Jones v. Lopez
| Citation | 262 F.Supp.2d 701 |
| Decision Date | 31 August 2001 |
| Docket Number | No. CIV.A.SA-00-CA1123FB.,CIV.A.SA-00-CA1123FB. |
| Parties | Calvin JONES, Plaintiff, v. Ralph LOPEZ and Chauncey Spencer, Defendants. |
| Court | U.S. District Court — Western District of Texas |
Allen F. Cazier, Attorney at Law, Barry Snell, Bayne, Snell & Krause, David C. "Clay" Snell, Bayne, Snell & Krause, San Antonio, for Calvin Jones, plaintiff.
Leslie J.A. Sachanowicz, Bexar County District Attorney, Civil Section, San Antonio, for Ralph Lopez, Chauncey Spencer, defendants.
ORDER CONCERNING PENDING MOTIONS
Before the Court are the following motions: (1) Motion to Join in Notice of Removal; (2) Motion to Dismiss/Motion for Summary Judgment; (3) Motion for Protective Order; (4) Supplemental Motion to Dismiss and/or Motion for Summary Judgment; (5) Motion for Leave to File Plaintiffs First Amended Complaint; (6) Motion to Compel and/or Motion for Leave, and (7) Plaintiffs Unopposed Motion to Supplement the Summary Judgment Record. After thorough consideration of the pleadings and authorities, the Court makes the following rulings.
In this motion, defendant Chauncey Spencer seeks to join in the Notice of Removal filed by the defendant Ralph Lopez to remove this action to this Court. No opposition to the motion has been received. Accordingly, IT IS HEREBY ORDERED that the Motion to Join in Notice of Removal (docket #2) is GRANTED.
Because the defendants have filed a motion for summary judgment in which they raise the defenses of sovereign immunity and qualified immunity, plaintiff believes it necessary to supplement the summary judgment proof to include certified copies of the order which initially sentenced plaintiff to jail for 30 days and the order signed by Judge Littlejohn which released plaintiff after 9 months of confinement. Defendants have no opposition to the supplement. Accordingly, IT IS HEREBY ORDERED that Plaintiffs Unopposed Motion to Supplement the Summary Judgment Record (docket # 23) is GRANTED, and these documents will be made a part of the record in this case.
Although plaintiff believes his original petition filed in state court is sufficient to overcome defendants' later assertion of qualified immunity, out of an abundance of caution, plaintiff seeks leave to file his first amended complaint which he contends addresses the concerns raised in defendants' motion for summary judgment. Plaintiff points out that defendants oppose the motion for leave to amend even though they specifically requested in their motion for protective order that plaintiff be required to plead his cause of action with more specificity, and defendants amended their pleading without first conferring with plaintiffs counsel or seeking leave of court as required by Federal Rule of Civil Procedure 15(a). In response, defendants contend this Court can conclude the proposed amendment would be futile on the grounds that "119 days have passed since the filing of Defendant's [sic] motion to dismiss; Plaintiffs amended complaint is almost identical to the original complaint with the exception of paragraph 10; Plaintiff still fails to identify any acts or facts of personal involvement by Defendants Lopez and Spencer; and the causes of action are identical."
Ordinarily in a section 1983 action, a plaintiff is required to identify acts or facts of personal involvement in order to hold a sheriff or deputy personally liable. However, in this case, plaintiff is seeking to hold both defendants personally liable based on the breach of a statutorily imposed non-delegable duty and have presented case law in support of this assertion. Because FED. R. CIV. P. 15(a) provides that leave to amend should be "freely given when justice so requires," the Court finds the motion should be granted. Accordingly, IT IS HEREBY ORDERED that Plaintiffs Motion for Leave to File Plaintiffs First Amended Complaint (docket #17) is GRANTED and the Clerk is ordered to file Plaintiffs First Amended Complaint attached to the motion as Exhibit A. Having granted leave to file the amended complaint, the Court will consider the remainder of the pending motions based on this amended pleading.
In this pleading, defendants contend plaintiffs complaint should be dismissed for failure to state a claim upon which relief can be granted pursuant to rule 12(b)(6) of the Federal Rules of Civil Procedure because there is no genuine issue of material fact, and defendants are entitled to a judgment that plaintiff take nothing by his action as a matter of law. In support of this request, defendants reference the fact plaintiff filed his original petition with the Bexar County District Court.
In the section of this motion following the heading "Motion for Summary Judgment," defendants discuss the two avenues open to the plaintiff for establishing liability against a city, county, or local governmental entity. Because plaintiff failed to provide evidence of any illegal existing policy or custom, defendants ask that all claims against them be dismissed. Defendants also assert that sovereign immunity bars plaintiffs negligence and intentional tort claims, and Texas does not recognize a common law cause of action for violation of the Texas Constitution.
Defendants also assert that because plaintiff failed to allege any custom, policy, or practice, defendants assume plaintiff is seeking to hold Bexar County liable under the theory of respondeat superior or vicarious liability. However, in order for a supervisory official to be held liable, plaintiff must establish either that the supervisory official was personally involved in the acts causing the deprivation of constitutional rights or that a causal connection exists between an act of the official and the alleged constitutional violation. Defendants maintain the plaintiff has failed to establish the defendants were personally or directly involved in any acts that allegedly caused the deprivation of plaintiffs constitutional rights or that a causal connection exists between any act of the defendants and any alleged constitutional violation. In the alternative, defendants include a motion for more definite statement complaining the plaintiffs complaint is so vague and ambiguous that defendants cannot be reasonably required to frame a responsive pleading, and plaintiff has failed to fully describe the exact extent or existence of any alleged injury to plaintiff or what damages he suffered.
In response, plaintiff contends defendants' arguments concerning his failure to establish liability against the county have no merit because plaintiff is not suing the county but has sued two individuals, the Bexar County Sheriff and the former Bexar County Jail Administrator for violating duties statutorily imposed upon them. Plaintiff contends the defendants violated their duties by allowing him to remain in jail nine months beyond the 30-day maximum imposed by Judge Littlejohn. Consequently, plaintiff claims the defendants are liable for false imprisonment for failing to ascertain the authority upon which he was being held and that is why plaintiff has chosen to sue the defendants individually and not Bexar County. Likewise, because plaintiff has not brought this case against the sovereign, defendants' contention plaintiffs claims for negligence and intentional torts are barred by sovereign immunity also fail as does the argument that Bexar County cannot be held liable under a respondant superior or vicarious liability theory.
Plaintiff argues that although he is not holding Bexar County liable under a respondeat superior or vicarious liability theory, he is seeking to hold the named defendants liable for the acts of their subordinates. Both parties agree that in order for a supervisory official to be held liable in this case, the plaintiff must establish that a causal connection exists between an act of the official and the alleged constitutional violation. As set forth in Lozano v. Smith 718 F.2d 756, 768 (5th Cir.1983), cited by both parties, a "causal connection may be established, for section 1983 purposes, where the constitutional deprivation and practices occur as a result of the implementation of the sheriffs affirmative wrongful policies by his subordinates, or where the sheriff wrongfully breaches an affirmative duty specially imposed upon him by state law, and as a result thereof, the complained of constitutional tort occurs." Defendants maintain plaintiff has failed to establish and has failed to plead any facts which indicate defendants were personally or directly involved in any acts that allegedly caused the deprivation of plaintiffs constitutional rights. Defendants further argue plaintiff has not made a claim that the alleged incident resulted from the implementation of any affirmative wrongful policies or customs of Bexar County or was caused by a breach of an affirmative statutory duty. Defendants complain plaintiff has not pleaded any facts showing the existence of a causal connection between any acts of the defendants and any alleged constitutional violation. Plaintiff maintains he has alleged a breach of a specific affirmative statutory duty. Moreover, plaintiff argues defendants' motion to dismiss for failure to state a claim pursuant to rule 12(b)(6) is untimely because it was filed after defendants filed their answer.1
Motion to Dismiss Pursuant to FED. R. CIV. P. 12(b)(6)
In Plaintiffs Reply to Defendants' Response to Plaintiffs Reply to Defendants' Motion to Dismiss (docket # 7), plaintiff argues that to the extent defendants' motion is considered to be a motion to dismiss pursuant to rule 12(b)(6), it should be dismissed as untimely because it was filed...
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