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Gomez v. Massey

United States District Court, S.D. Texas, Galveston Division

August 27, 2019

MARIA GOMEZ, et al, Plaintiffs,



         Before the Court is Stephen Massey's Motion to Dismiss. Dkt. 20. After reviewing the motion, the response, and the applicable law, the motion is GRANTED IN PART and DENIED IN PART.

         Factual Background and Proceedings

         The League City Police Department hired and commissioned Stephen Massey (“Massey”) as a licensed peace officer. Dkt. 15 at 3. On January 23, 2018, Massey responded to an assault call. Id. At 5. During his investigation of the call, Massey initiated contact with Alvaro Herrera (“Herrera”), an 18-year-old high school student that allegedly matched the description of the person reported to have committed the assault. Id. at 3-5. Massey attempted to handcuff Herrera and the two became entangled in some type of physical altercation. Id. at 3-7. While the parties vigorously dispute what happened next, both agree that it resulted in Massey shooting and stabbing Herrera. Id. Herrera died from his wounds. Dkt. 1-1.

         Now, Herrera's parents, Maria Gomez and Jose Herrera (collectively, the “Parents”), are suing Massey in his individual capacity for wrongful death and violation of 42 U.S.C. § 1983.[1] Massey has moved to dismiss these claims because he believes they fail to state a claim upon which relief can be granted. See Fed. R. Civ. P. 12(b)(6). For the following reasons, the Court grants the motion in part and denies it in part.

         Standard of Review

         To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must “state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). The Court's task in this inquiry is to determine whether “the plaintiff has stated a legally cognizable claim that is plausible” on its face and that gives the defendant fair notice of the claims alleged. See Shandong Yinguang Chem. Indus. Joint Stock Co. v. Potter, 607 F.3d 1029, 1032 (5th Cir. 2010). A plaintiff satisfies both of these obligations by pleading “factual content that allows the court to draw the reasonable inference that the defendant is liable” for a justiciable cause of action. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). This means that “a complaint may proceed even if recovery is very remote and unlikely, so long as the alleged facts raise a right to relief above the speculative level.” Littell v. Hous. Indep. Sch. Dist., 894 F.3d 616, 622 (5th Cir. 2018). Ultimately, a court will not dismiss a claim under Rule 12(b)(6) “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Leleux v. United States, 178 F.3d 750, 754 (5th Cir. 1999).


         a. Violation of 42 U.S.C. § 1983

         The Parents allege that Massey violated § 1983 when he used “excessive force” to deprive Herrera of his “Fourteenth and Fourth Amendment right by and through taking his life and liberty without due process of law.” Dkt. 15 at 6-8. Massey moves to dismiss the Fourteenth Amendment version of the Parents' § 1983 claim, because he believes that excessive force complaints must be brought under the Fourth Amendment, rather than the Fourteenth.[2] Dkt. 20 at 6. The Court agrees.

         In the landmark case Graham v. Connor, the Supreme Court held that “all claims that law enforcement officers have used excessive force-deadly or not-in the course of an arrest, investigatory stop, or other ‘seizure' of a free citizen should be analyzed under the Fourth Amendment and its ‘reasonableness' standard, rather than under [the Fourteenth Amendment].” Graham v. Connor, 490 U.S. 386, 395 (1989) (emphasis in original). This is because “[w]here, as here, the excessive force claim arises in the context of an arrest or investigatory stop of a free citizen, it is most properly characterized as one invoking the protections of the Fourth Amendment, which guarantees citizens the right ‘to be secure in their persons…against unreasonable…seizures' of the person.” Id. at 394.

         Accordingly, the Parents are required to pursue their § 1983 claim against Massey under a Fourth Amendment theory, rather than a Fourteenth Amendment theory. Mouille v. Live Oak, 977 F.2d 924, 927 (5th Cir. 1992) (“[A]llegations of excessive use of force implicate the fourth amendment's guarantee of freedom from unreasonable ‘seizures'” not the Fourteenth Amendment.). The Court therefore dismisses the Parents' Fourteenth Amendment version of their § 1983 claim, but allows their Fourth Amendment § 1983 claim to remain in this case.

         b. Wrongful Death

         The Parents also allege a wrongful death claim against Massey under Texas state law. Massey has moved to dismiss this claim because he believes that he is entitled to statutory immunity under § 101.106(f) of the Texas ...

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