from the United States District Court for the Eastern
District of Texas
DAVIS, JONES, and SOUTHWICK, Circuit Judges.
H. SOUTHWICK, Circuit Judge:
Quinn originally sued individual police officers and the City
of McKinney, Texas, in state court for claims arising from
the execution of a search warrant on his home. The state
court dismissed Quinn's claims against the officers and
instructed him to replead to clarify whether he intended to
assert federal claims. Quinn amended his petition to assert
new claims under 42 U.S.C. §§ 1983 and 1985. The
defendants removed the case to the district court, which
later denied Quinn's motion to remand. The district court
then dismissed Quinn's remaining claims against the
officers and the City and denied his claim for punitive
damages. We AFFIRM.
FACTUAL AND PROCEDURAL BACKGROUND
facts underlying the search of Quinn's home are disputed.
According to Quinn, the City of McKinney's Special
Weapons and Tactics ("SWAT") Team forcibly entered
his home around 12:06 a.m. on August 4, 2006, to execute a
routine search warrant. Quinn's adult son Brian, who also
lived in the home, was the subject of the warrant. Quinn
argues the police had multiple opportunities to detain Brian
in the days prior to the search but chose instead to execute
a "violent SWAT raid in the middle of the night."
the officers forcibly entered the home without first knocking
or identifying themselves. The officers were dressed in dark,
paramilitary uniforms, with no visible paraphernalia
identifying themselves as police. They carried various
military-grade weapons, including assault weapons and stun
grenades, which are designed to temporarily blind, deafen, or
otherwise incapacitate the subjects of a raid. The officers
detonated at least two grenades, one of which "blew a
hole in a wall and set [Quinn's] house on fire."
home was entirely dark at the time of the search, and Quinn
was in his bedroom with the doors closed and latched. After
hearing the commotion, he loudly asked the officers to
identify themselves but got no response. At that point, Quinn
retrieved a licensed handgun from his bedside table and moved
to the center of the room. "At all times, " Quinn
argues, the "handgun was pointed toward the floor with
its safety mechanism fully engaged[.]" Officer Jesus
Guerrero, on the other hand, argues that Quinn pointed the
gun at him. In any event, Guerrero fired his weapon through
the closed door, and one bullet struck Quinn's right
hand. Quinn then fell to the floor, and Officer Rex Redden
kicked in the bedroom door. At no time during this
interaction did the officers ask Quinn to drop his gun or
otherwise provide a warning.
believes the SWAT Team executed its raid in a violent manner
"to exact retribution for [his] earlier filing of a
civil-rights suit against the police[.]" Based on the
officers' conduct, he argues "the raid and the
shooting were intentional, tortious acts of terrorism
conducted in bad faith, intentionally, and with malice."
15, 2008, Quinn sued the officers and the City of McKinney in
state court, alleging assault and battery against Guerrero;
assault against the officers using the stun grenades;
intentional infliction of extreme mental anguish, conspiracy,
gross negligence, and negligence per se against the officers;
and negligence against both the officers and the City. He
also sought punitive damages and attorneys' fees. The
defendants filed special exceptions to the original petition,
seeking clarification as to whether Quinn was asserting any
federal claims. The City also moved to dismiss the claims
against the officers under Texas Civil Practice and Remedies
Code § 101.106(e). The state court granted the motion to
dismiss the officers. Quinn then filed a motion for rehearing
or reconsideration, which the state court denied. The court
also sustained the defendants' special exceptions,
instructing Quinn to replead to the extent he was asserting a
federal cause of action.
amended his original petition on March 23, 2009, to include
causes of action under 42 U.S.C. §§ 1983 and 1985.
He alleged violations of various constitutional rights,
including the Fourth Amendment right to be free from
unreasonable searches and seizures. Despite the state
court's dismissal of the defendant officers, Quinn's
amended petition also reasserted common-law claims against
defendants removed the case to federal court on April 10,
2009, under 28 U.S.C. § 1441(a). Quinn moved to remand
the case to state court, arguing that his original petition
"sets out federal-law allegations in clear
language" by repeatedly using phrases unique to federal
law - like "excessive force." He thus believes the
defendants' removal after the filing of his amended
complaint was untimely. The magistrate judge recommended the
motion be denied because Quinn did not affirmatively allege
federal claims until his petition was amended. Despite being
advised to do so, Quinn did not file objections to the report
and recommendation ("R&R"), which the district
court adopted in full on December 22, 2009.
February 23, 2010, the district court stayed this case
pending the outcome of parallel criminal proceedings against
Quinn on charges of assault against a public servant and
possession of a controlled substance. The jury acquitted
Quinn of the assault but found him guilty of possession of
cocaine, which police found locked in a safe in Quinn's
bedroom during the raid. Quinn v. State, No.
05-12-00049-CR, 2013 WL 2152641 (Tex. App.-Dallas May 17,
2013, pet. ref'd). The stay was lifted on April 11, 2014.
After amending his complaint in 2009 and 2010, Quinn amended
his complaint a third and final time on April 17, 2014. In
his third amended complaint (the live complaint here), Quinn
removed the names of defendant officers Vincent Roberts,
Aaron Howell, Barry Eaves, Drew Caudell, Jesse Garcia, and
officers then filed motions to dismiss on various grounds
under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).
The City also moved to dismiss the claims against it under
Rules 12(b)(1) and 12(b)(6). In August 2016, the magistrate
judge recommended granting the officers' motion to
dismiss based on the statute of limitations and denying their
other motions as moot. Five days later, the magistrate judge
recommended granting the City's motion to dismiss also.
Quinn objected and moved for reconsideration of the state
court's 2008 dismissal of the intentional-tort claims
against the officers. The district court adopted the
magistrate judge's rulings and denied Quinn's motion
for reconsideration as untimely. Quinn timely appealed.
Officers Roberts, Howell, Eaves, Caudell, Garcia, and Sun
have moved to be dismissed from the appeal because Quinn
failed to name them in his third amended complaint. Quinn
opposes the motion, arguing that he removed some names from
the case caption to "streamline" the litigation but
fully intended to press his intentional-tort claims against
all defendants. A panel of this court ordered the motion be
carried with the case.
alleges five points of error on appeal. First, he argues the
district court erred by denying the motion to remand because
his original petition included factual allegations sufficient
to invoke federal jurisdiction. As a result, he argues the
defendants' removal several months later was untimely.
Second, he argues the state court erred in dismissing his
intentional-tort claims against the officers; in turn, he
alleges the district court erred by not reversing that
dismissal. Third, he argues the district court erred by
dismissing his federal claims against the officers on
limitations grounds. In support, he argues the state
court's dismissal of the officers was an interlocutory
decision that did not fully remove the officers from the
case. Fourth, he argues the district court erred by
dismissing his claims against the City, which he believes are
viable under state and federal law. Finally, Quinn argues he
is entitled to punitive damages. We discuss each issue in
Denial of Quinn's Motion to Remand
we review de novo the district court's denial of
a motion to remand. In re Hot-Hed Inc., 477 F.3d
320, 323 (5th Cir. 2007) (per curiam). Nonetheless, a party
is not entitled de novo review after failing to file
written objections to the magistrate judge's R&R
within a certain period of time. Rodriguez v. Bowen,
857 F.2d 275, 276-77 (5th Cir. 1988). To invoke the bar, the
magistrate judge "must specifically advise the parties
that objections must be so filed." Id. at 277.
If the parties then fail to file objections, we review only
for plain error. Douglass v. United Servs. Auto.
Ass'n, 79 F.3d 1415, 1428 (5th Cir. 1996) (en banc),
superseded on other grounds by 28 U.S.C. §
636(b)(1). Here, the magistrate judge's R&R on the
remand issue contained a warning about the consequences of
failing to object in writing. Despite the caution, Quinn
never filed objections. We thus review the remand issue for
plain error. See Thomas v. Arn, 474 U.S. 140, 148
succeed under plain-error review, Quinn must show (1) an
error; (2) that is plain or obvious; (3) that affects his
substantial rights. See United States v.
Escalante-Reyes, 689 F.3d 415, 419 (5th Cir. 2012) (en
banc). To establish an effect on his substantial rights,
Quinn must show the outcome of the proceedings would have
been different had the district court decided the issue the
other way. See Puckett v. United States, 556 U.S.
129, 135 (2009). If the first three factors are satisfied, we
have discretion to correct ...