United States District Court, N.D. Texas, Fort Worth Division
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
RAY, JR. UNITED STATES MAGISTRATE JUDGE
the Court are Defendant Charles Rogers's Motion to
Dismiss Plaintiff's Second Amended Complaint and Motion
to Stay Discovery (ECF No. 23), filed March 28, 2018, and
Plaintiff's Response to Defendant Charles Rogers's
Motion to Dismiss Plaintiff's Second Amended Complaint
(ECF No. 27), filed April 18, 2018. United States District
Judge Reed O'Connor referred this motion to the
undersigned for determination or recommendation by Order
entered May 1, 2018. ECF No. 29. After consideration of the
pleadings and the applicable law, the undersigned
RECOMMENDS that Judge O'Connor
GRANT Defendant Charles Rogers's Motion
to Dismiss Plaintiff's Second Amended Complaint (ECF No.
23) and DISMISS the claims as to Defendant
Charles Rogers with prejudice. The
undersigned further recommends that Judge O'Connor
DENY as moot Defendant Charles Rogers's
Motion to Stay Discovery (ECF No. 23 at15-19).
Herbert John Miller (“Miller”) brings this action
against defendants SS Hospitality Group, LLC d/b/a Landmark
Bar and Kitchen (“Landmark Bar”), Shaul Sultan
(“Sultan”), Saman Samenifallah
(“Samenifallah”), Charles Rogers
(“Rogers”), Matthew Pearce
(“Pearce”), and Charlie Owens
(“Owens”), under 42 U.S.C. § 1983. ECF No.
22. Miller's specific claims are for excessive force,
false imprisonment, assault, intentional infliction of
emotional distress, malicious prosecution, premises
liability, negligence, negligent hiring, and gross
negligence. Id. at 10-20.
is the Manager and Director of Landmark Bar. ECF No. 22 at 2.
Samenifallah is the Manager of Landmark Bar. Id.
Rogers, Owens, and Pearce (collectively, the “Police
Defendants”) are all police officers with the City of
Fort Worth. Id. at 3. Rogers and Owens were also
working off-duty for Landmark Bar at the time of the
complained-of incident. Id. at 3-4, 10.
following facts are taken from Miller's Second Amended
Complaint. On November 22, 2015, Miller entered Landmark Bar
and Kitchen in Fort Worth, Texas. Id. at 3.
According to Miller, he allegedly coughed a sip of his drink
in the direction of Rogers and another person at Landmark.
Id. at 4. Rogers was one of Landmark's security
personnel as well as an off-duty police officer of the City
of Fort Worth. Id. Miller immediately apologized to
Rogers. Id. According to Miller's complaint, he
denies having bloodshot watery eyes and slurred speech, being
unsteady, and taking any aggressive stance toward Rogers, as
the police report states. Id. at 9, 26-27.
allegedly responded, “Get the f*ck out of my
face!” Id. at 4. Rogers appeared to become
upset and began to walk toward Miller. Id. A female
employee of Landmark prevented Rogers from “getting
into Miller's face.” Id. Rogers then
ordered Miller to leave Landmark's premises. Id.
Miller left the immediate vicinity but remained in the bar to
gather his friends. Id. While waiting for his
friends, Miller attempted to apologize to Rogers again.
Id. However, during Miller's apology, Owens came
from Miller's side and shoved Miller in his torso.
Id. The shove caused Miller to stumble backwards.
began to escort Miller out of the bar. Id. Owens
allegedly pushed Miller down the steps, causing Miller to
land face down. Id. According to Miller, he was not
resisting Owens in any way. Id. While Miller was on
the ground, Rogers allegedly struck Miller several times in
his ribs and right side. Id. Miller was escorted to
Pearce's waiting police vehicle. Id. at 4-5. At
this time, Rogers was on Miller's right side.
Id. Rogers caused injury to Miller underneath his
right armpit in some way. Id. at 5.
the Police Defendants directed Miller to sit down.
Id. at 8. As Miller was in the process of sitting
down, Rogers allegedly shoved or slammed Miller onto the
ground. Id. According to Miller, he felt his back
pop. Id. Miller informed the Police Defendants that
he had bad knees. Id. Owens allegedly responded,
“I don't give a sh*t!” Id. Owens
handcuffed Miller. Id. Either Owens or Rogers held
Miller down on the ground with a knee. Id.
to Miller, Rogers was verbally abusive and asked whether
Miller had any warrants or was carrying a gun. Id.
Owens frisked Miller twice during this period. Id.
Owens then placed Miller in the back of the waiting police
vehicle. Id. Owens allegedly pushed the handcuffs
too closely together and caused Miller pain. Id.
Miller told Owens his handcuffs were too tight. Id.
then transported Miller away from the location. Id.
Miller told Pearce that his handcuffs were too tight and he
could not feel his hands. Id. When Miller arrived at
jail, he allegedly could not feel his hands as they were
turning blue. Id. at 8-9. Miller still complains of
problems with his wrists due to this incident. Id.
was placed under arrest for public intoxication by Rogers and
Pearce. Id. While Owens is not listed on the police
report, Owens states that he was involved in the arrest in an
interoffice memo dated December 4, 2015. Id. at 9,
24. Rogers and Pearce placed Miller under arrest for public
intoxication and issued him a citation. Id. at 9. No
field sobriety test, breathalyzer, or blood test was
conducted on Miller. Id. at 10. Miller appeared at
his scheduled court appearance for the citation on February
15, 2016, where he learned that his charge had been dismissed
on January 25, 2016. Id. at 9. Miller reported the
alleged misconduct to the Fort Worth Police Department.
Id. at 10.
alleges that he experienced a high level of shock and
distress from Rogers and Owens's conduct. Id. at
9. He additionally alleges that he suffered medical injuries
including “scratches, bruises, back problems, mental
anguish, and embarrassment.” Id. at 10. He
estimates that he has sustained over $24, 000 in medical
expenses from the incident. Id.
filed his Second Amended Complaint on March 26, 2018. ECF No.
22. He attached the following to his complaint as exhibits:
an interoffice memo written by Owens, a copy of the police
report for the incident completed by Pearce, Miller's
citation for public intoxication, a copy of the police report
for Miller's complaint regarding the incident, police
body camera footage of Miller's complaint the next day,
the order dismissing the citation, internet reviews of
Landmark Bar, and police dash camera video footage of
Miller's arrest. Id. Rogers filed a Motion to
Dismiss on March 28, 2018. ECF No. 23. Miller filed a
Response on April 18, 2018. ECF No. 27. Rogers did not file a
12(b)(6) of the Federal Rules of Civil Procedure permits a
party to move for dismissal of a complaint for failure to
state a claim upon which relief can be granted. The Rules
require that each claim contain “a short and plain
statement of the claim showing that the pleader is entitled
to relief . . . .” Fed.R.Civ.P. 8(a). A complaint must
include sufficient factual allegations “to raise a
right to relief above the speculative level.” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). In
considering a Rule 12(b)(6) motion, courts “take all
well-pleaded facts as true, viewing them in the light most
favorable to the plaintiff . . . and ask whether the
pleadings contain ‘enough facts to state a claim to
relief that is plausible on its face.'”
Yumilicious Franchise, L.L.C. v. Barrie, 819 F.3d
170, 174 (5th Cir. 2016) (citing Twombly, 550 U.S.
at 547). “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.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). “Threadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.”
Id. (citing Twombly, 550 U.S. at 555).
ruling on a Rule 12(b)(6) motion may rely on the complaint,
documents properly attached to the complaint or incorporated
into the complaint by reference, and matters of which a court
may take judicial notice. Randall D. Wolcott, M.D., P.A.
v. Sebelius, 635 F.3d 757, 763 (5th Cir. 2011). If
“an allegation is contradicted by the contents of an
exhibit attached to the pleading, then indeed the exhibit and
not the allegation controls.” U.S. ex rel. Riley v.
St. Luke's Episcopal Hosp., 355 F.3d 370, 377 (5th
Cir. 2004) (citing Simmons v. Peavy-Welsh Lumber
Co., 113 F.2d 812, 813 (5th Cir. 1940)). “When a
plaintiff attaches documents to the ...