Duran v. El Paso Police Dep't

DANIEL ANDRES DURAN, Plaintiff, v. EL PASO POLICE DEPARTMENT, OFFICER VIRGIL MENA,OFFICER VICTOR ALMAZA, Defendants.

NO. EP-19-CV-00335-PRM-MAT

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS EL PASO DIVISION

February 11, 2021

REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE

Before the Court is "Defendant Officer Mena's Amended Motion to Dismiss Plaintiff's Complaint and Brief in Support Thereof" ("Amended Motion"), filed by Defendant Officer Virgil Mena ("Mena") on June 18, 2020. (ECF No. 45). The matter was referred to this Court pursuant to 28 U.S.C. § 636(b) and Rule 1(d) of Appendix C of the Local Rules of the United States District Court for the Western District of Texas for a Report and Recommendation ("R&R") on November 21, 2019, by United States District Judge Philip R. Martinez. (ECF No. 1).

For the reasons set forth below, the Court RECOMMENDS that Defendant Virgil Mena's Amended Motion to Dismiss be GRANTED IN PART and DENIED IN PART.

I. BACKGROUND

A. FACTUAL BACKGROUND¹

In considering the motion, "the plaintiff's complaint is to be construed in a light most favorable to the plaintiff, and the allegations contained therein are to be taken as true."Oppenheimer v. Prudential Secs. Inc., 94 F.3d 189, 194 (5th Cir. 1996).² On May 26, 2019, Plaintiff Daniel Andres Duran ("Duran") was leaving a location off Tierra Este Road and Zaragosa Road, at the shopping center next to Valero. (ECF No. 10, at 4; ECF No. 22, at 2). Plaintiff contends he was walking towards his motor vehicle with his business associates when he realized that he forgot his helmet. (ECF No. 10, at 4; ECF No. 22, at 2). He went back for his helmet, and after retrieving it, sprinted back towards his business associates in order to catch up to them. Id. Plaintiff states he noticed he was being "approached aggressively from a distance by two individuals that didn't announce themselves at any moment." (ECF No. 10, at 4; ECF No. 22, at 2). The two individuals caught Plaintiff's attention by running towards him and yelling, "hey you [,] stop." (ECF No. 10, at 4; ECF No. 22, at 2). Plaintiff contends he "was unable to make out who [the two individuals] were because there were cars in the way." (ECF No. 10, at 4; ECF No. 22, at 2). Plaintiff claims that in "that moment [he] reacted from fear instinct at a fight or flight moment." (ECF No. 10, at 4; ECF No. 22, at 2). The two individuals were Officer Virgil Mena and Officer Victor Almaza³ ("Almaza"). (ECF No. 10, at 4; ECF No. 22, at 2).

Plaintiff asserts that the two officers "both started chasing [him] down for no reason." (ECF No. 10, at 4; ECF No. 22, at 2). Plaintiff states that "[he] was tackled to the ground [by Officer Virgil Mena and Officer Almaza,] which ended in a painful breakage of a bone." (ECF No. 8, at 4). Specifically, Plaintiff claims that Defendant Mena "had [him] pinned down in a bear hug off the wall." (ECF No. 10, at 4; ECF No. 22, at 2). Next, Plaintiff states that Defendant Mena "squeezed harder into [Plaintiff's] ribs taking [his] breath away. (ECF No. 10, at 4; ECF No. 22,at 2). Plaintiff states that Defendant Mena "then dropped [him to the ground] with a [sic] overhead take down manouver [sic]." (ECF No. 22, at 1-2). Plaintiff claims he "was close to blacking out from loss of breath when [Defendant Mena] then kneed [Plaintiff] in the face[,] dropping all his weight [onto Plaintiff] with excessive force." Id. at 2. Plaintiff says that "Almaza had already seen [him] taken down by Officer Mena . . . but still felt the need to stomp on [Plaintiff's] right 'fibula' first causing instant breakage . . . ." Id. a 1. Plaintiff continues to say that Almaza "still stomp[ed] on [Plaintiff's] other foot on [his] left ankle heavily causing refracture." Id. at 2.

While in custody, Plaintiff contends that [he] asked continously [sic] for help on [his] injury for hours." Id at 3. In response to his repeated requests, Plaintiff claims that Mena and Almaza "replied they didn't care about [Plaintiff's injury] and where [sic] not worried about [Plaintiff's] health." (ECF No. 10, at 5; ECF No. 22, at 3). Plaintiff claims that "he was not read [his] Miranda rights . . . and [Mena and Almaza] did not once identify themselves as police officers at any time while [Plaintiff] was being approached." (ECF No. 10, at 5; ECF No. 22, at 3).

B. PROCEDURAL BACKGROUND

On November 21, 2019, Plaintiff filed an initial motion to proceed with this case in forma pauperis. (ECF No. 1). After complying with an order requesting filing of a new affidavit and financial statement, Plaintiff filed a subsequent motion to proceed in forma pauperis on December 13, 2019. (ECF No. 5). Plaintiff's motion was granted on December 19, 2019 (ECF No. 7), and Plaintiff's Complaint was filed into the record. (ECF No. 8). In his Complaint, Plaintiff brings claims against both Mena and Almaza for "excessive use of force," that "they didn't read [Plaintiff his] Miranda rights," and that they did not identify themselves as police officers. (ECF No. 8). Plaintiff seeks compensation for "life long injury and motor vehicle loss asking the court for2,000,000.00." (ECF No. 1, at 3; ECF No. 5-1, at 4). During a screening of Plaintiff's Complaint, the Court issued a questionnaire to further clarify Plaintiff's claims and allegations. (ECF No. 10).

After supplementing his application and updating his address, Plaintiff filed his answers to the questionnaire. (ECF No. 22). Defendants, Officer Virgil Mena and Officer Victor Almaza, were then served. (ECF Nos. 25 & 28). Defendant Mena filed a Motion to Dismiss on May 21, 2020. (ECF No. 40). On May 29, 2020, the Court ordered Defendant Mena to file a supplemental briefing addressing certain factual allegations and extended Plaintiff's deadline to respond to the Motion to Dismiss until fourteen days after Defendant Mena filed the supplemental briefing. (ECF No. 41). However, on June 18, 2020, Defendant Mena instead filed "Defendant Officer Mena's Amended Motion to Dismiss Plaintiff's Complaint and Brief in Support Thereof" ("Amended Motion"). (ECF No. 45). Although the Amended Motion to Dismiss was filed without leave of Court, because it contained all of Defendant Mena's arguments in support of dismissal which were raised in the Original Motion to Dismiss, the Court found it proper to allow the filing of the Amended Motion. (ECF No. 48).

On July 29, 2020, the Court issued an order requiring Plaintiff to only respond to the Amended Motion (ECF No. 45), while simultaneously stating for the record that no response was required for the Original Motion to Dismiss (ECF No. 40). (ECF No. 48). On August 26, 2020, Plaintiff filed "Plaintiff's Memorandum in Opposition to Defendant's Motion to Dismiss." (ECF No. 53). On September 2, 2020, Defendant Mena filed a "Reply to Response to Motion." (ECF No. 55). On February 1, 2021, this Court entered a text order mooting Defendant Mena's Original Motion to Dismiss. (ECF No. 40). Accordingly, this matter is now ripe for disposition.

II. LEGAL STANDARD

A motion to dismiss under Federal Rules of Civil Procedure 12(b)(6) challenges the sufficiency of a pleading to state a claim upon which relief can be granted. To survive a Rule 12(b)(6) motion to dismiss, "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In considering the motion, "the plaintiff's complaint is to be construed in a light most favorable to the plaintiff, and the allegations contained therein are to be taken as true." Oppenheimer v. Prudential Secs. Inc., 94 F.3d 189, 194 (5th Cir. 1996). Moreover, a pro se plaintiff's complaint shall be construed liberally and held to a less stringent standard than those drafted by attorneys. See Windland v. Quarterman, 578 F.3d 314, 316 (5th Cir. 2009); Haines v. Kerner, 404 U.S. 519, 520 (1972). However, the court may not look beyond the complaint to determine whether the plaintiff has stated a legally cognizable claim. Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir. 1999).

III. ANALYSIS

A. QUALIFIED IMMUNITY⁴

Defendant Mena argues that he "is protected from suit under the doctrine of qualified immunity [for] all actions plead by the Plaintiff . . . ." (ECF No. 45, at 6). Qualified immunity protects "state officials from money damages unless a plaintiff pleads facts showing (1) that the official violated a statutory or constitutional right, and (2) that the right was clearly established atthe time of the challenged conduct." Jackson v. City of Hearne, Texas, 959 F.3d 194, 200 (5th Cir. 2020) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011)). "[L]ower courts have discretion to decide which of the two prongs of [the qualified immunity] analysis to tackle first." Jackson, 959 F.3d at 200 (quoting Ashcroft, 563 U.S. at 735). Further, "[t]he plaintiff has the burden of establishing a constitutional violation and overcoming a [qualified immunity] defense." Jackson, 959 F.3d at 201 (citing McClendon v. City of Columbia, 305 F.3d 314, 323 (5th Cir. 2002) (en banc) (per curiam)). To meet this burden, "the plaintiff 'must plead specific facts that both allow the court to draw the reasonable inference that the defendant is liable for the harm he has alleged and that defeat a [qualified immunity] defense with equal specificity.'" Jackson, 959 F.3d at 201 (quoting Backe v. LeBlanc, 691 F.3d 645, 648 (5th Cir. 2012)). "To be clearly established, a right must be sufficiently clear that every reasonable official would have understood that what he is doing violates that right. In other words, existing precedent must have placed the statutory or constitutional question beyond debate." Jackson, 959 F.3d at 200-01 (internal citation omitted) (quoting Reichle v. Howards, 566 U.S. 658, 664 (2012)).

Plaintiff alleges that Defendant Mena "used excessive use of force in a malicious...