United States District Court, S.D. Texas, Houston Division
MEMORANDUM OPINION AND ORDER
LAKE UNITED STATES DISTRICT JUDGE.
Brandon Ray Jackson ("Plaintiff"), sued defendants
Antuar Ferretis and New Caney Independent School District
("NCISD") (collectively "Defendants") in
the 284th Judicial District Court of Montgomery County,
Texas. Plaintiff brings claims against defendant,
police officer Antuar Ferretis, in his official and
individual capacities, under 42 U.S.C. § 1983 for
violation of civil rights guaranteed by the Fourth, Fifth,
and Eighth Amendments to the United States Constitution.
Plaintiff brings claims against NCISD under the Texas Tort
Claims Act for negligent conduct of its employees, and under
42 U.S.C. § 1983 for municipal liability. Defendants
timely removed to this court. Pending before the court is New
Caney Independent School District and Antuar Ferretis'
Motion for Partial Dismissal of Plaintiff's Second
Amended Complaint Pursuant to Rule 12(b)(6) (Docket Entry No.
10) ("Defendants' Motion for Partial
Dismissal"). For the reasons set forth below,
Defendants' Motion for Partial Dismissal will be granted.
Factual Allegations and Procedural
21, 2016, plaintiff Brandon Jackson was riding his bicycle at
NCISD's Texan Drive Stadium. Officer Ferretis approached
Jackson in his NCISD Police Department patrol car as Jackson
was leaving the parking lot. During the ensuing pursuit
Officer Ferretis' patrol car hit Jackson, causing several
injuries. Plaintiff alleges that Officer Ferretis was at all
times acting under color of state law as an agent and
employee of NCISD.
initially filed a personal injury lawsuit in state court
against NCISD and Officer Ferretis in his official and
individual capacities under the Texas Tort Claims Act and 42
U.S.C. § 1983 ("Section 1983"). Defendants
removed the action to federal court and sought partial
dismissal of Jackson's federal and state law claims.
Jackson then filed a Second Amended Complaint in which he
asserts a claim against Officer Ferretis under Section 1983
in his official and individual capacities and against NCISD
under the Texas Tort Claims Act and under Section
1983. Defendants move for partial dismissal of
Plaintiff's Second Amended Complaint. Defendants ask the
court to dismiss (i) Plaintiff's claim against NCISD and
Officer Ferretis in his official capacity under Section 1983,
and (ii) Plaintiff's claims arising under the Fifth and
Eighth Amendments to the United States Constitution against
Officer Ferretis in his official and individual
capacities. Plaintiff opposes Defendants' Motion
to Dismiss. However, Plaintiff did not respond to
Defendants' arguments to dismiss the claims under the
Fifth and Eighth Amendments. Each claim will be analyzed
under the standard of review set forth below.
Standard of Review
the Federal Rules of Civil Procedure a pleading must contain
"a short and plain statement of the claim showing that
the pleader is entitled to relief." Fed.R.Civ.P.
8(a)(2). A plaintiff's pleading must provide the grounds
of his entitlement to relief, and "a formulaic
recitation of the elements of a cause of action will not do.
. . ." Bell Atlantic Corp. v. Twombly, 127
S.Ct. 1955, 1965 (2007). "[N]aked assertion[s] '
devoid of 'further factual enhancement'" or
"[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice." See Ashcroft v. Iqbal, 129 S.Ct.
1937, 1949 (2009). " [C]onclusory 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). Instead, "[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."
Iqbal, 129 S.Ct. at 1949.
12(b)(6) motion tests the formal sufficiency of the pleadings
and is "appropriate when a defendant attacks the
complaint because it fails to state a legally cognizable
claim." Ramming v. United States, 281 F.3d 158,
161 (5th Cir. 2001), cert. denied sub nom. Cloud v.
United States, 122 S.Ct. 2665 (2002) . To defeat a
motion to dismiss, a plaintiff must plead "enough facts
to state a claim to relief that is plausible on its
face." Twombly, 127 S.Ct. at 1974. The court
does not "strain to find inferences favorable to the
plaintiffs" or "accept conclusory allegations,
unwarranted deductions, or legal conclusions."
Southland Securities Corp. v. INSpire Insurance
Solutions, Inc., 365 F.3d 353, 361 (5th Cir. 2004)
(internal quotation marks and citations omitted).
"[C]ourts are required to dismiss, pursuant to [Rule
12(b)(6)], claims based on invalid legal theories, even
though they may be otherwise well-pleaded." Flynn v.
State Farm Fire and Casualty Insurance Co. (Texas), 605
F.Supp.2d 811, 820 (W.D. Tex. 2009) (citing Neitzke v.
Williams. 109 S.Ct. 1827, 1832 (1989)).
Jackson Abandoned Claims Under the Fifth and Eight
did not address Defendants' arguments for dismissal of
Plaintiff's claims under the Fifth and Eighth Amendments.
Accordingly, the court treats the arguments as unopposed
by-Plaintiff. As such, this court will dismiss those
claims as abandoned. See Black v. North Panola School
Dist., 461 F.3d 584, 588 n.1 (5th Cir. 2006) (holding
that the plaintiff's failure to defend a claim in
responses to motions to dismiss or to otherwise pursue it
beyond her complaint constituted abandonment of the claim)
(citing Vela v. City of Houston, 276 F.3d 659, 679
(5th Cir. 2001)).
Plaintiff's claims under the Fifth and Eighth Amendments
have no merit whether the court treats them as abandoned or
not. Neither the Fifth nor the Eighth Amendment applies to
the municipal actors in this case. The protections of the
Eighth Amendment apply only to "convicted prisoners and
do not apply to pretrial detainees, " and the Fifth
Amendment applies "only to the actions of the federal
government, and not to the actions of a municipal
government." Morin v. Caire, 77 F.3d 116, 120
(5th Cir. 1996). Therefore, Plaintiff's claims under the
Fifth and Eighth Amendments against Officer Ferretis in both
his official and individual capacities have no merit.
Section 1983 Claims Against NCISD and Officer
Claim Against ...