dismissing purported plaintiff’s claim upon finding that “it remains uncertain whether she is the estate’s sole heir,” in turn making it “unclear whether administration is necessary and, thus, whether she has capacity to maintain a survival action as a legal heir”
How later courts described this case
- dismissing purported plaintiff’s claim upon finding that “it remains uncertain whether she is the estate’s sole heir,” in turn making it “unclear whether administration is necessary and, thus, whether she has capacity to maintain a survival action as a legal heir”
Written by the judges who cited it.
The opinion
September 30, 2024
Nathan Ochsner, Clerk
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
STACY SINGLETON, § CIVIL ACTION NO
individually, and as the § 4:23-cv-03141
personal representative of §
THE ESTATE OF §
RICHARD AJENE §
HIPOLITO, §
Plaintiffs, §
§
§
vs. § JUDGE CHARLES ESKRIDGE
§
§
HARRIS COUNTY, §
TEXAS, et al, §
Defendants. §
OPINION AND ORDER
GRANTING MOTIONS TO DISMISS
Defendants Highlands Volunteer Fire Department,
Harris County and Sheriff Ed Gonzalez, Deputy J.
Villarreal, and Deputy Clinton Russell filed several
motions to dismiss arguing numerous grounds for
dismissal. Dkts 10, 12, 13 & 14.
Plaintiff Stacy Singleton purports to bring this action
in her individual capacity and as the representative of the
estate of decedent Richard Ajene Hipolito. Dkt 6 at ¶5. As
pleaded, she lacks standing to pursue such claims. The
motions to dismiss are thus granted with respect to lack of
subject-matter jurisdiction.
1. Background
Erroneously titled as the first amended complaint, the
second amended complaint is the current pleading. See
Dkt 6. It alleges as follows.
Hipolito was 37 years old when he died. Dkt 6 at ¶15.
On August 20, 2021, a 911 call reported a suspicious male
running toward cars and into the street. Deputy Villarreal
saw Hipolito and detained him, having observed that he
matched the description of the man described in the
emergency call. Deputy Russell arrived and told Villarreal
that a woman who knew Hipolito and lived nearby reported
that he had fled after forcing his way into her apartment,
and that she believed Hipolito was under the influence of
drugs. Id at ¶13.
Personnel from the City of Highlands Volunteer Fire
Department arrived at the scene, and soon after, Hipolito
was injected with ketamine. Id at ¶14. He went into
medical distress, was rushed to an emergency room, and
died three days later, on August 24, 2021. Id at ¶15. An
autopsy report dated August 27, 2021, noted that
methamphetamine and ketamine were in his system.
Id at ¶16; see Dkt 20 at 14 (as to date).
Singleton filed her original complaint on August 24,
2023, for constitutional violations under 42 USC §1983.
Dkt 1. No service on that complaint was ever attempted.
On December 1, 2023, she filed both a first and then a
second amended complaint. Dkts 4 & 6. She then
undertook service of the second amended complaint.
As to party capacity, Singleton alleges that she brings
this action “Individually and as the Personal
Representative of the Estate of Richard Ajene Hipolito.”
Dkt 6 at ¶5. Nothing is otherwise stated as to who she is or
how she’s connected to Hipolito. Nor is there any
explanation as to why she allegedly has capacity to bring
suit on his behalf.
As to claims, Singleton states that she “brings this
wrongful death and survival suit against the Defendants,
state actors, for the deprivation of Hipolito’s constitutional
rights, liberties, and freedom to be free of excessive and
unreasonable use of force pursuant to the Fourth and
Fourteenth Amendments of [the] Constitution of the
United States and other state law claims.” Id at ¶1.
Although that general opening refers to other state law
claims, none are alleged as a cause of action. Instead, to the
extent discernible, the claims asserted are as follows:
o Against Harris County and, in their official
capacities, Sheriff Ed Gonzalez, Deputy Villarreal,
Deputy Russell, and other “unknown Harris County
employees,” Singleton brings a §1983 claim for
excessive force and deprivation life, liberty, and
property without due process, along with other
allegations relating to (i) a policy of injecting
ketamine into detainees, (ii) a failure to train
and/or supervise in this regard, and (iii) an absence
of qualified immunity. Dkt 6 at ¶¶24–36.
o Against the City of Highlands, Texas, the City of
Highlands Fire Department, and “unknown
Highlands fire department EMS personnel,” she
brings a similar claim under §1983, recasting it
somewhat to pertain in terms to a different
municipality and its personnel. Id at ¶¶37–49; see
also id at ¶12.
o Against Sheriff Gonzalez, individually, she brings
a claim under §1983 for failure to supervise and
train. Id at ¶¶50–55.
Pending are four motions to dismiss. Highlands
Volunteer Fire Department (which is misidentified, it says,
as City of Highlands Fire Department in the second
amended complaint) seeks dismissal on grounds that it’s
improperly named and untimely served, failure to state a
claim, and statute of limitations. Dkt 10. Harris County
and Sheriff Gonzalez seek dismissal as to the statute of
limitations, lack of subject-matter jurisdiction due to lack
of standing, and failure to state a claim. Dkt 12. Deputies
Villarreal and Russell raise those same grounds, while also
asserting qualified immunity. Dkts 13 & 14.
2. Legal standard
Subject-matter jurisdiction is inherently a threshold
matter. Steel Co v Citizens for a Better Environment,
523 US 83, 94–95 (1998), citing Mansfield, Coldwater &
Lake Michigan Railway Co v Swan, 111 US 379, 382
(1884). The Fifth Circuit admonishes, “Federal courts, both
trial and appellate, have a continuing obligation to
examine the basis for their jurisdiction. The issue may be
raised by parties, or by the court sua sponte, at any time.”
MCG, Inc v Great Western Energy Corp, 896 F2d 170, 173
(5th Cir 1990) (citations omitted). Dismissal is appropriate
“when the court lacks the statutory or constitutional power
to adjudicate the claim.” In re Federal Emergency
Management Agency Trailer Formaldehyde Products
Liability Litigation, 668 F3d 281, 286 (5th Cir 2012),
quoting Home Builders Association Inc v City of Madison,
143 F3d 1006, 1010 (5th Cir 1998) (internal quotations
omitted).
The burden is on the party asserting jurisdiction to
establish by a preponderance of the evidence that it’s
proper. New Orleans & Gulf Coast Railway Co v Barrois,
533 F3d 321, 327 (5th Cir 2008). Indeed, a presumption
against subject-matter jurisdiction exists that “must be
rebutted by the party bringing an action to federal court.”
Coury v Prot, 85 F3d 244, 248 (5th Cir 1996).
A plaintiff must establish standing because the United
States Constitution vests power in the federal courts to
adjudicate only “Cases” and “Controversies.” Art III, §2.
The burden is squarely upon the party asserting a claim in
federal court to establish Article III standing by showing
that (i) he’s suffered an injury in fact, (ii) the injury is fairly
traceable to the challenged conduct, and (iii) the injury is
likely to be redressed by a favorable decision. Lujan v
Defenders of Wildlife, 504 US 555, 560–61 (1992); Spokeo
Inc v Robins, 578 US 330, 338 (2016). The plaintiff must
clearly allege facts at the pleading stage that demonstrate
each criterion. Spokeo, 578 US at 338, quoting Warth v
Seldin, 422 US 490, 518 (1975).
3. Analysis
The second amended complaint alleges that Singleton
is entitled to recover for the injuries, damages, and death
of Hipolito pursuant to the wrongful-death and survival
statutes of Texas. Dkt 6 at ¶61.
The Texas wrongful-death statute provides, “A person
is liable for damages arising from an injury that causes an
individual’s death if the injury was caused by the person's
or his agent’s or servant’s wrongful act, neglect,
carelessness, unskillfulness, or default.” Tex Civ Prac &
Rem Code §71.002(b). In relevant part, it also states, “An
action to recover damages as provided by this subchapter
is for the exclusive benefit of the surviving spouse,
children, and parents of the deceased.” Id at §71.004. Not
surprisingly, then, to bring suit under the Texas wrongful-
death statute “a party is required to prove that he or she
was the deceased’s spouse, child, or parent.” Shepherd v
Ledford, 962 SW2d 28, 31 (Tex 1998), citing Tex Civ Prac
& Rem Code §71.004.
The Texas survival statute states, “A personal injury
action survives to and in favor of the heirs, legal
representatives, and estate of the injured person.” Tex Civ
Prac & Rem Code §71.021(b). The implications as to
standing are thus clear. “A deceased’s estate has standing
to bring a survival action, not individuals; but limited
classes of persons are statutorily granted capacity to bring
the survival action on behalf of the estate.” Turk v
Mangum, 268 F Supp 3d 928, 934 (SD Tex 2017), citing
Austin Nursing Center, Inc v Lovato, 171 SW3d 845, 849–
51 (Tex 2005). “Generally, only personal representatives of
the estate are entitled to bring a personal injury action.”
Austin Nursing Center, Inc, 171 SW3d at 848–50.
The only allegation in the second amended complaint
with any specific information about Singleton is this:
“Plaintiff, STACY SINGLETON, Individually and as the
Personal Representative of the ESTATE of RICHARD
AJENE HIPOLITO, is an individual who is a resident of
Harris County, Texas.” Dkt 6 at ¶5. Nothing is alleged to
indicate that she’s the spouse, child, or parent of Hipolito
under the Texas wrongful-death statute. Nor does
anything explain why she’s included within the ambit of
heirs, legal representatives, or estate of Hipolito under the
Texas survival statute.
The second amended complaint thus fails to allege
facts sufficient to show that Singleton has standing to
pursue this action under the wrongful-death and survival
statutes of Texas. The motions will thus be granted on that
basis.
The other arguments for dismissal include statute of
limitations, failure to state a claim, and (where
appropriate) qualified immunity. These assertions are
substantial. But with subject-matter jurisdiction found to
be lacking, they aren’t properly addressed.
4. Potential for repleading
A district court “should freely give leave [to amend]
when justice so requires.” FRCP 15(a)(2). The Fifth Circuit
holds that this evinces a bias in favor of granting leave to
amend. See Dussouy v Gulf Coast Investment Corp,
660 F2d 594, 597(5th Cir 1981); Carroll v Fort James Corp,
470 F3d 1171, 1175 (5th Cir 2006). But whether to grant
such leave is within the sound discretion of the district
court. Pervasive Software Inc v Lexware GmbH & Co KG,
688 F3d 214, 232 (5th Cir 2012), quoting Wimm v Jack
Eckerd Corp, 3 F3d 137, 139 (5th Cir 1993). It may be
denied “when it would cause undue delay, be the result of
bad faith, represent the repeated failure to cure previous
amendments, create undue prejudice, or be futile.”
Morgan v Chapman, 969 F3d 238, 248 (5th Cir 2020),
citing Smith v EMC Corp, 393 F3d 590, 595 (5th Cir 2004).
Singleton submitted a sparse declaration with two of
her responses. See Dkts 20-1 at 2–3 & 22-1 at 2–3. She
states without explanation that (i) she’s Hipolito’s mother
and “an heir” to his estate, (ii) he died intestate, and (iii) no
administration of his estate is pending, and “none is
necessary.” Absent is even a listing of Hipolito’s date of
birth, much less any information about his circumstances
or upbringing, any details about his father or siblings or
other family relations, or any other facts to support
assertion that she’s his mother. Neither is there any
information about the status of Hipolito’s estate or any
administrator, including whether anything in that regard
has been resolved or if any debts remain pending.
On its own, this is insufficient to establish capacity
under the Texas wrongful-death statute. As noted above,
such statute of its own terms “is for the exclusive benefit of
the surviving spouse, children, and parents of the
deceased.” Tex Civ Prac & Rem Code §71.004(a). They may
bring action either together “or one or more of those
individuals may bring the action for the benefit of all.” Id at
§71.004(b). And if none of them “have begun the action
within three calendar months after the death of the injured
individual,” the statute requires that the “executor or
administrator shall bring and prosecute the action unless
requested not to by all those individuals.” Id at §71.004(c).
The declaration is thus notably lacking. Nothing specifies
anything about any spouse, children, or other parent. And
it’s plain that this action was neither brought within three
months by a spouse, child, or parent, nor otherwise
thereafter by Hipolito’s executor or administrator.
This overlaps with similar insufficiency under the
Texas survival statute. As noted above, such statute states
that action “survives to and in favor of the heirs, legal
representatives, and estate of the injured person.” Id at
§71.021(b); see also Austin Nursing Center, Inc, 171 SW3d
at 850–51 (noting requirements for individual to obtain
capacity to sue on behalf of estate). Singleton concedes that
she hasn’t been appointed as Hipolito’s legal representative
or administrator of his estate. Dkt 22 at 17. She instead
contends that she brings suit as “an heir,” which implicitly
concedes that other heirs may exist. Dkts 20-1 at 3 & 22-1
at 3. As such, this fails to show either that Singleton is the
sole heir or that the heirs have entered into a family
settlement agreement. See Shepherd, 962 SW2d at 32–33;
see Rodgers v Lancaster Police & Fire Department, 819 F3d
205, 213 (5th Cir 2016) (dismissing purported plaintiff’s
claim upon finding that “it remains uncertain whether she
is the estate’s sole heir,” in turn making it “unclear
whether administration is necessary and, thus, whether
she has capacity to maintain a survival action as a legal
heir”). And further, under Texas law, an heir only has
capacity to bring survival claims “if she can plead and
prove that there is no administration pending and that
none is necessary.” Pickens v City of Austin, 2005 WL
8157348, *9 (WD Tex); see also Jackson v City of Houston,
2023 WL 7093031, *4 (SD Tex), quoting Garcia v
Caremark, Inc, 921 SW2d 417, 421 (Tex App 1996). That in
turn requires pleading and proof that the estate’s
disposition is resolved, with all debts paid. See Rodgers,
819 F3d at 212, citing Shepherd, 962 SW2d at 33.
These defects were plainly specified in the motions to
dismiss, along with further argument that the second
amended complaint purports to press aspects of claims that
aren’t even allowed under the wrongful-death and survival
statutes. See Dkts 12 at 16–19, 13 at 15–18 & 14 at 15–18.
Given that Singleton failed to muster proof towards any
cure as to capacity, it seems unlikely that any such
pleading or proof will be forthcoming. Even so, it’s
appropriate to allow the opportunity.
Singleton may further amend her complaint to
establish her standing to pursue claims in this action, if
desired. On any such attempt, her counsel is admonished
to observe the dictates of Rule 11 of the Federal Rules of
Civil Procedure and thoroughly investigate facts that can
be pleaded in good faith. In this regard, Singleton must
plead—and, upon challenge, submit proof—of her capacity
under the Texas wrongful-death and survival statutes,
including (but not limited to) proof of (i) parentage,
including details as to date of birth and other indications
of parentage, (ii) identity of Hipolito’s father and any
spouse or siblings, (iii) status and details of Hipolito’s
estate or administration, including whether all debts are
paid, and (iv) the identity and interest of any and all
potential heirs to Hipolito’s estate.
If repleading is made, Defendants are advised that
motion practice under Rule 12 will, in the first instance, be
limited to subject-matter jurisdiction. And in that regard,
they will be granted leave upon request to undertake
discovery. If necessary after ruling, they will be afforded
later opportunity to renew the other challenges left
unaddressed from their current motions to dismiss.
5. Conclusion
The motions to dismiss brought by the various
Defendants are GRANTED with respect to lack of subject-
matter jurisdiction. Dkts 10, 12, 13 & 14.
The second amended complaint by Plaintiff Stacy
Singleton is DISMISSED WITHOUT PREJUDICE. Dkt 6.
It is ORDERED that Singleton may file a further
amended complaint to address the noted defects, if desired
and in mind of admonishment to proceed in compliance
with Rule 11 of the Federal Rules of Civil Procedure. Any
such amended pleading must be filed on or before October
21, 2024.
SO ORDERED.
Signed on September 30, 2024, at Houston, Texas.
(LEAlwidee.
Hon. Charles Eskridge
United States District Judge