United States District Court, S.D. Texas, Houston Division
MEMORANDUM OPINION & ORDER
H. Miller United States District Judge.
before the court is a memorandum and recommendation filed by
Magistrate Judge Nancy K. Johnson (“M&R”).
Dkt. 16. The M&R recommends granting in part and denying
in part defendant City of Waller's (“City”)
motion to dismiss (Dkt. 10) and denying the City's
earlier motion to dismiss as moot (Dkt. 4). Id. The
City filed objections to the M&R. Dkt. 17. After
considering the M&R, the record, the objections, and the
applicable law, the court is of the opinion that the
objections should be OVERRULED. The court ADOPTS IN FULL the
a civil rights case against the City and a police officer. 42
U.S.C. § 1983. On October 6, 2014, the City of Waller
Police Department dispatched defendant Officer Adolphus
Cannon (“Officer Cannon”) to a block party near
the Brookside Meadows Apartments. Dkt. 7. There, plaintiff
Robert Hall, a resident of Brookside Meadows Apartments,
filmed Officer Cannon's efforts to disperse the crowd.
Id. Hall alleges that Officer Cannon approached him
without provocation, sprayed him with pepper spray, shoved
him to the ground, and handcuffed him. Id.
Hall's film includes footage of the pepper spraying
alleges that Officer Cannon pushed him against a police car,
took Hall's wallet, and placed him in the back of the
police car for over an hour. Id. Hall alleges that
Officer Cannon offered to release Hall on the condition that
Hall would not distribute the video of Officer Cannon pepper
spraying him. Id.
October 6, 2016, Hall filed a petition in state court against
the City and Officer Cannon. Dkt. 2-1. That action was
removed to federal court. Dkt. 2. On November 10, 2016, the
City filed its first motion to dismiss. Dkt. 4. On December
13, 2016, Hall amended the complaint, rendering the
City's earlier motion to dismiss moot. Dkt. 7. On
December 19, 2016, the court referred all pretrial management
of this case to Judge Johnson pursuant to 28 U.S.C. §
636(b)(1)(A) and (B). Dkt. 9. On December 19, 2016, the City
filed a motion to dismiss the live complaint. Dkt. 10. On
June 5, 2017, Judge Johnson's M&R recommended that
the City's motion be granted in part and denied in part
and that the City's earlier motion to dismiss (Dkt. 4) be
denied as moot. Dkt. 16.
Johnson recommends that (1) the court should order Hall to
serve Officer Cannon with service of process within thirty
days of the court's order adopting the M&R or else
the court should dismiss him from the case; (2) the court
should allow Hall leave to file an amended complaint to
correct the pleading deficiencies as it relates to his
allegation of “a lack of a city policy to evaluate the
qualifications, training, demeanor and fitness-for-duty of
its police officers.” Id. at 11. Judge Johnson
also recommends that two of Hall's allegations should
survive the City's motion to dismiss: that the City
failed to train its officers on how to disperse large crowds
and the proper use of pepper spray. Id. On June 16,
2017, the City filed objections to the M&R, seeking
dismissal of all of Hall's claims against the City. Dkt.
Reviewing a M&R
dispositive matters, the court “determine(s) de novo
any part of the magistrate judge's disposition that has
been properly objected to.” See Fed. R. Civ.
P. 72(b)(3). “The district judge may accept, reject, or
modify the recommended disposition; receive further evidence;
or return the matter to the magistrate judge with
instructions.” Id. “When no timely
objection is filed, the court need only satisfy itself that
there is no clear error on the face of the record in order to
accept the recommendation.” Fed.R.Civ.P. 72(b),
Advisory Comm. Note (1983). For nondispositive matters, the
court may set aside the magistrate judge's order only to
the extent that it is “clearly erroneous or contrary to
law.” Fed.R.Civ.P. 72(a); see also 28 U.S.C.
§ 636(b)(1)(A). The court must review factual findings
under a clearly erroneous standard and legal conclusions de
novo. Moore v. Ford Motor Co., 755 F.3d 802, 806
(5th Cir. 2014).
the court will review all issues to which objections were
filed de novo and will consider whether there is any clear
error with regard to portions of the M&R to which no
party objected and to the City's nondispositive objection
to granting Hall leave to amend his complaint.
Motion to Dismiss
Rule of Civil Procedure 8(a)(2) requires only ‘a short
and plain statement of the claim showing that the pleader is
entitled to relief.'” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1964-65 (2007).
In considering a Rule 12(b)(6) motion to dismiss a complaint,
courts generally must accept the factual allegations
contained in the complaint as true. Kaiser Aluminum &
Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d
1045, 1050 (5th Cir. 1982). The court does not look beyond
the face of the pleadings in determining whether the
plaintiff has stated a claim under Rule 12(b)(6). Spivey
v. Robertson, 197 F.3d 772, 774 (5th Cir. 1999).
“[A] complaint attacked by a Rule 12(b)(6) motion to
dismiss does not need detailed factual allegations, [but] a
plaintiff's obligation to provide the ‘grounds'
of his ‘entitle[ment] to relief' requires more than
labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.”
Twombly, 550 U.S. at 555 (citations omitted). The
“[f]actual allegations must be enough to raise a right
to relief above the speculative level.” Id.
The supporting facts must be plausible-enough to raise a
reasonable expectation that discovery will reveal further
supporting evidence. Id. at 556.
as the complaint, taken as a whole, gives rise to a plausible
inference of actionable conduct, plaintiff's claims
should not be dismissed. Id. at 555-56. Evaluating a
motion to dismiss is a “context-specific task that
requires the reviewing court to draw ...