Opinion

COURT

OF APPEALS

SECOND

DISTRICT OF TEXAS

FORT

WORTH

NO.

2-09-038-CV

DARREN B. SWAIN APPELLANT

V.

CORPORAL

JASON HUTSON, APPELLEES

OFFICER DORA DEWALL,

SERGEANT DANIEL HENNING,

COURT CLERK NORMA

WILLIAMS,

JUDGE STEWART MILNER,

JUDGE ROSALIA MADDOCK,

AND DOES 1 B 5

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FROM THE 48TH

DISTRICT COURT OF TARRANT COUNTY

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MEMORANDUM OPINION [1]

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Introduction

Appellant Darren B. Swain, appearing pro se,

appeals the dismissal of his claims against appellees C a number

of employees of the City of Arlington C Corporal

Jason Hutson, Officer Dora Dewall, Sergeant Daniel Henning, Court Clerk Norma

Williams, Judge Stewart Milner, Judge Rosalia Maddock, and Does 1 B 5. Appellant asserts in four issues that the

trial court improperly dismissed his federal claims for the deprivation of his

civil and constitutional rights. We

affirm in part and reverse and remand in part.

Background

Facts alleged in appellant = s

petition

On August 30, 2006, appellant parked his rental

car in the parking lot of a vacant restaurant in Arlington after one of the two

women in the car spilled a soft drink.

While all three individuals were standing outside of the car, Arlington

Police Department (APD) Officer Dora Dewall arrived on the scene and began to

investigate. Later, APD Officer Jason

Hutson arrived to assist in the investigation.

At some point, Officer Hutson, who knew the two

women who were with appellant, threw appellant up against the rental car and

began to search him. Officer Hutson

found sealed samples of Protronix and Levitra in appellant = s

pockets; [2]

the samples had been given to appellant by his physician. The officers arrested appellant for

possession of dangerous drugs and also cited him for making an offer to buy and

sell goods or services on city property. [3] After his release through bail on the night

of his arrest, appellant went to a wrecker service to reclaim his rental car,

but his drug samples and a number of cellular telephone A SIM @ cards,

valued at $500, were unaccounted for.

Over the next few months, appellant attempted on

several occasions to reclaim his drug samples and A SIM @ cards

from the police and obtain copies of the charges, police reports, and other

documents and information related to his arrest from other city officials, with

only limited success. Appellant received

an additional ticket in the mail on January 3, 2007, charging him with a third

offense, itinerant vending without a license, arising out of the events of

August 30, 2006.

On February 1, 2007, Arlington Municipal Court

Judge Stewart Milner presided over appellant = s bench

trial on the charge of offering to buy or sell goods or services on city property. Judge Milner found him guilty and imposed a

total monetary punishment of $173. On

February 20, 2007, after an alleged ex parte hearing between the judge and the

prosecutor, the judge dismissed the charge for possession of dangerous drugs.

On March 2, 2007, appellant went to Arlington

Municipal Court Clerk Norma Williams to pay a bond so he could appeal his

conviction for offering to buy or sell on city property. Initially, Williams refused to accept payment,

and although she eventually accepted a certified check in payment of the bond,

a Tarrant County Criminal Court later dismissed appellant = s appeal

because it found that the appeal bond was filed too late.

By May 2, 2008, appellant = s trial

on the itinerant vending charge had not occurred; thus, appellant filed a

motion to dismiss for the denial of his right to a speedy trial. After appellant attempted to gain more

information about the charge from city officials, on July 17, 2008, almost two

years after the underlying event occurred, a jury in Arlington Municipal Judge

Rosalia Maddock = s court found appellant

guilty. Appellant has separately

appealed his conviction for the itinerant vending charge.

Procedural history

Because of these events, appellant filed suit

against those whom he believed were responsible for his perceived injustices,

alleging state law intentional torts and violations of his federal constitutional

rights. Appellant sued under theories of

assault, battery, unlawful search, false arrest, false imprisonment, fraud,

malicious prosecution, A institution of ex post facto

charges, @ and

violations of due process and the right to a speedy trial.

In the first numbered paragraph of the petition,

appellant asserted that he was bringing his claims A under

the various applicable laws of the State of Texas and Sections 42 U.S.C. 1983

and 1985 of the United States Code. @ The petition contained eight distinct claims

for relief related to various aspects of the facts detailed above, and each of

these claims sought relief under both state and federal law. Specifically, appellant stated the legal

basis for each respective claim as: (1) A [t]hese

facts also give rise to plaintiff = s claims

against Hutson under 42 U.S.C. 1983 and 1985 @ and A pursuant

to Texas and Federal law @ ; (2) A [t]he

facts of this pretextual arrest give rise to Swain = s claims

of false arrest and violation of his civil and constitutional rights @ ; (3) A [t]hus,

these facts and circumstances give rise to Swain = s state

law claims of malicious prosecution and his Federal law claims of violation of

his civil and constitutional rights @ ; (4) A [a]ctions

of all of the [Arlington] employees involved give rise to Swain = s state

law claims of false imprisonment and . . . to his Federal law claims

that his civil and constitutional rights were violated @ ; (5) A [t]his

action by functionaries of [Arlington] was performed under color of law in

violation of Swain = s civil and constitutional

rights and violated his protections under state law @ ; (6) A these

actions . . . give rise to Swain = s claims

of violation of his civil and constitutional rights and his rights under state

law @ ; (7) A [b]ecause

the actions claimed of are not discretionary nor constitute judicial actions to

which immunity extends but are procedural actions for which there is no

immunity, Swain = s claims of violation of his due

process rights under the protections of state and Federal statutes and under

the state and United States Constitutions were violated under color of law @ ; and

(8) A Swain

believes that these deni[als] were clearly unlawful and conducted . . . in

a manner that violated both his state and Federal civil and constitutional

rights. @

Arlington filed a motion to dismiss its employees

under section 101.106(e) of the civil practice and remedies code. See Tex. Civ. Prac. & Rem. Code

Ann. '

101.106(e) (Vernon 2005) (stating that if a A suit is

filed under [the Texas Tort Claims Act] against both a governmental unit and

any of its employees, the employees shall immediately be dismissed on the

filing of a motion by the governmental unit @ ). However, Arlington = s motion

to dismiss its employees did not refer to appellant = s

federal claims.

Before the trial court ruled on Arlington = s

motion, appellant nonsuited Arlington in an attempt to prevent the

applicability of section 101.106(e) and to proceed only against the

employees. Appellant also filed a

response to Arlington = s motion; his response argued

that he had A made a lawful election of

remedies @ by

nonsuiting Arlington. Another portion of

the response stated that appellant = s case A was

brought under 42 U.S.C. ' ' 1983 and 1985, @ and the

response contained other references to appellant = s

federal claims.

The trial court granted Arlington = s motion

to dismiss the employees and granted appellant = s

voluntary nonsuit of Arlington.

Appellant = s motion for new trial was

overruled by operation of law, and he timely filed his notice of this appeal.

The Dismissal of Appellant = s Claims

In his first two issues, appellant asserts that

his claims, at least those founded upon 42 U.S.C. ' 1983

(2003) (section 1983), were improperly dismissed by the trial court. The trial court dismissed the claims against

appellees solely because of the election of remedies provision in section

101.106(e). [4]

State law claims

While appellant = s

petition in the trial court clearly brought claims under both Texas and federal

law, in his appeal, through many references in his brief, appellant

characterizes all of his claims as arising exclusively under section 1983, a

federal statute. For instance, in the

titles of his first two issues, he asserts a A deprivation

of his civil and Constitutional rights under color of law [under section 1983]. @ And in his prayer, he asks us to remand this

case A with

instructions establish[ing] [section 1983] as the > law of

the case. = @ Because the trial court = s order

dismissed all of appellant = s claims

against appellees and because appellant now claims only federal law causes of

action and does not assert any error related to the trial court = s

dismissal of his state law claims, we affirm the trial court = s

dismissal of his state law claims. See

Jacobs v. Satterwhite , 65 S.W.3d 653, 655 (Tex. 2001); McCoy v. Rogers ,

240 S.W.3d 267, 272 (Tex. App. C Houston

[1st Dist.] 2007, pet. denied) (indicating that appellate courts should affirm

a trial court = s unchallenged decisions).

Section 1983 claims

Therefore, our review is limited to determining

whether the trial court properly dismissed appellant = s

section 1983 claims against appellees.

Section 101.106 of the civil practice and remedies code, part of the

Texas Tort Claims Act, states in relevant part,

(a) The filing of a suit under this chapter against a

governmental unit constitutes an irrevocable election by the plaintiff and

immediately and forever bars any suit or recovery by the plaintiff against any

individual employee of the governmental unit regarding the same subject matter.

. . .

.

(e) If a suit is filed under this chapter against both a

governmental unit and any of its employees, the employees shall immediately be

dismissed on the filing of a motion by the governmental unit.

Tex. Civ. Prac. & Rem. Code Ann. '

101.106(a), (e) (emphasis added); see id. ' ' 101.001 B .109

(Vernon 2005 & Supp. 2009). We have

not found any opinion from our court addressing the applicability of section

101.106 to federal section 1983 claims.

When reviewing a question of law related to a dismissal under section

101.106, Texas courts have applied a de novo standard of review. See Singleton v. Casteel , 267 S.W.3d

547, 550 (Tex. App. C Houston [14th Dist.] 2008, pet.

denied); Turner v. Zellers , 232 S.W.3d 414, 418 (Tex. App. C Dallas

2007, no pet.); Kanlic v. Meyer , 230 S.W.3d 889, 892 (Tex. App. C El Paso

2007, pet. denied).

In 2003, the legislature amended section 101.106

of the civil practice and remedies code as part of comprehensive tort

reform. Mission Consol. Indep. Sch.

Dist. v. Garcia , 253 S.W.3d 653, 656 (Tex. 2008). Section 101.106 forces a plaintiff to decide

whom he will sue C the governmental entity or the

employee. Id. at 657; Tex. Bay

Cherry Hill, L.P. v. City of Fort Worth , 257 S.W.3d 379, 398 (Tex. App. C Fort

Worth 2008, no pet.) ( A By requiring a plaintiff to make

an irrevocable election at the time suit is filed between suing the

governmental unit under the Tort Claims Act or proceeding against the employee

alone, section 101.106 narrows the issues for trial and reduces delay and

duplicative litigation costs. @ ).

Section 1983 provides a civil cause of action for

the deprivation of an individual = s

federal statutory or constitutional rights:

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.

42 U.S.C. ' 1983; see Felder v. Casey ,

487 U.S. 131, 139 , 108 S. Ct. 2302, 2307 (1988) (explaining that section 1983 A creates

a species of liability @ ). Thus, for a plaintiff to assert a claim under

section 1983, he must show that A (1) the

conduct complained of was committed by a person acting under color of state

law, and (2) the conduct deprived [that plaintiff] of rights, privileges, or

immunities secured by the Constitution, or the laws, of the United States. @ Leachman v. Dretke , 261 S.W.3d 297,

305 (Tex. App. C Fort Worth 2008, no pet.) (op.

on reh = g).

Section 1983 provides a separate and distinct

legal basis from the Tort Claims Act for challenging the actions of a

governmental employee. See Thomas

v. Allen , 837 S.W.2d 631 , 632 B 33 (Tex.

1992); Brand v. Savage , 920 S.W.2d 672, 675 (Tex. App. C Houston

[1st Dist.] 1995, no pet.) ( A Moreover,

state and federal constitutional claims are not barred by immunity. For example, appellant could have

circumvented the Tort Claims Act and its effects by bringing a claim for

violation of her constitutionally protected rights under 42 U.S.C. ' 1983. @ ). A Section

1983 imposes liability for violations of rights protected by the United States

Constitution, not for violations of duties of care arising under tort law. @ Leo v. Trevino , 285 S.W.3d 470, 479

(Tex. App. C Corpus Christi 2006, no pet.)

(citing Doe v. Taylor Indep. Sch. Dist. , 15 F.3d 443, 450 (5th Cir.), cert.

denied , 513 U.S. 815 (1994)); see also Albright v. Oliver , 510 U.S.

266, 271 , 114 S. Ct. 807, 811 (1994) (explaining that section 1983 provides a A method

for vindicating federal rights @ ).

As we emphasized above, section 101.106(e) only

permits a governmental entity to obtain the dismissal of its employees from

suits filed A under this chapter @ C the

Texas Tort Claims Act C not for claims arising under

another statutory basis, such as section 1983.

Tex. Civ. Prac. & Rem. Code Ann. '

101.106(e). While A under

this chapter @ encompasses more claims than

just those to which the Tort Claims Act waives immunity C for

instance, intentional torts may be A under

this chapter @ even though the Act does not

waive immunity for such torts C it does

not include claims based on alternate, independent statutes that waive

sovereign or governmental immunity. See

Garcia , 253 S.W.3d at 659 (explaining that claims arising under the Texas

Commission on Human Rights Act do not arise under the Tort Claims Act, and

therefore section 101.106(e) is inapplicable to those claims); Kelemen v.

Elliott , 260 S.W.3d 518, 523 (Tex. App. C Houston

[1st Dist.] 2008, no pet.) (relying on Garcia to hold that claims

brought under the Texas Whistleblower Act are not claims under the Tort Claims

Act, and section 101.106(e) therefore does not apply to such claims).

Local governments and their employees may be

liable under federal section 1983; governmental immunity does not shield them

from such suits. See Monell v. Dep = t of

Soc. Servs. of City of N.Y. , 436 U.S. 658 , 690 B 91, 98

S. Ct. 2018 , 2035 B 36 (1978); Ogletree v. Glen

Rose Indep. Sch. Dist. , 226 S.W.3d 629, 633 (Tex. App. C Waco

2007, no pet.). In Whitesell v.

Newsome , the Houston (14th District) Court of Appeals specifically held

that a section 1983 suit is not A under

this chapter @ for the purposes of applying

section 101.106. 138 S.W.3d 393, 396

(Tex. App. C Houston [14th Dist.] 2004, pet.

denied). That court explained,

[Whitesell] argues that the federal court = s judgment . . . dictates

that he is immune from Newsome = s lawsuit pursuant to section 101.106 of the

Civil Practice and Remedies Code.

Whitesell = s argument fails because

the basis for the federal court = s order was that [a school district] was not

liable under section 42 U.S.C. ' 1983; the court did not rule that [the district]

was not liable pursuant to the Texas Tort Claims Act. Section 101.106 of the Civil Practice and

Remedies Code provides as follows: A A judgment in an

action or a settlement of a claim under this chapter bars any action

involving the same subject matter by the claimant against the employee of the

governmental unit whose act or omission gave rise to the claim. @

Id. ; see also Gonzalez v. Saenz , No. 04‑05‑00525‑CV,

2006 WL 622578 , at *3 (Tex. App. C San

Antonio Mar. 15, 2006, no pet.) (mem. op.) (also holding that a section 1983

suit is not A under this chapter @ for the

purposes of section 101.106 = s

election of remedies).

Appellees rely on the Corpus Christi Court of

Appeals = s

decision in Walton v. Texas Department of Criminal Justice for the

proposition that section 101.106 = s

election of remedies applies to section 1983 claims. No. 13‑07‑00656‑CV, 2008 WL

3868113 , at *2 (Tex. App. C Corpus Christi Aug. 21, 2008,

pet. denied) (mem. op.). But the

dismissal of the plaintiff = s section

1983 claim in that case was not because of section 101.106, but because the A TDCJ is

a unit of the State government @ and is

therefore not subject to a section 1983 claim.

Id.

During oral argument, appellees also relied on Alcala

v. Texas Webb County to support their argument that appellant = s

section 1983 claims should be dismissed under section 101.106. 620 F. Supp. 2d 795 , 804 B 05 (S.D.

Tex. 2009). But in Alcala , a

federal district court dismissed state common law claims under section

101.106(e), not claims based on a federal statute. See id.

For these reasons, like the Houston (14th

District) and San Antonio courts, we hold that section 101.106(e) of the civil

practice and remedies code, which applies to only suits brought under the Tort

Claims Act, does not apply to federal section 1983 claims. Because section 101.106(e) does not apply to

claims under section 1983, the trial court erred by dismissing those claims on

the appellees = statutory election of remedies

basis. [5] Therefore, we sustain appellant = s first

two issues as they relate to the trial court = s

dismissal of his section 1983 claims against appellees that are contained in

each of the eight A CLAIM FOR RELIEF @

portions of his petition. [6]

Claims against Arlington

Finally, some statements in appellant = s brief

and reply brief request that we reverse the trial court = s order

dismissing his claims against Arlington, which he affirmatively requested by

nonsuiting those claims. See Tex.

R. Civ. P. 162. For instance, appellant

asserts that appellees = A erroneous

pleadings that forced [him] into non-suiting [Arlington] in an abundance of

caution amount to nothing less than a material misrepresentation . . . for

which justice demands correction. @ Also, he states in his reply brief that the

reversal of Arlington = s dismissal is a A question

to be settled in the future @ and is

a A procedural

matter within the discretion of @ our

court or the trial court.

A party cannot request specific action from a

trial court and then later complain on appeal when the court has ruled as

requested. See In re Dep = t of

Family & Protective Servs. , 273 S.W.3d 637, 646 (Tex.

2009). Furthermore, appellant has

not cited any authority related to his requested reversal of Arlington = s

dismissal on a theory of fraud or material misrepresentation. We conclude that, to the extent that

appellant = s issues challenge the trial

court = s order

dismissing Arlington in accordance with his nonsuit of Arlington, those issues

are waived by the invited error doctrine and by inadequate briefing. See Tex. R. App. P. 38.1(i);

Fredonia State Bank v. Gen. Am. Life

Ins. Co. , 881 S.W.2d 279, 284 (Tex. 1994); Gray v. Nash , 259 S.W.3d

286, 294 (Tex. App. C Fort Worth 2008, pet. denied).

Conclusion

Because we have sustained appellant = s first

two issues as they relate to claims he pled against appellees under section

1983, we reverse the trial court = s order

dismissing those claims and remand this case to the trial court for further

proceedings related to those claims. For

the reasons stated above, however, we affirm the trial court = s orders

to the extent that they dismissed appellant = s state

law claims against appellees and dismissed all of the claims against Arlington.

TERRIE LIVINGSTON

JUSTICE

PANEL:

LIVINGSTON, MCCOY, and MEIER, JJ.

DELIVERED:

October 8, 2009

[1] See Tex. R. App. P. 47.4.

[2] According to appellant = s petition, Protronix

suppresses stomach acid, and Levitra helps patients with erectile dysfunction.

[3] It is unclear from

reading appellant = s petition what the

police thought appellant was attempting to buy or sell.

[4] Appellant also discusses

issues related to qualified immunity and the standards for prevailing in a

section 1983 claim, but the parties did not litigate those issues in the trial

court.

[5] We express no opinion on

whether appellant = s section 1983 claims

have legal or factual merit. We only

hold that section 101.106, relied on by appellees as the sole basis for the

dismissal of appellant = s federal claims, cannot

support that dismissal.

[6] Because appellant = s remaining two issues

and his prayer also relate to his request that we reverse the trial court = s order as it pertains to

his section 1983 claims against appellees, and we have already determined that

such reversal should occur, we need not address the substance of those two

issues. See Tex. R. App. P. 47.1;

Hawkins v. Walker , 233 S.W.3d 380 , 395 n.47 (Tex. App. C Fort Worth 2007, pet.

denied).