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Donohue v. McManus

Court of Appeals of Texas, Fourth District, San Antonio

May 10, 2017

John M. DONOHUE, Appellant
William MCMANUS, Appellees

         From the 57th Judicial District Court, Bexar County, Texas Trial Court No. 2014CI12457 Honorable Larry Noll, Judge Presiding

          Sitting: Sandee Bryan Marion, Chief Justice, Rebeca C. Martinez, Justice, Irene Rios, Justice.



         John M. Donohue appeals the trial court's order granting a motion to dismiss filed pursuant to section 101.106(f) of the Texas Civil Practice and Remedies Code. Although the arguments raised in Donohue's opening brief conflict with statements made in his reply brief, Donohue appears to be challenging the trial court's dismissal of Donohue's claims against Chief William McManus, the Chief of Police of the San Antonio Police Department, based on the trial court's determination that those claims were asserted against Chief McManus in his official capacity. We affirm the trial court's order.


         This appeal arises out of the same underlying lawsuit as a prior interlocutory appeal in which this court affirmed the trial court's order dismissing Donohue's claims against two police officers arising from the same facts. See Donohue v. Dominguez, 486 S.W.3d 50 (Tex. App.- San Antonio 2016, pet. denied). Accordingly, we rely on our prior opinion to summarize the following background:

Donohue originally filed suit against the San Antonio Police Department; the San Antonio Police Chief; Bexar County EMS; and Officers Dominguez and Nakata, in both their individual and official capacities. According to Donohue's petition, in August 2014, he called the police's non-emergency number to request a police report be taken at his mother's home "concerning items involved in a divorce case." Donohue alleged that he then drove to his mother's home, calling his mother on the way. When his mother answered the phone, she was very upset and told him that police officers were already present at her home. She then passed the phone to Officer Dominguez who, according to Donohue's petition, started "asking simple questions in a strange manner" and demanded to know where Donohue was.
When Donohue arrived at his mother's home, the windows of his pickup truck were rolled down. According to Donohue's petition, Officer Dominguez went to the driver's side window of his pickup truck while Officer Nakata went to the passenger side window. Donohue alleged that Officer Nakata "attempt[ed] to reach into the truck through the passenger side window." Donohue rolled up the windows and told the officers to call him on his cell phone. The officers allegedly told Donohue that they wanted him out of the truck. According to Donohue's petition, the officers agreed to go inside his mother's home to talk. Donohue got out of his pickup truck and began walking towards the house when the officers allegedly "jumped him and threw him to the ground face down." Donohue alleged that the officers grabbed his "forearms and pulled them behind his back." Donohue alleged that he suffered personal injuries as a result and that "EMS personnel watched without intervening." Donohue was handcuffed and taken to Officer Dominguez's patrol car. Donohue alleged that he "was shoved into the backseat where his legs became wedged between the backseat and the door opening ... Officer [Nakata] began kicking Donohue's legs and knees trying to force them inside the door." The officers took Donohue to the emergency room, and Donohue was treated that night.
With respect to Officers Dominguez and Nakata, Donohue brought claims for false imprisonment, assault, and aggravated assault, which he alleged were brought pursuant to chapters 20, 22, and 39 of the Texas Penal Code. Donohue also alleged violations under article, 1, sections 9, 13, and 19 of the Texas Constitution.
Officers Dominguez and Nakata then moved to dismiss pursuant to the Texas Tort Claims Act. [By order dated January 8, 2015, ] [t]he trial court granted the motions and dismissed all of Donohue's claims against Officers Dominguez and Nakata with prejudice.

Donohue, 486 S.W.3d at 52-53. Donohue appealed the trial court's order, and this court affirmed the order dismissing Donohue's claims against Officers Dominguez and Nakata. Id. at 58.

         On February 17, 2015, Donohue nonsuited his claims against the San Antonio Police Department and Bexar County EMS. Accordingly, the only remaining defendant was Chief McManus.

         On July 21, 2016, Donohue filed a third amendment to his pleadings alleging he was suing Chief McManus "in his individual capacity as respondeat superior."[1] Donohue alleged Chief McManus was vicariously liable for the actions of Officers Dominguez and Nakata. Donohue further alleged Chief McManus authorized Officers Dominguez and Nakata to use excessive force in an effort to portray himself as tough on crime and to "cause civilians to cower in the presence of law enforcement."

         On September 2, 2016, Chief McManus filed a motion to dismiss.[2] The motion asserted Donohue's claims against Chief McManus must be dismissed under section 101.106(f) because Chief McManus was acting within the scope of his employment and was sued for ...

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