Carruthers V. Austin Police Department

Filed: 4/14/2023 11:06 AM
PETITION: SMALL CLAIMS CASE
Judge Yvonne M. Williams, JP1
Travis County, Texas
J1-CV-23-001475
CASE NO. (court use only)
In the Justice Court, Precinct
1
Travis
County, Texas
Mark Carruthers
PLAINTIFF
vs.
Austin Police Department 715 East 8th Street Austin, TX 78701
DEFENDANT(S)
COMPLAINT: The basis for the claim which entitles the plaintiff to seek relief against the defendant is:
I am suing the Austin Police Department for discrimination based on my gender. The essence of my case is
based on the differing treatment of Audrey Gil, a woman, and myself, a man, by the Austin Police Department
under almost identical circumstances in reports/cases involving crimes dating back to 02/04/2022.
RELIEF: Plaintiff seeks damages in the amount of $20,000.00 , and/or return of personal property as described as follows (be
specific):
, which has a value of
Additionally, plaintiff seeks the following:
Court Costs.
plus all costs of court as allowed by law.
SERVICE OF CITATION: Service is requested on defendants by personal service at home or work or by alternative service as allowed
by the Texas Justice Court Rules of Court. Other addresses where the defendant(s) may be served are:
Chief of Police Joseph Chacon
715 East 8th Street, Austin, TX, 78701
If you wish to give your consent for the answer and any other motions or pleadings to be sent to your email address, please
check this box, and provide your valid email address: markscarruthers@gmall.com
.
I declare under penalty of perjury, pursuant to the law of the State of Texas, that all information provided is true and correct.
Mark Carruthers
/s/ Mark Carruthers
Petitioner's Printed Name
Signature of Plaintiff or Attorney
5629 N Lamar Apt 436
DEFENDANT(S) INFORMATION (if known):
Address of Plaintiff's Attorney, if any, or Plaintiff if none
DATE OF BIRTH:
Austin, TX 78751
*LAST 3 NUMBERS OF DRIVER LICENSE:
City
State
Zip
*LAST 3 NUMBERS OF SOCIAL SECURITY:
Ph. 214-687-6215
Fax.
DEFENDANT'S PHONE NUMBER: 512-974-0000
Phone & Fax No. of Plaintiff's Attorney, if any, or Plaintiff if none
markscarruthers@gmail.com
Small Claim Petition. 7/2013
Filed: 5/8/2023 1:47 PM
Judge Yvonne M. Williams, JP1
Travis County, Texas
J1-CV-23-001475
CAUSE NO. J1-CV-23-001475
MARK CARRUTHERS,
§
IN THE JUSTICE COURT
Plaintiffs,
§
§
V.
§
§
OF TRAVIS COUNTY, TEXAS
AUSTIN POLICE DEPARTMENT,
§
Defendant.
§
§
PRECINCT 1
DEFENDANT, AUSTIN POLICE DEPARTMENT'S PLEA TO THE JURSIDICTION
AND ORIGINAL ANSWER
TO THE HONORABLE JUDGE PRESIDING:
COMES NOW, Defendant, Austin Police Department, represented by and through the
undersigned Assistant City Attorney, and hereby files its Plea to the Jurisdiction, Original Answer,
and Motion to Stay Discovery, and respectfully shows as follows:
I.
PLEA TO THE JURISDICTION
A. Standard of Review
1.
A plea to the jurisdiction challenges the court's authority to decide a case. Heckman
V. Williamson Cnty., 369 S.W.3d 137, 149 (Tex. 2012); Bland Indep. Sch. Dist. V. Blue, 34 S.W.3d
547, 553-54 (Tex. 2000).
2.
The burden is on the plaintiff to affirmatively demonstrate the trial court's
jurisdiction. Heckman, 369 S.W.3d at 150; Tex. Dep't of Parks & Wildlife V. Miranda, 133 S.W.3d
217,226 (Tex. 2004).
3.
When assessing a plea to the jurisdiction, the analysis begins with the live
pleadings. Heckman, 369 S.W.3d at 150; Miranda, 133 S.W.3d at 226. The Court may also
consider evidence submitted to negate the existence of jurisdiction-and must consider such
Filed: 5/8/2023 1:47 PM
Judge Yvonne M. Williams, JP1
Travis County, Texas
J1-CV-23-001475
evidence when necessary to resolve the jurisdictional issue. Heckman, 369 S.W.3d at 150; Bland,
34 S.W.3d at 555.
4.
A court must grant the plea to the jurisdiction if the plaintiff's pleadings
affirmatively negate the existence of jurisdiction, or if the defendant presents undisputed evidence
that negates the existence of the court's jurisdiction. Heckman, 369 S.W.3d at 150; Miranda, 133
S.W.3d at 226-27.
B. Claims Against Austin Police Department are Barred Because it is a
Nonjural Entity Incapable of Being Sued
5.
The court does not have jurisdiction over the allegations against Defendant, Austin
Police Department, because as a department nested within the City of Austin it is not a legal entity
subject to suit. See Darby V. Pasadena Police Dep't., 939 F.2d 311, 313-14 (5th Cir. 1991). The
City alone has the authority to designate whether one of its own departments is subject to suit as a
separate legal entity. Id.
6.
For a plaintiff to sue a city department, it must enjoy the status of a separate legal
existence. Id. And "unless the true political entity has taken explicit steps to grant the servient
agency with jural authority, the agency cannot engage in any litigation except in concert with the
government itself." Id. Without such authority and existence, the plaintiff merely "seeks recovery
from a legal entity that does not exist for his purposes." Id.
7.
If no jural entity exists, the suit is subject to dismissal. Here, the City has not
designated the Austin Police Department to be a separate legal entity with its own separate,
distinct, induvial ability or capacity to sue or be sued.
Filed: 5/8/2023 1:47 PM
Judge Yvonne M. Williams, JP1
Travis County, Texas
J1-CV-23-001475
8.
Therefore, the court does not have jurisdiction over Plaintiff's allegations, because
Austin Police Department is not a legal entity capable of being sued, and the court must dismiss
all causes of action against Defendant with prejudice to the re-filing of same.
II.
GENERAL DENIAL
9.
The Austin Police Department generally denies each and every allegation in
Plaintiff's Original Petition and any amendments or supplements to the same. Tex. R. Civ. P. 92.
PRAYER FOR RELIEF
WHEREFORE, Defendant prays a hearing be set to address its plea to the jurisdiction.
Defendant further prays all relief requested by Plaintiff be denied and dismissed, and that the
Defendant recover any additional relief to which he is entitled under law or in equity.
RESPECTFULLY SUBMITTED,
ANNE L. MORGAN, CITY ATTORNEY
MEGHAN L. RILEY, LITIGATION DIVISION CHIEF
/s/ Brandon Livengood
BRANDON LIVENGOOD
State Bar No. 24128022
randon.livengood@austintexas.gov
City of Austin
P.O. Box 1546
Austin, Texas 78767-1546
Telephone (512) 974-3042
Facsimile (512) 974-1311
ATTORNEYS FOR DEFENDANT
Filed: 5/8/2023 1:47 PM
Judge Yvonne M. Williams, JP1
Travis County, Texas
J1-CV-23-001475
CERTIFICATE OF SERVICE
This is to certify that I have served a copy of the foregoing on all parties or their attorneys
of record, in compliance with the Texas Rules of Civil Procedure, this 8th day of May 2023.
Via e-Service and/or facsimile:
Mark Carruthers
5629 N Lamar Apt. 436
Austin, Texas 78751
markscarruthers@gmail.com
Pro Se Plaintiff
/s/ Brandon Livengood
BRANDON LIVENGOOD
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Jessica Best on behalf of Brandon Livengood
Bar No. 24128022
jessica.best@austintexas.gov
Envelope ID: 75411660
Filing Code Description: Answer
Filing Description: DEFENDANT, AUSTIN POLICE DEPARTMENTS
PLEA TO THE JURSIDICTION AND ORIGINAL ANSWER
Status as of 5/8/2023 2:45 PM CST
Case Contacts
Name
BarNumber
Email
TimestampSubmitted
Status
Brandon Livengood
prandon.livengood@austintexas.gov
5/8/2023 1:47:17 PM
SENT
Jessica Best
jessica.best@austintexas.gov
5/8/2023 1:47:17 PM
SENT
Henry Taylor
henry.taylor@austintexas.gov
5/8/2023 1:47:17 PM
SENT
Filed: 5/8/2023 1:47 PM
Judge Yvonne M. Williams, JP1
Travis County, Texas
J1-CV-23-001475
CAUSE NO. J1-CV-23-001475
MARK CARRUTHERS,
§
IN THE JUSTICE COURT
Plaintiffs,
§
§
V.
§
§
OF TRAVIS COUNTY, TEXAS
AUSTIN POLICE DEPARTMENT,
§
Defendant.
§
§
PRECINCT 1
ORDER GRANTING DEFENDANT'S PLEA TO THE JURISDICTION
Having considered Defendant's Plea to the Jurisdiction, and any opposition thereto, the Court
finds Defendant, Austin Police Department's, request is reasonable and necessary, and it shall and hereby
is GRANTED; and it is further,
ORDERED, the above captioned case is DISMISSED with prejudice to refiling the same.
Signed on this the
day of May 2023.
Presiding Judge
Filed: 5/8/2023 1:47 PM
Judge Yvonne M. Williams, JP1
Travis County, Texas
J1-CV-23-001475
CAUSE NO. J1-CV-23-001475
MARK CARRUTHERS,
§
IN THE JUSTICE COURT
Plaintiffs,
§
§
V.
§
§
OF TRAVIS COUNTY, TEXAS
AUSTIN POLICE DEPARTMENT,
§
Defendant.
§
§
PRECINCT 1
ORDER GRANTING DEFENDANT'S PLEA TO THE JURISDICTION
Having considered Defendant's Plea to the Jurisdiction, and any opposition thereto, the Court
finds Defendant, Austin Police Department's, request is reasonable and necessary, and it shall and hereby
is GRANTED; and it is further,
ORDERED, the above captioned case is DISMISSED with prejudice to refiling the same.
Signed on this the 16th day of May 2023.
Presiding Judge
COURT,
TRAVIS
SECTION
COUNTY
15d
Filed: 6/9/2023 1:32 PM
Judge Yvonne M. Williams, JP1
Travis County, Texas
J1-CV-23-001475
CAUSE NO. J1-CV-23-001475
MARK CARRUTHERS,
§
IN THE JUSTICE COURT
§
Plaintiff,
§
§
V.
§
§
OF TRAVIS COUNTY, TEXAS
AUSTIN POLICE DEPARTMENT,
§
§
Defendant.
§
§
§
PRECINCT 1
PLAINTIFF'S REQUEST FOR APPEAL
TO THE HONORABLE JUDGE PRESIDING:
MARK CARRUTHERS ("Plaintiff") files this Appeal and would respectfully show the
Court as follows:
SUMMARY OF APPEAL
Plaintiff requests an appeal of the decision to dismiss based on Defendant's Plea to the
Jurisdiction. Plaintiff contends that Defendant's claim that the court does not have jurisdiction
over the allegations against the Defendant, Austin Police Department, because as a department
nested within the City of Austin it is not a legal entity subject to suit based on Darby V.
Pasadena Police Dep't is correct, however, Plaintiff should not be denied leave to amend his
complaint to fix this defect. The City of Austin received actual notice of the Plaintiff's claim
against it. The City of Austin was not prejudiced in any way, despite Plaintiff's improper filing.
Furthermore, Plaintiff contends that dismissing this case based on the remaining
jurisdictional issues presented by Defendant would be a violation of Plaintiff's rights. Plaintiff
can only financially afford to file a lawsuit in this court and struggled to do that with
PLAINTIFF'S REQUEST FOR APPEAL-PAGE - 1
Filed: 6/9/2023 1:32 PM
Judge Yvonne M. Williams, JP1
Travis County, Texas
J1-CV-23-001475
confidence. Plaintiff has supplied the court with a Statement of Inability to Pay Court Costs.
Plaintiff's Statement of Inability to Pay Court Costs was not served to Defendant as Plaintiff
considers it private information and unnecessary. Due to the Plaintiff's inability to pay court
costs, securing an attorney to file in a higher court would be impossible. As a Pro Se Plaintiff, it
can be difficult to navigate any court proceedings. The expectation that Plaintiff be able to
navigate court proceedings in a higher court seems excessive. An attorney would need to be
provided to Plaintiff SO that Plaintiff can identify the proper court for filing, even if Plaintiff is
only re-filing in another Justice of the Peace precinct in Travis County. An attorney would need
to be provided to Plaintiff SO Plaintiff can properly follow the rules of the court as proceedings
become more difficult.
Finally, Plaintiff requests that proceedings be fast-tracked SO that Plaintiff is not denied
the opportunity to request forcible action from the Defendant in the higher court in which the
Defendant has requested these proceedings be moved. One aspect of Plaintiff's civil complaint
is inaction on the part of the Defendant with respect to criminal complaints of Blackmail and
Illegal Wiretapping that Plaintiff filed with the Defendant against Audrey Gil on October 11,
2022 and February 14, 2023 respectively. Plaintiff contends that further inaction on these
complaints by Defendant would be denying protections to Plaintiff that have been provided by
Defendant to Ms. Gil in almost identical circumstances. Plaintiff has been charged with Felony
Criminal Mischief in response to a complaint filed by Ms. Gil in March of 2022. The actions
taken by the Defendant in charging Plaintiff concerning Ms. Gil's complaint, have provided Ms.
Gil with protections that Plaintiff is being denied due to inaction on the part of Defendant
concerning Plaintiff's own criminal complaints against Ms. Gil. Plaintiff is restricted from
contacting Ms. Gil due to the charges levied against him by Defendant. If proper action was
taken and the law followed by Defendant with respect to Plaintiff's criminal complaints against
PLAINTIFF'S REQUEST FOR APPEAL - PAGE 2
Filed: 6/9/2023 1:32 PM
Judge Yvonne M. Williams, JP1
Travis County, Texas
J1-CV-23-001475
Ms. Gil, Plaintiff would be offered these same protections that are currently being denied by
Defendant. Ms. Gil continues to be a physical risk to Plaintiff and Defendant's inaction is
contributing to that largely. Further inaction by Defendant also allows for the illegal audio
recording made by Ms. Gil, and still in her possession, to be used repeatedly, something Ms. Gil
has already done multiple times by emailing said recording on March 14, 2022 and June 4,
2022. This illegal behavior by Ms. Gil needs to be stopped. A fast-track hearing is requested.
BACKGROUND ON CRIMINAL COMPLAINTS FILED BY PLAINTIFF AGAINST
AUDREY GIL
Plaintiff's complaints to Defendant were filed concerning criminal acts performed by
Ms. Gil in Plaintiff's residence on February 4, 2022. As of today, it has been more than 200
days since Plaintiff filed the Blackmail complaint. It has been more than 16 months since the
Blackmail occurred. No charges have been filed against Ms. Gil despite her admittance to the
crime in a June 4, 2022 email. No warrant issued. No detective from the Austin Police
Department with knowledge of Plaintiff's Blackmail complaint has contacted the Plaintiff.
Similarly, the Illegal Wiretapping charges filed by Plaintiff on February 14, 2023 had not been
assigned to a proper detective as of April 6, 2023 when Plaintiff spoke with Detective Kelly of
the Austin Police Department. Detective Kelly said Plaintiff's Illegal Wiretapping complaint
would be forwarded to a proper Detective but no contact has been made. No charges have been
filed against Ms. Gil despite Ms. Gil's emails of the illegal recording and an October 2022
statement made by Sgt. Blake of the Austin Police Department accusing Ms. Gil of trespassing
according to state law while Ms. Gil made the recording in Plaintiff's residence. No warrant has
been issued for Ms. Gil concerning these charges. A May 9, 2023 article published by KVUE
PLAINTIFF'S REQUEST FOR APPEAL - PAGE 3
Filed: 6/9/2023 1:32 PM
Judge Yvonne M. Williams, JP1
Travis County, Texas
J1-CV-23-001475
ABC in Austin attributed a quote to Austin Police Department Lt. Sheldon Askew, saying that
the time between filing a report and getting it assigned has dropped from more than 30 days to
an average of 3 to 5 business days using the new online submission system offered by the City
of Austin/Austin Police Department. This online submission system was used by Plaintiff to
submit his Illegal Wiretapping complaint against Ms. Gil. Defendant's delay is unacceptable and
should not be allowed to continue. Ms. Gil was still exhibiting dangerous behaviors with
regards to contacting Plaintiff as of March 2023. Plaintiff should not continue to be denied
protections provided to Ms. Gil by Defendant without a hearing.
CONCLUSION
WHEREFORE, PREMISES CONSIDERED, Plaintiff respectfully requests that the
Court reverse the decision to dismiss and hold a fast-track hearing SO that Plaintiff might have
the opportunity to secure a court appointed attorney to file in the proper court. Any further
inaction by the Defendant concerning the criminal complaints filed by the Plaintiff risk further
injury to Plaintiff.
Respectfully submitted,
/s/ Mark Carruthers
Mark Carruthers
P.O. BOX 181176
Austin, TX, 78718
Telephone (214) 687-6215
E-Mail: markscarruthers@gmail.com
PRO SE PLAINTIFF
PLAINTIFF'S REQUEST FOR APPEAL - PAGE 4
Filed: 6/9/2023 1:32 PM
Judge Yvonne M. Williams, JP1
Travis County, Texas
J1-CV-23-001475
CERTIFICATE OF SERVICE
This is to certify that I have served a copy of the foregoing on all parties or their
attorneys of record, in compliance with the Texas Rules of Civil Procedure, this 9th day of June
2023.
Via e-Service and/or facsimile
Brandon Livengood
City of Austin
P.O. Box 1546
Austin, Texas 78767-1546
brandon.livengood@austintexas.gov
ATTORNEY FOR THE DEFENDANT
/s/ Mark Carruthers
Mark Carruthers
PLAINTIFF'S REQUEST FOR APPEAL - PAGE 5
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Envelope ID: 76470445
Filing Code Description: Motion to Reconsider Judgment
Filing Description: Mark Carruthers - Request for Appeal
Status as of 6/9/2023 2:14 PM CST
Case Contacts
Name
BarNumber
Email
TimestampSubmitted
Status
Jessica Best
jessica.best@austintexas.gov
6/9/2023 1:32:07 PM
SENT
Brandon Livengood
brandon.livengood@austintexas.gov
6/9/2023 1:32:07 PM
SENT
Henry Taylor
henry.taylor@austintexas.gov
6/9/2023 1:32:07 PM
SENT
Filed: 8/2/2023 10:13 PM
Judge Yvonne M. Williams, JP1
Travis County, Texas
J1-CV-23-001475
CAUSE NO. J1-CV-23-001475
MARK CARRUTHERS,
§
IN THE JUSTICE COURT
§
Plaintiff,
§
§
V.
§
§
OF TRAVIS COUNTY, TEXAS
AUSTIN POLICE DEPARTMENT,
§
§
Defendant.
§
§
§
PRECINCT 1
PLAINTIFF'S MOTION TO DISMISS
TO THE HONORABLE JUDGE PRESIDING:
MARK CARRUTHERS ("Plaintiff") files this PLAINTIFF'S MOTION TO
DISMISS and would respectfully show the Court as follows:
SUMMARY OF MOTION TO DISMISS
Plaintiff requests that the Court dismiss Plaintiff's case with the Austin Police
Department. Plaintiff has become a Pro Se Defendant in the 167th District Court and as such
has learned the proper way to file suit with the Government. Plaintiff will refile in the proper
court after sending the proper notices, and is likely to add Defendants. Plaintiff would like to
thank the Court for granting his appeal, and being willing to hear his arguments. This system
does not always treat citizens as one might expect but this was a different experience.
Respectfully submitted,
/s/ Mark Carruthers
Mark Carruthers
P.O. BOX 181176
Austin, TX, 78718
Telephone (214) 687-6215
E-Mail: markscarruthers@gmail.com
PRO SE PLAINTIFF
PLAINTIFF'S MOTION TO DISMISS - PAGE 1
Filed: 8/2/2023 10:13 PM
Judge Yvonne M. Williams, JP1
Travis County, Texas
J1-CV-23-001475
CERTIFICATE OF SERVICE
This is to certify that I have served a copy of the foregoing on all parties or their
attorneys of record, in compliance with the Texas Rules of Civil Procedure, this 2nd day of
August 2023.
Via e-Service and/or facsimile
Brandon Livengood
City of Austin
P.O. Box 1546
Austin, Texas 78767-1546
brandon.livengood@austintexas.gov
ATTORNEY FOR THE DEFENDANT
/s/ Mark Carruthers
Mark Carruthers
PLAINTIFF'S MOTION TO DISMISS - PAGE 2
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Envelope ID: 78154828
Filing Code Description: Motion to Dismiss
Filing Description:
Status as of 8/3/2023 9:00 AM CST
Case Contacts
Name
BarNumber
Email
TimestampSubmitted
Status
Jessica Best
jessica.best@austintexas.gov
8/2/2023 10:13:27 PM
SENT
Brandon Livengood
brandon.livengood@austintexas.gov
8/2/2023 10:13:27 PM
SENT
Henry Taylor
henry.taylor@austintexas.gov
8/2/2023 10:13:27 PM
SENT