Benavides v. Harris County, Texas

UNITED STATES DISTRICT COURT June 23, 2023

SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk

HOUSTON DIVISION

STEPHEN BENAVIDES, §

Plaintiff, §

§

VS. § CIVIL ACTION NO. 4:21-CV-1289

§

HARRIS COUNTY, TEXAS, §

and DEPUTY J. NUNEZ, Individually, §

Defendants. §

MEMORANDUM OPINION AND ORDER

Pending before the Court is a Motion for Judgment on the Pleadings filed by

Defendant Jose Nunez. (Dkt. 59). Having carefully reviewed the motion, response, reply,

applicable law, and the entire record, the Court finds that the motion should be DENIED.

FACTUAL BACKGROUND

For purposes of the Court’s consideration of the pending motion, the following facts

alleged in Plaintiff Stephen Benavides’ Second Amended Original Complaint are accepted

as true.

Benavides received a call from his daughter concerning a possible intruder in her

home. Benavides instructed his daughter to call 911, and he rushed to her house to

investigate the threat. Benavides searched the home with his dogs and found nothing of

concern. Believing everyone was safe, Benavides went to the front door to smoke a

cigarette and wait for the police to arrive.

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As soon as he opened the door, Benavides could see an officer through the crack

and immediately started raising his hands. Nunez, a Deputy Sherriff in the Harris County

Sherriff’s Office, fired upon Benavides, striking him in the leg. Benavides then watched as

Deputy Nunez and other officers pointed weapons at his wife, children, and grandchildren

and shouted obscenities at them. Benavides was rushed to the hospital and has suffered

physical and emotional injuries as a result of the shooting.

PROCEDURAL HISTORY

On April 19, 2021, Benavides filed a federal complaint asserting constitutional

claims under 18 U.S.C. § 1983 (“Section 1983”) against Deputy Nunez and Defendant

Harris County, Texas (“Harris County”) and, in the alternative, a Texas state law

negligence claim solely against Harris County under the Texas Tort Claims Act (“TTCA”).

Tex. Civ. Prac. & Rem. Code §101.021. (Dkt. 1). Benavides amended his complaint the

following month. (Dkt. 9).

Deputy Nunez timely filed a motion to dismiss Benavides’ Amended Complaint,

asserting that he is entitled to qualified immunity and that Benavides had not pled specific

facts that Deputy Nunez is liable for the harm alleged. (Dkt. 21 at 5). Specifically, Deputy

Nunez argued that “there was no violation of a constitutional right, nor was [his] actions

unreasonable, nor was the right at issue clearly established at the time of the defendant's

alleged misconduct.” (Dkt. 21 at 5-6). Defendant Harris County also filed a motion to

dismiss Benavides’ Amended Complaint. (Dkt. 11).

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On March 25, 2022, the Court denied Deputy Nunez’ Motion to Dismiss.

Specifically, the Court found that “[u]nder the first prong of the qualified immunity

analysis . . . the facts alleged in the amended complaint are sufficient, if true, to establish a

claim under Section 1983 for violation of the Fourth Amendment’s prohibition on the use

of excessive force against Benavides.” (Dkt. 33 at 6). Additionally, the Court found that

Benavides pled sufficient facts to overcome the second prong of the qualified immunity

analysis because “the unlawfulness of Deputy Nunez’ alleged conduct was ‘clearly

established’ at that time of the shooting.” (Dkt. 33 at 7). In a separate opinion, the Court

granted Harris County’s motion to dismiss. (Dkt. 32).

The parties subsequently engaged in extensive discovery. In a sworn statement,

Deputy Nunez claimed the gun “accidentally discharge[d]” as he “quickly transitioned [his]

weapon from [his] left hand to [his] right hand . . . [his] finger or some part of either hand

hit the trigger.” (Dkt. 55 at 7). In light of this disclosure, Benavides requested leave to file

a Second Amended Original Complaint (“Second Complaint”) for the sole purpose of

reasserting his negligence claim against Harris County under the TTCA.1 (Dkt. 48).

Benavides’ Section 1983 claim against Harris County remains dismissed. (Dkt. 32).

1 Harris County did not file a motion to dismiss the Second Complaint under Rule 12(b)(6). Instead,

Harris County filed an answer. (Dkt. 60). Harris County retains the right to file a motion for

judgment on the pleadings under Rule 12(c) “[a]fter the pleadings are closed—but early enough

not to delay trial.” FED. R. CIV. P. 12(c).

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In his Second Complaint, Benavides re-pleaded his Section 1983 claim against

Deputy Nunez.2 (Dkt. 55). Deputy Nunez then filed the motion for judgment on the

pleadings pursuant to Rule 12(c) that is presently before the Court. (Dkt. 59).

In his motion for judgment on the pleadings, Deputy Nunez argues that he is cloaked

by qualified immunity because (1) Benavides “incorporates Nunez’ sworn administrative

statement into his pleadings [which] asserts that the shooting at issue was an accident”—

i.e., because Benavides did not plead a Fourth Amendment violation—and (2) the Second

Complaint “is void of specific, plausible factual allegations that establish Nunez acted

objectively unreasonable [sic] at the time of the shooting.” (Dkt. 59 at 9). The Court

considers Deputy Nunez’ arguments below.

LEGAL STANDARDS AND APPLICABLE LAW

I. Federal Rule of Civil Procedure 12(c)

A Rule 12(c) motion is “designed to dispose of cases where the material facts are

not in dispute and a judgment on the merits can be rendered by looking to the substance of

2 Deputy Nunez did not refile his Answer (Dkt. 34) to Benavides’ Second Complaint. Ordinarily,

when a defendant files an answer to a first amended complaint, but fails to refile their answer to a

second amended complaint, their failure “may result in the allegations contained in Plaintiff's

Second Amended Complaint being admitted and default judgment being rendered against them.”

Lohr v. Gilman, No. 3:15-CV-1931-BN, 2017 WL 11679158, at *2 (N.D. Tex. July 27, 2017).

However, because “Defendants have been actively engaged in this litigation” and “Plaintiff’s

[second] amended complaint did not substantially alter the claims set forth in Plaintiff's [first]

amended complaint[,] [t]he Court finds that Plaintiff has not suffered any prejudice as a result of

Defendants' inadvertence in failing to file an answer to Plaintiff's [second] amended complaint.”

Wilson v. Brown, No. 04-3637, 2007 WL 1035026, at *1 n.1 (D.N.J. Apr. 3, 2007); see also Nat'l

Sec. Fire & Cas. Ins. Co. v. Townsend, No. 4:17-CV-64-DMB-JMV, 2018 WL 4481872 (N.D.

Miss. Sept. 17, 2018). Accordingly, the Court finds that Deputy Nunez’ Answer (Dkt. 34) is the

live pleading to Benavides’ Second Complaint (Dkt. 55).

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the pleadings and any judicially noticed facts.” Great Plains Trust Co. v. Morgan Stanley

Dean Witter & Co., 313 F.3d 305, 312 (5th Cir. 2002) (internal citations omitted). A Rule

12(c) motion is evaluated under the same standard as a Rule 12(b)(6) motion. See, e.g.,

Waller v. Hanlon, 922 F.3d 590, 599 (5th Cir. 2019); Doe v. MySpace, Inc., 528 F.3d 413,

418 (5th Cir. 2008). Thus, the court must accept the factual allegations of the complaint as

true, view them in a light most favorable to the plaintiff, and draw all reasonable inferences

in the plaintiff’s favor. Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001).

A Rule 12(c) inquiry “focuses on the allegations in the pleadings and not on whether

the plaintiff actually has sufficient evidence to succeed on the merits.” Ackerson v. Bean

Dredging, LLC, 589 F.3d 196, 209 (5th Cir. 2009). Therefore, dismissal is appropriate

under Rule 12(c) if the plaintiff fails to state a claim upon which relief may be granted

against the named defendant. See, e.g., Doe, 528 F.3d at 418.

II. 42 U.S.C. § 1983

Section 1983 provides a private right of action for the deprivation of rights,

privileges, and immunities secured by the Constitution or laws of the United States. Section

1983 reads in relevant part:

Every person who, under color of any statute, ordinance, regulation,

custom, or usage, of any State or Territory or the District of Columbia,

subjects, or causes to be subjected, any citizen of the United States or

other person within the jurisdiction thereof to the deprivation of any

rights, privileges, or immunities secured by the Constitution and laws,

shall be liable to the party injured in an action at law, suit in equity,

or other proper proceeding for redress.

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42 U.S.C. § 1983. “[Section] 1983 ‘is not itself a source of substantive rights,’ but merely

provides ‘a method for vindicating federal rights elsewhere conferred.”’ Graham v.

Connor, 490 U.S. 386, 393-94 (1989) (quoting Baker v. McCollan, 443 U.S. 137, 144

(1979)).

To establish Section 1983 liability, a plaintiff must prove that she suffered “(1) a

deprivation of a right secured by federal law (2) that occurred under color of state law, and

(3) was caused by a state actor.” Victoria W. v. Larpenter, 369 F.3d 475, 482 (5th Cir.

2004) (citing Bush v. Viterna, 795 F.2d 1203, 1209 (5th Cir. 1986)). A plaintiff must also

show that the constitutional or statutory deprivation she suffered was intentional or due to

deliberate indifference and not the result of mere negligence. See Gobert v. Caldwell, 463

F.3d 339 (5th Cir. 2006).

III. The Fourth Amendment

“The Fourth Amendment protects individuals from being subjected to excessive

force when they are physically apprehended or subdued by agents of the government.”

Ramirez v. Guadarrama, 3 F.4th 129, 134 (5th Cir. 2021). Whether an officer has used

excessive force depends on “the facts and circumstances of each particular case, including

[1] the severity of the crime at issue, [2] whether the suspect poses an immediate threat to

the safety of the officers or others, and [3] whether he is actively resisting arrest or

attempting to evade arrest by flight.” Graham, 490 U.S. at 396.

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IV. Qualified Immunity

“[G]overnment officials performing discretionary functions generally are shielded

from liability for civil damages insofar as their conduct does not violate clearly established

statutory or constitutional rights of which a reasonable person would have known.” Harlow

v. Fitzgerald, 457 U.S. 800, 818 (1982) (citations omitted). “The qualified immunity

analysis has two components: (1) whether a plaintiff alleges or shows the violation of a

federal constitutional or statutory right; and (2) whether the right in question was clearly

established at the time of the alleged violation.” Ramirez, 3 F.4th at 133. In order for a right

to be clearly established, “[t]he contours of the right must be sufficiently clear that a

reasonable official would understand that what he is doing violates that right.” Anderson

v. Creighton, 483 U.S. 635, 640 (1987).

ANALYSIS

I. Benavides’ alternative negligence pleading does not defeat his Fourth

Amendment claims.

Deputy Nunez argues that Benavides has failed to state a claim under the Fourth

Amendment because (1) “[o]nly intentional conduct of government actors invokes the

protections of the Fourth Amendment” (Dkt. 59 at 7), and (2) Benavides’ Second Complaint

“incorporates Nunez’ sworn administrative statement into his pleadings[, which] asserts that

the shooting at issue was an accident.” (Dkt. 59 at 7-8). Deputy Nunez further argues that

Benavides’ Second Complaint “asserts that [Benavides] was the unintended victim of an

accidental shooting and such accidental conduct by Nunez [] is incompatible” with a Fourth

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Amendment claim. (Dkt. 59 at 8). The Court disagrees with Deputy Nunez’ interpretation

of Benavides’ Second Complaint.

In his Second Complaint, Benavides incorporates Deputy Nunez’ statement that the

shooting was an accident for the sole purpose of bolstering Benavides’ TTCA negligence

claim against Harris County. Specifically, Benavides stated that:

e “Additionally, and alternatively should Defendant Nunez’ statements be taken as

true, Deputy Nunez has alleged as follows concerning what he terms an

‘accidental firing’ of his weapon... .” (Dkt. 55 at 6) (emphasis added).

e “In further support of said alternative claim, Plaintiff would assert that even if

such firing were not intentional ... .” (Dkt. 55 at 7) (emphasis added).

e “As an alternative pleading, Plaintiff is therefore entitled to recover damages []

pursuant to the Texas Tort Claims Act... .” (Dkt. 55 at 8) (emphasis added).

Benavides’ incorporation of Deputy Nunez’ statement was not a binding judicial

admission, but simply a pleading in the alternative as authorized by Rule 8(d). See FED. R.

CIV. P. 8(d). “To qualify as a judicial admission, the statement must be . . . deliberate, clear,

and unequivocal.” Heritage Bank v. Redcom Laboratories, Inc., 250 F.3d 319, 329 (Sth Cir.

2001). “[W]here a party's pleadings are inconsistent—e.g., pled in the alternative—any

‘admission’ cannot be unequivocal.” True Believers Ink 2, Corp. v. Russell Brands, LLC.,

No. 4:18-CV-00432, 2019 WL 4039888 (E.D. Tex. Aug. 27, 2019). Thus, the Court finds

that Benavides’ alternative arguments regarding Deputy Nunez’ alleged negligence do not

preclude Benavides from asserting a claim under the Fourth Amendment.

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II. Benavides sufficiently pled intentionality on the part of Deputy Nunez.

Deputy Nunez correctly notes that the Fourth Amendment covers intentional acts

only. (Dkt. 59 at 7). Thus, the Court must determine whether Benavides’ Second Complaint

sufficiently pled intent on the part of Deputy Nunez. The Court finds that Benavides met

this burden.

As an initial matter, the Court observes that Benavides’ prayer for punitive damages

states that “[p]unitive damages may be assessed under §1983 when the defendant’s conduct

is shown to be motivated by evil motive or intent, or when it involves reckless or callous

indifference to the federally protected rights of others.” (Dkt. 55 at 9-10). In seeking punitive

damages, Benavides makes clear that he believes Deputy Nunez’ actions were intentional.

Moreover, in his Second Complaint, Benavides alleges that Deputy Nunez shot him

in the leg “almost instantaneously” after he opened his daughter’s front door. (Dkt. 55 at 2).

Both the timing of the shooting and the fact that Benavides was struck by Deputy Nunez’

bullet indicate intentionality on the part of Deputy Nunez. See, e.g., Kalimah v. City of

McKinney, Tex., 213 F. Supp. 2d 698, 703 (E.D. Tex. 2002) (finding that intentionality

can be reasonably inferred when a police officer fires upon an innocent homeowner

without provocation).

The Court thus finds that Benavides’ Second Complaint sufficiently alleges that

Deputy Nunez intentionally shot him in the leg. Having found that Benavides’ alternative

negligence arguments do not preclude his Fourth Amendment claim, and that Benavides

pled intentionality on the part of Deputy Nunez, the Court turns to Deputy Nunez’ qualified

immunity argument.

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III. Deputy Nunez is not entitled to qualified immunity.

In his motion to dismiss, Deputy Nunez argued that he enjoys qualified immunity

from Benavides’ Section 1983 claim. (Dkt. 21). In denying Deputy Nunez’ motion to

dismiss, the Court found that Deputy Nunez is not entitled to qualified immunity. (Dkt.

33). Deputy Nunez then reasserted his qualified immunity defense in his motion for

judgment on the pleadings. (Dkt. 59 at 6-9). The Court again finds that Deputy Nunez is

not entitled to qualified immunity.

As an initial matter, to the extent that Deputy Nunez asserts the same grounds for

qualified immunity as he asserted in his motion to dismiss, the Court incorporates by

reference its previous order denying Deputy Nunez’ assertion of qualified immunity. (Dkt.

33). Deputy Nunez’ motion for judgment on the pleadings did not cite any relevant and

material change to Fourth Amendment law that occurred after the Court’s previous denial

of qualified immunity. “[T]o conserve limited judicial resources, rulings should only be

reconsidered where the moving party has presented substantial reasons for

reconsideration.” State of La. v. Sprint Commc'ns Co., 899 F. Supp. 282, 284 (M.D. La.

1995). Nevertheless, to the extent that Deputy Nunez asserts different grounds for qualified

immunity in his motion for judgment on the pleadings, the Court considers those arguments

below.

A qualified immunity analysis involves a two-pronged inquiry: (1) “whether the

officer's alleged conduct has violated a federal right” and (2) “whether the right in question

was ‘clearly established’ at the time of the alleged violation, such that the officer was on

notice of the unlawfulness of his or her conduct.” Cole v. Carson, 935 F.3d 444, 451 (5th

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Cir. 2019) (en banc). In Fourth Amendment excessive force cases, the first prong is met

when a plaintiff alleges that he “suffers an injury that results directly and only from [an

officer's] clearly excessive and objectively unreasonable use of force.” Joseph ex rel. Estate

of Joseph v. Bartlett, 981 F.3d 319, 332 (5th Cir. 2020) (citation omitted).

Deputy Nunez asserts that Benavides failed to satisfy the first prong of the qualified

immunity analysis because Benavides did not allege intentionality on the part of Deputy

Nunez and because Deputy Nunez’ actions were objectively reasonable. (Dkt. 59 at 8-9).

The Court addressed Deputy Nunez’ intentionality argument above. As to Deputy Nunez’

argument that his actions were objectively reasonable, the Court disagrees.

Deputy Nunez argues that his actions were objectively reasonable because (1) he

was responding to a Priority One dispatch call, which indicated that an immediate threat to

life existed, and that (2) it was reasonable for him to have his weapon drawn. (Dkt. 59 at

9). The Court accepts that it is reasonable for an officer to have his weapon drawn when

responding to a Priority One dispatch call, but that is not where the inquiry ends. For

purposes of Deputy Nunez’ qualified immunity argument, the Court must consider whether

he acted objectively unreasonably in shooting an unarmed man in the leg. Thus, the Court

will assess Deputy Nunez’ actions against the test of reasonableness under the Fourth

Amendment provided in Graham v. Connor, 490 U.S. 386 (1989).

The first Graham factor asks the Court to consider “the severity of the crime at

issue.” Graham, 490 U.S. at 396. The Court is mindful that it must evaluate Deputy Nunez’

conduct in light of the “tense, uncertain, and rapidly evolving circumstances in which

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officers must often make split-second judgments.” Bush v. Strain, 513 F.3d 492, 502 (5th

Cir. 2008) (internal quotation marks omitted). But here, there was no crime involved at all,

much less a severe crime. The mere fact that Deputy Nunez may have believed Benavides

was a burglar does not justify shooting him “without warning” or “sufficient time to

respond.” Cole, 935 F.3d at 449. Thus, Deputy Nunez’ actions were unreasonable under

the first Graham factor.

The second Graham factor, which evaluates “whether the suspect poses an

immediate threat to the safety of the officers or others,” is critical to the Court’s analysis

under the facts and circumstances of this particular case. Graham, 490 U.S. at 396. It

appears, on the face of his Second Complaint, that Benavides never posed a threat to the

safety of Deputy Nunez or any other officer. Indeed, Benavides alleges that he was shot

“almost instantaneously” after he opened his daughter’s front door, with his hands in the air.

(Dkt. 55 at 2). Deputy Nunez does not argue, and the Court does not accept, that it is

objectively reasonable to shoot an unarmed man moments after he opens the front door,

without apparent justification. Thus, Deputy Nunez’ actions were unreasonable under the

second Graham factor.

And finally, the third Graham factor requires the Court to consider whether the

suspect “is actively resisting arrest or attempting to evade arrest by flight.” Id. “The timing,

amount, and form of a suspect's resistance are key to determining whether the force used

by an officer was appropriate or excessive.” Joseph on behalf of Est. of Joseph v. Bartlett,

981 F.3d 319, 330 (5th Cir. 2020). But Benavides (1) was never a suspect, (2) never resisted,

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and (3) never attempted to evade arrest by flight. Benavides was merely going outside to

smoke a cigarette and wait for the police to arrive. Surrounded by his wife, children, and

grandchildren, Benavides was shot in the leg moments after opening the front door. Thus,

Deputy Nunez’ actions were unreasonable under the third Graham factor.

The Court finds that Benavides sufficiently alleged a constitutional violation given

that (1) he sufficiently pled intentionality on the part of Deputy Nunez and (2) Deputy

Nunez’ actions were objectively unreasonable. Thus, the Court finds that Benavides has

satisfied the first prong of the qualified immunity inquiry.

Finally, the Court turns to the second prong of the qualified immunity analysis—

i.e., whether Deputy Nunez’ actions violated clearly established law. As the Supreme Court

held in Ashcroft v. al-Kidd, “a case directly on point” is not required when “every

reasonable official would have understood that what he is doing violates” clearly

established law. 563 U.S. 731, 741 (2011) (cleaned up). The Fifth Circuit has made clear

that “in an obvious case, analogous case law is not needed because the unlawfulness of the

challenged conduct is sufficiently clear.” Joseph, 981 F.3d at 330 (internal quotation marks

omitted). “The sine qua non of the clearly-established inquiry is ‘fair warning’” to a

reasonable officer. Morgan v. Swanson, 659 F.3d 359, 372 (5th Cir. 2011) (quoting Hope

v. Pelzer, 536 U.S. 730, 741 (2002)).

The Court finds that the unlawfulness of the challenged conduct here is sufficiently

obvious to assume notice on the part of Deputy Nunez. The facts and circumstances of this

case are such that no reasonable officer would have believed that shooting Benavides was

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a lawful act. As discussed previously, in light of the fact that Benavides (1) posed no threat,

(2) was not resisting, (3) was not fleeing, (4) was unarmed, and (5) was shot “almost

instantaneously” after opening the front door, the Court finds that Benavides has satisfied

the second prong of the qualified immunity analysis on obviousness grounds. Deputy

Nunez is not entitled to qualified immunity at this stage.

CONCLUSION

For the reasons stated above, the factual allegations in Benavides’ Second

Complaint are sufficient to state a claim for excessive force under Section 1983, and

Deputy Nunez does not enjoy qualified immunity over that claim.

Accordingly, Deputy Nunez’ motion for judgment on the pleadings (Dkt. 59) is

DENIED.

SIGNED at Houston, Texas, this 23rd day of June, 2023.

SEORt C. HANKS, JR.

UNITED STATES DISTRICT JUDGE

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