United States District Court, S.D. Texas, Galveston Division
MEMORANDUM OPINION AND ORDER
'GEORGE C. HANKS JR. UNITED STATES DISTRICT JUDGE
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.
Background and Proceedings
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.
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. 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.
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).
Violation of 42 U.S.C. § 1983
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. Dkt. 20 at 6. The Court agrees.
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.
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
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 ...