St. Maron v. City of Houston
Citation78 F.4th 754
Date Filed2023-08-21
Docket22-20019
Cited26 times
StatusPublished
Full Opinion (html_with_citations)
Case: 22-20019 Document: 00516866428 Page: 1 Date Filed: 08/21/2023
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
August 21, 2023
No. 22-20019 Lyle W. Cayce
Clerk
St. Maron Properties, L.L.C.; Yang Su, doing business as
Re-Mart Investment; John Winkler; Jose M. Gallegos,
PlaintiffsâAppellants,
versus
City of Houston; Ella Park Terrace Civic Club,
DefendantsâAppellees.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:19-CV-900
Before Dennis, Elrod, and Ho, Circuit Judges.
James C. Ho, Circuit Judge:
A group of property owners alleges that the Mayor of Houston, the
City Council, and the City Attorney concocted a scheme to trespass on and
damage their properties to benefit neighboring residentsâall without
permission, compensation, or due process. The property owners allege that
the City used their empty lots as a dumping ground for construction
materials, thereby rendering their land unable to absorb water. As a result,
neighboring residences were frequently flooded over subsequent decades.
After numerous complaints from the neighboring residents, the Mayor and
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City Council directed city officials to conduct various remediation efforts on
the lots, thereby damaging the propertiesâall without the consent of the
owners.
The property ownersâJose M. Gallegos, John Winkler, Yang Su
(doing business as Re-Mart Investment), and St. Maron Propertiesâ
brought, inter alia, § 1983 claims against the City under the Takings Clause,
the Due Process Clause, and the Equal Protection Clause, as well as state law
tort and statutory claims. The district court dismissed the state law claims as
barred by sovereign immunity. It also dismissed the § 1983 claims under Rule
12(b)(6) for failure to satisfy the requirements for municipal liability under
Monell v. Depât of Soc. Servs., 436 U.S. 658 (1978).
We affirm the dismissal of the state law claims. But we reverse the
dismissal of the § 1983 claims.
Under Monell, a § 1983 plaintiff may not proceed against a
municipality unless the injury was caused by an official policy of the
municipality. But here, the property owners allege that city officials violated
their rights at the specific direction of the Mayor and the City Council.
That is enough to establish liability under Monell. âIf the decision to
adopt [a] particular course of action is properly made by th[e] governmentâs
authorized decisionmakers, it surely represents an act of official government
policy.â Pembaur v. City of Cincinnati, 475 U.S. 469, 481 (1986).
Accordingly, we hold that the property owners are entitled to proceed
against the City on their federal claims.
I.
For purposes of this appeal, we accept the factual allegations in Plain-
tiffsâ complaint as true. See, e.g., Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
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Before Plaintiffs acquired the lots, the City used the land as a dumping
ground for dirt and road construction debris. As a result, the land compacted
into a mound raised eight-to-ten feet above the surrounding area. Because
the debris was composed of clay and construction materials, the land was un-
able to soak up rainwater.
Ella Park Terrace is a subdivision bordering the lots. When it rains,
water from the lots sheds onto the backyards of some Ella Park Terrace
homes.
For decades, Ella Park Terrace residents have complained to the City
about the resulting flooding. The City planned to remediate the flooding.
But the plan fell apart when the City couldnât afford to compensate Ella Park
Terrace homeowners for modifications to their backyards.
Eventually, the Houston Mayor brought the watershed issue to the
City Council on behalf of the Ella Park Terrace Civic Club (âElla Parkâ), a
civic association comprised of subdivision residents. The City Council then
directed the City Attorneyâs Office and Department of Public Works and En-
gineering (âPublic Worksâ) to find a means of alleviating the flooding.
With the Mayorâs and City Councilâs support, the City Attorneyâs
Office filed a lawsuit in county court on behalf of and in the name of Ella Park
against Plaintiff Gallegos. The lawsuit shifted blame for the watershed from
the City to Gallegos and sought injunctive relief accordingly. The City At-
torney represented Ella Park in every aspect of the lawsuit. And the Mayor
said on TV that âher legal team [was] throwing the [C]ityâs muscle behindâ
Ella Park.
The lawsuit alleged that all of the lots belonged to Gallegos. Gallegos
never appeared or answered. But the county court entered a permanent in-
junction anyway. The court found that Gallegos was properly served. But
Plaintiffs dispute that any of themâincluding either Gallegos or the
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predecessors-in-interest to Su and St. Maronâwas ever given notice prior to
the issuance of the challenged injunction. The county court also found
Gallegos was the owner of real property adjoining Ella Park; that he was re-
sponsible for the increased elevation causing water to stream onto Ella Park;
and that he created a public nuisance.
Among other things, the injunction ordered Gallegos to remediate the
watershed issue at his own expense and permitted Ella Park to enter the lots
or obtain enforcement by contempt of court if Gallegos failed to remediate.
Remediating in accordance with the injunction would have required Gallegos
to trespass onto the other Plaintiffsâ lots.
After Ella Park complained about the continued flooding, the City di-
rected and authorized Public Works to enter the lots to remediate the water-
shed. Public Works did so. But heavy rains the following year revealed that
stormwater did not flow as intended. So once again, Public Works entered
the lots without permission, engineering studies, assessments, easements, or
condemnation. Public Works used various motorized vehicles and machin-
ery to further modify the lots. These changes caused repeated flooding on
the lots, leading to mosquito and snake infestations. They have deprived
Plaintiffs of their use of their properties.
Plaintiffs sought the help of Houstonâs citizens helpline, Public
Works, and the City Attorneyâs Office, but received no response. So they
sued in state court. They argued that the injunction the City obtained on
behalf of Ella Park was frivolous and based on facts the City knew to be un-
trueânamely, that Gallegos owned all the lots, and that he caused the in-
crease in elevation.
The City removed when Plaintiffs asserted § 1983 claims, and then
moved to dismiss. The district court dismissed the federal claims under
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Monell. It dismissed the state law claims as barred by sovereign immunity.
Plaintiffs appealed.
II.
We begin with the federal claims. A district courtâs dismissal under a
Rule 12(b)(6) motion is reviewed de novo, âaccepting all well-pleaded facts as
true and viewing those facts in the light most favorable to the plaintiffs.â
Wolcott v. Sebelius, 635 F.3d 757, 763 (5th Cir. 2011) (quotation omitted). In
their detailed 44-page complaint, Plaintiffs allege that Houston policymakers
enacted an elaborate scheme which led to the unconstitutional taking of their
properties without just compensation or due process. We conclude that
Plaintiffs have sufficiently pled claims for municipal liability under § 1983.
âSection 1983 is not itself a source of substantive rights, but merely
provides a method for vindicating federal rights elsewhere conferred.â
Albright v. Oliver, 510 U.S. 266, 271(1994) (quotations omitted). It provides that any person who, under color of state law, deprives another of âany rights, privileges or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.â42 U.S.C. § 1983
. Municipalities are persons
susceptible to suit under § 1983, but they cannot be found liable on a theory
of vicarious liability or respondeat superior. Monell, 436 U.S. at 690â92.
To state a Monell claim against Houston, Plaintiffs must plead facts
that plausibly establish that â(1) an official policy (2) promulgated by the
municipal policymaker (3) was the moving force behind the violation of a
constitutional right.â PeĂąa v. City of Rio Grande City, 879 F.3d 613, 621(5th Cir. 2018) (quotation omitted). See also Monell,436 U.S. at 694
. We consider
each of these elements.
First, there are three ways to establish an official policy under Monell:
(1) written policy statements, ordinances, or regulations; (2) a widespread
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practice that is so common and well-settled as to constitute a custom that
fairly represents municipal policy; or (3) even a single decision may
constitute municipal policy in rare circumstances, when the official or entity
possessing final policymaking authority for an action performed the specific
act that forms the basis of the § 1983 claim. Webb v. Town of Saint Joseph, 925
F.3d 209, 214â15 (5th Cir. 2019). This case falls within the third category.
âIf the decision to adopt [a] particular course of action is properly
made by th[e] governmentâs authorized decisionmaker, it surely represents
an act of official government policy.â Pembaur, 475 U.S. at 481. This element is met if a plaintiff alleges that a âdeliberate choice to follow a course of action is made from among various alternativesâ by officials responsible âfor establishing final policy with respect to the subject matter in question.â Garza v. City of Donna,922 F.3d 626, 638
(5th Cir. 2019) (quotations
omitted).
Here, Plaintiffs allegeâand, in some instances, incorporate evidence
into their complaintâthat:
⢠The City Council had previously considered at least one other option
to remediate the watershed, but chose not to proceed, due to expense.
⢠The Mayor brought Ella Parkâs concerns about the watershed before
the City Council and directed the City Council to vote on the issue.
And the City Councilâat the direction of the Mayorâvoted to have
several city service departments address the issue.
⢠The Mayor and the City Council ratified the City Attorneyâs Officeâs
decision to pursue an injunction against Plaintiff Gallegos, â[d]espite
an abundance of optionsâ to remediate the issue.
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⢠At least one City Council member thanked the Mayor and City
Attorneyâs Office for the Cityâs âaggressive legal action on behalf of
Ella Park.â
⢠Houston filed and litigated the injunction action in the name of Ella
Park against Gallegos, despite the City Attorneyâs Office knowing that
Gallegos wasnât the owner of all the lots.
⢠The Mayor announced on TV that âher legal team [was] throwing the
[C]ityâs muscle behind [Ella Parkâs] legal efforts to fixâ the issues and
authorized the legal team to continue its efforts despite other options.
⢠The City Council explained that it was trying to assist the Ella Park
residents with remediation but needed to resolve some preliminary
issues.
⢠The City Council and City Attorneyârelying on the challenged
injunctionâdirected Public Works to enter into and modify the lots.
And Public Works explained to Plaintiff Winkler that it acted âwith
the supportâ of the Mayor and City Council.
These allegations establish that the Mayor and City Council made the
deliberate decision to use City services to get an injunction based on false
information, and then use that injunction to justify entering and modifying
Plaintiffsâ properties. Plaintiffs also specify that this approach was selected
from among various options. These allegations are sufficient to establish an
official policy under Monell.
Second, a plaintiff must âidentify those officials or governmental
bodies who speak with final policymaking authority for the local government
actor concerning the action alleged to have caused the particular
constitutional or statutory violation.â McMillian v. Monroe Cnty., Ala., 520
U.S. 781, 784â85 (1997) (quotation omitted). That inquiry is âdependent on
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an analysis of state law,â because the courtâs âunderstanding of the actual
function of a governmental official, in a particular area, will necessarily be
dependent on the definition of the officialâs function under relevant state
law.â Id. at 786.
Houston argues that Plaintiffs have failed to allege this prong because
they âdo not allege facts that any of the persons making the specific decisions
in the City public works or legal departments were final decisionmakers.â
But this misstates Plaintiffsâ claims. Fairly read, the complaint alleges that
Houston is liable because the Mayor and City Council directed the City
Attorneyâs Office and Public Works to carry out their unconstitutional
scheme. Cf. Webb, 925 F.3d at 217(âEven when an official with final policymaking authority does not directly act to set policy, a municipality may be liable in extreme factual situations when that official ratifies a subordinateâs decision, which requires more than the defense of a decision or action shown to be unconstitutional after the fact.â) (quotation omitted); Groden v. City of Dallas, Tex.,826 F.3d 280, 286
(5th Cir. 2016) (noting that
allegations that a policymaker âratified an unconstitutional policyâ may be
enough at the pleading stage and that under some circumstancesâlike a city
spokesman announcementâstatements to media may âallow[] for a
reasonable pleading inference that [a challenged] policy was attributable to
an official policy made by the policymaker of the cityâ).
The Mayor and City Council are final policymakers for the purpose of
Monell liability. The Houston Charter makes it clear that â[t]he governing
body of the City of Houston, Texas, shall be the City Council,â and that it
âshall be composed of the Mayor and . . . Council Members.â Houston,
Tex., Charter art. V, § 1. It further specifies that â[a]ll administrative
work of the city government shall be under the control of the Mayor.â Id. at
art. VI, § 7a. And it establishes that the âMayor shall have and exercise such
powers, prerogatives and authority, acting independently of or in concert
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with the City Council, as are conferred by the provisions of this Article or as
may be conferred upon him by the City Council.â Id. at art. VI, § 7.
Plaintiffs have plausibly alleged that the Mayor and City Council
directed and ratified the unconstitutional actions of City departments, and
the Houston Charter makes clear the Mayor and City Council have
policymaking authority. These allegations are sufficient to establish an
official policymaker under Monell.
Third, a plaintiff must allege âa direct causal link between the
municipal policy and the constitutional deprivation.â Piotrowski v. City of
Houston, 237 F.3d 567, 580(5th Cir. 2001). A plaintiff must also show âthe requisite degree of culpability,â which is at least âdeliberate indifference to the risk that a violation of a particular constitutional or statutory right will follow the decision.â Valle v. City of Houston,613 F.3d 536, 542
(5th Cir.
2010) (quotations omitted).
Here, Plaintiffs allege that Houston infringed on their rights to just
compensation under the Takings Clause of the Fifth Amendment, as well as
procedural due process and equal protection under the Fourteenth
Amendment.
âA property owner has an actionable Fifth Amendment takings claim
when the government takes his property without paying for it.â Knick v. Twp.
of Scott, Pa., 139 S. Ct. 2162, 2167(2019). Generally, a âproperty owner has suffered a violation of his Fifth Amendment rights when the government takes his property without just compensation, and therefore may bring his claim in federal court under § 1983 at that time.â Id. at 2168. Even temporary physical invasions into private property constitute per se physical takings, warranting compensation. See Cedar Point Nursery v. Hassid,141 S. Ct. 2063, 2080
(2021).
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Plaintiffs allege that Houston entered their properties on multiple
occasions and modified them by relying on the challenged injunction. The
allegations support the inference that the challenged injunction gave
Houston a justification to enter the lots without permission. And although
itâs fair to note that the City wouldâve had an independent right to enter the
lots if they had been declared a public nuisance, that doesnât alter the
analysis. After all, the county court only declared the lots a public nuisance
in the challenged injunctionâmeaning there wouldnât have been an
independent right to enter without the alleged scheme.
Plaintiffs argue that they were deprived of their Fourteenth
Amendment rights because none of them âwere given notice or an
opportunity to be heard prior to the taking of their property by [Houston]
under the guise of a declaration of nuisance.â Even assuming that Gallegos
was properly served, there are sufficient allegations to support the inference
that Houston violated the due process rights of the other property owners.
Procedural due process guarantees an âopportunity to be heard at a
meaningful time and in a meaningful manner.â Matthews v. Eldridge, 424
U.S. 319, 333(1976) (cleaned up). Plaintiffs alleged that, even though the City was aware that people other than Gallegos owned the lots, it directed the injunction case against him alone. As a result, the other lot owners had no opportunity to defend against the challenged injunction. Considering that the challenged injunction declared the lots a public nuisance and commanded Gallegos (or Ella Park) to enter into them in order to remediate the watershed, this amounts to a significant constitutional deprivation. It demonstrates âdeliberate indifference to the known or obvious factâ that a constitutional violation of the rights of the other property owners would result. Webb,925 F.3d at 219
.
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***
Plaintiffs have specifically alleged each of the elements of a Monell
claim. Accordingly, the district court erred in dismissing the § 1983 claims.
III.
We now turn to the state law claims. A district courtâs determination
of subject-matter jurisdiction is reviewed de novo. See In re FEMA Trailer
Formaldehyde Prods. Liab. Litig., 668 F.3d 281, 286 (5th Cir. 2012).
âSovereign immunity is jurisdictional.â Cozzo v. Tangipahoa Par.
CouncilâPresident Govât, 279 F.3d 273, 280(5th Cir. 2002). Sovereign immunity protects Texas and its political subdivisionsâincluding municipalities like Houstonâfrom suits for money damages. See Wasson Ints., Ltd. v. City of Jacksonville,489 S.W.3d 427, 429
(Tex. 2016) (Wasson
I).
When it comes to the sovereign immunity of municipalities in tort
actions, the Texas Supreme Court âhas distinguished between those acts
performed as a branch of the state and those acts performed in a proprietary,
non-governmental capacity.â Id. at 430. Plaintiffs argue that sovereign
immunity is nonexistent here because Houston was acting in a propriety
capacity since the City was acting on behalf of Ella Parkâa group of private
citizens.
â[G]enerally speaking, a municipalityâs proprietary functions are
those conducted in its private capacity, for the benefit only of those within its
corporate limits, and not as an arm of the government, while its government
functions are in the performance of purely governmental matters solely for
the public benefit.â Tooke v. City of Mexia, 197 S.W.3d 325, 343 (Tex. 2006)
(quotation omitted). Although this rule is well settled, the Texas Supreme
Court has recognized that difficulties may arise depending on the particular
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fact pattern presented. See City of Houston v. Shilling, 240 S.W.2d 1010, 1012
(1951).
The Texas Constitution authorizes the Legislature to âdefine for all
purposes those functions of a municipality that are to be considered
governmental and those that are proprietary, including reclassifying a
functionâs classification assigned under prior statute or common law.â Tex.
Const. art. XI, § 13(a). Texas courts âare very hesitant to declare
immunity nonexistent,â and thus âcarefully consider the statutory landscape
before doing so.â Wasson I, 489 S.W.3d at 437â38 (quotation omitted).
The Texas Tort Claims Act includes âsanitary and storm sewersâ in
its non-exhaustive list of governmental functions. Tex. Civ. Prac. &
Rem. Code § 101.0215(a)(9). See also City of Tyler v. Likes, 962 S.W.2d
489, 502(Tex. 1997) (acknowledging that prior to amendments to the Texas Tort Claims Act, common law classified storm sewer maintenance as proprietary). And under Texas law, the fact that the Texas Tort Claims Act lists âsanitary and storm sewersâ as a governmental function is dispositive. See Texas Depât of Transp. v. A.P.I. Pipe & Supply, LLC,397 S.W.3d 162
, 171 n.38 (Tex. 2013) (noting the âlegislative interpretation of âgovernmental functionsââ is âbindingâ in the âcontext of the Tort Claims Actâ). The Act explicitly states that the âproprietary functions of a municipality do not include those governmental activities listed.â Tex. Civ. Prac. & Rem. Code § 101.0215(c). So â[i]f a function is included in the nonexclusive list of governmental functions, it has been deemed governmental in nature by the legislature and [courts] have no discretion or authority to hold otherwise.â Roger v. City of Houston,627 S.W.3d 777
, 794 (Tex. App.âHouston 2021, no pet.). Because the Texas Tort Claims Act establishes that âsanitary and storm sewersâ are governmental functions, Plaintiffsâ argument is foreclosed here. A.P.I. Pipe,397 S.W.3d at 171
n.38.
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Alternatively, Plaintiffs make various arguments that Texas has
waived sovereign immunity for the claims here. None succeed.
To begin with, Plaintiffs argue that, even if Houston was acting within
a governmental capacity, it waived immunity by interjecting itself in
damages-seeking litigation. â[I]f the governmental entity interjects itself
into or chooses to engage in litigation to assert affirmative claims for
monetary damages, the entity will presumably have made a decision to
expend resources to pay litigation costs.â Reata Construction Corp. v. City of
Dallas, 197 S.W.3d 371, 375 (Tex. 2006).
But Reata establishes a narrow exception. In Reata, the City of Dallas
intervened in a negligence dispute to seek damages from a third-party
claimant. Id. at 373. It then invoked sovereign immunity in response to the third-party claimantâs claim against it.Id.
The Texas Supreme Court recognized that âit would be fundamentally unfair to allow a governmental entity to assert affirmative claims against a party while claiming it had immunity as to the partyâs claims against it.âId.
at 375â76. âIf the opposing partyâs claim can operate only as an offset to reduce the governmentâs recovery [under its own claim], [then] no tax resources w[ould] be called upon to pay a judgment, and the fiscal planning of the governmental entity should not be disrupted.âId. at 375
. So Dallas did not have immunity from suit as to counter-claims âwhich [we]re germane to, connected with, and properly defensive of the Cityâs claims, to the extent [the counter- claimantâs] claims offset those asserted by the City.âId. at 373
.
Reataâs narrow holding doesnât encompass the situation in this case.
Here Plaintiffs claim that Houston acted on behalf of private citizens in their
efforts to seek damages (and remediation) from Gallegos. Theyâre not
alleging that Houston sought damages in a way that would offset the fiscal
impacts of being subject to suit.
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Plaintiffsâ other arguments fare no better.
âIn a suit against a governmental unit, the plaintiff must affirmatively
demonstrate the courtâs jurisdiction by alleging a valid waiver of immunity.â
DART v. Whitley, 104 S.W.3d 540, 541 (Tex. 2003). And âa statute shall not
be construed as a waiver of sovereign immunity unless the waiver is effected
by clear and unambiguous language.â Tex. Govât Code § 311.034.
The Texas Tort Claims Act provides only a limited waiver for claims
arising out of negligence. It waives immunity for âthe property damage . . .
[that] arises from the operation or use of a motor-driven vehicle or motor-
driven equipment; and . . . the employee would be personally liable to the
claimant according to Texas law.â Tex. Civ. Prac. & Rem. Code
§ 101.021(1). Here, the injury is the taking of the property without
compensation or due process, which was not caused by the use of motor
vehicles. The district court did not err in dismissing the negligence claim.
Two of Plaintiffsâ claims are for intentional tortsâtrespass and civil
conspiracy. See Harris Cnty. v. Cypress Forest Pub. Util. Dist., 50 S.W.3d 551,
553(Tex. App.âHouston 2001) (trespass); Firestone Steel Prods. Co. v. Barajas,927 S.W.2d 608, 617
(Tex. 1996) (civil conspiracy). The Texas Tort
Claims Act doesnât apply to any claim âarising out of assault, battery, false
imprisonment, or any other intentional tort.â Tex. Civ. Prac. & Rem.
Code § 101.057(2) (emphasis added). So the district court did not err in
dismissing the trespass and civil conspiracy claims. 1
1
The district court dismissed the statutory claim for use of fraudulent court
records. Aside from their argument regarding the applicability of Reata to this case,
Plaintiffs donât address this issue in their opening brief. They have therefore abandoned
any other argument on this claim. See Yohey v. Collins, 985 F.3d 222, 224â25 (5th Cir.
1993). Moreover, at no point have Plaintiffs shown a waiver of immunity for claims under
this statute. The district court properly dismissed this claim.
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***
We affirm the district courtâs dismissal of the state tort and statutory
claims against Houston. We reverse and remand the dismissal of the § 1983
claims against Houston.
Plaintiffs also asserted state law claims against Ella Park, which the district court
likewise dismissed. Because neither party briefed this issue and Ella Park never appeared
at the district court, itâs not properly before us.
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