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Duke v. Moss

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

October 28, 2019

MELVIN LEE DUKE, #02054172, Plaintiff,
v.
ROBERT MOSS, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          KEITH K ELLISON, UNITED STATES DISTRICT JUDGE.

         Plaintiff, a state inmate proceeding pro se and in forma pauperis, filed this section 1983 lawsuit against Houston Police Department Officer Robert Moss, the Houston Police Department ("HPD"), the Internal Affairs Division ("IAD"), and the City of Houston.

         Having screened the complaint pursuant to sections 1915 and 1915A, the Court DISMISSES this lawsuit for the reasons discussed below.

         I. BACKGROUND AND CLAIMS

         Plaintiff states that, on October 8, 2014, he led HPD officers on a high-speed chase through southeast Houston. His vehicle eventually flipped over, and he fled the scene on foot. Defendant HPD Officer Robert Moss caught up with plaintiff and grabbed him by the shirt. Moss then struck plaintiff with a police radio, breaking plaintiff s nose and cutting his forehead. Moss arrested plaintiff, and plaintiff was transported to a local hospital for medical treatment. After receiving treatment, plaintiff was booked into j ail and charged with evading arrest with a motor vehicle and assaulting Moss, causing bodily injury.

         Plaintiff bonded out of jail two weeks later and attempted to file a complaint with the HPD IAD as to Moss's use of force. According to plaintiff, the IAD denied his complaint without undertaking an investigation. Plaintiffs bond was revoked a few weeks later when he failed to appear for court in November 2014. He was recaptured and returned to custody in May 2015. He was convicted in March 2016 of evading arrest with a motor vehicle and sentenced to thirty-five years' imprisonment.

         Plaintiff seeks $2 million in damages from defendant Moss for breaking his nose and $10 million from the IAD for failing to investigate the incident. He seeks an additional $10 million from HPD and the City of Houston under a theory of vicarious liability.

         II. ANALYSIS

         Because plaintiff is proceeding in forma pauperis and is a prisoner who has sued a government entity or employee of a government entity, his complaint is subject to sua sponte dismissal if it is frivolous, malicious, or fails to state a claim on which relief may be granted. 28 U.S.C. § 1915A(b)(1); 28 U.S.C. §§ 1915(e)(2)(B)(i), (ii). A complaint is frivolous if it lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Brewster v. Dretke, 587 F.3d 764, 767 (5th Cir. 2009). As shown below, plaintiffs complaint fails to state a viable claim for relief under section 1983.

         A. Defendants HPD and IAD

         Plaintiff names as defendants the HPD and the IAD. These entities have no legal capacity to be sued. The HPD is a subdivision of the City of Houston, and is not subject to suit in its own name. See FED. R. Civ. P. 17; Maxwell v. Henry, 815 F.Supp. 213, 215 (S.D. Tex. 1993); see also Darby v. Pasadena Police Dep't, 939 F.2d 311, 313-14 (5th Cir. 1991) (noting that, as an agency or subdivision of the city, the police department could not be separately sued). The IAD, being a division of the HPD, is likewise not subject to suit in its own name.

         Plaintiffs claims against the IAD and the HPD are DISMISSED WITH PREJUDICE.

         B. Defendants the City of Houston and Moss

         42 U.S.C. § 1983 does not have its own statute of limitations. With respect to claims brought pursuant to section 1983, a federal court must borrow the forum state's general personal injury limitations period. See Owens v. Okure,488 U.S. 235, 249-50 (1989). In Texas, the applicable period of limitations is two years. Tex. Civ. Prac. & Rem. Code § 16.003. See King-White v. Humble Indep. School Dist.,803 F.3d 754, 759-61 (2015); Piotrowski v. City of ...


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