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Arevalo v. City of Farmers Branch, Texas

United States District Court, N.D. Texas, Dallas Division

March 28, 2017

EVA AREVALO, INDIVIDUALLY AND AS NEXT FRIEND OF E.R., A MINOR, Plaintiff,
v.
CITY OF FARMERS BRANCH, TEXAS, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          SIDNEY A. FITZWATER, UNITED STATES DISTRICT JUDGE

         The mother of a teenager shot by a police officer who was residing at an apartment complex and working as its courtesy officer brings this action under 42 U.S.C. § 1983 and Texas law, alleging that the officer, the city that employed him, the city's police chief, and the owner and manager of the apartment complex where the officer resided and worked are liable on theories of use of excessive force, failure to train, and negligent hiring and/or retention. The defendants move to dismiss under Fed.R.Civ.P. 12(b)(6), or for judgment on the pleadings under Rule 12(c), and the police officer moves to stay the proceedings against him pending the outcome of a parallel criminal prosecution. For the reasons that follow, the court grants the motions to dismiss and for judgment on the pleadings-except for the police officer's motion to dismiss-and it grants the police officer's motion to stay.

         The court dismisses the actions against the apartment complex owner and manager, the city, and the city police chief, but it also grants the plaintiff leave to amend as to the city and the city police chief.

         I

         A

         This is a lawsuit by plaintiff Eva Arevalo (“Arevalo”) brought individually and on behalf of her son E ___ R ___ (“E.R.”).[1] The defendants are the City of Farmers Branch, Texas (“Farmers Branch”); the Farmers Branch Chief of Police, Sid Fuller (“Chief Fuller”); Ken Johnson (“Officer Johnson”), who on the day of the shooting was employed as a Farmers Branch police officer; Adara Communities, LLC (“Adara”), the manager of the Brookhaven Apartments, where Officer Johnson resided and worked as a courtesy officer[2]; and Brookhaven Apartments, LLC (“Brookhaven”), the owner of the Brookhaven Apartments. Arevalo asserts four claims. In count one, she brings a claim under § 1983 against Farmers Branch, alleging that, through its customs and practices, it has instituted and maintained a policy of police brutality and excessive force that was used against E.R.; that Farmers Branch failed to train or discipline its law enforcement officers concerning the use of deadly force or determining whether a suspect is armed and/or poses a threat of serious physical harm to a law enforcement officer; and that Farmers Branch failed to train or inadequately trained its law enforcement officers to render medical care to shooting victims in their custody. In count two, Arevalo alleges that Officer Johnson is liable under § 1983 for violating E.R.'s Fourth Amendment rights by using excessive force against him. In count three, Arevalo asserts a claim under § 1983 against Chief Fuller, alleging that he failed to properly train officers employed by the Farmers Branch Police Department (“FBPD”) on the constitutionally permissible procedures for the use of deadly force, resulting in the violation of E.R.'s Fourth Amendment rights through the use of excessive force when Officer Johnson shot him. And in count four, Arevalo brings a claim against Adara and Brookhaven for negligent hiring and/or retention, alleging that they negligently hired and/or inadequately supervised, trained, or retrained Officer Johnson as their employee, agent, and/or servant.

         The following facts are taken from Arevalo's first amended complaint (“amended complaint”) and are accepted as true for purposes of deciding defendants' motions to dismiss and for judgment on the pleadings. On March 13, 2016, between 7:00 p.m. and 7:30 p.m., Officer Johnson allegedly observed E.R. and J ___ C ___ (“J.C.”)[3] attempt to burglarize Officer Johnson's personal vehicle while it was parked in the parking lot of the Brookhaven Apartments. Officer Johnson announced himself as a police officer several times before getting into his vehicle and pursuing E.R. and J.C., who had fled in their own vehicle. E.R. was 16 years old on March 13.

         After ramming the vehicle occupied by E.R. and J.C. and causing it to spin out of control, Officer Johnson exited his vehicle while brandishing his service weapon and identifying himself as a police officer. Officer Johnson then confronted E.R. and J.C. regarding the alleged burglary of his vehicle. Without provocation, Officer Johnson used a semi-automatic handgun to fire 17 rounds into the vehicle occupied by E.R. and J.C., even though there was no evidence that E.R. was armed. E.R. was hit in the hand and head. He was in a defenseless position in the vehicle during the entire time leading up to when Officer Johnson shot him. At no time leading up to the shooting did E.R. commit an act that could have been interpreted as an aggressive move towards Officer Johnson, reach toward his clothing or make any aggressive move in a threatening manner towards Officer Johnson, make a verbal threat towards Officer Johnson, or display any weapon towards Officer Johnson. Photos show that Officer Johnson was standing in the road while shooting into the vehicle occupied by E.R. and J.C., with both occupants totally contained in the vehicle. After intentionally shooting E.R., Officer Johnson returned to his vehicle to obtain more ammunition or another firearm, but then apparently decided to stop shooting. Officer Johnson was standing in the roadway with the gun when other officers arrived at the scene.

         E.R. posed no threat of serious physical harm to Officer Johnson at the time of the shooting; Officer Johnson's actions in shooting E.R. were objectively unreasonable in light of the facts and circumstances confronting him; the shooting of E.R. was totally unnecessary under the circumstances, considering that he posed no immediate threat of serious physical harm to Officer Johnson; and the use of deadly force in this context was totally unjustified.

         While acting under color of state law and under the authority granted him by the FBPD, and in the course and scope of his employment with the FBPD, Officer Johnson shot E.R.

         Before Farmers Branch hired Officer Johnson, he had been disciplined at least three different times for excessive force. He had two excessive force complaints filed against him during his eight-year tenure as an officer with Dallas Area Rapid Transit.

         According to Arevalo, on or about March 13, 2016, defendant Chief Fuller was the Farmers Branch Chief of Police who was responsible for training officers of the FBPD and for initiating, maintaining, and implementing all FBPD policies and procedures.

         Prior to, and at the time of, the events leading up to the shooting of E.R., Officer Johnson had been hired/retained by Brookhaven Apartments, where he resided, as a “courtesy officer, ” to provide security services at the apartment complex. Adara was the apartment manager, and Brookhaven Apartments was the owner. Adara and Brookhaven both authorized Officer Johnson to patrol the premises and conduct security activities on and around the premises. In addition to his capacity as an officer of the FBPD, Johnson was also acting in the capacity as a security officer for Adara and Brookhaven at the time of the shooting. Adara and Brookhaven did not conduct a thorough and complete background check regarding Officer Johnson's employment history and the claims of excessive force lodged against him before retaining/hiring him to perform security services for the Brookhaven Apartments.

         B

         The following motions are pending for decision: Officer Johnson's motion to dismiss Arevalo's amended complaint; Farmers Branch and Chief Fuller's motion to dismiss; Officer Johnson's motion to stay proceedings; and Adara and Brookhaven's Rule 12(c) motion for judgment on the pleadings. Arevalo opposes the motions.

         II

         Under Rule 12(b)(6), the court evaluates the pleadings by “accept[ing] ‘all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff.'” In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007) (quoting Martin K. Eby Constr. Co. v. Dall. Area Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004)). To survive a motion to dismiss, Arevalo must allege 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[s] [are] liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “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.; see also Twombly, 550 U.S. at 555 (“Factual allegations must be enough to raise a right to relief above the speculative level [.]”). “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not ‘show[n]'-‘that the pleader is entitled to relief.'” Iqbal, 556 U.S. at 679 (quoting Rule 8(a)(2)). Furthermore, under Rule 8(a)(2), a pleading must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Although “the pleading standard Rule 8 announces does not require ‘detailed factual allegations, '” it demands more than “‘labels and conclusions.'” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). And “‘a formulaic recitation of the elements of a cause of action will not do.'” Id. (quoting Twombly, 550 U.S. at 555).

         Rule 12(c) provides that “[a]fter the pleadings are closed-but early enough not to delay trial-a party may move for judgment on the pleadings.” The standard for deciding a motion under Rule 12(c) is the same as the one for deciding a motion to dismiss under Rule 12(b)(6). See Great Plains Trust Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 313 n.8 (5th Cir. 2002) (“A number of courts have held that the standard to be applied in a Rule 12(c) motion is identical to that used in a Rule 12(b)(6) motion.” (citation and internal quotation marks omitted)).

         Because Officer Johnson has asserted the affirmative defense of qualified immunity, Arevalo has a heightened burden when pleading the excessive force claim asserted against him in count two. “[W]hen a plaintiff sues a public official under § 1983, the district court must insist on heightened pleading by the plaintiff.” Morin v. Caire, 77 F.3d 116, 121 (5th Cir. 1996) (citing Schultea v. Wood, 47 F.3d 1427, 1433 (5th Cir. 1995) (en banc)). “Heightened pleading requires allegations of fact focusing specifically on the conduct of the individual who caused the plaintiffs' injury.” Reyes v. Sazan, 168 F.3d 158, 161 (5th Cir. 1999). The case should not be allowed to proceed against the public official unless the plaintiff can assert specific facts that, if true, would overcome the defense. See Morin, 77 F.3d at 120 (“Public officials are entitled to qualified immunity from suit under § 1983 unless it is shown by specific allegations that the officials violated clearly established law.”); Schultea, 47 F.3d at 1434 (“The district court need not allow any discovery unless it finds that plaintiff has supported his claim with sufficient precision and factual specificity[.]”).[4]

         III

         The court turns first to Arevalo's excessive force claim against Officer Johnson. Officer Johnson moves to dismiss under Rule 12(b)(6) on the grounds that Arevalo has failed to state a claim on which relief can be granted, and that she has failed to overcome the affirmative defense of qualified immunity.

         A

         “The Fourth Amendment's protection against unreasonable seizures of the person has been applied in causes of action under 42 U.S.C. § 1983 to impose liability on police officers who use excessive force against citizens.” Colston v. Barnhart, 130 F.3d 96, 102 (5th Cir. 1997). “To prevail on an excessive force claim, a plaintiff must establish: (1) injury (2) which resulted directly and only from a use of force that was clearly excessive, and (3) the excessiveness of which was clearly unreasonable.” Ramirez v. Knoulton, 542 F.3d 124, 128 (5th Cir. 2008) (internal quotation marks omitted) (quoting Freeman v. Gore, 483 F.3d 404, 416 (5th Cir. 2007)).

         In assessing the reasonableness of the use of force, the court must give “careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Graham v. Connor, 490 U.S. 386, 396 (1989). “The ‘reasonableness' of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Rockwell v. Brown, 664 F.3d 985, 991 (5th Cir. 2011) (quoting Graham, 490 U.S. at 396). This is an objective standard: “the question is whether the officer['s] actions are ‘objectively reasonable' in light of the facts and circumstances confronting [him], without regard to [his] underlying intent or motivation.” Graham, 490 U.S. at 397. “The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments-in circumstances that are tense, uncertain, and rapidly evolving-about the amount of force that is necessary in a particular situation.” Id. at 396-97. “ An officer's use of deadly force is presumptively reasonable when the officer has reason to believe that the suspect poses a threat of serious harm to the officer or to others.” Ontiveros v. City of Rosenberg, 564 F.3d 379, 382 (5th Cir. 2009).

         “[G]overnment officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Qualified immunity applies to state officials sued for constitutional violations under § 1983. See Id. at 818 n.30 (citing Butz v. Economou, 438 U.S. 478, 504 (1978)); Palmer v. Johnson, 193 F.3d 346, 351 (5th Cir. 1999). “The Supreme Court has characterized the doctrine as protecting ‘all but the plainly incompetent or those who knowingly violate the law.'” Cozzo v. Tangipahoa Parish Council-President Gov't, 279 F.3d 273, 284 (5th Cir. 2002) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).

         “To decide whether [a] defendant[] [is] entitled to qualified immunity, the court must first answer the threshold question whether, taken in the light most favorable to plaintiff[] as the part[y] asserting the injuries, the facts [she has] alleged show that defendant['s] conduct violated a constitutional right.” Ellis v. Crawford, 2005 WL 525406, at *3 (N.D. Tex. Mar. 3, 2005) (Fitzwater, J.) (citing Saucier v. Katz, 533 U.S. 194, 201 (2001) (“A court required to rule upon the qualified immunity issue must consider, then, this threshold question: Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right? This must be the initial inquiry.”)).[5] “If no constitutional right would have been violated were the allegations established, there is no necessity for further inquiries concerning qualified immunity.” Saucier, 533 U.S. at 201. “[I]f a violation could be made out on a favorable view of the parties' submissions, the next, sequential step is to ask whether the right was clearly established.” Id.

A right is clearly established only if the right's contours were sufficiently definite that any reasonable official in the defendant's shoes would have understood that he was violating it. A case directly on point is not required; rather, the central concept is that of fair warning: The law can be clearly established despite notable factual distinctions between the precedents relied on and the cases then before the Court, so long as the prior decisions gave reasonable warning that the conduct then at issue violated constitutional rights.

Cole v. Carson, 802 F.3d 752, 761 (5th Cir. 2015) (quoting Trent v. Wade, 776 F.3d 368, 383 (5th Cir. 2015)) (internal quotation marks and brackets omitted), vacated on other grounds, ___ U.S. ___, 137 S.Ct. 497 (2016).

         “Even if the government official's conduct violates a clearly established right, the official is nonetheless entitled to qualified immunity if his conduct was objectively reasonable.” Wallace v. Cnty. of Comal, 400 F.3d 284, 289 (5th Cir. 2005). “The objective reasonableness of allegedly illegal conduct is assessed in light of the legal rules clearly established at the time it was taken.” Salas v. Carpenter, 980 F.2d 299, 310 (5th Cir. 1992) (citing Anderson v. Creighton, 483 U.S. 635, 639 (1987)). “‘The defendant's acts are held to be objectively reasonable unless all reasonable officials in the defendant's circumstances would have then known that the defendant's conduct violated the' plaintiff's asserted constitutional or federal statutory right.” Cozzo, 279 F.3d at 284 (quoting Thompson v. Upshur Cnty., 245 F.3d 447, 457 (5th Cir. 2001)).

         B

         In count two of the amended complaint, Arevalo alleges that Officer Johnson used excessive force against E.R., in violation of E.R.'s Fourth Amendment right against unreasonable seizure, when he shot E.R. According to the amended complaint, E.R. did not pose a risk of harm to Officer Johnson at the time of the shooting. E.R.'s arms were over his head, and he did not display a weapon at any time before Officer Johnson shot him. Despite the fact that Officer Johnson continually screamed vulgar profanities at E.R. for no apparent reason, E.R. did not act aggressively towards Officer Johnson or make any verbal threat against him or anyone else. E.R. took no action during the traffic stop that could form the basis for a reasonable belief that he posed a threat to Officer Johnson or any reasonable officer under the same circumstances. Officer Johnson shot E.R. when he posed no threat of serious injury or death to Officer Johnson or any other person. Officer Johnson's shooting of E.R. violated clearly established Fourth Amendment law governing the use of excessive force, and his conduct was objectively unreasonable under the clearly established law at the time of the shooting.

         In Officer Johnson's answer, he denies many of the allegations of the amended complaint. He admits, however, that he observed E.R. and another suspect commit a vehicle burglary on the date and time alleged, that he pursued the two of them, and that he attempted to confront them after their vehicle came to a halt. Answer to Am. Compl. ¶ 7 [first].[6] In support of ...


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