United States District Court, N.D. Texas, Fort Worth Division
DAVID B. COLLIE, Plaintiff,
HUGO BARRON, ET AL., Defendants.
MEMORANDUM OPINION AND ORDER.
MCBRYDE STATES DISTRICT UNITED STATES DISTRICT JUDGE.
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"), 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.
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. 30. Plaintiff alleges:
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. 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
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
of the Motions
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.
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
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
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.
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
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