United States District Court, S.D. Texas, Galveston Division
ASHLEY LUHELLIER Plaintiff.
OYSTER CREEK, TX, ET AL. Defendants.
MEMORANDUM AND RECOMMENDATION
M.EDISON UNITED STATES MAGISTRATE JUDGE
the Court is (1) Defendant Oyster Creek's Opposed Motion
to Dismiss (Dkt. 16); (2) Defendant Stephen Heckler's
Motion to Dismiss for Failure to State a Claim or,
Alternatively, to Compel a Reply to Immunity (Dkt. 42); (3)
Defendant Village of Surfside Beach's Motion to Dismiss
for Failure to State a Claim (Dkt. 43); and (4) Defendant
Gary Phillips' Motion to Dismiss for Failure to State a
Claim or, Alternatively, to Compel a Reply to Immunity (Dkt.
45). These motions were referred to this Court for report and
recommendation pursuant to 28 U.S.C. § 636(b)(1).
See Dkt. 54.
reviewing the motions, the responses, and the applicable case
law, the Court recommends that the motions be granted and
this suit be dismissed.
civil rights lawsuit arises from a 2017 traffic stop, which
resulted in the arrest and detention of Plaintiff Ashley
Luhellier ("Luhellier"). Luhellier alleges that
during her arrest and detention, she was subjected to
unlawful treatment. The factual allegations contained in the
Fourth Amended Complaint are, in their entirety, as follows:
15. On or about July 27, 2017, Plaintiff was a passenger in a
vehicle that was pulled i over in Brazoria County,
Texas. Plaintiff allegedly had an outstanding warrant and was
arrested; by Heckler, a law enforcement officer for Surfside.
During the traffic stop. Heckler unlawfully searched
Plaintiff by patting her down on the side of the road without
a female officer present. After arriving at Oyster Creek
jail, Heckler and unknown officers of Brazoria, Oyster Creek
and/or Surfside then unlawfully searched Plaintiff once
again, unlawfully held her captive in a shower stall at the
jail, and unlawfully ordered her to remove her clothing until
nude to change into the jail assigned clothing in front of
Heckler, a male. All of these acts were done despite
Plaintiffs protests. Further, mere was no compelling interest
or emergency that could justify the Defendants' acts and
omissions. Finally, throughout this time, Heckler and the
other officers of Brazoria, Oyster Creek and/or Surfside were
acting in accordance with the policies established by Wagner,
Brazoria, Phillips, Surfside, and/or Oyster Creek.
Dkt. 34 at 3. Based on these allegations, Luhellier filed
suit against Stephen Heckler ("Officer Heckler"),
City of Oyster Creek ("Oyster Creek"), Village of
Surfside Beach, Texas ("Surfside"), and Police
Chief Gary Phillips ("Chief Phillips"),
asserting claims under 42 U.S.C. § 1983 for alleged
violations of her Fourth and Fourteenth Amendment rights, as
well as a state law claim for violation of her rights under
Article 1.06 of the Texas Code of Criminal
alleges that her Fourth Amendment and Article 1.06 of the
Texas Code of Criminal Procedure rights against unreasonable
searches and seizures were violated in two ways: (1) her
arrest was not based on probable cause; and (2) she was
patted down pursuant to "Defendants' cross-gender
policy of allowing male officers to pat down female
detainees." Dkt. 34 at 4. Similarly, Luhellier alleges
that her Due Process rights under the Fourteenth Amendment
were violated in two ways: (1) "Defendants'
cross-gender policy of allowing male officers to conduct what
amounts to a strip-search of a female detainee was cruel and
unusual punishment against Plaintiff in violation of the Due
Process Clause of the Fourteenth Amendment;" and (2)
this same "cross gender policy" amounts to a
"violation of [her] due process right to bodily
privacy." Dkt. 34 at 4-5. Relying on these same
constitutional allegations, Luhellier also asserts several
supervisory claims: (1) failure to train; (2) inadequate
screening/hiring; and (3) failure to supervise. Lastly,
Luhellier seeks exemplary damages and attorney's fees
under 42 U.S.C. § 1988.
have separately moved to dismiss.
Rule of Civil Procedure 12(b)(6) allows parties to seek
dismissal of a lawsuit for failure to state a claim upon
which relief may be granted. A motion to dismiss under Rule
12(b)(6) tests the sufficiency of the complaint against the
legal standard set forth in Rule 8, requiring "a short
and plain statement of the claim showing that the pleader is
entitled to relief." Fed.R.Civ.P. 8(a)(2). "To
survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to 'state a
claim to relief that is plausible on its face.'"
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp., v. Twombly, 550 U.S. 544, 570
(2007)). "Determining whether a complaint states a
plausible claim for relief [is] ... a context-specific task
that requires the reviewing court to draw on its judicial
experience and common sense." Iqbal, 556 U.S.
at 679 (citation omitted).
conducting its inquiry, the Court "accept[s] all
well-pleaded facts as true and view[s] those facts in the
light most favorable to the plaintiff." Bustos v.
Martini Club, Inc., 599 F.3d 458, 461 (5th Cir. 2010)
(internal quotation marks and citation omitted). "[A]
well-pleaded complaint may proceed even if it strikes a savvy
judge that actual proof of [the alleged] facts is improbable,
and that a recovery is very remote and unlikely."
Twombly, 550 U.S at 556 (internal quotation marks
and citation omitted). A motion to dismiss under Rule
12(b)(6) is "viewed with disfavor and is rarely
granted." Shaikh v. Tex. A&M Univ. Coll. of
Med., 739 Fed.Appx. 215, 218 (5th Cir. 2018) (internal
quotation marks and citation omitted).
U.S.C. § 1983
U.S.C. § 1983 provides that any person "who, under
color of any statute, ordinance, regulation, custom, or
usage, of any State . . ., 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 any action
at law, suit in equity, or other proper proceeding for
redress." Section 1983 does not create new legal rights.
Rather, Section 1983 acts as a vehicle for individuals to
assert violations of existing federal rights. See
Albright v. Oliver, 510 U.S. 266, 271 (1994)
("Section 1983 is not itself a source of substantive
rights, but merely provides a method for vindicating federal
rights elsewhere conferred.") (internal quotation marks
and citation omitted). Therefore, in order to recover under
Section 1983, Luhellier must show that she has "been
deprived of a right guaranteed by the Constitution or the
laws of the United States." Davis v. Matagorda
Cty., No. 3:18-CV-00188, 2019 WL 1015341, at *3 (S.D.
Tex. Mar. 4, 2019) (citation omitted).
establish municipal liability pursuant to [Section] 1983, a
plaintiff must demonstrate three elements: a policymaker; an
official policy [or custom]; and a violation of
constitutional [or other federal] rights whose moving force
is the policy or custom." Shumpert v. City of
Tupelo, 905 F.3d 310, 316 (5th Cir. 2018) (internal
quotation marks and citation omitted). It is well established
that "[a municipality or other] local government may not
be sued under [Section] 1983 for the deprivation of rights
guaranteed by the Constitution or federal law inflicted
solely by its employees or agents." O'Donnell v.
Harris Cty., 227 F.Supp.3d 706, 725 (S.D. Tex. 2016).
Hence, "a municipality cannot be held liable
solely because it employs a tortfeasor-or, in other
words, a municipality cannot be held liable under [Section]
1983 on a respondeat superior theory."
Monell v. Dep 't of Soc. Servs., 436 U.S. 658,
immunity shields a government official from liability based
on his performance of discretionary functions. Our two-step
qualifiedimmunity inquiry determines whether a plaintiff
has shown: (1) that the official violated a statutory or
constitutional right[;] and (2) that the right was clearly
established at the time of the challenged conduct."
Mote v. Walthall,902 F.3d 500, 505 (5th Cir. 2018)
(internal quotation marks and citations omitted). Government
officials are shielded from liability when "their
conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known." Harlow v. Fitzgerald,457 U.S. 800, 818
(1982) (collecting cases). "The 'of which a
reasonable person would have known' language does not add
to the 'clearly established law' requirement because
'a reasonably competent public official should know the
law governing his conduct."' Arceneaux v. Klein
Indep. Sch. Dist., No. H-17-3234, 2018 WL 3496737, at *3
(S.D. Tex. July 20, 2018) (quoting Kinney v. Weaver,367 F.3d 337, 349 (5th Cir. 2004)). "To say that the law
was clearly established, we must be able to point to
controlling authority-or a robust consensus of persuasive
authority-that defines the contours of the right in question
with a high degree of particularity." Hogan v.
Cunningham,722 F.3d 725, 735 (5th Cir. 2013) (internal
quotation marks and citation omitted). ...