Brown v. City of Dallas

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

DOUGLAS DEON BROWN, §

§

Plaintiff, §

§

v. § Case No. 3:24-cv-00218-B-BT

§

CITY OF DALLAS, et al., §

§

Defendants. §

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Before the Court in this pro se civil rights action under 42 U.S.C. § 1983 are

Motions to Dismiss from three Defendants, the City of Dallas (ECF No. 23), Dallas

Police Department (DPD) Chief Eddie Garcia (ECF No. 24), and DPD Officer Holly

Harris (ECF No. 35), as well as two motions from Plaintiff Douglas Deon Brown

seeking leave to amend his complaint (ECF Nos. 53 and 59). For the reasons stated,

the District Judge should grant the motions to dismiss under Federal Rule of Civil

Procedure 12(b)(6) and dismiss with prejudice Brown’s claims against the City,

Chief Garcia, and Officer Harris. The District Judge should deny Brown leave to

amend his complaint to add another defendant.

Background

Brown initiated this lawsuit on January 26, 2024 against the City of Dallas,

Chief Garcia, and DPD Officers Holly Harris and Robert Lyons. See generally

Compl. (ECF No. 3). Brown’s claims arise from his June 4, 2022 arrest, where he

alleges he was “arrested and beaten” by Officer Lyons, specifically “punched in the

face with a closed fist while on the ground handcuffed” and that his “head was

raised and then slammed into the concrete.” Id. at 4.

The City of Dallas filed its Motion to Dismiss, arguing that Brown’s

Complaint fails to plead a plausible claim for municipal liability under Monell v.

Dep’t of Soc. Servs., 436 U.S. 658 (1978). City’s Mot. 1 (ECF No. 23). And Chief

Garcia and Officer Harris filed their respective Motions to Dismiss based on

qualified immunity. See generally Garcia’s Mot. (ECF No. 24) and Harris’s Mot.

(ECF No. 35). Officer Lyons filed an answer (ECF No. 56). Brown filed responses

to each of the motions to dismiss (ECF Nos. 41, 42, and 43), and the moving

Defendants filed replies (ECF Nos. 48, 49, and 50). Therefore, the motions are ripe

for determination.

In subsequent filings, Brown seeks leave to amend his complaint to

“remove” the City of Dallas, Chief Garcia, and Officer Harris as Defendants and to

add DPD Officer Luciano as a Defendant.1 See Mot. 1 (ECF No. 59). Brown states

he was “unaware that officers could indeed be sued without naming employers,”

and he “wishes to proceed with only officers [Lyons] and [Luciano] as defendants.”

Id.

Legal Standards

To survive a Rule 12(b)(6) motion, a plaintiff’s complaint must contain

1 Brown first identifies Officer Luciano as Byron Luciano (ECF No. 53) and later as

Marcus Luciano (ECF No. 59).

sufficient factual matter to state a claim for relief that is plausible on its face. Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “To be plausible, the complaint’s

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

level.’” In re Great Lakes Dredge & Dock Co. LLC, 624 F.3d 201, 210 (5th Cir. 2010)

(quoting Twombly, 550 U.S. at 555).

This pleading standard does not require “detailed factual allegations,” but it

does demand more than an unadorned accusation devoid of factual support.

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555).

“A claim has facial plausibility when the plaintiff pleads factual content that allows

the court to draw a reasonable inference that the defendant is liable for the

misconduct alleged.” Id. at 678 (citing Twombly, 550 U.S. at 556). “[A] formulaic

recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at

555 (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). “While legal conclusions

can provide the framework of a complaint, they must be supported by factual

allegations.” Iqbal, 556 U.S. at 679. Where the facts do not permit the Court to infer

more than the mere possibility of misconduct, the complaint has stopped short of

showing that the plaintiff is plausibly entitled to relief. Id. at 678 (citing Twombly,

550 U.S. at 557).

When applying the plausibility standard, the Court “accepts all well-pleaded

facts as true, viewing them in the light most favorable to the plaintiff.” In re

Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007) (internal

quotations and citations omitted). But a court may not look beyond the pleadings.

Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir. 1999). Review is “limited to the

complaint, any documents attached to the complaint, and any documents attached

to the [motion to dismiss] that are central to the claim and referenced by the

complaint.” Smith v. Buffalo Wild Wings, 2021 WL 4265849, at *2 (N.D. Tex. Sept.

20, 2021) (Fitzwater, J.) (citing Lone Star Fund V (U.S.), L.P. v. Barclays Bank

PLC, 594 F.3d 383, 387 (5th Cir. 2010)); see also Inclusive Communities Project,

Inc. v. Heartland Cmty. Ass’n, Inc., 399 F. Supp. 3d 657, 665 (N.D. Tex. 2019) (“In

ruling on [a Rule 12(b)(6)] motion, the court cannot look beyond the pleadings.”

(citing Spivey, 197 F.3d at 774)), aff’d, 824 F. App’x 210 (5th Cir. 2020).

Analysis

1. The City of Dallas

The City of Dallas moves to dismiss Brown’s § 1983 claim asserted against it

on the ground that he has failed to adequately plead the elements of a Monell claim.

City’s Mot. 1. Brown initially opposed dismissal, but later requested to “remove”

the City from the lawsuit. See ECF Nos. 58 and 59. Therefore, the District Judge

should grant the City’s motion because Brown does not oppose the relief requested.

The City is also entitled to relief on the merits, as set forth below.

A municipality is a “person” subject to liability under § 1983 only if

municipal employees inflicted the deprivation of a constitutional right pursuant to

an official policy or custom. Monell, 436 U.S. at 690; see also Piotrowski v. City of

Houston, 237 F.3d 567, 579 (5th Cir. 2001). Thus, to state a claim for municipal

liability, a plaintiff must identify: “(1) an official policy (or custom), of which (2) a

policymaker can be charged with actual or constructive knowledge, and (3) a

constitutional violation whose ‘moving force’ is that policy or custom.” Valle v. City

of Houston, 613 F.3d 536, 541-42 (5th Cir. 2010) (quoting Pineda v. City of

Houston, 291 F.3d 325, 328 (5th Cir. 2002). Isolated unconstitutional actions by

municipal employees will almost never trigger municipal liability. Piotrowski, 237

F.3d at 578. And a municipality cannot be held liable simply on a theory of

respondeat superior. Monell, 436 U.S. at 691.

In his “Motion to Remove Defendants” (ECF No. 59), Brown apparently

concedes that he cannot state a claim against the City based on respondeat

superior liability. Thus, to the extent his complaint asserts liability based on such

a theory, the District Judge should grant the City’s motion to dismiss.

Additionally, the City argues that Brown’s complaint “employs mere

boilerplate language” and does not “allege facts from which this Court can

reasonably infer any unconstitutional policies of the City, that any City

policymaker was deliberately indifferent to the denial of constitutional rights, or

that any City policy was the ‘moving force’ that caused his alleged injuries.” City’s

Mot. 1. In his response, Brown asserts that the City “allow[ing] Officer Lyons to

patrol even after several excessive force complaint[s] and conduct violations”

shows a “custom or common practice in which the City of Dallas has failed to hold

officers accountable.” Resp. to City’s Mot. 1 (ECF No. 41). He also argues that

leaving investigations open is “a common practice that encourages officers to

violate the rights of citizens and go unpunished” and “the amount of open internal

affairs complaints confirms a common practice.” Id.

“An official policy ‘usually exists in the form of written policy statements,

ordinances, or regulations, but may also arise in the form of a widespread practice

that is so common and well-settled as to constitute a custom that fairly represents

municipal policy.’” Covington v. City of Madisonville, 812 Fed. Appx. 219, 225 (5th

Cir. 2020) (per curiam) (quoting James v. Harris Cnty., 577 F.3d 612, 617 (5th Cir.

2009)). A “pattern of conduct” is necessary when the municipal actors are not

policymakers. Zarnow v. City of Wichita Falls, 614 F.3d 161, 169 (5th Cir. 2010).

“A pattern requires similarity and specificity; ‘[p]rior indications cannot simply be

for any and all “bad” or unwise acts, but rather must point to the specific violation

in question.’ A pattern also requires ‘sufficiently numerous prior incidents,’ as

opposed to ‘isolated instances.’” Peterson v. City of Fort Worth, 588 F.3d 838, 851

(5th Cir. 2009) (citations omitted).

Brown’s Complaint is limited to allegations of excessive force used against

him on June 4, 2022. Compl. 4. He has not identified any official written policy or

widespread custom or practice in his complaint, and he “provide[s] no context for

the [C]ourt to draw the reasonable inference that an official custom of police

officers using excessive force existed at the time of the incident giving rise to

[Brown]’s claims.” See Walker v. City of Dallas, 2024 WL 2734951, at *5 (N.D. Tex.

May 28, 2024). Isolated unconstitutional actions by municipal employees, like

those alleged of Officer Lyons, “are not the persistent, often repeated, constant

violations, that constitute custom and policy.” Piotrowski, 237 F.3d at 581. To the

extent Brown seeks to rely on any allegations of a practice pertaining to the City’s

alleged failure to investigate complaints, Brown has not pleaded a pattern with the

requisite specificity, similarity, or numerosity. And where a plaintiff’s Monell claim

fails as to one prong—as is the case here—the Court “need not consider whether

[his] claim also fails the other two Monell prongs.” Brown v. Tarrant Cnty., Tex.,

985 F.3d 489, 497 & n. 11 (5th Cir. 2021); see also Zarnow, 614 F.3d at 168-69

(court need not consider “moving force” prong because it found no “custom or

policy” to link to the allegedly unconstitutional conduct). The City is entitled to

dismissal of Brown’s claims against it.

Further, to the extent that Brown’s claims against Police Chief Garcia and

Officer Harris are in their official capacities, these claims “are claims against the

municipality itself.” Fenner v. Hanna, 2023 WL 8720721, at *7 (N.D. Tex. Nov. 3,

2023) (citing Bennett v. Pippin, 74 F.3d 578, 584 (5th Cir. 1996). Therefore, the

standard for municipal liability also applies to any official capacity claims, and

because Brown has failed to state a claim under Monell, he has also failed to state

any official capacity claims against Chief Garcia and Officer Harris. See Walker,

2024 WL 2734951 at *2 (dismissing § 1983 claims against DPD officers sued in

official capacity when duplicative of claims made against the government entity).

The District Judge should dismiss with prejudice Brown’s claims against the

City.

2. Chief Garcia and Officer Harris

Both Chief Garcia and Officer Harris move for dismissal of Brown’s claims

against them in their individual capacities on qualified immunity grounds. Brown

initially opposed dismissal, but later requested to “remove” Chief Garcia and

Officer Harris from the lawsuit. See ECF Nos. 58 and 59. Therefore, the District

Judge should grant Chief Garcia and Officer Harris’s motions because Brown does

not oppose the relief requested. Chief Garcia and Officer Harris are also entitled to

relief on the merits, as set forth below.

A governmental employee sued under § 1983 may assert the affirmative

defense of qualified immunity. White v. Taylor, 959 F.2d 539, 544 (5th Cir. 1992).

“Qualified immunity protects government officials performing discretionary

functions from suit and liability for civil damages to the extent their conduct does

not violate clearly established statutory or constitutional rights of which a

reasonable person would have known.” Blakely v. Andrade, 360 F. Supp. 3d 453,

477 (N.D. Tex. 2019) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). In

other words, qualified immunity protects government officials when their actions

“could reasonably have been believed to be legal.” Anderson v. Valdez, 845 F.3d

580, 599 (5th Cir. 2016). And “this immunity protects ‘all but the plainly

incompetent or those who knowingly violate the law.’” Id. (quoting Malley v.

Briggs, 475 U.S. 335, 335 (1986)).

“Government officials like [Garcia and Harris] enjoy qualified immunity

‘unless [Brown] pleads facts showing (1) that the official violated a statutory or

constitutional right, and (2) that the right was ‘clearly established’ at the time of

the challenged conduct.’” Brown, 985 F.3d at 494 (citing Ashcroft v. al-Kidd, 563

U.S. 731, 735 (2011)). Further, courts “have discretion to decide which of the two

prongs of qualified-immunity analysis to tackle first.” Id. Here, the Court engages

with the first prong first.

A. Chief Garcia

Brown does not defeat Chief Garcia’s qualified immunity defense because he

does not allege that Garcia was personally involved in the violation of a statutory

or constitutional right. A plaintiff in a § 1983 claim “must establish that the

defendant was either personally involved in the deprivation or that his wrongful

actions were causally connected to the deprivation.” James v. Tex. Collin Cnty.,

535 F.3d 365, 373 (5th Cir. 2008) (citing Anderson v. Pasadena Indep. Sch. Dist.,

184 F.3d 439, 443 (5th Cir.1999)). And “[a] supervisor is not personally liable for

his subordinate's actions in which he had no involvement.” Id. Brown names

Garcia as a defendant but does not allege any facts to show that Garcia personally

caused, directed, participated in, witnessed, or was even present at Brown’s arrest.

In his Response, Brown argues “to allow the officer to go unpunish[ed] even

after viewing the dash/body cam show[s] a failure to train.” Resp. to Garcia’s Mot.

(ECF No. 42). Garcia correctly notes that this “general allegation[]” “amounts to

little more than respondeat superior liability.” Garcia’s Reply 1 (ECF No. 50).

Indeed, without factual allegations as to Garcia’s personal involvement, Garcia’s

supervisory role is not enough to show any wrongful action on his part based on

the alleged wrongful action by his subordinate officer. See Alderson v. Concordia

Par. Corr. Facility, 848 F.3d 415, 420 (5th Cir. 2017) (per curiam) (“Under § 1983,

officials are not vicariously liable for the conduct of those under their supervision.

Supervisory officials are accountable for their own acts of deliberate indifference

and for implementing unconstitutional policies that causally result in injury to the

plaintiff.”). Brown tacitly concedes he cannot bring a claim against Chief Garcia

based on a theory of respondeat superior liability. See Mot. (ECF No. 59)

(explaining Brown was “unaware that officers could indeed be sued without

naming employers”).

To the extent that Brown asserts a failure-to-train claim, Chief Garcia argues

this claim also fails. Garcia’s Mot. 5. A plaintiff alleging failure to train or supervise

under § 1983 must show that “(1) the supervisor either failed to supervise or train

the subordinate official; (2) a causal link exists between the failure to train or

supervise and the violation of the plaintiff’s rights; and (3) the failure to train or

supervise amounts to deliberate indifference.” Est. of Davis ex rel. McCully v. City

of N. Richland Hills, 406 F.3d 375, 381 (5th Cir. 2005). Brown’s Complaint does

not allege that Chief Garcia failed to train and/or supervise the officer(s) who

allegedly used excessive force. Brown’s Response to Chief Garcia’s motion

mentions a failure to train but does not state any facts to support this allegation.

Additionally, neither Brown’s Complaint nor his Response state facts to support

an allegation of deliberate indifference—“a stringent standard of fault” requiring:

proof that a municipal actor disregarded a known or obvious

consequence of his action. For an official to act with deliberate

indifference, the official must both be aware of facts from which the

inference could be drawn that a substantial risk of serious harm exists,

and he must also draw the inference. Deliberate indifference requires

a showing of more than negligence or even gross negligence. Actions

and decisions by officials that are merely inept, erroneous, ineffective,

or negligent do not amount to deliberate indifference and do not

divest officials of qualified immunity. To satisfy the deliberate

indifference prong, a plaintiff usually must demonstrate a pattern of

violations and that the inadequacy of the training is ‘obvious and

obviously likely to result in a constitutional violation.

Id. (internal quotations and citations omitted).

The District Judge should dismiss with prejudice Brown’s claims against

Chief Garcia.

B. Officer Harris

Next, Brown does not defeat Officer Harris’s qualified immunity defense.

Harris argues that Brown cannot surmount her entitlement to qualified immunity

because his Complaint “does not allege that [she] was present at the time of the

encounter, or that she in any way participated in the alleged use of force against

[Brown].” Harris’s Mot. 2. But attachments to Brown’s complaint, see Attach. at 3

(ECF No. 6), suggest that Harris witnessed the arrest and use of force against

Brown.2 Also, in Brown’s Response to Harris’s Motion, he argues that Harris acted

wrongfully in that she “at no time attempt[ed] to prevent f[u]rther excessive force

after the first punch” and she “never attempted to stop [Officer Lyons] or report

2 Brown attaches a report from his parole hearing, which references the police

report from DPD.

his wrongdoing . . . she is liable as a bystander.” Resp. to Harris’s Mot. (ECF No.

43).

“An officer may be liable under § 1983 under a theory of bystander liability

where the officer ‘(1) knows that a fellow officer is violating an individual's

constitutional rights; (2) has a reasonable opportunity to prevent the harm; and

(3) chooses not to act.’” Whitley v. Hanna, 726 F.3d 631, 646 (5th Cir. 2013) (citing

Randall v. Prince George's Cnty., Md., 302 F.3d 188, 204 (4th Cir. 2002).

Assuming without deciding that Brown has pleaded Lyons used excessive force

against him in violation of his constitutional rights,3 Brown does not plead facts

that allow this Court to reasonably infer Officer Harris’s bystander liability. At

most, Brown alleges that Harris “witnessed the arrest and at no time did she

attempt to prevent f[u]rther excessive force.” Resp. to Harris’s Mot. 1. These facts

are not enough for the Court to infer that Harris had a reasonable opportunity to

prevent the harm and chose not to act. In resolving whether a plaintiff has

sufficiently alleged a bystander liability claim, courts also consider whether an

officer “acquiesce[d] in” the alleged constitutional violation. Whitley, 726 F.3d at

647 (citing Hale v. Townley, 45 F.3d 914, 919 (5th Cir. 1995). Again, the facts as

3 Harris seems to argue that Brown’s allegations are insufficient to make out a

claim for bystander liability because he “only claimed he was struck” and therefore

“has not pled sufficient facts to state a claim for excessive force” – so there is no

violation of Brown’s Fourth Amendment rights. Harris’s Reply 2 (ECF No. 48).

However, Brown alleges that he was “beaten,” “punched in the face with a closed

fist while on the ground handcuffed,” and that his “head was raised and then

slammed into the concrete.” Compl. (ECF No. 3). He also alleges he suffered three

lost teeth and facial lacerations. Id.

alleged do not allow the Court to infer that Harris acquiesced in any alleged use of

excessive force. Cf. Hale, 45 F.3d at 919 (genuine dispute existed as to whether an

officer's laughing and shouting encouragement to another officer who was

committing a constitutional violation constituted acquiescence in the latter's

conduct).

The District Judge should dismiss with prejudice Brown’s claims against

Officer Harris.

Leave to Amend

Brown filed motions seeking leave to amend his complaint (i) to add DPD

Officer Luciano as a Defendant and (ii) to remove the City of Dallas, Chief Garcia,

and Officer Harris as Defendants. See ECF Nos. 53 and 59. In view of the

recommendation to grant the pending motions to dismiss, the District Judge

should find that Brown’s Motion to Remove the City, Chief Garcia, and Officer

Harris as Defendants is moot. And for the reasons stated below, the District Judge

should deny Brown leave to amend his Complaint to add Officer Luciano.

A plaintiff may amend his complaint once as a matter of right either 21 days

after serving it on defendants or “if the pleading is one to which a responsive

pleading is required, 21 days after service of a responsive pleading or 21 days after

service of a motion under Rule 12(b), (e), or (f), whichever is earlier.” Fed. R. Civ.

P. 15(a)(1). Brown served his complaint on January 26, 2024 and more than 21

days passed since the City, Chief Garcia, and Officer Harris filed their motions to

dismiss under Rule 12(b)(6), so Brown may only amend his complaint with the

Court’s permission.

Leave to amend is “entrusted to the sound discretion of the district court[,]”

Jones v. Robinson Prop. Grp., L.P., 427 F.3d 987, 994 (5th Cir. 2005), abrogated

on other grounds by Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53

(2006) (quoting Quintanilla v. Tex. Television, Inc., 139 F.3d 494, 499 (5th Cir.

1988)), and Federal Rule of Civil Procedure 15(a) requires that courts freely grant

leave to amend “when justice so requires.” Fed. R. Civ. P. 15(a)(2)); see also Lyn-

Lea Travel Corp. v. Am. Airlines, 283 F.3d 282, 286 (5th Cir. 2002) (noting that

motions for “leave to amend [should be granted] ‘freely,’ and the language of this

rule ‘evinces a bias in favor of granting leave to amend.’”). The Court considers five

factors in determining whether to grant leave to amend: “undue delay, bad faith or

dilatory motive on the part of the movant, repeated failure to cure deficiencies by

amendments previously allowed, undue prejudice to the opposing party by virtue

of allowance of the amendment, [and] futility of amendment.” Rosenzweig v.

Azurix Corp., 332 F.3d 854, 864 (5th Cir.2003) (citing Foman v. Davis, 371 U.S.

178, 182 (1962)). Absent such circumstances, a court will generally grant the leave

requested, as Rule 15(a) “expresses a strong presumption in favor of” allowing the

amendment. Lowrey v. Tex. A & M Univ. Sys., 117 F.3d 242, 245 (5th Cir. 1997).

In response to Brown’s Motion to Amend, Defendants argue that amending

the complaint to add Officer Luciano would be futile “because the statute of

limitations has expired for new defendants to be added and relate back to

[Brown’s] original filing.” Resp. 1 (ECF No. 55). The Court agrees that an

amendment adding Luciano as a Defendant would be futile; the two-year statute

of limitations has run; no extraordinary circumstances justify equitable tolling;

and Brown cannot relate the proposed amendment back to the date of his original

complaint.

“The statute of limitations for a suit brought under § 1983 is determined by

the general statute of limitations governing personal injuries in the forum state.”

Piotrowski, 237 F.3d at 576. Texas law imposes a two-year statute of limitations

for personal injury claims, see Tex. Civ. Prac. & Rem. Code § 16.003(a), so Brown

had two years to file suit from the date his § 1983 claim accrued. Id. (citing Burrell

v. Newsome, 883 F.2d 416, 418 (5th Cir. 1989). Brown’s cause of action accrued—

and the statutory period began to run—on the date of his arrest, June 4, 2022,

when DPD officers allegedly used excessive force. See Gonzales v. Wyatt, 157 F.3d

1016, 1020 (5th Cir. 1998) (“[t]he cause of action accrues, so that the statutory

period begins to run, when the plaintiff knows or has reason to know of the injury

which is the basis of the action.”); see also Fenner, 2023 WL 8720721, at *11

(“[p]laintiff knew the facts that form the basis of his claims . . . when the last

allegedly unconstitutional event took place.”); see also Rogers v. Buchanan, 2015

WL 5772203, at *3 (N.D. Tex. Aug. 4, 2015), adopted by 2015 WL 5771926 (N.D.

Tex. Sept. 30, 2015) (explaining that the limitations period begins when a § 1983

plaintiff “knows or has reason to know of an injury and the cause of that injury –

such as arrest by police officers that he believes to be wrongful or use of force by

prison guards that he believes to be excessive” and the plaintiff later learning that

a particular defendant may also be liable does not restart the limitations period).

Therefore, the two-year statute of limitations expired on June 4, 2024 and any

claims against Officer Luciano are time barred, absent equitable tolling or relation

back.

The Fifth Circuit has held that “[e]quitable tolling applies principally where

the plaintiff is actively misled by the defendant about the cause of action or is

prevented in some extraordinary way from asserting his rights.” Coleman v.

Johnson, 184 F.3d 398, 402 (5th Cir. 1999), abrogation on other grounds

recognized by Richards v. Thaler, 710 F.3d 573, 578-79 (5th Cir. 2013) (quoting

Rashidi v. Am. President Lines, 96 F.3d 124, 128 (5th Cir. 1996)); see also Rogers,

2015 WL 5772203, at *3 (explaining that, in the context of identifying of

defendants, equitable tolling is not warranted where a plaintiff did not explain

efforts taken to identify defendants within the two-year limitations period or

afterwards, therefore failing “to establish that he actively pursued his judicial

remedies or otherwise acted diligently.”). A movant bears the burden of proof to

show he is entitled to equitable tolling. Phillips v. Donnelly, 216 F.3d 508, 511 (5th

Cir. 2000). Defendants argue that “[n]othing in the record before the Court, or

argued in [Brown’s] Motion would portend equitable tolling would provide

[Brown] additional time to meet the Texas statute of limitations.” Resp. 6 (ECF No.

55).

Brown does not explain what role Officer Luciano is alleged to have had in

his arrest or why he was unaware of Officer Luciano’s alleged involvement earlier.

And he has not shown that Officer Luciano—or anyone else—actively misled him

about any cause of action or otherwise prevented him from asserting his rights in

a timely manner. To the extent that Brown claims his incarceration, lack of

knowledge of the legal process, and/or lack of counsel prevented him from

pursuing a claim against Officer Luciano earlier,4 the Court does not find Brown’s

circumstances constitute the extraordinary circumstances needed to justify tolling.

See Puderer v. Cain, 830 F. App’x 458, 459 (5th Cir. 2020) (applying the holding

that “an inmate’s pro se status, ignorance of the law, and lack of access to the prison

law library do not constitute the sort of rare and exceptional circumstances that

justify equitable tolling of the statute of limitations” to a § 1983 claim).

Lastly, the Court considers whether the untimely proposed amendment

relates back to Brown’s original Complaint. Brown’s claims accrued on June 4,

2022 and barring an exception, the applicable statute of limitations required him

to file his claims by June 4, 2024. Brown can relate the proposed amendment

(adding Luciano) back to the date of his original complaint (January 26, 2024) if

he shows:

(1) the basic claim arose out of the conduct set forth in [his] original

complaint[]; (2) the part[y] to be brought in received such notice that

4 In various filings on the record, Brown expresses these sentiments, for example,

“the Court is clearly aware that I’m incarcerated and without resources needed to

[identify the first name of Officer Lyons] . . . . I am forced to litigate against

[a]ttorneys with a degree in law while I hold only a G.E.D.” See ECF No. 40.

[he] will not be prejudiced in maintaining [his] defense; (3) the part[y]

knew or should have known that, but for a mistake concerning

identity, the action would have been brought against [him]; and (4)

the second and third requirements were fulfilled within the prescribed

limitations period.

Winzer v. Kaufman Cnty., 2016 WL 11664137, at *2 (N.D. Tex. Apr. 25, 2016)

(citing Fed. R. Civ. P. 15(c) and Jacobsen v. Osborne, 133 F.3d 315, 319 (5th Cir.

1998)). Rule 15(c) 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.” Id. (citing Jacobsen, 133 F.3d at 320);

see also Winzer v. Kaufman Cnty., 916 F.3d 464, 470-71 (5th Cir. 2019) (“[F]ailing

to identify individual defendants cannot be characterized as a mistake.”). Here,

there is no mistake in identifying the correct defendant—Brown simply did not

identify Luciano at all. Therefore, Brown cannot relate the proposed amendment

back to the date of his original complaint and it remains time barred.

The District Judge should deny Brown leave to amend because any attempt

to add Luciano as a Defendant would be futile.

Recommendation

The District Judge should grant the pending motions to dismiss (ECF Nos.

23, 24, and 35) under Federal Rule of Civil Procedure 12(b)(6) and dismiss with

prejudice Brown’s claims against the City, Chief Garcia, and Officer Harris. The

District Judge should find that Brown’s Motion to Remove (ECF No. 59) the City

of Dallas, Chief Garcia, and Officer Harris as Defendants is moot and should deny

Brown leave to amend his complaint to add another defendant (ECF No. 53).

SO RECOMMENDED.

December 31, 2024. -

XA | A

REBECCA RUTHERFORD

UNITED STATES MAGISTRATE JUDGE

INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

A copy of this report and recommendation shall be served on all parties in

the manner provided by law. Any party who objects to any part of this report and

recommendation must file specific written objections within 14 days after being

served with a copy. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). In order to be

specific, an objection must identify the specific finding or recommendation to

which objection is made, state the basis for the objection, and specify the place in

the magistrate judge’s report and recommendation where the disputed

determination is found. An objection that merely incorporates by reference or

refers to the briefing before the magistrate judge is not specific. Failure to file

specific written objections will bar the aggrieved party from appealing the factual

findings and legal conclusions of the magistrate judge that are accepted or adopted

by the district judge, except upon grounds of plain error. See Douglass v. United

Servs. Auto. Assn, 79 F.3d 1415, 1417 (5th Cir. 1996).

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