Harvey v. Montgomery Cnty., Civ. No. 11–CV–1815.

• Decision Date: 30 April 2012
• Docket Number: Civ. No. 11–CV–1815.
• Citation: 881 F.Supp.2d 785
• Parties: Richard W. HARVEY, Sr., Plaintiff, v. MONTGOMERY COUNTY, TEXAS, Brett Ligon, Tommy Gage, Jonathan Dewey, and Steven Ortiz, Defendants.
• Court: U.S. District Court — Southern District of Texas

881 F.Supp.2d 785

Richard W. HARVEY, Sr., Plaintiff,

v.MONTGOMERY COUNTY, TEXAS, Brett Ligon, Tommy Gage, Jonathan Dewey, and Steven Ortiz, Defendants.

Civ. No. 11–CV–1815.

United States District Court,

S.D. Texas,

Houston Division.

April 30, 2012.

Richard W. Harvey, Sr., The Woodlands, TX, pro se.

Rayborn C. Johnson, Jr., Conroe, TX, for Defendants.

MEMORANDUM AND ORDER

KEITH P. ELLISON, District Judge.

Before the Court is Defendants' Motion to Dismiss First Amended Complaint Pursuant to Fed.R.Civ.P. 12(b)(1) and (6) and Brief in Support, and Montgomery County, Texas's Motion to Dismiss Brett Ligon, Tommy Gage, Jonathan Dewey and Steven Ortiz Pursuant to Tex. Civ. Prac. & Rem.Code § 101.105 and Brief in Support and, Alternatively, Motion for More Definite Statement (“Motion”). (Doc. No. 34.) After considering the Motion, all responses and replies thereto, and the applicable law, the Court concludes that the Motion should be GRANTED in part and DENIED in part.

I. FACTS

Richard W. Harvey (“Harvey” or “Plaintiff”) filed this lawsuit pursuant to 42 U.S.C. §§ 1983 and 1988, and the First, Fourth, and Fourteenth Amendments to the United States Constitution, against Montgomery County, Texas (“County”), Montgomery County District Attorney Brett Ligon (“Ligon”), Montgomery County Sheriff Tommy Gage (“Sheriff Gage”), Montgomery County Deputy Sheriff Jonathan Dewey (“Deputy Dewey”), and Montgomery County Deputy Sheriff Steven Ortiz (“Deputy Ortiz”) (collectively, “Defendants”). Plaintiff proceeds pro se. Defendants filed a Motion to Dismiss, which the Court granted in part and denied in part, permitting Plaintiff leave to amend. (Doc. No. 28.) Plaintiff then filed his First Amended Original Complaint (“Amended Complaint”). (Doc. No. 33.) Soon thereafter, Defendants filed this Motion. (Doc. No. 34.)

For the purposes of this Memorandum and Order only, the Court considers the well-pleaded factual allegations in the Amended Complaint to be true. At approximately 3:30 a.m. on May 16, 2009, Plaintiff's 38–year–old son made a 9–1–1 call on Plaintiff's cordless extension telephone from the home of Plaintiff's neighbor. (Am. Compl. ¶¶ 8, 11.) In the phone call, Plaintiff's son requested police help on behalf of the neighbor. ( Id.) From the phone call, the 9–1–1 operator clearly understood that the problem was minor in nature and was not at Plaintiff's house. ( Id. ¶ 10.) After Plaintiff's son hung up, the 9–1–1 operator tried to call back to get the correct address. ( Id.) Because Plaintiff's son had already departed from the neighbor's house and had left the phone behind him, the operator reached Plaintiff's voicemail. ( Id. ¶ 13.)

Deputy Dewey and Deputy Ortiz were dispatched to Plaintiff's address to resolve the issues complained of in the 9–1–1 phone call. ( Id. ¶ 15.) When the Deputies arrived at Plaintiff's home, they saw a male approach Plaintiff's front gate, unlock it, and enter the yard, closing the gate behind him. ( Id. ¶ 17.) Rather than speak to the male, the Deputies opened the gate and entered the yard without permission. ( Id. ¶ 18, 21.) The Deputies then began to covertly surveil Plaintiff and his wife by attempting to listen to their conversation and looking through the windows of the home. ( Id. ¶ 23.) When Plaintiff noticed the Deputies, he stepped outside onto his front porch, advised them that he was the homeowner, and ordered them to leave. ( Id. ¶ 25.) The Deputies refused to withdraw from the property, and Plaintiff told them that he was going into his house to call the Sheriff to complain. ( Id.)

As Plaintiff turned his back and proceeded into his home to get a telephone, the Deputies physically attacked him. ( Id. ¶¶ 25, 28.) Specifically, the Deputies threw Plaintiff through the air onto the ground, leaving Plaintiff stunned, in pain, and bleeding. ( Id. ¶¶ 30–31.) Deputy Dewey, who weighs in excess of 300 pounds, did a “belly flop” on top of Plaintiff. ( Id.) With Deputy Dewey's body on top of him, Plaintiff could not breathe and felt like he was having a heart attack. ( Id. ¶ 32.) When Plaintiff informed Deputy Dewey that he was having heart pain, the Deputy told Plaintiff that he would call for medical help and got up off of Plaintiff. ( Id.) Deputy Dewey continued to exert pressure on Plaintiff's neck, however, and Deputy Ortiz grabbed Plaintiff's right arm, forcing it behind Plaintiff's back. ( Id. ¶ 33.) As Plaintiff had a preexisting shoulder injury, Deputy Ortiz's action caused Plaintiff excruciating pain, and Plaintiff started to scream. ( Id. ¶¶ 33–34.) Deputy Ortiz then placed Plaintiff in handcuffs, forcing him to remain in that painful position for over an hour. ( Id. ¶ 35.) The Deputies ignored Plaintiff's wife when she tried to explain that Plaintiff had previously had shoulder surgery. ( Id. ¶ 40.)

Emergency Medical Technicians (“EMTs”) arrived on the scene and at first promised to take Plaintiff to the hospital. ( Id. ¶ 44.) However, the main EMT interpreted Plaintiff's screaming and thrashing to mean that Plaintiff was somehow dangerous and refused to transport him to the hospital. ( Id.) The EMTs did not recognize that Plaintiff was in such severe pain that he could not comply with their requests, and instead perceived his actions as a willful affront to their authority. ( Id. ¶ 55.) When Plaintiff's wife attempted to take a photograph of the scene, an EMT told her, “[T]here better not be a picture of me and that camera,” and warned, “[Y]ou had better not take any more pictures.” ( Id. ¶ 46.) After the EMTs departed, the Deputies waited as long as 15 minutes before taking Plaintiff to the hospital. ( Id. ¶ 59.) However, the Deputies stopped at every red light and stop sign on the way to the hospital, refusing to turn on the police lights. ( Id.)

Shortly after the incident, Plaintiff called the Sheriff's Department to complain about the Deputies' wrongful actions. ( Id. ¶ 70.) Plaintiff received a telephone call from a sergeant, who threatened Plaintiff by telling him he would be charged with a crime if he made a formal complaint against the Deputies. ( Id. ¶ 72.) When Plaintiff contacted the Internal Affairs Division to describe the incident, Plaintiff was told that he should carefully consider whether to make a complaint because he would be charged with felony perjury if the complaint was false. ( Id. ¶ 73.) Similarly, Sergeant Henrici told Plaintiff that if he were making false allegations, he would probably go to jail. ( Id. ¶ 76.) Although Sergeant Henrici went to Plaintiff's home to investigate the incident, he was not impartial. ( Id. ¶ 82.) Sergeant Henrici did not find evidence of a forced entry even though the gate's strike plate had numerous scratches; explained that the Deputies did not want Plaintiff's wife to take photographs of the incident because the pictures might discredit the Department; and concluded that a polygraph examination of Plaintiff and the Deputies would cost the Department and Montgomery County taxpayers too much money. ( Id. ¶ 83.) When Plaintiff eventually secured a meeting with Sheriff Gage, the Sheriff stated that he would not require the Deputies to submit to a polygraph examination. ( Id. ¶ 99.) In April 2011, Plaintiff received a letter on Sheriff Gage's letterhead stating: “The allegation along with several policy violations were presented in this investigation. A review of all the information by Chief Deputy W.R. McDaniel was conducted. Chief Deputy McDaniel concluded from that review that the case have a disposition of ‘exonerated.’ ” ( Id. ¶ 103.)

Plaintiff attempted to contact Ligon directly to make him aware of what had happened and to convince him to begin his own investigation. ( Id. ¶ 78.) Ligon personally returned Plaintiff's phone call when Plaintiff was not at home, leaving a message on Plaintiff's answering machine. ( Id. ¶ 79.) Plaintiff tried to contact Ligon several times again by phone and by fax, but did not receive another reply. ( Id. ¶¶ 80–81.) However, a full 41 days after the incident, Ligon filed a criminal complaint and arrest warrant charging Plaintiff with one count of Misdemeanor Evading Detention. ( Id. ¶ 86.) Around this time, Plaintiff was able to arrange an in-person meeting with Ligon. ( Id. ¶ 89.) At the meeting, Ligon was condescending and personally insulting to Plaintiff. ( Id. ¶ 89.) Ligon informed Plaintiff that the criminal complaint had been filed because Plaintiff was making trouble for the Sheriff's Department and because Ligon personally did not like Plaintiff. ( Id. ¶ 91.) Plaintiff agreed at the meeting to surrender; at that point, Ligon told a peace officer present to call the jail to tell them “not to beat” Plaintiff. ( Id. ¶ 92.) Plaintiff ended up incurring $10,000 in criminal defense fees before the charges against him were dismissed. ( Id. ¶ 94.)

According to Plaintiff, illegal search, illegal seizure, excessive and deadly force, and fraudulent prosecution are the standard operating procedures for the Montgomery County Sheriff's Department. ( Id. ¶ 106.) For example, in 2009, a Montgomery County citizen was tazed while he was pushing his broken motorcycle home. ( Id. ¶ 107.) The victim filed an Internal Affairs Complaint, but the Deputy was exonerated. ( Id.) Also in 2009, Montgomery County Deputies fatally tazed a mentally ill man. ( Id. ¶ 109.) A Deputy was exonerated in 2010 for shooting an innocent man to death. ( Id. ¶ 112.) Deputies arrested a homeowner in 2006 when he refused to let them search his home, the site of a Superbowl party, without a warrant. ( Id. ¶ 113.)

The Deputies' actions have had lasting health consequences for Plaintiff. In December 2010, Plaintiff underwent major abdominal surgery to repair the damage caused by the Deputies. ( Id. ¶ 96.) The surgery was unsuccessful, however. ( Id.) Plaintiff was informed by his physician that he would need to have yet another surgery: namely, reconstructive surgery on his abdominal wall. ( Id. ¶ ¶ 98–99.)...