MEMORANDUM OPINION AND ORDER
REED O'CONNOR, District Judge.
Before the Court is Defendants' Second Motion and Brief to Dismiss for Failure to State a Claim and Alternative Request for Rule 7(a) Reply to Immunity, filed October 8, 2013 (ECF No. 23). Having considered the motion, response, reply, pleadings and applicable law, the Court grants in part and denies in part Defendants' motion.
I. Factual Background and Procedural History
Plaintiffs Michael White and his father, David White, filed this action pursuant to 42 U.S.C. § 1983, against the City of Holliday, a municipality in Archer County, Texas, and Dwayne Jackson, a police officer for the City of Holliday at the time of the incident made the basis of this lawsuit. This case arises from Officer Jackson's alleged use of excessive force against Plaintiffs during the April 20, 2011 arrest of Plaintiff Michael White for driving while intoxicated. Plaintiffs contend that Officer Jackson's use of force violated the Fourth Amendment and was in retaliation for protected speech in violation of the First Amendment. In addition to suing Officer Jackson, Plaintiffs sue the City of Holliday, alleging, among other things, that the City had policies and practices that showed manifest indifference to the use of excessive force by its police officers, and failed to adequately train or supervise its officers as to the use of force. Officer Jackson and the City move to dismiss the First Amended Complaint, arguing that Plaintiffs have failed to allege a constitutional violation arising from the April 20, 2011 arrest. In support of dismissal, Officer Jackson also contends that his use of force was objectively reasonable, and he is entitled to qualified immunity, or, alternatively, the Court should require Plaintiffs to file a Rule 7(a) reply.
The Court now sets out the applicable facts upon which it relies in deciding the pending motion to dismiss. The facts are drawn from Plaintiffs' First Amended Complaint, which is the live pleading. See ECF No. 20, First. Am. Compl.
After leaving a convenience store, Michael White drove on a public highway to a work site where he was part of a crew working on an oil rig with his father, Plaintiff David White, and others. Id. ¶ 10. After entering the property on which the oil rig was located, Officer Jackson directed Michael White from the level entrance to an adjacent uneven area to conduct various field sobriety tests, and re-positioned the police car to capture the events on the car's audio/video recording device. Id. ¶ 11. Upon being taken to the uneven area, Michael White became upset, complained as to the location and began to yell about his treatment and what was being done generally. Id. ¶ 12. Michael White told Officer Jackson that he would not do the "fairy dance" (referring to the field sobriety tests) because the ground was uneven and broken. See id. Officer Jackson then escorted Michael White out of camera range. See id.
David White, upon seeing the activity at the entrance of the property, approached the entrance. See id. Officer Jackson told David White and others to leave the area. Upon information and belief, David White and the other observers were more than twenty-five feet from Officer Jackson and Michael White. Id. ¶ 13. At some point in time during these events, a deputy from the Sheriff's Department arrived. See id.
In response to Michael White's yelling and complaints about his treatment, Officer Jackson became visibly irritated and said he could do whatever he wanted, stomped around, and "said that nobody was going to stop him." Id. ¶ 14. Officer Jackson told Michael White to walk in a straight line, which he refused to do. See id. Officer Jackson then left Michael White alone, went to his police car, and returned with handcuffs, which he placed on Michael White without incident. Id. ¶ 15. Officer Jackson thereafter moved Michael White from the uneven area, where the actions were being recorded, toward Michael White's truck. See id.
While being moved in the direction of his truck, Michael White stopped to tell his father something else, and Officer Jackson became noticeably angrier and his voice became louder. Id. ¶ 16. During this time period, portions of the events were not recorded, "despite the in-car camera system having been activated and functioning properly minutes before." See id. Michael White again called out to his father, asking him to call his attorney. Id. ¶ 17. Officer Jackson suddenly turned and used his taser on Michael White until such time as Michael White collapsed to the ground. See id.  Officer Jackson then picked up Michael White and placed him in the rear of the police car. See id. At no time preceding Officer Jackson's use of the taser was Michael White resistant to Officer Jackson's verbal instructions or "physical pushing/pulling[.]" Id. ¶ 18. Michael White did not "make any furtive gestures, sudden movements, attempt to flee, or engage in any actions that could be seen as threatening or uncooperative - other than his verbal complaints and comments as to Defendant Jackson." See id.
After Michael White collapsed to the ground, David White heard Officer Jackson talk about impounding Michael White's truck, and any other vehicles around it. Id. ¶ 20. David White informed Officer Jackson that they needed Michael White's truck at the work site, after which Officer Jackson stated he could do whatever he wanted with the vehicles, and there was nothing anyone could do about it. See id. After announcing his intentions to retrieve tools from Michael White's truck, as David White reached into the bed of the truck, Officer Jackson walked next to him and, without warning or notice, struck David White's hand with a solid object. Id. ¶ 21. David White was momentarily stunned from the sudden attack and pulled his hand back in pain, noticing the skin was broken and beginning to bleed. See id. At no time before striking David White's hand did Officer Jackson tell David White not to approach the truck or remove items from it. Id. ¶ 22. Before Officer Jackson assaulted David White, David White had not engaged in any conduct that was threatening or contrary to any instruction, and had not attempted to interfere with Officer Jackson's arrest of Michael White. Id. ¶ 23.
II. Legal Standard
To defeat a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, a plaintiff must plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). "The plausibility standard is not akin to a probability requirement, ' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. (quoting Twombly, 550 U.S. at 556). "Where a complaint pleads facts that are merely consistent with' a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief.'" Id. (quoting Twombly, 550 U.S. at 557) (internal quotation marks omitted).
In reviewing a Rule 12(b)(6) motion, the Court must accept all well-pleaded facts in the complaint as true and view them in the light most favorable to the plaintiff. Sonnier v. State Farm Mut. Auto. Ins. Co., 509 F.3d 673, 675 (5th Cir. 2007). The Court is not bound to accept legal conclusions as true, and only a complaint that states a plausible claim for relief survives a motion to dismiss. Iqbal, 556 U.S. at 678-79. When there are well-pleaded factual allegations, the Court assumes their veracity and then determines whether they plausibly give rise to an entitlement to relief. Id. However, the Court does "not accept as true conclusory allegations, unwarranted factual inferences, or legal conclusions." Southland Sec. Corp. v. INSpire Ins. Solutions, Inc., 365 F.3d 353, 361 (5th Cir. 2004).
In ruling on a motion to dismiss under Rule 12(b)(6), the Court cannot look beyond the pleadings. Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir. 1999). The pleadings include the complaint and any documents attached to it. Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498-99 (5th Cir. 2000). Likewise, documents that a defendant attaches to a motion to dismiss are considered part of the pleadings if they are referred to in the plaintiff's complaint and are central to the plaintiff's claims. Id.
Plaintiff Michael White sues the City of Holliday and Officer Jackson pursuant to 42 U.S.C. § 1983 alleging violations of his constitutional rights under the First and Fourth Amendments of the United States Constitution. Plaintiff David White also brings § 1983 claims against the City and Officer Jackson for Fourth Amendment violations. Section 1983 "provides a federal cause of action for the deprivation, under color of law, of a citizen's rights, privileges, or immunities secured by the Constitution and laws' of the United States." Livadas v. Bradshaw, 512 U.S. 107, 132 (1994). It "afford[s] redress for violations of federal statutes, as well as of constitutional norms." Id. To state a claim under § 1983, a plaintiff must allege facts that show (1) he has been deprived of a right secured by the Constitution and the laws of the United States; and (2) the deprivation occurred under color of state law. See Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 155 (1978); Cornish v. Corr. Servs. Corp., 402 F.3d 545, 549 (5th Cir. 2005).
The City of Holliday and Officer Jackson have moved to dismiss Plaintiffs' § 1983 claims for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6), and Officer Jackson also asserts he is entitled to qualified immunity from this lawsuit, or, alternatively, Plaintiffs should be required to file ...