Bustos v. Club

Decision Date05 March 2010
Docket NumberNo. 09-50079.,09-50079.
Citation599 F.3d 458
PartiesErnest BUSTOS, Plaintiff-Appellant, V. MARTINI CLUB, INCORPORATED; Wayne E. Harper; Annette Harper; Guillermo Cantu, Officer, also known as Willie; Officer Kyle Goodwin, Badge No. 0377; Officer Pete Vega, Badge No. 1389; Officer David Larios, Badge No. 0202; Officer Carlos Alex Garza, Badge No. 681; City Manager Sheryl Sculley; William McManus, Chief of Police; City Of San Antonio, Defendants-Appellees.
CourtU.S. Court of Appeals — Fifth Circuit

COPYRIGHT MATERIAL OMITTED

Ernest Bustos, San Antonio, pro se.

Stephen F. White, Law Offices of Stephen F. White, P.C., San Antonio, TX, for Martini Club, Inc., Wayne Harper, Annette Harper.

Mark Ralls, Gonzales Hoblit Ferguson LLP, San Antonio, TX, for Cantu, Goodwin, Vega, Larios, Garza, Sculley, McManus.

David Michael Williams, San Antonio TX, for City of San Antonio.

Appeal from the United States District Court for the Western District of Texas.

Before SMITH, CLEMENT and OWEN, Circuit Judges.

OWEN, Circuit Judge:

Ernest Bustos, pro se, appeals the district court's grant of a motion to dismiss in favor Officer Guillermo Cantu, Officer Kyle Goodwin, Officer Pete Vega, Officer David Larios, Officer Carlos Alex Garza Sheryl Sculley, William McManus, and the City of San Antonio on his claims under 42 U.S.C. § 1983 and Texas state law. Bustos also appeals the district court's grant of summary judgment in favor of Martini Club Inc., Wayne Harper, and Annette Harper. For the following reasons, we affirm.

I

Bustos's claims arise out of a late-night confrontation with several off-duty police officers at the Martini Club in San Antonio. Bustos's complaint presents the facts as follows. Bustos was at the bar, waiting to pay his tab, and a group of San Antonio police officers were standing at the end of the bar near the front door. In an effort to gain the bartender's attention, Bustos moved toward the officers, who "appeared intoxicated and were quite boisterous." Officer Cantu then accused Bustos of pushing him and cursed at Bustos. After Bustos "calmly responded that he had notpushed Officer Cantu, " the officer cursed again and lunged at him, "striking him in the face with the intent of causing permanent damage to his eye." Officers Goodwin, Vega, Larios, and Garza "watched and laughed" as Bustos tried to defend himself.

According to the complaint, because the officers were blocking the front door, Bustos tried to leave through the club's backdoor. But when he attempted to exit, the officers were waiting for him in the alley. They then reentered through the backdoor, "holding each other's shoulders as a group of SWAT officers showing force." As Bustos turned to go back towards the front door, "he was violently and maliciously pushed from behind off the [elevated] main seating area onto the concrete floor by Officer Goodwin." Bustos alleges that he sustained injuries to his face, left hand, and chest as a result of the fall.

Bustos's complaint also contains allegations regarding events after the alleged assault. He states that he immediately called 911, but that the operator would not assist him since he could not identify the badge numbers of the officers who assaulted him. He also alleges that he made a complaint about the incident to the San Antonio Police Department Division of Internal Affairs but that the division failed to investigate because of its "endemic corruption."

Bustos brought suit against Officers Cantu, Goodwin, Vega, Larios, and Garza (collectively, the Officers), the City of San Antonio (the City), City Manager Sheryl Sculley, and Chief of Police William McManus, as well as the Martini Club and its owners, Wayne and Annette Harper. Bustos asserted a claim under 42 U.S.C § 1983 against the Officers, the City, Scul ley, and McManus for violation of his substantive due process rights. Bustos also brought state law claims against the Officers for assault, battery, false imprisonment, intentional infliction of emotional distress, and invasion of privacy. Bustos asserted a state tort law claim against the City, Sculley, and McManus for negligent hiring. He asserted state law claims against the Martini Club and the Harpers for negligence, negligent hiring, and retaliation. In addition, he attempted to bring various criminal charges against the Officers.

The district court granted a Rule 12(b)(6) motion to dismiss the claims against the City, the Officers, Sculley, and McManus. The court then granted summary judgment in favor of the Martini Club and the Harpers. Bustos now appeals the dismissal of his state law and § 1983 claims against the Officers, the City, Sculley, and McManus, as well as the grant of summary judgment in favor of the Martini Club and the Harpers. He does not appear to contest the dismissal of his attempts to bring criminal charges.

II

We review a district court's grant of a motion to dismiss for failure to state a claim de novo, "accepting all well-pleaded facts as true and viewing those facts in the light most favorable to the plaintiff."1 To survive a Rule 12(b)(6) motion to dismiss the plaintiff must plead enough facts "to state a claim to relief that is plausible on its face."2 Still, "[i]t is well-established that pro se complaints are held to less stringent standards than formal pleadingsdrafted by lawyers."3A

Bustos first contends that the district court erred in determining that his claims against the City were brought under the Texas Tort Claims Act (TTCA), thereby requiring the dismissal of his state law claims against the Officers.

The TTCA provides a limited waiver of immunity for certain suits against Texas governmental entities.4 But a plaintiff who sues under the TTCA must elect pursuant to § 101.106 of that act between suing a governmental unit and suing an employee of that unit.5 A plaintiff's suit under the TTCA "against a governmental unit constitutes an irrevocable election by the plaintiff and bars suit "against any individual employee of the governmental unit regarding the same subject matter."6A plaintiff's suit against an employee of a governmental unit is also considered an "irrevocable election" and bars suit "against the governmental unit regarding the same subject matter unless the governmental unit consents."7 If the plaintiff sues both the governmental unit and any of its employees under the TTCA, "the employees shall immediately be dismissed on the filing of a motion by the governmental unit."8 As the Supreme Court of Texas has explained, the provision's "apparent purpose was to force a plaintiff to decide at the outset whether an employee acted independently and is thus solely liable, or acted within the general scope of his or her employment such that the governmental unit is vicariously liable."9

The district court ruled that § 101.106 required the dismissal of Bustos's state law intentional tort and invasion of privacy claims against the Officers. The court acknowledged that Bustos did not specify that he was suing under the TTCA. But it nevertheless dismissed the claims, relying on the reasoning in Garcia. There, the Texas Supreme Court held that a suit asserting common law claims against a Texas governmental unit, as distinguished from statutory claims, is considered to be under the TTCA.10 The court reasoned that because the TTCA "is the only, albeit limited, avenue for common-law recovery against the government, all tort theories alleged against a governmental unit whether it is sued alone or together with its employees, are assumed to be 'under the Tort Claims Act' for purposes of section 101.106."11

The Garcia decision is at odds with this circuit's interpretation of Texas state law in Meadours v. Ermel.12 Because we are "a strict stare decisis court, " one panel's interpretation of state law is "no less binding on subsequent panels than are prior interpretations of federal law."13 We accordingly apply panel precedent "absent a subsequent state court decision or statu-tory amendment which makes [the panel decision] clearly wrong."14 We must determine if the Texas Supreme Court decision renders Meadours clearly wrong.

In Meadours, the plaintiffs brought a § 1983 claim against the City of La Porte and several police officers for excessive force and also sued all of the defendants under Texas state law on theories of gross negligence, assault and battery, and intentional infliction of emotional distress.15 The panel determined that § 101.106 did not require the dismissal of the plaintiffs' state law claims against the officers. The panel reasoned that the TTCA did not apply to intentional torts, 16 relying on a provision in the TTCA that explicitly states that "[t]his chapter does not apply to a claim... arising out of assault, battery, false imprisonment, or any other intentional tort."17 The panel thus concluded that § 101.106 did not bar plaintiffs' claims since they were not covered by the TTCA.18

In contrast, the Texas court held in Garcia that the TTCA applied and could bar a plaintiff's intentional tort claim against an employee when the plaintiff had sued both the employee and the governmental unit that employed him.19 In doing so, the court interpreted the following language in § 101.106(e): "If a suit is filed under this chapter 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." The court explained that "under this chapter" does not limit the statute's reach to tort claims for which the TTCA waives immunity.20 The court then reasoned that, because the TTCA was the only avenue for common-law recovery against a governmental unit, all tort claims against such units were assumed to be "under this chapter" for purposes of § 101.106.21 As a result of this ruling, if a plaintiff brings virtually any state common law tort claim against both a governmental unit and its employees, § 101.106(e) will allow the employee defendants to be...

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