Opinion
5-23-CV-00684-FB-RBF
01-25-2024
SHAIRA IVETH HERNANDEZ, Plaintiff, v. CITY OF CASTLE HILLS, A. DE NAVA, OFFICER; Defendants.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
RICHARD B. FARRER UNITED STATES MAGISTRATE JUDGE
This Report and Recommendation concerns the Motion to Dismiss filed by Defendant City of Castle Hills. See Dkt. No. 17. All pretrial matters have been referred for resolution, pursuant to Rules CV-72 and 1 of Appendix C to the Local Rules for the United States District Court for the Western District of Texas. See Dkt. No. 8. Authority to enter this recommendation stems from 28 U.S.C. § 636(b)(1)(B).
Broadly speaking, this § 1983 case involves three claims or perhaps categories of claims. First is a claim or claims lodged against officer De Nava, in his individual capacity, for excessive force and deliberate indifference to medical needs. This claim or category of claims is not at issue in the present motion brought by the City. Next comes a Monell claim or claims against the City, seeking to hold the City liable under principles of municipal liability. Finally, there is an attempt to hold the City liable for its own alleged negligence. The present Motion seeks dismissal of the latter two claims or categories of claims brought against the City.
For the reasons set forth below, the Motion to Dismiss, Dkt. No. 17, should be GRANTED, and all claims against the City should be dismissed. Claims against De Nava, not addressed in the present motion, remain live.
Factual and Procedural Background
On January 14, 2023, Plaintiff Hernandez, with family and friends in her car, was the unfortunate victim of a rear-end car accident. According to the live complaint, Hernandez had stopped her car at a traffic light when she was rear-ended. Dkt. No. 13 (Am. Compl.) at 2-3. Hernandez then pulled over and called the police. Id. at 3. Officer De Nava soon arrived at the scene.
Things took an even more unfortunate turn for Hernandez once Officer De Nava ran a background check, which revealed she had an outstanding arrest warrant from 2018. Id. at 3, see also Dkt. No. 17 at 1. Hernandez, according to her complaint, was “in disbelief” upon learning of the warrant; she had never been notified of a warrant, and no warrant came up on an unrelated post-2018 background check. Am. Compl. at 3. Although Hernandez attempted to ask De Nava about the warrant, he didn't answer her inquiries and instead arrested her. Id.
De Nava took Hernandez first to a holding cell at the police department, then later to the downtown city jail. Id. According to Hernandez's complaint, De Nava used unspecified excessive force throughout the encounter-but in particular he slammed Hernandez's shoulder between his patrol car's frame and door upon arrival at the downtown city jail. Id. at 4.
Hernandez, according to the complaint, didn't keep the fact of her injury quiet. She alleges that during the booking process she complained several times about “extreme shoulder pain” from the door-slam incident. Id. And she also alleges that she was ordered to raise her arms but objected and indicated that she couldn't comply because of the pain. Id. at 4-5. Despite her complaints, the complaint alleges, she was again ordered to raise her arms. She then complied, which caused even more pain. Id. at 4-5. Hernandez claims that despite her numerous complaints, she was refused timely and adequate medical attention. Id. By the time a nurse arrived to evaluate her, Hernandez alleges, she had “abnormally high blood pressure” and had “spent hours that night enduring severe pain.” Id. at 5. Upon release the following day, Hernandez went straight to the hospital for medical treatment. Id. Hernandez also alleges that De Nava's excessive force, specifically the door-slam incident, injured her shoulder and arm, necessitating “extensive treatment.” Id.
Hernandez sued De Nava and the City. The City filed the present motion seeking dismissal of all claims against it.
Legal Standards
“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 Rule 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) (quotation marks omitted). A court, however, 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).
Analysis
Defendant City of Castle Hills' Motion to Dismiss, Dkt. No. 17, should be granted, and the claims against the City should be dismissed. Plaintiff Hernandez's attempts to hold the City liable under Monell should be dismissed for failure to plead a policy or practice of the City that served as the moving force for her injuries. Hernandez's effort to sue the City for its own alleged negligence should be dismissed for failure to state a claim that can survive state-law immunity doctrines. Although the Court accepts well-pleaded facts as true and views the complaint in the light most favorable to the plaintiff at this stage, Hernandez has failed to plead non-conclusory facts supporting a claim upon which relief may be granted against the City. See Chhim, 836 F.3d at 469 (citing Iqbal, 556 U.S. at 678).
Leave to amend the complaint isn't warranted. It is true that Hernandez's Response states, “[t]o the extent this Court is inclined to grant Defendant's Motion to Dismiss, Plaintiff respectfully requests an opportunity to further amend her complaint to cure any deficiencies pointed out by this Court.” Dkt. No. 18. But on October 27, 2023, this Court held a status conference at which Hernandez's counsel represented on the record that no further amendments are sought and that the present motion is ripe for adjudication. Dkt. Nos. 29 & 30. Accordingly, the Motion should be granted without affording Hernandez further opportunity to amend.
A. Hernandez Has Not Sufficiently Pleaded a Claim for Monell Liability.
Hernandez has not sufficiently pleaded a Monell claim against the City of Castle Hills. To state a claim for municipal liability against an entity like the City, a plaintiff must allege facts that, if taken as true, reflect that a City policy was the “moving force” behind the alleged constitutional violations. Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th Cir. 2001); Doe on Behalf of Doe v. Dallas Indep. Sch. Dist., 153 F.3d 211, 215 (5th Cir. 1998). In other words, “a municipality cannot be held liable solely because it employs a tortfeasor . . . on a respondeat superior theory.” Doe, 153 F.3d at 215 (quoting Monell v. Dep't of Social Servs. of New York, 436 U.S. 658, 691 (1978)). “Official policy is ordinarily contained in duly promulgated policy statements, ordinances or regulations,” but may also be evidenced by a custom that is “‘a persistent, widespread practice,' by municipal officials or employees, which ‘although not authorized by officially adopted and promulgated policy, is so common and well-settled as to constitute a custom that fairly represents municipal policy.'” Piotrowski, 237 F.3d at 579 (quoting Webster v. City of Houston, 735 F.2d 838, 841 (5th Cir. 1983) (en banc)). Moreover- and of particular importance here-“to proceed beyond the pleading stage, a complaint's description of a policy or custom and its relationship to the underlying constitutional violation cannot be conclusory; it must contain specific facts.” Pena v. City of Rio Grande City, 879 F.3d 613, 622 (5th Cir. 2018) (quotations and ellipses omitted); see also Fraire v. City of Arlington, 957 F.2d 1268, 1278 (5th Cir. 1992).
Hernandez has not pleaded any non-conclusory facts suggesting a policy or practice of the City. Instead, she provides a laundry list of boilerplate “policies” that she attributes to the City:
a. Hiring “rogue,” unqualified peace officers, many of whom had previous misconduct in their backgrounds;
b. Not requiring applicants to serve as deputies to submit a personal history statement (PHS);
c. Overlooking the misconduct in the backgrounds of applicants for Castle Hills Police deputy;
e. [sic] Using violent, nonlethal force to seize a person, even when that person is not an imminent threat;
g. [sic] Conducting warrantless, consent less searches of citizens where they do not have probable cause to do so;
h. Subjecting unarmed citizens to official oppression and assault;
i. Failing to require all peace officers go through the customary five to seven months' training before hitting the street on their own;
j. Failing to meaningfully discipline officers found to be using excessive force;
k. Refusing to provide or request medical attention to injured patrons inside the city jail;
l. Forcing patrons to undergo the entire booking process even if a patron is actively complaining of pain and injuries and requests medical attention;
m. Emboldening deputies to use force considerably more frequently than is necessary; and/or n. Refusing to turn over body cam footage and/or other crucial evidence to avoid holding rogue officers accountable for their actions.Am. Compl. at 9-10. But this laundry list, alone, does not suffice to state a Monell claim.
Hernandez contends that the listed policies were the driving force behind De Nava's actions. She fails in this regard as well because her bare assertions aren't supported by non-conclusory pleaded facts. Rather, Hernandez simply states, in conclusory fashion, that “each of the policies listed, supra, was actually known, constructively known, and/or ratified by Defendant City of Castle Hills and its policymakers” and that the policies “were the moving force of Ms. Hernandez's constitutional deprivations and injuries.” Id. at 13. To survive a motion to dismiss, “allegations must be enough to raise a right to relief above the speculative level,” which these allegations are not. Twombly, 550 U.S. at 555.
Pertinent case law confirms that efforts like Hernandez's are not sufficient to survive a motion to dismiss. In Vardeman v. City of Houston, for example, the Fifth Circuit found that the plaintiff's list of prior alleged incidents was a “hodge-podge of unrelated incidents of [city] policy and correctional officer violence” and did not demonstrate a “custom, policy, practice, and procedure of using excessive force.” 55 F.4th 1045, 1052 (5th Cir. 2022). In Sanchez v. Young County, the Fifth Circuit noted that an alleged policy or custom that arose from a “single case,” without more, was not enough to successfully plead a Monell claim. 866 F.3d 274, 280 (5th Cir. 2017). Similarly, in Pena v. City of Rio Grande City, the Fifth Circuit found that the only “specific fact in the complaint [was] the single incident in which [the plaintiff] was involved.” 879 F.3d at 622 (internal quotations omitted). Again, that was not enough.
Typically, to “plead a practice so persistent and widespread as to practically have the force of law, a plaintiff must do more than describe the incident that gave rise to his injury.” Id. (citing Connick v. Thompson, 563 U.S. 51, 61 (2011) (internal quotations omitted)). Here, Hernandez offers only her own alleged encounter as the sole specific factual allegation supporting the existence of the various alleged policies. Like in Vardeman, Sanchez, and Pena, this alone does not suffice.
Nor is Hernandez successful in pleading a viable claim via fleeting allegations that a policy exists because the alleged events “occurred in the open right outside the city jail” and multiple officers were present during the booking process. Dkt. No. 18 at 10. In support of this proposition, Hernandez cites Matthews v. District of Columbia, a case from the D.C. District Court about strip searches in public places. 730 F.Supp.2d 33, 38 (D.D.C. 2010). Matthews involved allegations that “five different individuals were subjected to invasive public strip searches by numerous [ ] officers on six different occasions and in six different locations in 2006 and 2007.” Id. at 37-38 (emphasis added). Hernandez, in contrast, has only alleged one instance of excessive force-not several instances of constitutional violations, all with many officers present, as in Matthews. Her one alleged encounter offered via vague allegations is not enough to show a policy and demonstrates that her situation is distinguishable from Matthews.
Hernandez correctly notes that she is not required to prove the existence of the policies at this stage. Dkt. No. 18 at 6-7. Although this is true, her Monell claims still can't survive. While “facts that prove the existence of a policy” are not required at this stage, without any factual support, these proposed policies are no more than insufficient “boilerplate allegations.” Edmiston v. Culberson Cnty., 580 F.Supp.3d 411, 425 (W.D. Tex. 2022) (quotation omitted and emphasis added). The Fifth Circuit “generally reject[s] Section 1983 claims against a municipality based on one incident,” and here Hernandez has only alleged one factual incident and no other discrete facts pointing to a policy at play. Vardeman, 55 F.4th at 1052 (citing Sanchez, 866 F.2d at 280). Without factual support for her proposed policies, Hernandez's effort to impose liability via Monell cannot and does not survive the City's Motion to Dismiss.
B. Plaintiff Hernandez's Negligence Claim Should Be Dismissed Due to Texas Immunity Doctrines.
Plaintiff Hernandez's third cause of action, ostensibly a state law negligence claim against the City, should also be dismissed. The complaint alleges that Officer De Nava acted negligently, proximately causing Hernandez's injuries, and that because De Nava was “acting under the scope of his employment” his negligence is attributable to the City. Am. Compl. at 1415. To the extent the complaint could be viewed as alleging the City is responsible for De Nava's alleged negligence, that effort would be a doomed argument for vicarious liability under a respondeat superior theory. See Piotrowski, 237 F.3d at 578. And any direct negligence claims against the City, as discussed further below, do not sufficiently state a plausible claim for relief in light of the City's invocation of the state law doctrine of governmental immunity. See Texas Dept. of Public Safety v. Petta, 44 S.W.3d 575, 580 (Tex. 2001) (explaining the limited circumstances in which the Texas Tort Claims Act waives immunity for negligence claims against a municipality).
In Texas, governmental immunity “protects political subdivisions of the State, including counties, cities, and school districts.” Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 694 n.3 (Tex. 2003); see also St. Maron Properties, L.L.C. v. City of Houston, 78 F.4th 754, 762-63 (5th Cir. 2023) (“Sovereign immunity protects Texas and its political subdivisions-including municipalities [ ]-from suits for money damages.”). There are two types of governmental immunity: immunity from suit and immunity from liability. Id. at 696. Immunity from suit bars suits against the government unless the government expressly consents. Id. Immunity from liability prevents enforcement of a judgment against the government even when the government consents to suit. Id. Under certain circumstances, however, immunity is waived when “a sovereign conveys its consent to be sued” via an act of the legislature. Id. at 695; see, e.g., Tex. Civ. Prac. & Rem. Code § 101.021. Under Texas law, a claimant bears the burden of showing a waiver of immunity that allows the claimant to sue a governmental entity. See, e.g., Ryder Integrated Logistics, Inc. v. Fayette Cnty., 453 S.W.3d 922, 927 (Tex. 2015) (per curiam) (“[T]he plaintiff must affirmatively demonstrate the court's jurisdiction by alleging a valid waiver of immunity.” (quotation omitted)). For present purposes, Hernandez must be able to demonstrate a claim that rises to the level of plausibility notwithstanding the City's invocation of governmental immunity. See Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 555.
But here, in response to the City's assertion of governmental immunity, Hernandez has not argued that any particular immunity waiver could or does apply to preserve her claim. Indeed, neither her complaint nor her response to the City's Motion makes any mention of any waiver. The analysis likely need not proceed any further, as Hernandez's failure in this regard warrants relief under Rule 12(b)(6). But, out of an abundance of caution, the Court will unpack this conclusion further.
Although Hernandez makes no cogent argument against governmental immunity in her response to the City's motion, some hints, discussed below, point to the Texas Tort Claims Act's waiver of immunity as the waiver she seeks to invoke. A “suit asserting common law claims against a Texas governmental unit” is “considered to be under the [Texas Tort Claims Act],” which waives immunity in specific circumstances. Bustos v. Martini Club Inc., 599 F.3d 458, 462 (5th Cir. 2010) (quoting Mission Consol. Independent School Dist. v. Garcia, 253 S.W.3d 653, 659 (Tex. 2008)). Under state law, a plaintiff must allege facts that, if taken as true, bring a claim within the Tort Claim Act's waiver of immunity. The Supreme Court of Texas describes how this works in state court:
The starting point is always the status quo: a presumption against any waiver until the plaintiff establishes otherwise. To do so, a plaintiff may invoke various provisions in Subchapter B of the [Texas Tort Claims] Act that affirmatively describe when immunity is waived.... A plaintiff must begin, therefore, by alleging circumstances that fit within a provision of the Act that authorizes a waiver .... ....
As a general matter, a plaintiff initially discharges this burden by alleging facts that bring a claim within the waiver. But being “within” the waiver entails both . . . satisfying the provisions that clearly and affirmatively waive immunity and negating any provisions that create exceptions to, and thus withdraw, that waiver.Rattray v. City of Brownsville, 662 S.W.3d 860, 866 (Tex. 2023). And the Texas Tort Claims Act waives immunity 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 according to Texas law.Tex. Civ. Prac. & Rem. Code § 101.021. But Hernandez has not made any coherent argument as to why a waiver under 1) or 2) above applies here. Although Hernandez's response doesn't articulate a theory to support application of an immunity waiver, she cites in her complaint state law provisions and cases that address Texas Tort Claims Act waivers and related concepts. See Am. Compl. at 14. But these do nothing to assist her claim.
Hernandez first refers to Texas Civil Practice & Remedies Code § 101.055(3) in the mistaken hope that it allows her to seek damages against the City. Id. This provision, the “police protection . . . exception to the basic waiver of sovereign immunity” reads, “This chapter does not apply to a claim arising . . . from the failure to provide or the method of providing police or fire protection.” City of Brownsville v. Alvarado, 897 S.W.2d 750, 754 (Tex. 1995); Tex. Civ. Prac. & Rem. Code § 101.055(3). The provision does not authorize Hernandez's negligence claim because the provision is an exception to the Texas Tort Claim Act's waiver of immunity. See City of Brownsville, 897 S.W.2d at 753 (referring to Tex. Civ. Prac. & Rem. Code §§ 101.055(3) and 101.056 as the “discretionary [and] police protection exemptions to the waiver of sovereign immunity in the Texas Tort Claims Act.”).
Hernandez also indicates that Texas Civil Practice & Remedies Code § 101.056 authorizes her negligence claim against the City. But § 101.056 is also an exception to the waiver of immunity in the Texas Tort Claims Act. City of Brownsville, 897 S.W.2d at 753. Moreover, it is only the “discretionary formulation of policy,” not the “negligent implementation of policy,” which is excluded from the waiver in the Texas Tort Claims Act. Id. at 753-54 (emphasis in original). Yet Hernandez asserts in her complaint that “De Nava negligently implemented and enforced police protocols,” which removes her claim from the immunity-waiver exclusion. See Am. Compl. at 14.
Although Hernandez labels her claim as one for negligence, the facts Hernandez alleges in the complaint point to a claim for battery or some other intentional tort for which there is no applicable waiver of immunity under the Texas Tort Claims Act. See City of Watauga v. Gordon, 434 S.W.3d 586, 594 (Tex. 2014) (“The actions of a police officer in making an arrest necessarily involve a battery ....”). While the Texas Tort Claims Act waives governmental immunity for some negligent conduct, “it does not waive immunity for claims arising out of intentional torts, such as battery.” Id. (citing Tex. Civ. Prac. & Rem. Code § 101.057(2)). Even if an officer mistakenly or accidentally uses more force “than reasonably necessary to make an arrest,” that use of force still “arises out of the battery claim.” Id. (quoting City of San Antonio v. Dunn, 796 S.W.2d 258, 261 (Tex. App.-San Antonio 1990, writ denied)). Hernandez alleges that De Nava “violently slammed” the door on her shoulder, injuring it. Am. Compl. at 4. Taking these alleged facts as true, De Nava intended to touch or shut the car door. And Hernandez further alleges that De Nava “brutally assaulted” her-also suggesting intent. Id. at 9. Because the door-slam incident, as alleged by Hernandez, is an artfully pleaded battery claim, governmental immunity isn't waived under the Texas Tort Claims Act. Watauga, 434 S.W.3d at 594, citing Tex. Civ. Prac. & Rem. Code § 101.057(2); see also Campbell v. City of San Antonio, 43 F.3d 973, 978 (5th Cir. 1995) (noting, “section 101.057(2) of the [Texas Tort Claims] Act proscribes liability for claims arising out of false imprisonment, or any other intentional tort.”) (internal quotes omitted). The same result is obtained for any claim asserting deliberate indifference.
In short, governmental immunity applies here. See Martinez v. Maverick County, 507 Fed.Appx. 446, 449 (5th Cir. 2013). Hernandez has not pointed to an applicable waiver. Accordingly, the Motion to Dismiss should be granted as to the third claim as well, which is to say against any claim in the complaint against the City seeking to hold it directly liable under state law.
Conclusion and Recommendation
For the reasons discussed above, it is recommended that Defendant City of Castle Hills' Motion to Dismiss, Dkt. No. 17, be GRANTED and that all claims against the City be dismissed.
Instructions for Service and Notice of Right to Object/Appeal
The United States District Clerk shall serve a copy of this report and recommendation on all parties by either (1) electronic transmittal to all parties represented by attorneys registered as a “filing user” with the clerk of court, or (2) by mailing a copy by certified mail, return receipt requested, to those not registered. Written objections to this report and recommendation must be filed within fourteen (14) days after being served with a copy of same unless this time period is modified by the district court. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). Objections, responses, and replies must comply with the same page limits as other filings, unless otherwise excused by the district court's standing orders. See Rule CV-7. The objecting party shall file the objections with the clerk of the court and serve the objections on all other parties. A party filing objections must specifically identify those findings, conclusions, or recommendations to which objections are being made and the basis for such objections; the district court need not consider frivolous, conclusory, or general objections. A party's failure to file written objections to the proposed findings, conclusions, and recommendations contained in this report shall bar the party from a de novo determination by the district court. Thomas v. Arn, 474 U.S. 140, 149-52 (1985); Acuna v. Brown & Root, Inc., 200 F.3d 335, 340 (5th Cir. 2000). Additionally, failure to timely file written objections to the proposed findings, conclusions, and recommendations contained in this report and recommendation shall bar the aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the district court. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).
IT IS SO ORDERED.