Russell v. City of Houston

• Citation: 808 F.Supp.2d 969
• Decision Date: 25 April 2011
• Docket Number: Civil Action No. H–10–3205.
• Parties: Barbara RUSSELL, Plaintiff, v. CITY OF HOUSTON and James A. Rodriguez, Defendants.
• Court: U.S. District Court — Southern District of Texas

808 F.Supp.2d 969

Barbara RUSSELL, Plaintiff,

v.CITY OF HOUSTON and James A. Rodriguez, Defendants.

Civil Action No. H–10–3205.

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

April 25, 2011.

Cletus P. Ernster, III, Washington and Ernster, Houston, TX, for Plaintiff.

Robert Louis Cambrice, Houston, TX, for Defendants.

James A. Rodriguez, Channelview, TX, pro se.

MEMORANDUM AND ORDER

EWING WERLEIN, JR., District Judge.

Pending is Defendant City of Houston's Motion to Dismiss (Document No. 7). After carefully considering the motion, response, and the applicable law, the Court concludes that the motion should be denied.

I. Background

In September 2008, Plaintiff Barbara Jordan was involved in a traffic accident after leaving a Houston area pub around midnight. Upon arrival, a Houston Police Department (“HPD”) officer conducted a routine records check and discovered that Plaintiff had an outstanding warrant for an unpaid traffic ticket.¹ The officer placed Plaintiff under arrest, handcuffing her hands in front of her before handing her off to another officer, Defendant James A. Rodriguez, who transported her to jail in the back of his squad car. ² On the way to the jail, Rodriguez stopped the car in a secluded area that was not well lighted, stating that he had to cuff Plaintiff's hands behind her back prior to arrival.³ He pulled her out of the car by the handcuffs and sexually assaulted her.⁴ He re-cuffed her arms behind her back, placed her back in the car, and told her not to tell anyone because no one would believe her.⁵

Upon arrival at the jail, Plaintiff reported the assault and was taken to a hospital for examination.⁶ She lodged a complaint with the HPD, which, upon investigation, fired Rodriguez.⁷ He was prosecuted and on September 16, 2010, the trial court found him guilty and further found that a deadly weapon had been exhibited during the crime; Rodriguez was sentenced to five years in jail.⁸

Just prior to Rodriguez's sentencing, Plaintiff filed this suit against Rodriguez and the City of Houston (the “City,” and collectively, “Defendants”). She brings claims under section 1983 against both Defendants; intentional tort claims against Rodriguez; and negligence claims against the City under the Texas Tort Claims Act, Tex. Civ. Prac. & Rem.Code § 101.001 et seq. (“Tort Claims Act”).⁹ The City has moved for dismissal of the Tort Claims Act claims, asserting for various reasons that Plaintiff's cause of action does not fall within the waiver of sovereign immunity contained within the Act.

II. Legal Standard

“Because sovereign immunity deprives the court of jurisdiction, the claims barred by sovereign immunity can be dismissed only under Rule 12(b)(1) and not with prejudice.” Warnock v. Pecos County, Tex., 88 F.3d 341, 343 (5th Cir.1996). In evaluating a motion to dismiss pursuant to Rule 12(b)(1), a court may consider (1) the complaint alone, (2) the complaint supplemented by undisputed facts evidenced in the record, or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts. Ramming v. United States, 281 F.3d 158, 161 (5th Cir.2001). The question of subject matter jurisdiction is for the court to decide even if the question hinges on legal or factual determinations. See id. Challenges to subject matter jurisdiction under Rule 12(b)(1) come in two forms: “facial” attacks and “factual” attacks. See Paterson v. Weinberger, 644 F.2d 521, 523 (5th Cir.1981). A facial attack, which consists of a Rule 12(b)(1) motion unaccompanied by supporting evidence, challenges the court's jurisdiction based solely on the pleadings. Id. Defendant's motion here is unaccompanied by supporting evidence, and is therefore a facial attack. When presented with a facial challenge to subject matter jurisdiction, the court examines whether the allegations in the pleadings, which are assumed to be true, are sufficient to invoke the court's subject matter jurisdiction. Id.

III. Discussion

The City asserts that Plaintiff's negligence claims are barred by sovereign immunity. Although the Tort Claims Act waives immunity for certain claims, the City alleges that Plaintiff's claims either do not fall within the scope of the Act, or that her claims fall within the Act's various exemptions from the waiver of sovereign immunity.

A. Whether the Claims Fall Within One of the Act's Waivers

Plaintiff primarily bases her Tort Claims Act assertion on the City's alleged negligence in providing “tangible City property and equipment, including a badge, police uniform, gun, handcuffs, communication device(s) and/or car, to Defendant Rodriguez.” ¹⁰ The Tort Claims Act waives immunity in part due to:

(1) property damage, personal injury, and death proximately caused by the wrongful act or omission or the negligence of an employee acting within his scope of employment if:

(A) the property damage, personal injury, or death arises from the operation or use of a motor-driven vehicle or motor-driven equipment; and

(B) the employee would be personally liable to the claimant according to Texas law; and

(2) personal injury and death so caused by a condition or use of tangible personal or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law.

Tex. Civ. Prac. & Rem.Code § 101.021 (West 2011).

The City asserts that Plaintiff's claims do not involve the use of tangible property because “[t]he decisions to provide, assign, or supervise the use of tangible personal property are not tangible personal property.” ¹¹ However, the City provides no authority supporting this assertion. Instead, it cites to Texas Department of Public Safety v. Petta, 44 S.W.3d 575, 580–81 (Tex.2001) and Sawyer v. Texas Department of Criminal Justice, 983 S.W.2d 310, 312 (Tex.App.-Houston [1st Dist.] 1998, pet. denied). In Petta, the plaintiff alleged that the governmental department was negligent in its failure to furnish “the proper training, instruction, training manuals, and documents” to an employee. 44 S.W.3d at 580. The claims failed— not because furnishing does not qualify as a use, but rather, because the things furnished merely constituted information, which “is not tangible personal property, since it is an abstract concept that lacks corporeal, physical, or palpable qualities.” Id.; see also Dallas Cnty. v. Harper, 913 S.W.2d 207, 207–08 (Tex.1995) (“[S]imply reducing information to writing on paper does not make the information ‘tangible personal property.’ ” (citing Univ. of Tex. Med. Branch v. York, 871 S.W.2d 175, 179 (Tex.1994))). Indeed, the court of appeals in Sawyer expressly noted “[t]he distinction between use of equipment and use of information.” 983 S.W.2d at 312. The “badge, police uniform, gun, handcuffs, communication device(s) and/or car” ¹² provided to Rodriguez are not “information,” but instead constitute tangible property, which is “capable of being handled, touched or seen.” Jefferson Cnty. v. Sterk, 830 S.W.2d 260, 262 (Tex.App.-Beaumont 1992, no writ). Further, the allegedly negligent entrustment of that property to Rodriguez constitutes “use” of the property. Cf. Morin v. Moore, 309 F.3d 316, 325 (5th Cir.2002) (holding that the plaintiffs' claims fell within the scope of section 101.021 when those claims alleged that an officer, who obtained a rifle from the police department, was allegedly acting within the scope of his employment when he negligently entrusted the rifle to his son).¹³

Nonetheless, the use of the property “must have actually caused the injury.” Tex. Dep't of Crim. Justice v. Miller, 51 S.W.3d 583, 588 (Tex.2001). The City, citing Dallas County Mental Health and Mental Retardation v. Bossley, asserts that property “does not cause the injury if it does no more than furnish the condition that makes the injury possible.” ¹⁴ See 968 S.W.2d 339, 343 (Tex.1998). In Bossley, the Texas Supreme Court held that the government entity's unlocking of the outer door of a mental health facility, and leaving that door in the condition of being unlocked, did not subject the entity to Tort Claim Act liability for an escaped patient's suicide. Id. at 343. The patient “ran half a mile and then attempted to hitchhike on both sides of a freeway,” and jumped in front of an oncoming truck “[o]nly when he was about to be apprehended.” Id. “Although [the patient's] escape through the unlocked doors was part of a sequence of events that ended in his suicide, the use and condition of the doors were too attenuated from [his] death to be said to have caused it.” Id.

In a closer factual context, the state appellate court in Hendrix v. Bexar County Hospital District held that tangible property did not cause the plaintiff's injuries where she was sexually assaulted by a hospital employee during a breast exam. 31 S.W.3d 661, 663 (Tex.App.-San Antonio 2000, pet. denied). The employee called the plaintiff into the examination room by the hospital's public address system, instructed her to put on a hospital gown left open at the front, then fondled the plaintiff's breasts in the examination room while the plaintiff was on the examination table. The plaintiff later learned that the employee was not authorized to perform breast examinations. Id. at 662. The plaintiff sued the hospital district, a state entity, and attempted to show that her injuries were caused by a use or condition of tangible personal property so as to fall under section 101.021. See id. She pointed to “the use of the examination room, examination table, patient gown, and public address system,” and sought to distinguish Bossley on the basis that these articles of property were not geographically or temporally distant from the harm. Id. at 663. The court, however, rejected the argument, holding that the employee's use of those items “did not cause the assault,” but “merely furnished some of the conditions that made the assault possible.” Id.; see also Hernandez, 253 S.W.3d at 759...