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Payne v. City of San Antonio

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

December 20, 2019

DON ALBERT PAYNE, INDIVIDUALLY AND ON BEHALF OF ALL OTHER PERSONS SIMILARLY SITUATED; AND GLORIA JEAN PAYNE, INDIVIDUALLY AND ON BEHALF OF ALL OTHER PERSONS SIMILARLY SITUATED; Plaintiffs,
v.
CITY OF SAN ANTONIO, TEXAS, SAN ANTONIO POLICE DEPARTMENT, WILLIAM KASBERG, SHANNON PURKISS, GERARDO MORALES, RON NIRENBERG, WILLIAM MCMANUS, MIDCROWN PAVILION APARTMENTS, SAN ANTONIO HOUSING AUTHORITY, AMY CARRILLO, Defendants.

          REPORT AND RECOMMENDATION AND ORDER OF UNITED STATES MAGISTRATE JUDGE

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

         To the Honorable United States District Judge Fred Biery:

         This Report and Recommendation and Order concerns the following dispositive and nondispositive motions: San Antonio Housing Authority's Rule 12(b)(6) Motion to Dismiss [#3]; Amy V. Carrillo's Rule 12(b)(6) Motion to Dismiss [#4]; San Antonio Housing Authority and Amy V. Carrillo's Joint Rule 11 Motion for Sanctions [#5]; and Plaintiffs' Motion for Reconsideration of an Order Denying Pro Se's Request for Entry of Default against MidCrowne [#38]. All pretrial matters in this case have been referred to the undersigned for disposition pursuant to Western District of Texas Local Rule CV-72 and Appendix C [#6]. In reviewing the motions before the Court, the undersigned has also considered the following filings: Plaintiffs' Opposition to Defendants' Motions to Dismiss [#7]; Plaintiffs' Opposition to Defendants' Motion for Sanctions [#8]; Defendants' Reply in Support of Motions to Dismiss [#9]; Plaintiffs' Sur-Reply Re: Motions to Dismiss [#10]; Defendants' Reply in Support of Motion for Sanctions [#11]; Plaintiffs' Sur-Reply re: Motion for Sanctions [#12]; Defendants' Objection to Plaintiffs' Sur-Reply [#13]; Plaintiffs' More Definite Statement [#29]; and Defendant MidCrowne Senior Pavilion, LP's Response to Plaintiffs' Motion for Reconsideration of an Order Denying Pro Se's Request for Entry of Default Against MidCrowne [#38]. The undersigned has authority to enter this recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and this order pursuant to 28 U.S.C. § 636(b)(1)(A).

         By their motions, Defendants San Antonio Housing Authority and Amy Carrillo seek dismissal of all of Plaintiffs' claims for failure to state a claim upon which relief can be granted and ask the Court to sanction Plaintiffs for filing vexatious and frivolous lawsuits against them and others. Plaintiffs ask the Court to reconsider its order of September 4, 2019, in which the Court denied Plaintiffs' motion for entry of default against Defendant MidCrowne Senior Pavilion, LP.

         Having reviewed Plaintiffs' pleadings in light of the arguments raised in Defendants' motions, the undersigned will recommend that the District Court GRANT the Motion to Dismiss filed by San Antonio Housing Authority; GRANT IN PART the Motion to Dismiss filed by Amy Carrillo; and DENY Defendants' Motion for Sanctions. The Court will also order that Plaintiffs' Motion for Reconsideration be DENIED.

         I. Procedural Background

         Plaintiffs, proceeding pro se, originally filed this lawsuit in the County Court at Law No. 3 in Bexar County, Texas on September 21, 2018. (Case History [#1-9] at 4-9.) While this case was still pending in state court, Plaintiffs filed their 74-page First Amended Petition, which remains the live pleading in this case. (First Am. Pet. [#1-8] at 2-76.)

         The First Amended Petition names as Defendants the City of San Antonio, Amy V. Carrillo Individually of the San Antonio Housing Authority (“SAHA”), and various officers of the San Antonio Police Department (“SAPD”) in their individual capacities-Officer William Kasberg, Officer Shannon Purkiss, and Officer Gerardo Morales. However, the Petition also mentions SAHA itself as a Defendant, as well as MidCrowne Pavilion Apartments, Mayor Ron Nirenberg, and Police Chief William McManus throughout the body of the Petition.

         At the time Plaintiffs filed their Original and Amended Petitions, they had a nearly identical cause of action pending in the Justice of the Peace Court under cause No. 2018-CV-06441. The two causes of action were consolidated in state court under cause No. 2018-CV-05843 on December 14, 2018. (Order Granting Mtn. to Consolidate [#1-3] at 2.) The City of San Antonio removed the consolidated case to this Court, but the case was remanded due to a procedural defect with the removal. (Notice of Removal [#1-4, #1-5].) Following remand, SAHA, which had not been served prior to the original removal and remand, waived service of process and removed this case to this court on April 17, 2019. (Notice of Removal [#1].) All Defendants named in the First Amended Petition have been served or have waived service. (Id. at ¶¶ 5-6.)

         Plaintiffs' Amended Petition alleges that they signed a lease agreement with MidCrowne Pavilion Apartments (“MidCrowne”) and SAHA contractually agreed to subsidize their rent under the Section 8 Program run by the U.S. Department of Housing and Urban Development (“HUD”). According to Plaintiffs, they satisfied every payment obligation under the lease, but were nonetheless evicted in retaliation for their request for a reasonable accommodation for a disability. It is unclear from the Petition the precise nature of the accommodation requested. Plaintiffs further allege that they were subject to an unlawful warrantless search of their apartment and seizure of a firearm after management of MidCrowne alerted SAHA to a post on Mr. Payne's Facebook page that concerned firearms and ammunition.

         Plaintiffs' First Amended Petition asserts the following causes of action against the various Defendants: (1) wrongful eviction/unlawful search and seizure pursuant to Section 1983; (2) due process violation pursuant to Section 1983; (3) disability discrimination and failure to accommodate; (4) intentional infliction of emotional distress; (5) civil conspiracy pursuant to 42 U.S.C. § 1985; (6) violation of Section 1986; (7) conspiracy to violate the Deceptive Trade Practices Act; and (8) negligence.

         Soon after removal, Defendants SAHA and Carrillo filed the motions to dismiss and motion for sanctions that are the subject of this report and recommendation, and MidCrowne filed a motion for a more definite statement to determine whether Plaintiffs in fact intended to name it as a Defendant in this suit. The Court held its standard Rule 16 conference with the parties, but the City of San Antonio, the SAPD, and related individual Defendants failed to appear. After the conference, the Court granted MidCrowne's motion and ordered Plaintiffs to file a more definite statement to assist MidCrowne and the Court in determining the nature of the allegations in this case. (Order [#22].) The Court also ordered Defendants City of San Antonio, the SAPD, and Municipal Defendants William Kasberg, Shannon Purkiss, Gerardo Morales, and William McManus to show cause why they should not be sanctioned for their failure to appear at the initial pretrial conference. (Id.) Plaintiffs thereafter moved for default against the City of San Antonio and the individual Municipal Defendants, as well as Midcrowne, SAHA, and Carrillo. The Court denied the motions and ordered MidCrowne to file a responsive pleading, ordered the City of San Antonio and the Municipal Defendants to file an amended responsive pleading (as they had filed an answer in state court), and reminded Plaintiffs that SAHA and Carrillo had responded to Plaintiffs' Petition by filing their motions to dismiss. (Order [#31].) MidCrowne and the City of San Antonio and the Municipal Defendants timely filed their answers as ordered. (Response [#34]; Corrected Answer [#36].) Plaintiffs then filed their motion for reconsideration of the Court's order denying the entry of default against MidCrowne, which remains pending before the Court. That motion as well as the motions to dismiss and for sanctions filed by SAHA and Carrillo are ripe for this Court's review.

         II. Motions to Dismiss

         The Court should grant the Motion to Dismiss filed by SAHA and grant in part the Motion to Dismiss filed by Carrillo.

         A. Legal Standard

         “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.

         B. Facts Alleged Against SAHA and Carrillo

         Plaintiffs' First Amended Petition, More Definite Statement, and other filings together allege the following facts against SAHA and Carrillo, a SAHA employee. Plaintiffs claim that SAHA entered into a contract with MidCrowne to reserve certain dwellings for subsidized housing, and Plaintiffs entered into a lease with MidCrowne. (First Am. Pet. [#1-8] at ¶ 38.) During the lease, Mr. Payne requested certain accommodations due to a disability, such as a waiver of fees for covered parking, and Plaintiffs allege SAHA failed to engage in an interactive process regarding the claimed disability and wrongfully denied the requested accommodations. (First Am. Pet. [#1-8] at ¶¶ 103-106, 122-24; More Definite Statement [#29] at 5.) Mr. Payne filed an administrative complaint with HUD's Office of Fair Housing regarding the accommodation process, which was denied on the basis that his complaints were more of the landlord-tenant nature and not subject to federal fair housing laws. (More Definite Statement [#29] at 6; HUD Ltr. [#29] at 7.)

         Plaintiffs claim that after Mr. Payne filed his complaint and during the accommodation process, SAHA and Carrillo retaliated against him with eviction. (First Am. Pet. [#1-8] at ¶¶ 94, 103-106, 122-24, 134-35; More Definite Statement [#24] at 6.) According to Plaintiffs, SAHA and Carrillo improperly retrieved a post from Mr. Payne's Facebook page depicting firearms and ammunition, falsely accused him as a threat to other tenants and employees based on the post, terminated his Section 8 housing voucher, and conspired with SAPD to wrongfully evict him despite his being current on his rent obligations without affording him a hearing. (First Am. Pet. [#1-8] at ¶¶ 50, 51, 94, 134-35, 160, 184-85.) In Plaintiffs' Response to Defendants' Motions to Dismiss, Plaintiffs also allege that SAHA posted photographs of Mr. Payne “at the entrance of their facility under the guise he committed a crime.” (Response [#7] at 6.)

         C. Analysis

         It is somewhat unclear from Plaintiffs' First Amended Petition which causes of action Plaintiffs assert against SAHA and Carrillo. This report and recommendation therefore considers the sufficiency of Plaintiffs' allegations against SAHA and Carrillo as to all claims included in Plaintiffs' Amended Petition. The undersigned considers each claim in turn.

         (i) Section 1983 Claims against SAHA

         Plaintiffs' first and second causes of action arise under Section 1983 of the Civil Rights Act of 1964. Section 1983 provides a cause of action against “[e]very person” who, acting under color of state law, has deprived a person of a federally protected statutory or constitutional right. 42 U.S.C. § 1983. By statute, a housing authority such as SAHA is a governmental entity of the State of Texas. Tex. Loc. Gov't Code § 392.006. Under Section 1983, municipalities and other such governmental units are considered “persons” subject to liability. Monell v. Dep't of Soc. Servs. of City of New York,436 U.S. 658, 691 (1978) (local government entities are persons subject to suit under Section 1983); De La O v. Hous. Auth. of the City of El Paso, 417 F.3d 495, 503 (5th Cir. 2005) (claims against municipal housing authority treated as claims against municipality itself). “By including municipalities within the class of ‘persons' subject to liability for ...


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