Jane Doe, on behalf of M.F. v. Harris County Precinct Six Constable Sylvia Trevino

April 07, 2020

David J. Bradley, Clerk

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

JANE DOE on behalf of § CIVIL ACTION NO.

M.F., § 4:19-cv-01297

Plaintiff, §

§

§

vs. § JUDGE CHARLES ESKRIDGE

§

§

HARRIS COUNTY §

PRECINCT SIX §

CONSTABLE SYLVIA §

TREVINO et al, §

Defendants. §

MEMORANDUM AND OPINION

GRANTING MOTIONS TO DISMISS

Before the Court are motions to dismiss filed by Defendants

Harris County, Constable Heliodoro Martinez, and The Lynd

Company. Dkts 19, 21, 22.

Upon consideration, the claims against Harris County and

Martinez are dismissed without prejudice. The claims against the

Lynd Company are dismissed with prejudice.

1. Background

This is a civil rights action. Doe’s amended complaint pleads

as follows.

Defendant Brandon Glispy was a Constable for Harris

County Precinct 6. He was hired in the fall of 2016. Dkt 53 at 17.

He also worked as an off-duty officer at Heatherbrook

Apartments, which Lynd Company manages. Dkt 16 at ¶¶ 35, 39.

This lawsuit concerns a serious incident between Jane Doe

and Glispy on April 24, 2017. Glispy was on duty that night

driving his patrol car. Id at ¶ 12. Doe was out driving as well. Id

at ¶ 11. Glispy pulled Doe over three separate times, purportedly

for a broken headlight. He ordered Doe on the third stop to

follow him to an empty parking lot, where he sexually assaulted

her. Id at ¶¶ 21–22, 49–50.

Glispy was later arrested and charged with sexual assault. A

jury convicted and sentenced him to eight years in prison. Id at

¶¶ 31–32. He is currently serving out that prison sentence.

Doe asserts that hers was not Glispy’s first sexual assault,

alleging that he sexually assaulted a woman in a Popeye’s

restaurant in January 2017. Id at ¶¶ 36–37. She also asserts that

he may have assaulted more women at prior jobs working for

“the juvenile detention center and for Houston Housing

Authority.” Id at ¶ 34.

Doe asserts causes of action against Glispy and several other

defendants. She sued him in his individual capacity, but he has

not appeared or answered after service. Id at ¶ 10.

Doe also sued Constable Sylvia Trevino and former

Constable Martinez in their individual capacities. Trevino was the

elected Constable of Harris County Precinct 6 at the time of the

January and April 2017 incidents. Martinez was the previously

elected constable when Glispy was hired. Doe asserts that they

are both liable for failure to train, supervise, and discipline Glispy.

She further asserts that Martinez is liable for failure to hire a

qualified constable. Id at ¶¶ 65–85.

Doe additionally sued Harris County. She alleges that the

county is liable under 28 USC § 1983 on theories of an

unconstitutional policy, pattern, and practice; a failure to train or

to supervise; and ratification. Id at ¶¶ 52–65.

Doe also sued Lynd Company for negligence and gross

negligence. She alleges that a tenant at Heatherbrook Apartments

told an agent of Lynd Company about Glispy’s “abhorrent

behavior” and “predatory actions.” Id at ¶ 90. Doe asserts that

the individual who Glispy sexually assaulted in January 2017 at

the Popeye’s restaurant reported the incident to Heatherbrook

Apartments. Id at ¶ 39. Doe claims that with this knowledge,

Lynd Company owed a duty to the general public to warn about

Glispy’s criminal behavior. Id at ¶¶ 86–91.

Doe filed her complaint in state court in March 2019. Dkt

1-4 at 4. Following removal of the action, Harris County,

Trevino, and Martinez answered. Dkts 7, 8, 9. Lynd Company

filed a motion to dismiss. Dkt 12. Doe chose to file an amended

complaint in May 2019. Dkt 16. Harris County, Martinez, and

Lynd Company all then moved to dismiss under Rule 12(b)(6).

Dkts 19, 21, 22. Neither Glispy nor Trevino have moved to

dismiss.

The Court heard extensive argument in January 2020. Dkt 53

(transcript). The Court stayed discovery pending resolution of

these motions. Discovery will now move forward in this action.

2. Legal standard

Rule 8(a)(2) of the Federal Rules of Civil Procedure requires

a plaintiff’s complaint to provide “a short and plain statement of

the claim showing that the pleader is entitled to relief.” Rule

12(b)(6) allows the defendant to seek dismissal if the plaintiff fails

“to state a claim upon which relief can be granted.”

Read together, the Supreme Court has held that Rule 8 “does

not require ‘detailed factual allegations,’ but it demands more

than an unadorned, the-defendant-unlawfully-harmed-me

accusation.” Ashcroft v Iqbal, 556 US 662, 678 (2009), quoting Bell

Atlantic Corp v Twombly, 550 US 544, 555 (2007). To survive a Rule

12(b)(6) motion to dismiss, the complaint “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 F3d 397, 401

(5th Cir 2007), quoting Twombly, 550 US at 555.

A complaint must therefore contain enough facts to state a

claim to relief that is plausible on its face. Twombly, 550 US at 570.

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.” Iqbal, 556

US at 678, citing Twombly, 550 US at 556. This standard on

plausibility is “not akin to a ‘probability requirement,’ but it asks

for more than a sheer possibility that a defendant has acted

unlawfully.” Id at 678, quoting Twombly, 550 US at 556.

Review on motion to dismiss under Rule 12(b)(6) is

constrained. The reviewing court must accept all well-pleaded

facts as true and view them in the light most favorable to the

plaintiff. Walker v Beaumont Independent School District, 938 F3d 724,

735 (5th Cir 2019) (citations omitted). The court must also

generally limit itself to the contents of the pleadings and its

attachments. Brand Coupon Network LLC v Catalina Marketing Corp,

748 F3d 631, 635 (5th Cir 2014) (citations omitted). But it may

consider matters appropriate to judicial notice. Funk v Stryker

Corp, 631 F3d 777, 783 (5th Cir 2011) (citations omitted).

A court should typically give a plaintiff at least one chance to

amend under Rule 15(a) before dismissing the action with

prejudice for factual pleading insufficiency, unless doing so

would be futile. See Stripling v Jordan Production Co LLC, 234 F3d

863, 872–73 (5th Cir 2000).

3. Analysis

a. Lynd Company’s motion to dismiss

The parties agree that Glispy worked for Lynd Company as

an off-duty officer. Doe brings claims for negligence and gross

negligence, asserting that Lynd Company “owed a duty to the

general public” to warn about Glispy’s criminal behavior once it

became aware of his “sexual harassment and assault activities.”

Dkt 16 at ¶¶ 89, 91. At hearing, Doe narrowed this solely to a

duty to report such behavior to the authorities. Dkt 53 at 38–39.

Lynd Company argues to the contrary that Doe’s claims fail

because she cannot establish that it owed her a duty under Texas

law in these circumstances. Dkt 22 at 4–7.

To plead negligence under Texas law, the plaintiff must

establish “a legal duty owed by one person to another, a breach

of that duty, and damages proximately caused by the breach.” D.

Houston Inc v Love, 92 SW3d 450, 454 (Tex 2002). Gross

negligence is a heightened form of negligence that also requires

the plaintiff to establish a legal duty. Mobil Oil Corporation v

Ellender, 968 SW2d 917, 921 (Tex 1998). The “existence and

violation of a legal duty” owed by the defendant to the plaintiff

is thus a fundamental inquiry. Abalos v Oil Development Co of Texas,

544 SW2d 627, 631 (Tex 1976). As held by the Texas Supreme

Court, “Whether a legal duty exists is a threshold question of law

for the court to decide from the facts surrounding the occurrence

in question. If there is no duty, there cannot be negligence

liability.” Thapar v Zezulka, 994 SW2d 635, 637 (Tex 1999)

(citations omitted).

Doe’s claim would impose a duty on Lynd Company to warn

the general public “of an allegation of sexual assault concerning”

Glispy. Dkt 30 at 12. But her response concedes that an actor

generally has no legal duty under Texas law to protect another

from the criminal acts of a third person. Ibid, citing Centeq Realty

Inc v Siegler, 899 SW2d 195, 197 (Tex 1995).

Texas law does recognize some narrow exceptions to this

rule. See San Benito Bank & Trust Co v Landair Travels, 31 SW3d

312, 317–18 (Tex App 2000). One is made for cases involving

premises liability. Id at 318. Another is when a special relationship

exists between the actor and the third person that imposes a duty

upon the actor to control the third person’s conduct. Id at 319.

The last is when a party creates the dangerous situation that

ultimately causes harm. Ibid. Doe has not pleaded any of these

recognized exceptions.

Doe instead asserts that Texas courts have carved out a

limited duty in sexual assault cases. She relies primarily on the

decision of the Texas Supreme Court in Golden Spread Council Inc

No 562 of Boy Scouts of America v Akins as authority for imposing a

duty under the circumstances presented here. 926 SW2d 287 (Tex

1996). In that case, Golden Spread Council was a local scouting

organization. Two of its employees learned of complaints that an

assistant scoutmaster was molesting certain boys in the troop. Id

at 289. GSC neither relayed the allegations to local law

enforcement nor conducted any further investigation. Ibid. A

GSC employee with knowledge of the allegations against the

scoutmaster then introduced him to a church that wanted to start

its own troop—without informing the church of the

allegations. Ibid. That church ultimately selected him as its

scoutmaster. And he subsequently molested or attempted to

molest one of the scouts in that troop. The boy’s parents then

sued both the Boy Scouts of America and GSC.

The primary task of the Texas Supreme Court was to decide

whether each of those entities owed a duty. It imposed no duty

on the Boy Scouts of America, which had no prior knowledge of

the allegations against the scoutmaster. Id at 290. But GSC’s

knowledge and conduct was different: “GSC’s affirmative act of

recommending [him] as a potential scoutmaster to the church

created a duty on the part of GSC to use reasonable care in light

of the information it had received.” Id at 291. The Supreme

Court was specific as to the scope of this limited duty: “[W]e hold

that if GSC knew or should have known that [he] was peculiarly

likely to molest boys, it had a duty not to recommend him as a

scoutmaster. We impose no other duty on GSC than this.” Id at

292.

Golden Spread does not reach the facts pertinent to Lynd

Company here. Doe makes no allegation that Lynd Company

took any affirmative act or made any recommendation to anyone.

She alleges only that it “was aware of Glispy’s abhorrent behavior

but did nothing to stop it, prevent it, or report it.” Dkt 16 at ¶ 90.

Each of those would impose a duty on Lynd Company requiring

an affirmative act of the sort specifically disavowed by the Texas

Supreme Court.

Doe argued at hearing that Lynd Company’s actions could

be construed as an affirmative act of concealment of the

allegations against Glispy. Dkt 53 at 42. But the Texas Supreme

Court in Golden Spread also expressly rejected this type of duty:

“GSC had no duty to investigate [the scoutmaster] on its own or

to divulge to the church . . . or others the information it had

received.” 926 SW2d at 292. And even assuming foreseeability,

Texas courts generally have declined to impose a duty to report

to protect the general public. For example, see Thapar, 994 SW2d

at 640 (mental-health professionals have no duty to warn third

parties of threats by their patients); San Benito Bank, 31 SW3d at

321 (accountant and his lawyer had no duty to warn public of

former employee who embezzled from them); Williams v Sun

Valley Hospital, 723 SW2d 783, 787 (Tex App 1987) (hospital had

no duty to warn public of mentally ill patient who left facility and

committed crime); see also Clark Fire Equipment Inc v Arkema Inc,

176 FSupp3d 646, 649–50 (supply company had no duty to warn

purchasing company of third party’s fraudulent scheme).

Doe also relies on Ira S. Bushey & Sons Inc v United States, 398

F2d 167, 169 (2d Cir 1968). There, a drunken navy sailor returned

to his ship and opened valves that flooded and damaged a

drydock. The Second Circuit held the government vicariously

liable under the doctrine of respondeat superior. Even though the

sailor’s action wasn’t motivated by a purpose to serve his

employer, the court found such liability proper because a

“business enterprise cannot justly disclaim responsibility for

accidents which may be fairly said to be characteristic of its

activities,” and the sailor’s conduct “was not so ‘unforeseeable’

as to make it unfair to charge the government with

responsibility.” Id at 171.

Bushey is an inapt comparison. Doe alleges that at the time of

the sexual assault Glispy was acting in the course and scope of

his employment with Harris County, not Lynd Company. Dkt 16

at ¶¶ 10, 51. And so she only asserts liability in negligence against

the latter, not respondeat superior. The Second Circuit emphasized

the difference between the two: “[W]hat is reasonably foreseeable

in this context (of respondeat superior) . . . is quite a different

thing from the foreseeably unreasonable risk of harm that spells

negligence . . . .” Ibid (citations omitted).

Texas law imposed no duty on Lynd Company to Doe under

the facts pleaded here. Lynd Company filed its first motion to

dismiss in April 2019. Dkt 12. Doe filed an amended complaint

rather than respond to the motion, presenting additional facts

associating Lynd Company with Glispy. Dkt 16. The Court finds

that any further amendment would be futile. Doe’s claims against

Lynd Company are thus dismissed with prejudice.

b. Martinez’s motion to dismiss

Doe asserts claims against Martinez in his individual capacity.

She predicates these claims on allegations of his failure to train

and supervise deputy personnel, failure to hire a qualified

constable, and failure to discipline for sexual misconduct. Dkt 16

at ¶¶ 74, 77, 80–81.

Doe does not allege or identify facts showing that Martinez

affirmatively participated in Glispy’s wrongdoing. Without

personal participation by an official, the Fifth Circuit allows

supervisory liability under section 1983 in three circumstances

relevant here.

The first is where the official implemented an

unconstitutional policy that causally resulted in the constitutional

injury. Peña v City of Rio Grande City, 879 F3d 613, 620 (5th Cir

2018), citing Gates v Texas Department of Protective and Regulatory

Services, 537 F3d 404, 435 (5th Cir 2008). Official municipal policy

includes “the decisions of a government’s lawmakers, the acts of

its policymaking officials, and practices so persistent and

widespread as to practically have the force of law.” Connick v

Thompson, 563 US 51, 61 (2011). Liability attaches where

“supervisory officials implement a policy so deficient that the

policy itself is a repudiation of constitutional rights and is the

moving force of the constitutional violation.” Thompkins v Belt,

828 F 2d 298, 304 (5th Cir 1987) (quotation marks and citations

omitted). This standard requires more than conclusory assertions.

As framed by the Fifth Circuit, a complaint’s “description of a

policy or custom and its relationship to the underlying

constitutional violation . . . cannot be conclusory; it must contain

specific facts.” Peña, 879 F3d at 621, quoting Spiller v City of Texas

City, Police Department 130 F3d 162, 167 (5th Cir 1997); see also

Oliver v Scott, 276 F3d 736, 741 (5th Cir 2002) (necessary to plead

specific conduct and facts giving rise to constitutional violation).

The second and third are where the supervisor either failed

to supervise or to train the subordinate official, and a causal link

exists between that failure and the violation of the plaintiff’s

rights. Goodman v Harris County, 571 F3d 388, 395 (5th Cir 2009)

(citations omitted). The Fifth Circuit directs that the focus must

be on the adequacy of the training or supervision in relation to

the tasks the particular officer must perform. Roberts v City of

Shreveport, 397 F3d 287, 293 (5th Cir 2005) (citations omitted).

For instance, to defeat a motion to dismiss regarding training, the

“plaintiff must allege with specificity how a particular training

program is defective.” Ibid.

Each of these three circumstances also require the defendant

to have acted with deliberate indifference. Porter v Epps, 659 F3d

440, 446 (5th Cir 2011). Deliberate indifference is “a stringent

standard of fault,” one “requiring proof that a municipal actor

disregarded a known or obvious consequence of his action.” Id

at 446–47, quoting Connick, 563 US at 61. A supervisor’s

deliberate indifference generally requires a plaintiff to allege at

least a pattern of similar violations. Rios v City of Del Rio Texas, 444

F3d 417, 427 (5th Cir 2006) (citations omitted).

i. Unconstitutional policy

Martinez argues that the amended complaint does not allege

facts establishing that he “implemented unconstitutional policies

that causally resulted in the injury.” Dkt 21 at 4–5. The amended

complaint makes only these conclusory statements as to such

policies:

o “Constable Martinez created a policy or custom

under which unconstitutional practices occurred the

stop and frisk in a traffic stop without any

reasonable suspicion or probable cause for the

stop”; and

o “He created a policy or custom under which allowed

the unconstitutional practices occurred the stop and

frisk in a traffic stop without any reasonable

suspicion or probable cause to frisk a female

detainee, as a male officer, the failure to train and

discipline for sexual misconduct, or allowed the

continuance of such a policy or custom.”

Dkt 16 at ¶¶ 79, 84 (errors in original).

These allegations do not meet Fifth Circuit precedent for two

reasons. First, the plaintiff must plead “specific conduct” and

“facts” giving rise to the asserted constitutional violation. Oliver,

276 F3d at 741. The conclusory assertions in the amended

complaint are insufficient to establish the at-issue policy. Ibid.

The allegations do not state whether the infringing policy or

policies were formal written policies, decisions by policymakers,

or persistent and widespread practices. And they fail to causally

connect the at-issue policy to the underlying constitutional

violation. See Peña, 879 F3d at 621–22 (noting that because police

department’s written taser policy was “causally irrelevant, it

cannot demonstrate the persistent practice”).

Second, nothing connects Martinez to the relevant time of

any at-issue policy. The Court takes judicial notice that Trevino

replaced Martinez as Constable of Harris County Precinct 6 as of

January 1, 2017. See Harris County Election Results Archive,

https://www.harrisvotes.com/HISTORY/20161108/cumulativ

e/cumulative.pdf at 29. The amended complaint alleges in accord

with this transition that it was Trevino who “was at all times

relevant to this action the duly elected Constable of Harris

County Texas.” Dkt 16 at ¶ 6. The amended complaint also

describes Trevino as the one who “fail[ed] to act on information

indicating that unconstitutional acts were occurring, specifically,

information of the prior sexual assault of the first female

victim . . . in January 2017.” Dkt 16 at ¶ 72.

Doe confirmed at hearing that Martinez was no longer the

Constable of Harris County Precinct 6 at the time of the alleged

constitutional violations in January and April of 2017. Dkt 53 at

14. More critically, her response acknowledges that “the policies

in place at the time of the sexual assault were not Constable

Martinez’s policies.” Dkt 26 at 10. Simply put, Martinez cannot

be individually liable for law-enforcement and training policies

that were not his own.

ii. Failure to train

The question remains whether the amended complaint

alleges sufficient facts to establish potential liability for actions

taken prior to Martinez leaving office at the end of December

2016. This would require facts showing that Martinez acted with

deliberate indifference. Dkt 21 at 5–6. He notes that the amended

complaint makes only conclusory and insufficient statements of

an alleged failure to train, such as:

o “He participated directly in the alleged

constitutional violation by failing to adequately

train, regularly train, failure to hire qualified

constable”;

o “The failure to train and discipline for sexual

misconduct, or allowed the continuance of such a

policy or custom”; and

o “He exhibited deliberate indifference to the rights

of plaintiffs by failing to act on information

indicating that unconstitutional acts were occurring

prior violations, involving sexual assaults by

Constable Glispy, including one in January 2017.”

Dkt 16 at ¶¶ 77, 80, 82 (errors in original).

This does not allege with the necessary specificity how

Martinez’s training was defective—or even what training he

provided or failed to provide. See Roberts, 397 F3d at 293. It is

also deficient as to deliberate indifference to a risk of

constitutional violations. Porter, 659 F3d at 446. For instance, the

amended complaint does not allege as to Martinez any knowledge

of a “pattern of violations” necessary to demonstrate deliberate

indifference. Goodman, 571 F3d at 395. Nor does it allege

knowledge requiring a need for different or better training as to

Glispy. And to the contrary, Martinez points out that the earliest

specified event at the Popeye’s in January 2017 occurred only

after he left office. Dkt 21 at 4–6.

In her response and at hearing, Doe largely focused her claim

against Martinez on an alleged failure to hire a qualified constable.

Dkt 26 at 9–13. This included argument that Glispy sexually

harassed and assaulted women prior to being hired as a constable,

and that a comprehensive background check would have revealed

these prior allegations. Dkt 53 at 16; Dkt 26 at 11–12. But no

such allegations appear in the amended complaint, which

includes only the unadorned assertion of a “failure to hire

qualified constable.” Dkt 16 at ¶ 77. Without more, this is also

not enough to withstand a motion to dismiss.

iii. Failure to supervise

Martinez makes similar arguments against the failure-to-

supervise claim. Dkt 21 at 5. The amended complaint proceeds

on the following allegation: “Constable Heliodoro Martinez was

grossly negligent in supervising subordinates (Brandin Glispy)

who committed the wrongful acts.” Dkt 16 at ¶ 81.

This is not sufficient for two principal reasons. First, gross

negligence is a lesser and insufficient standard than deliberate

indifference. As held by the Fifth Circuit, “Deliberate indifference

is a degree of culpability beyond mere negligence or even gross

negligence; it must amount to an intentional choice, not merely

an unintentionally negligent oversight.” Shumpert v City of Tupelo,

905 F3d 310, 316 (5th Cir 2018) (quotation marks and citations

omitted).

Second, as with the failure-to-train claim, it is conclusory.

The amended complaint does not allege any other actual or

specific facts to support deliberate indifference by Martinez

regarding a failure to supervise.

iv. Potential for repleading

The claims against Martinez are dismissed without prejudice.

Doe notes that discovery has not yet commenced in this action.

She requests permission to seek leave to replead her claims after

discovery proceeds against Glispy and Trevino, who have not

moved to dismiss. Dkt 26 at 16. Doe has not to this point alleged

that Martinez was aware of prior allegations against Glispy. Dkt

53 at 53. And she does not know whether Martinez conducted a

background investigation of Glispy before hiring him. Dkt 53 at

64–65. Doe may seek to replead her claims against Martinez if

discovery reveals pertinent information on these points.

For his part, Martinez invokes the affirmative defense of

qualified immunity. Dkt 21 at 7. “Qualified immunity is only

applicable as a protective shield once a plaintiff has made out a

claim against an official acting in his individual capacity.”

Goodman, 571 F3d at 396. Because the amended complaint does

not at present state a claim against Martinez, analysis of this

defense is unnecessary. Ibid. If Doe later seeks to replead her

claim against him, Martinez may reassert a qualified immunity

defense as against those specific and concrete allegations. See

Ybarra-Fuentes v City of Rosenberg, 2018 WL 6019177, *8 (SD Tex).

c. Harris County’s motion to dismiss

Doe asserts three theories of liability under § 1983 against

Harris County. One is that Harris County has a policy, pattern,

and practice of condoning the criminal conduct of its deputies,

including the stopping and frisking of citizens without probable

cause. Dkt 16 at ¶ 63. Another is that it failed to adequately train,

supervise, and discipline its employees with regard to engaging in

sexual misconduct, sexual harassment, and sexual assault. Id at

¶ 53. The third is that it ratified the actions of Glispy by failing to

discipline him. Id at ¶ 58.

i. Policy, pattern, and practice

To establish municipal liability under § 1983, a plaintiff must

show that an official policy promulgated by the municipal

policymaker was the moving force behind the violation of a

constitutional right. Piotrowski v City of Houston, 237 F3d 567, 578

(5th Cir 2001). This means that municipal liability under § 1983

doesn’t extend merely on a respondeat superior basis. Monell v

Department of Social Services, 436 US 658, 691 (1978).

The initial inquiry is identification of officials or

governmental bodies “who speak with final policymaking

authority for the local governmental actor concerning the action

alleged to have caused the particular constitutional or statutory

violation at issue.” Bolton v City of Dallas, Texas, 541 F3d 545, 548

(5th Cir 2008), quoting McMillian v Monroe County, 520 US 781,

(1997). Whether an individual is a final policymaker for the

county is a question of state law. Bolton, 541 F3d at 548.

The only potential policymakers identified in the amended

complaint are Martinez and Trevino in their successive capacities

as Constable for Harris County Precinct 6. Dkt 28 at 3. The Fifth

Circuit has frequently applied Texas law in a variety of factual

situations pertinent to municipal liability. It has consistently held

as a matter of law that constables are not policymakers for the

county, and so a county cannot be held liable for a constable’s

conduct. See Rhode v Denson, 776 F2d 107, 110 (5th Cir 1985);

Bowden v Jefferson County, 676 F App’x 251, 254–55 (5th Cir 2017)

(unpublished) (summarizing cases); see also Harris County v Coats,

2020 WL 581184, *9–10 (Tex App—Houston [14th Dist] 2020).

This conclusion derives from the structure of local government

in Texas. Rhode, 776 F2d at 109–10 (contrasting role of constable

with that of sheriff, county treasurer, and county judge and

concluding that constables lack power to make county policy).

Martinez and Trevino are or were the constable of one of

Harris County’s eight precincts. They can in some sense be

viewed as decision makers for their precinct. But as a matter of

law they are not policymakers for Harris County itself.

Doe suggested at hearing an additional potential

policymaker—the individual responsible for conducting

background checks and investigating potential hires for Harris

County. Dkt 53 at 80–82. It would be of no concern at this stage

that Doe fails to articulate “the specific identity of the

policymaker.” Groden v City of Dallas, Texas, 826 F3d 280, 285 (5th

Cir 2016). But she must still “plead facts that show that the

defendant or defendants acted pursuant to a specific official

policy, which was promulgated or ratified by the legally

authorized policymaker.” Id at 282 (emphasis in original). Having

first introduced this potential policymaker at hearing, the

amended complaint is devoid of any facts in this regard. It does

not suggest that the person responsible for conducting

background checks (assuming there is one) is a “legally

authorized policymaker” for Harris County. And it neither pleads

a specific policy in this regard, nor any facts to show that the

legally authorized policymaker “promulgated or ratified the

[policy] and thus that this policy was attributable to [Harris

County].” Ibid.

Doe has not carried her burden under Groden to plead

sufficient facts to meet the policymaker prong necessary to

liability under § 1983. As such, the Court need not examine

whether there was a “violation of constitutional rights whose

‘moving force’ is the policy or custom.” Piotrowski, 237 F3d at

578, citing Monell, 436 US at 694.

ii. Failure to train or to supervise

The standard applicable to an alleged failure to train or to

supervise is the same as that for municipal liability under a

deficient policy. Brown v Bryan County, 219 F3d 450, 457 (5th Cir

2000). For instance, failure to provide proper training is “a policy

for which the city is responsible, and for which the city may be

held liable if it actually causes injury.” Ibid, quoting City of Canton

v Harris, 489 US 378, 390 (1989). And so to establish municipal

liability under § 1983 based on such theory, a plaintiff must plead

that the training or hiring procedures of the municipality’s

policymaker were inadequate; that the policymaker was

deliberately indifferent in adopting the hiring or training policy;

and the inadequate hiring or training policy directly caused the

plaintiff’s injury. Conner v Travis County, 209 F3d 794, 796 (5th Cir

2000), quoting Baker v Putnal, 75 F3d 190, 200 (5th Cir 1996).

Doe’s claim regarding failure to train or to supervise is

deficient for the same reason as her policy claim—Martinez and

Trevino are not policymakers for Harris County.

iii. Ratification

The amended complaint alleges that Harris County “fully

investigated the sexual assault allegations of Glispy, including the

assault in January 2017 in the Popeye’s restaurant, yet it did

nothing to discipline any of their employees involved.” Dkt 16 at

¶ 57. Doe argues that the county thereby “ratified or condoned

the actions of Glispy.” Dkt 28 at 10.

Supreme Court precedent generally permits such a theory.

“If the authorized policymakers approve a subordinate’s decision

and the basis for it, their ratification would be chargeable to the

municipality because their decision is final.” City of St Louis v

Praprotnik, 485 US 112, 127 (1988). But ratification liability

requires that the authorized policymakers approve not only the

subordinate’s act, but also the basis for it. Ibid. This means that

the policymaker must have actual knowledge of the improper

basis for the subordinate’s action and yet approve the action

anyway. See Beattie v Madison County School District, 254 F3d 595,

604 (5th Cir 2001).

Doe’s ratification theory fails to meet these standards. She

again does not allege a Harris County policymaker that ratified

Glispy’s conduct. The amended complaint identifies no person

by either name or job title with respect to any investigation

alleged to have occurred. More importantly, the amended

complaint identifies no Harris County policymaker who was

aware of the investigation and disregarded it.

iv. Potential for repleading

Each of Doe’s claims against Harris County fail for the same

essential reason—elected constables are not policymakers for the

county, and so a county cannot be held liable for their conduct.

The claims against Harris County are dismissed without

prejudice. Doe requests permission to seek leave to replead her

claims against Harris County after discovery proceeds with

respect to Glispy and Trevino. Dkt 28 at 11. If discovery reveals

an alternative policymaker—and as to the ratification claim,

sufficient knowledge of allegations against Glispy—Doe may

seek such leave.

4. Conclusion

The motions to dismiss brought by Harris County, Martinez,

and Lynd Company are GRANTED. Dkts 19, 21, 22.

The claims against both Harris County and Martinez are

DISMISSED WITHOUT PREJUDICE.

The claims against Lynd Company are DISMISSED WITH

PREJUDICE.

The stay on discovery in this matter is lifted.

SO ORDERED.

Signed on April 7, 2020, at Houston, Texas.

Hon. Charles Eskridge =

United States District Judge

16