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

> District Court, S.D. Texas · April 7, 2020

URL: https://www.frixlaw.com/law-library/cases/10673266

## Case

- **Court:** District Court, S.D. Texas
- **Decided:** April 7, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10673266. Public record. Not legal advice.