Harvey v. City of Galveston

□ Southern District of Texas

ENTERED

July 17, 2025

Sn the Anited States District Court vatan ocnsner, cier

for the Southern District of Texas

GALVESTON DIVISION

No. 3:25-cv-58

ROBERT HARVEY, PLAINTIFF,

V.

WILLIAM ROY, ET AL., DEFENDANTS.

MEMORANDUM OPINION AND ORDER

JEFFREY VINCENT BROWN, UNITED STATES DISTRICT JUDGE:

The defendants have moved to dismiss the plaintiffs claims under Fed.

R. Civ. P. 12(b)(6). Dkt. 8. The court will grant the motion in part and deny

it in part.

I. Background

This lawsuit arises from a June 2024 incident involving Robert Harvey

and Galveston Fire Department Battalion Chief William Roy.: Harvey alleges

1 Harvey attached a video of the incident to his complaint, which the court

adopts only if it “blatantly contradicts” the factual allegations. Harmon v. City of

Arlington, 16 F.4th 1159, 1163 (5th Cir. 2021) (quoting Scott v. Harris, 550 U.S.

372, 380 (2007)).

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that while he walked along the sidewalk on 61st Street in Galveston, Roy was

on duty and seated in a fire-department vehicle. Dkt. 1 ¶¶ 9–10. As Harvey

passed the vehicle, Roy activated the truck’s siren without justification, then

backed into the roadway, turned toward Harvey, and drove forward, striking

Harvey with the vehicle’s passenger-side mirror. Id. ¶¶ 11, 13. Harvey alleges

he suffered injuries to his arm, shoulder, and ears that required medical

treatment. Id. ¶¶ 14–15, 21. Roy allegedly left the scene without identifying

himself or checking on Harvey’s condition. Id. ¶¶ 16. Harvey reported the

incident to city personnel and later filed a criminal complaint, which he

contends the City of Galveston failed to investigate properly. Id. ¶¶ 17–28.

Harvey alleges that city officials never tested Roy for alcohol, claimed to have

reviewed a surveillance video that does not exist, and lost bodycam footage

related to the investigation. Id. ¶¶ 17–27.

Harvey brings claims against Roy under 42 U.S.C. § 1983 for excessive

force and violation of due process and against the city under Monell for

unconstitutional policies and ratification. Monell v. Dep’t 436 U.S. 658

(1978) (requiring allegations that an official policy or custom was the moving

force behind injuries caused by a constitutional violation). He also asserts

common-law claims for negligence, gross negligence, and negligence per se

against Roy and seeks to hold the city liable under the Texas Tort Claims Act

(“TTCA”). Dkt. 1. The defendants have moved to dismiss Harvey’s claims for

failure to state a claim. Dkt. 8.

II. Legal Standards

A. Rule 12(b)(6)

To survive a motion to dismiss for failure to state a claim, a plaintiff

must plead facts sufficient 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 is facially plausible when the

pleaded facts allow the court to reasonably infer that the defendant is liable

for the alleged conduct. Jd. In reviewing the pleadings, a court accepts all

well-pleaded facts as true, “construing all reasonable inferences in the

complaint in the light most favorable to the plaintiff.” White v. U.S. Corrs.,

L.L.C., 996 F.3d 302, 306-07 (5th Cir. 2021). But the court does not accept

“[cJonclusory allegations, unwarranted factual inferences, or legal

conclusions” as true. Plotkin v. IP Axess Inc., 407 F.3d 690, 696 (5th Cir.

2005).

B. Section 1983 and Qualified Immunity

To state a claim against a government official under § 1983, a plaintiff

must allege (1) the defendant violated “a right secured by the Constitution

and laws of the United States” and (2) “a person acting under color of state

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law” committed the violation. West v. Atkins, 487 U.S. 42, 48 (1988).

Personal-capacity claims under § 1983 are subject to the affirmative defense

of qualified immunity. Goodman v. Harris Cnty., 571 F.3d 388, 395 (5th Cir.

2009). Once a defendant raises qualified immunity, the plaintiff has the

burden to negate the defense by (1) “alleg[ing] a violation of a constitutional

right” and (2) showing the right “was ‘clearly established’ at the time of the

alleged violation.” Cope v. Cogdill, 3 F.4th 198, 204 (5th Cir. 2021) (quoting

Pearson v. Callahan, 555 U.S. 223, 232 (2009)). The right is clearly

established when the court finds “controlling authority . . . that defines the

contours of the right in question with a high degree of particularity.” Hogan

v. Cunningham, 722 F.3d 725, 735 (5th Cir. 2013) (citation omitted). In other

words, the court must find a reasonable officer could have believed the

defendant’s conduct was lawful under the circumstances. Anderson v.

Creighton, 483 U.S. 635, 641 (1987).

The usual Rule 12(b)(6) standard applies when a defendant moves to

dismiss a § 1983 claim based on qualified immunity. Benfer v. City of

Baytown, 120 F.4th 1272, 1279 (5th Cir. 2024) (“[A] complaint survives

dismissal if it pleads facts that, if true, would permit the inference that

defendants are liable under § 1983 and would overcome their qualified

immunity defense.” (quotations and citation omitted)).

III. Analysis

A. Video Exhibit

As a threshold matter, the parties dispute whether the court can

consider for the purposes of this motion the video attached to the motion to

dismiss. Dkt. 8-1. The defendants argue that the court can consider the video

because Harvey refers to it in his complaint. Dkt. 8 47; see Causey v. Sewell

Cadillac-Chevrolet, Inc., 394 F.3d 285, 288 (5th Cir. 2004) (“Documents

that a defendant attaches to a motion to dismiss are considered part of the

pleadings if they are referred to in the plaintiff's complaint and are central to

her claim.”). Harvey argues that the court can consider the video only if the

court treats the motion as one for summary judgment. Dkt. 11 {] 8—10; see

Fed R. Civ. P. 12(d).

The court agrees with Harvey. Although Harvey refers to the video in

his complaint, he does so only to say the video does not exist, not to support

his allegations. Dkt. 1 9] 24-25. Indeed, the video could not be central to

Harvey’s claims because he disputes its existence. Id. Instead, Harvey relies

on his own video footage, which he attaches to his complaint. Dkt. 6. This is

different than the typical situation cited by defendants when a plaintiff refers

to a document or contract at the center of their claim but does not attach it.

See Ramos v. Taylor, 646 F. Supp. 3d 807, 815-16 (W.D. Tex. 2022)

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(collecting cases declining to consider videos related to allegations but not

attached to complaint); see also, Trevino v. Iden, 79 F.4th 524, 527 n.1 (5th

Cir. 2023) (considering a case report and a summary related to an

investigation against the plaintiff); In re Katrina Canal Breaches Litig., 495

F.3d 191, 205 (5th Cir. 2007) (considering insurance contracts).

Consequently, the court cannot consider the defendant’s video without

treating the motion to dismiss as a motion for summary judgment, which it

declines to do. See Fed R. Civ. P. 12(d). Accordingly, the court decides this

motion based only on the pleadings and the video Harvey attached to his

complaint.

B. Section 1983

Excessive Force

Harvey has not stated a claim for excessive force because he has not

alleged a seizure. See Est. of Parker v. Miss. Dep’t of Pub. Safety, 140 F.4th

226, 238 (5th Cir. 2025) (noting that a seizure is the first of two elements of

a Fourth Amendment excessive-force claim). A seizure requires the intent to

restrain. Brower v. Cnty. of Inyo, 489 U.S. 593, 597 (1989). But Harvey

alleges only that Roy intentionally hit Harvey with the firetruck—not

intentional restraint. Dkt. 1 ¶¶ 12–14; see Brower, 489 U.S. at 597; California

v. Hodari D., 499 U.S. 621, 626–27 (1991) (explaining how a seizure requires

the “application of physical force to restrain movement, even when it is

ultimately unsuccessful”). Harvey asserts that his “attemp[t] to back out of

the way of the truck” was unsuccessful because he “was struck in the arm and

shoulder by the large passenger-side mirror” of the truck. Dkt. 1 ¶ 14. But this

assertion fails to show how Roy intended to restrict Harvey’s “freedom of

movement.” Brower, 489 U.S. at 597. Without that allegation, Harvey fails

to state a claim for excessive force under the Fourth Amendment.

Accordingly, the court dismisses Harvey’s excessive-force claim.

Due Process

Harvey has stated a claim for a violation of his substantive due process

under the Fourteenth Amendment. Dkt. 1 ¶¶ 19–20, 24. Government

officials violate substantive due process via conduct that “can properly be

characterized as arbitrary, or conscience shocking, in a constitutional sense.”

Cnty. of Sacramento v. Lewis, 523 U.S. 833, 846–47 (1998) (citation

omitted). The complaint alleges that Harvey and a friend were walking on

the sidewalk when they passed Roy’s fire-department vehicle while it sat

unmoving on the shoulder. Dkt. 1 ¶¶ 9–11. Roy “blasted his siren multiple

times for no discernible reason,” injuring Harvey’s ears. Id. After Harvey

verbally objected, Roy then reversed, angled his vehicle toward Harvey, and

drove into a pedestrian space where he struck Harvey. Id. ¶¶ 12–14. Harvey

sustained substantial injuries. Id. { 29. At the pleading stage, these facts

must be taken as true. White, 996 F.3d at 306-07. If proven, the allegations

would constitute arbitrary, malicious government action that shocks the

conscience. See Lewis, 523 U.S. at 844-49 (1998) (“[C]onduct intended to

injure in some way unjustifiable by any government interest is the sort of

official action most likely to rise to the conscience-shocking level.”).

Accordingly, Harvey has stated a claim for a Fourteenth Amendment

substantive-due-process claim.

3. Qualified Immunity

Qualified immunity protects Roy from the excessive-force claim but

not the substantive-due-process claim. Whitley v. Hanna, 726 F.3d 631, 638

(5th Cir. 2013) (qualified immunity requires alleging a violation of a clearly

established constitutional right at the time of the conduct). As explained

above, Harvey has not stated a claim for excessive force; therefore, Roy is

entitled to qualified immunity from that claim.?

2 Even if a Fourth Amendment violation had occurred, Harvey’s reliance on

Checki v. Webb to support his excessive-force claim is misplaced. Dkts. 1 30; 11

{ 29; 785 F.2d 534, 535-38 (5th Cir. 1986). Checki establishes a violation of the

Fourteenth Amendment, not the Fourth, and Checki does not show that a non-law-

enforcement official such as a firefighter would violate the Fourth Amendment

through the conduct alleged here. Id.

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But Roy is not entitled to qualified immunity for the substantive-due-

process claim. Harvey has plausibly alleged Roy violated his right to be free

from arbitrary and malicious physical harm by a government official, without

any lawful justification—a right that has been clearly established for decades.

See Lewis, 523 U.S. at 849. The Fifth Circuit has made clear that a

government official using a government vehicle “to terrorize a civilian”

“[lays] the building blocks for a section 1983 claim.” Checki, 785 F.2d at 538.

Because the complaint plausibly alleges facts supporting a violation of clearly

established right under the Fourteenth Amendment, Roy is not entitled to

qualified immunity at this stage.

Accordingly, Harvey’s Fourteenth Amendment claim survives.

4. Monell Liability

Harvey has stated a claim for Monell liability. Monell, 436 U.S. at 690-—

94. But of the two theories Harvey asserts—actions of a policymaker and

ratification—only ratification is plausible. Dkt. 1 1] 33-34, 36-39.

Harvey does not assert that Roy is a final policymaker for the City of

Galveston. See Pembaur v. City of Cincinnati, 475 U.S. 469, 480-81 (1986)

(attaching liability “only where the decisionmaker possesses final authority

to establish municipal policy with respect to the action ordered”). Roy asserts

only that as a “Battalion Chief,” Roy is a policymaker and that the Fire Chief

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and Assistant Fire Chief are “final policymakers within the Galveston Fire

Department.” Dkt. 1 ¶¶ 10, 15,3 37. And Harvey alleges Roy engaged in

“deliberate conduct” but not that “the municipality was the ‘moving force’

behind the injury alleged.” Bd. of Cnty. Comm’rs v. Brown, 520 U.S. 397,

404 (1997). Thus, Roy’s conduct is more appropriately categorized as

“discretionary,” which does not give rise to Monell liability. Pembaur, 475

U.S. at 481–82. In the absence of allegations Roy’s conduct represented

official city policy, the complaint does not state a Monell claim under a

policymaker theory; therefore, the court dismisses this claim.

In contrast, Harvey plausibly alleges the city ratified Roy’s conduct by

failing to discipline him following an internal investigation. Dkt. 1 ¶¶ 36–39.

The Fifth Circuit limits ratification to “extreme factual situations,” which it

describes as including “an obvious violation of clearly established law.”

World Wide St. Preachers Fellowship v. Town of Columbia, 591 F.3d 747,

755 (5th Cir. 2009). And the complaint includes substantial allegations of the

city ratifying the alleged Fourteenth Amendment violations: ignored medical

records, an untested urine sample, and a missing or fabricated video. Dkt. 1

3 The complaint numbers its paragraphs through 29 and then restarts at 15.

This paragraph 15 is the second one in the complaint.

¶¶ 17–20, 24–27, 16,4 37. At the motion-to-dismiss stage, this pleads

ratification.

Accordingly, Harvey has stated a claim for the city’s § 1983 liability

under Monell. The court dismisses the policymaker claim, but the ratification

claim survives.

C. State-law claims

Harvey concedes the court must dismiss his common-law negligence,

gross-negligence, and negligence-per-se claims against Roy because they

cannot coexist with his TTCA claim against the city. Dkt. 11 ¶ 41; see Tex. Civ.

Prac. & Rem. Code § 101.106(a), (e) (barring claim against employee for same

subject matter as claim against city and requiring that such suit against the

employee “shall immediately be dismissed on the filing of a motion by the

governmental unit”).

Turning to the TTCA claim against the city. Dkt. 1 ¶¶ 60–66; Tex. Civ.

Prac. & Rem. Code § 101.021 (waiving immunity for “wrongful act[s] or

omission[s] or the negligence of an employee acting within the scope of

employment” under certain conditions). The complaint alleges that Roy

personally operated a city-owned vehicle and caused physical injury to

4 The complaint numbers its paragraphs through 29 and then restarts at 15.

This is the second paragraph 16 in the complaint.

Harvey. Dkt. 1 ¶¶ 10–14. These allegations fall squarely within the TTCA’s

waiver of immunity for injuries “arising from the operation or use of a motor-

driven vehicle” by a government employee “acting within his scope of

employment.” Tex. Civ. Prac. & Rem. Code § 101.021(1). The complaint

asserts a viable underlying negligence claim, which, if proven, would

establish Roy’s personal liability under Texas law. Id. § 101.021(1)(B), (2);

Dkt. 1 ¶¶ 13–14, 29, 44–46. Together, Harvey’s allegations state a claim

against the city under the TTCA.

Moreover, the city has not shown immunity bars Harvey’s TTCA claim.

First, the city argues that Harvey has alleged intentional torts, which are not

viable claims under the TTCA. Dkt. 8 ¶ 52; see Tex. Civ. Prac. & Rem. Code

§ 101.057(2). But Harvey does not plead intentional claims under the TTCA;

he alleges liability for an intentional act under § 1983 and liability for a

negligent or reckless act under the TTCA. Dkt. 11 ¶¶ 48–49; see Fed. R. Civ.

P. 8(d) (allowing plaintiffs to plead alternative claims even if they conflict).

For this reason, the city’s arguments for immunity under the TTCA based on

Harvey’s § 1983 claims fail.

Second, the governmental functions provision does not bar Harvey’s

TTCA claim at this stage. See Tex. Civ. Prac. & Rem. Code § 101.055 (limiting

tort liability to “conscious indifference or reckless disregard for the safety of

others” when “responding to an emergency”). Harvey alleges the incident did

not occur “near the scene of an emergency” or “at the scene of an emergency.”

Dkt. 1 ¶ 24. And although the video attached to the complaint shows Roy’s

emergency lights on and other emergency vehicles in the area, Roy’s vehicle

is stationary until Roy moves it to allegedly aim at and then drive toward

Harvey. Dkt. 6. Thus, under Harvey’s version of the facts, it does not appear

Roy was “responding to an emergency call or reacting to an emergency

situation,” as required under section 101.055(2). Even if section 101.055(2)

applied, Harvey alleges Roy’s “actions were done with reckless disregard of

substantial risk of severe bodily injuries,” which falls into the statute’s

exception. Dkt. 1 ¶ 48; Tex. Civ. Prac. & Rem. Code § 101.055(2) (the

governmental function of emergency response bars a TTCA claim “if the

action is not taken with conscious indifference or reckless disregard for the

safety of others” (emphasis added)). Additionally, Harvey does not base his

claims on “the method of providing . . . fire protection,” so this immunity

does not apply. Tex. Civ. Prac. & Rem. Code § 101.055(3).

The city retains immunity for gross negligence. See City of Hous. v.

Johnson, 353 S.W.3d 499, 503-05 (Tex. App.—Houston [14th] 2011, pet.

denied) (holding that the TTCA bars exemplary damages and thus gross

negligence).

Accordingly, the court dismisses Harvey’s common-law negligence,

gross-negligence, and negligence-per-se claims against Roy. The TTCA claim

against the city survives.

* * *

For the foregoing reasons, the court grants in part and denies in part

the defendants’ motion to dismiss. Dkt. 8.

As to Roy, the court dismisses the § 1983 claim for excessive-force, and

the state-law negligence, gross-negligence, and negligence-per-se claims.

As to the city, the court dismisses the Monell policymaker claim.

Accordingly, these claims remain: (1) the § 1983 claim for a Fourteenth

Amendment substantive-due-process violation against Roy, (2) the Monell

ratification claim against the city, and (3) the TTCA claim against the city.

Additionally, punitive damages are available only for the § 1983 claim

against Roy.5

Signed on Galveston Island this 17th day of July, 2025.

___________________________

JEFFREY VINCENT BROWN

UNITED STATES DISTRICT JUDGE

5 As clarified by Harvey in his response to the motion to dismiss. Dkt. 11

¶¶ 60–61.