Jones-MacDonald v. Harris County

UNITED STATES DISTRICT COURT September 30, 2024

SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk

HOUSTON DIVISION

DEBORAH JONES-MACDONALD, §

§

Plaintiff. §

§

V. § CIVIL ACTION NO. 4:23-cv-02871

§

HARRIS COUNTY, et al., §

§

Defendants. §

OPINION AND ORDER

Pending before me are two motions to dismiss, one filed by Defendant

Harris County (the “County”), and one filed by Defendants Charles Ribbe (“Ribbe”)

and Ronaldo Delgado, Jr. (“Delgado”).1 See Dkts. 22, 24. For the reasons discussed

below, I GRANT the County’s Motion to Dismiss (Dkt. 22) and DENY the

Deputies’ Motion to Dismiss (Dkt. 24) as to all claims against them.

BACKGROUND

Plaintiff Deborah Jones-MacDonald, a 65-year-old Black woman with no

criminal history, brings this lawsuit asserting claims against Defendants under 42

U.S.C. § 1983 for alleged violations of her constitutional rights to be free from

unreasonable seizure, excessive force, and wrongful arrest. Plaintiff’s claims arise

from her interactions with Ribbe and Delgado—both deputies with the Harris

County Sheriff’s Office (“HCSO”)—on the morning of August 13, 2021. Most of the

relevant events were captured on the Deputies’ bodycams. I recount any events not

captured on video from Plaintiff’s First Amended Complaint. See Dkt. 21.

On the morning of August 13, 2021, a private individual (the “Repo Man”)

attempted to repossess Plaintiff’s vehicle while it was parked at her ex-husband’s

apartment complex. The Repo Man did not have a court order authorizing the

repossession of Plaintiff’s vehicle. Rather, the Repo Man was undertaking what is

1 I will refer to Ribbe and Delgado collectively as the “Deputies.”

colloquially known as a “self-help” repossession. Texas law permits private, self-

help repossessions “without judicial process” only “if it proceeds without breach of

the peace.” TEX. BUS. & COM. CODE ANN. § 9.609(b)(2). When the Repo Man

encountered resistance during his repossession of Plaintiff’s vehicle, rather than

cease the repossession, he called the HCSO. Ribbe and Delgado responded.

According to Plaintiff, when the Deputies arrived on the scene, multiple

eyewitnesses told them that the Repo Man was “acting belligerent, raising his

voice, and causing a disturbance as he attempted to repossess the vehicle[].” Dkt.

21 at 7 n.3. If these interactions took place, they were not captured on either

bodycam. Both Deputies’ bodycams begin recording as they approach the tow

truck, Plaintiff’s vehicle, and Plaintiff’s ex-husband (a Black man), who is standing

barefoot on the tow truck’s lift. See Dkt. 25, Ex. 1 (Delgado Video) & Ex. 2 (Ribbe

Video). As the Deputies approach, the rear end of Plaintiff’s vehicle is lifted at

nearly a 45-degree angle, and the front bumper of Plaintiff’s vehicle is touching the

ground. The tow truck is facing a fixed gate, in the opposite direction of Plaintiff’s

vehicle, not ready to tow or able to drive away. The audio begins a few seconds into

the recording.

One of the first things heard on the video is Ribbe telling the ex-husband

that Ribbe is not concerned with who owns the vehicle, but with who is making the

payments. Ribbe then states that he will verify the Repo Man’s paperwork, but if

the Repo Man has the proper paperwork the officers “cannot deny him.” Ribbe

Video at 0:35–0:42. The ex-husband complains that the Repo Man is the one who

is breaching the peace. Ribbe counters that he does not see how the Repo Man is

breaching the peace. Ribbe then states: “We can’t help you and we’re not helping

him, we’re just stopping you from preventing him from doing his job.” Id. at 2:39–

2:41. The ex-husband asks at what point someone breaches the peace, and Ribbe

responds: “causing a disturbance.” Id. at 3:26–3:34. Delgado then states that he’s

getting pretty close to detaining the ex-husband if the ex-husband doesn’t get off

the tow truck. As the ex-husband asks the Deputies if they would like to speak to

the witnesses who saw the Repo Man breach the peace, Delgado grabs the ex-

husband’s leg, and the ex-husband falls to the ground. Ribbe handcuffs the ex-

husband and places him in the back of Delgado’s SUV.

As the Deputies place the ex-husband into the back of Delgado’s SUV, the

Repo Man lowers Plaintiff’s vehicle to the ground, disconnects the vehicle, drives

around to the front of Plaintiff’s vehicle, and places the tow truck’s wheel lift under

Plaintiff’s vehicle.2 Plaintiff then “arrive[s] at the apartment complex and s[ees]

her vehicle and a tow truck. Believing any potential tow to be illegal, Plaintiff g[ets]

into the driver’s seat of her [vehicle].” Dkt. 21 at 9. Ribbe notices that Plaintiff is in

her vehicle as the tow truck begins lifting it. Ribbe walks up to the vehicle, opens

the driver’s side door, says to Plaintiff, “Now it’s your turn,” and reaches towards

Plaintiff’s body to remove her from her vehicle. Ribbe Video at 7:51–8:04.

Plaintiff repeatedly yells at Ribbe—“Stop!” and “Get off me!”—leaning away

from Ribbe as he reaches his hands into the vehicle to grab Plaintiff, telling her to

“get out of the vehicle.” Id. at 8:04–8:12. Plaintiff then grasps the steering wheel

with both hands. Ribbe grabs Plaintiff’s wrist and tries to pry her hand off the

steering wheel. Plaintiff screams at Ribbe, “Get off! You better let me go.” Id. 8:20–

8:22. Plaintiff threatens to call the police and file a report against Ribbe for

harassment as he continues to grab her hand and wrist. After Plaintiff tells Ribbe

to go and call the police, Ribbe yanks Plaintiff part of the way out of her vehicle.

Delgado arrives and begins to assist Ribbe in removing Plaintiff from her vehicle,

at which point Plaintiff bites Delgado’s hand. Delgado then punches Plaintiff in the

face as Ribbe drags Plaintiff by her ankle, pulling her to the ground. The Deputies

work together to force Plaintiff to turn over, each placing their knees on her legs or

back, pushing her body to the ground and handcuffing her.

2 Although neither video captures the tow truck actually moving in reverse and deploying

the tow arm to the front of Plaintiff’s vehicle, this obviously occurred. Both videos show

that immediately after the ex-husband’s arrest, the tow truck reversed its position relative

to Plaintiff’s vehicle, and the direction it was facing.

An unidentified Black male in Ribbe’s field of view observes Plaintiff being

pulled from her vehicle. This unidentified Black male “tried to tell [Delgado] that

the repossession company had sent people who caused a breach of the peace then

and during a prior incident the night before.” Dkt. 21 at 9. Neither Deputy is

responsive to these complaints. Instead, the Deputies load Plaintiff into the back

of Ribbe’s car. Once Plaintiff and her ex-husband are each in the back of the

Deputies’ vehicles, the Repo Man drives off with Plaintiff’s vehicle.

Plaintiff was ultimately taken to jail and charged with assaulting a police

officer. That charge was dismissed on April 21, 2023. On August 4, 2023, Plaintiff

filed this lawsuit against the County, Ribbe, and Delgado. Plaintiff brings § 1983

claims of excessive force, unreasonable search and seizure, and wrongful arrest

against both Deputies. Plaintiff claims the County is also liable because it has a

policy, procedure, custom, practice or protocol of (1) inadequately training,

supervising, and/or disciplining its officers; (2) shielding its officers from the

consequences of illegal and/or improper conduct; (3) permitting its officers to

perform illegal and/or improper conduct; and (4) ratifying officers’ illegal and/or

improper conduct. The County has moved to dismiss for failure to state a claim.

The Deputies move to dismiss arguing that (1) they are entitled to qualified

immunity, and (2) Plaintiff fails to state a claim against them.

LEGAL STANDARD

A. MOTION TO DISMISS

Defendants are entitled to dismissal if Plaintiff’s complaint “fail[s] to state a

claim upon which relief can be granted.” FED. R. CIV. P. 12(b)(6). “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.’” Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

(2007)). “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.” Iqbal, 556 U.S. at 678. Although a complaint need not

contain detailed factual allegations, it “must provide the plaintiff’s grounds for

entitlement to relief—including factual allegations that . . . raise a right to relief

above the speculative level.” Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir. 2007)

(quotation omitted). “Threadbare recitals of the elements of a cause of action,

supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678.

Nor will legal conclusions couched as factual allegations satisfy this standard. See

Papasan v. Allain, 478 U.S. 265, 286 (1986).

I must accept “all well-pleaded facts as true and view[] those facts in the light

most favorable to the plaintiff.” True v. Robles, 571 F.3d 412, 417 (5th Cir. 2009)

(quotation omitted). “Generally, a court ruling on a 12(b)(6) motion may rely on

the complaint, its proper attachments, ‘documents incorporated into the

complaint by reference, and matters of which a court may take judicial notice.’”

Wolcott v. Sebelius, 635 F.3d 757, 763 (5th Cir. 2011) (quoting Dorsey v. Portfolio

Equities, Inc., 540 F.3d 333, 338 (5th Cir. 2008)). Here, Plaintiff references both

Deputies’ bodycam videos throughout her pleading, even attaching images from

both bodycams. See Dkt. 21-4. Accordingly, I consider the bodycam videos in ruling

on the motions to dismiss. See Robles v. Ciarletta, 797 F. App’x 821, 831–32 (5th

Cir. 2019) (holding that “the district court properly considered [bodycam video]

evidence” where the plaintiffs’ “complaint referred to . . . video” and the video was

“central to [plaintiffs]’ claims”).

B. 42 U.S.C. § 1983

Section 1983 provides, in relevant part, as follows:

Every person who, under color of any statute, ordinance, regulation,

custom, or usage, of any State . . . , subjects, or causes to be subjected,

any citizen of the United States . . . to the deprivation of any rights,

privileges, or immunities secured by the Constitution and laws, shall

be liable to the party injured in an action at law, suit in equity, or other

proper proceeding for redress.

42 U.S.C. § 1983. “Section 1983 is not itself a source of substantive rights, but

merely provides a method for vindicating federal rights elsewhere conferred.”

Albright v. Oliver, 510 U.S. 266, 271 (1994) (quotation omitted).

To establish § 1983 liability against the Deputies, Plaintiff must “(1) allege a

violation of a right secured by the Constitution or laws of the United States” and

(2) demonstrate that the Deputies were “acting under color of state law.” Moore v.

Willis Indep. Sch. Dist., 233 F.3d 871, 874 (5th Cir. 2000).

Local government bodies like the County are not liable under § 1983 based

solely on their employees’ actions. See Valle v. City of Houston, 613 F.3d 536, 541

(5th Cir. 2010). Plaintiff may prevail against the County only if “the action that is

alleged to be unconstitutional implements or executes a policy statement,

ordinance, regulation, or decision officially adopted and promulgated by [the

County]’s officers.” Monell v. Dep’t of Soc. Servs. of N.Y., 436 U.S. 658, 690 (1978).

Establishing the County’s liability under § 1983 requires Plaintiff to identify:

“(1) an official policy (or custom), of which (2) a policymaker can be charged with

actual or constructive knowledge, and (3) a constitutional violation whose moving

force is that policy or custom.” Valle, 613 F.3d at 541–42 (quotation omitted).

ANALYSIS

A. QUALIFIED IMMUNITY

Law enforcement officers sued in their individual capacity under § 1983 are

entitled to assert the defense of qualified immunity, which is “an immunity from

suit rather than a mere defense to liability.” Mitchell v. Forsyth, 472 U.S. 511, 526

(1985). “Qualified immunity protects government officials from civil liability in

their individual capacity to the extent that their conduct does not violate clearly

established statutory or constitutional rights.” Cass v. City of Abilene, 814 F.3d

721, 728 (5th Cir. 2016). It is a judicially created doctrine designed to avoid “the

expenses of litigation, the diversion of official energy from pressing public issues,

and the deterrence of able citizens from acceptance of public office.” Harlow v.

Fitzgerald, 457 U.S. 800, 814 (1982). The doctrine arises from “the danger that

fear of being sued will dampen the ardor of all but the most resolute, or the most

irresponsible public officials, in the unflinching discharge of their duties.” Id.

(cleaned up).

The Deputies contend that they are each entitled to qualified immunity.3 To

overcome their qualified immunity defenses, Plaintiff must allege “facts showing

(1) that the official violated a statutory or constitutional right, and (2) that the right

was ‘clearly established’ at the time of the challenged conduct.” Ashcroft v. al-Kidd,

563 U.S. 731, 735 (2011) (quoting Harlow, 457 U.S. at 818). “These steps may be

considered in either order.” Shumpert v. City of Tupelo, 905 F.3d 310, 320 (5th

Cir. 2018).

The first step asks whether the alleged facts “show the officer’s conduct

violated a constitutional right.” Saucier v. Katz, 533 U.S. 194, 201 (2001). If

Plaintiff’s allegations, viewed favorably, do not establish a constitutional violation,

no further inquiry is necessary. See id. The second step “asks whether the right in

question was clearly established at the time of the violation.” Tolan v. Cotton, 572

U.S. 650, 656 (2014) (quotation omitted). The Deputies are “shielded from liability

for civil damages if their actions did not violate clearly established statutory or

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

Pelzer, 536 U.S. 730, 739 (2002) (quotation omitted). “A right is clearly established

only if the right’s contours were sufficiently definite that any reasonable official in

the defendant’s shoes would have understood that he was violating it.” Mote v.

Walthall, 902 F.3d 500, 505 (5th Cir. 2018) (quotation omitted). “[T]he salient

3 Plaintiff supplemented her response to the motions to dismiss with a recently written

opinion by United States District Judge Carlton W. Reeves. See Green v. Thomas, No.

3:23-cv-126, 2024 WL 2269133 (S.D. Miss. May 20, 2024). In that opinion, Judge Reeves

revisits the history of the Ku Klux Klan Act—the formal name of § 1983—and the judicial

invention of qualified immunity. Judge Reeves makes a powerful argument for why

qualified immunity is, if not unconstitutional, at the very least, undemocratic. Plaintiff

here “requests that the underlying legality of defendants’ qualified immunity arguments

be incorporated into the ruling on [the] current pending motions.” Dkt. 41 at 2. I

appreciate Plaintiff’s request, but as Judge Reeves himself observes, “[t]his Judge has no

say in the adjustment or abolition of qualified immunity.” Green, 2024 WL 2269133, at

*23. I am “‘bound by the precedential decisions of both [the Fifth Circuit] and the

Supreme Court.’” Winder v. Gallardo, ---F.4th---, No. 24-10017, 2024 WL 4313652, at *3

(5th Cir. Sep. 27, 2024) (quoting Garcia v. Blevins, 957 F.3d 596, 602 (5th Cir. 2020)). I

therefore decline to opine of the legality of qualified immunity, which, as shown below,

neither Deputy is entitled to at the motion to dismiss stage of this case anyway.

question . . . is whether the state of the law” at the time of the incident provided the

Deputies with “fair warning that their alleged [conduct] was unconstitutional.”

Hope, 536 U.S. at 741. Plaintiff bears a heavy burden on this prong because a right

is clearly established only if relevant precedent “ha[s] placed the . . . constitutional

question beyond debate.” al-Kidd, 563 U.S. at 741.

“[A] plaintiff seeking to overcome qualified immunity must plead specific

facts that both allow the court to draw the reasonable inference that the defendant

is liable for the harm he has alleged and that defeat a qualified immunity defense

with equal specificity.” Arnold v. Williams, 979 F.3d 262, 267 (5th Cir. 2020)

(quotation omitted).

B. THE DEPUTIES VIOLATED MULTIPLE CLEARLY ESTABLISHED

CONSTITUTIONAL RIGHTS.

1. The Fourth and Fourteenth Amendments’ Prohibition

Against Seizure of Property Without Due Process

It “is no new principle of constitutional law” that the Fourteenth

Amendment protects against a state depriving a person of their property without

notice and the opportunity to be heard. Fuentes v. Shevin, 407 U.S. 67, 82 (1972);

see also U.S. CONST. amend. XIV, § 1 (“No state shall . . . deprive any person of life,

liberty, or property, without due process of law.”). “At the heart of Fuentes is the

principle that it is not for law enforcement officers to decide who is entitled to

possession of property.” Abbott v. Latshaw, 164 F.3d 141, 149 (3d Cir. 1998).

Similarly, the Fourth Amendment prohibits the unreasonable “‘seizure’ of

property, . . . [which] occurs when ‘there is some meaningful interference with an

individual’s possessory interests in that property.’” Soldal v. Cook Cnty., 506 U.S.

56, 61 (1992) (quoting United States v. Jacobsen, 446 U.S. 109, 113 (1984)).

In recognition of this fundamental constitutional principle, the Texas Court

of Appeals has observed:

It is well settled that police officers who perform civil standbys

to keep the peace during a private party’s repossession of property

when right to possession of that property is disputed are not state

actors if they act only to keep the peace, “but they cross the line if they

affirmatively intervene to aid the repossessor.”

Poteet v. Sullivan, 218 S.W.3d 780, 788 (Tex. App.—Fort Worth 2007, pet. denied)

(quoting Marcus v. McCollum, 394 F.3d 813, 818 (10th Cir. 2004)). “[T]he

overarching lesson of the case law is that officers may act to diffuse a volatile

situation, but may not aid the repossessor in such a way that the repossession

would not have occurred but for their assistance.” Marcus, 394 F.3d at 819.

Here, the repossession of Plaintiff’s vehicle would not have occurred but for

the Deputies’ actions in “stopping [Plaintiff and her ex-husband] from preventing

[the Repo Man] from doing his job.” Ribbe Video at 2:39–2:41. Both Deputies put

their hands on Plaintiff, physically removing and restraining her from lawfully and

peacefully resisting the repossession of her property. “Nothing in the law gives

police a . . . right to provide affirmative aid to a [repossessor] who goes onto

another’s property and removes items to which ownership is disputed.” Poteet, 218

S.W.3d at 789.

The Deputies contend they removed Plaintiff from her vehicle “to maintain

the peace.” Dkt. 24 at 15. But the peace had already been breached when the Repo

Man persisted with his self-help repossession over objection and confrontation.

See Chapa v. Traciers & Assocs., 267 S.W.3d 386, 391–95 (Tex. App.—Houston

[14th Dist.] 2008, no pet.) (observing that “the creditor who elects to pursue

nonjudicial repossession assumes the risk that a breach of the peace might occur”

and concluding that the peace is not breached when the repossession is

accomplished “without objection or confrontation”). The Repo Man was not ready

to tow Plaintiff’s vehicle when the Deputies arrived on the scene. Both videos show

that the Repo Man necessarily disconnected Plaintiff’s vehicle from the tow truck

in order to reposition the tow truck so that Plaintiff’s vehicle could be towed from

the front. During this repositioning, Plaintiff got into her own vehicle to lawfully

and peacefully resist the self-help repossession. Plaintiff “asserted her right to

object . . . by physically taking control of the [vehicle]. At that point, [the Repo

Man’s] right to pursue his self-help remedy terminated, and he was required to

cease the repossession.” Hensley v. Gassman, 693 F.3d 681, 692 (6th Cir. 2012).

By “proceed[ing] with the attempted repossession over an objection

communicated to him at, near, or incident to the seizure of the property,” the Repo

Man was the one breaching the peace. Chapa, 267 S.W.3d at 395. The case law

uniformly suggests that any objection or confrontation should cause the end of a

self-help repossession. See Hensley, 693 F.3d at 689–90 (“As numerous state

court cases and secondary authorities have recognized, an objection, particularly

when it is accompanied by physical obstruction, is the debtor’s most powerful (and

lawful) tool in fending off an improper repossession because it constitutes a breach

of the peace requiring the creditor to abandon his efforts to repossess.”). It is

ridiculous for the Deputies to profess concern about the peace when they

themselves had already unconstitutionally assisted the Repo Man in breaching it.

Here, the video shows that the Repo Man disconnected the tow truck from

Plaintiff’s vehicle and then proceeded to reconnect and tow Plaintiff’s vehicle,

despite the obvious verbal and physical resistance from both Plaintiff and her ex-

husband. The Repo Man’s reconnection to and ultimate tow of Plaintiff’s vehicle

would not have been possible but for the aid and intervention of the Deputies, who

unilaterally “resolved the stalemate in favor of [the Repo Man]—the party neither

factually nor legally entitled to the [vehicle].” Id. at 692. For decades now it has

been clearly established that the Deputies’ actions violated Plaintiff’s Fourth and

Fourteenth Amendment rights. See Poteet, 218 S.W.3d at 793.

The relevant facts of this case are functionally indistinguishable from Poteet,

in which a Texas appellate court held that Poteet had “provided sufficient evidence

of police interference with his possessory interest in the contents of his home to

raise a fact issue on whether the officers participated in the unconstitutional

seizure of his property.” Id. at 789. Here, as in Poteet, Plaintiff and her ex-husband

“had made clear that [the Repo Man] was not allowed on [Plaintiff’s] property, but

the officers ordered [them to allow the repossession anyway].” Id. Similarly, “the

officers’ physical restraint . . . precluded [Plaintiff and her ex-husband] from

[resisting the repossession] because they confined [Plaintiff and her ex-husband]

to [the backs of the deputies’ vehicles] while [the Repo Man] took [Plaintiff’s]

property.” Id. In Poteet, “the officers not only told Poteet that they were present at

his home to keep the peace but also asserted that they were there ‘to assist Tanya

in getting her things.’” Id. This is no different from Ribbe telling Plaintiff’s ex-

husband that the Deputies were there to stop the ex-husband “from preventing

[the Repo Man] from doing his job.” Ribbe Video at 2:39–2:41.

The result here should be no different from the result in Poteet, in which the

officers were denied qualified immunity, because “[f]ederal law recognizing that

an unlawful taking of property during a civil standby can amount to state action

and a § 1983 violation is clearly established.” 218 S.W.3d at 793; see also Marcus,

394 F.3d at 824 (“State law limiting self-help to those situations where a breach of

the peace is avoided, and federal law recognizing that an unlawful repossession can

amount to state action and a deprivation of property actionable under § 1983, are

both clearly established.”); Abbott, 164 F.3d at 148 (denying qualified immunity to

officers who aided in a private repossession because “the law in this area was clear

for at least twenty-four years prior to” their actions); Harris v. City of Roseburg,

664 F.2d 1121, 1127 (9th Cir. 1981) (“We conclude that there may be a deprivation

within the meaning of [§] 1983 . . . when the officer assists in effectuating a

repossession over the objection of a debtor or so intimidates a debtor as to cause

him to refrain from exercising his legal right to resist a repossession.”); Menchaca

v. Chrysler Credit Corp., 613 F.2d 507, 513 (5th Cir. 1980) (observing that “police

intervention and aid in [a] repossession by [a private party without a court order]

would constitute state action”); McLinn v. Thomas Cnty. Sheriff’s Dep’t, 535 F.

Supp. 3d 1087, 1104 (D. Kan. 2021) (“Marcus found the law was clearly established

and denied qualified immunity under similar circumstances, focusing on the

officers’ unfounded assumption that the repossessor was entitled to possession of

the vehicle and their use of police authority to aid the repossessor.”). Thus, at this

initial pleading stage, Plaintiff’s allegations and the bodycam videos more than

overcome the Deputies’ assertion of qualified immunity as to the seizure of

Plaintiff’s vehicle.

2. The Fourth Amendment’s Prohibition Against the

Unreasonable Seizure of Plaintiff’s Person4

When the Deputies physically removed Plaintiff from her vehicle, it had been

clearly established for more than 50 years that officers cannot seize a person

without reasonable suspicion of a crime. See Terry v. Ohio, 392 U.S. 1 (1968). The

Deputies argue that their seizure of Plaintiff was reasonable because “[a]

reasonable officer could have believed that Plaintiff was in violation of failing to

follow a deputy’s instruction.” Dkt. 24 at 18 (quotation omitted). Setting aside that

the Deputies had already unconstitutionally and unreasonably aided in a self-help

repossession, the problem with this failure-to-follow-instructions argument is that

the video shows that Ribbe never gave any instruction to Plaintiff before reaching

for her body to remove her from her vehicle. Rather, the video shows that with no

investigation whatsoever, Ribbe walked up to Plaintiff’s vehicle, opened the

driver’s side door, said to Plaintiff, “Now it’s your turn,” and tried to remove

Plaintiff from her vehicle. Ribbe Video at 7:51–8:04. Thus, no reasonable officer

could have believed that Plaintiff was in violation of failing to follow a deputy’s

instruction because no instruction was given.

Ribbe and Delgado both eventually shouted at Plaintiff to get out of her

vehicle as they struggled with her. But Plaintiff was under no obligation to obey

those commands because they were not lawful orders.

It can be assumed . . . that some police commands will subject a

citizen to prosecution for disobeying whether or not the citizen knows

why the order is given. Illustrative examples include when the police

tell a pedestrian not to enter a building and the reason is to avoid

impeding a rescue team, or to protect a crime scene, or to secure an

4 Although Plaintiff uses the words “search and seizure” together throughout her

complaint, she never alleges—and more importantly, neither bodycam video shows—that

she was ever searched. Accordingly, I construe Plaintiff’s unreasonable search and seizure

claims to pertain only to the seizure of her vehicle and her person.

area for the protection of a public official. It does not follow,

however, that any unexplained police order must be

obeyed without notice of the lawfulness of the order.

City of Chicago v. Morales, 527 U.S. 41, 69 (1999) (Kennedy, J., concurring)

(emphasis added).

An officer may seize a person only “when the officer has a reasonable,

articulable suspicion that a person has committed or is about to commit a crime.”

United States v. Chavez, 281 F.3d 479, 485 (5th Cir. 2002). The Deputies have not

suggested that they had reasonable suspicion that Plaintiff was committing any

crime by sitting in the driver’s seat of her own vehicle in a private parking lot.

Rather, they argue that “[a] reasonable officer could believe that a person who

attempts to drive a vehicle that is hooked up to a tow truck and lifted in the air

could potentially cause harm to themself or others.” Dkt. 24 at 18.

This sounds like an assertion that the Deputies’ actions fall within the

“community caretaking” exception to the requirement that officers have

reasonable suspicion or a warrant before seizing a person. See Cady v.

Dombrowski, 413 U.S. 433, 441 (1973) (observing that police frequently perform

“community caretaking functions, totally divorced from the detection,

investigation, or acquisition of evidence relating to the violation of a criminal

statute”). But Plaintiff disputes—and neither video clearly shows—that she was

attempting to drive the vehicle. That disputed fact must be resolved by a jury. See

Smith v. Reg’l Transit Auth., 756 F.3d 340, 347 (5th Cir. 2014) (observing that

“disputed questions of fact are anathema to Rule 12(b)(6) jurisprudence”);

Madden v. State, 242 S.W.3d 504, 511 (Tex. Crim. App. 2007) (“Only if one or more

of those necessary facts are disputed does the judge ask the jury to decide whether

the officer’s belief in those facts was reasonable.”). Thus, it would be inappropriate

to dismiss Plaintiff’s unreasonable seizure claims at this early stage of the case.

3. The Fourth Amendment’s Prohibition of Excessive Force

Plaintiff claims to have suffered “serious injuries to her face, arms, legs,

knees, wrists, and ankles” as a result of the Deputies’ alleged excessive force in

physically removing her from her vehicle. Dkt. 21 at 4.

“In the Fifth Circuit, to succeed on an excessive force claim, the plaintiff

bears the burden of showing: (1) an injury (2) which resulted directly and only from

the use of force that was clearly excessive to the need and (3) the force used was

objectively unreasonable.” Cass, 814 F.3d at 731 (quotation omitted). “The

‘reasonableness' of a particular use of force must be judged from the perspective of

a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.”

Graham v. Connor, 490 U.S. 386, 396 (1989). Analyzing reasonableness

requires careful attention to the facts and circumstances of each

particular case, including [1] the severity of the crime at issue,

[2] whether the suspect poses an immediate threat to the safety of the

officers or others, and [3] whether he is actively resisting arrest or

attempting to evade arrest by flight.

Id. Here, all three Graham factors weigh in Plaintiff’s favor.

“First, at the time [Ribbe] and [Delgado] took down [Plaintiff], [she] had not

committed a crime; [she] was merely [sitting in her own vehicle in a private

parking lot].” Ramos v. Erwin, No. 4:23-cv-2517, 2024 WL 1184822, at *8 (S.D.

Tex. Mar. 18, 2024). Plaintiff’s “physical obstruction” was her “most powerful (and

lawful) tool in fending off an improper repossession,” and reasonable officers

would have known that Plaintiff’s physical obstruction should have caused the

Repo Man “to abandon his efforts to repossess” Plaintiff’s vehicle. Hensley, 693

F.3d at 689–90.

Second, as discussed above, whether Plaintiff posed an immediate threat to

the safety of the officers or others requires the resolution of a disputed fact. But

even if a jury determines that Plaintiff posed a safety risk by trying to drive her

vehicle while it was lifted by the tow truck, Plaintiff has still alleged force that was

clearly excessive to that need. Once Plaintiff was removed from her vehicle, any

purported safety risk was eliminated. Yet, the Deputies continued to physically

restrain Plaintiff once she was out of her vehicle—as she protested that she was

only trying to stand up—including forcing her to straighten her bent legs and turn

over on her stomach as each placed a knee on her back or legs to hold her down.

Third, although Plaintiff resisted the Deputies, she was not under arrest

when they first started to remove her from her vehicle, and she certainly was not

attempting to flee by trying to remain in her vehicle. Moreover, her resistance was

initially passive—leaning away from Ribbe and grasping her own steering wheel—

until the Deputies initiated physical contact. “A reasonable jury could infer from

[the videos] that [Ribbe and Delgado] engaged in very little, if any, negotiation with

[Plaintiff]—and find that [they] instead quickly resorted to . . . dragging her out of

the vehicle.” Deville v. Marcantel, 567 F.3d 156, 168 (5th Cir. 2009) (denying

qualified immunity to officers who removed grandmother from vehicle after she

passively resisted an unlawful arrest). On these facts, I cannot say that the Deputies

are entitled to qualified immunity from Plaintiff’s excessive force claims. Plaintiff

“had a clearly established right to be free from excessive force” and “a reasonable

officer would have known that the degree of force was unconstitutionally excessive

under the circumstances.” Id. at 169.

4. The Fourth Amendment’s Protection Against Unlawful

Arrest

“In order to make a lawful arrest, an officer must have probable cause to

believe the suspect committed a crime.” Ramirez v. Martinez, 716 F.3d 369, 375

(5th Cir. 2013). “Probable cause exists when the totality of facts and circumstances

within a police officer’s knowledge at the moment of arrest are sufficient for a

reasonable person to conclude that the suspect had committed or was committing

an offense.” Resendiz v. Miller, 203 F.3d 902, 903 (5th Cir. 2000). “The right to

be free from arrest without probable cause is a clearly established constitutional

right.” Mangieri v. Clifton, 29 F.3d 1012, 1016 (5th Cir. 1994).

The Deputies argue that “[b]ecause Plaintiff bit Deputy Delgado while he

was attempting to remove her from the [vehicle], probable cause existed to believe

that Plaintiff had committed the crime of assault on a police officer.” Dkt. 24 at 19.

In other words, the Deputies claim they had probable cause to arrest Plaintiff for

aggravated assault. See TEX. PENAL CODE § 22.02(b)(2)(A)–(B) (classifying assault

against a public servant as a first-degree felony). Plaintiff retorts that no

reasonable deputy would believe there was probable cause to arrest her because

she “was merely acting in self-defense.” Dkt. 30 at 9.

Texas law provides that:

a person is justified in using force against another when . . . [she] knew

or had reason to believe that the person against whom the force was

used . . . unlawfully and with force removed, or was attempting to

remove unlawfully and with force, [her] from [her] . . . vehicle . . . .

TEX. PENAL CODE § 9.31(a)(1)(B). As discussed above, it has long been the law that

a debtor may lawfully obstruct a self-help repossession by sitting in her vehicle to

prevent it from being towed. See Hensley, 693 F.3d at 689–90. Thus, Plaintiff—

who sat in the driver’s seat of her own vehicle in a private parking lot—reasonably

believed that the Deputies were unlawfully removing her from her vehicle.

Furthermore, the videos show that the Deputies, not Plaintiff, were the ones that

first deployed force in their interaction with Plaintiff. Delgado’s video shows that

when Delgado arrived to assist Ribbe in removing Plaintiff from her vehicle,

Plaintiff grasped her steering wheel with both hands—not posing a threat to

anyone—while threatening to file assault charges against Ribbe, who was twisting

Plaintiff’s wrist. See Delgado Video at 8:20–8:22. Plaintiff—a female senior citizen

resisting the unlawful efforts of two men trying to prevent her from lawfully

protecting her property by physically obstructing the Repo Man’s self-help

repossession—could have reasonably believed that biting Delgado’s hand was the

degree of force “immediately necessary to protect [herself] against [the Deputies’]

use or attempted use of unlawful force.” TEX. PENAL CODE § 9.31(a). In this

circumstance, Plaintiff’s use of force is justified by Texas law.

If the Deputies “were aware of the facts that established this defense, then

they lacked probable cause for aggravated assault.” Reyes v. Greer, 686 F. Supp.

3d 524, 538 (W.D. Tex. 2023). The Fifth Circuit has “repeatedly refused to opine

on whether facts supporting the existence of an affirmative defense are relevant to

the determination of probable cause.” Espinal v. City of Houston, 96 F.4th 741,

747 (5th Cir. 2024) (quotation omitted). But “[a]ll other circuits to consider the

issue appear to have held that evidence of an affirmative defense is relevant to the

probable cause inquiry in some circumstances.” Thomas v. City of Galveston, 800

F. Supp. 2d 826, 835 (S.D. Tex. 2011). “[S]everal of those courts have . . . made

clear that officers are not required to conduct any investigation of whether

affirmative defenses apply,” but an officer also “may not ignore conclusively

established evidence of the existence of an affirmative defense.” Id. at 835–36.

Thus, when an officer knows facts that conclusively establish the existence of an

affirmative defense, he must consider that affirmative defense in making a

probable cause determination.

Here, all the facts demonstrating Plaintiff’s justified use of force derive from

clearly established law and the Deputies’ own bodycams. No investigation was

required on the Deputies’ part. Accordingly, both Deputies should have considered

that Plaintiff’s use of force to defend herself against their unlawful efforts was

justified, meaning there was no probable cause to arrest her for aggravated assault.

Because facts supporting probable cause for any crime—not just the crime

for which Plaintiff was arrested—would entitle the Deputies to qualified immunity,

they go on to argue that “the body cam videos reflect that a reasonable officer would

have probable cause to arrest Plaintiff for breach of the peace.” Dkt. 24 at 19. The

Deputies boldly assert that “Plaintiff engaged in a confrontational tirade with the

deputies thereby leading to a breach of the peace, which resulted in a physical

confrontation and a loud disturbance.” Id. As established many times throughout

this opinion, reasonable officers should have known that the Repo Man—not

Plaintiff, and not Plaintiff’s ex-husband—had breached the peace by persisting

with a self-help repossession over objection. See Hensley, 693 F.3d at 689–90. The

Deputies only exacerbated that breach. There was no probable cause to think that

Plaintiff breached the peace by resisting the Deputies’ unlawful conduct.

Finally, the Deputies argue that “a reasonable officer could have believed

that the Plaintiff resisted arrest and was acting disorderly in violation of Section

42.01(a)(1) of the Texas Penal Code.” Dkt. 24 at 20. This argument fails for the

same reason the Deputies lacked probable cause to arrest Plaintiff for aggravated

assault. Plaintiff was lawfully sitting in her own vehicle when the Deputies dragged

her away and prevented her from physically obstructing the Repo Man’s self-help

repossession. Plaintiff’s use of force was justified and the Deputies’ bodycam

videos supply all the facts necessary to know such force was justified. Therefore,

the Deputies should have known they did not have probable cause to arrest

Plaintiff for resisting arrest or disorderly conduct. Thus, the Deputies are not

entitled to qualified immunity on Plaintiff’s claims of unlawful arrest.

* * *

Having established that Plaintiff may proceed with her claims against the

Deputies, I must now consider whether Plaintiff may also proceed with her claims

against the County.

B. HARRIS COUNTY

1. Monell Liability

“In Monell . . . , the Supreme Court held that Congress intended § 1983 to

apply to local government entities as well as to persons.” Doe v. Taylor Indep. Sch.

Dist., 15 F.3d 443, 452 (5th Cir. 1994). The Fifth Circuit has explained:

Under the decisions of the Supreme Court and this court,

municipal liability under section 1983 requires proof of three

elements: a policymaker; an official policy; and a violation of

constitutional rights whose moving force is the policy or custom.

Monell and later decisions reject municipal liability predicated on

respondeat superior, because the text of section 1983 will not bear

such a reading. Consequently, the unconstitutional conduct must be

directly attributable to the municipality through some sort of official

action or imprimatur; isolated unconstitutional actions by

municipal employees will almost never trigger liability.

The three attribution principles identified here—a policymaker, an

official policy and the “moving force” of the policy—are necessary to

distinguish individual violations perpetrated by local government

employees from those that can be fairly identified as actions of the

government itself. Mistakes in analyzing section 1983 municipal

liability cases frequently begin with a failure to separate the three

attribution principles and to consider each in light of relevant case

law.

Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th Cir. 2001) (emphasis added)

(cleaned up).

Official policy exists in two forms. “First, a plaintiff may point to a policy

statement formally announced by an official policymaker.” Zarnow v. City of

Wichita Falls, 614 F.3d 161, 168 (5th Cir. 2010). Second, an official policy may

“arise in the form of a widespread practice that is ‘so common and well-settled as

to constitute a custom that fairly represents municipal policy.’” Peterson v. City of

Fort Worth, 588 F.3d 838, 847 (5th Cir. 2009) (quoting Piotrowski, 237 F.3d at

579). “A policy or custom is official only ‘when it results from the decision or

acquiescence of the municipal officer or body with ‘final policymaking authority’

over the subject matter of the offending policy.’” Peterson, 588 F.3d at 847

(quoting Jett v. Dall. Indep. Sch. Dist., 491 U.S. 701, 737 (1989)). “State law

determines whether a particular individual is a county or municipality final

decision maker with respect to a certain sphere of activity.” Bennett v. Pippin, 74

F.3d 578, 586 (5th Cir. 1996).

Proof of a custom or policy can be shown by “a pattern of unconstitutional

conduct . . . on the part of municipal actors or employees,” or where “a final

policymaker took a single unconstitutional action.” Zarnow, 614 F.3d at 169. “A

customary policy consists of actions that have occurred for so long and with such

frequency that the course of conduct demonstrates the governing body’s

knowledge and acceptance of the disputed conduct.” Id. “Consistent with the

commonly understood meaning of custom, proof of random acts or isolated

incidents is not sufficient to show the existence of a custom or policy.” Paz v. Weir,

137 F. Supp. 2d 782, 799 (S.D. Tex. 2001). To plausibly “plead a practice so

persistent and widespread as to practically have the force of law, [Plaintiff] must

do more than describe the incident that gave rise to [her] injury.” Ratliff v. Aransas

Cnty., 948 F.3d 281, 285 (5th Cir. 2020) (quotation omitted).

2. Plaintiff Has Not Alleged a Pattern of Unconstitutional

Conduct

Although Plaintiff points to several written policies—HCSO Standard

Operating Procedures 207, 501, and 601—she does not allege that any of these

written policies are the moving force behind the deprivation of her constitutional

rights. Rather, Plaintiff complains that the County turned a blind eye to Delgado’s

and Ribbe’s alleged failure to follow the County’s written policies. Accordingly, to

establish the County’s liability as to any of her claims, Plaintiff must allege facts

demonstrating a pattern of unconstitutional conduct. This she cannot do.

Plaintiff first points to what she claims is “a history of documented abusive

and dishonest behavior with the HCSO” by Delgado. Dkt. 21 at 22. Yet, the events

that Plaintiff cites are instances of neglect—failure to care for prisoners, failure to

file paperwork, failure to adhere to traffic laws, and failure to turn on his bodycam.

See Dkt. 21 at 22–24. Only one incident in the five years preceding Plaintiff’s

interactions with Delgado bears any resemblance to the conduct at issue in this

case. In 2016, Delgado “hit [a man] in the face with his service firearm.” Id. at 23.

Two incidents over a decade are not a pattern of anything.

Plaintiff claims that Ribbe also “has a history of documented abusive and

dishonest behavior with the HCSO.” Id. at 24. Yet, as with Delgado, the bulk of

Ribbe’s discipline pertains to his causing car accidents and failing to complete

necessary reports. See id. There is simply no relationship between Ribbe’s

disciplinary file and the conduct at issue in this case.

Plaintiff goes on to describe HCSO’s alleged “culture of violence.” Id. at 26.

Plaintiff’s allegations regarding this alleged “culture of violence” span a whopping

19 pages. See id. at 26–44. Yet, most of the allegations pertain to the Harris County

Jail and a separate federal lawsuit concerning the death or serious injury of 27

detainees at the Harris County Jail. See Dkt. 21-3. Even if Harris County has a

policy of failing to train, supervise, and/or discipline officers at the Harris County

Jail, that cannot be the moving force behind the alleged violations of Plaintiff’s

constitutional rights on private property. As the Fifth Circuit has explained:

A successful showing of such 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.

While the specificity required should not be exaggerated, our cases

require that the prior acts be fairly similar to what ultimately

transpired.

Hicks-Fields v. Harris Cnty., 860 F.3d 803, 810 (5th Cir. 2017) (cleaned up). Here,

all Plaintiff offers is an amalgamation of bad and unwise acts totally divorced from

the constitutional violations that she alleges the Deputies committed against her.

Thus, Plaintiff fails to allege a pattern of constitutional violations that would

establish the County’s municipal liability. Accordingly, the County is entitled to

dismissal of all of Plaintiff’s claims against it.

CONCLUSION

For the reasons discussed above, I GRANT the County’s Motion to Dismiss

(Dkt. 22) and DENY the Deputies’ Motion to Dismiss (Dkt. 24).

SIGNED this 30th day of September 2024.

______________________________

ANDREW M. EDISON

UNITED STATES MAGISTRATE JUDGE