MELINDA HARMON, District Judge.
Pending before the Court in the above referenced cause, removed from state court on federal question jurisdiction and seeking damages for two "startlingly similar"
At the relevant time, Defendants Stacy Smith and Myers were officers employed by the City's Police Department. Stacey Smith was also employed by The Connection as a resident security officer. Furthermore Stacy Smith was the estranged wife of Plaintiff Chris Smith, and they were in the midst of an acrimonious divorce. Defendants allegedly conspired to violate Plaintiffs' constitutional rights by detaining, assaulting and battering, falsely arresting, and maliciously prosecuting Carter and Chris Smith. Purportedly Myers "had a history and pattern of abusing his office and power, particularly acting in concert with Defendant Stacey Smith," and Stacy Smith allegedly "had a history of collaborating with Myers in abusing police power." #1-1 at pp. 3 and 7.
The Original Petition first addresses the arrest of Carter. On August 15, 2012 Carter was asleep in her apartment at The Connection when loud banging on her front door awakened her. Through a peep hole she saw a uniformed Huntsville Police officer, who turned out to be Myers. When she opened the door, Myers told her that there had been a complaint about a man running into her apartment and that there was a smell of marijuana coming from there. Carter told him there was no man or marijuana in her apartment and that he was welcome to look. Myers entered and ordered her to stand outside, where a female officer, subsequently identified as Stacey Smith, was waiting. Carter insisted she wanted to stay in her house while he looked around, but Myers allegedly became incensed, ordered her out, and physically attacked her, pulling her arms behind her back, bending her over a bar, and laying his full body weight against her, causing her extreme pain. Myers accused her of resisting arrest, cuffed her hands so tightly that they caused excruciating pain, pulled her to her feet, led her out to her front porch, and shoved her to the ground. Stacey Smith observed these actions, but did and said nothing. Other officers arrived with a drug dog, which sat down outside Carter's closed apartment door; one officer stated that the dog made a "hit." One officer led Carter through her apartment while she was handcuffed, humiliated, and crying in extreme pain. The officer then turned her over to Myers, who transported her to the Walker County jail without ever telling her why she had been arrested. After spending the night and the next day there, she was informed that Myers and Stacey Smith had charged her with Interference with Public Duties. The charges were subsequently dismissed. Although Carter filed a complaint, it was ignored after Myers was indicted for Felony Official Oppression by a Grand Jury for a previous, similar attack. Myers later entered into a plea agreement and promised never to work in law enforcement again. Stacey Smith is still employed at the Huntsville Police Department.
The petition further alleges that Chris Smith's vehicle was hit by a tractor trailer rig at approximately 11:25 p.m. on August 20, 2012. Officers responded and ticketed the driver of the rig for lack of insurance and of a trailer tag. Learning that Stacy Smith's estranged husband had been hit in a traffic accident, Myers decided to use the event in a conspiracy with her against Chris Smith. Even though Chris Smith had been fully interviewed, Myers drove up to the scene of the accident and ordered Chris Smith to step on a line as he was exiting his vehicle. Myers then accosted Chris Smith, insisted Smith was drunk, and ordered him to submit to a test. Smith passed the test, but Myers then drew and pointed his fire arm at Smith, arrested him, handcuffed him, and took him into custody, charging him with Driving Under the Influence. Smith spent the night in jail. These charges were also later dismissed.
Carter and Chris Smith allege that Myers and Stacey Smith used their authority as police officers without probable cause to abuse, harass, detain, and arrest them, to physically assault Carter with excessive force, in accordance with the City's alleged practice of arresting individuals without probable cause when they fail to do what the officers unconstitutionally demand. Carter sues for false arrest, assault and battery, malicious prosecution and false imprisonment against all defendants; Chris Smith sues for assault and battery, false imprisonment, and malicious prosecution against Myers and conspiracy against Myers and Stacey Smith. They charge the City with a "systemic practice and failure to train" and allege that the City knew of the violent manner in which Myers treated citizens of Harris County and that he used excessive force, as evidenced by his subsequent prosecution and plea agreement to never against serve as a law enforcement officer. They further allege that Defendants, acting in concert, intended to commit the torts to harm Carter and Chris Smith and caused Plaintiffs emotional and physical injuries.
Carter and Chris Smith charge The Connection and ACH, through their agent Stacey Smith, with instigating and effecting the assault and battery, unlawful arrest and detention, and malicious prosecution of Carter by misrepresenting material information to the police about Carter and soliciting their and the City's participation.
Finally, Plaintiffs assert that Defendants had a duty to protect Carter from injury, failed to perform that duty, and their failure caused her emotional and physical injury.
Federal Rule of Civil Procedure 8(a)(2) provides, "A pleading that states a claim for relief must contain . . . a short and plain statement of the claim showing that the pleader is entitled to relief." When a district court reviews a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), it must construe the complaint in favor of the plaintiff and take all well-pleaded facts as true. Randall D. Wolcott, MD, PA v. Sebelius, 635 F.3d 757, 763 (5
"While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, . . . a plaintiff's obligation to provide the `grounds' of his `entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. . . ." Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1964-65 (2007)(citations omitted). "Factual allegations must be enough to raise a right to relief above the speculative level." Id. at 1965, citing 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed. 2004)("[T]he pleading must contain something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally cognizable right of action"). "Twombly jettisoned the minimum notice pleading requirement of Conley v. Gibson, 355 U.S. 41 . . . (1957)["a complaint should not be dismissed for failure to state a claim 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"], and instead required that a complaint allege enough facts to state a claim that is plausible on its face." St. Germain v. Howard, 556 F.3d 261, 263 n.2 (5
In Ashcroft v. Iqbal, 556 U.S. at 679, the Supreme Court stated that "only a complaint that states a plausible claim for relief survives a motion to dismiss," a determination involving "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." "[T]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements do not suffice" under Rule 12(b). Iqbal, 129 S. Ct. at 1949. The plaintiff must plead specific facts, not merely conclusory allegations, to avoid dismissal. Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5
When a plaintiff's complaint fails to state a claim, the court should generally give the plaintiff at least one chance to amend the complaint under Rule 15(a) before dismissing the action with prejudice. Great Plains Trust Co v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 329 (5
Defendants insist that Plaintiffs fail to state a claim to relief that is plausible.
Because it is clear to the Court from Plaintiffs' response to this motion that they are not familiar with the pleading requirements for section 1983 actions and for particular common law causes of action in federal court, and because their Texas state court pleading requirements are different from those in federal court,
First, as a matter of law Plaintiffs fail to state a claim under the Fourteenth Amendment. Pretrial deprivations of liberty, excessive force, seizure of a free citizen, and arrest without probable cause fall under the Fourth Amendment and its reasonableness standard, and are not cognizable under the Fourteenth Amendment. Albright v. Oliver, 510 U.S. 266, 274-75 (1994); Graham v. Connor, 490 U.S. 386, 395 (1989); Cuadra v. Houston I.S.D., 626 F.3d 808, 814 (5
Defendants assert that Plaintiffs fail to state a claim against the City under § 1983 and fail to allege facts to support their conclusory allegations against it. The Court agrees and advises Plaintiffs' counsel that Plaintiffs' pleadings fail to satisfy the pleading standards for the following reasons.
Title 42 U.S.C. § 1983 does not grant substantive rights, but provides a vehicle for a plaintiff to vindicate rights protected by the United States Constitution and other federal laws. Albright v. Oliver, 510 U.S. 266, 271 (1994). It provides a cause of action for individuals who have been "depriv[ed] of [their] rights, privileges, or immunities secured by the Constitution and laws" of the United States by "a person" acting under color of state law. Id.
Municipalities and other bodies of local government are "persons" within the meaning of § 1983. Monell v. Department of Social Services, 436 U.S. 658, 690 (1978). "A municipality cannot be held liable solely because it employs a tortfeasor—or, in other words, a municipality cannot be held liable under § 1983 on a respondeat superior theory." Id. at 691. See also City of Canton v. Harris, 489 U.S. 378, 392 (1989). The bar on vicarious liability means that the municipality can only be liable where the municipality itself causes the constitutional violation at issue. Monell, 436 U.S. 658. A municipality may be liable under § 1983 if the execution of one of its customs or policies deprives a plaintiff of his constitutional rights. Monell, 436 U.S. at 690-91.
To state a claim for municipal liability under § 1983, a plaintiff must identify (a) a policy maker, (b) an official policy [or custom or widespread practice], and (c) a violation of constitutional rights whose "moving force" is the policy or custom. Piotrowski v. City of Houston, 237 F.3d 567, 578 (5
A plaintiff cannot conclusorily allege a policy or a custom and its relationship to the underlying constitutional violation; instead the plaintiff must plead specific facts. Spiller v. City of Texas City, Police Dep't, 130 F.3d 162, 167 (5
"Allegations of an isolated incident are not sufficient to show the existence of a custom or policy." Fraire v. City of Arlington, 957 F.2d 1268, 1278 (5
There is a rare exception to the requirement that a plaintiff show a custom or policy where a plaintiff's injury is a "patently obvious" or "highly predictable" result of inadequate training, as when a municipality "arms its police force with firearms and deploys the armed officers into the public to capture fleeing felons without training the officers in the constitutional limitation on the use of deadly force," and the municipality's policy makers consciously chose a training program that was inadequate. Speck v. Wiginton, ___ Fed. Appx. ___, 2013 WL 1195829, at *2 (5
"Deliberate indifference" is a "stringent standard, requiring proof that a municipal actor disregarded a known or obvious consequence of his action," for which "[a] showing of simple or even heightened negligence will not suffice"; it requires a plaintiff to show that "`in the light of the duties assigned to specific officers or employees the need for more or different training is so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the policymakers of the city can reasonably be said to have been deliberately indifferent to the need.'" Valle v. City of Houston, 613 F.3d 536, 547 (5
To state a claim against a municipality under § 1983 that will not be dismissed under Rule 12(b)(6), an individual plaintiff can provide fair notice by "inter alia describ[ing] (1) past incidents of misconduct by the defendant to others; (2) multiple harms that occurred to the plaintiff himself; (3) the involvement of multiple officials in the misconduct; or (4) the specific topic of the challenged policy or training inadequacy. . . . Those types of details, together with any elaboration possible, help to (1) `satisfy the requirement of providing not only `fair notice' of the nature of the claim, but also `grounds' on which the claim rests,'and (2) `permits the court to infer more than the mere possibility of misconduct.'" Flanagan v. City of Dallas, Texas, No. 3:13-CV-4231-M-BK, 2014 WL 4747952, at *3 (N.D. Tex. Sept. 23, 2014), citing Thomas v. City of Galveston, 800 F.Supp.2d 826, 843-44 (S.D. Tex. 2011); Twombly, 550 U.S. at 555 n.3; and Iqbal, 556 U.S. at 679. For example in Flanagan, id. at *10, the district court found adequately pleaded a claim of excessive force by the Dallas Police Department ("DPD") against the City of Dallas to survive a Rule 12(b)(6) challenge:
The district court further noted, id. at *11,
Id.,
"In limited circumstances, a local government's decision not to train certain employees about their legal duty to avoid violating citizens' rights may rise to the level of an official government policy for purposes of § 1983. A municipality's culpability for a deprivation of rights is at its most tenuous where a claim turns on a failure to train." Connick v. Thompson, 131 S.Ct. 1350, 1359 (2011), citing Oklahoma City v. Tuttle, 471 U.S. 808, 822-23 (1985)("[A] `policy of `inadequate training'` is `far more nebulous, and a good deal further removed from the constitutional violation, than was the policy in Monell). To prevail on a failure to train police officers, the plaintiff must show "(1) that the municipality's training procedures were inadequate, (2) that the municipality was deliberately indifferent in adopting its training policy, and (3) that the inadequate training policy directly caused the violations in question." Zarnow, 614 F.3d at 170, citing World Wide Street Preachers Fellowship v. Town of Columbia, 591 F.3d 747, 756 (5
To show that a municipality's failure to train was the "moving force" that caused the constitutional injury requires "a heightened standard of causation": "the plaintiff must establish a `direct link' between the municipal policy and the constitutional injury," i.e., a connection "more than a mere `but for' coupling between cause and effect"; "[t]he deficiency in training must be the actual cause of the constitutional violation." Valle v. City of Houston, 613 F.3d 536, 546 (5
"A municipality may be liable for the failure of a policymaker to take precautions to prevent harm, provided that the omission is an intentional choice and not merely a negligent oversight. Negligent training will not support a § 1983 claim a against a municipality, nor is it sufficient to show that `injury or accident could have been avoided if an officer had better or more training.'" Boston v. Harris County, Texas, No. Civ. A. H-11-1566, 2014 WL 1275921, at *90 (S.D. Tex. Mar. 26, 2014), citing City of Canton, 489 U.S. at 390. A "city's `policy of inaction' in light of notice that its program will cause a constitutional violation `is the functional equivalent of a decision by the city itself to violate the Constitution.'" Connick v. Thompson, 131 S.Ct. 1350, 1360 (2011, citing Canton, 489 U.S. at 395.
The real party in interest in a suit against a person in his official capacity is the governmental entity and not the named official. Hafer v. Melo, 502 U.S. 21, 25 (1991). See also Kentucky v. Graham, 473 U.S. 159, 165-66 (1985)("Official-capacity suits . . . `generally represent only another way of pleading an action against an entity of which the officer is an agent.'"), citing Monell v. New York City Dept. of Social Services, 436 U.S. 658, 690 n.55 (1978). Thus suit against individual Defendants Myers and Stacey Smith in their official capacities is a suit against the City and must be pleaded as such.
Myers and Stacey Smith assert they are entitled to qualified immunity in their individual capacities, and that Plaintiffs have failed to plead specific facts to overcome that qualified immunity. Defendants argue that the allegations against them (i.e., that while officers where investigating the smell of marijuana in Carter's apartment, Myers accused Carter of resisting arrest; Chris Smith alleges Myers falsely arrested him for drunk driving, but makes no allegations against Stacey Smith other than that she divorced him) do not state a claim against Myers or overcome Stacey Smith's qualified immunity.
Qualified immunity, an affirmative defense to a suit under 42 U.S.C. § 1983, protects government officials in their personal capacity, while performing discretionary functions, not only from suit, but from "liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); Pearson v. Callahan, 555 U.S. 223, ___, 129 S.Ct. 808, 815 (2009). Thus the Court examines whether the "officer's conduct violated a constitutional right," and "whether the right was clearly established" at the time of the conduct. Saucier v. Katz, 533 U.S. 194, 201 (2001). Either prong may be addressed first. Pearson, 129 S. Ct. at 808. A right is clearly established when "the contours of the right [are] sufficiently clear [such] that a reasonable official would understand that what he is doing violated that right." Werneck v. Garcia, 591 F.2d 386, 392 (5
Although qualified immunity is an affirmative defense, "plaintiff has the burden to negate the assertion of qualified immunity once properly raised." Collier v. Montgomery, 569 F.3d 214, 217 (5
In Elliott v. Perez, 751 F.2d 1472, 1473 (5
Morgan, 335 Fed. Appx. at 469-70, citing Schultea, 47 F.3d at 1432-34.
A denial of qualified immunity at the motion to dismiss stage, to the extent that it turns on a matter of law, is an appealable final decision under 28 U.S.C. § 1291 because qualified immunity is immunity from suit and, necessarily, shields the official from the burdens of discovery. Ashcroft v. Iqbal, 129 S. Ct. at 1946.; Porter v. Valdez, 424 Fed. App'x 382, 385 (5
Thus in their amended complaint, Plaintiffs must address and plead facts to rebut Defendants' qualified immunity defense.
The State of Texas
Defendants contend that because Carter and Chris Smith assert only intentional state tort claims against the City and because Plaintiffs fail to show that any injury they sustained was caused by any condition or use of tangible property or publicly owned automobiles, their tort claims for damages against the City and against the Officers in their official capacities are barred. The Court agrees.
Furthermore, Defendants assert, "A rose is a rose and an intentional tort is an intentional tort so Plaintiffs cannot circumvent the operative provisions of the Tort Claims Act by seeking to mischaracterize an intentional tort as mere negligence." #3 at p. 10, citing Morgan v. City of Alvin, 175 S.W.3d 408, 418-19 (Tex. App.-Houston [1
Moreover, under the TTCA, which "covers all tort theories that may be alleged against a governmental entity whether or not it waives that immunity," "`[i]f suit is filed . . . against both a governmental unit and any of its employees, the employees shall immediately be dismissed on the filing of a motion by the governmental unit.'" Tex. Civ. Prac. & Rem. Code § 101.106(e);Gil Ramirez Group, LLC v. Houston I.S.D., ___ F.3d ___, 2015 WL 2383797, at *11 (5
Therefore, because the City of Huntsville has so requested, the Court dismisses with prejudice all the tort claims for damages under Texas law (false arrest, assault and battery, malicious prosecution, false imprisonment, negligence, and conspiracy) asserted against Stacey Smith and Myers in their individual capacities pursuant to § 101.106(e).
The official immunity defense under Texas law is "substantially the same" as that of federal qualified immunity. Crostley v. Lamar County, Texas, 717 F.3d 410, 424 (5
The burden of proof is first on the officers to show they are entitled to official immunity from Plaintiffs' claims. Id., citing id. Defendants bear the burden to prove conclusively that "a reasonably prudent police officer, under the same or similar circumstances, could have believed his actions were justified based on the information that he possessed at the time." Id., citing id. Requiring a balancing test, good faith is judged on how a reasonably prudent officer could have assessed the need, i.e., the urgency of the circumstances requiring police intervention, to which an officer responds and the officer's course of action, based on his perception of the facts at the time of the event. Id., citing Wadewitz v. Montgomery, 915 S.W.2d 464, 467 (Tex. 1997). Then in order to rebut such a showing by Defendants, Plaintiffs must then demonstrate that "no reasonable person in the officer's position could have thought the facts were such that they justified the officer's actions." Id., citing id. The Texas Supreme Court opined in Wadewitz at 467, for rebuttal and to raise a genuine issue of material fact for trial, a party must address the following need/risk factors:
Defendants here have not yet filed an Answer and have thus not pleaded the affirmative defense of official immunity.
Plaintiffs' Original Petition states they are seeking damages for violations of the Texas Constitution. Not only have they failed to identify the provisions they claim have been violated, but there is no Texas law equivalent to § 1983, and the Texas Constitution does not create an implied private right of action for money damages. City of Beaumont v. Bouillion, 896 S.W.2d 143, 147 (Tex. 1995).
Asserting that the two incidents alleged in this suit occurred five days apart and have nothing factually in common other than that they occurred in the City and allegedly involved Myers and Stacey Smith, The Connection and ACH argue that Stacey Smith does not appear to assert any claims against them and Carter seeks monetary damages based on alleged violations of § 1983 and Texas tort law.
The Connection and ACH move to dismiss the § 1983 claims on the ground that they are private corporations, not state actors, and they do not act under the color of state law. Lugar v. Edmondson Oil Co., 457 U.S. 922, 929-30 (1982). To impose liability under the statute on a private corporation, the corporation must jointly participate in the conduct actionable under § 1983. Bray v. Alexandria Women's Health Clinic, 506 U.S. 263, 330 n.28 (1993)(If private parties jointly participated with officials action under color of state law in the challenged conduct, they would be liable under § 1983)(citing Lugar, 457 U.S. at 931; Adickes v. S.H. Kress & Co., 398 U.S. 144, 150, 152 (1970)(holding that a private party's joint participation with a state official in a conspiracy to discriminate would constitute both "state action essential to show a direct violation of petitioner's Fourteenth Amendment equal protection rights" and an action "under color of law for purposes of" § 1983)("To act `under color of law" does not require that the [defendant) be an officer of the State. It is enough that he is a willful participant in joint activity with the State or its agents.").
The fact that Stacy Smith was allegedly a "resident security officer" for the Connection cannot impose liability on The Connection because a private corporation "cannot be held liable under § 1983 on a respondeat superior theory." Monell, 436 U.S. at 691. See also Goodzari v. Hartzog, 2014 WL 722109, at *6 (S.D. Tex. 2014)(("Goodzari's respondeat superior claim must be dismissed because . . . Memorial Health System is not vicariously responsible for the actions of either Officer Gonzalez or individual Memorial Hermann Hospital Defendants"; "a respondeat superior claim against Gonzalez is not cognizable under § 1983.")
Furthermore in the context of an arrest the Fifth Circuit requires that the police must have acted "according to a preconceived plan and on the say-so of the private actor, not on the basis of their own investigation." Bartholomew v. Lee, 889 F.2d 62, 62 (5
As for the state law tort claims (false arrest, false imprisonment, assault, battery, and malicious prosecution), under Texas law to establish a cause of action involving injury by an offduty, privately employed police officer, the police officer must be performing a private duty, such as protecting an employer's property, ejecting trespassers, or enforcing the employer's rules, to impose vicarious liability on The Connection. Ogg v. Dillard's, Inc., 239 S.W.3d 409, 418 (Tex. App.-Dallas 2007, pet. denied). When a police officer is enforcing general laws, his private employer has no vicarious liability for his acts even if the employer directed the actions. Id. (and cases cited therein). Plaintiffs do not plead any facts showing Stacey Smith was performing a private duty at the time of the alleged incident.
Last of all, The Connection and ACH urge, Plaintiffs must show that the private defendant initiated or procured the prosecution. Kroger Texas, LP v. Suberu, 216 S.W.3d 788, 792 & n.3 (Tex. 2006). The private party must be the cause-in-fact of the prosecution and not merely the aiding or abetting of law enforcement in bringing it about. Browning-Ferris Indus. v. Lieck, 881 S.W.2d 288, 293 (Tex. 1994)("In order to charge a private person with responsibility for the initiation of proceedings by a public official, it must . . . appear that his desire to have the proceedings initiated, expressed by direction, request or pressure of any kind, was the determining factor in the official's decision to commence the prosecution, or that the information furnished by him upon which the official acted was known to be false.")(citing Restatement (Second) of Torts § 653, cmt. g (1977)); in accord, King v. Graham, 126 S.W.3d 75, 76 (Tex. 2003)(per curiam).
Only Carter filed a response to this motion, which the Court finds to be conclusory and factually deficient. In it (#9 at p. 2), Carter summarily asserts that The Connection and ACH "in a common course of action, jointly (conspiracy), intentionally and knowingly performed the illegal arrest of Plaintiff Carter for arbitrary and personally motivated reasons." The same is true of her allegations that "Stacey Smith, in her capacity as agent for the Connection, acted jointly and in concert with Defendant Chris Myers in the deprivation of" Carter's constitutional rights and "instituted and effected the unlawful arrest and detention by misrepresenting material information to the police regarding" Carter. Id. at p. 3. While insisting Myers "had a pattern of abuse," and that Stacey Smith "had a history of collaborating with Myers in abusing police power," Carter fails to identify any specific examples. Id. at pp. 2, 4. Indeed Carter's response is replete with such boiler plate and broad statements, unsupported by facts or by Plaintiffs' barebones allegations in their Original Petition, which, after all, is the focal point of Rule 12(b)(6).
In their reply (#11), The Connection and ACH state they were never served with a copy of Carter's response. They also highlight the disparity between allegations in Carter's response and their absence in the Original Petition. The Court agrees that the many specific pleading deficiencies identified by The Connection and ACH need repleading to state a claim. The Court emphasizes that the only mention of ACH in the Original Petition is it is "the management company operating The Connection [#1-1 at p. 2, ¶ 4]," but Plaintiffs fail to plead any facts or cite any authority that would impose liability on ACH for that reason. Moreover because Plaintiffs' pleadings in their Original Petition against both The Connection and ACH are so "bare bones," the Court cannot tell whether Plaintiffs have cognizable claims against them. Therefore the Court will permit Plaintiffs to file an amended complaint to attempt to state viable claims against these two entities.
Accordingly, for the reasons stated above, the Court
ORDERS that Defendants the City, Stacey Smith, and Myers' motion to dismiss (#3) is GRANTED IN PART and the following claims are DISMISSED with prejudice: (1) Plaintiffs' claims against all Defendants under § 1983 and the Fourteenth Amendment; (2) Plaintiffs' tort claims under Texas common law (false arrest, assault and battery, malicious prosecution, false imprisonment, negligence, and conspiracy) against Stacey Smith and Myers pursuant to Tex. Civ. Prac. & Rem. Code § 101.106(e); (3) Plaintiffs' tort claims against the City under Tex. Civ. Prac. & Rem. Code § 101.057; and (4) Plaintiffs' claims for damages for violations of the Texas Constitution. The Court further
ORDERS that Defendants the City, Stacey Smith, and Myers' motion to dismiss (#3) is otherwise DENIED, and Plaintiffs are granted leave to file a amended complaint within twenty days of entry of this Opinion and Order to attempt to state cognizable claims against Movants under § 1983 and the Fourth Amendment, with specific facts supporting the pleading requirements for each. Conclusory, general allegations do not satisfy Rule 12(b)(6).
The Court further
ORDERS that The Connection and ACH's motion to dismiss (#5) is also DENIED, with leave again granted to Plaintiffs to file an amended complaint that meets pleading requirements for claims against them.
Failure to file adequate pleadings and pleadings with sufficient facts to state cognizable claims against all Defendants will result in dismissal of those claims failing to satisfy Rule 12(b)(6) and the elements of each cause of action.
KIW, Inc. v. Zurich American Ins. Co., No. Civ. A. H-05-3240, 2005 WL 3434977, *3 (S.D. Tex. Dec. 14, 2005). Thus pleading standards are far more lenient in Texas state court, as summarized in 1 Tex. Prac. Guide Civil Pretrial § 5:39 (Database updated through September 2010):