Arreola v. City of Fort Worth

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

BRENDA ARREOLA, AS NEXT §

FRIEND OF PHILLIP §

MICHAEL VALLEJO, JR. et al., §

§

Plaintiffs, §

§

Civil Action No. 4:17-cv-00629-P

v. §

§

CITY OF FORT WORTH et al., §

§

Defendants. §

MEMORANDUM OPINION AND ORDER

Before the Court is Defendant M.J. Ochsendorf’s Motion to Dismiss for Failure to

State a Claim, Failure of Standing and Capacity, and Failure to Overcome Qualified

Immunity, and alternatively Motion to Transfer (“Ochsendorf’s MTD”). See ECF No. 14.

Also before the Court is City of Fort Worth’s (“City”) and City of Fort Worth Police

Department’s (“FWPD”) First Amended Motion to Dismiss (“First Amend. MTD”). See

ECF No. 69. Having considered the Ochsendorf’s Motion to Dismiss, briefing, and

applicable law, the Court finds that Ochsendorf’s Motion to Dismiss should be and is

hereby GRANTED in part and DENIED in part. Having considered City’s and FWPD’s

First Amended Motion to Dismiss, briefing, and applicable law, the Court finds that the

First Amended Motion to Dismiss should be and is hereby GRANTED.

BACKGROUND1

On July 30, 2015, Phillip Vallejo and Brenda Vallejo went to Ojos Locos, an

establishment located off of Houston Street in Fort Worth, Texas, to celebrate Phillip’s

thirtieth birthday. Compl. at ¶ 13. By the early morning of July 31, 2015, Phillip and

Brenda prepared to leave Ojos Locos when Phillip returned to their table to tip the

employees of Ojos Locos. Id. at ¶ 14. According to Plaintiffs’ Complaint, Brenda waited

for Phillip near the main entrance of Ojos Locos. While she waited, a group of intoxicated

males acted aggressively and inappropriately toward her. Id. Phillip returned to find

Brenda visibly upset, and he engaged in a verbal exchange with three of the individuals.

Id. at ¶ 15. During the exchange, one of the men pulled up his shirt to reveal a gun tucked

in his waistband. Id. at ¶ 16. Phillip and Brenda walked to their car, and Phillip retrieved

a cigarette and smoked it. Id. The group of men involved in the verbal altercation

eventually walked away from Ojos Locos. Id. Phillip and Brenda did not leave but

remained immediately in front of Ojos Locos “discussing what had just occurred.” Id. at

¶ 17.

According to Plaintiffs, Ochsendorf, an officer with the FWPD, arrived on a bicycle.

Id. at ¶ 18. Plaintiffs’ account of what happened next is as follows:

Upon arrival, Defendant Ochsendorf drew his gun and aimed it towards

Phillip’s back and Brenda who was facing both Phillip and Defendant

Ochsendorf. Defendant Ochsendorf and Phillip were facing in the same

direction towards Ojos Locos[,] which was still occupied with several

1Unless otherwise cited, the Court draws its factual account from the allegations in

Plaintiffs’ Original Complaint (“Compl.”). See ECF No. 1; Manguno v. Prudential Prop. & Case.

Ins. Co., 276 F.3d 720, 725 (5th Cir. 2002) (noting that when considering a Rule 12(b)(6) motion

to dismiss “all facts pleaded in the complaint must be taken as true”).

patrons as it was still open for business. Defendant Ochsendorf stalked

Phillip who remained in the immediate presence of Brenda, and then began

to fire his gun into Phillip’s back[, which was] confirmed by the video

recording and an independent autopsy report.

Id. Plaintiffs allege that Phillip “had his hands raised and fully exposed” while he was

being shot and that Ochsendorf continued to fire at Phillip as he was falling to the ground.

Id. at ¶ 19.

Plaintiffs allege that after Phillip was shot, he laid on the ground bleeding,

handcuffed, and yelling that he could not breathe; despite this, Ochsendorf and the other

responding officers refused to respond to or provide Phillip with emergency medical care.

Id. at ¶¶ 20–21. Plaintiffs allege that Phillip was later pronounced dead at the hospital. Id.

at ¶ 24.

PROCEDURAL HISTORY

Plaintiffs Brenda Vallejo, individually and as next friend of minors P.M.V., Jr. and

G.B.V. and as representative of the Estate of Phillip Vallejo and Rebecca Vallejo, filed the

underlying Complaint on July 31, 2017, against City, FWPD, and Ochsendorf individually

and as an agent of the FWPD. Compl., ECF No. 1. Plaintiffs alleged a variety of federal

and state claims. Id.

City and FWPD filed a Motion to Dismiss and alternatively a Motion to Transfer

(ECF No. 12), and shortly thereafter, Ochsendorf filed a Motion to Dismiss and Motion to

Transfer (ECF No. 14).2 The motions to dismiss and responsive briefs were referred to

2The crux of Defendants’ motions to transfer regarded a previously filed civil action by

Plaintiffs against these same Defendants arising out of the same facts that was pending in this

United States Magistrate Judge Hal R. Ray, Jr. (ECF No. 30), who issued Findings,

Conclusions, and Recommendation that the motions to transfer be denied and the case

stayed pending the administration of the estate of Phillip Vallejo. See ECF No. 31. Judge

Ray also recommended to defer on ruling on the pending motions to dismiss until the

administration of Phillip’s estate had proceeded through probate. See id. at 1–2. The then-

presiding District Judge Reed O’Connor adopted the findings and conclusions and stayed

and administratively closed the case for sixty days, pending the appointment of a personal

representative of Phillip Vallejo’s estate. See ECF No. 36. Judge O’Connor also deferred

ruling on the motions to dismiss but indicated that Plaintiffs’ excessive force claim would

likely survive 12(b)(6) scrutiny. See id. at 6.

On March 29, 2019, Plaintiffs filed a Motion to Reinstate and sought to reopen the

case because Brenda Vallejo, now Brenda Arreola, had been appointed as the Dependent

Administrator of the Estate of Phillip Vallejo. ECF No. 42. After receiving responsive

briefing, Judge O’Connor entered an order reinstating the case and amending the style.

ECF No. 51. Plaintiffs are now identified as Brenda Arreola as next friend of Phillip

Court before the Honorable United States District Judge John McBryde. Defendants alleged that

Plaintiffs strategically voluntarily dismissed the first case without prejudice in order to refile

with hopes of avoiding Judge McBryde. See ECF No. 12 at 18 (seeking transfer to Judge

McBryde to “avoid forum shopping”); ECF No. 14 at 28 (arguing that Plaintiffs’ actions in the

prior case “raises at least the prospect of judge shopping”). Of course, if these allegations are

correct, Plaintiff’s actions would be disrespectful to the court and unbecoming a member of the

bar. See, e.g., Texas Lawyer's Creed—A Mandate for Professionalism, reprinted in TEXAS

RULES OF COURT 735–37 (West 2018) (“I will always recognize that the position of judge is the

symbol of both the judicial system and administration of justice,” “I will refrain from conduct

that degrades this symbol,” and “I will conduct myself in Court in a professional manner and

demonstrate my respect for the Court and the law.”).

Michael Vallejo Jr., and Gianna Brielle Vallejo, and as Dependent Administrator of Estate

of Phillip Vallejo. On December 27, 2019, City and FWPD filed a First Amended Motion

to Dismiss. ECF No. 69. Plaintiffs subsequently filed a Response. See ECF No. 81.

Accordingly, Ochsendorf’s Motion to Dismiss and City’s and FWPD’s First

Amended Motion to Dismiss are now ripe for review.

LEGAL STANDARDS

A. Motion to Dismiss

Federal Rule of Civil Procedure 8(a) requires a claim for relief to contain “a short

and plain statement of the claim showing that the pleader is entitled to relief.” FED. R. CIV.

P. 8(a)(2). Rule 8 does not require detailed factual allegations, but “it demands more than

an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). If a

plaintiff fails to satisfy Rule 8(a), the defendant may file a motion to dismiss the plaintiff’s

claims under Federal Rule of Civil Procedure 12(b)(6) for “failure to state a claim upon

which relief may be granted.” FED. R. CIV. P. 12(b)(6).

To defeat a motion to dismiss pursuant to Rule 12(b)(6), a plaintiff must plead

“enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at

570. “A claim has facial plausibility when the plaintiff pleads factual content that allows

the court to draw the reasonable inference that the defendant is liable for the misconduct

alleged.” Iqbal, 556 U.S. at 663 (citing Twombly, 550 U.S. at 556). “The plausibility

standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer

possibility that a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 556).

“Where a complaint pleads facts that are ‘merely consistent with’ a defendant’s liability, it

‘stops short of the line between possibility and plausibility of entitlement to relief.’” Id.

(quoting Twombly, 550 U.S. at 557).

In reviewing a Rule 12(b)(6) motion, the Court must accept all well-pleaded facts

in the complaint as true and view them in the light most favorable to the plaintiff. Sonnier

v. State Farm Mut. Auto. Ins. Co., 509 F.3d 673, 675 (5th Cir. 2007). The Court is not

bound to accept legal conclusions as true, and only a complaint that states a plausible claim

for relief survives a motion to dismiss. Iqbal, 556 U.S. at 678–79. When there are well-

pleaded factual allegations, the Court assumes their veracity and then determines whether

they plausibly give rise to an entitlement to relief. Id.

B. Qualified Immunity

“Because qualified immunity is an immunity from suit rather than a mere defense

to liability,” it is important to resolve “immunity questions at the earliest possible stage in

litigation” so that the immunity is not effectively lost. Pearson v. Callahan, 555 U.S. 223,

231–32, 129 S. Ct. 808 (2009) (internal citations and quotation marks omitted); see also

Backe v. LeBlanc, 691 F.3d 645, 648 (5th Cir. 2012) (“[A]s the Supreme Court has noted,

that is precisely the point of qualified immunity: to protect public officials from expensive,

intrusive discovery until and unless the requisite showing overcoming immunity is

made.”). Thus, “questions regarding qualified immunity are resolved on the face of the

pleadings and with limited resort to pre-trial discovery.” James ex rel. James v. Sadler,

909 F.2d 834, 838 (5th Cir. 1990). Courts require that § 1983 plaintiffs satisfy specific

pleading requirements in cases, such as this, in which an immunity defense can be raised.

Jackson v. City of Beaumont Police Dep’t, 958 F.2d 616, 620 (5th Cir. 1992). Qualified

immunity is available to public officials such as prison guards and state hospital employees,

who exercise discretion. See, e.g., Wood v. Strickland, 420 U.S. 308, 318 (1975) (“[I]n

varying scope, a qualified immunity is available to officers of the executive branch of

Government, the variation being dependent upon the scope of discretion and

responsibilities of the office and all the circumstances as they reasonably appeared at the

time of the action on which liability is sought to be based. It is the existence of reasonable

grounds for the belief formed at the time and in light of all the circumstances, coupled with

good-faith belief, that affords a basis for qualified immunity of executive officers for acts

performed in the course of official conduct.” (quoting Scheuer v. Rhodes, 416 U.S. 232,

247–48 (1974))).

When a public official asserts qualified immunity, the Court must proceed to a two-

step analysis. Foley v. Univ. of Hous. Sys., 355 F.3d 333, 337 (5th Cir. 2003). “First, we

must determine whether the plaintiff has made a sufficient showing that the official violated

a clearly established constitutional or statutory right.” Id. “A right is clearly established

when its contours are sufficiently clear that a reasonable official would understand that

what he is doing violates that right.” Gates v. Tex. Dep’t of Protective & Regulatory Servs.,

537 F.3d 404, 419 (5th Cir. 2008). If the plaintiff satisfies step one, the Court asks whether

the official’s actions were objectively reasonable in light of the clearly established right.

Foley, 355 F.3d at 337. “We consider an official’s conduct to be objectively reasonable

unless all reasonable officials in the defendant’s circumstances would have then known

that the conduct violated the Constitution.” Gates, 537 F.3d at 419. At the motion to

dismiss stage of a proceeding, the alleged conduct of the defendant is what “is scrutinized

for objective legal reasonableness.” McClendon v. City of Columbia, 305 F.3d 314, 323

(5th Cir. 2002). Although courts normally handle the two steps sequentially, district courts

retain “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.”

Pearson, 555 U.S. at 236.

ANALYSIS OF OCHSENDORF’S MOTION TO DISMISS

The claims that Plaintiffs assert against Ochsendorf are as follows: (1) violations

of Plaintiffs’ Fourteenth Amendment by deliberate indifference to serious medical needs;

(2) violations of Plaintiffs’ Fourth and Fourteenth Amendment rights by using excessive

force; (3) deprivations of Plaintiffs’ familial relationships and companionship; (4) a state

law claim for intentional infliction of emotional distress; and (5) various claims against

Ochsendorf in his official capacity. Compl. at ¶¶ 42–86.

A. Deliberate Indifference to Serious Medical Needs, Health, and Safety

Plaintiffs first bring a 42 U.S.C. § 1983 claim for violations of the Fourteenth

Amendment when Defendants allegedly denied Phillip adequate medical care after being

shot. Id. at ¶¶ 42–51. Plaintiffs allege that although Defendants “knew that Phillip Vallejo

was bleeding and having difficulty breathing while handcuffed and required immediate

medical attention[,]” Defendants “effectively disregarded this risk of further medical

complications and/or additional physical harm including loss of life thereby constituting

deliberate indifference as to Phillip Vallejo’s need for medical treatment by not

effectuating proper medical treatment and medical care.” Id. at ¶¶ 45–46.

In his Motion to Dismiss, Ochsendorf asserts that Plaintiffs’ claim should be

analyzed under the procedural and substantive due process guarantees of the Fourteenth

Amendment rather than the Eighth Amendment’s protection from cruel and unusual

punishment. MTD at 10. In either case, however, Ochsendorf contends that there must be

a showing of deliberate indifference, which in turn requires Plaintiffs to allege that

Ochsendorf’s alleged actions were both objectively unreasonable and that he intended the

consequences of his actions. Id. at 11. Ochsendorf argues that nowhere in Plaintiffs’

Complaint do they allege the location or actions of Ochsendorf immediately after Phillip

was shot. Id. Finally, Ochsendorf argues that Plaintiffs fail to allege how long Phillip went

without medical treatment or when and what care he ultimately received. Id. Thus,

Ochsendorf seeks dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6). Id. at

12.

In their Response, Plaintiffs rely on the same legal standard articulated by

Ochsendorf: the constitutional right of a pretrial detainee to medical care arises from the

Fourteenth Amendment, and a violation of this right requires a showing of deliberate

indifference. MTD Resp. at 7. Plaintiffs then assert that the Complaint has alleged

Ochsendorf’s affirmative acts that establish Ochsendorf acted with deliberate indifference.

Id. at 8 (citing Compl. at ¶¶ 16–25, 42–51, 62–66, 79–83).

The parties are correct that “[a] pretrial detainee’s constitutional right to medical

care, whether in prison or other custody, flows from the procedural and substantive due

process guarantees of the Fourteenth Amendment.” Wagner v. Bay City, 227 F.3d 316,

324 (5th Cir. 2000). “Liability for failing to provide such care attaches if the plaintiff can

show that a state official acted with deliberate indifference to a substantial risk of serious

medical harm and that injuries resulted.” Id. (citation omitted).

“Deliberate indifference requires that the official have subjective knowledge of the

risk of harm.” Id. (citation and internal quotation marks omitted). “Mere negligence will

not suffice, and deliberate indifference, i.e., the subjective intent to cause harm, cannot be

inferred from a failure to act reasonably.” Id. (citations and internal quotation marks

omitted). Thus, to show subjective deliberate indifference, a plaintiff must allege that: (1)

the defendant had subjective knowledge of facts from which an inference of substantial

risk of serious harm could be drawn; (2) the defendant actually drew that inference; and

(3) the defendant’s response to the risk indicates that the defendant subjectively intended

that harm occur. Tamez v. Manthey, 589 F.3d 764, 770 (5th Cir. 2009) (per curiam); see

also Wagner, 227 F.3d at 324 (explaining that to prevail on a claim of “deliberate denial

of medical care, [the claimant] needs to establish more than the typical quantum of

evidence necessary to overcome a qualified immunity defense. That is, she must show not

only that the defendants’ actions in failing to provide [the claimant] medical attention

before he arrived at the jail were objectively unreasonable, but also that defendants

intended the consequence of those actions”).

“Deliberate indifference is an extremely high standard to meet.” Domino v. Tex.

Dep’t of Crim. Justice, 239 F.3d 752, 756 (5th Cir. 2001). “[T]he failure to alleviate a

significant risk that [the official] should have perceived, but did not is insufficient to show

deliberate indifference.” Id. Nor can deliberate indifference be inferred “merely from a

negligent or even a grossly negligent response to a substantial risk of serious harm.”

Thompson v. Upshur Cty., 245 F.3d 447, 459 (5th Cir. 2001). Instead, “[d]eliberate

indifference encompasses only unnecessary and wanton infliction of pain repugnant to the

conscience of mankind.” Herrin v. E. Baton Rouge Sheriff’s Office, No. 15-CV-82-SDD-

SCR, 2015 WL 4898489, at *3 (M.D. La. Aug. 17, 2015) (quoting McCormick v. Stalder,

105 F.3d 1059, 1061 (5th Cir. 1997)).

In Plaintiffs’ Complaint, they allege that after Ochsendorf shot Phillip multiple

times in the back, Ochsendorf’s body camera captured Phillip “screaming for help and

stating that he is unable to breathe while handcuffed and bleeding on the ground,” yet

Ochsendorf failed to respond to Phillip’s requests for help and medical attention. See

Compl. at ¶¶ 19, 20. The Complaint then alleges more generally that “Officers” refused to

remove Phillip’s handcuffs, left him lying on the pavement, and failed to administer basic

first aid. Id. at 21. The Complaint also suggests that some other officers prevented

paramedics from treating Phillip: “[O]fficers appeared more concerned with inspecting

Phillip’s body to locate entrance and exit wounds, as paramedics waited from a distance.”

Id.

As an initial matter, these allegations against Ochsendorf are not enough to

demonstrate that he had subjective knowledge from which an inference of substantial risk

of serious harm could be drawn because Plaintiffs’ Complaint does not identify where

Ochsendorf was or what he was doing immediately after the shooting. But even if the

specific allegations against Ochsendorf showed that he did draw an inference of the

substantial risk of serious harm (e.g., if he remained and inspected Phillip’s body for

entrance and exit wounds with the other officers), the Complaint contains no specific

allegations indicating that Ochsendorf subjectively intended for Phillip to die at the scene.

See Wagner, 227 F.3d at 324. Further, Plaintiffs do not assert that any delay in care caused

Phillip substantial harm. That is, Plaintiffs set forth no allegations that Ochsendorf’s failure

to render medical care caused Phillip to die. See Henry v. N. Texas State Hosp., No. 7:12-

CV-00198-O, 2013 WL 3870292, at *4 (N.D. Tex. July 9, 2013) (“A few-minute delay in

receiving medical care is not a violation of a due process right, because not every

‘reasonable official would understand that what he is doing [in assessing the situation and

causing a few-minute delay] violates that [due process] right’ to medical care for the

involuntarily committed.” (quoting Gates v. Tex. Dep’t of Protective & Regulatory Servs.,

537 F.3d 404, 419 (5th Cir. 2008))).

Accordingly, Ochsendorf’s Motion to Dismiss Plaintiffs’ claim for deliberate

indifference to serious medical needs, health, and safety on the basis of qualified immunity

is GRANTED.

B. Excessive Force

Plaintiffs’ next claim against Ochsendorf is for excessive force in violation of the

Fourth and Fourteenth Amendments. Compl. at ¶¶ 62–66. Ochsendorf seeks dismissal of

this claim for failure to state a claim under rule 12(b)(6). MTD at 12–16. Ochsendorf

asserts that although Plaintiffs pleaded this claim under both the Fourth and Fourteenth

Amendments, the facts of this case and applicable law render the Fourteenth Amendment

inapplicable and that Plaintiffs’ claim is only for violations of the Fourth Amendment. Id.

at 12–13.3

To state a Section 1983 excessive force claim under the Fourth Amendment, a

plaintiff must first show that he was seized and that he suffered (1) an injury that (2)

resulted directly and only from the use of force that was excessive to the need and that (3)

the force used was objectively unreasonable. Flores v. City of Palacios, 381 F.3d 391, 396

(5th Cir. 2004); Goodson v. City of Corpus Christi, 202 F.3d 730, 740 (5th Cir. 2000). To

“gaug[e] the objective reasonableness of the force used by a law enforcement officer, we

must balance the amount of force used against the need for force.” Ikerd v. Blair, 101 F.3d

430, 434 (5th Cir. 1996) (citing Spann v. Rainey, 987 F.2d 1110, 1115 (5th Cir. 1993)).

This balancing test “requires careful attention to the facts and circumstances of each

particular case.” Graham, 490 U.S. at 396.

“Unlike some areas of constitutional law, the question of when deadly force is

appropriate—and the concomitant conclusion that deadly force is or is not excessive—is

well-established.” Reyes v. Bridgwater, 362 F. App’x 403, 406 (5th Cir. 2010) (citing

Tennessee v. Garner, 471 U.S. 1, 11–12 (1985) for the “holding that deadly force is not

justified unless a suspect poses a risk of serious harm at that point in time”). Under Fifth

3In their Response to Ochsendorf’s Motion to Dismiss, Plaintiffs argue for a Fourteenth

Amendment violation based on excessive force. MTD Resp. at 11–12. They present the claim as

one “for relief of Fourteenth Amendment violations of substantive due process on the part of

Defendant Ochsendorf.” Id. at 12. To the extent Plaintiffs actually pleaded a claim for violation

of substantive due process under the Fourteenth Amendment, the Court DISMISSES it because

claims “based on alleged pretrial deprivations of . . . constitutional rights . . . , under the holding

in Albright [v. Oliver, 510 U.S. 266 (1944)], . . . should be brought under the Fourth Amendment.”

Cuadra v. Houston Indep. Sch. Dist., 626 F.3d 808, 814 (5th Cir. 2010).

Circuit precedent, the focus of the Court’s inquiry is “the act that led [the officer] to

discharge his weapon.” Manis v. Lawson, 585 F.3d 839, 845 (5th Cir. 2009). “The cases

on deadly force are clear: an officer cannot use deadly force without an immediate serious

threat to himself or others.” Reyes, 362 F. App’x at 409.

Plaintiffs allege in their Complaint that Ochsendorf drew his gun when he arrived

at the scene and that he pointed the gun at Phillip’s back and at Brenda. Compl. at ¶ 18.

Plaintiffs allege that Ochsendorf and Phillip were facing the same direction and that

“Ochsendorf stalked Phillip who remained in the immediate presence of Brenda, and then

began to fire his gun into Phillip’s back . . . .” Id. Plaintiffs further allege that “[w]hile

being shot by Defendant Ochsendorf, Phillip had his hands raised and fully exposed.

Defendant Ochsendorf deliberately fired multiple shots into Phillip’s back[,]” and he

“continued to fire shots at Phillip as he was falling to the ground.” Id. at ¶ 19. Plaintiffs

allege that an autopsy report confirms that the gunshots entered Phillip’s back. Id. at ¶ 18.

Ochsendorf argues that the allegations in Plaintiffs’ prior lawsuit demonstrate that

Plaintiffs have deliberately omitted material facts that Ochsendorf had commanded Phillip

to put his hands in the air and turn around. MTD at 13. Ochsendorf then states that

Plaintiffs fail to allege whether Phillip was holding a gun or what he did with any gun when

he was confronted by Ochsendorf. Id. This statement suggests that Ochsendorf’s position

is that Phillip was in fact holding a gun and noncompliant when Ochsendorf arrived at the

scene. Indeed, Ochsendorf’s argument is that Plaintiffs’ factual allegations—“Phillip

Vallejo was shot in the back during or shortly after getting into an altercation outside a bar

at 1:20 a.m. and after being ordered by an officer to raise his hands”—are insufficient to

state a claim for excessive force and instead require the Court to speculate. See MTD Reply

at 4 (“Plaintiffs again attempt to plead and argue their case through suggestion and

omission. Phillip Vallejo was armed with a handgun. Plaintiffs know that, but in their

complaint they misleadingly try to rely on an inaccurate witness account to avoid having

to directly allege . . . that Phillip was unarmed.”).

Ochsendorf may be correct that Plaintiffs are cherry-picking facts to create a

narrative that Ochsendorf shot an unarmed man in the back while the man had his hands

up. But at this stage, the Court does not go beyond the allegations of Plaintiffs’ Complaint

to make such factual determinations. Moreover, Ochsendorf does not provide any

additional materials referenced in Plaintiffs’ Complaint, which the Court may properly

consider in the context of a Rule 12(b)(6) motion. Based on Plaintiffs’ specific allegations,

Ochsendorf shot Phillip in the back while Phillip had his hands up and thus was not posing

a serious, immediate threat to himself or others. These allegations, taken as true for

purposes of this motion, demonstrate that Ochsendorf’s use of deadly force was objectively

unreasonable. Thus, the Court finds that Plaintiffs have stated a claim that Ochsendorf

violated Phillip’s clearly established right to be free from the excessive use of force. See

Webster v. City of Houston, 735 F.2d 838, 845 (5th Cir. 1984) (en banc), aff’d on reh’g,

739 F.2d 993 (5th Cir. 1984) (en banc); see also Reyes, 362 F. App’x at 409 (reversing

summary judgment in favor of officer on qualified immunity when the facts were disputed

as to whether there was an immediate threat such that would justify the officer’s use of

deadly force); Rivera v. City of San Antonio, No. SA-06-CA-235-XR, 2006 WL 3340908,

at *7 (W.D. Tex. Nov. 15, 2006) (denying motion to dismiss excessive force claim against

an individual officer because “[i]f these facts are true, [the officer’s] actions may have

violated the standard for reasonable seizures under the Fourth Amendment, that a police

officer may not seize an unarmed, non-dangerous suspect by shooting him dead”).

Accordingly, Ochsendorf’s Motion to Dismiss Plaintiffs’ excessive force claim

should be and is hereby DENIED.

C. Deprivation of Familial Relationship and Companionship

Plaintiffs next bring a Section 1983 claim for deprivation of familial relationships

as violating Plaintiffs’ Fourteenth Amendment substantive due process rights. Compl. at

¶¶ 67–71. Ochsendorf moves to dismiss this claim because Plaintiffs have not alleged that

any of Ochsendorf’s actions were directed at them and have failed to plead that Ochsendorf

acted with the requisite intent. MTD at 16. Ochsendorf further argues that the Fifth Circuit

law is “far from clearly established” as to any such claim. Id. Plaintiffs respond that

Ochsendorf’s intent argument is unsupported by law and that at least one district court in

the Fifth Circuit concluded that a plaintiff stated a claim for deprivation of familial

companionship and society in a similar factual context. MTD Resp. at 18 (citing Saenz v.

City of El Paso, No. EP-14-CV-244-PRM, 2015 WL 459032 (W.D. Tex. Jan. 28, 2015)).

“[T]o state a claim for deprivation of familial association under § 1983, a plaintiff

must allege that the defendant intended ‘to interfere with a particular relationship protected

by the freedom of intimate association.’” Molette v. City of Alexandria, No. CIV.A.

CV040501A, 2005 WL 2445432, at *5 (W.D. La. Sept. 30, 2005) (quoting Trujillo v.

Board of Cty. Com’rs, 768 F.2d 1186 (10th Cir. 1985)). In 2006, a sister court recognized

that at that time Molette was perhaps the only court in the Fifth Circuit that has addressed

a Section 1983 familial association claim: “This Court could only locate one district court

case from the Fifth Circuit that addressed a claim for deprivation of the right of familial

association in a police misconduct case.” Rivera, 2006 WL 3340908, at *9. Relying on

the Tenth Circuit opinion in Trujillo, the Rivera court agreed that “a plaintiff must allege

that the defendant intended to interfere with a particular relationship protected by the

freedom of intimate association.” Id. (citing Trujillo 768 F.2d at 1190).

Applying the same deprivation of familial association analysis as Rivera, Plaintiffs

have failed to allege Ochsendorf acted with the intent to interfere with or deprive Plaintiffs

of their familial and spousal relationship with Phillip. That is, Plaintiffs’ Complaint

contains no allegations to support that Ochsendorf intentionally deprived Plaintiffs’ of their

right to familial association. Indeed, the Court does not recognize any facts that would

support that Ochsendorf had knowledge, or could have had knowledge that Phillip had any

family such that Ochsendorf could have acted with intent to interfere with Plaintiffs’

relationship with Phillip. See id. (explaining that “the alleged conduct by the state, however

improper or unconstitutional with respect to the deceased, will work an unconstitutional

deprivation of the freedom of intimate association only if the conduct was directed at that

right”).

Accordingly, Ochsendorf’s Motion to Dismiss Plaintiffs’ deprivation of familial

relationship and companionship is GRANTED.

D. State Law Claims

Ochsendorf seeks dismissal of Plaintiffs’ state law claims for failure to provide

medical care and intentional infliction of emotional distress (Compl. at ¶¶ 79–86).

Ochsendorf’s MTD at 17. Ochsendorf contends that Section 101.106 of the Texas Civil

Practice and Remedies Code requires dismissal of Plaintiffs’ state law claims because

Plaintiffs’ filing of the suit against City and Ochsendorf constituted Plaintiffs’ election of

remedies as to any state law claims. Id. at 17–18; see TEX. CIV. PRAC. & REM. CODE

101.106. Plaintiffs do not respond to these contentions.

The Texas Civil Practice and Remedies Code provides:

If a suit is filed against an employee of a governmental unit based on conduct

within the general scope of that employee’s employment and if it could have

been brought under this chapter against the governmental unit, the suit is

considered to be against the employee in the employee’s official capacity

only. On the employee’s motion, the suit against the employee shall be

dismissed unless the plaintiff files amended pleadings dismissing the

employee and naming the governmental unit as defendant on or before the

30th day after the date the motion is filed.

TEX. CIV. PRAC. & REM. CODE 101.106(f) (emphasis added). In Alcala v. Texas Webb

County, the United States District Court applied this provision and dismissed state law

claims (including intentional infliction of emotional distress) brought by an individual

against several county employees because the plaintiff had also sued the county. 620 F.

Supp. 2d 795, 804–05 (S.D. Tex. Jun. 3, 2009). In applying this Texas statute, the Alcala

court conducted an Erie analysis and concluded that Section 101.106 should not be barred

under the Erie doctrine. Id. at 807.

Here, Ochsendorf properly raised Section 101.106(f), and Plaintiffs failed to

respond. Thus, Ochsendorf’s Motion to Dismiss Plaintiffs’ state law claims should be and

is hereby GRANTED.

E. Official Capacity Claims

Ochsendorf finally seeks dismissal of Plaintiffs’ official capacity claims against

Ochsendorf because they are redundant since a claim against a public official in his official

capacity is equivalent to an action against the government body that employs the official.

Ochsendorf’s MTD at 19. Plaintiffs do not respond to this argument.

The Court agrees with Ochsendorf that any official capacity claims do nothing more

than duplicate Plaintiffs’ claims against City and FWPD. See Castro Romero v. Becken,

256 F.3d 349, 355 (5th Cir. 2001) (“The district court was also correct in dismissing the

allegations against all of the municipal officers . . . in their official capacities, as these

allegations duplicate claims against the respective governmental entities themselves.”);

Flores v. Cameron Cty., 92 F.3d 258, 261 (5th Cir. 1996); Rivera, 2006 WL 3340908, at

*6 (granting motion to dismiss official capacity claims against individual officers

“[b]ecause the City has also been named as a party, [so] no purpose is served by allowing

Plaintiffs’ duplicative section 1983 official capacity claims against Officers Montes and

Barnes to proceed”).

Therefore, Ochsendorf’s Motion to Dismiss Plaintiffs’ official capacity claims

should be and is hereby GRANTED.

F. Leave to Amend

Plaintiffs alternatively request leave to amend if the Court grants Ochsendorf’s

Motion to Dismiss. MTD Resp. at 14. But Plaintiffs provide no explanation as to any

additional facts that they would plead, nor does the Court discern any, that would preclude

dismissal. In short, it appears to the Court that Plaintiffs have stated their best case.

Therefore, Plaintiffs’ request for leave to amend is DENIED.

ANALYSIS OF CITY’S AND FWPD’S AMENDED MOTION TO DISMISS

Plaintiffs allege Texas state law claims against City and FWPD for (1) negligent

hiring, supervision, and training; (2) intentional infliction of emotional distress; (3) failure

to furnish medical care; and federal claims for (1) deliberate indifference to serious medical

needs, (2) a Monell claim under Section 1983, (3) supervisor liability under Section 1983,

(4) excessive force under Section 1983, and (5) loss of familial relationship under Section

1983. Compl. at ¶¶ 42–86. City’s and FWPD’s First Amended Motion to Dismiss seeks

dismissal on 12(b)(1) and 12(b)(6) grounds. First Amend. MTD at 4–5.

A. State Claims

City and FWPD seek dismissal of Plaintiffs’ state law claims because, as a general

matter, a municipality in Texas is immune from tort liability under the doctrine of

government immunity. Id. at 8; TEX. CIV. PRAC. & REM. CODE § 101.021. Plaintiffs

respond that City’s and FWPD’s argument must be raised in a plea to the jurisdiction and

that Plaintiffs’ allegations regarding jurisdictional facts are sufficient to overcome City’s

and FWPD’s challenge. MTD Resp. at 10–12.

1. Negligent Hiring, Supervision, and Training and Intentional Infliction of

Emotional Distress

City and FWPD assert that Plaintiffs cannot maintain a claim for negligent hiring,

supervision, and training because City and FWPD have immunity as governmental units,

and said governmental immunity is not waived under the Texas Tort Claims Act. Amend.

MTD at 8–9. Plaintiffs respond that their negligence-based state law claims are not barred.

Resp. at 7–8. As explained below, the Court agrees with City and FWPD.

The Fifth Circuit has clearly explained that the Texas Tort Claims Act is “not the

appropriate vehicle for claims of negligent failure to train or supervise.” Goodman v.

Harris Cty., 571 F.3d 388, 395 (5th Cir. 2009). That is, “claims of negligent hiring,

supervision, and retention do not waive governmental immunity under the Texas Tort

Claims Act for claims that do not arise out of the use or condition of tangible personal

property.” Jackson v. Hunt Cty., Nos. 3:10–cv–2373–L & 3:10–cv–2379–L, 2011 WL

1869447, at *2 (N.D. Tex. May 13, 2011). Plaintiffs present no argument to controvert

these authorities. Thus, Plaintiffs cannot maintain a state law claim for negligent hiring,

training, and supervision. See Meyer v. Coffey, 231 F. Supp. 3d 137, 151 (N.D. Tex. 2017).

Similarly, Plaintiffs’ intentional infliction of emotional distress claim is a state-

based tort claim from which City and FWPD are immune from suit. See Hughes v. City of

Dall., No. 3:18-CV-1770-B, 2019 WL 3081654, at *2 (N.D. Tex. July 15, 2019)

(dismissing plaintiffs’ intentional infliction of emotional distress claim because the city

had not waived sovereign immunity under the Texas Tort Claims Act).

2. Failure to Furnish Medical Care

Plaintiffs’ final state law claim is for City’s and FWPD’s alleged failure to furnish

medical care. The Court is unaware of, and Plaintiffs do not present any authority to

demonstrate a Texas cause of action for failure to furnish medical care. Thus, Plaintiffs

cannot state a claim for failure to furnish medical care. However, to the extent Plaintiffs

assert this claim under a tort theory of liability, it fails for the same reasons as Plaintiffs’

other state law claims. See id.

In light of the foregoing, City’s and FWPD’s Motion to Dismiss Plaintiffs’ state law

claims should be and is hereby GRANTED.

B. Federal Claims

A person who believes his or her constitutional rights were violated during pretrial

detention may sue any “person who, under color of any statute, ordinance, regulation,

custom, or usage, or any State or Territory or the District of Columbia” subjected them to

the deprivation under 42 U.S.C. § 1983. The Supreme Court has held that Congress

intended for “municipalities and other local government units to be included among those

persons to whom § 1983 applies.” Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690, 98

S. Ct. 2018 (1978). This means that municipalities “can be sued directly under § 1983 for

monetary, declaratory, or injunctive relief where . . . the action that is alleged to be

unconstitutional implements or executes a policy statement, ordinance, regulation, or

decision officially adopted and promulgated by that body’s officers.” Id. Additionally,

municipalities “may be sued for constitutional deprivations visited pursuant to

governmental ‘custom’ even though such a custom has not received formal approval

through the body’s official decisionmaking channels.” Id. But the municipality cannot be

held liable solely because it employed a tortfeasor. Id. Rather, it is only liable “when

execution of government’s policy or custom, whether made by its lawmakers or those

whose edicts or acts may fairly be said to represent official policy, inflicts the injury that

the government as an entity is responsible under § 1983.” Id.

Plaintiffs allege the following policies, customs, and/or practices from City and

FWPD that caused Phillip’s death:

a. Failing to promulgate adequate policies and procedures for officer conduct

regarding the use of force in response to a situation;

b. Failing to promulgate adequate policies and procedures for officer

conduct in the use of a firearm;

c. Failing to institute adequate policies and procedures for officer conduct

when a detainee expresses serious physical distress or when that distress is

readily apparent. Phillip Vallejo informed Officers of his inability to breathe

thereby requiring medical treatment, and Officers awareness of Phillip

Vallejo’s bleeding due to gunshot wounds thereby contributing to life

threatening injuries and ultimately loss of life;

d. Failing to institute adequate policies and medical procedures for the

application and use of handcuffs in regard to detainees with life threatening

injuries.

e. Failing to institute adequate policies and procedures for the removal of

handcuffs in regard to detainees in medical distress;

f. Failing to institute adequate policies and procedures for initiation of

emergency medical treatment to detainees in need;

g. Failing to institute adequate policies and procedures in regard to the

determination of the number of shots an officer is to fire and under what

circumstances. An adequate policy would have constitutionally advocated

for the least number of shots to be fired only when a serious threat of death

or injury exists. Defendant Ochsendorf’s firing of at least six rounds was

excessive and unconstitutional;

h. Inadequate supervision, training and retention of city employees including

Defendant Ochsendorf and the additional Officers present of the Fort Worth

Police Department;

i. Failing to promulgate adequate policies regarding the medical treatment

of detained individuals including those suffering gunshots wounds as Phillip

Vallejo experienced; and

j. Instituting and promoting an ongoing pattern of deliberate indifference to

the medical needs, health, and safety of detained individuals as evidenced by

the lack of medical treatment provided to Phillip Vallejo by the numerous

Officers present of the Fort Worth Police Department at the scene of the

shooting.

Compl. at ¶ 54.

To state a Monell claim against City and FWPD, Plaintiffs are “required to plead

facts that plausibly establish: ‘a policymaker; an official policy; and a violation of

constitutional rights whose ‘moving force’ is the policy or custom.’” Ratliff v. Aransas

Cty., 948 F.3d 281, 285 (5th Cir. 2020) (quoting Piotrowski v. City of Hous., 237 F.3d 567,

578 (5th Cir. 2001)).

The Court holds that Plaintiffs have failed to establish an official custom or policy

to support their alleged constitutional violations because the only facts alleged with

particularity concern Phillip being shot. See Ratliff, 948 F.3d at 285. In Ratliff, the Fifth

Circuit considered the plaintiff’s custom or policy allegation that “the assault, beating, and

severe injury to citizens, with little or no justification, is a persistent, widespread practice

of [Aransas] County employees namely officers/deputies—that, although not authorized

by officially adopted policy, is so common and well settled as to constitute a custom that

fairly represents official county policy.” Id. The Fifth Circuit concluded that this

allegation did not satisfy federal pleading standards because it did “not contain any specific

facts. Instead, the complaint’s only specific facts appear in the section laying out the events

that gave rise to this action. Thus, Ratliff’s complaint clearly does not satisfy Twombly or

Iqbal with respect to the allegation that excessive force is an Aransas County ‘custom.’”

Id. Similarly, Plaintiffs here have failed to allege sufficient facts to state a Monell claim

against City and FWPD for excessive force because they have done no “more than describe

the incident that gave rise to his injury.” Id. (quoting Peña v. City of Rio Grande City, 879

F.3d 613, 622 (5th Cir. 2018)).

Plaintiffs’ Monell claim also fails because they fail to satisfy the policymaker prong.

That is, Plaintiffs only allege that the above-described policies were known, approved,

encouraged, and ratified by all Defendants as well as “other policymakers . . . .” Compl.

at ¶ 55. Such a general allegation invites no more than speculation as to a policymaker.

Although the Fifth Circuit has held “courts should not “grant motions to dismiss for failing

to plead [a] specific identity[,]” Groden v. City of Dall., 826 F.3d 280, 286 (5th Cir. 2016),

the Fifth Circuit has also affirmed dismissal of a Monell claim when the allegations

“invite[d] no more than speculation that any particular policymaker, be it the chief of police

or the city commission, knew about the alleged custom.” Peña, 879 F.3d at 623.

Accordingly, Plaintiffs’ failure to identify a policymaker is fatal to their Monell claim. See

id.

Plaintiffs’ Monell claim also fails because they failed to plead an official custom,

policy, or practice. Because Plaintiffs allege the absence of policies, they were required to

allege facts of a persistent, widespread practice such that the Court could rationally infer it

represented a custom having the force of an official City policy. See Campbell v. City of

San Antonio, 43 F.3d 973, 977 (5th Cir. 1995). Here, Plaintiffs only allege a single

incident, so they have failed to plead an official custom, policy, or practice based on a

persistent, widespread practice.

Finally, when a Monell claim is based on a policy of inadequate training, the plaintiff

must allege deliberate indifference to the rights of persons with whom the police come into

contact. See City of Canton v. Harris, 489 U.S. 378, 392 (1989) (holding claims “alleging

that the city’s failure to provide training to municipal employees resulted in the

constitutional deprivation [the plaintiff] suffered—are cognizable under § 1983, they can

only yield liability against a municipality where that city’s failure to train reflects deliberate

indifference to the constitutional rights of its inhabitants”). All of Plaintiffs’ allegations

are for deficient policies. Thus, Plaintiffs were required to plead facts supporting that the

City was deliberately indifferent. Plaintiffs have failed to allege a policymaker who was

actually aware of systemic deficiencies in officer training, that the policymaker actually

drew an inference of substantial risk of constitutional harm, and that the policymaker

disregarded that risk. See Estate of Davis ex rel. McCully v. City of N. Richland Hills, 406

F.3d 375, 381 (5th Cir. 2005).

Accordingly, City’s and FWPD’s Motion to Dismiss Plaintiffs’ Monell claims

should be and is hereby GRANTED.

1. Deliberate Indifference to Serious Medical Needs

Plaintiffs’ Section 1983 claim against City and FWPD for deliberate indifference to

serious medical needs fails because the Court has held above that Plaintiffs have failed to

state a claim against Ochsendorf for deliberate indifference to Phillip’s serious medical

needs. See Cardenas v. San Antonio Police Dep’t, 417 F. App’x 401, 402 (5th Cir. 2011)

(recognizing that “because the individual defendants did not inflict any constitutional harm

on [plaintiff], the district court properly granted summary judgment for the City”); Treece

v. Hochstetler, 213 F.3d 360, 364 (7th Cir. 2000) (explaining that because Supreme Court

precedent establishes that “a city’s liability is derivative of its police officer’s liability,” if

it is determined that the officer is “not liable for committing a constitutional deprivation

(tort) . . . it is impossible under existing case law for the City to be held liable for its

knowledge or inaction concerning its officer’s activity”).

Accordingly, City’s and FWPD’s Motion to Dismiss Plaintiffs’ deliberate

indifference claim should be and is hereby GRANTED.

2. Supervisor Liability Under 42 U.S.C. § 1983

Plaintiffs’ claim for supervisor liability seeks to hold City and FWPD liable for the

actions of Ochsendorf. Compl. at ¶¶ 58–61. However, “[s]upervisory officials cannot be

held liable under section 1983 for the actions of subordinates . . . on any theory of vicarious

or respondeat superior liability.” Davis, 406 F.3d at 381; Thompkins v. Belt, 828 F.2d 298,

303–04 (5th Cir. 1987). “Rather, a plaintiff must show either the supervisor personally

was involved in the constitutional violation or that there is a ‘sufficient causal connection’

between the supervisor’s conduct and the constitutional violation.” Evett v. DETNTFF,

330 F.3d 681, 689 (5th Cir. 2003). “It is facially evident that this test cannot be met if there

is no underlying constitutional violation.” Rios v. City of Del Rio, 444 F.3d 417, 425 (5th

Cir. 2006).

Because the Court has already held that the only constitutional violation for which

Plaintiffs have stated a claim against Ochsendorf is their excessive force claim, Plaintiffs

cannot state a claim for supervisor liability based on failure to furnish medical care or loss

of familial relationship. See Whitley v. Hanna, 726 F.3d 631, 648 (5th Cir. 2013).

However, Plaintiffs’ claim for supervisor liability still fails because they have not alleged

facts to establish the first element. There are no allegations to support personal

involvement between the supervisor’s alleged conduct and Ochsendorf’s actions.

Therefore, City’s and FWPD’s Motion to Dismiss Plaintiffs’ supervisor liability

claim should be and is hereby GRANTED.

3. Excessive Force

Plaintiffs’ Section 1983 excessive force claim fails because, as stated above,

Plaintiffs failed to allege sufficient facts to demonstrate a policymaker and an official

policy or custom that was a moving force behind Plaintiffs’ excessive force claim.

Therefore, City’s and FWPD’s Motion to Dismiss Plaintiffs’ Section 1983 excessive force

claim should be and is hereby GRANTED.

4. Loss of Familial Relationship

Similar to Plaintiffs’ deliberate indifference claim, Plaintiffs’ loss of familial

relationship claim against City and FWPD fails because the Court held above that there

was no underlying constitutional violation by Ochsendorf. See Cardenas, 417 F. App’x

at 402. Accordingly, City’s and FWPD’s Motion to Dismiss Plaintiffs’ loss of familial

relationship claim should be and is hereby GRANTED.

CONCLUSION

For the foregoing reasons, the Court finds that Ochsendorf’s Motion to Dismiss

(ECF No. 14), should be and is hereby GRANTED in part and DENIED in part.

Accordingly, Plaintiffs’ claims for deliberate indifference, loss of familial relationship, all

state law claims including intentional infliction of emotional distress, and official capacity

claims against Ochsendorf are DISMISSED with prejudice. Plaintiffs’ only live claim

remaining against Ochsendorf is an excessive force claim.

The Court finds that the City of Fort Worth’s and FWPD’s Amended Motion to

Dismiss (ECF No. 69) should be and is hereby GRANTED. Accordingly, Plaintiffs’

claims against City and FWPD are DISMISSED with prejudice.

SO ORDERED on this 19th day of June, 2020.

Mark T. Pittman

UNITED STATES DISTRICT JUDGE

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