The opinion
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT Mtex tates District Cor
Southern District of Texas
December 15, 2022
Christopher A. Harper, ; Nathan Ochsner, Clerk
Plaintiff, §
versus § Civil Action H-22-2169
Ed Gonzalez, et al., §
§
Defendants. §
Opinion on Dismissal
fr. Introduction □
Christopher Harper spent roughly one year in Harris County jail while
charges against him were pending for sexual assault and promotion of
prostitution." He claims that one night while he was in custody, an inmate
physically assaulted him while he was asleep, hitting him across the top of his
head with a floor broom and leaving a permanent 4-5 inch scalp laceration.”
Since bonding out, he has brought suit against the United States, an unnamed
Harris County inmate, the State of Texas, and Harris County entities. He alleges
violations of his Eighth and Fourteenth Amendment rights, as well as
negligence, assault, emotional distress, pain and suffering, gross negligence, and
malice.
Harper's state court petition, removed to this Court on the basis of federal
question jurisdiction, is extremely unclear and unorganized and leaves much
doubt as to which defendant he intends to sue for which claims. The Court,
*}Doc, x} at 8.
* Id. at 7.
generously construing this action, will interpret (1) his physical assault claim to
be only against the inmate, (2) all other claims to be against all defendants.
Defendants Edison Toquica, Ed Gonzalez, and Laxman Sunder have each
moved to dismiss the claims against them; these motions, now before the Court,
will be granted. The Court will also sua sponte dismiss the claims against the
United States, the State of Texas, and Harris County, without prejudice and with
leave to amend
2, Legal Standard for 12 (b} (6) Motions
Rule 12(b}{6) allows a party to defend against a claim by moving to
dismiss it for failure to state a claim upon which relief can be granted.’ Plaintiffs
must offer specific, well-pleaded facts, as opposed to merely conclusory
allegations.® Mere labels, conclusions, and formulaic recitations of the elements
ofa cause of action will not suffice.° Courts in turn must accept well-pleaded facts
as true, and view them in the light most favorable to the plaintiff.” In sum, a
complaint fails to state a claim upon which relief may be granted when the
underlying legal claim is insufficiently supported by well-pleaded facts, or when
the well-pleaded facts, even when accepted as true, do not state a legally
3 As a general rule, even absent a formal motion by a party, “the district judge on his
or her own initiative may note the inadequacy of the complaint and dismiss it for failure to
state a claim as long as the procedure employed is fair to the parties.” Century Sur. Co. v.
Blevins, 799 F.3d 366, 372 (sth Cir. 2015) (citing 5B Charles A. Wright & Arthur R.
Miller, Federal Practice and Procedure—Civil § 1357 (3d ed. 2004)). A sua sponte dismissal
is fair when the court allows the plaintiff an opportunity to amend his complaint. See, ¢.g.,
Cofresi v. Medtronic, Inc., 450 F. Supp. 3d 759, 770 n.5 (W.D. Tex. 2020).
* Fed. R. Civ. P, 12.{b) (6).
> Guidry v. Bank of LaPlace, 954 F.ad 278, 282 (5th Cir. 1992).
° Bell Ad. Corp. v. Twombly, 550 U.S. 544, 555 (2.007) (citations omitted); Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009).
7 Yumilicious Franchise, LLC v. Barrie, 819 F.3d 170, 174 (5th Cir. 2016) (citing
Twombly, 550 U.S. at 370).
2.
cognizable claim.
2. The United States
Pro se litigants are not absolved from compliance with Rule 4's
requirements for service.’ Claims against an unserved defendant must be
dismissed, as courts have no personal jurisdiction over unserved defendants.?
Besides formally naming the United States as a defendant, the substance
of Harper's petition makes no allegations against the United States at all, and
nothing on file suggests that Harper ever served the United States. Given that
this Court does not have jurisdiction over the unserved United States, the claims
against it will be dismissed without prejudice.
To be sure, even if the United States had been properly served, nothing
indicates that there is a cognizable claim against it. While Harper makes broad
claims of constitutional violations, claiming that an individual or state entity
violated the Constitution does not alone implicate the United States as a
defendant. While the plaintiff may opt to try to extend the time for service and
amend his complaint, this attempt, based on the facts of this case, would almost
certainly be futile with respect to suing the United States.
4. The State of Texas
Harper brings suit against the State of Texas, “acting by and through the
name Harris County Jail, Harris County Jail Facility or Harris County Sheriff's
Office.”*® Construing his claim to be a §1983 claim against the State itself, the
action would be precluded by the Eleventh Amendment, which bars suits in
federal court against a state or one of its agencies, except when brought by the
® System Sign Supplies v. U.S. Dept. of Justice, g03 F.2d rort, ror3 (5th Cir. 1990).
See, e.g., Williams v. Lambright, No. 4:19-CV-00342-ALM-CAN, 2.020 WL
949205, at *x (E.D. Tex, Jan, 22, 2020} (collecting cases).
*TDoc, rf.
federal government or another state,”
Since the State of Texas has not waived its sovereign immunity for
purposes of § 1983 actions, claims against the State must be dismissed.”
5. Harris County
Despite that Harper's suit against Harris County may be legally
misguided insofar as he erroneously equated the county with the State, Harper
clearly intended to sue Harris County.
For municipal liability to apply under Monell,” a plaintiff must show that
an official policy or custom, promulgated by the municipal policymaker, was the
moving force behind the violation of a constitutional right."t Harper's petition
is wholly devoid of any facts indicating that the County was in any way
responsibie for the alleged assault, which the pleadings indicate is no more than
an isolated attack by a malicious inmate. With respect to mental health care, the
petition is unintelligible as to how any services were inadequate, let alone that
the inadequacies amounted to violations of a federally guaranteed right or that
the violations were pursuant to an official policy or custom. Finally, to the extent
that Harper pleads non-federal violations by the county, such claims would be
precluded by governmental immunity.”
Since Harper's pleadings are woetully deficient and fail to adequately state
™ Pennburst State Sch. Hosp. v. Halderman, 465 U.S, 89, r00 (1984),
* See, □□□ Lex, A co M Univ, Sys. vu. Koseoglu, 233 S.W.3d 835, 839 (Tex. 2007} (“Te
is up to the Legislature to institute such a waiver, and to date it has not seen fit to do so.”).
3 Monell v. Dep't of Soc. Serus. of City of New York, 436 U.S. 658 (1978).
“4 Peterson v. City of Fort Worth, 588 F.3d 838, 847 (sth Cir.2009} (citations
omitted).
*> Governmental immunity protects political subdivisions of the State, including
counties, from suit and liability. While the State has waived sovereign immunity in certain
contexts, those limited waivers are inapplicable to the facts of this case. See Tex. Civ. Prac. &
Rem. Code § ror.o21 (listing the exceptions).
4,
a claim against Harris County, including its jail, facilities, or sheriff's office, the
claims against the municipality will be dismissed.
6. Edison Toquica, Ed Gonzalez, and Laxman Sunder
While Toquica, Gonzalez, and Sunder have moved to dismiss the claims
against them, it does not appear that there are any claims against any of them at
all, either in their official or individual capacities, The petition explicitly omits
them from “Defendant(s}” and their only mention by name is when Harper
asserts that the State of Texas may be served with process by serving Toquica,
Gonzalez, or Harris."®
Even assuming that Harper did intend to sue Toquica, Gonzalez, and
Sunder, his claims would fail for failure to state a claim, whether under § 1983
or otherwise. As an initial matter, he does not plead any facts whatsoever that
indicates any individual culpability for Toquica, Gonzalez, and Sunder.
As for a § 1983 claim, he has not pleaded any facts suggesting that any
county official deprived him of federally guaranteed rights, much less facts that
might overcome the doctrine of qualified immunity, which protects conduct
which. does not violate clearly established statutory or constitutional rights.”
To the extent that he brings state tort claims against Toquica, Gonzalez,
and Sunder in their individual capacity, when such claims are based on conduct
within the general scope of the employee’s employment and could have been
brought against the governmental unit, they are considered against the employee
in their official capacity only, and the employees are entitled to dismissal of those
claims."
Doc. rf} at 6.
” Pratt v. Harris Cnty., Tex., 822 F.3d 174, 180-81 (5th Cir. 2016) (citations
omitted),
"Tex, Civ. Prac. & Rem. Code § ror.ro6(f); Wilkerson v. Univ. of N. Texas By &°
Through Bd. of Regents, 878 F.3d 147, 159 (5th Cir. 2017).
7. Unnamed Harris County Jail Inmate
Like the United States, the unnamed inmate allegedly responsible for the
physical assault has yet to be served. Accordingly, the Court does not have
jurisdiction over this defendant. In the Court’s August 10, 2.022 order, the
defendants were directed to diligently search for the names of those involved in
the incident, and Harper was directed to serve the unnamed inmate by
September 30, 2022,”
While the September 30, 2022 deadline has passed, the Court does not
know what processes have taken place with respect to the unnamed inmate since
the August ro, 2022 order, except an indication on its docket that on September
29, 2022, summons appear to have been issued as to Radolfo Perez, who
apparently is the unnamed inmate.
The Court will give Harper go days from September 29, 202.2 to serve
Radolfo Perez, so Harper must serve Perez by December 28, 2022. Harper may
also amend his petition to name Perez.
8. Conclusion
‘The defendants’ motions to dismiss will be granted, without prejudice
and with leave to amend. Additionally, Christopher Harper's claims against the
United States, the State of Texas, and Harris County will be dismissed, without
prejudice and with leave to amend.
By January 20, 2023, Harper may file an amended complaint or notify the
Court that he intends to stand on his current pleading,
Signed on December _/25”_, 2022, at Houston, Texas.
Lynn N. Hughes UV
United States District Judge
© Doc. xr}.