Thomas v. City of Galveston

• Citation: 800 F.Supp.2d 826
• Decision Date: 01 August 2011
• Docket Number: Civil Action No. H–10–3331.
• Parties: Kerry L. THOMAS, Plaintiff, v. CITY OF GALVESTON, TEXAS, et al., Defendants.
• Court: U.S. District Court — Southern District of Texas

800 F.Supp.2d 826

Kerry L. THOMAS, Plaintiff,
v.
CITY OF GALVESTON, TEXAS, et al., Defendants.

Civil Action No. H–10–3331.

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

Aug. 1, 2011.

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Robert D. Kinsey, Jr., Kinsey Ridenour et al., Ryan P. Sullivan, Kinsey Rowe Becker Kistler LLP, Lincoln, NE, for Plaintiff.

William Scott Helfand, Norman Ray Giles, Chamberlain Hrdlicka et al., Houston, TX, for Defendants.

MEMORANDUM AND ORDER KEITH P. ELLISON, District Judge.

Pending before the Court is Defendants' Motion to Dismiss for Failure to State a Claim (Doc. No. 6). After considering the parties' arguments and the applicable law, the Court grants the motion in part and denies it in part.

I. BACKGROUND ¹

This case arises from events that occurred in Galveston, Texas in the aftermath of Hurricane Ike (“the hurricane”) in September 2008. Plaintiff Kerry L. Thomas and his wife Lisa Weinberger (collectively, the “Thomases”) were residents of Galveston at the time. They chose not to evacuate for the hurricane because their home had been vandalized and looted after they evacuated for Hurricane Rita in 2005.

On September 18, 2008, five days after the hurricane struck Galveston, Weinberger purchased a 15,000 KW generator at Home Depot to power Plaintiff's and her home and to supply power for the

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neighbors. The generator was loaded onto a flat-bed trailer that was pulled by Plaintiff's truck. Weinberger parked the truck and trailer on the street in front of their home and did not unload the generator that day. Plaintiff and Weinberger went to bed around 8:00 p.m. because of the curfew in effect in Galveston.

At approximately 10:00 p.m. that evening, the Thomases were awoken by the barking of their dogs. The Thomases looked out the front window and observed what appeared to be flashlights being shined on and around the generator. Plaintiff went to the front door, and through the nearby window observed at least two individuals with flashlights moving around the trailer where the generator was stored. Those individuals were later identified as Defendant Joseph P. Atchley (“Officer Atchley”) and Defendant Joshua Alfred (“Officer Alfred”) (collectively, “the officers”). Through the window, Plaintiff several times loudly requested that the individuals identify themselves, but the individuals did not respond, and remained standing near the generator.

Plaintiff then located his Ruger 225 rifle (which he had with him near the front door) and opened the front door. Then, while standing in the doorway holding his rifle “at port arms” with the safety on, Plaintiff stated something to the effect of “identify yourself or you will be fired upon.” The flashlights then pointed directly into Plaintiff's eyes, and Plaintiff heard a man's voice say, “Galveston Police, throw down your gun.” Plaintiff slowly bent down and put his rifle on the porch and put his hands in the air with his palms forward. He states that, as a weapons trained veteran, he knew better than to throw down his rifle, which could result in an accidental discharge of ammunition.

Officers Atchley and Allred then rushed towards Plaintiff. One officer grabbed Plaintiff and threw him forward from the porch, down five steps. Plaintiff landed face down on the concrete sidewalk, and witnesses heard him scream in pain. The officers immediately and aggressively placed Plaintiff in handcuffs, excessively tight on his wrists. Plaintiff did not resist.

While Plaintiff was handcuffed face-down on the ground, the officers began to kick him in the shoulders, back, and head. One of the officers kicked Plaintiff squarely in the front part of his head, at which point Plaintiff felt a sharp pain inside his head and began to lose consciousness. One of the officers then grabbed the chain of the handcuffs and picked Plaintiff up from the ground, lifting the weight of Plaintiff's body by the handcuffs alone. Plaintiff screamed in pain as the handcuffs tore into his wrists, breaking the skin and causing severe damage to the wrist joint. Plaintiff then lost consciousness. Weinberger begged the officers not to take Plaintiff away because she did not want to be left alone in the lawless post-hurricane environment in Galveston. One officer ² responded, “It's your own fault for not evacuating, you deserve what you get,” and another stated, “Martial law, you know.”

Plaintiff was arrested, taken to Galveston County Jail, and charged with aggravated assault against a public servant. He regained consciousness in jail, and awoke bloody and in severe pain. Due to outages caused by the hurricane, there was no hot water and no toilet facility in the county jail. Plaintiff was offered no immediate medical attention and had no access to a

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telephone in order to contact his wife or a bondsman. While in jail, he was unable to sleep due to the severe pain, the injuries to his head, and the thought of his wife home alone without any news from him. Plaintiff felt alone, hopeless, and powerless.

On September 20, 2008, Plaintiff was seen by a nurse at the jail—the first and only medical attention he received—and the nurse was unable to provide any medication or treatment for his injuries. That day, Weinberger posted Plaintiff's bail of $40,000, and Plaintiff was released. On October 3, a bond hearing was held, and Plaintiff's bond was increased to $100,000, although no reason for the increase was ever provided to Plaintiff. Plaintiff immediately turned himself in and posted the second bond. On October 5, 2009, the Galveston County Chief Prosecutor filed a motion to dismiss all charges against Plaintiff, in the interest of justice. Judge Susan Criss dismissed all charges.

Plaintiff brings this action for several violations of the U.S. Constitution pursuant to 42 U.S.C. § 1983 (“Section 1983”). He alleges that that he was falsely arrested and subjected to excessive force in violation of the Fourth Amendment, deprived of due process, retaliated against for exercising his Second Amendment Rights, and denied adequate medical treatment in violation of the Fourteenth Amendment. He brings these claims against Officers Atchley and Allred in their individual and official capacities, and against the City of Galveston pursuant to Monell v. Dep't of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).³

II. LEGAL STANDARD FOR MOTIONS TO DISMISS

“To survive a Rule 12(b)(6) motion to dismiss, a complaint ‘does not need detailed factual allegations,’ but must provide the plaintiff's grounds for entitlement to relief—including factual allegations that when assumed to be true ‘raise a right to relief above the speculative level.’ ” Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir.2007) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). That is, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). A claim has facial plausibility “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955). The plausibility standard is not akin to a “probability requirement,” but asks for more than a sheer possibility that a defendant has acted unlawfully. Id. A pleading need not contain detailed factual allegations, but must set forth more than “labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (citation omitted).

Ultimately, the question for the court to decide is whether the complaint states a valid claim when viewed in the light most favorable to the plaintiff. The court must accept well-pleaded facts as true, but legal conclusions are not entitled to the same assumption of truth. Iqbal, 129 S.Ct. at 1950 (citing Twombly, 550 U.S. at 555, 127 S.Ct. 1955). The court should not “ ‘strain to find inferences favorable to the plaintiffs'

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” or “accept ‘conclusory allegations, unwarranted deductions, or legal conclusions.’ ” R2 Investments LDC v. Phillips, 401 F.3d 638, 642 (5th Cir.2005) (citation omitted). Importantly, the court should not evaluate the merits of the allegation, but must satisfy itself only that plaintiff has adequately pled a legally cognizable claim. United States ex rel. Riley v. St. Luke's Episcopal Hosp., 355 F.3d 370, 376 (5th Cir.2004). “Motions to dismiss under Rule 12(b)(6) are viewed with disfavor and are rarely granted.” Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 231 (5th Cir.2009) (internal citation omitted).

Officials sued in their individual capacities are protected by qualified immunity unless the act violates a constitutional right clearly established at the time. Sanchez v. Swyden, 139 F.3d 464, 466–467 (5th Cir.1998). “The doctrine of qualified immunity serves to shield a government official from civil liability for damages based upon the performance of discretionary functions.” Cozzo v. Tangipahoa Parish Council, 279 F.3d 273, 284 (5th Cir.2002). To determine whether the plaintiff has overcome the presumption of qualified immunity, the Court first considers whether the plaintiff has proven a violation of a clearly established constitutional right. Collins v. Ainsworth, 382 F.3d 529, 537 (5th Cir.2004). A right is “clearly established” if its contours are “sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). If that prong is met, the court must consider whether the defendant's “actions were objectively reasonable” in light of “law which was clearly established at the time of the disputed...