United States District Court, N.D. Texas, Dallas Division
JESSICA HERNANDEZ, Individually and as Next Friend of AH, a minor child, Plaintiffs,
CITY OF GRAND PRAIRIE TEXAS; C. CANELOS, Individually and in his official capacity; and DOE 1, Individually and in his official capacity, Defendants.
MEMORANDUM OPINION AND ORDER
Lindsay United States District Judge.
the court is Defendants' Motion to Dismiss, filed
November 11, 2016. After careful consideration of the motion,
and brief, response, reply, pleadings, and applicable law,
the court grants in part and denies
in part Defendants' Motion to Dismiss.
Hernandez (“Hernandez”), individually, and as
next friend of AH, a minor child (collectively,
“Plaintiffs”), filed this action on August 22,
2016, against the City of Grand Prairie (the
“City”), C. Canelos (“Canelos”)
(collectively, “Defendants”), and Doe 1
(“Doe”). Plaintiffs sued Defendants and Doe
pursuant to 42 U.S.C. § 1983 for alleged violations of
the Fourth Amendment to the United States Constitution for
unreasonable search and seizure, and for the use of excessive
force. Plaintiffs also assert state law claims of
assault; negligence; intentional infliction of emotional
distress (“IIED”); negligent hiring, training,
and retention; gross negligence; and respondent superior.
Defendants have filed a motion to dismiss pursuant to Federal
Rule of Civil Procedure 12(b)(6) for failure to state a claim
upon which relief can be granted, and they contend that this
entire action should be dismissed.
contend that Plaintiffs' civil rights claim under section
1983 against the City fails because the allegations of
Plaintiffs' Original Complaint (“Complaint”)
do not allege sufficiently that Plaintiff was injured as a
result of an unconstitutional policy or custom of the City;
that the City has governmental immunity with respect to the
state law claims and that such immunity extends to Canelos
individually; that punitive damages are not recoverable
against the City; that Plaintiffs' excessive force claim
against Canelos fails because the allegations are too
conclusory and, therefore, fail to state a claim against
Canelos; that Canelos is entitled to qualified immunity on
the federal claim asserted by Plaintiffs because he did not
violate clearly established law of which a reasonable law
enforcement officer would have known.
counter that the allegations of Plaintiff's Complaint are
factually and legally sufficient to withstand a Rule 12(b)(6)
motion to dismiss. They urge the court to deny the motion to
Rule 12(b)(6) Standard
defeat a motion to dismiss filed pursuant to Rule 12(b)(6) of
the Federal Rules of Civil Procedure, a plaintiff must plead
“enough facts to state a claim to relief that is
plausible on its face.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007); Reliable
Consultants, Inc. v. Earle, 517 F.3d 738, 742 (5th Cir.
2008); Guidry v. American Pub. Life Ins. Co., 512
F.3d 177, 180 (5th Cir. 2007). A claim meets the plausibility
test “when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged. 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.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(internal citations omitted). While a complaint need not
contain detailed factual allegations, it must set forth
“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 (citation
omitted). The “[f]actual allegations of [a complaint]
must be enough to raise a right to relief above the
speculative level . . . on the assumption that all the
allegations in the complaint are true (even if doubtful in
fact).” Id. (quotation marks, citations, and
footnote omitted). When the allegations of the pleading do
not allow the court to infer more than the mere possibility
of wrongdoing, they fall short of showing that the pleader is
entitled to relief. Iqbal, 556 U.S. at 679.
reviewing a Rule 12(b)(6) motion, the court must accept all
well-pleaded facts in the complaint as true and view them in
the light most favorable to the plaintiff. Sonnier v.
State Farm Mutual Auto. Ins. Co., 509 F.3d 673, 675 (5th
Cir. 2007); Martin K. Eby Constr. Co. v. Dallas Area
Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004);
Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996).
In ruling on such a motion, the court cannot look beyond the
pleadings. Id.; Spivey v. Robertson, 197
F.3d 772, 774 (5th Cir. 1999). The pleadings include the
complaint and any documents attached to it. Collins v.
Morgan Stanley Dean Witter, 224 F.3d 496, 498-99 (5th
Cir. 2000). Likewise, “‘[d]ocuments that a
defendant attaches to a motion to dismiss are considered part
of the pleadings if they are referred to in the
plaintiff's complaint and are central to [the
plaintiff's] claims.'” Id. (quoting
Venture Assocs. Corp. v. Zenith Data Sys. Corp., 987
F.2d 429, 431 (7th Cir. 1993)). In this regard, a document
that is part of the record but not referred to in a
plaintiff's complaint and not attached to a
motion to dismiss may not be considered by the court in
ruling on a 12(b)(6) motion. Gines v. D.R. Horton,
Inc., 699 F.3d 812, 820 & n.9 (5th Cir. 2012)
(citation omitted). Further, it is well-established and
‘“clearly proper in deciding a 12(b)(6) motion
[that a court may] take judicial notice of matters of public
record.”' Funk v. Stryker Corp., 631 F.3d
777, 783 (5th Cir. 2011) (quoting Norris v. Hearst
Trust, 500 F.3d 454, 461 n.9 (5th Cir. 2007) (citing
Cinel v. Connick, 15 F.3d 1338, 1343 n.6 (5th Cir.
ultimate question in a Rule 12(b)(6) motion is whether the
complaint states a valid claim when it is viewed in the light
most favorable to the plaintiff. Great Plains Trust Co.
v. Morgan Stanley Dean Witter, 313 F.3d 305, 312 (5th
Cir. 2002). While well-pleaded facts of a complaint are to be
accepted as true, legal conclusions are not “entitled
to the assumption of truth.” Iqbal, 556 U.S.
at 679 (citation omitted). Further, a court is not to strain
to find inferences favorable to the plaintiff and is not to
accept conclusory allegations, unwarranted deductions, or
legal conclusions. R2 Invs. LDC v. Phillips, 401
F.3d 638, 642 (5th Cir. 2005) (citations omitted). The court
does not evaluate the plaintiff's likelihood of success;
instead, it only determines whether the plaintiff has pleaded
a legally cognizable claim. United States ex rel. Riley
v. St. Luke's Episcopal Hosp., 355 F.3d 370, 376
(5th Cir. 2004). Stated another way, when a court deals with
a Rule 12(b)(6) motion, its task is to test the sufficiency
of the allegations contained in the pleadings to determine
whether they are adequate enough to state a claim upon which
relief can be granted. Mann v. Adams Realty Co., 556
F.2d 288, 293 (5th Cir. 1977); Doe v. Hillsboro Indep.
Sch. Dist., 81 F.3d 1395, 1401 (5th Cir. 1996),
rev'd on other grounds, 113 F.3d 1412 (5th Cir.
1997) (en banc). Accordingly, denial of a 12(b)(6) motion has
no bearing on whether a plaintiff ultimately establishes the
necessary proof to prevail on a claim that withstands a
12(b)(6) challenge. Adams, 556 F.2d at 293.
Plaintiffs' Section 1983 Claim Against the City
The Parties' Contentions
among other things, contend that the allegations of
Plaintiffs' Complaint are too conclusory to state a claim
for municipal liability against the City for the failure to
train, discipline, or supervise its police officers with
respect to the use of force. Plaintiffs discuss municipal
liability in a general sense, that is, that a municipal may
be sued under section 1983, which is really not in dispute;
however, Plaintiffs do not address the sufficiency of their
pleadings and state that discovery will prove the existence
of a policy or custom adopted or ratified by the City in
which it failed to train, discipline, and supervise its
police officers regarding the use of force when interacting
with members of the public. This approach puts the
“cart before the horse, ” as Plaintiffs must
first get past the pleadings stage before they argue about
what the evidence will show or prove. For the reasons that
follow, the court agrees with Defendants that Plaintiffs have
failed to state a claim upon which relief can be granted
against the City.
Plaintiffs' Allegations Regarding the City
court now sets forth the allegations Plaintiffs make
regarding their section 1983 claims against the City.
Plaintiffs assert as follows:
30. Defendant City of Grand Prairie, Texas is also liable
under 42 U.S.C. § 1983 for failing to supervise and
train its police officers and for sanctioning officer
misconduct. In addition, Defendant City of Grand Prairie,
Texas has a general policy, pattern and/or practice of not
disciplining police officers for their conduct, thereby
sanctioning the police officers' actions, which amounts
to a departmental policy of sanctioning constitutional
violations. Defendant City of Grand Prairie, Texas'
failure to supervise and train its police officers, and its
willful sanctioning of constitutional violations by its
employees, constitutes gross negligence and/or deliberate and
conscious indifference to peoples' rights including the
right to be free from unreasonable search and seizure.
31. Additionally, municipalities may be held liable under 42
U.S.C. § 1983 for constitutional torts that are
committed pursuant to a policy, procedure, practice, or
custom of the municipality. Even if Defendant City of Grand
Prairie, Texas' practice of sanctioning constitutional
torts was not authorized by an officially adopted policy, the
practice may be so common and well-settled that it fairly
represents official policy. See Bd. of County Commr's
of Bryan County v. Brown, 520 U.S. 397, 404 (1997).
32. In this matter, Defendant City of Grand Prairie,
Texas' formal and informal actions in sanctioning,
overlooking, hiding and/or tacitly encouraging police
misconduct by its officers, the IAD Department, the Grand
Prairie police chief, as well as its Mayor and City Council
reflect a policy, practice custom and procedure authorizing
and allowing the use of excessive force that violated the
civil rights of Plaintiff Jessica Hernandez. Consequently,
Defendant City of Grand Prairie, Texas is liable for the harm
caused to Plaintiff Jessica Hernandez as a result of its
policies, practices customs and procedures.
33. Defendant City of Grand Prairie, Texas is liable for the
constitutional torts of Defendants C. Canelos and Doe 1
because it sanctioned the following customs, practices, and
(A) Using excessive force to carry out an otherwise routine
(B) Using excessive force when such force is not necessary or
permitted by law;
(C) Ignoring the serious need for training and supervision of
its officers in regards to the use of force;
(D) Failing to discipline those persons who are found to have
engaged in the use of excessive force upon those entrusted to
their care and/or under their control;
(E) Failing to adequately supervise and/or observe its
(F) Failing to adequately train officers regarding the
availability of alternative means of detaining persons other
than the use of force.
(G) Failing to discharge officers who have shown a pattern or
practice of using excessive force; and
(H) Adopting a practice whereby officers who are unfit for
peace officer duties, as shown by prior actions in the line
of duty, are allowed to retain their positions.
34. At the time Plaintiff Jessica Hernandez was slammed into
the wall, Defendants C. Canelos and Doe 1 were acting
pursuant to an official city policy, practice, custom and
procedure that sanctions, overlooks and/or authorizes police
officers' excessive use of force. See Monell v. New
York City Dept. of Social Servs., 436 U.S. 658, 659
35. Thus, Defendant City of Grand Prairie, Texas' policy
of sanctioning, overlooking and/or authorizing police
brutality was a direct cause of Plaintiff Jessica
Hernandez's injuries; in particular, its policy caused
Plaintiff Jessica Hernandez to be deprived of her
constitutional rights to be free from unlawful seizure and
objectively unreasonable force under the Fourth and
Fourteenth Amendments to the United States Constitution and
constitutes gross negligence and/or deliberate and conscious
indifference to the rights, safety, and welfare of others,
including Plaintiff Jessica Hernandez.
Pls.' Original Compl. ¶¶ 30-35.
Municipal Liability under 42 U.S.C. § 1983
governmental entity can be sued and subjected to monetary
damages and injunctive relief under 42 U.S.C. § 1983
only if its official policy or custom causes a person to be
deprived of a federally protected right. Board of the
Cty. Comm'rs of Bryan Cty. v. Brown, 520 U.S. 397,
403 (1997); Monell v. New York City Dep't of Soc.
Servs., 436 U.S. 658, 694 (1978). A governmental entity
cannot be liable for civil rights violations under a
theory of respondeat superior or vicarious liability.
Id.; see also Baskin v. Parker, 602 F.2d
1205, 1208 (5th Cir. 1979). Official policy is defined as:
1. A policy statement, ordinance, regulation, or decision
that is officially adopted and promulgated by the [city]
lawmaking officers or by an official to whom the lawmakers
have delegated policy-making authority; or
2. A persistent, widespread practice of [city] officials or
employees which, although not authorized by officially
adopted and promulgated policy, is so common and well-settled
as to constitute a custom that fairly represents [city]
policy. Actual or constructive knowledge of such custom must
be attributable to the governing body of the ...