THE ESTATE OF TAYLOR HUFF et al v. CITY OF ABILENE TEXAS POLICE DEPARTMENT et al

Filing 20

Order Accepting Findings and Recommendations re: 19 Findings and Recommendations on re: 1 Complaint,,,, filed by Lori Strawn, The Estate Of Taylor Huff, Richard Strawn. Defendant's Motion to Dismiss is Granted. By agreement of t he parties, the City of Abilene Police Department is DISMISSED with prejudice for want of jurisdiction under Rule 12(b)(1) because re-pleading these claim would be futile. The remainder of Counts 1-5 are DISMISSED without prejudice for failure to state a claim under Rule 12(b)(6). Plaintiff may file an amended complaint for any claims other than wrongful death or survival claims by October 16, 201. (Ordered by Chief Judge Jorge A Solis on 9/25/2015) (jgf)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
ABILENE DIVISION
THE ESTATE OF TAYLOR HUFF, BY AND
THROUGH LORI STRAWN AND RICHARD
STRAWN, INDIVIDUALLY, AND UPON
BEHALF OF HIS HEIRS,
Plaintiffs,
v.
CITY OF ABILENE TEXAS POLICE
DEPARTMENT, CITY OF ABILENE,
AND LAUREN Q. ADELSPERGER,
Defendants.

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1: 15-CV-001-P

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ORDER
After reviewing all relevant matters of record in this case, including the Report and
Recommendations of the United States Magistrate Judge, in accordance with 28 U.S.C, §
636(b)(1), the Court is of the opinion that the Report and Recommendations of the Magistrate
Judge are correct and they are accepted as the Findings and Conclusions of the Court.
Defendant's Motion to Dismiss is GRANTED. By agreement of the parties, the City of
Abilene Police Department is DISMISSED from suit. All claims for wrongful death or survival
brought under § 1983 are DISMISSED with prejudice for want of jurisdiction under Rule
12(b)(1) because re-pleading these claims would be futile 1• See Stripling v. Jordan Prod. Co.,

LLC, 234 F.3d 863, 873 (5th Cir. 2000) (District court need not give leave to amend if
amendment would be futile.). The remainder of Counts 1-5 are DISMISSED without prejudice
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It is not clear to the Court which claims are being brought pursuant to wrongful death or survival statutes, but the
Plaintiffs did argue wrongful death and survival statutes as a basis for standing in their response. This may mean all
§ 1983 claims are fully dismissed with prejudice, leaving only counts 2 and 5 to be re-pleaded.

Order
1: 15-CV-001-P

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for failure to state a claim under Rule 12(b)(6). Plaintiffs may file an amended complaint for any
claims other than wrongful death or survival claims by October 16, 2015.

IT IS SO ORDERED.

Signed this

.;;L'S",~

day of September, 2015.

~A.~LIS~
UNITED STATES DISTRICT JUDGE

Order
1: 15-CV-001-P
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