Gonzales v. Hunt County Sheriffs Department

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

BRANDON GONZALES, §

§

Plaintiff, §

§

v. § Civil Action No. 3:20-CV-3279-K

§

HUNT COUNTY SHERIFF’S §

DEPARTMENT, RANDY MEEKS, §

TEXAS DEPARTMENT OF PUBLIC §

SAFETY, DAVID ARMSTRONG, and §

JANE DOE, §

§

Defendants. §

MEMORANDUM OPINION AND ORDER

Before the Court are: (1) Defendants Hunt County Sheriff’s Department and

Randy Meeks’ Motion to Dismiss (Doc. No. 7); (2) Defendant David Armstrong’s

Partial Motion to Dismiss (Doc. No. 12); and (3) Defendants Hunt County Sheriff’s

Department and Randy Meeks’ Objection to Plaintiff’s Response (Doc. No. 18). For

the following reasons, the Court SUSTAINS Defendants Hunt County Sheriff’s

Department and Randy Meeks’ Objection to Plaintiff’s Response and disregards

Plaintiff Brandon Gonzales’s Response to Defendants Hunt County Sheriff’s

Department and Randy Meeks’ Motion to Dismiss, GRANTS Defendants Hunt

ORDER – PAGE 1

County Sheriff’s Department and Randy Meeks’ Motion to Dismiss, and GRANTS

Defendant David Armstrong’s Partial Motion to Dismiss.

I. Factual Background

On October 26, 2019, Plaintiff Brandon Gonzales (“Plaintiff”) attended an

after-party for the Texas A&M Commerce 2019 Homecoming at the Party Venue in

Greenville, Texas. Compl. (Doc. No. 1) at 4, ¶4. After paying the fee and entering,

Plaintiff observed that the venue was “packed to capacity”, dark, and very hot. Id. at

¶¶5-6. Shortly after going inside, Plaintiff alleges he became too uncomfortable and

went to sit in his friend’s car. Id. at ¶¶7-8. Plaintiff was still sitting in the car at some

point thereafter when he saw everyone “run out frantically” from inside the party Id.

at 4-5, ¶10. When Plaintiff’s friends got to the car, they immediately left together. Id.

at ¶12. Plaintiff alleges that during the time he was outside a shooting had occurred

inside the Party Venue which resulted in the death of two people and injuries to

fourteen others. Id. at ¶11.

Two days later, on October 28, 2019, an unknown person identified as “Source

of Information” (“SOI” or “eyewitness”) contacted Defendant Hunt County Sheriff’s

Department to give a voluntary eyewitness account of the fatal shooting. Id. at ¶20.

Accompanied by his/her attorney, the SOI gave a voluntary statement to Texas Ranger

Bruce Sherman, a non-party law enforcement officer. Id. The SOI also showed Ranger

ORDER – PAGE 2

Sherman pictures of the after-party and “drew a diagram of the Party Venue and chain

of events that took place inside the party.” Id. This information was included in the

affidavit for an arrest warrant to be issued for Plaintiff. Id. The SOI was not identified

in the affidavit due to safety concerns and the ongoing investigation; but the affiant

swore that the SOI was a “credible witness as it related to information corroborated

during the investigation.” Id.

That same day, October 28, 2019, an arrest warrant issued and Defendant David

Armstrong, a Texas Ranger with Defendant Texas Department of Public Safety,

arrested Plaintiff as he arrived at his workplace. Id. at ¶14. Plaintiff was charged with

Capital Murder related to the shooting at the Party Venue. Id. at 16. While in custody,

Plaintiff alleges “several individuals” informed Defendant Hunt County Sheriff’s

Department that Plaintiff was innocent of the charges and the wrong person had been

arrested. Id. at ¶17. Plaintiff also maintained his innocence while being interviewed

by law enforcement. Id. at 6, ¶22. In statements to the media, Defendant Hunt

County Sheriff’s Department stated that the right person had been arrested “without

a doubt”. Id. at ¶¶21, 23. Defendant Randy Meeks, Hunt County Sheriff, claimed

there was an eyewitness to the shooting (the unnamed SOI) who identified Plaintiff as

the shooter. Id. at ¶24. Plaintiff alleges that the identity of the SOI has never been

ORDER – PAGE 3

made known, nor have any of the SOI’s drawings, pictures, or statements been

disclosed to Plaintiff. Id. at 6, ¶25.

On November 5, 2019, the charges against Plaintiff were dismissed because

exculpatory evidence was allegedly discovered. Id. at ¶¶26, 27. The next day,

November 6, 2019, Plaintiff was released from custody, nine days after being arrested.

Id. at ¶26. Plaintiff alleges he suffered injuries as a result of his arrest, including the

loss of his job, the inability to be rehired or find another job, and damage to his

reputation and personal relationships. Id. at ¶¶29-36, 39-45. Plaintiff alleges these

injuries continued to occur even after relocating to another state.

Plaintiff filed suit in this Court against Defendants Hunt County Sheriff’s

Department, Randy Meeks, Texas Department of Public Safety, David Armstrong, and

Jane Doe. Plaintiff alleges the same federal and state claims against each Defendant—

false arrest under 28 U.S.C. § 1983 and Texas common law, false imprisonment under

§ 1983 and Texas common law, malicious prosecution under § 1983 and Texas

common law, abuse of process under § 1983 and Texas common law, and intentional

infliction of emotional distress under Texas common law. Defendants Hunt County

Sheriff’s Department and Randy Meeks filed a joint Motion to Dismiss (“Motion”),

and Defendant David Armstrong filed a Partial Motion to Dismiss (“Partial Motion”).

These Motions are ripe for determination.

ORDER – PAGE 4

II. Legal Standards

In considering a Rule 12(b)(6) motion, a court must determine whether the

plaintiff has sufficiently stated a claim upon which relief may be granted. FED. R. CIV.

P. 12(b)(6). A well-pleaded complaint must allege facts upon which the claims are

based and not be a conclusory recitation of the elements of a cause of action. Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 555 (2007). A complaint must state sufficient facts

such that the “claim has facial plausibility” and is not merely “possible.” Aschcroft v.

Iqbal, 556 U.S. 662, 678 (2009). A plaintiff pleads a claim with facial plausibility when

the “factual content . . . allows the court to draw the reasonable inference that the

defendant is liable.” Id.; see Twombly, 550 U.S. at 570 (facts as alleged must be facially

plausible such that the facts nudge the plaintiff’s claims “across the line from

conceivable to plausible.”). The complaint must allege sufficient facts to “give the

defendant fair notice” of plaintiff’s claims against the defendant. Twombly, 550 U.S. at

555 (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

The Court “accept[s] all well-pleaded facts as true and view[s] those facts in the

light most favorable to the plaintiff.” Stokes v. Gann, 498 F.3d 483, 484 (5th Cir. 2007)

(per curiam). The Court “do[es] not accept as true conclusory allegations, unwarranted

factual inferences, or legal conclusions.” Ferrer v. Chevron Corp., 484 F.3d 776, 780 (5th

Cir. 2007) (quoting Plotkin v. IP Axess Inc., 407 F.3d 690, 696 (5th Cir. 2005)).

ORDER – PAGE 5

The Court must generally determine a motion to dismiss for failure to state a

claim based solely on the pleadings, including any attachments thereto. Collins v.

Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000). The Fifth Circuit does

allow the district court to consider documents attached to the motion to dismiss when

those documents “are central to the claim and referenced by the complaint.” Lone Star

Fund V (U.S.), L.P. v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010); accord

Collins, 224 F.3d at 498–99.

III. Application of the Law to the Facts

The Court will address the motions to dismiss in turn. First, the Court takes up

Defendant Hunt County Sheriff’s Department and Randy Meeks’ Objection to

Plaintiff’s late-filed Response to their Motion.

A. Defendants Hunt County Sheriff’s Department and Randy

Meeks’ Objection to Plaintiff’s Response

Defendants Hunt County Sheriff’s Department and Randy Meeks filed their

Motion to Dismiss on December 8, 2020. Plaintiff’s responsive brief was due by

December 29, 2020, pursuant to this Court’s Local Rules. See L.R. 7.1(e). One day

past his response deadline, Plaintiff filed a Motion to Extend Time to respond until

January 16, 2021, stating, “Plaintiff’s counsel needs more time to gather the necessary

information to thoroughly respond to Motion.” Pl.’s Mot. (Doc. No. 13) at 1.

Plaintiff’s Certificate of Conference represented that “Plaintiff called [Defendants] at

ORDER – PAGE 6

4:00pm to discuss possible agreement” the same day Plaintiff’s response was due. Id.

at 2. Presumably Plaintiff’s counsel was unable to confer with counsel for Defendants

Hunt County Sheriff’s Department and Randy Meeks because Plaintiff then stated

that there is an “emergency” because the “[d]eadline to response [sic] is approaching.”

Id. at 2. Before the Court ruled, Plaintiff filed an Amended Motion to Extend Time on

January 6, 2021, which included a Certificate of Conference indicating counsel for

Defendants Hunt County Sheriff’s Department and Randy Meeks was unopposed to

the requested extension of January 16, 2021. Pl.’s Am. Mot. (Doc. No. 14) at 2. The

Court granted Plaintiff’s motion giving him the requested extension of January 16,

2021.

On January 19, 2021, three days past his extended deadline, Plaintiff filed his

Response (Doc. No. 17) to Defendants Hunt County Sheriff’s Department and Randy

Meeks’ Motion to Dismiss. Plaintiff did not seek leave of the Court to file his Response

outside the deadline, Plaintiff did not secure Defendants Hunt County Sheriff’s

Department and Randy Meeks’ agreement to file the Response later than the agreed-

upon extension, and Plaintiff offered no explanation for this late filing.

In their Reply, Defendants Hunt County Sheriff’s Department and Randy

Meeks object to Plaintiff’s Response as being untimely. Reply (Doc. No. 18) at 1.

Defendants Hunt County Sheriff’s Department and Randy Meeks ask the Court to

ORDER – PAGE 7

disregard the Response in ruling on their Motion. Id. at 2. In light of the seriousness

of that request, the Court ordered Plaintiff to respond to the Objection by February

10, 2021. (Doc. No. 19). Plaintiff did not file a response with the Court or attempt

to contact the Court by February 10, 2021. To-date, Plaintiff has not responded to

the Court’s order in any way.

Plaintiff offered no good cause or any other explanation for his late filed

Response. Moreover, Plaintiff wholly ignored a Court order directing him to respond

to the Objection. The Court has considered the options available for the conduct at

issue. See, e.g., Fed. R. Civ. P. 41(b) (case may be involuntarily dismissed if plaintiff

fails to comply with court order); Boudwin v. Graystone Ins. Co., Ltd., 756 F.2d 399, 401

(5th Cir. 1985) (“Although [Rule 41(b)] speaks of dismissal pursuant to a motion by

the defendant, a district court may dismiss sua sponte, with or without notice to the

parties.”). The Court finds that the appropriate sanction for Plaintiff’s failure to

comply with the Court’s order is to sustain Defendants Hunt County Sheriff’s

Department and Randy Meeks’ objection to Plaintiff’s Response and to disregard the

Response in determining their Motion to Dismiss. Any further failure by Plaintiff to

comply with an order of this Court will result in the issuance of a show cause order.

Finally, the Court notes that in addition to Plaintiff’s Response being untimely

filed and Plaintiff failing to file a Court-ordered response, Plaintiff’s counsel did not

ORDER – PAGE 8

sign the untimely Response. In fact, there is not even a signature block—the Response

simply ends with Section “V. Conclusion”. See Resp. at 11. The Federal Rules of Civil

Procedure very clearly require that “[e]very pleading, written motion, and other paper

must be signed by at least one attorney of record in the attorney’s name” and “must

include the signer’s address, e-mail address, and telephone number.” FED. R. CIV. P.

11(a). The Local Civil Rules of this Court likewise require counsel’s signature. L.R.

11.1. This Memorandum Opinion and Order hereby serves as notice to Plaintiff’s

counsel that any filings in this case, or any other before this Court, which are not signed

in accordance with the applicable Federal and Local Civil Rules will be unfiled without

further notice and regardless of any deadline which may be missed as a result.

Furthermore, the Court may sua sponte issue a show cause order for any further errors

and will consider all sanctions available accordingly. FED. R. CIV. P. 11(c)(3) & (4).

B. Defendants Hunt County Sheriff’s Department and Randy

Meeks’ Motion to Dismission

Defendants Hunt County Sheriff’s Department and Randy Meeks filed a joint

Motion to Dismiss. The Court will address each of those Defendants in turn.

1. Defendant Hunt County Sheriff’s Department

Plaintiff asserts state and federal claims against Defendant Hunt County

Sheriff’s Department— false arrest under § 1983 (“Count I”) and under Texas common

law (“Count III”), false imprisonment under § 1983 (“Count V”) and under Texas

ORDER – PAGE 9

common law (“Count VIII”), malicious prosecution under § 1983 (“Count XI”) and

under Texas common law (“Count XIV”), abuse of process under § 1983 (“Count

XVII”) and under Texas common law (“Count XIX”), and intentional infliction of

emotional distress under Texas common law (“Count XXI”). Defendant Hunt County

Sheriff’s Department argues that all claims against it must be dismissed because it does

not have a separate legal existence, so it may not be sued.

A plaintiff may not bring a civil action against a servient political agency or

department unless that agency or department enjoys a separate and distinct legal

existence. See Darby v. Pasadena Police Dep’t, 939 F.2d 311, 313-14 (5th Cir. 1991).

The Fifth Circuit held that “unless the true political entity has taken explicit steps to

grant the servient agency with jural authority, the agency cannot engage in any

litigation except in concert with the government itself.” Id. “The sheriff’s department

of a Texas county is not a jural entity subject to suit.” Williams v. Hunt Cty., Civ,

Action No. 3:17-CV-3264-D-BN, 2018 WL 2031915, at *2 (N.D. Tex. Apr. 4, 2019),

adopted by, 2018 WL 2018592 (N.D. Tex. May 1, 2018)(Fitzwater, J.). Plaintiff fails

to allege that Defendant Hunt County Sheriff’s Department is a separate legal entity

having jural authority. Williams, 2018 WL 2031915, at *2 (finding Hunt County

Sheriff’s Department was not a jural entity). Therefore, each of Plaintiff’s claims

against Defendant Hunt County Sheriff’s Department must be dismissed. See Evans v.

ORDER – PAGE 10

Dallas County Sheriff, 4 F.3d 991 (5th Cir. 1993) (affirming district court’s dismissal of

plaintiff’s claim against Dallas County Sheriff’s Department for failure to state a claim

because Sheriff’s Department does not have separate legal existence and cannot be

sued); Estate of Schroeder v. Gillespie Cty., 23 F.Supp.3d 775, 781 (W.D. Tex. 2014)

(plaintiffs “failed to show Gillespie County ever granted the Sheriff’s Department the

legal capacity to engage in separate litigation); Coates v. Brazoria Cty., 894 F.Supp.2d

966, 969 (S.D. Tex. 2012) (federal district courts in Texas have found that a county

sheriff’s department is not a public entity with jural authority); Terry v. Detention

Workers, Civ. Action No. 3:21-CV-016-X-BH, 2021 WL 1725533, at *4 (N.D. Tex.

Apr. 9, 2021) (“Dallas County Sheriff’s Department is not a jural entity subject to

suit.”), adopted by, 2021 WL 1720221 (N.D. Tex. Apr. 29, 2021); Amir-Sharif v. Valdez,

Civ. Action No. 3:06-CV-2258-P, 2007 WL 1791266, at *2 (N.D. Tex. June 6,

2007)(Solis, J.) (Dallas County Sheriff’s Department does not have jural existence).

Having sustained the objection of Defendant Hunt County Sheriff’s

Department to Plaintiff’s response, the Court does not consider the Response for

purposes of deciding the Motion. However, even if the Court had considered it,

Plaintiff makes no argument in his response to Defendant Hunt County Sheriff’s

Department Motion other than to summarily state that the Motion should be denied.

Resp. (Doc. No. 17) at 2. In failing to respond to the arguments at all, the Court would

ORDER – PAGE 11

have found Plaintiff waived these issues. Howley v. Bankers Standard Ins. Co., Civ. Action

No. 3:19-CV-2477, 2021 WL 913290, at *7 (N.D. Tex. Mar. 10, 2021)(Lindsay, J.)

(citing Nichols v. Enterasys Networks, Inc., 495 F.3d 185, 190 (5th Cir. 2007)). Plaintiff

requests that if the Court chooses to grant the Motion, the claims be dismissed without

prejudice and Plaintiff be given leave of Court to amend his complaint. Resp. at 2.

The Court would deny Plaintiff’s “general curative amendment request” to amend as

to Defendant Hunt County Sheriff’s Department. Goldstein v. MCI WorldCom, 340

F.3d 238, 254 (5th Cir. 2003) (leave to amend “is by no means automatic”); accord

Willard ex rel. v. Humana Health Plan of Texas, Inc., 336 F.3d 375, 387 (5th Cir. 2003)

(“[A] bare request in an opposition to a motion to dismiss—without any indication of

the particular grounds on which the amendment is sought, cf. FED. R. CIV. P. 7(b)—

does not constitute a motion within the contemplation of Rule 15(a).”). Moreover,

this court has already found Defendant Hunt County Sheriff’s Department is not a

jural entity and, therefore, cannot be sued. Williams, 2018 WL 2031915, at *2 (finding

Hunt County Sheriff’s Department was not a jural entity). Therefore, any amendment

would be futile. See Thomas v. Chevron U.S.A., Inc., 832 F.3d 586, 590–91 (5th Cir.

2016) (even if sufficient specificity was provided, court may deny leave where

amendment would be futile).

ORDER – PAGE 12

For these reasons, Plaintiff’s claims against Defendant Hunt County Sheriff’s

Department are dismissed with prejudice.

2. Defendant Randy Meeks

Defendant Meeks moves to dismiss each of Plaintiff’s claims against him— false

arrest under § 1983 (“Count I”) and under Texas common law (“Count III”), false

imprisonment under § 1983 (“Count V”) and under Texas common law (“Count

VIII”), malicious prosecution under § 1983 (“Count XI”) and under Texas common

law (“Count XIV”), abuse of process under § 1983 (“Count XVII”) and under Texas

common law (“Count XIX”), and intentional infliction of emotional distress under

Texas common law (“Count XXI”). Defendant Meeks argues that §§ 101.106(f) and

101.057(2) of the Texas Tort Claims Act (the “TTCA”) requires all the state claims

against him be dismissed. Defendant Meeks argues that he is entitled to qualified

immunity for the federal claims of malicious prosecution abuse of process, false arrest,

and false imprisonment. The Court previously explained that Plaintiff’s Response will

not be considered in the Court’s determination of the Motion. However, even if the

Court had considered it, the outcome would nevertheless remain the same.

a. State Law Claims

“The Texas Tort Claims Act provides a limited waiver of immunity for certain

suits against governmental entities and caps recoverable damages.” Mission Consol.

ORDER – PAGE 13

Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 655 (Tex. 2008) (citing TEX. CIV. PRAC. &

REM. CODE § 101.023). The TTCA “is the only, albeit limited, avenue for common-

law recovery against the government,” all tort claims alleged against a governmental

entity alone or with its employee are brought under the TTCA for purposes of

§ 101.106(f), even if immunity is not waived under the TTCA. Id. at 659; accord

Alexander v. Walker, 435 S.W.3d 789, 792 (Tex. 2014); see also Rivera v. Garcia, 589

S.W.3d 242, 246 (Tex. App.—San Antonio, 2019) (“[c]ould have been brought”

applies to all tort claims even where immunity not waived under TTCA). The TTCA

contains an “Election of Remedies” provision that requires the plaintiff to elect

“between suing a governmental unit and suing an employee of that unit.” Bustos v.

Martini Club, Inc., 599 F.3d 458, 462 (5th Cir. 2010). In other words, the plaintiff

must “decide at the outset whether an employee acted independently and is thus solely

liable, or acted within the general scope of his or her employment such that the

governmental unit is vicariously liable,” as provided by state statute. Garcia, 253

S.W.3d at 657 & n.3 (citing §§ 104.001, 104.002). Pursuant to the election provision

of the TTCA, “recovery against an individual employee is barred and may be sought

against the governmental unit only . . . (3) when suit is filed against an employee whose

conduct was within the scope of his or her employment and the suit could have been

brought against the governmental unit.” Id. at 657 (citing § 101.106(f)). “By adopting

ORDER – PAGE 14

section 101.106(f), the Legislature has effectively mandated that only a governmental

unit can be sued for a governmental employee’s work-related tortious conduct.” Garza

v. Harrison, 574 S.W.3d 389, 393 (Tex. 2019); id. at 399-400 (“[S]ection 101.106(f)

essentially prevents an employee from being sued at all for work-related torts and

instead provides for a suit against the governmental employer.”). Defendant Meeks

argues that Plaintiff’s allegations complain of actions taken by Defendant Meeks in his

official capacity and the claims must all be dismissed under § 101.106(f). The Court

agrees.

The TTCA defines “scope of employment” as “the performance for a

governmental unit of the duties of an employee’s office or employment and includes

being in and about the performance of a task lawfully assigned to an employee by

competent authority.” § 101.001(5). “The dispositive question is: In what capacity

was the officer acting at the time he committed the acts for which the complaint was

made?” Rivera, 589 S.W.3d at 246. “An official acts within the scope of [his] authority

if [he] is discharging duties generally assigned to [him].” Carter v. Diamond URS

Huntsville, LLC, 175 F.Supp.3d 711, 751 (S.D. Tex. 2016) (internal citation omitted);

id. (“This principle holds true even if the law enforcement officer acts partly to serve

his or her own interests and allegedly commits tortious acts.”). Moreover, even if the

governmental employee’s actions “were conducted with improper motives,” his conduct

ORDER – PAGE 15

may “remain within the general scope of duties” related to his employment. Id. at 752.

“[T]he employee’s state of mind, motives, and competency are irrelevant; the sole focus

is on the actions of the employee.” Rivera, 589 S.W.3d at 246 (citing Garza, 574

S.W.3d at 400).

The first prong of § 101.106(f) is satisfied in that Plaintiff filed suit against

Defendant Meeks, a governmental employee, based on conduct within the scope of his

employment. § 101.106(f); see Garcia, 253 S.W.3d at 657. Defendant Meeks, as the

Hunt County Sheriff, was an employee of Hunt County at the time of the alleged

incident. Compl. at 4, ¶3; 6, ¶23; see Franka v. Velasquez, 332 S.W.3d 367, 369 (Tex.

2011) (threshold issue is whether individual defendants are “employees of a

governmental unit” such that § 101.106(f) applies). Plaintiff clearly alleges in his

Complaint that Defendant Meeks “acted under the color of law as law enforcement

officer,” within the scope of his employment, “[a]t all times” with respect to the alleged

actions giving rise to these state claims. Compl. at 10, ¶68; 15, ¶109; 21, ¶173; 27,

¶227; 29, ¶249; see also id. at 6, ¶¶23 & 24. As Hunt County Sheriff, Defendant Meeks

was acting within the general scope of his duties when he spoke with media outlets, as

Plaintiff alleges, and “doubled-down on his assertion” that the right person had been

arrested and that there was an eyewitness who identified Plaintiff as the shooter.

Compl. at 6, ¶¶23-24; Rivera, 589 S.W.3d at 249 (“An officer’s scope of employment

ORDER – PAGE 16

includes the activities performed in his role as officer, including investigating, arresting,

and answering media inquiries.”). Therefore, based on Plaintiff’s allegations in his

Complaint, Defendant Meeks was acting within the scope of his employment in his

official capacity at the time of the complained-of conduct. See § 101.001(5); Rivera,

589 S.W.3d at 246; Carter, 175 F.Supp.3d at 751

The second prong of § 101.106(f) is also satisfied in that Plaintiff’s claims could

have been brought under the TTCA against Hunt County, as the employing

governmental unit. § 101.106(f); see Garcia, 253 S.W.3d at 657. “A suit against a

governmental employee in an official capacity is effectively a suit against the employing

governmental unit” with a limited exception. Garza, 574 S.W.3d at 399. Therefore, a

suit against a public employee in his official capacity is treated as a suit against the

governmental unit itself. Garza, 574 S.W.3d at 399. Plaintiff asserts state claims

against Defendant Meeks for false arrest, false imprisonment, malicious prosecution,

abuse of process, and intentional infliction of emotional distress, which are all

intentional torts. Alexander, 435 S.W.3d at 792 (false arrest, false imprisonment, and

malicious prosecution are tort claims); Stinson v. Fontenot, 435 S.W.3d 793 (Tex. 2014)

(intentional infliction of emotional distress is tort claim); Moore v. Bushman, 559

S.W.3d 645, 653 (Tex. App.—Houston [14th Dist.] 2018, no pet.) (abuse of process

is tort claim); see Travis v. City of Grand Prairie, 654 F. App’x 161, 167 (5th Cir. 2016).

ORDER – PAGE 17

As intentional torts, these claims could have been brought under the TTCA against

Hunt County, his employing governmental unit. See Alexander, 435 S.W.3d at 792 (all

“tort claims against the government are brought under this chapter the TTCA” for

purposes of § 101.106(f) even if immunity was not waived under the TTCA).

When an employee was acting within the general scope of his employment and

suit could have been brought under TTCA against the governmental unit, “the suit ‘is

considered to be against the employee in the employee’s official capacity only’, and,

upon the employee’s motion, the plaintiff must promptly dismiss the employee and

sue the government instead.” Franka, 332 S.W.3d at 381 (quoting § 101.106(f)); accord

Garza, 574 S.W.3d at 399 (“[B]ecause an official-capacity suit against a public

employee is merely another way of pleading an action against the governmental

employer, on the employee’s motion, section 101.106(f) compels an election that

makes suit against the governmental employer the exclusive remedy for a public

employee’s conduct within the scope of employment.”). Once Defendant Meeks

moved to dismiss pursuant to § 101.106(f), Plaintiff had two choices: (1) dispute that

Defendant Meeks acted in his official capacity and ask the Court to deny the Motion

thereby allowing him to pursue his claims against Defendant Meeks individually; or

(2) amend his Complaint to name Hunt County, the governmental unit that is

Defendant Meeks’ employer, and pursue his claims against it, thereby ending his case

ORDER – PAGE 18

against Defendant Meeks. Texas Adjutant General’s Office v. Ngakoue, 408 S.W.3d 350,

360 (Tex. 2013). Plaintiff did neither.

Even if the Court were to have considered Plaintiff’s Response, the outcome

would not change. Plaintiff wholly fails to address § 101.106(f), let alone argue that it

does not apply to Defendant Meeks in this action. Plaintiff makes no argument

disputing that Defendant Meeks acted in his official capacity. Plaintiff also did not

seek leave to amend his Complaint to dismiss Defendant Meeks and name the relevant

governmental entity as a defendant. Instead, Plaintiff addresses only qualified

immunity. Plaintiff conflates the statutory immunity under § 101.106(f), which

prevents a government employee acting within scope of his employment from being

liable for state tort claims that could have been brought against the government, with

qualified immunity that is an affirmative defense which applies in the context of federal

§ 1983 claims to bar the government employee’s individual liability. See Garza, 574

S.W.3d at 399-400 (statutory immunity under § 101.106(f) is not to be confused with

official immunity which is an affirmative defense); see also Crostley v. Lamar Cty., Tex.,

717 F.3d 410, 424 (5th Cir. 2013) (internal quotations omitted) (“Texas law of official

immunity is substantially the same as federal qualified immunity.”).

Section 101.106(f) “furthers one of the primary purposes of both the TTCA

generally and section 101.106 in particular—to protect governmental employees acting

ORDER – PAGE 19

the scope of employment.” Ngakoue, 408 S.W.3d at 357; see Franka, 332 S.W.3d at

384-85 (Texas legislature intended this precise effect with the passage of § 101.106

which is “to discourage or prevent recovery against an employee” from tort claims

arising from actions taken within the scope of employment). For these reasons,

Plaintiff’s state claims against Defendant Meeks must be dismissed upon his Motion.

§ 101.106(f) (“On the employee’s motion, the suit against the employee shall be

dismissed unless the plaintiff files amended pleadings dismissing the employee and

naming the governmental unity as defendant on or before the 30th day after the date

the motion is filed.”); see Ngakoue, 408 S.W.3d at 360 (“[S]ection 101.106’s election

scheme favors the expedient dismissal of governmental employees when suit should

have been brought against the government.”). Because dismissal of these state claims

is required under § 101.106(f), the Court need not address Defendant Meek’s

alternative argument that dismissal is appropriate under § 101.057(2).

The Court dismisses the state claims against Defendant Meeks with prejudice as

a matter of law. See Jimerson v. Lewis, Civ. Action No. 3:20-CV-2826-L-BH, 2021 WL

1561431, at *1 n.2 (N.D. Tex. April 21, 2021)(Lindsay, J.) (because plaintiff did not

amend complaint within time prescribed by § 101.106(f), employee defendants

entitled to dismissal with prejudice as a matter of law as to the state tort claims).

ORDER – PAGE 20

b. Federal Claims

Defendant Meeks argues that the federal claims asserted against him under

§ 1983—false arrest, false imprisonment, malicious prosecution, and abuse of process—

must also be dismissed because he is entitled to qualified immunity. The Court agrees.

To state a claim under § 1983, a plaintiff must show a government official, acting

under color of state law, “deprive[d] him ‘of any rights, privileges, or immunities

secured by the Constitution.’” Morgan v. Chapman, 969 F.3d 238, 245 (5th Cir. 2020).

Section 1983 does not create any substantive rights; it simply provides a remedy for

certain designated rights, so “an underlying constitutional or statutory violation is a

predicate to liability.” Harrington v. Harris, 118 F.3d 359, 365 (5th Cir. 1997). The

court employs a two-step analysis in deciding the applicability of qualified immunity:

(1) whether the plaintiff alleged facts which “make out a violation of a constitutional

right” and, only if that is satisfied, (2) whether that constitutional right was “‘clearly

established’ at the time of defendant’s alleged misconduct.” Pearson, 555 U.S. at 232.

When a defendant invokes the defense of qualified immunity at the motion to dismiss

stage, the plaintiff must show that defense is inapplicable by “plausibly alleg[ing] a

violation of a constitutional right that was clearly established at the time of the

purported violation.” Morgan, 969 F.3d at 245.

ORDER – PAGE 21

1) Malicious Prosecution and Abuse of Process

The Fifth Circuit recently reaffirmed that, in this Circuit, there is no

“constitutional right to be free from malicious prosecution.” Morgan, 969 F.3d at 245

(citing Castellano v. Fragozo, 352 F.3d 939, 945 (5th Cir. 2003)(en banc) as having

“extinguished the constitutional malicious-prosecution theory); accord Arnold v.

Williams, 979 F.3d 262, 270 (2020); see Cuadra v. Houston Indep. Sch. Dist., 626 F.3d

808, 812 (5th Cir. 2010) (held that “a freestanding 42 U.S.C. § 1983 claim based

solely on malicious prosecution [is] not viable.”). Plaintiff must instead “allege that

officials violated specific constitutional rights in connection with a ‘malicious

prosecution.’” Cuadra, 626 F.3d at 812 (quoting Castellano, 352 F.3d at 945). “[F]acts

amounting to malicious prosecution are properly alleged as part of an actual Fourth

Amendment claim, such as unreasonable search or seizure.” Arnold, 979 F.3d at 270

(2020). In his Complaint, Plaintiff did not allege any such constitutional violations.

See, e.g., Morgan, 969 F.3d at 245-46 (“In so far as the defendant’s bad actions (that

happen to correspond to the tort of malicious prosecution) result in an unreasonable

search or seizure, those claims may be asserted under § 1983 as violations of the Fourth

Amendment.”). In fact, as alleged in his Complaint, Plaintiff’s claim under § 1983 for

malicious prosecution recites the required allegations of that state tort claims. See

Kroger Texas Ltd. v. Suberu, 216 S.W.3d 788, 792 (Tex. 2006); Brown v. City of Houston,

ORDER – PAGE 22

297 F.Supp.3d 748, 760 (S.D. Tex. 2017) (quoting Hunt v. Baldwin, 68 S.W.3d 117,

129 (Tex. App.—Houston [14th Dist.] 2001, no pet.)). Plaintiff’s claim for malicious

prosecution is not cognizable under § 1983 without allegations of an underlying

constitutional violation. See id. at 246. Accordingly, Defendant Meeks is entitled to

qualified immunity on Plaintiff’s § 1983 malicious prosecution claim. See id. (plaintiff

must plausibly allege a violation of a constitutional right).

Plaintiff’s claim for abuse of process under § 1983 suffers the same fate. The

Fifth Circuit specifically held that “there is no constitutional right be to be free from

abuse of process.” Id. (noting that it is “doubtful” a constitutional tort of abuse of

process “ever existed in this circuit”.) As with malicious prosecution, “facts that

constitute the state tort of abuse of process can also constitute an unreasonable search,

unreasonable seizure, or violation of another right ‘locatable in constitutional text.’. . .

But those claims ‘are not claims for abuse of process and labeling them as such only

invites confusion.’” Id. at 247 (quoting Castellano, 352 F.3d at 954). If Plaintiff’s claim

was “rooted in the violation of [his] constitutional rights,” then it would be viable under

§ 1983. Id. However, Plaintiff did not plausibly allege the violation of any “right

locatable in constitutional text.” Id. Again, as with the malicious prosecution claim,

Plaintiff’s recites the required allegation for the state tort claim of abuse of process, not

that claim under § 1983. See Suberu, 216 S.W.3d at 792; Brown, 297 F.Supp.3d at 760

ORDER – PAGE 23

(quoting Hunt, 68 S.W.3d at 129). Accordingly, Defendant Meeks is entitled to

qualified immunity on this claim under § 1983 for abuse of process.

2) False Arrest and False Imprisonment

Defendant Meeks contends Plaintiff did not sufficiently plead his claims under

§ 1983 for false arrest and false imprisonment because Plaintiff did not plausibly allege

that he was deprived of a constitutional right as to these claims. Therefore, Defendant

Meeks argues he is entitled to qualified immunity.

“The constitution does not guarantee that only the guilty will be arrested.” Smith

v. Gonzales, 670 F.2d 522, 526 (5th Cir. 1982). “[T]o state a § 1983 claim for false

arrest/false imprisonment, [the plaintiff] must plausibly allege that [the defendant] ‘did

not have probable cause to arrest him.’” Arnold, 979 F.3d at 269 (quoting Haggerty v.

Tex. S. Univ., 391 F.3d 653, 655 (5th Cir. 2004)). Plaintiff does not dispute that he

was arrested pursuant to an arrest warrant issued upon an affidavit. Compl. at 5, ¶20.

But, as Plaintiff alleges, Defendant David Armstrong was the arresting officer, not

Defendant Meeks. Compl. at 5, ¶15; cf. Malley v. Briggs, 475 U.S. 335, 344 (1986)

(explaining limited occasion in which officer executing the warrant could be liable). As

he was not the arresting officer, there are limited scenarios under which Defendant

Meeks could be liable for false arrest or false imprisonment.

ORDER – PAGE 24

“It is well settled that if facts supporting an arrest are placed before an

independent intermediary such as a magistrate or grand jury, the intermediary’s

decision breaks the chain of causation for false arrest, insulating the initiating party.”

Arizmendi v. Gabbert, 919 F.3d 891, 897 (5th Cir. 2019); see also Gonzales, 670 F.2d at

526 (“Where an arrest is made under authority of a properly issued warrant, the arrest

is simply not a false arrest. Such an arrest is not unconstitutional, and a complaint

based on such an arrest is subject to dismissal for failure to state a claim.”). But, even

if an independent magistrate approves a warrant application, the affiant may still be

liable for false arrest if “(1) the affiant, in support of the warrant, includes a ‘false

statement knowingly and intentionally, or with reckless disregard for the truth,’ and

(2) the allegedly false statement is necessary to the finding of probable cause.”

Arizmendi, 919 F.3d at 897 (quoting Franks v. Delaware, 438 U.S. 154, 155-56 (1978)).

For such liability to attach, the defendant officer must have “assisted in the preparation

of, or otherwise presented or signed a warrant application.” Ulrich v. City of Shreveport,

765 F. App’x 964, 967 (5th Cir. 2019) (quoting Melton v. Phillips, 875 F.3d 256, 263

(5th Cir. 2017)(en banc)).

Plaintiff alleges that an arrest warrant issued upon an affidavit that included

information provided to “Ranger Sherman of the Texas Rangers” by the SOI. Compl.

at 5, ¶20. Plaintiff does not allege the identity of the affiant, see, e.g., Compl., at 5-6,

ORDER – PAGE 25

¶¶19, 20, 25, but does allege that both his attorneys received the “Affidavit for Arrest

Warrant” from “the prosecutor” upon a request for “pre-indictment discovery”. Id. at

5, ¶18-19. Defendant Meeks attached a copy of this probable cause affidavit

(“Affidavit”) and the arrest warrant to his Motion. App. in Support of Mot. (“App.”)

(Doc. No. 8) at 3-5. The Court considers these documents because they are central to

Plaintiff’s claim for false arrest. See Anokwuru v. City of Houston, 990 F.3d 956, 963 (5th

Cir. 2021) (citing Walker v. Beaumont Indep. Sch. Dist., 938 F.3d 724, 735 (5th Cir.

2019) (“When a defendant attaches documents to its motion that are referred to in

the complaint and are central to the plaintiff’s claims, the court may also properly

consider those documents.”).

Plaintiff does not allege that Defendant Meeks was responsible for preparing the

warrant application or deliberately or recklessly providing false information for use in

it. See Melton, 875 F.3d. at 263-64. A review of the Affidavit confirms that Defendant

Meeks was not the affiant of the Affidavit. Texas Ranger Laura Simmons, a non-party

to this case, was the initiating party who swore to the Affidavit in support of the arrest

warrant application for Plaintiff. App, at 3-5; see Arizmendi, 919 F.3d at 897 (outlining

exception to “independent intermediary” rule where affiant may still be liable for false

arrest). A district court judge in Hunt County then signed the arrest warrant. App. at

2; see Arizmendi, 919 F.3d at 897 (well-established that “independent intermediary” rule

ORDER – PAGE 26

“breaks chain of causation for false arrest.”). Texas Ranger Bruce Sherman met with

and interviewed the SOI and also took the SOI’s statement. App. at 3. In the Affidavit,

Texas Ranger Simmons does not indicate Defendant Meeks provided or assisted with

any information sworn to in the Affidavit. Instead, it was the information from Texas

Ranger Sherman on which Texas Ranger Simmons relied on and swore to in the

Affidavit in seeking the arrest warrant. Plaintiff does not allege that Defendant Meeks

helped prepare the affidavit by providing information used in it. See Ulrich, 765 F.

App’x at 967 (defendant officer can be liable only where he “assisted in the preparation

of, or otherwise presented or signed a warrant application.”); Melton, 875 F.3d at 263.

Merely alleging he was arrested without probable cause does not suffice on a

Rule 12(b)(6) determination. Without “additional government acts that may attend

the initiation of a criminal charge”, the Fifth Circuit has held that “causing charges to

be filed without probable cause will not without more violate the Constitution.”

Castellano, 352 F.3d at 953. It is that “more” which is missing; Plaintiff did not

plausibly allege that he was arrested without probable cause. See Arnold, 979 F.3d at

269.

Plaintiff does allege that Defendant Meeks “knowingly created the existence of

a confidential informant in furtherance of the conspiracy to false arrest and

imprisonment [sic] Brandon Gonzales.” Compl. at 7, ¶37. However, there are no other

ORDER – PAGE 27

allegations related to any conspiracy. “[Plaintiff’s] mere characterization of

[Defendant Meeks’] conduct ‘as conspiratorial or unlawful does not set out allegations

upon which relief can be granted.’” Russell v. Millsap, 781 F.2d 381, 383 (5th Cir.

1985) (§ 1983 claims). Without any factual allegations in support of an alleged

conspiracy, this mere conclusory allegation does not suffice to meet Plaintiff’s pleading

burden to survive dismissal. See Iqbal, 556 U.S. at 678; see Kane Enters., 322 F.3d at

374 (plaintiff must plead specific facts, not mere conclusory allegations, to avoid

dismissal for failure to state a claim).

The claim for false imprisonment under § 1983 also requires Plaintiff to

“plausibly allege that [the defendant] ‘did not have probable cause to arrest him.’”

Arnold, 979 F.3d at 269 (quoting Haggerty v. Tex. S. Univ., 391 F.3d 653, 655 (5th Cir.

2004)). The aforementioned applicable law and the Court’s analysis regarding false

arrest applies with equal force to Plaintiff’s false imprisonment claim. Just as he failed

to plausibly allege a claim for false arrest, Plaintiff failed to plausibly allege a claim

under § 1983 for false imprisonment against Defendant Meeks.

For these reasons, Defendant Meeks is entitled to qualified immunity on the

claims under § 1983 for false arrest and false imprisonment. See Morgan, 969 F.3d at

245 (plaintiff must allege he was deprived of constitutional right to sufficiently state a

ORDER – PAGE 28

claim under § 1983); see also Pearson, 555 U.S. at 232 (to overcome qualified immunity

defense, plaintiff must allege facts that “make out a violation of a constitutional right”).

3) Plaintiff’s Response

As previously explained, the Court did not consider Plaintiff’s Response in the

determination of this Motion; but, even if it had, the outcome would not change. First,

Plaintiff wholly failed to address Defendant Meeks’ argument that the claims for

malicious prosecution and abuse of process are not viable federal claims as alleged.

Also, to defeat Defendant Meeks’ qualified immunity defense at this stage, Plaintiff

“must plausibly allege a violation of a constitutional right that was clearly established

at the time of the purported violation.” Morgan, 969 F.3d at 245; see also McClendon v.

City of Columbia, 305 F.3d 314, 323 (5th Cir. 2002) (“When a defendant invokes

qualified immunity, the burden is on the plaintiff to demonstrate the inapplicability of

the defense.”). Plaintiff failed to meet this burden. In his Complaint, Plaintiff alleges

that probable cause was lacking. But, as previously explained, Plaintiff does not plead

facts that allow the Court to reasonably infer that Defendant Meeks is liable for the

alleged misconduct related to false arrest and false imprisonment under § 1983. See

Castellano, 352 F.3d at 953 (without “additional government acts that may attend the

initiation of a criminal charge”, even the act of “causing charges to be filed without

probable cause will not without more violate the Constitution.”). And Plaintiff’s

ORDER – PAGE 29

Response does nothing to remedy this, nor could it. See Staten v. City of Dallas, Civ.

Action No. 3:19-CV-0843-L-BN, 2020 WL 1902573, at *6 (N.D. Tex. Jan. 17, 2020)

adopted by 2020 WL 548373 (N.D. Tex. Feb. 4, 2020)(Lindsay, J.) (“[A] plaintiff may

not amend his allegations through a response to a motion to dismiss. ‘A claim for relief’

must be made through a pleading, FED. R. CIV. P. 8(a), and a response to a motion is

not among the ‘pleadings that are allowed’ under the Federal Rules of Civil Procedure,

FED. R. CIV. P. 7(a).”).

Plaintiff fails to plausibly allege a violation of his constitutional rights related to

the claims under § 1983 for malicious prosecution, abuse of process, false arrest, and

false imprisonment. See Pearson, 555 U.S. at 232 (the court must first decide whether

the plaintiff has alleged facts that “make out a violation of a constitutional right.”);

Morgan, 969 F.3 at 245. Therefore, Defendant Meeks is entitled to qualified immunity

as to these federal claims.

c. Conclusion

The Court finds that the state claims against Defendant Meeks must be

dismissed pursuant to § 101.106(f) of the TTCA. The Court also finds that Defendant

Meeks is entitled to qualified immunity on the claims under § 1983 for malicious

prosecution, abuse of process, false arrest, and false imprisonment. For these reasons,

Defendant Meeks’ Motion to dismiss is granted. The state claims asserted against him

ORDER – PAGE 30

are hereby dismissed with prejudice—false arrest (Texas common law), false

imprisonment (Texas common law), malicious prosecution (Texas common law), abuse

of process (Texas common law), and intentional infliction of emotional distress (Texas

common law). The federal claims asserted against Defendant Meeks are hereby

dismissed without prejudice—malicious prosecution (§ 1983), abuse of process (§

1983), false arrest (§ 1983), and false imprisonment (§ 1983).

C. Defendant David Armstrong’s Partial Motion to Dismiss

Defendant David Armstrong filed a Partial Motion to dismiss certain claims

brought against him—false arrest under Texas common law (Count IV), false

imprisonment under Texas common law (Count IX), malicious prosecution under

§ 1983 (Count XII) and under Texas common law (Count XV), abuse of process under

§ 1983 (Count XVIII) and under Texas common law (Count XX), and intentional

infliction of emotional distress under Texas common law .Count XXII). Defendant

Armstrong argues that each of the state claims must be dismissed pursuant to

§§ 101.106(e) and 101.057(2) of the TTCA. Defendant Armstrong also contends that

the federal claims for malicious prosecution and abuse of process are not viable claims

under § 1983 and, therefore, he is entitled to qualified immunity. In response, Plaintiff

argues that “the exception to this qualified immunity [under the TTCA] is a person’s

constitutional rights that [sic] can not [sic] be trumped by Statute.” Resp. (Doc. No.

ORDER – PAGE 31

16) at 4. Citing a Fifth Circuit case, Plaintiff responds that “the qualified immunity

defense is inapplicable where one’s constitutional rights have been violated.” Id.

Defendant Armstrong did not file a reply.

Just as with his untimely Response to Defendant Hunt County Sheriff’s

Department and Defendant Meeks’ Motion, Plaintiff’s counsel did not sign or include

a signature block on the Response to Defendant Armstrong’s Partial Motion—it simply

ends with Section “V. Conclusion”. Id. at 9; see Fed. R. Civ. P. 5(d)(3); L.R. 11.1.

Again, Plaintiff’s counsel is hereby put on notice that any future filings in this case, or

any other before this Court, which are not formatted and filed in accordance with the

applicable Federal or Local Civil Rules will be unfiled without further notice and

regardless of any deadline which may be missed as a result.

1. State Claims

Plaintiff sued both Defendant Texas Department of Public Safety and its

employee Defendant Armstrong. As explained in Section III.B.2.a addressing

Defendant Meeks’ Motion, the “Election of Remedies” provision of the TTCA requires

the plaintiff to elect “between suing a governmental unit and suing an employee of that

unit.” Bustos, 599 F.3d at 462. In other words, the plaintiff must “decide at the outset

whether an employee acted independently and is thus solely liable, or acted within the

general scope of his or her employment such that the governmental unit is vicariously

ORDER – PAGE 32

liable,” as provided by state statute. Garcia, 253 S.W.3d at 657 & n.3 (citing §§

104.001, 104.002). The Election of Remedies provision of § 101.106 “favors the

expedient dismissal of governmental employees when suit should have been brought

against the government.” Garza, 574 S.W.3d at 399.

In his Partial Motion, Defendant Armstrong moves the Court to dismiss the

state claims against him pursuant to § 101.106(e) which provides: “If a suit is filed

under this chapter against both a governmental unit and any of its employees, the

employees shall immediately be dismissed on the filing of a motion by the

governmental unit.” § 101.106(e). Even though subsection (e) would require dismissal

of Defendant Armstrong, that dismissal can be accomplished only upon “the filing of

a motion by the governmental unit.” § 101.106(e) (emphasis added). By the statute’s clear

language, Defendant Armstrong’s own motion cannot trigger his dismissal under

§ 101.106(e). The Texas Supreme Court has suggested that subsection (f) is “the

appropriate avenue for dismissal of an employee who is considered to have been sued

in his official capacity.” Alexander, 435 S.W.3d at 791 (citing Ngakoue, 408 S.W.3d at

357-58); accord Stinson, 435 S.W.3d at 794. But Defendant Armstrong did not move

for dismissal under subsection (f) and the Court will not consider that argument sua

sponte because a motion under § 101.106(f) permits the plaintiff an opportunity to

amend his pleadings within 30 days. § 101.106(f) (“On the employee’s motion, the

ORDER – PAGE 33

suit against the employee shall be dismissed unless the plaintiff files amended pleadings

dismissing the employee and naming the governmental unit as defendant on or before

the 30th day after the date the motion is filed.”). The Court must deny Defendant

Armstrong’s Partial Motion to dismiss the state claims under § 101.106(e).

Although the Partial Motion is denied on that basis, the Court finds the Partial

Motion must be granted on the alternative basis that governmental immunity has not

been waived for these intentional tort claims under the TTCA. “A suit against a

governmental employee in an official capacity is effectively a suit against the employing

governmental unit.” Garza, 574 S.W.3d at 399; see Bennett v. Pippin, 74 F.3d 578, 584

(5th Cir. 1996) (suit against county official in his official capacity is suit against county

“directly in everything but name”). In this case, Plaintiff clearly alleges that he is suing

Defendant Armstrong in his official capacity, as he “acted under the color of law as a

law enforcement officer, of and with the authority of, the Defendant Texas Department

of Public Safety.” See, Compl. at 11, ¶75; 16, ¶119; 22-23, ¶185; 28, ¶240; 30, ¶262.

Because Plaintiff’s suit against Defendant Armstrong is in his official capacity, the

Court treats this as a suit against the governmental entity itself. Garza, 574 S.W.3d at

399.

“[A]n employee sued in his official capacity has the same governmental

immunity, derivatively, as his government employer.” Franka, 332 S.W. 3d at 382-83.

ORDER – PAGE 34

It is well-established in Texas that “a governmental unit is immune from tort liability

unless the Legislature has waived immunity.” Dallas County Mental Health &

Retardation v. Bossley, 968 S.W.2d 339, 341 (Tex. 1998). While the TTCA provides

limited waiver of governmental immunity in certain suits, that waiver does not apply

to claims “arising out of assault, battery, false imprisonment, or any other intentional

tort[.]” § 101.057(2); see § 101.021; Garcia, 253 S.W.3d at 655. Plaintiff’s state claims

against Defendant Armstrong are intentional torts. See Alexander, 435 S.W.3d at 792

(false arrest, false imprisonment, and malicious prosecution are tort claims); Stinson,

435 S.W.3d 793 (intentional infliction of emotional distress is tort claim); Moore, 559

S.W.3d at 653 (abuse of process is tort claim); see Travis, 654 F. App’x at 167. Plaintiff

did not allege a waiver of immunity and it does not appear from his Complaint that

any waiver applies. See § 101.021-022 (limited waiver of immunity where claims arise

from the use of a motor-driven vehicle, a condition or use of tangible personal property,

or a premise defect).

Plaintiff’s Response does not save his claims from being barred. Plaintiff

acknowledges that “[n]ormally, the Texas Tort Claims Act excludes waiver of immunity

under state law on all claims arising out of intentional torts.” Resp. at 4. However,

Plaintiff goes on to argue that the “exception” to this “qualified immunity” under the

TTCA “is a person’s constitutional rights that [sic] can not be trumped by Statute.”

ORDER – PAGE 35

Id. Plaintiff appears to conflate, or misunderstand, the immunity defenses at issue—

sovereign immunity that has not been waived under the TTCA in the context of the

state claims for intentional torts as opposed to qualified immunity which is an

affirmative defense applicable to the federal claims arising under § 1983. They are

separate and distinct from one another, yet Plaintiff’s Response refers only to qualified

immunity. Plaintiff wholly fails to address the unambiguous language of the TTCA

that does not waive immunity as to those state claims for intentional torts. Plaintiff

also completely fails to dispute that Defendant Armstrong, as being sued in his official

capacity, enjoys derivative governmental immunity which bars those state claims.

§ 101.057(2). Plaintiff makes no argument based in applicable law that his claims as

alleged in the Complaint overcome this sovereign immunity under the TTCA. Plaintiff

did not meet his burden.

The government’s immunity from Plaintiff’s claims for intentional torts has not

been waived under the TTCA and Defendant Armstrong, being sued in his official

capacity, enjoys that immunity. Franka, 332 S.W. 3d at 382-83; McHenry v. Stinnett

Police Dep’t, Civ. Action No. 2:13-CV-0228-J, 2014 WL 4805678, at *4 (N.D. Tex.

July 29, 2014)(Robinson, J.) (plaintiff’s state claims for intentional torts against

defendant in his official capacity were barred by sovereign immunity because immunity

ORDER – PAGE 36

was not waived under TTCA for intentional tort claims). Accordingly, these claims are

barred and dismissed with prejudice.

2. Federal Claims—Malicious Prosecution and Abuse of

Process

Applying the applicable law and the Court’s analysis set forth in Section

III.B.2.b.1 as to Defendant Meeks’ Motion, Plaintiff’s claims against Defendant

Armstrong for malicious prosecution and abuse of process pursuant to § 1983 are not

viable federal claims as alleged in his Complaint. Neither claim is recognized as being

rooted in a constitutional right. Morgan, 969 F.3d at 246 (“There is no constitutional

right to be free from malicious prosecution. Therefore, qualified immunity bars

[plaintiff’s] § 1983 malicious prosecution claims against [defendants].”); id. at 247

(“Because there is no constitutional right to be free from abuse of process, the district

court erred by failing to grant defendants qualified immunity on that claim.”). When

these claims are brought under § 1983, the plaintiff must allege the violation of a right

“locatable in constitutional text.” Castellano, 352 F.3d at 954). As contained in his

Complaint, Plaintiff’s allegations do not implicate the violation of any constitutional

right. See Cuadra, 626 F.3d at 812 (the plaintiff must “allege that officials violated

specific constitutional rights in connection with a ‘malicious prosecution.’”); Arnold,

979 F.3d at 270 (“[F]acts amounting to malicious prosecution are properly alleged as

part of an actual Fourth Amendment claim, such as unreasonable search or seizure.”);

ORDER – PAGE 37

see also Morgan, 969 F.3d at 247. In fact, as alleged in his Complaint, Plaintiff’s claims

for both malicious prosecution and abuse of process under § 1983 recite the required

allegations of those state tort claims. See Suberu, 216 S.W.3d at 792; Brown, 297

F.Supp.3d at 760 (quoting Hunt, 68 S.W.3d at 129). In his Complaint, Plaintiff failed

to plausibly allege claims for both malicious prosecution and abuse of process under

§ 1983. See Twombly, 550 U.S. at 570 (plaintiff must plead “enough facts to state a

claim to relief that is plausible on its face.”). Defendant Armstrong is, therefore,

entitled to qualified immunity on those claims. See Morgan, 969 F.3d at 245 (plaintiff

“must plausibly allege a violation of a constitutional right that was clearly established

at the time” to defeat defendant’s entitlement to qualified immunity).

For the first time in his Response, Plaintiff cites to various constitutional rights,

both state and federal. However, this effort does nothing to save these claims from

dismissal. In deciding a motion to dismiss under Rule 12(b)(6), the Court considers

only “the complaint, any documents attached to the complaint, and any documents

attached to the motion to dismiss that are central to the claim and referenced by the

complaint.” Lone Star Fund V, 594 F.3d at 387. It is well-established that Plaintiff

may not amend his allegations through his Response to the Motion. See Staten, 2020

WL 1902573, at *6 (“[A] plaintiff may not amend his allegations through a response

to a motion to dismiss. ‘A claim for relief’ must be made through a pleading, FED. R.

ORDER – PAGE 38

CIV. P. 8(a), and a response to a motion is not among the ‘pleadings that are allowed’

under the Federal Rules of Civil Procedure, FED. R. CIV. P. 7(a).”). Even so, Plaintiff

makes no discernable argument between any of the constitutional provisions he cites

in his Response and the factual allegations in his Complaint with respect to these

federal claims.

The Court concludes Defendant Armstrong is entitled to qualified immunity on

these claims under § 1983 for malicious prosecution and abuse of process.

3. Conclusion

The Court finds that Defendant Armstrong, having been sued in his official

capacity, is entitled to derivative governmental immunity from his employer on each

of the state claims against him because immunity was not waived under the TTCA for

those intentional torts. The Court also finds that Defendant Armstrong is entitled to

qualified immunity on the claims for malicious prosecution and abuse of process under

§ 1983 because Plaintiff failed to plausibly allege a violation of a constitutional right.

For these reasons, Defendant Armstrong’s Partial Motion to dismiss is granted. The

Court dismisses with prejudice the claims against Defendant Armstrong under Texas

common law for false arrest, false imprisonment, malicious prosecution, abuse of

process, and intentional infliction of emotional distress. The Court dismisses without

prejudice the claims against Defendant Armstrong under § 1983 for malicious

ORDER – PAGE 39

prosecution and abuse of process. Defendant Armstrong did not move to dismiss the

federal claims under § 1983 for false arrest and false imprisonment; therefore, these

claims remain pending against Defendant Armstrong.

IV. Conclusion

For the foregoing reasons, the Court grants Defendant Hunt County Sheriff’s

Department and Defendant Randy Meeks’ Motion to Dismiss. All claims against

Defendant Hunt County Sheriff’s Department are dismissed with prejudice. As

against Defendant Meeks, all state claims are dismissed with prejudice and the

federal claims are dismissed without prejudice.

Also for the foregoing reasons, the Court grants Defendant David Armstrong’s

Partial Motion to Dismiss. Each of Plaintiff’s state claims against Defendant

Armstrong is dismissed with prejudice. The federal claims against Defendant

Armstrong for malicious prosecution and abuse of process are dismissed without

prejudice.

All other relief not expressly granted herein is denied. If Plaintiff wishes to

amend his Complaint, he must submit a motion for leave to amend his Complaint that

complies with the applicable Federal Rules of Civil Procedure and the Local Civil Rules;

this includes the requirement to attach a copy of the proposed amended pleading as

well as the requirement to confer with opposing counsel. Should Plaintiff choose to

ORDER – PAGE 40

file a motion for leave to amend he must do so within 30 days from the date of this

Order.

Finally, the Court reminds Plaintiff's counsel of their prior failure to sign court

filed documents in this case. This is not an insignificant omission, particularly by a

litigant represented by counsel. The Court will not indulge any continued failures to

comply with the applicable Federal and Local Civil Rules, and any future documents

which are deficient will be unfiled without any additional notice.

SO ORDERED.

Signed June 8", 2021.

Yuheade

Atabeade __

UNITED STATES DISTRICT JUDGE

ORDER — PAGE 41