Doe v. SullivanDoe v. Sullivan
- Reporters:
- ,
- Before:
- Wood
MEMORANDUM OPINION
JOHN H. WOOD, Jr., District Judge.
Plaintiff brings this suit pursuant to Title
I.
SOVEREIGN IMMUNITY OF STATE
In the recent landmark opinion of Quern v. Jordon-U.S.-, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979), the United States Supreme Court encountered a case arising out of the State of Illinois involving the application of the immunities extended by the Eleventh Amendment to the States and their subdivisions. The Court, following a thorough discussion of prior сase law on the subject, stated that “[w]e simply are unwilling to believe . . . that Congress intended by the general language of Sec. 1983 to override the traditional sovereign immunity of the Statеs,” Id. at-, 99 S.Ct. at 1145 and couched its holding in the following language:
Section 1983 does not explicitly and by clear language indicate on its face an intent to sweep away the immunity of the States; nor does it have a history which focuses dirеctly on the question of state liability and which shows that Congress considered and firmly decided to abrogate the Eleventh Amendment immunity of the States. Id. at -, 99 S.Ct. at 1147.
In discussing its prior rulings, the Court cited Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974) which held that a suit in Federal Court by privatе parties seeking to impose a liability which must be paid from public funds in the State Treasury is barred by the Eleventh Amendment. Id. at 663, 94 S.Ct. 1347, and Monell v. Department, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), which was “limited to local government units which are not considerеd part of the State for Eleventh Amendment purposes.” Id. at 690, n. 54, 98 S.Ct. at 2035-2036. See Bogard v. Cook, 586 F.2d 399 (5th Cir., 1978). In Bogará the Fifth Circuit reiterated that Monell was “limited to local government units which are not considered a part of the state for eleventh amendment purрoses.” Id. at 410.
The
Monell
Court further stated that a local government (in that case a municipality) could not be held liable solely because it employs a tortfeasor or under the theоry of respondeat superior.
Id.
98 S.Ct. at 2038. Moreover, in
Rizzo v. Goode,
423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976), it was held that the nonfeasance of a high mana
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gerial official is not a sufficient basis for assessing damages or granting injunctive relief against that official. The Court determined that there is a necessity of showing an actual involvement of the official in the action upon which the action under
In the recent case of
Zargoza v. City of San Antonio,
464 F.Supp. 1163 (D.C.1979), the plaintiff brought suit under
A. DERIVATIVE IMMUNITY OF COUNTY
It is well settled that where the County Judge and Commissioners are sued in their official capacities, as here, the suit is in effect a suit against the County.
Cobb v. H. C. Burt & Co.,
241 S.W. 185, 190 (Tex.Civ.App.-Beaumont 1922, no writ). The County is, of course, a legal subdivision of the State,
The county is merely an arm of the state. It is a political subdivision thereof. In view of the relation of a county to the state, the state may use, and frequently does use, a county as its agent in the discharge of the State’s functions and duties. Id. at 1015.
It has been held that counties are created by the sovereign will of the State, without special regard to the will of those who reside within them, Orndorff v. State, 108 S.W.2d 206, 209 (Tex.Civ.App.-El Paso 1937, writ ref’d); Bexar County v. Linden, 110 Tex. 339, 220 S.W. 761, 763 (1920), and that they exist for the purpose of discharging the State’s duties toward its inhabitants. Chambers v. Gilbert, 17 Tex.Civ.App. 106, 42 S.W. 630, 632 (Tex.Civ.App.-1897, writ ref’d); Bexar County v. Linden, supra, 220 S.W. at p. 763.
The powers conferred by the State upon the County are in the nature оf duties, Orndorff v. State, supra, at p. 109, and the counties are the agencies for the administration of matters that are of State concern, including the collection of taxes, the prоmotion of education, construction and maintenance of public highways, and the care of the poor, rather than matters of municipal concern or the concern of any particular locality. Bexar County v. Linden, 110 Tex. 339, 220 S.W. 761, 763 (1920). As an integral part of the State, a county is endowed with sovereignty. Collingsworth County v. Myers, 35 S.W. 414, 415 (Tex.Civ.App.-1896, no writ). Since the instant suit is thus in effect a suit against El Paso County, it must necessarily be dismissed under the theory of immunity.
B. DERIVATIVE IMMUNITY OF COUNTY COMMISSIONERS
An examination should also be made of the duties and responsibilities of the Commissioners of a County. The County Commissioners Court exercises such powers and jurisdiction over county business as is conferred by the Constitution and laws of
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the State,
Travis County v. Matthews,
235 S.W.2d 691, 697 (Tex.Civ.App.-Austin 1950, writ ref’d n. r. e.), and the Texas Supreme Court has held that the powers and duties of the County Commissioners Court only extends to the business of the county entrusted to it by constitution or statute.
Canales v. Laughlin,
147 Tex. 169, 214 S.W.2d 451, 453 (1948). Since the legislature has codified the powers and duties of the Commissioners Court in Vernon’s Annotated Tеxas Statute 2351, this Statute provides the touchstone upon which to determine whether the purported acts alleged herein fall within the scope of the duties or responsibilitiеs of the Commissioners Court. In order to invoke the application of
“provide and keep in repair court houses, jails and all necessary public buildings.”
Howevеr, this Court refuses to consider the proposition as reasonable that the defendant County Commissioners propagated a policy or custom which intentionally and knowingly rеsulted in the complained of injuries to the plaintiff. In fact, such is not the contention of the plaintiff, but instead said Complaint is couched in terms of ordinary negligence. Such an allеgation is not sufficient to overcome the immunity granted to the County Commissioners.
C. IMMUNITY OF COUNTY JUDGE
Since Judge Moore was County Judge at all times relevant herein and it has been held that the members of the Commissioners Court may claim the immunities incident to a Court of general jurisdiction, Gaines v. Newbrough, 12 Tex.Civ.App. 466, 34 S.W. 1048, 1049-1050 (Tex.Civ.App.-1896, writ ref’d), the subject litigation is barred under the theory of judicial immunity.
There is no question but that through the invocation of sovereign immunity, judicial immunity, statutory and case law limitations and the nature of the claims of the plaintiff herein, that the plaintiff has failed to state a claim or a cause of action against this defendant.
D. DERIVATIVE IMMUNITY OF THE COUNTY SHERIFF
The Sheriff is an elected officer chosen at general election by the qualified voters of the County and, as such, is a subdivision of the County.
II.
NATURE OF CASE
The plaintiff’s cause of action herein is nothing more than a simple negligence case couched in Sec. 1983 terms in an attempt to invoke Federal Court jurisdiction and thus the use of Sec. 1983 herein constitutes a jurisdictional subterfuge for an attempted claim in negligence.
Sanders v. Independent School District,
459 F.2d 51, 52 (10th Cir. 1972). In Paragraрh IX of the plaintiff’s Original Complaint he states the true nature of his attempted claim when he characterizes the acts of the defendants as being negligent by stating “Defendants . were negligent in that they failed to exercise reasonable care . . . ” It is well settled that not every tort or wrong constitutes a constitution of a civil right,
Atkins v. Lanning,
556 F.2d 485, 489 (10th
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Cir. 1977);
Wells v. Ward,
470 F.2d 1185, 1187 (10th Cir. 1972);
Carter v. Chief of Police,
437 F.2d 413, 415 (3rd Cir. 1971), and the Civil Rights Act cannot be used аs a jurisdictional subterfuge for traditional lawsuits.
Lopez v. Luginbill,
483 F.2d 486, 489 (10th Cir. 1973). The Court in
Phillips v. Fisher,
445 F.Supp. 552, 557 (D.Kan.1977), stated that a plaintiff’s attempt to transform a State Court litigation into a Federal civil rights action via conclusory allegatiоns will fail.
Id.
at 557. The plaintiff has merely attempted to invoke Federal Court jurisdiction under
For the reasons stated above the plaintiff’s cause of action as to Sheriff Mike Sullivan, Jr., County Judge T. Udell Moore, County Commissioners Chuck Mattox, Richard Telles, Clyde Anderson and Rogelio Sanchez, and as to the El Paso County Jail Guards, respectively, is hereby DISMISSED with prejudice.