# Dawes v. City of Dallas

> District Court, N.D. Texas · July 2, 2020

URL: https://www.frixlaw.com/law-library/cases/10448614

## Case

- **Court:** District Court, N.D. Texas
- **Decided:** July 2, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

MARY DAWES, et. al., §
§
Plaintiffs, §
§ Civil Action No. 3:17-CV-01424-X-BK
v. §
§
CITY OF DALLAS, et. al., §
§
Defendants. §
§

MEMORANDUM OPINION AND ORDER
The Court considers the reports of the United States Magistrate Judge in this
action, which was referred to the Magistrate Judge pursuant to 28 U.S.C. § 636.
On June 27, 2017, the plaintiffs Mary Dawes, individually and as
administrator of Genevive A. Dawes’s estate, Alfredo Saucedo as next of friend of
minors K.R. and C.R., and Virgilio Rosales (collectively “plaintiffs”) filed a second
amended complaint [Doc. No. 11] alleging defendant officers Christopher Hess and
Jason Kimpell (collectively “defendant officers”) and the City of Dallas violated 42
U.S.C. § 1983 when the defendant officers shot at Genevive Dawes and Rosales while
they were backing out of a parking space. Genevive Dawes later died at a hospital as
a result of her injuries. The plaintiffs specifically allege that (1) the defendant officers
used excessive force against Genevive Dawes in violation of § 1983 and the Fourth
Amendment; (2) the City of Dallas violated § 1983 and the Fourth Amendment by
failing to train the defendant officers with regards to use of deadly force and proper
detention and seizure procedures; and (3) the defendant officers’ conduct entitle the
plaintiffs to compensation under the Texas wrongful death and survival action
statutes.

In response, the City of Dallas filed a motion to dismiss the § 1983 claim
against itself and another motion to dismiss the state law claims against the
defendant officers [Doc. Nos. 13 & 14]. Later, Kimpel filed a motion to dismiss the
§ 1983 claim against himself and, in the alternative, requests that the plaintiffs be
required to file a reply addressing Kimpel’s sovereign immunity defense assertions
[Doc. No. 35].

On January 27, 2020, the assigned Magistrate Judge issued two Findings,
Conclusions, and Recommendations (“Reports”) in which she recommends that this
Court deny the City of Dallas’s motion to dismiss the § 1983 claim against itself but
grant the City of Dallas’s motion to dismiss the state law claims against Kimpel [Doc.
No. 71]. The Magistrate Judge did not recommend any action regarding the motion
to dismiss the state law claims as applied to Hess due to a prior order staying the
case as to Hess until his criminal trial concluded [Doc. No. 63]. That trial has since

concluded, and the stay was recently lifted [Doc. No. 85]. Lastly, the Magistrate
Judge recommends that this Court deny Kimpel’s motion to dismiss the § 1983 claim
against himself and his request that the plaintiffs file a reply to his qualified
immunity defense [Doc. No. 72].
Kimpel and the City of Dallas timely objected to the recommendations [Doc.
Nos. 73 & 74] but the plaintiffs did not. Having carefully reviewed the pleadings, the
record in this case, the Reports, and Kimpel and City of Dallas’s objections to the
Reports, the Court ADOPTS IN PART and REJECTS IN PART the Magistrate
Judge’s findings and recommendations as set forth in her Reports.

I.
28 U.S.C. § 636(b)(1)(B) gives magistrate judges the “authority to issue
findings and recommendations regarding dispositive motions in cases referred to
them.”1 The statute allows the parties to file written objections within 14 days of the
proposed findings and recommendations and for a de novo determination of matters
“to which objection is made.”2 The objections serve “to narrow the dispute” and allow

district judges “to focus attention on those issues—factual and legal—that are at the
heart of the parties’ dispute.”3 Additionally, § 636(b)(1) “does not on its face require
any review at all . . . of any issue that is not the subject of an objection.”4 Consistent
with § 636(b)(1) and Federal Rule of Civil Procedure 72(b)(3), the Court reviews the
findings and recommendations in the Magistrate Judge’s Reports. In doing so, the
Court “may accept, reject, or modify the recommended disposition; receive further
evidence; or return the matter to the magistrate judge with instructions.”5

The objections at issue all relate to pending motions to dismiss. For motions
to dismiss, under Federal Rule of Civil Procedure 12(b)(6), the Court evaluates the

1 Ware v. Colvin, 2013 WL 3829472, at *1 (N.D. Tex. July 24, 2013) (Solis, J.).
2 28 U.S.C. § 636(b)(1).
3 Thomas v. Arn, 474 U.S. 140, 147 & n. 6 (1985).
4 Id. at 149.
5 FED. R. CIV. P. 72(b)(3).
pleadings by “accept[ing] all well-pleaded facts as true, viewing them in the light most
favorable to the plaintiff.”6 To survive a motion to dismiss, the plaintiffs must allege
enough facts “to state a claim to relief that is plausible on its face.”7 “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.”8 “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.”9
“[W]here the well-pleaded facts do not permit the court to infer more than the mere
possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that

the pleader is entitled to relief.’”10
II.
A.
Kimpel objects to the Magistrate Judge’s determination to not consider the
body camera video attached to his motion to dismiss.
Generally, “[i]n determining whether to grant a motion to dismiss, the district
court must not go outside the pleadings and must accept all well-pleaded facts as

true, viewing those facts most favorably to the plaintiff.”11 However, “[w]hen a

6 In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007) (quotation marks
omitted).
7 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
8 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
9 Id.; see Twombly, 550 U.S. at 555 (“Factual allegations must be enough to raise a right to
relief above the speculative level[.]”).
10 Iqbal, 556 U.S. at 679 (quoting FED. R. CIV. P. 8(a)(2)).
11 Scanlan v. Texas A&M Univ., 343 F.3d 533, 536 (5th Cir. 2003).
defendant attaches documents to its motion that are referred to in the complaint and
are central to the plaintiff’s claims, the court may also properly consider those
documents.”12 Although the Fifth Circuit has not enunciated a test for when a

document is central to a plaintiff’s claim, a document tends to be central when it is
necessary to establish an element of a plaintiff’s claim.13 A recurring example of a
central document is a contract attached to a motion to dismiss in a breach of contract
case.14 In such a case, the attached contract is central because its interpretation is
necessary for the case’s resolution. Lastly, in assessing whether a document is
central, a court should consider whether the plaintiff objects to the inclusion of the

attached document.15
The Magistrate Judge held that it could not consider matters outside of the
pleadings and so determined not to consider the body camera recordings. Kimpel
objects that a court may review documents attached to a motion to dismiss if the
documents are referred to in the complaint and are central to the plaintiff’s claims.
Kimpel argues that the body camera videos are referenced five times in the plaintiffs’

12 Walker v. Beaumont Indep. Sch. Dist., 938 F.3d 724, 735 (5th Cir. 2019).
13 Hong Kong Aroma Star Int’l LLC v. Elta MD Inc., 2019 WL 2357529, at *3 (N.D. Tex. June
4, 2019) (Fish, J.) (citing Kaye v. Lone Star Fund V (U.S.), L.P., 453 B.R. 645, 662 (N.D. Tex. Apr. 26,
2011) (Lynn, J.)).
14 See, e.g., Hong Kong Aroma, 2019 WL 2357529, at *3; In re Katrina Canal Breaches Litig.,
495 F.3d at 205.
15 Scanlan, 343 F.3d at 536 (“The fact that the plaintiffs did not object to, or appeal, the district
court’s consideration of those documents [attached to a motion to dismiss] was central to this Court’s
approval of that practice” of allowing documents attached to a motion to dismiss to be considered by a
district court.); Collins v. Morgan Stanley Dean Witter, 224 F.3d at 499 (5th Cir. 2000) (“In so attaching
[the documents to its motion to dismiss], the defendant merely assists the plaintiff in establishing the
basis of the suit, and the court in making the elementary determination of whether a claim has been
stated.”).
second amended complaint and are central to their claims.
Although a court may consider documents that are referred to in a complaint
and are central to a plaintiff’s claims, the body camera recordings are not central to

the plaintiffs’ claims in this case because they are not necessary to establish an
element of the plaintiffs’ federal and state law claims against Kimpel in the same way
that a contract is necessary for a breach of contract claim. Indeed, although not the
subject of his objection to the Magistrate Judge’s Report, Kimpel attached other
evidence to his motion to dismiss that could also establish what occurred at the scene,
including a ballistics analysis, Genevive Dawes’s autopsy report, and Rosales’s

Medical Report.16 Additionally, the plaintiffs objected to the inclusion of these
recordings in their response to Kimpel’s motion to dismiss [Doc. No. 52]. Plaintiffs’
objection is of particular concern because the Fifth Circuit’s allowance of district
courts to consider documents attached to a motion to dismiss was premised on the
plaintiffs not objecting to those documents being considered.17
For these reasons, the Court finds the body camera recordings attached to
Kimpel’s motion to dismiss are not central to the plaintiffs’ claims against Kimpel.

So, the Court will not consider these recordings in the context of Kimpel’s motion to
dismiss.

16 Appendix to Kimpel’s Motion to Dismiss Exhibits 6, 9, & 10 [Doc. No. 36].
17 Scanlan, 343 F.3d at 536 (“The fact that the plaintiffs did not object to, or appeal, the district
court’s consideration of those documents [attached to a motion to dismiss ] was central to this Court’s
approval of that practice [allowing documents attached to a motion to dismiss to be considered by a
district court]”); Collins, 224 F.3d at 499 (“In so attaching [the documents to its motion to dismiss], the
defendant merely assists the plaintiff in establishing the basis of the suit, and the court in making the
elementary determination of whether a claim has been stated.”).
B.
Kimpel objects to the Magistrate Judge’s finding that, taking the plaintiffs’
allegations in their second amended complaint as true, Kimpel violated clearly

established Fourth Amendment law when he fired on Rosales and Genevive Dawes
while they were backing out of a parking space.
In determining whether a violated constitutional right is clearly established
for qualified immunity purposes, “[t]he central concept is that of fair warning: The
law can be clearly established despite notable factual distinctions between the
precedents relied on and the cases then before the Court, so long as the prior decisions

gave reasonable warning that the conduct then at issue violated constitutional
rights.”18 Additionally, “[w]hile [the Supreme] Court’s case law do[es] not require a
case directly on point for a right to be clearly established, existing precedent must
have placed the statutory or constitutional question beyond debate.”19 This means
that clearly established law should not be defined “at a high level of generality” but
must be “particularized to the facts of the case.”20 Courts must look to the facts in
precedent cases when assessing whether a right is clearly established.21

In her analysis, the Magistrate Judge focused on Fourth Amendment excessive
force cases involving police officers shooting at motor vehicles. After comparing cases

18 Lytle v. Bexar Cty., Tex., 560 F.3d 404, 417 (5th Cir. 2009) (quotation marks omitted)
(alterations in original).
19 White v. Pauly, 137 S. Ct. 548, 551 (2017) (quotation marks omitted) (last alteration in
original).
20 Id. (quotation marks omitted).
21 See, e.g., Mullenix v. Luna, 136 S. Ct. 305, 309–10 (2015).
where the suspect is driving towards versus away from a police officer, the Magistrate
Judge determined that the facts of this case were similar to Lytle v. Bexar County,
Texas, where the court denied qualified immunity to the police officer for firing at a

fleeing car that was three or four houses down the street.22 The Fifth Circuit in Lytle
held that “it is unreasonable for a police officer to use deadly force against a fleeing
felon who does not pose a sufficient threat to the officer or others” and that “this holds
as both a general matter and in the more specific context of shooting a suspect fleeing
in a motor vehicle.”23 The Magistrate Judge thus determined, taking the plaintiffs’
allegations in their second amended complaint as true, Kimpel violated a clearly

established right under the Fourth Amendment.
Kimpel objects that Lytle is not on point, as the car in Lytle was several houses
down the street whereas the car in this case was only several feet away. Kimpel
instead argues that Sanchez v. Edwards is relevant.24 In Sanchez, a police officer
who fired on a suspect in a vehicle was granted qualified immunity when, within feet
of the officer, the suspect accelerated towards him.25 The Fifth Circuit distinguished
Sanchez from Lytle, stating that it based its Lytle decision “on evidence suggesting

that the officer was three-to-four houses away from the vehicle when he fired his
weapon and that the vehicle was moving away from, rather than towards, him at the

22 560 F.3d at 407–08, 417–18.
23 Id. at 417–18 (citations omitted).
24 433 F. App’x 272 (5th Cir. 2011).
25 Id. at 273–74, 276.
time.”26
The Court agrees with the Magistrate Judge’s analysis. According to the
plaintiffs’ allegations in their second amended complaint, “Dawes drove in reverse at

a very slow rate of speed” when Kimpel and Hess fired at her and that “no one was in
the back of Dawes’ vehicle as she backed up.”27 Taken as true, these allegations make
this case similar to Lytle (where a suspect was fleeing from the officers) and unlike
Sanchez. The police officers in Sanchez had to react to an “abrupt change of direction”
from the suspect who was now driving directly towards one of the officers, who was
only a few feet away.28 These circumstances do not fit here, as Genevive Dawes

allegedly did not accelerate towards a police officer that was standing a few feet in
front of her, as occurred in Sanchez.29 Indeed, Genevive Dawes allegedly reversed
“at a very slow rate of speed” with no police officer behind her.30 Thus, there was no
need to react to an “abrupt change of direction” in this case just as there was not in
Lytle. The second amended complaint’s allegations, taken as true, illustrate that
Dawes did “not pose a sufficient threat to [Kimpel] or others.”31
For these reasons, the Court, taking the allegations in the plaintiffs’ second

amended complaint as true, finds that Lytle gave “reasonable warning” to Kimpel
that his conduct in firing at Genevive Dawes and Rosales “violated constitutional

26 Id. at 276.
27 Plaintiffs’ Second Amended Complaint ¶¶ 15, 18 [Doc. No. 11].
28 Sanchez, 433 F. App’x at 275.
29 Id.
30 Plaintiffs’ Second Amended Complaint ¶¶ 15, 18 [Doc. No. 11].
31 Lytle, 560 F.3d at 417–18.
rights” and thus violated clearly established law, namely the Fourth Amendment.32
C.
The City of Dallas objects to the Magistrate Judge’s findings that, taking the

allegations in the second amended complaint as true, the plaintiffs sufficiently pled
that the City of Dallas had an inadequate training policy and was deliberately
indifferent in adopting this policy under their § 1983 failure to train claim.
A failure to train claim requires a plaintiff to show “(1) that the municipality’s
training procedures were inadequate, (2) that the municipality was deliberately
indifferent in adopting its training policy, and (3) that the inadequate training policy

directly caused the violations in question.”33 A failure to train claim must also be
brought against the municipality’s final policymaker.34 To establish inadequate
training procedures, “a plaintiff must allege with specificity how a particular training
program is defective.”35 To show deliberate indifference, “[n]otice [to the
municipality] of a pattern of similar violations is required.”36 “A pattern is
tantamount to official policy when it is so common and well-settled as to constitute a
custom that fairly represents municipal policy.”37 In other words, the municipal

employees’ actions “must have occurred for so long or so frequently that the course of

32 Kinney v. Weaver, 367 F.3d 337, 350 (5th Cir. 2004) (en banc).
33 Ratliff v. Aransas Cty., Tex., 948 F.3d 281, 285 (5th Cir. 2020).
34 City of Canton, Ohio v. Harris, 489 U.S. 378, 389 (1989).
35 Zarnow v. City of Wichita Falls, Tex., 614 F.3d 161, 170 (5th Cir. 2010).
36 Sanders-Burns v. City of Plano, 594 F.3d 366, 381 (5th Cir. 2010) (quotation marks omitted).
37 Peterson v. City of Fort Worth, Tex., 588 F.3d 838, 850 (5th Cir. 2009) (quotation marks
omitted).
conduct warrants the attribution to the governing body of knowledge that the
objectionable conduct is the expected, accepted practice of city employees.”38 In
demonstrating this pattern, “[t]he prior acts must be fairly similar to what ultimately

transpired and, in the case of excessive use of force, that the prior act must have
involved injury to a third party.”39 The Fifth Circuit has found that twenty-seven
prior incidents of excessive force over a three-year period were not sufficiently
numerous to constitute a pattern.40 Notice to the municipality can be established
through demonstrating such a pattern.41
The Magistrate Judge found that the plaintiffs adequately pled the City of

Dallas had an inadequate use-of-force policy in their second amended complaint.
Particularly, she found the following allegations to be determinative on the first
prong of the analysis (an inadequate policy): six shootings of unarmed,
nonthreatening individuals between 2012 and 2015 in which some of the officers were
not disciplined, a 1987 report criticizing the City of Dallas’s use of force policy, and
that, in 2012, the Dallas Police Department Chief did not implement numerous
policies addressing officer training and use of force techniques, which he said he

would, after one of the aforementioned shootings took place. Regarding the second
prong of analysis (deliberate indifference), the Magistrate Judge found that the six
shootings were similar to the shooting in this case insofar as Genevive Dawes was

38 Webster v. City of Houston, 735 F.2d 838, 842 (5th Cir. 1984).
39 Id. (quoting Davis v. City of N. Richland Hills, 406 F.3d 375, 386 (5th Cir.2005).
40 Fuentes v. Nueces County, 689 F. App’x 775, 778 (5th Cir. 2017).
41 Thomas v. City of Galveston, Tex., 800 F.Supp.2d 826, 843–44 (S.D. Tex. Aug. 1, 2011).
also an unarmed, nonthreatening individual. Thus, the Magistrate Judge concluded
these shootings were sufficient to establish a pattern of constitutional violations to
show deliberate indifference at this stage of the proceedings.

The City of Dallas objects to the Magistrate Judge’s use of the six shooting
incidents as supporting deliberate indifference.42 First, citing Fuentes v. Nueces
County, the City of Dallas argues that six shootings are not sufficiently numerous to
establish a pattern.43 The Fifth Circuit in Fuentes, citing two prior Fifth Circuit
cases, stated that although “there is no rigid rule regarding numerosity, we have
previously held that 27 prior incidents of excessive force over a three-year period,

. . . and 11 incidents offering ‘equivocal evidence’ of unconstitutional searches over a
three-year period . . . were not sufficiently numerous to constitute a pattern.”44 As
six incidents within a three-year period is well below twenty-seven (that was still
insufficient), the City of Dallas argues the plaintiffs have failed to establish a pattern
and thus cannot establish that the Dallas City Council was deliberately indifferent
in adopting the alleged inadequate use of force policy.
The Court agrees with the City of Dallas. Six incidents of excessive force

within a five-year period is not sufficient under Fifth Circuit precedent to constitute
a pattern “so common and well-settled as to constitute a custom that fairly represents

42 The City of Dallas purportedly also objects to the inadequate training procedures prong of
the qualified immunity analysis but, upon closer inspection, these objections pertain to the deliberate
indifference prong and so are listed here as such.
43 689 F. App’x 775 (5th Cir. 2017).
44 Id. at 778 (citing Peterson, 588 F.3d 838 at 850–52 & Pineda v. City of Houston, 291 F.3d
325, 329 (5th Cir. 2002)).
municipal policy” and does not “warrant the attribution to the governing body of
knowledge that the objectionable conduct is the expected, accepted practice of city
employees.”45 The Fifth Circuit case concerning the twenty-seven incidents of

excessive force, Peterson v. City of Fort Worth, Texas, involved a municipal liability
claim against the City of Fort Worth.46 In holding that twenty-seven incidents were
not enough to constitute a pattern, the Fifth Circuit noted that the record did not
provide sufficient context.47 Specifically, the Fifth Circuit said the record did not
show “the size of Fort Worth’s police department or how many arrests were made by
the department” within the three-year period or provide comparisons to other cities.48

Here, the plaintiffs have not alleged any such facts that would give similar context to
the alleged six incidents. Although there is “no rigid rule as to numerosity,” given
that the Fifth Circuit has found twenty-seven incidents of excessive force within a
three-year period insufficient to establish a pattern without proper context, the Court
holds in this instance that six incidents of excessive force within a five-year period,
as currently pled, are not sufficient as well.49
For these reasons, the Court finds that, taking the allegations in the current

45 Peterson, 588 F.3d at 850 (quotation marks omitted); Webster, 735 F.2d at 842.
46 588 F.3d at 847.
47 Id. at 851–52, n.4.
48 Id. at 851 (additionally stating “[w]e have previously indicated that the size of a police
department may be relevant to determining whether a series of incidents can be called a
pattern.”). The Fifth Circuit in Peterson also noted that the Fort Worth Police Department
had 1,500 officers. Id. at 852. A passing glance at the Dallas Police Department’s website
shows they currently have at least 3,300 officers, over twice as many as Fort Worth at the time
of Fuentes. DALLAS POLICE DEPARTMENT, https://dallaspolice.net/join-dpd (last visited June
11, 2020). However, the Court notes that the City of Dallas may not have had this number of
officers at the time of the incident at issue in this case.
49 Fuentes, 689 F. App’x at 778.
complaint as true, the plaintiffs have failed to state their § 1983 failure to train claim.
III.
For the reasons stated above, the Court is of the opinion that the findings and

conclusions of the Magistrate Judge in her Reports are partially correct. The Court
therefore ADOPTS the Magistrate Judge’s Reports as the findings and conclusions
of the Court except as they relate to the City of Dallas’s motion to dismiss the claim
against itself [Doc. Nos. 71 & 72]. The Court REJECTS the findings and conclusions
of the Magistrate Judge’s Reports as they relate to the City of Dallas’s motion to
dismiss the claim against itself [Doc. No. 71].

Accordingly, the Court GRANTS the City of Dallas’s motion to dismiss the
plaintiffs’ claim against itself [Doc. No. 13] and DISMISSES this claim WITHOUT
PREJUDICE. The Court GRANTS IN PART the City of Dallas’s motion to dismiss
the state law claims against officers Kimpel and Hess [Doc. No. 14]. The Court
GRANTS this motion as applied to officer Kimpel and DISMISSES the state law
claims against officer Kimpel WITHOUT PREJUDICE for lack of jurisdiction.
However, the Court does not rule at this time on this motion as applied to officer

Hess. Lastly, the Court DENIES Kimpel’s motion to dismiss the plaintiffs’ claims as
to himself and his alternative request to require the plaintiffs to file a reply to his
sovereign immunity defense [Doc. No. 35].
The Court anticipates granting the plaintiffs’ request to replead their failure
to train claim against the City of Dallas after the remaining motion to dismiss is
disposed of but does not do so now.
IT ISSO ORDERED this 2nd day of July, 2020.

BRANTLEY ; ‘ARR
UNITED SPATES DISTRICT JUDGE

15

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10448614. Public record. Not legal advice.