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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 Defendants SS Hospitality Group, Shaul Sultan, and Saman Samenifallah's Motion to Dismiss Plaintiff's Second Amended Complaint and Brief in Support (ECF No. 26), filed April 16, 2018; Plaintiff's Response to Defendants SS Hospitality Group, Shaul Sultan, and Saman Samenifallah's Motion to Dismiss Plaintiff's Second Amended Complaint (ECF No. 30), filed May 7, 2018; and Defendants SS Hospitality Group, Shaul Sultan, and Saman Samenifallah's Reply in Further Support of Their 12(b)(6) Motion to Dismiss and Supporting Brief (ECF No. 34), filed May 21, 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 Defendants SS Hospitality Group, Shaul Sultan, and Saman Samenifallah's Motion to Dismiss Plaintiff's Second Amended Complaint and Brief in Support (ECF No. 26) and DISMISS the claims against such Defendants with prejudice.

         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 of misconduct the next day, the order dismissing Miller's citation, and internet reviews of Landmark Bar, and police dash camera footage of Miller's arrest. Id. Landmark, Sultan, and Samenifallah (collectively, the “SS Hospitality Defendants”) ...


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