Hutchison v. Brookshire Bros., Ltd.

• Decision Date: 23 May 2002
• Docket Number: Case No. 1:01-CV-539.
• Citation: Hutchison v. Brookshire Bros., Ltd., 205 F.Supp.2d 629 (E.D. Tex. 2002)
• Parties: Raymond Bernard HUTCHISON, v. BROOKSHIRE BROTHERS, LTD., The City of Dayton, Texas, Craig McGowen, Thaketcha Hill and Dennis Shelton.
• Court: U.S. District Court — Eastern District of Texas

Page 629

205 F.Supp.2d 629

Raymond Bernard HUTCHISON, v.BROOKSHIRE BROTHERS, LTD., TheCity of Dayton, Texas, Craig McGowen, Thaketcha Hill and Dennis Shelton.

Case No. 1:01-CV-539.

United States District Court, E.D. Texas, Beaumont Division.

May 23, 2002.

COPYRIGHT MATERIAL OMITTED

Grantham Harlan Coleman, Houston, TX, for plaintiff.

William S. Helfand, Norman Ray Giles, Magenheim, Bateman & Helfand, Houston, TX, for City of Dayton, Craig McGowen, Defendants.

David L. Allen, Joseph Martin McElroy, Zeleskey, Cornelius, Hallmark, Roper & Hicks, Lufkin, TX, for Thaketcha Hill, Dennis Shelton, Brookshire Brothers, Ltd., defendants.

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS, OR IN THE ALTERNATIVE, MOTION FOR A MORE DEFINITE STATEMENT

SCHELL, District Judge.

This matter is before the court on issues relating to a suit filed by plaintiff, Raymond Bernard Hutchison, on August 3, 2001 against Brookshire Brothers, Ltd., Dennis Shelton, Thaketcha Hill, the City of Dayton, Texas, the Dayton Police Department, Officer Craig "McGowen," and Conoco Incorporated, alleging multiple causes of action.On October 2, 2001, defendantsCity of Dayton and Craig McCown(correct spelling) filed "Defendants's, City of Dayton and Craig McCown, Motion to Dismiss for Failure to State a Claim, or in the Alternative, Motion for a More Definite Statement."(Dkt.# 9).On October 22, 2001, plaintiff filed "Plaintiff's Response to Defendants' City of Dayton, Texas and Craig McCownMotion to Dismiss for Failure to State a Claim, or in the Alternative, Motion for a More Definite Statement."(Dkt.# 19).On November 20, 2001, this court issued an order granting plaintiff's motion for nonsuit against Conoco, Inc.(Dkt.# 22).On February 2, 2002, plaintiff filed "Plaintiff's First Amended Original Complaint"(Dkt.# 29) against Brookshire Brothers, Ltd., Dennis Shelton, Thaketcha Hill, the City of Dayton, Texas, the Dayton Police Department, and officer Richard Craig McCown.On February 19, 2002, defendantsCity of Dayton, Texas, Dayton Police Department, and McCown ("defendants") filed "DefendantsCity of Dayton, Dayton Police Department and Craig McCown's Motion to Dismiss, or in the Alternative Motion for a More Definite Statement."(Dkt.# 31)On March 8, 2002, plaintiff filed "Plaintiff's Response to Defendants City of Dayton, Texas, Dayton Police Department and Richard Craig McCown's Motion to Dismiss, or in the Alternative, Motion for a More Definite Statement."(Dkt.# 33)

I.BACKGROUND

This action stems from events that took place on or about August 3, 1999.Plaintiff stopped at a Conoco Gas Station managed by Brookshire Brothers located in the City of Dayton, Texas.Plaintiff prepaid for $8.00 worth of gas and then allegedly asked Theketcha Hill, an employee of Brookshire Brothers, to set the pump to shut off after $8.00 was pumped.It is undisputed that plaintiff pumped more than $8.00 worth of gas.According to plaintiff, he manually set the pump handle to pump gas automatically and then attended to his vehicle.When plaintiff noticed the pump had not been turned off at $8.00, he shut off the pump and then asked Hill why she did not shut off the pump at $8.00 as he requested.According to plaintiff Hill indicated indifference, but insisted that plaintiff pay the additional $10.63 that was pumped.Plaintiff stated that he did not have the additional money, and Hill directed plaintiff to take the matter up with her manager.

It is undisputed that Dennis Shelton, manager of the Brookshire Brothers, reiterated Hill's position that plaintiff had to pay for the extra gas pumped.According to plaintiff, he then offered to leave his driver's license and several work tools as proof that he would return later and pay the remaining amount.Shelton refused and demanded immediate payment or else plaintiff and his vehicle would not be allowed to leave the premises.When plaintiff suggested Shelton retrieve the excess gas, Shelton refused and instead stated he would supply a water bucket and hose for plaintiff to use to siphon the gas from the vehicle.Plaintiff refused to do so.

At this point, Shelton allegedly called the Dayton Police Department.When police officer Richard Craig McCown arrived, plaintiff and Shelton told him what had happened.McCown allegedly insisted plaintiff be forced to siphon the gas from his vehicle using the hose and bucket supplied by Shelton.According to plaintiff, McCown agreed with Shelton that plaintiff had to suck and siphon at least $10.63 worth of gasoline from his vehicle or else "come go with him," as he adjusted his hand on his gun holster.Plaintiff's First Amended Original Complaint, ¶ 10.

Allegedly knowing that such an activity was dangerous to his health, but fearing jail or loss of life from McCown, plaintiff began to siphon the gas from his vehicle.As plaintiff sucked the gas from the vehicle with minimal success, McCown demanded plaintiff try harder.After a longer hose was brought to plaintiff, he proceeded to suck and siphon ten buckets of gas from his vehicle before he was allowed to stop.During this time, plaintiff says he was forced to inhale the gasoline fumes and swallow gasoline down his throat.In addition, passersby allegedly witnessed plaintiff's humiliation.

The process of siphoning the gas from his vehicle allegedly left plaintiff light headed and dizzy.In addition, plaintiff's eyes watered constantly, and his lips, mouth, tongue, and throat felt "as if they were being burned by fire."Plaintiff's First Amended Original Complaint, ¶ 13.Also, "plaintiff's stomach began to burn as if a million needles were being pressed against the inside of his stomach."Plaintiff's First Amended Original Complaint, ¶ 13.Plaintiff complained to Shelton and McCown about these symptoms but was forced to continue siphoning.

After plaintiff was permitted to leave the premises, he could only drive a short distance before he allegedly began to pass out.His symptoms intensified, and he began to vomit uncontrollably.At this point, plaintiff allegedly called a representative for Conoco, Inc., and told him he was going to the hospital.Plaintiff was told Conoco would have to investigate his claims.

Plaintiff allegedly drove himself to Memorial Hospital in Houston, Texas.The hospital called the Poison Control Center in Atlanta, Georgia, to get instructions on plaintiff's condition and treatment.After being treated, plaintiff left the hospital.After one hour, plaintiff allegedly "began to vomit repeatedly, suffered severe abdominal pain, hot and cold flashes, mouth dryness and intense burning sensation from efforts to urinate and belch."Plaintiff's First Amended Original Complaint, ¶ 16.Plaintiff returned to the hospital where he was treated again.

In his First Amended Complaint, plaintiff brings multiple causes of action.Count I alleges conspiracy to violate civil rights against each of the defendants.Each of the defendants conspired to violate plaintiff's constitutional rights to be free from illegal search and seizure, illegal arrest and detention, illegal abuse, coercion and intimidation, cruel and unusual punishment, and violation of civil rights under "Section 1983 of the United States Constitution."Plaintiff's First Amended Original Complaint, ¶ 18.Additionally, plaintiff alleges Shelton and McCown conspired to deprive plaintiff of his Fourteenth Amendment substantive due process rights.Plaintiff alleges Shelton was responsible for initiating the incident, and McCown under color of law added to the incident by "creating/heightening what became a clear and present danger."Plaintiff's First Amended Original Complaint, ¶ 18.

Count II alleges intentional infliction of physical and emotional distress against the defendants, jointly and severally.Plaintiff contends Shelton and McCown, willfully and maliciously, and with reckless disregard for plaintiff's rights and life, caused plaintiff to suffer physical and emotional distress.Plaintiff argues he is thus entitled to exemplary damages.

Count III alleges assault and battery against each defendant individually and severally.Plaintiff alleges he sustained medical bills and other expenses as a proximate result of defendants' use of force causing plaintiff to ingest gasoline.Plaintiff asserts his injuries have caused and will continue to cause great pain and suffering, both mental and physical, for which he is entitled to compensatory and exemplary damages.

Count IV alleges malicious abuse of process, official oppression, false arrest and false imprisonment against defendants.Plaintiff alleges defendants used the criminal process against plaintiff, and under color of law, officially oppressed plaintiff, falsely arrested and falsely imprisoned plaintiff.Plaintiff also alleges McCown engaged in official oppression against plaintiff under color of law.

Count V alleges respondeat superior against Brookshire Brothers as the employer of Shelton, and the City of Dayton and the Dayton Police Department as the employer of McCown.Plaintiff sues each defendant for actual and compensatory damages of not less than $5,000,000.In addition, plaintiff sues "for judgment against the individual defendants, Brookshire Brothers Super Market, Ltd., for exemplary damages not less than $50,000,000."Plaintiff's First Amended Original Complaint, ¶ 34.

II.MOTION TO DISMISS STANDARD

Rule 12(b)(6) provides that a party may move a court to dismiss an action for "failure to state a claim upon which relief can be granted."On motion under Rule 12(b)(6), the court must decide whether the facts alleged, if true, would entitle the plaintiff to some legal remedy.SeeConley v. Gibson,355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80(1957).Dismissal is proper only if there is either (1)"the lack of a cognizable legal theory" or (2)"the absence of sufficient facts alleged under a cognizable theory."Balistreri v....