Morris v. City of Fort Worth, Texas

RAIER De TEXAS

EIN THE UNITED STATES DISTRICT CDURT

NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

CLERK, US. DISTRICT COURT

DORSHAY MORRIS, 8 By

PLAINTIFF, :

§

vs. § NO. 4:19-CV-638-A

CITY OF FORT WORTH, ET AL.,

DEFENDANTS. :

MEMORANDUM OPINION AND ORDER

Came on for consideration the motion of defendants Sergeant

Kenneth Pierce ("Pierce") and Officer Maria Bayona ("Bayona")

(together, "the officers") to dismiss. The court, having

considered the motion, the response of plaintiff, Dorshay

Morris, the reply, the record, and applicable authorities, finds

that the motion should be granted.

I.

Plaintiff's Claims

On August 12, 2019, plaintiff filed her original complaint

in this action. Doc.’ 1. In it, she alleges:

On August 13, 2017, at approximately 3:25 a.m., plaintiff

called law enforcement for help with a domestic situation with

her boyfriend. Doc. 1, § 15. Pierce and Bayona answered the

call. Id. { 16. Plaintiff's boyfriend was taken into custody for

"Doc. _" reference is to the number of the item on the docket in this action.

public intoxication. Id. § 17. The officers questioned plaintiff

and treated her as a suspect. Id. { 18. Dissatisfied with

Plaintiff's responses, Pierce struck plaintiff on her throat and

began pulling her hair and slammed her against a wall. He

ordered Bayona to deploy her taser on plaintiff, which she did.

Id. § 19. Plaintiff was taken into custody and charged with

aggravated assault with a deadly weapon and resisting arrest.

She sat in jail for days before being released without

prosecution on any of the charges. Id. { 20. Pierce was fired

and the Chief of Police said he was confident anyone who saw the

video of the arrest would say Pierce's conduct was unacceptable.

Id. § § 21, 23. Pierce's firing was reversed and he was

reinstated with a thirty-five day suspension. Id. { 24.

Plaintiff sues the officers under 42 U.S.C. § 1983 for use

of excessive force and unlawful seizure.

Il.

Grounds of the Motion

The officers assert a number of grounds in support of their

motion. The court need only consider whether they are entitled

to qualified immunity.

Itr.

Applicable Legal Principles

A. Pleading

Rule 8(a) (2) of the Federal Rules of Civil Procedure

provides, in a general way, the applicable standard of pleading.

Tt requires that a complaint contain "a short and plain

statement of the claim showing that the pleader is entitled to

relief," Fed. R. Civ. P. 8{a) (2), "in order to give the

defendant fair notice of what the claim is and the grounds upon

which it rests,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555

(2007) (internal quotation marks and ellipsis omitted).

Although a complaint need not contain detailed factual

allegations, the "showing" contemplated by Rule 8 requires the

plaintiff to do more than simply allege legal conclusions or

recite the elements of a cause of action. Twombly, 550 U.S. at

555 & n.3. Thus, while a court must accept all of the factual

allegations in the complaint as true, it need not credit bare

legal conclusions that are unsupported by any factual

underpinnings. See Ashcroft v. Iqbal, 556 U.S. 662, 679 {2009)

("While legal conclusions can provide the framework of a

complaint, they must be supported by factual allegations.").

Moreover, to survive a motion to dismiss for failure to

state a claim under Rule 12(b) (6), the facts pleaded must allow

the court to infer that the plaintiff's right to relief is

plausible. Iqbal, 556 U.S. at 678. To allege a plausible right

to relief, the facts pleaded must suggest liability; allegations

that are merely consistent with unlawful conduct are

insufficient. Id. In other words, where the facts pleaded do no

more than permit the court to infer the possibility of

misconduct, the complaint has not shown that the pleader is

entitled to relief. Id. at 679. "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." Id.

In considering a motion to dismiss for failure to state a

claim, the court may consider documents attached to the motion

if they are referred to in the plaintiff's complaint and are

central to the plaintiff's claims. Scanlan v. Tex. A&M Univ.,

343 F.3d 533, 536 (5 Cir, 2003). The court may also refer to

matters of public record. Papasan v. Allain, 478 U.S. 265, 268

n.1 (1986); Davis v. Bayless, 70 F.3d 367, 372 n.3 (5% Cir.

1995); Cinel v. Connick, 15 F.3d 1338, 1343 n.6 (5% Cir. 1994).

This includes taking notice of pending judicial proceedings.

Patterson v. Mobil O11 Corp., 335 F.3d 476, 481 n.1 (5™ Cir,

2003). And, it includes taking notice of governmental websites.

Kitty Hawk Aircargo, Inc. v. Chao, 418 F.3d 453, 457 Cir.

2005}; Coleman v. Dretke, 409 F.3d 665, 667 (5 Cir. 2005).

B. Qualified Immunity

Qualified immunity insulates a government official from

civil damages liability when the official's actions do not

"violate clearly established statutory or constitutional rights

of which a reasonable person would have known." Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982). For a right to be

"clearly established," the right's contours must be

"sufficiently clear that a reasonable official would understand

that what he is doing violates that right." Anderson v.

Creighton, 483 U.S. 635, 640 (1987). Individual liability thus

turns on the objective legal reasonableness of the defendant's

actions assessed in light of clearly established law at the

time. Hunter v. Bryant, 502 U.S. 224, 228 (1991); Anderson, 483

U.S. at 639-40. In Harlow, the court explained that a key

question is “whether that law was clearly established at the time

an action occurred” because “[i]f the law at that time was not

clearly established, an official could not reasonably be

expected to anticipate subsequent legal developments, nor could

he fairly be said to 'know' that the law forbade conduct not

previously identified as unlawful.” 457 U.S. at 818. In

assessing whether the law was clearly established at the time,

the court is to consider all relevant legal authority, whether

cited by the parties or not. Elder v. Holloway, 510 U.S. 510,

512 (1994). If public officials of reasonable competence could

differ on the lawfulness of defendant's actions, the defendant

is entitled to qualified immunity. Mullenix v. Luna, 136 S. Ct.

305, 308 (2015); Malley v. Briggs, 475 U.S. 335, 341 (1986);

Fraire v. City of Arlington, 957 F.2d 1268, 1273 (Sth Cir.

1992). "[A}]n allegation of malice is not sufficient to defeat

immunity if the defendant acted in an objectively reasonable

Manner." Malley, 475 U.S. at 341, In analyzing whether an

individual defendant is entitled to qualified immunity, the

court considers whether plaintiff has alleged any violation of a

clearly established right, and, if so, whether the individual

defendant's conduct was objectively reasonable. Siegert v.

Gilley, 500 U.S. 226, 231 (1991}; Duckett v. City of Cedar Park,

950 F.2d 272, 276-80 (5th Cir. 1992). In so doing, the court

should not assume that plaintiff has stated a claim, i.e.,

asserted a violation of a constitutional right. Siegert, 500

U.S. at 232. Rather, the court must be certain that, if the

facts alleged by plaintiff are true, a violation has clearly

eccurred, Connelly v. Comptroiler, 876 F.2d 1209, 1212 (5th

Cir. 1989). A mistake in judgment does not cause an officer to

lose his qualified immunity defense. In Hunter, the Supreme

Court explained:

The qualified immunity standard "gives ample room for

mistaken judgments" by protecting "all but the plainly

incompetent or those who knowingly violate the law."

Malley, [475 U.S.] at 343. . . . This accommodation for

reasonable error exists because "officials should not err

always on the side of caution" because they fear being

sued. ...

502 U.S. at 229. Further, that the officer himself may have

created the situation does not change the analysis. That he

could have handled the situation better does not affect his

entitlement to qualified immunity. Young v. City of Killeen, 775

F.2d 1349, 1352-53 (5th Cir. 1985).

When a defendant relies on qualified immunity, the burden

is on the plaintiff to negate the defense. Kovacic v.

Villarreal, 628 F.3d 209, 211 (5th Cir. 2010); Foster v. City of

Lake Jackson, 28 F.3d 425, 428 (Sth Cir. 1994). Although

Supreme Court precedent does not require a case directly on

point, existing precedent must place the statutory or

constitutional question beyond debate. White v. Pauly, 137 S.

Ct. 548, 551 (2017). That is, the clearly established law upon

which plaintiff relies should not be defined at a high level of

generality, but must be particularized to the facts of the case.

Id. at 552, Thus, the failure to identify a case where an

officer acting under similar circumstances was held to have

violated plaintiff’s rights will most likely defeat the

plaintiff’s ability to overcome a qualified immunity defense.

Id.; Surratt v. McClarin, 851 F.3d 389, 392 (52 Cir. 2017).

IV.

Analysis

The officers discuss a number of reasons why plaintiff's

detention was lawful.’ Doc. 20 at 9-15. Plaintiff does not

address these arguments, apparently conceding them,? instead

choosing to focus on her excessive force claim. Doc. 37. Her

argument addresses only the use of the taser. In this regard,

she argues that the court should not take into consideration any

of the items submitted in the officers' appendix in support of

their motion to dismiss. She does not dispute that the items

included are matters of public record. Rather, she arques that

she does not rely on the exhibits and the court cannot do so

either. But plaintiff does refer to, and rely upon, the body cam

video, Doc. 21, Bx. B, in her complaint. Doc. 1 at 7, § 23.

Consideration of the video is appropriate. Blakely v. Andrade,

360 F. Supp. 3d 453, 472 (N.D. Tex. 2019); Crisp v. Ballard, No.

5:17-867, 2018 WL 6729038, * 2 (W.D. Tex. Dec. 22, 2018).

An excessive force claim is assessed without regard to the

lawfulness of the arrest, Freeman v. Gore, 483 F.3d 404, 417 (5™

? These arguments appear to address count II] of the complaint regarding unlawful seizure of plaintiff. It is not clear

that count Ill is asserted against the individual officers. But, in any event, a federal civil rights action will not lie for

a warrantless misdemeanor arrest in violation of state law. Fields v. City of S, Houston, 922 F.2d 1183, 1189 (5"

Cir, 1991). And, as the Fifth Circuit has recently noted, probable cause to arrest can be for any crime, not just the

one subjectively considered by the officers. Davidson v. City of Stafford, 848 F.3d 384, 392 (5 Cir. 2017). Even

officers who mistakenly conclude that probabie cause is present are entitled to qualified immunity. Gibson v. Rich,

44 274, 277 (5" Cir. 1995}.

3 Failure to respond to arguments made in a motion to dismiss results in waiver of opposition, Charboneau v. Box,

No. 4:13-CV-678, 2017 WL 1159765, at *13 GE.D. Tex. Mar, 29, 2017),

Cir, 2007}, The elements of an excessive force claim are: (1) an

injury,* (2) that resulted directly and only from a use of force

that was clearly excessive, and (3) the excessiveness was

clearly unreasonable. Id., 483 F.3d at 416. As the Supreme Court

has explained, determining whether the force used to effect a

particular seizure is reasonable requires a careful balancing of

the nature and quality of the intrusion on the individual's

Fourth Amendment interests and the countervailing governmental

interests at stake. Graham v. Connor, 490 U.S. 386, 396 (1989).

Application of the test requires careful attention to the facts

and circumstances of the particular case, including the severity

of the crime at issue, whether the suspect poses an immediate

threat to the safety of the officers or others, and whether the

suspect is actively resisting arrest or attempting to evade

arrest by flight. Id. The reasonableness of the particular use

of force must be judged from the perspective of a reasonable

officer on the scene, without regard to intent or motivation,

id. at 397, rather than with the "20/20 vision of hindsight."

Id. at 396. That the officer could have handled the situation

better is not a factor in the constitutional analysis. Young v.

city of Killeen, 775 F.2d 1349, 1352-53 (5% Cir. 1985).

Plaintiff argues that she did not pose any threat to the

officers or anyone else. Doc. 37 at 7. But, in response to the

The injury must be more than de minimis. Tarver y. City of Edna, 410 F.3d 745, 751 (5" Cir, 2005).

contention that she did not obey lawful commands when asked for

her identification, plaintiff argues that the commands were not

reasonable.* Id. The issue, however, is not the reasonableness of

the commands, but whether every officer in that situation would

have known that he could not attempt to put handcuffs on

plaintiff and to use a taser on her if she resisted. Plaintiff

argues that it is not okay to tase someone for not producing an

ID. Assuming arguendo that the officers' actions violated

plaintiff's constitutional rights, plaintiff would still need to

show that those rights were clearly established at the time. To

do so, she must point to case law establishing that the officers

acted unreasonably based on facts similar to the particular

circumstances they faced. Vann v. City of Southaven, Miss., 884

F.3d 307, 310 (5* Cir. 2018); Cass v. City of Abilene, 814 F.3d

721, 732-33 (5* Cir. 2016); Defrates v. Podany, 789 F. App'x

427, 434-35 (5 Cir. 2019); Hale v. City of Biloxi, 731 F. App'x

259, 264 (5 Cir. 2018) .°

Plaintiff has not made any attempt to show that the law as

to use of the taser under similar circumstances was clearly

established at the time the officers used the taser on her. The

particular circumstances in this case are that plaintiff called

> Plaintiff does not argue that she obeyed the officers' commands. Nor could she. The video reflects that plaintiff did

not comply with commands to provide her identification. Nor did she cooperate in being handcuffed.

® The court recognizes that unpublished opinions are not precedential. The court cites these cases because they

involve use of a taser during the course of making an arrest and are structive here.

10

911 at approximately 3:25 a.m. on August 13, 2017. Doc. 1, 4 15.

Plaintiff said that she had a knife and would stab her boyfriend

if he kept trying to "do stuff to [her] stuff" and that she had

no problem using the knife. Doc. 21, Ex. A. Plaintiff said that

she would not go back into her apartment and she would not put

down the knife. Id. When the officers arrived, they could hear a

commotion. Doc, 21, Ex. B. Plaintiff's boyfriend was taken into

custody for public intoxication. Doc. 1, § 17. The officers

questioned plaintiff, treating her as a suspect. Id. f 18.

Piaintiff refused to provide her identification to the officers.

Doc. 21, EX. B. Pierce told plaintiff she would be handcuffed

and taken to jail if she did not hand Bayona her identification.

Id. Bayona attempted to handcuff plaintiff, who pulled away and

yelled for Bayona to get her hands off plaintiff. Id. After

trying unsuccessfully to handcuff plaintiff, Pierce ordered

Bayona to use her taser on plaintiff, which she did. Id.

Plaintiff was taken into custody and charged with aggravated

assault with a deadly weapon and resisting arrest. Doc. 1, § 20.

Rather than citing any cases regarding use of a taser ina

similar situation, plaintiff relies on Graham, which the Court

has said sets the standard at too high a level of generality.

Pauly, 137 S. Ct. at 552. As best the court can tell, qualified

immunity has been granted to officers using a taser on an

unarmed person who refuses officers' commands. See, e.g., Hale,

11

731 F. App'x at 264; Buchanan v. Gulfport Police Dep't, 530 F.

App'x 307 (5 Cir, 2013) (failure to comply with police

instructions would be enough to overcome claim of excessive

force for tasing); Cloud v. Stone, No. 3:18-1070, 2020 WL 401914

(W.D. La. Jan. 23, 2020); Crisp v. Ballard, No. 5:17-867, 2018

WL 6729018 (W.D. Tex. Dec. 22, 2018} (discussing cases where

Fifth Circuit precedent allowed force against noncompliant

persons). Plaintiff has not shown that the officers are not

entitled to qualified immunity.

Vv.

Request To Amend

At the end of her response, almost as an afterthought,

plaintiff asks that she be allowed to amend if the court

determines that her complaint is deficient in any respect.

Doc.37 at 15. Plaintiff has not filed a motion for leave to

amend. See Local Civil Rule LR 5.1(c). Nor has she provided a

proposed amended complaint. See Local Civil Rule LR 15.1.

Plaintiff does not explain what more she could plead. Given that

plaintiff£ admits she did not comply with the officers' commands,

there does not appear to be anything that could be gained by an

amended pleading except for a delay in the inevitable. As no

purpose would be served in allowing an amendment, the court is

denying leave to amend.

12

VI.

Order

The court ORDERS that the officers' motion to dismiss be,

and is hereby, granted, and that plaintiff's claims against the

officers in this action be, and are hereby, dismissed.

The court determines that there is no just reason for delay

in, and hereby directs, entry of final judgment as to the

dismissal of such claims.

SIGNED February 21, 2020.

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JOAN McBRYDE oo

United States District dge

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