Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Jackson v. Ferretis

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

September 21, 2017

BRANDON RAY JACKSON, Plaintiff,
v.
ANTUAR FERRETIS, OFFICER and NEW CANEY INDEPENDENT SCHOOL DISTRICT, Defendants.

          MEMORANDUM OPINION AND ORDER

          SIM LAKE UNITED STATES DISTRICT JUDGE.

         Plaintiff, 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.[1] 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.[2] 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.

         I. Factual Allegations and Procedural Background

         On July 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.[3]

         Jackson 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.[4] 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.[5] Plaintiff opposes Defendants' Motion to Dismiss.[6] 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.

         II. Standard of Review

         Under 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.

         A Rule 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)).

         III. Analysis

         A. Jackson Abandoned Claims Under the Fifth and Eight Amendments

         Plaintiff 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.[7] 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)).

         Alternatively, 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.

         B. Section 1983 Claims Against NCISD and Officer Ferretis

         1. Claim Against ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.