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Isringhouse v. Travis

United States District Court, N.D. Texas, Dallas Division

March 29, 2019

OTTO LEE ISRINGHOUSE Plaintiff,
v.
OFFICER NFN TRAVIS, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          JANE J. BOYLE, UNITED STATES DISTRICT JUDGE

         Before 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.

         I.

         BACKGROUND

         This is 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.

         Plaintiff 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.

         Plaintiff 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.

         Defendant 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.

         II.

         LEGAL STANDARD

         Before 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.” Id.

         Rule 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).

         To 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 ...


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