Cain v. City of Conroe

CARYN SUZANN CAIN, Appellant v. THE CITY OF CONROE, TEXAS, JEFF CHRISTY, STEVE HURD,AND SHANNON WARRIOR, Appellees

NO. 09-19-00246-CV

Court of Appeals Ninth District of Texas at Beaumont

Submitted on May 6, 2020

November 25, 2020

On Appeal from the 410th District Court Montgomery County, Texas

Trial Cause No. 18-05-05808-CV

MEMORANDUM OPINION

Pro se appellant Caryn Suzann Cain brings this interlocutory appeal from the trial court's order granting appellees' motion to dismiss, plea to the jurisdiction, and traditional motion for summary judgment. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(5), (8). We affirm the trial court's judgment dismissing Cain's claims against appellees, the City of Conroe, Texas, Jeff Christy, Steve Hurd, and Shannon Warrior.

BACKGROUND

In May 2018, Cain filed a pro se civil case against the Conroe Police Department ("the Department") alleging police negligence in their investigation and disposal of her complaints regarding several incidents involving disputes with her neighbors at her apartment complex. In August 2018, the trial court issued a show cause order requesting Cain to show good cause why the case should not be dismissed for want of prosecution. Cain responded and argued that the Department had failed to render police assistance and file an incident report after she was allegedly assaulted by her neighbor's dog, and that the Department showed bias towards her neighbor, a state correctional officer, who allegedly continued to harass her over a period of eighteen months. According to Cain, the Department lacked immunity due to its "special relationship" and "state-endangered liability" and because the Department's actions were intentional, oppressive, devious, obstructive, and violated constitutional law and her civil rights.

Cain filed an amended petition, adding the City of Conroe ("the City") as a defendant, alleging that the City is accountable for alleged gross police misconduct, including abuse of official capacity, oppression, and constitutional violations, perpetuated by the Department and Officers Steven Hurd and Shannon Warrior. Cain's amended petitions added Jeff Christy, the Chief of the Department, andOfficers Hurd and Warrior as defendants in her suit.¹ Cain alleged that she depended upon the Department's assistance to comply with her Apartment Lease Agreement's requirement that she obtain an incident report for insurance purposes. According to Cain, Hurd had a premeditated discriminatory mindset against her and favored her neighbor because he was a correctional officer, and Cain maintained that Hurd intimidated her and implied that she should not call the Department for assistance. Cain argued that Warrior exhibited the same mindset, refused to issue an incident report, and "victim-shamed" her. Cain asserted that the Department ignored her complaints about Hurd and Warrior's "police bias" towards her neighbor, and that her neighbor continued to harass her, forcing her to move. According to Cain, she later discovered that Hurd and Warrior had allegedly filed false internal reports misconstruing her complaints.

In her amended petitions, Cain alleged that she was suing defendants for use of excessive force in violation of the Fourth Amendment, inflicting cruel and unusual punishment under the Eighth Amendment, and depriving her of her rights, privileges, property, due process, and/or equal protection of law pertaining to the Fifth and Fourteenth Amendments. According to Cain, defendants violated 42 U.S.C. §§ 1981 and 1983 by denying local government law enforcement services toa disabled person due to defendants' unlawful attempt to hide a special relationship with her neighbor. Further, the terms of her Lease Agreement stated that the Department was to provide law enforcement services as needed to her apartment complex. Cain also alleged that the City had violated the Texas Tort Claims Act ("TTCA") and that her personal injuries were caused by the City's inaction, the negligence of its law enforcement, the use of the City's motor-driven police vehicle, and a condition or use of the City's tangible real or personal property. See Tex. Civ. Prac. & Rem. Code Ann. § 101.021.

Cain alleged that the City and the Department conspired against her, which she contends is evidenced by documentation proving abuse of official capacity, evidence tampering and disposal, and false reporting, and that the City's motive was to hide the Department's special relationship with her neighbor. According to Cain, the City is liable for damages arising from its governmental function of police protection, and the City's violation of constitutional law and discrimination against her, a disabled person, waived the City's immunity from suit.

The City filed an answer alleging that sovereign, qualified, and official immunity protected it from liability; Cain's claims were not actionable under the TTCA; and the actions about which Cain complains do not constitute a constitutional violation. The City also alleged that Cain's claims against Christy in his official capacity were redundant of her alleged causes of action against the City. Hurd andWarrior filed an answer alleging that sovereign, qualified, and official immunity protected them from liability. Cain filed a response alleging that Hurd and Warrior acted outside the scope of discretionary authority and perpetrated unlawful, wrongful, and negligent actions that waived their immunity.

Defendants filed a motion to dismiss, plea to the jurisdiction, and traditional motion for summary judgment. Defendants argued that the state law causes of action against Christy, Hurd, and Warrior in their official capacities are redundant of Cain's claims against the City and should be dismissed under section 101.106(e) of the TTCA. See id. §§ 101.106(e), 101.021. Defendants maintained that the trial court did not have subject matter jurisdiction over Cain's state law claims because they did not fall within the exceptions that create a waiver of liability under the TTCA. According to defendants, Cain's allegations that Warrior used her patrol car and her patrol car's communication equipment or cellphone device while responding to the incident are not sufficient to allege a cause of action under the TTCA, because there is no nexus between the use of the vehicle or the property and Cain's alleged injuries. Defendants argued that Cain's intentional tort claims are exempted from the TTCA's waiver of immunity, and that under Texas law, police officers have no special duty to make an arrest on behalf of an injured person. In their traditional motion for summary judgment, defendants argued that Cain's claims for violations of her civilrights should be dismissed, because there is no constitutional right to an investigation or prosecution of an alleged criminal offense.

Cain filed a response, arguing that defendants' motion to dismiss and summary judgment did not fully address each of her causes of action. Cain alleged that a genuine issue of material fact exists regarding the fabrication of evidence and bad faith spoliation due to Hurd submitting a false call log entry and the City destroying audio recordings of Cain's conversations with dispatch and Hurd. According to Cain, defendants are not entitled to summary judgment on her claims that their actions violated her Fifth and Fourteenth Amendment rights, because defendants' immunity was waived due to their constitutional violations. Cain also argued that the City's immunity was waived under the TTCA, because a police vehicle was used and that her federal claims show that the defendants violated 42 U.S.C. § 1983 due to their alleged de facto policy of concealing and suppressing an investigation into police misconduct and maintaining a code of silence.

Defendants replied to Cain's response and asserted that the Fifth Circuit has never recognized a state-created danger claim, and that Cain's claims that defendants created a danger must fail because Cain was not placed in any danger. Defendants argued that the officers investigated Cain's complaints and determined that no crimes were committed. Defendants further argued that the City was not liable for alleged constitutional violations by failing to take additional actions after theincidents, because Cain failed to show that the City was the moving force behind the alleged violations. According to defendants, Cain is merely dissatisfied with the response to her complaints, and even Cain's former attorney withdrew from representing her due to the lack of facts that would support Cain's contention that a crime had been committed. Defendants argued that Cain failed to establish a causal connection between the City and the alleged deprivation of her constitutional rights. The trial court granted defendants' motion to dismiss, plea to the jurisdiction, and traditional motion for summary judgment and dismissed Cain's claims against defendants with prejudice, and Cain appealed.

Standard of Review and Applicable Law

A plea to the jurisdiction is a dilatory plea, which governmental entities may use to challenge a court's power to resolve the merits of a plaintiff's claims. See Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). Governmental immunity protects governmental units of the State from suit. Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542 (Tex. 2003). Unless the governmental unit has consented to suit, a trial court lacks subject matter jurisdiction to consider a claim against it. Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 696 (Tex. 2003); see also Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225-26 (Tex. 2004). Whether subject matter jurisdiction exists is a question of law, and we review the trial court's ruling on a plea to the jurisdiction de novo. State v. Holland, 221S.W.3d 639, 642 (Tex. 2007); Miranda, 133 S.W.3d at 226, 228. The plaintiff must plead facts that affirmatively demonstrate that governmental immunity...