United States District Court, N.D. Texas, Dallas Division
JORDAN MAY, JASMINE MAY, and AVA MAY as next of kin of Juan O'Neil May, decedent; and JINDIA MAY BLUNT, individually and as representative of the estate of Juan O'Neil May, deceased, Plaintiffs,
CITY OF ARLINGTON, TEXAS, a municipality; and THEDRICK ANDRES, individually and as a Police Officer for the City of Arlington, Defendants.
MEMORANDUM OPINION AND ORDER
Lindsay, United States District Judge
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).
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,  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.
Amended Complaint, Plaintiffs (Jordan May, Jasmine May, and
Ava May as next of kin of Juan O'Neil May, decedent; and
Jindia May Blunt,  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.
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. 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
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.
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.
The City's Motion to Dismiss
Municipal Liability Under 42 U.S.C. §
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
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)).
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).
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.
Rule 12(b)(6) - Failure to State a Claim
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.
Section 1983 Claims Against the City
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.
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 ...