# Hobbs v. Warren

> District Court, N.D. Texas · May 22, 2020

URL: https://www.frixlaw.com/law-library/cases/10448552

## Case

- **Court:** District Court, N.D. Texas
- **Decided:** May 22, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
TONY HOBBS, §
§
Plaintiff, §
§
v. § Civil Action No. 3:19-CV-47-L-BH
§
§
KYLE WARREN; CITY OF GARLAND; §
and CITY OF MESQUITE, §
§
Defendants. §
MEMORANDUM OPINION AND ORDER
Before the court is Defendant Kyle Warren’s Motion to Dismiss Plaintiff’s First Amended
Complaint (“Motion to Dismiss) (Doc. 46), filed June 26, 2019. On February 19, 2020, the Findings,
Conclusions and Recommendation of the United States Magistrate Judge (“Report”) (Doc. 60) was
entered, recommending that the court grant the Motion to Dismiss (Doc. 46) and dismiss with
prejudice on the basis of qualified immunity Tony Hobbs’s (“Plaintiff” or “Hobbs”) excessive force
claim against off-duty Garland police officer Kyle Warren (“Warren”) in his individual capacity
under 42 U.S.C. § 1983. Without addressing whether the force allegedly used by Warren in assisting
with the detention or arrest of Hobbs was excessive or whether the facts as alleged by Hobbs
establish a violation of a constitutional right, the magistrate judge focused on and concluded that
Warren is entitled to qualified immunity because Hobbs “failed to meet his burden to show that the
law was clearly established such that the alleged use of force was unreasonable.” Report 13 & n.8.
On March 4, 2020, Hobbs filed objections to the Report, to which Warren responded on
March 16, 2020. For the reasons that follow, the court accepts as supplemented the magistrate
Memorandum Opinion and Order – Page 1
judge’s findings and conclusions; overrules Plaintiff’s objections; grants Defendant Kyle Warren’s
Motion to Dismiss Plaintiff’s First Amended Complaint (Doc. 46); and dismisses with prejudice
Plaintiff’s excessive force claim under the Fourth Amendment to the United States Constitution
against Warren on the basis of qualified immunity.1

I. Factual and Procedural Background
Hobbs brought this action against Warren, the City of Garland, and the City of Mesquite
(collectively, “Defendants”) on January 7, 2019. He alleges that, on January 12, 2017, the force used
by Warren in assisting Mesquite police officers to detain him was excessive and violated his civil
right to be free from seizure under the Fourth and Fourteenth Amendments in contravention of 42
U.S.C. § 1983.2 In his Original Complaint, Hobbs alleged that “he was standing on the shoulder [of]
Interstate 635 waiting for traffic to lighten” when “Warren opened the passenger door [of the car

driven by his wife] and used it as a weapon to strike [him] as he was standing in the shoulder waiting
to cross the road.” Pl.’s Orig. Compl. ¶¶ 11-12.
On April 16, 2019, Warren filed his Answer asserting the defense of qualified immunity and
moved, pursuant to Federal Rule of Civil Procedure 12(b)(6), to dismiss Hobbs’s excessive force
claim based on qualified immunity and failure to allege sufficient facts to state an excessive force
claim. On May 3, 2019, before briefing on Warren’s original motion to dismiss was complete,
Hobbs moved for leave to amend his pleadings to “more accurately plead [his] excessive force claim

1 In making this determination, the court incorporates by reference, as if repeated herein verbatim, the Rule
12(b)(6) standard in the Report.
2 In addition, Plaintiff sued the City of Mesquite and the City of Garland under a theory of municipal liability
for their alleged failure to train, supervise, and discipline their officers. He also sued the City of Garland for allegedly
tolerating the use of excessive force by its officers. Those claims have been dismissed with prejudice by separate order
on the ground that Plaintiff’s pleadings were insufficient to support a finding of municipal liability under section 1983.
As a result, only Plaintiff's excessive force claim against Warren in his individual capacity remains.
Memorandum Opinion and Order – Page 2
against Defendant Warren” in light of dash camera and body camera videos of the incident that were
provided by opposing counsel. Pl.’s Mot. for Leave ¶ 17 (Doc. 33). The court granted Plaintiff’s
motion for leave over the defense’s opposition and allowed him to amend his pleadings.
A. Allegations in Plaintiff’s First Amended Complaint Against Warren

In his First Amended Complaint (“Amended Complaint”) (Doc. 41), Hobbs removed his
prior allegation that he was standing in or on the shoulder of Interstate Highway 635 (“IH 635”)3
when he was struck and alleges now that he was attempting to cross IH 635 as he was fleeing from
Mesquite police officers when Warren used the passenger car door to strike him. Pl.’s Am. Compl.
¶¶ 15-16. In addition, Hobbs alleges as follows with respect to his excessive force claim against
Warren:
6. On January 12, 2017, [] Warren, a Garland Police Officer, was off[-]duty
and a passenger in his wife’s vehicle, which was travel[]ing down [IH] 635.
7. [] Warren saw [him] running from uniformed Mesquite Police Officers.
8. [He] was suspected of committing misdemeanor shoplifting from a nearby
Home Depot.
9. Home Depot personnel asked Mesquite Police Department to disregard
[him] since he did not take anything.
10. However, Mesquite Police Officers initiated and continued their pursuit
of [him], knowing that [he] had not stolen anything from Home Depot.
3 The court takes judicial notice that “IH 635 was constructed in the late 1960s and early 1970s to serve as an
outer loop freeway and provide mobility for the rapidly growing North Dallas, Garland, and Mesquite areas” of North
Texas. North Central Texas Council of Governments, IH 635 LBJ East Project, Attachment 1 Project Narrative FY 2018
Build Grant Application 3 (July 18, 2018), available at https://www.nctcog.org/nctcg /media/
Transportation/DocsMaps/Fund/TIP/ BUILD_Grant/IH635-Submitted-BUILD-Grant-Application-Package-2018.pdf.
It is well-established and ‘“clearly proper in deciding a 12(b)(6) motion [that a court may] take judicial notice of matters
of public record.”’ Funk v. Stryker Corp., 631 F.3d 777, 783 (5th Cir. 2011) (quoting Norris v. Hearst Trust, 500 F.3d
454, 461 n.9 (5th Cir. 2007) (citing Cinel v. Connick, 15 F.3d 1338, 1343 n.6 (5th Cir. 1994)). The court’s decision to
take judicial notice of this information regarding IH 635 is purely for background purposes and does not affect the
resolution of the Motion to Dismiss.
Memorandum Opinion and Order – Page 3
11. [] Warren attempted to assist the Mesquite Officers by making an
unlawful and illegal seizure of [his] person.
12. At the time he voluntarily involved himself in this matter, [] Warren had
no understanding or information as to why [he] was running from the police.
13. The only information [] Warren had before striking [him] with the car’s
door was that he saw the police lights flashing and heard “Police, Stop!”
14. [He] was not carrying a weapon or threatening anyone as he was fleeing
the officers, nor was he when .[] Warren and his then wife approached [him] in their
vehicle.
. . .
15. As [he] attempted to cross [IH] 635, [] Warren instructed his then wife to
drive towards [him].
16. As she approached [him], [] Warren opened the passenger door of the
moving vehicle and used it as a weapon to strike [him].
17. Upon being struck by the weight and momentum of the car door, [he] was
thrown down onto the pavement.
18. [] Warren then exited the vehicle and detained [him] who was motionless,
injured and sprawled out on the ground.
24. Mesquite Police Officer Berg’s body camera captured audio of .[] Warren
admitting to Officer Berg that he hit [] Hobbs with his door.
25. Mesquite Police Officer Gilbert King’s dash camera captured audio of
Officer Berg telling other officers that [] Warren “door checked” [] Hobbs.
26. Officer Berg can be heard telling other officers that he saw the door pop
open and [] Hobbs fall back on the highway.
27. Officers can be heard on Officer King’s dash camera discussing the fact
that [] Hobbs was “door checked pretty hard” when they are attempting to discern his
injuries and the source of his blood.
28. Officer King’s dash camera captured audio of a Mesquite Police officer
telling other officers that [] Warren door checked [] Hobbs and he went flying onto
the ground. That same Mesquite Police officer can be hard telling the other officers
that [] Warren “slammed him with his door.”
. . .
Memorandum Opinion and Order – Page 4
36. [] Hobbs was charged with Evading Arrest and that [charge] was
dismissed on April 23, 2018.
37. The degree of physical force [] Warren used on [] Hobbs was objectively
unreasonable as [he] did not pose a threat to [] Warren or any other person at the time
the force was used [or “immediately prior”], [he] was only suspected of misdemeanor
shoplifting, and [he] did not have a weapon.
. . .
48. A reasonable officer in [] Warren’s shoes would know that using the door
of a moving vehicle to door check a suspect who is not displaying a weapon, is not
a threat to any officer or other person, and is fleeing from officers after only being
suspected of misdemeanor shoplifting is clearly unreasonable and excessive.
. . .
51. A reasonable officer in [] Warren’s shoes would know that it was clearly
excessive and unreasonable to use deadly force by using the door of a moving vehicle
to door check [] Hobbs when [] Warren did not have probable cause to believe that
[] Hobbs had committed a felony or posed a significant threat of death or serious
physical injury to officers or others.
53. Due to [] Warren’s wrongful use of deadly force, [] Hobbs suffered
injuries, including fractured ribs, a fractured skull, bleeding in his brain, and a rupture
of his right ear drum from the trauma causing hearing loss in his right ear. [] Hobbs
did not have these injuries before [] Warren “door checked” [him] and these injuries
resulted from solely the “door check.” The use of deadly force against a person whom
[] Warren knew nothing about, whose alleged offense [] Warren was entirely
ignorant, and who posed no threat to Warren, other police officers, or others was
objectively unreasonable even in the context of a flight f[rom] the police.
Pl.’s Am. Compl. ¶¶ 6-53.
B. Warren’s Grounds for Moving to Dismiss Hobbs’s Excessive Force Claim
Warren has moved to dismiss Hobbs’s excessive force claim on two grounds. The court
addresses each ground in turn.
1. Sufficiency of Excessive Force Allegations
Warren first contends that Hobbs has failed to allege sufficient facts to support an excessive
force claim. Warren does not dispute that Hobbs suffered the injuries alleged. He, instead, contends
that the excessive force claim, as pleaded, does not establish that the injuries Hobbs sustained
Memorandum Opinion and Order – Page 5
resulted directly and only from the force used as opposed to his own actions in running across an
interstate highway to avoid arrest. In addition, Warren contends that the forced used was objectively
unreasonable:
Assuming . . . that [] Warren was using the car door to stop Plaintiff . . . , it is well
established that the right to make an arrest or investigatory stop necessarily carries
with it the right to use some degree of physical coercion. See Graham v. Connor, 490
U.S. 386, 396 (1989). The reasonableness of the force, under the circumstances, must
be examined in the context of what was transpiring – from the perspective of []
Warren. Plaintiff clearly pleads that he was actively fleeing from the Mesquite Police,
ignoring commands to stop, and attempting to evade arrest by crossing the main lanes
of an interstate highway. He alleges that [] Warren, an off-duty police officer saw
him fleeing from the Mesquite police, and heard the police yelling at [him] to
stop—commands which he ignored. While [] Warren could not have known what
underlying crime he had purportedly committed, he observed that Plaintiff was
evading arrest (Tex. Pen. Code § 38.04 Evading Arrest or Detention) and traversing
a busy highway (Tex. Pen. Code § 42.03 Obstructing Highway or Other Passageway),
destined to cause harm to himself and other innocent motorists.
According to the Plaintiff’s own pleadings, [] Warren was forced into a
split-second decision—in circumstances that were clearly tense, uncertain, and
rapidly evolving. . . . [U]sing the door of the car to stop the Plaintiff, is not a clearly
excessive use of force under the circumstances. Far from being objectively
unreasonable, it was the only available means of stopping Plaintiff before he crossed
over additional lanes of traffic. The decision to open the passenger door and exit the
car is a text-book example of a split-second decision in the context of rapidly
evolving and tense circumstances in order to avoid potentially catastrophic harm to
the innocent public. Even if the timing of [] Warren’s exit from the vehicle resulted
in contact between the door and the Plaintiff, that is precisely the type of 20/20
hindsight analysis that cannot give rise to liability.
Def.’s Mot. to Dismiss 4-6 (footnotes omitted). Warren further asserts that, under Texas law, an
off-duty police officer like himself “becomes an on-duty police officer when he observes a crime,”
and, in this case, he “observed Plaintiff evading arrest by running into the main lanes of a major state
highway.” Id. at 5 & n.7 (citation omitted).
Memorandum Opinion and Order – Page 6
In addition, Warren disputes whether he opened and used the car door as a weapon to stop
Hobbs, as opposed to merely opening the door to exit the vehicle driven by his wife. Warren
contends that Hobbs’s use of the term “weapon” is conclusory and baseless. Id. at 7. Warren also
takes issue with the allegation that he directed his wife to drive “toward” Hobbs, to the extent this

allegation suggests that he instructed his wife to hit Hobbs or run him over with the car. Id. at 6.
Warren contends that Hobbs has no personal knowledge and no way of knowing at this juncture the
substance of the conversation that took place between him and his wife, so this allegation cannot be
supported by a “good faith belief.” Id. (citing Fed. R. Civ. P. 11(b)(3)).
Warren acknowledges that the focus in ruling on a Rule 12(b)(6) motion is the plaintiff’s
pleadings, which the court must accept as true, but asserts that “[e]ye[]witness accounts describe the
car [driven by his wife] as stopped in one of the interior main lanes of I[H] 635 at the time [he]

exited the vehicle.” Def.’s Mot. to Dismiss 7 & n.9. Warren contends that, “[w]hile these facts are
not determinative in the context of a motion to dismiss, Plaintiff clearly understands the ‘art of
pleading[,]’ as he conveniently ignores these accounts and then only vaguely alleges that the car was
‘moving’ without specifically, or even generally, identifying the alleged speed of the vehicle.” Id.
Warren further asserts that, “[i]n any event, the use of the word ‘toward’ lost any meaningful
significance when Plaintiff abandoned his allegations that he was standing on the shoulder waiting
for traffic to lighten and placed himself in the main lanes of the interstate highway.” Def.’s Mot. to
Dismiss 6-7. Warren, therefore, contends that, “[u]nder the circumstances facing [him], an

objectively reasonable officer could quickly conclude that, if he did not exit the vehicle to stop
[Hobbs], it was likely that [Hobbs] would cause a potentially fatal accident on I[H] 635 in an effort
to elude the Mesquite police chasing him,” and, “[a]s such, the Amended Complaint simply does not
Memorandum Opinion and Order – Page 7
allege facts sufficient to establish that Plaintiff suffered an injury that resulted directly and only from
the use of force that was clearly excessive to the need and objectively unreasonable.” Id. at 7.
2. Whether Warren’s Conduct Violated Clearly Established Law
Warren next contends that dismissal is warranted because, even assuming the force used was

excessive and amounted to a violation of a constitutional right, Hobbs cannot establish that his
particular conduct violated clearly established law as required to overcome qualified immunity.4
Based on the legal standard and facts in Morrow v. Meachum, 917 F.3d 870 (5th Cir. 2019), Warren
argues that, in this Circuit, it has not been clearly established that the use of a passenger car door to
stop a fleeing suspect as he attempts to run across an interstate highway is objectively unreasonable.
Def.’s Mot. to Dismiss 9. Warren contends that, although Morrow was decided after the events in
this case, the holding in that case forecloses any argument that his “conduct had been clearly

established as unlawful.” Id. According to Warren, the court in Morrow “held that it was not
unlawful for an officer driving an SUV travel[]ing at approximately 55 mph to cut in front of a
motorcycle traveling at 100 mph where the motorcyclist posed a threat to other motorists.” Id.
(quoting Morrow, 917 F.3d at 874) (“Appellants seek monetary damages from the personal pocket
of the law-enforcement officer. The qualified immunity doctrine makes that task difficult in every
case. In this case, it’s impossible.”). Warren contends that the holding in Morrow is notable because,
like the plaintiff in Morrow, Hobbs was “actively fleeing from police and posed a potentially fatal
threat to motorists” because he admittedly was attempting to cross IH 635 when struck. Id. Warren,

therefore, argues that “[i]t is difficult to conclude that the Fifth Circuit would hold that opening a car

4 Warren also filed an Answer (Doc. 47) to Plaintiff’s First Amended Complaint in which he asserts the defense
of qualified immunity.
Memorandum Opinion and Order – Page 8
door in order to stop a pedestrian from running across a crowded interstate highway, as the [Hobbs]
has alleged, has been clearly established to be an unlawful use of force, while pulling a moving SUV
directly in front of a motorcyclist has been established as a lawful use of force.”
In addition, Warren cites authority for the proposition that the Fifth Circuit has “clearly

recognize[d] that some amount of force is [c]onstitutionally permitted and may be necessary to
effectuate an arrest,” particularly when the plaintiff is fleeing, resisting arrest, and ignoring law
enforcement commands. Id. at 10.5 Warren contends that, while the cases cited did not involve a
vehicle door, they are controlling and, for the reasons explained by the court in Morrow, they do not
“foreclose the use of force alleged by [Hobbs].” Id. (citing Morrow, 917 F.3d at 877). Thus, Warren
asserts that, in light of Morrow, Hobbs cannot meet his burden of establishing that the force used was
clearly excessive.

C. Plaintiff’s Response to Warren’s Motion to Dismiss
Hobbs maintains in response to the Motion to Dismiss that his excessive force claim is
sufficient as pleaded, that is, sufficient to put Warren on notice of the facts he intends to prove to
defeat the qualified immunity defense. Hobbs, nevertheless, requests that he be allowed to amend
his pleadings again if the court determines otherwise. Pl.’s Resp. to Mot. to Dismiss 24 (“Hobbs

5 Warren cites the following Fifth Circuit cases for the propositions noted:
See Zimmerman v. Cutler, 657 F[.] App[’]x[] 340, 347 (5th Cir. 2016) (Officer used taser to stop a
fleeing misdemeanant suspect found not excessive); see also Carroll v. Ellington, 800 F.3d 154 (5th
Cir. 2015) (Officers deployed taser seven times, struck suspect with baton, kicked suspect and tackled
suspect in an effort to take suspect into custody who was refusing commands and resisting arrest found
not excessive); see also Poole v. City of City of Shreveport, 691 F.3d 624 (5th Cir. 2012) (force used
against suspect resisting arrest not excessive); see also Galvan v. City of San Antonio, 435 F[.]
App[’]x[] 309, 311 (5th Cir. 2010) (force used in course of arrest not excessive).
Memorandum Opinion and Order – Page 9
respectfully asks that if this Court is inclined to believe that [his] pleading, in full or in part, is
deficient, that this Court permit [him] an opportunity to amend his Complaint to cure any defects.”).
Regarding Warren’s contentions about the sufficiency of his pleadings, Hobbs contends that there
can be no confusion from the allegations in his Amended Complaint that he has alleged an injury and

attributed that injury entirely to Warren’s conduct by detailing how Warren instructed his wife to
drive toward him and then “used the momentum and weight of the car door as a weapon to strike
him” and “flatten” him. Pl.’s Resp. to Mot. to Dismiss 6, 18 (citing Pl.’s Am. Compl. ¶¶ 15-17; 19;
31-32). Hobbs notes that he also alleges that “he did not have a weapon and posed no danger and
that Warren had no information about why [he] was running or what [he] was alleged to have done.”
Pl.’s Resp. to Mot. to Dismiss 18-19 (citing Pl.’s Am. Compl. ¶¶ 12-17). Hobbs asserts that
Warren’s contentions regarding evidence of “eye[]witness accounts” and the need to establish that

his injuries were caused by Warren’s conduct are not relevant in the context of a Rule 12(b)(6)
motion to dismiss.
Hobbs acknowledges that Warren had the right, as a peace officer, to insert himself into the
situation but maintains that authority did not give him the right to use unfettered, excessive force.
Hobbs contends that Warren’s “ignorance of the fact that [he] was accused of a minor shoplifting
offense (a charge that was dropped)” does not change this because his pleadings “allege that Warren
had no information to explain why [he] was running” and “establish that he was not carrying a
weapon or threatening anyone.” Pl.’s Resp. to Mot. to Dismiss 19 (citing Pl.’s Am. Compl. ¶¶ 12

& 14). According to Hobbs, these allegations are sufficient to support a determination that “Warren
used excessive force when [he] weaponized a car door on a moving car to arrest [him when he]
posed no threat to anyone.” Pl.’s Resp. to Mot. to Dismiss 19.
Memorandum Opinion and Order – Page 10
To support his contention that the force used by Warren was excessive and objectively
unreasonable, Hobbs relies primarily on the Fifth Circuit’s unpublished opinion in Brown v. Long
Beach Police Department, 105 F. App’x 549 (5th Cir. 2004) (per curium), in which the denial of the
police officer’s motion to dismiss based on qualified immunity was affirmed because “it d[id] not

appear beyond doubt that Brown w[ould] be unable to prove the elements of an excessive force
claim,” and,
[a]lthough there was no caselaw expressly prohibiting the tackling of a fleeing teenage
girl weighing less than 100 pounds, there was no caselaw permitting it, and the right
under the Fourth Amendment to be free from the excessive use of force by law
enforcement officers was clearly established. It does not appear beyond doubt that
Brown will be unable to prove that Officer Kallas’ actions were objectively
unreasonable, especially in light of the nonviolent nature of the offense for which he
was arresting her (truancy) and the apparent lack of threat she posed to anyone.
Pl.’s Resp. to Mot. to Dismiss 19-20 (quoting Brown, 105 F. App’x at 550). Although Brown is
unpublished and has no precedential value, Hobbs argues that it is factually analogous in that it
involved a teenage girl, who weighed less than 100 pounds, had no known history of violence, and
fled from a 300-pound male police officer, who chased and tackled her, breaking her pelvis, while
attempting to arrest her for the minor offense of truancy. Hobbs contends that, in this case, “he is
the 100-pound teenager and Warren and his moving car and car door are the 300-pound officer,” and
like Brown, he has pleaded sufficient facts to support an excessive force finding in light of his
allegations that he “was fleeing from a minor, nonviolent offense (attempted shoplifting from a
Home Depot Store).” Pl.’s Resp. to Mot. to Dismiss 20, 23.
Hobbs further asserts, based on the factors in Graham and facts alleged in this case, that
Warren should have been on notice as a result of “well-established precedent that using a car door
Memorandum Opinion and Order – Page 11
and the momentum of a moving car to hit a pedestrian would have been objectively unreasonable
and a violation of the Constitution” because:
the pleadings establish that [he] posed no threat to anyone, that he was unarmed and
certainly that there was no visible weapon, that [] Warren had no idea whether [he]
was a suspect, that if [] Warren believed that [he] was a suspect that [] Warren had no
information regarding the offense level, that other police officers were in pursuit of
[him], and that, presumably, the police officers chasing [him] had more information
concerning [his] offense than did [] Warren.
Pl.’s Resp. to Mot. to Dismiss 23-24 (citing Graham, 490 U.S. at 396). Hobbs relies on Cooper v.
Brown, 844 F.3d 517 (5th Cir. 2016), and Darden v. City of Fort Worth, 866 F.3d 698 (5th Cir.
2017), both of which involved the use of force after the suspect was no longer resisting detention
or arrest. Hobbs “concedes that the facts of this case are distinguishable” from those in Cooper and
Darden because he was admittedly fleeing from the Mesquite police officers pursuing him when
struck by the car door. He, nevertheless, asserts that, “like the arrestees in Cooper and Darden, [he]
‘was not carrying a weapon or threatening anyone.’” Pl.’s Resp. to Mot. to Dismiss 22-23 (quoting
Pl.’s Orig. Complaint ¶10 (Doc. 1)). Hobbs also references Zimmerman v. Cutler, 657 F. App’x 340,
342 (5th Cir. 2016) (per curiam), but he does not explain why he believes this case supports his
contention that the law was sufficiently clear at the time to put Warren on notice that his use of the
passenger door of a moving car to stop him from fleeing and crossing IH 635 was unlawful.
D. Magistrate Judge’s Report
On February 19, 2020, Magistrate Judge Ramirez entered her Report (Doc. 60),
recommending that the court grant Warren’s Motion to Dismiss and dismiss with prejudice
Plaintiff’s excessive force claim under § 1983 on the basis of qualified immunity. As noted, her
analysis focuses only on whether Warren’s conduct violated the second prong of qualified immunity,

Memorandum Opinion and Order – Page 12
that is, whether his conduct was objectively unreasonable in light of clearly established law at the
time. Hobbs filed objections to the Report on March 4, 2020. Warren responded to the objections
on March 16, 2020.
II. Discussion

A. Plaintiff’s Section 1983 Excessive Force Claim
Hobbs’s excessive force claim against Warren is brought under section 1983. When
addressing a section 1983 claim in the context of a motion to dismiss, regardless of whether qualified
immunity is asserted by the defendant, the court must first “determine whether the plaintiff has
‘file[d] a short and plain statement of his complaint, a statement that rests on more than conclusions
alone.’” Pena v. City of Rio Grande City, 879 F.3d 613, 618 (5th Cir. 2018) (citation omitted). A
plaintiff’s claim for excessive force must be determined according to Fourth Amendment standards

because “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 a ‘substantive due
process’ approach.” Graham v. Connor, 490 U.S. 386, 395 (1989) (emphasis in original).
Determining whether the force used was reasonable “requires careful attention to the facts and
circumstances of each 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. at 396 (citation omitted). The

issue of reasonableness centers on whether the officer’s actions are “objectively reasonable” in light
of the facts and circumstances with which he is faced, without regard to the officer’s underlying
intent or motivation. Id. at 397 (citation omitted). Whether the use of force is reasonable “must be
Memorandum Opinion and Order – Page 13
judged from the perspective of a reasonable officer on the scene, rather than the 20/20 vision of
hindsight.” Id. at 396. In addition, the assessment of reasonableness must take into account “that
police officers are often forced to make split-second judgments—in circumstances that are tense,
uncertain, and rapidly evolving—about the amount of force that is necessary in a particular

situation.” Id. at 396-97. In applying Graham, the Fifth Circuit uses a three-part test that requires a
plaintiff to show “(1) injury, (2) which resulted directly and only from a use of force that was clearly
excessive, and (3) the excessiveness of which was clearly unreasonable.” Cooper v. Brown, 844 F.3d
517, 522 (5th Cir. 2016) (citation omitted); Tarver v. City of Edna, 410 F.3d 745, 751 (5th Cir. 2005)
(citation omitted).
The parties do not dispute, and the court determines, that Hobbs satisfies the first injury
element. The court further determines that Hobbs’s allegation that his injuries resulted solely from

Warren’s decision to use the door of a moving car to “door check” him is sufficient at the pleading
stage to connect Hobbs’s injuries to Warren’s alleged use of force for purposes of pleading
causation, Pl.’s Am. Compl. ¶¶ 51, 53, even though it is not entirely clear from Plaintiff’s Amended
Complaint whether Hobbs was struck from behind by the car door or ran into the open car door.6
That Warren may dispute why he opened the passenger door and whether Plaintiff’s injuries resulted
from being struck by the door, as opposed to his own conduct in fleeing and running across IH 635,

6 In paragraphs 16 and 17 of his Amended Complaint, Hobbs appears to maintain that he was struck from
behind, as he alleges that Warren opened the car door and used the weight and momentum of the car to strike himand
throw him down on to the pavement. In paragraph 26, however, Hobbs alleges that Mesquite “Officer Berg can be heard
[on the dash camera video] telling other officers that he saw the door pop open and Mr. Hobbs fall back on the highway,”
which suggests that Hobbs may have run into the open car door as Warren suggests. Pl.’s Am. Compl. ¶¶ 16, 17, 26
(emphasis added). As Hobbs alleges that his injuries are attributable solely to Warren’s decision to use the door to stop
him from fleeing, it matters not for purposes of ruling on the Motion to Dismiss whether Warren contends that Hobbs’s
injuries may have been sustained as a result of his innocent conduct in opening the door to exit the vehicle. Warren’s
motive in opening the door is also irrelevant.
Memorandum Opinion and Order – Page 14
are not relevant at this juncture under Rule 12(b)(6). The question, therefore, is whether Hobbs has
pleaded facts that plausibly suggest Warren’s conduct was objectively unreasonable.
Hobbs alleges that he was only suspected of committing the misdemeanor offense of
shoplifting, which Home Depot employees asked Mesquite police officers to disregard; that he was

charged with the offense of evading arrest, but that charge was later dismissed; and that he was not
carrying or displaying a weapon or threatening anyone. When viewed alone, these factual allegations
would seem to support his contention and allegation that he “posed no [known] threat to Warren,
other police officers, or others.” Id. ¶ 53. The court, however, must consider the “totality of
circumstances” in determining whether the particular force used was unreasonable,7 including
Hobbs’s allegations that, when Warren came on the scene, he observed police lights flashing and
Hobbs attempting to cross IH 635 as he was fleeing from the Mesquite police officers and ignoring

their commands to “Stop!”
Thus, according to Hobbs’s Amended Complaint, the situation Warren encountered was one
that was rapidly evolving with Hobbs attempting to cross IH 635 while running on foot from
uniformed Mesquite police officers who were pursuing him and yelling at him to “Stop!” Graham,
490 U.S. at 396. Warren could have reasonably believed that Plaintiff was fleeing to evade arrest
or detention. Even though Warren did not know why the Mesquite police officers were pursuing
Plaintiff, that is quite beside the point, as Warren and a reasonable police officer standing in
Warren’s shoes could have also reasonably believed that the conduct he actually

observed—Plaintiff’s conduct in running across IH 635—was unnecessarily putting innocent
motorists and Hobbs, and the police officers chasing him, at serious risk of harm because of the
7 Garner, 471 U.S. at 9.
Memorandum Opinion and Order – Page 15
location where all of this was occurring. The reasonableness of the force used is assessed from what
Warren knew, not what he did not know. As Plaintiff concedes that Warren was unaware of what
transpired before he encountered the Mesquite police officers chasing him across IH 635, the
seriousness of the shoplifting offense and facts surrounding that offense that gave rise to the

Mesquite police officers’ investigation and pursuit of him carry little, if any, weight in the court’s
analysis.
Hobbs argues in his response to the Motion to Dismiss that he was“standing on the shoulder
of I[H] 635 waiting for the traffic to clear so that he could cross,” and, thus, “not threatening anyone
when Warren slammed the car door into [him].” Pl.’s Resp. Br. to Mot. to Dismiss 16 (Doc. 52)
(citing Pl.’s Am. Compl. ¶ 15). Hobbs also contends that “[a]ccording to the pleadings, Officer
Warren and his wife were driving on I[H] 635 when Officer Warren saw [him] on the side of the

road, observed flashing police lights, and heard “Police, Stop!” Pl.’s Resp. to Mot. to Dismiss 1
(Doc. 51) (citing Pl.’s Am. Compl. ¶¶ 11-13) (emphasis added). As correctly noted by Warren,
however, Plaintiff no longer alleges in his Amended Complaint, the live pleading, that he was
standing in or on the shoulder of IH 635, waiting for traffic to clear before crossing, when he was
struck by the car door. This allegation was removed when Plaintiff amended his pleadings after his
counsel reviewed the law enforcement videos. In his Amended Complaint, which supersedes
Plaintiff’s Original Complaint, Plaintiff now acknowledges that he was running across IH 635 on
foot when Warren instructed his wife to drive toward him. Thus, according to Plaintiff’s live

pleadings, Warren observed him and struck him with the car door while he was attempting to cross
IH 635, not when he was standing on the shoulder of IH 635, waiting for traffic to lighten.

Memorandum Opinion and Order – Page 16
Plaintiff makes much ado that Warren was not aware he was suspected of shoplifting, a
nonviolent misdemeanor offense, and did not actually take anything from Home Depot. This
argument is misplaced. The reasonableness of a police officer’s conduct is assessed in light of
circumstances then confronting him or her at the scene, rather than hindsight, and from the

perspective of a reasonable officer. Graham, 490 U.S. at 396. Thus, the reasonableness of Warren’s
conduct must be viewed in the context of what he knew at the moment when he allegedly struck
Hobbs with the car door, not what he did not know, but learned later.
Regardless of what transpired before Warren came onto the scene, Warren, and a reasonable
police officer standing in his shoes, could have reasonably believed that Hobbs’s conduct in running
across IH 635 to avoid detention or arrest posed a threat of serious harm to Hobbs, the police officers
chasing him across an interstate highway, and innocent motorists who might happen to unknowingly

come upon the pursuit with little or no advance notice. That all of this was playing out on an
interstate highway where vehicles generally travel at a much higher rate of speed than in a residential
area also adds to the potential danger created by Hobbs’s conduct.8 Under these circumstances, and
given Hobbs’s refusal to stop as commanded, a reasonable officer in Warren’s shoes could have
believed that the force used to stop him was reasonable and necessary, even though a violation of
section 42.03 of the Texas Penal Code is a Class B misdemeanor. Tex. Penal Code Ann. § 42.03(c).

8 In making this determination, the court disregards Warren’s contention that IH 635 is a “busy interstate
highway.” Def.’s Mot. to Dismiss 4, 5, 9. While this may be common knowledge to those who live in the Dallas-Fort
Worth metroplex, Plaintiff does not allege that IH 635 is generally busy or that IH 635 was busy on the day in question.
The court, however, can reasonably infer from Plaintiff’s pleadings that the incident occurred on January 7, 2019, which
was a week day, and during Home Depot’s business hours, as opposed to the “wee hours” of the morning. Regardless,
whether traffic was heavy at the moment when Plaintiff was attempting to run across IH 635 on foot is of no moment
because, as explained, this could have changed in an instant, given the high speeds at which vehicles generally travel on
an interstate highway.
Memorandum Opinion and Order – Page 17
Hobbs’s allegation that he was unarmed does not change this determination by the court, as because
there is no indication from Hobbs’s pleadings that Warren knew Hobbs was unarmed.
Moreover, with respect to law enforcement activity, officers often observe and rely on the
conduct and statements of other law enforcement in a fast-moving situation. Such reliance is often

necessary when split-second decisions must be made. From Warren’s perspective, seeing Hobbs
running, red lights flashing, and commands from police officers yelling for him to stop, it was quite
reasonable for him to believe that Hobbs was evading arrest or detention and to assist the pursuing
officers in detaining or arresting him.
In detecting and suppressing crime, common sense and reason are not thrown to the wind.
In other words, Warren had reason to believe criminal activity was afoot. That Home Depot
personnel may have asked the Mesquite officers not to pursue Hobbs is quite beside the point,

because nothing in the pleadings indicates that Warren was aware of what Home Depot personnel
allegedly said. Likewise, that charges were later dismissed is of no moment because the
determinative issue is how things reasonably appeared to Warren at the time he encountered Hobbs.
Hobbs alleges that he was not displaying a weapon, but he does not allege that his hands were
in full view; nor does he allege that it was readily apparent from the clothing he was wearing on the
winter day in question, January 7, 2019, that he was not concealing a weapon. That Hobbs turned
out to be unarmed is not relevant to the court’s analysis and, in any event, is outweighed by the
perceived risk posed by his conduct in fleeing to evade detention or arrest, disregarding commands

by police officers for him to stop, and running across an interstate highway, all of which, according
to his Amended Complaint, was happening quickly when he was struck by the car door. The threat
of serious harm posed by Hobbs’s conduct in running across IH 635, and Warren’s lack of
Memorandum Opinion and Order – Page 18
knowledge regarding the underlying shoplifting offense, also distinguishes this case from Brown v.
Long Beach Police Department.
The parties’ remaining contentions are not relevant to the court’s analysis. Specifically,
Plaintiff’s contentions and allegations that Warren instructed his wife to drive toward him before

allegedly striking him with the passenger door of the car and weaponized the car door and vehicle
driven by his wife to “flatten” him are quite beside the point, to the extent they suggest Warren’s
motives in assisting the Mesquite police officers were improper. As noted, a police officer’s motives
are irrelevant such that “[a]n officer’s evil intentions will not make a Fourth Amendment violation
out of an objectively reasonable use of force[.]” Graham, 490 U.S. at 397 (citation omitted). While
Warren suggests in his Motion to Dismiss that he may have opened the passenger door simply to exit
the vehicle when Hobbs was struck, this assertion is outside the pleadings and is not considered by

the court in ruling on the Motion to Dismiss. Warren’s contentions regarding eyewitness accounts
and other matters outside the scope of the pleadings are similarly irrelevant in the context of a
motion to dismiss under Rule 12(b)(6).
Accordingly, for all of these reasons, the factual allegations in Hobbs’s Amended Complaint,
even when accepted as true, are not sufficient to demonstrate to the court for it to conclude at this
point that Warren’s use of force was clearly excessive to the need and unreasonable under the
circumstances. As a result, Hobbs has not sufficiently pleaded a claim of excessive force. Even
assuming, as Hobbs contends, that the facts pleaded by him are adequate to survive a Rule 12(b)(6)

challenge, the court determines, for the reasons explained in the magistrate judge’s Report, that his
excessive force claim is, nevertheless, barred on the basis of qualified immunity.

Memorandum Opinion and Order – Page 19
B. Warren’s Defense of Qualified Immunity
1. Standard for Qualified Immunity
Government officials who perform discretionary functions are entitled to the defense of
qualified immunity, which shields them from suit as well as liability for civil damages, if their

conduct does 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). A defendant official
must affirmatively plead the defense of qualified immunity. Gomez v. Toledo, 446 U.S. 635, 640
(1980). Warren has asserted this defense in his Answer and Motion to Dismiss.
In deciding a dispositive motion that raises the defense of qualified immunity, the Supreme
Court initially set forth a mandatory two-part inquiry for determining whether a government official
was entitled to qualified immunity. Saucier v. Katz, 533 U.S. 194, 201 (2001). Under Saucier, a

court must determine first whether the facts alleged or shown are sufficient to make out a violation
of a constitutional or federal statutory right. If the record sets forth or establishes no violation, no
further inquiry is necessary. On the other hand, if the plaintiff sufficiently pleads or establishes that
a violation could be made out, the court must determine whether the right at issue was clearly
established at the time of the government official’s alleged misconduct. Id. The Court relaxed this
mandatory sequence in Pearson v. Callahan, 555 U.S. 223 (2009), and stated, “[W]hile the sequence
set forth [in Saucier] is often appropriate, it should no longer be regarded as mandatory,” and judges
“should be permitted to exercise their sound discretion in deciding which of the two prongs of the

qualified immunity analysis should be addressed first in light of the circumstances in the particular
case at hand.” Id. at 236.

Memorandum Opinion and Order – Page 20
The second prong of the test “is better understood as two separate inquiries: whether the
allegedly violated constitutional right[] [was] clearly established at the time of the incident; and if
so, whether the conduct of the defendant[] [official] was objectively unreasonable in light of that
then clearly established law.” Hanks v. Rogers, 853 F.3d 738, 744 (5th Cir. 2017) (quoting Tarver

v. City of Edna, 410 F.3d 745, 750 (5th Cir. 2005) (internal quotation marks and citations omitted));
see also Evans v. Ball, 168 F.3d 856, 860 (5th Cir. 1999); Hare v. City of Corinth, 135 F.3d 320, 326
(5th Cir. 1998); Eugene v. Alief Indep. Sch. Dist., 65 F.3d 1299, 1305 (5th Cir. 1995).
Ordinarily, one who pleads an affirmative defense must establish his entitlement to such
defense. In the context of qualified immunity, however, this burden varies from the norm. In this
circuit, the rule is as follows:
Where . . . [a] defendant pleads qualified immunity and shows he is a governmental
official whose position involves the exercise of discretion, the plaintiff then has the
burden to rebut this defense by establishing that the official’s allegedly wrongful
conduct violated clearly established law. We do not require that an official
demonstrate that he did not violate clearly established federal rights; our precedent
places that burden upon plaintiffs.
Pierce v. Smith, 117 F.3d 866, 871-72 (5th Cir. 1997) (internal quotations and citations omitted); see
also Brown v. Callahan, 623 F.3d 249, 253 (5th Cir. 2010).
A right is “clearly established” only when its contours are sufficiently clear that a reasonable
public official would have realized or understood that his conduct violated the right in issue, not
merely that the conduct was otherwise improper. See Anderson v. Creighton, 483 U.S. 635, 640
(1987); Foster v. City of Lake Jackson, 28 F.3d 425, 429 (5th Cir. 1994). Thus, the right must not
only be clearly established in an abstract sense but in a more particularized sense so that it is
apparent to the official that his actions [what he is doing] are unlawful in light of pre-existing law.
Memorandum Opinion and Order – Page 21
Anderson v. Creighton, 483 U.S. at 640; Stefanoff v. Hays Cty., 154 F.3d 523, 525 (5th Cir. 1998);
and Pierce v. Smith, 117 F.3d at 871.
In Anderson, 483 U.S. at 641, the Court refined the qualified immunity standard and held that
the relevant question is whether a reasonable officer or public official could have believed that his

conduct was lawful in light of clearly established law and the information possessed by him. If
public officials or officers of “reasonable competence could disagree [on whether the conduct is
legal], immunity should be recognized.” Malley v. Briggs, 475 U.S. 335, 341 (1986); Gibson v.
Rich, 44 F.3d 274, 277 (5th Cir. 1995) (citing Babb v. Dorman, 33 F.3d 472, 477 (5th Cir. 1994)).
Qualified immunity is designed to protect from civil liability “all but the plainly incompetent or
those who knowingly violate the law.” Malley v. Briggs, 475 U.S. at 341. Conversely, an official’s
conduct is not protected by qualified immunity if, in light of clearly established pre-existing law, it

was apparent the conduct, when undertaken, would be a violation of the right at issue. Foster, 28
F.3d at 429. To preclude qualified immunity, it is not necessary for a plaintiff to establish that “the
[specific] action in question has previously been held unlawful.” Anderson, 483 U.S. at 640. For
an official, however, to surrender qualified immunity, “pre-existing law must dictate, that is, truly
compel (not just suggest or allow or raise a question about), the conclusion for every like-situated,
reasonable government agent that what the defendant is doing violates federal law in the
circumstances.” Pierce v. Smith, 117 F.3d at 882 (emphasis in original and citation omitted); and
Stefanoff v. Hays Cty., 154 F.3d at 525. Stated differently, while the law does not require a case

directly on point, “existing precedent must have placed the statutory or constitutional question
beyond debate.” Ashcroft v. Al-Kidd, 563 U.S. 731, 741 (2011) (citations omitted).

Memorandum Opinion and Order – Page 22
In analyzing qualified immunity claims, the Supreme Court has “repeatedly told courts …
to not define clearly established law at a high level of generality.” Mullenix v. Luna, 136 S. Ct. 305,
308 (2015) (citation omitted). Pursuant to Mullenix, courts must consider “whether the violative
nature of particular conduct is clearly established” and must undertake this inquiry “in light of the

specific context of the case, not as a broad general proposition.” Id. (citations and internal quotations
marks omitted). To defeat or overcome an official’s qualified immunity defense, a plaintiff’s
complaint must allege specific facts that, if proved, would show that the official’s conduct violated
clearly established constitutional or statutory rights. If “the pleadings on their face show an
unreasonable violation of a clearly established constitutional right,” the assertion of a qualified
immunity defense is insufficient to sustain a Rule 12(b)(6) motion to dismiss. Shipp v. McMahon,
234 F.3d 907, 912 (5th Cir. 2000), overruled in part on other grounds by McClendon v. City of

Columbia, 305 F.3d 314 (5th Cir. 2002) (en banc).
2. Clearly Established
The parties disagree whether Warren’s conduct violated the second prong of qualified
immunity, that is, whether his conduct was objectively unreasonable in light of clearly established
law at the time in question. Magistrate Judge Ramirez determined that Warren is entitled to
qualified immunity because:
Taking the allegations in the amended complaint as true, as required at this
stage of the proceedings, Plaintiff has not carried his burden of identifying
controlling precedent or a robust consensus that “squarely governs” the specific facts
at issue in this case, or places the constitutional question beyond debate such that any
reasonable officer would know that using a door-check to stop a suspect attempting
to run across an interstate highway violates the Fourth Amendment.
Memorandum Opinion and Order – Page 23
Report 12 (citing Morrow, 917 F.3d at 876-77; and Bustillos v. El Paso Cty. Hosp. Dist., 891 F.3d
214, 222 (5th Cir. 2018)). In support of this conclusion, Judge Ramirez reasoned:
Both the Supreme Court and the Fifth Circuit have made clear that police
officers are entitled to qualified immunity unless existing precedent “squarely
governs” the specific facts at issue. See Kisela [v. Hughes, 138 S. Ct. 1148, 1153
(2018)]; Morrow, 917 F.3d at 876. A case involving a petite teenage girl attempting
to flee a 300-pound truancy officer does not “squarely govern” the allegations in
Plaintiff’s complaint that Officer saw flashing police lights, heard police officers’
verbal commands to stop, and saw a fleeing adult male suspect attempting to run
across the interstate highway on which Officer was traveling. See id. Brown does not
so clearly establish the law so that “in the blink of an eye,” every reasonable officer
in this circuit would immediately know that intentionally door-checking a suspect to
stop him from running across an interstate highway violated the Fourth Amendment.
Morrow, 917 F.3d at 876. Plaintiff has not met his burden to identify relevant
precedent that placed the constitutional question beyond debate.
Nor has he alleged facts that rise to the level of an obvious constitutional
violation for which no materially similar case is required. See Hope [v. Pelzer, 536
U.S. 730, 738 (2002)]. The complaint alleges that as Officer was traveling on the
interstate, he was able to see flashing police lights, hear the [Mesquite Police
Department] officers’ verbal commands to stop, and see Plaintiff attempting to run
across it. These facts are sufficient to support a perceived threat to pursuing officers
or innocent motorists traveling on an interstate who might suddenly slow down
because of the flashing lights and/or brake or swerve to avoid hitting a person
running across it. Officer made a split second judgment to door-check Plaintiff to
stop his flight across the highway. Even viewing the facts in the light most favorable
to Plaintiff, he has not pleaded “extreme or egregious conduct” of the type found to
be a clearly established violation of a more general constitutional right. See
Zimmerman, 657 F. App’x at 346.
Report 9-10 (footnote omitted). The magistrate judge also explained why the other cases relied on
by Plaintiff—Cooper and Darden—are distinguishable and noted that Plaintiff himself had conceded
that the cases are distinguishable. Id. at 10 n.5. In addition, the magistrate judge noted that Plaintiff
had not pointed to any “robust consensus of persuasive authority” outside of the Fifth Circuit to show
that the “law so clearly and unambiguously prohibit[ed] [Warren’s] conduct such that every
reasonable official would understand that the particular conduct violate[d] the law.” Id. at 10.
Memorandum Opinion and Order – Page 24
In his objections to the Report, Hobbs contends that the magistrate judge erred in: (1)
concluding that the law is not clearly established; and (2) applying the wrong legal standard.
Regarding his first objection, Hobbs argues that there is abundant case authority in the Fifth Circuit
concerning the force that can be used on persons who are fleeing the police. Hobbs contends that he

listed several cases, including Brown v. Long Beach Police Department, but the magistrate judge
incorrectly distinguished this case and did not address the others he cited. Hobbs contends that it
is not necessary to have case authority that is factually identical, and the magistrate judge incorrectly
focused on the instrumentality of the force used—a car door—in determining whether the law was
clearly established to put Warren on notice that his conduct was unlawful.
As indicated above, the magistrate judge considered and distinguished the cases relied on by
Plaintiff. In addition to Brown, Darden, and Cooper, Plaintiff also referenced Zimmerman v. Cutler.

Plaintiff, however, did not explain in his response to the Motion to Dismiss or objections to the
Report why he believes this case supports his contention that the law was so clearly and
unambiguously established at the time to put Warren on notice that his use of the passenger door of
a moving car to stop him from fleeing and crossing IH 635 on foot was unlawful under the
circumstances confronting him. Plaintiff cited other cases in his response to the Motion to Dismiss
but not with respect to the second prong of qualified immunity. His objection that the magistrate
judge did not address the cases relied on by him regarding this issue is, thus, without merit.
The court also agrees with the magistrate judge’s reasoning for distinguishing Plaintiff’s

cases, and it finds no error in her conclusion, based on the factual allegations in the Amended
Complaint, that Plaintiff has not carried his burden of “identifying controlling precedent or a robust
consensus that ‘squarely governs’ the specific facts at issue in this case, or places the constitutional
Memorandum Opinion and Order – Page 25
question beyond debate such that any reasonable officer would know that using a door-check to stop
a suspect attempting to run across an interstate highway violates the Fourth Amendment.” Report
12 (citations omitted). The court understands Plaintiff’s contention that he posed no threat because:
(1) he was unarmed; (2) only suspected by Mesquite police officers of shoplifting; and (3) Warren

was oblivious to this fact. As previously explained, however, this argument disregards other key
allegations in Plaintiff’s Amended Complaint regarding the perceived threat to officers chasing him
across an interstate highway and innocent motorists traveling on IH 635 that support the magistrate
judge’s determination. The argument also applies the wrong legal standard to the extent Plaintiff
contends that the court should consider facts unknown to Warren at the time.
Regarding his second objection, Plaintiff contends that the magistrate judge applied the
wrong legal standard because she failed to accept as true the factual allegations in his Amended

Complaint:
The magistrate found that the “facts are sufficient to support a perceived
threat to pursuing officers or innocent motorists traveling on an interstate who might
suddenly slow down because of the flashing lights and/or brake to swerve to avoid
hitting a person running across it. Officer made a split second judgment to
door-check Plaintiff to stop his flight across the highway.” (ECF 60, page 10).
In evaluating a motion brought under Rule 12(b)(6), a court must accept all
well-pleaded facts as true. Walker v. Beaumont Indep. Sch. Dist., 938 F.3d 724, 734
(5th Cir. 2019). Here, Plaintiff pleaded that there was time to contemplate the
circumstance before acting. (ECF 33, ¶¶14-15). Defendant Warren saw Hobbs,
Defendant Warren was not driving, Defendant Warren asked his wife to change lanes
to get closer to Hobbs, and then when they got close to Hobbs, Defendant Warren
used the weight and momentum of the car to crush Hobbs. (ECF 33, ¶¶14-19).
Further, Hobbs alleged that he “was not carrying a weapon or threatening
anyone as he was fleeing the officers.” (ECF 33, ¶14). Hobbs pleaded that he posed
no threat to any cars or drivers on the interstate and that he posed no threat to the
officers in pursuit of Hobbs. (ECF 33, ¶14).
Memorandum Opinion and Order – Page 26
Thus, the pleading alleges that this was not a “split second decision,” but was
instead a deliberate choice. Accordingly, the magistrate applied the wrong standard.
Pl.’s Obj. 6.9
Plaintiff’s allegation that he was not threatening anyone and posed no threat to Warren, other
officers, or motorists is a legal conclusion that must be viewed in the context of all facts and
circumstances alleged in the Amended Complaint that are relevant to the reasonableness of force
used by Warren, not just those that fit Plaintiff’s chosen narrative. Moreover, as already explained,
any improper motive Warren may have had is not relevant, and neither the court’s nor the magistrate

judge’s analysis has viewed his use of force as unintentional or accidental as Warren suggests in his
Motion to Dismiss, which is outside the scope of the pleadings. That the magistrate judge disagreed
with Plaintiff’s characterization of his pleadings or the legal authority relied on by him does not
establish that she applied the wrong legal standard. Further, Plaintiff’s objection that “he pleaded
that there was time to contemplate the circumstance before acting” is not supported by the factual
allegations in his Amended Complaint. The court, therefore, overrules Plaintiff’s objections to the
Report.

In the final analysis, if public officials or law enforcement officers of “reasonable competence
could disagree [on whether the conduct is legal or appropriate], immunity should be recognized.”
Malley, 475 U.S. at 341. Based on the situation confronting Warren, there is no question that
reasonable officers could disagree on Warren’s conduct during his encounter with Hobbs. A police
officer’s lot is not so hapless that the law allows courts to engage in second-guessing or to conduct
an analysis based on facts not known to Warren. To do so, violates long-established precedent by

9 Though Plaintiff cites “ECF 33,” his Amended Complaint actually appears on the docket sheet as Document
No. 41.
Memorandum Opinion and Order – Page 27
the Supreme Court and Fifth Circuit that demands district courts base their analysis on the
circumstances as they reasonably appeared to the officer at the time he or she engaged in the conduct
that is alleged to have been unconstitutional or unlawful. In other words, Hobbs has not convinced
the court that he has set forth sufficient allegations to show that the constitutionality of Warren’s

conduct was “beyond debate.” Al-Kidd, 563, U.S. at 741.
III. Amendment of Pleadings
The provision of Rule 15(a)(2) of the Federal Rules of Civil Procedure that states “[t]he court
should freely give leave when justice so requires” is not without limitation. The decision to allow
amendment of a party’s pleadings is within the sound discretion of the district court. Foman v.
Davis, 371 U.S. 178, 182 (1962); Norman v. Apache Corp., 19 F.3d 1017, 1021 (5th Cir. 1994)
(citation omitted). In determining whether to allow an amendment of the pleadings, a court

considers the following: “undue delay, bad faith or dilatory motive on the part of the movant,
repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the
opposing party by virtue of allowance of the amendment, [and] futility of amendment.” Foman, 371
U.S. at 182; Schiller v. Physicians Res. Grp. Inc., 342 F.3d 563, 566 (5th Cir. 2003) (citation
omitted).
Although Hobbs requested to amend his pleadings in response to Warren’s Motion to
Dismiss, he did not explain how he would cure the deficiencies noted in the Motion to Dismiss that
the court has determined to be dispositive. He also provided no explanation in his objections to the

Report as to how he would cure the deficiencies identified by the magistrate judge. Additionally,
Plaintiff was previously allowed to amend his pleadings after the first round of motions to dismiss
were filed, and the court is not convinced that the deficiencies identified are curable now that he
Memorandum Opinion and Order – Page 28
alleges in his Amended Complaint that he was in the process of attempting to cross IH 635 when
struck, as opposed to merely standing on the shoulder of the highway waiting for traffic to lighten
before crossing. When viewed in the context of Hobbs’s acknowledgment that—Warren knew that
he was fleeing to evade detention or arrest despite commands by the Mesquite police officers for him

to stop and saw police lights flashing— this allegation supports the magistrate judge’s determination
that Warren’s conduct was not objectively unreasonable in light of the facts and circumstances
confronting him at that moment or clearly established law at the time. Hobbs’s allegation that he
was unarmed does not change the result. Regardless, when a plaintiff has previously amended his
or her pleadings, “[a]t some point, a court must decide that a plaintiff has had fair opportunity to
make his case; if, after that time, a cause of action has not been established, the court should finally
dismiss the suit.” Jacquez v. Procunier, 801 F.2d 789, 792-93 (5th Cir. 1986); see also Schiller, 342

F.3d at 567 (citation omitted). Plaintiff has had fair opportunity to make his case, and the court
determines that he has pleaded his “best case,” such that further amendment would be futile and
unnecessarily delay the resolution of this litigation. Accordingly, the court denies Plaintiff’s request
to amend his pleadings.
IV. Conclusion
For the reasons explained, the court concludes that Plaintiff has failed to plead sufficient
facts to support his excessive force claim and to defeat Warren’s defense of qualified immunity.

Warren is, therefore, entitled to qualified immunity on Plaintiff’s excessive force claim. Having
reviewed Warren’s Motion to Dismiss, the parties’ briefs, the pleadings, and Report, and having
conducted a de novo review of that portion of the Report to which objection was made by Plaintiff,
the court determines that the findings and conclusions of the magistrate judge are correct, and
Memorandum Opinion and Order – Page 29
accepts them, as supplemented, as those of the court. Accordingly, the court overrules Plaintiffs
objections, grants Defendant Kyle Warren’s Motion to Dismiss Plaintiff’ s First Amended Complaint
(Doc. 46), and dismisses with prejudice Plaintiff's excessive force claim brought pursuant to
section 1983. Further, the court denies Plaintiff's request to further amend his pleadings. As no
claims remain, the court will issue a judgment by separate document as required by Federal Rule of
Civil Procedure 58.
It is so ordered this 22nd day of May, 2020.

United States District Judge

Memorandum Opinion and Order — Page 30

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10448552. Public record. Not legal advice.