The opinion
UNITED STATES DISTRICT COURT June 29, 2020
SOUTHERN DISTRICT OF TEXAS David J. Bradley, Clerk
CORPUS CHRISTI DIVISION
DENISE ECKERT, §
§
Plaintiff, §
VS. § CIVIL ACTION NO. 2:19-CV-326
§
CITY OF CORPUS CHRISTI, et al, §
§
Defendants. §
ORDER ON MOTIONS TO DISMISS
Plaintiff, Denise Eckert (Eckert), an owner of a condominium unit, was involved
in an altercation with persons who were allegedly on the premises of the condominium
property without authority. According to her complaint, Defendant Jacob O’Sullivan
(O’Sullivan) arrested her and charged her with public intoxication and/or disorderly
conduct. He did so either in his official capacity as a law enforcement officer for the
Corpus Christi Police Department or in his personal capacity. The charges were
dismissed in her favor. Eckert now claims that the only reason for her arrest was
O’Sullivan’s overreaction to her exercise of free speech, which was critical of him. D.E.
1.
Pursuant to 42 U.S.C. § 1983, Eckert asserts claims against O’Sullivan and
Defendant City of Corpus Christi (City) for: (a) malicious prosecution; (b) false arrest
(unreasonable search and seizure) in violation of the Fourth Amendment; and (c)
violation of her freedom of expression guaranteed by the First Amendment.1 She also
sues O’Sullivan under state law for false arrest and malicious prosecution. D.E. 1.
Defendants filed separate motions to dismiss. D.E. 8, 16. O’Sullivan further seeks
alternative relief in the form of an order compelling Eckert to plead more specifically to
his qualified immunity defense. D.E. 16. Plaintiff filed a combined response. D.E. 18.
And the City filed a reply. D.E. 20. For the reasons set out below, the Court GRANTS
the City’s motion (D.E. 8) and GRANTS IN PART and DENIES IN PART O’Sullivan’s
motion (D.E. 16).
A. Claims Against the City
Eckert states her § 1983 constitutional claims as against both Defendants, jointly
and severally. Yet, it is well-settled that a municipal employer cannot be held vicariously
liable under § 1983 for the acts or omissions of its employees. Monell v. Dept. of Soc.
Servs. of N.Y., 436 U.S. 658, 694 (1978). Therefore, it is not enough to state in
conclusory form—as Eckert does—that any act of O’Sullivan was authorized or ratified
by the City. D.E. 1, p. ¶ 5; Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007);
Ashcroft v. Iqbal, 556 U.S. 662, 678, 681 (2009).
Instead, to state a claim against a city, the plaintiff must assert that the moving
force behind the alleged constitutional violation was an official policy or a custom,
practice, or procedure that is so persistent and widespread as to represent a policy
unofficially approved by the municipal policymaker. Id. at 691. Isolated violations
1 There was also some concern that Eckert raised Fifth Amendment claims against Defendants, who are not federal
actors. Plaintiff has clarified that no such direct Fifth Amendment claims have been made. D.E. 18, p. 2. Instead,
any due process charges are based on the Fourteenth Amendment. D.E. 1, p. 3.
unconnected to evidence of a policy or custom are insufficient to show a Monell
violation. Bennett v. City of Slidell, 728 F.2d 762, 768-69 (5th Cir. 1984).
Eckert’s attempt to articulate such a claim are insufficient. She alleges that the
City failed to train law enforcement personnel that criticism of the police is not sufficient
justification for arrest. But she cites no policy to that effect. And while she recites that
Eckert’s arrest is “representative of a customary practice and/or policy or procedure that
was sanctioned and/or tacitly followed by City,” that statement is not supported by
factual allegations regarding any other “such arrest.” D.E. 1, ¶ 11. For that reason, it is
conclusory and the pleading does not survive the requirements of Twombly and Iqbal.
Eckert’s primary defense of her pleading is based on applying the standard of
Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S.
163 (1993). Leatherman, which predates Twombly and Iqbal, tolerated conclusory,
boilerplate pleading. Eckert asserts that the Leatherman standard survived and governs
the pleading of this case. This argument is inconsistent with the reasoning in Twombly
and Iqbal, as this Court held in Gonzales v. Nueces County, Texas, 227 F. Supp. 3d 698,
704 (S.D. Tex. 2017). Eckert has not supplied any new authority to call that conclusion
into question. Therefore, the Court again rejects the Leatherman argument.
Eckert further suggests that her claim against the City satisfies the Twombly/Iqbal
standard in that it is plausible that the City failed to train O’Sullivan regarding the
impropriety of arresting an individual solely on the basis of that person’s criticism of law
enforcement. But the viability of Eckert’s claim against the City cannot be measured by
the plausibility of an isolated constitutional violation. As set out above, Monell requires a
policy or a persistent widespread practice. Eckert’s complaint contains no hint of facts
that would support those essential elements of her claims against the City. She has not
satisfied the Twombly/Iqbal standard.
The Court GRANTS the City’s motion (D.E. 8) and DISMISSES Eckert’s claims
against the City for failure to state a claim upon which relief may be granted under Rule
12(b)(6). Because complaints made against a police officer as a governmental employee
in his official capacity are to be treated as claims against his employer, the Court
DISMISSES Eckert’s § 1983 claims against O’Sullivan in his official capacity for the
same reasons. Kentucky v. Graham, 473 U.S. 159, 166 (1985). The Court need not, and
does not, address the City’s remaining arguments regarding the viability of a stand-alone
malicious prosecution claim under constitutional law.
B. Personal Capacity Claims Against O’Sullivan
In his motion to dismiss, O’Sullivan offers two dispositive defenses.2 First, he
seeks qualified immunity for the constitutional claims made against him. See generally,
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Second, he asserts that the state
common law claims can only be brought against his employer under the Texas Tort
Claims Act (TTCA). Tex. Civ. Prac. & Rem. Code § 101.106(f). Both of these defenses
require that the claims alleged against him involve conduct in the course and scope of his
duties as a governmental employee. Salas v. Carpenter, 980 F.2d 299, 306 (5th Cir.
1992); TTCA § 101.106(f).
2 While he briefed a third defense—that he was not a federal actor for Fifth Amendment purposes—Eckert has
clarified that she is not seeking relief against him as a federal actor. D.E. 18, p. 2.
Eckert pled her personal capacity claims in the alternative, as she pointed out in
her response (to which O’Sullivan did not reply). D.E. 18, p. 11. She sued O’Sullivan as
both a Corpus Christi Police Department law enforcement officer and as a “courtesy
officer, moonlighting” for the private condominium complex where he also lived. D.E. 1.
In the absence of admissions in the complaint, the burden of showing the exercise of
discretion in the course and scope of government employment falls on the defendant.
“The defendant official must initially plead his good faith and establish that he was acting
within the scope of his discretionary authority.” Salas, 980 F.2d at 306 (citing Saldana v.
Garza, 684 F.2d 1159, 1163 (5th Cir. 1982), cert. denied, 460 U.S. 1012 (1983)).
This case is at the pleading stage and the standard of review requires that any
decision be made (a) on the face of the pleading alone; (b) with matters incorporated by
reference into the complaint; or (c) with facts subject to judicial notice. Funk v. Stryker
Corp., 631 F.3d 777, 783 (5th Cir. 2011); Great Plains Trust Co. v. Morgan Stanley
Dean Witter & Co., 313 F.3d 305, 313 (5th Cir. 2002); Collins v. Morgan Stanley Dean
Witter, 224 F.3d 496, 498–99 (5th Cir. 2000). O’Sullivan’s recitation that he was a
uniformed police officer acting in his official capacity as a police officer at the time of
this incident is not a definitive fact that is derived from or supported by the complaint,
incorporated materials, or judicial notice. See D.E. 16, p. 3. It cannot eliminate Eckert’s
alternative claim that O’Sullivan was acting outside the scope of his governmental
employment. Consequently, the alternative pleadings prevent a Rule 12(b)(6) resolution
of the claims against O’Sullivan in his personal capacity pursuant to his qualified
immunity and TTCA defenses.3
The Court is aware that there is a body of law by which O’Sullivan could be
treated as a governmental employee even if he was off duty at the time of the incident.
Police officers have a duty to prevent crime and arrest
offenders. Tex. Code Crim. Proc. Ann. art. 2.13 (Vernon
1977). An off-duty police officer who observes a crime
immediately becomes an on-duty police officer. See Hafdahl
v. State, 805 S.W.2d 396, 401 (Tex. Crim. App. 1990);
Vernon v. City of Dallas, 638 S.W.2d 5, 8–9 (Tex. App.—
Dallas 1982, writ ref'd n.r.e.); see also Tex. Code Crim. Proc.
Ann. art. 2.13 (Vernon 1977).
City of Dallas v. Half Price Books, Records, Magazines, Inc., 883 S.W.2d 374, 377 (Tex.
App.—Dallas 1994, no writ). However, because this issue has not been briefed and may
require evidence, the Court finds that this principle of constructively placing a police
officer on duty has not been sufficiently developed to sustain the current motion to
dismiss.
The Court DENIES IN PART O’Sullivan’s motion (D.E. 16) to the extent that it
seeks dismissal of the claims against him.
C. Request for Order to Plead to Qualified Immunity
Because O’Sullivan’s defenses are not yet ripe for decision, the Court GRANTS
IN PART O’Sullivan’s motion (D.E. 16) which seeks an order requiring Eckert to plead
in reply to his qualified immunity defense, pursuant to Federal Rule of Civil Procedure
7(a)(7). See Schultea v. Wood, 47 F.3d 1427, 1434 (5th Cir. 1995).
3 Unless and until the fact determination is made that O’Sullivan acted only in the course and scope of his
government employment, any assessment of the viability of his defenses would be an improper advisory opinion.
See generally, Orix Credit All., Inc. v. Wolfe, 212 F.3d 891, 898 (5th Cir. 2000).
CONCLUSION
For the reasons stated above, the Court GRANTS the City’s motion to dismiss
(D.E. 8). The Court GRANTS IN PART and DENIES IN PART O’Sullivan’s motion
(D.E. 16), denying the request to dismiss the claims made against him and ORDERING
Eckert to plead in reply to the qualified immunity defense on or before July 15, 2020.
ORDERED this 29th day of June, 2020.
NE bh GONZALES RAMOS
UNITED STATES DISTRICT JUDGE
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