Payne v. City of Houston, Texas

Southern District of Texas

ENTERED

March 19, 2024

IN THE UNITED STATES DISTRICT COURT Nathan Ochsner, Clerk

FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

HARRIET PAYNE, et al, §

§

Plaintiffs, §

§

V. § Civil Action No. H-23-4686

§

CITY OF HOUSTON, TEXAS, and §

CHRISTOPHER CABRERA §

Defendants. §

§

ORDER

Pending before this Court are Defendant Christopher Cabrera’s Rule 12(b)(6)

Motion to Dismiss (Document No. 8) and Defendant City of Houston’s Rule

12(b)(6) Motion to Dismiss (Document No. 9). Having considered the motions,

submissions, and-appliable law, the Court determines that Defendant Cabrera’s

motion should be granted and Defendant City of Houston’s motion should be denied.

I. BACKGROUND □

This is a civil rights case arising out of a fatal car crash. Charles Payne Sr.

_ (the “Decedent”) was killed when his car collided with Defendant. Christopher

Cabrera’s (“Cabrera”) police cruiser. Cabrera was acting in the course and scope of

his employment as a police officer with the Houston Police Department (“HPD)

when he was heading from the Joint Processing Center (“JPC”) back to his station

‘to fill out a report. The collision occurred on N. Sheppard Drive when the Decedent

turned across oncoming traffic. Cabrera’s police cruiser subsequently hit the

‘Decedent’s vehicle. The Decedent’s beneficiaries contend that Cabrera was driving

recklessly and exceeding the 35-mile-per-hour speed limit when his police cruiser

collided with the Decedent’s vehicle.

On December 15, 2023, the Decedent’s relatives, Plaintiff Harriet Payne,

Plaintiff Charles Payne Jr., Plaintiff Cavin Payne, Plaintiff Stephanie Payne, Plaintiff

Betty Morrison, Plaintiff Kizz Goins, Plaintiff Katiana Dearborne, and Plaintiff

Robert Payne (collectively, “Plaintiffs brought this action against Cabrera and

Defendant the City of Houston (“Houston”) (collectively, the “Defendants”)

asserting claims: (1) under 42 U.S.C. § 1983 against Houston for failure to train and

supervise and for official policy; (2) under 42 U.S.C. § 1983 against Cabrera for

violations of the Fourteenth Amendment; and (3) under the Texas Tort Claim Act

(“TTCA”) against Houston.

Il. STANDARD OF REVIEW

Rule 12(b)(6) allows dismissal if a plaintiff fails “to state a claim upon which

relief can be granted.” Fed. R. Civ. P. 12(b)(6). Under Rule 8(a)(2), a pleading must

contain “a short and plain statement of the claim showing that the pleader is entitled

to relief.” Fed. R. Civ. P. 8(a)(2). Although “the pleading standard Rule 8 announces

does not require ‘detailed factual allegations,’ . . . it demands more than .. . ‘labels

and conclusions.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.

) . □

Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “[A] formulaic recitation of the

elements of a cause of action will not do.” Jd. (quoting Twombly, 550 U.S. at 555).

In deciding a Rule 12(b)(6) motion to dismiss for failure to state a claim, “[t]he

‘court accepts all well-pleaded facts as true, viewing them in the light most favorable

to the plaintiff.’ ” In re Katrina Canal Breeches Litig., 495 F.3d 191, 205 (Sth Cir.

2007) (quoting Martin K. Eby Constr. Co. v. Dall. Area Rapid Transit, 369 F.3d 464,

467 (Sth Cir. 2004)). To survive the motion, a plaintiff must plead “enough facts to

state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570.

“Conversely, ‘when the allegations in a complaint, however true, could not raise a

claim of entitlement to relief, this basic deficiency should . . . be exposed at the point

of minimum expenditure of time and money by the parties and the court.’ ” Cuvillier

v. Taylor, 503 F.3d 397, 401 (Sth Cir. 2007) (quoting Twombly, 550 U.S. at 558).

Ul. LAW & ANALYSIS

Defendants move to dismiss Plaintiffs’ claims contending: (1) Plaintiffs’ have

pled insufficient facts to causally connect the Decedent’s accident with any existing

HPD policy; (2) Plaintiffs’ TTCA claims fail because Plaintiffs fail to negate the

application of the TTCA’s emergency and 9-1-1 exceptions; (3) Plaintiffs fail to

overcome Houston’s governmental immunity as it relates to the TTCA claim; and

(4) Plaintiffs fail to allege a clearly established constitutional violation to overcome

-Cabrera’s qualified immunity. Plaintiffs contend: (1) they adequately plead facts to

demonstrate that Houston’s policies led to the Decedent’s death; (2) Houston’s

failure to train, supervise, and peeoune their officers when they drove at reckless

speeds whether or not they were responding to a call, also led to Decedent’s death;

(3) Plaintiffs have adequately pleaded their TTCA claims; and (4) Cabrera is not

entitled to qualified immunity. The Court first addresses Houston’s motion to

dismiss.

A. — Houston’s Motion to Dismiss □

Houston contends: (1) Plaintiffs fail to plead sufficient facts to support their

Monell claims; (2) Plaintiffs fail to plead any facts to. plausibly infer a Houston

policy was the moving force for a constitutional violation; and (3) Plaintiffs cannot

maintain their state law claims against Houston. Plaintiffs contend: (1) they have

adequately pleaded their Monell claims; and (2) their state law claims are not barred.

The Court first evaluates Harris County’s standing argument. .

2. Section 1983 Claims . . □

Houston contends Plaintiffs have not sufficiently pleaded facts showing

municipal liability under Monell for violation of Section 1983, including claims for _

municipal liability, failure to train, and failure to supervise. Plaintiffs contend they

have sufficiently pleaded facts to show Houston policy was a direct cause of the

accident and the deprivation of the Decedent’s constitutional rights. Specifically,

4

_ HPD had a policy allowing officers to drive over the speed limit and in a reckless

manner in non-emergency pitaetone! Plaintiffs further contends Houston’s liability

is evidenced by its failure to discipline or train officers following such alleged

incidents. Having considered the motion, submission, and applicable law, the Court

determines Houston’s motion as to the Plaintiffs’ Monell claims should be denied.

Accordingly, Houston’s motion as to Plaintiffs’ Monell claims is denied. The Court

now addresses the Plaintiffs claims underthe TTCA.

2. State Law Claims □

Houston contends the TTCA bars Plaintiffs’ state law claims. Houston

specifically contends: (1) Plaintiffs’ negligence per se claim is barred by the TTCA;

(2) Plaintiffs have failed to negate the emergency exception of the TTCA; and (3)

that the 9-1-1 exception.of the TTCA applies. Plaintiffs contend (1) Houston’s

negligence per se argument was just rejected by a Texas court of appeals; (2) the

emergency exception does not apply in this case;.and (3) the 9-1-1 exception does

not apply because Cabrera was not responding to 9-1-1 calls. Having considered the

motion, submissions, and appliable law, the Court finds the motion to dismiss the

Plaintiffs’ state law claims should be. denied. Accordingly, the motion to dismiss

Plaintiffs’ state law claims is denied. Therefore, Houston’s motion to-dismiss is

denied. The Court now turns to Cabrera’s motion to dismiss.

5 □

B. — Cabrera’s Motion to Dismiss

Cabrera contends that the Plaintiffs claims against him are barred by qualified □

immunity because they do not plead facts showing that Cabrera violated a clearly

‘established constitutional right of the Decedent. Plaintiffs contend Officer Cabrera

was deliberately indifferent in violating Mr. Payne’s substantive due process rights

under the Fourteenth Amendment.

When government officials are sued for a constitutional violation under

Section 1983, they may assert the affirmative defense of qualified immunity. Porter

v. Ascension Parish Sch. Bd., 393 F.3d 608, 612 (Sth Cir. 2004). “Qualified

immunity protects government officials performing discretionary functions from

[civil] liability ‘unless their conduct violates clearly established statutory or

constitutional rights of which a reasonable person would have known.’ ” Glenn v.

City of Tyler, 242 F.3d 307, 312 (Sth Cir. 2001) (quoting Gibson v. Rich, 44 F.3d

274, 276 (Sth Cir. 1995) The defense of qualified immunity provides ample room

for mistaken judgments on the government actors’ part and protects “all but the

plainly incompetent or those who knowingly violate the law.” Estate of Davis ex rel.

McCully v. City of N. Richland Hills, 406 F.3d 375, 380 (Sth Cir. 2005) (quoting

Malley v. Briggs, 475 U.S. 335, 341 (1986)). Qualified immunity is “immunity from

suit rather than a mere defense to liability.” Pearson v. Callahan, 555 U.S. 223, 237

(2009) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)).

Once qualified immunity is asserted, therefore, the burden shifts to the

plaintiff to demonstrate the defense does not apply. See McClendon v. City of

Columbia, 305 F.3d 314, 323 (5th Cir. 2002). This burden requires the plaintiff to

allege sufficient facts showing that: (1) the defendants violated a clearly established

constitutional right; and (2) the defendants’ actions were objectively unreasonable

under the circumstances. Collins v. Ainsworth, 382 F.3d 529, 537 (Sth Cir. 2004).

This inquiry also requires a court to “ask whether the law. so clearly and

unambiguously prohibited his conduct that every reasonable official would

understand that what he is doing violates the law.” Morgan v. Swanson, 696 F.3d

359, 370 (5th Cir. 2011). “In other words, existing precedent must have placed the

statutory or constitutional question confronted by the official beyond debate.”

Plumhoff v. Rickard, 572 U.S. 765, 779 (2014) (quoting Ashcroft v. al-Kidd, 563

U.S. 731, 741 (2011)).

Here, the Decedent died after an automobile collision with Cabrera’s police

cruiser. Cabrera contends’ that because the accident occurred in the context of a

traffic incident, there is no constitutional right oleton Cabrera further contends

that his sworn testimony from a related case shows he was not driving recklessly.

' The Court notes that the Plaintiffs’ object to the sworn testimony being considered.

Cabrera contends the testimony is referred to in the Plaintiffs’ complaint and is properly

considered in a 12(b)(6) motion. in resolving a motion to dismiss, a court may consider

documents attached to the Rule 12(b)(6) motion that are referred to in their complaint and

are central to their claim. Sligh v. City of Conroe, Tex., 87 F.4th 290, 297 (5th Cir. 2023).

7 □

The Plaintiffs contend Cabrera’s reckless driving violated the Decedent’s

“fundamental right to life.” The Supreme Court has repeatedly held that courts

should not evaluate clearly established law at a high level of generality and not as a

broad general proposition. See Rivas-Villegas v. Cortesluna, 142 S. Ct. 4 (2021);

City of Tahlequah, Oklahoma v. Bond, 142 S. Ct. 9 (2021); City of Escondido, Cal.

v. Emmons, 139 S. Ct. 500 (2019). Generally, an officer will not be held to violate

one’s constitutional rights as a result of a motor vehicle accident. County of

Sacramento v. Lewis, 523 U.S. 833, 854 (1998) (“[W]e hold that high-speed chases

with no intent to harm suspects physically or to worsen their legal plight do not give

rise to liability under the Fourteenth Amendment, redressable by an action under §

1983.”); Daniels v. Williams, 474 U.S. 327, 328 (1986), holding that the Due Process

Clause is not implicated by a negligent act of an official causing unintended loss of

or injury to life, liberty, or property).

However, the Plaintiffs contend that Cabrera acted recklessly and, therefore,

showed a deliberate indifference. The Fifth Circuit has stated that deliberate

Accordingly, the Court considers the testimony for the limited purpose of fully

understanding the nature of the accident. While the Plaintiffs contend Cabrera was

not responding to an emergency and was succeeding the speed limit with no lights

or sirens on. Cabrera contends he was still attached to a priority two event (a DWI

arrest) and as such had some authority to speed, but none the less was driving in a

non-reckless manner.

2 Plaintiffs’ Response to Defendant Officer Cabrera’s Motion to Dismiss,

Document No. 13 at 5.

indifference is a high burden. M.D. by Stukenberg v. Abbott, 907 F.3d 237, 251-52

(5th Cir. 2018). There is no Fifth Circuit precedent to establish that a police officer

involved in a motor vehicle accident result in the deprivation of one’s clearly

established constitutional rights. The Plaintiffs instead rely on out-of-circuit cases to

establish a constitutional right. Browder v. City of Albuquerque, 787 F.3d 1076, 1077

(10th Cir. 2015) (holding an officer driving with lights and sirens on and speeding

while off duty could not assert qualified immunity) and Flores v. City of S. Bend,

997 F.3d 725, 728 (7th Cir. 2021) (an officer speeding and running street lights in a

residential neighborhood acted with deliberate indifference and could not assert

qualified immunity). These out-of-circuit cases are distinguishable from the instant

case where Cabrera was on duty and acting within the scope of his employment as

he was attached to police activity. Additionally, here the accident occurred on a six-

lane street and not a residential neighborhood, when the Decedent turned into

oncoming traffic.? While tragic, the file supports that this was a pure accident that

occurred while Cabrera was on duty, following procedures, and attached to a police

activity. The Plaintiffs produce no controlling authority (or clearly on-point

persuasive authority) supporting the contention that “the statutory or constitutional

question confronted by [Cabrera] was beyond debate.” Plumhoff, 572 U.S. at 779.

3 Original Complaint, Document No. 1 at 7-8.

_ Specifically, there is no precedent to suggest that Cabrera who was in the scope of

his police duty knowingly violated a constitutional right because of the motor vehicle

accident. Accordingly, the Court finds the Plaintiffs have failed to meet their burden □

to overcome Cabrera’s qualified immunity. The Court thus determines Cabrera is

entitled to qualified immunity as to the § 1983 claims against him. Accordingly, the

motion to dismiss is granted as to the § 1983 claims against Cabrera.

I. CONCLUSION

Accordingly, the Court hereby

ORDERS that Defendant Christopher Cabrera’s Rule. 12(b)(6) Motion to

Dismiss (Document No. 8) is GRANTED. The Court further □

ORDERS that Defendant City of Houston’s Rule 12(b)(6) Motion to Dismiss

(Document No. 9) is DENIED. The Court further

ORDERS that the Plaintiffs’ Section 1983 claim against Defendant Cabrera

is DISMISSED. . □

SIGNED at Houston, Texas, on this 19 day of March, 2024.

DAVID HITTNER

United States District Judge

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