Opinion
1:22-CV-0981-RP
06-08-2023
YEHUDAH ZVI Plaintiff v. BLACO COUNTY SHERIFF'S OFFICE, et al. Defendants
TO: THE HONORABLE ROBERT PITMAN, UNITED STATES DISTRICT JUDGE.
REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
DUSTIN M. HOWELL, UNITED STATES MAGISTRATE JUDGE.
Before the Court are Defendants Don Jackson, Blanco County Sheriff's Office and CAN/Western Surety Company's (the “Sheriff Defendants”) Motion to Dismiss, Dkt. 7, and Defendant Texas Association of Counties' Motion to Dismiss, Dkt. 8, and all related briefing. After reviewing these filings and the relevant case law, the undersigned issues the following report and recommendation recommending that the District Court grant the motions.
I. BACKGROUND
In this case, pro se Plaintiff Yehudah Zvi alleges claims against the Blanco County Sheriff, Sheriff Don Jackson, Deputy Sheriff Neal Leonard, Sergeant Jimmy Fox, Deputy Kristen Vento, Deputy Keith Taggart, Deputy Randall Mathew, CNA Surety, the Texas Association of Counties, and Court Clerk Margarita Diaz Ramirez, related to an incident where officers Taggart and Vento responded to call by Zvi's neighbor. The neighbor alleged he pointed a gun at her property. This call ultimately led to Zvi's arrest. He asserts claims pursuant to 42 U.S.C. § 1983 alleging that he is being harassed by law enforcement because he is Jewish in violation of the Equal Protection Clause. He also makes claims of false imprisonment and complains that his gun was illegally taken away from him under a (nonexistent) “red flag law.” The Sheriff Defendants move to dismiss pursuant to Federal Rule 12(b)(6). Defendant Texas Association of Counties also files a separate motion to dismiss, also alleging a failure to state a claim.
II. LEGAL STANDARD
Pursuant to Rule 12(b)(6), a court may dismiss a complaint for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). In deciding a 12(b)(6) motion, a “court accepts ‘all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff.'” In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007) (quoting Martin K. Eby Constr. Co. v. Dall. Area Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004)). “To survive a Rule 12(b)(6) motion to dismiss, a complaint ‘does not need detailed factual allegations,' but must provide the plaintiff's grounds for entitlement to relief-including factual allegations that when assumed to be true ‘raise a right to relief above the speculative level.'” Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). That is, “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 Twombly, 550 U.S. at 570).
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. “The tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. A court ruling on a 12(b)(6) motion may rely on the complaint, its proper attachments, “documents incorporated into the complaint by reference, and matters of which a court may take judicial notice.” Dorsey v. Portfolio Equities, Inc., 540 F.3d 333, 338 (5th Cir. 2008) (citations and internal quotation marks omitted). A court may also consider documents that a defendant attaches to a motion to dismiss “if they are referred to in the plaintiff's complaint and are central to her claim.” Causey v. Sewell Cadillac-Chevrolet, Inc., 394 F.3d 285, 288 (5th Cir. 2004). But because the court reviews only the well-pleaded facts in the complaint, it may not consider new factual allegations made outside the complaint. Dorsey, 540 F.3d at 338. “[A] motion to dismiss under 12(b)(6) ‘is viewed with disfavor and is rarely granted.'” Turner v. Pleasant, 663 F.3d 770, 775 (5th Cir. 2011) (quoting Harrington v. State Farm Fire & Cas. Co., 563 F.3d 141, 147 (5th Cir. 2009)).
III. DISCUSSION
A. Texas Association of Counties' Motion to Dismiss (Dkt. 8)
The Texas Association of Counties moves to dismiss Zvi's claim against it because he has failed to set out any facts stating a claim for relief against the Association. The Association points out that while it was served with a Complaint and Summons, and listed as a defendant, no facts are stated mentioning the Association, and no allegations involve the Association. Defendants in § 1983 cases must either be personally involved or “commit acts [that] are causally connected to the constitutional violation alleged.” Magnolia Island Plantation, L.L.C. v. Whittington, 29 F.4th 246, 251 (5th Cir. 2022). “[A] plaintiff bringing a section 1983 action must specify the personal involvement of each defendant[.]” Murphy v. Kellar, 950 F.2d 290, 292 (5th Cir. 1992). Zvi has failed to articulate the involvement of the Texas Association of Counties in the events upon which he bases his claims. Zvi's claims against the Texas Association of Counties should be dismissed for failure to state a claim.
B. Sheriff Defendant's Motion to Dismiss (Dkt. 7)
The Sheriff Defendants move to dismiss Zvi's claims, arguing he has failed to identify a policy or practice or deliberate indifference sufficient to state a claim. Dkt. 7, at 3. Zvi does not allege Sheriff Jackson was present at the events underlying his claim. He alleges no facts involving the CAN/Western Surety Company, which should also be dismissed for the same reasons as the Texas Association of Counties.
Because he does not assert he was involved in any of the alleged constitutional violations, Zvi sues Sheriff Jackson in his official capacity. As the Fifth Circuit has noted, “[o]fficial capacity suits generally represent another way of pleading an action against an entity of which an officer is an agent.” Burge v. Par. of St. Tammany, 187 F.3d 452, 466 (5th Cir. 1999). Thus, Zvi's official-capacity claims against Sheriff Jackson are actually claims against the Blanco County Sheriff's Office itself. See Bean v. Pittman, No. 14-2210, 2015 WL 350284, at *2 (E.D. La. Jan. 26, 2015). Because the Sheriff's Office is a municipal entity, Zvi's § 1983 claim against Sheriff Jackson to must satisfy the requirements outlined in Monell v. Department of Social Services, 436 U.S. 658 (1978).
It is well established that a municipality or a local governmental unit is not liable under § 1983 on the theory of respondeat superior. Monell, 436 U.S. at 694. Therefore, to establish municipal liability under § 1983, a plaintiff must show: (1) an official policy or custom; of which (2) a policy maker can be charged with actual or constructive knowledge; and (3) a constitutional violation whose “moving force” is that policy or custom. Newbury v. City of Windcrest, Tex., 991 F.3d 672, 680 (5th Cir. 2021) (quoting Pineda v. City of Houston, 291 F.3d 325, 328 (5th Cir. 2002)). To satisfy the first element of liability under § 1983, an official policy can include written policy statements, ordinances, or regulations, as well as a widespread practice that is “so common and well-settled as to constitute a custom that fairly represents municipal policy.” Webster v. City of Houston, 735 F.2d 838, 841 (5th Cir. 1984). And to establish municipal liability under § 1983, a plaintiff must also show that the official policy was promulgated or adopted with deliberate indifference to its known or obvious consequences. See Brown v. Bryan Cnty., Okla., 219 F.3d 450, 457 (5th Cir. 2000). “Deliberate indifference of this sort is a stringent test, and ‘a showing of simple or even heightened negligence will not suffice' to prove municipal culpability.” Piotrowski v. City of Houston, 237 F.3d 567, 579 (5th Cir. 2001).
In this case, Zvi, complaining about events relating to his singular arrest, and asserting that his family is a “target,” has failed to identify a specific policy or custom, or widespread practice, that was the moving force behind his alleged constitutional injuries. Additionally, to the extent Zvi attempts to allege additional facts in his response to the Defendants' motion, in evaluating a motion to dismiss for failure to state a claim, the court's review is limited to the complaint, any documents attached to the complaint, and any documents attached to the motion to dismiss that are central to the claim and referenced by the complaint. Lone Star Fund V (U.S.), L.P. v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010).
Zvi has failed to state a claim against the Sheriff Defendants and his claims against them should be dismissed.
IV. RECOMMENDATION
In accordance with the foregoing discussion, the undersigned RECOMMENDS that the District Court GRANT the Sheriff Defendants' Motion to Dismiss, Dkt. 7, DISMISSING WITHOUT PREJUDICE Zvi's claims against the Sheriff Defendants and GRANT Defendant Texas Association's Motion to Dismiss, Dkt. 8, DISMISSING WITH PREJUDICE Zvi's claims against the Association as any amendment of those claims would be futile. The referral in this case is CANCELED.
V. WARNINGS
The parties may file objections to this Report and Recommendation. A party filing objections must specifically identify those findings or recommendations to which objections are being made. The district court need not consider frivolous, conclusive, or general objections. See Battle v. United States Parole Comm'n, 834 F.2d 419, 421 (5th Cir. 1987). A party's failure to file written objections to the proposed findings and recommendations contained in this Report within fourteen days after the party is served with a copy of the Report shall bar that party from de novo review by the district court of the proposed findings and recommendations in the Report and, except upon grounds of plain error, shall bar the party from appellate review of unobjected-to proposed factual findings and legal conclusions accepted by the district court. See 28 U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140, 150-53 (1985); Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).