarding all claims brought by Plaintiffs the Residents Against Flooding (“RAF”), Anita Giezentanner, Virginia Gregory, Lois Meyers, [2] and Bayan Raji;
(2) Defendants Reinvestment Zone Number Seventeen, City of Houston, Texas (the “Zone”) and Memorial City Redevelopment Authority's (the “Authority's”[3]) motion to dismiss, or, alternatively, for a more definite statement (#7);
(3) City's Motion to Dismiss (#17) First Amended Complaint; and
(4) Plaintiffs' motion for leave of Court to file their consolidated Sur-Reply (Sur-Reply, #19 at p.4, electronic numbering).

         (1) Because Plaintiffs filed their amended complaint (#14) to expand their factual allegations in response to the Rule 12(e) motions for more definite statement and to address issues as they arose, (2) because the City in its reply (#17) asked the Court to apply its motion to dismiss and subsequent briefing to Plaintiffs' amended complaint (#14), which the City argues eliminated those of Plaintiffs' claims mooted by the passage of time, (3) because Plaintiffs have not filed any objections to the City's motion for leave to file consolidated Sur-Reply, and (4) because much has changed since the case was commenced, the Court grants Plaintiffs' motion for leave of Court to file their consolidated Sur-Reply. #19 at p. 4 of electronic numbering. The Court will therefore review the pending motions to dismiss and other submissions with respect to this amended complaint (#14). Moreover, because the briefing has been so extensive and has evolved as issues were raised and argued by the parties, the Court finds that further amendments are not necessary.

         Furthermore, because the Zone and the Authority filed consolidated responses to both motions to dismiss, which overlap on any number of issues, the Court summarizes each of the motions to dismiss first, and then addresses the responses, replies, and surreply.

         Plaintiffs' Allegations

         Specifically, Plaintiffs complain that the City and the Authority have engaged in a pattern of: (1) implementing drainage and mobility infrastructure projects in and around TIRZ 17 that efficiently convey stormwater out of the TIRZ 17 commercial areas into the surrounding residential neighborhoods or into their overstrained storm systems; (2) approving private commercial development within TIRZ 17 that elevated the commercial properties, without any, or without sufficient, stormwater mitigation, causing more stormwater to enter the residential neighborhoods; and (3) postponing infrastructure projects to help the residential neighborhoods, often in favor of non-essential projects that benefit private commercial interests, ” causing repeated and terrible flooding in hundreds of homes in the Memorial City area in violation of the United States and Texas Constitutions. #14, First Amended Complaint, ¶ 3.

         Plaintiffs contend that Defendants had actual notice of the drastic need to improve the drainage conditions of TIRZ 17 from the repeated destructive floods (especially three “historic” floods in 2009, 2014, and 2015), from numerous complaints from Memorial area residents to the City, to its Planning Commission, to its Flood and Drainage Committee, and to City Council, and from multiple studies conducted by the City, the Authority, and engineering firms (including the Walter P. Moore engineering firm in 2003, Klotz Associates in 2004 and 2014, LAN Engineering in 2006, 2012, and 2014 Omega Engineering in 2008, and, in 2009, the Harris County Flood Control District (“HCFCD”), which regulates and maintains bayous and creeks). In addition, Plaintiffs claim that Defendants have a sophisticated hydrological model that can predict the depth of flooding in any area when new drainage infrastructure is added.

         Currently, the Houston City Council appoints all Board members of the TIRZ, all of whom have significant property or business interests inside TIRZ 17, as well as those of the Authority; the same members are appointed to serve on both the TIRZ's and the Authority's boards contemporaneously. Upon information and belief, the two boards hold simultaneous joint Board Meetings, deliberate and take votes as a single unified entity without distinguishing which one is taking an action, and keep minutes and records as if they were a single committee. The City retains oversight over TIRZ 17 and has statutory power over the Authority to submit projects and budgets, and the City has final approval over all proposals. Approval of the TIRZ projects is memorialized in City ordinances. Such ordinances also approve its Capital Improvement Plans (“CIPs”), which are issued every five years. See #14, Exhibits B, C, D. Now that TIRZ 17 and the Authority exist, the City no longer performs its own drainage projects in or near the TIRZ.

         Plaintiffs bring four causes of action: (1) violation of substantive due process under the Fourteenth Amendment[4] and 42 U.S.C. § 1983; (2) violation of the Texas Constitution Art. 1 § 19[5] (also known as the due course of law provision); (3) violation of the Fourth Amendment and 42 U.S.C. § 1983 by unreasonable seizure of their property; and (4) a declaratory judgment for state and federal constitutional violations.

The declaratory and injunctive relief Plaintiffs seek is to require immediate prioritization of flood relief projects for neighborhoods; to enjoin the Defendants from using TIRZ 17 funds for private development agreements to enjoin the City from approving new commercial building permits on large lots within TIRZ 17 until a finding is made that the development does not increase flooding risks in three residential neighborhoods; and to appoint a Special Master that will oversee expenditure of TIRZ 17 funds and oversee projects designed to alleviate flooding in the nearby residential areas. Id. at ¶ 24.

         Plaintiffs note that the City participates in the Federal Flood Insurance program and is therefore subject to federal statutory regulation under 42 U.S.C. § 4001, et seq., and the federal regulations enacted under the authority of these statutes. Under 44 C.F.R. Part 65, participating communities are required to assist FEMA's efforts in providing up-to-date information on special flood and flood-related erosion hazards. On information and belief, Plaintiffs assert that the City has not met these obligations.

         Standards of Review

         Rule 12(b)(1)

         Rule 12(b)(1) allows a party to move for dismissal of an action for lack of subject matter jurisdiction. The party asserting that subject matter exists, here Plaintiffs, must bear the burden of proof by a preponderance of the evidence for a 12(b)(1) motion. New Orleans & Gulf Coast Ry. Co. v. Barrois, 533 F.3d 321, 327 (5th Cir. 2008); Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001).

         In reviewing a motion under 12(b)(1) the court may consider (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. Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981).

         A motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) is characterized as either a “facial” attack, i.e., the allegations in the complaint are insufficient to invoke federal jurisdiction, or as a “factual” attack, i.e., the facts in the complaint supporting subject matter jurisdiction are questioned. In re Blue Water Endeavors, LLC, Bankr. No. 08-10466, Adv. No. 10-1015, 2011 WL 52525, *3 (E.D. Tex. Jan. 6, 2011), citing Rodriguez v. Texas Comm'n of Arts, 992 F.Supp. 876, 878-79 (N.D. Tex. 1998), aff'd, 199 F.3d 279 (5th Cir. 2000). A facial attack happens when a defendant files a Rule 12(b)(1) motion without accompanying evidence. Paterson v. Weinberger, 644 F.2d 521, 523 (5th Cir. 1981). In a facial attack, allegations in the complaint are taken as true. Blue Water, 2011 WL 52525 at *3, citing Saraw Partnership v. United States, 67 F.3d 567, 569 (5thCir. 1995).

         If it is a factual attack, as is the case here, the Court may consider any evidence (affidavits, testimony, documents, etc.) submitted by the parties that is relevant to the issue of jurisdiction. Id., citing Irwin v. Veterans Admin., 874 F.2d 1092, 1096 (5th Cir. 1989). A defendant making a factual attack on a complaint may provide supporting affidavits, testimony or other admissible evidence. Patterson v. Weinberger, 644 F.3d 521, 523 (5th Cir. 1981). The plaintiff, to satisfy its burden of proof, may also submit evidence to show by a preponderance of the evidence that subject matter jurisdiction exists. Id. The court's consideration of such matters outside the pleadings does not convert the motion to one for summary judgment under Rule 56(c). Robinson v. Paulson, H-06-4083, 2008 WL 4692392 at *10 (S.D. Tex. Oct. 28, 2008), citing Garcia, 104 F.3d at 1261. “Unlike in a facial attack where jurisdiction is determined upon the basis of allegations of the complaint, accepted as true[, ] when a factual attack is made upon federal jurisdiction, no presumption of truthfulness attaches to the plaintiffs' jurisdictional allegations, and the court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case. In a factual attack, the plaintiffs have the burden of proving that federal jurisdiction does in fact exist.” Evans v. Tubbe, 657 F.2d 661, 663 (5th Cir. 1981). In resolving a factual attack on subject matter jurisdiction under Rule 12(b)(1), the district court, which does not address the merits of the suit, [6] has significant authority “‘to weigh the evidence and satisfy itself as to the existence of its power to hear the case.'” Robinson v. Paulson, No. H-06-4083, 2008 WL 4692392, *10 (S.D. Tex. Oct. 22, 2008), quoting Garcia v. Copenhaver, Bell & Assocs., 104 F.3d 1256, 1261 (11th Cir. 1997), and citing Clark v. Tarrant County, 798 F.2d 736, 741 (5th Cir. 1986).

         A court may sua sponte raise a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction at any time. Westland Oil Development Corp. v. Summit Transp. Co., 481 F.Supp. 15 (S.D. Tex. 1979), aff'd, 614 F.2d 768 (1980). See also Kidd v. Southwest Airlines Co., 891 F.2d 540, 545 (5th Cir. 1990)(“[F]ederal courts must address jurisdictional questions sua sponte when the parties' briefs do not bring the issue to the court's attention.”). The Court may find lack of subject matter jurisdiction on any of the following three bases: (1) the complaint; (2) the complaint along with undisputed facts evidenced in the record; and (3) the complaint along with undisputed facts and the court's resolution of disputed facts. Barrera-Montenegro v. United States, 74 F.3d 657, 659 (5th Cir. 1996). The Court's dismissal of a case for lack of subject matter jurisdiction is not a judgment on the merits and does not preclude the plaintiff from pursuing his claim in a court that properly has jurisdiction. Hitt v. City of Pasadena, 561 F.2d 606, 608 (5th Cir. 1977).

         Rule 12(b)(6)

         When a district court reviews a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), it must construe the complaint in favor of the plaintiff and take all well-pleaded facts as true. Randall D. Wolcott, MD, PA v. Sebelius, 635 F.3d 757, 763 (5th Cir. 2011), citing Gonzalez v. Kay, 577 F.3d 600, 603 (5th Cir. 2009). The plaintiff's legal conclusions are not entitled to the same assumption. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)(“The tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.”), citing Bell Atlantic Corp. v. Twombly, 556 U.S. 662, 678 (2007); Hinojosa v. U.S. Bureau of Prisons, 506 Fed.Appx. 280, 283 (5th Cir. Jan. 7, 2012).

         “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, . . . a plaintiff's obligation to provide the ‘grounds' of his ‘entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do . . . .” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)(citations omitted). “Factual allegations must be enough to raise a right to relief above the speculative level.” Id. at 1965, citing 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed. 2004)(“[T]he pleading must contain something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally cognizable right of action”). “Twombly jettisoned the minimum notice pleading requirement of Conley v. Gibson, 355 U.S. 41 . . . (1957)[“a 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”], and instead required that a complaint allege enough facts to state a claim that is plausible on its face.” St. Germain v. Howard, 556 F.3d 261, 263 n.2 (5th Cir. 2009), quoting In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007). “‘A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.'” Montoya v. FedEx Ground Package System, Inc., 614 F.3d 145, 148 (5th Cir. 2010), quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The plausibility standard is not akin to a “probability requirement, ” but asks for more than a “possibility that a defendant has acted unlawfully.” Twombly, 550 U.S. at 556. Dismissal is appropriate when the plaintiff fails to allege “‘enough facts to state a claim to relief that is plausible on its face'” and therefore fails to “‘raise a right to relief above the speculative level.'” Montoya, 614 F.3d at 148, quoting Twombly, 550 U.S. at 555, 570.

         In Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009), the Supreme Court stated that “only a complaint that states a plausible claim for relief survives a motion to dismiss, ” a determination involving “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” “[T]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements do not suffice” under Rule 12(b). Iqbal, 556 U.S. at 678. The plaintiff must plead specific facts, not merely conclusory allegations, to avoid dismissal. Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000). “Dismissal is proper if the complaint lacks an allegation regarding a required element necessary to obtain relief . . . .“ Rios v. City of Del Rio, Texas, 444 F.3d 417, 421 (5th Cir. 2006), cert. denied, 549 U.S. 825 (2006).

         Dismissal under Rule 12(b)(6) is proper not only where the plaintiff fails to plead sufficient facts to support a cognizable legal theory, but also where the plaintiff fails to allege a cognizable legal theory. Kjellvander v. Citicorp, 156 F.R.D. 138, 140 (S.D. Tex. 1994), citing Garrett v. Commonwealth Mortgage Corp., 938 F.2d 591, 594 (5th Cir. 1991). “A complaint lacks an ‘arguable basis in law' if it is based on an indisputably meritless legal theory' or a violation of a legal interest that does not exist.” Ross v. State of Texas, Civ. A. No. H-10-2008, 2011 WL 5978029, at *8 (S.D. Tex. Nov. 29, 2011).

         “Rule 12(b) is not a procedure for resolving contests about the facts or the merits of a case.” Gallentine v. Housing Authority of City of Port Arthur, Tex., 919 F.Supp.2d 787, 794 (E.D. Tex. Jan. 22, 2012), citing 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure: Civil 2d § 1356, at 294 (1990).

         As noted, on a Rule 12(b)(6) review, although generally the court may not look beyond the pleadings, the Court may examine the complaint, documents attached to the complaint, and documents attached to the motion to dismiss to which the complaint refers and which are central to the plaintiff's claim(s), as well as matters of public record. Lone Star Fund V (U.S.), L.P. v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010), citing Collins, 224 F.3d at 498-99; Cinel v. Connick, 15 F.3d 1338, 1341, 1343 n.6 (5th Cir. 1994). See also United States ex rel. Willard v. Humana Health Plan of Tex., Inc., 336 F.3d 375, 379 (5th Cir. 2003)(“the court may consider . . . matters of which judicial notice may be taken”). Taking judicial notice of public records directly relevant to the issue in dispute is proper on a Rule 12(b)(6) review and does not transform the motion into one for summary judgment. Funk v. Stryker Corp., 631 F.3d 777, 780 (5th Cir. 2011). “A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” Fed.R.Evid. 201(b).

         “‘[D]ocuments that a defendant attaches to its motion to dismiss are considered part of the pleadings if they are referred to in the plaintiff's complaint and are central to [its] claim.'” Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498-99 (5thCir. 2000), quoting Venture Assocs. Corp. v. Zenith Data Sys. Corp., 987 F.2d 429, 431 (7th Cir. 1993). By such attachments the defendant simply provides additional notice of the basis of the suit to the plaintiff and aids the Court in determining whether a claim has been stated. Id. at 499. The attachments may also provide the context from which any quotation or reference in the motion is drawn to aid the court in correctly construing that quotation or reference. In re Enron Corp. Securities, Derivative & “ERISA” Litig., No. H-04-0087, 2005 WL 3504860, at 11 n.20 (S.D. Tex. Dec. 22, 2005). “Where the allegations in the complaint are contradicted by facts established by documents attached as exhibits to the complaint, the court may properly disregard the allegations.” Martinez v. Reno, No. 3:97-CV-0813-P, 1997 WL 786250, at *2 (N.D. Tex. Dec. 15, 1997), citing Nishimatsu Const. Co. v. Houston Nat'l Bank, 515 F.2d 1200, 1206 (5th Cir. 1975). When conclusory allegations and unwarranted deductions of fact are contradicted by facts disclosed in the appended exhibit, which is treated as part of the complaint, the allegations are not admitted as true. Carter v. Target Corp., 541 Fed.Appx. 413, 417 (5th Cir. Oct. 4, 2013), citing Associated Builders, Inc. v. Alabama Power Co., 505 F.2d 97, 100 (5th Cir. 1974).

         Rule 12(e) Motion for More Definite Statement

         Rule 12(e) states, “A party may move for a more definite statement of a pleading to which a responsive pleading is allowed but which is so vague or ambiguous that the party cannot reasonably prepare a response.” Such motions are not favored and are granted sparingly. Mitchell v. E-Z Way Towers, Inc., 269 F.2d 126, 132 (5thCir. 1959); Conceal City, LLC v. Looper Law Enforcement, LLC, 917 F.Supp.2d 611, 621 (N.D. Tex. 2013). The motion must be made prior to filing a responsive pleading and “must point out the defects complained of and the details desired.” Rule 12(e). A court should only grant a motion for more definite statement when the complaint is “so excessively vague and ambiguous to be unintelligible and as to prejudice the defendant seriously in attempting to answer it.” Phillips v. ABB Combustion Eng'g, Inc., Civ. A. No. 13-594, 2012 WL 3155224, at *2 (E.D. La. June 19, 2013). A motion for more definite statement should not be used as a substitute for discovery; it should be used as a remedy for unintelligible pleading, not for correcting a lack of detail. Davenport v. Rodriguez, 147 F.Supp.2d 630, 639 (S.D. Tex. 2001). The court has considerable discretion in deciding whether to grant such a motion. Ditcharo v. United Parcel Service, Inc., 376 Fed.Appx. 432, 440 n.9 (5th Cir. 2010), citing Old Time Enterprises, Inc. v. International Coffee Corp., 862 F.2d 1213, 1217 (5th Cir. 1989).

         The Court finds that none of pleadings is unintelligible here. If anything they are to obtain more detail and obtain discovery. There have been no objections to submissions. The exchange of information in responses, replies and the surreply have provided more detail that the Court has used in ruling on the motions.

         Rule 15(a)(2)

         Once a party has amended its pleading, it “may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires.” Fed.R.Civ.P. 15(a).

         Applicable Law

         Eleventh Amendment [7] Immunity

         A claim of Eleventh Amendment immunity is a jurisdictional bar and must be addressed because, if meritorious, it deprives the court of subject matter jurisdiction over the suit. Crane v. State of Texas, 759 F.2d 412, 415 (5th Cir. 1985), amended on other grounds on denial of rehearing, 766 F.2d 193 (5th Cir. 1985), cert. denied, 474 U.S. 1020 (1985).

         “The Eleventh Amendment bars an individual from suing a state in federal court unless the state consents to suit or Congress has clearly and validly abrogated the state's sovereign immunity.” Perez v. Region 20 Educ. Expense Bd., 307 F.3d 318, 326 (5th Cir. 2002), citing U.S. CONST. amend. XI; Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 670 (1990). That consent must be clear and unequivocal. Pennhurst State School & Hospital v. Halderman, 465 U.S. 88, 99 (1984). Although Congress has the power under the commerce cause to abrogate Eleventh Amendment immunity with regard to rights protected by the Fourteenth Amendment, it has not often done so. See Quern v. Jordan, 440 U.S. 332, 342 (1979)(holding that 42 U.S.C. § 1983 does not override the States' Eleventh Amendment immunity.); Fitzpatrick v. Bitzer, 427 U.S. 445, 456 (1976)(the Fourteenth Amendment grants Congress the power to subject states to suit in federal court and set aside the immunity bar of the Eleventh Amendment; “the Eleventh Amendment, and the principle of state sovereignty which it embodies, are necessarily limited by the enforcement provisions of § 5 of the Fourteenth Amendment.”).[8]

         The range of the Eleventh Amendment is not limited to lawsuits naming a state as a defendant and party of record; and often a suit will be against a political subdivision, state instrumentalities, and state agencies. 13 Wright & Miller et al., Federal Practice & Proc. Juris § 3524.2 (Apr. 2017 update). Under the Eleventh Amendment, not all political subdivisions [of a state] are automatically immunized when the state is immunized.” Evans v. Bishop, 238 F.3d 586, 589 (5th Cir. 2000). The federal district court must determine whether that entity or individual is considered to be an “arm of the state” entitled to the state's immunity by examining “the essential nature and effect of the proceeding.” Ex parte Ayers, 123 U.S. 443, 490 (1887); Ex parte Young, 209 U.S. 123, 151 (1906); Ford Motor Co. v. Dep't of Treasury of State of Indiana, 323 U.S. 459, 463 (1945). In addition in 1994 the Supreme Court held that “the impetus for the Eleventh Amendment” was “the prevention of federal-court judgments that must be paid out of a State's treasury.” Hess v. Port Authority Trans-Hudson Corp., 513 U.S. 30. 404 (1994), citing Fletcher, A Historical Interpretation of the Eleventh Amendment, 35 Stanford L. Rev. 1033, 1129 (1993). The Hess court observed that “Courts of Appeals have recognized the vulnerability of the State's their status as sovereign entities.” Thus its two purposes are to protect the State's treasury and its dignity.

         The Fifth Circuit applies a six-factor test to determine whether an entity is entitled to Eleventh Amendment immunity as an arm of the state: (1) whether the damage award ultimately comes out of the State's treasury; (2) whether state statutes and case law consider the agency to be an arm of the state; (3) whether the entity is concerned with local or statewide problems; (4) the degree of authority independent from the state; (5) whether the entity can sue and be sued in its own name; and (6) whether the entity has the right to hold and use property. Clark v. Tarrant County, Texas, 798 F.2d 736, 744 (5th Cir. 1986); Correa v. The City of Bay City, , 981 F.Supp. 477, 478-79 (S.D. Tex. 1997).

         Generally counties, municipalities, municipal agencies, and officers of them are determined not to be arms of the state and not entitled to Eleventh Amendment immunity. In Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 123 n.34 (1984), the Supreme Court concluded that “the Eleventh Amendment does not apply to counties and similar municipal corporations.” See also Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391 (1979)(We have “consistently refused to construe the [Eleventh] Amendment to afford protection to political subdivisions such as . . . municipalities, even though such entities exercise a ‘slice of state power.'”); Monell, 436 U.S. at 690 n.54; Owen v. City of Independence, 445 U.S. 622, 638 (Under federal law “there is no tradition of immunity for municipal corporations.”)[9]

         Because a state's Eleventh Amendment immunity extends to any state agency or entity deemed to be an “alter ego” or “arm” of the state, a plaintiff does not have to name the state as a party in a suit. Id., citing Vogt v. Bd. of Commissioners, 294 F.3d 684, 688-89 (5th Cir. 2002).

         42 U.S.C. § 1983

         Section 1983 does not create substantive rights but is a procedural rule and offers a remedy providing a private cause of action to redress a violation of federal law; there must be an underlying federal constitutional or federal statutory violation as a predicate to liability under the statute. Johnston v. Harris County Flood Control Dist., 869 F.2d 1565, 1574 (5th Cir. 1989). To state a claim for a violation of 42 U.S.C. § 1983, a plaintiff must establish a deprivation of a right secured by the United States Constitution or other federal laws by a person acting under color of state law. Albright v. Oliver, 510 U.S. 266, 271 (1994). The main purpose of the Civil Rights Act was “to provide protection to those persons wronged by the ‘'[m]isuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.'‘” Owen, 445 U.S. at 650, citing Monroe v. Pape, 365 U.S. 167 (1961).

         “In Texas, sovereign immunity deprives a trial court of subject matter jurisdiction for lawsuits in which governmental units have been sued unless the state consents to suit against such entities. University of Texas Medical Branch at Galveston v. Kai Hui Qi, 402 S.W.3d 374, 380 (Tex. App.--Houston [14th Dist.] 2013), citing Texas Dept. Of Parks and Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex. 2004). The Texas Tort Claims Act provides a limited waiver of sovereign immunity, from both suit and from liability. Miranda, 133 S.W.3d at 224, citing Tex. Civ. Prac. & Rem. Code §§ 101.001-.109. Section 101.021 of the Act states,

A governmental unit in the state is liable for:
(1) property damage, personal injury, and death proximately caused by the wrongful act or omission or the negligence of an employee acting within his scope of employment if
(A) the property damage, personal injury, or death arises from the operation or use of a motor-driven vehicle or motor-driven equipment; and
(B) the employee would be personally liable to the claimant according to Texas law; and
(2) personal injury and death so caused by a condition or use of tangible or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law.

         “[T]he government may not be sued in tort unless a separate, viable tort fits within the limited waiver provided by the [Texas Tort Claims] Act.” Rodriguez v. Christus Spohn Health Sys. Corp., 628 F.3d 731, 736 (S.D. Tex. 2010). The Texas Tort Claims Act does not include a waiver for “legislative functions of a government by consenting to suit in federal court in the Texas Tort Claims Act for § 1983 claims.” Bishop v. City of Galveston, Tex., no. H-11-4152, 2013 WL 960531, at *9 (S.D. Tex. Mar. 12, 2013), citing Quern v. Jordan, 440 U.S. 332, 340-45 (1979). Nor does the Act waive sovereign immunity for claims “arising out of assault, battery, false imprisonment, or any other intentional tort.” Texas Dep't of Pub. Safety v. Petta, 44 S.W.3d 575, 580 (Tex. 2001); Tex. Civ. Prac. & Rem. Code § 101.057(2).

         “The Congress which passed the Civil Rights Act of 1871 [the predecessor to § 1983 enacted pursuant to § 5 of the Fourteenth Amendment], . . . did intend municipalities and other local governments to be included among those persons to whom § 1983 applies.” Hutto v. Finney, 437 U.S. 678, 702 (1979), citing Monell v. Dept. of Soc. Servs. of City of New York, 436 U.S. 658, 665, 690 (1978)(holding that municipalities are “persons” to whom the Civil Rights Act of 1871 applies). Generally municipalities or local government units are not liable for the constitutional torts of their employees unless those employees act pursuant to an official action or with official approval. Monell, 436 U.S. at 663 n.7. “A municipality cannot be held liable solely because it employs a tortfeasor--or, in other words, a municipality cannot be held liable under § 1983 on a respondeat superior theory.” Id. at 691. A municipality may be liable under § 1983 if the execution of one of its customs or policies deprives a plaintiff of his constitutional rights. Id. at 690-91.

         A § 1983 plaintiff must plead specific facts demonstrating a constitutional deprivation and may not merely rest on conclusory allegations. Schultea v. Wood, 47 F.3d 1427, 1433 (5th Cir. 1995).

         Moreover, because immunity of a municipal corporation from punitive damages was well established at the time § 1983 was enacted and there was no evidence that Congress intended to abolish that immunity, today punitive damages are not recoverable against a municipality in a § 1983 lawsuit absent express authorization by a statute. County of Newport v. Fact Concerts, 453 U.S. 247, 270-71 (1981); Webster v. City of Houston, 689 F.2d 1229, 1234-37 (5thCir. 1982)(tracing legislative history of evolving § 1983).

         “[T]he scope of a municipality's immunity from liability under § 1983 is essentially one of statutory construction.” Owen v. City of Independence, Mo., 445 U.S. 622, 635 (1980). “‘By its terms, § 1983 ‘creates a species of tort liability that on its face admits of no immunities.'” Id., quoting Imbler v. Pachtman, 424 U.S. 409 (1976). “Its language is absolute and unqualified; no mention is made of any privileges, immunities, or defenses. Instead the statute states that it “imposes liability on ‘every person' who, under color of state law or custom, ‘subjects, or causes to be subjected, any citizen of the United States to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws.'” Id., quoting § 1983. Municipalities do not have immunity from suit under § 1983 flowing from its constitutional violations--neither absolute nor qualified. Owen, 445 U.S. at 637; Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 166-67 (1993). Furthermore, a “municipality may not assert the good faith of its officers or agents as a defense to liability under § 1983.” Owen v. City of Independents, 445 U.S. 622, 638 (1980).

         To state a claim for municipal liability under Section 1983, however, generally a plaintiff must identify (a) a policy maker, (b) an official policy, and (c) a violation of constitutional rights whose “moving force” is the policy or custom. Piotrowski v. City of Houston (“Piotrowski II”), 237 F.3d 567, 578 (5th Cir. 2001), citing Monell, 436 U.S. at 694. The Fifth Circuit has defined an official policy for purposes of § 1983 as “‘[a] policy statement, ordinance, regulation or decision that is officially adopted and promulgated by the municipality's law-making officials or by an official to whom the lawmakers have delegated policy-making authority.'” Okon v. Harris County Hospital District, 426 Fed.Appx. 312, 316 (5th Cir. May 23, 2011), quoting Bennett v. City of Slidell, 735 F.2d 861, 862 (5th Cir. 1984)(en banc).

         “[N]either a State nor its officials acting in their official capacities are ‘persons' under 1983.” Will v. Michigan Dept. of State Police, 491 U.S. 58, 71 (1989). “An action by a citizen against a state official in his official capacity is not a suit against the official but rather is a suit against the official's office, ” is “no different from a suit against the State itself, ” and is barred by the Eleventh Amendment, subject only to the limited exception permitted by Ex Parte Young, 209 U.S. 123 . . . (1908)(action seeking prospective injunctive relief against state officer permissible against ongoing violations of federal law).[10]

         Alternatively a policy may be “‘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.'” Id., citing id., and Zarnow v. City of Wichita Falls, 614 F.3d 161, 169 (5th Cir. 2010)(“A pattern of conduct is necessary only when the municipal actors are not policymakers”)[, cert. denied, 131 S.Ct. 3059 (2011)]. “Allegations of an isolated incident are not sufficient to show the existence of a custom or policy.” Fraire v. City of Arlington, 957 F.2d 1268, 1278 (5th Cir. 1992). “The unconstitutional conduct must be directly attributable to the municipality through some sort of official action or imprimatur; isolated unconstitutional actions by municipal employees will almost never trigger liability.” Id.

         Causes of Action with § 1983:

         Fourth Amendment

         The Fourth Amendment, which is made applicable to the States by the Fourteenth Amendment, provides that the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. . . .” A seizure of property takes place when “there is some meaningful interference with an individual's possessory interests in that property” by a government agent or official. Severance v. Patterson, 566 F.3d 490, 501 (5th Cir. 2009); U.S. v. Jacobson, 466 U.S. 109, 113 (1984), quoted by Soldal v. Cook County, Ill., 506 U.S. 61 (1984).

         Fourteenth Amendment

         The Fourteenth Amendment (“no state shall deprive any person of life, liberty, or property, without due process of law”) also forbids the state to deprive a person of property without due process. U.S. Const. amend. XIV, § 1. It has both substantive and procedural due process components. County of Sacramento v. Lewis, 523 U.S. 833');">523 U.S. 833, 840 (1998).

         Substantive due process prohibits ‘arbitrary, wrongful government action regardless of the fairness of the procedures used to implement them.” Zinermon v. Burch, 494 U.S. 113, 125 (1990); Lewis v. Univ. of Texas, 665 F.3d 625, 630-31 (5th Cir, 2011). The proper test for substantive due process is the deferential “rational basis” test: is the Defendant government's action rationally related to a legitimate governmental interest? FM Prop. Operating Co. v. City of Austin, 93 F.3d 167, 174 (5th Cir. 1996). Whether a rational relation exists is a question of law for the court. Simi, 236 F.3d at 249. “‘A violation of substantive due process, for example, occurs only when the government deprives someone of liberty or property, . . . only when the government works a deprivation of a constitutionally protected interest.'” Id., quoting Brennan v. Stewart, 834 F.2d 1248, 1257 (5th Cir. 1988); see also Dabbles v. Zoning Bd. Of Adjustment, 53 F.3d 592, 601 (3d Cir. 1995)(“[I]n situations where the governmental decision in question impinges upon a landowner's use and enjoyment of property, a land-owning plaintiff states a substantive due process claim where he or she alleges that the decision limiting the intended land use was arbitrary or capricious.”). Substantive due process analysis is appropriate only in cases in which government arbitrarily abuses its power to deprive individuals of constitutional protected rights.” Id.

         Under the procedural component of the Due Process Clause of the Fourteenth Amendment the states must provide constitutionally adequate procedures before depriving an individual of life, liberty of property. Plaintiffs here must first show they have a protected property interest and then that government action resulted in a deprivation of that interest and that they failed to receive all process due to them. Jabary v. City of Allen, 547 Fed.Appx. 600, 606 (5th Cir. Nov. 25, 2013), citing Gentilello v. Rage, 627 F.3d 540, 544 (5th Cir. 2010). It is not the deprivation of their property rights, but the deprivation of their interest in that property without due process of law that is unconstitutional. Id. “Due Process' means an “opportunity to be heard at a meaningful time”, i.e., “‘prior to the deprivation of the . . . property right at issue, '” “in a meaningful manner.” Id., citing Cleveland Board of Educ. v. Loudermill, 470 U.S. 532, 542 (1985).

         Texas Constitution, Article 1, Section 19

         Article 1, § 19, also called the “due course of law” provision, provides a cause of action for deprivation of property: “No citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disenfranchised, except by the due course of the law of the land.” There is no implied private right of action for money damages under Article 1, section 19. See Ray v. Houston Indep. Sch. Dist., Civ. A. No. H-10-312, 2010 WL 2545577, at *4 (S.D. Tex. June 21, 2010)(listing cases holding same). The standard of review for constitutional challenges on substantive due process grounds is the same for both state and federal due process clauses: “‘If the laws passed are seen to have a reasonable relation to a proper legislative purpose and are neither arbitrary nor discriminatory, the requirements of due process are satisfied.'” Lucas v. U.S., 757 S.W.2d 687, 695 (Tex. 1988), quoting Nebbia v. New York, 291 U.S. 502, 537 (1933).

         The due course of law provision, like the federal due process clause, contains a procedural and a substantive component. Barshop v. Medina County Underground Water Conservation Dist., 925 S.W.2d 618, 632-33 (Tex. 1996), citing Texas Workers' Compensation Com'n v. Garcia, 893 S.W.2d 504, 525 (Tex. 1995). With a procedural due process claim that a plaintiff is being deprived of a property right, the government must afford an appropriate and meaningful opportunity to be heard regarding a decision affecting the plaintiff's property rights. Smith v. City of League City, 338 S.W.3d 114, 127 (Tex. App.--Houston [14th Dist.] March 17, 2011). See also Jabary, 547 Fed.Appx. at 606 (“Due process requires an ‘opportunity to be heard at a meaningful time and in a meaningful manner.' Generally a “‘meaningful time' means prior to the deprivation of the liberty or property right at issue.'”), citing Matthew v. Eldridge, 424 U.S. 319, 333 (1976), and Bowlby v. City of Aberdeen, Miss., 681 F.3d 215, 220 (5th Cir. 2012). A number of Texas courts have concluded that section 19 provides an identical guarantee to its federal due process counterpart. Garcia, 893 S.W.2d at 525 (citing cases).

         A plaintiff states a substantive due process claim when he alleges that a city took his private property for a private purpose, not a public use. Id. at 127-28. The Fifth Circuit, in John Corp. v. City of Houston, 214 F.3d 573, 582-83 (5th Cir. 2000), rejected “a blanket rule [that] the Takings Clause[11] subsumes any substantive due process claim relating to a deprivation of property.”

         “‘[G]overnment action comports with substantive due process if the action is rationally related to a legitimate government interest.'” Hidden Oaks Ltd. v. City of Austin, 138 F.3d 1036, 1044 (5th Cir. 1998), quoting FM Properties Operating Co. v. City of Austin, 93 F.3d 167, 174 (5th Cir. 1996). Whether such a rational relation exists is a question of law. Id., citing Id. As the Fifth Circuit held in Shelton v. City of College Station, 780 F.2d 476, 477 (5th Cir. 1986), the “decisions of state zoning boards do not violate substantive due process unless the court finds no ‘'conceivable rational basis'‘ on which the board might have based its decision.'” Id., citing Shelton. If the City's action is rationally related to the protection of the health and safety of citizens, it is not actionable as a violation of the Fourteenth Amendment. Hidden Oaks, 138 F.3d at 1044. Since the Fourteenth Amendment to the federal Constitution was adopted, federal courts cannot rightfully interfere with the valid exercise of the police power to protect the lives, health, and property of citizens because there is no taking. Mugler v. Kansas, 123 U.S. 623, 661-62 (1887).

         Nevertheless, “[t]he Supreme Court's entire ‘regulatory takings' law is premised on the notion that a city's exercise of its police powers can go too far, and if it does, there has been a taking.” John Corp. v. City of Houston, 214 F.3d 573');">214 F.3d 573, 578 (5th Cir. 2000), citing Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415 (1922). A violation of the Takings Clause does not occur until just compensation has been denied. Id.

         Continuing Violation

         In National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002), to clarify differences between traditional, discrete claims of discrimination and continuing violations under Title XII of the Civil Rights Act of 1964, the Supreme Court distinguished discrete acts (such as termination, failure to promote, refusal to hire, denial of transfer, which are individually actionable, and acts that are not, but that may in aggregation establish a hostile work environment claim. Discrete acts of discrimination must be asserted within the applicable statute of limitations period (the 180- or 300-day period for filing a charge with the appropriate state agency, the Texas Workforce Commission, or the EEOC, respectively); if filed later, they are time barred, even if related to subsequent acts that are timely raised. Id. at 113. “Each discriminatory [discrete] act starts a new clock for filing charges alleging that act.” Id. “Claims alleging discrete acts are not subject to continuing violations doctrine.” Heath, 850 F.3d at 737.

         In contrast, acts which are not discrete and individually actionable and all acts constituting the claim are part of the same unlawful practice and when aggregated, make out a racial or sexual hostile work environment claim, which involves repeated conduct and the cumulative effect of ongoing acts and can happen at any time, as long as they are connected in a pattern of similar actions that continues into the applicable limitations period. Id. at 105. In addition the Court found an exception to the statute of limitations in hostile work environment claims, which would not be barred “as long as all acts which constitute the claim are part of the unlawful practice and at least one act falls within the time period. Id. at 113. “[C]onsideration of the entire scope of work environment claim, including behavior alleged outside the statutory time period, is permissible for purposes of assessing liability, so long as any act contributing to that hostile work environment takes place within the statutory time period.” Id. As the Third Circuit characterized it, “a plaintiff's hostile environment claim ‘is based on the cumulative effect of a thousand cuts, rather than on any particular action taken by the defendant, ' so ‘the filing clock cannot begin running with the first act because at that point plaintiff has no claim; nor can a claim expire as to the first act because the full course of conduct is actionable infringement, '” Heath v. Board of Supervisors for the Southern University and Agricultural and Mechanical College, 850 F.3d 731, 737 (5th Cir. 2017), quoting O'Connor v. City of Newark, 440 F.3d 125, 128 (3d Cir. 2006).

         Morgan rejected views of the Fifth and Seventh Circuits that “‘the plaintiff may not base a suit on individual acts that occurred outside the statute of limitations unless it would have been unreasonable to expect the plaintiff to sue before the statute ran on such conduct.” Heath, 850 F.3d at 737. It also rejected the “on notice” factor: “the date on which a plaintiff becomes aware that he or she has an actionable Title VII claim is of no regard in the context of determining the timeliness of a hostile work environment claim.” Id.

         The Heath panel concluded the continuing violation doctrine “applies with equal force” to § 1983 claims. It opined that Morgan's ‘distinction between ‘continuing violations' and ‘discrete acts' is not an artifact of Title VII, but rather a generic feature of federal employment law.” 850 F.3d at 739-40. See also Boswell v. Claiborne Parish Det. Ctr., 629 Fed.Appx. 580, 583 (5th Cir. 2015)(finding that a denial of medical attention and medication for Boswell's hernia was part of a continuing violation based on “a failure to provide needed and requested medical attention, ” which included an untreated cold that developed into bronchitis and walking pneumonia). As the Morgan court observed, 536 U.S. at 116 (citations omitted),

Hostile environment claims are different in kind from discrete acts. Their very nature involves repeated conduct. The “unlawful employment practice” therefore cannot be said to occur on any particular day. It occurs over a series of days or perhaps years and, in direct contrast to discrete acts, a single act of harassment may not be actionable on its own. [The] “‘mere utterance of an . . . epithet which engenders offensive feelings in a[n] employee . . . does not sufficiently affect the conditions of employment to implicate Title VII.” Such claims are based on the cumulative effect of individual acts.

         The statute of limitations for § 1983 is derived from state law, which, as noted, in Texas is two years, while accrual is governed by federal common law. Id. at 740. “The continuing violation doctrine is a federal common law doctrine governing accrual.” Id.

         Mootness and Ripeness

         Article III of the federal Constitution limits the jurisdiction of federal courts to live cases and controversies. U.S. Const. art. III, § 2; United States Parole Comm'n v. Geraghty, 445 U.S. 388, 395 (1980). This actual case-or-controversy requirement gives rise to the justiciability doctrines of standing, mootness, political question, and ripeness. DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352 (2006).

         In addition, the ripeness doctrine also rests on prudential reasons for refusing to exercise jurisdiction. Reno v. Catholic Social Services, Inc., 509 U.S. 43, 71 (1993). The main purpose of the ripeness doctrine is “to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements, ” to dismiss cases that are abstract and hypothetical. Abbott Labs. v. Gardner, 387 U.S. 136, 148 (1967), overruled on other grounds, Califano v. Sanders, 430 U.S. 99 (1977). “Ripeness separates those matters that are premature because the injury is speculative and may never occur from those that are appropriate for judicial review.” United Transp. Union v. Foster, 205 F.3d 851, 857 (5th Cir. 2000). “Ripeness is a necessary component of subject matter jurisdiction, and a court lacks the authority to adjudicate issues presented before they are not yet justiciable.” Goliad County, Texas v. Uranium Energy Corp., CIV. A. NO. V-08-18, 2009 WL 1586688, at *5 (S.D. Tex. June 5, 2009). “Since standing and ripeness are essential components of federal subject-matter jurisdiction, the lack of either can be raised at any time by a party or by the court.” Sample v. Morrison, 406 F.3d 310, 312 (5th Cir. 2005)(per curiam). “A case is generally ripe if any remaining questions are purely legal ones; conversely, a case is not ripe if further factual development is required.” Id. In accord, Greenwich Ins. Co. v. Capsco Industries, Inc., No. 1:14CV297-LG-JCG, 2014 WL 5025856, at *1 (S.D.Miss. Oct. 8, 2014). “If an intervening circumstance deprives the plaintiff of a ‘personal stake in the outcome of the lawsuit, ' at any point during litigation, the action can no longer proceed and must be dismissed as moot.” Genesis Healthcare Corp. v. Symczyk, 133 S.Ct. 1523, 1528 (Apr. 16. 2013), citing Lewis v. Continental Bank Corp., 494 U.S. 472, 477-78 (1990). “Jurisdictional issues such as mootness and ripeness are legal questions for which review is de novo.” Lopez v. City of Houston, 617 F.3d 336, 339 (5th Cir. 2010).

         That a claim that is “capable of repetition, yet evading review” is an exception to the mootness doctrine and to satisfy it a party must meet a two-prong test: “‘(1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there was a reasonable expectation that the same complaining party would be subjected to the same action again.'” Lopez, 617 F.3d at 340, quoting Weinstein v. Bradford, 423 U.S. 147, 149 (1975). For the second prong, “‘the party invoking jurisdiction must show a ‘demonstrated probability' or ‘reasonable expectation, ' not merely a ‘theoretical possibility, ' that it will be subject to the same government action.'” Id., citing Libertarian Party v. Dardenne, 595 F.3d 215, 217 (5th Cir. 2010).

         City of Houston's Motion to Dismiss under Rules 12(b)(1), 12(b)(6) or for More Definite Statement under Rule 12(e) (#5)

         The dual nature, one part governmental and the other proprietary, of a municipality (municipal corporation) at common law gives rise to a particular kind of protection for the municipality from tort liability when it is acting in its governmental capacity. Owen, 445 U.S. at 644-45. As explained in Owen, id.,

On the one hand, the municipality was a corporate body, capable of performing the same “proprietary” functions as any private corporation, and liable for its torts in the same manner and to the same extent as well. On the other hand, the municipality was an arm of the State, when acting in the “governmental” or “public” capacity, it shared the immunity traditionally accorded the sovereign.

         The City of Houston first asserts that the state tort claims against it in this suit, which are all based on its performance of governmental functions, [12] are barred by the City's governmental immunity, so this Court lacks subject matter jurisdiction over the claims against it.[13]City of Friendswood v. Horn, 489 S.W.3d 515, 521-22 (Tex. App.--Houston [1st Dist.] Feb. 11, 2016, no pet.), [14]citing Rusk State Hosp. v. Black, 392 S.W.3d 88, 95 (Tex. 2012)(“When performing governmental functions, a political subdivision derives governmental immunity from the state's sovereign immunity. Governmental immunity encompasses the following two principles: (1) immunity from suit, which precludes a lawsuit against the entity unless the Legislature has expressly consented to the suit, and (2) immunity from liability, which precludes judgment against the government even if the Legislature has expressly consented to suit (citations omitted).”).[15] The City of Houston is immune from liability because no statute or common law authorizes the relief Plaintiffs seek.[16] With regard to the second doctrine of proprietary functions a municipality was held to the standards of a private corporation: (1) it was held liable for its proprietary acts and for governmental functions regarding which the State had withdrawn the municipality's immunity by ...

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