Linicomn v. City of Dallas et al

Filing 22

MEMORANDUM OPINION AND ORDER granting 18 MOTION for Judgment on the Pleadings filed by City of Dallas, and granting 19 MOTION for Judgment on the Pleadings filed by Maurico Hill, Cheryl Matthews, and granting plaintiff leave to replead. (Ordered by Judge Sidney A Fitzwater on 9/25/2015) (Judge Sidney A Fitzwater)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
VERNON LINICOMN,
Plaintiff,
VS.
CITY OF DALLAS, et al.,
Defendants.

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§ Civil Action No. 3:14-CV-0777-D
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MEMORANDUM OPINION
AND ORDER
In this action under 42 U.S.C. § 1983 alleging constitutional violations arising from
police officers’ warrantless entry into a residence and use of force, and a city’s alleged
negligent training and supervision of the police officers, plaintiff has filed a Fed. R. Civ. P.
7(a) reply to address the police officers’ defense of qualified immunity, and two police
officers and the city move under Rule 12(c) for judgment on the pleadings. For the reasons
that follow, the court grants defendants’ motions and also grants plaintiff leave to replead.
I
Plaintiff Vernon Linicomn (“Linicomn”) sues defendants Maurico Hill (“Officer
Hill”), Cheryl Matthews (“Officer Matthews”), three unidentified officers of the Dallas
Police Department (“Does 1-3”) (collectively, the “Officers”), and the City of Dallas (“the
City”), alleging claims under § 1983 against the Officers for entering his residence without

a warrant and using excessive force against him,1 and against the City for negligently training
and supervising the Officers.2
On the night of October 23, 2011, Officers Hill and Matthews were dispatched to
Linicomn’s residence in response to a 911 call from Linicomn’s former wife, Linda
Linicomn (“Linda”). When Officers Hill and Matthews arrived, Linda informed them that
her 11 year old daughter was sick and inside the residence with Linicomn. City firefighters
and paramedics who were already on the scene informed Officers Hill and Matthews that
they had attempted unsuccessfully to enter the residence to assist the child. Officer Hill
knocked loudly on the front door several times, announcing himself as a Dallas police officer
and requesting entry, but no one responded. Officer Hill then contacted his supervisor,
Sergeant Melquiades Irizarry (“Sgt. Irizarry”) (believed to be Doe 1), who came to the scene.

1

This case was removed from state court, so Linicomn’s operative pleading is his
amended petition (“petition”). Although count 1 of the petition is entitled “Violations of 42
USC § 1942,” Linicomn alleges in count 1 that Officers Hill and Matthews, and Doe 1, are
liable “pursuant to 42 USC § 1983.” Am. Pet. 2. The court also assumes that Linicomn
intends to plead an excessive force claim against the Officers based on his allegations that
they “assaulted [him], causing great bodily harm,” in violation of his “rights enshrined in the
United States Constitution” (count 1), and “batter[ed] him without justification or excuse,”
in violation of “the constitutional and civil rights of Plaintiff” (count 2). Am. Pet. ¶¶ 6, 10.
The court interprets counts 1 and 2 to be somewhat redundant. Count 1 appears to allege
claims for a warrantless entry and excessive use of force, in violation of the Fourth and
Fourteenth Amendments, and actionable under 42 U.S.C. § 1983 against Officers Hill and
Matthews, and Doe 1. Count 2 appears to allege the same claims against Officers Hill and
Matthews, and Does 1-3.
2

The petition titles count 3 as “Violations of 42 USC § 1943” but Linicomn asserts in
count 3 that the City “is in violation of 42 USC § 1983.” Am. Pet. 3. The court does not
construe count 3 to allege a state law claim for negligence against the City.
-2-

Eventually, Linicomn, irate and upset, opened his front door and spoke with Sgt.
Irizarry. Sgt. Irizarry asked if the officers and paramedics could enter the residence to check
on Linicomn’s daughter. Linicomn stated that his daughter was asleep, refused to allow
anyone to enter, and attempted to close the door. As Sgt. Irizarry and Officer Hill tried to
stop Linicomn from closing the door, Sgt. Irizarry grabbed Linicomn and followed him
inside. Officer Matthews entered the residence but stayed near the front door to secure the
front room. When Linicomn got out of Sgt. Irizarry’s grasp and attempted to run to another
area inside the residence, Officer Hill grabbed him and tried to get him to the ground.
Officer Hill and Linicomn struggled until Sgt. Irizarry sprayed Linicomn with pepper spray.
Linicomn stopped resisting and fell to the ground. Officer Hill then placed Linicomn in
handcuffs, and Officers Hill and Matthews assisted Linicomn outside the residence where
he was treated at the scene by the paramedics.
Linicomn filed suit in Texas state court, which dismissed with prejudice his state law
claims against Officers Hill and Matthews for assault and battery. After defendants removed
the action to this court, Officers Hill and Matthews filed amended answers, affirmatively
pleading the defense of qualified immunity, and moved the court to require Linicomn to file
a Rule 7(a) reply that addressed the defense. On August 1, 2014 the court granted the motion
and ordered that Linicomn file a Rule 7(a) reply to “all assertions of immunity,” Aug. 1, 2014

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Order at 1, which Linicomn did.3 Officers Hill and Matthews now jointly move under Rule
12(c) for judgment on the pleadings, contending that Linicomn has failed to state a claim on
which relief can be granted, or, alternatively, to plead facts that are sufficient to overcome
their qualified immunity defense. The City separately moves under Rule 12(c) for judgment
on the pleadings, contending that Linicomn has failed to state a claim on which relief can be
granted. Linicomn opposes Officers Hill and Matthews’ motion. He did not respond to the
City’s motion. Both are now ripe for decision.
II
Rule 12(c) provides that “[a]fter the pleadings are closed-but early enough not to delay
trial-a party may move for judgment on the pleadings.” The standard for deciding a motion
under Rule 12(c) is the same as the one for deciding a motion to dismiss under Rule 12(b)(6).
See Great Plains Trust Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 313 n.8 (5th
Cir. 2002) (“A number of courts have held that the standard to be applied in a Rule 12(c)
motion is identical to that used in a Rule 12(b)(6) motion.” (citation and internal quotation

3

Officers Hill and Matthews separately filed amended answers (“answers”) to
Linicomn’s petition, and Linicomn filed a “Reply to Defendants’ Answer.” Officer
Matthews is the only defendant expressly mentioned in the reply and “answer” is singular
tense. Additionally, ¶ 2.7.7 of Officer Matthews’ answer and ¶ 2.7.8 of Officer Hill’s answer
are essentially identical, but ¶ 8(g) of Linicomn’s reply admits to the allegations in 2.7.7
while ¶ 8(h) denies the allegations in 2.7.8. Because it is illogical that Linicomn would admit
to and deny the same facts, the court assumes that Linicomn intends only to admit and deny
the allegations in Officer Matthews’ answer. Because his reply uses the plural tense to refer
to “Defendants,” and Officers Hill and Matthews’ answers are identical in most respects, the
court assumes that Linicomn intends his reply to respond to both Officers Hill and Matthews’
qualified immunity defense.
-4-

marks omitted)).
Under Rule 12(b)(6), the court evaluates the pleadings by “accept[ing] ‘all
well-pleaded facts as true, viewing them in the light most favorable to the plaintiff[s].’” In
re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007) (quoting Martin K. Eby
Constr. Co. v. Dall. Area Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004)). To survive
defendants’ motions, plaintiff’s pleadings must allege enough facts “to state a claim to relief
that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “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 (2009). “The plausibility standard is not akin to a
‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has
acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 556); see also Twombly, 550 U.S. at
555 (“Factual allegations must be enough to raise a right to relief above the speculative
level[.]”). “[W]here the well-pleaded facts do not permit the court to infer more than the
mere possibility of misconduct, the complaint has alleged-but it has not ‘shown’—‘that the
pleader is entitled to relief.’” Iqbal, 556 U.S. at 679 (alteration omitted) (quoting Rule
8(a)(2)). Furthermore, under Rule 8(a)(2), a pleading must contain “a short and plain
statement of the claim showing that the pleader is entitled to relief.” Although “the pleading
standard Rule 8 announces does not require ‘detailed factual allegations,’” it demands more
than “‘labels and conclusions.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555).
And “‘a formulaic recitation of the elements of a cause of action will not do.’” Id. (quoting
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Twombly, 550 U.S. at 555).
III
The court considers first whether the City is entitled to judgment on the pleadings.
A
A municipality is a “person” subject to suit under § 1983 under certain circumstances.
See Monell v. Dep’t of Soc. Servs. of N.Y., 436 U.S. 658, 690 (1978). Although a
municipality cannot be held liable simply on a theory of respondeat superior, id. at 691, it can
be held liable if a deprivation of a constitutional right was inflicted pursuant to an official
policy or custom. Piotrowski v. City of Houston, 237 F.3d 567, 579 (5th Cir. 2001).
Municipal liability requires proof of three elements: “(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)) (some internal quotation marks omitted).
The first element requires that Linicomn adequately plead an official policy or custom.
“[A] policy can be shown through evidence of an actual policy, regulation, or decision that
is officially adopted and promulgated by lawmakers or others with policymaking authority.”
Id. at 542 (citing Burge v. St. Tammany Parish, 336 F.3d 363, 369 (5th Cir. 2003)).
Although a “single decision by a policy maker may, under certain circumstances, constitute
a policy for which a municipality may be liable[,] . . . this ‘single incident exception’ is
extremely narrow and gives rise to municipal liability only if the municipal actor is a final
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policymaker.” Id. (citations, brackets, and some internal quotation marks omitted). A
custom is “a persistent, widespread practice of City officials or employees, which, although
not authorized by officially adopted and promulgated policy, is so common and well-settled
as to constitute a custom that fairly represents municipal policy.” Piotrowski, 237 F.3d at
579 (quoting Webster v. City of Houston, 735 F.2d 838, 841 (5th Cir. 1984) (en banc) (per
curiam)).
To satisfy the second element, Linicomn must adequately plead that “actual or
constructive knowledge of a custom [is] attributable to the governing body of the
municipality or to an official to whom that body has delegated policy-making authority.”
Valle, 613 F.3d at 542 (brackets omitted) (quoting Webster, 735 F.2d at 842); Piotrowski,
237 F.3d at 579. Liability attaches only when a final policymaker (as distinguished from a
final decisionmaker), who has “the responsibility for making law or setting policy in any
given area of a local government’s business,” establishes the municipal policy with respect
to the action ordered. City of St. Louis v. Praprotnik, 485 U.S. 112, 125 (1988); see also
Bolton v. City of Dallas, 541 F.3d 545, 548-49 (5th Cir. 2008) (per curiam) (“Our analysis
must also take into account the difference between final decisionmaking authority and final
policymaking authority, a distinction that this circuit recognized as fundamental. . . .
[D]iscretion to exercise a particular function does not necessarily entail final policymaking
authority over that function.” (citations omitted)); Jett v. Dall. Indep. Sch. Dist., 7 F.3d 1241,
1247 (5th Cir. 1993) (explaining distinction between final policymaking authority and mere
decisionmaking).
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The third element requires that Linicomn adequately plead that the municipal policy
or custom was the “moving force” of the constitutional deprivation, which requires a “high
threshold of proof.” Piotrowski, 237 F.3d at 580 (citing Monell, 436 U.S. at 694). The
“plaintiff must show that the municipal action was taken with the requisite degree of
culpability and must demonstrate a direct causal link between the municipal action and the
deprivation of federal rights.” Valle, 613 F.3d at 542 (quoting Bd. of Cnty. Comm’rs v.
Brown, 520 U.S. 397, 404 (1997)) (internal quotation marks omitted). Linicomn therefore
“must demonstrate that a municipal decision reflects deliberate indifference to the risk that
a violation of a particular constitutional or statutory right will follow the decision.” Id.
(quoting Brown, 520 U.S. at 411) (internal quotation marks omitted); see also Piotrowski,
237 F.3d at 579 (quoting Brown, 520 U.S. at 407) (“[E]ven a facially innocuous policy will
support liability if it was promulgated with deliberate indifference to the ‘known or obvious
consequences’ that constitutional violations would result.”). Simple or even heightened
negligence, however, is insufficient to meet the deliberate indifference requirement.
Piotrowski, 237 F.3d at 579 (quoting Brown, 520 U.S. at 407).
“Failure to train is a separate theory of municipal liability, but the same standard
applies both to a failure to train claim and to a municipal liability claim.” Byers v. Navarro
Cnty., 2012 WL 677203, at *16 (N.D. Tex. Mar.1, 2012) (Fitzwater, C.J.) (citations omitted);
see also Roberts v. City of Shreveport, 397 F.3d 287, 293 (5th Cir. 2005). “The failure to
provide proper training may fairly be said to represent a policy for which the city is
responsible, and for which the city may be held liable if it actually causes injury.” Brown
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v. Bryan Cnty., 219 F.3d 450, 457 (5th Cir. 2000) (quoting City of Canton v. Harris, 489 U.S.
378, 390 (1989)). “In resolving the issue of a city’s liability, the focus must be on adequacy
of the training program in relation to the tasks the particular officers must perform.” City of
Canton, 489 U.S. at 390. To establish this claim, Linicomn must prove that “‘(1) the training
procedures were inadequate; (2) the [City’s] policymaker was deliberately indifferent in
adopting the training policy; and (3) the inadequate training policy directly caused
[Linicomn’s] injury.’” Byers, 2012 WL 677203, at *16 (quoting Carnaby v. City of Houston,
636 F.3d 183, 189 (5th Cir. 2011)).
B
The City contends that Linicomn has not sufficiently pleaded the elements of a § 1983
claim. It maintains that Linicomn’s pleadings only assert conclusory allegations against it.
The City also posits that Linicomn has failed to plead any facts regarding the City’s policies
or customs, any facts that identify the City’s final policymaker for its police department or
that would allow the court to determine its final policymaker, and any facts showing that the
City’s policies or customs were the “moving force” and actual cause of his damages. The
City also asserts that it cannot be held liable under § 1983 as a matter of law for mere
“negligence” on the part of its final policymaker. As noted above, Linicomn has not
responded to the City’s motion.
C
The court holds that Linicomn has not stated a plausible § 1983 claim against the City.
Linicomn’s petition makes only conclusory and boilerplate allegations regarding the City:
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Defendant CITY OF DALLAS was negligent in the manner by
which it trained and supervised its employees. Said defendant
was under a duty to Plaintiff, as a resident and cit[izen] of the
City of Dallas, to supervise and train its police officers with
respect to the civil rights of the members of the community and
their obligations to respect such rights. Further, the City of
Dallas is under a duty to properly supervise its police officers so
that such officers do not commit violations of the civil and
constitutional rights of the people. Said failure by the City of
Dallas is in violation of 42 USC §1983.
Am. Pet. ¶ 12. Linicomn has not alleged any facts supporting the three elements that are
required to hold the City liable under § 1983 for failure to train and supervise its police
officers, i.e.,“‘(1) the training procedures were inadequate; (2) the [City’s] policymaker was
deliberately indifferent in adopting the training policy; and (3) the inadequate training policy
directly caused [Linicomn’s] injury.’” Byers, 2012 WL 677203, at *16 (quoting Carnaby,
636 F.3d at 189).
Moreover, even if Linicomn had plausibly pleaded that the City negligently trained
and supervised its employees, this would not alone plead a plausible § 1983 claim. This is
so because “the inadequate training of police officers [can] be characterized as the cause of
the constitutional tort if—and only if—the failure to train amount[s] to ‘deliberate
indifference’ to the rights of persons with whom the police come into contact.” Collins v.
City of Harker Heights, 503 U.S. 115, 123-24 (1992) (citing City of Canton, 489 U.S. at 388)
(emphasis added). “Deliberate indifference” is a “stringent standard, requiring proof that a
municipal actor disregarded a known or obvious consequence of his action,” for which “[a]
showing of simple or even heightened negligence will not suffice.” Valle, 613 F.3d at 543,

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547. To plausibly plead deliberate indifference, Linicomn must adequately allege that
in light of the duties assigned to specific officers or employees
the need for more or different training is so obvious, and the
inadequacy so likely to result in the violation of constitutional
rights, that the policymakers of the city can reasonably be said
to have been deliberately indifferent to the need.
Id. at 547 (quoting City of Canton, 489 U.S. at 390) (internal quotation marks omitted).
Simple or even heightened negligence is insufficient to meet the deliberate indifference
standard. Piotrowski, 237 F.3d at 579 (quoting Brown, 520 U.S. at 407). Accordingly, the
City is entitled to judgment on the pleadings dismissing Linicomn’s § 1983 negligent training
and supervising claim.
IV
The court now considers whether Officers Hill and Matthews are entitled to judgment
on the pleadings based on the defense of qualified immunity.
A
Qualified immunity jurisprudence is well settled. “[G]overnment officials performing
discretionary functions generally are shielded from liability for civil damages insofar as their
conduct does not violate clearly established statutory or constitutional rights of which a
reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
Qualified immunity applies to state officials sued for constitutional violations under § 1983.
See id. at 818 n.30 (citing Butz v. Economou, 438 U.S. 478, 504 (1978)); Palmer v. Johnson,
193 F.3d 346, 351 (5th Cir. 1999). “The Supreme Court has characterized the doctrine as
protecting ‘all but the plainly incompetent or those who knowingly violate the law.’” Cozzo
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v. Tangipahoa Parish Council–President Gov’t, 279 F.3d 273, 284 (5th Cir. 2002) (quoting
Malley v. Briggs, 475 U.S. 335, 341 (1986)).
“To decide whether defendants are entitled to qualified immunity, the court must first
answer the threshold question whether, taken in the light most favorable to plaintiff[] as the
part[y] asserting the injuries, the facts [he has] alleged show that defendants’ conduct
violated a constitutional right.” Ellis v. Crawford, 2005 WL 525406, at *3 (N.D. Tex. Mar.3,
2005) (Fitzwater, J.) (citing Saucier v. Katz, 533 U.S. 194, 201 (2001) (“A court required to
rule upon the qualified immunity issue must consider, then, this threshold question: Taken
in the light most favorable to the party asserting the injury, do the facts alleged show the
officer’s conduct violated a constitutional right? This must be the initial inquiry.”)).4 “If no
constitutional right would have been violated were the allegations established, there is no
necessity for further inquiries concerning qualified immunity.” Saucier, 533 U.S. at 201.
“[I]f a violation could be made out on a favorable view of the parties’ submissions, the next,
sequential step is to ask whether the right was clearly established.” Id. “Even if the
government official’s conduct violates a clearly established right, the official is nonetheless
entitled to qualified immunity if his conduct was objectively reasonable.” Wallace v. Cnty.
of Comal, 400 F.3d 284, 289 (5th Cir. 2005). “The objective reasonableness of allegedly

4

Saucier’s two-step procedure for determining qualified immunity is no longer
mandatory. See Pearson v. Callahan, 555 U.S. 223, 232 (2009). Courts are free to consider
Saucier’s second prong without first deciding whether the facts show a constitutional
violation. Id. The “decision does not prevent the lower courts from following the Saucier
procedure; it simply recognizes that those courts should have the discretion to decide whether
that procedure is worthwhile in particular cases.” Id. at 242.
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illegal conduct is assessed in light of the legal rules clearly established at the time it was
taken.” Salas v. Carpenter, 980 F.2d 299, 310 (5th Cir. 1992) (citing Anderson v. Creighton,
483 U.S. 635, 639 (1987)). “‘The defendant’s acts are held to be objectively reasonable
unless all reasonable officials in the defendant’s circumstances would have then known that
the defendant’s conduct violated the’ plaintiff’s asserted constitutional or federal statutory
right.” Cozzo, 279 F.3d at 284 (quoting Thompson v. Upshur Cnty., 245 F.3d 447, 457 (5th
Cir. 2001)).
“[W]hen a plaintiff sues a public official under § 1983, the district court must insist
on heightened pleading by the plaintiff.” Morin v. Caire, 77 F.3d 116, 121 (5th Cir. 1996)
(citing Schultea v. Wood, 47 F.3d 1427, 1433 (5th Cir. 1995) (en banc)). Although a plaintiff
may comply with ordinary pleading standards in his initial complaint, and need not anticipate
a qualified immunity defense, “[w]hen a public official pleads the affirmative defense of
qualified immunity in his answer, the district court may, on the official’s motion or on its
own, require the plaintiff to reply to that defense in detail” pursuant to Rule 7(a). Schultea,
47 F.3d at 1433. “[T]he reply must be tailored to the assertion of qualified immunity and
fairly engage its allegations.” Id. “Heightened pleading requires allegations of fact focusing
specifically on the conduct of the individual who caused the plaintiffs’ injury.” Reyes v.
Sazan, 168 F.3d 158, 161 (5th Cir. 1999). The case should not be allowed to proceed unless
plaintiff can assert specific facts that, if true, would overcome the defense. See Morin, 77
F.3d at 120 (“Public officials are entitled to qualified immunity from suit under § 1983 unless
it is shown by specific allegations that the officials violated clearly established law.”);
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Schultea, 47 F.3d at 1434 (“The district court need not allow any discovery unless it finds
that plaintiff has supported his claim with sufficient precision and factual specificity[.]”).
The “district court’s discretion not to [require a Rule 7(a) reply] is narrow indeed when
greater detail might assist.” Schultea, 47 F.3d at 1434; see also Reyes, 168 F.3d at 161
(“Faced with sparse details of claimed wrongdoing by officials, trial courts ought routinely
require plaintiffs to file a reply under [Rule] 7(a) to qualified immunity defenses.”).
B
Officers Hill and Matthews maintain that they are entitled to judgment on the
pleadings as to Linicomn’s warrantless entry and excessive force claims because the
pleadings fail to adequately state facts sufficient to defeat their qualified immunity defense.
The court will assume arguendo that Linicomn has sufficiently alleged violations of clearly
established constitutional rights—that Officers Hill and Matthews entered Linicomn’s
residence without a warrant or under a recognized exception to the warrant requirement5 and
that they used excessive force against him, in violation of the Fourth Amendment.6 See Ellis,

5

“The general rule under the Fourth Amendment is that searches of private property
are unreasonable unless they are conducted pursuant to a warrant issued upon probable cause
or fall within one of the limited exceptions to the warrant requirement.” Livecchi v. City of
Grand Prairie, 2009 WL 306123, at *6 (N.D. Tex. Feb. 9, 2009) (Fitzwater, C.J.) (quoting
Stoner v. State of California, 376 U.S. 483, 486 (1964)).
6

“The Fourth Amendment’s protection against unreasonable seizures of the person has
been applied in causes of action under 42 U.S.C. § 1983 to impose liability on police officers
who use excessive force against citizens.” Wright v. City of Garland, 2014 WL 5878940,
at *8 (N.D. Tex. Nov. 13, 2014) (Fitzwater, J.) (quoting Colston v. Barnhart, 130 F.3d 96,
102 (5th Cir. 1997)).
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2005 WL 525406, at *3 (citing Saucier, 533 U.S. at 201) (“To decide whether defendants are
entitled to qualified immunity, the court must first answer the threshold question whether,
taken in the light most favorable to plaintiff[] as the part[y] asserting the injuries, the facts
[he has] alleged show that defendants’ conduct violated a constitutional right.”); see also
Pearson v. Callahan, 555 U.S. 223, 232 (2009) (“Courts are free to consider Saucier’s
second prong without first deciding whether the facts show a constitutional violation.”).7
Thus the only question is whether Officers Hill and Matthews’ conduct was objectively
reasonable in light of the clearly established law at the time. See Wallace, 400 F.3d at 289
(“Even if the government official’s conduct violates a clearly established right, the official
is nonetheless entitled to qualified immunity if his conduct was objectively reasonable.”).
For Linicomn to overcome Officers Hill and Matthews’ qualified immunity defense, the
factual allegations in his pleadings, if true, must demonstrate that Officers Hill and Matthews
were objectively unreasonable (1) in their belief that entering Linicomn’s residence without
a warrant was supported by exigent circumstances, or (2) in their belief that their use of force
against Linicomn was not excessive.
1
Linicomn alleges in his petition that Officers Hill and Matthews “entered [his] home
without a warrant” and “in the absence of any recognized exception to the rule that a warrant

7

Because Officers Hill and Matthews’ motion for judgment on the pleadings can be
decided without deciding this question, the court has not reached, and expresses no view
about, whether Linicomn has sufficiently alleged violations of clearly established
constitutional rights based on the warrantless entry and alleged excessive use of force.
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is required to enter a residence without the consent of the occupant.” Am. Pet. ¶ 5. Officers
Hill and Matthews maintain, however, that the warrantless entry was justified because
“probable cause existed to believe that an injured person was inside Linicomn’s home.”
Matthews Am. Answer ¶ 2.3. “A warrantless entry and search of a person’s home can be
justified . . . if there is probable cause and exigent circumstances.” United States v.
Thompson, 2012 WL 1161609, at *2 (N.D. Tex. Apr. 9, 2012) (Fitzwater, C.J.) (citations
omitted). One such exigency is “‘the need to assist persons who are seriously injured or
threatened with such injury.’” Michigan v. Fisher, 558 U.S. 45, 47 (2009) (quoting Brigham
City v. Stuart, 547 U.S. 398, 403 (2006)). Thus “law enforcement officers may enter a home
without a warrant to render emergency assistance to an injured occupant or to protect an
occupant from imminent injury.” City & Cnty. of San Francisco v. Sheehan, ___ U.S. ___,
135 S. Ct. 1765, 1774-75 (2015) (citing Brigham City, 547 U.S. at 403). “This ‘emergency
aid exception’ does not depend on the officers’ subjective intent or the seriousness of any
crime they are investigating when the emergency arises.” Fisher, 558 U.S. at 47 (quoting
Brigham City, 547 U.S. at 404-05). “It requires only an ‘objectively reasonable basis for
believing’ that ‘a person within [the house] is in need of immediate aid[.]’” Id. (alteration
in original) (quoting other sources).

Additionally, “[t]o determine whether exigent

circumstances justify a warrantless entry, the court must focus upon the reasonableness of
the officer’s actions in light of the circumstances of the scene as it would appear to a
reasonable person standing in the shoes of the officer.” Thompson, 2012 WL 1161609, at
*3 (citing United States v. Blount, 123 F.3d 831, 838 (5th Cir. 1997)). “If reasonable minds
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could differ, the courts should not second-guess the judgment of experienced law
enforcement officers concerning the risks of a particular situation.” Id.
Linicomn asserts in his Rule 7(a) reply that it was objectively unreasonable for
Officers Hill and Matthews to believe based solely on the allegations of Linda—a woman
who “was known by the City of Dallas to be mentally ill” and who “had made numerous
prior complaints [to] the City of Dallas resulting in police action,” which “had all been
shown to have been groundless”—that exigent circumstances justified entering his residence
without a warrant. Rule 7(a) Reply ¶ 8(d). Linicomn also maintains that, knowing this
information about Linda, Officers Hill and Matthews should have determined whether her
complaint was meritorious before making a warrantless entry. Id.
These facts, viewed in the light most favorable to Linicomn, are insufficient to
demonstrate that it was objectively unreasonable for Officers Hill and Matthews to enter
Linicomn’s residence without a warrant. Linicomn alleges only that the City knew of
Linda’s mental illness and prior groundless complaints, not that either Officer Hill or Officer
Matthews knew this information. Linicomn does not plead any other facts to show it was
objectively unreasonable for Officers Hill and Matthews to take Linda’s 911 call and
complaint seriously or to otherwise believe that exigent circumstances (i.e., a sick child
inside the residence in need of medical attention) existed to justify a warrantless entry.8 Thus

8

Because the court reaches its conclusion based on the “emergency aid exception” to
the rule requiring a warrant to enter a residence, it need not address Officers Hill and
Matthews’ contention that the “safety exception” also applies.
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Linicomn has not met his burden of pleading sufficient facts to plausibly establish that
Officers Hill and Matthews’ conduct was objectively unreasonable. See Byers, 2012 WL
677203, at *2 (citing McClendon v. City of Columbia, 305 F.3d 314, 323 (5th Cir. 2002) (en
banc) (per curiam)) (“Once qualified immunity is asserted, the burden shifts to the plaintiff
to demonstrate the inapplicability of the defense.”).
2
Regarding his excessive force claim, Linicomn alleges in his petition that Officers Hill
and Matthews “assaulted [him], causing great bodily harm” and “batter[ed] him without
justification or excuse.” Am. Pet. ¶¶ 6, 10. Officers Hill and Matthews contend, however,
that they did not use excessive force, or, in the alternative, that it was objectively reasonable
for them to believe that their force was not excessive. Linicomn admits that Sgt. Irizarry, not
Officer Hill or Officer Matthews, sprayed him with pepper spray, and that the only time
Officer Matthews ever touched him was to assist him outside the residence, after Officer Hill
had handcuffed him. With respect to Officer Hill, the pleadings allege that, when Linicomn
tried to run to another area inside the residence, Officer Hill grabbed him and tried to get him
to the ground, but Linicomn resisted, they struggled, and Officer Hill handcuffed Linicomn
and assisted him outside the residence.
In his Rule 7(a) reply, Linicomn merely denies Officers Hill and Matthews’
contention that it was objectively reasonable for them to believe that their use of force was
not excessive. Linicomn does not allege any facts to negate Officer Hill’s assertion that he
attempted to take Linicomn to the ground in order “to prevent him from going into an area
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of the house where there could be weapons,” Hill Am. Answer ¶ 2.7.7, and he does not allege
any facts at all that, accepted as true, would show that Officers Hill and Matthews were
objectively unreasonable in believing that their use of force against him was not excessive.
See Cozzo, 279 F.3d at 284 (quoting Thompson, 245 F.3d at 457). Thus Linicomn has failed
to meet his burden of alleging facts that, if true, demonstrate that Officers Hill and Matthews’
conduct was objectively unreasonable. See Byers, 2012 WL 677203, at *2.
In sum, Linicomn’s Rule 7(a) reply fails to allege any relevant facts to negate Officers
Hill and Matthews’ qualified immunity defense to the warrantless entry claim and fails to
allege any facts regarding their immunity defense to the excessive use of force claim. See
Aug. 1, 2014 Order at 1 (requiring Linicomn to respond to “to all assertions of immunity”)
(emphasis added); see also Schultea, 47 F.3d at 1433 (“[T]he reply must be tailored to the
assertion of qualified immunity and fairly engage its allegations.”). Because Linicomn has
failed to establish the second requirement for defeating the defense of qualified immunity as
to his § 1983 warrantless entry and excessive use of force claims, Officers Hill and Matthews
are entitled to judgment on the pleadings for these claims.9 See Morin, 77 F.3d at 120
(holding that case should not be allowed to proceed unless plaintiff can assert specific facts
that, if true, would overcome the qualified immunity defense).

9

Because the court is dismissing Linicomn’s § 1983 claims against Officers Hill and
Matthews based on their qualified immunity defense, it need not reach their contention that
Linicomn also has failed to state a plausible claim under the Fourth Amendment.
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V
Although the court is granting Officers Hill and Matthews’ and the City’s motions for
judgment on the pleadings, it will permit Linicomn to replead. “[D]istrict courts often afford
plaintiffs at least one opportunity to cure pleading deficiencies before dismissing a case,
unless it is clear that the defects are incurable or the plaintiffs advise the court that they are
unwilling or unable to amend in a manner that will avoid dismissal.” In re Am. Airlines, Inc.,
Privacy Litig., 370 F.Supp.2d 552, 567-68 (N.D. Tex. 2005) (Fitzwater, J.) (citation omitted).
Although Linicomn has already received an opportunity to amend his petition in state court
and has filed a Rule 7(a) reply addressing Officers Hill and Matthews’ qualified immunity
defense, this is the first occasion for the court to evaluate the substantive merits of his claims
against Officer Hill, Officer Matthews, and the City and for Linicomn to have the benefit of
the court’s guidance. Because Linicomn has not stated that he cannot, or is unwilling to, cure
the defects that the court has identified, the court grants him 28 days from the date this
memorandum opinion and order is filed to file a second amended complaint.10
*

*

*

For the foregoing reasons, the court grants defendants’ Rule 12(c) motions for
judgment on the pleadings and dismisses Linicomn’s federal claims under 42 U.S.C. § 1983
against Officer Hill, Officer Matthews, and the City. The court grants Linicomn leave to file
a second amended complaint within 28 days of the date this memorandum opinion and order

10

Because the case has been removed, the term “complaint” is used instead of
“petition.”
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is filed.
SO ORDERED.
September 25, 2015.

_________________________________
SIDNEY A. FITZWATER
UNITED STATES DISTRICT JUDGE

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