Alcala v. Texas Webb County

• Decision Date: 03 June 2009
• Docket Number: Civil Action No. L-08-128.
• Citation: 620 F.Supp.2d 795
• Parties: Cynthia ALCALA, et al., Plaintiffs, v. TEXAS WEBB COUNTY, et al., Defendants.
• Court: U.S. District Court — Southern District of Texas

620 F.Supp.2d 795

Cynthia ALCALA, et al., Plaintiffs, v. TEXAS WEBB COUNTY, et al., Defendants.

Civil Action No. L-08-128.

United States District Court, S.D. Texas, Laredo Division.

June 3, 2009.

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Albert M. Gutierrez, III, Matthew Fisher Wymer, Gutierrez Wymer, P.C., San Antonio, TX, for Plaintiffs.

Kyle Cledys Watson, Goode Casseb et al., Albert Lopez, Juan Ramon Flores, Attorneys at Law, San Antonio, TX, Murray

Edward Malakoff, Yohana Saucedo, Attorneys at Law, J. Alberto Alarcon, Hall Quintanilla & Alarcon, Laredo, TX, for Defendants.

ORDER ADOPTING REPORT AND RECOMMENDATION

MICAELA ALVAREZ, District Judge.

Pending before the Court is Defendant Webb County's Motion to Dismiss. [Dkt. No. 57]. Also pending is Plaintiffs' Alternative Motion for Leave to File Amended Complaint. [Dkt. No. 58]. On April 2, 2009, the Magistrate Court issued a Report and Recommendation, recommending that Defendant Webb County's Motion to Dismiss be granted and that Plaintiffs' Alternative Motion for Leave to File Amended Complaint be denied. [Dkt. No. 65]. The time for filing objections has passed and no objections have been filed.¹

Pursuant to Federal Rule of Civil Procedure 72(b), the Court has reviewed the Report and Recommendation for clear error.² Finding no clear error, the Court adopts the Report and Recommendation in its entirety. Therefore, it is ORDERED that Defendant Webb County's Motion to Dismiss, [Dkt. No. 57], be GRANTED. Accordingly, Plaintiffs' state law claims of intentional infliction of emotional distress, defamation, discharge for refusal to commit illegal acts (the Sabine Pilot claim), and retaliation for complying with a valid subpoena (under Section 52.051 of the Texas Labor Code) against Defendant Webb County and Defendants Patricia Barrera Mary Ethel Novoa, Rosa Hernandez, and Dora Jimenez in their official capacities are DISMISSED. Moreover, Plaintiffs' state law claims of intentional infliction of emotional distress, defamation, and discharge for refusal to commit illegal acts against Defendants Barrera, Novoa, Hernandez, and Jimenez in their individual capacities are DISMISSED. Finally, it is also ORDERED that Plaintiffs' Alternative Motion for Leave to File Amended Complaint, [Dkt. No. 58], be DENIED.

IT IS SO ORDERED.

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

J. SCOTT HACKER, United States Magistrate Judge.

I. Background

Pending before the Court is Defendant Webb County, Texas ("the County")'s Motion to Dismiss. (Dkt. No. 57).¹ Also pending before the Court is Plaintiffs' "Alternative Motion for Leave to File Amended Complaint." (Dkt. No. 58). On September 24, 2008, Plaintiffs filed this lawsuit asserting a 42 U.S.C. Section 1983 claim and other state law claims against Webb County, Ms. Patricia Barrera, who is the elected Webb County Tax Assessor-Collector. ("WCTAC"), and three WCTAC office supervisors—Ms. Mary Ethel Novoa, Ms. Rosa Hernandez and Ms. Dora Jimenez.² Plaintiffs sued the four individual defendants in both their official and individual ("personal") capacities.

On February 4, 2009, the County filed its Motion to Dismiss under Federal Rule of Civil Procedure 12(b)(6). (Dkt. No. 57). In its motion, the County asked the Court to dismiss Plaintiffs' three state common law claims (intentional infliction of emotional distress, defamation, and a Sabine Pilot claim—discharge for refusal to commit illegal acts) and Plaintiffs' statutory claim under Tex. Lab.Code § 52.051 (retaliation for complying with a subpoena) against the County and the four individuals in their official capacities under the doctrine of governmental immunity. Further, the County moved for the Court to dismiss Plaintiffs' three state common law claims against the four individual defendants in their personal capacities, pursuant to Section 101.106(e) of the Texas Civil Practice and Remedies Code ("Section 101.106(e)"), a part of the Texas Tort Claims Act.

On February 10, 2009, Plaintiffs filed their response. (Dkt. No. 58). In that response, Plaintiffs only addressed Defendants' argument under Section 101.106(e), contending that their state law claims were not brought under the Texas Tort Claims Act. Therefore, according to Plaintiffs, Section 101.106(e) is not applicable, and the claims should not be dismissed. Alternatively, Plaintiffs asked the Court for leave to file an amended complaint so that they could allege the state law claims "against the individual Defendants only." Plaintiffs also asked the Court for leave to amend their complaint in the event the County is not deemed an "employer" under Section 52.051 of the Texas Labor Code to allege a claim against Ms. Barrera in her personal capacity only.

On February 13, 2009, Defendants Rosa Hernandez ("Ms. Hernandez") and Dora Jimenez ("Ms. Jimenez") filed their "Joinder on Webb County's Motion to Dismiss and Reply to Plaintiffs' Response." (Dkt. No. 60). In their motion, Ms. Hernandez and Ms. Jimenez joined the County's motion, requesting that Plaintiffs' state law claims in their official and personal capacities be dismissed. The County filed its reply to Plaintiffs' response on February 25, 2009. (Dkt. No. 62). Ms. Hernandez, Ms. Jimenez and the County all oppose Plaintiffs' request for leave to amend their complaint.

II. Legal Standard

Under Federal Rule of Civil Procedure 12(b)(6), a party may move to dismiss an action for "failure to state a claim upon which relief can be granted." In evaluating a Rule 12(b)(6) motion, "[t]he complaint must be liberally construed, with all reasonable inferences drawn in the light most favorable to the plaintiff." Woodard v. Andrus, 419 F.3d 348, 351 (5th Cir.2005) (citation omitted). The court must accept the plaintiff's factual allegations as true. Apani Southwest, Inc. v. Coca-Cola Enters., 300 F.3d 620, 624 (5th Cir.2002). "The motion may be granted only if it appears that no relief could be granted under any set of facts that could be proven consistent with the allegations." Jackson v. City of Beaumont Police Dep't, 958 F.2d 616, 618 (5th Cir.1992) (quotation marks and citations omitted). Nevertheless, under Rule 12(b)(6), "[d]ismissal can be based either on a lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory." Frith v. Guardian Life Ins. Co. of Am., 9 F.Supp.2d 734, 737-738 (S.D.Tex.1998).

III. Analysis

a. The County's Motion to Dismiss all of Plaintiffs' State Law Claims Against the County and the Four Individual Defendants in Their Official Capacities Under Governmental Immunity Should Be Granted.

The County argues that governmental immunity protects it from liability on Plaintiffs' state law claims for intentional infliction of emotional distress, defamation, discharge for refusal to commit illegal acts (Sabine Pilot claim), and retaliation for complying with a subpoena (under Section 52.051 of the Texas Labor Code). The County further argues that a lawsuit against county employees in their official capacities is the same as a lawsuit against the County; thus, the doctrine of governmental immunity also bars Plaintiffs' above-stated claims against the individual Defendants in their official capacities. Besides briefly discussing the claim under the Texas Labor Code, Plaintiffs' response does not address the rest of the County's arguments under governmental immunity.

Sovereign immunity shields a state from suit unless it expressly consents to being sued. See Harris County v. Sykes, 136 S.W.3d 635, 638 (Tex.2004) (citations omitted). Governmental immunity affords similar protection to subdivisions of the state, such as counties. See id. The purpose of sovereign immunity, and its counterpart, governmental immunity, is to protect subdivisions of the state from lawsuits and liability for money damages. Garcia, 253 S.W.3d at 655 (citations omitted). Furthermore, "[a] suit against government employees in their official capacities is, in all respects, a suit against the State; thus employees sued in their official capacities are shielded by sovereign immunity." Univ. of Texas Med. Branch at Galveston v. Hohman, 6 S.W.3d 767, 777 (Tex.App.-Houston [1st Dist.] 1999, pet. dism'd w.o.j.). Specifically, "official-capacity suits `generally represent only another way of pleading an action against an entity of which an officer is an agent.'" Hafer v. Melo, 502 U.S. 21, 25, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991) (citations omitted); see also Bennett v. Pippin, 74 F.3d 578, 584 (5th Cir.1996) (noting that a suit against a county official in his official capacity is a suit against the county "directly in everything but name").

Under Texas law, a governmental unit is immune from tort liability unless the Legislature has waived immunity. See Dallas County Mental Health and Mental Retardation v. Bossley, 968 S.W.2d 339, 341 (Tex.1998). However, the Texas Tort Claims Act ("the Tort Claims Act") provides a limited waiver of immunity for certain suits against governmental entities.³ Garcia, 253 S.W.3d at 655 (citation omitted). As such, this Court must decide whether the state of Texas has waived immunity pertaining to the state law claims that Plaintiffs have asserted.

1. Intentional torts

Plaintiffs have alleged intentional infliction of emotional distress and defamation claims against the County and the four individuals in their official capacities. The Tort Claims Act explicitly states that it does not extend its limited waiver of immunity to claims "arising out of assault, battery, false imprisonment, or any other intentional tort." Tex. Civ. Prac. & Rem. Code § 101.057 (West 2005) (emphasis added); see also Hohman, 6 S.W.3d at 777 (stating "[t]he Texas Tort Claims Act provides that sovereign immunity exists for intentional torts."). An intentional infliction of emotion distress claim and a defamation claim are intentional torts. See Hohman, 6 S.W.3d at 777 (...