# Powell v. City of Houston

> District Court, S.D. Texas · June 6, 2025

URL: https://www.frixlaw.com/law-library/cases/11068615

## Case

- **Court:** District Court, S.D. Texas
- **Decided:** June 6, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT June 09, 2025
SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk
HOUSTON DIVISION

JOHN POWELL & JOHNATHAN POWELL, §
§
Plaintiffs, §
§
vs. § CIVIL ACTION NO. H-25-1360
§
CITY OF HOUSTON, et al., §
§
§
Defendants. §

MEMORANDUM OPINION AND ORDER GRANTING
DEFENDANT J. NOE DIAZ’S MOTION TO DISMISS

John Powell and Johnathan Powell, through counsel, have sued the City of Houston; City
of Houston Secretary Pat Daniel; City of Houston Police Chief J. Noe Diaz; the City of Katy; City
of Katy Secretary Becky L. McGrew; City of Katy Police Chief Byron Woytek; and various
unidentified City of Houston and City of Katy police officers under 42 U.S.C. § 1983 and state
law. (Docket Entry No. 2). Their claims arise out of an incident that occurred at the Powell
residence in Harris County, Texas. (Id.). Chief Diaz has moved to dismiss the Powells’ amended
complaint under Federal Rule of Civil Procedure 12(b)(6). (Docket Entry No. 13). The Powells
have not responded to his motion, and their time to do so has now expired. Based on the court’s
review of the motion, the record, and the law, the court grants Chief Diaz’s motion and dismisses
this action against him with prejudice, because leave to amend would be futile. The reasons for
this ruling are explained below.
I. Background
In their amended complaint, the Powells allege that on November 8, 2023, the
“Defendants” conducted a warrantless search of their residence in Harris County. (Docket Entry
No. 2, p. 4). During the search, the “Defendants” broke a set of French doors, several deadbolts,
bedroom doors, commercial storage locks, and a television. (Id.). The Powells allege that
Johnathan Powell was “unlawfully handcuffed” during the search, and that John Powell was
subjected to excessive force and intimidation. (Id.). They allege that as a result of the defendants’
actions, they each suffered mental distress, reputational harm, and defamation of character. (Id. at

4). As relief, they seek compensatory damages, punitive damages, an injunction to require
additional police training, and attorney’s fees and costs. (Id. at 6-7).
The Powells’ amended complaint asserts claims for unlawful search and seizure, excessive
force, municipal liability, failure to train and supervise, and intentional infliction of emotional
distress. (Id. at 5-6). The Powells allege that the City of Houston “had a pattern or practice of
tolerating excessive force and unlawful searches and failed to properly train or supervise their
officers.” (Id. at 4). They allege that Chief Diaz “knew or should have known” that his officers
were engaging in unconstitutional conduct but failed to take corrective action. (Id. at 5). But the
amended complaint does not contain any other allegations, whether factual or legal, relating to the

Powells’ claims against Chief Diaz.
Chief Diaz moved to dismiss the claims against him under Rule 12(b)(6). (Docket Entry
No. 13). He contends that the claims against him in his official capacity should be dismissed as
redundant of the Powells’ claims against the City. (Id. at 5-6). He alleges that the Powells’ claims
for an unlawful search and seizure and excessive force should be dismissed for failing to state a
claim. (Id. at 6-8). And he contends that the claims for intentional infliction of emotional distress
should be dismissed as barred by the Texas Tort Claims Act. (Id. at 8-9).
The Powells did not file a response to Chief Diaz’s motion, and their time to do so has now
expired.

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II. The Legal Standards.
A. Actions 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 constitutional rights.” Lafleur v. Texas Dep’t of Health, 126
F.3d 758, 759 (5th Cir. 1997) (per curiam); see also Baker v. McCollan, 443 U.S. 137, 144 n.3

(1979). To state a valid claim under § 1983, a plaintiff must allege facts that could prove (1) a
violation of rights secured by the Constitution or laws of the United States, and (2) that the
violation 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 (5th 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 (5th Cir. 1983)
(per curiam). The second element means that generally only state actors—not private parties—
can be liable for violations of civil rights. See Frazier v. Bd. of Tr. of Nw. Miss. Reg’l Med. Ctr.,
765 F.2d 1278, 1283 (5th Cir. 1985).

B. Motions to Dismiss.
A motion to dismiss under Rule 12(b)(6) challenges the sufficiency of the plaintiff’s
complaint to state a claim upon which relief can be granted. When the court considers a motion
under Rule 12(b)(6), “the factual information to which the court addresses its inquiry is limited to
the (1) the facts set forth in the complaint, (2) documents attached to the complaint, and (3) matters
of which judicial notice may be taken under Federal Rule of Evidence 201.” Walker v. Beaumont
Indep. Sch. Dist., 938 F.3d 724, 735 (5th Cir. 2019). This includes documents attached to the
motion to dismiss if they are referred to in the plaintiff’s complaint and are central to the claims,

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and publicly available judicial documents. See Payne v. City of Houston, Appeal No. 24-20150,
2025 WL 999085, at *1 (5th Cir. Apr. 3, 2025).
In ruling on a motion to dismiss, the court “construes the complaint liberally in favor of
the plaintiff,” “takes all facts pleaded in the complaint as true,” and considers whether “with every
doubt resolved on [the plaintiff’s] behalf, the complaint states any valid claim for relief.”

Harrington v. State Farm Fire & Cas. Co., 563 F.3d 141, 147 (5th Cir. 2009) (cleaned up). But
to survive a motion to dismiss under Rule 12(b)(6), the complaint must include specific facts, not
conclusory allegations. See Powers v. Northside Indep. Sch. Dist., 951 F.3d 298, 305 (5th Cir.
2020). The complaint must also allege “enough facts to state a claim to relief that is plausible on
its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); Gomez, 18 F.4th at 775. 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.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (cleaned up). If the facts alleged are facially sufficient, “a well-pleaded
complaint may proceed even if it strikes a savvy judge that actual proof of those facts is

improbable, and ‘that a recovery is very remote and unlikely.’” Twombly, 550 U.S. at 556. But if
the complaint does not set forth “enough facts to state a claim to relief that is plausible on its face,”
it must be dismissed. Id. at 570.
III. Discussion.
A. The § 1983 Claims Against Chief Diaz in his Official Capacity.
The Powells sue Chief Diaz solely in his official capacity. (Docket Entry No. 2, p. 1).
Because of this, Chief Diaz moves to dismiss the § 1983 claims as redundant of the Powells’ claims
against the City of Houston.

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When a government employee is sued in his official capacity, the employing entity is the
real party in interest for the action. See Kentucky v. Graham, 473 U.S. 159, 165-66 (1985)
(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”). Because a
claim against a government employee in his official capacity is tantamount to a suit against the

municipal entity, “when a plaintiff asserts claims against both the municipal entity and a municipal
official in his or her official capacity, the Court can dismiss the official capacity claim as
‘redundant’ to the municipal-entity claim.” Schweitzer v. Dagle, No. 3:22-CV-00273, 2024 WL
1348415, at *5 (S.D. Tex. Mar. 27, 2024), report and recommendation adopted, 2024 WL
1622636 (S.D. Tex. Apr. 15, 2024) (cleaned up).
The Powells’ claims against Chief Diaz in his official capacity are redundant to those they
pleaded against the City of Houston, which have previously been dismissed. The claims against
Chief Diaz are subject to dismissal on the same basis as the Powells’ claims against the City.
Diaz’s motion to dismiss the claims against him in his official capacity is granted, and those claims

are dismissed with prejudice as redundant.
B. The Claims for Unlawful Search and Seizure and Excessive Force
The Powells clearly state that they are suing Chief Diaz only in his official capacity.
(Docket Entry No. 2, p. 1). But to the extent that their amended complaint could be construed as
seeking relief against Chief Diaz individually for the allegedly unlawful acts of other City of
Houston police officers, the Powells fail to allege facts sufficient to establish supervisory liability.
To hold a supervisory official liable under § 1983, the plaintiffs must allege facts showing
either (1) the supervisor’s personal involvement in a constitutional deprivation, and (2) a causal
connection between the supervisor’s wrongful conduct and a constitutional deprivation, or (3) that

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the supervisory official implemented a policy so deficient that the policy itself is a repudiation of
constitutional rights and is the moving force behind a constitutional deprivation. See Thompkins v.
Belt, 828 F.2d 298, 303-04 (5th Cir. 1987); see also Gates v. Tex. Dep’t of Prot. & Reg. Servs.,
537 F.3d 404, 435 (5th Cir. 2008). Only the direct actions or omissions of the supervisory official,
not the actions of his or her subordinates, will make that official individually liable under § 1983.

See Estate of Davis ex rel. McCully v. City of N. Richland Hills, 406 F.3d 375, 381 (5th Cir. 2005);
See Alton v. Tex. A & M Univ., 168 F.3d 196, 200 (5th Cir. 1999).
To the extent that the Powells seek to hold Chief Diaz liable as a supervisor for the actions
of the City of Houston officers present at the Powells’ residence, they fail to state a claim upon
which relief may be granted. Chief Diaz may not be held vicariously liable for the actions of his
subordinates. The Powells do not allege any facts showing that Chief Diaz personally violated
any of their constitutional rights. And they do not identify any policy implemented by Chief Diaz
that is so deficient that the policy itself is a repudiation of constitutional rights. Their allegations
are both factually and legally insufficient to state a claim for supervisory liability against Chief

Diaz. The claims against Chief Diaz based on a theory of supervisory liability are dismissed with
prejudice, because leave to amend would be futile.
C. The State-Law Claim for Intentional Infliction of Emotional Distress.
The Powells allege a claim for intentional infliction of emotional distress against “the
defendants.” To the extent that they bring this claim against Chief Diaz under § 1983, they fail to
state a claim upon which relief can be granted because they do not allege a violation of a
constitutional right. See Wolfe v. Quave, 79 F. App’x 648, 648 (5th Cir. 2003) (per curiam) (a
“claim for intentional infliction of emotional distress fails to rise to the level of a constitutional
violation”); Conner v. Sticher, 801 F.2d 1266, 1269 (11th Cir. 1986) (“[A] tort law claim of

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intentional infliction of emotional distress does not give rise to a constitutional deprivation
actionable under [§] 1983.”); Dibrell v. Huber, No. CIV.A.H-04-4854, 2006 WL 14570, at *4
(S.D. Tex. Jan. 3, 2006) (“[A] claim of intentional infliction of emotional distress . . . cannot form
the basis of a § 1983 action because there is no constitutionally protected interest at stake.”).
To the extent that the Powells allege this claim against Chief Diaz under state law, their

claims are barred by the Texas Tort Claims Act. See TEX. CIV. PRAC. & REM. CODE § 101.001–
.109. The Texas Tort Claims Act contains an election-of-remedies provision, which requires the
plaintiffs to choose between suing a municipality or 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 plaintiffs choose to sue the municipality, that “constitutes an irrevocable election”
by them and “bars any suit or recovery by [them] against any individual employee of the
governmental unit regarding the same subject matter.” TEX. CIV. PRAC. & REM. CODE
§ 101.106(a). The election-of-remedies provision covers all state tort claims, whether intentional
or negligent, and whether brought under common law or the Texas Tort Claims Act. See Bustos,

599 F.3d at 463–64.
If a municipal employee is sued for actions taken in the scope of his employment and moves
to dismiss based on the election-of-remedies provision, that motion must be granted “unless the
plaintiff files amended pleadings dismissing the employee and naming the governmental unit as
defendant on or before the 30th day after the date the motion is filed.” TEX. CIV. PRAC. & REM.
CODE § 101.106(f). Essentially, § 101.106(f) “mandates plaintiffs to pursue lawsuits against
governmental units rather than their employees, and entitles the employee to dismissal of the
relevant tort claim.” Wilkerson v. Univ. of N. Texas By & Through Bd. of Regents, 878 F.3d 147,
159 (5th Cir. 2017) (citing Laverie v. Wetherbe, 517 S.W.3d 748, 752 (Tex. 2017), and Tex.

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Adjutant Gen.’s Office v. Ngakoue, 408 S.W.3d 350, 352 (Tex. 2013)). “Although recognized as
a harsh grant of immunity, [§ 101.106] serves the purpose of protecting government employees
from individual liability for acts or omissions where a claim 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), aff'd, 232 F.3d 210 (Sth Cir. 2000) (cleaned up).
In their amended complaint, the Powells allege claims for intentional infliction of
emotional distress against both the City of Houston and Chief Diaz. By choosing to sue the City,
the Powells made an irrevocable election of remedies and so are barred from suing Chief Diaz
regarding that same claim. In addition, Chief Diaz moved to dismiss this claim and invoked the
election-of-remedies provision, but the Powells did not file an amended complaint dismissing
Chief Diaz and naming solely the City in response to that motion. For both reasons, the Powells’
claims against Chief Diaz are barred under the Texas Tort Claims Act. Chief Diaz’s motion to
dismiss the Powells’ claims for intentional infliction of emotional distress is granted, and these
claims are dismissed with prejudice, because leave to amend would be futile.
IV. Conclusion
Based on the above, the court orders that Chief J. Noe Diaz’s motion to dismiss, (Docket
Entry No. 13), is granted. The Powells’ claims against Chief Diaz are dismissed with prejudice
for failure to state a claim.
SIGNED on June 6, 2025, at Houston, Texas.

Lee H. Rosenthal
Senior United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11068615. Public record. Not legal advice.