Jоhn Gerard QUINN, Plaintiff-Appellant v. Jesus Damian GUERRERO; Vincent Roberts; Aaron Howell; Aaron Smith; Barry Eaves; Donnie Williams; Drew Caudell; Jason Norton; Jesse Garcia; Ting Sun; Joel Purser; City of McKinney, Texas; Rex Redden, Defendants-Appellees
No. 16-41344
United States Court of Appeals, Fifth Circuit.
July 10, 2017
863 F.3d 353
We agree with the district court that Brinsdon‘s First Amendment rights were not violated by school officials reacting to the disruptions that had occurred and might continue. Qualified immunity was properly granted to Santos and Cavazos on the claim they violated Brinsdon‘s First Amendment rights by removing her from сlass.
AFFIRMED.
Thomas Phillip Brandt, John David Husted, John Francis Roehm, III, Esq., Fanning Harper Martinson Brandt & Kutchin, P.C., Dallas, TX, for Defendants-Appellees.
Before DAVIS, JONES, and SOUTHWICK, Circuit Judges.
LESLIE H. SOUTHWICK, Circuit Judge:
John Quinn originally sued individual police officers and the City of McKinney, Texas, in state court for claims arising from the execution of a search warrant on his home. The state court dismissed Quinn‘s claims against the officers and instructed him to replead to clarify whether he intended to assert federal claims. Quinn amended his petition to assert new claims under
FACTUAL AND PROCEDURAL BACKGROUND
The facts underlying the search of Quinn‘s home are disputed. According to Quinn, the City of McKinney‘s Special Weapons and Tactics (“SWAT“) Team forcibly entered his home around 12:06 a.m. on August 4, 2006, to execute a routine search warrant. Quinn‘s adult son Brian, who also lived in the home, was the subject of the warrant. Quinn argues the police had multiple opportunities to detain Brian in the days prior to the search but chose instead to execute a “violent SWAT raid in the middle of the night.”
Allegedly, the officers forcibly entered the home without first knocking or identifying themselves. The officers were dressed in dark, paramilitary uniforms, with no visible paraphernalia identifying themselves as police. They carried various military-grade weapons, including assault weapons and stun grenades, which are designed to temporarily blind, deafen, or otherwise incapacitate the subjects of a raid. The officers detonated at least two grenades, one of which “blew a hole in a wall and set [Quinn‘s] house on fire.”
The home was entirely dark at the time of the search, and Quinn was in his bedroom with the doors closed and latched. After hearing the commotion, he loudly asked the officers to identify themselves but got no response. At that point, Quinn retrieved a licensed handgun from his bedside table and moved to the center of the room. “At all times,” Quinn argues, the “handgun was pointed toward the floor with its safety mechanism fully engaged[.]” Officer Jesus Guerrero, on the other hand, argues that Quinn pointed the gun at him. In any event, Guerrero fired his weapon through the closed door, and one bullet struck Quinn‘s right hand. Quinn then fell to the floor, and Officer Rex Redden kicked in the bedroom door. At no time during this interaction did the officers ask Quinn to drop his gun or otherwise provide a warning.
Quinn believes the SWAT Team executed its raid in a violent manner “to exact retribution for [his] earlier filing of a civil-rights suit against the police[.]” Based on thе officers’ conduct, he argues “the raid and the shooting were intentional, tortious
On July 15, 2008, Quinn sued the officers and the City of McKinney in state court, alleging assault and battery against Guerrero; assault against the officers using the stun grenades; intentional infliction of extreme mental anguish, conspiracy, gross negligence, and negligence per se against the officers; and negligence against both the officers and the City. He also sought punitive damages and attorneys’ fees. The defendants filed special exceptions to the original petition, seeking clarification as to whether Quinn was asserting any federal claims. The City also moved to dismiss the claims against the officers under
Quinn amended his original petition on March 23, 2009, to include causes of action under
The defendants removed the case to federal court on April 10, 2009, under
On February 23, 2010, the district court stayed this case pending the outcome of parallel criminal proceedings against Quinn on charges of assault against a public servant and possession of a controlled substance. The jury acquitted Quinn of the assault but found him guilty of possession of cocaine, which police found locked in a safe in Quinn‘s bedroom during the raid. Quinn v. State, No. 05-12-00049-CR, 2013 WL 2152641 (Tex. App.—Dallas May 17, 2013, рet. ref‘d). The stay was lifted on April 11, 2014. After amending his complaint in 2009 and 2010, Quinn amended his complaint a third and final time on April 17, 2014. In his third amended complaint (the live complaint here), Quinn removed the names of defendant officers Vincent Roberts, Aaron Howell, Barry Eaves, Drew Caudell, Jesse Garcia, and Ting Sun.
The officers then filed motions to dismiss on various grounds under
Officers Roberts, Howell, Eaves, Caudell, Garcia, and Sun have moved to be dismissed from the appeal because Quinn failed to name them in his third amended complaint. Quinn opposes the motion, arguing that he removed some names from the case caption to “streamline” the litigation but fully intended to press his intentional-tort claims against all defendants. A panel of this court ordered the motion be carried with the case.
DISCUSSION
Quinn alleges fivе points of error on appeal. First, he argues the district court erred by denying the motion to remand because his original petition included factual allegations sufficient to invoke federal jurisdiction. As a result, he argues the defendants’ removal several months later was untimely. Second, he argues the state court erred in dismissing his intentional-tort claims against the officers; in turn, he alleges the district court erred by not reversing that dismissal. Third, he argues the district court erred by dismissing his federal claims against the officers on limitations grounds. In support, he argues the state court‘s dismissal of the officers was an interlocutory decision that did not fully remove the officers from the case. Fourth, he argues the district court erred by dismissing his claims against the City, which he believes are viable under state and federal law. Finally, Quinn argues he is entitled to punitive damages. We discuss each issue in turn.
I. Denial of Quinn‘s Motion to Remand
Ordinarily, we review de novo the district court‘s denial of a motion to remand. In re Hot-Hed Inc., 477 F.3d 320, 323 (5th Cir. 2007) (per curiam). Nonetheless, a party is not entitled to de novo review after failing to file written objections to the magistrate judge‘s R&R within a certain period of time. Rodriguez v. Bowen, 857 F.2d 275, 276-77 (5th Cir. 1988). To invoke the bar, the magistrate judge “must specifically advise the parties that objections must be so filed.” Id. at 277. If the parties then fail to file objections, we review only for plain error. Douglass v. United Servs. Auto. Ass‘n, 79 F.3d 1415, 1428 (5th Cir. 1996) (en banc), superseded on other grounds by
To succeed under plain-error review, Quinn must show (1) an error; (2) that is plain or obvious; (3) that affects his substantial rights. See United States v. Escalante-Reyes, 689 F.3d 415, 419 (5th Cir. 2012) (en banc). To establish an effect on his substantial rights, Quinn must show the outcome of the proceedings would have been different had the district court decided the issue the other way. See Puckett v. United States, 556 U.S. 129, 135 (2009). If the first three factors are satisfied, we have discretion to correct the error if it “seriously affects the fairness, integrity or public reputation of judicial proceedings.” Id. (alterations omitted).
Federal courts are courts of limited jurisdiction, having the power to hear only cases that present a federal question or are between citizens of different states. Arbaugh v. Y&H Corp., 546 U.S. 500, 513 (2006). Because the parties here are all Texas domiciliaries, removal jurisdiction must be based on a federal question. The plaintiff‘s
If an action brought in state court could have been brought in federal court originally, the defendant may remove the case to federal district court.
In considering the motion to remand, the magistrate judge found that Quinn‘s original petition “does not specifically list any federal causes of action or make any claims under federal law.” Despite vague references to excessive force and the United States Constitution, Quinn alleged only assault, battery, intentional infliction of extreme mental anguish, conspiracy, and negligence—all state-law claims. In fact, his only explicit reference to federal law concerned immunities the defendants may claim under the federal constitution or the Eleventh Amendment. Quinn‘s original complaint did not establish federal-question jurisdiction.
In response to the defendants’ special exceptions, the state court ordered Quinn to replead any federal claims he may wish to allege. Quinn then amended his petition to include claims arising under federal law, including violations of Section 1983. The defendants removed the case less than 30 days later. Removal was thus proper, and the district court did not err in denying Quinn‘s motion to remand.
To save his remand claim, Quinn argues his pleading included facts that would support federal claims, which was allegedly sufficient to begin the 30-day calendar for removal. We agree with the analysis of a similаr issue in an unpublished opinion of this court. See Cevallos v. Silva, 541 F. App‘x 390, 393 (5th Cir. 2013). There, the plaintiff alleged a “violation of his civil and constitutional rights” and that the defendants “acted under color of law.” Id. His allegations “were too ambiguous to establish federal question jurisdiction definitively.” Id. Quinn‘s references to excessive force and the City‘s failure to supervise are similarly too ambiguous to allege a federal question. Given the high bar imposed by plain-error review, the district court did not err in denying Quinn‘s motion to remand.
II. Refusal to Reverse the State Court‘s Dismissal of Quinn‘s Intentional-Tort Claims Against the Officers
In 2008, the state court dismissed the officers under
As a threshold matter, Quinn complains that his motion for reconsideration in the district court was submitted after the magistrate judge issued his R&Rs, so “there could be no analysis [the district court] could have ‘adopted’ on that point.” His allegations amount to an assertion that the district court failed in its constitutional obligation to conduct a de novo review of the magistrate judge‘s conclusions. But the magistrate judge did discuss the dismissal of the officers in his earlier R&R. The report focused on the statute of limitations, but the magistrate judge stated that “even if the amended pleading were filed within the statute of limitations, application of the Texas statute would require that [the officers] be dismissed here, and again, they would be dismissed with prejudice.” His analysis is supported by numerous citations to cases and applicable statutes. Contrary to Quinn‘s assertion, thеn, there was analysis for the district court to adopt.
The district court‘s refusal to reconsider the state court‘s decision is subject to review for an abuse of discretion. Fletcher v. Apfel, 210 F.3d 510, 512 (5th Cir. 2000). The focus of such review is whether the district court acted reasonably. Templet v. HydroChem Inc., 367 F.3d 473, 477 (5th Cir. 2004). On the other hand, the state court‘s order dismissing the defendants amounts to a dismissal for lack of subject-matter jurisdiction. We thus afford de novo review to the merits of the state court‘s dismissal. See Zephyr Aviation, L.L.C. v. Dailey, 247 F.3d 565, 570 (5th Cir. 2001). For clarity, we analyze each decision.
We discuss the district court‘s procedural denial first. In federal court, any “motion to alter or amend a judgment must be filed no later than 28 days after the entry of the judgment.”
Here, Quinn engages in an elaborate calculation to demonstrate that his motion before the district court was timely. By subtracting the amount of time the case was stayed and the days the court spent considering other motions, he contends that he had only 49 possible days in which to make his Rule 59(e) motion and that his motion was made on day 44 of 49. Despite the appeal to equity, Quinn‘s claims were brought far too late to warrant reconsideration. Quinn missed the 28-day deadline by several years, rendering his motion a nullity. Further, Quinn failed to raise new arguments, instead attempting to rehash the same argument presented to and rejected by the state court in 2008. The district court did not commit an abuse of discretion by denying Quinn‘s motion for reconsideration. See Simon v. United States, 891 F.2d 1154, 1159 (5th Cir. 1990).1
We now turn to the merits of the
(a) The filing of a suit under this chapter against a governmental unit constitutes an irrevocable election by the plaintiff and immediately аnd forever bars any suit or recovery by the plaintiff against any individual employee of the governmental unit regarding the same subject matter. . . .
(e) If a suit is filed under this chapter against both a governmental unit and any of its employees, the employees shall immediately be dismissed on the filing of a motion by the governmental unit.
The Texas Supreme Court addressed this issue in a suit in which former employees sued a school district and its superintendent for wrongful discharge and various common-law torts. Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 654-55 (Tex. 2008). Although the court focused on Section 101.106(b), it discussed Subsection (e) also. Id. at 658-59. It held that the superintendent would be entitled to dismissal of the intentional-tort claims against him upon the district‘s filing of a motion to that effect. Id. The court recognized the election-of-remedies provision requires litigants to make a difficult choice, but it concluded that the legislature intended to reduce the costs associated with defending duplicative lawsuits. Id. at 657.
We later applied Garcia to decide a similar case. Bustos v. Martini Club Inc., 599 F.3d 458, 462-63 (5th Cir. 2010).
Garcia and Bustos control here. As was the case in Bustos, Quinn asserted state-law claims against the City and the officers. “[A] suit asserting common law claims against a Texas governmental unit . . . is considered to be under the TTCA.” Bustos, 599 F.3d at 462. Consequently, Section 101.106(e) applies, and the officers were entitled to dismissal upon the City‘s motion. That motion was filed. The state court did not err in dismissing the common-law claims against the officers.
III. Dismissal of Quinn‘s Federal Claims Against the Officers
We review ”de novo a district court‘s order on a
We have already determined that the state court‘s dismissal of the officers under Section 101.106(e) was proper because of the election-of-rеmedies rule. The court ordered the officers be “dismissed with prejudice,” so the officers were no longer parties. Under
Beyond the question of Quinn‘s right to appeal the dismissal, a different rule of law applies to bar Quinn‘s Section 1983 claims. “Texas courts have held that as a general rule, where a person is prevented from exerсising his legal remedy by the pendency of legal proceedings, the time during which he is thus prevented should not be counted against him in determining whether limitations have barred his right.” Jackson v. Jackson, 950 F.2d 263, 265 (5th Cir. 1992). For example, the statute of limitations on a prisoner‘s Section 1983 claims may be tolled if he is first required to exhaust state remedies. Id. at 265-66. It follows, then, that the statute of limitations is not tolled during the pendency of one suit if that suit does not hinder the claimant‘s ability to bring another. See id.
Another panel of this court previously addressed a situation like this in an unpublished decision, whose reasoning we conclude is sound. Gant v. Garofano, 119 F. App‘x 602, 602 (5th Cir. 2004). The district court dismissed prisoner Gant‘s Section 1983 claims as time-barred. Id. He had
To save his federal claims against the officers, Quinn asks us to apply the relation-back doctrine. The technical pleading errors Quinn asks us to forgive are not the type of errors that relation back is designed to fix, such as misnomer and misidentification. See Krupski v. Costa Crociere S.p.A., 560 U.S. 538, 550 (2010); Univ. of Tex. Health Sci. Ctr. at San Antonio v. Bailey, 332 S.W.3d 395, 400-01 (Tex. 2011). Quinn correctly identified the defendants he wished to sue. The pleading error was failing to allege a federal cause of action until it was too late. In other words, relation back is designed to ameliorate certain kinds of mistakes, but Quinn made a tactical choice to omit his federal claims until March 2009. As a result, the relation-back doctrine does not apply.
Finally, Quinn argues the concept of identity of interest saves his federal claims. Quinn adequately describes what it means for parties to share an identity of interest using this court‘s decision in Jacobsen v. Osborne, 133 F.3d 315, 320 (5th Cir. 1998): An identity of interest exists when “the parties are so closely related in their business operations or other activities that the institution of an action against one serves to provide notice of the litigation to the other.” The defendant officers here certainly share an identity of interest with the City. See id. Quinn‘s problem, though, is not that he failed to name the proper defendant and now must rely on the officers’ kinship to the City to salvage his claims. His problem is that he sued the correct defendants on the wrong claim and failed to correct his error until the limitations period had expired. The shared identity of interest between the officers and the City is of no consequence. The district court properly dismissed Quinn‘s federal claims against the individual defendants.
IV. Dismissal of Quinn‘s Claims Against the City
We review de novo the district court‘s grant of the City‘s motion to dismiss under
The magistrate judge recommended dismissing Quinn‘s state-law claims against the City because the officers acted intentionally, exonerating the City from vicarious liability under the TTCA.
“[T]he TTCA does not apply to claims arising out of an intentional tort.” Goodman v. Harris Cnty., 571 F.3d 388, 394 (5th Cir. 2009). If plaintiffs classify intentional-tort claims as negligence claims, governmental immunity still applies. Texas Dep‘t of Pub. Safety v. Petta, 44 S.W.3d 575, 580 (Tex. 2001). Quinn argues that his complaint raises a fact issue as to whether the officers acted intentionally or negligently during the search of his
We dealt with the same issues in a case in which police brought a man to a hospital for treatment after he began behaving erratically in public. Saenz v. City of El Paso, 637 F. App‘x 828, 829 (5th Cir. 2016). We agree with that panel‘s analysis. While in custody, the man was shot and killed by an El Paso police officer. Id. The victim‘s mother sued the City for negligence under the TTCA, among other things. Id. at 829-30. We examined whether the plaintiff‘s claims arose from intentional conduct. Id. at 830. The gravamen of the claim was excessive force in the shooting, which “sounds in intentional tort.” Id. The plaintiff could not avoid dismissal of her claims by arguing negligence. Id. at 831. The determinative question is whether the negligence claim arises from the same facts that form the basis of the intentional-tort claim. Id.; see also Goodman, 571 F.3d at 394. If so, governmental immunity is not waived. Saenz, 637 F. App‘x at 831.
The magistrate judge recognized “that the alleged facts supporting [Quinn‘s] negligence claims in this case are intentional torts[.]” Quinn described the incident in terms of intentional conduct, characterizing the search as an “intentional, tortious act[] of terrorism conducted in bad faith, intentionally, and with malice.” He now asserts that it is unclear whether Guerrero acted intentionally or negligently to cause his injuries. Either way, it is clear that Quinn failed to allege conduct that would suggest negligence. Instead, he attempted to plead negligence alternatively, which is not proper. See Saenz, 637 F. App‘x at 831. His negligence claims arise from the same conduct as his intentional-tort claims, so governmental immunity applies and the state-law claims were properly dismissed. See Petta, 44 S.W.3d at 580.
As for Quinn‘s federal claims, the magistrate judge reviewed Quinn‘s allegations and determined that Quinn failed to state a claim against the City under Section 1983. Quinn now argues that his complaint alleges a Section 1983 violation by asserting that the officers performed a no-knock entry without a no-knock warrant.4 He further argues thе district court should have permitted a period of discovery before granting the City‘s Rule 12 dismissal.
Municipal liability under Section 1983 requires evidence of some policy or custom that causes a constitutional violation. Monell v. Dep‘t of Soc. Servs., 436 U.S. 658, 690-91 (1978). Specifically, “[a] plaintiff must identify: (1) an official policy (or custom), of which (2) a policymaker can be charged with actual or constructive knowledge, and (3) a constitutional violation whose moving force is that policy or custom.” Valle v. City of Houston, 613 F.3d 536, 541-42 (5th Cir. 2010). A policy may be identified “through evidence of an actual policy, regulation, or decision,” id. at 542, or through an informal custom that represents munici-
To establish the City‘s failure to train, Quinn must show “(1) inadequate training procedures; (2) that inadequate training caused the task force officers to [use excessive force]; and (3) the deliberate indifference of municipal policymakers.” See Pineda v. City of Houston, 291 F.3d 325, 332 (5th Cir. 2002). “The inadequacy of [the] training must be closely related to the injury.” Id. Defects in a particular training program must be specifically alleged. Roberts v. City of Shreveport, 397 F.3d 287, 293 (5th Cir. 2005).
Quinn never alleges either an official policy or a widespread custom that caused a violation of his constitutional rights. In fact, Quinn admitted before the district cоurt that the City‘s official policies were “just fine.” His allegations thus amount to assertions that the officers violated the City‘s proper procedures on the execution of search warrants, the use of force, and the use of the tactical team. Mere assertions are insufficient, though; Quinn did not identify specific deficiencies in the City‘s training procedures. See id. He suggests the search of his home could have been intended to exact retribution for his earlier filing of a lawsuit against the police department. If true, that does not show a custom by the City of constitutional abuse.
Quinn argues the police engage in a code of silence, under which officers are tacitly encouraged to use excessive force by the department‘s failure to discipline its members for incidents like these. In support, he argues the officers involved in the search of his home have yet to be disciplined for their alleged misconduct. A theory of ratification is limited to “extreme factual situations.” Peterson v. City of Fort Worth, 588 F.3d 838, 848 (5th Cir. 2009). “[I]t is nearly impossible to impute lax disciplinary policy to the City without showing a pattern of abuses that transcends the error made in a single case.” Piotrowski v. City of Houston, 237 F.3d 567, 582 (5th Cir. 2001). Here, Quinn failed to allege a “pattern of complaints by other citizens.” See id. The City‘s failure to discipline the officers does not establish an unconstitutional policy or custom.
Quinn further argues that City officials know of a privately hosted website that glorifies the SWAT Team with “an obscene ballad with lyrics about murder and drugs.” As the district court noted, though, Quinn failed to show that any City officials had either actual or constructive knowledge of the website or its host. Finally, Quinn takes issue with the City‘s use of a “threat matrix” to determine when SWAT personnel should be employed in a given situation. He argues the City should be liable if the officers failed to implement the matrix correctly. Regardless, Quinn wholly failed to link the City‘s use of the matrix to the alleged constitutional violation. His allegations are thus insufficient to establish Monell liability, and the district court correctly dismissed his federal claims against the City.
Quinn requests a period of discovery, after which he intends to replead to cure any defects in his complaint. Discovery would be futile, though, because Quinn has amended his initial petition four times and has yet to state a claim. In any event, discovery is not permitted if the live complaint fails to allege facts sufficient to suggest that discovery would reveal evidence in support of a viable claim. See Lormand v. US Unwired, Inc., 565 F.3d 228, 258 (5th Cir. 2009). Here, Quinn failed to allege negligent conduct or that the City has adopted a policy fostering unconstitutional
V. Denial of Quinn‘s Claim for Punitive Damages
We affirm the district court‘s decision dismissing all claims against the individual officers and the City. Thus, we have no reason to discuss the issue of punitive damages.
VI. Motion Carried with the Case
Finally, Defendants Roberts, Howell, Eaves, Caudell, Garcia, and Sun moved to dismiss the appeal against them because Quinn‘s live complaint failed to name them as defendants. Because we affirm the decision to dismiss the individual defendants, this motion is DENIED AS MOOT.
AFFIRMED.
LESLIE H. SOUTHWICK
UNITED STATES CIRCUIT JUDGE