Opinion
Civil Action No. 3:01-CV-2231-M
March 27, 2002
MEMORANDUM OPINION AND ORDER
Before the Court is "Plaintiffs' Request for Entry of Default Judgment and Default Judgment," filed February 14, 2002, and Defendant Johnson County's "Motion to Dismiss Pursuant to Rule 12(b)(2), (5), (6), F.R.C.P. and Rule 7(a) Motion for Repleader," filed February 21, 2002.
FACTUAL PREDICATE
On November 6, 2001, Plaintiffs filed suit against Defendants, alleging violations of the Texas Wrongful Death Statute, TEX. CIV. PRAC. REM. CODE § 71.001, the Texas Survival Statute, TEX. CIV. PRAC. REM. CODE § 71.021, 42 U.S.C. § 1983, and the Fourth, Eight, and Fourteenth Amendments of the United States Constitution, arising from the Defendants' alleged mistreatment of Oscar Clark ("Clark"), the deceased father or son of Plaintiffs. Plaintiffs allege that, at all relevant times, Clark was an inmate under the care of Defendants Johnson County (the "County") and Johnson County Sheriff Department (the "Department"), having been arrested and incarcerated following a probation violation, and that, upon his being booked into the County jail, they became aware of Clark's asthmatic condition.
On November 6, 1999, Clark allegedly suffered from a severe asthma attack. Two Department personnel attempted CPR. Emergency units, called when he failed to respond, transported him to the hospital, where he died later that day. Plaintiffs allege liability stems from the Department personnel's failure to provide proper medical attention, including issuing Clark his inhaler, their failure to respond adequately to Clark's cries for assistance, and the County's failure to train competent personnel adequately to respond to such emergency situations.
STANDARD OF REVIEW
The purpose of the motion to dismiss under FED. R. CIV. P. 12(b)(6) is to test the formal sufficiency of the statement of the claim for relief, not to determine the facts or merit of the case. When reviewing the sufficiency of a plaintiffs complaint the issue is not whether he will ultimately prevail or is likely to prevail, but whether he is entitled to offer evidence to support the claims upon which he sues. The Court must thus presume all factual allegations in the Plaintiffs' Complaint to be true and resolve any ambiguities or doubts regarding the sufficiency of the claims in favor of Plaintiffs. "However," the complaint must contain either direct allegations on every material point necessary to sustain a recovery or contain allegations from which an inference fairly may be drawn that evidence on these material points will be introduced at trial.'" Moreover, "conclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss."
Campbell v. Wells Fargo Bank, N.A., 781 F.2d 440, 442 (5th Cir. 1982), cert. denied, 476 U.S. 1159 (1986).
Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Tanglewood East Homeowners v. Charles-Thomas, Inc., 849 F.2d 1568, 1571 (1988).
Fernandez-Montez v. Allied Pilots Ass'n, 987 F.2d 278, 284 (5th Cir. 1993).
Campbell v. City of San Antonio, 43 F.3d 973, 975 (5th Cir. 1995) (citation omitted).
Fernandez-Montez, 987 F.2d at 284.
ANALYSIS
A. Plaintiff's Motion for Default Judgment and Service of ProcessOn January 16, 2002, service was attempted upon a secretarial employee of the Johnson County Sheriff's Office, Helen Threadgill. Allegedly believing service to be improper, Defendants did not answer. Plaintiffs moved for a default judgment on February 14, 2002. On February 22, 2002, the Court ordered Plaintiffs to cure their Motion for Default Judgment, which failed to link Ms. Threadgill to either the County or the Department such that the Court could determine whether proper service was effectuated. Court records indicate this was not done.
Defendant County now moves to dismiss pursuant to FED. R. CIV. P. 12 (b)(5), claiming it was not properly served with a summons. Rule 12(b)(5) generally provides for dismissal of a claim if service of process was not timely made in accordance with Rule 4 or was not properly served in the appropriate manner. Federal Rule of Civil Procedure 4(j)(2) requires that service on a governmental organization subject to suit shall be effectuated by delivering a copy of the summons and complaint to its chief executive officer, which in this case is the County Judge. Defendant's service of process on Ms. Threadgill did not comply with Rule 12(b)(5). The Plaintiffs Motion for Default Judgment is therefore DENIED.
Casio Computer Co., Ltd. v. Sayo, No. 98-3772, 2000 WL 1877516, *26 (S.D.N Y October 13, 200) (discussing the interplay between Rule 12(b)(4), which is used to dismiss claims as a result of a defect in the form of the summons, and Rule 12(b)(5), which deals with the timing and method of service); Jones v. St. Tammany Parish Jail, 4 F. Supp.2d 606, 610 (E. D. La. 1998).
B. Dismissal of Claims against the Department
Plaintiffs named the Department as a Defendant to this action. It lacks capacity to be sued as a separate political entity, and is therefore DISMISSED from this suit. C. Dismissal of Claims against Chief Jimmy Johnson
Darby v. Pasedena Police Dept., 939 F.2d 311, 313-14 (5th Cir. 1991); Causey v. The Parish of Tangipahoa, 167 F. Supp.2d 898, 909 (E.D. La. 2001) (neither sheriffs department nor police department were proper defendants); Jacobs v. Port Neches Police Dep't, 915 F. Supp. 842, 844 (E.D. Tex. 1996) (county sheriff's department and district attorneys' office were not legal entities capable of suing or being sued); Maxwell v. J. Henry, 815 F. Supp. 213 (S.D. Tex. 1993) (same); Harris Cty. v. Dillard, 841 S.W.2d 552, 557 (Tex.App.-Houston [1st Dist.] 1992, writ granted), rev'd on other grounds, 883 S.W.2d 166 (Tex. 1994) (same).
Defendants argue for the dismissal of Chief Jimmy Johnson, whose name was apparently penciled in the style of the Complaint sent to Defendants. Mr. Johnson is not named as a Defendant in any document before the Court. Mr. Johnson is not a Defendant in this case, and his name shall not appear in the caption in any future pleadings unless permission to join him is obtained from the Court.
D. Dismissal of Claims against the County
In addition to moving for dismissal under Federal Rules of Civil Procedure 12(b)(2) and (5) for failure of the Plaintiffs to effectuate proper service on the County, the County also requests dismissal pursuant to Rule 12(b)(6) for: (1) failure to plead a viable cause of action under the Texas Wrongful Death Statute; (2) failure to state facts which, if true, could support a valid Eighth Amendment claim; and (3) failure to allege that Plaintiffs' deprivation resulted from a County policy or custom.
Plaintiffs seek recovery from the County under Texas' Wrongful Death Statute. The County correctly notes that County of El Paso v. Dorado, held that a county is not a "person" within the meaning of the Texas Wrongful Death Statute. The Dorado court also held that the Texas Wrongful Death Statute does not exempt counties from liability for wrongful death imposed by the limited waiver provisions of the Texas Tort Claims Act, and that it is "absolutely clear that a county may indeed be held accountable for wrongful death, but such accountability is imposed by the Texas Tort Claims Act, and not the Wrongful Death Act." Plaintiffs' claim against the County is pleaded under the Texas Wrongful Death Statute, under which relief cannot be granted.
33 S.W.3d 44, 45-47 (Tex.App.-El Paso 2000, no writ).
Id. at 47.
Plaintiffs also seek relief, pursuant to 42 U.S.C. § 1983, for violations of the Fourth, Eighth, and Fourteenth Amendments. It is critical to Plaintiffs' § 1983 claims that they plead specific facts that, if true, would show that a County policy or custom, caused the alleged injury such that the County can legally bear responsibility. "Local governing bodies . . . can be sued directly under § 1983 for monetary, declaratory or injunctive relief [only] where . . . the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation or decision officially adopted and promulgated by that body's officers." Further, it is well settled that "[a] section 1983 complaint must state specific facts, not simply legal and constitutional conclusions." Plaintiffs have alleged in only conclusory terms a basis for holding the County liable under § 1983 for the Department personnel's actions. Further, Eighth Amendment liability requires "more than ordinary lack of due care for the prisoner's interests or safety," which is all that Plaintiffs have currently pled.
Monell v. Dep't of Social Services, 436 U.S. 658, 695 (1978).
Id.
Fee v. Herndon, 900 F.2d 804, 807 (5th Cir. 1990).
Whitley v. Albers, 475 U.S. 312, 319 (1986).
CONCLUSION
The Johnson County Sheriff Department is hereby DISMISSED with prejudice.The claims against the County under the Texas Wrongful Death Act are hereby DISMISSED with prejudice.
Service of process on the County was not properly effectuated under Rule 12(b)(5). The Plaintiffs' Motion for Default Judgment is therefore DENIED.
As to their § 1983 claims, Plaintiffs shall have thirty days to amend their Complaint to set forth the County's custom or policy upon which their claims are based and to establish that personnel for whose conduct the County is responsible acted with deliberate indifference to Clark's medical condition. Plaintiffs shall then serve that Amended Complaint upon the County, in accordance with the Federal Rules of Civil Procedure, or this case will be dismissed under FED. R. CIV. P. 12 (b)(5).
SO ORDERED.