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Vanskiver v. City of Seabrook, Texas

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

January 24, 2018

AMANDA VANSKIVER, Plaintiff,
v.
CITY OF SEABROOK, TEXAS, Defendants.

          MEMORANDUM OPINION AND ORDER

          SIM LAKE, UNITED STATES DISTRICT JUDGE

         Plaintiff, Amanda Vanskiver ("Plaintiff"), sued defendant, the City of Seabrook, Texas ("Defendant" or "the City"), in the 234th Judicial District Court of Harris County, Texas.[1] Plaintiff asserts claims against Defendant under the Texas Tort Claims Act and under 42 U.S.C. § 1983 for the actions of its employee in violation of civil rights guaranteed by the Fourth Amendment to the United States Constitution. Defendant timely removed this action to this court.[2] Pending before the court is Defendant's Motion to Dismiss (Docket Entry No. 2) . Vanskiver filed Plaintiff's Response to Defendant's Motion to Dismiss ("Plaintiff's Response") (Docket Entry No. 3), Defendant filed a Reply (Docket Entry No. 4), and Vanskiver filed Plaintiff's Supplemental Response to Defendant's Reply to Plaintiff's Response to Defendant's Motion to Dismiss ("Plaintiff's Supplemental Response") (Docket Entry No. 5) . For the reasons set forth below, Defendant's Motion to Dismiss will be granted.

         I. Factual Allegations and Procedural Background

         On January 28, 2017, plaintiff Amanda Vanskiver sustained physical injuries caused by Defendant's employee, Officer D. Hough.[3] Plaintiff alleges that Officer Hough wrongfully placed her under arrest and then put weight and pressure on her arms and shoulders with his baton, causing Plaintiff to fracture her arm.[4] Plaintiff alleges that Officer Hough was at all times "acting under the color of the laws and regulations of the City of Seabrook, Texas."[5] Plaintiff also alleges that

Officer Hough was acting under regulations, policies and customs that enabled him to act with deliberate indifference to the constitutional rights of individuals, including without limitation, your Plaintiff. These policies and customs failed to adequately train and supervise their employees and encouraged Defendant's employee, specifically Officer Hough, to ignore the constitutional rights of persons similarly situated to Plaintiff, including your Plaintiff. . . .[6]

         Plaintiff alleges that " [a]11 actions and inactions of the employees of the Defendant are imputed to the Defendant under the legal theory of Respondeat Superior."[7] The City argues that Vanskiver has failed to plead facts that would support a claim for relief against the City.

         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. Section 1983 Claims Against the City of Seabrook

         42 U.S.C. § 1983 provides a private right of action for the deprivation of rights, privileges, and immunities secured by the Constitution or laws of the United States. Section 1983 states:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. . . .

42 U.S.C. § 1983. "[Section] 1983vis not itself a source of substantive rights, ' but merely provides 'a method for vindicating federal rights elsewhere conferred.'" Graham v. Connor, 109 S.Ct. 1865, 1870 (1989) (quoting Baker v. McCollan, 99 S.Ct. 2689, 2694 n.3 (1979)). A complainant under § 1983 must allege that she suffered "(1) a deprivation of a right secured by federal law (2) that occurred under color of state law, and (3) was caused by a state actor." Victoria W. v. Larpenter, 369 F.3d 475, 482 (5th Cir. 2004) (citing Bush v. Viterna, 795 F.2d 1203, 1209 (5th Cir. 1986)) . Plaintiff must also allege that the constitutional or statutory deprivation she suffered was not the result of mere negligence. See Sanchez v. Swyden, 139 F.3d 464, 469 (5th Cir. 1998) ("we have required proof that the official's actions went beyond mere negligence before that tort takes on constitutional dimensions") .

         The Supreme Court held that municipalities are "persons" subject to suit under Section 1983, but that municipalities cannot he held liable on a respondeat superior basis, i.e., a municipality cannot be held liable simply because one of its employees violated a person's federal rights. Monell v. Department of Social Services of the City of New York, 98 S.Ct. 2018, 2035-36 (1978). For a municipality to be held liable under Section 1983, the municipality itself must cause the violation through its policies or customs. Id. at 2037-38. To establish municipal liability under Section 1983 plaintiffs

must show the deprivation of a federally protected right caused by action taken "pursuant to an official municipal policy." ... A plaintiff must identify: "(1) an official policy (or custom), of which (2) a policymaker can be charged with actual or constructive knowledge, and (3) a constitutional violation whose 'moving force' is that policy or custom."

Valle v. City of Houston, 613 F.3d 536, 541-42 (5th Cir. 2010), cert, denied, 13 S.Ct. 2094 (2011) (citing Monell. 98 S.Ct. at 2037-38, and quoting Pineda v. City of Houston, 291 F.3d 325, 328 (5th Cir. 2002)) .

         Plaintiff's respondeat superior claim will be dismissed because a governmental entity may not be held liable under Section 1983 on the basis of respondeat superior or vicarious liability. Monell, 98 S.Ct. at 2036. For the remaining claims to survive Defendant's Motion to Dismiss, Plaintiff must assert plausible factual allegations to support the three elements of municipal liability.

         1. Policymaker

         The plaintiff must "identify a policymaker with final policymaking authority . . . ." Rivera v. Houston Independent School Dist., 349 F.3d 244, 247 (5th Cir. 2003). A policymaker is someone who has the responsibility of setting municipal policy with respect to the action ordered. Pembaur v. City of Cincinnati, 106 S.Ct. 1292, 1299 (1986); City of St. Louis v. Praprotnik, 108 S.Ct. 915, 924 (1988) . The final policymaker must also "be chargeable with awareness of the custom." Milam v. City of San Antonio, 113 Fed.Appx. 622, 625 n.3 (5th Cir. 2004). Whether an official possesses final policymaking authority for purposes of municipal liability is a question of state and local law. Pembaur, 106 S.Ct. at 1300.

         Plaintiff did not allege that Officer Hough was a policymaker or identify any other policymaker for the City in her Original Petition. Plaintiff argues in her Response that Officer Hough was a policymaker "by virtue of his position as a peace officer" and the issue "should not be contested here."[8] She alleges no other facts regarding Officer Hough's final policymaking authority with respect to the action ordered. Nor does Plaintiff allege that Officer Hough, as a policymaker, established, approved of, or was aware of any unconstitutional policy. Plaintiff has therefore not alleged facts that plausibly satisfy this requirement of Monell.

         2. Official Policy, Custom, or Practice

         An official policy may be shown either with (1) a policy statement, ordinance, regulation, or decision that is officially adopted and promulgated by someone with policymaking authority, or (2) "[a] persistent, widespread practice of city officials or employees, which, although not authorized by officially adopted and promulgated policy, is so common and well settled as to constitute a custom that fairly represents municipal policy." Burge v. St. Tammany Parish, 336 F.3d 363, 369 (5th Cir. 2003) (quoting Bennett v. City of Slidell, 735 F.2d 861, 862 (5th Cir. 1984)). Where the municipal actors are not policymakers, the Plaintiff must show a pattern of unconstitutional conduct. Zarnow v. City of Wichita Falls, Texas, 614 F.3d 161, 169 (5th Cir. 2010). "Alternatively, it may be shown that a final policymaker took a single unconstitutional action." Id. (emphasis in original). But those circumstances are "extremely narrow and give[] rise to municipal liability only if the municipal actor is a final policymaker." Valle, 613 F.3d at 542. "Isolated violations are not the persistent, often repeated, constant violations, that constitute custom and policy as required for municipal section 1983 liability." Piotrowski v. City of Houston, 237 F.3d 567, 581 (5th Cir. 2001) (quoting Bennett, 728 F.2d at 768 n.3). To properly state a claim "[t]he description of a policy or custom and its relationship to the underlying constitutional violation . cannot be conclusory; it must contain specific facts." Spiller v. City of Texas City, Police Dept., 130 F.3d 162, 167 (5th Cir. 1997) .

         Plaintiff has not alleged that the City had a relevant policy statement, ordinance, regulation, or decision that is officially adopted. Alleging that Officer Hough acted "under regulations, policies and customs"[9] is a conclusory statement unsupported by factual allegations necessary to properly allege that a policy or custom existed. Vanskiver failed to allege facts that demonstrate a pattern of similar incidents or any widespread custom of constitutional violations. Vanskiver must therefore allege that a person with final policymaking authority took the single unconstitutional action. But as explained in Part III(A)(1) above, Plaintiff has not alleged that a person with policymaking authority caused her injuries. Plaintiff has therefore failed to allege the deprivation of a federally protected right that resulted from an official municipal policy.

         3. Moving ...


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