Opinion
Civil Action No: SA-CA-0199-XR
December 16, 2003
ORDER
On this date, the Court considered Defendants' Motion to Dismiss and/or Motion for Summary Judgment (docket no. 6). Plaintiff Robert L. Walker, a former inmate of the Bexar County Detention Center, alleges that he suffered physical injuries when he was ordered to walk across a slippery, wet floor by jail guard Robert Brock. He brings suit for negligence and also alleges that Defendants violated 42 U.S.C. § 1983. Defendants seek dismissal of this suit arguing that Plaintiff s negligence claims are barred by res judicata and/or collateral estoppel. They further argue that Plaintiff has failed to establish any section 1983 claim. For the reasons stated below, the Court GRANTS the Defendants' motion (docket no. 6).
Facts and Procedural Background
Plaintiff was an inmate at the Bexar County Detention Center when on or about May 28, 2001, a "freeze" was called at the jail and jail guards were instructed to "lock down" all prisoners. Plaintiff alleges that prior to the "freeze" being called, other inmates were mopping floors. He alleges that he was instructed by jail guard Ralph Brock to return to his cell which required him to walk on a slippery, wet floor. Plaintiff fell and became injured. Thereafter, he underwent back surgery.
On March 1, 2002, Plaintiff filed suit against the County of Bexar in Cause Number 2002-CI-03252, in the 285th Judicial District Court of Bexar County, Texas. In that suit, Plaintiff alleged that he fell on May 28, 2001, at the Bexar County Detention Center, that the County was negligent, that the notice provisions of the Texas Tort Claims Act had been complied with, and that he suffered damages. In response to that petition, the County filed a Plea to the Jurisdiction arguing that Plaintiff failed to provide actual notice of his claim pursuant to Texas Civil Practice Remedies Code section 101.101, that any claim was barred by governmental immunity, and that any Texas Tort Act claim was not viable because Plaintiff failed to allege any act of negligence arising out of a "condition or use of tangible property." TEX. CIV. PRAC. REM. CODE § 101.021. The state district court denied the County's plea to the jurisdiction, and the County appealed to the Fourth Court of Appeals. The court of appeals reversed the trial court and dismissed the cause for lack of jurisdiction. The court of appeals held that the Texas Tort Claims Act provides a limited waiver of governmental immunity and that Plaintiffs claim was in essence a premises defect case, and as such, no governmental immunity had been waived.
A governmental unit in the state is liable for: . . . (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 ANN. § 101.021 (Vernon 1997).
04-02-00463-CV, Memorandum Opinion delivered January 29, 2003.
On February 14, 2003, Plaintiff filed a second suit against the County of Bexar, Ralph Brock and Sheriff Ralph Lopez in Cause Number 2003-CI-02345, in the 408th Judicial District of Bexar County, Texas. He again alleges that on May 28, 2001, he fell and was injured when jail guard Ralph Brock instructed him to walk across a wet floor. Plaintiff argues that this was a negligent act. In addition, Plaintiff argues that the Defendants violated 42 U.S.C. § 1983 because Brock was acting under color of state law when he ordered Plaintiff to walk on the wet floor, and that the County of Bexar and Sheriff Lopez had a policy and procedure in place that deprived Plaintiff of his civil rights. Defendants removed this second lawsuit to the Western District of Texas on March 13, 2003.
Analysis Negligence Claims against Robert Brock and Sheriff Lopez
Defendants argue that the Plaintiffs negligence claims are barred by res judicata or collateral estoppel. When a federal court is asked to give claim preclusive effect to a state court judgment, the federal court must look to the res judicata principles of the state from which the judgment was entered. U.S. exrel. Lairdv. Lockheed Martin Eng'g and Sci. Servs. Co., 336 F.3d 346, 357 (5th Cir. 2003). In Texas, a "proponent must demonstrate the existence of three elements: (1) there was a prior final judgment on the merits by a court of competent jurisdiction, (2) identity of the parties or those in privity with them exists between the two actions, and (3) the second action is based on the same claims as were raised or could have been raised in the first action." Id. referring to Amstadt v. U.S. Brass Corp., 919 S.W.2d 644, 652 (Tex. 1996). Here, Plaintiff asserts there was no prior final judgment on the merits. He argues that the court of appeals merely dismissed the 2002 action for want of jurisdiction, and a dismissal for want of jurisdiction is not a decision on the merits. In addition, Plaintiff alternatively argues that because Ralph Brock and Sheriff Lopez were not parties to the 2002 lawsuit, res judicata does not apply.
Plaintiff unequivocally asserts that he is not pursuing any claim against any of the Defendants under the Texas Tort Claims Act. See paragraph 4 of Plaintiff's Response to Defendants' Motion to Dismiss and/or Motion for Summary Judgment (docket no. 7).
To invoke the doctrine of collateral estoppel or issue preclusion, a party must establish that "(1) the issue under consideration is identical to that litigated in the prior action; (2) the issue was fully and vigorously litigated in the prior action; (3) the issue was necessary to support the judgment in the prior case; and (4) there is no special circumstance that would make it unfair to apply the doctrine." Winters v. Diamond Shamrock Chem. Co., 149 F.3d 387, 391 (5th Cir. 1998), cert. denied, 526 U.S. 1034 (1999).
In this case, as Plaintiff correctly notes, a dismissal for want of jurisdiction is not a decision on the merits. However, in addition to the dismissal, there was a final determination by the court of appeals that the County was immune from tort liability under the doctrine of sovereign immunity and that Plaintiffs negligence claim did not fall within the parameters of the limited waiver of sovereign immunity set forth in the Texas Tort Claims Act. See TEX. Civ. PRAC. REM. CODE § 101.021. Pursuant to section 101.106(a) of the Act, "the filing of a suit under this chapter against a governmental unit constitutes an irrevocable election by the Plaintiff and immediately and forever bars any suit or recovery by the plaintiff against any individual employee of the governmental unit regarding the same subject matter." As noted above, Plaintiff first filed suit against the County in 2002. Pursuant to section 101.106(a), that filing constituted an irrevocable election by the Plaintiff and barred his ability to seek recovery against Ralph Brock or Sheriff Lopez regarding the same subject matter. Dallas County Mental Health and Mental Retardation v. Bossley, 968 S.W.2d 339 (Tex. 1998), cert. denied, 525 U.S. 1017 (1998) ("the immunity conveyed to a governmental unit's employees by Section 101.106 is triggered by any judgment in an action against a governmental unit, including a judgment in favor of the governmental unit"). Thus, Plaintiffs second suit meets the first and third elements for claim preclusion in that a final judgment on the merits was issued and the action is based on the same claims as were raised in the first action.
Next, Defendants argue that although the parties in this second suit are "technically different", the factual basis for the two lawsuits are identical. They further argue that pursuant to the Fifth Circuit's opinion in McWilliams v. McWilliams, 804 F.2d 1400 (5th Cir. 1986), the plaintiffs claims are still precluded. In McWilliams, the parties were granted a divorce and the father was awarded custody of the children. The mother subsequently brought an action under 42 U.S.C. § 1983 arguing that enforcement of the state court custody provisions denied her rights under the First and Fourteenth Amendments. The Fifth Circuit in finding that claim preclusion applied stated: "Looking at the plaintiffs federal claim for what it really is, it is one for the custody of the McWilliams children, a matter that was purportedly put to rest in appropriate proceedings in the appropriate forum, subject to review by the Texas appellate courts." Id. at 1402. Recognizing that the parties in the two suits were not identical and that different claims were raised, the Fifth Circuit reviewed Texas law on res judicata and concluded that "a different cause of action is one that proceeds not only on a sufficiently different legal theory but also on a different factual footing as not to require the trial of facts material to the former suit." Id. Accordingly, the Court finds that there is an identity of the parties because of the privity between them and that this second action brings the same claims as could have been brought in the first action. Thus, Plaintiffs negligence claims against Ralph Brock and Sheriff Lopez are barred by res judicata.
42 U.S.C. § 1983 claim
Plaintiff first alleges that Ralph Brock ("Brock"), acting under color of state law, violated his civil rights by instructing him to walk across the wet floor, thereby causing his injuries. Secondly, Plaintiff alleges that the policy or procedure of instructing jail guards to "lock down" all prisoners by forcing them to walk across wet floors, constitutes an additional constitutional deprivation.
Section 1983 provides, in part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law. . . .
Local government entities may be sued under section 1983 when a deprivation of a right protected by the Constitution or by federal law is caused by an official policy or custom. Monell v. Dept. of Social Servs., 436 U.S. 658 (1978). "An official policy can be found in two forms: `1. A policy statement, ordinance, regulation, or decision that is officially adopted and promulgated by the municipality's lawmaking officers or by an official to whom the lawmakers have delegated policy- making authority; or 2. A persistent, widespread practice of city 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.'" Burge v. St. Tammany Parish, 336 F.3d 363, 369 (5th Cir. 2003), citing Bennett v. City of Slidell, 753 F.2d 861, 862 (5th Cir. 1984). Liability will not attach for "violations of duties of care arising out of tort law. Remedy for [that] type of injury must be sought in state court under traditional tort law principles." Baker v. McCollan, 443 U.S. 137, 145 (1979). See also Daniels v. Williams, 474 U.S. 327, 330 (1986) ("The plaintiff must still prove a violation of the underlying constitutional right; and depending on the right, merely negligent conduct may not be enough to state a claim.").
In an effort to circumvent the holding that negligence claims are not cognizable under section 1983, Plaintiff alleges that the Bexar County Detention Center had a custom or policy of requiring prisoners to go to their cells during a freeze or lock down. Plaintiff argues that this custom or policy required Plaintiff to walk across a wet floor. However, a facially innocuous policy means that Plaintiff must show that the policy "was promulgated with deliberate indifference to the known or obvious consequences that constitutional violations would result." Piotrowski v. City of Houston, 237 F.3d 567, 579 (5th Cir. 2001).
At most Plaintiff has established that the County has a custom of requiring prisoners to report to their cells during a freeze or "lock down." Plaintiff has failed to establish that the County has any policy or custom that requires inmates to traverse across allegedly unsafe hallways. Further, vicarious liability does not apply to section 1983 actions. Thus, even if Brock was negligent in instructing Plaintiff to walk on a wet floor, Sheriff Lopez and the County cannot be held liable for the actions of a subordinate. Baker v. Putnel, 75 F.3d 190 (5th Cir. 1996). Plaintiff fails to establish that Brock acted with culpability beyond mere negligence and fails to establish the existence of any policy or custom promulgated with deliberate indifference. Because Plaintiff only relies upon his single slip and fall, and attempts to rely on the innocuous policy of requiring prisoners to go to their cells during a "freeze", Plaintiff fails to establish his section 1983 claim.
Conclusion
The Court concludes that, for the reasons stated above, Defendants' Motion to Dismiss and/or Motion for Summary Judgment (Docket no. 6) is GRANTED. This cause is DISMISSED with prejudice, and each side shall bear their own costs.
In addition, the Court does not find the Plaintiffs filing so frivolous or unreasonable as to warrant sanctions under Rule 11. FED. R. CIV. P. 11 (b). Thus, Defendant's Counterclaim, which the Court construes as a Motion for Sanctions is DISMISSED with prejudice.