Ramirez v. Fonseca

331 F.Supp.3d 667

Francisco RAMIREZ, Plaintiff,

v.Leon FONSECA and City of El Paso, Defendants.

EP-18-CV-33-KC

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

Signed August 6, 2018

Joseph Robert Veith, Law Office of Joseph R. Veith, El Paso, TX, for Plaintiff.

James O. Darnell, James (Jeep) O. Darnell, Jr., Jim Darnell, P.C., Maria Guadalupe Martinez, Oscar Guillermo Gabaldon, Jr., El Paso City Attorney's Office, El Paso, TX, Lowell F. Denton, Patrick Charles Bernal, Denton Navarro Rocha Bernal, & Zech, PC, San Antonio, TX, Scott M. Tschirhart, Denton Navarro Rocha Bernal & Zech, P.C., Austin, TX, for Defendants.

ORDER

KATHLEEN CARDONE, UNITED STATES DISTRICT JUDGE

On this day, the Court considered Defendant Leon Fonseca's ("Defendant") Motion to Dismiss, ECF No. 15, in the above-captioned case. For the reasons set forth herein, the Motion is DENIED .

I. BACKGROUND

The following facts are alleged in Plaintiff Francisco Ramirez's ("Plaintiff") Original Complaint ("Complaint") and, at this stage in the proceedings, are accepted by the Court as true. See Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). On November 5, 2016, Plaintiff, who suffered from clinical depression, was taking a nap in his van, which was parked in the backyard of his home. Compl. ¶¶ 8–9. His estranged wife, Vanessa Duarte, who was living elsewhere at the time, came to his home and found him asleep in the van. Id. ¶ 9. Concerned about Plaintiff's mental state and worried he may harm himself, Ms. Duarte left the home and called 911 to request assistance for Plaintiff, whom she described as being suicidal and in need of help. Id. ¶¶ 9–10. Ms. Duarte did not allege that any crime had been committed. Id. ¶ 10.

Approximately two hours later, Defendant responded to the 911 call and parked in the driveway at the front of Plaintiff's home. Id. ¶ 11. Plaintiff, still in the backyard, was not visible from the front of the house. Id. Rather than knock on the front door or otherwise announce his presence to the residents of the home, Defendant opened a closed metal gate to gain access to the backyard without a warrant and without the consent of any resident of the property. Id. ¶¶ 11–13. Defendant searched the premises, again without a warrant or permission to search. Id. ¶ 15.

Defendant found Plaintiff alone in the backyard, sitting on the ground behind a "large van." Id. ¶ 14. Plaintiff was holding a "standard sized" box cutter, which was "small in length." Id. ¶ 15. When Defendant noticed the box cutter, he took cover behind a dumpster approximately eighteen feet from where Defendant sat. Id. At this point, Defendant was separated from Plaintiff by both the dumpster and the van. Id. The exit to the property was directly behind Defendant and was unobstructed, and two additional exit routes were readily accessible to Defendant. Id. ¶ 18.

Defendant removed his firearm from its holster, pointed it at Plaintiff, and began "screaming" orders at him. Id. ¶ 16. Confused, Plaintiff repeatedly asked Defendant to leave his home and leave him alone. Id. ¶ 17. In an attempt to make Defendant lower his weapon and leave, Plaintiff held the box cutter to his own throat and threatened to harm himself. Id. Plaintiff did not make any aggressive movements towards Defendant, and remained approximately eighteen feet from Defendant while holding the box cutter to his own throat. Id. Plaintiff's brother, Javier Romero, entered the backyard and repeatedly asked Defendant to allow him to speak with Plaintiff to de-escalate the situation. Id. ¶ 20. Defendant refused to allow this, and instead pointed his gun at Mr. Romero.

Suddenly, and without provocation, Defendant fired several shots at Plaintiff. Id. ¶ 22. These initial shots missed. Id. Plaintiff, in fear for his life, ran away from Defendant to take cover behind his van. Id. ¶ 23. Defendant followed Plaintiff behind the van, where Plaintiff stumbled and fell. Id. Defendant then fired another shot at Plaintiff, which struck Plaintiff in the face as he lay on the ground. Id.

Defendant made no attempt to render aid to Plaintiff after shooting him in the face at close range. Id. ¶ 25. Approximately twenty minutes after the shooting, emergency personnel arrived and discovered Plaintiff lying on the ground, unconscious and bleeding. Id. ¶ 26. Plaintiff was found behind the van and approximately ten and a half feet from the dumpster that Defendant was hiding behind when he fired his first shots. Id. ¶ 24. Specifically, Plaintiff was found on the opposite end of the van from where the shooting began, and on the far side of the van from where Defendant stood before he began firing. Id.

Plaintiff was transported to the hospital, where he was found to have multiple exit and entry wounds to his face and body. Id. ¶ 24. As a result of the shooting, Plaintiff is now mostly blind in his left eye and has significantly impaired function in his right arm. Id. ¶ 27. Plaintiff also suffered deformities to his face and arm, and continues to experience significant physical and mental health problems due to his injuries. Id.

On January 26, 2018, Plaintiff filed suit in this Court against Defendant and the City of El Paso under 42 U.S.C. § 1983, stating claims for excessive force and unlawful entry. Id. ¶ 1. Defendant filed his Motion on June 4, 2018, asserting the defense of qualified immunity for both claims, and Plaintiff filed his Response, ECF No. 21, on June 30, 2018. Defendant filed his Reply, ECF No. 22, on July 9, 2018. The Motion is now ripe for consideration.

II. DISCUSSION

A. Standards

1. 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. Calhoun v. Hargrove , 312 F.3d 730, 733 (5th Cir. 2002) ; 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, 555, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (internal quotation marks omitted) (quoting Papasan v. Allain , 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986) ); 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." Iqbal , 556 U.S. at 678, 129 S.Ct. 1937.

"[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 ; 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 (internal 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 acting within their discretionary authority from liability when their conduct does not violate clearly established statutory or constitutional law of which a reasonable person would have known." Goodman v. Harris Cty. , 571 F.3d 388, 395 (5th Cir. 2009) (quoting Wallace v. Cty. of Comal , 400 F.3d 284, 289 (5th Cir. 2005) ) (internal quotation marks omitted). Determining whether a party is entitled to qualified immunity is a two-step process: " ‘[T]he first step is to determine whether plaintiff alleged a violation of a clearly established constitutional right’ and ‘[t]he second step requires determining whether ... the official's conduct was objectively reasonable under clearly established law existing at the time of the incident.’ " Id. (second and third alterations in original) (emphasis omitted) (quoting Bazan ex rel. Bazan v. Hidalgo Cty. , 246 F.3d 481, 490 (5th Cir. 2001) ).

B. Excessive Force

Plaintiff alleges that Defendant "deprived [Plaintiff] of his rights under the Fourth and Fourteenth Amendment of the United States Constitution by intentionally using an objectively unreasonable and excessive amount of deadly force." Compl. ¶ 117. Defendant asserts that he is entitled to qualified immunity on this claim because Plaintiff has not shown that his conduct violated Plaintiff's clearly established constitutional rights or that the force he used was clearly excessive or objectively unreasonable. Mot. ¶ 18.

1. Defendant's use of force against Plaintiff violated a clearly established constitutional right

The Supreme Court has held that, where an "excessive force claim arises in the context of an arrest or investigatory stop of a free citizen, it is most properly characterized as one invoking the protections of the Fourth Amendment, which guarantees citizens the right ‘to be secure in their persons ... against unreasonable ... seizures’ of the person." Graham v. Connor , 490 U.S. 386, 394, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) (alterations in original). Therefore, to bring a § 1983 excessive force claim under the Fourth Amendment, a plaintiff must first show that he was seized. See id. at 388, 109 S.Ct. 1865 ; Flores v. City of Palacios , 381 F.3d 391, 396 (5th Cir. 2004). Next he must show that he suffered (1) an injury that (2) resulted directly and only from the use of force that was excessive to the need and that (3) the...