Carr v. Montgomery Cnty., Civil Action No. H–13–2795.

• Decision Date: 06 October 2014
• Docket Number: Civil Action No. H–13–2795.
• Citation: 59 F.Supp.3d 787
• Parties: Perla CARR, Plaintiff, v. MONTGOMERY COUNTY, TEXAS, et al., Defendants.
• Court: U.S. District Court — Southern District of Texas

59 F.Supp.3d 787

Perla CARR, Plaintiff

v.MONTGOMERY COUNTY, TEXAS, et al., Defendants.

Civil Action No. H–13–2795.

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

Signed Oct. 6, 2014.

Randall Lee Kallinen, Attorney at Law, Houston, TX, for Plaintiff.

Daniel Plake, Conroe, TX, for Defendants.

Memorandum Opinion & Order

GRAY H. MILLER, District Judge.

Pending before the court is defendants' motion to dismiss (Dkt. 19). Having considered the motion, response, reply, and all applicable law, defendants' motion to dismiss (Dkt. 19) is GRANTED IN PART and DENIED IN PART.

I. Background

Plaintiff Perla Carr's home was the subject of a narcotics search by Montgomery County Precinct 4 Constable's Office on September 22, 2011. Dkt. 15–2 at 3. According to plaintiff, officers forced their way into the home without a warrant nor justification for a warrantless search of her home. Id. A laser sight was pointed at plaintiff as she was seized from her home, and she was then placed in handcuffs and detained outside the residence while her home was searched. Id. at 4. She alleges that the officers at her home conspired with the district attorney's office to fabricate facts to try to justify breaking into the home, and they obtained a search warrant only after they searched the entire home and found evidence. Id. at 3–5. During the search, officers brought a third party with a video camera into plaintiff's home who filmed the search and seizure. Id. at 3–4. Later, footage from the search was allegedly available online. Dkts. 15–2 at 7. After the search, plaintiff was charged with felony marijuana possession. Plaintiff's son was also at the home at the time of the search. Id. at 4. The son was arrested and charged with felony marijuana possession, at which point the son became plaintiff's co-defendant. Id. at 6. Prior to the dismissal of plaintiff's marijuana charges, her co-defendant moved to suppress evidence found during the search of plaintiff's home. Id. at 7. The motion to suppress was denied at the conclusion of a suppression hearing and, subsequently, the co-defendant pled guilty to the charges. Dkts. 15–5 at 134, 19–10. The charges against plaintiff were dismissed on May 10, 2012. Id. at 6.

On September 11, 2013, plaintiff brought this suit pursuant to 42 U.S.C.A. § 1983 (“§ 1983 ”) and has since amended her claims. Dkt. 15–2. Plaintiff brings several claims against Montgomery County and the following people in their individual capacity: Montgomery County Precinct 4 Constable Kenneth Hayden (“Hayden”); Constable's employees Barry Welch (“Welch”); Joshua Bergland (“Bergland”); Arturo Looza (“Looza”); and Eric McHugh (“McHugh”); and Montgomery County district attorney Brett Ligon (“Ligon”) and Phil Grant (“Grant”).

Plaintiff alleges that defendants violated her Fourth Amendment rights when they 1) Broke into plaintiff's home without a warrant or exigent circumstances and detaining her without probable cause; 2) Invited a camera man to join the search who filmed plaintiff and later publicized that footage; 3) Used excessive force against plaintiff during the seizure; 4) Justified the initial search and later-obtained warrant on false, fabricated information; and 5) Continued to prosecute plaintiff based on false information from officers. Plaintiff alleges that defendants violated her Fifth Amendment due process rights when they 1) Conspired together to illegally break into and search her home; 2) Gave false statements to support a search warrant in her co-defendant's suppression hearing; 3) Failed to produce exculpatory video footage from the incident during plaintiff's prosecution; and 4) Now assert res judicata and estoppel defenses against her claims before this court. Id. at 9–10. Plaintiff pleads that Hayden and others have supervisory liability for the acts that occurred at her home, and that Hayden has particular supervisory liability for failing to supervise his officers who brought a third party unrelated to the search into her home. Id. at 10. Plaintiff asserts that Montgomery County is liable because Hayden and Ligon are policymakers who were aware of the policy or custom of illegal acts that occurred at plaintiff's home and after, and which violated plaintiff's constitutional rights. Id. at 11.

Defendants filed a motion to dismiss the amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(1) based on the Rooker–Feldman doctrine, and pursuant to Federal Rule of Civil Procedure 12(b)(6) based on 1) collateral estoppel, and 2) failure to state a claim upon which relief can be granted due to qualified immunity. The motion has been responded to and is ripe for review.

II. Legal Standards, Background Law & Preliminary Analysis

A. 12(b)(1) Motion to Dismiss for Lack of Jurisdiction

A court may dismiss a complaint under Federal Rule of Civil Procedure 12(b)(1) when it “lacks the statutory or constitutional power to adjudicate the case.” Home Builders Ass'n of Miss., Inc. v. City of Madison, Miss., 143 F.3d 1006, 1010 (5th Cir.1998). Parties may use this rule to challenge the subject matter jurisdiction of the district court to hear a case. Ramming v. U.S., 281 F.3d 158, 161 (5th Cir.2001). The burden of proof in such a challenge is on the party asserting jurisdiction. Id. “When a Rule 12(b)(1) motion is filed in conjunction with other Rule 12 motions, the court should consider the Rule 12(b)(1) jurisdictional attack before addressing any attack on the merits.” Id. “A motion under 12(b)(1) should be granted only if it appears certain that the plaintiff cannot prove any set of facts in support of his claim that would entitle him to relief.”Home Builders, 143 F.3d at 1010.

B. 12(b)(6) Motion to Dismiss for Failure to State a Claim

A court may dismiss a complaint for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must plead “enough facts to state a claim to relief that is plausible on its face.” Gines v. D.R. Horton, Inc., 699 F.3d 812, 816 (5th Cir.2012) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (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.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). “Factual allegations must be enough to raise a right to relief above the speculative level, ... on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Twombly, 550 U.S. at 555, 127 S.Ct. 1955. As part of the Twombly–Iqbal analysis, the court proceeds in two steps. First, the court separates legal conclusions from well-pled facts. Iqbal, 556 U.S. at 678–79, 129 S.Ct. 1937. Second, the court reviews the well-pled factual allegations, assumes they are true, and then determines whether they “plausibly give rise to an entitlement of relief.” Id. at 679, 129 S.Ct. 1937.

C. 42 U.S.C. § 1983

State actors are subject to civil liability when, “under color of any statute, ordinance, regulation, custom, or usage, of any State,” that official subjects, or causes to be subjected, a person “to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws.”

42 U.S.C. § 1983. For a plaintiff to state a claim under § 1983 he “must first show a violation of the Constitution or of federal law, and then show that the violation was committed by someone acting under color of state law.” Atteberry v. Nocona Gen. Hosp., 430 F.3d 245, 252–53 (5th Cir.2005). Public officials sued in their personal capacity for money damages under § 1983 may be able to assert a common-law defense of absolute or qualified immunity from suit. Imbler v. Pachtman, 424 U.S. 409, 418–19, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976). Further, to hold the county or an employee's supervisor liable, plaintiff must plead facts to establish the actual liability of the county or the supervisor, as neither can be held vicariously liable for an employee's actions under § 1983. Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) ; Estate of Davis ex rel. McCully v. City of North Richland Hills, 406 F.3d 375, 381 (5th Cir.2005).

D. Immunity

Prosecutors enjoy absolute immunity for acts of preparation for the initiation of judicial proceedings for trial. Buckley v. Fitzsimmons, 509 U.S. 259, 273, 113 S.Ct. 2606, 125 L.Ed.2d 209 (1993) ; Imbler v. Pachtman, 424 U.S. 409, 431, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976). “Those acts must include the professional evaluation of the evidence assembled by the police and appropriate preparation for its presentation at trial or before a grand jury after a decision to seek an indictment has been made.” Buckley, 509 U.S. at 273, 113 S.Ct. 2606. However, prosecutors are only entitled to qualified immunity when functioning as an administrator or investigator and not an officer of the court serving as in an advocacy capacity. Id. The Supreme Court notes a difference between the various roles of a prosecutor. Id. For example, the advocate's role in evaluating evidence and interviewing witnesses as he prepares for trial is different from the detective's role in searching for the clues and corroboration that might give him probable cause to recommend that a suspect be arrested.Id. Prosecutors often can only claim qualified immunity for the tasks they undertake outside their advocacy role, such as planning and executing a raid on a weapons cache, providing guidance on investigative techniques to officers, or helping officer determine whether probable cause is present. Id. at 274, 113 S.Ct. 2606 ; Burns v. Reed, 500 U.S. 478, 482, 496, 111 S.Ct. 1934, 114 L.Ed.2d 547 (1991).

When an official asserts qualified immunity, the first step is to identify the allegedly infringed constitutional right. Graham v. Connor, 490 U.S. 386, 394, 109 S.Ct. 1865, ...