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Custer v. Houston Police Department

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

November 15, 2017

ROBIN CUSTER, Plaintiff,


         Pending before the court[1] 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.

         I. Case Background

         Plaintiff 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.[2] On May 1, 2017, Defendants removed this case from the 269th District Court of Harris County, Texas.[3] Defendants filed the pending motion to dismiss on May 8, 2017.[4] and Plaintiff has not filed a response. The following factual account is derived from Plaintiff's live complaint.

         On March 5, 2015, two HPD officers drove into Plaintiff's driveway while Plaintiff and her husband Ricky Custer (“Mr. Custer”) were not home.[5] The officers walked around the exterior of Plaintiff's home and disabled the home's security cameras.[6] One of the officers used his flashlight to break open the front door, and the officers entered Plaintiff's home.[7] After they exited the home, leaving the front door open, the officers took the mail out of Plaintiff's mailbox.[8] The officers then re-entered their vehicle and parked it down the street from Plaintiff's house.[9]

         Mr. Custer came home to find his house had been entered and the security cameras disabled.[10] After Mr. Custer called Plaintiff, she came home from work and reviewed the footage on their security cameras.[11] Plaintiff's neighbor also had footage of the incident captured on his camera.[12]

         II. Legal Standard

         Pursuant 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).

         A 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.

         III. Analysis

         Defendants 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.

         A. Houston Police Department

         Plaintiff 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.

         Rule 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).

         “In 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. (citations omitted).

         Because 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 this action.

         B. Texas Tort Claims Act

         As a 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 ยง 101.001(3)(B). Texas governmental units enjoy immunity from claims unless Texas has consented to ...

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