Howard v. City Of Houston

UNITED STATES DISTRICT COURT June 10, 2022

SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk

HOUSTON DIVISION

AUNDRE HOWARD, §

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Plaintiff, §

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v. § CIVIL ACTION H-21-1179

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CITY OF HOUSTON, TEXAS, et al., §

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Defendants. §

MEMORANDUM OPINION AND ORDER

Pending before the court is defendant Houston Police Department (“HPD”) officer Lucas

L. Vieira’s (“Officer Vieira”) motion to dismiss (Dkt. 60) and plaintiff Aundre Howard’s

(“Howard”) unopposed motion for leave to file a surreply (Dkt. 83). Officer Vieira moves to

dismiss all claims under Federal Rule of Civil Procedure 12(b)(4) for insufficient process and to

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

upon which relief can be granted. Dkt. 60. Having considered the motions, response, reply,

surreply, and the applicable law, the court is of the opinion that Howard’s motion should be

GRANTED, and Officer Vieira’s motion should be GRANTED IN PART AND DENIED IN

PART.

I. BACKGROUND

This case involves allegations that HPD officers violated Howard’s Fourth and Fourteenth

Amendment rights during a traffic stop in the summer of 2019. Dkt. 28 ¶¶ 8–9. Howard brings §

1983 claims against Officer Vieira for excessive force and an unreasonable strip search along with

a state-law claim for assault and battery. Id. ¶¶ 60–67. The court has already outlined the factual

allegations in detail and will not recite them in their entirety here. See Dkt. 57 at 1–4.

Relevant to the instant motion, Howard’s first amended complaint describes four moments

where Officer Vieira allegedly used excessive force. See Dkt. 28 ¶¶ 15–21. First, Officer Vieira

allegedly used a pair of handcuffs as “brass knuckles” and beat Howard on the back of the head at

least three times. Id. ¶ 15. Second, after the alleged beating, Officer Vieira allegedly poked at

Howard’s head and pushed it down while walking Howard back to the squad car. Id. ¶¶ 18–19.

Third, Officer Vieira allegedly slammed Howard against the squad car’s hood to conduct a strip

search. Id. ¶ 20. Fourth, Officer Vieira allegedly forced Howard to the pavement after conducting

the strip search causing contusions to Howard’s face. Id.

Howard filed suit against Officer Vieira, the City of Houston, police chief Art Acevedo,

and three other HPD officers on April 11, 2021. Dkt. 1. The court granted multiple extensions to

serve Officer Vieira after Howard represented the process served had made multiple attempts. See

Dkts. 13, 37, 51, 56. After receiving permission from the court, Howard amended his complaint

on August 31, 2021. See Dkt. 28. On February 16, 2022, the court issued its memorandum opinion

and order concerning the other five defendants’ motions to dismiss. Dkt. 57. Five days later,

Officer Vieira was served with a summons that included Howard’s original complaint but not the

first amended complaint. Dkts. 58; 60, Ex. 1.

II. LEGAL STANDARD

Under Federal Rule of Civil Procedure 12(b)(4), a defendant may challenge an action for

“insufficient process.” Fed. R. Civ. P. 12(b)(4). “Generally speaking, ‘[a]n objection under Rule

12(b)(4) concerns the form of the process rather than the manner or method of its service.’” Gartin

v. Par Pharm. Cos., Inc., 289 F. App’x 688, 692 (5th Cir. 2008) (quoting 5B Wright & Miller,

Federal Practice and Procedure: Civil 3d § 1353). “An amended complaint supersedes the

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original complaint and renders it of no legal effect unless the amended complaint specifically refers

to and adopts or incorporates by reference the earlier pleading.” King v. Dogan, 31 F.3d 344, 346

(5th Cir. 1994). Thus, “service of a superseded complaint . . . is not proper service.” Carr v. City

of Spring Valley Vill., No. 19-20373, 2022 WL 1553539, at *3 (5th Cir. May 17, 2022) (per

curiam). “When process or the manner of its service is insufficient, ‘federal courts have broad

discretion to dismiss the action or to retain the case but quash the service.’” Chapman v. Trans

Union LLC, No. CIV.A. H-11-553, 2011 WL 2078641, at *1 (S.D. Tex. May 26, 2011) (quoting

5B Wright & Miller, supra § 1354). A motion to dismiss “will be granted only when the defect is

prejudicial to the defendant . . . [o]therwise the court will allow an amendment of the process to

correct the defect.” 5B Wright & Miller, supra § 1353.

“Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the

claim showing that the pleader is entitled to relief.’” Bell Atl. Corp. v. Twombly, 550 U.S. 544,

555, 127 S. Ct. 1955 (2007). In considering a Rule 12(b)(6) motion to dismiss a complaint, courts

generally must accept the factual allegations contained in the complaint as true. Kaiser Aluminum

& Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1050 (5th Cir. 1982). The court

does not look beyond the face of the pleadings in determining whether the plaintiff has stated a

claim under Rule 12(b)(6). Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir. 1999). “[A] complaint

attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, [but] a

plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than

labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.”

Twombly, 550 U.S. at 555 (citations omitted).

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The “[f]actual allegations must be enough to raise a right to relief above the speculative

level.” Id. The supporting facts must be plausible—enough to raise a reasonable expectation that

discovery will reveal further supporting evidence. Id. at 556. “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.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.

Ct. 1937 (2009).

III. ANALYSIS

A. Leave to File Surreply

Officer Vieira filed a notice of supplemental authority relevant to the instant motion to

dismiss for insufficient process. Dkt. 81. In response, Howard filed an unopposed motion to file

a surreply that included the proposed surreply. Dkt. 82. Howard’s motion is GRANTED, and the

court will consider the arguments presented in the surreply.

B. Insufficient Process

The parties agree that Officer Vieira was served with a superseded complaint. See Dkts. 60

¶ 24, 70 at 3. Thus, the service was improper. See Carr, 2022 WL 1553539, at *3. Officer Vieira

argues that the improper service necessitates dismissal. Dkt. 60 ¶ 29. The court disagrees.

Officer Vieira has made no showing that the improper service has caused prejudice. See

Dkts. 60, 73, 81. Proper service is required “to provide actual notice to the defendant of the

pendency of litigation against it.” Mable v. Navasota Indep. Sch. Dist., No. 4:09-CV-123, 2010

WL 11453632, at *2 (S.D. Tex. June 16, 2010) (denying the defendant’s motion to dismiss under

Rule 12(b)(4) due to a lack of prejudice after being served with a superseded complaint), report

and recommendation adopted, No. 4:09-CV-123, 2010 WL 11453633 (S.D. Tex. July 9, 2010)

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(Miller, J.). The two complaints are very similar, containing the same core factual allegations and

bringing the same causes of action against Officer Vieira. Compare Dkt. 1, with Dkt. 28. Thus,

the court concludes that Officer Vieira had actual notice of the Howard’s claims against him and

has not suffered prejudice.

Nevertheless, service of a superseded complaint is improper even if it is not prejudicial.

See Carr, 2022 WL 1553539, at *3. When improper service does not result in prejudice to the

defendant, the court should “allow amendment of the process to correct the defect” rather than

dismiss the case. 5B Wright & Miller, supra § 1353; see also Chapman, 2011 WL 2078641, at

*1; La. Acorn Fair Hous. v. Quarter House, 952 F. Supp. 352, 355 (E.D. La. 1997). Therefore,

Officer Vieira’s motion to dismiss for insufficient process is DENIED, and the court ORDERS

Howard to serve Officer Vieira in accordance with Federal Rule of Civil Procedure 4 within

twenty-one days of the date of this order.

C. Failure to State a Claim

Officer Vieira argues that Howard has failed to allege plausible facts to state a § 1983 claim

for excessive force in relation to the second and third moments of alleged excessive force and

asserts qualified immunity for the same moments of alleged excessive force.1 Dkt. 60 at 10–16.

Officer Vieira also claims statutory immunity for Howard’s state-law assault and battery claim.

Id. at 16–19. The court agrees.

1 Officer Vieira did not move to dismiss Howard’s § 1983 claims for the alleged

unreasonable strip search or the first and fourth moments of alleged excessive force. See Dkt. 60.

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1. Excessive Force Claims

When there are distinct moments of alleged excessive force, it is proper to analyze each

separately. See Tucker v. City of Shreveport, 998 F.3d 165, 171 (5th Cir. 2021), cert. denied sub

nom. Tucker v. City of Shreveport, La., 142 S. Ct. 419 (2021) (concluding that officers tackling a

suspect and then punching and kicking him while on the ground “are ‘two distinct moments of

force’ that must be separately analyzed”). Howard alleges four distinct moments of excessive

force. Dkt. 28 ¶¶ 15–20. Officer Vieira argues that Howard has failed to state a § 1983 claim for

the second and third moments of alleged excessive force because those moments resulted in only

de minimis injury—poking and pushing down on Howard’s head while walking to the car and then

later slamming Howard against the squad car. Dkt. 60 at 10–13.

Howard need not allege a significant injury for an excessive force claim, but he must allege

an injury that is “more than de minimis.” See Tarver v. City of Edna, 410 F.3d 745, 752 (5th Cir.

2005) (holding that pain and bruising on the arrestee’s wrists from handcuffing were de minimis

injuries and could not support an excessive force claim). While analyzing the City of Houston’s

motion to dismiss, the court held that Howard alleged a de minimis injury from the second and

third moments of force because he allegedly suffered only temporary pain without lasting effect.

Dkt. 57 at 9–10.

Howard urges the court to reconsider its analysis of whether he suffered de minimis injury

and attempts to distinguish Tarver from the allegations against Officer Vieira. Dkt. 70 at 11–12.

After reviewing Howard’s argument, the court concludes its previous analysis was correct and

applies equally to the claims against Officer Vieira and the City of Houston. Temporary pain

without lasting effect allegedly suffered while an officer attempted to control an arrestee who had

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already attempted to flee is a de minimis injury. See Alexander v. City of Round Rock, 854 F.3d

298, 309 (5th Cir. 2017) (“objectively reasonable force will result in de minimis injuries

only” (quoting Brown v. Lynch, 524 F. App’x 69, 79 (5th Cir. 2013))). Thus, the injuries alleged

by Howard for the second and third moments are de minimis and cannot support a § 1983 claim

for excessive force. See Freeman v. Gore, 483 F.3d 404, 417 (5th Cir. 2007) (bruising on wrists

and arms from handcuffs were de minimis); Tarver, 410 F.3d at 752 (pain and bruising on wrists

from handcuffing were de minimis); see also Brooks v. City of W. Point, Miss., 639 F. App’x 986,

990 (5th Cir. 2016) (abrasions to the hands and knees, some pain in the back and neck, and

unspecified problems with asthma were de minimis).

Howard also asks the court to approach the question of injury holistically rather than seek

to identify the injury suffered from each distinct moment of force. Dkt. 70 at 11. The court rejects

this approach because it runs counter to the Fifth Circuit’s instruction that distinct moments of

alleged excessive force must be analyzed separately. See Tucker, 998 F.3d at 171. Therefore,

Officer Vieira’s motion to dismiss these claims is GRANTED.

2. State-Law Assault and Battery Claim

Officer Vieira invokes statutory immunity under Tex. Civ. Prac. & Rem. Code § 101.106(f)

for Howard’s state-law assault and battery claim. Dkt. 60 ¶¶ 54–61. “[S]ection 101.106(f)

essentially prevents an employee from being sued at all for work-related torts and instead provides

for a suit against the governmental employer.” Garza v. Harrison, 574 S.W.3d 389, 400

(Tex. 2019). Under section 101.106(f), the court must “make a determination as to (1) whether

the alleged conduct was within or without the scope of the officers’ employment, and (2) whether

[the plaintiff’s] suit could have been brought under the TTCA against the officers’ governmental

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employer.” Alexander v. Walker, 435 S.W.3d 789, 791–92 (Tex. 2014). Howard claims that the

allegations against Officer Vieira satisfy neither prong and statutory immunity is inapplicable. See

Dkt. 70 at 12–13. The court disagrees.

First, Howard argues that while Officer Vieira had a duty to arrest Howard, he had no duty

to use handcuffs to beat Howard and thus was allegedly acting outside the general scope of his

employment. Id. at 13. The Texas Supreme Court rejected such an argument in Alexander v.

Walker, where the plaintiff sued police officers for assault and other torts arising from two separate

arrests. See 435 S.W.3d 789, 790 (Tex. 2014) (per curiam). The Alexander court held that

engaging in an arrest is generally within an officer’s scope of employment, and allegations of

“improper conduct in the course of arresting” the plaintiff were also “within the general scope of

the officers’ employment.” Id. at 792.

Second, Howard claims that because assault and battery is an intentional tort, and the

TTCA does not waive immunity for intentional torts, then he could not have brought suit against

Officer Vieira’s employer. Dkt. 70 at 12–13. The Texas Supreme Court has expressly rejected

this argument as well and held “that for section 101.106(f), suit ‘could have been brought’ under

the [TTCA] against the government regardless of whether the Act waives immunity from suit.”

Franka v. Velasquez, 332 S.W.3d 367, 385 (Tex. 2011).

The court concludes that the alleged facts satisfy both prongs of 101.106(f) and statutory

immunity applies. Therefore, Officer Vieira’s motion to dismiss Howard’s state-law assault and

battery claim is GRANTED.

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IV. CONCLUSION

For the reasons provided above, Howard’s motion for leave to file a surreply (Dkt. 83) is

GRANTED. Officer Vieira’s motion to dismiss (Dkt. 60) is GRANTED IN PART AND DENIED

IN PART. The motion to dismiss for insufficient process is DENIED. It is ORDERED that

Howard serve Officer Vieira in accordance with Federal Rule of Civil Procedure 4 within twenty-

one days of the date of this order. Officer Vieira’s motion to dismiss concerning the § 1983 claims

for the second and third moments of alleged excessive force and the state-law assault and battery

claim is GRANTED and those claims are DISMISSED WITH PREJUDICE.

Signed at Houston, Texas on June 10, 2022.

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Seniok United StatesDistrict Judge