Brown v. Quian

IN THE UNITED STATES DISTRICT COURT February 03, 2023

FOR THE SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk

HOUSTON DIVISION

AVIVIA LUCIANA BROWN, §

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Plaintiff, §

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VS. § CIVIL ACTION NO. 4:20-0862

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OFFICER S.H. QUIAN, et al., §

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Defendants. §

MEMORANDUM OPINION AND ORDER

Plaintiff Avivia Luciana Brown, formerly an inmate in the Harris County Jail,

alleges in this civil rights suit that the defendants used excessive force against her during

her arrest. The defendants have filed a motion to dismiss (Dkt. 38) seeking dismissal of

all claims. Brown has not responded, and the time to respond has expired. The motion is

ripe for decision. After reviewing the pleadings, the briefing and evidence submitted, the

applicable law, and all matters of record, the Court concludes that the defendants’ motion

should be granted in part to dismiss the plaintiff’s claims against Officer Quian but

otherwise denied.

I. BACKGROUND

Brown has filed a complaint (Dkt. 10) and two more definite statements (Dkt. 14;

Dkt. 17). She alleges that S.H. Quian and P.T. Rubio, two officers with the Houston Police

Department (HPD), used excessive force against her during her arrest on January 13, 2020.

Brown was indicted for assault on a public servant in connection with the same incident.

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After the City of Houston as amicus curiae submitted a report that included the arrest

records and identifying information about the defendants, the Court ordered service on the

defendants by the United States Marshal Service (Dkt. 29; Dkt. 32). Officer Rubio was

personally served with process (Dkt. 37). The documents for Officer Quian were served

on Quian’s work partner at HPD. See Dkt. 36 (return of service for Quian states that the

server “personally served” Quian’s work partner, Officer J. Franklin, after Quian “advised”

her by phone to leave the documents with Franklin). The defendants then filed a motion to

dismiss.

On January 13, 2020, Brown encountered the defendants at the home of John Raglin

after Raglin called for police. Brown states that Raglin is her cousin’s husband and that,

although she was paying him rent, he called the officers because he wanted Brown to leave

(Dkt. 17, at 3). She alleges that, during the incident, Officer Rubio beat her and that he

was “on [her] face while [she] was on [her] back on the couch,” therefore covering her

nose and mouth (id. at 4). She also alleges that Quian “was on [her] roughing [her] up for

nothing” and that he tased her while she was handcuffed (id.; see Dkt. 14, at 2). Brown

states that she panicked and bit Officer Rubio because she was “suffocating” when Rubio

was on top of her (Dkt. 17, at 5; see Dkt. 10, at 3; Dkt. 14, at 3). Brown claims that she

was weak during the incident because her blood sugar was low, that she was “trying to

throw trash away [and] lay down,” and that she was not resisting the officers (Dkt. 10, at

3; see Dkt. 14, at 2; Dkt. 17, at 3). She also claims that the defendants were “mad because

they couldn’t make [her] leave by law” (id.).

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The defendants arrested Brown and charged her with assaulting a public servant, in

particular, biting Officer Rubio (Dkt. 17, at 6-7). As recounted in HPD’s incident report,

the officers were dispatched to a disturbance at Raglin’s home and spoke to a witness who

believed that Brown was high and wanted Brown to leave. The report states that the

officers found Brown asleep in a bedroom and woke her up, observing her to be “not fully

aware of what was going on,” and called for the Houston Fire Department (Dkt. 27-1, at 5-

6). Fire department personnel then radioed for an ambulance because Brown’s blood

pressure was high but, according to the report, Brown refused to go in the ambulance and

became aggressive. The report states that the officers initially “could not take her to jail”

because she did not have outstanding warrants, so were “trying to figure out another

solution to remove her” because of other residents’ fears (id. at 6). After Brown was

arguing with another person at the residence, the officers attempted to detain her “to keep

the peace” (id. at 6-7). The report further states that Brown resisted physically and, as

Rubio turned her over to get her arm behind her back, Brown “turned and bit into [his] left

back shoulder” and then his forearm (id. at 7). Although Brown alleges that Quian used a

taser against her, the report indicates that Rubio deployed the taser to gain her compliance

(id.).

The officers’ report states that when Brown was transported to the jail, the jail

“rejected” her because of her “altered mental state” and that she then was transported to

Ben Taub Hospital (id.). Brown claims that the jail “refused to accept [her]” because her

injuries “were so extensive,” and that jail officials told the officers to take her to the hospital

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for treatment (Dkt. 14, at 3). She further claims that, because of the injuries inflicted by

the defendants, she required three days of medical treatment before the jail would accept

her for booking (id.; Dkt. 17, at 6). In response to the Court’s questions, she states that her

injuries were diagnosed as “severe muscle trauma” (id.).

Public records indicate that Brown was indicted for assault on a public servant in

connection with the arrest on January 13, 2020. See Dkt. 38-1 (criminal records); Record

Search, Harris County District Clerk, available at https://www.hcdistrictclerk.com

/Edocs/Public/search.aspx (last visited Feb. 1, 2023) (State v. Brown, Case No. 1660503,

230th District Court). On August 5, 2022, the day after the defendants filed their motion

to dismiss in this case, the assault case against Brown was dismissed on the prosecutor’s

motion (id.).

Brown has not responded to the motion to dismiss and, in fact, has not filed any

document with the Court since she submitted an address change on July 6, 2021 (Dkt. 18).

II. LEGAL STANDARDS

A. Rule 12(b)(5)

In the absence of proper service of process, a court cannot exercise personal

jurisdiction over a party named as a defendant. Murphy Bros., Inc. v. Michetti Pipe

Stringing, Inc., 526 U.S. 344, 350 (1999); Norris v. Causey, 869 F.3d 360, 368 (5th Cir.

2017). Rule 12(b)(5) permits a party to seek dismissal for insufficient service of process.

FED. R. CIV. P. 12(b)(5). “[O]nce the validity of service of process has been contested, the

plaintiff bears the burden of establishing its validity.” Carimi v. Royal Carribean Cruise

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Line, Inc., 959 F.2d 1344, 1346 (5th Cir. 1996); see Henderson v. Republic of Texas, 672

F. App’x 383, 384 (5th Cir. 2016).

B. Rule 12(b)(6)

A motion to dismiss under Rule 12(b)(6) may be granted if the pleading “fail[s] to

state a claim upon which relief can be granted.” FED. R. CIV. P. 12(b)(6). In considering

a Rule 12(b)(6) motion, courts generally must accept the factual allegations contained in

the complaint as true. Harrington v. State Farm Fire & Cas. Co., 563 F.3d 141, 147 (5th

Cir. 2009). Federal pleading rules require “only ‘a short and plain statement of the claim

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

544, 555 (2007) (quoting FED. R. CIV. P. 8(a)(2)). The complaint must, however, contain

sufficient factual allegations, as opposed to legal conclusions, to state a claim for relief that

is “plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009); see Patrick v.

Wal-Mart, Inc., 681 F.3d 614, 617 (5th Cir. 2012). The pleadings also must claim that the

plaintiff is entitled to relief under a valid legal theory. See Neitzke v. Williams, 490 U.S.

319, 327 (1989); Geiger v. Jowers, 404 F.3d 371, 373 (5th Cir. 2005). Under this standard,

the court “construes the complaint liberally in favor of the plaintiff,” “takes all facts

pleaded in the complaint as true,” and considers whether “with every doubt resolved on

[the plaintiff’s] behalf, the complaint states any valid claim for relief.” Harrington, 563

F.3d at 147 (cleaned up).

The court’s review under Rule 12(b)(6) is limited to “the complaint, any documents

attached to the complaint, and any documents attached to the motion to dismiss that are

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central to the claim and referenced by the complaint.” Lone Star Fund V (U.S.), L.P. v.

Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010). See Walch v. Adjutant General’s

Dep’t of Tex., 533 F.3d 289, 294 (5th Cir. 2008) (on a Rule 12(b)(6) motion, documents

attached to the briefing may be considered by the court if the documents are sufficiently

referenced in the complaint and no party questions their authenticity (citing 5B Charles

Alan Wright & Arthur R. Miller, FEDERAL PRACTICE AND PROCEDURE § 1357 (3d ed.

2004))). The Court may also rely on judicially noticed facts. Funk v. Stryker Corp., 631

F.3d 777, 783 (5th Cir. 2011).

C. Pro se Pleadings

In reviewing the pleadings, the Court is mindful of the fact that the plaintiff

proceeds pro se. Complaints filed by pro se litigants are entitled to a liberal construction

and, “however inartfully pleaded, must be held to less stringent standards than formal

pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (cleaned

up). Even under this lenient standard a pro se plaintiff must allege more than “‘labels and

conclusions’ or a ‘formulaic recitation of the elements of a cause of action.’” Iqbal, 556

U.S. at 678 (quoting Twombly, 550 U.S. at 555). “Threadbare recitals of the elements of a

cause of action, supported by mere conclusory statements, do not suffice.” Id.

III. ANALYSIS

Brown claims that the defendants used excessive force against her during her arrest,

in violation of the Fourth Amendment. Section 1983, 42 U.S.C. § 1983, provides a vehicle

for a claim against a person acting “under color of state law,” such as a city official, for a

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constitutional violation. See Pratt v. Harris Cty., Tex., 822 F.3d 174, 180 (5th Cir. 2016).

The defendants’ motion seeks: (1) dismissal of Quian for insufficient service of process

under Rule 12(b)(5); (2) dismissal of the complaint as barred by criminal proceedings

against Brown; (3) dismissal for failure to state a claim under the Fourth Amendment; and

(4) dismissal based on qualified immunity.

A. Insufficient Service of Process

The defendants seek dismissal of Quian under Rule 12(b)(5) for insufficient service

of process. A court lacks personal jurisdiction over a defendant who was not properly

served under Federal Rule of Civil Procedure 4. Murphy Bros, 526 U.S. at 350. Rule

4(e)(1) allows service on an individual defendant either in accordance with state law; in

person; by leaving a copy at the person’s dwelling with a resident of “suitable age and

discretion”; or by delivery to an agent authorized by appointment or law. FED. R. CIV. P.

4(e)(1). Texas law permits service “in person” or by “registered or certified mail, return

receipt requested.” TEX. R. CIV. P. 106(a).

The defendants argue that none of the permissible methods were used to serve Quian

with process. The record reflects that process server did not serve Quian personally, but

rather “personally served” Quian’s work partner at their workplace (Dkt. 36).

Because the defendants have challenged service under Rule 12(b)(5), the plaintiff

bears the burden to show that service is proper. Carimi, 959 F.2d at 1346. However,

Brown has not responded to the motion to dismiss. She makes no argument that the service

was proper and has not requested renewed service on Quian.

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Because the record does not reflect that Quian was served in compliance with

Federal Rule of Civil Procedure 4(e)(1) or with Texas Rule of Civil Procedure 106(a), the

Court will grant the motion to dismiss Brown’s claims against Quian.

B. Pending Criminal Prosecution

Citing Heck v. Humphrey, 512 U.S. 477 (1994), the defendants move for dismissal

of Brown’s complaint because it would necessarily imply the invalidity of the criminal case

brought against her for assaulting Officer Rubio by biting him on the day of her arrest. The

Court takes judicial notice of the records for Case No. 1660503 on the Harris County

District Clerk’s website. See Funk, 631 F.3d at 783.

Under Heck, a claim under 42 U.S.C. § 1983 that bears a relationship to a conviction

or sentence is not cognizable unless the conviction or sentence has been invalidated. Heck,

512 U.S. at 486-87. To recover damages based on allegations of “harm caused by actions

whose unlawfulness would render a conviction or sentence invalid,” a civil rights plaintiff

must prove “that the conviction or sentence has been reversed on direct appeal, expunged

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

determinations, or called into question by a federal court’s issuance of a writ of habeas

corpus [under] 28 U.S.C. § 2254.” Id. at 487; see Thompson v. Clark, 142 S. Ct. 1332,

1341 (2022) (to demonstrate a “favorable termination” of a criminal prosecution for

purposes of a malicious prosecution claim, a plaintiff “need only show that the criminal

prosecution ended without a conviction” and is not required to show that the prosecution

“ended with some affirmative indication of innocence”). If a judgment in favor of a civil

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rights plaintiff “would necessarily imply the invalidity of his conviction or sentence,” then

the complaint “must be dismissed unless the plaintiff can demonstrate that the conviction

or sentence has already been invalidated.” Heck, 512 U.S. at 487. When a pretrial

defendant files civil rights claims related to rulings that will likely be made in a pending

criminal proceeding, the best practice is for the district court to stay the civil rights case

until the pending criminal case is resolved. Wallace v. Kato, 549 U.S. 384, 393-94 (2007);

see Hopkins v. Ogg, 783 F. App’x 350, 355 & n.20 (5th Cir. 2019).

In this case, the assault charge against Brown in Case No. 1660503 was dismissed

on the prosecutor’s motion on August 5, 2022, the day after the defendants filed their

motion to dismiss in this suit. See Record Search, Harris County District Clerk, available

at https://www.hcdistrictclerk.com/Edocs/Public/search.aspx (last visited Feb. 1, 2023)

(Case No. 1660503). The case therefore is now resolved, and no stay under Wallace is

warranted. Furthermore, because the assault case against Brown did not result in a

conviction, Heck does not bar this civil rights suit. The defendants’ motion to dismiss based

on Heck therefore will be denied.

C. Fourth Amendment

The defendants seek dismissal of Brown’s Fourth Amendment claims under Rule

12(b)(6) for failure to state a claim on which relief can be granted.

The Fourth Amendment protects the right to be free from excessive force during an

arrest. Graham v. Connor, 490 U.S. 386 (1989). To prevail on an excessive force claim,

a plaintiff must show an injury that resulted directly and only from a use of force that was

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“clearly excessive” and “objectively unreasonable.” Betts v. Brennan, 22 F.4th 577, 582

(5th Cir. 2022); see Sam v. Richard, 887 F.3d 710, 713 (5th Cir. 2018); Poole v. City of

Shreveport, 691 F.3d 624, 627-28 (5th Cir. 2012). “Determining whether force was

excessive or unreasonable is a ‘necessarily fact-intensive’ and case-specific inquiry.”

Joseph on behalf of Est. of Joseph v. Bartlett, 981 F.3d 319, 332 (5th Cir. 2020). Courts

must assess the relationship between the need and the amount of force used, considering

the “timing, amount, and form of a suspect’s resistance” and whether officers selected “the

appropriate degree of force.” Id. (cleaned up). An officer “must use force with measured

and ascending actions that correspond to a suspect’s escalating verbal and physical

resistance.” Id. at 332-33 (cleaned up); see Poole, 691 F.3d at 629. Additionally, “[f]orce

must be reduced once a suspect has been subdued.” Joseph, 981 F.3d at 335; see Sam, 887

F.3d at 714 (officers’ use of force was excessive and unreasonable because, although

suspect at first ran away, he was compliant at the time force was used); Carroll v. Ellington,

800 F.3d 154, 174 (5th Cir. 2015) (use of force must be evaluated throughout the incident).

Here, the defendants argue that Brown fails to plausibly allege a Fourth Amendment

violation because she alleges “merely” that the officers “roughed her up” while arresting

her or attempting to remove her from Raglin’s residence (Dkt. 38, at 7-8). This

characterization, however, does not fully account for Brown’s allegations. As recounted

above, Brown alleges that the defendants suffocated her and tased her while she was

handcuffed. She also alleges that their force was excessive to the need because she was

not resisting. Taking all of Brown’s pleaded facts as true, and with every doubt resolved

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on her behalf, her complaint states a claim for relief under the Fourth Amendment standards

recited above. See Harrington, 563 F.3d at 147. The defendants’ motion to dismiss under

Rule 12(b)(6) therefore will be denied.

D. Qualified Immunity

Determination of qualified immunity requires a bifurcated analysis: first, the court

must decide “whether the undisputed facts and the disputed facts, accepting the plaintiffs’

version of the disputed facts as true, constitute a violation of a constitutional right”; and

second, the court must determine “whether the defendant’s conduct was objectively

reasonable in light of clearly established law.” Carroll, 800 F.3d at 169 (cleaned

up). Qualified immunity protects “all but the plainly incompetent or those who knowingly

violate the law.” Pratt, 822 F.3d at 181 (cleaned up). “If officers of reasonable

competence could disagree as to whether the plaintiff’s rights were violated, the officer’s

qualified immunity remains intact.” Hanks v. Rogers, 853 F.3d 738, 744 (5th Cir. 2017)

(cleaned up). A reviewing court may address the two prongs of the qualified immunity

analysis in any sequence, depending on the circumstances of the particular case at

hand. Heaney v. Roberts, 846 F.3d 795, 801 (5th Cir. 2017). To survive a motion to

dismiss under Rule 12(b)(6), a plaintiff must plead specific facts that “defeat a qualified

immunity defense” with the “minimal specificity that would satisfy Twombly and Iqbal.”

Arnold v. Williams, 979 F.3d 262, 267 (5th Cir. 2020).

Here, the defendants argue that Brown cannot overcome qualified immunity

because she admits that the officers were called to her cousin’s house because Brown’s

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relatives wanted her to leave (Dkt. 38, at 9). The defendants further argue that this account

“tells some of the story but not the whole story,” referring to the Court’s order for a more

definite statement and citing to Brown’s admission that she bit Officer Rubio during the

incident (id.).

As stated above, Brown alleges in this suit that, although she did not resist the

officers, they suffocated and tased her while she was handcuffed. At this stage of the case,

the Court takes all of Brown’s pleaded facts as true. Brown thus has plausibly alleged that

the defendants’ conduct was not objectively reasonable in light of clearly established

Fourth Amendment law. See, e.g., Betts, 22 F.4th at 582; Joseph, 981 F.3d at 332; see also

Arnold, 979 F.3d at 267. Therefore, on the current record, the defendants have not

demonstrated that they are entitled to dismissal on qualified immunity grounds.

E. Brown’s Intent to Prosecute this Action

Brown filed this suit when detained in the Harris County Jail, but was released from

custody during pendency of this suit and notified the Court of her new address. Because

no orders have been returned to the Court as undeliverable, the Court assumes that Brown

has received them. However, Brown did not respond to the motion to dismiss and has not

requested renewed service of process on Quian, and has not filed any document with the

Court since July 6, 2021.

The Court will order Brown to respond within 30 days of this order and to inform

the Court whether she wishes to continue to proceed with this civil action. If Brown does

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not respond within 30 days, the defendants may file a motion to dismiss the case under

Rule 41(b) for want of prosecution.

If Brown informs the Court that she wishes to proceed with this action, or if the

defendants elect not to file a motion for dismissal under Rule 41(b), the defendants are

instructed to file any dispositive motion, including a motion for summary judgment under

Rule 56, within 90 days of the date of this order. The plaintiff must respond to any

dispositive motion within 30 days of the date that the defendants mail her a copy.

IV. CONCLUSION

For the reasons stated above the Court ORDERS that:

1. The defendants’ motion to dismiss (Dkt. 38) is GRANTED in part and

DENIED in part. The defendants’ motion to dismiss Brown’s claims against Quian under

Rule 12(b)(5) is granted. In all other respects, the motion is denied.

2. Brown is directed to respond to this order within 30 days and to inform the

Court whether she wishes to proceed with this civil action.

The Clerk will provide copies of this order to the parties.

SIGNED at Houston, Texas, on February 3 , 2023.

Seog 0 ManGr

GEORGE C. HANKS, JR.

UNITED STATES DISTRICT JUDGE

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