United States District Court, W.D. Texas, El Paso Division
CELIA SANCHEZ and OSCAR SALAS, statutory death beneficiaries of ERIK EMMANUEL SALAS-SANCHEZ, Plaintiffs,
MANDO KENNETH GOMEZ, ALBERTO RIVERA, PAMELA SMITH, and the CITY OF EL PASO, TEXAS, Defendants.
MEMORANDUM OPINION AND ORDER DENYING DEFENDANT MANDO
KENNETH GOMEZ'S. ALBERTO RIVERA'S. AND PAMELA
SMITH'S MOTIONS TO DISMISS
R. MARTINEZ UNITED STATES DISTRICT JUDGE.
day, the Court considered the following motions:
• Defendant Mando Kenneth Gomez's "First
Amended Motion to Dismiss Plaintiffs' First Amended
Complaint" (ECF No. 23) [hereinafter "Gomez
Motion"], filed on June 29, 2017;
• Plaintiffs Celia Sanchez and Oscar Salas's
[hereinafter collectively referred to as
"Plaintiffs"] "Response to Defendant Mando
Kenneth Gomez's Rule 12(b)(6) Motion to Dismiss"
(ECF No. 32) [hereinafter "Gomez Response"], filed
on July 24, 2017;
• Defendant Gomez's "Reply to Plaintiffs'
Response" (ECF No. 39) [hereinafter "Gomez
Reply"], filed on July 31, 2017;
• Defendant Alberto Rivera's "Rule 12(b) Motion
to Dismiss" (ECF No. 20) [hereinafter "Rivera
Motion"], filed on June 28, 2017;
• Plaintiffs' "Response to Defendant Alberto
Rivera's Rule 12(b)(6) Motion to Dismiss" (ECF No.
31) [hereinafter "Rivera Response"], filed on July
• Defendant Rivera's "Reply to Plaintiffs'
Response in Support of His Rule 12(b) Motion to Dismiss"
(ECF No. 41) [hereinafter "Rivera Reply"], filed on
July 31, 2017;
• Defendant Pamela Smith's "Rule 12(b) Motion
to Dismiss" (ECF No. 19) [hereinafter "Smith
Motion"], filed on June 28, 2017;
• Plaintiffs' "Response to Defendant Pamela
Smith's Rule 12(b)(6) Motion to Dismiss" (ECF No.
30) [hereinafter "Smith Response"], filed on July
24, 2017; and
• Defendant Smith's "Reply to Plaintiffs'
Response to Defendant Smith's Rule 12(b)(6) Motion to
Dismiss" (ECF No. 40) [hereinafter "Smith
Reply"], filed on July 31, 2017,
in the above-captioned cause. For the foregoing reasons, the
Court will deny Defendant Gomez's, Rivera's, and
Smith's [hereinafter collectively referred to as
FACTUAL AND PROCEDURAL BACKGROUND
must accept the factual allegations of the complaint as true,
view them in a light most favorable to the plaintiffs, and
draw all reasonable inferences in the plaintiffs' favor.
Ramming v. United States, 281 F.3d 158,
161-62 (5th Cir. 2001). Thus, the following facts skew in
favor of Plaintiffs, and the Court presents Defendants'
version of events merely for context. To the extent there are
discrepancies between the accounts, the Court accepts
Plaintiffs' al ECF legations as true.
are the parents of decedent Erik Emmanuel Salas-Sanchez.
Pl's Am. Compl., June 15, 2017, ECF No. 17 [hereinafter
"Amended Complaint"]. At all times relevant to the
allegations in the Amended Complaint, Defendants were
employed as police officers by the City of El Paso Police
Department. Am. Compl. 2. On April 29, 2015, Erik
Salas-Sanchez was twenty-two-years-old, stood
five-foot-seven-inches tall, weighed 117 pounds, and lived
with his family in El Paso, Texas. Id. On that same
day, Defendants Gomez and Rivera responded to a police call
from Mr. Salas-Sanchez's neighbor, Ms. Romero, claiming
that Mr. Salas-Sanchez had been "present in her home
unexpectedly but left." Id. Defendants Gomez
and Rivera allege they were responding to a "burglary of
a habitation" in progress, Gomez Motion 2, but
Plaintiffs claim that Ms. Romero never told the officers that
a burglary had occurred, Amended Complaint 2-3. Plaintiffs
further allege that Ms. Romero informed the officers that she
did not want to pursue legal action against Mr. Salas-Sanchez
claiming that he was not a threat to her or her family when
he was in her home. Am. Compl. 3.
speaking with Ms. Romero, Defendants Gomez and Rivera went
across the street to Mr. Salas-Sanchez's family's
residence and began speaking with Plaintiff Celia Sanchez,
Mr. Salas-Sanchez's mother. Id. During the
conversation, Mrs. Sanchez informed the officers that her son
had been acting strange and exhibiting signs of mental
illness. Id. Around this time, Defendant Smith
arrived at the scene. Id.
claim that Mrs. Sanchez spoke calmly with the officers at her
door while simultaneously speaking with her son and telling
him "the police [were there] to talk with her, not
him." Id. at 4. Despite this, Mr. Salas-Sanchez
began telling the officers "to leave as he believed they
had no right to be at his home." Id. Plaintiffs
then claim that "[a]fter an extended period of time
speaking with Mrs. Sanchez, and frustrated by [Mr.
Salas-Sanchez's] insistence that they leave the home,
Defendant Officers pushed Mrs. Sanchez out of the way and
entered the home without consent and without a warrant."
inside the house, Plaintiffs claim that Defendant Gomez drew
his service weapon and Defendant Rivera drew his taser and
they pointed the weapons at Mr. Salas-Sanchez, at no time
announcing that he was under arrest. Id. at 5. While
the Defendants pointed their weapons at Mr. Salas-Sanchez,
his sister stood in the living room watching the encounter
with a newborn infant in her arms. Id. at 5.
although Mr. Salas-Sanchez was not resisting arrest or making
threats, Defendant Rivera deployed his taser, which struck
Mr. Salas-Sanchez but failed to lodge in his skin.
Id. at 6. Defendant Rivera claims that he deployed
his taser because Mr. Salas-Sanchez had an unidentified
object in his hand and "refused to follow verbal
commands to drop the object he was holding." Rivera Mot.
2. "Panicked" by Defendant Rivera's use of his
taser, Mr. Salas-Sanchez "moved away" from but
"did not make any aggressive movements towards Defendant
Officers." Am. Compl. 5. At that point, Defendant Gomez
fired five rounds from his service weapon at Mr.
Salas-Sanchez, striking him twice in the back and once in the
buttocks. Id. at 6. The shots proved fatal, and Mr.
Salas-Sanchez was pronounced deceased upon arriving at the
hospital. Id. No weapon was ever recovered at the
scene. Id. Defendant Gomez claims that the officers
ordered Mr. Salas-Sanchez to put down an object he was
holding, but he refused to comply. Gomez Mot. 3. He further
claims that, "eventually, the Decedent lunged at [him]
inside the home and [he] shot the Decedent."
Id. However, none of the Defendants elaborate on
what this object was, and no firearms, knife, or any other
weapon was ever found at the scene. Am. Compl. 5-6.
make two 42 U.S.C. § 1983 claims in their Amended
Complaint against Defendant Gomez, two such claims against
Defendant Rivera, and one claim against Defendant Smith.
First, Plaintiffs allege that all Defendants violated the
Fourth and Fourteenth Amendments by intentionally entering
Plaintiffs' home without a warrant or probable cause and
under no exigent circumstances [hereinafter "Unlawful
Entry Claim"]. Id. at 22. They further claim
that Defendant Rivera's use of a taser against Mr.
Salas-Sanchez was "an objectively unreasonable and
excessive amount of force" in violation of the same
amendments [hereinafter "Rivera Excessive Force
Claim"]. Id. at 23. Finally, they claim
Defendant Gomez "shot and killed [Mr. Salas-Sanchez]
when [he] posed no imminent threat of serious bodily injury
or death to Defendant Gomez or others" [hereinafter
"Gomez Excessive Force Claim"]. Id. at 7.
Plaintiffs argue that his use of deadly force against Mr.
Salas-Sanchez was "objectively unreasonable and grossly
excessive" in violation of Mr. Salas-Sanchez's
rights under the Fourth and Fourteenth Amendments.
Id. at 23.
Motion to Dismiss
to Federal Rule of Civil Procedure 12(b)(6), a court may
dismiss an action for "failure to state a claim upon
which relief can be granted." In determining whether a
plaintiff states a valid claim, a court "accept[s] all
well-pleaded facts as true and view[s] those facts in the
light most favorable to the plaintiffs." Gonzalez v.
Kay, 577 F.3d 600, 603 (5th Cir. 2009) (quoting
Dorsey v. Portfolio Equities, Inc., 540 F.3d 333,
338 (5th Cir. 2008)).
survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to 'state a
claim to relief that is plausible on its face/"
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl Corp. v. Twombly, 550 U.S. 544, 570
(2007)). "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. A pleading
that offers mere "labels and conclusions*. . . will not
do, " especially when it simply tenders "'naked
assertion[s]' devoid of'further factual
enhancement.'" Id. (second alteration in
original) (quoting Twombly, 550 U.S. at 555, 557).
Determining plausibility is a "context-specific task
that requires the reviewing court to draw on its judicial
experience and common sense." Id. at 679.
immunity shields federal and state officials from money
damages unless a plaintiff pleads facts showing (1) that the
official violated a statutory or constitutional right, and
(2) that the right was 'clearly established* at the time
of the challenged conduct." Davidson v. City of
Stafford, Tex., 848 F.3d 384, 391 (5th Cir. 2017), as
revised (Mar. 31, 2017) (quoting Ashcroft v.
al-Kidd, 563 U.S. 731, 735 (2011)). "A right is
clearly established when 'it would be clear to a
reasonable officer that his conduct was unlawful in the
situation he confronted.", Ramirez v.
Martinez, 716 F.3d 369, 375 (5th Cir. 2013) (citing
Jones v. Lowndes Cty., Miss., 678 F.3d 344, 351 (5th
Cir. 2012)). "Qualified immunity 'gives government
officials breathing room to make reasonable but mistaken
judgments/ and 'protects all but the plainly incompetent
or those who knowingly violate the law/"
Messerschmidt v. Millender, 565 U.S. 535, 546 (2012)
(quoting al-Kidd, 563 U.S. at 743).
Unlawful Entry Claim
Whether Plaintiffs State a Constitutional Claim
is a 'basic principle of Fourth Amendment law' that
searches and seizures inside a home without a warrant are
presumptively unreasonable." Payton v. New
York, 445 U.S. 573, 586 (1980). There exist only a
'"few specifically established and well-delineated
exceptions' to that general rule." City of
Ontario, Cat v. Quon, 560 U.S. 746, 760 (2010) (citing
Katz v. United States, 389 U.S. 347, 357 (1967)).
These exceptions include the resident's consent or a
combination of probable cause and exigent circumstances.
Gates v. Tex. Dep't of Protective & Regulatory
Servs., 537 F.3d 404, 420 (5th Cir. 2008) (citing
United States v. Gomez-Moreno, 479 F.3d 350, 354
(5th Cir. 2007)). Exigent circumstances include the need to
"render emergency assistance to an injured occupant or
protect an occupant from imminent injury" or when there
are "[i]mmediate safety risks to officers."
Id. at 421. "Because it is essentially a
factual determination, there is no set formula for
determining when exigent circumstances may justify a
warrantless entry." United States v. Jones, 239
F.3d 716, 720 (5th Cir. 2001).
Gomez offers a one-paragraph argument in his Motion
explaining the law regarding warrantless entry and why the
probable-cause-plus-exigent-circumstances exception should
apply in this case. Gomez Mot. 12-13. Specifically, Defendant
Gomez's argument consists of a defense-friendly
exposition of the facts followed by a conclusory statement
that"[i]t is clear" that the Unlawful Entry Claim
should be dismissed due to the presence of probable cause and
exigent circumstances. Id. at 13. Notably, Defendant
Gomez provides scant analysis of what constitutes exigent
circumstances or probable cause.
Rivera and Smith offer no legal argument in their Motions
regarding this issue. See generally Rivera Mot.;
Smith Mot. Defendants Rivera and Smith appear to rest
entirely on various iterations of their assertion that
"there is no 'well-pleaded' factual allegation
that Officer Rivera did not have probable cause or
explaining how Plaintiffs conclude exigent circumstances
did not exist." Rivera Mot. 4 (emphasis added);
Smith Mot. 4 (emphasis added). Defendant Gomez makes similar
assertions. Gomez Mot. 12. These assertions evince a
misunderstanding of both the Fourth Amendment and federal
the Supreme Court has deemed it "presumptively
unreasonable"-and therefore a violation of the Fourth
Amendment- for an officer to enter a residence uninvited and
without a warrant. See Payton, 445 U.S. at 586.
Thus, to state a plausible claim for relief, a plaintiff must
plead little more than the following facts: (1) the officer
entered the home; (2) there was no warrant; and (3) there was
no emergency or other justification for entering the home.
Plaintiffs have unquestionably pleaded those facts here.
See Am. Compl. 4 ("Defendant Officers pushed
Mrs. Sanchez out of the way and entered the home without
consent and without a warrant" when there was no
"indication that [Mr. Salas-Sanchez] posed a substantial
risk of harm or an immediate threat to the Defendant
Officers, himself, Mrs. Sanchez, or others.").
Defendants criticize Plaintiffs for pleading only
"labels and conclusions" because Plaintiffs allege
that "all Defendant officers lacked probable cause . . .
and no exigent circumstances existed."Smith Mot. 4;
Rivera Mot. 4. However, this takes Plaintiffs' statements
out of context. Before making these conclusions, Plaintiffs
describe numerous other allegations in order to support their
conclusions. See Am. Compl. 3 (Mrs. Sanchez
"informed [the officers] that her son was not under the
influence of any illicit drugs"; "Mrs. Sanchez was
cooperative in answering the officers' questions";
"[a]t no point in the conversation did the officers
inform Mrs. Sanchez that they were interested in arresting or
questioning [Mr. Salas-Sanchez]"; Mrs. Sanchez did not
"indicate that [Mr. Salas-Sanchez]'s mental health
issues posed a threat"; all of the officers knew that
"Mrs. Sanchez did not believe her son posed a threat to
anyone"; Mr. Salas-Sanchez "did not have any
weapons and did not threaten the police or anyone
else"). Thus, Defendants' accusation that
Plaintiffs' statements are merely "conclusions
masquerading as facts" (Smith Mot. 3; Rivera Mot. 3) is
Plaintiffs proffer a convincing argument that the warrantless
entry was not justified. First, Defendants do not dispute
that they did not have consent. Second, the facts as pleaded
by Plaintiffs provide only weak support for probable cause to
arrest Mr. Salas-Sanchez for his unauthorized presence in a
neighbor's home. The officers were responding to an
uncorroborated allegation by a single individual-who did not
claim to be threatened or in fear for her or her family's
safety-that Mr. Salas-Sanchez was present in her home.
even if the Court assumes probable cause, there were no
exigencies present here to justify the officers'
uninvited entry into Plaintiffs' home. At no point did
Mrs. Sanchez, who was talking calmly with officers on her
front porch, ever indicate that she or anyone in the house
was in danger. Mr. Salas-Sanchez did not have any weapons,
did not threaten officers, and posed no apparent threat to
the infant or other occupants in the house. Despite
Defendants' characterization of Mr. Salas-Sanchez's
alleged crime as a "home invasion, " see, e.g.,
Gomez Motion 5,  Mr. Salas-Sanchez was only accused of
committing a non-violent trespass by being present in his