                                       IN THE
                               TENTH COURT OF APPEALS

                                        No. 10-09-00291-CV

BERNICE M. DEROUEN,
                                                                                   Appellant
    v.

THE FALLS COUNTY SHERIFF DEPARTMENT,
AND RICKY SCAMAN, DEPUTY SHERIFF, IN
HIS INDIVIDUAL AND OFFICIAL CAPACITIES,
                                                                                   Appellees



                                 From the 82nd District Court
                                     Falls County, Texas
                                    Trial Court No. 36,364


                                MEMORANDUM OPINION


         Bernice M. DeRouen sued the Falls County Sheriff’s Department and Deputy

Sheriff Ricky Scaman, in his individual and official capacities, under 42 U.S.C. § 1983,

for false imprisonment, and for negligence, alleging injuries caused when she was

handcuffed, arrested, and transported to jail. The County filed a plea to the jurisdiction

and a no-evidence motion for summary judgment, which the trial court granted.1


1
         The trial court also granted Scaman’s motion to dismiss filed in his individual capacity.
DeRouen challenged this ruling. We reversed in part, holding that the trial court

possessed subject matter jurisdiction over DeRouen’s claim for negligent use of tangible

personal property, i.e., handcuffs. See DeRouen v. Falls County Sheriff's Dep’t, No. 10-07-

00258-CV, 2008 Tex. App. LEXIS 5479, at *6-8, 10 (Tex. App.—Waco July 23, 2008, no

pet.) (mem. op.). On remand, DeRouen filed a first amended petition. The County filed

a traditional and no-evidence motion for summary judgment challenging DeRouen’s

negligence claim, which the trial court granted. DeRouen challenges the trial court’s

ruling on the County’s motion.

                TRADITIONAL MOTION FOR SUMMARY JUDGMENT

       We review a trial court’s traditional summary judgment de novo. Provident Life

& Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). In reviewing a summary

judgment, we must consider whether reasonable and fair-minded jurors could differ in

their conclusions in light of all of the evidence presented. See Goodyear Tire & Rubber Co.

v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007) (per curiam) (citing Wal-Mart Stores, Inc. v.

Spates, 186 S.W.3d 566, 568 (Tex. 2006) (per curiam); City of Keller v. Wilson, 168 S.W.3d

802, 822-24 (Tex. 2005)). We must consider all the evidence in the light most favorable

to the nonmovant, indulging every reasonable inference in favor of the nonmovant and

resolving any doubts against the motion. See Goodyear Tire, 236 S.W.3d at 756 (citing

Sudan v. Sudan, 199 S.W.3d 291, 292 (Tex. 2006) (per curiam); Spates, 186 S.W.3d at 568).

       In its traditional motion, the County argued that DeRouen’s negligence claim

arises out of an intentional tort and is barred by the Tort Claims Act.




DeRouen v. Falls County Sheriff Dep’t                                                Page 2
       In her amended petition, DeRouen alleges that she was handcuffed in a

“negligent manner” and suffered injury to her “neck, arms, and hands as a result of the

negligent condition use [sic], misuse of tangible property.” In her deposition, DeRouen

testified that the handcuffs “must have been too tight.” She testified that officers acted

maliciously, intended to harm her, and “wanted to teach me a lesson.” She testified that

the handcuffs were negligently applied because she “ended up being hurt.”

       The Tort Claims Act bars claims “arising out of assault, battery, false

imprisonment, or any other intentional tort…” TEX. CIV. PRAC. & REM. CODE ANN. §

101.057(2) (Vernon 2005); see also State Dep’t of Pub. Safety v. Petta, 44 S.W.3d 575, 580

(Tex. 2001). “If a plaintiff pleads facts which amount to an intentional tort, no matter if

the claim is framed as negligence, the claim generally is for an intentional tort and is

barred by the TTCA.” City of Waco v. Williams, 209 S.W.3d 216, 222 (Tex. App.—Waco

2006, pet. denied) (quoting Harris County v. Cabazos, 177 S.W.3d 105, 111 (Tex. App.—

Houston [1st Dist.] 2005, no pet.)). “A plaintiff cannot circumvent the intentional tort

exception by couching his claims in terms of negligence.” Id.

       DeRouen alleges no facts to support her claim that officers negligently applied

the handcuffs. Based on her deposition testimony, the specific conduct of which she

complains, i.e., applying the handcuffs too tight with intent to hurt or teach her a lesson,

is intentional. See Petta, 44 S.W.3d at 580; see also Williams, 209 S.W.3d at 223; Cameron

County v. Ortega, 291 S.W.3d 495, 499 (Tex. App.—Corpus Christi 2009, no pet.); City of

Garland v. Rivera, 146 S.W.3d 334, 338 (Tex. App.—Dallas 2004, no pet.); City of Laredo v.

Nuno, 94 S.W.3d 786, 789 (Tex. App.—San Antonio 2002, no pet.); San Antonio v. Dunn,


DeRouen v. Falls County Sheriff Dep’t                                                 Page 3
796 S.W.2d 258, 261 (Tex. App.—San Antonio 1990, writ denied). We conclude that

DeRouen is attempting to circumvent the intentional tort exception by merely alleging

negligence.     The trial court properly granted the County’s traditional motion for

summary judgment.

       Given our disposition regarding the County’s traditional motion for summary

judgment, we need not address the trial court’s granting of the County’s no-evidence

motion. See TEX. R. APP. P. 47.1. We affirm the trial court’s judgment.



                                                       FELIPE REYNA
                                                       Justice
Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
Affirmed
Opinion delivered and filed September 1, 2010
[CV06]




DeRouen v. Falls County Sheriff Dep’t                                          Page 4
