Barnes v. City of El Paso

677 F.Supp.3d 594

Anna BARNES, Plaintiff, v. CITY OF EL PASO et al., Defendants.

CAUSE NO. EP-22-CV-161-KC

United States District Court, W.D. Texas, El Paso Division

Signed June 12, 2023

Alexander C. Johnson, Pro Hac Vice, Randall L. Kallinen, Kallinen Law PLLC, Houston, TX, for Plaintiff.

Carlos Gomez Baca, Jr., Maria Guadalupe Martinez, Michael Kyle Lasley, El Paso City Attorney's Office, El Paso, TX, Mathew Jacob Engelbaum, DOJ-USAO, El Paso, TX, for Defendants City of El Paso, Texas, Gregory K. Allen.

James O. Darnell, Sr., Cris Estrada, James (Jeep) O. Darnell, Jr., Jim Darnell, P.C., El Paso, TX, Maria Guadalupe Martinez, El Paso City Attorney's Office, El Paso, TX, for Defendants Oliver Meise, Jarred Frank.

ORDER

Kathleen Cardone, Judge

On this day, the Court considered Defendants City of El Paso and Greg Allen's Motion to Dismiss ("City Motion"), ECF No. 20; Defendant Jarred Frank's Motion to Dismiss ("Frank Motion"), ECF No. 21; and Defendant Oliver Meise's Motion to Dismiss ("Meise Motion"), ECF No. 36 (collectively, the "Motions"). For the reasons set forth below, the City Motion is GRANTED IN PART and DENIED IN PART, the Frank Motion is GRANTED, and the Meise Motion is GRANTED.

I. BACKGROUND

The following facts are derived from Plaintiff Anna Barnes' First Amended Complaint, ECF No. 18, and are taken as true to adjudicate the present Motions. See Calhoun v. Hargrove, 312 F.3d 730, 733-34 (5th Cir. 2002).

On August 27, 2021, Barnes was driving with her five children in the car. 1st Am. Compl. ¶¶ 16-18. She "had just left a stoplight" and was driving slowly when "a gust of wind came through the driver's side window and blew a lit cigarette ash onto her right arm." Id. ¶ 19. As Barnes brushed the ash from her arm, she accidentally drove over a curb and hit a small tree. Id. ¶ 20. The car's airbag did not deploy, and nobody was injured in the accident. Id. ¶¶ 21-22.

Two El Paso police officers, Defendants Frank and Meise, arrived at the scene a few minutes after the accident. Id. ¶ 24. The officers asked Barnes if she was the driver of the vehicle, and Barnes said yes. Id. ¶ 25. Frank then told Barnes to "go over to [ ] Meise[,] who was about twenty feet away." Id. ¶ 26. Meise told Barnes that "she was going to be arrested for [driving while intoxicated] with children in the car under the age of fifteen, a felony." Id. ¶ 27. "This was quite shocking" to Barnes, since no officer had administered any type of sobriety test, and Barnes was not intoxicated. Id.

Barnes started crying "due to the stress of the situation." Id. ¶ 28. Then, without provocation, Frank "came over and used a leg sweep on [Barnes'] legs," causing her to fall to the ground and sustain bruises to her right hip. Id. ¶ 29. Frank then rolled Barnes onto her stomach and put her in handcuffs. Id. Barnes continued to cry, which "seemed to irritate [ ] Frank." Id. ¶ 30. Frank then hit Barnes in the face twice while she was handcuffed. Id. ¶ 30. After Barnes "criticized the excessive force just inflicted upon her[,] Officer Frank started repeatedly striking [Barnes] in the face—over ten more times." Id. "Meise was holding onto [Barnes'] shoulder" while Frank repeatedly struck her. Id. Barnes did not resist the officers or act uncooperatively at any point during her encounter with the police. See id. ¶¶ 27-30.

El Paso EMS arrived and took Barnes to the hospital. Id. ¶ 32. At the hospital, Barnes was diagnosed with "multiple nasal fractures and other injuries." Id. ¶ 33. There is no indication that Barnes suffered any injury to her shoulders. See id. ¶¶ 29, 33, 38. Examinations, including a blood test, revealed that Barnes was sober. See id. ¶¶ 10-11, 33-34.

Based on these allegations, Barnes brought excessive force claims against Frank and Meise under 42 U.S.C. § 1983 and the Fourth and Fourteenth Amendments to the United States Constitution, as well as assault claims under Texas law. Id. ¶¶ 86-87, 92-93. Barnes also brought "bystander liability" claims against Frank and Meise, seeking to hold each officer liable for acquiescing to the other's violations of her constitutional rights. Id. ¶ 91. Finally, Barnes brought municipal and supervisory liability claims against the City of El Paso ("the City") and former El Paso Police Department ("EPPD") Chief Greg Allen (collectively, the "City Defendants"), arguing that their "customs, policies, practices, and procedures" proximately caused the deprivation of constitutional rights she suffered. Id. ¶¶ 88-90.

Each Defendant moves to dismiss some of the claims in Barnes' First Amended Complaint under Federal Rule of Civil Procedure 12(b)(6). See City Mot. 1; Frank Mot. 1; Meise Mot. 1. The City Defendants move to dismiss all claims against them. City Mot. 16. Frank asserts qualified immunity as to all claims but seeks dismissal of only the bystander liability claim against him. Frank Mot. ¶ 12. And Meise asserts qualified immunity as to all claims and seeks dismissal of the excessive force and assault claims against him. Meise Mot. ¶ 14.

II. DISCUSSION

A. Standard

1. Rule 12(b)(6)

A motion to dismiss pursuant to Rule 12(b)(6) challenges a complaint on the basis that it fails to state a claim upon which relief may be granted. Fed. R. Civ. P. 12(b)(6). In ruling on a Rule 12(b)(6) motion, the Court must accept well-pleaded facts as true and view them in a light most favorable to the plaintiff. Hargrove, 312 F.3d at 733; Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000). Though a complaint need not contain "detailed" factual allegations, a plaintiff's complaint must allege sufficient facts "to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007); Colony Ins. Co. v. Peachtree Constr., Ltd., 647 F.3d 248, 252 (5th Cir. 2011). "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, 173 L.Ed.2d 868 (2009).

"[A] plaintiff's obligation to provide the grounds of his entitlement 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, 127 S.Ct. 1955 (citation and internal quotation marks omitted); Colony Ins. Co., 647 F.3d at 252. Ultimately, the "[f]actual allegations [in the complaint] must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (citation omitted). Nevertheless, "a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and 'that a recovery is very remote and unlikely.' " Id. at 556, 127 S.Ct. 1955 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974)).

2. Qualified Immunity

The doctrine of qualified immunity shields government officials from liability "so long as their conduct 'does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.' " Lincoln v. Turner, 874 F.3d 833, 847 (5th Cir. 2017) (quoting Mullenix v. Luna, 577 U.S. 7, 11, 136 S.Ct. 305, 193 L.Ed.2d 255 (2015)). When a defendant invokes qualified immunity, the burden shifts to the plaintiff to demonstrate that the defense does not apply. Id. A plaintiff seeking to defeat qualified immunity must show "(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." Id. at 847-48 (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 735, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011)).

A clearly established right is one that is "sufficiently clear that every reasonable official would have understood that what he is doing violates that right." Id. at 848 (quoting Reichle v. Howards, 566 U.S. 658, 664, 132 S.Ct. 2088, 182 L.Ed.2d 985 (2012)). This inquiry "does not require a case directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate." Id. (quoting al-Kidd, 563 U.S. at 741, 131 S.Ct. 2074). The law can be clearly established despite "notable factual distinctions between the precedents relied on and the cases then before the Court, so long as the prior decisions gave reasonable warning that the conduct then at issue violated constitutional rights." Id. (quoting Flores v. City of Palacios, 381 F.3d 391, 399 (5th Cir. 2004)).

B. Analysis

1. Fourth Amendment excessive force claims

In their briefing, Frank and Meise clarify that they do not seek dismissal of all claims made against them at this stage.¹ See Frank Reply ¶¶ 2, 4, ECF No. 29; Meise Reply ¶¶ 2-4, ECF No. 40. Frank does not seek to dismiss Barnes' excessive force claim against him. See Frank Reply ¶ 4. And Meise does not seek to dismiss Barnes' bystander liability claim against him. Meise Reply ¶ 2. Put differently, Frank and Meise do not contest that Barnes' First Amended Complaint states a claim against both of them arising from Frank's alleged beating of Barnes and Meise's failure to intervene to stop it. See, e.g., Whitley v. Hanna, 726 F.3d 631, 647 (5th Cir. 2013) ("The rationale underlying the bystander liability theory is that a bystanding officer, by choosing not to intervene, functionally participates in the unconstitutional act of his fellow officer." (quoting Randall v. Prince George's Cnty., 302 F.3d 188, 204 n.24 (4th Cir. 2002))).

Instead, the parties dispute whether Meise independently violated Barnes' constitutional rights. Barnes argues that Meise used excessive force when he held her by the shoulder as Frank struck her. See 1st Am. Compl. ¶¶ 30, 86-87; Pl.'s Resp. to Meise Mot. 5-11, ECF No. 37. And because Frank witnessed Meise's shoulder grab and failed to intervene, Barnes contends, Frank can be held liable for Meise's use of force as a bystander....