Opinion
Civil Action No. SA-03-CA-0219-XR.
August 27, 2004
ORDER
On this date, the Court considered the Motions for Dismissal of Defendants City of Balcones Heights, Ken Menn, and Robert de la Garza, and Plaintiffs' Responses. As discussed below, the Motions are GRANTED in part and DENIED in part (docket nos. 33, 34, and 67). The claims against Defendants City of Balcones Heights, Ken Menn, and Robert de la Garza under 42 U.S.C. § 1983 for the failure to train and supervise, as well as the claims against Defendants Guidry and Trevino, will continue.
I. Standard of Review
The City of Balcones Heights, Police Chief Ken Menn, and Assistant Police Chief Robert de la Garza have filed separate motions to dismiss. In considering a motion to dismiss, the Court must accept all well-pleaded facts as true and view them in the light most favorable to the plaintiff. Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996). The issue is not whether the plaintiff will prevail but whether the plaintiff is entitled to pursue its complaint and offer evidence in support of its claims. Doe v. Hillsboro Indep. Sch. Dist., 81 F.3d 1395, 1401 (5th Cir. 1996). The Court may not look beyond the pleadings in ruling on the motion. Baker, 75 F.3d at 196. Motions to dismiss are disfavored and are rarely granted. Beanal v. Freeport-McMoran, Inc., 197 F.3d 161, 164 (5th Cir. 1999). Dismissal should not be granted "`unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Id. at 164 (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). However, the Court does not accept conclusory allegations or unwarranted deductions of fact as true. Tuchman v. DSC Communications Corp., 14F.3d 1061, 1067 (5th Cir. 1994).
Each defendant mistakenly refers to the motions to dismiss as motions pursuant to Rule 12(b)(6). The motions are, however, properly considered Rule 12(c) motions for judgment on the pleadings, because each defendant has filed its answer. See FED R. CIV. P. 12(b) ("A motion making any of these defenses shall be made before pleading if a further pleading is permitted."); FED. R. CIV. P. 12(c) ("After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings."). Pursuant to Rule 12(h)(2), the Court will treat the motions as proper motions for judgment on the pleadings. Puckett v. United States, 82 F. Supp. 2d 660, 663 (S.D. Tex. 1999); CHARLES ALAN WRIGHT ARTHURR. MILLER, 5C FEDERAL PRACTICE AND PROCEDURE § 1361 (2004). The legal standards for granting or denying Rule 12(c) and Rule 12(b)(6) motions are identical. GEOFFREY C. HAZARD, JR., COLIN C. TAIT, WILLIAM A. FLETCHER, PLEADING AND PROCEDURE 1001 (1999). For the sake of convenience, however, the motions will be referred to as "motions to dismiss."
II. Factual and Procedural Background
In the early morning hours of November 24, 2002, City of Balcones Heights Police Officers Dwaun Guidry and Roland Treviño were dispatched to a gas station in reference to a vehicle with a possibly intoxicated subject. When they arrived they found the plaintiffs, Sarah Adams, Denise Almodovar, Candace Ramirez, Becki Taylor, and Lindsay Valsamki (collectively, "the Plaintiffs"), in possession of alcoholic beverages and possibly intoxicated. Guidry and Treviño placed the Plaintiffs, young women between the ages of 18 and 20, under arrest for public intoxication and transported them to the City of Balcones Heights municipal police department in two police patrol cars owned by the City. The Plaintiffs were not read their Miranda rights.
Upon arrival at the police station, the Plaintiffs were placed into three separate holding cells. After a short period of time, the plaintiffs were removed from their cells and photographed by Guidry and Treviño. Each plaintiff was photographed in various poses and one photograph was taken of all five women together. The Plaintiffs were then placed into a single holding cell. After some period of time, Guidry and Treviño took the Plaintiffs from their cell and brought them into a separate room in the police station that held a desk, chairs, and a stereo. Guidry apparently told the Plaintiffs that they were being released without charge and then asked them what they would do for Guidry and Treviño in return. At this point Guidry allegedly grabbed Becky Taylor and kissed her on the lips. Guidry and Treviño then turned on a radio and told the Plaintiffs to dance for them, which they began to do. During this period, Guidry and Treviño allegedly escalated their sexual advances towards the Plaintiffs. As Plaintiffs set forth the events, Treviño exposed his penis to Candace Ramirez and placed her hand on it. He also attempted to push her head down towards his penis. Treviño also placed his hand down the pants and underwear of Ramirez and Denise Alodovar, without consent. Plaintiffs also claim that Guidry took Lindsay Valsamaki to a bathroom in the hall outside the room where he masterbated and ejaculated on the floor in front of her. Guidry also allegedly licked the vaginal area of Becky Taylor while Treviño took a photograph. Eventually, the Plaintiffs were released and allowed to leave with friends who had come to pick them up at the station. Following the incident, Guidry and Treviño allegedly continued to harass and threaten the Plaintiffs by repeatedly calling them on their cellphones and threatening to appear at their workplaces.
Although there is some dispute as to the facts, the Court assumes for present purposes the truth of the allegations as to the conduct of Guidry and Treviño.
At no time during the incident in question was there any other police officer present at the police station. As of November 24, 2002, Guidry had been employed by the City of Balcones Heights Police Department for a period of two years. His employment was terminated on January 3, 2003 concerning an unrelated incident. Treviño had been employed by the City of Balcones Heights Police Department for three months. His employment was terminated on January 7, 2003 in response to the incident in question.
The Plaintiffs filed a complaint against Guidry and Treviño, as well as the City of Balcones Heights ("the City"), Police Chief Ken Menn, in both his individual and official capacity, and Assistant Police Chief Robert de la Garza, in both his individual and official capacity. The Plaintiffs allege various causes of action based on 42 U.S.C. § 1983 and § 1985 as well as state law claims based on the Texas Tort Claims Act, assault and battery, intentional infliction of emotional distress, negligence, and spoilation. Motions to dismiss by Guidry and Treviño have previously been denied. (docket no. 27). The City, Menn, and de la Garza have now separately filed motions to dismiss. The causes of action attributed to these defendants are the § 1983 claims based on municipality and supervisor liability, liability under the Texas Tort Claims Act, negligence, and spoilation. The City has moved to dismiss based on immunity under Monell v. New York Dep't of Social Servs., 436 U.S. 658 (1978), and under the Texas Tort Claims Act. Menn and de la Garza have moved to dismiss based on qualified immunity. The United States Magistrate Judge has recommended that the motions be denied in part as to the claims under § 1983, and granted in part as to the claims under the Texas Tort Claims Act. Defendants have filed objections to the Magistrate's Memorandum and Recommendation.
III. Analysis
The Plaintiffs allege that the City is liable for their injuries under 42 U.S.C. § 1983 and the Texas Tort Claims Act. They claim that the City had policies that were a moving force behind the violation of the Plaintiffs' constitutional rights. They also claim that the City, as well as Menn and de la Garza, acted with deliberate indifference and negligence in hiring and in training and supervising Guidry and Treviño.
A. Liability Based on Municipal Policy
"[I]n enacting § 1983, Congress did not intend to impose liability on a municipality unless deliberate action attributable to the municipality itself is the `moving force' behind the plaintiff's deprivation of federal rights." Bryan County v. Brown, 520 U.S. 397, 404 (1997) (citing Monell v. New York Dep't of Social Servs., 436 U.S. 658, 694 (1978)). It is only where the "execution of the government's policy or custom . . . inflicts the injury" that the municipality may be held liable under § 1983. The Plaintiffs allege that the City had policies that were the moving force behind the Plaintiffs' alleged sexual assaults. Specifically, the Plaintiffs point to two policies that they claim violated their constitutional rights: (1) that male police officers could arrest female citizens at night and bring them to the police station without the presence of any supervisor and (2) having a dispatcher videotape and monitor prisoners only while they were entering and leaving the station, not while they were in their cells or elsewhere in the station.
The Plaintiffs' first alleged municipal policy amounts to a claim based on inadequate staffing. They claim that had the City adequately staffed the police station at night, by having a supervisor or female officer present while male officers brought female suspects into the station, the alleged sexual assaults would never have occurred. The Plaintiffs' argument misses the point of municipal liability, however. The Plaintiffs rely on inadequate staffing as the basis for their injury, when, in reality, their injury comes from the acts of Guidry and Treviño. In a factually similar case, the Fifth Circuit noted that a pre-trial detainee that was sexually assaulted "did not suffer from the mere existence of the alleged inadequate staffing, but only from [the officer's] specific sexual assaults committed on but one occassion." Scott v. Moore, 114 F.3d 51, 53 (5th Cir. 1997) (en banc) (emphasis added); see also id. ("Although . . . Scott complains generally of inadequate staffing, i.e., `by having only one individual on duty, and/or by not having a female member present when female prisoners are confined,' the actual harm of which she complains is the sexual assaults committed by Moore during the one eight-hour shift. . . ."). In Scott, the plaintiff was taken to jail and processed by the female jailer on duty at the time. The defendant Moore subsequently replaced the female jailer, entered the plaintiff's cell, and repeatedly sexually assaulted her. Id. at 52. In finding that the plaintiff's suit against the city was properly disposed of, the Court noted that "where the complained-of harm is a particular act or omission of one or more officials, the action is characterized properly as an `episodic act or omission' case." Id. at 53 (citing Hare v. City of Corinth, 74 F.3d 633, 645 (5th Cir. 1996)).
"[T]o prove an underlying constitutional violation in an individual or episodic acts case, a [plaintiff] must establish that an official acted with subjective deliberate indifference. . . . To succeed in holding a municipality accountable for that due process violation, however, [the plaintiff] must show that the municipal employee's act resulted from a municipal policy or custom adopted or maintained with objective deliberate indifference to the detainee's constitutional rights."Hare, 74 F.3d at 649 n. 4.
The Court held in Scott that the plaintiff had not shown that the city had any actual knowledge that its staffing policy of failing to have a supervisor and/or a female officer present when female prisoners were detained created a substantial risk of harm to female detainees. Scott, 114 F.3d at 54; id. at 55 ("At best, the evidence proffered by Scott may be construed to suggest that the jail could have been managed better, or that the city lacked sufficient prescience to anticipate that a well-trained jailer would, without warning, assault a female detainee. In either event, they do not reflect objective deliberate indifference to Scott's constitutional rights."). Similarly in this case, the Plaintiffs have failed to allege any set of facts that entitle them to relief against the City. The Plaintiffs' complaint at best alleges only inadequate staffing: Had a supervisor been present, the sexual assaults would not have taken place. This is nothing more than conjecture on the part of the Plaintiffs. These allegations can in no way show that the City or its decision makers knew or should have known of the risk attendant to its staffing policy. See id. at 55. The Plaintiffs' complaint alleges that Menn and de la Garza "knew that Defendant Guidry had a history of sexually harassing and/or assaulting female prisoners." Complaint at ¶ 17. They base this assertion on the fact that Guidry's employment file reflected the fact that he was not eligible for rehire with the Kendall County Sheriff Department and that he had reportedly been "rough with inmates" and "got friendly with" female inmates. Id. There has been no allegation that Guidry or Treviño had any prior record of violent or sexual assault. Put simply, the Plaintiffs have "demonstrated an inability to show a nexus between" the City's staffing policy and this assault, and dismissal is appropriate at this stage. Doe v. Hillsboro Indep. Sch. Dist., 113 F.3d 1412, 1416 (5th Cir. 1997).
The Plaintiffs' second alleged municipal policy is that the City should have had videotape monitoring of the plaintiffs beyond their entrance and exit from the station. They essentially claim that the City should have videotaped the plaintiffs at all times throughout their detention. The plaintiffs do not put forward any plausible justification as to how this alleged policy could be a "moving force" behind the sexual assaults. Their claim is based on their assertion that Guidry and Treviño were aware that there would be no videotape monitoring of their actions and that this enabled the assaults. Even assuming the Plaintiffs' allegations regarding Guidry's and Treviño's actions, however, it is impossible to imagine how the City could have videotaped this incident or how they could have stopped it if they had videotaped it. Again, the Plaintiffs' sexual assault did not occur from the mere existence of inadequate supervision or monitoring, or from a failure to videotape the entire police station, "but only from [Guidry's and Treviño's alleged] specific sexual assaults committed on but one occasion." Scott, 114 F.3d at 53.
Even had the City trained its video camera on the Plaintiffs' cells, the assaults would likely not have been caught on camera. Under the Plaintiffs' allegations, the assaults occurred in a police break room and in a hallway bathroom. It is unlikely that videotape monitoring of the break room or the bathroom would be a prudent or pertinent use of the camera. It is even more unlikely that the failure to monitor these areas would lead to municipal liability for the actions of two police officers when the Plaintiffs make no allegations that anything like this had ever happened previously. The Plaintiffs have failed to demonstrate a nexus between the policy of failing to monitor detainees by videotape throughout the police station and this assault. Clearly, if the failure to adequately staff the police station cannot result in liability, the failure to videotape the entire police station cannot, nor can the combination of these two policies. These policies evidence no more than that the police station could (and should) be managed better. They do not warrant imposing liability on the City under § 1983.
B. Deliberate Indifference
The Plaintiffs also allege that the City, as well as Menn and de la Garza, (collectively "the Defendants") are liable under § 1983 due to their deliberate indifference to the Plaintiffs' constitutional rights. They base this theory on the decisions to hire and on inadequate training and supervision of Guidry and Treviño. Menn's and de la Garza's claims of qualified immunity are tied to a finding of deliberate indifference. See Gros v. City of Grand Prairie, 209 F.3d 431, 433 (5th Cir. 1999). If the Plaintiffs have failed to state a claim for deliberate indifference, Menn and de la Gartz do not need to show an entitlement to qualified immunity.
1. Hiring
"Where a plaintiff presents a § 1983 claim premised upon the inadequacy of an official's review of a prospective applicant's record . . . there is a particular danger that a municipality will be held liable for an injury not directly caused by a deliberate action attributable to the municipality itself." Bryan County v. Brown, 520 U.S. 397, 410 (1997).
"Only where adequate scrutiny of an applicant's background would lead a reasonable policymaker to conclude that the plainly obvious consequence of the decision to hire the applicant would be the deprivation of a third party's federally protected right can the official's failure to adequately scrutinize the applicant's background constitute `deliberate indifference.'"Id. at 411. In Brown, the plaintiff, who had been injured when a Sheriff's deputy had pulled her from her car, alleged that the decision to hire the deputy was a moving force in the deprivation of her constitutional rights. She claimed that the Sheriff did not adequately review the deputy's background before hiring him. The deputy's record included driving infractions and guilty pleas to various driving-related and other misdemeanors, including assault and battery, resisting arrest, and public drunkenness. Id. at 401. The Supreme Court found that this record was not enough to make it plainly obvious that the consequence of hiring the deputy would be the particular injury alleged. Specifically, the Court made it clear that liability based on the decision to hire someone "must depend on a finding that this officer was highly likely to inflict the particular injury suffered by the plaintiff." Id. at 412. The deputy's record did not reflect on the likelihood that he would use excessive force in making an arrest.
The Fifth Circuit has made clear that there must be a strong connection between the background of the applicant and the specific violation alleged; that the hired officer was highly likely to inflict the particular type of injury suffered. See, e.g., Gros, 209 F.3d at 434. The Fifth Circuit refused to find liability on the basis of the hiring of an officer who committed sexual assault in Gros, a factually similar case to the present one. The officer in Gros sexually assaulted two motorists during separate traffic stops. The officer also called one of the motorists at her dormitory room and told her he was coming over before work. The officer's record suggested that he was possibly overly aggressive and abusive at his previous employment. Id. at 435. His record was completely devoid of any claims of sexual assault, sexual harassment, or excessive force, however. Id. There was, therefore, insufficient evidence to show that the city was deliberately indifferent to the plaintiffs' constitutional rights in hiring the officer. Id. at 436.
Kesler v. King is an example of a case in which the plaintiff presented enough evidence to support the claim of liability based on a hiring decision. In Kesler, the Sheriff recommended a former Texas Department of Corrections officer who had been convicted of beating an inmate for a job as a lieutenant at the county prison. 29 F. Supp.2d 356, 369 (S.D. Tex. 1998). The lieutenant subsequently used excessive force on inmates. The court found that "[n]o reasonably, similarly situated official in [the Sheriff's] position would believe that hiring a man who had been convicted for beating an inmate is an acceptable risk" with regard to hiring that person at a prison. Id. This conduct rose to the level of the strong connection between the applicant's background and the particular injury suffered required by Brown.
The Plaintiffs' complaint has not alleged the requisite strong connection between Guidry's or Treviño's background and the particular injury suffered. In Plaintiffs' Third Amended Original Complaint, the Plaintiffs allege that the Defendants were aware that Guidry's employment file showed that he had been "rough with inmates" and had "got friendly with" female inmates at his previous job. The Plaintiffs fail, however, to allege anything in either Guidry's or Treviño's background along the same lines as the background of the lieutenant in Kesler. In fact, the allegations as to Guidry's record fall short of what the Fifth Circuit found insufficient to support liability in Gros. The Plaintiffs' allegations as to Guidry show that, at the time of the decision to hire him, Guidry may not have been the perfect candidate for a police officer. The allegations do not, however, state a claim against the Defendants for liability based on the decision to hire Guidry. See Rhyne v. Henderson County, 973 F.2d 386, 392 (5th Cir. 1992) (stating that the basis of § 1983 liability "must amount to an intentional choice, not merely an unintentionally negligent oversight"). There are no allegations that would make it plainly obvious to an official screening his background that Guidry would be likely to commit the acts in question. As to Treviño, the Plaintiffs have made absolutely no allegations regarding his background. They rest their claim for liability on the background of Guidry, stating that the Defendants knew of the likelihood that Treviño would commit sexual assault in this situation based on the statements in Guidry's file. The complete lack of any allegation as to a connection between Treviño's background and the injury alleged requires dismissal of the claim as to the Defendants based on the hiring of Treviño. 2. Training and Supervision
A municipality and its officials are liable under § 1983 for failure to train and supervise an officer only where the plaintiff establishes three elements: (1) the official failed to train or supervise the officers involved; (2) there is a causal connection between the alleged failure to supervise or train and the alleged violation of the plaintiff's rights; and (3) the failure to train or supervise constituted deliberate indifference to the plaintiff's constitutional rights. Burge v. St. Tammany Parish, 336 F.3d 363, 371 (5th Cir. 2003); see also City of Canton v. Harris, 489 U.S. 378, 389 (1989) ("The inadequacy of police training may serve as the basis for § 1983 liability only where the failure to train amounts to deliberate indifference to the rights of persons with whom the police come into contact."). The main focus centers on the existence of deliberate indifference.
Proof of a single violent incident is typically insufficient to hold a municipality liable for inadequate training. Snyder v. Trepagnier, 142 F.3d 791, 798 (5th Cir. 1998). In a limited set of circumstances, however, a plaintiff may establish deliberate indifference by "showing a single incident with proof of the possibility of recurring situations that prevent an obvious potential for violation of constitutional rights." McClendon v. City of Columbia, 258 F.3d 432, 442 (5th Cir. 2001). This exception is limited and narrow and "will apply only where the facts giving rise to the violation are such that it should have been apparent to the policy maker that a constitutional violation was the highly predictable consequence of a particular policy or failure to train." Burge, 336 F.3d at 373. Generally, therefore, a showing of deliberate indifference will require a showing of at least a pattern of similar violations arising from the lack of training.
The focus is on the adequacy of the training in relation to the tasks the officer actually must perform. City of Canton, 489 U.S. at 391. If an entity provides appropriate training but the injury is inflicted by an officer who, having received that instruction, disregards it, only the agent can be liable. Id. "That a particular officer may be unsatisfactorily trained will not alone suffice to fasten liability on the city. . . . Neither will it suffice to prove that an injury or accident could have been avoided if an officer had better or more training." Id.
The case of Centamore v. City of Houston shows the lengths to which a plaintiff is required to show inadequacy of training and supervision. 9 F. Supp.2d 717 (S.D. Tex. 1997). There, the plaintiff accused an officer of sexually assaulting him during a traffic stop. Prior to this occurrence, the officer's employment record was marred by numerous complaints and problems, his fitness as an officer was questioned by his supervisors, and it was recommended that he be referred to the Personnel Concerns Program. It had also been recommended that he be taken off patrol by a psychologist. Despite this, the officer was placed back on patrol after having been placed on a desk assignment for three months. Id. at 719-21. Within four months of being placed back on patrol, the sexual assault of the plaintiff occurred. The District Court found that the plaintiff had raised a fact issue as to whether the city had acted with deliberate indifference with regard to the known or obvious consequences of placing the officer back on patrol. Id. at 724.
The City cites to the case of Jane Doe No. 7 v. City of Haltom City, 2003 W.L. 21149694 (N.D. Tex. 2003), for the proposition that dismissal should be granted. There, the District Court, with facts similar to the present case, granted dismissal under Rule 12(b)(6), stating that "specific or extensive training hardly seems necessary for a jailer to know that sexually assaulting inmates is inappropriate." Id. at *3. The Fifth Circuit has, however, recently overturned this case. Drake v. City of Haltom City, 2004 W.L. 1777144 (5th Cir. 2004). Finding that the plaintiffs had sufficiently stated a claim against the City under § 1983, the Court stated that it was "unwilling to say, at this point, that it is not obvious that male jailers who receive no training and who are left virtually unsupervised might abuse female detainees." Id. at *1. At the motion to dismiss stage, then, it is not appropriate to dismiss a case for failure to state a claim when evidence might be adduced showing that a police officer has received no training in offenders' rights, staff/detainee relations, or sexual harassment. The Plaintiffs allege that Guidry and Treviño received no or inadequate training, which resulted in the sexual abuse. This Court is unwilling to dismiss the claim for failure to train and supervise at this stage when the Plaintiffs may be able to show that Guidry and Treviño did not receive adequate training.
In a strikingly similar case to the present one, the Eleventh Circuit overturned a jury verdict against a municipality based on an alleged failure to train or supervise a police officer. In Sewell v. Town of Lake Hamilton, a police officer was accused of sexually assaulting the plaintiff when he brought her back to the unmanned police station in the early morning hours and offered to let the plaintiff go if she consented to a strip search. 117 F.3d 488, 489 (11th Cir. 1997). The officer threatened to ruin her life if she did not consent and indicated that he would accept any sexual advances made by her during a strip search. Eventually, the plaintiff lay naked on the floor and the officer molested her. Id. On the same morning, the same officer had apparently offered to let another woman out of a speeding ticket in exchange for sex. Id. The Eleventh Circuit found that the Town could not be held liable under § 1983 because there was no showing of deliberate indifference on the part of the Town or its officials towards the plaintiff's injury. Id. The Court held that "`[w]here the proper response . . . is obvious to all without training or supervision, then the failure to train or supervise is generally not "so likely" to produce a wrong decision as to support an inference of deliberate indifference by city policymakers to the need to train or supervise.'" Id. at 490 (quoting Walker v. City of New York, 974 F.2d 293, 299-300 (2nd Cir. 1992)). This case was decided after a jury verdict, rather than at the motion to dismiss stage, however. Accordingly, the Court was able to rely on evidence in the record regarding the officer's training history which this Court may not at this stage.
The Plaintiffs, in their response to the Defendants' motions for dismissal have attached the deposition of Defendant Menn, as well as the deposition of Lee Faz, who operated the videotape equipment on the night in question, and a report by a police expert as to the alleged events. The Court first notes that the Plaintiffs' inclusion of these exhibits is improper at the Rule 12 motion stage. See Fed.R.Civ.P. 12(c) ("If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56."). The Court has, therefore, not considered these exhibits in making its ruling. The Plaintiffs also claim that dismissal would be inappropriate at this stage because they have as yet been unable to depose Defendant de la Garza. Plaintiffs' Response to Defendant de la Garza's Motion to Dismiss 5. Plaintiffs again confuse the Court's analysis at the dismissal stage. The Court's focus is on the pleadings, not on the possible summary judgment evidence.
C. Qualified Immunity
Because the Plaintiffs have successfully alleged a claim under § 1983 for failure to train or supervise, Defendants Menn's and de la Garza's defense of qualified immunity must be addressed. The Fifth Circuit has developed a two-step process for the examination of a claim of qualified immunity. The first inquiry is whether the plaintiff has alleged a violation of a clearly established constitutional right. See King v. Chide, 974 F.2d 653, 657 (5th Cir. 1992). The next step is to judge the reasonableness of the alleged behavior. Id. As shown above, the Plaintiffs have alleged a violation of a clearly established constitutional right for the failure to train and supervise Guidry and Treviño, which resulted in the sexual assault in question. In judging the reasonableness of Menn's and de la Garza's actions regarding the training and supervision of Guidry and Treviño, the Court is unwilling to grant qualified immunity at this stage. The decision as to qualified immunity on this claim would better be decided after the Plaintiffs have been able to gather evidence as to the extent of Guidry's and Treviño's training and the extent of Menn's and de la Garza's involvement in the training and supervision. Accordingly, Defendants Menn and de la Garza are not entitled to qualified immunity on the Plaintiffs' allegation of failure to train and supervise under § 1983 at this stage of the proceeding. See Kesler v. King, 29 F. Supp.2d 356, 368-69 (S.D. Tex. 1998). Qualified immunity may be reasserted at a later stage, after evidence regarding the training and supervision of Guidry and Treviño has been gathered.
D. Texas Tort Claims Act
The plaintiffs also allege that the City is liable for Guidry's and Treviño's actions under the Texas Tort Claims Act ("the Act"). The Act provides:
A governmental unit in the state is liable for:
(1) property damage, personal injury, and death proximately caused by the wrongful act or omission or the negligence of an employee acting within his scope of employment if:
(A) the property damage, personal injury, or death arises from the operation or use of a motor-driven vehicle or motor-driven equipment; and
(B) the employee would be personally liable to the claimant according to Texas law; and
(2) personal injury and death so caused by a condition or use of tangible personal or real property if the governmental unit would, were it a private person, be liable to the claimant.
TEX. CIV. PRAC. REM. CODE ANN. § 101.021 (Vernon 1997). Further, the Act provides that "[t]his chapter does not apply to a claim: . . . (2) arising out of assault, battery, false imprisonment, or any other intentional tort." Id. § 101.057. The plaintiffs allege that the City is liable under both sections of the Act.
The plaintiffs' complaint states that the City, as well as Menn and de la Garza, are liable under the Act. As the Act clearly references only "governmental unit[s]," the Court interprets the plaintiffs' complaint to allege that Menn and de la Garza are liable in their official capacity only. The Court will refer to the claims under the Act as against the City.
The plaintiffs claim that the City is liable under section (1) of the Act based on the use of the police vehicles by Guidry and Treviño. They claim that Guidry and Treviño used the police vehicles "to initiate the imprisonment of [the Plaintiffs] and for the purpose of creating an opportunity to sexually harrass [sic], assault, and/or abuse Plaintiffs." The plaintiffs completely fail to state a claim under this section of the Act, however. The Texas Supreme Court has made it clear that there must exist a nexus "between the operation or use of the motor-driven vehicle or equipment and a plaintiff's injuries." Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 543 (Tex. 2003). The condition or use of property "does not cause injury if it does no more than furnish the condition that makes the injury possible." Dallas County Mental Health Mental Retardation v. Bossley, 968 S.W.2d 339, 348 (Tex. 1998). The plaintiffs' allege no more than that the police vehicle furnished the condition that made the injury (the sexual assault) possible. No allegedly illegal or unconstitutional act occurred in the police vehicles. The alleged sexual assault occurred at the police station. The plaintiffs therefore have failed to state a claim under section (1) of the Act.
The plaintiffs also claim that the City is liable under section (2) of the Act based on the use and misuse by Guidry and Treviño of their police uniforms, service weapons, police badges, Polaroid camera, and handcuffs. The Texas Supreme Court has stated that section 101.057 does not always shield a municipality from liability when intentional conduct intervenes between a negligent act and the result. Delaney v. University of Houston, 835 S.W.2d 56, 60 (Tex. 1992). The First District Texas Court of Appeals has addressed a similar situation in a which a police officer drove the plaintiff to a deserted area and sexually assaulted her at gunpoint. City of Houston v. McCullough, 2003 W.L. 141251 (Tex.App.-Houston [1st Dist.] 2003, pet. denied). The plaintiff similarly alleged the City of Houston was negligent in the use of a badge, uniform, gun, telephone, radio, vehicle, and computer, and that this negligence caused the sexual assault. The court held that the plaintiff did not state a claim for relief because she did not plead facts that show a condition or use of property that proximately caused personal injury or death. Id. at *3 (citing Bossley, 968 S.W.2d at 342-43). The court held that the proximate cause of the plaintiff's injury was the police officer's intentional tort, not the use of police property. Id. Similarly, the proximate cause of the Plaintiffs' injury was Guidry's and Treviño's alleged conduct, not the entrustment of the police badge, gun, or other property. The Plaintiffs therefore have failed to state a claim under section (2) of the Act.
In addition, the Plaintiffs claim negligence and "reckless and callous disregard" on the part of the City based on the hiring, training, and supervision of Guidry and Treviño. These claims do not fall within the limited waiver of immunity under the Act. The Plaintiffs have therefore failed to state a claim under these theories. See Kesler, 29 F. Supp.2d at 377.
E. Spoilation
The Plaintiffs allege spoilation of evidence against the City. They claim that the videotape of the Plaintiffs entering and exiting the police station "has mysteriously disappeared." Texas law does not recognize an independent cause of action for spoilation. Trevino v. Ortego, 969 S.W.2d 950, 952-53 (Tex. 1998). Inasmuch as the Plaintiffs' complaint alleges a cause of action for spoilation, they have failed to state a claim for which relief can be granted.
Conclusion
The Plaintiffs have failed to state a claim against the Defendants under which relief can be granted for all claims except those based on the failure to train and supervise Guidry and Treviño under § 1983. The motions to dismiss are therefore GRANTED in part and Defendants are entitled to judgment on the pleadings for all claims except those based on the failure to train and supervise Guidry and Treviño under § 1983. FED. R. CIV. P. 12(c). The Plaintiffs have alleged a proper claim under § 1983 for the failure to train and supervise and the motion to dismiss with respect to that claim is DENIED.