Cox v. the City of Fort Worth

• Decision Date: 30 December 2010
• Docket Number: No. 4:10–CV–109–A.,4:10–CV–109–A.
• Parties: Tommy COX, et al., Plaintiffs,v.The CITY OF FORT WORTH, TEXAS, et al., Defendants.
• Court: U.S. District Court — Northern District of Texas

762 F.Supp.2d 926

Tommy COX, et al., Plaintiffs,

v.The CITY OF FORT WORTH, TEXAS, et al., Defendants.

No. 4:10–CV–109–A.

United States District Court, N.D. Texas, Fort Worth Division.

Dec. 30, 2010.

J. Mark Perrin, Doug Perrin, The Perrin Law Firm, Dallas, TX, for Plaintiffs.Laetitia Coleman Brown, Luis E. Fierros, Fort Worth City Attorney's Office, Laura E. Copeland, Blaies & Hightower LLP, Fort Worth, TX, for Defendants.

MEMORANDUM OPINION and ORDER

JOHN McBRYDE, District Judge.

Now before the court for consideration are motions for summary judgment, filed in the above action by defendants, City of Fort Worth, Texas (“City”), Patrick Moore (“Moore”), and Texas Health Harris Methodist Hospital Fort Worth (“Texas Health”), as to all claims and causes of action brought against them by plaintiffs, Tommy Cox (“Tommy”) and Caitlin Cox (“Caitlin”). Also before the court is the motion to dismiss state law claims against Moore, filed by City. Having considered all of the parties' filings, the entire record in this case, and the applicable legal standards, the court concludes that the motions for summary judgment of City and Texas Health, and City's motion to dismiss, should be granted, and that Moore's motion for summary judgment should be granted in part and denied in part.

I.Nature of the Action

Plaintiffs initiated this action by the filing on January 25, 2010, of a petition in the state district court of Tarrant County, Texas. City removed the action to this court on February 17, 2010.¹ In the third amended complaint, plaintiffs bring claims against Moore for negligence and assault and battery, claims against Moore and City pursuant to 42 U.S.C. § 1983, claims under the Texas Tort Claims Act, and claims against Texas Health for negligent hiring, supervision, and retention, for negligent implementation and enforcement of hospital policies, and also on the grounds that Texas Health is vicariously liable for the actions of Moore.

II.The Motion to Dismiss and Motions for Summary Judgment

City seeks dismissal of the state law claims against Moore pursuant to the Texas Tort Claims Act, found in section 101.106(e) of the Texas Civil Practice and Remedies Code. City further seeks summary judgment as to all plaintiffs' claims and causes of action against it on the grounds that plaintiffs cannot succeed on their claims pursuant to § 1983 because they cannot demonstrate that City had a policy or custom that caused a deprivation of their constitutional rights; City's training policy is adequate; and plaintiffs' state law claims are barred by sovereign immunity.

Moore argues for summary judgment on the grounds that plaintiffs' claims pursuant to § 1983 are barred by limitations, that he is entitled to qualified immunity and/or official immunity, and that all state law claims against him should be dismissed by the granting of City's motion to dismiss.

Texas Health contends that the court should grant summary judgment because it is not vicariously liable for Moore's actions, as he was acting in his official capacity as a Fort Worth police officer at the time of the events in question; it is not liable under plaintiffs' negligent hiring, supervision, and retention claim because there is no evidence it did not exercise reasonable care when it hired Moore, and the hiring of Moore was not the proximate cause of plaintiffs' injuries; and it is not liable under plaintiffs' negligent implementation and enforcement claim because it owed no duty to plaintiffs with respect to implementation of its visitation policy, and that policy was not the proximate cause of plaintiffs' alleged injuries.

III.Undisputed and Disputed Facts

A. Undisputed Facts ²

Tommy is Caitlin's father. On January 27, 2008, Tommy's mother, Linda Gayle (“Gayle”), was taken to the emergency department at Texas Health. Caitlin was with her grandmother, and Tommy arrived shortly thereafter. Other family members arrived over a period of time until there were five visitors in Gayle's room. At some point, Caitlin's cousin, James Randal Stewart (“Stewart”), arrived at the hospital, and Caitlin proceeded to the entrance of the emergency department to show Stewart the way to Gayle's room.

Stewart and Caitlin passed by the security desk on their way to Gayle's room. Neither Stewart nor Caitlin identified themselves or otherwise checked in at the security desk. Texas Health security officer Michael Rivera (“Rivera”) asked Stewart to stop and identify himself before proceeding further into the emergency department. Stewart refused. The confrontation between Rivera and Stewart escalated into a physical altercation.

Caitlin left the scene of the altercation and returned to Gayle's room to inform the other family members of events transpiring with Stewart. Meanwhile, Moore, who was working as an off-duty private security officer for Texas Health that day, responded to a call about the altercation between Stewart and Rivera. When Moore arrived in the area of the altercation, a crowd had gathered as Rivera attempted to place Stewart under arrest, and Moore provided crowd control during this time. Moore was wearing his official City police uniform.

Tommy, Caitlin, and Tommy's sister, Paula, all returned to the area of the altercation, at which time Moore instructed Caitlin to leave. Caitlin then attempted to return to her grandmother's room.

B. Disputed Facts

What happened next is in dispute and forms the basis of plaintiffs' claims against the defendants. Although the facts are in dispute, the court will briefly summarize the parties' versions of events to provide context for the remainder of this memorandum opinion.

Plaintiffs' version: When Caitlin tried to return to her grandmother's room, Moore grabbed her by her hair, pulled her to the ground, and punched her in the face as she fell. Moore then grabbed Caitlin by her leg and began dragging her down the hall toward the emergency department entrance.³ Caitlin claims she never cursed or yelled at Moore or any hospital personnel, never made contact with or attempted to push past hospital personnel, did not touch Rivera, and generally did nothing to aggravate the situation. After Moore released Caitlin, hospital personnel directed she and Tommy to another room off the emergency department, where hospital staff tended to Caitlin.

Moore then burst through the door and began berating Caitlin. When Tommy questioned Moore about why he hit a minor, Moore, without provocation, hit Tommy in the chest, causing Tommy to drop a large cup of water. Moore then punched Tommy in the chest again, causing Tommy to go down to one knee. Moore then hit Tommy on the back of the head with his baton, and choked Tommy from behind with the baton. Tommy did nothing to provoke these actions.

Moore's version: When Caitlin attempted to return to Gayle's room, the charge nurse blocked her way; however, Caitlin pushed the nurse. Moore then grabbed Caitlin's shoulder, which caused her to fall. In an attempt to break the fall, Moore grabbed her hair. After hitting the ground, Caitlin began kicking Moore, so he grabbed her pant leg and started pulling her away from the crowd. An unidentified male then swung at Moore's hand but hit Caitlin's mouth instead. As Moore was attempting to explain to Tommy what had happened, Tommy threw a large cup of water on Moore. Tommy then advanced towards Moore with a raised fist and attempted to strike Moore. Moore gave Tommy three knee strikes to the left thigh; however, Tommy again attempted to strike Moore, whereupon Moore struck Tommy with his fist on the left side of Tommy's body. Moore then went behind Tommy and locked his arms around Tommy with his baton and pulled him back in an effort to restrain Tommy. Tommy then fell backwards and struck his head on a door frame.

IV.The Motion to Dismiss

City seeks dismissal of the state-law claims against Moore pursuant to the Texas Tort Claims Act, section 101.106(e) of the Texas Civil Practice and Remedies Code, which provides:

(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.

Tex. Civ. Prac. & Rem.Code § 101.106(e) (West 2005). City contends that because plaintiffs have alleged state law claims against both City and Moore, § 101.106(e) requires dismissal of those claims as to Moore.

In construing section 101.106, the Texas Supreme Court concluded that the purpose of revisions to that section

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 ....

Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 657 (Tex.2008) (internal citations and footnote omitted). The statute's purpose is clear: the plaintiff may sue the governmental entity or its employees for alleged conduct, but not both. Plaintiffs now attempt to avoid the effect of section 101.106(e) by contending their state law claims are brought against Moore solely in his personal or private capacity. Plaintiffs concede that to the extent their intentional tort claims are alleged against Moore as an employee of City, those claims should proceed against City only.

The court finds plaintiffs' post-hoc attempts to differentiate their tort claims between Moore and City to be too little, too late. If plaintiffs did not intend to seek recovery from City as to their tort claims, they failed to pay heed to the admonishment of the Texas Supreme Court in Garcia that:

[b]ecause the decision regarding whom to sue has irrevocable consequences, a plaintiff must proceed cautiously before filing suit and carefully consider whether to seek relief from the governmental unit or from the employee individually.

Id. Plaintiffs' belated contention that their state law claims apply only to Moore individually are...