The opinion
UNITED STATES DISTRICT COURT September 24, 2020
SOUTHERN DISTRICT OF TEXAS David J. Bradley, Clerk
HOUSTON DIVISION
KEITH ALEXANDER LAMB JR, §
§
Plaintiff, §
VS. § CIVIL ACTION NO. 4:19-CV-2492
§
MICHAEL BERRY §
and §
GORDON DUDLEY §
and §
RAND HENDERSON, et al, §
§
Defendants. §
MEMORANDUM AND ORDER
Plaintiff Keith Alexander Lamb, Jr. sued the defendants, Texas state and county
government officials, a judge, and a police officer. The defendants have filed motions to
dismiss and Lamb responded. After reviewing the pleadings, the motions, and the
responses, the Court is of the opinion that the motions to dismiss should be granted and
the amended complaint dismissed with prejudice. The reasons for this conclusion are
given below.
A. Background
Lamb has a plumbing business. He performed plumbing work for two
homeowners, Mr. and Mrs. Celinski. A dispute arose over the quality of Lamb’s work
and he threatened to destroy the shower in their home with a hammer if the Celinskis did
not pay him the final $1,000 due under their contract. Amended Complaint at 1;
Affidavit for Arrest Warrant (appended to the Montgomery County Defendants’ Motion
to Dismiss, Doc. # 17).1 The Celinskis called 911, but Lamb hung up the call.
Defendant Michael Berry, a Montgomery County Sheriff’s Deputy, responded to
the call and took a statement from the Celinskis. He presented his report to defendant
Gordon Dudley, a Montgomery County Assistant District Attorney, who presented the
report to defendant Paul Damico, a Magistrate. Judge Damico found that probable cause
existed to believe that Lamb committed a crime and Lamb was charged. Lamb now sues
Berry, Dudley, Damico, Montgomery County District Attorney Brett Ligon, Montgomery
County Sheriff Rand Henderson, and Texas Attorney General Ken Paxton. He contends
that Berry arrested him without cause and failed to disclose exculpatory information – the
fact of the contract dispute – in his report, that Dudley presented this incomplete report to
Damico, and that Damico set an excessive bail, all in violation of various constitutional
rights. He further contends that Ligon, Henderson, and Paxton failed to properly train
and/or supervise the other defendants, resulting in the alleged constitutional violations.
B. The Legal Standards
1. Rule 12(b)(1)
A federal court must dismiss a case for lack of subject matter jurisdiction under
Federal Rule of Civil Procedure 12(b)(1) when the court lacks the statutory or
constitutional power to adjudicate the plaintiff=s claims. Home Builders Assoc' of Miss.,
Inc., v. City of Madison, 143 F.3d 1006, 1010 (5th Cir.1998). In resolving a motion under
1 The facts set out in the affidavit were found to be true by the probable cause determination entered by a
magistrate. Therefore, this Court may take judicial notice of this fact without converting the motion to a motion for
summary judgment. See, e.g., Norris v. Hearst Trust, 500 F.3d 454, 461 n.9 (5th Cir. 2007); Cinel v. Connick, 15
F.3d 1338, 1343 n. 6 (5th Cir. 1994).
Rule 12(b)(1), a court may refer to evidence outside the pleadings. Espinoza v. Mo.
Pacific R. Co., 754 F.2d 1247, 1248 n. 1 (5th Cir.1985). When the jurisdictional issue is
of a factual nature rather than facial, plaintiff must establish subject matter jurisdiction by
a preponderance of the evidence. Irwin v. Veterans Admin., 874 F.2d 1092, 1096 (5th
Cir.1989).
2. Rule 12(b)(6)
In reviewing a motion to dismiss under rule 12(b)(6), the complaint is liberally
construed in favor of the plaintiff, and all facts pleaded in the complaint are taken as true.
Campbell v. Wells Fargo Bank, 781 F.2d 440, 442 (5th Cir.1986).
To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to state a claim to
relief that is plausible on its face. 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.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks and citations
omitted).
C. Analysis
Defendant Ken Paxton seeks dismissal under Rule 12(b)(1) and 12(b)(6). The
other defendants seek dismissal under Rule 12(b)(6).
1. Ken Paxton
Defendant Ken Paxton is the Attorney General of Texas. Lamb contends that the
defendants’ actions violated various constitutional rights but does not allege that Paxton
had any personal involvement in any of the acts that he contends violated his rights. In
his response to Paxton’s motion to dismiss, Lamb argues that Paxton is liable because the
allegedly unconstitutional criminal prosecution was brought against him by Montgomery
County officials on behalf of the State of Texas, that Paxton is responsible for the actions
of policymakers who “he oversees,” that Paxton has a duty to stop corruption at the
county level, and because Paxton is aware of flaws in the criminal justice system and has
not fixed them.
Supervisory officials cannot be held vicariously liable under 42 U.S.C. ' 1983 for
acts of their subordinates on a theory of respondeat superior. Monell v. Dept t of Soc.
Servs., 436 U.S. 658, 692 (1978). Rather, to prevail on his claims, Lamb must
demonstrate that Paxton was personally involved in the alleged constitutional violation,
or that he committed wrongful acts that were causally connected to a constitutional
deprivation. See Jones v. Lowndes County, Mississippi, 678 F.3d 344, 349 (5th Cir.
2012). Because Lamb asserts no personal involvement by Paxton in any alleged
wrongdoing, but rather asserts liability based only on Paxton's alleged supervisory role,
he fails to state a claim for relief against Paxton in his personal capacity.
To the extent that Lamb sues Paxton in his official capacity, his claim is barred by
the Eleventh Amendment. A[I]n the absence of consent a suit in which the State or one of
its agencies or departments is named as the defendant is proscribed by the Eleventh
Amendment.@ Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984). A
suit for damages against a state official in his official capacity is not a suit against the
individual, but against the state. Hafer v. Melo, 502 U.S. 21, 25 (1991). Therefore, any
claim for damages against Paxton in his official capacity is barred. Lamb’s claims
against Paxton must be dismissed.
2. Deputy Berry
Lamb contends that Deputy Berry violated his civil rights by arresting him for
what Lamb characterizes as “a civil matter,” and for including in the complaint Lamb’s
prior acquittals, which Lamb characterizes as falsely implying that he has a history of
violence. Berry argues that he is entitled to qualified immunity and that the claims are
without merit.
a. Qualified Immunity
AThe doctrine of qualified immunity shields public officials . . . from damages
actions unless their conduct was unreasonable in light of clearly established law.@ Elder
v. Holloway, 510 U.S. 510, 512 (1994). The Fifth Circuit has held that, to overcome
qualified immunity, Apre-existing law must dictate, that is, truly compel (not just suggest
or allow or raise a question about), the conclusion for every like-situated, reasonable
government agent that what the defendant is doing violates federal law in the
circumstances.@ Pierce v. Smith, 117 F.3d 866, 882 (5th Cir. 1997) (internal quotation
marks and citation omitted).
When Berry arrested Lamb, the available information showed that Lamb
threatened the Celinskis with a hammer to force them to turn over their credit card.
There is also no dispute that Lamb hung up the Celinskis’ call to 911. Under these
circumstances, it was reasonable for Berry to believe that Lamb committed a crime.
“Probable cause exists when the totality of a police officer’s knowledge at the moment of
the arrest are sufficient for a reasonable person to conclude that the suspect had
committed or was committing an offense.” Cuadra v. Houston Ind. Sch. Dist., 626 F.3d
808, 813 (5th Cir. 2010)(internal quotation marks and citation omitted). Because it was
reasonable for Berry to believe that he had probable cause to arrest Lamb, Berry is
qualifiedly immune from Lamb’s lawsuit.
While Lamb complains about Berry’s inclusion of Lamb’s prior charges in his
affidavit, he does not identify any untrue statement by Berry. The complaint notes that
Lamb was “unsuccessfully prosecuted for Aggravated Assault” on two prior occasions.
Affidavit for Arrest Warrant (Doc. # 17-1) at 2. Lamb acknowledges that this statement
is true. Berry was reasonable in making the statement.
b. Probable Cause
Under the probable cause standard noted above, Berry had probable cause to arrest
Lamb. Moreover, the finding of probable cause by a magistrate breaks the chain of
causation from Berry to Lamb unless the magistrate’s finding was tainted by Berry’s
actions. Id. Lamb contends that Berry misrepresented his prior record but, as noted
above, Berry’s statement regarding the prior prosecutions was true.
Lamb also argues that there was no basis for his arrest because this was a civil
contract dispute between him and the Celinskis. He points to no authority giving him the
right to threaten violence in order to collect the disputed fee. Under both the objective
facts and the magistrate’s finding, Berry had probable cause to arrest Lamb, and Lamb’s
claim of false arrest is without merit.
3. The Prosecutors
Lamb alleges that defendant Dudley, a Montgomery County Assistant District
Attorney, violated his rights by falsely claiming that Lamb had a history of violence and
withholding “exculpatory evidence” of the contract dispute. As noted above, the
complaint accurately described Lamb’s prior judicial proceedings as “unsuccessful
prosecutions.” Assuming that Lamb had a legitimate contract dispute with the Celinskis,
he is nonetheless mistaken that this dispute provides a justification for him to use the
threat of violence to obtain payment.
In addition, it is well established that Ain initiating a prosecution and in presenting
the State's case, the prosecutor is immune from a civil suit for damages under ' 1983.@
Imbler v. Pachtman, 424 U.S. 409, 431 (1976). Therefore, Lamb’s claims against
defendant Dudley and Dudley’s boss, Montgomery County District Attorney Brett Ligon,
must be dismissed.
4. The Judge
Lamb also sues a state judge claiming that he found probable cause that he
committed aggravated assault based on a false statement about his history violence and
that he lacked jurisdiction because, in Lamb’s analysis, this was merely a civil contract
dispute. As noted above, the statement about Lamb’s history of violence accurately
noted that the prosecutions were unsuccessful, and his contract dispute does not justify
his threat of violence to obtain the Celinskis’ credit card. His claims thus fail on the
merits.
Merits aside, the judge is absolutely immune from suit.
Over a century ago, the Supreme Court embedded judicial
immunity into our jurisprudence. In Bradley v. Fisher, 1872,
80 U.S. (13 Wall.) 335, 347, 20 L.Ed. 646, the Court stated
that it is Aa general principle of the highest importance to the
proper administration of justice that a judicial officer, in
exercising the authority vested in him, shall be free to act
upon his own convictions, without apprehension of personal
consequences to himself@. Therefore, the Court held that
Ajudges of courts of superior or general jurisdiction are not
liable to civil actions for their judicial acts, even when such
acts are in excess of their jurisdiction, and are alleged to have
been done maliciously or corruptly@. 80 U.S. at 351.
Sparks v. Duval Cty. Ranch Co., 588 F.2d 124, 125 (5th Cir 1979).
5. Other Claims Against the Sheriff and District Attorney
Lamb also makes conclusory allegations that the allegedly unconstitutional
acts by defendants Berry and Dudley resulted from District Attorney Ligon’s and
Montgomery County Sheriff Rand Henderson’s failure to adequately train their
subordinates. He also claims that his prosecution was the result of a deliberately
discriminatory policy against Harris County residents by Ligon.
As discussed above, Lamb fails to identify any unconstitutional act by either
Berry or Dudley. He also fails to plead any facts in support of his failure to train
or equal protection claims allegations against Ligon and Henderson.
In order to avoid dismissal for failure to state a claim, a
plaintiff must plead specific facts, not mere conclusory
allegations....@ Elliott v. Foufas, 867 F.2d 877, 881 (5th
Cir.1989). AConclusory allegations and unwarranted
deductions of fact are not admitted as true@ by a motion to
dismiss. Associated Builders, Inc. v. Alabama Power
Company, 505 F.2d 97, 100 (5th Cir.1974).
Guidry v. Bank of LaPlace, 954 F.2d 278, 281 (5th Cir. 1992). Lamb’s failure to train
and equal protection claims are wholly conclusory and must be dismissed.
6. Miscellaneous Claims
Lamb also appears to assert claims for violations of his rights under the Contracts
clause, the Seventh Amendment, and “res judicata.”
a. Contracts Clause
The Contracts clause provides that “No State shall . . . pass any Law . . . impairing
the Obligation of Contracts . . . .” U.S. Const. art. I sec. 10. Lamb points to no state law
impairing his ability to enforce his contract and does not claim that he cannot file a civil
suit to enforce the contract. He was not arrested for pursuing legal remedies to enforce
his contract, but for committing a crime.
b. Seventh Amendment
The Seventh Amendment preserves the right to a jury trial in a civil case. Lamb
does not allege that has pursued a civil case or that his right to a jury trial was impeded in
such case,
c. Res Judicata
The doctrine of res judicata is a bar to relitigating claims under certain
circumstances. See, e.g., Norris, 500 F.3d at 461. It is not a cause of action.
7. Excessive Bail
Lamb contends that his $100,000 bail was excessive. The basis for this claim is
unclear: Lamb posted the bond and is not in custody. He has therefore suffered no injury
as a result of the allegedly excessive bail. Without an injury in fact, Lamb has no
standing to sue for this alleged violation. See Lujan v. Defenders of Wildlife, 504 □□□□
555, 560 (1992).
D. Conclusion and Order
The motions to dismiss (Docs. # 17 and 18) are GRANTED. The amended
complaint (Doc. # 10) is dismissed with prejudice. All other pending motions are
DENIED AS MOOT.
It is so ORDERED.
SIGNED on this 24" day of September, 2020.
KennethM.Hoyt |
United States District Judge
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