Beaumont Court of Appeals holds City is not liable for alleged failure to create a police report, failure to investigate, or failure to prosecute as asserted by Plaintiff

Caryn Suzann Cain v. City of Conroe, Tex., et al., 09-19-00246-CV, 2020 WL 6929401 (Tex. App.—Beaumont Nov. 25, 2020)

 This is an interlocutory appeal from the trial court’s order granting the City’s motion to dismiss, plea to the jurisdiction, and traditional motion for summary judgment.

Plaintiff, Caryn Suzann Cain, filed a pro se civil suit against the Conroe Police Department alleging police negligence in the department’s investigation and disposal of her complaints regarding disputes with her neighbors. Cain asserted the City 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.  Cain later § 1983 claims against the City.  In response, the City defendants filed a motion to dismiss under §101.106(e) of the Civil Practice and Remedies Code, a plea to the jurisdiction, and traditional motion for summary judgment.  The trial court granted all motions.

The officers were entitled to dismissal of the tort claims under §101.106(e).  Next, under the TTCA if an injury does not arise from a city employee’s operation or use of a motor-driven vehicle, then the city is not liable for its employee’s negligence. “Arises from” requires a plaintiff to show a direct connection between the injury and the employee’s vehicle operation or use.  Simply using a patrol vehicle’s radio is not actionable. Similarly, the court noted mere involvement of tangible personal property in an injury does not, by itself, waive immunity.  The tangible personal property must do more than create the condition that makes the injury possible. Here, no tangible personal property was negligently used to result in any of the alleged injuries. Next, to allege a valid constitutional rights violation under § 1983 against the City, Cain was required to assert a deprivation was caused by a policy, custom, or practice of the City. A municipality is not liable under § 1983 for the unconstitutional acts of its non-policymaking employees.  The Court determined Cain did not allege sufficient facts showing an unconstitutional policy or custom was being implemented. Finally, the Due Process Clause does not require the State to protect life, liberty, and property of its citizens against invasion by private actors, and it generally confers no affirmative right to government aid.  Thus, Cain’s allegation that the City failed to protect her against her neighbor did not constitute a due process violation.

If you would like to read this opinion click here.  Panel consisted of Chief Justice Steve McKeithen and Justices Hollis Horton and Leanne Johnson.  Opinion by Chief Justice McKeithen.  Docket page with attorney information can be found here.