The opinion
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
GABRIEL ANTHONY OLIVAS, ET AL.,
Plaintiffs,
v. No. 4:20-CV-0007-P
CITY OF ARLINGTON TEXAS,
Defendant.
MEMORANDUM OPINION AND ORDER
This case has a tortured past. Twice-appealed, twice-reversed, and
twice-remanded by the Fifth Circuit,1 the Court now considers
Defendant City of Arlington Texas’s motion to dismiss Plaintiffs Selina
Marie Ramirez and Gabriel Anthony Olivas’s Monell claim. ECF No.
101.2 Because the Plaintiffs failed to allege a constitutional violation
supporting their Monell claim, the Court GRANTS Defendant’s motion
to dismiss under Federal Rule of Civil Procedure 12(b)(6). ECF No. 101.
FACTUAL BACKGROUND
In short, City of Arlington police officers responded to a call from
Plaintiff Gabriel Anthony Olivas that Olivas’s father was threatening to
commit suicide and burn down the house. ECF No. 93 at 7. One of the
three responding officers, Caleb Elliott, entered the bedroom where he
found Olivas’s father (“the decedent”) holding a gas can. Id. at 9. Officer
1 See Ramirez v. Guadarrama, 3 F.4th 129, 135–36 (5th Cir. 2021) (reversing the
district court’s denial of qualified immunity after concluding that the two officers who
tasered a man that they knew was doused in gasoline causing him to erupt in flames
and die from his injuries did not use excessive force); Ramirez v. City of Arlington, No.
21-10856, 2022 WL 3644197, at *2–3 (5th Cir. Aug. 24, 2022) (reversing the district
court’s dismissal of Plaintiffs’ Monell v. N.Y.C. Department of Social Services, 436 U.S.
658 (1978), claim for failing to give Plaintiffs notice and an opportunity to respond).
2 Because Defendant filed an amended motion to dismiss (ECF No. 101), the Court
DENIES as moot Defendant’s original motion to dismiss the second amended
complaint (ECF No. 100).
Elliott could smell gasoline, but the decedent’s clothing appeared to be
dry. Id.
Concerned that the gasoline vapors could start a fire if the officers
tased the decedent, Officer Elliott holstered his taser and warned the
other two officers of the danger. Id. at 9–10. The other officers did not
listen, instead aiming their tasers at the decedent. Id. at 10. Without
any warning, Officer Elliott “unholstered his pepper spray, shook it,
then advanced in front of the other two officers to approximately six feet
from” the decedent. Id. The decedent then poured gasoline over his head,
so Officer Elliott quickly sprayed the decedent in the face with pepper
spray, blinding him. Id. at 10–11.
As the decedent “became agitated” from the pepper spray, Officer
Elliott and one of the other officers saw that the decedent was in
possession of a lighter. Id. at 11. This prompted the other two police
officers to fire their tasers at the decedent, causing him to burst into
flames. Id. at 12–16. The decedent died from his burns a few days later.
Id. at 16. Though all three officers knew that the decedent would catch
fire if tased (id. at 12–16), the City of Arlington did not discipline or
retrain any of the officers (id. at 17).
Plaintiffs therefore sued the City of Arlington under 42 U.S.C.
§ 1983.3 Id. at 38. Relevant to the only remaining claim before the Court,
Plaintiffs contend that the City of Arlington’s policies about escalation
of force, providing “less lethal” weaponry, requiring officers to warn
before using force, and disciplining officers were the “moving force[s]”
behind the decedent’s death. Id. at 32–38. Defendant moves to dismiss
this case under Rule 12(b)(6). ECF No. 101.
LEGAL STANDARD
To survive a motion to dismiss for “failure to state a claim upon which
relief can be granted,” FED. R. CIV. P. 12(b)(6), a plaintiff’s complaint
“must contain sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face,’” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
3 For a more extensive recitation of the facts and description of Plaintiffs’ § 1983
claims against the two officers who tased the decedent, see Ramirez, 3 F.4th at 132.
(2007)). The Court accepts all well-pleaded facts as true, drawing all
inference in favor of and viewing all facts in the light most favorable to
the nonmoving party. Club Retro, L.L.C. v. Hilton, 568 F.3d 181, 194
(5th Cir. 2009).
ANALYSIS
There are three elements to a Monell claim: (1) a policymaker who
(2) promulgates a policy or custom (3) that is the moving force behind a
constitutional violation. Monell, 436 U.S. at 694; Peña v. City of Rio
Grande, 879 F.3d 613, 621 (5th Cir. 2018). The Court need only address
the constitutional violation part of the third element because it is
dispositive here.
Plaintiffs assert that the constitutional violation at play in their
Monell claim is excessive force in violation of the Fourth Amendment.
ECF No. 39 ¶ 85. To state an excessive force claim, a plaintiff must
allege “(1) [an] 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.” Freeman v. Gore, 483 F.3d 404, 416 (5th Cir.
2007) (citations omitted). “The determination of whether a plaintiff’s
alleged injury is sufficient to support an excessive force claim is context-
dependent and is directly related to the amount of force that is
constitutionally permissible under the circumstances.” Id. (quotation
omitted).
As an initial matter, the Fifth Circuit already held that the two
officers who tased the decedent and consequently caused him to catch
fire did not use excessive force. Ramirez, 3 F.4th at 136–37. The Court
therefore cannot relitigate whether the two officers’ conduct amounts to
excessive force. See United States v. Hankton, 51 F.4th 578, 606 (5th Cir.
2022) (applying claim preclusion). So the only conduct that the Court
may consider in determining whether there is a constitutional violation
is Officer Elliott’s use of pepper spray on the decedent.
Plaintiffs alleged an actual injury—the first element of excessive
force—because the decedent was blinded by the pepper spray. ECF No.
93 at 11. Plaintiffs counter that Officer Elliott’s actions set in motion a
series of events that ultimately resulted in the decedent’s death, so the
actual injury here is the decedent’s death, not temporary blindness. ECF
No. 102 at 29–30. Assuming arguendo that Plaintiffs’ theory is
plausible—an assumption about which the Court is dubious—Plaintiffs
nevertheless fail to establish the second and third elements of their
excessive force claim. So whether the actual injury was the decedent’s
temporary blindness or his ultimate death is inconsequential: Plaintiffs
still fail to assert a constitutional violation in support of their Monell
claim.
Courts often consider the second and third excessive force elements
together. Solis, 31 F.4th at 982. When analyzing these elements, the
Court considers four factors: (1) the severity of the crime; (2) whether
the suspect poses an immediate threat to others; (3) whether the suspect
is actively resisting arrest or attempting to flee; and (4) the speed at
which the officers resort to force. Id. at 982–83 (citing Graham v.
Connor, 490 U.S. 386, 396 (1989); Trammell v. Fruge, 868 F.3d 332, 341
(5th Cir. 2017)).
Many of these factors were already litigated in Ramirez, so the Court
cannot relitigate them here. See Hankton, 51 F.4th at 606; Ramirez, 3
F.4th at 134–35. First, the severity of the threatened crime—i.e., felony
arson—is “considerable,” thus weighing against excessive force.
Ramirez, 3 F.4th at 134–35 (citing TEX. PENAL CODE § 28.02).
Second, the decedent “posed a substantial and immediate risk of
death or serious bodily injury to himself and everyone in the house.” Id.
at 135. It reasoned that the decedent “was covered in gasoline[,] . . . had
been threatening to kill himself and burn down the house[,] . . .
appeared to be holding a lighter[,] . . . [and] there were at least six other
people in the house, all of whom were in danger” at the time. Id. Thus,
the second factor also weighs against excessive force.
Third, the Fifth Circuit concluded that whether the decedent was
actively resisting arrest or attempting to flee was “of minimal
relevance,” given that the facts of this case did not lend themselves to
the decedent attempting to flee or evade arrest. Id. So this factor is
neutral.
The Fifth Circuit did not consider the fourth factor—albeit, the
fourth factor was created by the Fifth Circuit, whereas the first three
factors were articulated by the Supreme Court. Compare Graham, 490
U.S. at 396, with Trammell, 868 F.3d at 342. Upon considering the factor
for the first time here, the operative complaint is unclear as to the time
that elapsed from when the officers arrived at the scene and when
Officer Elliott pepper sprayed the decedent. See ECF No. 93 at 4–12. But
the complaint states that enough time passed for Officer Elliott to
recognize that the decedent possessed gasoline, tell the two other officers
not to tase the decedent because he would catch fire, holster his own
taser, draw his pepper spray, and step in front of the other two officers
to spray the decedent. Id. at 10–12. The complaint also states that the
officers “had the time and opportunity” to issue a command or warn the
decedent that they planned on using force against him. Id. at 10.
Viewing these allegations in the light most favorable to Plaintiffs, the
Court concludes that the fourth factor weighs in favor of excessive force.
On balance, the relevant factors indicate that, when viewing Officer
Elliott’s actions from “a reasonable officer on the scene, rather than with
the 20/20 vision of hindsight,” Graham, 490 U.S. at 396, the decedent’s
Fourth Amendment rights were not violated. This conclusion clearly
flows from the Fifth Circuit’s analysis in Ramirez; if the two officers who
tased the decedent knowing that he would erupt in flames did not use
excessive force, then Officer Elliott’s use of pepper spray to try to subdue
the decedent and avoid causing him to catch fire is not excessive force.
There is therefore no constitutional violation here, and Plaintiffs
consequently failed to allege a Monell claim.
CONCLUSION
To state a prima facie Monell claim, Plaintiffs must allege a
constitutional violation. 436 U.S. at 694. Plaintiffs here allege that the
officers violated the decedent’s Fourth Amendment right to be free from
excessive force. The Fifth Circuit, however, already held that the two
officers who tased the decedent and caused him to catch on fire and
ultimately die from his injuries did not use excessive force. Ramirez, 3
F.4th at 134–37. The only remaining officer used pepper spray on the
decedent before he was tased. The Court concludes that this use of force
was not clearly excessive and unreasonable under the circumstances.
Because Plaintiffs failed to state a constitutional violation in support of
their Monell claim, the Court therefore GRANTS Defendant’s motion to
dismiss and hereby DISMISSES all claims against Defendant with
prejudice.
SO ORDERED on this 28rd day of January 2023.
MARK T. PITTMAN
UNITED STATES DISTRICT JUDGE
4This Court’s standard practice is to allow claimants one opportunity to amend
their pleadings prior to dismissing their claims with prejudice. See In re American
Airlines, Inc., Privacy Litig., 370 F. Supp. 2d 552, 567-68 (N.D. Tex. May 25, 2005)
(Fitzwater, J.) (highlighting the Fifth Circuit’s norm of allowing litigants an
opportunity to cure pleading deficiencies prior to dismissal). However, the Court is
disinclined to allow an opportunity to amend when it is clear that the pleading defects
are incurable. Jd. at 568. In the eyes of the Court, that is the case here because there
is no underlying constitutional violation supporting Plaintiffs’ assertion of Monell
liability against Defendant. Besides, Plaintiffs have already amended their complaint
twice. See ECF Nos. 1, 19, 98. Dismissal with prejudice of these claims is therefore
appropriate, and Plaintiffs’ alternative request for leave to amend is DENIED. See
ECF No. 102 at 30.