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Myart v. Mach

United States District Court, W.D. Texas, San Antonio Division

October 28, 2019

JAMES W. MYART JR., Plaintiff,
v.
STEVEN P. MACH, DPS, CHAIRMAN; STEVEN C. MCCRAW, DIRECTOR, TEXAS DEPARTMENT OF PUBLIC SAFETY; RHONDA FLEMING, JACOB LAVENDER, TROOPER, DEPT. OF PUBLIC SAFETY; KENT COLEMAN, TROOPER, TEXAS DEPT. OF PUBLIC SAFETY; ROBERT DRIGGERS, TROOPER, TEXAS DEPT. OF PUBLIC SAFETY; PHILIP AYALA, TEXAS DEPARTMENT OF PUBLIC SAFETY, STATE OF TEXAS, CITY OF SAN ANTONIO, RON NIRENBERG, MAYOR, CITY OF SAN ANTONIO; WILLIAM P. MCMANUS, CHIEF OF SAN ANTONIO POLICE DEPARTMENT; AND ERIK WALSH, Defendants.

          REPORT AND RECOMMENDATION AND ORDER OF UNITED STATES MAGISTRATE JUDGE

          ELIZABETH S. ("BETSY") CHESTNEY, UNITED STATES MAGISTRATE JUDGE

         To the Honorable Chief United States District Judge Orlando L. Garcia:

         This Report and Recommendation concerns the two motions to dismiss pending in the above-styled case: (1) the Motion to Dismiss filed by Defendants Mach, McCraw, Fleming, Ayala, Driggers, Lavender, Coleman, Texas Department of Public Safety and the State of Texas [#7]; and (2) the Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(6) filed by Defendants Mayor Ron Nirenberg, Chief William McManus, City Manager Erik Walsh, and the City of San Antonio [#8]. All dispositive pretrial matters in this case have been referred to the undersigned for recommendation pursuant to Western District of Texas Local Rule CV-72 and Appendix C [#4]. The undersigned has authority to enter this recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). For the reasons set forth below, it is recommended that Defendants' motions to dismiss be GRANTED but that Plaintiff be given an opportunity to attempt to cure his pleading deficiencies by filing a More Definite Statement during the objection period. This case has also been referred for resolution of non-dispositive pretrial matters. Thus, in addition to issuing this report and recommendation on the dispositive motions, the undersigned addresses all other pending non-dispositive motions in this case pursuant to 28 U.S.C. § 636(b)(1)(A).

         I. Procedural Background

         Plaintiff James W. Myart, Jr., proceeding pro se, originally filed this action in the 224th Judicial District Court of Bexar County, Texas on May 6, 2019, against the Texas Department of Public Safety (hereinafter “DPS”); DPS Chair Steven P. Mack in his Official Capacity; TDPS Director Steven C. McCraw in his Official Capacity; DPS Inspector General Rhonda Fleming in her Official Capacity; DPS Troopers Jacob Lavender, Kent Coleman, Robert Diggers in their Official and Individual Capacities; DPS Commander Philip Ayala in his Official and Individual Capacity; and the State of Texas. (Orig. Pet. [#1-4] at 2-24.) By his Petition, Plaintiff alleges that Defendants subjected him to false arrest, racial profiling, and excessive force related to an incident on March 3, 2019, during which officers stopped Plaintiff for speeding and incorrectly suspected that he was driving under the influence when he was in fact having a diabetic episode. Defendants Mach, McGraw, and Fleming filed a Waiver of Citation on May 8, 2019 and accepted service of Plaintiff's Original Petition. (Waiver of Citation [#1-7] at 2-4.)

         Plaintiff filed a First Amended Petition on May 9, 2019, which added the City of San Antonio, Mayor Ron Nirenberg (misnamed Ron Nurnberg), San Antonio Police Chief William McManus, and San Antonio City Manager Erik Walsh in their Official Capacities. (First Am. Pet. [#1-9] at 3-26.) Plaintiff's live pleading alleges both federal civil rights violations pursuant to 42 U.S.C. § 1983 (violation of his right to equal protection, his right to be free from unreasonable search and seizure, his right to be free from excessive force, and his right to be free from false arrest) and state law claims under the Texas Tort Claims Act (intentional infliction of emotional distress, false arrest, and malicious prosecution). Plaintiff seeks $1.5 million in compensatory and punitive damages.

         Defendants Mach, McCraw, and Fleming removed Plaintiff's Amended Petition to this Court the following day on the basis of federal question jurisdiction [#1]. At the time of removal, no other Defendants had been served, and none had waived service. The City of San Antonio, Mayor Nirenberg, Chief McManus, and City Manager Walsh subsequently consented to removal [#2]. The motions to dismiss currently before the Court were filed shortly thereafter on May 28 and 30, 2019. The first motion was filed by the “State Defendants” (Mach, McCraw, Fleming, Ayala, Driggers, Lavender, Coleman, DPS, and the State of Texas) [#7] and the second by the “City Defendants” (Nirenberg, McManus, Walsh, and the City of San Antonio) [#8]. Plaintiff's responses to the motions were originally due on June 11, 2019 and June 13, 2019, respectively. Plaintiff promptly moved for an extension of time to file responses to the motions, which the Court granted on June 7, 2019, giving Plaintiff until July 15, 2019 to file his responses [#10]. The Court subsequently stayed this case pending the resolution of the threshold issues raised in Defendants' motions to dismiss [#14].

         Plaintiff did not file his response to either motion by the July 15, 2019 deadline. Instead, on July 26, 2019, Plaintiff filed a motion requesting a 90-day stay of all deadlines in this case due to Plaintiff's medical issues, including his deadline to respond to Defendants' motions to dismiss. The Court held a status conference to address the requested stay on August 7, 2019. After hearing the arguments of Plaintiff at the conference, considering Plaintiff's substantial litigation activity in this and other cases leading up to the conference, and reviewing the medical evidence attached to Plaintiff's motion, the Court denied Plaintiff's request for a 90-day stay of the entire case, but stayed all discovery pending the resolution of Defendants' motions to dismiss [#19]. In the same Order, the undersigned ordered that any party seeking to file any document in this case must first seek leave of court. Plaintiff appealed this Order to the District Court and requested the removal of the undersigned from this case, alleging bias. The District Court affirmed the Order denying the 90-day stay and denied Plaintiff's request to remove the undersigned [#26].

         Plaintiff filed a response to the State Defendants' motion to dismiss on September 13, 2019 [#31] and a general response to the pending motions to dismiss on October 2, 2019 [#38]. Although these responses were not timely filed, the Court has considered them in ruling on Defendants' motions. Plaintiff also moved for leave to file another 90-day stay of this case on September 25, 2019, which would further delay a ruling on Defendants' motions to dismiss [#35]. A few weeks later, Plaintiff filed a motion to lift the stay and proceed with this case [#49]. In the interim, Plaintiff has filed a number of other motions and appeals to the Fifth Circuit. The undersigned now considers each of these motions in turn.

         II. Plaintiff's Motion for Leave to File a Motion for 90-Day Stay and Motion to Lift Stay

         Plaintiff asks the Court for leave to file another motion for a 90-day stay of this case due to his medical issues. Attached to the motion are over one hundred pages of medical evidence demonstrating that Plaintiff has been hospitalized numerous times in the past several months, has lost eyesight in his right eye, and suffers from end-stage renal disease. (Med. Records [#35-1].) Plaintiff also filed additional supplemental records in support of his motion. (Med. Records [#36-1].) In his motion, Plaintiff accuses the undersigned and the District Court of not caring about his medical condition or believing him to be lying to the Court about his illnesses. To the contrary, Plaintiff has sufficiently documented that he suffers from serious medical conditions, which have at times required his hospitalization. Nonetheless, the Court will deny leave to file a second request for a 90-day stay for the following reasons.

         This case is currently at the preliminary stage in which the Court is asked to decide threshold issues raised in two motions to dismiss filed by Defendants. At the motion-to-dismiss stage the Court reviews only the plausibility of Plaintiff's pleadings and does not consider any evidence. Accordingly, there is no need for discovery or any other action by Plaintiff, aside from a response to the pending motions to dismiss or supplemental pleading clarifying Plaintiff's allegations to demonstrate that they give rise to valid causes of action under the law. Plaintiff has filed responses to Defendants' motions (albeit late ones). Discovery has been stayed pending the resolution of Defendants' motions. Other than supplementing his pleadings or filing objections, nothing else is required of Plaintiff at this time and a stay of the entire case is unnecessary.

         Moreover, even if discovery and other aspects of the litigation were proceeding (and thus a stay would have a bigger impact), the Court would deny the motion. Plaintiff has filed dozens of pleadings, motions, and appeals in this case and other cases pending before this Court[1] since Defendants filed their motions to dismiss. He has demonstrated that, although his illness may be serious, he is capable of drafting hundreds of pages of court filings and actively pursuing multiple cases before this Court and others. Over the past six weeks since the District Court affirmed the denial of Plaintiff's request for a stay, in this case alone Plaintiff has filed over twenty motions, responses, pleadings, and appeals. These include two interlocutory appeals to the Fifth Circuit Court of Appeals [#28, #45];[2] five discovery motions [#27, #32, #34, #43, #47]; a motion to appeal a denial of leave to file a discovery motion to the District Court [#29]; a motion to proceed in forma pauperis on appeal before the Fifth Circuit [#30]; a motion to recuse the undersigned and Chief Judge Garcia from this case due to alleged bias and discrimination (which was denied) [#41]; and a motion for a status conference [#48].

         Finally, Plaintiff has also most recently filed a motion to lift the stay in this case [#49], complaining about the delay in the issuance of any rulings in his case and the lack of a scheduling order and a date for trial.[3] It appears therefore that Plaintiff is abandoning his request for a stay. In this filing, Plaintiff indicates that once the Court lifts the current stay, he intends to abandon his two interlocutory appeals, one of which has already been dismissed by the Fifth Circuit. The Court therefore will deny the current pending motion for leave to file a motion to stay and grant in part Plaintiff's motion to lift the stay and proceed with this case.

         III. Defendants' Motions to Dismiss

         The Court should grant the motions to dismiss filed by the State Defendants and the City Defendants. The State Defendants move for dismissal under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure, arguing (1) the State of Texas, DPS, and Defendants Mach, McCraw, Fleming, and Ayala (each sued in an official capacity) are not “persons” subject to suit under 42 U.S.C. § 1983; (2) Plaintiff has failed to rebut Troopers Driggers, Lavender, Coleman, and Commander Ayala's (each sued in an individual capacity) presumptive entitlement to qualified immunity; (3) Defendants Mach, McCraw, Fleming, Ayala, DPS, and the State of Texas were not personally involved in any of the alleged constitutional violations and cannot be held liable for their subordinates' conduct based on a theory of respondeat superior; (4) Plaintiff's state-law tort claims against all Defendants are barred because they do not fall under the Texas Tort Claims Act's limited waiver of liability; (5) insofar as Plaintiff is attempting to sue Defendants under the Texas Penal Code, he lacks standing to do so. The City Defendants have moved for dismissal under Rule 12(b)(6) arguing that Plaintiff fails to allege the personal involvement of any City Defendant in the acts underlying this suit; Plaintiff has failed to allege the City of San Antonio's municipal liability under Section 1983; and Plaintiff has failed to allege any plausible state law claim against Defendants.

         A. Legal Standards

         “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)). “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.” Id. “Although a complaint “does not need detailed factual allegations, ” the “allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. The allegations pleaded must show “more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678.

         In reviewing a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a court “accepts all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff.” Martin K. Eby Const. Co. v. Dallas Area Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004) (internal quotation omitted). However, a Court need not credit conclusory allegations or allegations that merely restate the legal elements of a claim. Chhim v. Univ. of Tex. at Austin, 836 F.3d 467, 469 (5th Cir. 2016) (citing Iqbal, 556 U.S. at 678). In short, a claim should not be dismissed unless the court determines that it is beyond doubt that the plaintiff cannot prove a plausible set of facts that support the claim and would justify relief. See Twombly, 550 U.S. at 570.

         Motions filed under Rule 12(b)(1) of the Federal Rules of Civil Procedure allow a party to challenge the subject matter jurisdiction of the district court to hear a case. Fed.R.Civ.P. 12(b)(1); Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001). The burden of proof for a Rule 12(b)(1) motion to dismiss is on the party asserting jurisdiction. See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 104 (1998). Accordingly, the plaintiff constantly bears the burden of proof that jurisdiction does in fact exist. Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir. 1980). Where a motion to dismiss for lack of jurisdiction is limited to a facial attack on the pleadings, as here, it is subject to the same standard as a motion brought under Rule 12(b)(6). See Lane v. Halliburton, 529 F.3d 548, 557 (5th Cir. 2008); Benton v. United States, 960 F.2d 19, 21 (5th Cir. 1992).

         The undersigned is mindful that in evaluating the merits of Defendants' motions to dismiss, a court views Plaintiff's pro se pleadings under a less stringent standard than those drafted by an attorney. See Alexander v. Ware, 714 F.2d 416, 419 (5th Cir. 1983). As a result, Plaintiff's filings are entitled to a liberal construction that includes all reasonable inferences that can be drawn from these pleadings. See Id. The undersigned does remind the District Court, however, that although Plaintiff is proceeding pro se in this case, he did attend law school and previously was a member of the bar, so he has more legal training and experience than a typical pro se litigant.

         B. Factual Allegations in Plaintiff's Live Pleading

         Plaintiff's First Amended Petition, which is the live pleading in this case, contains the following factual allegations: Plaintiff claims that the City of San Antonio and DPS have an agreement to patrol the streets of the black community in San Antonio and to racially profile residents. (First Am. Pet. [#1-9] at 11.) The gravamen of Plaintiff's complaint concerns a traffic stop that occurred on March 3, 2019. Plaintiff alleges he was stopped for driving 48 miles per hour in a 40-mile-per-hour zone by two state trooper vehicles, one containing Troopers Diggers and Coleman and the other containing Trooper Lavender. (Id.) According to his pleading, the stop was “due to racial profiling, ” although Plaintiff does not include specific facts that support this contention and does not dispute that he was speeding. Plaintiff alleges that after he stopped his car, Trooper Diggers asked Plaintiff to get off his vehicle so he could conduct a sobriety test. (Id.) Upon completion of the sobriety test, Plaintiff was arrested for driving under the influence, handcuffed, and placed in the back of one of the patrol cars. (Id. at 12.) Plaintiff claims that while sitting in the troopers' vehicle, he poured Gatorade onto the troopers' computer because he was angry about being arrested; this led the troopers to charge Plaintiff with criminal mischief. (Id.)

         Plaintiff claims he was then placed on the ground outside of the vehicle; Troopers Diggers and Lavender tried to lift him up by his arms and legs; the handcuffs were cutting his wrists and stopping his blood circulation; and he subsequently begged for an ambulance. (Id.) Medical personnel were summoned, and when emergency technicians arrived, they informed the troopers that Plaintiff's blood sugar was “seriously high” (at 500), and he needed to go to the hospital immediately. (Id.) Plaintiff contends the troopers should have recognized that he was having a diabetic episode and was not under the influence of alcohol, drugs, or medications and should have terminated his arrest at that point. (Id. at 12-13.) Plaintiff alleges he was instead transported to an emergency room for treatment; after five hours he was released from the hospital and transported to the City of San Antonio Office of the Magistrate to be charged with driving under the influence and criminal mischief. (Id.) Plaintiff claims the medical staff of the magistrate conducted a second medical examination and found his blood sugar to be 600. (Id.) Plaintiff alleges he was then transported back to the hospital for further treatment. (Id.) Plaintiff does not explain in his Petition what occurred after his second hospitalization with respect to the criminal charges, but he claims that he reported the incident to Commander Ayala and filed an internal affairs complaint with Inspector General Fleming, both of whom were allegedly complicit in failing to remedy and covering up these incidents. (Id. at 13-14.)

         C. State Defendants' Motion to Dismiss

         The Court should grant the States Defendants' motion to dismiss. First, the State of Texas, DPS, and Defendants Mach, McCraw, Fleming, and Ayala are not “persons” subject to suit under 42 U.S.C. § 1983 and therefore Plaintiff's official capacity claims against these Defendants fail as a matter of law. Second, Ayala was not personally involved in any of the alleged constitutional violations, so the individual-capacity Section 1983 claims against him must be dismissed. Third, Defendants Driggers, Lavender, Coleman, and Ayala have all invoked qualified immunity with regard to Plaintiff's individual capacity claims against them and Plaintiff has failed to rebut that qualified immunity applies. Fourth, Plaintiff's Texas tort claims against all State Defendants are barred because they do not fall under the Texas Tort Claims Act's limited waiver of liability. And, finally, to the extent that Plaintiff is attempting to sue any State Defendant under the Texas Penal Code, he lacks standing to do so.

         1. Official-Capacity Section 1983 Claims Against the State Defendants

         Plaintiff's federal claims against the State of Texas, DPS, and DPS employees in their official capacities should be dismissed because these Defendants are not “persons” subject to suit under Section 1983. Plaintiff sues the State of Texas, DPS, and several of its officers in their official capacities (Defendants Mach, McCraw, Fleming, and Ayala) under Section 1983 for alleged violations of his constitutional rights, seeking only monetary damages as opposed to injunctive relief. Section 1983 imposes liability on any “person” who, under color of state law, deprives another “of any rights, privileges, or immunities secured by the Constitution and laws.” Blessing v. Freestone, 520 U.S. 329, 340 (1997) (citing 42 U.S.C. § 1983). The Supreme Court has long held that states, their agencies, and their officials acting in their official capacities are not “persons” subject to suit under Section 1983. Will v. Michigan Dep't of State Police, 491 U.S. 58, 71 (1989); Hyatt v. Sewell, 197 Fed. App'x 370, at *1 (5th Cir. 2006). This is because official-capacity suits merely constitute another way of pleading an action against the entity of which a public officer is an agent. Hafer v. Melo, 502 U.S. 21, 25 (1991). Accordingly, suits against state officials in their official capacity should be treated as suits against the State. Id.

         The Court must therefore dismiss all of Plaintiff's claims arising under Section 1983 asserted against the State of Texas, DPS and Mach, McCraw, and Fleming, as these three Defendants are only sued in their official capacities. Ayala, however, is sued both in his individual and official capacities. The Supreme Court's doctrine set forth in Will v. Michigan compels dismissal of Plaintiff's claims against Ayala in his official capacity only. The undersigned will address Plaintiff's individual-capacity claims against Ayala in Sections III.C.2 and III.C.3 infra. Additionally, to the extent that Plaintiff is suing Troopers Diggers, Lavender, and Coleman in their official capacities, the Court should dismiss any official-capacity Section 1983 claims against these Defendants for the same reasons.

         Had Plaintiff filed this action in federal court, [4] as opposed to state court, the Eleventh Amendment would have also barred his claims against these Defendants. See e.g. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984); Clay v. Tex. Women's Univ., 728 F.2d 714, 715 (5th Cir. 1984). The removal of this case to federal court by some of the State Defendants, however, resulted in the waiver of Eleventh Amendment immunity. Lapides v. Bd. of Regents of Univ. Sys. of Ga., 535 U.S. 613, 624 (2002).

         2. Individual-Capacity Section 1983 Claims Against Ayala

         Plaintiff's Section 1983 claims against Commander Ayala in his individual capacity also fail as a matter of law because Plaintiff fails to allege Ayala's personal involvement in the constitutional violations.[5] Qualified immunity shields federal and state officials from individual liability for civil damages unless a plaintiff pleads facts showing (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. Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). When the alleged state actor is a supervisor, as with Commander Ayala, there must be allegations of the supervisor's personal involvement in the acts causing the deprivation of constitutional rights or there must be a causal connection between the act of the supervisor and the constitutional violation sought to be redressed. Gates v. Texas Dep't of Protective and Regulatory Serv., 537 F.3d 404, 435 (5th Cir. 2008); Anderson v. Pasadena Indep. Sch. Dist., 184 F.3d 439, 443 (5th Cir. 1999). There is no vicarious or respondeat superior liability of supervisors under Section 1983. Rios v. City of Del Rio, Tex., 444 F.3d 417, 425 (5th Cir. 2006); accord Carnaby v. City of Houston, 636 F.3d 183, 189 (5th Cir. 2011) (holding that under Section 1983, “a government official can be held liable only for his own misconduct”).

         Plaintiff does not allege that Ayala, Commander of the DPS Patrol Division in San Antonio, was personally involved in his arrest, that Ayala somehow caused or directed his arrest, or that Ayala was a part of any of the incidents surrounding his arrest. The only allegations against Ayala individually contained in Plaintiff's First Amended Petition are statements that Plaintiff reported his wrongful arrest to Commander Ayala after the incidents occurred; Ayala informed Plaintiff he had to “go through the criminal charges and [he] agreed with the ...


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