Orlando v. Parker

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

JON R. ORLANDO,

INSTITUTIONAL ID NO. 2416162,

Plaintiff,

v. No. 4:23-cv-0285-P

ROBERT PARKER, ET AL.,

Defendants.

MEMORANDUM OPINION & ORDER

Jon R. Orlando is a state prisoner serving a 35-year sentence for

evading arrest with a vehicle.1 In this civil-rights action, Orlando

complains about the underlying arrest that led to his conviction.

Proceeding pro se and in forma pauperis (IFP), Orlando claims that five

City of Watauga police officers (Defendants) falsely arrested him and

used excessive force against him. He seeks monetary damages under 42

U.S.C. § 1983. As explained below, the Court DISMISSES all of

Orlando’s claims except his excessive-force claim against Defendant A.

Hetler.

LEGAL STANDARDS

A. 28 U.S.C. § 1915

A district court must dismiss a prisoner’s IFP complaint if, at any

time, it determines that the action is frivolous or malicious; fails to state

a claim on which relief may be granted; or seeks monetary relief against

a defendant that is immune from such relief. See 28 U.S.C. §

1915(e)(2)(B); see also Norwood v. O’Hare, 404 F. App’x 923, 924 (5th

Cir. 2010).

1. Frivolity

A complaint is frivolous if it lacks an arguable basis in law or fact.

Geiger v. Jowers, 404 F.3d 371, 373 (5th Cir. 2005). “A complaint lacks

an arguable basis in law if it is based on an indisputable meritless legal

theory, such as if the complaint alleges the violation of a legal interest

which clearly does not exist.” Id. (quoting McCormick v. Stalder, 105

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

2. Failure to State a Claim

Dismissals for failure to state a claim under § 1915(e) are reviewed

de novo, using the same standard applicable to dismissals under Federal

Rule of Civil Procedure 12(b)(6). See Hale v. King, 642 F.3d 492, 497 (5th

Cir. 2011) (citing Praylor v. Tex. Dep’t of Crim. Just., 430 F.3d 1208,

1209 (5th Cir. 2005)). Under the 12(b)(6) standard, all well-pleaded facts

are viewed in the light most favorable to the plaintiff, but the plaintiff

must allege facts that support each element of the cause of action in

order to state a valid claim. See City of Clinton, Ark. v. Pilgrim’s Pride

Corp., 632 F.3d 148, 154–55 (5th Cir. 2010) (citing Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 555 (2007) (“Factual allegations must be enough

to raise a right to relief above the speculative level.”)). The court does

not accept as true “[t]hreadbare recitals of the elements of a cause of

action, supported by mere conclusory statements.” City of Clinton, Ark.,

632 F.3d at 153 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).

B. 42 U.S.C. § 1983

To state a claim for relief under 42 U.S.C. § 1983, the plaintiff must

allege that (1) some person has deprived him of a federal right; and (2)

that the person acted under color of state or territorial law. See Arnold

v. Williams, 979 F.3d 262, 266 (5th Cir. 2020) (citing Gomez v. Toledo,

446 U.S. 635, 640 (1980)).

However, in Heck v. Humphrey, 512 U.S. 477 (1994), the United

States Supreme Court considered the effect of a criminal conviction on

a plaintiff’s § 1983 claim. Thomas v. Pohlmann, 681 F. App’x 401, 406

(5th Cir. 2017) (citing Heck v. Humphrey, 512 U.S. 477, 486–87 (1994)).

The Heck court held that a plaintiff is not permitted to use a § 1983

action to challenge the validity of his conviction or sentence unless he

demonstrates that the conviction or sentence has been reversed or

invalidated. Id. The Supreme Court imposed this requirement on § 1983

plaintiffs to avoid collateral attacks by plaintiffs on convictions that are

still outstanding. Hudson v. Hughes, 98 F.3d 868, 872 (5th Cir. 1996)

(citing Heck, 512 U.S. at 487)). Thus, when a defendant who has been

convicted of a crime brings a § 1983 claim, “the district court must first

consider whether a judgment in favor of the plaintiff on his § 1983 claim

would necessarily imply the invalidity of his conviction or sentence.” See

Connors v. Graves, 538 F.3d 373, 376 (5th Cir. 2008) (quoting Heck, 512

U.S. at 487)). If so, the claim is barred unless the plaintiff proves that

his conviction or sentence “has been reversed on direct appeal, expunged

by executive order, declared invalid by a state tribunal authorized to

make such determination, or called into question by a federal court’s

issuance of a writ of habeas corpus.” Id.

ANALYSIS

Orlando brings false-arrest and excessive-force claims against

Defendants in their individual and official capacities.

A. Official Capacity Claims

To the extent that Orlando seeks to recover monetary damages from

Defendants in their official capacities, the Court concludes that Orlando

fails to state a plausible § 1983 against them. Defendants are employees

of the City of Watauga—a municipal entity. Suits brought against

municipal employees in their official capacities “generally represent

only another way of pleading an action against an entity of which an

officer is an agent.” See Monell v. New York City Dep’t of Social Serv.’s,

436 U.S. 658, 690 (1978). In other words, in order to recover damages

under § 1983 from municipal employees in their official capacities, a

plaintiff must demonstrate that the municipality itself is liable for the

alleged unlawful conduct. But municipalities are only liable if official

policies or customs cause injuries to the plaintiff. Id. Here, Orlando does

not name the City of Watauga as a defendant in this case. Nor does he

even allege, much less plead any specific facts to show, that its policies

and/or customs led to his alleged unlawful arrest and resultant injuries.2

2Orlando alleges that Defendant Parker, in his purported official capacity as Chief

of Watauga Police, failed to properly train the other defendants on how to properly

identify themselves. See ECF No. 10 at 3. To the extent that Orlando intends to allege

that Parker, as the supervisor of the remaining defendants, is responsible for their

conduct, the Court concludes that Orlando fails to state a plausible claim for relief.

Under § 1983, supervisory officials are not liable for the actions of subordinates on

any theory of vicarious liability. See Thompkins v. Belt, 28 F.2d 298, 303 (5th Cir. 1987)

(citations omitted). However, a supervisor may be held liable if there exists either (1)

his personal involvement in the constitutional deprivation; or (2) a sufficient causal

connection between the supervisor’s wrongful conduct and the constitutional violation.

Id. Supervisory liability can be established without overt personal participation in the

B. Individual Capacity Claims

1. False Arrest

Orlando claims that Defendants A. Hetler, B. Pickett, K. Bell, and

Macana violated his Fourth Amendment right because they arrested

him without having probable cause to do so. He alleges they failed to

identify themselves as police officers when they approached his parked

vehicle to investigate a reported disturbance at Park Vista Apartments.

Orlando alleges that, when Defendants approached him, they were

masked, armed, and shining flashlights in his face. He insists that he

fled the scene because he believed he was being robbed or attacked and

did not know that Defendants were police officers.

In accordance with Heck, the Court must consider whether a

judgment in Orlando’s favor would necessarily imply the invalidity of

his conviction for evading arrest. The Court concludes that it would. See

Wells v. Bonner, 45 F.3d 90, 95 (5th Cir. 1995) (“[The plaintiff’s] proof to

establish his false arrest claim, i.e., that there was no probable cause to

arrest [for the crime for which he was ultimately convicted], would

demonstrate the invalidity of the conviction].”)). Thus, Orlando has no

cause of action for damages unless he can demonstrate that his

conviction has been invalidated. Orlando cannot do so; he specifically

admits otherwise in response to the Court’s questionnaire. See ECF No.

10 at 3.

For these reasons, the Court concludes that Orlando’s false-arrest

claims are barred by Heck and, therefore, legally frivolous.3

offensive act if supervisory officials implement a policy so deficient that the policy itself

is a repudiation of constitutional rights and is the moving force of the constitutional

violation. Id. at 304 (citations omitted). Existence of a constitutionally deficient policy

cannot be inferred from a single wrongful act. Id. Orlando’s claim is wholly conclusory.

He does not allege that Parker was personally involved in his arrest or that his conduct

otherwise led to his arrest. For example, Orlando does not allege that Parker directed

the other defendants to initiate his arrest in the manner that they did or that Parker

was, in any way, personally involved in making the decision to do so. Nor does Orlando

argue or plead any facts to demonstrate that Parker implemented or otherwise adopted

an unconstitutional practice or policy of any kind.

3See Anderson v. Galveston Cnty. Dist. Clerk, 91 F. App’x 925 (5th Cir. 2004) (the

district court did not abuse its discretion in dismissing the complaint as frivolous given

that the damages claim raised therein was Heck-barred and thus had no arguable

merit); see also Hamilton v. Lyons, 74 F.3d 99, 102 (5th Cir. 1996).

2. Excessive Force

Orlando also claims that Defendants used excessive force against

him after he stopped fleeing their pursuit of him. To succeed on an

excessive- force claim, a plaintiff bears the burden of showing (1) an

injury; (2) which resulted directly and only from the use of force that

was excessive to the need; and (3) the force used was objectively

unreasonable. See Glenn v. City of Tyler, 242 F.3d 307, 314 (5th Cir.

2001) (citations omitted). Although a showing of “significant injury” is

no longer required in the context of an excessive-force claim, a plaintiff

must assert that he suffered some form of injury. Id. The injury must be

more than a de minimis injury and must be evaluated in the context in

which the force was deployed. Id.

Here, Orlando alleges that after he stopped his vehicle, he “put his

hands up in surrender.” He alleges that, despite his “surrender,”

Defendant Hetler made a hostile comment and slammed his face and

body into the concrete, causing him to sustain a broken nose and injury

to his right shoulder. See ECF No. 1 at 5; see also ECF No. 10 at 6–7.

However, he admits that he did not sustain any injuries as a result of

Defendants Pickett, Bell, or Macana’s conduct. See ECF No. 10 at 8. Nor

does he allege that they failed to intervene. This is fatal to his claims

against them. Because Orlando fails to plead any facts that show he

sustained an injury as a result of Pickett, Bell, or Macana’s conduct, the

Court concludes that he fails to state a plausible excessive-force claim

against them.

CONCLUSION

For these reasons, Orlando’s § 1983 claims against Defendants in

their official capacities are DISMISSED WITH PREJUDICE for

failure to state a plausible claim for relief.

Orlando’s § 1983 false-arrest claims against Defendants Hetler,

Pickett, Bell, and Macana in their individual capacities are

DISMISSED WITH PREJUDICE to their being asserted again until

the Heck conditions are met. See Johnson v. McElveen, 101 F.3d 423,

424 (5th Cir. 1996).

Orlando’s § 1983 excessive-force claims against Defendants Pickett,

Bell, and Macana in their individual capacities are DISMISSED WITH

PREJUDICE for failure to state a plausible claim for relief.

Orlando’s § 1983 supervisory liability claim against Defendant

Parker, to the extent that he intends to raise one, is DISMISSED WITH

PREJUDICE for failure to state a plausible claim for relief.

Orlando will be allowed to proceed with his excessive-force claim

against Defendant Hetler in his individual capacity. However, the Court

expresses no opinion on the merits of his claim.

SO ORDERED on this 13th day of June 2024.