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Collie v. Barron

United States District Court, N.D. Texas, Fort Worth Division

June 1, 2017

DAVID B. COLLIE, Plaintiff,
HUGO BARRON, ET AL., Defendants.



         Came on for consideration the motion of defendant Hugo Barron ("Barron"), the motion of defendants L. Harrington ("Harrington") and D.G. Rohloff ("Rohloff"), and the motion of defendant Tarrant County, Texas ("Tarrant County")[1], to dismiss. Plaintiff, David B. Collie, has responded to the motions of Barron and Tarrant County and they have replied. Plaintiff has not responded to the motion of Harrington and Rohloff, which is ripe for ruling.


         Plaintiff's Claims

         On April 18, 2017, plaintiff filed his first amended complaint, asserting claims arising out of a shooting that left him paralyzed from the chest down. Doc.[2] 30. Plaintiff alleges:

         On July 27, 2016, at approximately 11:55 p.m., the City of Fort Worth received a 911 call regarding a robbery committed by two black males. The first suspect was in his teens or early 20's, 6'1" tall and weighed approximately 18 0 pounds, having a small "afro." The second suspect was 6'4" tall and also in his teens or early 20's. Doc. 30 at 4-5, ¶ 19.[3] Barron searched apartment complexes in the area. Upon seeing plaintiff, who was 33 years old, 5'6" and 150 pounds, Barron got out of his police car and shot plaintiff in the back seven seconds later. Barron did not use cover, did not give clear commands, did not call or wait for additional law enforcement personnel, did not use additional illumination, did not warn plaintiff he would shoot, and did not determine whether plaintiff posed a threat to safety before shooting plaintiff. Doc. 30 at 5, ¶ 20. The bullet struck plaintiff in the back, punctured a lung, and severed his spine. Doc. 3 0 at 6, ¶ 20. According to internal affairs interviews, Barron and another officer accompanying him (Flores, who has been dismissed), were yelling potentially conflicting commands at plaintiff. Doc. 30 at 6, ¶ 21. Harrington and Rohloff wrote narratives and gave statements that plaintiff pointed a weapon at Flores. Plaintiff was charged with aggravated assault on a public servant, which was ultimately resolved in plaintiff's favor. Doc. 30 at 7, ¶ 23. Following surgery, plaintiff was shackled to a hospital bed for 61 days and placed under armed guard 24 hours a day. Doc. 30 at 7, ¶ 24. During his last three weeks in custody, plaintiff was unshackled for one hour at a time two or three days a week, but placed in handcuffs around his wrist and ankles. Id. Plaintiff was forced to remain on his back and developed severe pressure sores. Id. The shackles were removed only after the grand jury refused to indict plaintiff. Id.

         Plaintiff asserts a number of claims. As to Barron, he alleges use of excessive force, racketeering activity, false imprisonment, and malicious prosecution. As to Harrington and Rohloff, he alleges racketeering activity, false imprisonment, and malicious prosecution. As to Tarrant County, plaintiff alleges cruel and unusual punishment, false imprisonment, and vicarious liability.


         Grounds of the Motions

         Barron says that plaintiff has failed to state a plausible claim against him and that, in any event, Barron is entitled to qualified immunity. Harrington and Rohloff say the same. Tarrant County says that plaintiff has not stated any plausible state or federal law claims against it.


         Applicable Legal Principles

         A. Pleading

         Rule 8(a)(2) of the Federal Rules of Civil Procedure provides, in a general way, the applicable standard of pleading. It requires that a complaint contain "a short and plain statement of the claim showing that the pleader is entitled to relief, " Fed.R.Civ.P. 8(a)(2), "in order to give the defendant fair notice of what the claim is and the grounds upon which it rests, " Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotation marks and ellipsis omitted). Although a complaint need not contain detailed factual allegations, the "showing" contemplated by Rule 8 requires the plaintiff to do more than simply allege legal conclusions or recite the elements of a cause of action. Twombly, 550 U.S. at 555 & n.3. Thus, while a court must accept all of the factual allegations in the complaint as true, it need not credit bare legal conclusions that are unsupported by any factual underpinnings. See Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) ("While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.") .

         Moreover, to survive a motion to dismiss for failure to state a claim, the facts pleaded must allow the court to infer that the plaintiff's right to relief is plausible. Iqbal, 556 U.S. at 678. To allege a plausible right to relief, the facts pleaded must suggest liability; allegations that are merely consistent with unlawful conduct are insufficient. Id. In other words, where the facts pleaded do no more than permit the court to infer the possibility of misconduct, the complaint has not shown that the pleader is entitled to relief. Id. at 679. "Determining whether a complaint states a plausible claim for relief . . . [is] a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id.

         As the Fifth Circuit has explained: "Where the complaint is devoid of facts that would put the defendant on notice as to what conduct supports the claims, the complaint fails to satisfy the requirement of notice pleading." Anderson v. U.S. Dep't of Housing & Urban Dev., 554 F.3d 525, 528 (5th Cir. 2008). In sum, "a complaint must do more than name laws that may have been violated by the defendant; it must also allege facts regarding what conduct violated those laws. In other words, a complaint must put the defendant on notice as to what conduct is being called for defense in a court of law." Id. at 528-29.

         In considering a motion to dismiss for failure to state a claim, the court may consider documents attached to the motion if they are referred to in the plaintiff's complaint and are central to the plaintiff's claims. Scanlan v. Tex. A&M Univ., 343 F.3d 533, 536 (5th Cir. 2003). The court may also refer to matters of public record. Davis v. Bayless, 70 F.3d 367, 372 n.3 (5th Cir. 1995); Cinel v. Connick, 15 F.3d 1338, 1343 n.6 (5th Cir. 1994). This includes taking notice of pending judicial proceedings. Patterson v. Mobil Oil Corp., 335 F.3d 476, 481 n.l (5th Cir. 2003). And, it includes taking notice of governmental websites. Kitty Hawk Aircargo, Inc. v. Chao, 418 F.3d 453, 457 (5th Cir. 2005); Coleman v. Dretke, 409 F.3d 665, 667 (5th Cir. 2005).

         B. Qualified Immunity

         Qualified immunity insulates a government official from civil damages liability when the official's actions do 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). For a right to be "clearly established, " the right's contours must be "sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson v. Creighton, 483 U.S. 635, 640 (1987). Individual liability thus turns on the objective legal reasonableness of the defendant's actions assessed in light of clearly established law at the time. Hunter v. Bryant, 502 U.S. 224, 228 (1991); Anderson, 483 U.S. at 639-40. In Harlow, the court explained that a key question is "whether that law was clearly established at the time an action occurred" because " [i]f the law at that time was not clearly established, an official could not reasonably be expected to anticipate subsequent legal developments, nor could he fairly be said to 'know' that the law forbade conduct not previously identified as unlawful." 457 U.S. at 818. In assessing whether the law was clearly established at the time, the court is to consider all relevant legal authority, whether cited by the parties or not. Elder v. Holloway, 510 U.S. 510, 512 (1994). If public officials of reasonable competence could differ on the lawfulness of defendant's actions, the defendant is ...

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