Vardeman v. City Of Houston

IN THE UNITED STATES DISTRICT COURT April 29, 2021

FOR THE SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk

HOUSTON DIVISION

WILLIAM VARDEMAN, §

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Plaintiff, §

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VS. § CIVIL ACTION NO. H-20-3242

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CITY OF HOUSTON, et al., §

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Defendants. §

MEMORANDUM AND OPINION

William Vardeman alleges that a City of Houston employee working to control traffic at

Houston’s Hobby Airport assaulted him while he was picking up his family at the airport. He sued

the City of Houston and the employee, Rickey Dewayne Simpson, in state court, alleging federal

civil rights violations. (Docket Entry No. 1-6). The City removed based on federal question

jurisdiction, then moved to dismiss under Rule 12(b)(1) and Rule 12(b)(6), and Simpson moved

to dismiss for failure to state a claim under Rule 12(b)(6). (Docket Entry Nos. 14, 15).

Based on the motions, the response, the record, and oral argument held in December 2020,

the court grants the City of Houston’s motion to dismiss and grants and denies in part Simpson’s

motion to dismiss. The claims that remain are against Simpson, under § 1983, for allegedly

violating Vardeman’s Fourth Amendment rights and, under state law, for assault. The reasons for

these rulings are set out below.

I. The Complaint Allegations

In September 2018, Vardeman flew into Hobby Airport in Houston on a business trip.

(Docket Entry No. 12 ⁋ 6). His family took a later flight to join him, and he returned to the airport

to pick them up. (Id. ⁋⁋ 7–8). Vardeman parked in the passenger area and, while trying to

communicate with his wife and daughter, did not immediately comply with traffic officers’

requests to move his car forward. (Id. ⁋⁋ 9–12). While Vardeman was opening his tailgate to load

his family’s luggage into the car, the traffic attendant approached him again and said “I told you

to move your fucking car.” (Id. ⁋13). Vardeman explained that his family was right there and that

he would move as soon as the bags were loaded. (Id.). The traffic attendant called backup. (Id.).

As Vardeman finished loading his family and bags into the car, he was approached by Simpson,

who yelled into his face, “[y]ou need to move the fucking car or I will whip your bitch ass.” (Id.

⁋ 15). Vardeman’s daughter, who was holding her baby, tried to separate the two men, but

Simpson “forcefully pushed” her. (Id. ⁋ 16). Simpson and Vardeman then scuffled. Simpson

allegedly hit Vardeman with a closed fist, knocking him to the ground and “menacing” him. (Id.

at 17–18). Vardeman called City of Houston police officers to the scene. The officers reviewed

the security footage and asked why Simpson had approached Vardeman. (Id. at ⁋ 20).

Vardeman asserts claims against the City for Fourth and Fourteenth Amendment

violations, mental anguish, negligence, and deliberately indifferent or negligent hiring and

management. (Id. at 18–20). He asserts state-law claims against Simpson for assault and battery,

mental anguish, and federal-law claims under 42 U.S.C. § 1983. (Id. at 18–19).

II. The Legal Standards

A. Rule 12(b)(1) and Lack of Jurisdiction Based on Sovereign Immunity

Rule 12(b)(1) governs challenges to a court's subject-matter jurisdiction. “Under Rule

12(b)(1), a claim is properly dismissed for lack of subject-matter jurisdiction when the court lacks

the statutory or constitutional power to adjudicate the claim.” In re FEMA Trailer Formaldehyde

Prods. Liab. Litig. (Miss. Plaintiffs), 668 F.3d 281, 286 (5th Cir. 2012) (quotation omitted).

“Courts may dismiss for lack of subject matter jurisdiction on any one of three different bases: (1)

the complaint alone; (2) the complaint supplemented by undisputed facts in the record; or (3) the

complaint supplemented by undisputed facts plus the court's resolution of disputed facts.” Clark

v. Tarrant Cty., 798 F.2d 736, 741 (5th Cir. 1986) (citing Williamson v. Tucker, 645 F.2d 404, 413

(5th Cir. 1981)). The plaintiff bears the burden of demonstrating that subject-matter jurisdiction

exists. See Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001). “[A] motion to dismiss

for lack of subject matter jurisdiction should be granted only if it appears certain that the plaintiff

cannot prove any set of facts in support of his claim that would entitle [the] plaintiff to relief.”

Ramming, 281 F.3d at 161 (citing Home Builders Ass'n of Miss., Inc. v. City of Madison, Miss.,

143 F.3d 1006, 1010 (5th Cir. 1998)).

B. Rule 12(b)(6) and Pleading Deficiencies

A pleading is deficient and may be dismissed under Rule 12(b)(6) if a plaintiff fails “to

state a claim upon which relief can be granted.” FED. R. CIV. P. 12(b)(6). Rule 12(b)(6) is read in

conjunction with Rule 8(a), which requires “a short and plain statement of the claim showing that

the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). A complaint must contain “enough facts

to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S.

544, 555 (2007); Ashcroft v. Iqbal, 556 U.S. 662 (2009). Rule 8 “does not require ‘detailed factual

allegations,’ but it demands more than an unadorned, the-defendant-unlawfully-harmed-me

accusation.” Iqbal, 556 U.S. at 678. “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.” Id. “The plausibility standard is not akin to a ‘probability

requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.”

Id. The court must “construe the complaint in the light most favorable to the plaintiff.” In re

Great Lakes Dredge & Dock Co. LLC, 624 F.3d 201, 210 (5th Cir. 2010).

III. The Claims Against the City

A. The State-Law Tort Claims and Immunity

The City of Houston challenges subject-matter jurisdiction as to the claims against it,

arguing that, as a governmental unit, it is immune from suit for deliberately indifferently or

negligently hiring Simpson, and from respondeat superior or agency liability for Simpson’s

allegedly tortious acts. The court agrees.

“In Texas, sovereign immunity deprives a trial court of subject-matter jurisdiction for

lawsuits in which the state or certain governmental units have been sued unless the state consents

to suit.” Texas Dept. of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex. 2004); see also

TEX. CIV. PRAC. & REM. CODE § 101.057(2) (including cities in the definition of “governmental

units” for purposes of the Texas Tort Claims Act). The Texas Tort Claims Act waives

governmental immunity for specific types of tort claims, including: (1) the use of motor-driven

vehicles or equipment, (2) the condition or use of personal property, and (3) premises defects. See

TEX. CIV. PRAC. & REM. CODE § 101.021; Texas Dep't of Crim. Just. v. Miller, 51 S.W.3d 583,

587 (Tex. 2001) (“The Tort Claims Act provides a limited waiver of sovereign immunity, allowing

suits to be brought against governmental units only in certain, narrowly defined circumstances.”).

Vardeman has not identified a waiver of immunity encompassing his state-law claims

against the City. Governmental immunity deprives this court of subject-matter jurisdiction under

Miranda, 133 S.W.3d at 224. The City’s Rule 12(b)(1) motion to dismiss Vardeman’s deliberately

indifferent or negligent hiring claims and his respondeat superior and agency claims is granted.

B. Federal-Law Municipal Liability Claims Under § 1983

The City argues that Vardeman has not pleaded facts that plausibly allege municipal

liability under 42 USC § 1983. (Docket Entry No. 15 at 9–10). “Section 1983 provides a remedy

against ‘any person’ who, under color of state law, deprives another of rights protected by the

Constitution.” Collins v. City of Harker Heights, Tex., 503 U.S. 115, 120 (1992). A local

government may not be sued under § 1983 for the deprivation of rights guaranteed by the

Constitution or federal law inflicted solely by its employees or agents. Instead, it is “when

execution of a government’s policy or custom, whether made by its lawmakers or by those whose

edicts or acts may fairly be said to represent official policy, inflicts the injury that the government

entity is responsible under § 1983.” Monell v. N.Y.C. Dept. of Soc. Servs., 436 U.S. 658, 691

(1978). To allege a plausible claim under § 1983 against a municipality, “a plaintiff must show

that (1) an official policy (2) promulgated by the municipal policymaker (3) was the moving force

behind the violation of a constitutional right.” Peterson v. City of Fort Worth, 588 F.3d 838, 847

(5th Cir. 2009).

Vardeman alleges that when he went to pick up his family from the airport in September

2018, he got into an altercation with a “Houston Airport System” employee about where he had

stopped his car. (Docket Entry No. 1-6 at 3–4). He alleges that the employee, Simpson,

approached him to make him move his car and pushed Vardeman’s daughter, who was holding his

granddaughter. When Vardeman reacted by pushing Simpson away from his daughter, Simpson

punched him in the face. Vardeman called 911 and two Houston Police Department officers

arrived, reviewed security footage, and asked why Simpson had aggressively approached

Vardeman, seemingly unprovoked.

In his amended complaint, Vardeman lists a hodge-podge of unrelated incidents of Houston

police and correctional officer violence in an attempt to show that Simpson’s actions were part of

a “custom, policy, practice, and procedure of using excessive force on individuals and not

disciplining or training officers adequately,” in violation of the Fourth and Fourteenth

Amendment. (Docket Entry No. 12 ⁋ 33).

Vardeman does not assert that the Houston police officers assaulted him. To the contrary,

he alleges that he called them to the scene to protect him after Simpson’s “assault” and that they

took his side against Simpson.

None of the facts that Vardeman alleges about the altercation with Simpson or the other

airport employees show that the airport employees engaged in a pattern or practice of

assaultingpeople at the airport, that the incident was the product of a failure to train the employees,

or that the City was deliberately indifferent to the risk of the assault. The Fifth Circuit has rejected

§ 1983 claims based on one incident. See Sanchez v. Young Cty., Texas, 866 F.3d 274, 280 (5th

Cir. 2017) (“Plaintiffs’ claim fails on several fronts. First, the principal evidence of the alleged

‘policy or custom’ arises from . . . this single case. To be unconstitutional, however, a municipal

entity's policy that derives from custom or practice must be ‘so common and well settled as to

constitute a custom that fairly represents municipal policy’” (quotation omitted)).

Alleging a string of unrelated incidents involving different types of police acts in disparate

contexts does not address this deficiency because the alleged incidents do not show a relevant

“pattern.” As the City points out in its motion to dismiss, “[a] pattern requires similarity and

specificity; prior indications cannot simply be for any and all ‘bad’ or unwise acts, but rather must

point to the specific violation in question.” Vouchides v. Houston Cmty. Coll. Sys., 2011 WL

4592057, at *12 (S.D. Tex. Sept. 30, 2011) (quoting Peterson v. City of Fort Worth, Tex., 588 F.3d

838, 845 (5th Cir. 2009). Vardeman has provided a list of alleged bad acts, but he has not alleged

or shown that the bad acts he cites have any connection to his altercation with an airport employee.

He has not pleaded a cognizable § 1983 claim against the City of Houston, and the City’s motion

to dismiss the § 1983 claims is granted.

IV. The Claims Against Simpson

C. The State-Law Tort Claims

Simpson argues that Vardeman’s tort claims against him are barred by the election of

remedies provision in the Texas Tort Claims Act. Vardeman sued Simpson in his official capacity

as a city employee and he sued the City. (Docket Entry No. 14 at 6). In his response and at oral

argument, Vardeman clarified that, pleading in the alternative, he sues Simpson in his personal

capacity, not under the Texas Tort Claims Act. (Docket Entry No. 16 at 5).

Under Texas law, assault occurs when a person:

(1) intentionally, knowingly, or recklessly causes bodily injury to another. . . ;

(2) intentionally or knowingly threatens another with imminent bodily injury . . . ; or

(3) intentionally or knowingly causes physical contact with another when he or she knows

or should reasonably believe that the other will regard the contact as offensive or

provocative.

City of Watauga v. Gordon, 434 S.W.3d 586, 590 (Tex. 2014). Vardeman alleges facts showing

intent, physical contact, and harm. He has stated a claim for assault.

D. The § 1983 Claims

Simpson argues that Vardeman has not stated a § 1983 claim against him because

Vardeman has not plausibly alleged that Simpson acted under color of state law. Alternatively,

Simpson argues that he is entitled to qualified immunity from Vardeman’s § 1983 claims.

1. Action Under Color of State Law

Vardeman has pleaded that Simpson assaulted him in his individual capacity and, in the

alternative, alleges that Simpson violated his Fourth and Fourteenth Amendment rights while

acting under color of state law. To state a claim under § 1983, “a plaintiff must allege facts

showing that a person, acting under color of state law, deprived the plaintiff of a right, privilege

or immunity secured by the United States Constitution or the laws of the United States.” Bryant

v. Military Dep’t of Miss., 597 F.3d 678, 686 (5th Cir. 2010). Vardeman alleges that Simpson

approached him in response to a call for backup from another airport employee, that Simpson

approached him in his capacity as an airport employee, and that the police subsequently described

the incident as involving an “airport employee striking [a] man and the man falling to the ground.”

(Docket Entry No. 12 at 3–4). Vardeman plausibly alleged that Simpson acted under color of state

law.

2. Qualified Immunity

Qualified immunity shields government officials from liability when they are acting within

their discretionary authority and their conduct does not violate clearly established statutory or

constitutional law. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); Flores v. City of Palacios,

381 F.3d 391, 393–94 (5th Cir. 2004). A court must determine whether a statutory or constitutional

right would have been violated on the facts alleged, Saucier v. Katz, 533 U.S. 194, 200 (2001);

Aucoin v. Haney, 306 F.3d 268, 272 (5th Cir. 2002), and whether the defendant’s actions violated

“clearly established statutory or constitutional rights of which a reasonable person would have

known.” Flores, 381 F.3d at 395 (quoting Hope v. Pelzer, 536 U.S. 730, 739 (2002)).

If the law was clearly established at the time of the incident, the court must decide whether

the defendant’s conduct was objectively reasonable. Aucoin, 306 F.3d at 272. An official’s

conduct is objectively reasonable unless a reasonable person in the defendant’s circumstances

would have known that the conduct violated the Constitution. Hampton v. Oktibbeha Cnty. Sheriff

Dep’t, 480 F.3d 358, 363 (5th Cir. 2007). Even if the government official’s conduct violates a

clearly established right, the official is nonetheless entitled to qualified immunity if his or her

conduct was objectively reasonable. Hernandez ex rel. Hernandez v. Tex. Dep’t of Protective &

Regulatory Servs., 380 F.3d 872, 879 (5th Cir. 2004). “[T]he qualified immunity standard ‘gives

ample room for mistaken judgments’ by protecting ‘all but the plainly incompetent or those who

knowingly violate the law.’” Mangieri v. Clifton, 29 F.3d 1012, 1017 (5th Cir.1994) (quoting

Anderson v. Creighton, 483 U.S. 635, 638 (1987)).

Vardeman asserts that Simpson’s actions violated both his Fourteenth Amendment right to

due process and his Fourth Amendment right to be free from excessive force. Vardeman’s

response to Simpson’s motion to dismiss defends only the excessive force claim. (See Docket

Entry No. 16 at 4, 6). The complaint makes the conclusory allegation that “the force used by

[Simpson]” violated Vardeman’s due process rights under the Fourteenth Amendment.

“To state a Fourteenth Amendment due process claim under § 1983, a plaintiff must first

identify a protected life, liberty or property interest and then prove that governmental action

resulted in a deprivation of the interest.” Gentilello v. Rege, 627 F.3d 540, 544 (5th Cir. 2010)

(internal quotation marks omitted). In limited circumstances, courts have also found a substantive

due process violation: “an action government officials may not take no matter what procedural

protections accompany [it].” Rosedale Missionary Baptist Church v. New Orleans City, 641 F.3d

86, 89–90 (5th Cir. 2011) (internal quotation marks and alteration omitted). The complaint fails

to describe the protected interest or to identify the claimed substantive due process allegation. The

complaint does not state enough facts to state a due process claim that is plausible on its face. See

Twombly, 550 U.S. at 555. The Fourteenth Amendment claim against Simpson is dismissed.

An excessive force claim requires (1) an injury, (2) resulting directly and only from the use

of force that was clearly excessive to the need, (3) the excessiveness of which was objectively

unreasonable. Poole v. City of Shreveport, 691 F.3d 624, 628 (5th Cir. 2012) (citing Ontiveros v.

City of Rosenberg, 564 F.3d 379, 382 (5th Cir.2009)). Vardeman alleged that Simpson hit him,

knocking him to the ground and injuring him. Vardeman’s car may have been improperly parked,

and airport employees had urged him to move his car before Simpson approached and punched

him. Simpson knew that Vardeman had at most committed a parking violation and could see as

he approached that Vardeman was loading bags into a car, as is common at the airport. Vardeman

was not engaged in a dangerous activity. Simpson allegedly approached him aggressively and

threatened to “whip [his] bitch ass” before striking him in the head and knocking him to the ground.

The facts alleged state a claim for force was an excessive and objectively unreasonable reaction to

a parking infraction. Simpson’s motion to dismiss this claim is denied.

V. Conclusion

The City of Houston’s motion to dismiss, (Docket Entry No. 15), is granted. Rickey

Simpson’s motion to dismiss, (Docket Entry No. 14), is granted and denied in part. The assault

claim against Simpson and the § 1983 Fourth Amendment claim against Simpson in his individual

capacity proceed.

SIGNED on April 29, 2021, at Houston, Texas.

Lee H. Rosenthal

Chief United States District Judge

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