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E.R. v. Jasso

United States District Court, W.D. Texas, El Paso Division

July 26, 2019

E.R., a minor with Olga Alcantara as her next of friend, and OLGA ALCANTARA, on her own behalf Plaintiffs,
MARCO JASSO, #1888; JOSE RIVAS, #2985; RICARDO VILLAGRAN, #2882; and JANE DOE, Defendants.



         Presently before the Court are Defendant Jose Rivas's "Rule 12(b)(6) Motion to Dismiss Plaintiffs' First Amended Complaint and Demand for Jury Trial" (ECF No. 28) (hereinafter, "Rivas's Motion to Dismiss"), Defendant Marco Jasso's "Motion to Dismiss Plaintiffs' First Amended Complaint and Demand for Jury Trial" (ECF No. 29) (hereinafter, "Jasso's Motion to Dismiss"), and Defendant Ricardo Villagran's "Motion to Dismiss Plaintiffs' First Amended Complaint and Demand for Jury Trial" (ECF No. 30) (hereinafter, "Villagran's Motion to Dismiss"). For the reasons that follow, the Court DENIES these motions.

         I. BACKGROUND

         A. Facts

         The following facts derive from Plaintiffs E.R. and Olga Alcantara's "First Amended Complaint" (ECF No. 27) (hereinafter, "Amended Complaint") and, in this posture, are taken as true. Bowlby v. City of Aberdeen, Miss., 681 F.3d 215, 219 (5th Cir. 2012).

         E.R. is a minor female (at the relevant time, she was sixteen years old), and Alcantara is her mother (collectively, "Plaintiffs"). Am. Compl. ¶¶ 5-6, 38, ECF No. 27. Rivas, Jasso, and Villagran (collectively, "Moving Defendants") are employed by the El Paso Police Department: specifically, Rivas is a police officer, Villagran is a supervisory police officer, and Jasso is a sergeant and supervisory police officer. Id. ¶¶ 7-9, 41.

         On November 26, 2016, E.R. was walking near her home on the 800 block of Pueblo Street in El Paso, Texas. Id. ¶ 14. While she was walking, Rivas approached her for no identifiable reason and asked for her identification. Id.¶ 15. Rather than engaging with Rivas, E.R. turned to walk away. Id. ¶ 17. Before E.R. got more than a step or two away from Rivas, with her back to him, Rivas pulled E.R.'s hair, knocked her phone out of her hands, and kicked her in the left shin. Id. ¶ 18. E.R. replied that she wanted her mother present. Id. Rivas then forcefully threw her to the ground and proceeded to put his knee into her back and elbow her in the face. Id. ¶ 19. Rivas handcuffed E.R. and placed her in the back of his police car, with the assistance of Villagran. Id. ¶¶ 23, 67. E.R. sustained injuries to her knees, wrists, and cheek from the force used by Rivas. Id. ¶¶ 46-47.

         While E.R. was handcuffed and in the car, a female police officer, Jane Doe, searched E.R.'s undergarments, removed her house key from inside of her bra, and handed the key to Rivas. Id. ¶¶ 26-27. Jasso and Villagran got into one of the two police cars present at the scene and drove to E.R.'s home. Id. ¶¶ 35-37. When they arrived at the home, Alcantara was in the shower. Id. ¶ 38. While she showered, the officers used the key they took from E.R. to enter the back door of Alcantara's home. Id. ¶ 39. When she exited the shower, she was confronted by the officers. Id. ¶ 40.

         Alcantara then left her home and went to the scene where E.R. was detained. Id. ¶ 43. She provided E.R.'s personal information to the officers, and the officers released E.R. without charging her with a crime; by then, E.R. had been detained in the police car for over an hour. Id. ¶¶ 29, 45, 69. Alcantara called an ambulance, and E.R. was taken to the University Medical Center of El Paso, where she received treatment for the injuries she sustained. Id. ¶¶ 45-46.

         Subsequently, Alcantara complained to the El Paso Police Department, which investigated some of her allegations asserted in the Amended Complaint. Id. ¶ 48. The investigation found the following violations: a detainment without reasonable suspicion by Rivas and Villagran; an arrest without probable cause by Rivas and Villagran; and an unlawful entry/search by Jasso and Villagran. Id. ¶ 48.

         B. Procedural History

         On October 9, 2018, E.R. and Alcantara (on her own behalf and as E.R.'s next friend) brought this lawsuit, under 42 U.S.C. §1983, against Rivas, Jasso, Villagran, and Doe-in their individual capacities-for violations of their rights secured by the Fourth and Fourteenth Amendments to the United States Constitution. Id. ¶¶ 1, 13. On January 3, 2019, Moving Defendants filed a first set of motions to dismiss (ECF Nos. 23, 24, 25). On January 17, 2019, Plaintiffs filed their Amended Complaint (ECF No. 27).

         Between January 30 and February 1, 2019, Moving Defendants filed the instant, second set of motions to dismiss against Plaintiffs' Amended Complaint. Rivas's Mot. to Dismiss, ECF No. 28, Jasso's Mot. to Dismiss, ECF No. 29, Villagran's Mot. to Dismiss, ECF No. 30. On February 13, Plaintiffs filed their "Joint Response in Opposition to Defendants' Motions to Dismiss" (ECF No. 33) (hereinafter, "Plaintiffs' Response"). Moving Defendants followed by filing their replies. See Rivas's Reply Br. in Support of his Rule 12(b)(6) Mot. To Dismiss [hereinafter, "Rivas's Reply"], ECF No. 37; Jasso's Reply to Pis.' Resp. to Mots, to Dismiss [hereinafter, "Jasso's Reply"], ECF No. 38; Villagran's Reply to Pis.' Resp. to Mots, to Dismiss [hereinafter, "Villagran's Reply"], ECF No. 39.

         On March 21, 2019, the Honorable United States District Judge Frank J. Montalvo, who then presided over this case, issued a Scheduling Order (ECF No. 40). After Judge Montalvo recused from the case, see Order of Recusal, ECF No. 43, the case was reassigned to the undersigned judge on April 11. On May 30, Moving Defendants jointly moved to stay the Scheduling Order deadlines until such time as this Court decides the instant motions to dismiss, see J. Mot. for Temporary Stay of Ct.'s Scheduling Order Deadlines, ECF No 45, and the Court granted the motion, see Text Order (June 6, 2019).

         II. STANDARD

         Federal Rule of Civil Procedure 12(b)(6) allows a party to seek dismissal of a claim for "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). To survive a Rule 12(b)(6) motion, a plaintiff 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). To meet the "facial plausibility" standard, the plaintiff must "plead[] 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 court's task, then, is "to determine whether the plaintiff has stated a legally cognizable claim that is plausible, not to evaluate the plaintiffs likelihood of success." Doe ex rel. Magee v. Covington Cty. Sch. Dist., 675 F.3d 849, 854 (5th Cir. 2012) (en banc). "Determining whether a complaint states a plausible claim for relief... requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 556 U.S. at 679.

         On a Rule 12(b)(6) motion, the court "must accept all well-pleaded facts as true, draw all inferences in favor of the nonmoving party, and view all facts and inferences in the light most favorable to the nonmoving party." Club Retro, LLC v. Hilton, 568 F.3d 181, 194 (5th Cir. 2009). "[A] well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and that a recovery is very remote and unlikely." Twombly, 550 U.S. at 556 (internal quotes and citations omitted). "Iqbal does not allow us to question the credibility of the facts pleadedIqbal, instead, tells us to assume the veracity of well-pleaded factual allegations." Ramirez v. Escajeda, 921 F.3d 497, 501 (5th Cir. 2019) (alteration, internal quotes, and citations omitted).

         Finally, in deciding the motion, "a district court may not go outside the complaint." Gines v. D.R. Horton, Inc., 699 F.3d 812, 820 (5th Cir. 2012) (internal quotes and citations omitted). The court may, however, "rely on documents incorporated into the complaint by reference[] and matters of which a court may take judicial notice." Dorsey v. Portfolio Equities, Inc., 540 F.3d 333, 338 (5th Cir. 2008) (internal quotes and citations omitted).


         Plaintiffs assert the following claims for violations of their Fourth Amendment rights. Against Rivas, E.R. asserts claims for unlawful detention and/or arrest, Am. Compl. ¶¶ 60-73, and excessive force, id. ¶¶ 74-85. E.R. also asserts a claim-under the supervisor liability theory-against Villagran for the unlawful detention and/or arrest allegedly committed by Rivas. Id. ¶¶ 53, 56, 60; Pis.' Resp. at 5-6. Alcantara, on the other hand, asserts claims for unlawful entry and/or search of her home against Villagran and Jasso. Am. Compl. ¶¶ 104-112. Alcantara also asserts a claim-under ...

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