May v. City of Arlington

          MEMORANDUM OPINION AND ORDER

          Sam A. Lindsay, United States District Judge

         Before the court are Thedrick Andres' Motion to Dismiss Plaintiffs' First Amended Complaint (Doc. 18), filed March 31, 2017; and Defendant City of Arlington's Second Motion to Dismiss Under Rules 12(b)(1) and 12(b)(6) (Doc. 20), filed March 31, 2017. No response was filed with respect to either motion; however, the court held a hearing on the motions on October 25, 2017. After careful consideration of the motions, briefs, pleadings, arguments of counsel, and applicable law, the court grants in part and denies in part Thedrick Andres' Motion to Dismiss Plaintiffs' First Amended Complaint (Doc. 18); and grants in part and denies in part Defendant City of Arlington's Second Motion to Dismiss Under Rules 12(b)(1) and 12(b)(6) (Doc. 20).

         I. Background

         After the initial pleading was filed, several motions to dismiss were filed. As a result of the motions, certain claims were dismissed, and the court ordered Plaintiffs to replead and file an amended complaint. Specifically, to the extent set forth in its Memorandum Opinion and Order, filed February 17, 2017 (Doc. 12), the court granted Defendant City of Arlington Police Department's Motion to Dismiss under Rule 12(b)(1) and 12(b)(6), Defendant Sgt. Thedrick Andres' Motion to Dismiss Under Fed.R.Civ.P. 12(b)(6) and Alternative Request that Plaintiffs Reply to His Immunity, ^[1] and Defendant Sgt. Andres' Motion to Stay Discovery; stayed all discovery until further order of the court; denied Defendant Sgt. Thedrick Andres' Motion for Leave to Supplement Briefing on Motion to Dismiss; and dismissed with prejudice Plaintiffs' state law claim of “homicide” and the action against the Arlington Police Department. Rather than dismiss the entire action, the court ordered that Plaintiffs be allowed an opportunity to amend their pleadings. As a result of the order and an agreed extension between the parties, Plaintiffs' First Amended Original Complaint (“Amended Complaint”) was filed on March 17, 2017. Two weeks later, the referenced motions to dismiss were filed.

         In the Amended Complaint, Plaintiffs (Jordan May, Jasmine May, and Ava May as next of kin of Juan O'Neil May, decedent; and Jindia May Blunt, ^[2] individually and as representative of the estate of Juan May, deceased), assert claims against the City of Arlington (the “City”) and Thedrick Andres (“Andres”) as a result of the shooting death of Juan O'Neil May. Specifically, Plaintiffs assert claims against the City and Andres under the Fourth Amendment to the United States Constitution pursuant to 42 U.S.C. § 1983 (“§ 1983”); claims under the Texas Tort Claims Act; claims for wrongful death under Texas law; a survival claim under Texas law; a civil rights claim under § 1983 for violation of familial relationship; claims for intentional infliction of emotional distress and assault. Plaintiffs seek compensatory damages, exemplary and punitive damages, costs of court and attorney's fees.

         The City and Andres have both filed second motions to dismiss. First, the City contends that Plaintiffs failed to allege sufficiently that a policy or custom of the City caused any of them to be deprived of a constitutional right. Second, the City contends it is immune from the intentional torts under the Texas Tort Claims Act. Third, the City contends that Plaintiffs' claims for assault under § 22.01 of the Texas Penal Code and the tort of intentional infliction of emotional distress should be dismissed with prejudice for lack of jurisdiction.^[3] Fourth, the City contends that Plaintiffs' claims for exemplary and punitive damages under federal and state law should be dismissed with prejudice for lack of jurisdiction. Finally, the City contends that Jindia Blunt, sister of Juan May, does not have standing to bring any claims in her individual capacity and that any claim in such capacity should be dismissed for lack of jurisdiction.

         Andres contends that Plaintiffs' Amended Complaint does not address the shortcomings previously identified by the court and that it does not provide specific allegations to defeat Andres's qualified immunity defense. Andres contends that Plaintiffs' Fourth Amendment claim for excessive force should be dismissed because it does not meet the pleading requirements set forth in Twombly and Iqbal. Andres also contends that Plaintiffs' claims under Texas Tort Claims Act are barred against him because they also chose to sue the City and their claims are barred by an immediate, irrevocable statutory election pursuant to Texas Civil Practice and Remedies Code, § 101.106. He further contends that the claims for intentional infliction of emotional distress fail because it is a “gap-filler” and there is no gap to fill in this case. He also contends that the § 1983 claim for violation of familial relationship should be dismissed. Andres requests that Plaintiffs be required to amend and replead, and address Andres's qualified immunity defense by submitting a Rule 7 Reply.

         As the court stated earlier, Plaintiffs filed no response to the motions to dismiss; however, the hearing held on October 25, 2017, assists the court in ruling on the motions. The court will first address the City's motion to dismiss, and then it will proceed to address Andres's motion.

         II. The City's Motion to Dismiss

         A. Municipal Liability Under 42 U.S.C. § 1983

         A 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 [city] or to an official to whom that body had delegated policy-making authority.

Webster v. City of Houston, 735 F.2d 838, 841 (5th Cir. 1984) (en banc); Bennett v. City of Slidell, 735 F.2d 861, 862 (5th Cir. 1984) (en banc). For purposes of a motion to dismiss under Rule 12(b)(6), a plaintiff must plead facts from which the court can reasonably infer that the “challenged policy was promulgated or ratified by the city's policymaker.” Groden v. City of Dallas, Texas, 826 F.3d 280, 285 (5th Cir. 2016). “[C]ourts should not grant motions to dismiss for [the] fail[ure] to plead the specific identity of the policymaker.” Id. (citing Johnson v. City of Shelby, Miss., 135 S.Ct. 346 (2014)).

         The ultimate question in deciding the sufficiency of a complaint is whether a person has alleged facts to show that a policymaker promulgated or ratified an unconstitutional policy that resulted in injury to him or her. Although a plaintiff need not offer proof of his or her allegations at the pleading stage, a plaintiff “must plead facts that plausibly support each element of § 1983 municipal liability.” Peña v. City of Rio Grande, Tex., 879 F.3d 613, 621 (5th Cir. 2018) (citation omitted). In other words, a plaintiff must set forth facts, or those from which the court can reasonably infer, that: “(1) an official policy; (2) promulgated by the municipal policymaker; (3) was the moving force behind the violation of a constitutional right.” Hicks-Fields v. Harris Cty., 860 F.3d 803, 808 (5th Cir. 2017) (footnote and citations omitted). “Official municipal policy includes the decisions of a government's lawmakers, the acts of its policymaking officials, and practices so persistent and widespread as to practically have the force of law.” Connick v. Thompson, 563 U.S. 51, 61 (2011) (citations omitted).

         To defeat “a motion to dismiss, a complaint's ‘description of a policy or custom and its relationship to the underlying constitutional violation . . . cannot be conclusory; it must contain specific facts.'” Balle v. Nueces Cty. Tex., 690 F. App'x 847, 852 (5th Cir. 2017) (quoting Spiller v. City of Tex. City Police Dep't, 130 F.3d 162, 167 (5th Cir. 1997)). In other words, the pleadings are adequate with respect to a section 1983 claim against a city when they set forth “specific factual allegations that allow a court to reasonably infer that a policy or practice exists and that the alleged policy or practice was the moving force” for the constitutional violation asserted. Id. (citation omitted). Although Spiller is over twenty years old, its holding that allegations of an allegedly unconstitutional policy or custom of a local government may not be stated conclusorily but must set forth specific facts is still solid law, and it was recently cited with approval by the Fifth Circuit in Peña, 879 F.3d at 622. If a complaint does not meet the standard set forth in Spiller, an action cannot “proceed beyond the pleading stage.” Peña, 879 F.3d at 622.

         B. Rule 12(b)(6) - Failure to State a Claim

         To 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.

         In 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. 1994)).

         The 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.

         C. Discussion

         1.Plaintiffs' Section 1983 Claims Against the City

         The City contends that Plaintiffs' pleadings are too conclusory and speculative to state a claim upon which relief can be granted. The essence of the City's contentions is that sufficient facts have not been pleaded in the Amended Complaint as required by Supreme Court and Fifth Circuit authority for this court to reasonably infer that a City policy or custom was the moving force behind any constitutional injury Plaintiffs may have suffered.

         In resolving this issue, the court now sets forth the relevant allegations of the Amended Complaint regarding municipal liability. Plaintiffs allege as follows:

22. This incident [the shooting of Juan May], coupled with the recent firing of Arlington Police Officer Brad Miller, suggests that there is a pattern of misconduct being engaged in by certain law enforcement officers in the City of Arlington Police Department that seek to deprive a segment of our community of their constitutional rights. This intentional and reckless disregard for human life lies far below the stated brand of “excellent service, ” suggested by the City of Arlington Police Department.

. . .

24. As a result of the pre-existing customs, policies, patterns and/or practices of such abuses by members of Defendant, CITY OF ARLINGTON Police Department, decedent and Plaintiffs were subjected to the violation of their constitutional rights as alleged herein.

. . .

SECOND CAUSE OF ACTION (Municipal Liability) (42 U.S.C. § 1983)

53. Plaintiff re-alleges and incorporates by reference herein paragraphs 1 through 52 of this complaint.

54. Plaintiffs plead that Juan May's constitutional rights were violated when he was shot and killed by Officer Andres. The Plaintiffs' injuries directly resulted from Officer Andres' excessive use of deadly force in shooting and killing Juan May.

55. The City of Arlington is also liable under 42 U.S.C. § 1983 for failing to supervise and train its police officers, and for overlooking and covering up officer misconduct. In addition, the City had a general policy, pattern and/or practice of not disciplining police officers for their conduct, thereby sanctioning the police officers' actions, which amounted to a departmental policy of overlooking constitutional violations. The City's failure to supervise and train its police officers, and the City's willful blindness towards the constitutional violations of its employees, constitute gross negligence and/or deliberate and conscious indifference to people's rights including the ...