Carter v. Diamond Urs Huntsville, LLC

• Decision Date: 10 June 2015
• Docket Number: Civ. A. H-14-2776
• Parties: MELISSA CARTER and CHRIS SMITH, Plaintiffs, v. DIAMOND URS HUNTSVILLE, LLC, d/b/a THE CONNECTION AT HUNTSVILLE, ASSET CAMPUS HOUSING, INC.,THE CITY OF HUNTSVILLE, TEXAS, OFFICER STACEY SMITH-GALLAR, and OFFICER CHRISTOPHER MYERS, Defendants.
• Court: U.S. District Court — Southern District of Texas

MELISSA CARTER and CHRIS SMITH, Plaintiffs, v. DIAMOND URS HUNTSVILLE, LLC, d/b/a THE CONNECTION AT HUNTSVILLE,

ASSET CAMPUS HOUSING, INC.,THE CITY OF HUNTSVILLE,

TEXAS, OFFICER STACEY SMITH-GALLAR, and OFFICER CHRISTOPHER MYERS, Defendants.

Civ. A. H-14-2776

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION

June 10, 2015

OPINION AND ORDER

Pending before the Court in the above referenced cause, removed from state court on federal question jurisdiction and seeking damages for two "startlingly similar"¹ unconstitutional arrests and detentions without probable cause and use of excessive force, in violation of 42 U.S.C. § 1983, the Fourth and Fourteenth Amendments of the United States Constitution, Texas common law torts (false arrest, assault and battery, malicious prosecution, false imprisonment, negligence, and conspiracy), and the Texas Constitution, are (1) Defendants the City of Huntsville, Texas ("the City"), Stacey Smith, and Christopher Myers' ("Myers'") motion to dismiss Plaintiffs Melissa Carter ("Carter") and Chris Smith's claims under Federal Rule of Civil Procedure 12(b)(6)(instrument #3), and (2) Defendants Diamond URS Huntsville, LLC d/b/a The Connection at Huntsville ("The Connection") and AssetCampus Housing, Inc.'s ("ACH's") motion to dismiss pursuant to Rule 12(b)(6) (#5).

I. Allegations of Plaintiffs' First Original Petition (#1-1)

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, subsequentlyidentified 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 rigfor 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 allegethat 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.

II. Standard of Review

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^th Cir. 2011), citing Gonzalez v. Kay, 577 F.3d 600, 603 (5^th Cir. 2009). The plaintiff's legal conclusions are not entitled to the same assumption. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)("The tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions."),citing Bell Atlantic Corp. v. Twombly, 556 U.S. 662, 678 (2007); Hinojosa v. U.S. Bureau of Prisons, 506 Fed. Appx. 280, 283 (5^th Cir. Jan. 7, 2012).

"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^th Cir. 2009), citing In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5^th Cir. 2007)("To survivea 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.'"), citing Twombly, 127 S. Ct. at 1974). "'A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.'" Montoya v. FedEx Ground Package System, Inc., 614 F.3d 145, 148 (5^th Cir. 2010), quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The plausibility standard is not akin to a "probability requirement," but asks for more than a "possibility that a defendant has acted unlawfully." Twombly, 550 U.S. at 556. Dismissal is appropriate when the plaintiff fails to allege "'enough facts to state a claim to relief that is plausible on its face'" and therefore fails to "'raise a right to relief above the speculative level.'" Montoya, 614 F.3d at 148, quoti...