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Miller v. SS Hospitality Group, LLC

United States District Court, N.D. Texas, Fort Worth Division

June 5, 2018

HERBERT JOHN MILLER, Plaintiff,
v.
SS HOSPITALITY GROUP, LLC, d/b/a LANDMARK BAR AND KITCHEN, et al., Defendants.

          FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

          HAL R. RAY, JR. UNITED STATES MAGISTRATE JUDGE

         Before 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).

         BACKGROUND

         Plaintiff 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.

         Sultan 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.

         The 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.

         Rogers 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. Id.

         Owens 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.

         One of 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.

         According 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.

         Pearce 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. at 9.

         Miller 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.

         Miller 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.

         Miller 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 Reply.

         LEGAL STANDARD

         Rule 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).

         A court 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 ...


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