United States District Court, S.D. Texas, Houston Division
Tiffany Wilcomb, as Independent Administrator of the Estate of Jami Nicole Gaubutz, Plaintiff,
City of Houston, et al., Defendants.
MEMORANDUM OPINION AND ORDER
H. Miller Judge
before the court is a motion to dismiss filed by defendants
City of Houston (the “City”), Sergeant Paul
Terry, Officer Hoang Tran, Officer Charles Farmer, Officer
Kevin Tabora, and Officer Sylvia Lopez (collectively,
“Defendants”). Dkt. 12. Plaintiff Tiffany Wilcomb
responded. Dkt. 15. Defendants replied. Dkt. 17. Having
considered the motion, response, reply, and applicable law,
the court is of the opinion that: (1) the motion should be
GRANTED in part and DENIED in part and (2) that Wilcomb
should be GRANTED leave to amend her complaint.
a civil rights case arising out of the death of twenty-nine
year old Jami Nicole Gaubatz. Dkt. 1 at 3. Gaubatz's aunt,
Wilcomb, brings this suit as the independent administrator of
her late niece's estate. Id.
26, 2015, the officers responded to a suicide call at an
apartment in Houston. Id. at 8. When the officers
arrived, Gaubatz seemed distressed. Id. At 1:20
p.m., the officers handcuffed Gaubatz and told her to sit
down. Id. at 9; Dkt. 15 at 2 n.7. She sat outside in
unobstructed sunlight for an hour and twenty minutes while
the temperature averaged 100.4 degrees Fahrenheit with a heat
index of 106.3 degrees Fahrenheit. Id. Later, the
officers put her in a patrol car and decided to arrest and
book her for public intoxication. Dkt. 1 at 9. At
2:40 p.m., the officers drove Gaubatz to a jail. Id.
When they arrived there at 3:10 p.m, she was unresponsive.
Id. At 3:43 p.m., an ambulance arrived. Id.
at 10. At 4:10 p.m., the ambulance took her from the jail to
a hospital where it arrived at 4:27 p.m. Id.
p.m., before being charged with a crime, Gaubatz died from
drug intoxication. Id. at 10-11. The City did not
discipline the officers. Id. at 22. Additionally, it
“concealed their wrongdoing.” Id.
2010 and 2015, 112 individuals died in HPD custody.
Id. at 10-11. However, HPD never charged ninety-nine
of those individuals (including Gaubatz) with a crime.
Id. And, Gaubatz's death marked the nineteenth
in-custody death due to alcohol or drug intoxication.
Id. According to Wilcomb, the City
“overlook[s], hid[es], and tacitly encourag[es]
misconduct through other officers, the Internal Affairs
Division, the Houston Police Chiefs, the Homicide Division,
as well as a line of mayors . . . .” Id. at
18. Additionally, the City “was aware that it was
highly predictable that its officers would encounter
individuals like Jami Gaubatz . . . .” Id. at
19. And, the City requires all HPD officers to spend forty
hours learning “how to deal with the mentally
ill” through a Crisis Intervention Training Program.
Id. at 20.
sues Defendants for Fourth Amendment violations, damages
under 42 U.S.C. § 1983, personal injuries, and wrongful
death. Id. at 11-22. Defendants move to dismiss for
failure to state a claim under Federal Rule of Civil
Procedure 12(b)(6). Dkt. 12.
8(a)(2) requires that the pleading 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 party
against whom claims are asserted may move to dismiss those
claims when the nonmovant has failed “to state a claim
upon which relief can be granted.” Fed.R.Civ.P.
survive a motion to dismiss, a plaintiff must plead
“‘enough facts to state a claim to relief that is
plausible on its face.'” In re Katrina Canal
Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570, 127 S.Ct. 1955 (2007)). “Factual allegations must
be enough to raise a right to relief above the speculative
level on the assumption that all the allegations in the
complaint are true (even if doubtful in fact).”
Twombly, 550 U.S. at 555 (citations omitted). While
the allegations need not be overly detailed, a
plaintiff's pleading must still provide the grounds of
his entitlement to relief, which “requires more than
labels and conclusions, ” and “a formulaic
recitation of the elements of a cause of action will not
do.” Id.; see also Ashcroft v. Iqbal,
556 U.S. 662, 678, 129 S.Ct. 1937 (2009). “[C]onclusory
allegations or legal conclusions masquerading as factual
conclusions will not suffice to prevent a motion to
dismiss.” Blackburn v. City of Marshall, 42
F.3d 925, 931 (5th Cir. 1995). 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, 556 U.S. at 678. Evaluating a motion to
dismiss is a “context-specific task that requires the
reviewing court to draw on its judicial experience and common
sense.” Id. at 679. “Ultimately, the
question for a court to decide is whether the complaint
states a valid claim when viewed in the light most favorable
to the plaintiff.” NuVasive, Inc. v. Renaissance
Surgical Ctr., 853 F.Supp.2d 654, 658 (S.D. Tex. 2012).
alleges that Defendants violated Gaubatz's Fourth
Amendment rights by: (1) using excessive force when the
officers attempted to seize, arrest, search, or make an
investigatory stop of Gaubatz; (2) failing to provide proper
supervision to prevent such incidents of excessive force; (3)
failing to provide proper training to prevent such incidents
of excessive force; and (4) adopting policies that caused
Gaubatz's death. Dkt. 1 at 12. Wilcomb alleges two
separate § 1983 claims: one for peace-officer liability
(against the officers in their individual and official
capacities) and one for municipal liability. Id. at
1983 provides a claim against anyone who ‘under color
of any statute, ordinance, regulation, custom, or usage, of
any State' violates another's constitutional
rights.” Whitley v. Hanna, 726 F.3d 631, 638
(5th Cir. 2013) (quoting 42 U.S.C. § 1983)). To state a
§ 1983 claim, Wilcomb must: (1) allege a violation of a
right secured by the Constitution or laws of the United
States and (2) demonstrate that the alleged deprivation was
committed by a person acting under color of state law.
Id. Municipalities and cities qualify as
“persons” under § 1983. Monell v.
Dep't of Soc. Servs., 436 U.S. 658, 690-91, 98 S.Ct.
Fourth Amendment prohibits ‘unreasonable . . .
seizures.'” Windham v. Harris County, 875
F.3d 229, 239 (5th Cir. 2017) (quoting U.S. Const. amend.
“A seizure is generally reasonable only if justified by
an individualized suspicion of wrongdoing . . . and only if
carried out in a reasonable manner . . . [and] without the
use of excessive force.” Id. at 239, 242
(internal citations omitted). “Officers who conduct
unreasonable seizures in violation of clearly established law
may be liable under 42 U.S.C. §
1983.” Id. at 241. In addition,
“local governments may be liable if their policies or
customs caused the violation.” Id. (citing
Monell, 436 U.S. at 690-91).
prevail on an excessive force claim, a plaintiff must show
(1) an injury that (2) resulted directly and only from the
use of force that was excessive to the need and that (3) the
force used was objectively unreasonable.”
Windham, 875 F.3d at 242 (internal quotation
omitted). “Whether a use of force is reasonable must be
judged from the perspective of a reasonable officer on the
scene.” Id. (internal quotation omitted).
Wilcomb's claims against the officers
alleges that: “the officers violated the Fourth
Amendment by using excessive force in their 26 July attempts
to seize, arrest, or make an investigatory stop of Ms.
Gaubatz.” Dkt. 1 at 8-10; Dkt. 15 at 7. Wilcomb alleges
that the violations occurred when the officers ignored signs
of Gaubatz's mental distress after they responded to a
suicide call. Id. Wilcomb asserts that the officers
should have taken Gaubatz to get medical ...