Porretto v. The City of Galveston Park Board of TrusteesPark et al

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In the United States District Court
for the Southern District of Texas
GALVESTON D IVISION
═══════════
No. 3:21-cv-359
═══════════
SONYA PORRETTO, PLAINTIFF,
v.
THE CITY OF G ALVESTON PARK B OARD OF TRUSTEES, ET AL., D EFENDANTS.
══════════════════════════════════════════
MEMORANDUM OPINION AND ORDER
══════════════════════════════════════════
J EFFREY VINCENT BROWN , UNITED S TATES D ISTRICT JUDGE:
In three separate motions, the defendants have moved to dismiss
Porretto’s fourth amended complaint. Dkts. 130, 131, 133. The court will
grant one motion in its entirety, Dkt. 133, and grant in part and deny in part
the other two. Dkts. 130, 131.
Background1
Porretto has sued the City of Galveston, the City of Galveston Park
Board of Trustees (“Park Board”), the Texas General Land Office (“the
1 The parties are familiar with the facts of the case and with its journey
through the courts; therefore, the court recounts only the facts and procedural
history necessary to resolve the pending motions to dismiss. For a complete factual
recount, see Dkts. 84 and 128.
United States District Court
Southern District of Texas
ENTERED
June 05, 2026
Nathan Ochsner, Clerk
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GLO”), 	and 	GLO 	Commissioner 	Dawn 	Buckingham 	(“Commissioner
Buckingham”). Dkt. 129 ¶¶ 25–28. In the fourth amended complaint (“the
complaint”), Porretto sues:
a. the City and the Park Board for physical and regulatory takings under
42 U.S.C. § 1983 and the U.S. Constitution, Monell liability under
§ 1983, inverse condemnation under the Texas Constitution, and—
under 	state 	tort 	law—for 	trespass, 	private 	nuisance, 	tortious
interference with prospective business relations, tortious interference
with contract, and punitive damages;
b. the GLO for takings under the Texas Private Real Property Rights
Preservation Act (“PRA”), inverse condemnation under the Texas
Constitution, and physical and regulatory takings under the U.S.
Constitution; and
c. 	Commissioner Buckingham under Ex Parte Young.
Dkt. 129 ¶¶ 174–501.
The City and the GLO have moved to dismiss Porretto’s complaint under
Rules 12(b)(1) and 12(b)(6), and the Park Board has moved to dismiss it only
under Rule 12(b)(6). Dkts. 130, 131, 133.2 For the reasons below, the court
(1) denies the City’s Rule 12(b)(1) motion as to Porretto’s regulatory-takings
2 Porretto notes that Fed. R. Civ. P. 15(a)(3) provided the GLO 14 days to
respond to the amended complaint, making the GLO’s motion to dismiss untimely.
Dkt. 137 at 5–6. But this untimeliness was the result of an error by the court, which
miscalculated the GLO’s response deadline. The GLO should not be penalized for
following 	the 	court’s 	error. 	Moreover, 	Porretto 	does 	not 	cite 	any 	potential
prejudice arising from the GLO’s late-filed response. Accordingly, the court
declines to deny the GLO’s motion on untimeliness grounds. Fed. R. Civ. P.
15(a)(3).
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claim under § 1983 and the U.S. Constitution, Dkt. 131; (2) grants the GLO’s Rule
12(b)(1) motion as to Porretto’s claims under the PRA, Texas Constitution, U.S.
Constitution, and Ex Parte Young, Dkt. 133; (3) denies the City’s and Park
Board’s Rule 12(b)(6) motions to dismiss Porretto’s federal takings claims under
§ 1983 and the U.S. Constitution, and inverse-condemnation claim under the
Texas Constitution, Dkts. 130, 131; (4) denies the Park Board’s Rule 12(b)(6)
motion to dismiss Porretto’s Monell liability claim, Dkt. 130; and (5) grants the
City’s and the Park Board’s Rule 12(b)(6) motions to dismiss Porretto’s state-law
tort claims and request for punitive damages, Dkts. 130, 131.
Legal Standards
A. Rule 12(b)(1)
A court should grant a motion to dismiss for lack of subject-matter
jurisdiction if the court “lacks the statutory or constitutional power to
adjudicate the case.” Home Builders Ass’n of Miss., Inc. v. City of Madison,
143 F.3d 1006, 1010 (5th Cir. 1998). “[T]he burden of establishing federal
jurisdiction rests on the party seeking the federal forum.” Howery v. Allstate
Ins. Co., 243 F.3d 912, 916 (5th Cir. 2001). Federal courts have jurisdiction
over a claim between parties only if the plaintiff presents an actual case or
controversy. U.S. CONST. art. III, § 2, cl. 1; Okpalobi v. Foster, 244 F.3d 405,
425 (5th Cir. 2001) (en banc). “The many doctrines that have fleshed out that
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‘actual controversy’ requirement—standing, mootness, ripeness, political
question, and the like—are ‘founded in concern about the proper—and
properly limited—role of the courts in a democratic society.’” Roark &
Hardee LP v. City of Austin, 522 F.3d 533, 541–42 (5th Cir. 2008) (quoting
Allen v. Wright, 468 U.S. 737, 750 (1984)).
To test whether the party asserting jurisdiction has met its burden, a
court may rely upon: “(1) the complaint alone; (2) the complaint supplemented
by undisputed facts evidenced in the record; or (3) the complaint supplemented
by undisputed facts plus the court’s resolution of disputed facts.” Barrera-
Montenegro v. United States, 74 F.3d 657, 659 (5th Cir. 1996). “When standing
is challenged on the basis of the pleadings, [a court] must accept as true all
material allegations of the complaint and construe the complaint in favor of the
complaining party.” Ass’n of Am. Physicians & Surgeons, Inc. v. Texas Med.
Bd., 627 F.3d 547, 550 (5th Cir. 2010).
B. Rule 12(b)(6)
To survive a motion to dismiss for failure to state a claim, a plaintiff must
plead facts sufficient to “state a claim to relief that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible when the
pleaded facts allow the court to reasonably infer that the defendant is liable for
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the alleged conduct. Id. In reviewing the pleadings, a court accepts all well-
pleaded facts as true, “construing all reasonable inferences in the complaint in
the light most favorable to the plaintiff.” White v. U.S. Corr., L.L.C., 996 F.3d
302, 306–07 (5th Cir. 2021). But the court does not accept “[c]onclusory
allegations, unwarranted factual inferences, or legal conclusions” as true.
Plotkin v. IP Axess Inc., 407 F.3d 690, 696 (5th Cir. 2005).
C. Section 1983
“To state a claim under [42 U.S.C.] § 1983, a plaintiff must (1) allege a
violation of rights secured by the Constitution or laws of the United States and
(2) demonstrate that the alleged deprivation was committed by a person acting
under color of state law.” Piotrowski v. City of Houston, 51 F.3d 512, 515 (5th Cir.
1995) (citation omitted). A plaintiff bringing a § 1983 claim must also allege that
the constitutional or statutory deprivation was intentional or due to deliberate
indifference and not the result of mere negligence. Farmer v. Brennan, 511 U.S.
825, 826 (1994). A claim under § 1983 may be brought against government
employees in their individual or official capacities or against a governmental
entity. Goodman v. Harris Cnty., 571 F.3d 388, 395 (5th Cir. 2009).
A plaintiff may sue a municipality under § 1983—commonly called a
Monell claim. Edwards v. City of Balch Springs, 70 F.4th 302, 307 (5th Cir.
2023). To state a Monell claim, a plaintiff must plead facts that plausibly
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establish 	“(1) an 	official 	policy 	(2) promulgated 	by 	the 	municipal
policymaker (3) [that] was the moving force behind the violation of a
constitutional right.” Id. (citation omitted). “[T]he unconstitutional conduct
must be directly attributable to the municipality through some sort of official
action” or ratification. Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th
Cir. 2001) (emphasis added). Municipalities “cannot be found liable on a
theory of vicarious liability or respondeat superior.” St. Maron Props., L.L.C.
v. City of Houston, 78 F.4th 754, 759–60 (5th Cir. 2023).
“To get past the pleading stage, a [Monell] complaint’s description of a
policy or custom and its relationship to the underlying constitutional violation
cannot be conclusory; it must contain specific facts.” Henderson v. Harris
Cnty., 51 F.4th 125, 130 (5th Cir. 2022) (quotations and citation omitted).
Analysis
A. Jurisdiction
As a threshold matter, both the City and the GLO move to dismiss
Porretto’s complaint, or portions thereof, under Rule 12(b)(1). Dkts. 131, 133.
The City challenges whether Porretto has standing to bring her regulatory-
takings claim under § 1983 and the U.S. Constitution and whether the claim
is ripe. Dkts. 131 ¶¶ 23–32; 139 ¶¶ 3–5. The GLO argues that all of Porretto’s
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claims against it are “barred in this federal forum.” Dkt. 133 at 6 (emphasis
omitted). The court will take each in turn.
The City
To show standing requires alleging “injury in fact, causation, and
redressability.” Stringer v. Whitley, 942 F.3d 715, 720 (5th Cir. 2019). The City
attempts to undermine the first two elements by misconstruing Porretto’s
claim. First, the City seeks to reframe Porretto’s regulatory-takings claim as one
seeking to vindicate injuries sustained by third parties—not Porretto. Dkt. 131
¶ 27. But that is not the case. Porretto’s injury in fact must be “an invasion of a
legally protected interest which is (a) concrete and particularized and (b) actual
or imminent, not conjectural or hypothetical.” Lujan v. Defs. of Wildlife, 504
U.S. 555, 560 (1992) (citation modified). Porretto alleges that by arbitrarily
denying third-party vendors the ability to operate on her property, the City—
through the Park Board—has deprived her of income and value generated
through the presence of those vendors. Dkt. 129 ¶¶ 145–57. That allegation
sufficiently pleads the requisite injury to Porretto.
Second, the City seeks to undermine the causation element by ignoring
the City’s role in enacting the alleged offending ordinances and by shifting
focus entirely to the Park Board. Dkt. 131 ¶ 25. Causation requires that “the
injury has to be fairly traceable to the challenged action of the defendant and
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not the result of the independent action of some third party.” Lujan, 504 U.S.
at 560 (quotation omitted). Porretto asserts the City enacted the ordinances
that Porretto alleges have infringed on her rights. Dkt. 129 ¶¶ 141–44.
Contrary to the City’s arguments, Porretto’s allegations involve more than
the Park Board’s denial of one vendor’s permit. Dkt. 131 ¶¶ 25–26. Viewing
Porretto’s allegations in the light most favorable to her, the court finds
Porretto has sufficiently pleaded a cognizable injury fairly traceable to the
City. Accordingly, Porretto has standing to pursue her regulatory-takings
claim against the City.
The City’s ripeness arguments also fail. Ripeness is a prerequisite to
subject-matter jurisdiction meant to ensure that “the harm asserted has
matured sufficiently to warrant judicial intervention.” Contender Farms, L.L.P.
v. U.S. Dep’t of Agric., 779 F.3d 258, 267 (5th Cir. 2015). Generally, a case is
ripe if the “remaining questions are purely legal ones” and unripe if “further
factual development is required.” New Orleans Pub. Serv., Inc. v. Council of
New Orleans, 833 F.2d 583, 587 (5th Cir. 1987). For a regulatory-takings claim,
the government must have reached a final decision, meaning there must be no
question about how the regulations apply to the property in question. Pakdel v.
City of San Francisco, 594 U.S. 474, 475 (2021).
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Porretto’s regulatory-takings claim against the City is ripe. First, the City
incorrectly argues that Porretto has not exhausted administrative remedies
regarding the single alleged denied permit. Dkt. 131 ¶¶ 29–32. Porretto does
not allege injury arising from any individual permit’s denial. Rather, she alleges
injury arising from the City’s ordinances themselves and how the City and the
Park Board have implemented them. Dkt. 129 ¶¶ 141–57. Second, the City fails
to identify any procedure Porretto must exhaust or decision the City must
finalize regarding the ordinances at issue. Dkt. 131 ¶¶ 29–32.
Accordingly, the court has jurisdiction over the regulatory-takings
claim as to the City. The court denies the City’s Rule 12(b)(1) motion to
dismiss as to Porretto’s regulatory-takings claim.
The GLO
The GLO makes several arguments that the court lacks jurisdiction over
Porretto’s 	claims: 	(1) Porretto 	cannot 	establish 	standing; 	(2) sovereign
immunity bars federal jurisdiction over Porretto’s claims under the PRA, Texas
Constitution, and U.S. Constitution; and (3) no ongoing violation exists that
would strip immunity from Commissioner Buckingham via the Ex Parte
Young exception. Dkt. 133. The court will address each in turn.
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Standing
The GLO argues that Porretto cannot establish standing because her
allegations indicate that the alleged injury resulted from a third party, as
opposed to the GLO. Id. at 22. This argument fails.
Porretto alleges there is a connection between the GLO’s compliance
requirements in the grant agreement—which the parties executed before the
preliminary work at Stewart Beach began—and the preliminary work itself.
Dkt. 129 ¶¶ 50–64, 71, 79–80, 442–47. Nowhere does Porretto allege that
only the preliminary work caused the injury. In fact, she alleges the opposite:
“[W]ork continues, is contingent upon the GLO funding and oversight, and
the continuation of the work and resulting improvements to Stewart Beach
will continue to effect takings of Porretto Beach Classic at minimum through
flooding and erosion.” Id. ¶ 501.
Accordingly, Porretto has standing for her takings claims against the
GLO.
Sovereign Immunity
The U.S. Constitution affords states two types of immunities. The first,
Eleventh Amendment immunity, “applies to suits between a State and a
citizen of another State.” 	See 	U.S. CONST. amend. XI. The other, state
sovereign immunity, “prohibits a broader range of suits against States.”
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McWilliams v. City of Houston, No. 21-20369, 2022 WL 17337820, at *2 (5th
Cir. Nov. 30, 2022). A state cannot be sued in federal court “unless the state
consents to suit or Congress has clearly and validly abrogated the state’s
sovereign immunity.” U.S. Oil Recovery Site Potentially Responsible Parties
Grp. v. R.R. Comm’n, 898 F.3d 497, 501 (5th Cir. 2018).
Further, state sovereign immunity protects not only states from suit in
federal 	court, but also “arms 	of the 	state.” 	Id. 	The 	Fifth Circuit has
established that the GLO is an arm of the state. See id. at 502. An arm of the
state waives sovereign immunity only if it “voluntarily invokes federal court
jurisdiction, or . . . makes a clear declaration that it intends to submit itself
to federal court jurisdiction.” Meyers ex rel Benzing v. Texas, 410 F.3d 236,
241 (5th Cir. 2005) (quotations omitted). A clear declaration that an arm of
the state intends to submit itself to federal court “cannot be implied but must
be unequivocally expressed.” United States v. King, 395 U.S. 1, 4 (1969).
The GLO claims sovereign immunity from suit in federal court under
the PRA, Texas Constitution, and U.S. Constitution. Dkt. 133 at 13–18. The
court addresses each claim in turn.
PRA
The GLO argues that Porretto’s claims under the PRA are barred by
Eleventh Amendment immunity from suit in federal court. Id. at 10–11.
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Porretto responds that the Texas Legislature waived every facet of Texas’s
sovereign immunity, “without qualification,” under the PRA. Dkt. 137 at 6.
As a preliminary matter, the PRA states that “[s]overeign immunity to
suit and liability is waived and abolished to the extent of liability created by
this chapter.” Tex. Gov’t. Code § 2007.004(a). To the extent that the PRA
waives immunity from suit in state court, the court agrees.
The question here is whether the PRA waives immunity from suit in
federal court. Porretto argues that it does for two reasons. First, Porretto
avers that Eleventh Amendment immunity does not apply because the
Eleventh Amendment is limited to prohibiting citizens of “another state”
from suing a state in federal court. Dkt. 137 at 6. Because Porretto is a citizen
of Texas, the argument goes, Eleventh Amendment immunity is not triggered
by the facts of this case. Id. Second, Porretto argues that the Eleventh
Amendment “is not the source of legal authority for the doctrine that
precludes states from being sued in federal court.” Id. Given that the PRA
provides “an unqualified waiver of sovereign immunity,” Porretto argues, the
GLO’s immunity from suit in federal court is waived. Id. at 8. The court
disagrees with Porretto on both counts.
With regard to Porretto’s citizenship, her argument ignores Supreme
Court precedent. In short, Porretto’s citizenship does not nullify the GLO’s
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sovereign immunity under the Eleventh Amendment. The Supreme Court
has established that “[a]lthough the Eleventh Amendment is not literally
applicable,” when the plaintiff is a citizen of the defendant state, “it is
established that an unconsenting State is immune from suits brought in
federal courts by her own citizens as well as by citizens of another State.”
Emps. of Dep’t of Pub. Health & Welfare v. Dep’t of Pub. Health & Welfare,
411 U.S. 279, 280 (1973) (emphasis added); see also Lapides v. Bd. of
Regents, 535 U.S. 613, 616 (2002) (“The Eleventh Amendment grants a State
immunity from suit in federal court by citizens of other States, and by its own
citizens as well.” (citation omitted)). Thus, the fact that Porretto is a citizen
of Texas does not bear on the GLO’s Eleventh Amendment immunity.
Porretto’s argument that the Eleventh Amendment is not the source of
legal authority that precludes the GLO from being sued in federal court is
also wrong. “Waiver of sovereign immunity in state courts does not waive
Eleventh Amendment immunity from suit in federal court.” Canada Hockey,
L.L.C. v. Texas A&M Univ. Athletic Dep’t, No. 20-20503, 2022 WL 445172,
at *3 (5th Cir. 2022 Feb. 14, 2022) (emphasis added). Thus, even though the
PRA waives the GLO’s immunity in Texas state court, the GLO does not waive
its Eleventh Amendment immunity by consenting to suit in Texas state
courts. See Port Auth. Trans-Hudson Corp. v. Feeney, 495 U.S. 299, 305
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(1990); Guetersloh v. State of Texas, 25 F.3d 1044, 1044 (5th Cir. 1994)
(“Waiver of sovereign immunity in state courts does not waive Eleventh
Amendment immunity from suit in federal court.”).
Instead, a state must specifically “subject itself to suit in federal court.”
Port Auth. Trans-Hudson Corp, 495 U.S. at 306. A waiver may not be
implied. Rather, a state must make a “clear declaration” that it intends to
submit itself to suit in federal court. 	Coll. Sav. Bank v. Fla. Prepaid
Postsecondary Educ. Expense Bd., 527 U.S. 666, 676 (1999); Shah v. Maple
Energy Holdings, LLC, No. A:23-cv-00819, 2024 WL 5185362, at *3 (S.D.
Tex. Aug. 18, 2024) (finding that the Eleventh Amendment barred the
plaintiff’s federal and state takings claims in federal court because the PRA
offered the plaintiff’s a remedy in state court). Here, nothing in the PRA’s
language indicates a “clear declaration” that the GLO intends to submit itself
to suit in federal court. Absent a clear waiver of immunity, the GLO is
immune from suit in federal court for a PRA claim.
Accordingly, the court grants the GLO’s Rule 12(b)(1) motion to
dismiss as to Porretto’s PRA claims.
Texas Constitution
Porretto asserts an inverse-condemnation claim against the GLO
under Article 1, Section 17 of the Texas Constitution. Dkt. 129 ¶¶ 475–84. the
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GLO does not dispute that Section 17 waives sovereign immunity for takings
claims; it does, however, dispute the existence of the “clear declaration”
waiving immunity from suit in federal court. Dkt. 133 at 14–15. Porretto
appears to agree. Dkt. 137 at 15 (“Ms. Porretto has not averred, and never has
contended ‘Article I, Section 17 of the Texas Constitution waives sovereign
immunity[]’ against suit in federal court.”). Thus, the dispute turns on
Congressional abrogation.
Abrogation of state sovereign immunity requires “a clear legislative
statement.” Seminole Tribe of Florida. v. Florida, 517 U.S. 44, 55 (1996)
(citation omitted). Porretto argues that supplemental jurisdiction—28 U.S.C.
§ 1367—accomplishes the necessary abrogation. Dkt. 137 at 16–17. The GLO
disagrees. Dkt. 133 at 17. The court agrees with the GLO. The Supreme Court
has established that § 1367(a) is “a general grant of jurisdiction” that is
“insufficient to constitute a clear statement of an intent to abrogate state
sovereign immunity.” Raygor v. Regents of Univ. of Minn., 534 U.S. 533, 541
(2002). Thus, “§ 1367(a)’s grant of jurisdiction does not extend to claims
against nonconsenting state defendants.” Id. at 542. Further, the Fifth
Circuit 	in 	Bay 	Point 	Properties, 	Inc. 	v. 	Mississippi 	Transportation
Commission, held that recognition of rights under the Takings Clause does
not require “reconsideration of longstanding sovereign immunity principles
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protecting states from suit in federal court.” 937 F.3d 454, 456 (5th Cir.
2019).
Accordingly, because Texas has not waived its sovereign immunity for
suits in federal court has and Congress has not abrogated it, the court cannot
exercise jurisdiction over Porretto’s inverse-condemnation claim against the
GLO. The court dismisses this claim against the GLO for lack of jurisdiction.
U.S. Constitution
Porretto asserts federal-question jurisdiction under 28 U.S.C. § 1331
for her direct action for physical takings under the U.S. Constitution against
the GLO. Dkt. 129¶¶ 29–30, 485–90.
Even though a “federal claim appears on the face of the complaint,”
federal-question jurisdiction does not exist when there is a “frivolous or
insubstantial claim, i.e., a claim which has no plausible foundation or which
is 	clearly 	foreclosed 	by 	a 	prior 	Supreme 	Court 	decision.” 	Young 	v.
Hosemann, 598 F.3d 184, 188 (5th Cir. 2010) (quotation omitted). Instead,
federal-question 	jurisdiction 	exists 	when 	“a 	well-pleaded 	complaint
establishes either that federal law creates the cause of action or that the
plaintiff’s right to relief necessarily depends on resolution of a substantial
question of federal law.” Franchise Tax Bd. v. Constr. Laborers Vacation Tr.,
463 U.S. 1, 27–28 (1983).
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The Supreme Court in DeVillier v. Texas held that “constitutional
concerns do not arise when property owners have other ways to seek just
compensation.” 601 U.S. 285, 292 (2024). Because “Texas state law provides
a cause of action by which property owners may seek just compensation
against the State,” the Court instructed the plaintiffs in DeVillier to “pursue
their claims under the Takings Clause through the cause of action available
under Texas law.” Id. at 293. In other words, the Court found that the state
court system is capable of handling cases in which property owners, like
Porretto, advance a state cause of action to vindicate their rights under the
U.S. Constitution. The same holds true here. Porretto can vindicate her rights
under the Takings Clause through a state cause of action—like the state-law
inverse-condemnation claim or under the PRA—in state court.
Accordingly, the court dismisses this claim as to the GLO for lack of
jurisdiction.
Ex Parte Young
The GLO argues that the Ex Parte Young exception does not apply here,
leaving Commissioner Buckingham’s sovereign immunity intact and depriving
the court of jurisdiction. Dkt. 133 at 19–22. Porretto responds that Ex Parte
Young applies due to the GLO’s ongoing involvement. Dkt. 137 at 19.
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Under Ex Parte Young, a plaintiff may bring suit against an individual
state officer in her official capacity if the complaint alleges an ongoing
violation of federal law and the plaintiff seeks prospective relief. See Texas
Democratic Party v. Abbott, 961 F.3d 389, 400 (5th Cir. 2020) (quoting
Frew ex rel. Frew v. Hawkins, 540 U.S. 431, 437 (2004)). Permissible suits
under Ex Parte Young are confined to cases where the relief sought is
“declaratory or injunctive in nature and prospective in effect.” Saltz v.
Tennessee Dep’t of Emp. Sec., 976 F.2d 966, 968 (5th Cir. 1992) (emphasis
added). But the Supreme Court has “refused to extend the reasoning of
Young . . . to claims for retrospective relief.” Green v. Mansour, 474 U.S. 64,
68 (1985). In determining whether the Ex Parte Young exception applies to
a lawsuit, “a court need only conduct a straightforward inquiry into whether
the complaint alleges an ongoing violation of federal law and seeks relief
properly characterized as prospective.” Verizon Md., Inc. v. Pub. Serv.
Comm’n of Md., 535 U.S. 635, 645 (2002).
The GLO argues that Ex Parte Young does not apply because there is no
ongoing GLO act to be enjoined. Dkt. 133 at 19. In support, the GLO refers to
the GOMESA grant agreement attached as Exhibit A to the GLO’s motion. Id.
at 20. Porretto, in turn, argues that fact disputes are not appropriate at this
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stage. Dkt. 137 at 19. The court need not resolve this dispute because the court
can make its jurisdictional determination on the face of Porretto’s complaint.
As previously established, Porretto cannot maintain her claims against
the GLO in federal court absent the state’s consent. Tindal v. Wesley, 167 U.S.
204, 223 (1897). In addition, the injunctive relief that Porretto seeks is
equivalent to just compensation. Porretto alleges that “in the event the GLO
declines to rescind the GOMESA Grant Agreement, [she] alternatively seeks
to recover just compensation for the flooding, erosion, and sand excavation at
Porretto Beach Classic . . . as well as out[-]of[-]pocket expenses . . . that derive
from the damage to Porretto Beach Classic and Porretto Beach generally.” Dkt.
129 ¶ 453; see also id. ¶¶ 483–84, 493–94. Ex Parte Young does not apply in
this situation. See Papasan v. Allain, 478 U.S. 265, 277–78 (1986) (finding
that Ex Parte Young does not apply to “cases in which [the] relief is intended
indirectly to encourage compliance with federal law through deterrence or
directly to meet third-party interests such as compensation”).
Further, the Supreme Court has established that, in determining whether
Ex Parte Young applies, “a careful balancing and accommodation of state
interests” is required. Idaho v. Coeur d’Arlene Tribe of Idaho, 521 U.S. 261, 278
(1997). In Coeur d’Arlene, a case that involved a land dispute between Idaho
and an Indian tribe, the Court held that “there [was] neither warrant nor
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necessity to adopt the Young device to provide an adequate judicial forum for
resolving the dispute. . . . [Because] Idaho’s courts are open to hear the case.”
Id. at 274. The same holds true here.
Accordingly, the GLO’s motion to dismiss this claim under Rule
12(b)(1) is granted.
B. Federal Takings Claims
Because the City and the Park Board do not differentiate between their
arguments challenging Porretto’s takings claims under § 1983 and the U.S.
Constitution, the court does not differentiate its analysis either. Accordingly,
the court’s federal-takings analysis applies to Porretto’s claims brought
under both § 1983 and the Fifth Amendment.
Physical Takings
“The Fifth Amendment’s guarantee that private property shall not be
taken for a public use without just compensation was designed to bar
Government from forcing some people alone to bear public burdens which,
in all fairness and justice, should be borne by the public as a whole.”
Armstrong v. United States, 364 U.S. 40, 49 (1960). “When the government
physically takes possession of an interest in property for some public
purpose, it has a categorical duty to compensate the former owner.” Tahoe-
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Sierra Pres. Council, Inc. v. Tahoe Reg’l Plan. Agency, 535 U.S. 302, 322
(2002) (citation omitted).
Porretto has premised her physical-takings claims on flooding, erosion
caused by the flooding, and sand excavation. Dkt. 129 ¶¶ 14–18. Because
Porretto’s physical-takings claims premised on flooding and erosion are
intertwined, the court addresses them together as to the City and the Park
Board. See Dkt. 129 ¶ 104 (“[R]esultant flooding from Stewart Beach continues
to inundate Porretto Beach Classic and cause erosion.”). The court addresses
Porretto’s physical-takings claim premised on sand excavation separately from
flooding and erosion. As the City addresses only flooding in its motion, it has
waived any challenge to Porretto’s sand-excavation claim. Dkt. 131 ¶¶ 43–46.
The Park Board, on the other hand, has made no such waiver as to the
sand-excavation claim. Dkt 130 at 12–21.
Flooding and Erosion
First, the parties dispute whether the flooding-and-erosion-based
physical takings is “temporary”—as the City and Park Board argue—or
“recurring”—as Porretto alleges. Dkts. 130 at 12–14; 131 ¶ 46; 134 at 11–24.
When a takings is “temporary,” courts conduct a balancing test to
evaluate the duration, causation, intent and foreseeability, character of the
land, and level of interference. Arkansas Game & Fish Comm’n v. United
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States, 568 U.S. 23, 38–39 (2012). In contrast, the “recurring” analysis poses
just one question: Did the government effect a physical taking by occupying
property? See United States v. Cress, 243 U.S. 316, 328 (1917); see also Cedar
Point 	Nursery 	v. 	Hassid, 	594 	U.S. 	139, 	148 	(2021) 	(“[T]he
government . . . effects a physical taking when it occupies property—say, by
recurring flooding. . . . These sorts of physical appropriations constitute the
clearest sort of taking, and we assess them using a simple, per se rule: The
government must pay for what it takes.” (quotations and citations omitted)).
Porretto argues that the work conducted on Stewart Beach has led to
recurring flooding and erosion events. In support, Porretto alleges that “the
effects of the grading and elevation [on Stewart Beach] has inundated, and
continues 	to 	routinely 	inundate 	Porretto 	Beach 	Classic 	with
floodwater . . . and the flooding in turn causes erosion at Porretto Beach
Classic.” Dkt. 129 ¶ 14. She also alleges that the flooding-and-erosion injury
“continues 	to 	occur 	since 	the 	City 	and 	Park 	Board 	began 	formal
implementation of what they refer to as the ’Stewart Beach Parking Area
Drainage Improvement Project.’” Id. ¶ 92. Further, Porretto documented
specific dates when flooding occurred from 2022 through 2024 and alleged
that the “flooding continues to this day after rain events, and water takes
days to stop flowing from Stewart Beach to Porretto Beach Classic.” Id.
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¶¶ 104–05. For these reasons, the court finds Porretto has stated a claim for
physical takings premised on recurring flooding and erosion. Because the court
finds Porretto alleges a physical taking of the “recurring” variety, the court does
not address the Park Board’s “temporary” factors or the City’s discussion of
causation and intent. See Dkts. 130 at 14–20; 131 ¶¶ 45–46.
Accordingly, the Park Board’s and the City’s motions to dismiss the
flooding-and-erosion-based physical-takings claim are denied.
Sand Excavation
The Park Board argues that the statute of limitations precludes
Porretto’s sand-excavation takings claim arising under § 1983. Dkt. 130 at
20–21. Porretto responds that her sand-excavation claim is not time-barred.
Dkt. 134 at 24–25.
Section 1983 claims borrow the relevant state’s statute of limitations
for personal injury, which is two years in Texas. Redburn v. City of Victoria,
898 F.3d 486, 496 (5th Cir. 2018). “Federal law governs when a cause of
action under § 1983 accrues,” and “the limitations period begins to run when
the plaintiff becomes aware that he has suffered an injury or has sufficient
information to know that he has been injured.” Id. (quotations and citation
omitted). This requires awareness of “both the existence of an injury and its
cause.” Weeks v. Collier, No. 22-10126, 2023 WL 7703823, at *2 (5th Cir.
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Nov. 15, 2023) (citing In re FEMA Trailer Formaldehyde Prods. Liab. Litig.,
646 F.3d 185, 190 (5th Cir. 2011), abrogated on other grounds by United
States v. Wong, 575 U.S. 402 (2015)).
Limitations do not bar Porretto’s sand-excavation physical-takings claim.
Accepting Porretto’s allegations as true, the limitations period did not begin to
run until June 2020, when Porretto first “learned the City and Park Board had
entered the property during a ‘bankruptcy stay’ in order to excavate sand.”
Dkt. 129 ¶ 117. Because Porretto filed suit in June 2021, her sand-excavation
takings claim falls within the two-year limitations period. Dkt. 1. Further,
because the Park Board cites no authority to support its contention that
Porretto was not the property owner before June 2020, the court does not
consider this argument. Dkt. 130 at 20; Broadleaf IT, LLC v. Walley, No. 4:24-
cv-00303, 2024 WL 4329145, at *3 (S.D. Tex. Aug. 17, 2024) (“A party may
waive its arguments by failing to adequately brief its arguments, and support
them with . . . applicable authority.” (quotations and citation omitted)).
Accordingly, the Park Board’s motion to dismiss the sand-excavation
physical-takings claim is denied.
Regulatory Takings
The general rule regarding regulatory takings is that “while a property
may be regulated to a certain extent, if regulation goes too far it will be
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recognized as a taking.” Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415
(1922). Regulatory takings fall under two discrete categories. The first, a
categorical taking, requires compensation “when a regulation deprives an
owner of all economically beneficial uses of his land.” Lucas v. South
Carolina Coastal Council, 505 U.S. 1003, 1015 (1992). The second, a
non-categorical taking, evaluates whether the regulation has gone “too far”
by “engag[ing] in essentially ad hoc, factual inquiries.” Id. (citation omitted).
The first dispute is whether Porretto has alleged a categorical or
non-categorical taking. The Park Board and the City contend that because the
complaint details existing economic opportunity, i.e., charging for parking,
concessions, 	and 	rentals, 	Porretto 	has 	not 	alleged 	a 	categorical 	taking.
Dkts. 130 at 22–23; 131 ¶ 37; see Dkt. 129 ¶ 5. Porretto argues that “a categorical
taking can occur even if economical beneficial uses technically remain, but are
made nonviable by the regulatory interference.” Dkt. 134 at 28 (citing DM
Arbor Court, Ltd. v. City of Houston, 150 F.4th 418, 424–26 (5th Cir. 2025)).
This is a close call. In DM Arbor, the Fifth Circuit rejected the district
court’s finding that economic benefit remained when that benefit arose from
some speculative future use or from a sale. DM Arbor Ct., Ltd., 150 F.4th at
424–26. Porretto notes that although some economic opportunity remains
at Porretto Beach, the way the Park Board enforces the City’s ordinances
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relative to her property makes those opportunities nonviable. Dkt. 134 at 28–
30; 	see 	Dkt. 129 ¶¶ 151–56, 260–62. The difference here is Porretto’s
allegation that “these regulations risk economic harm,” whereas in DM
Arbor there was no dispute the property lost “most of its value” and sat
“economically idle.” Dkt. 129 ¶ 259 (emphasis added); DM Arbor Ct., Ltd.,
150 F.4th at 424 (citation omitted). Furthermore, the Supreme Court has
held that a regulation does not qualify as a categorical taking even when the
regulation takes 95% of a property’s value. Lucas v. South Carolina Coastal
Council, 	505 	U.S. 	1003, 	1020 	n.8 	(1992). 	Thus, 	because 	economic
opportunity remains in some form and Porretto endures only the “risk of
economic harm,” the court finds Porretto does not allege a categorical taking.
Analyzing Porretto’s alleged regulatory taking as non-categorical, the
court’s inquiry avoids “per se rules” and instead “examine[s] a number of
factors, rather than a simple mathematically precise formula.” Tahoe-Sierra
Pres. Council Inc. v. Tahoe Reg’l Plan. Agency, 535 U.S. 302, 326 (2002).
The most significant factors include “[t]he economic impact of the regulation
on the claimant and, particularly, the extent to which the regulation has
interfered 	with 	distinct 	investment-backed 	expectations[,] . . . [and] 	the
character of the governmental action.” Penn Cent. Transp. Co. v. City of New
York, 438 U.S. 104, 124 (1978). Here, Porretto alleges economic harm,
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Dkt. 129 ¶ 274–75, significant interference with the economic opportunities
afforded by a unique, beachfront property, id. ¶¶ 142–44, 152, 155, 258, 260,
and specific application to Porretto Beach in “a calculated attempt to deny
Ms. Porretto the economic benefits” available in owning that property,
id. ¶¶ 260–61. At the pleading stage, these allegations are enough to state a
claim for a non-categorical regulatory taking.
Accordingly, the court denies the City’s and the Park Board’s motions
to dismiss this claim.
C. Monell Liability
To the extent Porretto alleges municipal liability under the Monell
doctrine, the Park Board challenges this claim. Dkt. 130 at 27–30. To plead
Monell liability requires alleging three elements: “a policymaker; an official
policy; and a violation of constitutional rights whose ‘moving force’ is the
policy or custom.” Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th Cir.
2001) (quoting Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978)).
Regarding the physical-takings claim, the Park Board argues that
(1) Porretto has not alleged a constitutional violation for which it could be
liable, and (2) she has not identified a Park Board policy or custom causing
the violation. Dkt. 130 at 27. The court disagrees and finds Porretto has
alleged both. As the court analyzed above, Porretto states a claim for a
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physical-takings violation. As to policy, the complaint discusses at length the
activities implemented by the City and the Park Board to improve drainage
at Stewart Beach. See Dkt. 129 ¶¶ 224–43. Further, as to the policymaker,
Porretto points to specific sections of the Galveston City Code and the Texas
Local Government Code granting the City and the Park Board policymaking
authority over Stewart Beach. Id. ¶¶ 26, 233. These allegations are sufficient
to state a claim for Monell liability.
The Park Board’s regulatory-takings argument fares no better. As
discussed above, Porretto pleads a regulatory-takings violation. As to policy, the
complaint discusses formal ordinances enacted by the City and the manner in
which the City and the Park Board apply the ordinances to Porretto Beach. See
id. ¶¶ 142–44, 152, 155, 258, 260. Finally, as to the policymaker, Porretto avers
three City ordinances as well as the City’s delegation to the Park Board to
implement them. Id. ¶ 265–68. These assertions are also sufficient.
Accordingly, Porretto has stated a claim for Monell liability against the City
and the Park Board, and the Park Board’s motion to dismiss this claim is denied.
D. Inverse Condemnation
The 	Park 	Board 	and 	the 	City 	challenge 	Porretto’s
inverse-condemnation claim under the Texas Constitution. Dkts. 130 at 30–
32; 131 ¶¶ 47–50. The Texas Constitution provides that “[n]o person’s
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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.” TEX. CONST . art. I, § 17. “To plead inverse condemnation, a plaintiff
must 	allege 	an 	intentional 	government 	act 	that 	resulted 	in 	the
uncompensated taking of private property.” City of Houston v. Carlson, 451
S.W.3d 828, 831 (Tex. 2014).
Both the Park Board and the City rely on the intent prong. Dkts. 130 at
31; 131 ¶¶ 48–50. To plead intent, a plaintiff must show the government entity
“(1) knows that a specific act is causing identifiable harm; or (2) knows that the
specific property damage is substantially certain to result from an authorized
government action—that is, that the damage is necessarily an incident to, or
necessarily a consequential result of the government’s action.” City of Dallas v.
Jennings, 142 S.W.3d 310, 314 (Tex. 2004) (quotations and citation omitted).
The complaint alleges Porretto warned the Park Board and the City
that flooding would occur when she objected to the project that has since
allegedly damaged her property. Dkt. 129 ¶¶ 66–82, 93–103. Porretto also
alleges she predicted the flooding based on “her review of a design document
for the work at Stewart Beach,” which contained “obvious features . . . that
made flooding of Porretto Beach Classic highly probable.” Id. ¶ 75. At the
pleading stage, these assertions are enough to show that the Park Board and
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the City knew flooding was “substantially certain to result” from the work on
Stewart Beach. Jennings, 142 S.W.3d at 314.
Accordingly, the court denies the Park Board’s and the City’s motions
to dismiss Porretto’s inverse-condemnation claim.
E. Tort Claims
Porretto raises a series of state-law tort claims against the Park Board
and the City, including trespass, private nuisance, tortious interference with
prospective business relations, and tortious interference with contract.
Dkt. 129 ¶¶ 326–418. Under Texas law, a governmental unit is immune from
tort liability unless the legislature has waived immunity. Forgan v. Howard
Cnty., 494 F.3d 518, 520 (5th Cir. 2007). The plaintiff has the burden of
“alleging a valid waiver of immunity” to establish subject-matter jurisdiction
over state-law claims brought against a governmental unit. 	Chavez v.
Alvarado, 550 F. Supp. 3d 439, 453 (S.D. Tex. 2021).
Here, the Park Board and the City rely on the Texas Tort Claims Act
(“TTCA”) to claim immunity. Dkts. 130 at 32–34; 131 ¶¶ 51–60. Porretto
argues that her claims are exempted from the TTCA because the Park Board’s
officials acted ultra vires and the Park Board and the City acted in their
proprietary function. Dkts. 129 ¶¶ 329–35; 134 at 36–38. The court will
address each argument in turn.
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Ultra Vires
Porretto argues that officials, “like those who constitute the Park
Board,” acted ultra vires, exempting them from immunity for their acts.
Dkts. 129 ¶ 334; 134 at 37 & n.6. “[W]hen a government officer acts ultra
vires, immunity does not protect his acts. . . . That is because acts done
without 	legal 	authority 	are 	not 	done 	as 	a branch 	of the 	state. . . . By
definition, they fail to derive their authority from the root of our state’s
immunity.” Wasson Ints., Ltd. v. City of Jacksonville (Wasson I), 489
S.W.3d 427, 433 (Tex. 2016) (quotations and citation omitted). To trigger the
ultra vires exception, the plaintiff “must not complain of a government
officer’s exercise of discretion, but rather must allege . . . that the officer
acted without legal authority or failed to perform a purely ministerial act.”
City of El Paso v. Heinrich, 284 S.W.3d 366, 372 (Tex. 2009).
Porretto fails to do this. In her complaint, she does not allege that an
officer acted “without legal authority or failed to perform a purely ministerial
act.” Id. Instead, Porretto cites Wasson Interests for the definition of the
ultra vires doctrine, and in her response to the Park Board’s and the City’s
motions to dismiss, she simply claims that the ultra vires doctrine applies to
officials from the Park Board. See Dkts. 129 ¶ 334; 134 at 37. This is not
enough to overcome immunity, even at the motion-to-dismiss stage.
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Accordingly, Porretto’s ultra vires argument fails.
Proprietary Function
Municipalities 	exercise 	their 	broad 	powers 	in 	two 	different 	roles:
proprietary and governmental. See Wasson Ints., Ltd. v. City of Jacksonville
(Wasson 	II), 	559 	S.W.3d 	142, 	146 	(Tex. 	2018). 	Immunity 	protects 	a
governmental unit from suits based on its performance of a governmental
function, but not a proprietary function. Id. A proprietary function is a function
performed by the city primarily “for the benefit only of those within its corporate
limits, and not as an arm of the government, while its government functions are
in the performance of purely governmental matters solely for the public
benefit.” Tooke v. Mexia, 197 S.W.3d 325, 343 (Tex. 2006). Further, proprietary
functions “can be, and often are, provided by private persons.” City of League
City v. Jimmy Changas, Inc., 670 S.W.3d 494, 499 (Tex. 2023) (quoting
Wasson II, 559 S.W.3d at 147). Government functions, in contrast, involve the
exercise of powers conferred by the state for the public benefit and are ordinarily
performed by government entities. See id. This dichotomy applies both to tort
and contract claims. See Wasson I, 489 S.W.3d 427, 439 (Tex. 2016).
Porretto 	avers 	that 	the 	Park 	Board and 	the 	City 	acted 	in 	their
proprietary capacity because they “engaged in a persistent, and coordinated
pattern 	of 	harassment 	and 	annoyance,” 	which 	Porretto 	concludes 	“is
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retributive, punitive, and intentionally disruptive in nature” and falls outside
of their government functions. Dkt. 129 ¶ 331. These allegations are vague,
conclusory, and argumentative.
Moreover, 	Porretto 	concedes 	that 	the 	GLO—a 	state 	agency—
“approved, oversees, and is funding, the work at Stewart Beach,” which
weighs in favor of the Park Board and the City acting under their government
function. Dkt. 129 ¶ 21; see e.g., Hays Street Bridge Restoration Grp. v. City
of San Antonio, 570 S.W.3d 697, 706 (Tex. 2019) (holding that the city acted
through its governmental function because the state provided most of the
necessary funding for the project). Further, the Park Board and the City’s
project to address “ponding” in Stewart Beach is ultimately within the Park
Board’s and the City’s governmental functions. Dkt. 129 ¶¶ 11–12; see, e.g.,
City of Dallas v. Block, No. 05-24-00463-cv, 2026 WL 1024878, at *8 (Tex.
App.—Dallas Apr. 15, 2026) (holding that a city’s flood-management actions
“fall within its police powers, remain governmental in nature, and are
protected by governmental immunity”).
Accordingly, the Park Board and the City acted in their governmental
capacity and are immune from Porretto’s tort claims. Therefore, the court
grants the Park Board’s and the City’s motions to dismiss Porretto’s state-
law tort claims.
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F. Punitive Damages
Porretto seeks punitive damages against the Park Board and the City
pursuant to her state-law tort claims, claims arising under 42 U.S.C. § 1983,
and Fifth Amendment takings claims. Dkt. 129 ¶¶ 424–25.
First, because the court has dismissed Porretto’s state-law tort claims,
it need not address whether they provide for punitive damages.
Second, the Supreme Court has established that “a municipality is
immune from punitive damages under 42 U.S.C. § 1983.” City of Newport v.
Fact Concerts, Inc. 453 U.S. 247, 271 (1981); see also Robinson v. Hunt Cnty.,
921 F.3d 440, 451 n.6 (5th Cir. 2019). To the extent that Porretto seeks to
recover punitive damages against the Park Board’s officials, see Dkts. 129 ¶ 421;
134 at 38, she cannot do so because she does not allege a § 1983 claim against
the Park Board’s officials in their individual capacity. See Dkt. 129 ¶¶ 174–278
(alleging a § 1983 claim against the City and the Park Board, generally, but not
against the Park Board officers in their individual capacity); see also Oliver v.
Scott, 276 F.3d 736, 741 (5th Cir. 2002) (finding that a plaintiff states a § 1983
claim against a government official in his individual capacity by “alleg[ing]
specific conduct giving rise to a constitutional violation”).
Third, the Fifth Amendment requires only that the government “pay just
compensation—normally measured by fair market value—whenever it takes
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private property for public use”—not punitive damages. United States v. 50
Acres of Land, 469 U.S. 24, 25–26 (1984) (quotations omitted); U.S. CONST.
amend. V (“[N]or shall private property be taken for public use, without just
compensation”). Therefore, Porretto cannot recover punitive damages under
her Fifth Amendment takings claim.
Accordingly, Porretto can recover punitive damages from neither the
Park Board nor the City.
* 	* 	*
For the foregoing reasons, the court dismisses the following claims:
• 	All of Porretto’s claims against the GLO;
• 	Porretto’s Ex Parte Young claim against Commissioner Buckingham;
• 	Porretto’s state-law tort claims against the Park Board and the
City; and
• 	Porretto’s request for punitive damages against the Park Board
and the City.
The following claims survive:
• 	Porretto’s physical-takings claim against the Park Board and the
City under § 1983 and the U.S. Constitution;
• 	Porretto’s regulatory-takings claim against the Park Board and
the City under § 1983 and the U.S. Constitution;
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• 	Porretto’s municipal-liability claim under § 1983 against the
Park Board and the City; and
• 	Porretto’s 	inverse-condemnation 	claim 	under 	the 	Texas
Constitution against the Park Board and the City.
Signed on Galveston Island this 5th day of June, 2026.
___________________________
J EFFREY VINCENT BROWN
U NITED S TATES D ISTRICT JUDGE
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