Drakos v. City of Meadows Place

Southern District of Texas

ENTERED

February 18, 2025

UNITED STATES DISTRICT COURT Nathan Ochsner, Clerk

SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

RONALD THOMAS DRAKOS, II, §

(SPN #01715680), §

Plaintiff, §

§

_ VS.z § CIVIL ACTION NO. H-24-3659 □

§

CITY OF MEADOWS PLACE, etal, §

_ Defendants.

ORDER GRANTING MOTION FOR JUDGMENT ON □

THE PLEADINGS IN PART, DENYING MOTION FOR DEFAULT

AND/OR SUMMARY JUDGMENT, AND ORDER TO SHOW CAUSE

Plaintiff Ronald Thomas Drakos, II, filed a complaint in Texas state court

against the City of Meadows Place, the Meadows Place Police Department,

Meadows Place Police Commissioner John Doe, Meadows Place Police Chief John

Doe, Meadows Place Police Officer Jane Doe, Meadows Place Police Officers John

Doe #1 & 2, Meadows Place Police Sergeant William Nix, and Meadows Place

Police Officer Byron Jackson.' (Dkt. 1-1). Drakos later filed a first supplemental

complaint, which raised claims under 42 U.S.C. § 1983 for the first time. (Dkt. 1-

5). The City timely removed the action to this Court, (Dkt. 1), and then fileda

'Drakos refers to this defendant throughout his pleadings as either “Byron Jackson,”

“Byron Johnson,” or “Jyron Jackson.” This defendant has never been served in this action,

so determining the correct name is not possible from the pleadings. The Court will refer

to this defendant as “Jackson” throughout this Order.

motion for judgment on the pleadings. (Dkt. 8). Drakos responded with a motion

for default judgment and/or summary judgment against all defendants. (Dkt. 9).

Upon removal and at the Court’s request, Drakos also filed a more definite statement

of his claims. (Dkts. 15, 17).

Having reviewed the parties’ motions, all of the pleadings, portions of the

state-court records, and the law, the Court grants the City’s motion for judgment on

the pleadings in part, denies Drakos’s motion for default and/or summary judgment,

and orders Drakos to show cause why his federal-law claims against the individual

defendants in their individual capacities should not be dismissed. The reasons for

these rulings are explained below.

I. BACKGROUND

Drakos has filed voluminous pleadings in both the state court and this Court.

However, because the Court is considering a motion for judgment on the pleadings,

the Court considers only the facts alleged in the operative pleadings—Drakos’s first

supplemental complaint and his More Definite Statement.

The incident underlying this action occurred on April 6, 2022, when Drakos

parked his rented U-Haul box truck at a fuel island at the Murphy gas station in the

City of Meadows Place. (Dkt. 17, pp. 7-9, 19). Drakos was sitting in the driver’s

seat of the truck when Sergeant Nix approached and knocked on the window. (ld.

at 7-9, 19). Nix ordered Drakos out of the truck and accused him of being in

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- possession of a truck that was reported on “Flock” as stolen.? (Dkts. 1-5, p. 7; 17,

p. 9). Nix and Jackson detained Drakos and radioed the Chief of Police, who

allegedly authorized Drakos’s arrest based on the Flock hit. (Dkts. 1-5, pp. 4, 7; 17,

p- 9).

Drakos alleges that after he was handcuffed, three other City police officers

arrived at the scene. (Dkt. 17, p. 10). One officer used bolt cutters to cut the lock

off the rear U-Haul doors, and Nix and Jackson then searched the truck, seizing

Drakos’s property from inside without a warrant. (/d.). After the search, Drakos □

was transported to the Fort Bend County Jail. (7d.). Publicly available records show

that on April 25, 2022, a grand jury indicted Drakos for the offense of unauthorized

use of a vehicle. See State v. Drakos, No. 22-DCR-099030 (240th Dist. Ct., Fort

Bend County, Tex. Apr. 25, 2022). (Ud. at 17).

Drakos alleges that the information about the Flock hit was false and that he

heard Police Department dispatchers tell Nix that Drakos did not have any “wants

and warrants” and that the truck was “cleared” as “not stolen.” (Jd. at 11, 20).

2Flock Safety manufactures and services automated license plate recognition

systems, video surveillance systems, and gunfire locator systems. See Flock Safety,

https://en/wikipedia.org (visited Feb. 6, 2025). Flock operates its systems under contract

with law enforcement agencies, neighborhood associations, and private businesses. Id.

Generally, Flock cameras scan the license plates of passing vehicles and send the

information to a central server, where it is compared to state and local police watchlists of .

vehicles that have been reported stolen or otherwise used to commit criminal offenses. Jd.

When a match is identified, the information is immediately relayed to nearby officers. Jd.

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Despite this communication, Nix continued to insist that there was a Flock hit for

the truck, (Dkt. 1-5, p. 4). Drakos alleges that because there was no valid Flock hit, □

his arrest and the ensuing search of the truck were illegal. (Dkt. 17, p. 15). He

alleges that Nix and Jackson both completed offense reports that falsely stated that

there was a Flock hit on the truck to support his arrest and the search. (Dkt. 17-1, p.

12). Drakos alleges that the Chief of Police knew the reports were false, and he

conspired with Nix and J ackson to use the false reports to obtain a flawed grand ao)

indictment poninet him. .(/d.).

While he was being held in jail on the charges, Drakos mailed “notices and

requests for production of records” to the City, the Police Commissioner, the Chief

of Police, and the Mayor. (DKt. 1-5, p. 4, 9). The “notices” described the allegedly

illegal arrest and search and asserted that Nix and Jackson had filed untruthful

offense reports. (Jd. at 5). The requests for production asked for shift logs, incident

reports, dispatch transcripts, offense reports, and the Flock teletype, all of which

Drakos contended that he needed to prove his innocence in the criminal action. (/d.).

Drakos alleges that the City, the Police Commissioner, the Chief of Police, and the

Mayor ignored these notices and requests for production of documents and chose

not to intervene to “end the prosecution.” (dd. at 5, 7,9). He alleges that the failure

of these City officials to help him constituted malicious prosecution and also aided

and abetted Nix and Jackson in the commission of multiple state-law criminal

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offenses. (Id. at 9). Ultimately, on January 30, 2023, the state dismissed the charges

against Drakos stemming from the April 6 events, (Dkts. 1-5, p. 5; 17, p. 24).

Drakos filed his initial complaint in Texas state court on February 5, 2024.

(Dkt. 1-1, p. 13). The initial complaint identified as defendants the Police Chief,

Nix, Jackson, the Police Commissioner, the Police Department, Fort Bend County

head nurse “Dawn,” the Fort Bend County Sheriff, the Fort Bend County Jail, Fort

Bend County, and Wellpath Medical Services. (id. at 1). Drakos filed a first

amended complaint on May 23, 2024. (Dkt. 1-2). The amended complaint, which

by operation of law replaces his original complaint, named: the Police Department

as the only defendant and alleged state-law claims for unlawful restraint and

malicious prosecution. (/d. at 1). Service of process was made on the Police

Department on May 29, 2024. (Dkt. 1-7, p.2). On lune 24, 2024, the City answered

on behalf of the Police Department and filed a plea to the jurisdiction, seeking

dismissal under the Texas Tort Claims Act. (Dkts. 1-3, 1-4).

On September 9, 2024, before the state court ruled on the City’s plea to the

jurisdiction, Drakos filed his first supplemental complaint.? (Dkt. 1-5). In this

3It appears from the state-court docket that Drakos filed a second amended

complaint on July 15, 2024. (Dkt. 1-7, p. 2). He also filed various discovery requests, a

response to the City’s plea to the jurisdiction, a request for a hearing, and a “request for

service.” (id. at 2-3). It does not appear that any action was taken on these pleadings

beyore Drakos filed his first supplemental complaint.

supplemental complaint, Drakos renewed his claims against the individual

defendants that he had previously dismissed in his amended complaint, and he □

alleged new claims under federal law against all ‘the defendants. Ud.). In an

accompanying letter, Drakos requested service of process on “the defendants”

through the attorney who had appeared on behalf of the City. See Drakos v. City of

Meadows Place Police Dep’t, et al., No. 24-DCV-313345 (240th Dist. Ct., Fort

Bend County Sept. 9, 2024). He did not provide completed Request for Service

forms to the District Clerk for any of the defendants. The Clerk issued a citation for .

service of process on the Police Department on September 19, 2024. Id: at Dkt. 43.

The Clerk also advised Drakos by letter that no returns of service had been received

for any defendant other than the Police Department. Jd. The City answered the first

supplemental complaint on September 25, 2024. Id. at Dit. 44, The City then

removed the action to federal court. Jd. at Dkt. 45. (Dkt. 1).

In his first supplemental petition, Drakos asserts claims for false arrest, false

imprisonment, “denial of access,” cruel and unusual punishment, malicious

prosecution, unlawful restraint, illegal search and seizure, and violation of his rights

to equal protection, due process, and property. (Dkt. 1-5, pp. 3, 9). However, in his

more definite statement, Drakos affirmatively withdraws his claims for “denial of

access,” cruel and unusual punishment, and violations of his equal protection rights.

and property rights.” (Dkts. 17-1, p. 10; 17-2, p. 2-3). He also withdraws his claims

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against the Police Depattment because it is a non-jural entity. (Dkt. 17-2, p. 5).

As the pleadings stand before this Court, the following claims remain pending □

against the following defendants:

e Claims against the City for (1) oten of due process by failing to intervene

in the criminal action against him despite knowing of its falsity; (2) violation

of due process by denying him access to the Police Department records

necessary for him to prove his innocence; (3) municipal liability based on a

policy or custom of “negligent and reckless training” by training officers, and

(4) negligent supervision and negligent training of police officers.

e Claim against the Mayor for violation of due process because the Mayor knew _

of the false charges and failed to intervene to stop the criminal action against

him. .

e Claim against the Police Commissioner for violation of due process because

the Police Commissioner knew of the false charges and failed to intervene to

stop the criminal action against him.

e Claims against the Police Chief for (1) violation of due process by conspiring

to falsely arrest Drakos; (2) violation of due process by authorizing an illegal

search and seizure; and (3) violation of due process by refusing Drakos access

to Police Department records he needed to prove his innocence. □

e Claims against Nix for (1) false arrest; (2) illegal search and seizure;

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(3) violation of due process for filing a-false offense report, ona (4) malicious

prosecution.

e Claims agairist Jackson for (1) false arrest; (2) illegal search and seizure;

(3) violation of due process for filing a false offense report, and (4) malicious

prosecution. □

e Claims against John Does 1 and 2 and Jane Doe for illegal search and seizure.

(Dkts. 1-5, 17). □

Once the case was removed to this Court, the City filed a motion for judgment

on the pleadings. (Dkt. 8). The motion sought such a judgment on three grounds:

- (1) Drakos failed to allege sufficient facts against the City to establish municipal

liability under federal law; (2) the Police Department is not an entity capable of

being sued; and (3) Drakos’s state-law claims against all the defendants are barred _

by the Texas Tort Claims Act. (id.). Drakos responded with a motion for default

judgment and/or summary judgment against all defendants. (Dkt. 9). Neither party

has responded to the other parties’ motion,-.and their time to do so has now expired.

I. LEGAL PRINCIPLES

A. Actions Under 42 U.S.C. § 1983 □

The City removed this action to this Court after Drakos alleged at least some

claims under 42 U.S.C. § 1983. “Section 1983 does not create any substantive

rights, but instead was designed to provide a remedy for violations of statutory and

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constitutional rights.” ‘Lafleur v. Texas Dep’t.of Health, 126 F.3d 758, 759 (Sth Cir.

1997) (per curiam); see also Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979). To

state a valid claim under § 1983, the plaintiff must (1) allege a violation of tights

secured by the Constitution or laws of the United States, and (2) demonstrate that

the alleged deprivation was committed by a person acting under color of state law.

See West v. Atkins, 487 U.S. 42, 48 (1988); Gomez v Galman, 18 F 4th 769, 775 (Sth -

Cir. 2021) (per curiam). The first element recognizes that “state tort claims are not

actionable under federal law; a plaintiff under [§] 1983 must show deprivation of a

federal right.” Nesmith v. Taylor, 715 F.2d 194, 195 (Sth Cir. 1983) (per curiam).

The second element, which requires action “under color of state law,” means that

generally only state actors—not private parties—can be liable for violations of civil

rights. See Frazier 7 Bad. of Tr. of Nw. Miss. Reg’l Med. Ctr., 765 F.2d 1278, 1283

(Sth Cir. 1985). .

B. The Prison Litigation Reform Act

Although Drakos has now been released on jail, he was incarcerated when

he first filed this action. Therefore, his action is governed by the Prison Litigation

Reform Act (PLRA). See Gay v. Tex. Dep’t of Corr., State Jail Div., 117 F.3d 240,

242 (Sth Cir. 1997) (holding that the plaintiffs release from custody does not excuse

his compliance with the PLRA). Under the PLRA, when a prisoner’s complaint

seeks relief from the sovernment, the Court is required to screen the complaint as

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soon as feasible after docketing. 28 U.S.C. § 1915A(a); see also 42 U.S.C.

§ 1997e(c) (providing for screening of suits by prisoners under § 1983). This

screening requirement extends to prisoner cases that were originally filed in state

court but which have been removed to federal court. See Fleming v. United States,

538 F. App’x 423, 424 (Sth Cir. 2013) (per curiam); Phillips v. City of Dallas, No.

3:14-cv-3131-M, 2015 WL 233336, at *4 (N.D. Tex. Jan. 14, 2015) (same).

As part of the screening process, “the district court is authorized to dismiss a

complaint if the action is frivolous, malicious, or fails to state a claim upon which

relief may be granted.” leming, 538 F. App’x at 425. A complaint is frivolous “if

it lacks an arguable basis in law or fact.” Geiger v. Jowers, 404 F.3d 371, 373 (Sth

Cir. 2005) (per curiam). “A complaint lacks an arguable basis in law if it is based .

on an indisputably meritless legal theory, such as if the complaint alleges the

violation of a legal interest which clearly does not exist.” Samford v. Dretke, 562

F.3d 674, 678 (5th Cir. 2009) (per curiam); Siglar v. Hightower, 112 F.3d 191, 193

(Sth Cir. 1997). “A complaint lacks an arguable basis in fact if, after providing the

plaintiff opportunity to present additional facts when necessary, the facts alleged

are clearly baseless.” Rogers v. Boatright, 709 F 3d 403, 407 (Sth Cir. 2013)

(cleaned up). A complaint fails to state a claim upon which relief can be granted if

it does not contain “sufficient factual matter, accepted as true, to state a claim to

relief that is plausible on its face.” Jd. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 ©

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(2009)). If the complaint does not meet these pleadings standards, it must be

dismissed. See In re Jacobs, 213 F.3d 289, 290 (5th Cit. 2000) (per curiam). In

addition, the Court may dismiss the complaint, or any portion of the complaint, ifit

“seeks monetary pelies from a defendant who is immune from such relief.” 28 U.S.C.

§ 1915A(b)(2). . □

C. Motions for Judgment on the Pleadings

The City has filed a motion for judgment on the pleadings under Federal Rule

of Civil Procedure 12(c). KA motion brought pursuant to [Rule] 12(c) is designed to

dispose of cases where the material facts are not in dispute and a judgment on the

merits can be rendered by looking to the substance of the pleadings and any

judicially noticed facts.” Garza v. Escobar, 972 F.3d 721, 727 (5th Cir. 2020)

(quoting Great Plains Tr. Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305,

312 (5th Cir. 2002)). “The standard for Rule 12(c) motions for judgment on the

pleadings is identical to the standard for Rule 12(b)(6) motions to dismiss for failure

to state a claim.” Waller v. Hanlon, 922 F.3d 590, 599 (5th Cir. 2019). Dismissal

under Rule 12(b)(6), and ergo entry of a judgment on the pleadings, may be based

on either (1) a lack of a cognizable legal theory, or (2) a cognizable legal theory that

is not supported by sufficient facts to state a claim that is plausible on its face. See

Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990); see also

Turner y. Pleasant, 663 F.3d 770, 775 (5th Cir. 201 1); Frith vy. Guardian Life Ins.

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Co. of Am., 9 F. Supp. 2d 734, 737-38 (S.D. Tex. 1998). A claim is plausible on its

face “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 (cleaned up).

In determining whether a judgment on the pleadings is proper, the Court

accepts all the plaintiff’s factual allegations as true. See Garza, 972 F.3d at 727. |

But the Court is not required to “accept as true a legal conclusion couched as a

factual allegation.” Iqbal, 556 U.S. at 678. The Court then determines whether the □

factual allegations, accepted as true, state an actionable claim for relief against each

of the defendants. See Doe v. MySpace, Inc., 528 F.3d 413, 418 (Sth Cir. 2008). If

the plaintiff’s complaint does not allege facts that state a cognizable claim that is

plausible on its face, the motion for judgment on the pleadings should be granted.

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).

D. Pleadings Filed by. Pro Se Litigants □

Drakos is representing himself in this action. Courts construe pleadings filed

by pro se litigants under a less stringent standard of review. See Haines v. Kerner,

404 U.S. 519, 520 (1972) (per curiam). Under this. standard, “Ta] document filed pro

se is ‘to be liberally construed,’ and ‘a pro se complaint, however inartfully pleaded,

must be held to less stringent standards than formal pleadings drafted by lawyers.” .

Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (quoting Estelle v. Gamble,

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429 U.S. 97, 106 (1976)). But even under this liberal standard, pro se litigants must

still “abide by the rules that govern the federal courts.” E.E.0.C. v. Simbaki, Ltd.,

767 F.3d 475, 484 (Sth Cir. 2014). They must “plead sufficient facts that, when

liberally construed, state a plausible claim to relief, serve defendants, obey discovery

orders, present summary judgment evidence, file a notice of appeal, and brief.

arguments on appeal.” Jd. (cleaned up).

III. DISCUSSION

A. The City’s Motion for Judgment on the Pleadings

The City contends that it is entitled to a judgment on the pleadings because

the facts Drakos alleges, even accepted as true, do not establish liability against any

of the defendants under any cognizable legal theory. After a thorough review of the

motion, the parties’ pleadings, all matters of record, and the law, the Court grants

the City’s motion in part.

1. Claims Against the City □

a. Claims Under Federal Law

To the extent that Drakos has filed claims against the City under federal law, .

his avenues of relief are limited. Under 42 U.S.C. § 1983, municipalities, such as

the City, are not liable for the unconstitutional actions of their employees under the

doctrine of respondeat superior. See Monell v. Dep’t of Social Servs., 436 U.S. 658,

691 (1978). Instead, a plaintiff seeking relief against a municipality, such as the

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City, must establish that the allegedly unconstitutional conduct is “directly

attributable to the municipality through some sort of official action or imprimatur.”

Piotrowski v. City of Houston, 237 F.3d 567, 578 (Sth Cir. 2001). In general, this

. requires the plaintiff to (1) identify an official policy, (2) that was promulgated by a

municipal policymaker, and (3) that was the moving force behind the violation of a

constitutional right. See Henderson v. Harris County, Tex., 51 FAth 125, 130 (Sth

Cir. 2022) (per curiam), cert. denied, 143 S. Ct. 2661 (2023). -

To satisfy the first element, the plaintiff must clearly identify either an official

policy or an unofficial “custom or practice” that ee the violation of his rights.

The policies or practices that can support such a claim “include the decisions of a

government’s lawmakers, the acts of its policymaking officials, and practices so .

persistent and widespread as to practically have the force of law.” Connick □□

Thompson, 563 U.S. 51, 61 (2011) (cleaned up); Peterson v. City of Fort Worth,

Tex., 588 F.3d 838, 850-51 (Sth Cir. 2009). To proceed beyond the pleading stage,

the plaintiffs “description of a policy or custom and its relationship to the

underlying constitutional violation ... cannot be conclusory; it must contain specific

facts.” Spiller v. City of Tex. City, Police Dep’t, 130 F.3d 162, 167 (5th Cir. 1997);

see also Pefia v. City of Rio Grande City, Tex., 879 F.3d 613, 621-22 (Sth Cir. 2018).

Moreover, when the plaintiff relies on an unadopted custom or practice rather

than an official policy, the plaintiff must allege facts showing that the municipality

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had actual or constructive knowledge of that custom or practice. See Valle v. City

of Houston, 613.F.3d 536, 542 (Sth Cir. 2010). This requires factual allegations

showing that the actions of municipal employees “have occurred for so long or so

frequently that the course of conduct warrants the attribution to the governing body _

of knowledge that the objectionable conduct is the expected, accepted practice of

[municipal] employees.” Webster v. City of Houston, 735 F.2d 838, 842 (5th Cir.

1984) (per curiam). Isolated incidents of unconstitutional conduct are not sufficient

to meet this standard. See Campbell v. City of San Antonio, 43 F.3d 973, 977 (Sth

Cir. 1995). □

In his pleadings, Drakos does not identify any policy, ordinance, regulation,

or decision that was officially adopted or promulgated by the City that pareeceine

alleged violation of his rene nor does he identify any common or well-settled

practice that could be said to fairly represent a municipal policy. He does not allege

facts showing that the City had. either an official policy or a common practice .

concerning intervention in criminal proceedings, nor does he identify any basis

under which the City could legally intervene in such proceedings. He does not allege

facts showing that the City had either an official policy or a common practice of

ignoring requests for documents, nor does he show that he legally requested these

documents outside of his pending criminal proceedings.

As to his claim concerning negligent or reckless training, Drakos does not

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identify any official policy or common practice concerning the training of police

officers, and his bare allegation that the City “knows” that its police officers engage □

in improper actions and yet does nothing about, unsupported by any factual

allegations in support, is conclusory and speculative.

Drakos also alleges no facts showing that the City had a pattern or practice of

responding to similar alleged violations with deliberate indifference. Instead, he

alleges facts showing only an isolated incident of the City failing to intervene ina

pending criminal proceeding and failing to respond to his requests for documents.

These isolated incidents of allegedly unconstitutional acts are insufficient to state a

cognizable claim for relief because to “plausibly plead a practice so persistent and □

widespread as to peereniy have the force of law, a plaintiff must do more than

describe the incident that gave rise to his injury.” Pefia, 879 F.3d at 622 (quoting

Connick, 563 U.S. at 61). Drakos’s factual allegations, even taken as true, are

insufficient to state a claim against the City under § 1983 for violations of his due

process rights.

Drakos also claims that the City has a policy and custom of “negligent and

reckless training” designed to cover up unjustified arrests, unreasonable searches,

and “other fourth violations” and negligent supervision of police

officers, but this claim is also flawed. Drakos alleges no facts showing a pattern of

similar violations that would be sufficient to show that the City has essentially

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ratified these actions into a custom. In addition, the City cannot be liable for an

unwritten custom unless “[a]ctual or constructive knowledge of such custom” can

be attributed to a city policymaker. Pefia, 879 F.3d at 623 (quoting Hicks—Fields v.

Harris County, Tex., 860 F.3d 803, 808 (Sth Cir. 2017). Drakos’s complaint —

contains no factual allegations showing that any particular policymaker—whether it .

be the Mayor, the Police Commissioner, or the Chief of Police—had any knowledge

of the alleged negligent training that he crams resulted in the □□□ of his rights.

Drakos also alleges that the City should be held responsible for the alleged

deliberate indifference of the Mayor, the Police Commissioner, and the Police Chief

to his allegedly wrongful imprisonment. However, under Monell, the City can be

held liable only for its own violations of Drakos’s constitutional rights; it cannot be

held vicariously liable for violations committed by its employees. See Monell,436

U.S. at 691. And while a municipality can in some cases be liable for the deliberate

_ indifference of municipal employees, to state such a claim, Drakos must allege facts

showing that the City was aware of a “pattem of similar constitutional violations”

but took no actions to remedy the problem. Pefia, 879 F.3d at 623. As explained

above, Drakos does not allege any facts tending to show that any similar incidents

had occurred or that the City was aware of a pattern of similar incidents.

Drakos has not alleged sufficient facts in either his first supplemental

complaint or his more definite statement to state a legally cognizable claim for

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municipal liability against the City under § 1983. The City is entitled to judgment

on the pleadings in its favor on Drakos’s claims against it under federal law.

b. Claims Under State Law

To the extent that Drakos’s complaint can be construed as seeking relief

against the City under state law, his claims are barred by governmental immunity.

A Texas municipality, such as the City, is immune from actions under Texas

common law unless the Texas enelanirs has. expressly waived that city’s

governmental immunity. See Univ. of Tex. Med. Branch at Galveston v. York, 871

S.W.2d 175, 177 (Tex. 1994). The legislature has waived immunity only to the

extent explicitly stated in the Texas Tort Claims Act (TTCA). ‘See Lowe v. T ex

Tech. Univ., 540 S.W.2d 297, 298-99 (Tex. 1976) (citing TEX. Civ. PRAC. & REM.

CODE § 101.001—.109); Harris Cnty. Sports & Convention Corp. v. Cuomo, 604

S.W.3d 149, 153 (Tex. App.—Houston [14th Dist.] 2020, no pet.). Thus, the City is

immune from Drakos’s state-law claims unless the TTCA clearly waives that

immunity. See York, 871 S.W.2d at 177; Duhart v. State, 610 S.W.2d 740, 742 (Tex.

1980).

In general, the TTCA waives immunity in only three areas: (1) use of publicly □

owned vehicles, (2) premises defect, and (3) conditions or use of tangible property.

See Mogayzel v. Tex. Dep’t of Transp., 66 S.W.3d 459, 464 (Tex. App—Fort Worth

2001, pet. denied). If the plaintiffs claims do not fall within one of these areas, the

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municipality remains immune from both suit and liability. Jd. In addition, the TTCA

specifically provides that municipalities, like the City, are immune from suits arising

out of intentional torts of their employees. See Cox v. City of Fort Worth, Tex., 762

F, Supp. 2d 926, 935 (N.D. Tex. 2010). This includes claims arising out of “assault,

battery, false imprisonment, or any other intentional tort.” Jd. (quoting TEX. CIv.

PRAC. & REM. CODE § 101.057). Further, the TTCA prevents. creative pleading by

excluding a alleeaions against a governmental unit arising out of the same conduct

that formed the basis of the intentional tort claims against its employers Goodman

v. Harris County, 571 F.3d 388, 394 (Sth Cir. 2009); see also Tex. Dep’t of Pub.

Safety v. Petta, 44 S.W.3d 575, 580 (Tex. 2001) (concluding that plaintiff's

negligence claims arising from the same conduct that formed the basis of his assault

and battery claims were barred by the TTCA).

Drakos’s claims against the City for negligent supervision and negligent

training of its police force do not fall within any of the three exceptions to immunity

provided by the TCCA. And to the extent that Drakos seeks to hold the City liable

based on his allegedly false arrest, false imprisonment, and malicious prosecution, —

these are all intentional torts for which the City is immune. See Thomas v. State,

294 F. Supp. 3d 576, 614 (N.D. Tex. 2018). Drakos therefore fails to state a legally

cognizable claim against the City under state law. The City is entitled to judgment

on the pleadings in its favor on Drakos’s claims against it under state law.

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Because Drakos has not stated a legally cognizable claim against the City

under either federal law or state law, the City’s motion for judgment on the pleadings

is granted as to the claims against it. Drakos’s claims against the City are dismissed

with prejudice.

2. Claims Against the Police Department

The City has moved for judgment on the pleadings on behalf of the Police

Department, contending that it is not a jural entity that is capable of being sued. In

his More Definite Statement, Drakos concedes that the Police Department is not an

entity capable of being sued, and he states that he wishes to dismiss the Police

Department as a defendant. (Dkt. 17-2, p. 5). .

A party to a lawsuit must have the capacity to sue or be sued. See FED. R.

Civ. P. 17(b). “The capacity of an entity to sue or be sued ‘shall be determined by

the law of the state in which the district court is held.’” Darby v. Pasadena Police

Dep’t, 939 F.2d 311, 313 (Sth Cir. 1991) (quoting FED. R. Civ. P. 17(b) (1991)).

Under Texas law, a municipal police department is not a separate legal entity capable

of being sued. Id.; see also Rolen v. City of Brownfield, Tex., 182 F. App’x 362, 363 7

(5th Cir. 2006) (per curiam) (the district court did not err in dismissing the claims

against the City of Brownfield Police Department because it was not an entity

capable of being sued); Gardner v. Sugar Land Police Dep’t, Civil No. H-06-2559,

2006 WL 3171098, at *2 (S.D. Tex. Nov. 1, 2006) (the Fort Bend County Sheriff’s

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Office, like all Texas police departments and sheriff’s offices, is not a legal entity

capable of being sued).

As Drakos properly concedes, the Police Department lacks the legal capacity

to be sued. The City’s motion for judgment on the pleadings is granted, and Drakos’s

claims against the Police Department are dismissed with prejudice for failing to state

a claim upon which relief can be granted.

3. Claims Against the Individual Defendants

a. Claims Under State Law

In addition to his claims against the City and the Police Department, Drakos

names as defendants the Mayor of the City of Meadows Place, the Police

Commissioner of the City of Meadows Place, the Police Chief of the City of

Meadows Place, Sergeant Nix, Officer Jackson, and three other unidentified City

police officers. To the extent that Drakos seeks relief against these individuals under

state law, his claims are barred by the Texas election-of-remedies statute.

Under the election-of-remedies provision of the TTCA, a plaintiff must

choose between suing a municipality and suing an employee of that municipality.

See TEX. CIV. PRAC. & REM. CODE § 101.106; Bustos v. Martini Club, Inc., 599 F.3d

458, 462 (5th Cir. 2010). If the plaintiff chooses to sue the municipality, that

“constitutes an irrevocable election” by him and “bars any suit or recovery by [him]

against any individual employee of the governmental unit regarding the same subject □

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matter.” TEX. Civ. PRAC. & REM. CODE § 101.106(a). “Although recognized asa_-

harsh grant of immunity, [§ 101.106] serves the purpose of protecting government

-employees from individual liability for acts or omissions where aclaim based upon

the same facts is made against their employers.” Jackson v. Dallas Indep. Sch. Dist,

No. 3:98-CV-1079-D, 1999 WL 58846, at *5 (N.D. Tex. Feb. 1, 1999) (cleaned up),

aff'd, 232 F.3d 210 (Sth Cir. 2000). The election-of-remedies provisions in

§ 101.106 cover all state tort claims, whether intentional or negligent, and whether :

brought under common law or the TTCA. See Bustos, 599 F.3d at 463-64.

Here, Drakos has alleged claims under the TTCA and state common law

against City employees as well as against the City, regarding the same subject matter.

By enoneine to sue the City, Drakos made an irrevocable election of remedies and

is barred from suing the Mayor, the Police Commissioner, the Chief of Police,

Sergeant Nix, Officer Jackson, and the three Doe defendants regarding the same

subject matter. Because the City has moved for a judgment on the pleadings on

Drakos’s state-law tort claims against these individual defendants, the state-law

claims against them must be dismissed. See TEX. CIV. PRAC. & REM. CODE

§ 101.106(e). The City’s motion for judgment on the pleadings is granted as to

Drakos’s state-law claims against the individual defendants, and those claims are

dismissed with prejudice.

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b. Claims Under Federal Law

While Drakos’s state-law claims against the individual defendants are barred

by the election-of-remedies provision of the TTCA, that statute does not apply

claims arising under federal law. See Tex. Dep’t of Aging & Disability Servs. v.

Cannon, 453 S.W.3d 411, 415-16 (Tex. 2015). Therefore, the Court turns to the

federal claims against the individual employees.

i. Official Capacity Claims

Even though Drakos’s federal claims against the individual defendants do not

fall directly under the TICA, to the extent that he sues them in their official

capacities under § 1983, his claims are nevertheless barred by governmental

immunity.

When a government employee is sued in his or her official capacity, the

employing entity is the real party in interest for the suit. See Kentucky v. Graham,

473 U.S. 159, 165-66 (1985) (explaining that official-capacity suits “generally

represent only another way of pleading an action against an entity of which an officer

is an agent” and are “treated as a suit against the entity”). Drakos’s claims formoney _

damages against the individual defendants in their official capacities are therefore

construed as claims against the City and are barred by governmental immunity as □

explained above. The City’s motion for judgment on the pleadings as to these claims

is granted, and these claims are dismissed with prejudice.

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ii, Individual Capacity Claims

To the extent that Drakos sues the individual defendants in their individual

capacities under § 1983, his claims are not barred: by governmental immunity.

However, these claims are subject to dismissal because the available records appear

to show that Drakos has not served any of these defendants with process.

For a federal court to have jurisdiction over a case removed from state court,

the state court must first have jurisdiction over the action and the defendants. See

Lambert Run Coal Co. v. Baltimore & Ohio R_R. Co, 258 U.S. 377, 382 (1922).

Accordingly, only those defendants who were properly served with process under

state law before the action was removed are properly before the federal court upon

removal. See Woodham y. Nw. Steel & Wire Co., 390 F.2d 27, 29-30 (Sth Cir. 1968). □

“Tf the state court lacks jurisdiction of the subject-matter or of the parties, the federal

court acquires none.” City of Clarksdale v. BellSouth Telecomms., Inc., 428 F.3d

206, 211 (Sth Cir. 2005) (quoting Lambert Run Coal Co., 258US. at 382) (emphasis

added).

In this case, the state-court docket does not show that Drakos ever properly

requested service of process on the individual defendants. (Dkt. 1-7). It also does

not show any return of service for any of the individual defendants. (/d.). If, as it

appears, the individual defendants were not properly served with process before this

action was removed, this Court has not acquired jurisdiction over them and may not

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adjudicate Drakos’s claims against them.

In his pleadings, Drakos seems to contend that service on the City through its

counsel should be sufficient to establish service of process on the individual

defendants, who are City employees. Thus, the critical question is whether the

individual defendants were properly served under Texas law. See, e.g., Thompson

v. Deutsche Bank Nat'l Tr. Co., 775 F.3d 298, 303 (Sth Cir. 2014). And under Texas

law, service of process on an individual defendant requires the plaintiff to either

deliver the summons and complaint to the defendant in person or mail it to the

defendant by registered or certified mail. See TEX. R. CIv. P. 106(a). Service on the

individual defendant’s employer or the employer’s counsel is not sufficient.

Therefore, it does not appear that the individual defendants were properly served

before this action was removed to this Court. In the absence of proper service, this

Court never acquired jurisdiction over those defendants and so may not adjudicate

Drakos’s federal claims against them.

The City did not move for judgment on the pleadings on this basis; however,

this Court has an independent obligation to determine its own jurisdiction even if the □

question is not raised by the parties. See, e.g., Inre Red Barn Motors, Inc., 794 F.3d

481, 483 (5th Cir. 2015) (per curiam). Federal Rule of Civil Procedure 12(b)(2)

requires a court to dismiss a claim if the court does not have personal jurisdiction

over the defendant. See FED. R. Civ. P. 12(b)(2). And because it appears from the

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pleadings before the Court that these defendants have never been served with

procéss, it appears that Drakos’s federal-law claims against the individual

defendants must be dismissed for lack of jurisdiction.

However, Recs this issue was not raised by the City and because the Court

does not have the complete record of all of the proceedings in the state court, the

Court will provide Drakos with an opportunity to show that he has properly effected

service of process on them under Texas law. Accordingly, the Court orders Drakos

to show cause in writing within thirty (30) days from the date of this Order why his

claims against the individual defendants should not be dismissed for lack of personal

jurisdiction due to a lack of service of process. If Drakos does not timely respond

to this Order, his claims against the individual defendants will be dismissed without

further notice under Federal Rule of Civil precede 41(b).

B. Drakos’s Motion for Default and/or Summary Judgment

Drakos has filed a motion for default judgment against all the defendants,

asserting that he obtained service on all of en through service on their counsel but

that they either have not answered the complaint or did not timely answer it. (Dkt.

9, pp. 6-7). This motion is denied.

As to the City, neither entry of default nor a default judgment is proper

because neither may be entered after the defendant has filed an answer. See FED. R.

Civ. P. 55(a) (providing that a default may be entered only when the defendant has

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“failed to plead or otherwise defend); see also Sun Bank of Ocala v. Pelican

Homestead & Say. Ass’n, 874 F.2d 274, 277 (5th Cir. 1989) (the filing of any

. pleading is sufficient to constitute an appearance and should preclude entry of

default for failure to appear and defend). Because the City responded to both

Drakos’s first amended complaint and his first supplemental complaint, he is not

entitled to entry of default or a default judgment against them. .

As to the individual defendants, a default judgment is improper because the

record before the Court does not show that Drakos ever obtained proper service of □

process over them. See Ponder v. Wersant, Civil No. 4:17-cv-00537, 2017 WL

5904720, at *2 (SD. Tex. Sept. 29, 2017) (entry of default is improper when proper

service of process has not been obtained). As explained above, under Texas law,

proper service of process on an individual defendant requires the plaintiff to either

deliver the summons and complaint to the defendant in person or mail it to the

defendant by registered or certified mail. See Tex. R. Civ. P. 106(a). Service on the

individual defendant’s employer or counsel is not sufficient. ‘Accordingly, because

Drakos does not show that he ever properly served any of the individual defendants,

he is not entitled to entry of a default or default judgment against them.

Il. CONCLUSION

Based on the foregoing, the Court ORDERS as follows:

1. The City’s Motion for Judgment on the plead nes (Dkt. 8), is GRANTED in

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part.

2. Drakos’s claims against the City of Meadows Place, his claims the City of

Meadows Place Police Department, his state-law claims against the individual

defendants, and his federal-law claims against the individual defendants .in

their official capacities are DISMISSED with prejudice.

3. Drakos’s federal-law claims against the individual defendants in their

individual capacities remain pending at this time.

4. Drakos’s Motion for Default and/or Summary Judgment, (Dkt. 9), is □

DENIED.

5. Drakos is ORDERED to show cause in writing within thirty (30) days of

the date of this Order why his federal-law claims against the individual

defendants should not be dismissed for lack of service of process.

6. Drakos’s failure to file a response to the Order to Show Cause within the time

allowed may result in the dismissal of this action under Federal Rule of Civil

Procedure 41(b) without further notice.

The Clerk shall provide a copy of this Order to the parties.

SIGNED at Houston, Texas on Feb 18 , 2025.

Ea No

. DAVID HITINER

UNITED STATES DISTRICT JUDGE

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