United States District Court, S.D. Texas, Galveston Division
BRIAN MILLER Plaintiff.
CITY OF TEXAS CITY, TEXAS; et al. Defendants.
MEMORANDUM AND RECOMMENDATION
M . EDISON UN ITED STATES M AGISTRATE JUDGE.
before the Court is City of Texas City's Motion to
Dismiss Plaintiffs First Amended Complaint ("Motion to
Dismiss"). Dkt. 15. This motion was referred to this
Court by United States District Judge George C. Hanks, Jr.
See Dkt. 25. After careful consideration of the
pleadings and applicable law, the Court
RECOMMENDS that the Motion to Dismiss be
evening of October 8, 2017, Sergeant B. Macik
("Macik") and Officer R. Dricks
("Dricks") of the Texas City Police Department
arrested Plaintiff Brian Miller ("Miller") after a
car chase. The pursuit ended when Miller parked his car in
his father's driveway, exited the vehicle, and lay face
down on the ground. Dricks jumped on top of Miller and
clubbed Miller on the head with the butt of his loaded gun,
causing Miller to moan in pain. Dricks clubbed Miller two
additional times in the presence of Macik, resulting in
Miller suffering a broken jaw and concussion. While Miller
writhed in agony on the pavement, Macik tased him, causing
filed this lawsuit against Texas City, Macik, and Dricks,
asserting claims under 42 U.S.C. § 1983 for violations
of his constitutional rights. Specifically, Miller asserts
that "[t]here is a pattern and practice of excessive
force and condoning excessive force." Id. at 5.
Miller also argues that Texas City has failed to train
officers on how to properly use force on individuals during
an arrest. "This pattern and practice," Miller
asserts, "was ratified by Texas City Police Department
when the department determined that the officers' actions
were consistent with department policy." Dkt. 14 at 4.
response to the Complaint, Texas City seeks the dismissal of
all of Miller's claims.
Rule of Civil Procedure 12(b)(6) allows parties to seek
dismissal of a lawsuit for failure to state a claim upon
which relief may be granted. A motion to dismiss under Rule
12(b)(6) tests the sufficiency of the complaint against the
legal standard set forth in Rule 8, requiring "a short
and plain statement of the claim showing that the pleader is
entitled to relief." FED. R. Civ. P. 8(a)(2). "To
survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to 'state a
claim to relief that is plausible on its face.'"
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp., v. Twombly, 550 U.S. 544, 570
(2007)). "Determining whether a complaint states a
plausible claim for relief [is] ... a context-specific task
that requires the reviewing court to draw on its judicial
experience and common sense." Iqbal, 556 U.S.
at 679 (citation omitted).
conducting its inquiry, the Court "accept[s] all
well-pleaded facts as true and view[s] those facts in the
light most favorable to the plaintiff." Bustos v.
Martini Club, Inc., 599 F.3d 458, 461 (5th Cir. 2010)
(internal quotation marks and citation omitted). "[A]
well-pleaded complaint may proceed even if it strikes a savvy
judge that actual proof of [the alleged] facts is improbable,
and that a recovery is very remote and unlikely."
Twombly, 550U.Sat556 (internal quotation marks and
citation omitted). It is important to highlight that a motion
to dismiss under Rule 12(b)(6) is "viewed with disfavor
and is rarely granted." Harrington v. State Farm
& Cas. Co., 563 F.3d 141, 147 (5th Cir. 2009)
(internal quotation marks and citation omitted).
deciding a motion to dismiss for failure to state a claim,
courts must limit their inquiry to the facts stated in the
complaint and the documents either attached to or
incorporated in the complaint." Lovelace v. Software
Spectrum Inc., 78 F.3d 1015, 1017 (5th Cir.
1983 provides a private cause of action against those who,
under color of law, deprive a citizen of the United States
of' any rights, privileges, or immunities secured by the
Constitution and laws.'" Goodman v. Harris
Cty., 571 F.3d 388, 394-95 (5th Cir. 2009) (quoting 42
U.S.C. § 1983). It is well established that
"municipalities cannot [b]e held liable on a
respondeat superior [or vicarious liability] basis,
i.e., a municipality cannot be held liable simply because one
of its employees violated a person's federal
rights." Vanskiver v. City of Seabrook, No.
H-17-3365, 2018 WL 560231, at *2 (S.D. Tex. Jan. 24, 2018)
(citation omitted). See also Monell v. Dept. of Soc.
Servs. of the City of N.Y., 436 U.S. 658, 694 (1978)
(''[A] local government may not be sued under
[Section] 1983 for an injury inflicted solely by its
employees or agents."). As the Fifth Circuit has
explained: "[a] municipality is almost never liable for
an isolated unconstitutional act on the part of an employee;
it is liable only for acts directly attributable to it
'through some official action or imprimatur.'"
Peterson v. City of Fort Worth, 588 F.3d 838, 847
(5th Cir. 2009) (quoting Piotrowski v. City of
Houston, 237 F.3d 567, 578 (5th Cir. 2001)).
state a viable Section 1983 claim, "[a] plaintiff must
identify: '(1) an official policy (or custom), of which
(2) a policymaker can be charged with actual or constructive
knowledge, and (3) a constitutional violation whose
'moving force' is that policy or custom.'"
Valle v. City of Houston, 613 F.3d 536, 541-42 (5th
Cir. 2010) (quoting Pineda v. City of Houston, 291
F.3d 325, 32 (5th Cir. 2002)). The crux of Texas City's
Motion to Dismiss focuses on the first prong: is there an
official policy or custom? An official policy or custom can
be found in two forms:
1. A policy statement, ordinance, regulation, or decision
that is officially adopted and promulgated by the
municipality's lawmaking officers or by an official to
whom the ...