United States District Court, N.D. Texas, Dallas Division
MEMORANDUM OPINION AND ORDER
J. BOYLE, UNITED STATES DISTRICT JUDGE
the Court is Defendant Texas Highway Patrol Division of the
Texas Department of Public Safety's (THP) Motion to
Dismiss (Doc. 20) in this 42 U.S.C. § 1983
(“Section 1983”) action. Having reviewed the
pleadings and applicable law, the Court
GRANTS the Motion for the following reasons.
an excessive force case arising from events in connection
with Plaintiff Otto Lee Isringhouse's arrest by several
officers. Doc. 3, Pl.'s Comp., 4-5; Doc.12, Pl.'s
Resp. Questionnaire, 1. Plaintiff alleges that five officers
were involved in the incident, two of whom, he says,
assaulted him. Doc.12, Pl.'s Resp. Questionnaire, 1.
Plaintiff contends that the two arresting officers are THP
employees. Id. at 1-2; Doc. 3, Pl.'s Comp., 3.
He presumes that the remaining officers-described as
unidentified undercover officers-were THP employees at the
time of the arrest. See Doc.12, Pl.'s Resp.
Questionnaire, 1-3, 6-9. He maintains that the two arresting
officers are not the officers that assaulted him.
Id. at 2.
alleges that two of the unidentified undercover officers used
excessive force against him during his arrest on or about
March 21, 2018. Doc. 3, Pl.'s Comp., 4-5; Doc.12,
Pl.'s Resp. Questionnaire, 1. Specifically, Plaintiff
maintains that after he got on the ground to surrender, one
unidentified undercover officer dislocated Plaintiff's
left shoulder when he aggressively pulled Plaintiff's arm
behind his back to handcuff him. Doc.12, Pl.'s Resp.
Questionnaire, 2. Further, Plaintiff maintains that after he
was handcuffed, while still lying on the ground, a different
unidentified undercover officer inflicted multiple
lacerations to the back of Plaintiff's head when the
officer jumped on his back and struck him several times with
a closed fist. Id. at 2-3.
is a pro se litigant and has brought suit against
several parties, including the Texas Highway Patrol Division
and the two individual THP officers, in their official
capacities, named in the March 22, 2018 arrest report.
Id. at 1, 5-6; Doc. 3, Pl.'s Comp., 1. Service
has not yet been completed on the two officers. Doc. 17,
Summons Returned Unexecuted as to NFN Travis; Doc. 18,
Summons Returned Unexecuted as to NFN Brown; Doc. 26, Order
to Answer; Doc. 30, Gov't Resp. Order to Answer.
THP filed its Motion to Dismiss on February 14, 2019. Doc.
20, Def.'s Mot. Dismiss. Plaintiff failed to file a
response to that Motion and the time to do so has passed,
thus, the Motion is ripe for the Court's review.
examining the issues before the Court, the Court notes that
pro se litigants are still expected to comply with
the rules of pleading and the rules of service. See Birl
v. Estelle, 660 F.2d 592, 593 (5th Cir. 1981) (per
curiam). However, parties who proceed pro se are
often given more leeway than represented parties in
correcting errors in pleadings and defects in service of
process. Roberts v. Orleans Parish Med. Staff, 2002
WL 1022488, at *5 (E.D. La. May 20, 2002) (citing Moore
v. Agency for Int'l Dev., 994 F.2d 874, 876 (D.C.
Cir. 1993)). A court must liberally construe a pro
se complaint, taking all well-pleaded allegations as
true. Johnson v. Atkins, 999 F.2d 99, 100 (5th Cir.
1993) (per curiam). Nevertheless, a pro se
plaintiff's complaint “must set forth facts giving
rise to a claim on which relief may be granted.”
12(b)(6) authorizes the court to dismiss a plaintiff's
complaint for failure to state a claim upon which relief can
be granted. Fed. R. Civ.P.12(b)(6). In considering the
motion, the court must accept all well-pleaded facts as true
and view them in the light most favorable to the plaintiff.
In re Katrina Canal Breaches Litig., 495 F.3d 191,
205 (5th Cir. 2007).
survive a motion to dismiss, plaintiffs must plead
“enough facts to state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). “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).
“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.” Id. (quoting Twombly,
550 U.S. at 556). When well-pleaded facts fail to achieve
this plausibility standard, “the complaint has
alleged-but it has not shown-that the pleader is entitled to
relief.” Id. at 679 (internal quotation marks
and alterations ...