United States District Court, S.D. Texas, Houston Division
MEMORANDUM OPINION AND ORDER
LAKE, UNITED STATES DISTRICT JUDGE
Amanda Vanskiver ("Plaintiff"), sued defendant, the
City of Seabrook, Texas ("Defendant" or "the
City"), in the 234th Judicial District Court of Harris
County, Texas. 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. 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.
Factual Allegations and Procedural
January 28, 2017, plaintiff Amanda Vanskiver sustained
physical injuries caused by Defendant's employee, Officer
D. Hough. 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. Plaintiff alleges that Officer
Hough was at all times "acting under the color of the
laws and regulations of the City of Seabrook,
Texas." 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. . . .
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." The City argues
that Vanskiver has failed to plead facts that would support a
claim for relief against the City.
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)).
Section 1983 Claims Against the City of Seabrook
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
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") .
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
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)) .
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.
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.
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." 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
Official Policy, Custom, or Practice
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.
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" 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.