Wilson v. City of Mission

UNITED STATES DISTRICT COURT April 30, 2020

SOUTHERN DISTRICT OF TEXAS David J. Bradley, Clerk

MCALLEN DIVISION

STEVEN J. WILSON, §

§

Plaintiffs, §

VS. § CIVIL ACTION NO. 7:18-cv-00399

§

CITY OF MISSION, TEXAS and §

TEODORO RODRIGUEZ, JR., §

§

Defendants. §

OPINION AND ORDER

The Court now considers “Plaintiff’s Opposed Motion for Leave to File Second

Amended Complaint”1 and Defendants’ response.2 After considering the motion, record, and

relevant authorities, the Court GRANTS Plaintiff’s motion to amend except to the extent

described herein.

I. BACKGROUND AND PROCEDURAL HISTORY

This case is a civil rights lawsuit seeking recovery for allegedly excessive force used by

Mission Police Department officers when they shot an unarmed man in his bedroom on January

9, 2017.3 The operative complaint, Plaintiff’s First Amended Complaint, brings claims against

Mission, Texas police officer Teodoro Rodriguez, Jr. under 42 U.S.C. § 1983 and against the

City of Mission under the Texas Tort Claims Act.4

Plaintiff Steven Wilson is disabled by schizoaffective disorder.5 On January 9, 2017,

Plaintiff “suffered a mental health episode” and the Mission Police Department received calls

1 Dkt. No. 29.

2 Dkt. No. 30.

3 See Dkt. No. 21.

4 Dkt. No. 22 at 1, ¶ 1. (The facts set out herein are as alleged by Plaintiff)

5 Id. ¶ 2.

that Plaintiff “was running naked through the neighborhood.”6 Police officers arrived at

Plaintiff’s home and found Plaintiff in his locked bedroom lying in his bed.7 Defendant police

officer Rodriguez fired his shotgun at Plaintiff through a window that looked into Plaintiff’s

bedroom.8 The shotgun blast severely injured Plaintiff, but Plaintiff survived with permanent

injuries after being taken to the hospital.9 The use of live shotgun ammunition was allegedly a

mistake, as Defendant Rodriguez meant to use a nonlethal “beanbag round.”10

Plaintiff’s instant motion now informs the Court that Plaintiff’s belief that Defendant

Officer Rodriguez shot Plaintiff was error.11 Plaintiff brought his original complaint in December

201812 and filed his amended complaint in April 2019.13 Plaintiff represents that “[d]iscovery in

this case did not begin until June 2019.”14 Plaintiff learned no later than September 30, 2019, that

Officer Jaime Solis was actually the shooter,15 and Plaintiff moved to amend in December

2019.16 It turns out that Officer Rodriguez was allegedly the “supervisor in charge of the scene

and negligently loaded the wrong type of ammunition in the weapon Officer Solis used.”17

Plaintiff seeks leave to amend to account for new facts, assert supervisor liability against Officer

Rodriguez, and amend the Texas Tort Claims Act “claim against the City of Mission to account

for Officer Rodriguez’s and Officer Solis’s respective conduct.”18 Plaintiff relies on the

6 Id. at 2, ¶ 9.

7 Id. at 2–3, ¶ 11.

8 Id. at 3, ¶ 13.

9 Id. ¶¶ 14–16.

10 Id. at 5, ¶¶ 21–22.

11 Dkt. No. 29 at 1, ¶ 2.

12 Dkt. No. 1.

13 Dkt. No. 22.

14 Dkt. No. 29 at 1, ¶ 3.

15 See Dkt. No. 29-2.

16 Dkt. No. 29.

17 Id. at 2, ¶ 3.

18 Id. at 2, ¶ 4.

“relation-back doctrine under Rule 15(c)” to account for adding claims and a defendant beyond

the statute of limitations.19

Defendants oppose Plaintiff’s motion for leave to amend. Defendants’ central argument is

that “[e]ven through his proposed second amended complaint, however, Plaintiff fails to state a

claim upon which relief can be granted against the Defendants. Plaintiff has proposed to amend

his complaint in an effort to survive otherwise certain dismissal, but such amendments are

cosmetic and futile.”20 Defendants also argue that Plaintiff’s supervisory claim against Defendant

Rodriguez21 and claims under the Texas Tort Claims Act cannot be brought.22 The motion is ripe

for decision.

II. DISCUSSION

a. Legal Standards

After the deadline for amending a pleading once as a matter of course,23 “a party may

amend its pleading only with the opposing party’s written consent or the court’s leave.”24

Plaintiffs’ First Amended Complaint was filed on April 30, 2019,25 so the motion for leave to

amend in December 2019 is after the 21-day deadline26 and therefore requires the Court’s leave.

“Leave to amend is in no way automatic, but the district court must possess a substantial reason

to deny a party’s request for leave to amend.”27 In determining whether to allow leave to amend

a pleading, courts examine whether there is (1) undue delay; (2) bad faith or dilatory motive; (3)

repeated failure to cure deficiencies by previous amendments; (4) undue prejudice to the

19 Id. ¶ 5.

20 Dkt. No. 30 at 2, ¶ 1.

21 Id. at 3, ¶ 5.

22 Id. at 9, ¶ 13.

23 See FED. R. CIV. P. 15(a)(1).

24 FED. R. CIV. P. 15(a)(2).

25 Dkt. No. 22.

26 Dkt. No. 29.

27 Marucci Sports, L.L.C. v. Nat’l Collegiate Athletic Ass’n, 751 F.3d 368, 378 (5th Cir. 2014) (quotation omitted).

opposing party; and (5) futility of the amendment.28 As to the fifth factor, the Fifth Circuit has

held that that courts “need not indulge in futile gestures. Where a complaint, as amended, would

be subject to dismissal, leave to amend need not be granted.”29 Absent such factors, the Court

should freely grant the requested leave.30 Nonetheless, the decision whether to grant leave to

amend lies within the Court’s sound discretion.31 “At some point a court must decide that a

plaintiff has had a fair opportunity to make his case; if, after that time, a cause of action has not

been established,” this Court will dismiss the suit.32

To determine whether a proposed amended complaint is futile, the Court applies the

Federal Rule of Civil Procedure 12(b)(6) standard.33 Under Rule 12(b)(6), to avoid dismissal,

the complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief

that is plausible on its face.’”34 The Court accepts all well-pleaded facts as true (even if doubtful

or suspect35) and views those facts in the light most favorable to the plaintiff, but will not strain

to find inferences favorable to the plaintiff.36 A plaintiff need not plead detailed factual

allegations, but must plead more than “‘naked assertion[s] devoid of ‘further factual

enhancement’” or “[t]hreadbare recitals of the elements of a cause of action, supported by mere

conclusory statements” to survive a motion to dismiss.37 Courts first disregard any conclusory

28 SGK Props., L.L.C. v. U.S. Bank Nat’l Ass’n, 881 F.3d 933, 944 (5th Cir.) (quoting Smith v. EMC Corp., 393 F.3d

590, 595 (5th Cir. 2004)), cert. denied, 139 S. Ct. 274 (2018).

29 United States ex rel. Jackson v. Univ. of N. Tex., 673 F. App’x 384, 388 (5th Cir. 2016) (quoting DeLoach v.

Woodley, 405 F.2d 496, 496–97 (5th Cir. 1968) (per curiam)).

30 Foman v. Davis, 371 U.S. 178, 182 (1962).

31 Smith, 393 F.3d at 595 (quoting Quintanilla v. Tex. Television, Inc., 139 F.3d 494, 499 (5th Cir. 1998)).

32 Gentilello v. Rege, 627 F.3d 540, 546 (5th Cir. 2010) (quoting Jacquez v. Procunier, 801 F.2d 789, 792 (5th Cir.

1986)).

33 Stripling v. Jordan Prod. Co., 234 F.3d 863, 873 (5th Cir. 2000).

34Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

35 Twombly, 550 U.S. at 555–56.

36 Dorsey v. Portfolio Equities, Inc., 540 F.3d 333, 338 (5th Cir. 2008).

37 Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557); see also id. at 679 (holding that a complaint that

“do[es] not permit the court to infer more than the mere possibility of misconduct” does not suffice to state a claim).

allegations as not entitled to the assumption of truth,38 and then undertake the “context-specific”

task, drawing on judicial experience and common sense, of determining whether the remaining

well-pled allegations give rise to entitlement to relief.39 “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.”40 Courts have “jettisoned the [earlier] minimum

notice pleading requirement”41 and the complaint must plead facts that “nudge” the claims

“across the line from conceivable to plausible.”42 However, the standard is only “to determine

whether the plaintiff has stated a legally cognizable claim that is plausible, not to evaluate the

plaintiff’s likelihood of success.”43 The Court is limited to assessing only the complaint, its

proper attachments, documents incorporated into the complaint by reference, and matters of

which the Court may take judicial notice.44 Because the focus is on the pleadings, “if, on a

motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not

excluded by the court, the motion must be treated as one for summary judgment under Rule

56.”45

b. Analysis of Relation-Back of Proposed Amendment

The Court first turns to whether Plaintiff’s proposed new claims against police officer

Jaime Solis are time-barred by the statute of limitations or are permitted by the relation-back

doctrine, because there is no need to examine Plaintiff’s allegations against Officer Solis if they

38 Mustapha v. HSBC Bank USA, NA, No. 4:11-CV-0428, 2011 WL 5509464, at *2 (S.D. Tex. Nov. 10, 2011)

(Hanks, J.) (“[A] court is not required to accept conclusory legal allegations cast in the form of factual allegations if

those conclusions cannot reasonably be drawn from the facts alleged.”).

39 Iqbal, 556 U.S. at 678–79; see also Fernandez-Montez v. Allied Pilots Ass'n, 987 F.2d 278, 284 (5th Cir. 1993)

(“[C]onclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a

motion to dismiss”).

40 Iqbal, 556 U.S. at 678.

41 St. Germain v. Howard, 556 F.3d 261, 263 n.2 (5th Cir. 2009).

42 Iqbal, 556 U.S. at 680 (quoting Twombly, 550 U.S. at 570).

43 Doe ex rel. Magee v. Covington Cty. Sch. Dist. ex rel. Keys, 675 F.3d 849, 854 (5th Cir. 2012) (quoting Lone Star

Fund V (U.S.), L.P. v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010))

44 Dorsey v. Portfolio Equities, Inc., 540 F.3d 333, 338 (5th Cir. 2008).

45 FED. R. CIV. P. 12(d).

cannot be asserted at all. Plaintiff acknowledges that he “seeks to add claims and a defendant

beyond the applicable 2-year statute of limitations”46 so Plaintiff therefore “relies on the relation-

back doctrine under Rule 15(c).”47 Plaintiff argues that he has made an error of misidentification,

but the relation-back doctrine permits amendment where the parties are closely related or where

notice may be imputed through shared counsel.48 Plaintiff also argues that the allegations arise

out of the same occurrence, Officer Solis will not be prejudiced by the amendment, the nature of

claims will not change and the Court will not need to modify the case management schedule, and

Officer Solis knew he may be sued because of the shooting.49 Defendants respond that the

proposed amendment is not a mistake or misidentification, that shared counsel does not cure the

issue, and that effectively substituting Officer Solis for Officer Rodriguez is impermissible.50

The relation-back doctrine permits an amended complaint to substitute in place of the

original complaint, and thus cure any potential statute of limitations issues, when the doctrine as

embodied in Federal Rule of Civil Procedure 15(c) and elaborated upon by the courts is

satisfied.51 Rule 15(c)(1) provides in full:

An amendment to a pleading relates back to the date of the original pleading

when:

(A) the law that provides the applicable statute of limitations allows relation

back;

(B) the amendment asserts a claim or defense that arose out of the conduct,

transaction, or occurrence set out--or attempted to be set out--in the original

pleading; or

(C) the amendment changes the party or the naming of the party against whom

a claim is asserted, if Rule 15(c)(1)(B) is satisfied and if, within the period

provided by Rule 4(m) for serving the summons and complaint, the party to be

brought in by amendment:

46 See TEX. CIV. PRAC. & REM. CODE ANN. § 16.003 (West 2020).

47 Dkt. No. 29 at 2, ¶ 5.

48 Id. at 3, ¶ 7.

49 Id. at 7–8, ¶¶ 18–20.

50 Dkt. No. 30 at 6–9, ¶¶ 8–12.

51 See Ultraflo Corp. v. Pelican Tank Parts, Inc., 926 F. Supp. 2d 935, 946 (S.D. Tex. 2013) (Harmon, J.) (citing

Krupski v. Costa Crociere S. p. A., 560 U.S. 538 (2010)).

(i) received such notice of the action that it will not be prejudiced in

defending on the merits; and

(ii) knew or should have known that the action would have been brought

against it, but for a mistake concerning the proper party's identity.

The Fifth Circuit has already held in the context of a 42 U.S.C. § 1983 action that Rule

15(c)(1)(A) is inapplicable.52 Therefore, “the addition of a new defendant does not relate back to

the original complaint unless what is now Rule 15(c)(1)(C) applies.”53 Under that subsection,

“Plaintiffs have the burden to demonstrate that an amended complaint relates back under Rule

15(c).”54 Thus, Plaintiff must satisfy the three elements of the rule: (1) same transaction, (2)

notice, and (3) mistake.55 In other words, under Rule 15(c), the party Plaintiff seeks to bring in

by amendment, Officer Solis, must have been involved in the same occurrence as Officer

Rodriguez and must have received notice within 90 days56 of the action and knew or should have

known that the case would have been brought against Officer Solis but for Plaintiff’s mistake

concerning the identity of the officer that shot Plaintiff.57 The relation-back “rule ‘is meant to

allow an amendment changing the name of a party to relate back to the original complaint only if

the change is the result of an error, such as a misnomer or misidentification.’”58 The inquiry thus

turns on “what the prospective defendant reasonably should have understood about the plaintiff's

intent in filing the original complaint.”59

52 See Balle v. Nueces Cty., 952 F.3d 552, 557 (5th Cir. 2017).

53 Ultraflo Corp., 926 F. Supp. 2d at 946 (citing Braud v. Transp. Serv. Co. of Ill., 445 F.3d 801, 806 (5th Cir.

2006)).

54 Al-Dahir v. FBI, 454 F. App'x 238, 242 (5th Cir. 2011).

55 See Jacobsen v. Osborne, 133 F.3d 315, 320 (5th Cir. 1998).

56 See FED. R. CIV. P. 4(m).

57 Al-Dahir, 454 F. App'x at 242.

58 Balle v. Nueces Cty., 952 F.3d 552, 557 (5th Cir. 2017) (quoting Jacobsen, 133 F.3d at 320).

59 Id. (quoting Krupski v. Costa Crociere S. p. A., 560 U.S. 538, 554 (2010)).

Defendants do not dispute that the proposed amendment satisfies the first element,

Rule 15(c)(1)(B).60 Plaintiff’s proposed amendment arises from the same occurrence and merely

seeks to substitute Officer Solis for Officer Rodriguez in the same set of allegations.61

Defendants also do not appear to dispute the second element, notice, under

Rule 15(c)(1)(C)(i).62 The notice element in this context may be satisfied by actual awareness of

the issues in the complaint,63 or by an “identity of interest between the original defendant and the

defendant sought to be added or substituted,” which means “the parties are so closely related in

their business operations or other activities that the institution of an action against one serves to

provide notice of the litigation to the other. In this regard, notice may be imputed to the new

party through shared counsel.”64 Officer Solis testified that he was aware of the shooting issue

and knew that he may be sued within approximately 60 days after the incident.65 Defendants do

not object to this testimony.66 Further, Plaintiff argues that “Officer Solis will not be prejudiced

because the same counsel that have been representing the City of Mission and Officer Rodriguez

will be representing him,”67 and Defendants do not object.68 Indeed, the same attorneys

represented Defendant City of Mission and Defendant Rodriguez, in addition to a police officer

now dismissed from this proceeding and “Unknown Mission Police Officers,” at an earlier stage

of this case.69 Furthermore, all police officers were served at the same address,70 which supports

60 See Dkt. No. 30 at 5–7, ¶¶ 7–10.

61 See Dkt. No. 29 at 2, ¶¶ 3–4.

62 See Dkt. No. 30 at 7–9, ¶¶ 10–12.

63 Sanders-Burns v. City of Plano, 594 F.3d 366, 378 (5th Cir. 2010).

64 Jacobsen v. Osborne, 133 F.3d 315, 320 (5th Cir. 1998) (internal quotation marks and citations omitted).

65 Dkt. No. 29-2 at 40, 159:7–160:8.

66 See Dkt. No. 30 at 6–7, ¶ 9. Defendants argue that, even if shared counsel is present, the “mistake” element

remains. Id. Although Federal Rule of Civil Procedure 12(d) requires the Court to convert a motion to dismiss into a

motion for summary judgment if the Court considers matters outside the pleadings, Rule 15 has no such

requirement.

67 Dkt. No. 29 at 7, ¶ 19.

68 See Dkt. No. 30 at 6–7, ¶¶ 7–10.

69 See Dkt. No. 7 at 21–22.

70 Dkt. No. 4.

the inference of adequate notice to Officer Solis.71 Lastly, Officers Rodriguez and Solis share an

identity of interest as police officers with the same city police department, which further supports

an inference of adequate notice.72 There is no obvious reason that Officer Solis has not received

adequate notice or will be prejudiced by joinder, and Defendants point to none. Officer Solis will

be entitled to raise all appropriate defenses.

Defendants dispute that Plaintiffs can satisfy the third element, mistake, under

Rule 15(c)(1)(C)(ii).73 Defendants argue that “failing to identify individual defendants cannot be

characterized as a mistake.”74 The Fifth Circuit held in Jacobsen v. Osborne that “[a] failure to

name the correct defendant due to a lack of knowledge of the proper party is not a mistake and

will not allow a plaintiff to avail itself of the relation back doctrine.”75 However, the Supreme

Court has abrogated this holding.76 The relevant passage is as follows:

By focusing on [Plaintiff] Krupski's knowledge, the Court of Appeals chose the

wrong starting point. The question under Rule 15(c)(1)(C)(ii) is not whether

Krupski knew or should have known the identity of [Defendant] Costa Crociere as

the proper defendant, but whether Costa Crociere knew or should have known

that it would have been named as a defendant but for an error. Rule

15(c)(1)(C)(ii) asks what the prospective defendant knew or should have known

during the Rule 4(m) period, not what the plaintiff knew or should have known at

the time of filing her original complaint. Information in the plaintiff's possession

is relevant only if it bears on the defendant's understanding of whether the

plaintiff made a mistake regarding the proper party's identity. For purposes of that

inquiry, it would be error to conflate knowledge of a party's existence with

the absence of mistake.77

71 See Ultraflo Corp. v. Pelican Tank Parts, Inc., 926 F. Supp. 2d 935, 955 (S.D. Tex. 2013) (citing Norton v. Int'l

Harvester Co., 627 F.2d 18, 21 (7th Cir. 1980) & Sanders-Burns v. City of Plano, 594 F.3d 366, 378 (5th Cir.

2010)).

72 See Quinn v. Guerrero, 863 F.3d 353, 363 (5th Cir. 2017) (noting the existence of a “shared identity of interest

between the officers and the City”).

73 See Dkt. No. 30 at 5–9, ¶¶ 7–12.

74 Id. at 7, ¶ 10 (quoting Jacobsen v. Osborne, 133 F.3d 315, 321 (5th Cir. 1998) (quoting Barrow v. Wethersfield

Police Dep’t, 66 F.3d 466, 470 (2nd Cir. 1995))).

75 Ultraflo Corp., 926 F. Supp. 2d at 947 (citing Jacobsen, 133 F.3d at 321).

76 3 EDWARD SHERMAN & MARY P. SQUIERS, MOORE’S FEDERAL PRACTICE – CIVIL § 15.19[3][d] nn.42–44 and

accompanying text (Supp. March 2020), cited with approval in Sanders-Burns v. City of Plano, 594 F.3d 366, 377,

379 (5th Cir. 2010).

77 Krupski v. Costa Crociere S. p. A., 560 U.S. 538, 548 (2010) (bold emphasis added).

With this holding, the Supreme Court resolved a circuit split and repudiated, among other cases,

Second and Seventh Circuit precedent holding that a plaintiff’s knowledge or lack of knowledge

is dispositive of the Rule 15(c)(1)(C)(ii) “mistake” inquiry.78 Those Second and Seventh Circuit

precedents are the cases the Jacobsen Court relied upon to reach its holding that failure to name

the correct defendant because of a lack of knowledge is not a permissible mistake.79

Accordingly, the Jacobsen analysis that Defendants urge is not the appropriate inquiry.

Instead, the Supreme Court articulated the considerations that must guide this Court’s decision:

We agree that making a deliberate choice to sue one party instead of another

while fully understanding the factual and legal differences between the two

parties is the antithesis of making a mistake concerning the proper party's identity.

We disagree, however, with respondent's position that any time a plaintiff is

aware of the existence of two parties and chooses to sue the wrong one, the proper

defendant could reasonably believe that the plaintiff made no mistake. The

reasonableness of the mistake is not itself at issue. As noted, a plaintiff might

know that the prospective defendant exists but nonetheless harbor a

misunderstanding about his status or role in the events giving rise to the claim at

issue, and she may mistakenly choose to sue a different defendant based on that

misimpression. That kind of deliberate but mistaken choice does not foreclose a

finding that Rule 15(c)(1)(C)(ii) has been satisfied.80

In light of these considerations, the Court must ascertain whether Plaintiff (1) deliberately chose

to sue Officer Rodriguez and not other parties, thus foreclosing a relation-back amendment under

the “mistake” element, or (2) mistakenly chose to sue Officer Rodriguez based on a

misimpression of Officer Rodriguez’s role in the events giving rise to Plaintiff’s claim. If Officer

Solis “legitimately believed that the limitations period had passed without any attempt to sue

him,” then he would have “a strong interest in repose” that Rule 15(c) would protect by denying

a relation-back amendment.81

78 SHERMAN & SQUIERS, supra note 76, § 15.19[3][d] n.42.

79 Jacobsen v. Osborne, 133 F.3d 315, 321 (5th Cir. 1998) (quoting Barrow v. Wethersfield Police Dep't, 66 F.3d

466, 470 (2d Cir. 1995) & Worthington v. Wilson, 8 F.3d 1253, 1257 (7th Cir. 1993)).

80 Krupski v. Costa Crociere S. p. A., 560 U.S. 538, 549 (2010).

81 Id.

Defendants recognize the possibility of a relation-back amendment and admit that, “[h]ad

Plaintiff misnamed Officer Solis as Officer Rodriguez, or the other way around, the proposed

amendment would squarely fit into the law enunciated by Rule 15(c).”82 Defendants argue,

“[h]owever, [that] where Plaintiff failed to timely bring a claim against the correct defendant or

lacked the ability to identify the correct Defendant, and used the good name of Officer Rodriguez

to essentially serve as ‘John Doe,’ Rule 15(c) provides no remedy.”83 Defendants correctly

recognize that the use of “Unknown Defendants” or “John Does” in a complaint cannot serve as

placeholders for Plaintiff to later substitute in real Defendants identified through discovery after

the statute of limitations has passed.84 Suing a “John Doe” is an intentional choice that forecloses

a finding of mistake.85 However, although Plaintiff originally brought claims against “Unknown

Mission Police Officers,” Plaintiff dismissed the unknown Defendants in his first motion for

leave to file an amended complaint.86 Here, Plaintiff does not seek to maintain claims against

Officer Rodriguez and also substitute in Officer Solis where a “John Doe” once stood, but

instead Plaintiff seeks to correct the mistaken belief that Officer Rodriguez shot Plaintiff.87

Although Plaintiff cannot sue “unknown officers” and “use these ‘John Doe’ claims to now

substitute in [Officer Solis] after the limitations period,”88 Plaintiff here deliberately but

82 Dkt. No. 30 at 9, ¶ 12.

83 Id.

84 See Whitt v. Stephens Cty., 529 F.3d 278, 283 (5th Cir. 2008) (“[A]n amendment to substitute a named party for a

John Doe does not relate back under rule 15(c).”); accord Balle v. Nueces Cty., 952 F.3d 552, 557 (5th Cir. 2017);

Winzer v. Kaufman Cty., 916 F.3d 464, 471 (5th Cir. 2019) (“Thus, to the extent Appellants sued ‘unknown

officers,’ they cannot use these ‘John Doe’ claims to now substitute in Cuellar and Huddleston after the limitations

period.”).

85 Heglund v. Aitkin Cty., 871 F.3d 572, 580 (8th Cir. 2017) (“The [John Doe] device accurately conveyed that the

[plaintiffs] did not know [the proposed new defendant’s] identity. The statement was not the result of a

misunderstanding or misconception; it was an intentional misidentification, not an unintentional error, inadvertent

wrong action, or ‘mistake.’”); Smith v. City of Akron, 476 F. App'x 67, 69 (6th Cir. 2012) (“The Rule allows relation

back for the mistaken identification of defendants, not for defendants to be named later through ‘John Doe,’

‘Unknown Defendants’ or other missing appellations.”).

86 See Dkt. No. 20.

87 Dkt. No. 29 at 1, ¶ 2.

88 Winzer, 916 F.3d at 471 (citing Whitt, 529 F.3d at 282–83).

mistakenly chose to sue Officer Rodriguez based on the misimpression that Officer Rodriguez

was the shooter.89

As the Fifth Circuit has recognized, the purpose of Rule 15 is not to “[squelch] a

legitimate legal claim . . . by a party mistakenly identifying the party to be sued.”90 The Court is

to “take a ‘sensible approach to reading a complaint so that suits may be maintained regardless of

technical pleading errors’” and consider Rule 15(c)’s purpose to “help, not hinder, persons who

have a legal right to bring their problems before the courts.”91 As the Supreme Court stated, Rule

15 is biased toward resolution of disputes on their merits because “repose would be a windfall

for a prospective defendant who understood, or who should have understood, that he escaped suit

during the limitations period only because the plaintiff misunderstood a crucial fact about his

identity.”92 Here, Officer Solis testified that, in the words of Rule 15(c)(1)(C)(ii), he “knew or

should have known that the action would have been brought against [him], but for a mistake

concerning the proper party's identity:”

Q Okay. So about [two] months after the incident is when you learned that it was

a breach round instead of a bean bag round [that was fired at Plaintiff]?

A [by Officer Jaime Solis] Yes.

Q And at that point, you were concerned about a lawsuit?

A Yes.

Q And you thought you might be involved in a lawsuit?

A Correct.93

Thus, Officer Solis has no strong interest in repose. Officer Solis knew or should have known

that a lawsuit bringing claims against Plaintiff’s shooter should have named him but for a

mistake of identity because the original complaint and amended complaint made clear that

89 Dkt. No. 29 at 1–2, ¶¶ 2–4.

90 Sanders-Burns v. City of Plano, 594 F.3d 366, 379 (5th Cir. 2010) (quoting SHERMAN & SQUIERS, supra note 76,

§ 15.19[3][d]).

91 Id. at 380 (quoting Hill v. Shelander, 924 F.2d 1370, 1373–75 (7th Cir. 1991)).

92 Krupski, 560 U.S. at 550; see also id. (“Because a plaintiff's knowledge of the existence of a party does not

foreclose the possibility that she has made a mistake of identity about which that party should have been aware, such

knowledge does not support that party's interest in repose.”).

93 Dkt. No. 29-2 at 40, 159:18–160:2.

Plaintiff intended to sue the shooter.94 Where a complaint makes a “mistake concerning the

proper party's identity” and incorrectly alleges that a Defendant performed the actions or role

alleged, amendment should be permitted to substitute in the correct Defendant.95 In light of Rule

15’s bias to resolving issues on the merits, Officer Solis’s awareness of the issues and diminished

interest in repose, and Plaintiff’s claims against Officer Rodriguez based on Plaintiff’s

“misunderstanding about his status or role in the events giving rise to the claim at issue,”96 the

Court holds that Plaintiff may amend his complaint to bring allegations and claims for relief

against Officer Solis and that such amendment will relate-back to the date of the original

pleading under Federal Rule of Civil Procedure 15(c) and therefore will not be barred by the

statute of limitations. The Court will consider the proposed amended complaint to the extent it

relates to Officer Solis.

c. Analysis of Proposed Amended Complaint

Plaintiff argues that the amended complaint merely represents an attempt to conform his

pleading to the discovery, and that the five warning factors militating against amendment are not

present.97 Defendants respond that Plaintiff’s proposed amendment would be futile and fail to

state a claim, and that other warning factors are present.98

1. Supervisory Liability Claim as to Defendant Rodriguez

Defendants first oppose Plaintiff’s attempt to bring a supervisory liability claim under

42 U.S.C. § 1983 against Defendant Rodriguez.99 Defendants argue that Plaintiff alleges neither

the personal involvement of Defendant Rodriguez in the alleged deprivation of Plaintiff’s

94 See Dkt. No. 1 at 4–5, ¶¶ 12, 20; Dkt. No. 22 at 3–4, ¶¶ 12, 17.

95 See Krupski, 560 U.S. at 554–55.

96 Id. at 550.

97 Dkt. No. 29 at 4–10, ¶¶ 8–26.

98 Dkt. No. 30 at 4–5, ¶¶ 5–6 & 9–12, ¶¶ 13–19.

99 Id. at 3, ¶ 5.

constitutional right to be free of excessive force nor a causal connection between Defendant

Rodriguez’s conduct and the allegedly wrongful actions or any deliberate indifference to the

same.100 Plaintiff argues that Defendant Rodriguez gave a weapon to Officer Solis and gave a

direct order to apprehend Plaintiff, which evinces deliberate indifference to Plaintiff’s

constitutional rights.101

“A supervisor cannot be held liable under section 1983 on the basis of respondeat

superior.” 102 “A supervisory official may be held liable ... only if (1) he affirmatively

participates in the acts that cause the constitutional deprivation, or (2) he implements

unconstitutional policies that causally result in the constitutional injury.”103 To establish a claim

under the first possibility, “the misconduct of the subordinate must be affirmatively linked to the

action or inaction of the supervisor.”104 Furthermore, “[i]n order to establish supervisor liability

for constitutional violations committed by subordinate employees, plaintiffs must show that the

supervisor act[ed], or fail[ed] to act, with deliberate indifference to violations of others'

constitutional rights committed by their subordinates.”105 “‘Deliberate indifference’ is a stringent

standard of fault, requiring proof that a municipal actor disregarded a known or obvious

consequence of his action.”106 “Deliberate indifference describes a state of mind more

blameworthy than negligence . . . [but] something less than acts or omissions for the very

purpose of causing harm or with knowledge that harm will result.”107 “The ‘deliberate

indifferent’ requirement permits courts to separate omissions that ‘amount to an intentional

100 Id. at 5, ¶ 6.

101 Dkt. No. 29 at 6, ¶ 16.

102 Southard v. Tex. Bd. of Crim. Justice, 114 F.3d 539, 550 (5th Cir. 1997) (citations omitted).

103 2 (quoting Gates v. Tex. Dep’t of Protective & Regulatory Servs., 537 F.3d 404, 435 (5th Cir. 2008)).

104 Southard v. Tex. Bd. of Crim. Justice, 114 F.3d 539, 550 (5th Cir. 1997).

105 Porter v. Epps, 659 F.3d 440, 446 (5th Cir. 2011) (alterations and emphasis in original) (quoting Gates v. Tex.

Dep’t of Protective & Regulatory Servs., 537 F.3d 404, 435 (5th Cir. 2008))

106 Bd. of Cty. Comm’rs of Bryan Cty. v. Brown, 520 U.S. 397, 410 (1997).

107 Farmer v. Brennan, 511 U.S. 825, 835 (1994).

choice’ from those that are merely ‘unintentionally negligent oversight[s].’”108 Deliberate

indifference can manifest in a failure to train,109 but Plaintiff is not bringing a failure-to-train

claim against Defendant Rodriguez.110

Plaintiff alleges in the proposed amended complaint that City of Mission police officers

responded to calls about Plaintiff’s mental health episode and entered Plaintiff’s home, then

determined that Plaintiff was in his bedroom.111 “For several hours, officers attempted to make

contact with [Plaintiff] Steven [Wilson], but were met with continued silence.”112 Hours into this

scene, Defendant Rodriguez arrived at the home and took control of the scene as the

commanding officer.113 Officer Rodriguez determined that Plaintiff needed to be extracted from

his bedroom, so Officer Rodriguez left the home and went to the Mission police department to

obtain “less-than-lethal” weaponry to extract Plaintiff.114 While at the police station, Officer

Rodriguez loaded a shotgun with a “breaching round,” which is deadly if fired at a person.115

Officer Rodriguez then returned to Plaintiff’s home and “gave the ‘less-than-lethal’ shotgun

loaded with a ‘breaching round’ to Officer Solis.”116 Officer Rodriguez then ordered other police

officers to break an exterior window into Plaintiff’s bedroom.117 Officer Rodriguez used the

broken exterior window to see that Plaintiff was lying unarmed in bed and was not responsive to

communication, and “Officer Rodriguez then ordered Officer Solis and other officers to breach

108 Gonzalez v. Ysleta Indep. Sch. Dist., 996 F.2d 745, 756 (5th Cir. 1993) (alterations in original) (quoting Rhyne v.

Henderson Cty., 973 F.2d 386, 392 (5th Cir. 1992)).

109 See Porter, 659 F.3d at 446.

110 See Dkt. No. 29 at 6, ¶¶ 15–16 & Pl.’s Second Am. Compl., Dkt. No. 29-1, ¶¶ 14, 26.

111 Dkt. No. 29-1 at 2–3, ¶¶ 10–12.

112 Id. at 3, ¶ 12.

113 Id. ¶ 13.

114 Id.

115 Id.

116 Id. ¶ 14.

117 Id.

the door to Steven’s bedroom and to extract Steven from the room.”118 In another part of the

proposed amendment, Plaintiff alleges that Officer Rodriguez’s ordered Officer Solis “to

apprehend Steven and gain Steven’s compliance by whatever means necessary, including the use

of deadly force.”119 After the order, “Officer Solis entered Steven’s bedroom” and allegedly shot

Plaintiff without provocation with the shotgun that Officer Rodriguez had loaded and given to

Officer Solis to use.120 Plaintiff argues that Officer Rodriguez gave his subordinate, Officer

Solis, “a direct order to apprehend Plaintiff using whatever means necessary, including deadly

force,” and that such are the grounds for supervisory liability under 42 U.S.C. § 1983.121

Defendants point out that Plaintiff’s allegations do not involve a direct order to shoot Plaintiff,

and no causal connection exists between Defendant Rodriguez ordering officers to breach the

door and extract Plaintiff and the alleged excessive force, and Plaintiff has not alleged that

Defendant Rodriguez disregarded a known or obvious consequence of his alleged action.122

On the facts alleged here, the Court agrees with Plaintiff. Plaintiff’s proposed amended

complaint alleges that Officer Rodriguez knew Plaintiff was alone, unarmed, lying in his bed,

and not responsive to attempted communication.123 Plaintiff alleges “[t]here was no emergent

situation that threatened life or bodily harm of any person, either police officer or civilian.

Steven did nothing to provoke or intimidate” the officers.124 Despite these circumstances, Officer

Rodriguez ordered Officer Solis “to apprehend Steven and gain Steven’s compliance by

whatever means necessary, including the use of deadly force.”125 Taking all of Plaintiff’s

allegations as true and drawing all reasonable inferences in Plaintiff’s favor, irrespective of

118 Id. at 3–4, ¶¶ 14–15.

119 Id. at 5, ¶ 20.

120 Id. at 3–4, ¶¶ 14–15.

121 Dkt. No. 29 at 6, ¶ 16.

122 Dkt. No. 30 at 5, ¶ 6.

123 Dkt. No. 29-1 at 3, ¶ 14.

124 Id. at 5, ¶ 19.

125 Id. ¶ 20.

whether Plaintiff will ultimately be able to prove his claims, the Court finds that Officer

Rodriguez’s specific reference to use “deadly force,” taken together with the otherwise

unprovoked circumstances, evinces Officer Rodriguez’s order’s deliberate indifference to

Plaintiff’s constitutional rights. Officer Rodriguez handing Officer Solis a shotgun, then ordering

Officer Solis to contemplate the use of deadly force to gain compliance by whatever means

necessary is sufficient to affirmatively link Officer Solis’s alleged misconduct in using the

shotgun with Officer Rodriguez’s order. Therefore, the proposed amended complaint would not

be futile. The Court GRANTS Plaintiff’s motion for leave to file an amended complaint to the

extent that Plaintiff sets forth allegations and claims under 42 U.S.C. § 1983 against Defendant

Teodoro Rodriguez for supervisory liability.

2. Texas Tort Claims Act Claims

Defendants argue that all of Plaintiff’s claims under the Texas Tort Claims Act in the

proposed amended complaint are futile.126 Defendants first argue that Plaintiff brings an

intentional tort claim, but the Defendant City of Mission enjoys sovereign immunity that

forecloses an intentional tort claim against the city.127 Furthermore, Defendants argue that

Defendant City of Mission is entitled to receive notice of a claim not later than 6 months after the

incident giving rise to the claim, and because Plaintiff failed to tender the requisite notice, the

claim is jurisdictionally barred.128

With respect to notice, section 101.101 of the Texas Tort Claims Act entitles a

governmental unit to receive notice not later than 6 months after the incident that may give rise

to a Texas Tort Claims Act claim.129 The notice must describe: “(1) the damage or injury

126 Dkt. No. 30 at 9, ¶ 13.

127 Dkt. No. 30 at 10, ¶¶ 13–14.

128 Id. at 11, ¶ 15.

129 TEX. CIV. PRAC. & REM. CODE ANN. § 101.101 (West 2020).

claimed; (2) the time and place of the incident; and (3) the incident.”130 Failure to give the

required notice precludes a waiver of sovereign immunity and will jurisdictionally bar claims

against a governmental unit, such as a city or municipality.131 Actual notice is sufficient “when

the governmental unit has knowledge of the injury, its alleged or possible fault producing or

contributing to the injury, and the identity of the person injured,” but “[m]ere notice that an

incident has occurred is not enough to establish actual notice.”132

Plaintiff makes no argument that he has satisfied the notice requirement of the Texas Tort

Claims Act.133 Plaintiff’s original complaint was filed on December 18, 2018, complaining of an

incident on January 9, 2017,134 so the complaint cannot satisfy the 6-month notice requirement.

Plaintiff’s original complaint alleges that “[h]eretofore and on or about January 09, 2017

Defendants acquired actual notice of the injuries and potential claims of the Plaintiff pursuant to

the law in these matters,”135 but the allegation is conclusory and not entitled to the presumption

of truth136 because it states no facts of how Defendants acquired notice. The operative First

Amended Complaint alleges “[t]he City had knowledge of Steven’s injuries, knew that Officer

Rodriguez’s conduct caused the injuries, and knew the identity of the Officer and the type of

equipment involved. Thus, written notice from Steven was not required.”137 The proposed

amended complaint is substantially identical.138 However, the allegation is also conclusory and

will be disregarded for the same reason. The Court has not been presented with sufficient

information to determine that the notice requirement of section 101.101 has been fulfilled.

130 Id. § 101.101(a).

131 Putthoff v. Ancrum, 934 S.W.2d 164, 174 (Tex. App.—Fort Worth 1996, writ denied).

132 Id. at 173.

133 See Dkt. No. 29.

134 Dkt. No. 1 at 3, ¶ 7.

135 Id. at 7, ¶ 33.

136 See supra notes 38–39 and accompanying text.

137 Dkt. No. 22 at 5, ¶ 24.

138 Dkt. No. 29-1 at 7, ¶ 28.

Furthermore, the Court finds that the mere fact of the shooting itself is insufficient to satisfy the

notice requirement. If such were the case, the notice requirement would be nullified in all such

cases.

Accordingly, the Court agrees with Defendants that Plaintiff’s claim against Defendant

City of Mission is barred by official immunity.139 The Court DENIES Plaintiff’s motion for

leave to amend to the extent any proposed amendment would attempt to assert claims against the

City of Mission. The Court has no occasion to reach the arguments with respect to waiver of

sovereign immunity under the Texas Tort Claims Act in connection with negligent or intentional

acts and makes no determination.

3. Undue Delay

Defendants’ brief contains a subsection under the Texas Tort Claims Act entitled “Undue

Delay,” wherein Defendants argue that Plaintiff’s entire motion for leave to file an amended

complaint should be denied for reasons of delay.140 Undue delay is one of the warning factors

that militates against permitting Plaintiff to file an amended complaint.141 Defendants contend

that “Plaintiff’s second amended complaint would constitute an undue delay, and Defendants

should not burdened in the context of a set of amendments that could and should have been

asserted initially.”142 Plaintiff asserts that his proposed amendment has not been unduly delayed

because “Plaintiff did not become aware that Officer Solis was the shooter until he was able to

conduct discovery in this case, including Officer Solis’s deposition.”143 Plaintiff chose to wait

until discovery had been substantially completed to move for leave to amend his complaint,144

139 See Putthoff v. Ancrum, 934 S.W.2d 164, 174 (Tex. App.—Fort Worth 1996, writ denied).

140 Dkt. No. 30 at 11–12, ¶¶ 16–19.

141 See supra note 28 and accompanying text.

142 Dkt. No. 30 at 12, ¶ 18.

143 Dkt. No. 29 at 9, ¶ 23.

144 Id.

and “[s]ince written discovery has been substantially completed, Plaintiff does not anticipate

amending the claims further.”145 Defendants respond that Plaintiff “certainly knew of all relevant

facts and theories supporting his proposed amendments since the inception of the cause of action,

as the events giving rise to his claim occurred on January 9, 2017, and his Original Complaint

was filed on December 18, 2018.”146

“Liberality in pleading does not bestow on a litigant the privilege of neglecting her case

for a long period of time.”147 In considering whether the proposed amendment arrives after

“undue delay,” the Court “may properly consider (1) an unexplained delay following an original

complaint, and (2) whether the facts underlying the amended complaint were known to the party

when the original complaint was filed.”148

Here, Plaintiff represents that discovery did not begin in this case until June 2019.149

Plaintiff deposed Officer Solis in September 2019150 and waited until discovery was substantially

complete to move to amend in December 2019.151 This case contrasts starkly with the precedent

Defendants urge the Court to apply. In that case, the plaintiff “sought leave to add both a fact of

which it had been aware since before it filed its original complaint and a cause of action based on

the identical, known facts that underlie its original complaint” which the plaintiff knew about

some 24 months before filing its original complaint.152 The Fifth Circuit affirmed the lower

court’s “discretionary determination that allowing [plaintiff] to amend its complaint would not

145 Id. at 4, ¶ 9.

146 Dkt. No. 30 at 12, ¶ 18.

147 In re Southmark Corp., 88 F.3d 311, 315–16 (5th Cir. 1996) (quoting Daves v. Payless Cashways, Inc., 661 F.2d

1022, 1025 (5th Cir. 1981)).

148 Id. at 316 (quotations and footnotes omitted).

149 Dkt. No. 29 at 1, ¶ 3.

150 See Dkt. No. 29-2.

151 Dkt. No. 29 at 4, ¶ 9.

152 In re of Southmark Corp., 88 F.3d 311, 316 (5th Cir. 1996).

further the purposes of Rule 15, but to the contrary would serve only to reward [plaintiff] for its

unreasonable delay.”153

In this case, Plaintiff learned no later than September 30, 2019, that Officer Jaime Solis

was actually the shooter,154 and Plaintiff moved to amend in December 2019 based on new

information.155 Plaintiff also represents that, even as late as April 2019, “he and . . . counsel

mistakenly believed Officer Rodriguez shot Plaintiff. . . . Plaintiff did not have the means

necessary to learn that Officer Rodriguez was not the shooter.”156

The Court is unpersuaded that Plaintiff acted with undue delay. Plaintiff moved within 6

months since the beginning of discovery to amend his complaint to account for new facts that

Plaintiff did not know at the inception of this case. Unlike the precedent in the Southmark case

that Defendants urge, Plaintiff was not aware of all relevant facts at the time of filing the original

complaint. Furthermore, the Court is disinclined to punish Plaintiff for waiting until the

substantial close of discovery, when Plaintiff anticipates no further amendment,157 to move for

leave to amend because the Court does not favor repeated amendments.

Even if the Court were to find undue delay, Defendants do not contend that any of the

other warning factors militating against leave to amend are present.158 As earlier discussed, Rule

15 is biased toward resolving claims on their merits.159 Accordingly, even if the Court found

undue delay, the Court would not necessarily deny leave to amend given its examination of the

other warning factors. Because Defendants do not urge rejection of Plaintiff’s motion for leave to

153 Id.

154 See Dkt. No. 29-2.

155 Dkt. No. 29.

156 Id. at 1, ¶ 2.

157 Id. at 4, ¶ 9.

158 See Dkt. No. 30.

159 See supra notes 90–92 and accompanying text.

amend based on the other four warning factors, except as already discussed, the Court has no

occasion to consider them and makes no determination.

4. Dismissal on Other Grounds

As noted above, Defendants assert that “Plaintiff’s claims under the Texas Tort Claims

Act are also futile.”160 Defendants pray “that this Court deny Plaintiff’s Opposed Motion for

Leave to File Second Amended Complaint in its entirety.”161 However, Defendants make no

argument as to the futility of any other claims beyond those already discussed, or any argument

as to why Plaintiff’s other claims should be dismissed or denied from a proposed amendment.

Federal courts are “not merely a repository into which an appellant may ‘dump the burden of

argument and research,’ nor is it the obligation of this court to act as an advocate.”162 This Court

is entitled to have issues clearly defined; arguments asserted without citation to authority or left

undeveloped are waived.163 “Judges are not like pigs, hunting for truffles buried in briefs.”164

Accordingly, Plaintiff’s motion for leave to amend will be GRANTED to the extent that

Defendants fail to develop argument in opposition, which will be taken as a representation of no

opposition.165

160 Dkt. No. 30 at 9, ¶ 13.

161 Dkt. No. 30 at 12.

162 See U.S. Bank v. Lindsey, 920 N.E.2d 515, 535 (Ill. App. Ct. 1st Dist. 2009) (quoting Obert v. Saville, 624

N.E.2d 928, 931 (Ill. App. Ct. 2d Dist. 1993))

163 In re FM Forrest, Inc., 587 B.R. 891, 933 (Bankr. S.D. Tex. 2018) (quoting Perez v. Astrue, No. 2:09-1504, 2009

WL 4796738, at *4 (D.N.J. Dec. 9, 2009)).

164 United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991).

165 LR7.4 (“Failure to respond to a motion will be taken as a representation of no opposition.”).

III. CONCLUSION

For all of the foregoing reasons, the Court GRANTS Plaintiff's motion for leave to

amend except to the extent any proposed amendment would attempt to assert claims against the

City of Mission. The Court instructs Plaintiff to file a Second Amended Complaint on this

Court’s docket consistent with this opinion and order no later than May 8, 2020.

IT IS SO ORDERED.

DONE at McAllen, Texas, this 29th day of April 2020.

MW Wes

Micae varez

United States District Judge

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