United States District Court, W.D. Texas, El Paso Division
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.
MEMORANDUM OPINION AND ORDER
C. GUADERRMA UNITED STATES DISTRICT JUDGE.
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.
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).
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.
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.
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.
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.
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.
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).
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.
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).
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.
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).
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).
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