Clark V. The City of Austin; Steven Johnson; Matthew Murphy; Mike Dent; Phil Campbell; Dimple Malhotra; Jeaaw Ibarra; Kimberly Legge; The State of Texas; Travis County; Austin Police Department; Travis County Sheriff's Department; Travis County Correction
Plaintiff Christian-Andre Clark submitted this lawsuit against the City of Austin and Austin Police Officers Steven Johnson, Matthew Murphy, Mike Dent, Phil Campbell, Dimple Malhotra, Jeaaw Ibarra, Kimberly Legge, The State of Texas, Travis County, Austin Police Department, Travis County Sheriff's Department, Travis County Correctional Complex, and Travis County Central Booking. The plaintiff requested to be awarded a judgment. The defendants requested to dismiss the case.
PDF Content
Disclaimer: The following text was extracted from the PDF file to make this document more accessible. This machine-generated content may contain styling errors due to redactions. In some instances, text may not load if the original file is a scanned image or has not been made searchable. For the full version of the document, please view the PDF.Filed in The District Court
of Travis County, Texas
JUL - 5 2016
D-1-GN-16-002854
At
5:00 P
M.
NO.
Velva L. Price, District Clerk
§
Christian-Andre Clark
§
In the district court of
§
Claimant,
§
Steven Johnson, Mathew Murphy,
§
Mike Dent, Phil Campbell,
Dimple Malhotra, Jesse Ibarra,
Kimberly Legge, The State of Texas,
§
Travis County, Austin Texas, Austin
§
Travis county Texas
Police Department, Travis County
§
Sheriff's Department, Travis County
§
PACO
Correctional Complex, Travis County
§
Central Booking, County Court At
§
Law Number 4, Cause No. C-1-CR-
§
15-214701, Cause No. C-1-CR-16-
§
201ST
500571,
§
judicial district
§
Defendant(s),
§
CLAIMANT'S ORIGINAL CLAIM
Claimant, Christian-Andre: Clark, files thistorigan petition and wishes for; restoration
of rights and disclosure against defendants, Steven Johnson, Mathew Murphy, Mike
Dent. Phil Campbell, Dimple Malhotra; Jesse Ibarra, Kimberly Legge, The State of
Texas, Travis County, Austin Texas, Austin Police Department, Travis County Sheriff's
Department, Travis County Correctional Complex, Travis County Central Booking,
County Court At Law Number 4, Cause No. C-1-CR-15-214701, Cause No. C-1-CR-16-
500571, and alleges as follows:
s
A. DISCOVERY-CONTROL PLAN
1. Claimant intends to conduct discovery indistinguishable to Level 3 of Texas
Rule of Civil Procedure 90.4 and affirmatively pleads that the laws of the land
govern this suit.
Colyna
B. RELIEF
2. Claimant socks over $1,000,000.00
C. PARTIES
1 of 13
3. in proper personam - Christian-Andre: Clark- Claimant
4. (a) in proper personam - Steven Johnson, Mathew Murphy, Mike Dent, Phil
Campbell, Dimple Malhotra, Jesse Ibarra, Kimberly Legge - Defendant's
(b) in rem- The State of Texas, Travis County, Austin Texas, Austin Police
Department, Travis County Sheriff's Department, County Court At Law Number 4,
Travis County Correctional Complex, Travis County Central Booking, Cause No. C-
1-CR-15-214701, Cause No. C-1-CR-16-500571- - Defendant's
(c) The plaintiff is a domiciled on Travis County. Texas. The defendant is a resident
of Travis County, Texas, where service of process may be had on Steven Johnson at
2006 East 4th street Austin, Texas 78702,
(d) The defendant is a resident of Travis County, Texas, where service of process may
be had on Mathew Murphy at 2006 East 4th street Austin, Texas 72/02,
(c) The plaintiff is a domiciled on Travis County, Texas. The defendant is a resident
of Travis County, Texas, where service of process may be ha on Mike Dent at 509
West 11th street, Austin, Texas 78701,
(f) The defendant is a resident of Travis County, Texas, there service of process may
be had on Phil Campbell at 509 West 1th street, Austin Texas 78701,
(g) The defendant is a resident of Travis County, Todds, where service of process may
be had on Dimple Malhotra at 509 West 11th street) Austin, Texas 78701,
(h) The defendant is a resident of Travis County Texas, where service of process may
be had on Jesse Ibarra at 509 West 11th street Austin, Texas 78701,
(i) The defendant is a resident of Travis/Scunty, Texas, where service of process may
be had on Kimberly Legge at 411 west ith street Austin, Texas 78701,
(i) The defendant is in rem in Travis County, Texas, where service of process may be
found after discovery,
Travis
copy
2 of 13
D. JURISDICTION
5. Claimant believes Jurisdiction is proper because defendants committed torts,
which is the subject of this suit, in whole or in part in Texas. The court has
jurisdiction over all claims against all units of government under the laws of the land.
Claimant believes waiver of sovereign and governmental immunity is proper due to
bodily injury to claimant.
E. VENUE
6. Claimant believes venue is proper because this is a suit for an injunction against
the execution of an undue process and this is the county where the process was
rendered.
F. FACTS
7. (a) On the 29th of September 2015, at the location of\11305 Friendship drive
Austin, Texas, Travis County. Steven Johnson and Mathew-Murphy employees of the
Austin Police Department held Christian-Andre: Clark against his will and against the
laws of this land, causing harm and emotional duress: b) Murphy then unlawfully
arrested Christian in his domicile without process or ribobable cause. (c) Johnson and
Murphy then transported Christian to Travis County Céntral Booking location: 509 West
11th street, Austin, Texas. (d) Johnson and Murpix then transferred Christian to the
Travis County Sheriffs jailers custody where (c) Ihristian was subjected to assaults,
offensive touching, cruel and tortuous conditions to include forced nudity, forced
fingerprinting, forced photography, and freczi temperatures. (f) Christian was then
transported on the 1st of October 2015 to Traffs County Correctional Complex location:
3614 Bill Price road, Del Valle, Texas werEthe assaults, offensive touching. cruel and
tortuous conditions to include forced nudiy continued. (g) On the 3rd of October
2015,
Christian's family hired Charles Pooper for three hundred dollar ($300.00) to secure his
bond and Christian was then release from physical custody but has remained in
constructive custody. (h) Christian was instructed to go to Travis County Court #4
(CC
#4) on the 9th of October 2015. Christian believed he had been emasculated and a sense
of outrage set in as his confidence) justice had diminished. (i) Christian met with acting
judge Mike Dent for the first time on the 9th of October 2015. Christian unaware at the
time on how to assert his his, allegedly consented to the personal and subject matter
jurisdiction of the "States" alleged claim without significant protest despite evidence of
the gross due course violations. Dent and Christian agreed that Christian would seek
competent counsel and return on the 30th of October 2015. Christian searched for
competent counsel but was unable to find someone who was willing to file a counter
claim against the "State". (j) Christian returned back to CC#4 on the 30th of October 2015
where Dent instructed Christian that he would appoint Phil Campbell as "shadow
counsel" for his circense because Dent claimed Christian's motion to Dismiss was not
severed in acc dance to the rules of the court. Christian had never heard of a "Shadow
Counsel" and assistance of Campbell counsel was ineffective at best. Campbell's
3 of 13
refused to discuss the harm inflected upon Christian was a telling sign for whom his
loyalty belonged. (k) Christian was then instructed to return on the 2nd of December 2015.
Christian returned to CC #4 on the 2nd of December 2015 and was introduced to
Dimple Malhotra claiming to work for the "State" but refused to show any identification.
Dent instructed Malhotra and Christian to select a date in which to come back for a
hearing on Christian's motion to dismiss. (1) The date was selected and Christian returned
on the 20th of January 2016 to CC #4 where Dent instructed Malhotra and Christian that a
motion to suppress was the business of the day. Malhotra called two witnesses Johnson
and Murphy and submitted evidence upon the instructions of Dent. (m) Malhotra
informed the court that the complaining witness had called Malhotra and the witness did
not recall the events in question. The conclusion of this meeting where Dent claiming
probable cause and the jurisdictional bar had been met, despite the lack of a claimant.
Christian was then instructed to return on the 11th of February 2016ES CC #4, (n)
Christian hand wrote a correspondence to the clerk asking for the naire and address of
the plaintiff, to which no response was given. (o) Christian was e r rescheduled for the
4th of March 2016. Christian hand wrote a notice of wavier to the presumed benefits he
had been given without his creators consent. Campbell then instructed Christian that he
was to return on the 28th day of June 2016 for a trial. (p) Christian returned with Jeanene
Williams, Terri Wormely and Dana Randle on the 28th day of-juine 2016 where Christian
was told after two hours that he had an active warrant and trial had been canceled.
Campbell informed Christian that Dent wanted him to conce back on the 29th to resolve
the warrant issue. (q) Christian, Terri and Dana returnedu (on the 29th where Christian was
informed that he would be arrested and tagged with a global position device (G.P.S.) if he
did not accept Campbell services. Christian attempt to present an affidavit of non-
prosecution from the complaining witness to which Dent said he would not be accepting
evidence. (r) Christian then asked, wished, and demanded to see the warrant for his
inspection. Christian was denied the right to Ispect the document and was promptly
falsely arrested by Jesse Ibarra. (s) Christian was then transported to Travis County
Central Booking location: 509 West 11th,sigect, Austin, Texas. Ibarra then transferred
Christian to the Travis County Sheriffs jangis where Christian was subjected to assaults,
offensive touching, cruel and tortuous conditions to include forced nudity, forced
fingerprinting, forced photography and freezing temperatures. (t) Christian was
subsequently released after the alleg(d complaining witness paid fifteen hundred dollars
($1,500) to Bulldog Bail and one hundred and sixty four dollars ($164.00) to Victim
Safety First. (u) Christian was ordered by Dent or Malhotra to wear a G.P.S. device upon
his person. Christian was also siven two (2) orders 1) Christian was to have no contact
with the alleged complaining (vitness, 2) report to Kimberly Legge of Pretrial Services
location 411 west 11th street Austin, Texas and return to CC# 4 on the 6th of July 2016.
(v) On the of July Christ an reported to Legge and was given further restriction on his
liberty.
8.
Claimant believe and has reason to believe he has been subjected without
process to tresposis, duress, nonconsensual intercourse, abuse of process, false
imprisonment, harm to Claimant's person, assault to Claimant's person. corruption of
blood upon Claimant's person, debt to Claimant's person, negligent infliction of
emotional distress and ignoble conditions to Claimant's person. Claimant believes the
4 of 13
actions of the Defendants are not in accordance with the law of the land and as a result
feels anguish, grief, humiliation, wounded pride, damaged self-confidence, diminished
self-esteem, and loss of faith in our system of jurisprudence.
G. COUNT 1 - ABUSE OF PROCESS
Paragraphs 7 through 8 are incorporated by reference as though fully stated herein.
9. Claimant is alleged to be a party to proceedings styled: THE STATE OF
TEXAS VS. CHRISTIAN CLARK CAUSE NO. C-1-CR-15-214701 COUNTY
COURT AT LAW NO. 4 and THE STATE OF TEXAS VS. CHRISTIAN CLARK
CAUSE NO. C-1-CR-16-500571 COUNTY COURT AT LAW NO. 4C
Pack
10. in these proceedings, defendants held Claimant to inswer without an
indictment from a grand jury, arrested without warrant and or view of a breach of the
peace.
11. The arrest warrant was not presented for inspection to claimant thus rendering
the warrant invalid. irregular, and improperly issued.
12. Defendant made improper use of process afteressuance by forcing the claimant
to render services absent claimant's consent or un derstanding.
13. Defendant's perverted use of the arrest warrant was based on defendant's
ulterior motive or purpose and not on the process's legitimate purpose.
14. As a result of the defendant's perverted use of the arrest warrant, claimant's
property was wrongfully seized. Claima.x's person was actually interfered with from
the 29th of September 2015 until present
15. The unlawful seizure of Claimant's property; person, name and likeness
resulted in,
a) Claimant's person being resaulted, unlawfully detained, tagged and taxed.
b) Defamation to reputation and character of the claimant thought the publishing of
the name and likeness showing the claimant in a negative light without due process.
c) Negligent infliction of emotional distress caused by defendant's malicious and
or fraudulent behavior.
16. The unlawful interference to Claimants substantive rights resulted in
Union
5 of 13
(a) Claimant's belief that defendant's actions constitute a corruption of blood.
(b) Claimant lost earnings in his vocation while imprisoned and or rendering
service to the defendants at a rate of one hundred and fifty dollars ($150.00) a day
(c) Claimant has been assaulted, imprisoned, kidnapped, tagged and taxed by
defendants.
(d) Defendant's negligent infliction of emotional distress caused by the
defendant's reckless.
17. Defendant's wrongful acts caused injury to claimant, which resulted inflection of
intangible elements of pain to the claimant's person and lost earnings in is vocation.
Claimant seeks damages in the amount reasonable to the jury's discretion.
18. Claimant seeks damages within the general jurisdictional limits if this Court.
19. Exemplary damages: Defendants actions were beyond the :cope of his or her
assigned duties and thus lacks the care a civilized community wishes to enjoy from
their servants.
Injuries:
(a) The results of defendant's actions of incompe(ency that reached the level of
fraud and or malice.
(b) The defendant's inflection of intangible elements of pain to the claimant by
way of assault, false imprisonment, and the déprecation of substantive due process
rights
causing a loss of liberty, anguish, grief. humiliation, wounded pride. damaged
self-confidence, diminished self-esteem, ICES of faith in friends, colleagues. and loss
earnings.
H. COUNT2 - WRONGFUL
ATTACHMENT/ JUNCTION/ SEQUESTRATION
Paragraphs 7 through 8 are incorporated by reference as though fully stated herein.
20. In addition to other counts, defendants wrongfully attached, enjoined and
sequestered claimant's pro lerty by way of a foreign process.
21. Claimant was combilled under duress to sign four (4) unilateral unconscionable
contracts.
(1)
On the 5th of October 2015 Claimant was presented a contract from
defendant while under duress and imprisoned at Travis County
Correctional Complex location: 3614 Bill Price road, Del Valle, Texas.
6 of 13
(a) Claimant autographed the unconscionable document styled
SURTY BOND. see attachment:
(b) Claimant believed rescinding his consent and autograph by
notice to the County Court At Law No. 4 was a good faith effort
to correct the record of his mistake and intent. see attachment:
(c) Claimant seeks damages in the amount of three hundred dollars
($300.00)
(2) On 29th of June 2016 the claimant was presented two contracts from
the defendants while under duress and imprisoned at Travis County
Central Booking location: 509 west 11th street, Austin, Texas.
(a) Claimant autographed the unconscionable documents styled
SURETY BOND, Travis County Pretrial Services and Proactive
GPS Monitoring. see attachment:
(b) Claimant believed that an assertion of ..on-assumpsit formed a
general denial in any future action of assumpsit.
(c) Claimant's monies were not used to supply bail or pay the
monitoring service down payment but claimant believes that he
is entitled to damages.
Clerk
(3)
On 1st of July 2016 atcall West 13th street Austin, Texas,
Claimant while a G.P.S device was upon his person claimant was
presented a contract inconnection with the G.P.S. device, from the
defendants while under duress and imprisoned.
(a) Claimant philographed the unconscionable document styled,
TRAVIS COUNTY PRETRIAL SERVICES RULES AND
AGGREMTIMENT Sec attachment:
(b) Claimant believed that an assertion of non-assumpsit formed a
general denial in any future action of assumpsit.
22. Defendants attached claimant's personal property without consent to foreign
processes.
(A) Property description:
(1)
estate with unalienable rights secured and protected by the laws of the
lake
7 of 13
(2)
One man with a dark hue and of the age of thirty-cight who's calling is
Christian-Andre: Clark.
(3)
Mark and likeness of Christian-Andre: Clark.
(B) Defendants enjoined claimant to the perverted proceedings styled: THE
STATE OF TEXAS vs. CHRISTIAN CLARK CAUSE NO. C-1-CR-15-214701
COUNTY COURT AT LAW NO. 4; THE STATE OF TEXAS VS. CHRISTIAN
CLARK CAUSE NO. C-1-CR-16-500571 COUNTY COURT AT LAW NO. 4:
VICTIM SAFTEY FIRST; TRAVIS COUNTY PRETRIAL SERVICES; two
SURETY BONDS (i) CHARLES POPPER LAW OFFICE (ii) ALLEGHENY
CASUALTY INTERNATIONAL FIDELITY BULLDOG BAIL BONDS JESSICA
ZAK
(1) Claimant believes he was enjoined under an illegal process ih violation of the
due process clause of the law of the land.
(2) Claimant believes the global position device attached to his person is cruel and
unusual punishment and repugnant to the laws of the land.
(3) Defendant sequestered claimant's person by way ofunlawful attainder and false
imprisonment.
(4) Claimant believes and has reason to believe that the Defendant's actions from
29th of September 2015 until present have been with due course of law.
23. Defendant's wrongful acts caused injury to chamant, which resulted in the following
injuries: assault, false imprisonment, offensive duching, inflection of intangible elements
of pain to the claimant's person and lost rearnings in his vocation. Claimant seeks
damages in the amount reasonable to the jury discretion.
24. Claimant seeks damages within the general jurisdictional limits of this Court.
count 3 - INTRUSION ON SECLUSION
Paragraphs 7 through 8 are recorporated by reference as though fully stated herein.
25. In addition to other counts, defendant intruded on claimant's seclusion.
26. Claimant was in domicile when defendants held and falsely imprisoned
claimant.
27. Defendants by way of G.P.S. device have rendered claimants seclusion null and
void.
8 of 13
28. Defendant's wrongful acts caused injury to claimant, which resulted inflection of
intangible elements of pain to the claimant's person and lost earnings in his vocation.
Claimant seeks damages in the amount reasonable to the jury's discretion.
29. Claimant seeks damages within the general jurisdictional limits of this Court.
30. Exemplary damages. Claimant's injuries resulted from defendant's malice and or
actual fraud, which entitles claimant to exemplary damages. As a result of
defendant's inflection of intangible elements of pain to the claimant by way of
assault, false imprisonment. and the deprecation of substantive rights causing
anguish, grief, humiliation, wounded pride, damaged self-confidence, diminished
self-esteem, loss of faith in friends and colleagues, claimant seeks damages
reasonable to the jury's discretion.
J. COUNT 4 - FALSE IMPRISONMENT
Paragraphs 7 through 8 are incorporated by reference as though fully stated herein.
31. Defendants willfully detained claimant in his domicile on the 29th of September
2015 and transported claimant to Travis County Central Backing location: 509 west
eleventh street, Austin, Texas and to the Travis Cours Correctional Complex
location: 3614 Bill Price road, Del Valle, Texas.
32. Claimant did not consent to the detention
transportation of claimant's
person/property/body.
33. Defendants had no legal authority or justification to detain claimant because
claimant had not committed a breach of the place within the view of the defendants
and defendants failed to secure process thou lawful means.
34. Defendant's wrongful acts caused injury to claimant, which resulted in the
following injuries: assault, false imprisonment, offensive touching, inflection of
intangible elements of pain to the claimant's person and lost earnings in his vocation.
35. Defendant's wrongful acts caused injury to claimant, which resulted inflection of
intangible elements of pain to the Claimant's person and lost earnings in his vocation.
Claimant seeks damages in the alnount reasonable to the jury's discretion.
36. Claimant seeks damages within the general jurisdictional limits of this Court.
COUNT 5 - FALSE IMPRISONMENT
Paragraphs 7 through 8 are incorporated by reference as though fully stated herein.
37. Defendants wiffilly detained claimant on the 29th of June 2016 at the Blackwell-
Thurman Criminal Justice Center location: 509 west 11th street. Austin, Texas, and
transported naminant to the Travis County Central Booking location: 509 west 11th
street. Austin Texas.
9 of 13
38. Claimant did not consent to the detention or transportation by defendants.
39. Defendants had no legal authority or justification to detain claimant because
claimant had not committed a breach of the peace within the view of the defendants or
witnesses and defendants failed to secure process though lawful means.
40. Defendant's wrongful acts caused injury to claimant, which resulted in the
following injuries: assault, false imprisonment, offensive touching, inflection of
intangible elements of pain to the claimant's person and lost earnings in his vocation.
41. Defendant's wrongful acts caused injury to claimant, which resulted inflection of
intangible elements of pain to the claimant's person and lost earnings in his vocation.
Claimant seeks damages in the amount reasonable to the jury's discretio:
42. Claimant seeks damages within the general jurisdictional limits of this Court.
L. COUNT 6 - INFLICTION OF BODILY INJURY
Paragraphs 7 through 8 are incorporated by reference as though fully stated herein.
43. Defendant first made physical contact with claimant' person at the location of
11305 Friendship drive Austin, Texas, on the 29th of September 2015 and continued
until the 4th of October 2015 ending at Travis County Correctional Complex
Location: 3614 Bill Price road, Del Valle, Texas.
(a) Defendant recklessly placed claimant in a wheelchair causing physical pain and
discomfort to claimant's body.
(b) Defendant recklessly used metal restraints on claimant's wrist and legs causing
physical pain and discomfort to claimant's legs and wrist.
(c) Defendant recklessly caused claig.ant's bodily injury to his wrist, legs and
shoulders.
44. Defendant recklessly made Physical contact with claimant's person on the 29th
co.
of June 2016 at the Blackwell- Tforman Criminal Justice Center location: 509 west
11th street, Austin, Texas.
(a) Defendant recklesslv/used metal restraints on claimant's wrist causing physical
pain and discomfort to claimant's wrists and shoulders.
(b) Defendant recklessly caused claimant's bodily injury to his wrists and shoulders
45. Defendant's reckless actions resulted in the following injuries, assault, false
imprisonment, of ensive touching, lost earnings in his vocation and inflection of
intangible elements of pain to the claimant's person.
10 of 13
46. Defendant's wrongful acts caused injury to claimant, which resulted inflection of
intangible elements of pain to the claimant's person and lost earnings in his vocation.
Claimant seeks damages in the amount reasonable to the jury's discretion.
47. Claimant seeks damages within the general jurisdictional limits of this Court.
48. Exemplary damages. Claimant's injuries resulted from defendant's malice and or
actual fraud, which entitles claimant to exemplary damages. As a result of
defendant's inflection of intangible elements of pain to the claimant by way
of
assault, false imprisonment. and the deprecation of substantive rights causing
anguish, grief, humiliation, wounded pride, damaged self-confidence, diminished
self-esteem, loss of faith in friends and colleagues, claimant seeks damages.
H. COUNT 7 - OFFENSIVE PHYSICAL CONTACT
Paragraphs 7 through 8 are incorporated by reference as though taily stated herein.
49. In addition to other counts, defendant made offensive bysical contact with
claimant's person.
50. Defendant recklessly used metal restraints on wrist and legs causing
physical pain and discomfort to claimant's legs and wrist
51. Defendant recklessly placed claimant in a wheelchair causing physical pain and
discomfort to claimant's body.
52. Defendant placed a G.P.S device on claimant's person/property/body.
53. Defendant's reckless actions resulted In the following injuries, assault, false
imprisonment, offensive touching, lost earnings in claimants vocation and inflection
of intangible elements of pain to the claimant's person/property/body.
54. Defendant's wrongful acts caused injury to claimant, which resulted inflection of
intangible elements of pain to the claimant's person and lost earnings in his vocation.
Claimant seeks damages in the amount reasonable to the jury's discretion.
55. Claimant seeks damages within the general jurisdictional limits of this Court.
1. COU
NF8 - THREAT OF BODILY INJURY
Paragraphs 7 through are incorporated by reference as though fully stated herein.
56. In addition to other counts, defendant threatened claimant with imminent bodily
injury.
57. Defendant recklessly stated that he would not arrest the claimant if he would
agree to allowens collcague to represent him.
11 of 13
58. Defendant recklessly stated that plaintiff would be charged with a crime if he
removed the GPS device without a court order from County court # 4
59. Defendant's reckless actions resulted in the following injuries. assault, false
imprisonment, offensive touching, lost earnings in his vocation and inflection of
intangible elements of pain to the claimant's person.
60. Claimant seeks damages within the jurisdictional limits of this Court.
J. COUNT 9 - INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
Paragraphs 7 through 8 are incorporated by reference as though fully stated herein.
61. In the addition to all other counts, defendant recklessly caused claimant
emotional distress.
62. Defendant's reckless disregard for life, liberty, process and the pursuit of
happiness is in direct opposition to the beliefs of the claimant and the law of the land.
63. Defendant's acts of extreme and outrageous conduct tarted from the 29th of
September 2015 until present.
64. Claimant spent four day (4) without shoes, clothes or a mat in a cell at very
cold temperatures.
65. Defendant's created a condition of despair at Travis County Correctional
Complex location: 509 west 11th street, Austin Texas and at the Travis County
Correctional Complex location: 3614 Bill Price road, Dcl Valle, Texas.
66. Claimant 's hair began falling out due to the stress and paranoia, which resulted
in the claimant cutting all of his hair off.
67. Claimant's has reason to believe his offspring are having adverse affect due to
the reckless actions and or inactions of the defendants.
68. Claimant seeks damages within the jurisdictional limits of this Court.
K. JURY DEMAND
69. Claimant demands a jury trial and tenders the appropriate fee with this petition.
L. REQUEST FOR DISCLOSURE
70. Indistinguishable from Texas Rule of Civil Procedure 194, claimant requests
that defendant disclose, within 50 days of the service of this request, the information
or material described in Rule 194.2.
M. OBJECTION TO ASSOCIATE JUDGE
12 of 13
Claimant objects to the referral of this case to an associate judge for hearing a
trial 71. on the merits or presiding at a jury trial.
N. PRAYER
asks that the Court issue citation awarded for defendant judgment to
72. In answer the addition and remove to claimant G.P.S. device. and that claimant be a
appear, against defendant for the following:
Actual damages.
a.
b.
Exemplary damages.
Prejudgment and postjudgment interest.
c.
Order Defendant to pay Claimant attorney fees and costs of court
d.
All other relief to which claimant is entitled.
c.
Respectfully submitted,
Clerk
Christian-Andre: Clark
General location:
7007 Greenock street
Austin, Texas
(cell) 512-817-7502
ChristianClark31@gmail.com
Thanks
COPY
13 of 13
CIVIL CASE INFORMATION SHEET
CAUSE NUMBER (FOR CLERK USE ONLY):
COURT (FORCLERKUSFONIY):
STYLED Christian-Andre Clark v Steven Johnson Mathew Murpy Mike Dent Phil Cumpbell, D
E Malhotra. I
(e.g. John Smith All American Insurance Cox In re Mary Arm ones, In the Matter of the
Geor Jack
A civil case information sheet must be completed and submitted when an original petition or application is GI
initiate a new I m
health case or when a post-judgment petition for modification or motion for enforcement IS 1: ed in D family law
The informat on
the time of filing
1. Contact information for person completing case information sheet:
Names of parties in case
Person or entiry completing sheet is:
Attorney for Plaintifl/Petitioner
Name
Lmail
P'laint:fRsyPetitioner
Pro Se P'laintifiPetitioner
Title IV-D Agency
Christian-Andre Clark
ChristianClark 3 sigmail com
Chri tian-Andre C
Other Claimain
Address
Telephone
Add
P
c/o 7007 Greenock
512-817-7502
Delendant(sVRespond
Custodi P nt
City/State/Zip
Fax
Steve Johnson, Mut
rp
Austin/Texas/|78749|
Non
(
Mike Dent Dimpl M
Signature
State Bar No
Jesse Iburra h mber
'
[Attach additional
2. Indicate case type, or identify the most important issue in the case (select only 1):
Civil
Family Law
Post judgment Actions
Contract
Injury or Damage
Real Property
Marris Relationship
(non-Title IV D)
Debt Contract
Assault/Battery
I minent Domair
An
nt
Enforcement
Consumer/DTPA
Construction
Condemnation
Dec-
tarriage Vo
Modification-Custody
Debt/Contract
Defamation
Partition
DIL The
Modification-Other
IFraud/Mistepresentation
Malpractice
Quiet Title
YGW
hildren
Title IV D
Other Debt/Contract
Accounting
Trespass to Try lite
N
Idren
Enforcement/Modification
Legal
Other Property
Paternity
Foreclosure
Medical
Reciprocals (UIFSA)
lome Equity-Expedited
Other Professional
Support Order
Other Foreclosure
Liability
Franchise
Related to Crimina.
Insurance
Motor Vehicle Accident
Matters
Other Family Law
Parent Child Relationship
Landlord/Tenant
Premises
E xpunction
Inforce Foreign
Adoption/Adoption with
Non-Competition
Product Liability
Judgement Ni
Judgement
Termination
Partnership
Asbestos/Silica
Non Disclosure
labeus Corpus
Child Protection
Other Contract
Other Product Liability
Seizure For
can
Name Change
Child Support
List Product
Writ of Heboos Corpus-
Protective Order
Custody or Visitation
Pre indiction
Removal of D sabi
Gestational Parenting
Other Injury or Damage
Other
of Minority
Grandparent Access
Other
Parentage/Paternity
Termination of Parental
Employment
Other
Rights
Other Parent-Child
Discrimination
Administrative Appeal
lawyer Discipline
Retaliation
Antitrust/Unfair
Perpetuate mony
Termination
Competition
securities/Stock
Workers Compensation
Code Violations
Tortion Interferen
Other Employment
Foreign Judgment
Other
Intellectual Property
Tax
Probate & Mental Health
Tax Appraisal
Probate II ills/Intestat Administration
GuardianshipAduls
Tax Delinquency
Dependent Administration
Guardianship-Minor
Other Tax
Independent d.ministration
Mental Health
Other Estate Seedings
Other
3. Indicate procedure or remedy If applicable
elect than
Appeal from Municipal or Justice Court
Declaratory Judgment
Arhitritiem-rcluied
Garnishment
Prix
Attachment
Interpleader
R c
Bill of Review
License
Certiorari
Mandamus
Class Action
Post-judgment
d.
Indicate damages sought (do not That is is is . family law case):
Less than $100,000. including dartigues of any kind. penalties costs expenses, pre judgment interest, and
Less than $100,000 and non-monatary relief
Over $100,000 but not more tam $200,000
Over $200,000 but not more Than $1,000,000
Over $1,000,000
R
2/13
8/19/2016 9:37:58 AM
Velva L. Price
District Clerk
Travis County
CAUSE NO: D-1-GN-16-002854
D-1-GN-16-002854
Carrisa Escalante
CHRISTIAN-ANDRE CLARK,
§
IN THE DISTRICT COURT
Plaintiff,
§
§
V.
§
TRAVIS COUNTY, TEXAS
§
STEVEN JOHNSON, MATTHEW
§
MURPHY ET AL.,
§
Defendants.
§
201st JUDICIAL DISTRICT
DEFENDANT CITY OF AUSTIN'S ORIGINAL ANSWER, AFFIRMATIVE DEFENSES,
SPECIAL EXCEPTIONS, AND REQUEST FOR DISCLOSURE
TO THE HONORABLE JUDGE OF SAID COURT:
Defendants Steven Johnson, Matthew Murphy and the Austin Police Department
(collectively City Defendants), file the Original Answer, Affirmative Defenses, Special
Exceptions, and Request for Disclosures as follows:
I. General Denial
1.
Pursuant to Texas Rule of Civil Procedure 92, City Defendants, deny generally
the allegations in Plaintiff's Original Petition (and any amendments or supplements thereto), and
request that Plaintiff prove his claims and allegations as required by law.
II. Affirmative Defenses
City Defendants assert the following affirmative and other defenses:
2.
Official Immunity: Defendants Steven Johnson and Matthew Murphy as
employees of the Austin Police Department-a Department within the City of Austin, which is a
home-rule municipality and political subdivision of the State of Texas2 enjoy governmental
1 The Austin Police Department is not a separate legal entity subject to suit. See Darby V. Pasadena Police Dep't.
939 F.2d 311, 313-14 (5th Cir. 1991).
immunity both from suit and from liability, unless the Texas Legislature has provided a limited
waiver of governmental immunity under the Texas Tort Claims Act. Defendants Johnson and
hereby affirmatively plead and assert their defense of official immunity and their claim to and
defenses under the Texas Tort Claims Act. Tex. Civ. Prac. & Rem. Code Ann. § 101.001 et seq.
3.
City Defendants specifically assert that at all times relevant to this incident, they
were acting in the course and scope of their employment with the City of Austin, and with a
good faith belief that their actions were proper under the Constitution and the laws of the State of
Texas.
4.
City Defendants assert that they had legal authority, privilege and justification to
arrest Plaintiff based upon a valid warrant issued by a court of competent jurisdiction.
5.
Notice: Plaintiff has failed to provide the required notice under the Texas Tort
Claims Act and the City Charter. Failure to provide timely notice of claim bars Plaintiff's cause
of action.
6.
Intentional Torts: Plaintiff's claims are barred under TCPRC § 101.057 to the
extent the allegations suggest an intentional tort.
7.
The City Defendants further assert that the Plaintiff's damages, if any, were solely
caused or proximately caused by Plaintiff's own acts or omissions.
8.
The City Defendants further assert that the Plaintiff has failed to mitigate
damages, if any, and assert this failure to mitigate as both an affirmative defense and a reduction
in the damage amount, if any.
9.
In addition to the foregoing defenses, the City Defendants hereby reserve the right
to add inferential rebuttals, amend or withdraw defenses, supplement allegations pertaining to
2
City of Austin has not been named nor served with process under this case.
2
defenses already asserted upon completion of discovery and/or through leave of the Court.
III. Special Exceptions
10.
The City Defendants specially except to Plaintiff's Original Petition in its entirety
for the following reasons and respectfully requests this Honorable Court to order Plaintiff to re-
plead and cure his pleading defects SO that the City has fair notice of all claims. The City
Defendants request that Plaintiff replead within thirty (30) days or that his pleadings be stricken.
11.
The City Defendants specially except to Plaintiff's Original Petition for Plaintiff's
failure to comply with Rule 47 of the Texas Rules of Civil Procedure, amended as of March 1,
2013. Accordingly, the City request that discovery is stayed until Plaintiff has amended his
pleadings as required by the Texas Rules of Civil Procedure.
12.
The City Defendants specially except to Plaintiff's Original Petition in its entirety
for the reason that Plaintiff failed to plead all elements of a waiver of sovereign under the Texas
Tort Claims Act.
IV. Request for Disclosure
13.
Pursuant to Texas Rule of Civil Procedure 194, Defendant, City of Austin,
requests that Plaintiff disclose, within 30 days of the service of this request, the information or
material described in Rule 194.2.
V. Prayer
Defendants pray that Plaintiff take nothing by his suit. Defendants further request any
and all other relief that it shows it is justly entitled.
3
RESPECTFULLY SUBMITTED,
ANNE L. MORGAN, CITY ATTORNEY
MEGHANI L. RILEY, CHIEF, LITIGATION DIVISION
/s/ Meghan L. Riley
MEGHAN L. RILEY
Assistant City Attorney
State Bar No. 24049373
City of Austin-Law Department
P.O. Box 1546
Austin, Texas 78767-1546
Telephone: (512) 974-2458
Facsimile: (512) 974-1311
meghan.riley@austintexas.gov
ATTORNEYS FOR CITY DEFENDANTS
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, on this the 19th day
of August, 2016, as follows:
Via CM RRR 91 7199 9991 7036 2378 1096, first class mail and email to:
Christian-Andre Clark
7007 Greenock Street
Austin, Texas 78749
Christianclark31@gmail.com
PRO SE
Via e-File to:
David A. Escamilla
Andrew M. Williams
Patrick M. Kelly
P.O. Box 1748
Austin, Texas 78767
ATTORNEYS FOR TRAVIS COUNTY DEFENDANTS
/s/ Meghan L Riley
MEGHAN L. RILEY
Assistant City Attorney
4
9/6/2016 8:12:42 PM
Velva L. Price
District Clerk
Travis County
CAUSE NO. D-1-GN-16-002854
D-1-GN-16-002854
Carrisa Escalante
CHRISTIAN-ANDRE CLARK,
)
IN THE DISTRICT COURT
Claimant,
V.
)
TRAVIS COUNTY, TEXAS
STEVEN JOHNSON, ET AL.,
Defendant(s). )
201ST JUDICIAL DISTRICT
DEFENDANT'S ORIGINAL ANSWER
JURY DEMAND AND REQUEST FOR DIS LOSURE
COMES NOW, Phil Campbell, Defendant, and files IS Original Answer, Jury
Demand and Request for Disclosure to Plaintiff's Original Petition.
you
GENERAL DENIAL
Defendant asserts a general denial as authorized by Rule 92 of the Texas Rules
of Civil Procedure and respectfully requests that Plaintiff be required to prove the
charges and allegations against Defendant by a preponderance of the evidence as
required by the Constitution and laws of the State of Texas.
AFFIRMATIVE DEFENSES
Comparative Responsibility: Defendant asserts that Plaintiff's amount of recovery,
if any, is affirmatively barred and/or limited by theories of comparative responsibility
and/or contribution and/or failure to mitigate damages.
Proportionate Responsibility and Contribution: Defendant asserts that Plaintiff's
own acts or omissions caused or contributed to Plaintiff's alleged injury.
JURY DEMAND
Defendant asserts his right to a trial by jury, under Texas constitution article 1,
section 15, and makes this demand for a jury trial at least 30 days before the date
this case is set for trial, in accordance with Texas rule of Civil Procedure 216.
REQUEST FOR DISCLOSURE
Pursuant to Rule 194 of the Texas rules of Civil Procedure, Delendant asks that the
Plaintiff disclose the information and materials described in Pole 194.2.
WHEREFORE, PREMISES CONSIDERED, Defendant prays that Plaintiff take
nothing by reason of his suit and that Defendant recover his expenses, with all costs
of court and any other and further relief to which they may show themselves justly
entitled.
Respectfully submitted,
Plis
Cypble
PUIL CAMPBELL
100 E. Whitestone Blvd., #148-272
copy
Cedar Park, TX 78613
Fax: (512) 267-7999
(512) 825-3365
Bar No. 03702700
philcamp60@yahoo.com
CERTIFICATE OF SERVICE
I certify by my signature above that a true and correct copy of the foregoing was
served in accordance with the Texas Rules of civil Procedure by electronic filing,
electronic service and/or electronic mail on August 6, 2016, as follows:
Via Electronic Filing
Velva L. Price
Travis County District Clerk
1000 Guadalupe Street
Austin, Texas 78701
9/16/2016 3:10:15 PM
Velva L. Price
District Clerk
Travis County
CAUSE NO: D-1-GN-16-002854
D-1-GN-16-002854
Jessica Arzola
CHRISTIAN-ANDRE CLARK,
§
IN THE DISTRICT COURT
Plaintiff,
§
§
V.
§
TRAVIS COUNTY, TEXAS
§
STEVEN JOHNSON, MATTHEW
§
MURPHY ET AL.,
§
Defendants.
§
201 st JUDICIAL DISTRICT
DEFENDANTS STEVEN JOHNSON, MATTHEW MURPHY, AND AUSTIN POLICE
DEPARTMENT'S MOTION TO DISMISS FOR LACK OF JURISDICTION
TO THE HONORABLE JUDGE OF SAID COURT:
Defendants Steven Johnson, Matthew Murphy and the Austin Police Department
1
(collectively City Defendants)², file this Motion to Dismiss for Lack of Jurisdiction and would
show as follows:
I.
FACTUAL BACKROUND
On Tuesday, September 29, 2015 around 10:30PM, Austin Police Department Officers
Steven Johnson and Matthew Murphy (the "Officers") responded to a disturbance call located at
11305 Friendship Drive. Upon arrival, Officer Johnson could hear a male yelling from inside the
house. Officer Johnson knocked on the door and announced that he was with the Austin Police
Department. Christian-Andre Clark ("Plaintiff") came to the door and stepped outside to talk
with Officer Murphy. Officer Johnson then walked inside and made contact with Ebony Davis
1
The Austin Police Department is not a separate legal entity subject to suit. See Darby V. Pasadena Police Dep't.
939 F.2d 311, 313-14 (5th Cir. 1991).
2
Note: The City of Austin has not been named nor served with process under this case.
("Complainant"). Complainant stated that she and Plaintiff got into an argument and he punched
her in the face with a closed right handed fist. At that point, the Plaintiff was detained until the
Officers could further their investigation.
After further discussion with the Complainant the Officers had probable cause to believe
that Plaintiff had committed a family violence assault against the Complainant. It was also
believed that 3 minor children were present for the assault. Plaintiff was then searched incidental
to the arrest and transported to the Travis County Jail where he was booked in for assault with
injury - family violence Class A Misdemeanor.
II.
ARGUMENTS AND AUTHORITIES
A. Official Immunity - Police Officers Steven Johnson and Matthew Murphy
A plea to the jurisdiction challenges the trial court's authority to determine the subject
matter of the action. Tex. Dep't of Transp. V. Jones, 8 S.W.3d 636, 638 (Tex. 1999). Whether the
trial court has jurisdiction is a question of law. Texas Nat. Res. Conversy. Com'n V. IT-Davy, 74
S.W.3d 849, 855 (Tex. 2002). The plaintiff has the burden of alleging facts that affirmatively
establish the trial court's jurisdiction. Tex. Ass'n of Bus. V. Tex. Air Control Bd., 852 S.W.2d 440,
466 (Tex. 1993). The plaintiff must plead each element of each claim to establish jurisdiction.
Mission Consol. Independent School Dist. V. Garcia, 372 S.W.3d 629, 637 (2012).
Official immunity "is an affirmative defense that protects a governmental employee from
personal liability and, in doing so, preserves a governmental employer's sovereign immunity
from suit for vicarious liability." Texas Dep't of Pub. Safety V. Bonilla, 481 S.W.3d 640, 642
(Tex. 2015). Specifically, "[a] governmental employee is entitled to official immunity: (1) for
the performance of discretionary duties; (2) within the scope of the employee's authority; (3)
2
provided the employee acts in good faith. Univ. of Houston V. Clark, 38 S.W.3d 578, 580 (Tex.
2000).
Functions that are ministerial in nature are not protected by official immunity. Kersey V.
Wilson, 69 S.W.3d 794, 798 (Tex. App.- Fort Worth, 2002). The distinction between ministerial
and discretionary acts is that, "where the law prescribes and defines the duty to be performed
with such precision and certainty as to leave nothing to the exercise of discretion or judgment,
the act is ministerial." Id. However, "where the act to be done involves the exercise of
discretion of judgment in determining whether the duty exists, it is not to be deemed ministerial."
Id. Courts have determined that "[a]n officer's decision regarding 'if, how, and when to arrest a
person' is discretionary." Id. at 799.
Additionally, Texas Penal Code Chapter 22 defines what constitutes the offense of
assault and makes such an offense punishable as a Class A misdemeanor. Furthermore, a peace
officer is permitted to arrest a person without a warrant provided they have probable cause to
believe that an assault has occurred. Tex. Code of Crim. Pro. Art. 14.03. To make the
determination that probable cause exists that a person has committed an offense, such as assault,
requires personal deliberation and judgment. Kersey, at 799. The subsequent arrest is thus
considered a discretionary act. Id. Additionally, courts have recognized official immunity in
cases "involving allegations of intentional torts such as assault arising from police activity." Id.
And the Texas Tort Claims Act does not waive immunity for intentional torts. See TCPRC §
101.057.
Here, the Officers have official immunity for their actions in regards to the arrest of
Plaintiff. Moreover, the Plaintiff has failed to articulate any waiver of official immunity. The
Officers determined, based upon their investigation, that probable cause existed to believe that
3
Plaintiff had committed the offense of a Class A misdemeanor assault against Complainant. The
act of arresting Plaintiff was a discretionary decision based on that judgment. And under the
Texas Code of Criminal Procedure the arrest was within the scope of their authority as Police
Officers for the City of Austin Police Department. Moreover, the Officers acted in good faith
belief that the Plaintiff committed a criminal act based upon the credible allegations of the
Complainant. Additionally, their acts were not ministerial because the law did not require the
Officers to determine that an assault had occurred, nor did the law require them to arrest the
Plaintiff (Note: the Code of Criminal Procedure states that an officer may arrest a suspect),
instead they used their discretion and judgment in determining that they had a duty to arrest
Plaintiff. In fact, the officers were required to make at least two discretionary decisions in
effecting the arrest of Plaintiff according to the Code of Criminal Procedure: 1) that probable
cause existed to believe that the assault had occurred; and 2) that probable cause existed to
believe there was a danger of further bodily injury to the victim. See Tex. Code of Crim. Pro.
Art. 14.03.
Finally, any alleged intentional tort against Plaintiff is also barred by immunity. Again,
the courts have recognized that official immunity exists for intentional torts, and any assault that
allegedly occurred during the Officers' arrest occurred under the exact same circumstance that
already cloak their actions in official immunity. And the Texas Tort Claims Act explicitly
provides that immunity is not waived under the Act for intentional torts.
In conclusion, the court should find that it does not have jurisdiction over the allegations
against Officers Steven Johnson and Matthew Murphy because their actions are protected by
official immunity. Therefore, the court should dismiss all causes of action against the Officers in
their entirety with prejudice to the re-filing of same.
4
B. Lack of Jural Entity - Austin Police Department
The court does not have jurisdiction with regard to the allegations against the Austin
Police Department because the Austin Police Department 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. 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. 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, and absent such designation it cannot be sued.
Therefore, the court does not have jurisdiction with regard to the allegations against the
Austin Police Department, because it is not a legal entity, and the court must dismiss all causes
of action against the Austin Police Department with prejudice to the re-filing of same.
III.
PRAYER
THEREFORE, Defendants pray that their Motion to Dismiss for Lack of Jurisdiction be
set, and after a hearing, if necessary, that their Motion be granted, that the Plaintiff's causes of
action be dismissed in their entirety with prejudice to the re-filing of same, that Plaintiff take
nothing by this suit, all costs of court be assessed against each party, and that they be granted any
additional relief to which they are entitled to under law or equity.
5
RESPECTFULLY SUBMITTED,
ANNE L. MORGAN, CITY ATTORNEY
MEGHAN L. RILEY, CHIEF, LITIGATION DIVISION
/s/ Brandon W. Carr
BRANDON W. CARR
Assistant City Attorney
State Bar No. 24074004
City of Austin-Law Department
P.O. Box 1546
Austin, Texas 78767-1546
Telephone: (512) 974-2181
Facsimile: (512) 974-1311
Brandon.Carr@austintexas.gov
ATTORNEYS FOR CITY DEFENDANTS
6
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, on this 16th day of
September, 2016, as follows:
Via CM RRR 91 7199 9991 7036 2336 3681, first class mail, and email to:
Christian-Andre Clark
7007 Greenock Street
Austin, Texas 78749
Christianclark31@gmail.com
PRO SE
Via e-Filing to:
Andrew M. Williams
SBN 24068345
andrew.williams@traviscountytx.gov
Patrick M. Kelly
SBN 11228000
pat.kelly@traviscountytx.gov
P.O. Box 1748
Austin, Texas 78767
(512) 854-9513
(512) 854-4808 (Fax)
ATTORNEYS FOR TRAVIS COUNTY DEFENDANTS
/s/
Brandon W. Carr
BRANDON W. CARR
7
Filed in The District Court
of Travis County, Texas
JAN 24 2017
CAUSE NO. D-1-GN-16-002854
At
12:23 P M.
Velva L. Price, District Clerk
CLARK
§
IN THE DISTRICT COURT OF
§
V.
§
TRAVIS COUNTY, TEXAS
§
JOHNSON, et al.
§
201st JUDICIAL DISTRICT
ORDER GRANTING CHAPTER 13 MOTION TO DISMISS
The Court has considered Judge Mike Denton, Pretrial Officer III Kimberly Legge
and Assistant County Attorney Dimple Malhotra's Chapter 13 Motion to Dismiss. After
considering the pleadings, evidence and arguments of plaintiff and counsel for Travis
County Attorney, the Court finds that the Chapter 13 Motion to Dismiss is meritorious
and should be GRANTED. Therefore, it is ORDERED, ADJUDGED AND DECREED that
Judge Mike Denton, Pretrial Officer III Kimberly Legge and Assistant County Attorney
Dimple Malhotra's Chapter 13 Motion to Dismiss is in all things GRANTED and that all
of plaintiff's claims against Judge Mike Denton, Pretrial Officer III Kimberly Legge and
Assistant County Attorney Dimple Malhotra are hereby DISMISSED WITH PREJUDICE.
Signed this 24th day of January, 2017.
The Honorable Scott H. Jenkins
Page 1 of 1
Filed in The District Court
of Travis County, Texas
JAN 24 2017
At
12:23
M.
CAUSE NO. D-1-GN-16-002854
Velva L. Price, District Clerk
CLARK
§
IN THE DISTRICT COURT OF
§
V.
§
TRAVIS COUNTY, TEXAS
§
JOHNSON, et al.
§
201st JUDICIAL DISTRICT
ORDER ON JOHNSON, MURPHY AND APD's
MOTION TO DISMISS FOR LACK OF JURISDICTION
The Court considered Defendants Steven Johnson, Matthew Murphy, and Austin
Police Department's Motion to Dismiss for Lack of Jurisdiction (hereinafter the
"Motion"). After considering the pleadings, the applicable law, the arguments of counsel
and plaintiff, and the evidence on file, the Court is of the opinion that the Motion should
be GRANTED IN PART and DENIED IN PART.
Since the Austin Police Department (APD) is not a legal entity subject to suit, the
Court hereby GRANTS APD's motion to dismiss. Plaintiff's claims against APD are
DISMISSED WITH PREJUDICE, with costs to be assessed against the party incurring the
same. If necessary, plaintiff may amend his petition to name the City of Austin as a
defendant.1
Defendants Johnson and Murphy have pled the affirmative defense of official
immunity. Official immunity must be proved by the party asserting it and is more properly
the subject of a motion for summary judgment. As such, the Court DENIES Johnson and
Murphy's motion to dismiss at this time. This denial is WITHOUT PREJUDICE to
Johnson and Murphy reasserting their jurisdictional arguments at a future summary
1 Plaintiff named "Austin Texas" as a defendant. An answer purporting to be on behalf of Johnson, Murphy and
APD and entitled "Defendant City of Austin's Original Answer" was filed on August 19, 2016. This answer
contained a request for disclosure by "Defendant, City of Austin."
Page 1 of 2
judgment hearing.
Signed this 24th day of January, 2017.
Jalla The Honorable Scott Juli H. Jenkins
Page 2 of 2
D-1-Gin-16-2854
2/3/2017 2:54:22 PM
Velva L. Price
District Clerk
Travis County
CAUSE NO. D-1-GN-16-002854
D-1-GN-16-002854
Raeana Vasquez
CHRISTIAN-ANDRE CLARK,
§
IN THE DISTRICT COURT
Plaintiff,
§
§
V.
§
TRAVIS COUNTY, TEXAS
§
STEVEN JOHNSON, MATTHEW
§
MURPHY ET AL.,
§
Defendants.
§
201s st JUDICIAL DISTRICT
DEFENDANTS STEVEN JOHNSON'S AND MATTHEW MURPHY'S TRADITIONAL
MOTION FOR SUMMARY JUDGMENT
TO THE HONORABLE JUDGE OF SAID COURT:
Defendants Steven Johnson and Matthew Murphy 1 ("City Defendants") ², file this
Traditional Motion for Summary Judgment and would show as follows:
I.
FACTUAL BACKROUND
On Tuesday, September 29, 2015 around 10:30PM, Austin Police Department Officers
Steven Johnson and Matthew Murphy (the "Officers") responded to a disturbance call located at
11305 Friendship Drive. See Exhibit R, pg. 8, attached. Upon arrival, Officer Johnson could
hear a male yelling from inside the house. Id. Officer Johnson knocked on the door and
announced that he was with the Austin Police Department. Id. Christian-Andre Clark
1
The Austin Police Department was dismissed as a Defendant in the Court's Order issued on January 24, 2017. In
that Order, Judge Jenkins, in denying the PTJ as to Defendants Johnson and Murphy, stated that their official
immunity arguments would be more properly pled in a Motion for Summary Judgment.
2
Note: Plaintiff's claims were also dismissed as to Judge Mike Denton, Pretrial Officer III Kimberly Legge, and
Assistant County Attorney Dimple Malhotra in a separate Order issued the same day. Also note that the City of
Austin has not been named nor served with process in this matter.
Defendants Steven Johnson's and Matthew Murphy's
Traditional Motion for Summary Judgment
Page 1 of 6
("Plaintiff") came to the door and stepped outside to talk with Officer Murphy. Id. Officer
Johnson then walked inside and made contact with E.D. ("Complainant"). Id. Complainant
stated that she and Plaintiff got into an argument and he punched her in the face with a closed
right handed fist. Id. At that point, the Plaintiff was detained until the Officers could further
their investigation. Id.
After further discussion with the Complainant the Officers had probable cause to believe
that Plaintiff had committed a family violence assault against the Complainant. Id., at pg. 9.
Plaintiff never denied punching Complainant; instead, he told Officers if they wanted to know
what happened, to speak with the Complainant. Id., pg. 8. Complainant then filled out an
Assault Victim Statement which was submitted at Plaintiff's arrest. Id., pg. 8. It was also
believed that 3 minor children were present for the assault. Id., pg. 9. Plaintiff was then
searched incidental to the arrest and transported to the Travis County Jail where he was booked
in for assault with injury - family violence Class A Misdemeanor. Id., pg. 8-9.
Plaintiff now sues Defendants for allegedly arresting him without "process" and without
probable cause.
II.
ARGUMENTS AND AUTHORITIES
A. Standard of Review
The purpose of summary judgment is to permit the trial court to dispose promptly of
cases that involve unmeritorious claims or untenable defenses. City of Houston V. Clear Creek
Basin Authority, 589 S.W.2d 671, 678 n.5 (Tex. 1979); Austin V. Inet Technologies, Inc., 118
S.W.3d 491 (Tex. App.--Dallas 2003, no pet.). To prevail on a summary judgment motion under
Rule 166a, a movant must establish that there is no genuine issue concerning any material fact as
Defendants Steven Johnson's and Matthew Murphy's
Traditional Motion for Summary Judgment
Page 2 of 6
a matter of law. Tex. Rule Civ. Proc., Rule 166(a); Cathey V. Booth, 900 S.W.2d 339, 341
(Tex.1995) (per curiam). A defendant who conclusively negates at least one of the essential
elements of each of the plaintiff's causes of action or who conclusively establishes all of the
elements of an affirmative defense is entitled to summary judgment. Wornick Co. V. Casas, 856
S.W.2d 732, 733 (Tex. 1993); Montgomery V. Kennedy, 699 S.W.2d 309, 310-11 (Tex.1984).
B. Official Immunity - Police Officers Steven Johnson and Matthew Murphy
Official immunity "is an affirmative defense that protects a governmental employee from
personal liability and, in doing so, preserves a governmental employer's sovereign immunity
from suit for vicarious liability." Texas Dep't of Pub. Safety V. Bonilla, 481 S.W.3d 640, 642
(Tex. 2015). Specifically, "[a] governmental employee is entitled to official immunity: (1) for
the performance of discretionary duties; (2) within the scope of the employee's authority; (3)
provided the employee acts in good faith. Univ. of Houston V. Clark, 38 S.W.3d 578, 580 (Tex.
2000).
Functions that are ministerial in nature are not protected by official immunity. Kersey V.
Wilson, 69 S.W.3d 794, 798 (Tex. App.- Fort Worth, 2002). The distinction between ministerial
and discretionary acts is that, "where the law prescribes and defines the duty to be performed
with such precision and certainty as to leave nothing to the exercise of discretion or judgment,
the act is ministerial." Id. However, "where the act to be done involves the exercise of
discretion of judgment in determining whether the duty exists, it is not to be deemed ministerial."
Id. Courts have determined that "[a]n officer's decision regarding 'if, how, and when to arrest a
person' is discretionary." Id. at 799.
Additionally, Texas Penal Code Chapter 22 defines what constitutes the offense of
assault and makes such an offense punishable as a Class A misdemeanor. Furthermore, a peace
Defendants Steven Johnson's and Matthew Murphy's
Traditional Motion for Summary Judgment
Page 3 of 6
officer is permitted to arrest a person without a warrant provided they have probable cause to
believe that an assault has occurred. Tex. Code of Crim. Pro. Art. 14.03. To make the
determination that probable cause exists that a person has committed an offense, such as assault,
requires personal deliberation and judgment. Kersey, at 799. The subsequent arrest is thus
considered a discretionary act. Id. Additionally, courts have recognized official immunity in
cases "involving allegations of intentional torts such as assault arising from police activity." Id.
And the Texas Tort Claims Act does not waive immunity for intentional torts. See TCPRC §
101.057.
Here, the Officers have official immunity for their actions in regards to the arrest of
Plaintiff. Moreover, the Plaintiff has failed to articulate any waiver of official immunity. The
Officers determined, based upon their investigation, that probable cause existed to believe that
Plaintiff had committed the offense of a Class A misdemeanor assault against Complainant. The
act of arresting Plaintiff was a discretionary decision based on that judgment. And under the
Texas Code of Criminal Procedure the arrest was within the scope of their authority as Police
Officers for the City of Austin Police Department. Moreover, the Officers acted in good faith
belief that the Plaintiff committed a criminal act based upon the credible allegations of the
Complainant. Additionally, their acts were not ministerial because the law did not require the
Officers to determine that an assault had occurred, nor did the law require them to arrest the
Plaintiff (Note: the Code of Criminal Procedure states that an officer may arrest a suspect),
instead they used their discretion and judgment in determining that they had a duty to arrest
Plaintiff. In fact, the officers were required to make at least two discretionary decisions in
effecting the arrest of Plaintiff according to the Code of Criminal Procedure: 1) that probable
cause existed to believe that the assault had occurred; and 2) that probable cause existed to
Defendants Steven Johnson's and Matthew Murphy's
Traditional Motion for Summary Judgment
Page 4 of 6
believe there was a danger of further bodily injury to the victim. See Tex. Code of Crim. Pro.
Art. 14.03.
Finally, any alleged intentional tort against Plaintiff is also barred by immunity. Again,
the courts have recognized that official immunity exists for intentional torts, and any assault that
allegedly occurred during the Officers' arrest occurred under the exact same circumstance that
already cloaks their actions in official immunity. And the Texas Tort Claims Act explicitly
provides that immunity is not waived under the Act for intentional torts.
In conclusion, the court should find that there is no issue of fact with regards to the
Plaintiff's allegations against Officers Steven Johnson and Matthew Murphy. And based on the
undisputed facts, their actions are protected by official immunity. Therefore, the court should
dismiss all causes of action against the Officers in their entirety with prejudice to the re-filing of
same.
III.
PRAYER
THEREFORE, Defendants pray that their Traditional Motion for Summary Judgment be
set, and after a hearing, if necessary, that their Motion be granted, that the Plaintiff's causes of
action be dismissed in their entirety with prejudice to the re-filing of same, that Plaintiff take
nothing by this suit, all costs of court be assessed against each party, and that they be granted any
additional relief to which they are entitled to under law or equity.
RESPECTFULLY SUBMITTED,
ANNE L. MORGAN, CITY ATTORNEY
MEGHAN L. RILEY, CHIEF, LITIGATION
DIVISION
Defendants Steven Johnson's and Matthew Murphy's
Traditional Motion for Summary Judgment
Page 5 of 6
/s/ Brandon W. Carr
BRANDON W. CARR
Assistant City Attorney
State Bar No. 24074004
City of Austin-Law Department
P.O. Box 1546
Austin, Texas 78767-1546
Telephone: (512) 974-2181
Facsimile: (512) 974-1311
Brandon.Carr@austintexas.gov
ATTORNEYS FOR CITY DEFENDANTS
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, on this 3rd day of
February, 2017, as follows:
Via CM RRR 91 7199 9991 7036 8892 8177, first class mail, and email to:
Christian-Andre Clark
7007 Greenock Street
Austin, Texas 78749
Christianclark31@gmail.com
PRO SE
Via e-Filing to:
Andrew M. Williams
SBN 24068345
andrew.williams@traviscountytx.gov
Patrick M. Kelly
SBN 11228000
pat.kelly@traviscountytx.gov
P.O. Box 1748
Austin, Texas 78767
(512) 854-9513
(512) 854-4808 (Fax)
ATTORNEYS FOR TRAVIS COUNTY DEFENDANTS
/s/ Brandon W. Carr
BRANDON W. CARR
Defendants Steven Johnson's and Matthew Murphy's
Traditional Motion for Summary Judgment
Page 6 of 6
Exhibit R
POLICE
AUSTIN POLICE DEPARTMENT
GENERAL OFFENSE HARDCOPY
(ASSAULT W/INJURY-FAM/DATE VIOL)
AUSTIN
GO# 2015-2721930
Table of Contents
Related Event GO# 2015-2721930
1
Offense(s)
1
Related Event(s)
2
Related Person(s)
2
1. VICTIM # 1 - DAVIS, EBONY
2
2. ARRESTED # 1 - CLARK, CHRISTIAN ANDRE
3
3. JUV-OBSERV/ # 1 - CLARK, CAJALYN
4
4. JUV-OBSERV/ # 2 - CLARK, CHRISTINA
5
5. JUV-OBSERV/ # 3 - DOTSON, JORDAN
6
Related Narrative(s)
7
1. PRESS RELEASE
7
2. INITIAL REPORT
8
3. SUPPLEMENTS - AVS ATTACHED
10
Related Follow Up(s)
15
1. Follow Up Report # 1
15
2. Follow Up Report # 2
17
Related Clearance Information
19
Related Arrest(s)
20
1. Related Arrest Report AB# 2015-37586
20
Related Attachment(s)
22
1. AUDIO RECORDING
22
POLICE
AUSTIN POLICE DEPARTMENT
GO# 2015-2721930
CLEARED BY ARREST
GENERAL OFFENSE HARDCOPY
(IBRS)
AUSTIN
(0900-1 ASSAULT W/INJURY-FAM/DATE VIOL)
General Offense Information
Operational Status CLEARED BY ARREST (IBRS)
Reported On SEP-29-2015 (TUE.) 2301
Occurred On SEP-29-2015 (TUE.) 2225
Approved On OCT-16-2015 (FRI.)
Approved By AP6294 - CAMPOS, HECTOR
Report Submitted AP7804 - JOHNSON, STEPHEN
By
Org Unit EDWARD 800 REG Il PATROL
Accompanied By AP7617 - MURPHY, MATTHEW
Address
Municipality
County TRAVIS COUNTY
District ED Beat 1 Grid 224
Premise Code 899
Bias NONE (NO BIAS)
Gang Involvement GANG INVOLVEMENT
Family Violence YES
Offenses (Completed/Attempted)
Offense # 1 0900-1 ASSAULT W/INJURY-FAM/DATE VIOL - COMPLETED
Location RESIDENCE / HOME
Suspected Of Using N/A
Weapon Type PERSONAL WEAPONS (HANDS FIST / FEET)
For AP4803
Printed On Aug-23-2016 (Tue.)
Page 1 of 23
GO# 2015-2721930
POLICE
AUSTIN POLICE DEPARTMENT
CLEARED BY ARREST
GENERAL OFFENSE HARDCOPY
(IBRS)
W
AUSTIN
(0900-1 ASSAULT W/INJURY-FAM/DATE VIOL)
Related Event(s)
1. GO 2016-921448
2. CP 2015-2721930
3. AB 2015-37586
Related Person(s)
1. VICTIM # 1 - DAVIS, EBONY
CASE SPECIFIC INFORMATION
Sex FEMALE
Race BLACK
Date Of Birth
Address
Municipality
State
ZIP Code
HOME
PERSON PARTICULARS
Ethnicity NOT-HISPANIC OR LATINO
MASTER NAME INDEX REFERENCE
Name DAVIS, EBONY MONIQUE
Sex FEMALE
Race BLACK
Date Of Birth
Ethnicity NOT-HISPANIC OR LATINO
Address
Municipality
State
ZIP Code
PHONE NUMBERS
CELL PHONE
HOME
BUSINESS
Email
For AP4803
Printed On Aug-23-2016 (Tue.)
Page 2 of 23
POLICE
AUSTIN POLICE DEPARTMENT
GO# 2015-2721930
CLEARED BY ARREST
GENERAL OFFENSE HARDCOPY
(IBRS)
AUSTIN
(0900-1 ASSAULT W/INJURY-FAM/DATE VIOL)
LINKAGE FACTORS
Resident Status RESIDENT OF AUSTIN
Age Range 30-49 YEARS
Type Of Injury APPARENT MINOR INJURY
Access To Firearm NO
Victim Of 0900- 1 ASSAULT W/INJURY-FAM/DATE VIOL - COMPLETED
RELATIONSHIP(S) BETWEEN VICTIM TO OFFENDER(S)
Relationship VICTIM WAS BOYFRIEND/GIRLFRIEND
Offender's Name CLARK, CHRISTIAN A
Offender's Role ARRESTED #1
2. ARRESTED # 1 - CLARK, CHRISTIAN ANDRE
CASE SPECIFIC INFORMATION
Sex MALE
Race BLACK
Date Of Birth
Address
Municipality
State
ZIP Code
PERSON PARTICULARS
Ethnicity NOT-HISPANIC OR LATINO
MASTER NAME INDEX REFERENCE
Name CLARK, , CHRISTIAN ANDRE
Sex MALE
Race BLACK
Date Of Birth
Ethnicity NOT-HISPANIC OR LATINO
Address
Municipality
State
ZIP Code
PHONE NUMBERS
HOME
For AP4803 Printed On Aug-23-2016 (Tue.)
Page 3 of 23
POLICE
AUSTIN POLICE DEPARTMENT
GO# 2015-2721930
CLEARED BY ARREST
GENERAL OFFENSE HARDCOPY
(IBRS)
AUSTIN
(0900-1 ASSAULT WINJURY-FAM/DATE VIOL)
CELL PHONE
Email
CHARGE SUMMARY
CHARGE # 1
Offense Date SEP-29-2015 (TUE.)
Offense ASSLT CAUSES BODILY INJURY FV 22.01(A)(1) PC - COMPLETED
Charge Statute A 13990031
Domestic Violence YES
LINKAGE FACTORS
Resident Status RESIDENT OF AUSTIN
Age Range 30-49 YEARS
Access To Firearm NO
Armed With NONE
Offense 0900- 1 ASSAULT W/INJURY-FAM/DATE VIOL - COMPLETED
Arrest Date SEP-29-2015 (TUE.)
Arrest Type ON VIEW ARREST (LOCAL
ARREST NO WARRANT)
3. JUV-OBSERV/# 1 - CLARK, CAJALYN
CASE SPECIFIC INFORMATION
Sex MALE
Race BLACK
Date Of Birth
Address
Municipality
State
ZIP Code
PERSON PARTICULARS
Ethnicity NOT-HISPANIC OR LATINO
MASTER NAME INDEX REFERENCE
Name
Sex FEMALE
Race BLACK
Date Of Birth
For AP4803
Printed On Aug-23-2016 (Tue.)
Page 4 of 23
GO# 2015-2721930
POLICE
AUSTIN POLICE DEPARTMENT
CLEARED BY ARREST
GENERAL OFFENSE HARDCOPY
(IBRS)
AUSTIN
(0900-1 ASSAULT W/INJURY-FAM/DATE VIOL)
Ethnicity NOT-HISPANIC OR LATINO
Address
Municipality
State
ZIP Code
LINKAGE FACTORS
Resident Status RESIDENT OF AUSTIN
Age Range 2-3 YEARS
Access To Firearm NO
4. JUV-OBSERV/ # 2 - CLARK, CHRISTINA
CASE SPECIFIC INFORMATION
Sex FEMALE
Race BLACK
Date Of Birth
Address
Municipality
State
ZIP Code
PERSON PARTICULARS
Ethnicity NOT-HISPANIC OR LATINO
MASTER NAME INDEX REFERENCE
Name CLARK, CHRISTINA
Sex FEMALE
Race BLACK
Date Of Birth
Ethnicity NOT-HISPANIC OR LATINO
Address
Municipality
State
ZIP Code
PHONE NUMBERS
CELL PHONE
For AP4803 Printed On Aug-23-2016 (Tue.)
Page 5 of 23
GO# 2015-2721930
POLICE
AUSTIN POLICE DEPARTMENT
CLEARED BY ARREST
GENERAL OFFENSE HARDCOPY
(IBRS)
AUSTIN
(0900-1 ASSAULT W/INJURY-FAM/DATE VIOL)
LINKAGE FACTORS
Resident Status RESIDENT OF AUSTIN
Age Range 14-15 YEARS
Access To Firearm NO
5. JUV-OBSERV/# 3 - DOTSON, JORDAN
CASE SPECIFIC INFORMATION
Sex MALE
Race BLACK
Date Of Birth
Address
Municipality
State
ZIP Code
PERSON PARTICULARS
Ethnicity NOT-HISPANIC OR LATINO
MASTER NAME INDEX REFERENCE
Name DOTTSON , JORDAN U
Sex MALE
Race BLACK
Date Of Birth
Ethnicity NOT-HISPANIC OR LATINO
Address
Municipality
State
ZIP Code
PHONE NUMBERS
HOME
LINKAGE FACTORS
Resident Status RESIDENT OF AUSTIN
Age Range 14-15 YEARS
Access To Firearm NO
For AP4803 Printed On Aug-23-2016 (Tue.)
Page 6 of 23
GO# 2015-2721930
POLICE
AUSTIN POLICE DEPARTMENT
CLEARED BY ARREST
GENERAL OFFENSE HARDCOPY
(IBRS)
AUSTIN
(0900-1 ASSAULT W/INJURY-FAM/DATE VIOL)
Related Text Page(s)
Document PRESS RELEASE
Author AP7804 - JOHNSON, STEPHEN
Related Date/Time SEP-29-2015 (TUE.) 2305
Responded to a call for service and a report was written.
For AP4803
Printed On Aug-23-2016 (Tue.)
Page 7 of 23
GO# 2015-2721930
POLICE
AUSTIN POLICE DEPARTMENT
CLEARED BY ARREST
GENERAL OFFENSE HARDCOPY
(IBRS)
AUSTIN
(0900-1 ASSAULT W/INJURY-FAM/DATE VIOL)
Related Text Page(s)
Document INITIAL REPORT
Author AP7804 - JOHNSON, STEPHEN
Related Date/Time SEP-29-2015 (TUE.) 2306
On Tuesday 9/29/15 at 2225, I, Ofc Johnson #7804 and Ofc Murphy #7617
responded as a 2-man unit to a disturbance hot shot located at
call text = DIST AT ABV
Upon arrival, I could hear a male yelling from inside the house. I knocked
on the door and announced Austin Police. The man came to the door and
stepped outside with my partner. The man was identified as:
Christian Clark BM
I then walked inside and made contact with the complainant and she was
identified as:
Ebony Davis BF
Ebony stated that her and Christian got into an argument and he punched her
in the face with a closed right handed fist. At this point, I told Ofc
Murphy to detain Christian until we could further our investigation.
Ebony stated that the argument occurred because her son had spilled some
paint on the garage floor and she did not know how to clean it up. Ebony
stated that she asked Christian how to clean it and he just got mad at her
because she hadnt cleaned it yet. Ebony stated that Christian then swung at
her and hit her in the left side of her face around her ear. There was
redness on her face that was consistent with being punched. Ebony stated
that it hurt when she was punched and that it still has a burning feeling.
Ebony refused EMS and stated that she did not need to have Crisis there to
talk to.
I then spoke with Christian and he refused to talk to officers about what
happened. He stated that if we want to know anything, then just speak to
Ebony.
Christian was then searched incidental to arrest.
Ebony completed an AVS and that was submitted at arrest review. I took
photos of Ebony and the injury and that was submitted at the north sub.
For
AP4803 Printed On Aug-23-2016 (Tue.)
Page 8 of 23
POLICE
AUSTIN POLICE DEPARTMENT
GO# 2015-2721930
CLEARED BY ARREST
GENERAL OFFENSE HARDCOPY
(IBRS)
AUSTIN
(0900-1 ASSAULT W/INJURY-FAM/DATE VIOL)
Ebony stated that she did not want an EPO.
Christian and Ebony have 3 children that were all present. They were
identified as:
Cajalyn Clark BM
Christina Clark BF
Jordan Dotson BM
Christian was then transported to the Travis County Jail where he was
booked in for assault with injury FV Class A Misdemeanor.
CPS was called-
CPS #66599632
Winnie #1015
NOI
S. Johnson #7804
For AP4803 Printed On Aug-23-2016 (Tue.)
Page 9 of 23
GO# 2015-2721930
POLICE
AUSTIN POLICE DEPARTMENT
CLEARED BY ARREST
GENERAL OFFENSE HARDCOPY
(IBRS)
AUSTIN
(0900-1 ASSAULT W/INJURY-FAM/DATE VIOL)
Related Text Page(s)
Document SUPPLEMENTS
Author AP7681 - SMILEY, MARY
Subject AVS ATTACHED
Related Date/Time SEP-30-2015 (WED.) 0946
For AP4803
Printed On Aug-23-2016 (Tue.)
Page 10 of 23
GO# 2015-2721930
POLICE
AUSTIN POLICE DEPARTMENT
CLEARED BY ARREST
GENERAL OFFENSE HARDCOPY
(IBRS)
W
AUSTIN
(0900-1 ASSAULT W/INJURY-FAM/DATE VIOL)
NARRATIVE TEXT RELATED ATTACHMENT(S)
1. ATTCHMENTS
Description AVS
AUSTIN POLICE DEPARTMENT - ASSAULT VICTIM STATEMENT
CASE # 115-2721930
DATE OF ASSAULT 9/29/2015
TODAY'S DATE 9/29/2015
VICTIM INFORMATION
TO BE COMPLETED BY POLICE OFFICER
Victim's Name (last, first, middle) Davis, Ehony Monique
DOB
Home Address
R/S BIE
DL
State
SSN#
Home#( )
Email Address
Place of Employment TX Post Insurance
Cell Provider
Pregnant?
Yes
Suspect's Name
Christian Clark
No #Weeks
Does the suspect live at this address? Yes
No If no. list address
Emergency Contact(s)
(Person who can contact you at all times)
Contact 1 Tiffany Harris
)
Name
Address
Home #
Contact 2
Work #
Victim/Suspect Relationship
Dating/Engaged 2yrs. months
Marriage Legal
yrs.
months
Member of Same Household
Biological Parents of Same Child - # Children
Former Member of Same Household
Blood Relation
Relationship Ended (date)
Action(s) of Suspect
@Striking (OOpen Hand C/Closed Hand)
Pushing
Throwing
Grabbing
Strangling/Suffocating (Complete Strangulation Supplement)
Pulling
Biting
Other (explain)
How long has it been since the assault?
Hour(s)
20 Minute(s)
Day(s)
Complaint of physical pain during or after the assault?
Yes
No
Explain
Burning to neck
Did Suspect prevent you from making an emergency telephone call for assistance?
Yes
No How/Explain
Did Suspect use or threaten to use a weapon against you? Yes No What type of weapon?
How?
Weapon(s) owned by Suspect?
Yes
No
Does Suspect have Concealed Handgun License?
Yes
No
List weapon(s)
Did Suspect threaten you if you called the Police for this assault?
Yes
XNo
Describe threat(s)
Has Suspect hurt you before?
Yes
No
Date?
Where?
How?
Frequency?
Was a report made?
Yes
No
To whom?
Has Suspect ever threatened you if you called the Police?
Yes
XNo
Describe threat(s)
Has Suspect ever harmed or threatened to harm the children?
Yes
SNo How?
Has Suspect ever harmed or threatened to harm the household pets?
Yes
(No
How?
Was a report made? Yes XNo To whom/Which agency?
Was Suspect using drugs at the time of this assault?
Yes XNo What?
Does Suspect use the following?
Alcohol
Prescription Medication - What?
Illigel Drug(s) What?
Other Describe
Do you want an Emergency Protective Order?
Yes
No
Do you have a Protective Order?
Yes
#
Expiration Date
VICTIM DESCRIPTION
TO BE COMPLETED BY POLICE OFFICER
DEMEANOR
PHYSICAL CONDITION
APPEARANCE
lafraid
SPEECH
hysterical
labrasion(s)
laceration(s)
bloody clothes
langry
Jangry
indifferent
Ibruise(s) new
loose hair
smeared makeup
out of breath
Japologetic
intoxicated
Ibruise(s) old
shaking
soiled/sweat stained
lexcited/fast
Ibelligerent
lirrational
bleeding
Predness
Otangled/messy hair
Calm
crying/sobbing
Inervous
physical pain
[]swelling
Icrying
Ifearful
fracture(s)
(other painted
torn/pulled clothing
yelling
Idistraught
other paint on neck
Ibelligerent
lother
sweating
neck
Explain other
lother
1
For AP4803
Printed On Aug-23-2016 (Tue.)
Page 11 of 23
POLICE
AUSTIN POLICE DEPARTMENT
GO# 2015-2721930
CLEARED BY ARREST
GENERAL OFFENSE HARDCOPY
(IBRS)
W
AUSTIN
(0900-1 ASSAULT WINJURY-FAM/DATE VIOL)
WHAT SUSPECT USED TO HURT /THREATEN VICTIM
CRIME SCENE OBSERVATIONS
Mand
Head
Foot
Knife
Gun
Other
Signs of Disturbance
Clump(s) of Hair
Broken Furniture
Blood at Scene
Weapon Seized?
Photos Taken?
XYes
No
Broken Phone
Hole(s) in Wall
Yes
No
# Taken 3
By # 7804
Broken Glass
Children Crying
Wictim
Suspect
Weapon(s)
Phone Cord Yanked
Evidence Collected?
Injury
Location of Pain
Other
Yes XNo
Weapon(s)
Crime Scene
Turned into PCO
Medical Treatment
Basic First Aid/Not Transported Treated By
EMT Name/#
Transported Where
Address
City
State
Will Seek Own Physician Physician's Name
Address
City
Will Get Treatment at Clinic Clinic's Name
Address
City
Refused
None
SUSPECT INFORMATION
TO BE COMPLETED BY POLICE OFFICER
Suspect's Name
first
middle)
Clash Christian Andre
DOB
R/S B/M
Home Address
State TX SSN#
Home#( )
Work#
Cell
lace of Employment
Electrician
Email Address
Cell Provider
Pregnant?
Yes XNo #Weeks
Suspect XIArrested
Not at Scene Photo Available Yes-Taken No Scars/Tattoos No Yes If yes describe
TaHoo on night thigh, lett forearm, Sideof left neck
SUSPECT DESCRIPTION
TO BE COMPLETED BY POLICE OFFICER
DEMEANOR
PHYSICAL CONDITION
APPEARANCE
SPEECH
lafraid
hysterical
abrasion(s)
llaceration(s)
Ibloody clothes
langry
langry
indifferent
bruise(s) new
loose hair
smeared makeup
out of breath
Dapologetic
intoxicated
bruise(s) old
shaking
soiled/sweat stained
excited/fast
Ibelligerent
irrational
bleeding
redness
Itangled/messy hair
crying/sobbing
calm
nervous
physical pain
swelling
[torn/pulled clothing
yelling
crying
fearful
fracture(s)
other
other
belligerent
Idistraught
]other
sweating
other
Explain other
BODY INJURY DIAGRAM
TO BE COMPLETED BY POLICE OFFICER
Buragan HT
Mark all injuries on both the Victim and the Suspect
S'S
HT 5'll
neck
WT 190
WT 160
SEX r
SEX M
VICTIM
SUSPECT
FRONT
BACK
FRONT
BACK
Describe injuries and how each was inflicted in the narrative of the offense report.
2
For AP4803
Printed On Aug-23-2016 (Tue.)
Page 12 of 23
GO# 2015-2721930
POLICE
AUSTIN POLICE DEPARTMENT
CLEARED BY ARREST
GENERAL OFFENSE HARDCOPY
(IBRS)
W
AUSTIN
(0900-1 ASSAULT W/INJURY-FAM/DATE VIOL)
. Witness Information (May Use Witness Statement Form)
1. Name
DOB
R/S
/
Home#( )
Work#( )
Cell# )
Email Address
2. Name
DOB
R/S
/
Home# )
Work#( )
Cell#( )
Email Address
.
Children Information (MUST list all children and document in narrative of offense report)
1. Present?
XYes
No
Witness to assault?
(Yes
No
CPS Called?
es
No CPS# 66599632
Name of school child is attending
(If more than one child, then you MUST list all other information in your supplement report)
. Military Information
Victim in Military?
Yes
9No Branch
Stationed
Suspect in Military?
Yes
No
Branch
USAMMY
Stationed
Victim in Reserves?
Yes
No
Texas National Guard
Yes
No
Suspect in Reserves?
Yes
No
Texas National Guard
Yes
No
Re-location/Contact Information
Are you planning to relocate?
Yes
N/No Address?
Phone#( )
Cell#(
Other# )
LETHALITY ASSESMENT
TO BE COMPLETED BY A POLICE OFFICER
"Yes" to ANY question 1-5, Activate or notify Victim Services
1. Has s/he ever threatened you with a weapon?
Yes
No
NA
2. Has s/he used a weapon against you?
Yes
No
NA
3. Has s/he ever threatened to kill you?
Yes
No
NA
4. Has s/he ever threatened to kill your children?
Yes
SNo
INA
5. Do you think s/he might try to kill you?
Yes
ZINo
NA
"Yes" to at least 4 questions 6-18, Activate or notify Victim Services
6. Does s/he have a gun?
Yes
No
NA
7. Does s/he have easy access to a gun?
Yes
ZNo
NA
8. Has s/he ever tried to strangle you?
Yes
No
NA
9. Is s/he violently or constantly jealous of you?
Yes
No
NA
10. Does s/he control most of your daily activities?
Yes
No
NA
11. Has s/he ever forced you to have sex when you did not wish to do so?
Yes
No
NA
12. Have you ever left her/him or separated after living together?
Yes
(No
NA
13. Is s/he unemployed?
Yes
No
NA
14. Has s/he ever tried to kill herself/himself?
Yes
ZNo
NA
15. Do you have a child that does not belong to the Suspect?
Yes
No
NA
16. Does s/he follow you?
Yes
No
NA
17. Does s/he spy on you?
Yes
No
NA
18. Does s/he leave threatening messages?
Yes
No
NA
Describe the threat(s) and/or message(s) left
An Officer may request Victim Services(by phone or on-scene) as a result of Victim's response to the question below or
whenever an officer feels it would be beneficial.
19. Is there anything else that worries you about your safety?
Yes
No
NA
If yes, explain
.
Victim Services responded due to High lethality determined by questions above
Officer concerns for victim
. Victim Services did not respond due to Officer's decision Victim's request Victim Services'
current call load
. Victim provided with Domestic Violence Information Pamphlet Yes
No
Case
Number
DYes
No
TO COMPLETE AVS, GO TO PAGE 4.
3
For AP4803
Printed On Aug-23-2016 (Tue.)
Page 13 of 23
POLICE
AUSTIN POLICE DEPARTMENT
GO# 2015-2721930
CLEARED BY ARREST
GENERAL OFFENSE HARDCOPY
(IBRS)
AUSTIN
(0900-1 ASSAULT W/INJURY-FAM/DATE VIOL)
VICTIM STATEMENT / DECLARACION DE LA VICTIMA
TO BE FILLED OUT BY VICTIM
I
can read, write and understand the English Language. This statement is true and correct to the best of my knowledge. I make this statement
freely and voluntarily. Should | provide false information on this form, I understand that could be prosecuted for the crime of "False Report to
a
Police Officer" under section 37.08 of the Texas Penal Code. Signature
Campon
Date 9/29/15
Puedo leer, escribir y entender el idioma español. Esta declaración es verdadera y correcta en cuanto a lo que yo sepa. Hago esta declaración
libre y voluntariamente. Si he dado información falsa en este formulario, entiendo que puedo ser enjuiciadola por el crimen de "Declaración Falsa
dada a un oficial de Policía" bajo la sección 37.08 del Código Penal del Estado de Texas.
Firma
Fecha
Where are you right now? 11305 Friendship Dr Where did assault occur? 11305 Friendship
Dónde encuentra usted en este
se momento? Christian Clark
¿Dónde ocurrió el asalto?
Who assaulted you? (name/relationship)
Quién asito? (nombre/parentesco)
What led up to the assault?
I dont know
Qué occrrió antes del asalto para que el as alto ocurriera?
How did Suspect assault you? (ex. hit w/ fist to head)
Hit to the neckarea
2 Cómo le asaltó el/la sospechoso/a a usted (por ejemplo, le pegó con el puño en la cabeza)
What injuries do you have as a result of the assault? Bruse on the rock
i Qué lesiones tiene como resultado del asalto?
. How did you get each injury?
when he hit me on the neck
i Cómo obtuvo cada herida?
. Did you feel physical pain either at the time of the assault or after?
Burning
& Sintió usted dolor durante el asalto o después?
. Was there damage to property (walls, phones, furniture, etc.)?
NO
¿Hubo daños a la propiedad (en las paredes, teléfonos, muebles, o en otros lugares)?
. Other Information
Otra información
Print Name - Nombre impreso Esony Davis
Signature am
Date 9/29/15 Time 11 : 00 am/pm
Fecha
Hora
:
am/pm
Su firma
# 7617 Date 9/29/15 Time II : as am(pnj
Officer Signature
#
Fecha
Hora
:
am/pm
Firma del oficial
STH/APD2013
4
For AP4803 Printed On Aug-23-2016 (Tue.)
Page 14 of 23
GO# 2015-2721930
POLICE
AUSTIN POLICE DEPARTMENT
CLEARED BY ARREST
GENERAL OFFENSE HARDCOPY
(IBRS)
AUSTIN
(0900-1 ASSAULT W/INJURY-FAM/DATE VIOL)
Follow Up Report #
1
Follow Up Report # 1
ASSIGNMENT INFORMATION
Assigned To AP6910 - ORTEGA-HART,
Rank CIVILIAN
ROXANA
Capacity VICTIM ASSISTANT
Org Unit VICTIM SERVICES (FAMILY
VIOLENCE)
Assigned On SEP-30-2015 (WED.) 0932
By AP4288 - TOMANETZ, JEANNIE
Report Due On OCT-30-2015 (FRI.)
SUBMISSION INFORMATION
Submitted On OCT-01-2015 (THU.) 1321
Approved On OCT-19-2015 (MON.)
By AP1561 - LUJAN, LUPITA
FOLLOW UP CONCLUSION
Follow Up YES
Concluded
For AP4803
Printed On Aug-23-2016 (Tue.)
Page 15 of 23
GO# 2015-2721930
POLICE
AUSTIN POLICE DEPARTMENT
CLEARED BY ARREST
GENERAL OFFENSE HARDCOPY
(IBRS)
AUSTIN
(0900-1 ASSAULT W/INJURY-FAM/DATE VIOL)
Follow Up Report #
1
Related Text Page(s)
Narrative Text # 1
Document VICTIM SERVICES
Author AP6910 - ORTEGA-HART, ROXANA
Subject CONTACT
Related Date/Time OCT-01-2015 (THU.) 1306
On this date I contacted Ebony Davis at her listed number. I explained my role and limits of confidentiality.
Davis states that yesterday she was contacted and asked if she wanted an EPO. She state that at the time she
was overwhelmed and said no but now wishes she had said yes. I provided information on 2 year protective
orders. I also provided information on her rights, the criminal justice process, and resources.
I safety planned with her and provided much supportive counseling. She stated that this was the first time he
had been physically violent with her but has been verbally and emotionally abusive during their relationship.
She states that she will dissolve the relationship because she can not trust that he will not assault her again.
I
validated and normalized her feels. We discussed dynamics of DV and normal reactions by victims. I
advised that I would mail a follow up letter with more information on DV and a CVC application. I remain
available to assist.
NOI
For AP4803
Printed On Aug-23-2016 (Tue.)
Page 16 of 23
GO# 2015-2721930
POLICE
AUSTIN POLICE DEPARTMENT
CLEARED BY ARREST
GENERAL OFFENSE HARDCOPY
(IBRS)
AUSTIN
(0900-1 ASSAULT W/INJURY-FAM/DATE VIOL)
Follow Up Report # 2
Follow Up Report # 2
ASSIGNMENT INFORMATION
Assigned To AP2736 - BENNINGFIELD,
Rank DETECTIVE
CHRISTOPHR ALLEN
Capacity LEAD INVESTIGATOR
Org Unit DOMESTIC VIOLENCE VIOL
CRIMES
Assigned On SEP-30-2015 (WED.) 1105
By AP3757 - GROSS, JEFFREY R
Report Due On OCT-30-2015 (FRI.)
SUBMISSION INFORMATION
Submitted On OCT-01-2015 (THU.) 1027
Checked By AP1737 - DELOSSANTOS, ERIC
TOBIAS
Approved On NOV-12-2015 (THU.)
By AP1737 - DELOSSANTOS, ERIC
TOBIAS
FOLLOW UP CONCLUSION
Follow Up YES
Concluded
For AP4803
Printed On Aug-23-2016 (Tue.)
Page 17 of 23
GO# 2015-2721930
POLICE
AUSTIN POLICE DEPARTMENT
CLEARED BY ARREST
GENERAL OFFENSE HARDCOPY
(IBRS)
AUSTIN
(0900-1 ASSAULT W/INJURY-FAM/DATE VIOL)
Follow Up Report #
2
Related Text Page(s)
Narrative Text # 1
Document INVESTIGATOR'S REPORT
Author AP2736 - BENNINGFIELD, CHRISTOPHR ALLEN
Related Date/Time OCT-01-2015 (THU.) 1026
**10/01/15
This arrest case was assigned for electronic prosecution packet preparation. The following will be
accomplished when available:
Retention code changed
DMAV coded
Wav file requested
AVS
DCS checked for photos
Case cleared by arrest.
For AP4803
Printed On Aug-23-2016 (Tue.)
Page 18 of 23
GO# 2015-2721930
POLICE
AUSTIN POLICE DEPARTMENT
CLEARED BY ARREST
GENERAL OFFENSE HARDCOPY
(IBRS)
AUSTIN
(0900-1 ASSAULT W/INJURY-FAM/DATE VIOL)
Clearance Information
Agency AUSTIN POLICE DEPARTMENT (AP)
Cleared Status CLEARED BY ARREST - NOT APPLICABLE
Cleared On OCT-01-2015 (THU.)
Cleared By Officer 1 AP2736 - BENNINGFIELD, CHRISTOPHR ALLEN
Org Unit FAMVI - DOMESTIC VIOLENCE VIOL CRIMES
Complainant/Victim NO
Notified
For AP4803
Printed On Aug-23-2016 (Tue.)
Page 19 of 23
POLICE
AUSTIN POLICE DEPARTMENT
GO# 2015-2721930
CLEARED BY ARREST
GENERAL OFFENSE HARDCOPY
(IBRS)
AUSTIN
(0900-1 ASSAULT W/INJURY-FAM/DATE VIOL)
Related Arrest Report AB# 2015-37586
Arrestee CLARK, CHRISTIAN ANDRE
Date Of Birth
Related CD# 604103
Arrest Information
Status OTHER
Type Of Arrest ON VIEW ARREST (LOCAL ARREST NO WARRANT)
Arrest Date SEP-29-2015 (TUE.) 2235
Rush File Required NO
Booked Into Cell NO
Arrest Agency AUSTIN POLICE DEPARTMENT
Arresting Officer(s) AP7804 - JOHNSON, STEPHEN
Summary Of Facts ARRESTED
ARREST LOCATION
Address 11305 FRIENDSHIP DR
Municipality AUSTIN
County TRAVIS COUNTY
District ED Zone 1 Grid 224
SODA Zone NO
Drug Free Zone NO
ADDITIONAL ARREST INFORMATION
Case Screened NO
Notify Victim On NO
Release
Juvenile NO
Armed With NONE
Diversion NO
Recommended
Interpreter Needed NO
Rights Given NO
Mental Exam NO
Required
Statement Taken NO
Fingerprinted YES
Photo Taken YES
CD Updated YES
Family Notified NO
Lawyer Called NO
Meal Given NO
Coffee Given NO
Detained NO
For AP4803
Printed On Aug-23-2016 (Tue.)
Page 20 of 23
POLICE
AUSTIN POLICE DEPARTMENT
GO# 2015-2721930
CLEARED BY ARREST
GENERAL OFFENSE HARDCOPY
(IBRS)
AUSTIN
(0900-1 ASSAULT W/INJURY-FAM/DATE VIOL)
RELATED WARRANTS
Warrant Number C1CR16500571
On APR-15-2016 (FRI.)
Reason For Warrant ASSLTW/INJ-FVW/EPO-200 YD
SAO, NO CONTACT, GPS IN JAIL
W/CURFEW
For AP4803
Printed On Aug-23-2016 (Tue.)
Page 21 of 23
GO# 2015-2721930
POLICE
AUSTIN POLICE DEPARTMENT
CLEARED BY ARREST
GENERAL OFFENSE HARDCOPY
(IBRS)
AUSTIN
(0900-1 ASSAULT W/INJURY-FAM/DATE VIOL)
Related Attachment - AUDIO RECORDING
Description 911
Reference Number
The attached file cannot be included in this hardcopy.
For AP4803
Printed On Aug-23-2016 (Tue.)
Page 22 of 23
GO# 2015-2721930
POLICE
AUSTIN POLICE DEPARTMENT
CLEARED BY ARREST
GENERAL OFFENSE HARDCOPY
(IBRS)
AUSTIN
(0900-1 ASSAULT W/INJURY-FAM/DATE VIOL)
END OF HARDCOPY
For AP4803
Printed On Aug-23-2016 (Tue.)
Page 23 of 23
STATE OF TEXAS
§
Travis COUNTY
§
BUSINESS RECORDS AFFIDAVIT
BEFORE ME, the undersigned authority, Angie Jones
personally
appeared, who being by me duly sworn, deposed as follows:
My name is Angie Jones
.
I am over the age of 18 years, of sound
mind, capable of making this affidavit, and personally acquainted with the facts herein stated,
which are true:
I am the custodian of records, employee or owner
of
Austin Police Department and I am familiar with the manner in which its records are
created and maintained by virtue of my duties and responsibilities. Attached hereto are 25
pages of records from Austin Police Department , which
were kept in the course
of regular business activity. The attached records are the orginal or exact duplicates of the
originial records.
It is the regular course of business of Austin Police Department to make
the records and to make this type of record at or near the time of each act, event, condition,
opinion, or diagnosis set forth in the records. Further, it was the regular practice of
Austin Police Department to make the records and regular practice for this type of record
to be made by, or made from information transmitted by persons with knowledge of the matters
set forth in them.
Affiant # 4803
SWORN TO AND SUBSCRIBED before me on the 27th day of October 2016
pusiness
BRENDON FOX HANLY
Notary Public, State of Texas
Comm. Expires 01-08-2020
Notary Public THE for
Notary ID 130489522
State of Texas
My commission expires: 01.08.2020
Filed in The District Court
of Travis County, Texas
APR - 3 2017
CAUSE NO: D-1-GN-16-002854
At
12:29p
Velva L. Price, District Clerk
M.
CHRISTIAN-ANDRE CLARK,
§
IN THE DISTRICT COURT
Plaintiff,
§
§
V.
§
TRAVIS COUNTY, TEXAS
§
STEVEN JOHNSON, MATTHEW
§
MURPHY ET AL.,
§
Defendants.
§
201st JUDICIAL DISTRICT
ORDER ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
CAME ON TO BE HEARD Defendants Steven Johnson and Matthew Murphy's Motion
for Summary Judgment. The Court is of the opinion that the Motion should be GRANTED, in
part, and DENIED, in part.
IT IS ORDERED, ADJUDGED AND DECREED that Defendants Steven Johnson and
Matthew Murphy's Motion for Summary Judgment is GRANTED as to all claims where the
Plaintiff has not alleged an intentional tort, and the Defendants' Motion is DENIED for all
claims where the Plaintiff has alleged an intentional tort. All of Plaintiff's claims not alleging
intentional torts are hereby DISMISSED WITH PREJUDICE.
SIGNED this 3rd day of April, 2017.
PRESIDING many JUDGE
TIM SULAK
4/7/2017 9:28:18 AM
Velva L. Price
District Clerk
Travis County
CAUSE NO. D-1-GN-16-002854
D-1-GN-16-002854
Rebeccca Hernandez
CHRISTIAN-ANDRE CLARK,
§
IN THE DISTRICT COURT
Plaintiff,
§
§
V.
§
TRAVIS COUNTY, TEXAS
§
STEVEN JOHNSON, MATTHEW
§
MURPHY ET AL.,
§
Defendants.
§
201st JUDICIAL DISTRICT
DEFENDANTS STEVEN JOHNSON AND MATTHEW MURPHY'S SPECIAL
EXCEPTIONS AND MOTION TO COMPEL
TO THE HONORABLE JUDGE OF SAID COURT:
Austin Police Department Officer Defendants Steven Johnson and Matthew Murphy
("APD Defendants"), file these Special Exceptions to Plaintiff's Original Petition and Motion to
Compel, and would show as follows:
I.
SPECIAL EXCEPTIONS
1.
The APD Defendants make special exception to the Plaintiff's Original Petition
and asks this Honorable Court to order Plaintiff to re-plead and cure his pleading defects SO that
the City may have fair notice of all claims. The APD Defendants requests that Plaintiff re-plead
within thirty (30) days or that his pleadings be stricken.
2.
The APD Defendants make special exception to the entirety of the Plaintiff's
Original Petition, especially Section D ("Jurisdiction"), because the APD Defendants have
official immunity from suit and liability without an adequate assertion of a waiver of immunity.
Specifically, "[a] governmental employee is entitled to official immunity: (1) for the
performance of discretionary duties; (2) within the scope of the employee's authority; (3)
provided the employee acts in good faith. Univ. of Houston V. Clark, 38 S.W.3d 578, 580 (Tex.
2000). The Plaintiff has failed to provide adequate notice of which immunity he claims is
waived, and therefore he has failed to meet state jurisdictional notice requirements under the
Texas Rules of Civil Procedure and the Texas Civil Practice and Remedies Code. The Plaintiff
has the burden of pleading and proving jurisdiction especially when the APD Defendants have
asserted the defense of immunity, therefore the APD Defendants respectfully request that the
Plaintiff be ordered to re-plead Section D of the Plaintiff's Original Petition to assert some
waiver of immunity.
3.
The APD Defendants make special exception to the entirety of Plaintiff's Original
Petition, because all claims except those involving intentional torts have been dismissed by the
Order issued by Judge Sulak on April 3, 2017. Moreover, a large number of the Defendants in
this lawsuit were dismissed by the Order issued by Judge Jenkins on January 24, 2017.
Therefore, the APD Defendants respectfully request that Plaintiff be ordered to re-plead the
entirety of his Original Petition to remove all claims not involving intentional torts and remove
all claims involving the Defendants who have already been dismissed.
4.
The APD Defendants make special exception to the entirety of Plaintiff's Original
Petition, because all claims except those involving intentional torts have been dismissed by the
Order issued by Judge Sulak on April 3, 2017. However, Plaintiff's Original Petition is unclear
as to which Defendants he alleges committed which intentional torts against him. Defendants
are entitled to "a short statement of the cause of action sufficient to give fair notice of the claim
involved." TRCP 47. Specifically, paragraph 8 of Plaintiff's Original Petition does not address
the allegations against any particular Defendant. And each of his causes of action are similarly
vague and fail to allege which Defendants he claims committed each offense. Therefore, the
Defendants Steven Johnson and Matthew Murphy's
Special Exceptions and Motion to Compel
Page 2 of 6
APD Defendants respectfully request that Plaintiff be required to re-plead the entirety of his
Original Petition to specifically allege which intentional torts he claims were committed by
which Defendants, including APD Defendants.
II.
MOTION TO COMPEL
5.
The Texas Rules of Civil Procedure permit a Court to issue an order compelling
discovery. See Tex. R. Civ. P. 215.1. If a party from whom discovery is sought fails "to answer
a question propounded or submitted upon oral examination or upon written questions" then "the
discovering party may move for an order compelling
an answer or answers [to the discovery
requests]
without the necessity of first having obtained a court order compelling such
discovery." Tex. R. Civ. P. 215.1(b)(2)(B) and (b)(3)(D).
6.
The purpose of discovery is to seek the truth, SO disputes may be decided by what
facts are revealed, not by what facts are concealed. Axelson, Inc. V. McIlhany, 798 S.W.2 550,
555 (Tex. 1990). Discovery may be obtained about any matter relevant to the subject matter of
the case, "whether it relates to the claim or defense of the party seeking discovery or the claim or
defense of any other party." Tex. R. Civ. P. 192.3(a). Moreover, Rule 194 of the Texas Rules of
Civil Procedure allow a party to obtain disclosure from another party in regards to the
information and material listed in TRCP 194.2 by serving the other party Requests for
Disclosure.
7.
Plaintiff served Requests for Disclosure on APD Defendants as a part of his
Original Petition when APD Defendants were served with citation on August 1, 2016. APD
Defendants responded to Plaintiff's Requests for Disclosure in accordance with the rules on
September 19, 2016. See Exhibit 1 attached.
Defendants Steven Johnson and Matthew Murphy's
Special Exceptions and Motion to Compel
Page 3 of 6
8.
APD Defendants served Requests for Disclosure to Plaintiff along with their
Answer on August 19, 2016 in accordance with the rules. Plaintiff's response to APD
Defendants' Requests for Disclosure would have been due on September 18, 2016, over six
months ago. However, Plaintiff has yet to respond to APD Defendants' Requests for Disclosure.
APD Defendants made an additional request that Plaintiff respond to their Requests for
Disclosure, see Exhibit 2 attached, informing Plaintiff of their intent to include a Motion to
Compel with their Special Exceptions filing, but as of the date of this filing, Plaintiff has still yet
to file a response to APD Defendants' Requests for Disclosure.
9.
In order to defend causation and Plaintiff's claims of damages, it is imperative
that APD Defendants receive responses to their Requests for Disclosure. And the rules state that
"[t]he responding party must serve a written response on the requesting party within 30 days
after service of the request." TRCP 194.3. Therefore, because Plaintiff has far exceeded the
allotted time period to respond under the rules, APD Defendants hereby request that the court
issue an order compelling Plaintiff to respond to their Requests for Disclosure.
III.
PRAYER
THEREFORE, APD Defendants pray that their Special Exceptions and Motion to
Compel be set for hearing, and after a hearing, if necessary, that their Special Exceptions and
Motion to Compel be granted. APD Defendants further pray that, if, their Special Exceptions are
granted, the Plaintiff's causes of action be dismissed or struck in their entirety with prejudice to
the re-filing of same if Plaintiff fails to amend his pleadings in accordance with any order of the
court. Furthermore, APD Defendants pray that Plaintiff be compelled to respond to APD
Defendants' Requests for Disclosure, that Plaintiff take nothing by this suit, all costs of court be
Defendants Steven Johnson and Matthew Murphy's
Special Exceptions and Motion to Compel
Page 4 of 6
assessed against Plaintiff, and that the APD Defendants be granted any additional relief to which
they are entitled to under law or equity.
RESPECTFULLY SUBMITTED,
ANNE L. MORGAN, CITY ATTORNEY
MEGHAN L. RILEY, CHIEF, LITIGATION DIVISION
/s/ Brandon W. Carr
BRANDON W. CARR
Assistant City Attorney
State Bar No. 24074004
City of Austin-Law Department
P.O. Box 1546
Austin, Texas 78767-1546
Telephone: (512) 974-2181
Facsimile: (512) 974-1311
brandon.carr@austintexas.gov
ATTORNEYS FOR APD DEFENDANTS
Defendants Steven Johnson and Matthew Murphy's
Special Exceptions and Motion to Compel
Page 5 of 6
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, on this 7th day of
April, 2017, as follows:
Via CM RRR 91 7199 9991 7036 8304 9853, first class mail, and email to:
Christian-Andre Clark
7007 Greenock Street
Austin, Texas 78749
Christianclark31@gmail.com
PRO SE
Via e-Filing to:
Andrew M. Williams
SBN 24068345
andrew.williams@traviscountytx.gov
Patrick M. Kelly
SBN 11228000
pat.kelly@traviscountytx.gov
P.O. Box 1748
Austin, Texas 78767
(512) 854-9513
(512) 854-4808 (Fax)
ATTORNEYS FOR TRAVIS COUNTY DEFENDANTS
/s/ Brandon W. Carr
BRANDON W. CARR
Defendants Steven Johnson and Matthew Murphy's
Special Exceptions and Motion to Compel
Page 6 of 6
Exhibit 1
DEFENDANTS STEVEN JOHNSON AND MATTHEW MURPHY'S
SPECIAL EXCEPTIONS AND MOTION TO COMPEL
CAUSE NO: D-1-GN-16-002854
CHRISTIAN-ANDRE CLARK,
§
IN THE DISTRICT COURT
Plaintiff,
§
§
V.
§
TRAVIS COUNTY, TEXAS
§
STEVEN JOHNSON, MATTHEW
§
MURPHY ET AL.,
§
Defendants.
§
201s JUDICIAL DISTRICT
DEFENDANTS STEVEN JOHNSON, MATTHEW MURPHY, AND AUSTIN POLICE
DEPARTMENT'S RESPONSE TO PLAINTIFF'S REQUESTS FOR DISCLOSURE
TO:
Plaintiff, Christian-Andre Clark, Pro Se, 7007 Greenock Street, Austin, Texas 78749.
Pursuant to the Texas Rules of Civil Procedure, Defendants Steven Johnson, Matthew
Murphy and the Austin Police Department (collectively "City Defendants") provide the
following Responses to Plaintiff's Requests for Disclosure.
RESPECTFULLY SUBMITTED,
ANNE L. MORGAN, CITY ATTORNEY
MEGHAN L. RILEY, CHIEF, LITIGATION
/s/
Brandon W. Carr
BRANDON W. CARR
Assistant City Attorney
State Bar No. 24074004
City of Austin - Law Department
P.O. Box 1546
Austin, Texas 78767-1546
Telephone: (512) 974-2181
Facsimile: (512) 974-1311
Brandon.Carr@austintexas.gov
ATTORNEYS FOR CITY DEFENDANTS
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, on this 19th day of
September, 2016, as follows:
Via CM RRR 91 7199 9991 7036 2336 3698, first class mail, and email to:
Christian-Andre Clark
7007 Greenock Street
Austin, Texas 78749
Christianclark31@gmail.com
PRO SE
Via e-Service to:
Andrew M. Williams
SBN 24068345
andrew.williams@traviscountytx.gov
Patrick M. Kelly
SBN 11228000
pat.kelly@traviscountytx.gov
P.O. Box 1748
Austin, Texas 78767
(512) 854-9513
(512) 854-4808 (Fax)
ATTORNEYS FOR TRAVIS COUNTY DEFENDANTS
/s/
Brandon W. Carr
BRANDON W. CARR
2
RESPONSE TO REQUESTS FOR DISCLOSURE
REQUEST 194.2(a):
The correct names of the parties to the lawsuit.
RESPONSE: To the best of the City Defendants' knowledge, the parties are correctly named.
REQUEST 194.2(b):
The name, address, and telephone number of any potential parties.
RESPONSE: The City Defendants are aware of no potential parties at this time.
REQUEST 194.2(c):
The legal theories and, in general, factual bases of responding party's claims and defenses.
RESPONSE: Without waiving any defense asserted in City Defendants' Original Answer,
Affirmative Defenses, Special Exceptions, or Motion to Dismiss for Lack of Jurisdiction, the
City Defendants deny all of Plaintiff's allegations both generally and specifically. The City
Defendants deny that Plaintiff was injured as a result of any of City Defendants' actions and
assert that the Plaintiff must prove each and every element of his allegations by a preponderance
of the credible evidence.
Furthermore, the City Defendants assert that their actions are protected by official immunity and
governmental immunity, therefore this suit is barred as a matter of law, and the court does not
have jurisdiction to hear the merits of this case. City Defendants also assert that Plaintiff's
claims are barred under TCPRC § 101.057 to the extent Plaintiff alleges any intentional tort(s)
committed by the City Defendants. Moreover, Defendant Austin Police Department is not a jural
entity capable of being sued, and therefore the court does not have jurisdiction with regards to
the claims against the Austin Police Department.
The City Defendants further assert that Plaintiff's damages, if any, were solely caused or
proximately caused by Plaintiff's own acts or omissions. The City Defendants further assert that
the Plaintiff has failed to mitigate damages, if any, and assert this failure to mitigate as both an
affirmative defense and a reduction in the damage amount, if any. The City Defendants also
assert that Plaintiff has failed to comply with the procedural rules that guide the filing of this
lawsuit, including, but not limited to, failing to comply with Rule 47 of the Texas Rules of Civil
Procedure.
REQUEST 194.2(d):
The amount and any method of calculating economic damages.
RESPONSE: The City Defendants make no claim for economic damages at this time.
REQUEST 194.2(e):
The name, address, and telephone number of person's having knowledge of relevant facts, and a
brief statement of each identified person's connection with the case.
3
RESPONSE: See Exhibit A, attached.
REQUEST 194.2(f):
For any testifying expert:
(1)
The expert's name, address, and telephone number;
(2)
The subject matter on which the expert will testify;
(3)
The general substance of the expert's mental impressions and opinions and a brief
summary of the basis for them, or if the expert is not retained by, employed by, or
otherwise subject to the control of the responding party, documents reflecting such
information;
(4)
If the expert is retained by, employed by, or otherwise subject to the control of the
responding party:
(A)
All documents, tangible things, reports, models, or data compilations that have
been provided to, reviewed by, or prepared by or for the expert in anticipation of
the expert's testimony; and
(B)
The expert's current resume and bibliography.
RESPONSE: The City Defendants have not designated an expert at this time.
REQUEST 194.2(g):
Any indemnity and insuring agreements described in Rule 192.3(f).
RESPONSE: This information is not discoverable pursuant to Texas Civil Practice and
Remedies Code Section § 101.104.
REQUEST 194.2(h):
Any settlement agreements described in Rule 192.3(g).
RESPONSE: None.
REQUEST 194.2(i):
Any witness statements described in Rule 192.3(h).
RESPONSE: None at this time.
REQUEST 194.2(j):
In a suit alleging physical or mental injury and damages from the occurrence that is the subject
of the case, all medical records and bills that are reasonably related to the injuries or damages
asserted or, in lieu thereof, an authorization permitting the disclosure of such medical records
and bills.
RESPONSE: The City Defendants make no claim(s) for physical or mental injury or damages.
REQUEST 194.2(k):
4
In a suit alleging physical or mental injury and damages from the occurrence that is the subject
of the case, all medical records and bills obtained by the responding party by virtue of an
authorization furnished by the requesting party.
RESPONSE: None.
REQUEST 194.2(1):
The name, address, and telephone number of any person who may be designated as a responsible
third party.
RESPONSE: None.
5
EXHIBIT A
Parties:
Christian-Andre Clark
7007 Greenock Street
Austin, Texas 78749
Christianclark31@gmail.com
Mr. Clark is the Plaintiff in this lawsuit.
Steven Johnson
Matthew Murphy
Austin Police Department
c/o Brandon W. Carr
City of Austin - Law Department
P.O. Box 1546
Austin, Texas 78767
Telephone: (512) 974-2181
Facsimile: (512) 974-1311
Brandon.Carr@austintexas.gov
Steven Johnson, Matthew Murphy and Austin Police Department are Defendants in this lawsuit.
Ebony Davis
Victim/Complainant
Ms. Davis has knowledge of the events leading to the arrest of the Plaintiff. Her contact
information is either known by Plaintiff or is equally obtainable by Plaintiff.
Victim's/Complainant's children
The police report states that the children were present during the time of the incident which
forms the basis of this lawsuit. They may be contacted through Victim/Complainant.
Detective Christopher Benningfield
Austin Police Department
c/o Brandon W. Carr
City of Austin - Law Department
P.O. Box 1546
Austin, Texas 78767
Telephone: (512) 974-2181
Facsimile: (512) 974-1311
Brandon.Carr@austintexas.gov
Lead Investigator for the incident which forms the basis of this lawsuit.
6
Roxana Ortega-Hart
Victim Witness Counselor
Victim Services-Austin Police Department
c/o Brandon W. Carr
City of Austin - Law Department
P.O. Box 1546
Austin, Texas 78767
Telephone: (512) 974-2181
Facsimile: (512) 974-1311
Brandon.Carr@austintexas.gov
Victim witness counselor who provided victim services assistance to the Victim/Complainant.
The City further identifies all persons identified by Plaintiff as having knowledge of relevant
facts. Their contact information would either be better provided by their counsel or
representatives or this information is equally available to Plaintiff.
7
Exhibit 2
DEFENDANTS STEVEN JOHNSON AND MATTHEW MURPHY'S
SPECIAL EXCEPTIONS AND MOTION TO COMPEL
Carr, Brandon
From:
Carr, Brandon
Sent:
Monday, April 03, 2017 5:25 PM
To:
"ChristianClark31@gmail.com
Cc:
'Pat Kelly'; Nicholson, Briana
Subject:
Requests for Disclosure
Attachments:
2016_08_19 D COA's Org. Answer,and RFD.pdf; 2016 09 19 City Ds' Response to P's
RFD.pdf
Follow Up Flag:
Follow up
Flag Status:
Flagged
Mr. Clark,
The APD Defendants, Officers Johnson and Murphy, requested that you file a response to their Requests to Disclosure
back in August 2016. See Section IV of Defendants' Original Answer, attached. The Officers timely responded to your
Requests (also attached) and now they respectfully request that you do the same and respond to their Requests for
Disclosure by the end of the day Wednesday. Otherwise, they will be filing a Motion to Compel you to respond along
with their Special Exceptions, and a hearing will be requested.
Please let me know as soon as possible if you will not be able to meet that deadline.
Thanks,
Brandon W. Carr
Assistant City Attorney
City of Austin Law Department
512.974.2181
512-974.1311 (fax)
brandon.carr@austintexas.gov
1
8/19/2016 9:37:58 AM
Velva L. Price
District Clerk
Travis County
CAUSE NO: D-1-GN-16-002854
D-1-GN-16-002854
Carrisa Escalante
CHRISTIAN-ANDRE CLARK,
§
IN THE DISTRICT COURT
Plaintiff,
§
§
V.
§
TRAVIS COUNTY, TEXAS
§
STEVEN JOHNSON, MATTHEW
§
MURPHY ET AL.,
§
Defendants.
§
201st JUDICIAL DISTRICT
DEFENDANT CITY OF AUSTIN'S ORIGINAL ANSWER, AFFIRMATIVE DEFENSES,
SPECIAL EXCEPTIONS, AND REQUEST FOR DISCLOSURE
TO THE HONORABLE JUDGE OF SAID COURT:
Defendants Steven Johnson, Matthew Murphy and the Austin Police Department
(collectively City Defendants), file the Original Answer, Affirmative Defenses, Special
Exceptions, and Request for Disclosures as follows:
I. General Denial
1.
Pursuant to Texas Rule of Civil Procedure 92, City Defendants, deny generally
the allegations in Plaintiff's Original Petition (and any amendments or supplements thereto), and
request that Plaintiff prove his claims and allegations as required by law.
II. Affirmative Defenses
City Defendants assert the following affirmative and other defenses:
2.
Official Immunity: Defendants Steven Johnson and Matthew Murphy as
employees of the Austin Police Department-a Department within the City of Austin, which is a
home-rule municipality and political subdivision of the State of Texas2 enjoy governmental
1 The Austin Police Department is not a separate legal entity subject to suit. See Darby V. Pasadena Police Dep't.
939 F.2d 311, 313-14 (5th Cir. 1991).
immunity both from suit and from liability, unless the Texas Legislature has provided a limited
waiver of governmental immunity under the Texas Tort Claims Act. Defendants Johnson and
hereby affirmatively plead and assert their defense of official immunity and their claim to and
defenses under the Texas Tort Claims Act. Tex. Civ. Prac. & Rem. Code Ann. § 101.001 et seq.
3.
City Defendants specifically assert that at all times relevant to this incident, they
were acting in the course and scope of their employment with the City of Austin, and with a
good faith belief that their actions were proper under the Constitution and the laws of the State of
Texas.
4.
City Defendants assert that they had legal authority, privilege and justification to
arrest Plaintiff based upon a valid warrant issued by a court of competent jurisdiction.
5.
Notice: Plaintiff has failed to provide the required notice under the Texas Tort
Claims Act and the City Charter. Failure to provide timely notice of claim bars Plaintiff's cause
of action.
6.
Intentional Torts: Plaintiff's claims are barred under TCPRC § 101.057 to the
extent the allegations suggest an intentional tort.
7.
The City Defendants further assert that the Plaintiff's damages, if any, were solely
caused or proximately caused by Plaintiff's own acts or omissions.
8.
The City Defendants further assert that the Plaintiff has failed to mitigate
damages, if any, and assert this failure to mitigate as both an affirmative defense and a reduction
in the damage amount, if any.
9.
In addition to the foregoing defenses, the City Defendants hereby reserve the right
to add inferential rebuttals, amend or withdraw defenses, supplement allegations pertaining to
2 City of Austin has not been named nor served with process under this case.
2
defenses already asserted upon completion of discovery and/or through leave of the Court.
III. Special Exceptions
10.
The City Defendants specially except to Plaintiff's Original Petition in its entirety
for the following reasons and respectfully requests this Honorable Court to order Plaintiff to re-
plead and cure his pleading defects so that the City has fair notice of all claims. The City
Defendants request that Plaintiff replead within thirty (30) days or that his pleadings be stricken.
11.
The City Defendants specially except to Plaintiff's Original Petition for Plaintiff's
failure to comply with Rule 47 of the Texas Rules of Civil Procedure, amended as of March 1,
2013. Accordingly, the City request that discovery is stayed until Plaintiff has amended his
pleadings as required by the Texas Rules of Civil Procedure.
12.
The City Defendants specially except to Plaintiff's Original Petition in its entirety
for the reason that Plaintiff failed to plead all elements of a waiver of sovereign under the Texas
Tort Claims Act.
IV. Request for Disclosure
13.
Pursuant to Texas Rule of Civil Procedure 194, Defendant, City of Austin,
requests that Plaintiff disclose, within 30 days of the service of this request, the information or
material described in Rule 194.2.
V. Prayer
Defendants pray that Plaintiff take nothing by his suit. Defendants further request any
and all other relief that it shows it is justly entitled.
3
RESPECTFULLY SUBMITTED,
ANNE L. MORGAN, CITY ATTORNEY
MEGHAN L. RILEY, CHIEF, LITIGATION DIVISION
/s/ Meghan L. Riley
MEGHAN L. RILEY
Assistant City Attorney
State Bar No. 24049373
City of Austin-Law Department
P. O. Box 1546
Austin, Texas 78767-1546
Telephone: (512) 974-2458
Facsimile: (512) 974-1311
meghan.riley@austintexas.gov
ATTORNEYS FOR CITY DEFENDANTS
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, on this the 19th day
of August, 2016, as follows:
Via CM RRR 91 7199 9991 7036 2378 1096, first class mail and email to:
Christian-Andre Clark
7007 Greenock Street
Austin, Texas 78749
Christianclark31@gmail.com
PRO SE
Via e-File to:
David A. Escamilla
Andrew M. Williams
Patrick M. Kelly
P.O. Box 1748
Austin, Texas 78767
ATTORNEYS FOR TRAVIS COUNTY DEFENDANTS
/s/ Meghan L Riley
MEGHAN L. RILEY
Assistant City Attorney
4
CAUSE NO: D-1-GN-16-002854
CHRISTIAN-ANDRE CLARK,
§
IN THE DISTRICT COURT
Plaintiff,
§
§
V.
§
TRAVIS COUNTY, TEXAS
§
STEVEN JOHNSON, MATTHEW
§
MURPHY ET AL.,
§
Defendants.
§
201st st JUDICIAL DISTRICT
DEFENDANTS STEVEN JOHNSON, MATTHEW MURPHY, AND AUSTIN POLICE
DEPARTMENT'S RESPONSE TO PLAINTIFF'S REQUESTS FOR DISCLOSURE
TO:
Plaintiff, Christian-Andre Clark, Pro Se, 7007 Greenock Street, Austin, Texas 78749.
Pursuant to the Texas Rules of Civil Procedure, Defendants Steven Johnson, Matthew
Murphy and the Austin Police Department (collectively "City Defendants") provide the
following Responses to Plaintiff's Requests for Disclosure.
RESPECTFULLY SUBMITTED,
ANNE L. MORGAN, CITY ATTORNEY
MEGHAN L. RILEY, CHIEF, LITIGATION
/s/
Brandon W. Carr
BRANDON W. CARR
Assistant City Attorney
State Bar No. 24074004
City of Austin - Law Department
P.O. Box 1546
Austin, Texas 78767-1546
Telephone: (512) 974-2181
Facsimile: (512) 974-1311
Brandon.Carr@austintexas.gov
ATTORNEYS FOR CITY DEFENDANTS
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, on this 19th day of
September, 2016, as follows:
Via CM RRR 91 7199 9991 7036 2336 3698, first class mail, and email to:
Christian-Andre Clark
7007 Greenock Street
Austin, Texas 78749
Christianclark31@gmail.com
PRO SE
Via e-Service to:
Andrew M. Williams
SBN 24068345
andrew.williams@traviscountytx.gov
Patrick M. Kelly
SBN 11228000
pat.kelly@traviscountytx.gov
P.O. Box 1748
Austin, Texas 78767
(512) 854-9513
(512) 854-4808 (Fax)
ATTORNEYS FOR TRAVIS COUNTY DEFENDANTS
/s/
Brandon W. Carr
BRANDON W. CARR
2
RESPONSE TO REQUESTS FOR DISCLOSURE
REQUEST 194.2(a):
The correct names of the parties to the lawsuit.
RESPONSE: To the best of the City Defendants' knowledge, the parties are correctly named.
REQUEST 194.2(b):
The name, address, and telephone number of any potential parties.
RESPONSE: The City Defendants are aware of no potential parties at this time.
REQUEST 194.2(c):
The legal theories and, in general, factual bases of responding party's claims and defenses.
RESPONSE: Without waiving any defense asserted in City Defendants' Original Answer,
Affirmative Defenses, Special Exceptions, or Motion to Dismiss for Lack of Jurisdiction, the
City Defendants deny all of Plaintiff's allegations both generally and specifically. The City
Defendants deny that Plaintiff was injured as a result of any of City Defendants' actions and
assert that the Plaintiff must prove each and every element of his allegations by a preponderance
of the credible evidence.
Furthermore, the City Defendants assert that their actions are protected by official immunity and
governmental immunity, therefore this suit is barred as a matter of law, and the court does not
have jurisdiction to hear the merits of this case. City Defendants also assert that Plaintiff's
claims are barred under TCPRC § 101.057 to the extent Plaintiff alleges any intentional tort(s)
committed by the City Defendants. Moreover, Defendant Austin Police Department is not a jural
entity capable of being sued, and therefore the court does not have jurisdiction with regards to
the claims against the Austin Police Department.
The City Defendants further assert that Plaintiff's damages, if any, were solely caused or
proximately caused by Plaintiff's own acts or omissions. The City Defendants further assert that
the Plaintiff has failed to mitigate damages, if any, and assert this failure to mitigate as both an
affirmative defense and a reduction in the damage amount, if any. The City Defendants also
assert that Plaintiff has failed to comply with the procedural rules that guide the filing of this
lawsuit, including, but not limited to, failing to comply with Rule 47 of the Texas Rules of Civil
Procedure.
REQUEST 194.2(d):
The amount and any method of calculating economic damages.
RESPONSE: The City Defendants make no claim for economic damages at this time.
REQUEST 194.2(e):
The name, address, and telephone number of person's having knowledge of relevant facts, and a
brief statement of each identified person's connection with the case.
3
RESPONSE: See Exhibit A, attached.
REQUEST 194.2(f):
For any testifying expert:
(1)
The expert's name, address, and telephone number;
(2)
The subject matter on which the expert will testify;
(3)
The general substance of the expert's mental impressions and opinions and a brief
summary of the basis for them, or if the expert is not retained by, employed by, or
otherwise subject to the control of the responding party, documents reflecting such
information;
(4)
If the expert is retained by, employed by, or otherwise subject to the control of the
responding party:
(A)
All documents, tangible things, reports, models, or data compilations that have
been provided to, reviewed by, or prepared by or for the expert in anticipation of
the expert's testimony; and
(B)
The expert's current resume and bibliography.
RESPONSE: The City Defendants have not designated an expert at this time.
REQUEST 194.2(g):
Any indemnity and insuring agreements described in Rule 192.3(f).
RESPONSE: This information is not discoverable pursuant to Texas Civil Practice and
Remedies Code Section § 101.104,
REQUEST 194.2(h):
Any settlement agreements described in Rule 192.3(g).
RESPONSE: None.
REQUEST 194.2(i):
Any witness statements described in Rule 192.3(h).
RESPONSE: None at this time.
REQUEST 194.2(j):
In a suit alleging physical or mental injury and damages from the occurrence that is the subject
of the case, all medical records and bills that are reasonably related to the injuries or damages
asserted or, in lieu thereof, an authorization permitting the disclosure of such medical records
and bills.
RESPONSE: The City Defendants make no claim(s) for physical or mental injury or damages.
REQUEST 194.2(k):
4
In a suit alleging physical or mental injury and damages from the occurrence that is the subject
of the case, all medical records and bills obtained by the responding party by virtue of an
authorization furnished by the requesting party.
RESPONSE: None.
REQUEST 194.2(1):
The name, address, and telephone number of any person who may be designated as a responsible
third party.
RESPONSE: None.
5
EXHIBIT A
Parties:
Christian-Andre Clark
7007 Greenock Street
Austin, Texas 78749
Christianclark31@gmail.com
Mr. Clark is the Plaintiff in this lawsuit.
Steven Johnson
Matthew Murphy
Austin Police Department
c/o Brandon W. Carr
City of Austin - Law Department
P.O. Box 1546
Austin, Texas 78767
Telephone: (512) 974-2181
Facsimile: (512) 974-1311
Brandon.Carr@austintexas.gov
Steven Johnson, Matthew Murphy and Austin Police Department are Defendants in this lawsuit.
Ebony Davis
Victim/Complainant
Ms. Davis has knowledge of the events leading to the arrest of the Plaintiff. Her contact
information is either known by Plaintiff or is equally obtainable by Plaintiff.
Victim's/Complainant's children
The police report states that the children were present during the time of the incident which
forms the basis of this lawsuit. They may be contacted through Victim/Complainant.
Detective Christopher Benningfield
Austin Police Department
c/o Brandon W. Carr
City of Austin - Law Department
P.O. Box 1546
Austin, Texas 78767
Telephone: (512) 974-2181
Facsimile: (512) 974-1311
Brandon.Carr@austintexas.gov
Lead Investigator for the incident which forms the basis of this lawsuit.
6
Roxana Ortega-Hart
Victim Witness Counselor
Victim Services-Austin Police Department
c/o Brandon W. Carr
City of Austin - Law Department
P.O. Box 1546
Austin, Texas 78767
Telephone: (512) 974-2181
Facsimile: (512) 974-1311
Brandon.Carr@austintexas.gov
Victim witness counselor who provided victim services assistance to the Victim/Complainant.
The City further identifies all persons identified by Plaintiff as having knowledge of relevant
facts. Their contact information would either be better provided by their counsel or
representatives or this information is equally available to Plaintiff.
7
Filed in The District Court
of Travis County, Texas
MAY 08 2017 NNR
At
3:34P M.
CAUSE NO. D-1-GN-16-002854
Velva L. Price, District Clerk
CHRISTIAN-ANDRE CLARK,
§
IN THE DISTRICT COURT
Plaintiff,
§
V.
§
TRAVIS COUNTY, TEXAS
§
STEVEN JOHNSON, MATTHEW
§
MURPHY ET AL.,
§
Defendants.
§
201st JUDICIAL DISTRICT
ORDER GRANTING DEFENDANTS STEVEN JOHNSON AND MATTHEW
MURPHY'S SPECIAL EXCEPTIONS AND MOTION TO COMPEL
On May 4, 2017 the Court considered the Defendants Steven Johnson and Matthew
Murphy's Special Exceptions and Motion to Compel (hereinafter collectively the "Motion").
After considering the pleadings, the applicable law, and the arguments of counsel and Plaintiff,
the Court is of the opinion that the Motion is meritorious.
THEREFORE, the Motion is GRANTED. Accordingly, the Court hereby Orders
Plaintiff to re-plead his Petition to address Defendants' Special Exceptions and to answer
Defendants' Requests for Disclosures (Motion to Compel) by 5PM on June 2, 2017.
SIGNED this of
8 day may ,
2017.
Made D ma
HON. JUDGE GISELA D. TRIANA
AGREED AS TO FORM:
/s/ Brandon W. Carr
BRANDON W. CARR
Assistant City Attorney
State Bar No. 24074004
City of Austin-Law Department
P.O. Box 1546
Austin, Texas 78767-1546
Telephone: (512) 974-2181
Facsimile: (512) 974-1311
Brandon.Carr@austintexas.gov
ATTORNEY FOR CITY DEFENDANTS
Christian-Andre Clark
7007 Greenock Street
Austin, Texas 78749
Christianclark31@gmail.com
PRO SE
Pats kelly
Andrew M. Williams
SBN 24068345
andrew.williams@traviscountytx.gov
Patrick M. Kelly
SBN 11228000
pat.kelly@traviscountytx.gov
P.O. Box 1748
Austin, Texas 78767
(512) 854-9513
(512) 854-4808 (Fax)
ATTORNEYS FOR TRAVIS COUNTY DEFENDANTS
CAUSE NO. D-1-GN-16-002854
CHRISTIAN-ANDRE CLARK,
§
IN THE DISTRICT COURT
Plaintiff,
§
§
V.
§
TRAVIS COUNTY, TEXAS
§
STEVEN JOHNSON, MATTHEW
§
MURPHY ET AL.,
§
Defendants.
§
201st JUDICIAL DISTRICT
AMENDED CLAIM
self-operative
Comes now Christian-Andre Clark, one of the people of the Republic of Texas, unincorporated
lawyer, files his suit, and declares, states and alleges as follows:
Party
a. Christian-Andre Clark; care of: 7007 Greenock street Austin, Texas county of Travis
b. Steven Johnson; care of: 2006 East 4th Street Austin, Texas county of Travis
C. Mathew Murphy; care of: 2006 East 4th Street Austin, Texas county of Travis
d. Mike Denton; care of: 509 West 11th Street Austin, Texas county of Travis
e. Jesse Ibarra; care of: 509 West 11th Street Austin, Texas county of Travis
f. Travis County Sheriff's Department; care of: Texas Secretary of State, P.O. Box 12079
Austin, Texas county of Travis [78711-2079]
Preliminary Statement
1. This case arises from the interference of Christian-Andre Clark's (hereafter; Plaintiff)
protected rights enumerated in THE TEXAS CONSTITUTION BILL OF RIGHTS. Plaintiff
charges each Defendant with: Trespass, by way of unlawful form of governance (Section 2),
unlawful seizure (Section 9), deprivation of life and liberty (Section 19), and nonexistent
compensation (Section 17).
AMENDED CLAIM
1 of 11
2. Plaintiff alleges trespass to his unincorporated rites, life, liberty, land and chattel appraised
value of 352,909,958 gold dollar coins or $666.234.503.400.78 (hereafter; property) by way of
color of law, violence, threat of arms, conversion, and false imprisonment.
3. Possession rights of said property seized lie with the Plaintiff.
4. As relief for Defendant's actions, Plaintiff seeks general damages, as well as injunctive relief
as permitted by law.
Jurisdiction and Venue
5. Jurisdiction is conferred upon this court of record by right and this state's general jurisdiction
statute cf. THE TEXAS CONSTITUTION BILL OF RIGHTS Article One Section Twenty-
Nine, to which the focus of this dispute are protected rights in this state.
6. Venue is proper in this court because the events giving rise to the claims occurred in this
realm and county.
Ultimate Facts
7. Defendants Stephen Johnson (hereafter; DA) and Mathew Murphy (hereafter; DB) acting
under the color of law, intentionally, knowingly, and recklessly, unlawfully seized Plaintiffs
property against his wishes or any other valid privilege from his home with violence and threat
of arms, on September 29, 2015 at the county of Travis and state of Texas.
8. Defendants DA and DB acting under the color of law intentionally, knowingly, and recklessly
transported Plaintiffs property against his wishes or any other valid privilege on September 29,
2015 at the county of Travis and state of Texas.
9. Defendant DA and DB acting under the color of law intentionally, knowingly, and recklessly
transferred Plaintiffs property against his wishes to the care and custody of Defendant Travis
County Sheriff / John Doe's (hereafter; DC-1) on September 29, 2015 at the county of Travis
and state of Texas.
10. Defendant Mike Denton (hereafter; DD) intentionally, knowingly, and recklessly
commanded Defendant Jesses Ibarra (hereafter; DE) to unlawfully seize Plaintiffs property with
violence and thereat of arms on June 29, 2016 at the county of Travis and state of Texas.
AMENDED CLAIM
2 of 11
11. Defendant DD acting under the color of law, intentionally, knowingly, and recklessly
ordered the unlawful seizure of Plaintiffs property on July 15, 2016 at the county of Travis and
state of Texas.
12. Defendant DC-1 acting under the color of law intentionally, knowingly, and recklessly
trespassed with violence and threat of arms upon the property of the Plaintiff on September 29,
2015 thought October 1, 2014; June 28, 2016 thought July 1, 2016; July 15, 2016 thought August
16, 2016 at the county of Travis and state of Texas.
13. Defendant DC-1 acting under the color of law intentionally, knowingly, and recklessly
converted the property of the Plaintiff with violence and threat of arms on September 29, 2015,
June 28, 2016, and July 15, 2016 at the county of Travis and state of Texas.
14. Plaintiffs lawful right to govern his own affairs were intentionally, knowingly, and recklessly
infringed upon by each Defendant causing injuries. cf. THE TEXAS CONSTITUTION Article
1. BILL OF RIGHTS Section 2. and Section 6.)
15. Plaintiffs lawful right to be secure in his person, papers and possessions, were intentionally
knowingly, and recklessly infringed upon by each Defendant causing general injuries. ( cf. THE
TEXAS CONSTITUTION Article 1. BILL OF RIGHTS Section 9.)
16. Plaintiffs lawful right to life, liberty and the due course of law were intentionally, knowingly,
and recklessly infringed upon by each Defendant causing general injuries. (cf. THE TEXAS
CONSTITUTION Article 1. BILL OF RIGHTS Section 19.)
17. Plaintiffs lawful right to be compensated for the taking of his property has not been received
thereby causing general injuries. (cf. THE TEXAS CONSTITUTION Article 1. BILL OF
RIGHTS Section 17.)
COUNT 1 - TRESPASS TO PERSONAL PROPERTY
Trespass From The Beginning (ab initio)
18. Plaintiff re-alleges and incorporates by reference paragraphs 7 through 17 as if fully set forth
herein.
19. Plaintiff is the sole owner of the moveable property described in paragraph 1 thought 3.
AMENDED CLAIM
3 of 11
20. Plaintiffs enjoys the legal right to be secure in his property to which Defendants DA and DB
acting under the color of law, interfered with causing harm on September 29, 2015 thought
present day.
21. Defendants DA and DB acting under the color of law, intentionally and recklessly exceed
their duty of care to the Plaintiff.
22. Defendants DA and DB acting under the color of law, intentionally seized Plaintiffs property
without his consent or any other valid privilege.
WHEREFORE, Plaintiff demands judgment against Defendants Stephen Johnson (DA) and
Mathew Murphy (DB) and to award remedies available pursuant to the common law of the state
of Texas.
COUNT 2 - TRESPASS TO PERSONAL PROPERTY
False Imprisonment I
23. Plaintiff re-alleges and incorporates by reference paragraphs 7 through 17 as if fully set forth
herein.
24. Plaintiff is the sole owner of the moveable property described in paragraph 1 thought 3.
25. Plaintiffs enjoys the legal right to be secure in his property to which Defendants DA and DB
acting under the color of law, interfered with causing harm on September 29, 2015 at 11305
Friendship Drive Austin, county of Travis.
26. Defendants DA and DB acting under the color of law, intentionally seized Plaintiff's
property from his home, with violence and threat of arms, without his consent or any other valid
privilege.
WHEREFORE, Plaintiff demands judgment against Defendants Stephen Johnson (DA) and
Mathew Murphy (DB) and to award remedies available pursuant to the common law of the state
of Texas.
COUNT 3 - TRESPASS TO PERSONAL PROPERTY
Assault and Battery I
AMENDED CLAIM
4 of 11
27. Plaintiff re-alleges and incorporates by reference paragraphs 7 through 17 as if fully set forth
herein.
28. Plaintiff is the sole owner of the moveable property described in paragraph 1 thought 3.
29. Plaintiffs enjoys the legal right to be secure in his property to which Defendants DA and DB
interfered with causing harm on September 29, 2015 at 11305 Friendship Drive Austin, county
of Travis.
30. Defendants DA and DB acting under the color of law, caused the Plaintiff to fear for his
property which caused emotional distress.
31. Defendants DA and DB acting under the color of law, intentionally with violence and
without consent offensively touched Plaintiffs property without his consent or any other valid
privilege.
32. Defendants DA and DB acting under the color of law, intentionally placed metal restrains on
Plaintiffs property which caused sever pain and anguish.
WHEREFORE, Plaintiff demands judgment against Defendants Stephen Johnson (DA) and
Mathew Murphy (DB) and to award remedies available pursuant to the common law of the state
of Texas.
COUNT 4 - TRESPASS TO PERSONAL PROPERTY
Conversion
33. Plaintiff re-alleges and incorporates by reference paragraphs 7 through 17 as if fully set forth
herein.
34. Plaintiff is the sole owner of the moveable property described in paragraph 1 thought 3.
35. Plaintiffs enjoys the legal right to be secure in his property to which Defendants DA, DB,
and DC-1 acting under the color of law, interfered with causing harm on September 29, 2015 at
500 West 10th Street, Austin, county of Travis.
36.
Defendants DA and DB acting under the color of law, intentionally and knowingly
transferred Plaintiffs property to Defendant DC-1 without his consent and without right.
37. Plaintiff orally demanded the release of said property.
AMENDED CLAIM
5 of 11
WHEREFORE, Plaintiff demands judgment against Defendants Stephen Johnson (DA), Mathew
Murphy (DB), Travis County Sheriff / John Doe's (DC-1) and to award remedies available
pursuant to the common law of the state of Texas.
COUNT 5 - TRESPASS TO PERSONAL PROPERTY
Assault and Battery II
38. Plaintiff re-alleges and incorporates by reference paragraphs 7 through 17 as if fully set forth
herein.
39. Plaintiff is the sole owner of the moveable property described in paragraph 1 through 3.
40. Plaintiffs enjoys the legal right to be secure in his property to which Defendant DC-1 acting
under the color of law, interfered with causing harm on September 29, 2015 through October 1,
2015 at 500 West 10th Street, Austin, county of Travis and 3614 Bill Price Road, Del Valle,
county of Travis.
41. Defendant DC-1 acting under the color of law, intentionally, recklessly, knowingly, and
without consent offensively touched Plaintiffs property with violence and threat of arms.
42. Defendant DC-1 acting under the color of law, intentionally placed metal restrains on
Plaintiffs property which caused sever pain and anguish.
43. Defendant DC-1 acting under the color of law, intentionally, recklessly, knowingly, and
without consent placed Plaintiff in a rubber room without clothes thereby inflecting further sever
emotional distress.
WHEREFORE, Plaintiff demands judgment against Defendant Travis County Sheriff / . John
Doe's (DC-1) and to award remedies available pursuant to the common law of the state of Texas.
COUNT 6 - TRESPASS TO PERSONAL PROPERTY
False Imprisonment II
23. Plaintiff re-alleges and incorporates by reference paragraphs 7 through 17 as if fully set forth
herein.
AMENDED CLAIM
6 of 11
24.
Plaintiff is the sole owner of the moveable property described in paragraph 1 through 3.
25. Plaintiffs enjoys the legal right to be secure in his property to which Defendant DC-1 acting
under the color of law, interfered with causing harm on September 29, 2015 through October 1,
2015 at 500 West 10th Street, Austin, county of Travis and at 3614 Bill Price Road, Del Valle,
county of Travis.
26. Defendants DC-1 acting under the color of law, intentionally seized Plaintiff's property from
500 West 10th Street, Austin, county of Travis, with violence and threat of arms, without his
consent or any other valid privilege and transported Plaintiff to 3614 Bill Price Road, Del Valle,
county of Travis.
WHEREFORE, Plaintiff demands judgment against Defendant Travis County Sheriff / John
Doe's (DC-1) and to award remedies available pursuant to the common law of the state of Texas.
COUNT 7 - TRESPASS TO PERSONAL PROPERTY
Assault and Battery III
38. Plaintiff re-alleges and incorporates by reference paragraphs 7 through 17 as if fully set forth
herein.
39. Plaintiff is the sole owner of the moveable property described in paragraph 1 through 3.
40. Plaintiffs enjoys the legal right to be secure in his property to which Defendants DD and DE
interfered with causing harm on June 29, 2016 thought July 1, 2016 at 509 West 11th, 3rd floor
Austin, county of Travis, 500 West 10th Street, Austin, county of Travis and 3614 Bill Price
Road, Del Valle, county of Travis.
41. Defendants DD acting under the color of law, intentionally, recklessly, knowingly, and
without consent or any other valid privilege, instructed DE to seize Plaintiffs property with
violence and threat of arms.
42. Defendant DE acting under the color of law, knowingly placed metal restrains on Plaintiffs
property which caused sever pain and anguish.
43. Defendant DE acting under the color of law, intentionally, recklessly, knowingly, and
without consent transferred Plaintiffs property to DC-1.
AMENDED CLAIM
7 of 11
WHEREFORE, Plaintiff demands judgment against Defendants Mike Denton (DD), Jesses
Ibarra (DE) and Travis County Sheriff / John Doe's (DC-1) and to award remedies available
pursuant to the common law of the state of Texas.
COUNT 8 - TRESPASS TO PERSONAL PROPERTY
False Imprisonment III
44. Plaintiff re-alleges and incorporates by reference paragraphs 7 through 17 as if fully set forth
herein.
45. Plaintiff is the sole owner of the moveable property described in paragraph 1 through 3.
46. Plaintiffs enjoys the legal right to be secure in his property to which Defendants DD, DE,
and DC-1 acting under the color of law, interfered with causing harm on June 29, 2016 thought
July 1, 2016 at 509 West 11th, 3rd floor Austin, county of Travis, 500 West 10th Street, Austin,
county of Travis and 3614 Bill Price Road, Del Valle, county of Travis.
47. Defendant DD acting under the color of law, intentionally, recklessly, knowingly, and
without consent instructed DE to seize Plaintiffs property with violence and threat of arms.
48. Defendant DE acting under the color of law, knowingly placed metal restrains on Plaintiffs
property which caused sever pain and anguish.
49. Defendant DE acting under the color of law, intentionally, recklessly, knowingly, and
without consent transferred Plaintiffs property to DC-1.
WHEREFORE, Plaintiff demands judgment against Defendants Mike Denton (DD), Jesses
Ibarra (DE), and Travis County Sheriff / John Doe's (DC-1) and to award remedies available
pursuant to the common law of the state of Texas.
COUNT 9 - TRESPASS TO PERSONAL PROPERTY
False Imprisonment IV
50. Plaintiff re-alleges and incorporates by reference paragraphs 7 through 17 as if fully set forth
herein.
AMENDED CLAIM
8 of 11
51. Plaintiff is the sole owner of the moveable property described in paragraph 1 through 3.
52. Plaintiffs enjoys the legal right to be secure in his property to which Defendants DD and
DC-1 interfered with causing harm on July 15, 2016 thought August 16, 2016 at 509 West 11th,
1st floor Austin, county of Travis, 500 West 10th Street, Austin, county of Travis and at 3614
Bill Price Road, Del Valle, county of Travis.
53. Defendants DD acting under the color of law, intentionally, recklessly, knowingly, and
without due course of law ordered DC-1 to seize Plaintiffs property with violence and threat of
arms.
54. Defendant DC-1 acting under the color of law, knowingly placed metal restrains on
Plaintiffs property which caused sever pain and anguish.
55. Defendant DC-1 acting under the color of law, intentionally, recklessly, knowingly, and
without consent transported Plaintiffs property to 500 West 10th Street, Austin, county of Travis
and 3614 Bill Price Road, Del Valle, county of Travis.
WHEREFORE, Plaintiff demands judgment against Defendants Mike Denton (DD), and Travis
County Sheriff / John Doe's (DC-1) and to award remedies available pursuant to the common
law of the state of Texas.
For these causes of action therefore Plaintiff brings his suit.
DEMAND FOR TRIAL BY JURY
Plaintiff hereby demands a trial by jury on any cause of action and any claim with respect to
which there is a right to a jury trial.
RELIEF REQUESTED
Wherefore, Plaintiff prays judgment against Defendants, and each of them, as follows:
On all counts:
56. For general damages in the sum of 21,000 gold dollar coins or $38.000.000.00;
AMENDED CLAIM
9 of 11
57. For medical and related expenses according to proof;
58. For loss of earnings according to proof;
59. For interest as allowed by law;
60. For costs of suit incurred and attorney's fees; and
61. A permanent injunction directing and ordering the Defendants not to encumber or delay
Plaintiff's property without his express consent or other valid authorization.
62. An award of such further and additional legal and equitable relief as the Court deems just
and proper.
63. If any claim, statement, fact, or portion in this action is held inapplicable or not valid, such
decision does not affect the validity of any other portion of the record.
I declare and affirm that the foregoing facts are true and correct to the best of my knowledge, SO
help me God.
Dated: May 15, 2017
Travis County, The Republic of Texas
Respectfully Submitted by,
Intrepid Lawyer,
Counsel for the Plaintiff
Christian-Andre Clark
Notary Public
AMENDED CLAIM
10 of 11
State of Texas
County of Travis
On this the
day of
,
2017, before me,
,
the undersigned officer, personally appeared
, known to me (or satisfactorily proven) to be
the person whose name is/are subscribed to the within instrument and acknowledged that
he/she/they executed the same for the purposes therein contained. In witness whereof I hereunto
set my hand and official seal.
Notary Public
Printed Name:
My Commission Expires:
AMENDED CLAIM
11 of 11
6/5/2017 1:14:17 PM
Velva L. Price
District Clerk
Travis County
CAUSE NO. D-1-GN-16-002854
D-1-GN-16-002854
Raeana Vasquez
CHRISTIAN-ANDRE CLARK,
§
IN THE DISTRICT COURT
Plaintiff,
§
§
V.
§
TRAVIS COUNTY, TEXAS
§
STEVEN JOHNSON, MATTHEW
§
MURPHY ET AL.,
§
Defendants.
§
201st JUDICIAL DISTRICT
DEFENDANTS STEVEN JOHNSON'S AND MATTHEW MURPHY'S FIRST
AMENDED MOTION TO DISMISS FOR LACK OF JURISDICTION
TO THE HONORABLE JUDGE OF SAID COURT:
Defendants Steven Johnson and Matthew Murphy 1 ("City Defendants")² file this First
Amended Motion to Dismiss for Lack of Jurisdiction in response to Plaintiff's Amended Claim,
because Plaintiff has exclusively brought this cause of action under the Texas Constitution and
the Texas Constitution does not provide him a private cause of action for the allegations he has
asserted against the City Defendants, i.e. he does not have standing to seek damages. The City
Defendants would respectfully show the Court as follows:
I.
FACTUAL BACKROUND
On Tuesday, September 29, 2015 around 10:30PM, Austin Police Department Officers
Steven Johnson and Matthew Murphy (the "Officers") responded to a disturbance call located at
1
The Austin Police Department was dismissed as a Defendant in the Court's Order issued on January 24, 2017. In
that Order, Judge Jenkins, in denying the PTJ as to Defendants Johnson and Murphy, stated that their official
immunity arguments would be more properly pled in a Motion for Summary Judgment.
2
Note: Plaintiff's claims were also dismissed as to Judge Mike Denton, Pretrial Officer III Kimberly Legge,
and
Assistant County Attorney Dimple Malhotra in a separate Order issued the same day. Also note that the City of
Austin has not been named nor served with process in this matter.
11305 Friendship Drive. See Exhibit R, pg. 8, attached. Upon their arrival, Officer Johnson
could hear a male yelling from inside the house. Id. Officer Johnson knocked on the door and
announced that he was with the Austin Police Department. Id. Christian-Andre Clark
("Plaintiff") came to the door and stepped outside to talk with Officer Murphy. Id. Officer
Johnson then walked inside and made contact with E.D. ("Complainant"). Id. Complainant
stated that she and Plaintiff got into an argument and he punched her in the face with a closed
right handed fist. Id. At that point, the Plaintiff was detained until the Officers could further
their investigation. Id.
After further discussion with the Complainant the Officers had probable cause to believe
that Plaintiff had committed a family violence assault against the Complainant. Id., at pg. 9.
Plaintiff never denied punching Complainant; instead, he told Officers if they wanted to know
what happened, they should speak with the Complainant. Id., pg. 8. Complainant then filled out
an Assault Victim Statement which was submitted at Plaintiff's arrest. Id., pg. 8. It was also
believed that 3 minor children were present for the assault. Id., pg. 9. Plaintiff was then
searched incidental to the arrest and transported to the Travis County Jail where he was booked
in for assault with injury - family violence Class A Misdemeanor. Id., pg. 8-9.
The City Defendants obtained a dismissal of all of Plaintiff's causes of actions, except for
those involving intentional torts in the court's order filed April 3, 2017. Thereafter, the City (and
Travis County) filed Special Exceptions, requesting, among other things, that Plaintiff re-plead
in order to clarify which intentional torts he claims were committed against him, by which
Defendant, and under which specific waiver of governmental immunity. On June 2, 2017,
Plaintiff filed an Amended Claim. In his Amended Claim, Plaintiff now alleges his causes of
action exclusively under the Texas Constitution. His claims against the City Defendants are
Defendants Steven Johnson's and Matthew Murphy's
First Amended Motion to Dismiss for Lack of Jurisdiction
Page 2 of 14
found in paragraphs 14-17, and Counts 1-4. Counts 5-9 of his Amended Claim are not
applicable to the City Defendants.
II.
MOTION TO DISMISS FOR LACK OF JURISDICTION
A. Standard of Review
A motion to dismiss for lack of jurisdiction (also known as a plea to the jurisdiction)
challenges the trial court's authority to determine the subject matter of the action. Tex. Dep't of
Transp. V. Jones, 8 S.W.3d 636, 638 (Tex. 1999). Whether the trial court has jurisdiction is a
question of law. Texas Nat. Res. Conversy. Com'n V. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002).
The plaintiff has the burden of alleging facts that affirmatively establish the trial court's
jurisdiction. Tex. Ass'n of Bus. V. Tex. Air Control Bd., 852 S.W.2d 440, 466 (Tex. 1993). The
plaintiff must plead each element of each claim to establish jurisdiction. Mission Consol.
Independent School Dist. V. Garcia, 372 S.W.3d 629, 637 (2012).
"When a private cause of action is alleged to derive from a constitutional or statutory
provision, [the court's] duty is to ascertain the drafters' intent." Brown V. De La Cruz, 156
S.W.3d 560, 563 (Tex. 2004). The Texas Constitution crates a private cause of action for
damages "only if the language of the specific provisions involved clearly implied one." Id. One
example would be a takings claim. Id. However, "[g]enerally, there is no private cause of action
against a governmental entity or its officials for money damages relating to alleged violations of
Texas constitutional rights." Donohue V. Dominguez, 486 S.W.3d 50, 56 (Tex. App.-San
Antonio 2016, pet. denied). "[O]nly if the language of the specific provisions involved clearly
impl[y]' a private action for damages does the Texas Constitution create one." Id. And
"although Texas has a strong bill of rights [t]here is no state 'constitutional tort." City of
Defendants Steven Johnson's and Matthew Murphy's
First Amended Motion to Dismiss for Lack of Jurisdiction
Page 3 of 14
Beaumont V. Bouillion, 896 S.W.2d 143, 149 (Tex. 1995) (citing Bagg V. Univ. of Texas Medical
Branch, 726 S.W.2d 582 (Tex.App.-Houston [14th Dist.] 1987, writ ref'd n.r.e.). There is no
authority "that would indicate that at the time the Constitution was written, it was intended to
provide an implied private right of action for damages for the violation of constitutional rights."
Id., at 148. Furthermore, "[h]istorically[,] Texas common law has not provided a cause of action
for damages for the violation of constitutional rights." Id., at 150.
Arguments and Authorities
A. Plaintiff does not have a private cause of action under Article 1, Sections 2 and 6 of
the Texas Constitution.
Texas Constitution Art. 1, Sec. 2, entitled, "Inherent political power; republican form of
government," states:
All political power is inherent in the people, and all free governments are founded
on their authority, and instituted for their benefit. The faith of the people of Texas
stands pledged to the preservation of a republican form of government, and,
subject to this limitation only, they have at all times the inalienable right to alter,
reform or abolish their government in such manner as they may think expedient.
There is no cause of action enumerated under Article 1, Section 2, let alone a private
cause of action. Nothing in Section 2, provides him the standing to bring suit or a remedy for
such a violation. Therefore, Plaintiff has not articulated that this court has jurisdiction over his
Section 2 claims. Moreover, Plaintiff has not articulated any particular violation of the people's
right to "the preservation of a republican form of government" or the people's political power to
"alter, reform or abolish their government," i.e. an applicable injury. Therefore, because he has
no private cause of action to sue under Section 2 and he has no applicable injury, the court must
dismiss Plaintiff's causes of action under Section 2, with prejudice to the refiling of same.
And Texas Constitution Art. 1, Sec. 6, entitled, "Freedom of worship," states:
Defendants Steven Johnson's and Matthew Murphy's
First Amended Motion to Dismiss for Lack of Jurisdiction
Page 4 of 14
All men have a natural and indefeasible right to worship Almighty God according
to the dictates of their own consciences. No man shall be compelled to attend,
erect or support any place of worship, or to maintain any ministry against his
consent. No human authority ought, in any case whatever, to control or interfere
with the rights of conscience in matters of religion, and no preference shall ever
be given by law to any religious society or mode of worship. But it shall be the
duty of the Legislature to pass such laws as may be necessary to protect equally
every religious denomination in the peaceable enjoyment of its own mode of
public worship.
Plaintiff has not alleged any viable freedom of worship claims because he has not alleged
that the City Defendants compelled him to "attend, erect, or support any place of worship," nor
has he alleged that he was asked or forced to "maintain any ministry against his consent."
Furthermore, he has not alleged that he was engaged in any sort of worship or religious
expression at the time he was arrested by City Defendants. Therefore, on the face of his
Amended Claim, he has failed to establish this court's jurisdiction over his Section 6 claim. The
court must dismiss Plaintiff's causes of action under Section 6, with prejudice to the refiling of
same.
B. Plaintiff does not have a private cause of action under Article 1, Section 29 of the
Texas Constitution.
In his Amended Claim, the Plaintiff asserts that "Jurisdiction is conferred upon this court
of record by right and this state's general jurisdiction statute cf. THE TEXAS CONSTITUTION
BILL OF RIGHTS Article One Section Twenty-Nine, to which the focus of this dispute are
protected rights in this state." See Plaintiff's Amended Claim, 5.
Article
1,
Section
29
of
the
Texas Constitution, entitled "Provisions of Bill of Rights excepted from powers of government;
to forever remain inviolate," reads "To guard against transgressions of the high powers herein
delegated, we declare that everything in this "Bill of Rights" is excepted out of the general
powers of government, and shall forever remain inviolate, and all laws contrary thereto, or to the
following provisions, shall be void." Tex. Const. art. I, § 29.
Defendants Steven Johnson's and Matthew Murphy's
First Amended Motion to Dismiss for Lack of Jurisdiction
Page 5 of 14
In City of Beaumont, the Texas Supreme Court examined Section 29 and found that the
purpose of Section 29 was to automatically void any law that was passed contrary to that
provision. See City of Beaumont V. Bouillion, 896 S.W.2d 143, 149 (Tex. 1995). However, the
Court noted that "[t]here is a difference between voiding a law and seeking damages as a remedy
for an act." Id. The Court held that while suits for equitable remedies are permitted under the
Constitution, Section 29 does not support a plaintiff's "claim that a private right of action for
damages is implied under the Texas Constitution." Id.
Here, Plaintiff has exclusively asserted this Court's jurisdiction under Article 1, Section
29 of the Texas Constitution. However, Section 29 does not support a private cause of action,
without which Plaintiff cannot recover damages, therefore he has failed to establish the Court's
jurisdiction. Because this Court lacks jurisdiction to hear Plaintiff's claims, and Plaintiff has
already been given a chance to re-plead the jurisdictional elements of his claim, his causes of
action against City Defendants must be dismissed in their entirety.
C. Plaintiff does not have a private cause of action under Article 1, Sections 9 and 19
the Texas Constitution.
In Donohue, the court examined whether violations of the constitutional provisions under
Art. 1, Sec. 9 (search and seizure), Sec. 13 (cruel and unusual punishment), and Sec. 19 (life,
liberty, due course of law) created a private cause of action. The court held, "[n]one of these
provisions imply a private right of action for damages against the governmental unit that would
exist apart from the Texas Tort Claims Act." Donohue V. Dominguez, 486 S.W.3d 50, 56 (Tex.
App.-San Antonio 2016, pet. denied). Article 1, Section 19 states "No citizen of this State shall
be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised,
except by the due course of the law of the land." Tex. Const. art. I, § 19. And Article 1, Section
9 states:
Defendants Steven Johnson's and Matthew Murphy's
First Amended Motion to Dismiss for Lack of Jurisdiction
Page 6 of 14
The people shall be secure in their persons, houses, papers and possessions, from
all unreasonable seizures or searches, and no warrant to search any place, or to
seize any person or thing, shall issue without describing them as near as may be,
nor without probable cause, supported by oath or affirmation.
Here, in paragraphs 15-16 of his Amended Claim, Plaintiff alleges his causes of action
under Art. 1, Sec. 9 and Sec. 19 of the Texas Constitution. However, as the courts have already
determined, see Donohue, these provisions of the Texas Constitution do not contain a private
cause of action, without which Plaintiff cannot recover damages, therefore he has failed to
establish the Court's jurisdiction. Therefore, Plaintiff's claims against City Defendants in
paragraphs 15-16 must be dismissed in their entirety.
D. Plaintiff does not have a private cause of action under Article 1, Section 17 the
Texas Constitution.
Article 1, Section, 17, also known as the takings provision of the Texas Constitution
states:
Sec. 17. (a) No person's property shall be taken, damaged, or destroyed for or
applied to public use without adequate compensation being made, unless by the
consent of such person, and only if the taking, damage, or destruction is for:
(1) the ownership, use, and enjoyment of the property, notwithstanding an
incidental use, by:
(A) the State, a political subdivision of the State, or the public at large; or
(B) an entity granted the power of eminent domain under law; or
(2) the elimination of urban blight on a particular parcel of property.
(b) In this section, "public use" does not include the taking of property
under Subsection (a) of this section for transfer to a private entity for the
primary purpose of economic development or enhancement of tax
revenues.
(c) On or after January 1, 2010, the legislature may enact a general, local,
or special law granting the power of eminent domain to an entity only on a
two-thirds vote of all the members elected to each house.
(d) When a person's property is taken under Subsection (a) of this section,
except for the use of the State, compensation as described by Subsection
Defendants Steven Johnson's and Matthew Murphy's
First Amended Motion to Dismiss for Lack of Jurisdiction
Page 7 of 14
(a) shall be first made, or secured by a deposit of money; and no
irrevocable or uncontrollable grant of special privileges or immunities
shall be made; but all privileges and franchises granted by the Legislature,
or created under its authority, shall be subject to the control thereof.
The Texas Supreme Court, in interpreting this provision, has stated that "[t]he text of
section 17 waives immunity only when one seeks adequate compensation for property lost to the
State." City of Beaumont V. Bouillion, 896 S.W.2d 143, 149 (Tex. 1995). However, the Court
was "not persuaded that a right to damages for injuries to constitutional interests can be implied
solely from a limited explicit entitlement for compensation for the loss of property." Id.
"Property that is taken is transferred from one owner to another." Steele V. City of
Houston, 603 S.W.2d 786, 789 (Tex. 1980). "To recover under the theory that property has been
'taken' under TEX.CONST. art. I, sec. 17, [plaintiff] must have established that: (1) the State
intentionally performed certain acts; (2) which resulted in a 'taking' of her property; (3) for
public use." City of Abilene V. Smithwick, 721 949, 951 (Tex. App.-Eastland 1986, writ
ref'd n.r.e.). "A constitutional taking for public use occurs 'only when there results to the public
some definite right or use in the business or undertaking to which the property is devoted."
Berry V. City of Reno, 107 S.W.3d 128, 133 (Tex. App.-Fort Worth 2003, no pet.) (citing
Borden V. Trespalacios Rice & Irr. Co., 98 Tex. 494, 509, 86 S.W. 11, 14 (1905), aff'd, 204 U.S.
667, 27 S. Ct. 785, 51 L. Ed. 671 (1907)). Whether a property was taken for public use is a
question for the court to decide. Id. And "[g]enerally, the trend in Texas is toward defining
public use in terms of the general benefit to the State." Id.
Here, Plaintiff has failed to plead the third element of a takings claim; he has failed to
allege that his property was taken for a public use. Without a public use there can be no valid
takings claim. See Berry V. City of Reno, 107 S.W.3d 128, 133 (Tex. App.-Fort Worth 2003,
no pet.). Moreover, Plaintiff is complaining of a "taking" of his property during a lawful search
Defendants Steven Johnson's and Matthew Murphy's
First Amended Motion to Dismiss for Lack of Jurisdiction
Page 8 of 14
incident to arrest. The Fourth Amendment to the United States Constitution permits police
officers to search an arrestee incidental to a lawful arrest. See State V. Granville, 423 S.W.3d
399, 410 (Tex. Crim. App. 2014) ("The justification for permitting such a warrantless search is
(1) the need for officers to seize weapons or other things which might be used to assault on
officer or effect an escape, and (2) the need to prevent the loss or destruction of evidence.")
A
search is considered incident to arrest if it is "substantially contemporaneous with the arrest and
is confined to the area within the immediate control of the arrestee." Id. Here, Plaintiff does not
allege that the search was not contemporaneous with the arrest nor does he allege that the arrest
was not confined to the area under his immediate control. He also does not allege what exactly
was seized. While Plaintiff claims that some chattel of his was trespassed, and has an "appraised
value of 352,909,958 gold dollar coins or $666.234.503.400.78," this amount is obviously
fictitious. Otherwise Plaintiff would probably be the richest person who ever lived. 3 It is readily
apparent that this takings claim is jurisdictionally inadequate at best and at worst frivolous.
In sum, Plaintiff has not properly pled that his property was taken for the purposes of a
constitutional takings cause of action because the claim is frivolous, he has failed to articulate the
public purpose for the taking, which is a jurisdictional requirement, and he has failed to allege
how the "taking" of his property was not conducted within the confines of a lawful search
incident to his arrest. Therefore, Plaintiff's claims under Section 17 must also be dismissed.
E. Plaintiff does not have a private cause of action under Counts 1-4 of his Amended
Claim.
In Counts 1-4 of his Amended Claim, Plaintiff claims that the City Defendants committed
a trespass to his personal property, including: trespass (ab initio), false imprisonment, assault and
3
$666 billion is greater than the GDP of all but 6 of the U.S. states. See
https://en.wikipedia.org/wiki/Lis of U.S. states by Gross State Product (GSP)#List
Defendants Steven Johnson's and Matthew Murphy's
First Amended Motion to Dismiss for Lack of Jurisdiction
Page 9 of 14
battery, and conversion. First, Plaintiff has failed to articulate how any of these causes of action
may be brought as to personal property. Second, none of these causes of action actually exist
under the Texas Constitution.
Additionally, these causes of action are intentional torts and the City Defendants'
immunity is not waived for intentional torts. See Tex. Civ. Prac. & Rem. Code 101.057(2)
("This chapter does not apply to a claim
(2) arising out of assault, battery, false imprisonment,
or any other intentional tort, including a tort involving disciplinary action by school
authorities."); see also Goldman V. Williams, 101 F. Supp. 3d 620, 654 (S.D. Tex. 2015) (Finding
that "using restraints to tie down Plaintiff arises out of an intentional act for which Texas has not
waived immunity.") Particularly, in paragraph 32 of his Amended Claim, Plaintiff readily
admits, that the City Defendants "intentionally placed metal restrains on Plaintiffs property."
This would be an intentional tort allegation for which the City Defendants retain immunity. See
also Warwick Towers Council of Co-Owners ex rel. St. Paul Fire & Marine Ins. Co. V. Park
Warwick, L.P., 298 S.W.3d 436, 447 (Tex. App.-Houston [14th Dist.] 2009, no pet.) ("Trespass
usually is regarded as an intentional tort in the sense that it involves an intent to commit an act
that violates a property right, or would be practically certain to have that effect, although the
actor may not know the act he intends to commit is such a violation.")
Therefore, the Plaintiff's causes of action must be dismissed in their entirety with
prejudice to the refiling of same because these causes of action do not apply to personal property,
nor do they exist under the Texas Constitution, which he solely relies on to establish the Court's
jurisdiction, and the City Defendants' immunity is not waived for any intentional torts under the
Texas Tort Claims Act.
F. Official Immunity - Police Officers Steven Johnson and Matthew Murphy
Defendants Steven Johnson's and Matthew Murphy's
First Amended Motion to Dismiss for Lack of Jurisdiction
Page 10 of 14
Official immunity "is an affirmative defense that protects a governmental employee from
personal liability and, in doing so, preserves a governmental employer's sovereign immunity
from suit for vicarious liability." Texas Dep't of Pub. Safety V. Bonilla, 481 S.W.3d 640, 642
(Tex. 2015). Specifically, "[a] governmental employee is entitled to official immunity: (1) for
the performance of discretionary duties; (2) within the scope of the employee's authority; (3)
provided the employee acts in good faith. Univ. of Houston V. Clark, 38 S.W.3d 578, 580 (Tex.
2000).
Functions that are ministerial in nature are not protected by official immunity. Kersey V.
Wilson, 69 S.W.3d 794, 798 (Tex. App.- Fort Worth, 2002). The distinction between ministerial
and discretionary acts is that, "where the law prescribes and defines the duty to be performed
with such precision and certainty as to leave nothing to the exercise of discretion or judgment,
the act is ministerial." Id. However, "where the act to be done involves the exercise of
discretion of judgment in determining whether the duty exists, it is not to be deemed ministerial."
Id. Courts have determined that "[a]n officer's decision regarding 'if, how, and when to arrest a
person' is discretionary." Id. at 799.
Additionally, Texas Penal Code Chapter 22 defines what constitutes the offense of
assault and makes such an offense punishable as a Class A misdemeanor. Furthermore, a peace
officer is permitted to arrest a person without a warrant provided they have probable cause to
believe that an assault has occurred. Tex. Code of Crim. Pro. Art. 14.03. To make the
determination that probable cause exists that a person has committed an offense, such as assault,
requires personal deliberation and judgment. Kersey, at 799. The subsequent arrest is thus
considered a discretionary act. Id. Additionally, courts have recognized official immunity in
cases "involving allegations of intentional torts such as assault arising from police activity." Id.
Defendants Steven Johnson's and Matthew Murphy's
First Amended Motion to Dismiss for Lack of Jurisdiction
Page 11 of 14
And the Texas Tort Claims Act does not waive immunity for intentional torts. See Tex. Civ.
Prac. & Rem. Code § 101.057.
Here, the Officers have official immunity for their actions in regards to the arrest of
Plaintiff. Moreover, the Plaintiff has failed to articulate any waiver of official immunity. The
Officers determined, based upon their investigation, that probable cause existed to believe that
Plaintiff had committed the offense of a Class A misdemeanor assault against Complainant. The
act of arresting Plaintiff was a discretionary decision based on that judgment. And under the
Texas Code of Criminal Procedure the arrest was within the scope of their authority as Police
Officers for the City of Austin Police Department. Moreover, the Officers acted in good faith
belief that the Plaintiff committed a criminal act based upon the credible allegations of the
Complainant. Additionally, their acts were not ministerial because the law did not require the
Officers to determine that an assault had occurred, nor did the law require them to arrest the
Plaintiff (Note: the Code of Criminal Procedure states that an officer may arrest a suspect),
instead they used their discretion and judgment in determining that they had a duty to arrest
Plaintiff. In fact, the officers were required to make at least two discretionary decisions in
effecting the arrest of Plaintiff according to the Code of Criminal Procedure: 1) that probable
cause existed to believe that the assault had occurred; and 2) that probable cause existed to
believe there was a danger of further bodily injury to the victim. See Tex. Code of Crim. Pro.
Art. 14.03.
Finally, any alleged intentional tort against Plaintiff is also barred by immunity. Again,
the courts have recognized that official immunity exists for intentional torts, and any assault that
allegedly occurred during the Officers' arrest occurred under the exact same circumstance that
Defendants Steven Johnson's and Matthew Murphy's
First Amended Motion to Dismiss for Lack of Jurisdiction
Page 12 of 14
already cloaks their actions in official immunity. And the Texas Tort Claims Act explicitly
provides that immunity is not waived under the Act for intentional torts.
In conclusion, the court should find that the City Defendants' actions are protected by
official immunity. Therefore, the court should dismiss all causes of action against the City
Defendants in their entirety with prejudice to the re-filing of same.
III.
PRAYER
THEREFORE, PREMISES CONSIDERED, the City Defendants pray that their First
Amended Motion to Dismiss for Lack of Jurisdiction be set, and after a hearing, if necessary, that
their Motion be granted, that the Plaintiff's causes of action be dismissed in their entirety with
prejudice to the re-filing of same, that Plaintiff take nothing by this suit, all costs of court be
assessed against each party incurring same, and that the City Defendants be granted any
additional relief to which they are justly entitled to under law or equity.
RESPECTFULLY SUBMITTED,
ANNE L. MORGAN, CITY ATTORNEY
MEGHAN L. RILEY, CHIEF, LITIGATION
DIVISION
/s/ Brandon W. Carr
BRANDON W. CARR
Assistant City Attorney
State Bar No. 24074004
City of Austin-Law Department
P. O. Box 1546
Austin, Texas 78767-1546
Telephone: (512) 974-2181
Facsimile: (512) 974-1311
Brandon.Carr@austintexas.gov
ATTORNEYS FOR CITY DEFENDANTS
Defendants Steven Johnson's and Matthew Murphy's
First Amended Motion to Dismiss for Lack of Jurisdiction
Page 13 of 14
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, on this 5th day of
June, 2017, as follows:
Via CM RRR 91 7199 9991 7036 8707 4233, First Class Mail, and Email to:
Christian-Andre Clark
7007 Greenock Street
Austin, Texas 78749
Christianclark31@gmail.com
PRO SE
Via e-Filing to:
Andrew M. Williams
SBN 24068345
andrew.williams@traviscountytx.gov
Patrick M. Kelly
SBN 11228000
pat.kelly@traviscountytx.gov
P.O. Box 1748
Austin, Texas 78767
(512) 854-9513
(512) 854-4808 (Fax)
ATTORNEYS FOR TRAVIS COUNTY DEFENDANTS
/s/ Brandon W. Carr
BRANDON W. CARR
Defendants Steven Johnson's and Matthew Murphy's
First Amended Motion to Dismiss for Lack of Jurisdiction
Page 14 of 14
Exhibit R
POLICE
AUSTIN POLICE DEPARTMENT
GENERAL OFFENSE HARDCOPY
(ASSAULT W/INJURY-FAM/DATE VIOL)
AUSTIN
GO# 2015-2721930
Table of Contents
Related Event GO# 2015-2721930
1
Offense(s)
1
Related Event(s)
2
Related Person(s)
2
1. VICTIM # 1 - DAVIS, EBONY
2
2. ARRESTED # 1 - CLARK, CHRISTIAN ANDRE
3
3. JUV-OBSERV/ # 1 - CLARK, CAJALYN
4
4. JUV-OBSERV/ # 2 - CLARK, CHRISTINA
5
5. JUV-OBSERV/ # 3 - DOTSON, JORDAN
6
Related Narrative(s)
7
1. PRESS RELEASE
7
2. INITIAL REPORT
8
3. SUPPLEMENTS - AVS ATTACHED
10
Related Follow Up(s)
15
1. Follow Up Report # 1
15
2. Follow Up Report # 2
17
Related Clearance Information
19
Related Arrest(s)
20
1. Related Arrest Report AB# 2015-37586
20
Related Attachment(s)
22
1. AUDIO RECORDING
22
POLICE
AUSTIN POLICE DEPARTMENT
GO# 2015-2721930
CLEARED BY ARREST
GENERAL OFFENSE HARDCOPY
(IBRS)
AUSTIN
(0900-1 ASSAULT W/INJURY-FAM/DATE VIOL)
General Offense Information
Operational Status CLEARED BY ARREST (IBRS)
Reported On SEP-29-2015 (TUE.) 2301
Occurred On SEP-29-2015 (TUE.) 2225
Approved On OCT-16-2015 (FRI.)
Approved By AP6294 - CAMPOS, HECTOR
Report Submitted AP7804 - JOHNSON, STEPHEN
By
Org Unit EDWARD 800 REG Il PATROL
Accompanied By AP7617 - MURPHY, MATTHEW
Address
Municipality
County TRAVIS COUNTY
District ED Beat 1 Grid 224
Premise Code 899
Bias NONE (NO BIAS)
Gang Involvement GANG INVOLVEMENT
Family Violence YES
Offenses (Completed/Attempted)
Offense # 1 0900-1 ASSAULT W/INJURY-FAM/DATE VIOL - COMPLETED
Location RESIDENCE / HOME
Suspected Of Using N/A
Weapon Type PERSONAL WEAPONS (HANDS FIST / FEET)
For AP4803
Printed On Aug-23-2016 (Tue.)
Page 1 of 23
GO# 2015-2721930
POLICE
AUSTIN POLICE DEPARTMENT
CLEARED BY ARREST
GENERAL OFFENSE HARDCOPY
(IBRS)
W
AUSTIN
(0900-1 ASSAULT W/INJURY-FAM/DATE VIOL)
Related Event(s)
1. GO 2016-921448
2. CP 2015-2721930
3. AB 2015-37586
Related Person(s)
1. VICTIM # 1 - DAVIS, EBONY
CASE SPECIFIC INFORMATION
Sex FEMALE
Race BLACK
Date Of Birth
Address
Municipality
State
ZIP Code
HOME
PERSON PARTICULARS
Ethnicity NOT-HISPANIC OR LATINO
MASTER NAME INDEX REFERENCE
Name DAVIS, EBONY MONIQUE
Sex FEMALE
Race BLACK
Date Of Birth
Ethnicity NOT-HISPANIC OR LATINO
Address
Municipality
State
ZIP Code
PHONE NUMBERS
CELL PHONE
HOME
BUSINESS
Email
For AP4803
Printed On Aug-23-2016 (Tue.)
Page 2 of 23
POLICE
AUSTIN POLICE DEPARTMENT
GO# 2015-2721930
CLEARED BY ARREST
GENERAL OFFENSE HARDCOPY
(IBRS)
AUSTIN
(0900-1 ASSAULT W/INJURY-FAM/DATE VIOL)
LINKAGE FACTORS
Resident Status RESIDENT OF AUSTIN
Age Range 30-49 YEARS
Type Of Injury APPARENT MINOR INJURY
Access To Firearm NO
Victim Of 0900- 1 ASSAULT W/INJURY-FAM/DATE VIOL - COMPLETED
RELATIONSHIP(S) BETWEEN VICTIM TO OFFENDER(S)
Relationship VICTIM WAS BOYFRIEND/GIRLFRIEND
Offender's Name CLARK, CHRISTIAN A
Offender's Role ARRESTED #1
2. ARRESTED # 1 - CLARK, CHRISTIAN ANDRE
CASE SPECIFIC INFORMATION
Sex MALE
Race BLACK
Date Of Birth
Address
Municipality
State
ZIP Code
PERSON PARTICULARS
Ethnicity NOT-HISPANIC OR LATINO
MASTER NAME INDEX REFERENCE
Name CLARK, , CHRISTIAN ANDRE
Sex MALE
Race BLACK
Date Of Birth
Ethnicity NOT-HISPANIC OR LATINO
Address
Municipality
State
ZIP Code
PHONE NUMBERS
HOME
For AP4803 Printed On Aug-23-2016 (Tue.)
Page 3 of 23
POLICE
AUSTIN POLICE DEPARTMENT
GO# 2015-2721930
CLEARED BY ARREST
GENERAL OFFENSE HARDCOPY
(IBRS)
AUSTIN
(0900-1 ASSAULT WINJURY-FAM/DATE VIOL)
CELL PHONE
Email
CHARGE SUMMARY
CHARGE # 1
Offense Date SEP-29-2015 (TUE.)
Offense ASSLT CAUSES BODILY INJURY FV 22.01(A)(1) PC - COMPLETED
Charge Statute A 13990031
Domestic Violence YES
LINKAGE FACTORS
Resident Status RESIDENT OF AUSTIN
Age Range 30-49 YEARS
Access To Firearm NO
Armed With NONE
Offense 0900- 1 ASSAULT W/INJURY-FAM/DATE VIOL - COMPLETED
Arrest Date SEP-29-2015 (TUE.)
Arrest Type ON VIEW ARREST (LOCAL
ARREST NO WARRANT)
3. JUV-OBSERV/# 1 - CLARK, CAJALYN
CASE SPECIFIC INFORMATION
Sex MALE
Race BLACK
Date Of Birth
Address
Municipality
State
ZIP Code
PERSON PARTICULARS
Ethnicity NOT-HISPANIC OR LATINO
MASTER NAME INDEX REFERENCE
Name
Sex FEMALE
Race BLACK
Date Of Birth
For AP4803
Printed On Aug-23-2016 (Tue.)
Page 4 of 23
GO# 2015-2721930
POLICE
AUSTIN POLICE DEPARTMENT
CLEARED BY ARREST
GENERAL OFFENSE HARDCOPY
(IBRS)
AUSTIN
(0900-1 ASSAULT W/INJURY-FAM/DATE VIOL)
Ethnicity NOT-HISPANIC OR LATINO
Address
Municipality
State
ZIP Code
LINKAGE FACTORS
Resident Status RESIDENT OF AUSTIN
Age Range 2-3 YEARS
Access To Firearm NO
4. JUV-OBSERV/ # 2 - CLARK, CHRISTINA
CASE SPECIFIC INFORMATION
Sex FEMALE
Race BLACK
Date Of Birth
Address
Municipality
State
ZIP Code
PERSON PARTICULARS
Ethnicity NOT-HISPANIC OR LATINO
MASTER NAME INDEX REFERENCE
Name CLARK, CHRISTINA
Sex FEMALE
Race BLACK
Date Of Birth
Ethnicity NOT-HISPANIC OR LATINO
Address
Municipality
State
ZIP Code
PHONE NUMBERS
CELL PHONE
For AP4803 Printed On Aug-23-2016 (Tue.)
Page 5 of 23
GO# 2015-2721930
POLICE
AUSTIN POLICE DEPARTMENT
CLEARED BY ARREST
GENERAL OFFENSE HARDCOPY
(IBRS)
AUSTIN
(0900-1 ASSAULT W/INJURY-FAM/DATE VIOL)
LINKAGE FACTORS
Resident Status RESIDENT OF AUSTIN
Age Range 14-15 YEARS
Access To Firearm NO
5. JUV-OBSERV/# 3 - DOTSON, JORDAN
CASE SPECIFIC INFORMATION
Sex MALE
Race BLACK
Date Of Birth
Address
Municipality
State
ZIP Code
PERSON PARTICULARS
Ethnicity NOT-HISPANIC OR LATINO
MASTER NAME INDEX REFERENCE
Name DOTTSON , JORDAN U
Sex MALE
Race BLACK
Date Of Birth
Ethnicity NOT-HISPANIC OR LATINO
Address
Municipality
State
ZIP Code
PHONE NUMBERS
HOME
LINKAGE FACTORS
Resident Status RESIDENT OF AUSTIN
Age Range 14-15 YEARS
Access To Firearm NO
For AP4803 Printed On Aug-23-2016 (Tue.)
Page 6 of 23
GO# 2015-2721930
POLICE
AUSTIN POLICE DEPARTMENT
CLEARED BY ARREST
GENERAL OFFENSE HARDCOPY
(IBRS)
AUSTIN
(0900-1 ASSAULT W/INJURY-FAM/DATE VIOL)
Related Text Page(s)
Document PRESS RELEASE
Author AP7804 - JOHNSON, STEPHEN
Related Date/Time SEP-29-2015 (TUE.) 2305
Responded to a call for service and a report was written.
For AP4803
Printed On Aug-23-2016 (Tue.)
Page 7 of 23
GO# 2015-2721930
POLICE
AUSTIN POLICE DEPARTMENT
CLEARED BY ARREST
GENERAL OFFENSE HARDCOPY
(IBRS)
AUSTIN
(0900-1 ASSAULT W/INJURY-FAM/DATE VIOL)
Related Text Page(s)
Document INITIAL REPORT
Author AP7804 - JOHNSON, STEPHEN
Related Date/Time SEP-29-2015 (TUE.) 2306
On Tuesday 9/29/15 at 2225, I, Ofc Johnson #7804 and Ofc Murphy #7617
responded as a 2-man unit to a disturbance hot shot located at
call text = DIST AT ABV
Upon arrival, I could hear a male yelling from inside the house. I knocked
on the door and announced Austin Police. The man came to the door and
stepped outside with my partner. The man was identified as:
Christian Clark BM
I then walked inside and made contact with the complainant and she was
identified as:
Ebony Davis BF
Ebony stated that her and Christian got into an argument and he punched her
in the face with a closed right handed fist. At this point, I told Ofc
Murphy to detain Christian until we could further our investigation.
Ebony stated that the argument occurred because her son had spilled some
paint on the garage floor and she did not know how to clean it up. Ebony
stated that she asked Christian how to clean it and he just got mad at her
because she hadnt cleaned it yet. Ebony stated that Christian then swung at
her and hit her in the left side of her face around her ear. There was
redness on her face that was consistent with being punched. Ebony stated
that it hurt when she was punched and that it still has a burning feeling.
Ebony refused EMS and stated that she did not need to have Crisis there to
talk to.
I then spoke with Christian and he refused to talk to officers about what
happened. He stated that if we want to know anything, then just speak to
Ebony.
Christian was then searched incidental to arrest.
Ebony completed an AVS and that was submitted at arrest review. I took
photos of Ebony and the injury and that was submitted at the north sub.
For
AP4803 Printed On Aug-23-2016 (Tue.)
Page 8 of 23
POLICE
AUSTIN POLICE DEPARTMENT
GO# 2015-2721930
CLEARED BY ARREST
GENERAL OFFENSE HARDCOPY
(IBRS)
AUSTIN
(0900-1 ASSAULT W/INJURY-FAM/DATE VIOL)
Ebony stated that she did not want an EPO.
Christian and Ebony have 3 children that were all present. They were
identified as:
Cajalyn Clark BM
Christina Clark BF
Jordan Dotson BM
Christian was then transported to the Travis County Jail where he was
booked in for assault with injury FV Class A Misdemeanor.
CPS was called-
CPS #66599632
Winnie #1015
NOI
S. Johnson #7804
For AP4803 Printed On Aug-23-2016 (Tue.)
Page 9 of 23
GO# 2015-2721930
POLICE
AUSTIN POLICE DEPARTMENT
CLEARED BY ARREST
GENERAL OFFENSE HARDCOPY
(IBRS)
AUSTIN
(0900-1 ASSAULT W/INJURY-FAM/DATE VIOL)
Related Text Page(s)
Document SUPPLEMENTS
Author AP7681 - SMILEY, MARY
Subject AVS ATTACHED
Related Date/Time SEP-30-2015 (WED.) 0946
For AP4803
Printed On Aug-23-2016 (Tue.)
Page 10 of 23
GO# 2015-2721930
POLICE
AUSTIN POLICE DEPARTMENT
CLEARED BY ARREST
GENERAL OFFENSE HARDCOPY
(IBRS)
W
AUSTIN
(0900-1 ASSAULT W/INJURY-FAM/DATE VIOL)
NARRATIVE TEXT RELATED ATTACHMENT(S)
1. ATTCHMENTS
Description AVS
AUSTIN POLICE DEPARTMENT - ASSAULT VICTIM STATEMENT
CASE # 115-2721930
DATE OF ASSAULT 9/29/2015
TODAY'S DATE 9/29/2015
VICTIM INFORMATION
TO BE COMPLETED BY POLICE OFFICER
Victim's Name (last, first, middle) Davis, Ehony Monique
DOB
Home Address
R/S BIE
DL
State
SSN#
Home#( )
Email Address
Place of Employment TX Post Insurance
Cell Provider
Pregnant?
Yes
Suspect's Name
Christian Clark
No #Weeks
Does the suspect live at this address? Yes
No If no. list address
Emergency Contact(s)
(Person who can contact you at all times)
Contact 1 Tiffany Harris
)
Name
Address
Home #
Contact 2
Work #
Victim/Suspect Relationship
Dating/Engaged 2yrs. months
Marriage Legal
yrs.
months
Member of Same Household
Biological Parents of Same Child - # Children
Former Member of Same Household
Blood Relation
Relationship Ended (date)
Action(s) of Suspect
@Striking (OOpen Hand C/Closed Hand)
Pushing
Throwing
Grabbing
Strangling/Suffocating (Complete Strangulation Supplement)
Pulling
Biting
Other (explain)
How long has it been since the assault?
Hour(s)
20 Minute(s)
Day(s)
Complaint of physical pain during or after the assault?
Yes
No
Explain
Burning to neck
Did Suspect prevent you from making an emergency telephone call for assistance?
Yes
No How/Explain
Did Suspect use or threaten to use a weapon against you? Yes No What type of weapon?
How?
Weapon(s) owned by Suspect?
Yes
No
Does Suspect have Concealed Handgun License?
Yes
No
List weapon(s)
Did Suspect threaten you if you called the Police for this assault?
Yes
XNo
Describe threat(s)
Has Suspect hurt you before?
Yes
No
Date?
Where?
How?
Frequency?
Was a report made?
Yes
No
To whom?
Has Suspect ever threatened you if you called the Police?
Yes
XNo
Describe threat(s)
Has Suspect ever harmed or threatened to harm the children?
Yes
SNo How?
Has Suspect ever harmed or threatened to harm the household pets?
Yes
(No
How?
Was a report made? Yes XNo To whom/Which agency?
Was Suspect using drugs at the time of this assault?
Yes XNo What?
Does Suspect use the following?
Alcohol
Prescription Medication - What?
Illigel Drug(s) What?
Other Describe
Do you want an Emergency Protective Order?
Yes
No
Do you have a Protective Order?
Yes
#
Expiration Date
VICTIM DESCRIPTION
TO BE COMPLETED BY POLICE OFFICER
DEMEANOR
PHYSICAL CONDITION
APPEARANCE
lafraid
SPEECH
hysterical
labrasion(s)
laceration(s)
bloody clothes
langry
Jangry
indifferent
Ibruise(s) new
loose hair
smeared makeup
out of breath
Japologetic
intoxicated
Ibruise(s) old
shaking
soiled/sweat stained
lexcited/fast
Ibelligerent
lirrational
bleeding
Predness
Otangled/messy hair
Calm
crying/sobbing
Inervous
physical pain
[]swelling
Icrying
Ifearful
fracture(s)
(other painted
torn/pulled clothing
yelling
Idistraught
other paint on neck
Ibelligerent
lother
sweating
neck
Explain other
lother
1
For AP4803
Printed On Aug-23-2016 (Tue.)
Page 11 of 23
POLICE
AUSTIN POLICE DEPARTMENT
GO# 2015-2721930
CLEARED BY ARREST
GENERAL OFFENSE HARDCOPY
(IBRS)
W
AUSTIN
(0900-1 ASSAULT WINJURY-FAM/DATE VIOL)
WHAT SUSPECT USED TO HURT /THREATEN VICTIM
CRIME SCENE OBSERVATIONS
Mand
Head
Foot
Knife
Gun
Other
Signs of Disturbance
Clump(s) of Hair
Broken Furniture
Blood at Scene
Weapon Seized?
Photos Taken?
XYes
No
Broken Phone
Hole(s) in Wall
Yes
No
# Taken 3
By # 7804
Broken Glass
Children Crying
Wictim
Suspect
Weapon(s)
Phone Cord Yanked
Evidence Collected?
Injury
Location of Pain
Other
Yes XNo
Weapon(s)
Crime Scene
Turned into PCO
Medical Treatment
Basic First Aid/Not Transported Treated By
EMT Name/#
Transported Where
Address
City
State
Will Seek Own Physician Physician's Name
Address
City
Will Get Treatment at Clinic Clinic's Name
Address
City
Refused
None
SUSPECT INFORMATION
TO BE COMPLETED BY POLICE OFFICER
Suspect's Name
first
middle)
Clash Christian Andre
DOB
R/S B/M
Home Address
State TX SSN#
Home#( )
Work#
Cell
lace of Employment
Electrician
Email Address
Cell Provider
Pregnant?
Yes XNo #Weeks
Suspect XIArrested
Not at Scene Photo Available Yes-Taken No Scars/Tattoos No Yes If yes describe
TaHoo on night thigh, lett forearm, Sideof left neck
SUSPECT DESCRIPTION
TO BE COMPLETED BY POLICE OFFICER
DEMEANOR
PHYSICAL CONDITION
APPEARANCE
SPEECH
lafraid
hysterical
abrasion(s)
llaceration(s)
Ibloody clothes
langry
langry
indifferent
bruise(s) new
loose hair
smeared makeup
out of breath
Dapologetic
intoxicated
bruise(s) old
shaking
soiled/sweat stained
excited/fast
Ibelligerent
irrational
bleeding
redness
Itangled/messy hair
crying/sobbing
calm
nervous
physical pain
swelling
[torn/pulled clothing
yelling
crying
fearful
fracture(s)
other
other
belligerent
Idistraught
]other
sweating
other
Explain other
BODY INJURY DIAGRAM
TO BE COMPLETED BY POLICE OFFICER
Buragan HT
Mark all injuries on both the Victim and the Suspect
S'S
HT 5'll
neck
WT 190
WT 160
SEX r
SEX M
VICTIM
SUSPECT
FRONT
BACK
FRONT
BACK
Describe injuries and how each was inflicted in the narrative of the offense report.
2
For AP4803
Printed On Aug-23-2016 (Tue.)
Page 12 of 23
GO# 2015-2721930
POLICE
AUSTIN POLICE DEPARTMENT
CLEARED BY ARREST
GENERAL OFFENSE HARDCOPY
(IBRS)
W
AUSTIN
(0900-1 ASSAULT W/INJURY-FAM/DATE VIOL)
. Witness Information (May Use Witness Statement Form)
1. Name
DOB
R/S
/
Home#( )
Work#( )
Cell# )
Email Address
2. Name
DOB
R/S
/
Home# )
Work#( )
Cell#( )
Email Address
.
Children Information (MUST list all children and document in narrative of offense report)
1. Present?
XYes
No
Witness to assault?
(Yes
No
CPS Called?
es
No CPS# 66599632
Name of school child is attending
(If more than one child, then you MUST list all other information in your supplement report)
. Military Information
Victim in Military?
Yes
9No Branch
Stationed
Suspect in Military?
Yes
No
Branch
USAMMY
Stationed
Victim in Reserves?
Yes
No
Texas National Guard
Yes
No
Suspect in Reserves?
Yes
No
Texas National Guard
Yes
No
Re-location/Contact Information
Are you planning to relocate?
Yes
N/No Address?
Phone#( )
Cell#(
Other# )
LETHALITY ASSESMENT
TO BE COMPLETED BY A POLICE OFFICER
"Yes" to ANY question 1-5, Activate or notify Victim Services
1. Has s/he ever threatened you with a weapon?
Yes
No
NA
2. Has s/he used a weapon against you?
Yes
No
NA
3. Has s/he ever threatened to kill you?
Yes
No
NA
4. Has s/he ever threatened to kill your children?
Yes
SNo
INA
5. Do you think s/he might try to kill you?
Yes
ZINo
NA
"Yes" to at least 4 questions 6-18, Activate or notify Victim Services
6. Does s/he have a gun?
Yes
No
NA
7. Does s/he have easy access to a gun?
Yes
ZNo
NA
8. Has s/he ever tried to strangle you?
Yes
No
NA
9. Is s/he violently or constantly jealous of you?
Yes
No
NA
10. Does s/he control most of your daily activities?
Yes
No
NA
11. Has s/he ever forced you to have sex when you did not wish to do so?
Yes
No
NA
12. Have you ever left her/him or separated after living together?
Yes
(No
NA
13. Is s/he unemployed?
Yes
No
NA
14. Has s/he ever tried to kill herself/himself?
Yes
ZNo
NA
15. Do you have a child that does not belong to the Suspect?
Yes
No
NA
16. Does s/he follow you?
Yes
No
NA
17. Does s/he spy on you?
Yes
No
NA
18. Does s/he leave threatening messages?
Yes
No
NA
Describe the threat(s) and/or message(s) left
An Officer may request Victim Services(by phone or on-scene) as a result of Victim's response to the question below or
whenever an officer feels it would be beneficial.
19. Is there anything else that worries you about your safety?
Yes
No
NA
If yes, explain
.
Victim Services responded due to High lethality determined by questions above
Officer concerns for victim
. Victim Services did not respond due to Officer's decision Victim's request Victim Services'
current call load
. Victim provided with Domestic Violence Information Pamphlet Yes
No
Case
Number
DYes
No
TO COMPLETE AVS, GO TO PAGE 4.
3
For AP4803
Printed On Aug-23-2016 (Tue.)
Page 13 of 23
POLICE
AUSTIN POLICE DEPARTMENT
GO# 2015-2721930
CLEARED BY ARREST
GENERAL OFFENSE HARDCOPY
(IBRS)
AUSTIN
(0900-1 ASSAULT W/INJURY-FAM/DATE VIOL)
VICTIM STATEMENT / DECLARACION DE LA VICTIMA
TO BE FILLED OUT BY VICTIM
I
can read, write and understand the English Language. This statement is true and correct to the best of my knowledge. I make this statement
freely and voluntarily. Should | provide false information on this form, I understand that could be prosecuted for the crime of "False Report to
a
Police Officer" under section 37.08 of the Texas Penal Code. Signature
Campon
Date 9/29/15
Puedo leer, escribir y entender el idioma español. Esta declaración es verdadera y correcta en cuanto a lo que yo sepa. Hago esta declaración
libre y voluntariamente. Si he dado información falsa en este formulario, entiendo que puedo ser enjuiciadola por el crimen de "Declaración Falsa
dada a un oficial de Policía" bajo la sección 37.08 del Código Penal del Estado de Texas.
Firma
Fecha
Where are you right now? 11305 Friendship Dr Where did assault occur? 11305 Friendship
Dónde encuentra usted en este
se momento? Christian Clark
¿Dónde ocurrió el asalto?
Who assaulted you? (name/relationship)
Quién asito? (nombre/parentesco)
What led up to the assault?
I dont know
Qué occrrió antes del asalto para que el as alto ocurriera?
How did Suspect assault you? (ex. hit w/ fist to head)
Hit to the neckarea
2 Cómo le asaltó el/la sospechoso/a a usted (por ejemplo, le pegó con el puño en la cabeza)
What injuries do you have as a result of the assault? Bruse on the rock
i Qué lesiones tiene como resultado del asalto?
. How did you get each injury?
when he hit me on the neck
i Cómo obtuvo cada herida?
. Did you feel physical pain either at the time of the assault or after?
Burning
& Sintió usted dolor durante el asalto o después?
. Was there damage to property (walls, phones, furniture, etc.)?
NO
¿Hubo daños a la propiedad (en las paredes, teléfonos, muebles, o en otros lugares)?
. Other Information
Otra información
Print Name - Nombre impreso Esony Davis
Signature am
Date 9/29/15 Time 11 : 00 am/pm
Fecha
Hora
:
am/pm
Su firma
# 7617 Date 9/29/15 Time II : as am(pnj
Officer Signature
#
Fecha
Hora
:
am/pm
Firma del oficial
STH/APD2013
4
For AP4803 Printed On Aug-23-2016 (Tue.)
Page 14 of 23
GO# 2015-2721930
POLICE
AUSTIN POLICE DEPARTMENT
CLEARED BY ARREST
GENERAL OFFENSE HARDCOPY
(IBRS)
AUSTIN
(0900-1 ASSAULT W/INJURY-FAM/DATE VIOL)
Follow Up Report #
1
Follow Up Report # 1
ASSIGNMENT INFORMATION
Assigned To AP6910 - ORTEGA-HART,
Rank CIVILIAN
ROXANA
Capacity VICTIM ASSISTANT
Org Unit VICTIM SERVICES (FAMILY
VIOLENCE)
Assigned On SEP-30-2015 (WED.) 0932
By AP4288 - TOMANETZ, JEANNIE
Report Due On OCT-30-2015 (FRI.)
SUBMISSION INFORMATION
Submitted On OCT-01-2015 (THU.) 1321
Approved On OCT-19-2015 (MON.)
By AP1561 - LUJAN, LUPITA
FOLLOW UP CONCLUSION
Follow Up YES
Concluded
For AP4803
Printed On Aug-23-2016 (Tue.)
Page 15 of 23
GO# 2015-2721930
POLICE
AUSTIN POLICE DEPARTMENT
CLEARED BY ARREST
GENERAL OFFENSE HARDCOPY
(IBRS)
AUSTIN
(0900-1 ASSAULT W/INJURY-FAM/DATE VIOL)
Follow Up Report #
1
Related Text Page(s)
Narrative Text # 1
Document VICTIM SERVICES
Author AP6910 - ORTEGA-HART, ROXANA
Subject CONTACT
Related Date/Time OCT-01-2015 (THU.) 1306
On this date I contacted Ebony Davis at her listed number. I explained my role and limits of confidentiality.
Davis states that yesterday she was contacted and asked if she wanted an EPO. She state that at the time she
was overwhelmed and said no but now wishes she had said yes. I provided information on 2 year protective
orders. I also provided information on her rights, the criminal justice process, and resources.
I safety planned with her and provided much supportive counseling. She stated that this was the first time he
had been physically violent with her but has been verbally and emotionally abusive during their relationship.
She states that she will dissolve the relationship because she can not trust that he will not assault her again.
I
validated and normalized her feels. We discussed dynamics of DV and normal reactions by victims. I
advised that I would mail a follow up letter with more information on DV and a CVC application. I remain
available to assist.
NOI
For AP4803
Printed On Aug-23-2016 (Tue.)
Page 16 of 23
GO# 2015-2721930
POLICE
AUSTIN POLICE DEPARTMENT
CLEARED BY ARREST
GENERAL OFFENSE HARDCOPY
(IBRS)
AUSTIN
(0900-1 ASSAULT W/INJURY-FAM/DATE VIOL)
Follow Up Report # 2
Follow Up Report # 2
ASSIGNMENT INFORMATION
Assigned To AP2736 - BENNINGFIELD,
Rank DETECTIVE
CHRISTOPHR ALLEN
Capacity LEAD INVESTIGATOR
Org Unit DOMESTIC VIOLENCE VIOL
CRIMES
Assigned On SEP-30-2015 (WED.) 1105
By AP3757 - GROSS, JEFFREY R
Report Due On OCT-30-2015 (FRI.)
SUBMISSION INFORMATION
Submitted On OCT-01-2015 (THU.) 1027
Checked By AP1737 - DELOSSANTOS, ERIC
TOBIAS
Approved On NOV-12-2015 (THU.)
By AP1737 - DELOSSANTOS, ERIC
TOBIAS
FOLLOW UP CONCLUSION
Follow Up YES
Concluded
For AP4803
Printed On Aug-23-2016 (Tue.)
Page 17 of 23
GO# 2015-2721930
POLICE
AUSTIN POLICE DEPARTMENT
CLEARED BY ARREST
GENERAL OFFENSE HARDCOPY
(IBRS)
AUSTIN
(0900-1 ASSAULT W/INJURY-FAM/DATE VIOL)
Follow Up Report #
2
Related Text Page(s)
Narrative Text # 1
Document INVESTIGATOR'S REPORT
Author AP2736 - BENNINGFIELD, CHRISTOPHR ALLEN
Related Date/Time OCT-01-2015 (THU.) 1026
**10/01/15
This arrest case was assigned for electronic prosecution packet preparation. The following will be
accomplished when available:
Retention code changed
DMAV coded
Wav file requested
AVS
DCS checked for photos
Case cleared by arrest.
For AP4803
Printed On Aug-23-2016 (Tue.)
Page 18 of 23
GO# 2015-2721930
POLICE
AUSTIN POLICE DEPARTMENT
CLEARED BY ARREST
GENERAL OFFENSE HARDCOPY
(IBRS)
AUSTIN
(0900-1 ASSAULT W/INJURY-FAM/DATE VIOL)
Clearance Information
Agency AUSTIN POLICE DEPARTMENT (AP)
Cleared Status CLEARED BY ARREST - NOT APPLICABLE
Cleared On OCT-01-2015 (THU.)
Cleared By Officer 1 AP2736 - BENNINGFIELD, CHRISTOPHR ALLEN
Org Unit FAMVI - DOMESTIC VIOLENCE VIOL CRIMES
Complainant/Victim NO
Notified
For AP4803
Printed On Aug-23-2016 (Tue.)
Page 19 of 23
POLICE
AUSTIN POLICE DEPARTMENT
GO# 2015-2721930
CLEARED BY ARREST
GENERAL OFFENSE HARDCOPY
(IBRS)
AUSTIN
(0900-1 ASSAULT W/INJURY-FAM/DATE VIOL)
Related Arrest Report AB# 2015-37586
Arrestee CLARK, CHRISTIAN ANDRE
Date Of Birth
Related CD# 604103
Arrest Information
Status OTHER
Type Of Arrest ON VIEW ARREST (LOCAL ARREST NO WARRANT)
Arrest Date SEP-29-2015 (TUE.) 2235
Rush File Required NO
Booked Into Cell NO
Arrest Agency AUSTIN POLICE DEPARTMENT
Arresting Officer(s) AP7804 - JOHNSON, STEPHEN
Summary Of Facts ARRESTED
ARREST LOCATION
Address 11305 FRIENDSHIP DR
Municipality AUSTIN
County TRAVIS COUNTY
District ED Zone 1 Grid 224
SODA Zone NO
Drug Free Zone NO
ADDITIONAL ARREST INFORMATION
Case Screened NO
Notify Victim On NO
Release
Juvenile NO
Armed With NONE
Diversion NO
Recommended
Interpreter Needed NO
Rights Given NO
Mental Exam NO
Required
Statement Taken NO
Fingerprinted YES
Photo Taken YES
CD Updated YES
Family Notified NO
Lawyer Called NO
Meal Given NO
Coffee Given NO
Detained NO
For AP4803
Printed On Aug-23-2016 (Tue.)
Page 20 of 23
POLICE
AUSTIN POLICE DEPARTMENT
GO# 2015-2721930
CLEARED BY ARREST
GENERAL OFFENSE HARDCOPY
(IBRS)
AUSTIN
(0900-1 ASSAULT W/INJURY-FAM/DATE VIOL)
RELATED WARRANTS
Warrant Number C1CR16500571
On APR-15-2016 (FRI.)
Reason For Warrant ASSLTW/INJ-FVW/EPO-200 YD
SAO, NO CONTACT, GPS IN JAIL
W/CURFEW
For AP4803
Printed On Aug-23-2016 (Tue.)
Page 21 of 23
GO# 2015-2721930
POLICE
AUSTIN POLICE DEPARTMENT
CLEARED BY ARREST
GENERAL OFFENSE HARDCOPY
(IBRS)
AUSTIN
(0900-1 ASSAULT W/INJURY-FAM/DATE VIOL)
Related Attachment - AUDIO RECORDING
Description 911
Reference Number
The attached file cannot be included in this hardcopy.
For AP4803
Printed On Aug-23-2016 (Tue.)
Page 22 of 23
GO# 2015-2721930
POLICE
AUSTIN POLICE DEPARTMENT
CLEARED BY ARREST
GENERAL OFFENSE HARDCOPY
(IBRS)
AUSTIN
(0900-1 ASSAULT W/INJURY-FAM/DATE VIOL)
END OF HARDCOPY
For AP4803
Printed On Aug-23-2016 (Tue.)
Page 23 of 23
STATE OF TEXAS
§
Travis COUNTY
§
BUSINESS RECORDS AFFIDAVIT
BEFORE ME, the undersigned authority, Angie Jones
personally
appeared, who being by me duly sworn, deposed as follows:
My name is Angie Jones
.
I am over the age of 18 years, of sound
mind, capable of making this affidavit, and personally acquainted with the facts herein stated,
which are true:
I am the custodian of records, employee or owner
of
Austin Police Department and I am familiar with the manner in which its records are
created and maintained by virtue of my duties and responsibilities. Attached hereto are 25
pages of records from Austin Police Department , which
were kept in the course
of regular business activity. The attached records are the orginal or exact duplicates of the
originial records.
It is the regular course of business of Austin Police Department to make
the records and to make this type of record at or near the time of each act, event, condition,
opinion, or diagnosis set forth in the records. Further, it was the regular practice of
Austin Police Department to make the records and regular practice for this type of record
to be made by, or made from information transmitted by persons with knowledge of the matters
set forth in them.
Affiant # 4803
SWORN TO AND SUBSCRIBED before me on the 27th day of October 2016
pusiness
BRENDON FOX HANLY
Notary Public, State of Texas
Comm. Expires 01-08-2020
Notary Public THE for
Notary ID 130489522
State of Texas
My commission expires: 01.08.2020
COPY
Filed in The District Court
of Travis County, Texas
AUG 30 2017 NNR
CAUSE NO: D-1-GN-16-002854
At
3:34p M.
Velva L. Price, District Clerk
CHRISTIAN-ANDRE CLARK,
§
IN THE DISTRICT COURT
Plaintiff,
V.
§
TRAVIS COUNTY, TEXAS
§
STEVEN JOHNSON, MATTHEW
§
MURPHY ET AL.,
Defendants.
§
201st JUDICIAL DISTRICT
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS STEVEN
JOHNSON'S AND MATTHEW MURPHY'S FIRST AMENDED MOTION TO DISMISS
FOR LACK OF JURISDICTION
On July 21, 2017 the Court considered the Defendants Steven Johnson and Matthew
Murphy's First Amended Motion to Dismiss for Lack of Jurisdiction (hereinafter the "Motion") in
the above-referenced cause. After considering the pleadings, the applicable law, the previous
orders on file, the arguments of counsel and Plaintiff, and the evidence on file, the Court is of the
opinion that the Motion should be granted in part and denied in part, as follows:
The Court GRANTS Defendants' Motion as to Plaintiff's constitutional tort claims,
because the Court does not have jurisdiction as to the constitutional torts alleged.
The Court DENIES Defendants' Motion as to Defendants' official immunity claims,
because these arguments should be addressed in a Motion for Summary Judgment.
THEREFORE, the Court hereby ORDERS Plaintiff's constitutional tort claims dismissed
WITH PREJUDICE, and denies all further relief WITHOUT PREJUDICE.
SIGNED this 30 day of August , ,2017.
Gisile D Jnown
PRESIDING JUDGE
Clark, Christian-Andre v. Steven Johnson, et al.
Order Granting in Part and Denying in Part
Page 1 of 2
APPROVED AS TO FORM:
Bual WC
BRANDON W. CARR
Assistant City Attorney
State Bar No. 24074004
Brandon.Carr@austintexas.gov
City of Austin - Law Department
P.O. Box 1546
Austin, Texas 78767-1546
Telephone: (512) 974-2181
Facsimile: (512) 974-1311
ATTORNEY FOR CITY DEFENDANTS
Christian-Andre Clark
7007 Greenock Street
Austin, Texas 78749
Christianclark31@gmail.com
PRO SE
[Intentionally left blank.]
Clark, Christian-Andre V. Steven Johnson, et al.
Order Granting in Part and Denying in Part
Page 2 of 2
OF
Velva L. Price
SCHOOL
TRAVE
District Clerk, Travis County
Travis County Courthouse Complex
P.O. Box 679003
Austin, Texas 78767
STATE
TEXA
OF
DATE: January 14, 2019
ANDREW MICHAEL WILLIAMS
P.O. BOX 1748
AUSTIN, TX 78767-1748
ORDER GRANTING CPO SR. JESSE IBARRA'S MOTZON TO DISMISS FOR
LACK OF JURISDICTI ON
D-1-GN-16-0028 4
CHRISTIAN-ANDRE CLARK
VS.
STEVEN JOHNSON; MATHEW MURPHY; MILE DENT; PHIL CAMPBELL; DIMPLE
MALHOTRA; JESSE IBARRA; KIMBERI EGGE; THE STATE OF TEXAS; TRAVIS
COUNTY; AUSTIN E AS; AUSTIN POLICE
You are hereby notified the the above order has been signed and
entered JANUARY 9, 2019 in the 201ST JUDICIAL DISTRICT COURT of
Travis County Texas in th above numbered and entitled cause.
Velva L. Price,
Trave
District Clerk
L60-00005213°
D-1-GN-16-002854
BH