United States District Court, S.D. Texas, Houston Division
before the court is Defendants City of Houston
(“Defendant City”) and Houston Police
Department's (“HPD”) (collectively,
Defendants”) Motion to Dismiss (Doc. 2). The court has
considered the motion, all other relevant filings, and the
applicable law. For the reasons set forth below, the court
GRANTS IN PART and DENIES IN
PART Defendants' motion.
filed this action alleging violations of 42 U.S.C. §
(“Section”) 1983, the Texas Tort Claims Act, and
state law claims of negligence and gross
negligence. On May 1, 2017, Defendants removed this
case from the 269th District Court of Harris
County, Texas. Defendants filed the pending motion to
dismiss on May 8, 2017. and Plaintiff has not filed a response.
The following factual account is derived from Plaintiff's
March 5, 2015, two HPD officers drove into Plaintiff's
driveway while Plaintiff and her husband Ricky Custer
(“Mr. Custer”) were not home. The officers
walked around the exterior of Plaintiff's home and
disabled the home's security cameras. One of the
officers used his flashlight to break open the front door,
and the officers entered Plaintiff's home. After they exited
the home, leaving the front door open, the officers took the
mail out of Plaintiff's mailbox. The officers then re-entered
their vehicle and parked it down the street from
Custer came home to find his house had been entered and the
security cameras disabled. After Mr. Custer called
Plaintiff, she came home from work and reviewed the footage
on their security cameras. Plaintiff's neighbor also
had footage of the incident captured on his
to Federal Rule of Civil Procedure (“Rule”)
12(b)(6), dismissal of an action is appropriate whenever the
complaint, on its face, fails to state a claim upon which
relief can be granted. When considering a motion to dismiss,
the court should construe the allegations in the complaint
favorably to the pleader and accept as true all well-pleaded
facts. Sullivan v. Leor Energy, LLC, 600 F.3d 542,
546 (5th Cir. 2010).
complaint need not contain “detailed factual
allegations” but must include sufficient facts to
indicate the plausibility of the claims asserted, raising the
“right to relief above the speculative level.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007); see also Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009). Plausibility means that the factual content
“allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 678. A plaintiff must provide
“more than labels and conclusions” or “a
formulaic recitation of the elements of a cause of
action.” Twombly, 550 U.S. at 555. In other
words, the factual allegations must allow for an inference of
“more than a sheer possibility that a defendant has
acted unlawfully.” Iqbal, 556 U.S. at 678.
contend that HPD is an improper party to this suit, and that
the claims under the TTCA and Section 1983 against the City
should be dismissed. Additionally, the City argues that
exemplary damages are not available for these claims.
Houston Police Department
has sued both the HPD and the City; Defendants contend that
HPD was improperly sued as it has no legal existence separate
from the City.
17(b) mandates that an entity's ability to be sued
“is determined . . . by the law of the state in which
the district court is held.” Fed.R.Civ.P. 17(b);
Darby v. Pasadena Police Dep't, 939 F.2d 311,
313 (5th Cir. 1991). Houston is a home-rule city.
See, e.g., Houston Ass'n of Alcoholic Beverage Permit
Holders v. City of Houston, 508 F.Supp.2d 576, 583 (S.D.
Tex. 2007). The Texas Local Government Code gives home-rule
municipalities the power to create a police department. Tex.
Local Gov. Code § 341.003; Darby, 939 F.2d at
313. The City of Houston's charter gives the City the
power to “sue and be sued, ” but does not give
the HPD the power to be sued. See Houston, Tex.,
Charter, Art. II, § 1 (1905).
order for a plaintiff to sue a city department it must enjoy
a separate legal existence.” Darby, 939 F.2d
at 313 (citations and internal quotations omitted). Political
subdivisions must be “separate and distinct corporate
entit[ies]” in order to sue or be sued. Id.
Therefore, the Fifth Circuit has said that “our cases
uniformly show that unless the true political entity has
taken explicit steps to grant the servient agency with jural
authority, the agency cannot engage in any litigation except
in concert with the government itself.” Id.
HPD is not a separate legal entity from the City, and does
not have the power to sue or be sued, HPD is dismissed from
Texas Tort Claims Act
municipality, the City is entitled to the protection of
governmental immunity. Mission Consol. Indep. Sch. Dist.
v. Garcia, 253 S.W.3d 653, 655 n.2 (Tex. 2008) (stating
that municipalities are protected by governmental immunity);
see also Tex. Civ. Prac. & Rem. Code §
101.001(3)(B). Texas governmental units enjoy immunity from
claims unless Texas has consented to ...