# Residents Against Flooding v. Reinvestment Zone Number Seventeen

> District Court, S.D. Texas · May 9, 2017 · 260 F. Supp. 3d 738

URL: https://www.frixlaw.com/law-library/cases/7244112

## Case

- **Full name:** RESIDENTS AGAINST FLOODING, Anita Giezentanner, Virginia Gregory, Lee Martin, Lois Meyers, and Bayan Raji v. REINVESTMENT ZONE NUMBER SEVENTEEN, CITY OF HOUSTON, TEXAS (TIRZ 17), Memorial City Redevelopment Authority (aka TIRZ 17 Redevelopment Authority) and The City of Houston, Texas
- **Court:** District Court, S.D. Texas
- **Decided:** May 9, 2017
- **Citations:** 260 F. Supp. 3d 738
- **Precedential status:** Published
- **Opinion:** Opinion of the court by Harmon
- **Judges:** Harmon
- **Cited by:** 13 later opinions in the Frix Law Library

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## Opinion text

OPINION AND ORDER
MELINDA HARMON, UNITED STATES DISTRICT JUDGE
The above referenced action seeks declaratory and injunctive relief to enjoin the use of arbitrary government action that benefits private commercial interests and developers within Reinvestment Zone Number Seventeen City of Houston, Texas (“TIRZ 1 17”) at the expense of substantial *751 harm to hundreds of residential homes in nearby Memorial City neighborhoods, allegedly by Defendants’ knowingly conveying stormwater out of the TIRZ 17 commercial areas into its residential areas, which lack adequate infrastructure to deal with the flooding. The flooding in effect allegedly seizes Plaintiff?’ real property. Plaintiffs seek immediate prioritization of flood relief projects for their neighborhoods.
Pending before the Court are the following motions:
(1)Defendant the City of Houston’s Rule 12(b) (1) (the “City’s”) motion to dismiss for lack of standing, Rule 12(b) (6) motion to dismiss for failure to state a claim, and, in the alternative, Rule 12(e) motion for more definite statement (instrument #5) regarding all claims brought by Plaintiffs the Residents Against Flooding (“RAF”), Anita Giez-entanner, Virginia Gregory, Lois Meyers, 2 and Bayan Raji;
(2) Defendants Reinvestment Zone Number Seventeen, City of Houston, Texas (the “Zone”) and Memorial City Redevelopment Authority’s (the “Authority’s” 3 ) motion to dismiss, or, alternatively, for a more definite statement (#7);
(3) City’s Motion to Dismiss (# 17) First Amended Complaint; and
(4) Plaintiffs’ motion for leave of Court to file their consolidated Sur-Reply (Sur-Reply, # 19 at p.4, electronic numbering).
(1) Because Plaintiffs filed their amended complaint (# 14) to expand their factual allegations in response to the Rule 12(e) motions for more definite statement *752 and to address issues as they arose, (2) because the City in its reply (# 17) asked the Court to apply its motion to dismiss and subsequent briefing to Plaintiffs’ amended complaint (# 14), which the City argues eliminated those of Plaintiffs’ claims mooted by the passage of time, (3) because Plaintiffs have not filed any objections to the City’s motion for leave to file consolidated Sur-Reply, and (4) because much has changed since the case was commenced, the Court grants Plaintiffs’ motion for leave of Court to’ file their consolidated Sur-Reply. # 19 at p. 4 of electronic numbering. The Court will therefore review the pending motions to dismiss and other submissions with respect 'to this amended complaint (# 14). Moreover,, because the briefing has been so extensive and has evolved as issues were raised and argued by the parties, the Court finds that further amendments are not necessary.
Furthermore, because the Zone and the Authority filed consolidated responses to both motions to dismiss, which overlap on any number of issues, the Court summarizes each of the motions to dismiss first, and then addresses the responses, replies, and surreply.
Plaintiffs’ Allegations
Specifically, Plaintiffs complain that the City and the Authority have engaged in a pattern of: (1) implementing drainage and mobility infrastructure projects in and around TIRZ 17 • that efficiently convey stormwater out of the TIRZ 17 commercial areas into the surrounding residential neighborhoods or into .their over-strained storm systems; (2) approving private commercial development within TIRZ 17 that elevated the commercial properties, without any, or without sufficient, stormwater mitigation, causing more stormwater 'to enter the residential neighborhoods; and (3) postponing infrastructure projects to help the residential neighborhoods, often in favor of non-essential projects that benefit private commercial interests,” causing repeated and terrible flooding in hundreds of homes in the Memorial City area in violation of the' United States and Texas Constitutions. # 14, First Amended Complaint, ¶ 3.
Plaintiffs contend that' Defendants had actual notice of the drastic need to improve the drainage conditions of TIRZ 17 from the repeated destructive floods (especially three “historic” ■ floods in 2009, 2014, and 2015), from numerous complaints from Memorial area residents to the City, to its Planning Commission, to its Flood -and Drainage Committee, and to City Council, and from multiple studies conducted by the City, the Authority, and engineering firms (including the Walter P. Moore engineering firm in 2003, Klotz Associates in 2004 and 2014, LAN Engineering in 2006, 2012, and 2014 Omega Engineering in 2008, and, in 2009, the Harris County Flood Control District (“HCFCD”), which regulates and maintains bayous and creeks). In addition, Plaintiffs claim that Defendants have a sophisticated hydrological model that can predict the depth of flooding in any area when new drainage infrastructure is added.
Currently, the Houston City Council appoints all Board members of the TIRZ, all of whom have significant property or business interests inside TIRZ 17, as well as those of the Authority; the same members are appointed to serve on both the TIRZ’s and the Authority’s boards contemporaneously. Upon information and belief, the two boards hold simultaneous «joint Board Meetings, deliberate arid take votes as a single unified .entity without distinguishing which one is taking an action, and keep minutes and records as if they were a single committee. The City retains oversight over TIRZ 17 and has statutory power over the Authority to submit projects *753 and budgets; and the City has final approval over all proposals. Approval of the TIRZ projects is memorialized in City ordinances. Such ordinances also approve its Capital Improvement Plans (“CIPs”)) which are ■ issued every five years. See # 14, Exhibits B, C, D. Now that TIRZ 17 and the Authority exist, the City no longer performs its own drainage projects in or near the TIRZ.
Plaintiffs bring four causes of action: (1) violation of substantive due process under the Fourteenth Amendment 4 and . 42 U.S.C. § 1983 ; (2) violation of the Texas Constitution Art. 1. § 19 5 (also known as the due course, of law provision); (3) violation of the Fourth Amendment and 42 U.S.C. § 1983 by unreasonable seizure of their property; and (4) a declaratory judgment for state and federal constitutional violations.
The declaratory and injunctive relief Plaintiffs seek is
to require immediate prioritization of flood relief projects for neighborhoods; to enjoin the Defendants from using TIRZ 17 funds for private development agreements to enjoin the City from approving new commercial building permits on large lots within TIRZ 17 until a finding is made that the development does not increase flooding risks in three residential neighborhoods; and to appoint a Special Master that will oversee expenditure of TIRZ 17 funds and oversee projects designed to alleviate flooding in the nearby residential areas. Id. at! 24.
Plaintiffs note that the City participates in the Federal Flood Insurance program and is therefore subject to federal statutory regulation Under 42 U.S.C. § 4001 , et seq., and the federal regulations enacted under the authority of these statutes. Under 44 C.F.R. Part- 65, participating communities are required to assist FEMA’s efforts in providing up-to-date information on special flood and flood-related erosion hazards. On information and belief, Plaintiffs assert that the City has not met these obligations.
Standards of Review
Rule 12(b) (1)
Rule 12(b) (1) allows a party to move for dismissal of an action for'lack of subject matter jurisdiction. The party asserting that subject matter exists,- here Plaintiffs, must'bear the burden of proof by a preponderance of the evidence for a 12(b) (1) motion. New Orleans & Gulf Coast Ry. Co. v. Barrois, 533 F.3d 321, 327 *754 (5th Cir. 2008); Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001).
In reviewing a motion under 12(b) (1) the court may consider (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court’s resolution of disputed facts. Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981).
A motion to dismiss for lack of subject matter jurisdiction under Rule 12(b) (1) is characterized as either a “facial” attack, i.e., the allegations in the complaint are insufficient to invoke federal jurisdiction, or as a “factual” attack, i.e., the facts in the complaint supporting subject matter jurisdiction are questioned. In re Blue Water Endeavors, LLC, Bankr. Adv. No. 08-10466, 2011 WL 52525 , *3 (E.D. Tex. Jan. 6, 2011), citing Rodriguez v. Texas Comm’n of Arts, 992 F.Supp. 876, 878-79 (N.D. Tex. 1998), aff'd, 199 F.3d 279 (5th Cir. 2000). A facial attack happens when a defendant files a Rule 12(b) (1) motion without accompanying evidence. Paterson v. Weinberger, 644 F.2d 521, 523 (5th Cir. 1981). In a facial attack, allegations in the complaint are taken as true. Blue Water, 2011 WL 52525 at *3, citing Saraw Partnership v. United States, 67 F.3d 567, 569 (5th Cir. 1995).
If it is a factual attack, as is the case here, the Court may consider any evidenee (affidavits, testimony, documents, etc.) submitted by the parties that is relevant to the issue of jurisdiction. Id., citing Irwin v. Veterans Admin., 874 F.2d 1092, 1096 (5th Cir. 1989). A defendant making a factual attack on a complaint may provide supporting affidavits, testimony or other admissible evidence. Paterson v. Weinberger, 644 F.2d 521, 523 (5th Cir. 1981). The plaintiff, to satisfy its burden of proof, may also submit evidence to show by a preponderance of the evidence that subject matter jurisdiction exists. Id. The court’s consideration of such matters outside the pleadings does not convert the motion to one for summary judgment under Rule 56(c). Robinson v. Paulson, H-06-4083, 2008 WL 4692392 at *10 (S.D. Tex. Oct. 28, 2008), citing Garcia, 104 F.3d at 1261. “Unlike in a facial attack where jurisdiction is determined upon the basis of allegations of the complaint, accepted as true[,] when a factual attack is made upon federal jurisdiction, no presumption of truthfulness attaches to the plaintiffs’ jurisdictional allegations, and the court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case. In a factual attack, the plaintiffs have the burden of proving that federal jurisdiction does in fact exist.” Evans v. Tubbe, 657 F.2d 661, 663 (5th Cir. 1981). In resolving a factual attack on subject matter jurisdiction under Rule 12(b) (1), the district court, which does not address the merits of the suit, 6 has significant authority “ ‘to *755 weigh the evidence and satisfy itself as to the existence of its power to hear the case.’” Robinson v. Paulson, No. H-06-4083, 2008 WL 4692392 , *10 (S.D. Tex. Oct. 22, 2008), quoting Garcia v. Copenhaver, Bell & Assocs., 104 F.3d 1256, 1261 (11th Cir. 1997), and citing Clark v. Tarrant County, 798 F.2d 736, 741 (5th Cir. 1986).
A court may sua sponte raise a Rule 12(b) (1) motion to dismiss for lack of subject matter jurisdiction at any time. Westland Oil Development Corp. v. Summit Transp. Co., 481 F.Supp. 15 (S.D. Tex. 1979), aff'd, 614 F.2d 768 (1980). See also Kidd v. Southwest Airlines Co., 891 F.2d 540, 545 (5th Cir. 1990) (“[Fjederal courts must address jurisdictional questions sua sponte when the parties’ briefs do not bring the issue to the court’s attention.”). The Court may find lack of subject matter jurisdiction on any of the following three bases: (1) the complaint; (2) the complaint along with undisputed facts evidenced in the record; and (3) the complaint along with undisputed facts and the court’s resolution of disputed facts. Barrera-Montenegro v. United States, 74 F.3d 657, 659 (5th Cir. 1996). The Court’s dismissal of a case for lack of subject matter jurisdiction is not a judgment on the merits and does not preclude the plaintiff from pursuing his claim in a court that properly has jurisdiction. Hitt v. City of Pasadena, 561 F.2d 606, 608 (5th Cir. 1977).
Rule 12(b) (6)
When a district court reviews a motion to dismiss pursuant to Fed. R. Civ. P. 12(b) (6), it must construe the complaint in favor of the plaintiff and take all well-pleaded facts as true. Randall D. Wolcott, MD, PA v. Sebelius, 635 F.3d 757, 763 (5th Cir. 2011), citing Gonzalez v. Kay, 577 F.3d 600, 603 (5th Cir. 2009). The plaintiffs legal conclusions are not entitled to the same assumption. Ashcroft v. Iqbal, 556 U.S. 662, 678 , 129 S.Ct. 1937 , 173 L.Ed.2d 868 (2009) (“The tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.”), citing Bell Atlantic Corp. v. Twombly, 556 U.S. 662, 678 , 129 S.Ct. 1937 , 173 L.Ed.2d 868 (2007); Hinojosa v. U.S. Bureau of Prisons, 506 Fed.Appx. 280, 283 (5th Cir. Jan. 7, 2012).
“While a complaint attacked by a Rule 12(b) (6) motion to dismiss does not need detailed factual allegations, ... a plaintiffs obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.... ” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 , 127 S.Ct. 1955 , 167 L.Ed.2d 929 (2007) (citations omitted). “Factual allegations must be enough to raise a right to relief above the speculative level.” Id. at 1965, citing 5 C. Wright <& A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed. 2004) (“[T]he pleading must contain something more ... than ... a statement of facts that merely creates a suspicion [of] a legally cognizable right of action”). “Twombly jettisoned the minimum notice pleading requirement of Conley v. Gibson, 355 U.S. 41 , 78 S.Ct. 99 , 2 L.Ed.2d 80 (1957)[“a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief’], and instead required that a complaint allege enough facts to state a *756 claim that is plausible on its face.” St. Germain v. Howard, 556 F.3d 261 , 263 n.2 (5th Cir. 2009), quoting In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007). “ ‘A claim has facial plausibility when the pleaded factual content allows the court to di’aw the reasonable inference that the defendant is liable for the misconduct alleged.’ ” Montoya v. FedEx Ground Package System, Inc., 614 F.3d 145, 148 (5th Cir. 2010), quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 , 129 S.Ct. 1937 , 173 L.Ed.2d 868 (2009). The plausibility standard is not akin to a “probability requirement,” but asks for more than a “possibility that a defendant has acted unlawfully.” Twombly, 550 U.S. at 556 , 127 S.Ct. 1955 . Dismissal is appropriate when the plaintiff fails to allege “ ‘enough facts to state, a claim to relief that is plausible on its face’ ” and therefore fails to “ ‘raise a right to relief,above the speculative level.’” Montoya, 614 F.3d at 148 , quoting Twombly, 550 U.S. at 555, 570 , 127 S.Ct. 1955 .
In Ashcroft v. Iqbal, 556 U.S. 662, 679 , 129 S.Ct. 1937 , 173 L.Ed.2d 868 (2009), the Supreme Court stated that “only a complaint that states 'a plausible claim for relief survives a motion to dismiss,” a determination involving “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” “[T]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements do not suffice” under Rule 12(b). Iqbal, 556 U.S. at 678 , 129 S.Ct. 1937 . The plaintiff must plead specific facts, not merely con-clusory allegations, to avoid dismissal. Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000). “Dismissal is proper if the complaint lacks an allegation regarding a required element necessary to obtain relief....” Rios v. City of Del Rio, Texas, 444 F.3d 417, 421 (5th Cir. 2006), cert. denied, 549 U.S. 825 , 127 S.Ct. 181 , 166 L.Ed.2d 43 (2006).
Dismissal under Rule 12(b) (6) is proper not only where the plaintiff fails to plead sufficient facts to support a cognizable legal theory, but also where the plaintiff fails fo allege a cognizable legal theory. Kjellvander v. Citicorp, 156 F.R.D. 138, 140 (S.D. Tex. 1994), citing Garrett v. Commonwealth Mortgage Corp., 938 F.2d 591 , 594 (5th Cir. 1991). “A complaint lacks an ‘arguable basis in laW’ if it is based on an indisputably meritless legal theory’ or a violation of a legal interest that does not exist.” Ross v. State of Texas, Civ. A. No. H-10-2008, 2011 WL 5978029 , at *8 (S.D. Tex. Nov. 29, 2011).
“Rule 12(b) is not a procedure for resolving contests about the facts or the merits of a case.” Gallentine v. Housing Authority of City of Port Arthur, Tex., 919 F.Supp.2d 787, 794 (E.D. Tex. Jan. 22, 2012), citing 5A Charles A. Wright & Arthur. R. Miller, Federal Practice and Procedure: Civil 2d §,1356, at 294 (1990).
As noted, on a Rule 12(b) (6) review, although generally the court may not look beyond the pleadings, the Court may examine the complaint, documents attached to the complaint, and documents attached to the motibn to dismiss to which the complaint refers and which are central to the plaintiff’s claim(s), as well as matters of public record: Lone Star Fund V (U.S.), L.P. v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010), citing Collins, 224 F.3d at 498-99 ; Cinel v. Connick, 15 F.3d 1338, 1341 , 1343 n.6 (5th Cir. 1994). See also United States ex rel. Willard v. Humana Health Plan of Tex., Inc., 336 F.3d 375, 379 (5th Cir. 2003) (“the coúrt may consider ..matters of which judicial notice may be taken”). Taking judicial notice of public records directly reler vant to the issue in dispute is proper on a *757 Rule 12(b) (6) reviéw and does not transform the motion into one for summary judgment. Funk v. Stryker Corp., 631 F.3d 777, 780 (5th Cir. 2011). “A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b).
“‘[Documents that á defendant attaches to its motion to dismiss are considered part of the pleadings if they are referred to in the plaintiffs complaint and are central to [its] claim.’ ” Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498-99 (5th Cir. 2000), quoting Venture Assocs. Corp. v. Zenith Data Sys. Corp., 987 F.2d 429, 431 (7th Cir. 1993). By such attachments the defendant simply provides additional notice of the basis of the suit to the plaintiff and aids the Court in determining whether a claim has been stated. Id. at 499 . The attachments may also provide the context from which any quotation or reference in the motion is drawn to aid the court in correctly construing that quotation or reference. In re Enron Corp. Securities, Derivative & “ERISA” Litig., No. H-04-0087, 2005 WL 3504860 , at 11 n.20 (S.D. Tex. Dec. 22, 2005). “Where the allegations in the complaint are contradicted by facts established by documents attached as exhibits to the complaint, the court may properly disregard the allegations.” Martinez v. Reno, No. 3:97-CV-0813-P, 1997 WL 786250 , at *2 (N.D. Tex. Dec. 15, 1997), citing Nishimatsu Const. Co. v. Houston Nat’l Bank, 515 F.2d 1200, 1206 (5th Cir. 1975). When conclusory allegations and unwarranted deductions of fact are contradicted by facts disclosed in the appended exhibit, which is treated as part of the complaint, the allegations are not admitted as true. Carter v. Target Corp., 641 Fed.Appx. 413, 417 (5th Cir. Oct. 4, 2013), citing Associated Builders, Inc. v. Alabama Power Co., 505 F.2d 97, 100 (5th Cir. 1974).
Rule 12(e) Motion for More Definite Statement
Rule 12(e) states, “A party may move for , a more definite statement of a pleading to which a responsive pleading is allowed but which is so vague or ambiguous that the party cannot reasonably prepare a response.” Such motions are not favored and are granted sparingly. Mitchell v. E-Z Way Towers, Inc., 269 F.2d 126, 132 (5th Cir. 1959); Conceal City, LLC v. Looper Law Enforcement, LLC, 917 F.Supp.2d 611, 621 , (N.D. Tex. 2013). The motion must be made prior to filing a responsive pleading and “must point out the defects complained of and the. details desired.” Rule 12(e). A court should only grant a motion for more definite statement when the complaint is “so excessively vague and ambiguous to be unintelligible and as to prejudice the defendant seriously in attempting to answer it.” Phillips v. ABB Combustion Eng’g, Inc., Civ. A. No. 13-594, 2013 WL 3155224 (E.D. La. June 19, 2013). A motion for more definite statement should hot be used as a substitute for discovery; it should be used as a remedy for unintelligible pleading, not for correcting a lack of detail. Davenport v. Rodriguez, 147 F.Supp.2d 630, 639 (S.D. Tex. 2001). The court has considerable discretion in deciding whether to grant such a motion. Ditcharo v. United Parcel Service, Inc., 376 Fed.Appx. 432 , 440 n.9 (5th Cir. 2010), citing Old Time Enterprises, Inc. v. International Coffee Corp., 862 F.2d 1213, 1217 (5th Cir. 1989).
The Court finds that, none of pleadings is unintelligible here. If anything they , are to obtain more detail and obtain discovery. *758 There have been no objections to submissions. The exchange of information in responses, replies and the surreply have provided more detail that the Court has used in ruling on the motions.
Rule 15(a) (2)
Once a party has amended its pleading, it “may amend its pleading only with the opposing party’s written consent or the court’s leave. The court should freely give leave when justice so requires.” Fed. R. Civ. P. 15(a).
Applicable Law
Eleventh Amendment 7 Immunity
A claim of Eleventh Amendment immunity is a jurisdictional bar and must be addressed because, if meritorious, it deprives the court of subject matter jurisdiction over the suit. Crane v. State of Texas, 759 F.2d 412, 415 (5th Cir. 1985), amended on other grounds on denial of rehearing, 766 F.2d 193 (5th Cir. 1985), cert. denied, 474 U.S. 1020 , 106 S.Ct. 570 , 88 L.Ed.2d 555 (1985).
“The Eleventh Amendment bars an individual from suing a state in federal court unless the state consents to suit or Congress has clearly and validly abrogated the state’s sovereign immunity.” Perez v. Region 20 Educ. Service Center, 307 F.3d 318, 326 (5th Cir. 2002), citing U.S. CONST. amend. XI; Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 670 , 119 S.Ct. 2219 , 144 L.Ed.2d 605 (1999). That consent must be clear and unequivocal. Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 99 , 104 S.Ct. 900 (1984). Although Congress has the power under the commercé cause to abrogate Eleventh Amendment immunity with regard to rights protected by the Fourteenth Amendment, it has not often done so. See Quern v. Jordan, 440 U.S. 332, 342 , 99 S.Ct. 1139 , 59 L.Ed.2d 358 (1979) (holding that 42 U.S.C. § 1983 does not override the States’ Eleventh Amendment immunity.); Fitzpatrick v. Bitzer, 427 U.S. 445, 456 , 96 S.Ct. 2666 , 49 L.Ed.2d 614 (1976) (the Fourteenth Amendment grants Congress the power to subject states to suit in federal court and set aside the immunity bar of the Eleventh Amendment; “the Eleventh Amendment, and the principle of state sovereignty which it embodies, are necessarily limited by the enforcement provisions of § 5 of the Fourteenth Amendment.”). 8
The range of the Eleventh Amendment is not limited to lawsuits naming a state as a defendant and party of record; and often a suit will be against a political subdivision, state instrumentali *759 ties, and state agencies. 13 Wright & Miller et al., Federal Practice & Proc. Juris § 3524.2 (Apr. 2017 update). Under the Eleventh Amendment, not all political subdivisions [of a state] are automatically immunized when the state is immunized.” Evans v. Bishop, 238 F.3d 586 , 589 (5th Cir. 2000). The federal district court must determine whether that entity or individual is considered to be an “arm of the state” entitled to the state’s immunity by examining “the essential nature and effect of the proceeding.” Ex parte Ayers, 123 U.S. 443, 490 , 8 S.Ct. 164 , 31 L.Ed. 216 (1887); Ex parte Young, 209 U.S. 123, 151 , 28 S.Ct. 441 , 52 L.Ed. 714 (1906); Ford Motor Co. v. Dep’t of Treasury of State of Indiana, 323 U.S. 459, 463 , 65 S.Ct. 347 , 89 L.Ed. 389 (1945). In addition in 1994 the Supreme Court held that “the impetus for the Eleventh Amendment” was “the prevention of federal-court judgments that must be paid out of a State’s treasury.” Hess v. Port Authority Trans-Hudson Corp., 513 U.S. 30 , 115 S.Ct. 394, 404 , 130 L.Ed.2d 245 (1994), citing Fletcher, A Historical Interpretation of the Eleventh Amendment, 35 Stanford L. Rev. 1033, 1129 (1993). The Hess court observed that “Courts of Appeals have recognized the vulnerability of the State’s purse as the most salient factor in Eleventh Amendment determinations.” Id., citing inter alia Baxter v. Vigo Cty. School Corp., 26 F.3d 728 , 732-33 (7th Cir. 1994) (most significant factor is whether the state is the real, substantial party in interest because it seeks to impose a liability that must be paid from public funds in the state treasury); Regents of the University of California v. Doe, 519 U.S. 425 , 117 S.Ct. 900, 903-04 , 137 L.Ed.2d 55 (1997) (“[W]hen the action is in essence one for the recovery of money from the state, the state is the real, substantial party in interest and is entitled to invoke its sovereign immunity from suit even though individual officials are nominal defendants,); Hutsell v. Sayre, 5 F.3d 996, 999 (6th Cir. 1993) (“The most important factor ... is whether any monetary judgment would be paid out of the state treasury.”), cert. denied, 510 U.S. 1119 , 114 S.Ct. 1071 , 127 L.Ed.2d 389 (1994); and Hudson v. City of New Orleans, 174 F.3d 677, 682 (5th Cir. 1999), cert. denied, 528 U.S. 1004 , 120 S.Ct. 498 , 145 L.Ed.2d 385 (1999) (holding that although Texas district attorneys were created by the state constitution and were thus in some ways officers of the state, district attorney’s office was not entitled to Eleventh Amendment immunity because the office was funded by the county and thus a judgment against the district attorney in his official capacity would expend itself on the county’s treasury, the powers of the district attorneys were limited to the county, the state could not oversee prosecutorial decisions, and the district attorneys were elected by voters of the county). In 2002, the high court further opined, “The preeminent purpose of state sovereign immunity is to accord States the dignity that is consistent with their status as sovereign entities.” Thus its two purposes are to protect the State’s treasury and its dignity.
The Fifth Circuit applies a six-factor test to determine whether an entity is entitled to Eleventh Amendment immunity as an arm of the state: (1) whether the damage award ultimately comes out of the State’s treasury; (2) whether state statutes and case law consider the agency to be an arm of the state; (3) whether the entity is concerned with local or statewide problems; (4) the degree of authority independent from the state; (5) whether the entity can sue and be sued in its own name; and (6) whether the entity has the right to hold and use property. Clark v. Tarrant County, Texas, 798 F.2d 736, 744 (5th Cir. 1986); Correa v. The City of Bay *760 City, 981 F.Supp. 477, 478-79 (S.D. Tex. 1997).
Generally counties, municipalities, municipal agencies, and officers of them are determined not to be arms of the state and not entitled to Eleventh Amendment immunity. In Pennhurst State School & Hospital v. Halderman, 465 U.S. 89 , 123 n.34, 104 S.Ct. 900 , 79 L.Ed.2d 67 (1984), the Supreme Court concluded that “the Eleventh Amendment does not apply to counties and similar municipal corporations.” See also Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391 , 99 S.Ct. 1171 , 59 L.Ed.2d 401 (1979) (We have “consistently refused to construe the [Eleventh] Amendment to afford protection to political subdivisions such as ... municipalities, even though such entities exercise a ‘slice of state power.”’); Monell, 436 U.S. at 690 n.54, 98 S.Ct. 2018 ; Owen v. City of Independence, 445 U.S. 622, 638 , 100 S.Ct. 1398 , 63 L.Ed.2d 673 (Under federal law “there is no tradition of immunity for municipal corporations.”) 9
Because a state’s Eleventh Amendment immunity extends to any state agency or entity deemed to be an “alter ego” or “arm” of the state, a plaintiff does not have to name the state as a party in a suit. Id., citing Vogt v. Bd. of Commissioners, 294 F.3d 684, 688-89 (5th Cir. 2002).
42 U.S.C. § 1983
Section 1983 does not create substantive rights but is a procedural rule and offers a remedy providing a private cause of action to redress a violation of federal law; there must be an underlying federal constitutional or federal statutory violation as a predicate to liability under the statute. Johnston v. Harris County Flood Control Dist., 869 F.2d 1565, 1574 (5th Cir. 1989). To state a claim for a violation of 42 U.S.C. § 1983 , a plaintiff must establish a deprivation of a right secured by the United States Constitution or other federal laws by a person acting under color of state law. Albright v. Oliver, 510 U.S. 266, 271 , 114 S.Ct. 807 , 127 L.Ed.2d 114 (1994). The main purpose of the Civil Rights Act was “to provide protection to those persons wronged by the “[m]isuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law,” ” Owen, 445 U.S. at 650 , 100 S.Ct. 1398 , citing Monroe v. Pape, 365 U.S. 167 , 81 S.Ct. 473 , 5 L.Ed.2d 492 (1961).
“In Texas, sovereign immunity deprives a trial court of subject matter jurisdiction for lawsuits in which governmental units have been sued unless the state consents to suit against such entities.” University of Texas Medical Branch at Galveston v. Kai Hui Qi, 402 S.W.3d 374, 380 (Tex. App.-Houston [14th Dist.] 2013), citing Texas Dept. Of Parks and Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex. 2004). The Texas Tort Claims Act provides a limited waiver of sovereign immunity, from both suit and from liability. Miranda, 133 S.W.3d at 224 , citing Tex. Civ. Prac. & Rem. Code §§ 101.001-.109. Section 101.021 of the Act states,
A governmental unit in the state is liable for:
(1) property damage, personal injury, and death proximately caused by the wrongful act or omission or the negligence of an employee acting within his scope of employment if
*761 (A) the property damage, personal injury,- or death arises from the operation or use of a motor-driven vehicle or motor-driven equipment; and
(B) the employee would be personally liable to the claimant according to Texas law; and
(2) personal injury and death so caused by a condition or use of tangible or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law.
“[T]he government may hot be sued in tort unless a separate, viable tort fits within the limited waiver provided by the [Texas Tort Claims] Act.” Rodriguez v. Christus Spohn Health Sys. Corp., 628 F.3d 731, 736 (S.D. Tex. 2010). The Texas Tort Claims Act does not include a waiver for “legislative functions of a government unit” and/or a City’s discretionary powers. Tex. Civ. Prac. & Rem. Code §§ 101.052 and 101.056. Nor- has the City “waived its immunity by consenting to suit in federal court in the Texas Tort Claims Act for- § 1983 claims.” Bishop v. City of Galveston, Tex., no. H-11-4152, 2013 WL 960531 , at *9 (S.D. Tex. Mar. 12, 2013), citing Quern v. Jordan, 440 U.S. 332, 340-45 , 99 S.Ct. 1139 , 59 L.Ed.2d 358 (1979). Nor does the Act waive sovereign immunity for claims “arising out of assault, battery, false imprisonment, or any other intentional tort.” Texas Dep’t of Pub. Safety v. Petta, 44 S.W.3d 575, 580 (Tex. 2001); Tex. Civ. Prac. & Rem. Code § 101.057(2).
“The Congress which passed the Civil Rights Act of 1871 [the predecessor to § 1983 enacted pursuant to § 5 of the Fourteenth Amendment], ... did intend municipalities and other local governments to be included among those persons to whom § 1983 applies.” Hutto v. Finney, 437 U.S. 678, 702 , 98 S.Ct. 2565 , 57 L.Ed.2d 522 (1979), citing Monell v. Dept. of Soc. Servs. of City of New York, 436 U.S. 658, 665, 690 , 98 S.Ct. 2018 , 56 L.Ed.2d 611 (1978) (holding .that municipalities are “persons” to whom the Civil Rights Act of 1871 applies). Generally municipalities or local government units are not liable for the constitutional torts of their employees unless those employees act pursuant to an official action or with official approval. Monell, 436 U.S. at 663 n.7, 98 S.Ct. 2018 . “A municipality cannot be held liable solely because it employs a tortfeasor — or, in other words, a municipality, cannot be held liable under §. 1983 on i a respondeat ■ superior theory.” Id. at 691, 98 S.Ct. 2018 . A municipality may be liable under § 1983 if the execution of one of its customs or policies deprives a plaintiff of his constitutional rights. Id. at 690-91, 98 S.Ct. 2018 .
A § 1983 plaintiff must plead specific facts demonstrating a constitutional derivation and may not merely rest on conclusory allegations. Schultea v. Wood, 47 F.3d 1427, 1433 (5th Cir. 1995).
Moreover, because immunity -of a municipal corporation from punitive damages was well established at the time § Í983 was enacted and there was no evidence that Congress intended to abolish that immunity, today punitive damages are not recoverable against’ a municipality in a § 1983 lawsuit absent expresé authorization by a statute. City of Newport v. Fact Concerts, 453 U.S. 247, 270-71 , 101 S.Ct. 2748 , 69 L.Ed.2d 616 (1981); Webster v. City of Houston, 689 F.2d 1220, 1234-37 (5th Cir. 1982) (tracing legislative history of evolving § 1983).
“[T]he scope of a municipality’s immunity from liability under § 1983 is essentially one of statutory construction.” Owen v. City of Independence, Mo., 445 U.S. 622, 635 , 100 S.Ct. 1398 , 63 L.Ed.2d 673 (1980). “ ‘By its ¡terms,’ §. 1983 ‘creates a species' of tort liability that on its face *762 admits of no immunities.’” Id., quoting Imbler v. Pachtman, 424 U.S. 409 , 96 S.Ct. 984 , 47 L.Ed.2d 128 (1976). “Its language is absolute and unqualified; no mention is made of any privileges, immunities, or defenses. Instead the statute states that it “imposes liability on ‘every person’ who, under color of state law or custom, ‘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.’ ” ” Id., quoting § 1983. Municipalities do not have immunity from suit under § 1983 flowing from its constitutional violations — neither absolute nor qualified. Owen, 445 U.S. at 637 , 100 S.Ct. 1398 ; Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 166-67 , 113 S.Ct. 1160 , 122 L.Ed.2d 517 (1993). Furthermore, a “municipality may not assert the good faith of its officers or agents as a defense to liability under § 1983.” Owen v. City of Independence, Mo., 445 U.S. 622, 638 , 100 S.Ct. 1398 , 63 L.Ed.2d 673 (1980).
To state a claim for municipal liability under Section 1983, however, generally a plaintiff must identify (a) a policy maker, (b) an official policy, and (c) a violation of constitutional rights whose “moving force” is the policy or custom. Piotrowski v. City of Houston (“Piotrowski II”), 237 F.3d 567, 578 (5th Cir. 2001), citing Monell, 436 U.S. at 694 , 98 S.Ct. 2018 . The Fifth Circuit has defined an official policy for purposes of § 1983 as “ ‘[a] policy statement, ordinance, regulation or decision that is officially adopted and promulgated by the municipality’s lawmaking officials or by an official to whom the lawmakers have delegated policy-making authority.’” Okon v. Harris County Hospital District, 426 Fed.Appx. 312, 316 (5th Cir. May 23, 2011), quoting Bennett v. City of Slidell, 735 F.2d 861, 862 (5th Cir. 1984) (en banc).
“[N]either a State nor its officials acting in their official capacities are ‘persons’ under 1983.” Will v. Michigan Dept. of State Police, 491 U.S. 58, 71 , 109 S.Ct. 2304 , 105 L.Ed.2d 45 (1989). “An action by a citizen against a state official in his official capacity is not a suit against the official but rather is a suit against the official’s office,” is “no different from a suit against the State itself,” and is barred by the Eleventh Amendment, subject only to the limited exception permitted by Ex Parte Young, 209 U.S. 123 , 28 S.Ct. 441 , 52 L.Ed. 714 (1908) (action seeking prospective injunctive relief against state officer permissible against ongoing violations of federal law). 10
Alternatively a policy may be “ ‘a persistent widespread practice of city *763 officials or employees, which, although not authorized by officially adopted and promulgated policy, is so common and well settled as to constitute a custom that fairly represents municipal policy.’” Id., citing id., and Zarnow v. City of Wichita Falls, 614 F.3d 161, 169 (6th Cir. 2010) (“A pattern of conduct is necessary only when the municipal actors are not policymakers”) [, cert. denied, 131 S. Ct. 3059 (2011) ]. “Allegations of an isolated incident are not sufficient to show the existence of a custom or policy.” Fraire v. City of Arlington, 957 F.2d 1268, 1278 (5th Cir. 1992). “The unconstitutional conduct must be directly attributable to the municipality through some sort of official action or imprimatur; isolated unconstitutional actions by municipal employees will almost never trigger liability.” Id.
Causes of Action with § 1983:
Fourth Amendment
The Fourth Amendment, which is made applicable to the States by the Fourteenth Amendment, provides that the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated....” A seizure of property takes place when “there is some meaningful interference with an individual’s possessory interests in that property” by a government agent or official. Severance v. Patterson, 566 F.3d 490, 501 (5th Cir. 2009); U.S. v. Jacobsen, 466 U.S. 109, 113 , 104 S.Ct. 1652 , 80 L.Ed.2d 85 (1984), quoted by Soldal v. Cook County, Ill., 506 U.S. 61 (1984).
Fourteenth Amendment
The Fourteenth Amendment (“no state shall deprive any person of life, liberty, or property, without due process of law”) also forbids the state to deprive a person of property without due process. U.S. Const. amend. XIV, § 1. It has both substantive and procedural due process components. County of Sacramento v. Lewis, 523 U.S. 833, 840 , 118 S.Ct. 1708 , 140 L.Ed.2d 1043 (1998).
Substantive due process prohibits “arbitrary, wrongful government action regardless of the fairness of the procedures used to implement them.” Zinermon v. Burch, 494 U.S. 113, 125 , 110 S.Ct. 975 , 108 L.Ed.2d 100 (1990); Lewis v. Univ. of Texas, 665 F.3d 625, 630-31 (5th Cir. 2011). The proper test for substantive due process is the deferential “rational basis” test: is the Defendant government’s action rationally related to a legitimate governmental interest? FM Prop. Operating Co. v. City of Austin, 93 F.3d 167, 174 (5th Cir. 1996). Whether a rational relation exists is a question of law for the court. Simi, 236 F.3d at 249. “ ‘A violation of substantive due process, for example, occurs only when the government deprives someone of liberty or property, ... only when the government works a deprivation of a constitutionally protected interest.’ ” Id., quoting Brennan v. Stewart, 834 F.2d 1248, 1257 (5th Cir. 1988); see also DeBlasio v. Zoning Bd. of Adjustment, 53 F.3d 592, 601 (3d Cir. 1995) (“[I]n situations where the .governmental decision in question impinges upon a landowner’s use and enjoyment of property, a land-owning plaintiff states a substantive due process claim where he or she alleges that the decision limiting the intended land use was arbitrary or capricious.”), “Substantive due process analysis is appropriate only in cases in which government arbitrarily abuses its power to deprive individuals of constitutional protected rights.” Id.
Under the procedural component of the Due Process Clause of the Fourteenth Amendment the states must provide constitutionally adequate proce *764 dures before depriving an individual of life, liberty of property. Plaintiffs here must first show they have a protected property interest and then that government action resulted in a deprivation of that interest and that they failed to receive all process due to them. Jabary v. City of Allen, 547 Fed.Appx. 600, 606 (6th Cir. Nov. 26, 2013), citing Gentilello v. Rege, 627 F.3d 540, 544 (5th Cir. 2010). It is not the deprivation of their property rights, but the deprivation of - their interest in that property without dm process of law that is unconstitutional. Id, “Due Process’ means an “opportunity to be heard at a meaningful time”, i.e., “ ‘prior to the deprivation of the ... property right at issues’ ” “in a meaningful manner.” ”' Id., citing Cleveland Board of Educ. v. Loudermill, 470 U.S. 532, 542 , 105 S.Ct. 1487 , 84 L.Ed.2d 494 (1985).
Texas Constitution, Article 1, Section 19
Article 1, § 19, also called the “due course of law” provision, provides a cause of action for deprivation of property: “No citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disenfranchised, except by the due course of the law of the land.” There is no implied private right of action for money damages under Article 1, section 19. See Ray v. Houston Indep. Sch. Dist., Civ. A. No. H-10-312, 2010 WL 2545577 , at *4 (S.D. Tex. June 21, 2010) (listing cases holding same). The standard of review for constitutional challenges on substantive due process grounds is the same for both state and federal due process clauses: “ ‘If the laws passed are seen to have a reasonable relation to a proper legislative purpose and are neither arbitrary nor discriminatory, the requirements of due process are satisfied.’ ” Lucas v. U.S., 757 S.W.2d 687, 695 (Tex. 1988), quoting Nebbia v. New York, 291 U.S. 502, 537 , 54 S.Ct. 505 , 78 L.Ed. 940 (1933).
The due course of law provision, like the federal due process clause, contains a procedural and a substantive component. Barshop v. Medina County Underground Water Conservation Dist., 925 S.W.2d 618, 632-33 (Tex. 1996), citing Texas Workers’ Compensation Com’n v. Garcia, 893 S.W.2d 504, 525 (Tex. 1995). With a procedural due process claim that a plaintiff is be|ng deprived of a property right, the government must afford an appropriate and meaningful opportunity to be heard regarding a decision affecting the plaintiffs property rights. Smith v. City of League City, 338 S.W.3d 114, 127 (Tex. App.-Houston [14th Dist.] March 17, 2011). See also Jabary, 547 Fed.Appx. at 606 (“Due process requires an ‘opportunity to be heard at a meaningful time and in a meaningful manner.’ ” Generally a “ ‘meaningful time’ means prior to the deprivation of the liberty or property right at issue.’ ”), citing Mathews v. Eldridge, 424 U.S. 319, 333 , 96 S.Ct. 893 , 47 L.Ed.2d 18 (1976), and Bowlby v. City of Aberdeen, Miss., 681 F.3d 215, 220 (5th Cir. 2012). A number of Texas courts |iave concluded that section 19 provides an identical guarantee to its federal due process counterpart. Garcia, 893 S.W.2d at 525 (citing cases).
A. plaintiff states a substantive due process claim when he alleges that a city took his private property for a private purpose, not a public use. Id. at 127-28. The Fifth Circuit, in John Corp. v. City of Houston, 214 F.3d 573, 582-83 (5th Cir. 2000), rejected “a blanket rule [that] the Takings Clause 11 subsumes any substan *765 tive due-process claim relating to a deprivation of property.” , . .
“ ‘[Gjovernment action comports with substantive due process if the action is rationally related to a legitimate government interest.’ ” Hidden Oaks Ltd. v. City of Austin, 138 F.3d 1036, 1044 (5th Cir. 1998), quoting FM Properties Operating Co. v. City of Austin, 93 F.3d 167, 174 (5th Cir. 1996). Whether such a rational relation exists is a question of law. Id., citing id. As the Fifth Circuit held in Shelton v. City of College Station, 780 F.2d 475, 477 (5th Cir. 1986), the “decisions of state zoning boards do not violate substantive due process unless the court finds no ‘conceivable rational basis’ ‘on which the board might have based its decision.’ ” Id., citing Shelton. If the City’s action is rationally related to the protection of the health and safety of citizens, it is not actionable as a violation of the Fourteenth Amendment. Hidden Oaks, 138 F.3d at 1044 . Since the Fourteenth Amendment to the federal Constitution was adopted, federal courts cannot rightfully interfere with the valid exercise of the police power to protect the lives, health, and property of citizens because there is no taking. Mugler v. Kansas, 123 U.S. 623, 661-62 , 8 S.Ct. 273 , 31 L.Ed. 205 (1887).
Nevertheless, “[t]he Supreme Court’s entire ‘regulatory takings’ law is premised on the notion that a city’s exercise of its police powers can go too far, and if it does, there has been a taking.” John Corp. v. City of Houston, 214 F.3d 573, 578 (5th Cir. 2000), citing Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415 , 43 S.Ct. 158 , 67 L.Ed. 322 (1922). A violation of the Takings Clause does not occur until, just compensation has been denied. Id.
Continuing Violation
In National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 , 122 S.Ct. 2061 , 153 L.Ed.2d 106 (2002), to clarify differences between traditional, discrete claims of discrimination and continuing, violations under Title XII of the Civil Rights-Act of 1964, the Supreme Court distinguished discrete acts (such as termination, failure to promote, refusal' to hire, denial of transfer, which are individually actionable, and acts that are not, but that may in aggregation establish a, hostile work environment claim. Discrete acts of discrimination must be asserted within the applicable statute of limitations period (the 180- or 300-day period for filing a charge with the appropriate state agency, the Texas Workforce Commission, or the EEOC, respectively); if filed'later, they are time barred, even if related to subsequent acts that are timely raised. Id: at 113, 122 S.Ct. 2061 . “Each discriminatory [discrete] act starts a new'-clock for filing charges alleging that act.” Id. “Claims alleging discrete acts are not subject to continuing violations doctrine.” Heath, 850 F.3d at 737.
In- contrast, acts which are not discrete and individually actionable and all acts constituting the claim are part of the same unlawful practice and when aggregated, make out a racial or sexual hostile work environment claim, which involves repeated conduct and the cumulative effect of ongoing acts and can happen at any time, as long as they are connected in a pattern of similar actions that continues *766 into the applicable limitations period. Id. at 105, 122 S.Ct. 2061 . In addition the Court found an exception to the statute of limitations in hostile work environment claims, which would not be barred “as long as all acts which constitute the claim are part of the unlawful practice and at least one act falls within the time period.” Id. at 113 , 122 S.Ct. 2061 . “[Consideration of the entire scope of work environment claim, including behavior alleged outside the statutory time period, is permissible for purposes of assessing liability, so long as any act contributing to that hostile work environment takes place within the statutory time period.” Id. As- the Third Circuit characterized it, “a plaintiffs hostile environment claim ‘is based on the cumulative effect of a thousand cuts, rather than on any particular action taken by the defendant,’ so ‘the filing clock cannot begin running with the first act because at that point plaintiff has no claim; nor can a claim expire as to the first act because the full course of conduct is actionable infringement,’ ” Heath v. Board of Supervisors for the Southern University and Agricultural and Mechanical College, 850 F.3d 731, 737 (5th Cir. 2017), quoting O’Connor v. City of Newark, 440 F.3d 125, 128 (3d Cir. 2006).
Morgan rejected views of the Fifth and Seventh Circuits that “the plaintiff may not base a suit on individual acts that occurred outside the statute of limitations unless it would have been unreasonable to expect the plaintiff to sue before the statute ran on such conduct.” Heath, 850 F.3d at 737 . It also rejected the “on notice” factor: “the date on which a plaintiff becomes aware that he or she has an actionable Title VII claim is of no regard in the context of determining the timeliness of a hostile work environment claim.” Id.
The Heath panel concluded the continuing violation doctrine “applies with equal force” to § 1983 claims. It opined that Morgan’s ‘distinction between’ ‘continuing violations’ and ‘discrete acts’ is not an artifact of Title VII, but rather a generic feature of federal employment law.” 850 F.3d at 739-40 . See also Boswell v. Claiborne Parish Det. Ctr., 629 Fed.Appx. 580, 583 (5th Cir. 2015) (finding that a denial of medical attention and medication for Boswell’s hernia was part of a continuing violation based on “a failure to provide needed and requested medical attention,” which included an untreated cold that developed into bronchitis and walking pneumonia). As the Morgan court observed, 536 U.S. at 116 , 122 S.Ct. 2061 (citations omitted),
Hostile environment claims are different in kind from discrete acts. Their very nature involves repeated conduct. The “unlawful employment practice” therefore cannot be said to occur on any particular day. It occurs over a series of days or perhaps years and, in direct contrast to discrete acts, a single act of harassment may not be actionable on its own. [The] “ mere utterance of an ... epithet which engenders offensive feelings in a[n] employee .,. does not sufficiently affect the conditions of employment to implicate Title VIL” Such claims are based on the cumulative effect of individual acts.
The statute of limitations for § 1983 is derived from state law, which, as noted, in Texas is two years, while accrual is governed by federal common law. Id. at 740. “The continuing violation doctrine is a federal common law doctrine governing accrual.” Id.
Mootness and Ripeness
Article III of the federal Constitution limits the jurisdiction of federal courts to live cases and controversies. U.S. Const. art. III, § 2; United States Parole Comm’n v. Geraghty, 445 U.S. 388, 395 , *767 100 S.Ct. 1202 , 63 L.Ed.2d 479 (1980). This actual case-or-controversy requirement gives rise to the justiciability doctrines of standing, mootness, political question, and ripeness. DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352 , 126 S.Ct. 1854 , 164 L.Ed.2d 589 (2006).
In addition, the ripeness doctrine also rests on prudential reasons for refusing to exercise jurisdiction. Reno v. Catholic Social Services, Inc., 509 U.S. 43, 71 , 113 S.Ct. 2485 , 125 L.Ed.2d 38 (1993). The main purpose of the ripeness doctrine is “to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements,” to dismiss cases that are abstract and hypothetical. Abbott Labs. v. Gardner, 387 U.S. 136, 148 , 87 S.Ct. 1507 , 18 L.Ed.2d 681 (1967), overruled on other grounds, Califano v. Sanders, 430 U.S. 99 , 97 S.Ct. 980 , 51 L.Ed.2d 192 (1977). “Ripeness separates those matters that are premature because the injury is speculative and may never occur from those that are appropriate for judicial review.” United Transp. Union v. Foster, 205 F.3d 851, 857 (5th Cir. 2000). “Ripeness is a necessary component of subject matter jurisdiction, and a court lacks the authority to adjudicate issues presented before they are not yet justiciable.” Goliad County, Texas v. Uranium Energy Corp., CIV. A. NO. V-08-18, 2009 WL 1586688 , at *5 (S.D. Tex. June 5, 2009). “Since standing and ripeness are essential components of federal subject-matter jurisdiction, the lack of either can be raised at any time by a party or by the court.” Sample v. Morrison, 406 F.3d 310, 312 (5th Cir. 2005) (per curiam). “A case is generally ripe if any remaining questions are purely legal ones; conversely, a case is not ripe if further factual development is required.” Id. In accord, Greenwich Ins. Co. v. Capsco Industries, Inc., No. 1:14CV297-LG-JCG, 2014 WL 5025856 , at *1 (S.D. Miss. Oct. 8, 2014). “If an intervening circumstance deprives the plaintiff of a ‘personal stake in the outcome of the lawsuit,’ at any point during litigation, the action can no longer proceed and must be dismissed as moot.” Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66 , 133 S.Ct. 1523, 1528 , 185 L.Ed.2d 636 (Apr. 16. 2013), citing Lewis v. Continental Bank Corp., 494 U.S. 472, 477-78 , 110 S.Ct. 1249 , 108 L.Ed.2d 400 (1990). “Jurisdictional issues such as mootness and ripeness are legal questions for which review is de novo.” Lopez v. City of Houston, 617 F.3d 336, 339 (5th Cir. 2010).
That a claim that is “capable of repetition, yet evading review” is an exception to the mootness doctrine and to satisfy it a party must meet a two-prong test: “ ‘(1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there was a reasonable expectation that the same complaining party would be subjected to the same action again.’ ” Lopez, 617 F.3d at 340 , quoting Weinstein v. Bradford, 423 U.S. 147, 149 , 96 S.Ct. 347 , 46 L.Ed.2d 350 (1975). For the second prong, “ ‘the party invoking jurisdiction must show a ‘demonstrated probability’ or ‘reasonable expectation,’ not merely a ‘theoretical possibility,’ that it will be subject to the same government action.’ ” Id., citing Libertarian Party v. Dardenne, 595 F.3d 215, 217 (5th Cir. 2010).
City of Houston’s Motion to Dismiss under Rules 12(b) (1), 12(b) (6) or for More Definite Statement under Rule 12(e) (# 5)
The dual nature, one part governmental and the other proprietary, of a municipality (municipal corporation) at common law gives rise to a particular kind of protection for the municipality from tort liability when it is acting in its governmen *768 tal capacity. Owen, 445 U.S. at 644-45 , 100 S.Ct. 1398 . As explained in Owen, id.,
On- the one hand, the municipality was a corporate body, .capable of performing the same, “proprietary” functions .as any private corporation, and liable for its, torts in the. same manner and to ..the same extent as well. On the other hand, the municipality was an arm -of the State,, when acting in the “governmental” or “public” capacity, it shared the immunity traditionally accorded the sovereign.
The City of Houston first asserts that the state tort claims against it in this suit, which are all based on its performance of governmental functions, 12 are *769 barred by the City’s governmental immunity, so this Court lacks subject matter jurisdiction over the claims against it. 13 City of Friendswood v. Horn, 489 S.W.3d 515, 521-22 (Tex. App.-Houston [1st Dist.] Feb. 11, 2016, no pet.), 14 citing Rusk State Hosp. v. Black, 392 S.W.3d 88, 95 (Tex. 2012) (“When performing governmental functions, a political subdivision derives governmental immunity from the state’s sovereign immunity. Governmental immunity encompasses the following two princi-pies: (1) immunity from suit, which precludes a lawsuit against the entity unless the Legislature has expressly consented to the suit, and (2) immunity from liability, which precludes judgment against the government even if the Legislature has expressly consented to suit (citations omitted).”). 15 The City of Houston is immune from liability because no statute or common law authorizes the relief Plaintiffs seek. 16 With regard to the second doctrine *770 of proprietary functions a municipality was held to the standards of a private corporation: (1) it was held liable for its proprietary acts and for governmental functions regarding which the State had withdrawn the municipality’s immunity by consenting to suit; (2) the second doctrine provided immunity only for its “discretionary” or “legislative” activities, but not for those that were “ministerial in nature”. Owen, 445 U.S. at 644-45 , 100 S.Ct. 1398 . Section 1983 was one of the statutes passed by Congress that abrogated a municipality’s governmental immunity. Id. at 645-48 , 100 S.Ct. 1398 .
The City charges that here Plaintiffs are trying to shoehorn what are actually tort claims 17 into Section 1983 violations, but they fail to plead facts to meet the requirements of such a cause of action. 18 *771 Plaintiffs cloak what are actually tort claims under a deceptive construction of constitutional law. Plaintiffs fail to state a claim under 42 U.S.C. § 1983 because they do not state facts that, if true, would demonstrate violations of their constitutional rights sufficiently to overcome Houston’s governmental immunity, and they fail to allege causation. Claiming that Defendants’ governmental actions to maintain and improve drainage and reduce the occasions and severity of Houston’s flooding during rain storms violated Plaintiffs’ constitutional rights, Plaintiffs fail to allege that Defendants took any action concerning Plaintiffs’ real property or caused any particularized injury. Instead they claim that governmental action relating to other property, not owned by Plaintiffs (two roads, two apartment complexes, and two commercial developments), deprived Plaintiffs of substantive due process and property rights under the Fourteenth Amendment and constituted a government seizure of their property in violation of the Fourth Amendment 19 and their property rights in violation of Article I, Section 19 of the Texas Constitution. Plaintiffs fail to plead how their constitutional rights were violated or to state any facts supporting the constitutional violation claims.
Plaintiffs fail to make separate allegations of deprivation of property rights in violation of the Texas Constitution, but only conclusory statements of some of the elements of a constitutional violation. They assert no facts showing that the City’s drainage and mobility conduct was not rationally related to furthering a legitimate interest of Houston; instead they allege facts showing that Houston is engaged in regulatory functions that are legitimately *772 undertaken by Houston for the welfare of its citizens.
Under Texas law, “[T]hé government may not be sued in tort unless a'separate, viable tort fits within the limited waiver provided by the [Texas Tort Claims] Act.” Rodriguez v. Christus Spohn Health System Corp., 628 F.3d 781, 736 (S.D. Tex. 2010). 20 The Texas Tort Claims Act does not waive immunity for claims like Plaintiffs’ in this case because the actions complained of all fall under the “legislative function of a governmental unit” arid/or the City’s discretionary powers. Tex. Civ. Prac. & Rem. Code §§ 101.062, 101.066 (2013). 'Furthermore the City has not “waived its immunity by consenting to suit in federal court in the Texas Tort Claims Act for § 1983.” Bishop v. City of Galveston, No. 11-4162, 2013 WL 960531 , at *9 (S.D. Tex. Mar. 12, 2013), citing Quern v. Jordan, 440 U.S. 332, 340-45 , 99 S.Ct. 1139 , 59 L.Ed.2d 358 (1979); Ross v. Texas Educ. Agency, 409 Fed.Appx. 765, 768-69 (5th Cir. Feb. 1, 2011), Without a precise waiver defined by the Texas' Legislature, immunity is not waived. Tex. Dept. of Transp. v. Sefzik, 355 S.W.3d 618 , 622 n.3 (Tex. 2011).
Nor can Plaintiffs avoid the City’s governmental immunity from suit by characterizing their tort allegations as a suit for declaratory judgment. Burkett v. City of Haltom City, Texas, No. 4:14-CV-1041-A, 2015 WL 3988099 , at *4 (N.D. Tex. June 30, 2015) (“Any claim in the nature of'a tort may only be brought pursuant to the Tort Claims Act.... Nor can plaintiff avoid dismissaj by couching her claims as a request for declaratory judgment.”), citing City of Houston v. Williams, 216 S.W.3d 827, 828-29 (Tex. 2007). Without a clear, unambiguous legislative waiver, governmental • immunity bars declaratory judgment actions against the state and its political subdivisions. Sefzik, 355 S.W.3d at 621 -22 & n.3. The Federal Declaratory Judgment Act-permits a federal court to issue a declaratory judgment when there is “an actual controversy within its jurisdiction” — the issues are “live” or the parties have a “legally cognizable interest in the outcome.” Powell v. McCormack, 395 U.S. 486, 496 , 89 S.Ct. 1944 , 23 L.Ed.2d 491 (1969). “The plaintiff must show that he ‘has sustained or is immediately in danger of sustaining some direct injury’ as a result of the challenged official conduct and the injury or tfireat of injury must be both ‘real and immediate,’ not ‘conjectural’ or ‘hypothetical.’” City of Los Angeles v. Lyons, 461 U.S. 95, 101-02 , 103 S.Ct. 1660 , 75 L.Ed.2d 675 (1983). Plaintiffs in this suit have failed to allege facts showing there is a substantial and continuing controversy between them and the City.
Plaintiffs seek, improper injunctive and declaratory relief in claiming that this *773 ■Court should take over-discretionary.governmental functions beyond its Article III power. Courts lack jurisdiction to take on the discretionary functions of the- other branches of government. The Supreme Court in Collins v. City of Harker Heights, Texas, 503 U.S. 115, 128-29 , 112 S.Ct. 1061 , 117 L.Ed.2d 261 (1992), opined,
Decisions concerning the allocation of resources to individual programs, such as sewer maintenance, and to particular aspects of those programs, ... involve a host of policy choices that must be. made by locally elected representatives, rather than by federal judges interpreting the basic charter of-Government for the entire country. -
The City is also immune from the specific injunctive relief that Plaintiffs seek, asking the Court to act beyond its judicial role and assume Houston’s zoning authority to decide which commercial permits the City should issue and to prioritize flood relief projects neat' Plaintiffs’ properties. That relief is inappropriate, overly broad, and not “narrowly tailored to remedy the specific action necessitating the injunction.” Fiber Sys. Int’l v. Roehrs, 470 F.3d 1150, 1159 (5th Cir. 2006).
Plaintiffs briefly mention state-created danger as a theory for imposing liability on the City, i.e., but the Fifth Circuit has clearly stated that it has not recognized that claim. See Rivera v. Houston Indep. Sch. Dist., 349 F.3d 244 , 249 and n.5 (5th Cir. 2003); Piotrowski II, 237 F.3d at 584 . Rule 12(b) (6) requires dismissal whenever a plaintiffs claim is based on an invalid legal’theory. Neitzke v. Williams, 490 U.S. 319, 327 , 109 S.Ct. 1827 , 104 L.Ed.2d 338 (1989) (mentioning as an example of a “meritless legal theory” “claims against which it is clear that defendants are immune from suit”). Even if state-created danger were recognized by the Fifth Circuit, Plaintiffs fail to allege the essential elements with supporting facts, as well as causation: the plaintiff must show that (1) “the state actors increased the danger to [them];” and (2) “the state actors acted with deliberate indifference.” Id. To allege deliberate indifference for purposes of a state-created danger, plaintiff must show that' the environment created by the state was dangerous, [the state actors] must know it is dangerous, and they must have used their authority that would not otherwise have existed for the third party’s crime to occur.” Johnson v. Dallas Indep. Sch. Dist., 38 F.3d at 201. “The'key to the state-created danger 'cases ... lies in the state actors’ culpable knowledge and conduct in affirmatively placing an individual in a position of danger, effectively stripping a person of her ability to defend herself, or cutting off potential sources of private aid.” Id.
In essence Plaintiffs seek to make the City help them before any others in or near TIRZ 17 with respect to Houston’s flooding problems, infrastructure needs, and community development. They ask the Court to take over City government functions (i.e., requiring implementation of all recommendations of a 2014 drainage study to benefit Plaintiffs’ neighborhood, requiring Defendants to build unidentified drainage projects under the Court’s supervision, prevent Defendants from honoring a contract with a non-party developer, bar Defendants from entering into- contracts with unidentified parties, exclude commercial buildings on lots greater than five acres unless they are overseen by the Court, require Court oversight of the expenditure of funds and drainage projects until the Court finds that Plaintiffs’ homes will receive adequate flood protection, thus taking. over the legislative and executive branches of City government for the benefit of the six Plaintiffs without regard to any other Houston residents. The City in *774 sists that the Court has no jurisdiction over these claims and the relief sought because Houston has governmental immunity from both suit and liability regarding them.
The grounds for Plaintiffs’ claims are six distinct occurrences of government conduct relating to road improvements, apartment drainage improvements, and commercial developments, all impacting drainage and causing dangerous flooding, over the last ten years. They provide few facts regarding these instances. Plaintiffs concede that they “live in and adjacent to the areas ... [that are] flood prone.” Without any allegations regarding causation, they argue that Defendants must be responsible for their properties flooding during three occasions of severe rainfall in the past seven years.
“Governmental functions” are “those functions that are enjoined on a municipality by law and are given it by the state as part of the state’s sovereignty....” Tex. Civ. Prac. & Rem. Code § 101.0215 (2013). They include “street construction and design,” “sanitary and storm sewers,” “sanitary and storm sewers,” “building codes and inspection,” “zoning, planning, and plat approval.” Id. Governmental functions also include “community development or urban renewal activities undertaken by municipalities and authorized under Chapters 373 and 374, Local Government Code.” Id., citing Tex. Loc. Gov’t Code §§ 373.001, et seq., and 374.001, et seq. The only conduct Plaintiffs challenge is Defendants’ exercise of governmental functions designed to address flooding issues, e.g., widening and lowering Bunker Hill Road, replacing storm sewers, rebuilding the Bunker Hill bridge, approving construction of a 42” storm drain, and approving a reimbursement contract for a developer’s storm water detention.
Plaintiffs fail to specify any flood-impacted property except by vague “neighborhood” references, including their own unspecified properties, identify only the block where each individual plaintiff lives, and do not claim that Defendants intended to injure or deprive them of their property. Plaintiff speak only in generalities.
In City of Friendswood, 489 S.W.3d at 523-24 , in which governmental flood mitigation decisions were unsuccessfully challenged, the appellate court opined,
Both federal and state laws permit and provide incentives for local governments to take measures to mitigate the potential loss of life and property from future flood events. See 42 U.S.C. § 4104c (anticipating that states and communities will use funds made available from the National Flood Mitigation Fund to plan and carry out activities designed to reduce risk of flood damage to structures covered under contracts for federal flood insurance); Tex. Water Code Ann. § 16.315 (West 2008) (entitled “Political Subdivisions; Compliance with Federal Requirements” and authorizing political subdivisions “to take all necessary and reasonable actions that are not less stringent than the requirements and criteria of the National Flood Insurance Program,” including “[mjaking appropriate land use adjustments to constrict the development of land which is exposed to flood damage and minimize damage caused by flood losses,” “engaging in floodplain management, adopting and enforcing permanent land use and control measures,” and “participating in floodplain management and mitigation initiatives ... developed by federal, state or local government.”)
In another action, Harris County Flood Control Dist. v. Kerr, 499 S.W.3d 793, 804 (Tex. 2016), Kerr brought claims for inverse condemnation and nuisance against *775 the Harris County Flood Control District after a major flood.
While compensation to those whose property is taken for public use is an important and constitutionally imposed obligation of democratic government, governments must also be allowed to survive financially and carry out their public functions. They cannot be expected to insure against every misfortune occurring within their geographical boundaries, under the theory that they could have done more. No government could afford such obligations.
Id.
The RAF alleges that it is a “nonprofit organization” with “associational standing on behalf of its members.” The City points out that an association has standing to bring suit on behalf of its members when “(1) one or more of the organization’s members would otherwise have standing in his or her right, (2) the interests which the organization seeks to protect in the lawsuit are germane to the purposes of the organization, and (3) the nature of the case does not require the participation of the individual members as plaintiffs to resolve the claims or prayers for relief at issue.” Friends of the Earth, Inc. v. Chevron Chemical Co., 129 F.3d 826, 827-28 (5th Cir. 1997), citing Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333, 343 , 97 S.Ct. 2434 , 53 L.Ed.2d 383 (1977); Warth v. Seldin, 422 U.S. 490, 511 , 95 S.Ct. 2197 , 45 L.Ed.2d 343 (1975); Texas Association of Business v. Texas Air Control Bd., 852 S.W.2d 440, 447 (Tex. 1993). The City charges that the RAF makes no factual allegations showing the third required element of associational standing, but only provides a “formulaic recitation of the elements,” alleges that its “members, board members and supports reside in and own property throughout the Memorial City Area, including the Spring Branch north-side neighborhoods and the south-side neighborhoods including Fonn Villas, Long Meadows, Memorial Pines, and Frostwood.” These vague allegations should be dismissed under Rule 12(b) (6),
Alternatively Plaintiffs’s amended complaint has affirmatively shown that their claims are barred by the two-year statute - of limitations for section 1983 claims. Tex. Civ. Prac. & Rem. Code 16.003(a) (2005) (“Except as provided by Sections 16.010, 16.0031, and 16.0045, a person must bring, suit for trespass for injury to the estate or to the property of another, conversion of personal property, taking or detaining the personal property of another, personal injury, forcible entry and detainer, and forcible detainer not later than two years after the day the cause of action accrues.”). Since there is no federal statute of limitations for § 1983, the “federal courts borrow the forum state’s general personal injury limitations period.” Burrell v. Newsome, 883 F.2d 416, 418 (5th Cir. 1989). On the other hand, federal law controls and defines the time of accrual as the time: “when plaintiff knows or has reason to know of the-injury which is the basis of the action.” Lavellee v. Listi, 611 F.2d 1129, 1131 (5th Cir. 1980). A claim usually accrues “when [a] plaintiff has a complete and present cause of action,- i.e., at the point when “the plaintiff can file suit and obtain relief.” Bay Area Laundry and Dry Cleaning Pension Trust Fund v. Ferbar Carp, of Cal., 522 U.S. 192, 201 , 118 S.Ct. 542 , 139 L.Ed.2d 553 (1997). The continuing violation doctrine applies “to claims that by their nature accrue only after the plaintiff has been subjected to some threshold amount of mistreatment” and “the limitations period begins to run when the defendant has ‘engaged in enough activity to make out an actionable ... claim.’ ” Gonzalez v. Hasty, 802 F.3d 212, 220 (2d. Cir. 2015), citing Morgan, 536 U.S. at 114-15, 117 , 122 S.Ct. 2061 . *776 The City argues that- Plaintiffs did not file this suit timely. -
The City further contends that Plaintiffs fail to allege facts supporting any of the necessary elements for permanent injunc-tive relief: “(1) that they have-suffered-an irreparable injury; (2) that remedies at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant,, a remedy in equity is warranted; and (4) that the public interest would not be dis-served by a permanent injunction.” eBay v. MercExchange, LLC, 547 U.S. 388 , 391, 126 S.Ct. 1837 , 164 L.Ed.2d 641 (2006). “An injury is ‘irreparable’ only if it cannot be undone through monetary remedies.” Northeastern Florida Chapter of the Ass’n of Gen’l Contractors of America v. City of Jacksonville, Florida, 896 F.2d 1283, 1285 (11th Cir. 1990). “The’preliminary injunction is an-extraordinary and drastic remedy not to be granted until the movant [the plaintiff] ‘clearly carries the burden of persuasion’ as to the four prerequisites,” Id. “The possibility that adequate compensatory or other corrective relief will be available at a later date, in the ordinary course of litigation, weighs heavily against a claim of irreparable harm.” Id., quoting Sampson v. Murray, 415 U.S. 61, 88 , 94 S.Ct. 937 , 39 L.Ed.2d 166 (1974). “[F]or an injunction to issue based on a past violation, [plaintiff] must establish that there is a ‘real or immediate threat that he will be wronged again.’ ” Hainze v. Richards, 207 F.3d 795, 802 (5th Cir. 2000). Plaintiffs have not alleged facts to show any real or immediate threat of flooding or the relief that will prevent future .flooding, but they merely speculate and hypothesize.
“There must be a likelihood that irreparable harm will occur. Speculative injury is not sufficient; there must be more than an unfounded fear on the part of the applicant. Thus, a preliminary injunction will not be issued simply to prevent the possibility of some remote future injury. A presently existing actual threat must be shown.”
U.S. v. Emerson, 270 F.3d 203, 262 (5th Cir. 2001); quoting 9 Wright, Miller & Kane, Federal Practice & Procedure: Civil 2D § 2948.1 at 153-56 (footnotes omitted, emphasis added).
Nor do Plaintiffs plead facts to show the threat of injury to them is greater than the potential injury to Defendants posed by an injunction. Guy Carpenter & Co., Inc. v. Provenzale, 334 F.3d 459, 464 (5th Cir. 2003). Plaintiffs ask the Court to enjoin the City from issuing lawful commercial permits unless the Court or a Special Master finds the proposed development will not have an impact on flooding in Plaintiffs’ neighborhood. The City claims that because Houston lacks zoning regulations, denial of commercial permits in some neighborhoods, when Houston’s permitting regulations are satisfied, will cause chaos and impose a hardship on Houston. This Court should not usurp the City’s discretion in fiscal and administrative oversight regarding approval of public improvements; judicial review of municipal decisions would breach the separation of judicial and legislative powers and prioritize the interests of one or more individual landowners over municipal policy set for the City as a whole. Thus Plaintiffs’ proposed injunctive relief is outside the scope of the Court’s jurisdiction and is unsupported by the law.
Finally.'and alternatively, the City moves for a more definite statement, specifically for Plaintiffs to replead in accordance with Rule 8 to cure the following problems: (1) failure to state the dates on which each alleged wrongful act by Defendants occurred; (2) specifically identify the location of Plaintiffs’ homes and the dates on which *777 each alleged harmful constitutional violation occurred to each particular location; (3) specify causation; (4) identify by specific boundaries or other identifying characteristics the members on whose behalf RAF allegedly sues in order to plead associational standing;. (5) identify geographic boundaries in which each alleged constitutional violation occurred; (6) specify Defendants’ inactions and how they caused harm to Plaintiffs; (7) state any alleged policy, practice or custom that is a basis of a § 1983 claim; (8) state facts showing the City’s intent to deprive Plaintiffs of their constitutional rights; (9) specify each alleged action or inaction by each Defendant; ' and ■ (10) distinguish between the Defendant for each alleged action or failure to act.
Defendants the Zone and the Authority’s Motion to Dismiss Or, Alternatively, For a More Definite Statement (# 7)
The Court only briefly references the issues' raised by the City and just discussed unless the Zone and the Authority have different allegations about them.
The Zone and the Authority also contend with the City that Plaintiffs seek improper judicial relief, given our tripartite system of government. The judiciary is authorized to interpret and apply government policies, not write them. What Plaintiffs seek is to have this Court displace “the Houston City Council’s policy-making authority (and to act as a de facto., zoning board) and dictate how, where, and when the Defendants and the City may fund and construct flooding and drainage improvements or approve new commercial development within the Zone.” Although Plaintiffs seek to recharacterize what at most is negligence into a series of constitutional violations, .the actuality is that .none of Defendants took any action or adopted any unconstitutional policy with.the intent to flood Plaintiffs’ properties.
The Zone and the Authority assert that Plaintiffs’ claims should be dismissed for nine reasons. -
First, the Zone is not a “suable entity,” separate and apart from the City. Instead the Zone is defined as a particular geographic area of the City, for which the City has not taken the steps to empower the Zone with jural authority. Ex. A, p. 1 (creating1 and designating the Zone as‘a “contiguous geographic area of the City”); Darby v. City of Pasadena, 939 F.2d 311, 313 (5th Cir. 1991) (“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.’ Fed. R. Civ. P. 17(b).”), and Crull v. City of New Braunfels, Tex., 267 Fed.Appx. 338, 341-42 (5th Cir. 2008) 21 (citing Darby) (“In order for a plaintiff to sue a department of a city, that department must enjoy a separate legal existence. Unless the political entity that created the department has taken ’explicit steps to grant the servient-agency with jural authority, the department lacks the capacity to sue or be sued.”). The Home Rule Charter of the City of Houston, which is a home rule municipality, reserved to the municipality the power to sue and be sued. Home Rule Charter, City of Houston, Texas, Art. II, § 1. Sections 311.003 and 311.008 of the Texas Tax Code grant the City all authority to organize a tax increment reinvestment zone and all *778 powers necessary to carry out its purpose, as the City did in creating the Zone. Darby, 939 F.2d at 313 (“A Texas home rule city is organized not unlike a corporation. Like a corporation, it is a single legal entity independent of its officers. Also like a corporation, a Texas city is' allowed to designate whether one of its own subdivisions can be sued as an independent entity. Absent this authorization, [Darby’s] suit no more can proceed against the police department alone than it could against the accounting department of a corporation .... Pursuant to these principles, we have held that a political subdivision cannot pursue a suit on its own unless it is a ‘separate and distinct’ corporate entity.... [0]ur cases uniformly show that unless the true political entity has taken explicit steps to grant the servient agency with jural authority, the agency cannot engage in any litigation except in concert with the government itself.”) (citations omitted). 22 In the instant suit, neither the Zone’s enabling Ordinance nor the City’s Charter grants the Zone the power to sue or be sued.
Second, the Zone and the Authority complain that Plaintiffs fail to identify a specific policy, practice or custom sufficient to state a plausible claim for municipal liability under section 1983, nor have they shown that it or the final policy maker (identified in the Complaint ¶ 53 as the City Council)had policy-making power: “the Authority and TIRZ Boards recommend projects, but the City Council has final approval”) was the moving force behind the alleged deliberate deprivation of Plaintiffs’ rights under the Fourth and Fourteenth Amendments. See also Home Rule Charter, City of Houston, Texas, Art. VII, § 10 (“All legislative powers of the City shall be vested ... in the City Council.”); Ex. A at § 4. Plaintiffs have failed to do so and therefore have failed to state a claim for which relief may be granted under Rule 12(b) (6).
The Zone and the Authority also contend that Plaintiffs’ § 1983 claims are barred by the two-year statute of limitations under Tex. Civ. Prac. & Rem Code §§ 16.003 and their due course of law claim under Article I, § 19 of the Texas Constitution is barred by the four-year residual statute of limitations under § 16.051 (“Every action for which there is no express limitations period, except an action for the recovery of real property, must be brought no later than four years after the day the cause of action accrues.”). King-White v. Humble I.S.D., 803 F.3d 754, 760 (5th Cir. 2015) (generally § 1983 claims are subject to two-year statute of limitations); Edwards v. Dist. Att. of Atascosa City, 511 S.W.3d 257, 260-61 (Tex. App.-San Antonio July 22, 2015, no pet.) (Texas Constitution’s due course of law claim is subject to four-year statute of limitations). The Zone and the Authority maintain that the Complaint demonstrates that Plaintiffs’ § 1983 claims accrued at the latest in 2009 because they allege wrongful conduct by Defendants as early as 2007, when Defendants widened and lowered Bunker Hill Road North of I — 10 and replaced storm sewers in the Bunker Hill Drainage Project that caused flooding in the residential neighborhoods.
*779 In addition, the due course of law claim also fails because Defendants have clearly-stated a conceivably rational basis for their actions. Univ. of Texas Med. Sch. at Houston v. Than, 901 S.W.2d 926, 929 (Tex. 1995) (Although textually different with one referring to “due process” and the other, “due course,” the terms are “without meaningful distinction” and the Texas Supreme Court has “traditionally followed contemporary federal due process interpretations of procedural due process.”); Mabee v. McDonald, 107 Tex. 139 , -, 175 S.W. 676, 680 (Tex. 1915) (“ ‘Due process of law,’ as used in the fourteenth amendment, and ‘due course of the law of the land,’ as used in Article I, § 19, of the Constitution of Texas ... according to the great weight of authority, are, in nearly if not all respects, practically synonymous”), rev’d on other grounds, 243 U.S. 90, 92 , 37 S.Ct. 343 , 61 L.Ed. 608 (1917). Plaintiffs must negate any possible rational, or “at least debatable, basis for Defendants’ Zone-related initiatives.” # 7 at p, 3, ¶ 4. Plaintiffs’ complaint concedes the existence of rational bases for Defendants’ conduct in discussing the City Council’s findings of benefit and public purpose in the Ordinances which created the Zone and the Authority (Ex. A at § l(b)-(c); Ex. B at § 2 and Attachment A, art. IV), in Texas Tax Code §§ 3.11,003(a) 311.007(a) (7) (A), and 311,005, and in the Plan adopted by City Council, Ex. C, Attachment A pp. 1-2, Ex. E, Attachment A at p.2. The reasons for them actions (blight reduction, attracting and encouraging private commercial development, alleviating traffic congestion, elevating the tax base, upgrading water, sewage, and drainage infrastructure and improving the common good and general welfare of the Memorial City Area) are, as a matter of law, legitimate government interests. See, e.g., Maryland Manor Associates v. City of Houston, 816 F.Supp.2d 394, 407 (S.D. Tex. 2011) (controlling traffic flow is a legitimate governmental interest); St. Joseph Abbey v. Castille, 712 F.3d 215, 222 (5th Cir. 2013) (public or general welfare is a legitimate interest); Texas Manufactured Housing Ass’n, Inc. v. City of Nederland, 101 F.3d 1095, 1106 (5th Cir. 1996) (maintaining property values is a legitimate government interest); Queeta’s Investments, Inc. v. City of Hidalgo, No. M-04-272, 2005 WL 2416656 , at *4 (S.D. Tex. Sept. 30, 2005) (beautification is a legitimate government interest); Norfolk Fed’n of Bus. Districts v. City of Norfolk, No. 96-1746, 103 F.3d 119 , 1996 WL 671293 , at *3 (4th Cir. 1996) (reduction of urban blight is a legitimate government interest). Given these findings and numerous rational bases for Defendants’ actions, Plaintiffs have not and cannot establish a plausible substantive due process claim under either the United States or Texas Constitutions.
The Zone and the Authority also maintain that the Fifth Circuit does not recognize the state-created-danger theory of liability as a subset of substantive due process.
Plaintiffs’ federal due process claim is not ripe because Plaintiffs have not sought and have not been denied compensation through state procedures, or, alternatively, it is merely a mislabeled federal takings claim. See John Corp., 214 F.3d at 583 ; Steward v. City of New Orleans, 537 Fed.Appx. 552, 556 (5th Cir. 2013) (If a takings claim is brought with a substantive due process claim, the court must perform a careful analysis to assess whether the plaintiff has pleaded facts showing the two are independent.).
A takings claim is also not ripe for review until the claimant seeks and has been denied just compensation through the proper state procedures. See Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, 473 U.S. *780 172, 186 , 105 S.Ct. 3108 , 87 L.Ed.2d 126 (1985); Urban Developers LLC v. City of Jackson, 468 F.3d 281, 292-93 (5th Cir. 2006). Plaintiffs have not pleaded either. Severance, 566 F.3d at 497 . The Zone, and the Authority instead maintain that “under the cloak of substantive due process, Plaintiffs complain only that they have ‘been deprived of [their] constitutionally protected ... property rights’ without due process of law; they do not claim they have sought and been denied compensation through available state procedures. Therefore their due process claim is not ripe and should be dismissed.” Steward, 537 Fed.Appx. at 556 .
Next, the Zone and the Authority contend that since the Fourth Amendment targets “misuse of power,” Plaintiffs have not pled and cannot plead an intentional or willful act of physical control, i.e., the taking must be willful. See also Laughlin v. Olszewski, 102 F.3d 190, 193 (5th Cir. 1996) (“‘[T]he Fourth Amendment addresses ‘misuse of power.’ [citation omitted], not the accidental effects of otherwise lawful government conduct.”). Plaintiffs fail to state a Fourth Amendment claim because they do not allege a willful and intentional seizure of any specific property. Nowhere do Plaintiffs allege any conduct by Defendants evidencing a deliberate, willful decision to flood their particular properties. Instead they claim only that Defendants were generally aware that the Memorial City area and surrounding neighborhoods are susceptible to flooding and that a combination of private development, infrastructure improvements, failure' to implement additional flood and drainage projects, and a series of natural disasters contributed to alleged flood damage to their properties. In other words, Plaintiffs allege at most that Defendants were negligent in the adoption and execution of their Zone-related policies and then try to convert that negligence claim ■into a Fourth Amendment violation. Simple negligence or unintentional consequences are- insufficient to state a viable Fourth Amendment claim. Brower v. County of Inyo, 489 U.S. 593, 596 , 109 S.Ct. 1378 , 103 L.Ed.2d 628 (1989) (“Violation of the Fourth Amendment requires an intentional acquisition of physical control ...' The detention or taking itself must be willful.”); Laughlin v. Olszewski, 102 F.3d at 193 (“While a seizure can occur where the specific object taken or detained is unintentional, the detention or the taking, itself, must be willful. “!‘[T]he Fourth Amendment addresses ‘misuse of power,’ [citation omitted],- not the accidental effects of otherwise lawful government conduct.”).
In a similar case to the instant one, Harris County Flood Control Dist. v. Kerr, 499 S.W.3d 793 (Tex. 2016), a group of 400 homeowners claimed that a series of governmental decisions by the defendants, including approval of private commercial development and a failure to implement adequate drainage and storm water infrastructure projects resulted in repeated flooding of their properties in three severe storms. The Court noted,
While compensation to those whose property is taken for public use is an important and constitutionally imposed obligation of democratic government, governments must also be allowed to survive financially and carry out their public functions. They cannot be expected to insure against every misfortune occurring jvithin their geographical boundaries, under the theory that they could have done more. No government could afford such obligations.
Id. at 804 .
The Zone and the Authority further assert that the RAF lacks associational *781 standing to sue on behalf of its unidentified members because it has not alleged that it owns any property nor demonstrated that any associational standing exists. Friends of the Earth, Inc. v. Chevron Chemical Co., 129 F.3d 826, 827-28 (5th Cir. 1997) (“[A]n organization can assert ‘associational standing’ if it can show that (1) one or more of the organizations’s members should have standing in his or her own right; (2) the interests which the organization seeks to protect in the lawsuit are germane to the purposes of the organization; and (3) the nature of the case does not require the participation of the individual affected members as plaintiffs.”).
Last of all, the Zone and the Authority maintain that Plaintiffs are not entitled to declaratory or injunctive relief because they have failed to state a viable substantive claim against the Defendants.
The Zone and the Authority explain that the Zone is governed by a Board of seven directors (the “Board”), who are appointed by the City’s governing body. Ex. A at § 4; Compl. at ¶ 49. The Board is authorized to prepare and propose project development and financing plans for the Zone and to make recommendations to the City Council regarding the administration, management,, and operation of the Zone, but it may not approve or implement a project development or financing plan without approval and consent from the City. Id. The City Council also found that the Board “may not exercise any power granted to the City under § 311.008 of the Texas Tax Code without additional authorization from the City.” Id, These powers include “(1) causing] project plans to be prepared, approving] and implement[ing] the plans, and otherwise achieving] the purpose of the plans-, (2) enterling] into agreements, including with bondholders, determined by the governing body of the municipality to be necessary or convenient to implement project plans and achieve their purposes-, and (3) acquiring], constructing], reconstructing], or installing] public works, facilities, or sites or other public improvements, including utilities, streets, street lights, water and sewer facilities, pedestrian malls and walkways, parks, flood and drainage facilities, or parking facilities.... ” Tex. Tax Code § 311.008(b) (emphasis added). Thus the City has final authority to approve, authorize and fund all projects. Id.-, Ex. A at § 4; Compl. at ¶ 53. ■ ■
On August 14, 2002 the City Council adopted Resolution 2002-26, which approved the creation of the Authority, a local government corporation, and adopted the Articles of Incorporation and ByLaws, pursuant to Chapter 431 of the Texas Transportation Code. Exhibit B, City of Houston Resolution No. 2002-26; Compl, at ¶ 42. The City Council created the Authority as the operating and financing vehicle for the Zone to (1) aid, assist and act on behalf of the City in the performance of its governmental functions to promote the common good and general welfare of the Memorial City area of Houston and neighboring areas; (2) promote, develop, encourage and maintain employment, commerce, and economic development in Houston; and (3) aid, assist and act on behalf of the Zone in the (a) implementation of the Project Plan and Reinvestment Zone Financing Plan, (b) development of a policy to finance development of residential, commercial and public properties in the [Zone], and (c) development and implementation of a development policy for the [Zone].
Subsequently the Zone prepared and proposed a Project Plan and Reinvestment Zone Finance Plan, which the City adopted in Ordinance No. 1999-852, which approved the Plan, and to which City *782 Council twice approved amendments (Ordinance Nos. 2011-728 and 2014-1130 on August 23, 2011 and December 10, 2014, respectively). Ex. C, City of Houston Ordinance No. 1999-852; Compl. ¶¶ 43-44. Exhibits D and E, Compl. ¶ 43. The Plan was adopted to (1) preserve, conserve, and redevelop the Zone; (2) remedy specific conditions that, if not addressed, will pose long term risks to the area by increasing the number of unproductive, under-developed properties and decreasing area property values; and (3) create an environment attractive to new and additional high quality development. The Plan aimed to redevelop and improve road and street conditions; water, sewage and drainage infrastructure; public parks, green space and recreational facilities; and pedestrian improvements (e.g., sidewalk systems and ADA-compliant ramps) at key retail and commercial developments within the Zone. Ex. E, Attachment A at p.2. Plaintiffs’ complaints arise out of these various projects implemented in the Zone or the City’s failure to prioritize and complete sufficient additional storm water mitigation and drainage in areas experiencing more frequent flooding.
The RAF fails to allege facts to plausibly support its claim that it is a non-profit organization with associational standing to sue on behalf of its members. For associational standing RAF must show “(1) its members would otherwise have standing to sue in their own right, (2) the interests it seeks to protect are germane to the organizations’s purpose, and (3) neither the claim asserted nor the relief requested requires the participation in the lawsuit of each of the individual members.” Friends of the Earth, Inc., 129 F.3d at 827-28 . The RAF provides no facts to support the first and third elements. The RAF states that “its members, board members and supporters reside in and own property throughout the Memorial City Area, including the Spring Branch north-side neighborhoods, and the south-side neighborhoods including Fonn Villas, Long Meadows, Memorial Pines and Frostwood. Compl. at ¶ 178. The RAF fails to state whether any of the unidentified members suffered flood damage sufficient to have standing to sue in their own right. Nor are there any allegations showing that the claims asserted and the relief requested do not require the participation of each of the RAF’s members. The fact that RAF members Lois Meyers and Virginia Gregory have personally appeared to participate as individual plaintiffs suggests that such individual participation is necessary. Compl. at ¶¶ 30-31.
The Zone and the Authority claim that Plaintiffs’ requests for declaratory and in-junctive relief should also be dismissed. The Texas Declaratory Judgments Act, Tex. Civ. Prac. & Rem. Code § 37.001, et seq., (“TDJA”), is a procedural, not a substantive, mechanism and thus does not apply to actions in federal court. Utica Lloyd’s of Tex. v. Mitchell, 138 F.3d 208 , 210 (5th Cir. 1998), citing Gasperini v. Center for Humanities, Inc., 518 U.S. 415, 427 , 116 S.Ct. 2211 (1996) (“Under the Erie doctrine, federal courts sitting in diversity apply state substantive law and federal procedural law.”). So, too, must Plaintiffs’ claim under the Federal Declaratory Judgment Act (the “Act”), 28 U.S.C. § 2201 , requesting the Court to appoint a Special Master to assume the policy-making and implementation duties of the City, the Zone, and the Authority. Federal courts have broad discretion whether to grant or refuse a declaratory judgment. Torch, Inc. v. LeBlanc, 947 F.2d 193, 194 (5th Cir. 1991). Furthermore the Act is a procedural device that creates no substantive rights and requires the existence of a justiciable controversy. Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 239-41 , 57 S.Ct. *783 461 , 81 L.Ed. 617 (1937). The Zone and the Authority contend there is no justiciable controversy here that would support the kind of declaratory relief that Plaintiffs seek. Even if Plaintiffs state a plausible basis for declaratory relief, the kind they seek is at odds with the separation of powers in our tripartite system of government in that they want the Court to take over the City’s role in promulgating land use and drainage policies, dictate how, where and when the Defendants and the City may fund and construct flooding and drainage improvements or approve new commercial development within the Zone. 23 In addition, Plaintiffs’ “formulaic recitation of the elements of associational standing are insufficient to survive a Rule 12(b) (6) challenge.
So, too, are the facts insufficient to support a grant of injunctive relief. Moreover, “a party seeking a temporary injunction to compel a governmental agent to perform a mandatory statutory duty must plead and prove either (1) a statute expressly authorizing injunctive relief without a showing of a probable right to relief sought or (2) imminent and irreparable harm (or both a probable right to relief sought and a probable imminent, and irreparable injury).” Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002). The Zone and the Authority insist Plaintiffs have not alleged, and cannot allege, facts giving rise to a plausible due process, Fourth Amendment or due course of law claim so they are not entitled to injunctive relief.
The Zone and the Authority alternatively seek a more definite statement to cure an ambiguity or vagueness or failure to provide sufficient information to allow a responsive pleading to be drafted regarding the following: (1) Plaintiffs’ failure to identify any alleged policy, custom or practice that serves as the basis of the § 1983 claims; (2) the absence of any allegations that any policies or actions by Defendants were effected with the intent to flood Plaintiffs’ specific properties; (3) Plaintiffs’ global reference to “Defendants” without indication as to which of the three entities *784 they have sued is engaged in which conduct; (4) Plaintiffs’ failure to identify dates on which alleged wrongful act by which Defendant occurred; (5) Plaintiffs’ failure to identify the specific location of .their properties; (6) Plaintiffs’ failure to specify whether their claims relate to the complete taking of their property or simply damage to their property; (7) Plaintiffs’ failure to plead whether they have sought compensation for the alleged damage to their properties through available state procedures; (8) the RAF’s failure to name the members on whose behalf it allegedly sues for associational standing; and (9) Plaintiffs’ failure to specify Defendants’ “inactions” and how they contributed to causing, harm to Plaintiffs.
Alternatively the Zone and the Authority ask the Court to require Plaintiffs to replead in accordance with Rule 12(e) the deficiencies listed above.
Plaintiffs’ Consolidated Response (# 11)
Plaintiffs object that Defendants’ overly demanding pleading standards disregard the fact that some facts are still unknown and will.require discovery. Furthermore pleading all causation proof is not required at this stage, only “a short and plain statement of the claim showing that the pleader is entitled to relief’ under Rule 8(a) (2). Johnson v. City of Shelby, Miss., — U.S. --, 135 S.Ct. 346, 346 , 190 L.Ed.2d 309 (2014) (per curiam) (summarily reversing dismissal when lower court imposed heightened pleadings standards in a case alleging § 1983 municipal liability). This action is firmly grounded in long established case law in which the. Fifth Circuit has .recognized that arbitrary decisions about the use of land may support a substantive due process claim under the Fourteenth Amendment and unreasonable interferences with one’s interest in property may support a civil seizure claim under the Fourth Amendment.
Plaintiffs list the following as their responses in opposition to Defendants’ motions to dismiss: -
(Í) Qualified immunity is not a defense to claims for declaratory and injunctive relief (Yates v. Stalder, 217 F.3d 332 , 333 n.2 (5th Cir. 2000)); regarding state' constitutional claims, the Texas Constitution “authorizes suits for equitable or injunctive relief for violations of the Texas Bill of Rights” (City of Beaumont v. Bouillion, 896 S.W.2d 143, 148-49 (Tex. 1995)). Because Plaintiffs have pleaded for declaratory and injunctive relief, and not for damages, no immunity doctrine applies. 24 Morse v. Frederick, 551 U.S. 393, 432-33 , 127 S.Ct. 2618 , 168 L.Ed.2d 290 (2007) (It is well established that in the context of § 1983 and federal constitutional claims, a “‘qualified immunity’ defense applies in respect to damages actions, but' not to injunctive relief;”). Moreover qualified immunity applies only to individual officers in their individual capacities, but not to them in their official capacities. Johnson v. City of Shelby, 135 S.Ct. at 347 (“[N]o ‘qualified immunity analysis’ is implicated ... as petitioners asserted 'a constitutional claim against the city only, not against any municipal officer.”).
*785 2. Under Monell , ordinances, decisions, actions or omissions by Houston City Council and or the TIRZ Board constitute the requisite, “decision” or “policy” for § 1983 lawsuits against local government units. Municipalities and local government units are liable for decisions made by their properly constituted bodies. Pembaur v. City of Cincinnati, 475 U.S. 469, 480 , 106 S.Ct. 1292 , 89 L.Ed.2d 452 (1986). An action by a city council or other governing board satisfies Monell, 436 U.S. at 694 , 98 S.Ct. 2018 (“[I]t is when execution of a government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983”). City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 249 , 101 S.Ct. 2748 , 69 L.Ed.2d 616 (1981); Whisenant v. City of Haltom City, 106 Fed.Appx. 915, 917 (5th Cir. 2004) (“The City cannot be liable under § 1983 for having a ‘policy' of wrongfully incarcerating indigent defendants because the relevant decisions were made by a municipal judge acting ... ‘as a state judicial officer’ ” because “ ‘his acts and omissions were not part of a city policy or custom. A' municipality cannot be liable for judicial conduct it lacks the power to require, ■ control, or remedy even if the conduct parallels or appears entangled with the desires of the municipality.’”). City ordinances containing City Councils’s actions approving the TIRZ Board’s CIPS are decisions or policies giving rise to liability under Monell .
3. There is precedent in the Fifth Circuit and in Texas for substantive, due process claims based on deprivation of property rights, Mikeska v. City of Galveston, 451 F.3d 376 (5th Cir. 2006) (reversal of district court’s summary judgment dismissal of suit against the City of Galveston for refusing to grant permits for reconnection of appellants’ homes to public utilities after a tropical storm on the grounds that the City’s actions were- rationally related to the protection of open access to the public beach (substantive due process) and to the City’s obligation to follow state law to protect the public beaches from interference (equal protection). The City had a legitimate state interest in protecting public access to the public beach but failed to provide a rational reason why refusing to reconnect utilities to houses found on a public beach furthers the end of protecting public access to public beaches (the requisite rational relationship)). Md. Manor Assocs. v. City of Houston, 816 F.Supp.2d 394, 399-400 (S.D. Tex. 2011); Smith v. City of League City, 338 S.W.3d 114 (Tex. App.-Houston [14th Dist.] 2011).
Plaintiffs still argue that the state-created-danger theory provides an alternative basis for alleging a substantive due process claim even though the Fifth Circuit has expressly stated that it has not adopted it so far. Scanlan v. Tex. A & M Univ., 343 F.3d 533, 537 (5th Cir.2003).
4. TIRZ erroneously mislabels Plaintiffs’ Fourteenth Amendment claim as a takings claim. The Fifth Circuit has clearly rejected TIRZ’s suggestion that the Takings Clause subsumes all claims involving property destruction resulting from governmental acts. John Corp., 214 F.3d 573, 582-83 (5th Cir. 2000) (rejecting view that the applicability of one constitutional amendment pre-empts the guarantees of another; “[A] blanket rule that under Graham [v. Connor, 490 U.S. 386, 395 , 109 S.Ct. 1865 , 104 L.Ed.2d 443 (1989), 25 the *786 Takings Clause subsumes any substantive due process claim relating to a deprivation due process claim is both inconsistent with our precedents and with the approach taken by a majority of other circuit courts.”). In addition according to the amended complaint Plaintiffs are not seeking compensation, while a takings claim turns on the denial of just compensation.
5. Plaintiffs have pled a Fourth Amendment claim, including willful conduct. The Fourth Amendment protects possessory interests in one’s property. Plaintiffs allege that Defendants have seized their homes and possessory interests by their willful actions, which caused flooding in Plaintiffs’ homes. Severance, 566 F.3d at 502 .
6. Plaintiffs have properly pleaded relief. It is premature to ask whether Plaintiffs have met the standard for entitlement to equitable remedies, an issue that is properly raised on a preliminary injunction hearing or after a trial on the merits.
7. Plaintiffs’ claims are not time barred, are ongoing, and their limitations defense is prematurely raised. Statute of limitations is an affirmative defense for defendants, not a pleading requirement for plaintiffs, and the defense usually must be resolved through discovery and summary judgment or trial. Frame v. City of Arlington, 657 F.3d 215, 240 (5th Cir. 2011). 26 Plaintiffs maintain that if the Court reaches the limitations issue, their claims fall under the continuing violation theory. Jackson v. Galan, 868 F.2d 165, 168 (5th Cir. 1989) (“ Tf ... the statutory violation does not occur at a single moment, but in a series of separate acts and if the same alleged violation was committed at the time of each act, then the limitations period begins anew with each violation and only those violations preceding the filing of the complaint by the full limitations period are foreclosed.’ ”) (citations omitted).
8. Plaintiffs insist that TIRZ 17 may be sued because the City Ordinance, which conveys on the TIRZ “all powers” that the City has (with a few enumerated exceptions defined). 27 Furthermore TIRZ is an alter ego of the Authority: the two are alter egos, which are suable as such, have identical boards and board decisions, and the decisions are indistinguishable.
9. The RAF has associational standing because it has members that can sue in their own right, now including three named plaintiffs who, Defendants concede, can sue. The third element of associational standing, that an association’s claims not require participation of individual members, is a prudential, not a constitutional, requirement and “focuses on matters of administrative convenience and efficiency.” Ass’n of Am. Physicians & Surgeons, Inc. v. Tex. Med. Board, 627 F.3d 547, 551 (5th Cir. 2010). In addition, Plaintiffs seek only *787 equitable relief, so prudential concerns are not at issue. Id.; Warth v. Seldin, 422 U.S. 490, 515 , 95 S.Ct. 2197 , 45 L.Ed.2d 343 (1975).
10. While Plaintiffs claim they have met all pleading standards, in an abundance of caution they ask leave to file an amended complaint.
Plaintiffs, asserting that Defendants rely on a constricted interpretation of Monell and its progeny, highlight the following passage in Monell, 436 U.S. at 690 , 98 S.Ct. 2018 (emphasis added):
Municipalities and other local government units ... can be sued directly under § 1983 for monetary, declaratory, or injunctive relief where ... the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body’s officers.
See also Pembaur, 475 U.S. at 480 , 106 S.Ct. 1292 (“No one has ever doubted, for instance, that a municipality may be liable under § 1983 for a- single decision by its properly constituted legislative body— whether or not that body had taken similar action in the past or intended to do so in the future — because even a single decision by such a body unquestionably constitutes an act of official government policy.”). Under various standards that identify or define official policy, the City of Houston, acting through its City Council, is a “policy maker”; or TIRZ 17 and the Authority acting through their unified board, is the other “policy maker”; or TIRZ 17 board decisions (CIPs and budgets) are presented to City Council, which approves them in City Ordinances, 28 are ordinances, decisions or policies under Monell . Furthermore the City’s action in approving the project plans and the TIRZ actions in proposing project plans are the “moving force” in the constitution violations under Monell because they led to the flooding of Plaintiffs’ homes.
The due process clause, in addition to “ ‘guaranteeing] more than fair process,’ ” also “cover[s] a substantive sphere.” County of Sacramento v. Lewis, 523 U.S. 833, 840 , 118 S.Ct. 1708 , 140 L.Ed.2d 1043 (1998). “[T]he touchstone of due process is the protection of the individual against arbitrary action of government,” whether the fault lies in a denial of fundamental procedural fairness or in the exercise of power without any reasonable justification in the service of a legitimate governmental objective. Id. at 845-46 , 118 S.Ct. 1708 .
The Fifth Circuit has concluded that a substantive due process claim has two elements: (1) whether the plaintiff has been deprived of a constitutionally protected right, and (2) whether the governmental action is rationally related to a legitimate governmental interest. Mikeska v. City of Galveston, 451 F.3d 376, 379 (5th Cir. 2006). A property right in one’s home, which Plaintiffs have alleged, is constitutionally protected and sufficient for substantive due .process. Id. The remaining question for this Court is “[w]hether Plaintiffs have alleged sufficient facts, liberally construed, that call into question whether Defendants have a rational basis for approving TIRZ drainage projects and deferring residential projects, given their knowledge about flooding risks and the need for regional detention in the neighborhoods surrounding TIRZ 17.” # 11 at p.18. Plaintiffs urge the Court to allow additional factual development before making a determination. ■
Plaintiffs state that they do not object to remedying of blight for the TIRZ 17 community as long as it is not transferred to *788 surrounding communities, of which they do complain. These latter activities transferring the blight to their homes are the basis of Plaintiffs’ due process claim and they have no rational basis. The rational basis inquiry is made in reference to the decisions, actions, inactions and approvals of the City of Houston and TIRZ 17 year after year regarding reducing flooding in TIRZ 17 but failing to relieve it in Plaintiffs’ residential areas. Plaintiffs argue that spending tens of millions of dollars of public money to improve flooding in one area that directly causes increased flooding in adjacent areas without any effort to alleviate it is irrational, arbitrary, and an abuse of governmental power.
Plaintiffs continue to insist they have stated a substantive due process claim under the state-created-danger theory. Although the Fifth Circuit has not adopted it, the Circuit has defined its parameters under the substantive due process clause: “a plaintiff must show the defendants used their authority to create a dangerous environment for the plaintiff and that defendants acted with deliberate indifference to the plight of the plaintiff.” Scanlan, 343 F.3d at 537-38 . See also Johnson v. Dallas I.S.D., 38 F.3d at 200 (explaining that every court to have accepted the theory has “uniformly held that state actors may be liable if they created the plaintiffs’ peril, increased their risk of harm, or acted to render them more vulnerable to danger.”). Plaintiffs contend that they have pled facts that adequately support the state-created danger theory in the face of a Rule 12(b) (6) challenge: (1) Defendants’ actions have created a dangerous environment for Plaintiffs by sending floodwaters into the neighborhoods without instituting any drainage improvements as protection to offset the floodwaters; and (2) Defendants acted with deliberate indifference by ignoring Plaintiffs’ repeated and vocal complaints and numerous engineering studies — which Defendants, themselves, commissioned — showing the desperate need of flood relief and a worsening situation.
TIRZ- erroneously insists that Plaintiffs’ Fourteenth Amendment claim is a “mislabeled” takings claim that is not ripe. A takings claim requires the denial of'just compensation for property loss.. Plaintiffs here have not alleged they. are seeking damages. The Fifth Circuit has held that “substantive due process claims alleging deprivations of property are not necessarily subsumed under the Takings Clause.” Simi Invs. Co. v. Harris County, 236 F.3d 240, 248 (5th Cir. 2000) (discussing John Corp.’s holding) (affirming district- court’s granting, of damages to a .plaintiff for a substantive due process claim even after the plaintiff admitted its takings claim was not ripe). Plaintiffs, however, assert that the Takings Clause does not apply to the present case.
Plaintiffs also insist that they state a cause of action for substantive due course of law under the Texas Constitution when the government deprives individuals of constitutionally-protected rights by an1 arbitrary use -of its power, and that such a claim for protection is congruent with one under the United States Constitution. They have stated a claim under the Texas Constitution in alleging that they have a property interest in their homes, that Defendants’ actions arbitrarily favored commercial property interests over their residential property interests, and Defendants’ actions lack a rational basis in failing to provide flood relief for Plaintiffs after sending stormwaters into their neighborhoods.
Plaintiffs maintain that they "have also stated a claim for an unreasonable Fourth Amendment seizure of their property by the government in using the public fisc to *789 send stormwater into Plaintiffs’ private, real-property homes where no flooding had previously occurred.
Plaintiffs also contend that the federal standard for entitlement to injunctive relief (plaintiff has suffered an irreparable injury; the remedies available at law are inadequate to compensate for that injury; given the relative hardships a remedy in equity is warranted; and the public interest would be served by a permanent injunction) is not applicable for Rule 12(b) motions. If the Court decides to apply it, Plaintiffs cite as an irreparable injury that Plaintiffs’ homes have flooded multiple times, as an inadequate remedy at law that Plaintiffs have spent thousands of dollars for repairs with each flood, and feel unsafe in their own homes for fear of rain entering them; after all the harm to plaintiffs, the equities balance in their favor; and the continuing nature of Plaintiffs’ injuries render a remedy of money damages inadequate.
Plaintiffs maintain that they have properly pleaded a controversy between the parties for a claim under the Federal Declaratory Judgment Act. American States Ins. Co. v. Bailey, 133 F.3d 363, 368 (5th Cir. 1998) (“A federal court may not issue a declaratory judgment unless there exists ‘an actual controversy.’ ”).
In addition, Plaintiffs assert their § 1983 claims are not time-barred. Defendants have prematurely challenged limitations because they sufficiently allege facts showing that Defendants’ actions are ongoing and that their 1983 claim did not accrue until less than two years before they filed suit. “Because the statute of limitations is an affirmative defense and not a pleading requirement, it is an issue that must be resolved through discovery and summary judgment or trial.” Frame, 657 F.3d at 240 . Thus they should not be dismissed before the opportunity for discovery and summary judgment motion practice. Moreover federal law governs when the cause of action accrues, that is “when the plaintiff becomes aware he has suffered an injury or has sufficient information to know that he has been injured.” Brummett v. Camble, 946 F.2d 1178, 1184 (5th Cir. 1991). Under the continuing violation doctrine, the Supreme Court has held that claims “will not be time barred so long as all acts which constitute the claim are part of the same unlawful [ ] practice and at least one act falls within the time period.” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 122 , 122 S.Ct. 2061 , 153 L.Ed.2d 106 (2002); Havens Realty Corp v. Coleman, 455 U.S. 363, 380-81 , 102 S.Ct. 1114 , 71 L.Ed.2d 214 (1982); Jackson v. Galan, 868 F.2d 165, 168 (5th Cir. 1989) (applying continuing violation doctrine to § 1983 due process claim . and finding lawsuit was timely as to most claims and “was not barred for purposes of injunctive and declaratory relief’); Dews v. Town of Sunnyvale, Texas, 109 F.Supp.2d 526, 563 (N.D. Tex. 2000) (applying continuing violation doctrine to § 1983 claim and finding no limitations bar). Plaintiffs assert the doctrine applies here. Plaintiffs "have pled “continuous, unlawful acts by Defendants and identified “at least one violation that is within the statute of limitations.” SEC v. Jackson, 908 F.Supp.2d 834, 873 (S.D. Tex. 2012). The TIRZ 17 Board of Directors typically submits CIPs to the City Council for each calendar year, and for the 2015 calendar year the City Council approved the CIP in December 2014 — less than two years from when Plaintiffs filed their suit. First Am. Compl. ¶ 53 (citing Exh. D). That CIP contemplated projects for TIRZ 17, but no flood control projects to benefit Plaintiffs’ residential nei

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/7244112. Public record. Not legal advice.