Goldman v. Williams, Civil Action No. H–14–433.

CourtUnited States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
Writing for the CourtSIM LAKE, District Judge.
Citation101 F.Supp.3d 620
PartiesJean GOLDMAN, Plaintiff, v. Charles WILLIAMS, Brian Skero, and Montgomery County, Texas, Defendants.
Decision Date01 April 2015
Docket NumberCivil Action No. H–14–433.

101 F.Supp.3d 620

Jean GOLDMAN, Plaintiff,
v.

Charles WILLIAMS, Brian Skero, and Montgomery County, Texas, Defendants.

Civil Action No. H–14–433.

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

Signed March 31, 2015.
Filed April 1, 2015.


101 F.Supp.3d 626

D. Bradley Kizzia, Brown Fox Kizzia Johnson PLLC, Dallas, TX, for Plaintiff.

Seth Byron Dennis, Texas Attorney General, Austin, TX, Ramon G. Viada, III, Viada Strayer, The Woodlands, TX, Ronald Patrick Chin, Daniel Plake, Conroe, TX, for Defendants.

ORDER ADOPTING MAGISTRATE JUDGE'S MEMORANDUM AND RECOMMENDATION

SIM LAKE, District Judge.

Having reviewed the Magistrate Judge's Memorandum and Recommendation, the objections thereto, and the response to the objections, the court is of the opinion that said Memorandum and Recommendation should be adopted by this court.

It is, therefore, ORDERED that the Memorandum and Recommendation is hereby ADOPTED by this court.

MEMORANDUM AND RECOMMENDATION

NANCY K. JOHNSON, United States Magistrate Judge.

Pending before the court1 are Defendant Montgomery County's Motion to Dismiss Plaintiff's Second Amended Complaint for Lack of Subject Matter Jurisdiction and for Failure to State a Claim (Doc. 41); Defendant Brian Skero's (“Skero”) Motion for Summary Judgment (Doc. 48); Defendant Charles Williams' (“Williams”) Motion for Summary Judgment (Doc. 59); Defendant Williams' Supplemental Motion for Summary Judgment (Doc. 85); Defendant Skero's Supplement to Motion for Summary Judgment (Doc. 86).

The court has considered the motions, all of the briefs, the summary judgment evidence, and the applicable law. For the reasons set forth below, the court RECOMMENDS that Defendant Montgomery County's motion to dismiss be GRANTED, Defendant Skero's motions for summary judgment be GRANTED, Defendant Williams' motions for summary judgment be GRANTED IN PART AND DENIED IN PART.

I. Case Background

Plaintiff filed this civil rights action against a municipal police officer, a state trooper, and a county for violating Plaintiff's constitutional rights, also asserting various state law causes of action. The allegations arise out of Plaintiff's arrest for driving while intoxicated and her subsequent detention at the Montgomery County jail.

A. Factual Background

1. The Stop and Arrest Based on Summary Judgment Evidence2

On February 26, 2012, Plaintiff was traveling from Houston to on Interstate

101 F.Supp.3d 627

Highway 45 (“I–45”) in a black Toyota Prius.3 Jonathan Gammons (“Gammons”), who was also traveling northbound on I–45, called 911 to report that a black Toyota Prius with Plaintiff's license plate number was unable to maintain a lane.4 While on the call with Montgomery County 911, Gammons witnessed the Prius hit a construction barrier while in the left-hand lane and lose “quite a few body parts” but continued moving.5 Gammons reported that the Prius was “still swerving all over the road” and moved to the right-hand lane.6 Montgomery County 911 contacted Walker County 911 to report the Prius as the Prius and Gammons neared Walker County.7

Gammons reported to the Walker County 911 operator that the driver had “actually straightened up a little bit” but, before hitting the wall, had been “driving on the shoulder of the road for a couple miles at a high rate of speed.”8 Gammons also told the 911 operator that the driver of the Prius had forced “a couple of cars into different lanes.”9 As the 911 operator was wrapping up the conversation, he asked Gammons to call back if the driving got worse or anything changed.10 Gammons responded, “Well, it's actually starting to get worse. He almost bumped a car.”11 The 911 operator disconnected in order to broadcast the information for state troopers in the area but later called Gammons to find out his location.12 Gammons reported that a Willis police officer was pulling behind the Prius.13

The Willis police officer was Defendant Skero, who had been dispatched pursuant to the 911 call.14 As Defendant Skero pursued Plaintiff he observed her “drift across the white highway stripe onto the shoulder and then swerve back to the left.”15 Once he pulled in behind her, Plaintiff maintained her lane, except when she started to pull onto the shoulder but

101 F.Supp.3d 628

resumed driving in her lane to pass another car that had pulled onto the shoulder.16 Plaintiff then pulled onto the shoulder and stopped her car.17 Defendant Skero was driving directly behind Plaintiff for less than forty-five seconds.18 Defendant Skero radioed to report that he had caught up with the vehicle matching the description and requested back up because he had entered Walker County.19

Defendant Skero approached Plaintiff's car and asked Plaintiff to step out of the car with her license and insurance card.20 Plaintiff complied, limping slightly and holding on to the car as she walked toward the back of the car.21 Plaintiff denied hitting a wall and claimed that the damage to her car was old.22 As Plaintiff walked over to look at the damage to the driver's side of her car, Defendant Skero asked her to return to the rear of the car.23 Defendant Skero informed Plaintiff that a witness saw her hit a wall; Plaintiff said, “No.”24 When asked what was causing her to swerve, Plaintiff first said it was because she was sad and then said it was because she had a recent back surgery.25

Defendant Skero walked around Plaintiff's car and stopped in the grass near the front of the car.26 Plaintiff began walking toward Defendant Skero, who ordered her to stand at the rear of the car.27 Plaintiff returned to the rear portion of the car and leaned her right elbow against the car with her head in her right hand.28 She stayed in that position as she began speaking with

101 F.Supp.3d 629

Defendant Skero when he returned to question her.29 Defendant Skero asked Plaintiff if she was on any medication, and she indicated that she was not.30 When he asked if she had ingested any alcohol, Plaintiff leaned forward and blew at Defendant Skero before answering “No.”31 Plaintiff volunteered to take a drug test.32

While explaining that she was traveling from Houston where she had been staying with her mother to her home in Dallas, Plaintiff stepped awkwardly off the pavement into the grass.33 Defendant Skero said, “Stand over here so you don't fall down, okay?”34

After allowing Plaintiff to get her neck brace out of her car, Defendant Skero pointed to the ground next to the right rear tire and told Plaintiff, “Stay right here for me don't move okay, stay right here.”35 He returned to his patrol unit.36 Within a few seconds of his shutting the car door, Plaintiff moved to the rear of the car and leaned on the hatchback area.37 Less than thirty seconds later, Plaintiff opened the hatchback and began going through the items packed in there.38

Defendant Skero stepped out of his patrol unit, asking Plaintiff what she was doing.39 She replied that she was getting a coat, and Defendant Skero told her not to “be digging in [her] car.”40 Defendant Skero returned to his patrol unit, and, within a matter of a few seconds, Plaintiff walked toward the front of her car.41 Defendant Skero again told Plaintiff, “Ma'am you need to get to the back of your vehicle like I asked you to.”42

101 F.Supp.3d 630

While speaking on the radio, Defendant Skero described Plaintiff as “off.”43 He said that she would not “listen to a damn thing” he was saying.44 He reported that Plaintiff denied hitting the wall and that he had observed her “swerving everywhere.”45 Defendant Skero also indicated that he thought she might be taking “pills of some kind.”46

Defendant Skero returned and questioned Plaintiff about medications that were prescribed after her back surgery.47

Skero: [20:20] Okay, stand over here for me. Did you just have that surgery and stuff when?

Goldman: January 20.

Skero: January 20. They didn't prescribe you any medication or anything, pain pills or anything?

Goldman: Sure they did.

Skero: Okay. You told me they didn't. You told me you don't take them.

Goldman: I said I don't take them.

Skero: So they prescribed them, but you don't take them?

Goldman: That's right.

Skero: Okay so you haven't taken anything today? At all?

Goldman: Uh, about 8 o'clock this morning.

Skero: What did you take?

Goldman: I took a pain pill.

Skero: Okay, you just told me you don't take pain pills.

Goldman: [Inaudible 20:54] Are you going to arrest me. [Inaudible] I can't bear it—I can't—

Skero: Well what is it? You're telling me you don't take pain pills. Now you['re] telling m[e] you took one at 8 o'clock this morning.

Goldman: Well from 8 o'clock to 2 o'clock that's my regular—

Skero: But you just told me you don't take them.

Goldman: I take them in the morning, one. I take the one pill for pain, the thyroid, a[n] anti-depressant and, uh, an antibiotic.48

Defendant Skero instructed Plaintiff on the Horizontal Gaze Nystagmus (“HGN”) test, a sobriety field test that asks a suspect to follow the officer's finger with her eyes without moving her head.49 Plaintiff

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indicated that she understood the instructions but, according to the statements Defendant Skero made to Plaintiff at the time, was not following instructions.50

Defendant Skero threatened Plaintiff that, if she did not follow his instructions, his “only alternative [was] to take [her] to jail, take the dog to the pound ... and impound [Plaintiff's] car.”51 Plaintiff argued, “Look, I lost my mother, she's eighty-nine years old, she's dying. I am very ill. I have two stents in my heart. I have diabetes. I had surgery here last month. I have surgery in my lower back last month.”52 Plaintiff later stated that she told Defendant Skero that she was unable to complete the HGN test fully “solely” because of her recent back surgery.53

Defendant Williams, a state trooper, first became involved about 3:00 p.m. when he heard a call over the radio to locate the black Toyota Prius traveling northbound on I–45.54 Dispatch advised him that a 911 caller had reported that the...

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4 practice notes
  • Ortiz-Sornson v. McDonald, No. 16-cv-174
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • February 22, 2017
    ...Texas has not waived sovereign immunity for torts involving intentional infliction of emotional distress. Goldman v. Williams, 101 F. Supp. 3d 620, 654 (S.D. Tex. 2015) (Lake, J.) (citing Tex. Civ. Prac. & Rem. Code Ann. § 101.057). Therefore, because Plaintiff has pled discrimination and r......
  • Armour v. Davis, CIVIL ACTION NO. 6:18cv535
    • United States
    • United States District Courts. 5th Circuit. United States District Court of Eastern District Texas
    • June 1, 2020
    ...entity); Goldman v. Williams, civil action no. 4:14cv133, 2015 U.S. Dist. LEXIS 43705 (S.D. Tex., February 27, 2015), Report adopted at 101 F.Supp.3d 620 (S.D.Tex. 2015) (speculation that defendant must have had a policy or custom that violated the plaintiff's rights was not sufficient to s......
  • Lee v. Liberty Ins. Corp., Civil Action 3:19-CV-321-L
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Northern District of Texas
    • September 30, 2021
    ...does not prevent estoppel.” Id. (“[A]cceptance of the payment is not a necessary condition for estoppel.”); see also United Neurology, 101 F.Supp.3d at 620 (same). This is so because, as correctly noted by Liberty, when the insurer pays the full amount of an appraisal award, it “complie[s] ......
  • Nat'l Sec. Fire & Cas. Co. v. Hurst, NO. 14-15-00714-CV
    • United States
    • Court of Appeals of Texas
    • May 23, 2017
    ...contract claim"). Accordingly, we conclude acceptance of the payment is not a necessary condition for estoppel. See United Neurology , 101 F.Supp.3d at 620 (rejecting insured's argument that breach of contract claim was not estopped because it did not accept the payment of the appraisal awa......
4 cases
  • Ortiz-Sornson v. McDonald, No. 16-cv-174
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • February 22, 2017
    ...Texas has not waived sovereign immunity for torts involving intentional infliction of emotional distress. Goldman v. Williams, 101 F. Supp. 3d 620, 654 (S.D. Tex. 2015) (Lake, J.) (citing Tex. Civ. Prac. & Rem. Code Ann. § 101.057). Therefore, because Plaintiff has pled discrimination and r......
  • Armour v. Davis, CIVIL ACTION NO. 6:18cv535
    • United States
    • United States District Courts. 5th Circuit. United States District Court of Eastern District Texas
    • June 1, 2020
    ...entity); Goldman v. Williams, civil action no. 4:14cv133, 2015 U.S. Dist. LEXIS 43705 (S.D. Tex., February 27, 2015), Report adopted at 101 F.Supp.3d 620 (S.D.Tex. 2015) (speculation that defendant must have had a policy or custom that violated the plaintiff's rights was not sufficient to s......
  • Lee v. Liberty Ins. Corp., Civil Action 3:19-CV-321-L
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Northern District of Texas
    • September 30, 2021
    ...does not prevent estoppel.” Id. (“[A]cceptance of the payment is not a necessary condition for estoppel.”); see also United Neurology, 101 F.Supp.3d at 620 (same). This is so because, as correctly noted by Liberty, when the insurer pays the full amount of an appraisal award, it “complie[s] ......
  • Nat'l Sec. Fire & Cas. Co. v. Hurst, NO. 14-15-00714-CV
    • United States
    • Court of Appeals of Texas
    • May 23, 2017
    ...contract claim"). Accordingly, we conclude acceptance of the payment is not a necessary condition for estoppel. See United Neurology , 101 F.Supp.3d at 620 (rejecting insured's argument that breach of contract claim was not estopped because it did not accept the payment of the appraisal awa......

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