Labarbara v. Angel, CIV. A. 9:99-CV-94.

Decision Date01 March 2000
Docket NumberNo. CIV. A. 9:99-CV-94.,CIV. A. 9:99-CV-94.
Citation95 F.Supp.2d 656
PartiesDorothy LaBARBERA; Dr. Phillip LaBarbera; and the Estate of Brian LaBarbera v. Dan ANGEL, in His Official Capacity as President of SFASU; Pete Winder of Winder's Sales and Services; Baker Pattillo, Vice President, SFASU; John Pearce; Steve Cooper; Eric Newell, Nacogdoches P.D.; Diana Boubel, Purchasing Director SFASU; Jim Rader, House Cleaning, SFASU; William Lujan, Nacogdoches P.D.; Larry W. Bailey, Assistant Director Purchasing, SFASU; and Evie LeBlanc Jones, Central Stores, SFASU
CourtU.S. District Court — Eastern District of Texas

Jeralyn Lee (Jackee) Cox, Nacogdoches, TX, for Plaintiff.

Robert Brian O'Keefe, Attorney General's Office, General Litigation Division, Austin, TX, for Defendant SFASU.

Claydon Edward Dark, Jr., Lufkin, TX, for Defendants Winder.

MEMORANDUM OPINION

COBB, District Judge.

Before this Court are the Defendants' Motions to Dismiss for Failure to state a claim. For the reasons stated below, this Court grants defendants' motions and dismisses the case pursuant to Fed. Rule Civ. P.12(b)(6).

Besides John Pearce and Winder's Inc., the defendants fall into two main groups: the University Defendants (which includes Baker Patillo, Diana Boubel, Larry Bailey, and Evie Jones) and the Police Defendants (including Pete Winder, Steve Cooper, Eric Newell and William Lujan). The defendants are sued in their individual capacities only except for Dan Angel and Robert Smith who are sued in their official capacities as president of Stephen F. Austin State University.(SFASU).1

I. BACKGROUND

On May 4, 1997, John Pearce and his wife were involved in an accident with plaintiffs' son Brian LaBarbera. Brian LaBarbera was riding a motorcycle when he collided with Pearce's car and died as a result of the injuries he sustained. John Pearce was the head football coach at SFASU. Plaintiffs allege the Nacogdoches Police officers engaged in a cover-up to protect Pearce and blame Brian LaBarbera for the accident. Plaintiffs also allege that SFASU officials were engaged in an ongoing scheme to bribe Pete Winder, Captain of the Patrol Division of the Nacogdoches Police Department, in order to secure corrupt influence over the Police Department. The cover-up was a direct result of this influence. Specifically, plaintiffs allege that SFASU illegally awarded Winder's company, Winder's Sales and Services, a contract to provide cleaning supplies to SFASU and then increased the payments under the contract after the accident.

A. The Bid Process

Patillo, Rader and Boubel allegedly conspired to prepare bid specifications which only Winder and Winder's Inc. could meet. This was allegedly done with the intent to provide Patillo and SFASU corrupt influence over the Nacogdoches Police Department. (Second Amended complaint, p. 12) Rader and Boubel prepared the "Request for Proposal" (RFP) which had stringent requirements allegedly designed to favor a Nacogdoches vendor. Those requirements included one day deadlines for the delivery or repair and replacement and on-site training for SFASU employees. (Second Amended Complaint, p. 14). This was done without a written justification for the restrictive provisions as required by § 2155.067 TEX. GOV'T CODE (Vernon 1994). Winder's bid was fixed and accepted after the stated deadline. Boubel then prepared a bid analysis which rejected the other bids because they used substandard cleaners despite the fact that Winder's bid used similar cleaners.

B. The Accident and Cover Up of Evidence

Cooper and Newell were the officers who first arrived at the scene of the accident. Cooper put Newell (a rookie cop) in charge of the investigation. Plaintiffs allege they recklessly failed to preserve relevant evidence at the scene by not interviewing certain witnesses and failing to record relevant physical evidence. They then rode with the ambulance to Nacogdoches Medical Center Hospital.

At the hospital, Patillo met with Dr. Donald Cagle (Pearce's personal physician) and Police officers Cooper and Newell. Plaintiffs allege it was agreed and understood that Cooper and Newell "would protect the interests of Coach Pearce and his wife, Jamie Pearce, with regard to evidence as to their culpability for the accident." (Second Amended Complaint, p. 17). Dr. Cagle then cancelled Mrs. Pearce's blood-alcohol tests in violation of emergency room protocols and Police Department policy. Plaintiffs allege that it was then agreed between Cooper, Newell Patillo and Pearce, that a false accident report would be filed. That evening Cooper and Newell made statements to the press indicating that Brian LaBarbera was at fault. Newell then prepared an accident report indicating Brian LaBarbera was at fault and that Pearce took evasive action.

C. Subsequent Payments to Winder and Continued Cover Up

The day after the accident, Winder was granted substantial increases under the SFASU contract for house cleaning supplies. Boubel, Rader, and Patillo issued two purchase orders which substantially increased the value of the contract. Between April 24, 1997 (the date the contract was awarded) and August 22, 1997 the contract was amended at least four times.2 Plaintiffs further allege that on two occasions (September 12, 1997 and August 14, 1998) Bailey, at the direction and control of Patillo, Rader, and Boubel, renewed and extended the purchase order. On October 18, 1998, Bailey also entered a change order which retroactively increased the authorized dollar value of purchases for the fiscal year ending in August, 1998. On May 18, 1998, Jones, acting under the direction of Patillo and Rader, authorized the renewal and extension of the standing purchase order for the 1999 fiscal year. Jones also supervised Bailey.

Captain Winder took control of the investigation the day after the accident. He then allegedly caused a second accident report to be prepared in which a witness stated LaBarbera was speeding despite the fact that the witness had not yet been interviewed. He is also alleged to have allowed evidence to be destroyed by not preserving physical evidence such as skid marks, and not investigating medical records and traffic light sequencing.

Plaintiffs further allege Cooper, Newell, and William Lujan (Assistant Chief of Police) refused to accept potentially exculpatory evidence from Mrs. LaBarbera and other sources. These alleged acts hindered a subsequent investigation by the Texas Department of Public Safety as well as a private investigation. From this the plaintiffs conclude that "Cooper and Newell `made up' the part of the accident report suggesting Pearce took evasive action, and included other information that was not obtained from anyone who actually witnessed the accident," and that Winder and Lujan collaborated in the preservation of this fiction. (Plaintiff's Qualified Immunity Response, p. 4).

Plaintiffs assert three claims. First, they seek civil damages under the Racketeer Influenced and Corrupt Organization Act (RICO) 18 U.S.C. § 1961 et seq., specifically, 18 U.S.C. § 1964(c) (1984 Supp.). They also assert a cause of action under 42 U.S.C. § 1983 claiming the Police and University Defendants violated their constitutional rights and engaged in a conspiracy to do so. Finally, plaintiffs assert a claim for intentional infliction of emotional distress. Defendants from the police department moved for dismissal under Rule 12(b)(6) and asserted qualified immunity as a defense. Later, the University Defendants moved for dismissal under the same rule.

II. STANDARD FOR DISMISSAL
A. Rule 12(b)(6)

Federal Rule of Civil Procedure 12(b)(6) authorizes dismissal of a complaint for "failure to state a claim upon which relief can be granted." A Motion to dismiss under Rule 12(b)(6), tests only the formal sufficiency of the statements of the claims for relief. In ruling on a 12(b)(6) motion, the court must take all of the plaintiffs' allegations as true, view them in a light most favorable to them, and draw all inferences in their favor. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). A motion under Rule 12(b)(6) should be granted only if it appears beyond doubt that the plaintiff could prove no set of facts in support of her claim that would entitle her to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Leffall v. Dallas Indep. Sch. Dist., 28 F.3d 521, 524 (5th Cir.1994) (citations omitted); see also Kaiser Aluminum & Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1050 (5th Cir.1982) (citing 5A CHARLES ALAN WRIGHT & ARTHUR MILLER, FEDERAL PRACTICE AND PROCEDURE § 1357 at 598 (1969), for the proposition that "the motion to dismiss for failure to state a claim is viewed with disfavor and is rarely granted."), cert. denied, 459 U.S. 1105, 103 S.Ct. 729, 74 L.Ed.2d 953 (1983).

B. Qualified Immunity

At this stage, the court must also consider the issue of qualified immunity since it is immunity from suit not just from liability. Foster v. City of Lake Jackson, 28 F.3d 425, 428 (5th Cir.1994). The Fifth Circuit has recently discussed the requirements for assessing a qualified immunity claim. See Brown v. Nationsbank Corp., 188 F.3d 579, 587 (5th Cir.1999). The district court must determine "whether (1) the plaintiffs have asserted a constitutional or statutory violation; (2) the law regarding the alleged violation was clearly established at the time of the operative events; and (3) the record shows that the violation occurred, or at least gives rise to a `genuine issue of material fact as to whether the defendant actually engaged in the conduct that violated the clearly-established law.'" Id. citing Kerr v. Lyford, 171 F.3d 330, 338 (5th Cir.1999). If the official's conduct violated a clearly established law, the inquiry then becomes whether that conduct was reasonable. Brown, 188 F.3d at 579; Wren v. Towe, 130 F.3d 1154, 1159 (5th Cir.1997). Under Wre...

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