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 BLOUNT, 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 in his official capacity as a Police Officer for the CITY OF ARLINGTON, Defendants.
SUPPLEMENTAL MEMORANDUM OPINION AND ORDER
Lindsay United States District Judge
Memorandum Opinion and Order (Doc. 38 at 26-27), filed March
20, 2019, the court stated and ordered the following
regarding the status of Plaintiffs' purported claims
under the Texas Wrongful Death and Survival Statutes:
Except for Jindia Blount attempting to assert claims in her
individual capacity, the court is not certain of the status
of these claims regarding other Plaintiffs, as it is not
aware of any motion or request to dismiss these claims
specifically. A person is allowed under § 1983 to seek
damages under these statutes. [Rhyne v. Henderson
Cty., 973 F.2d 386, 390-91 (5th Cir. 1992)] (citations
omitted); Pluet v. Frasier, 355 F.3d 381, 383 (5th
Cir. 2004) (citation omitted). The court, however, does not
recall them being addressed sufficiently in the context of
§ 1983. Both Defendants urge the court to dismiss all of
the federal claims, yet there is not sufficient
discussion of the dismissal of the state-law claims under the
Wrongful Death and Survival Statutes. The parties are to
clarify in writing the status of these claims. Any
explanation or clarification may not exceed
seven pages, excluding the signature page,
and the clarification must be filed by March 27,
2019. (footnote omitted).
March 25, 2019, the court issued a Supplemental Order (Doc.
40) that instructed “the parties to provide authority
to support their respective positions regarding the status of
the state law claims.” Defendants City of Arlington
(“the City”) and Thedrick Andres
(“Andres”) complied with the court's
instructions (Docs. 41, 42) and filed their clarifications
with the court on March 27, 2019. Plaintiffs did not
file a clarification as ordered and did not seek an
extension of the court's deadline to file a
clarification. After considering the clarifications, the
court, for the reasons stated herein and those stated by
Defendants, agrees that no state law claims remain.
bases of Plaintiffs' claims are that Andres used
excessive and deadly force when he shot Juan O'Neil May
(“May”) on June 21, 2014, and wrongfully caused
his death. They filed an action pursuant to 42 U.S.C. §
1983,  alleging that Andres's conduct
violated May's rights under the Fourth Amendment to the
United States Constitution and that an unconstitutional
policy or custom of the City was the moving force behind
previously noted by the court, a plaintiff's claim for
excessive force must be determined according to Fourth
Amendment standards because “all claims that
law enforcement officers have used excessive force - deadly
or not - in the course of an arrest, investigatory stop, or
other ‘seizure' of a free citizen should be
analyzed under the Fourth Amendment and its
‘reasonableness' standard, rather than under a
‘substantive due process' approach.”
Graham v. Connor, 490 U.S. 386, 395 (1989) (emphasis
in original). Thus, it is unmistakable that Plaintiffs relied
on a federal statute to assert a wrongful act.
the Texas Wrongful Death Statute (“TWDS”), Tex.
Civ. Prac. & Rem. Code Ann. § 71.002(b), a person
who causes the death of another person because of his or her
“wrongful act, neglect, carelessness, unskillfulness,
or default” is liable for damages. The Texas Survival
Statute (“TSS”), Tex. Civ. Prac. & Rem. Code
Ann. § 71.021(b), allows a personal injury survival
action “in favor of the heirs, legal representatives,
and estate of the injured person.” The court is
convinced that Plaintiffs use the TWDS and TSS as mechanisms
or procedural vehicles to seek the recovery of damages for an
action brought pursuant to § 1983.
under the TWDS and TSS are derivative actions. Russell v.
Ingersoll-Rand Co., 841 S.W.2d 343, 345 (Tex. 1992). In
other words, actions under these two statutes are
“wholly derivative” of the decedent's rights,
and the actionable wrong is that suffered by the decedent
before his or her death. Id. Plaintiffs specifically
seek recovery of damages under these statutes in the context
of § 1983 pursuant to paragraphs 28, and 81-86 of
Plaintiffs' Second Amended Original Complaint (Doc. 25).
Accordingly, the court does not view the alleged claims made
pursuant to the TWDS and TSS as separate or independent
causes of action. As the court earlier ruled that Plaintiffs
have failed to state any federal claims under § 1983
upon which relief can be granted against Defendants,
independent claims can exist under the TWDS or TSS.
Accordingly, both Defendants are entitled to dismissal with
prejudice of these purported state law claims.
reasons herein stated, the court dismisses with
prejudice any claims that Plaintiffs' assert or
attempt to assert as an independent or separate action under
the TWDS or TSS. Based on this ruling and three earlier
opinions, the court will issue judgment in favor of
Defendants by separate document, as required by Federal Rule
of Civil Procedure 58.
is so ordered
 This is a federal statute that allows
a person to bring a federal cause of action if he or she has
been deprived of a right guaranteed under the United States
Constitution, or other federal law, by a person acting under
color of state law.
 The court earlier raised some concerns
regarding Plaintiffs' alleged claim under § 1983 for
deprivation of a familial relationship, and instructed
Plaintiffs to address this alleged claim and include it in
the amended pleading if they determined it to be viable. The
court found no reference to this alleged claim in
Plaintiffs' Second Amended Original Complaint, and,
therefore, it is not before the court. In any event, as the
court has held that Plaintiffs failed to assert federal
claims upon which relief could be granted against ...