United States District Court, S.D. Texas, Houston Division
MEMORANDUM AND OPINION
Rosenthal Chief United States District Judge
Ortiz was the passenger in a car that fled from the police in
what became a highspeed car chase. During the chase, Paul
Kohleffel, a Texas Department of Public Safety Trooper,
allegedly fired 13 gunshots into the vehicle, hitting Ms.
Ortiz. Ms. Ortiz sued in December 2016, but she did not name
Trooper Kohleffel as a defendant. She amended her complaint
in February 2017 and then asserted claims against him.
Kohleffel has moved to dismiss the claims against him,
arguing that the statute of limitations bars the claims.
(Docket Entry No. 31). Ms. Ortiz responded. (Docket Entry No.
32). Based on the pleadings, the motion and response, the
record, and the applicable law, the court grants the motion
to dismiss. Because further amendment would be futile, the
dismissal is with prejudice and without leave to amend.
reasons for this ruling are set out below.
2014, Barbara Ortiz was a passenger in a car driven by the
defendant, Alfred Singer. (Docket Entry No. 28 at ¶ 9).
Mr. Singer failed to stop at a stop sign and fled when a San
Felipe Police Department officer initiated a traffic stop.
(Id. at ¶¶ 10-11). A high-speed car chase
followed. Texas Department of Public Safety Trooper Paul
Kohleffel allegedly fired 13 gunshots at the fleeing vehicle,
hitting the passenger-side door. (Id. at
¶¶ 13-18). Bullets hit Ms. Ortiz, who was pregnant
with twins, in the head and back. One of the twins died in
utero. (Id. at ¶¶ 17, 22-24).
December 1, 2016, Ms. Ortiz sued Mr. Singer, the State of
Texas, the Texas Department of Public Safety, and the five
cities and counties and their police and sheriff's
departments involved in the car chase. (Docket Entry No.
1-2). The defendants moved to dismiss, (Docket Entry Nos. 2,
4, 5, 7, 11), and Ms. Ortiz amended her complaint. In the
amended complaint, Ms. Ortiz dropped all the defendants
except Mr. Singer and added Trooper Kohleffel. (Docket Entry
No. 28). Trooper Kohleffel now moves to dismiss on the basis
The Legal Standard Under Rule 12(b)(6)
pleading is deficient and may be dismissed under Rule
12(b)(6) if a plaintiff fails “to state a claim upon
which relief can be granted.” Fed.R.Civ.P. 12(b)(6).
Rule 12(b)(6) is read in conjunction with Rule 8(a), which
requires “a short and plain statement of the claim
showing that the pleader is entitled to relief.”
Fed.R.Civ.P. 8(a)(2). A complaint must contain “enough
facts to state a claim to relief that is plausible on its
face.” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555 (2007); Ashcroft v. Iqbal, 556 U.S.
662 (2009). Rule 8 “does not require ‘detailed
factual allegations, ' but it demands more than an
accusation.” Iqbal, 556 U.S. at 678 (citing
Twombly, 550 U.S. at 555). “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.”
Id. (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. (citing Twombly, 550
U.S. at 556).
plaintiff's complaint fails to state a claim, the court
should generally give the plaintiff a chance to amend under
Rule 15(a) before dismissing the action with prejudice,
unless it is clear that to do so would be futile. See
Great Plains Trust Co. v. Morgan Stanley Dean Witter
& Co., 313 F.3d 305, 329 (5th Cir. 2002). A
plaintiff should be denied leave to amend a complaint if the
court determines that “the proposed change clearly is
frivolous or advances a claim or defense that is legally
insufficient on its face.” 6 Charles A. Wright, Arthur
R. Miller & Mary Kay Kane, Federal Practice and Procedure
§ 1487 (2d ed. 1990); see also Ayers v.
Johnson, 247 F. App'x 534, 535 (5th Cir. 2007)
(“‘[A] district court acts within its discretion
when dismissing a motion to amend that is frivolous or
futile.'” (quoting Martin's Herend Imports,
Inc. v. Diamond & Gem Trading U.S. of Am. Co., 195
F.3d 765, 771 (5th Cir. 1999))).
Ortiz was injured on December 7, 2014. The Texas personal
injury limitations period is two years. See Moore v.
McDonald, 30 F.3d 616, 620 (5th Cir. 1994). Ms. Ortiz
filed her original petition within that two-year period on
December 21, 2016, (Docket Entry No. 1-2), but filed the
amended complaint on February 23, 2017, after limitations
expired. (Docket Entry No. 28). Ms. Ortiz concedes that she
added Trooper Kohleffel after the limitations period had
expired. She argues that the amended complaint relates back
to the original complaint.
15(c)(1) states that a claim may relate back to an ...