Dyer et al v. City of Mesquite Texas et al

Filing 57

MEMORANDUM OPINION AND ORDER: The Court GRANTS the Paramedic Defendants' portion of the Motion to Dismiss (Doc. 49 ) and DISMISSES all of the claims against them with prejudice. With regard to the Officer Defendants, the Court DEFERS RULING o n their portion of the Motion to Dismiss (Doc. 49 ) as to the excessive force claims, denial of medical care claims, and their corresponding assertions of qualified immunity as to those claims, pending limited discovery and later reconsideratio n on summary judgment. The Court GRANTS Officer Defendants' portion of the Motion to Dismiss (Doc. 49 ) with regard to the Dyers' claim for interference with a parent-child relationship. Lastly, the Court GRANTS Mesquite's Motion to Dismiss (Doc. 47 ) in its entirety and DISMISSES all of the Plaintiffs' claims against Mesquite with prejudice. (Ordered by Judge Jane J. Boyle on 1/12/2017) (axm)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
KATHY DYER and ROBERT DYER,
Individually and as Representative of
the Estate of Graham Dyer,
Plaintiffs,
v.
CITY OF MESQUITE, TEXAS, JACK
FYALL, RICHARD HOUSTON,
ALAN GAFFORD, ZACHARY
SCOTT, WILLIAM HEIDELBURG,
PAUL POLISH, JOE BAKER, and
BILL HEDGPETH,
Defendants.

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CIVIL ACTION NO. 3:15-CV-2638-B

MEMORANDUM OPINION AND ORDER
This is a civil rights case involving allegations of excessive force and failure to provide medical
treatment against the City of Mesquite as well as several Mesquite police officers and two paramedics
arising out of an arrest that culminated in the death of the eighteen-year old suspect while in police
custody. Before the Court are Defendants’ second round of Motions to Dismiss under Fed. R. Civ.
P. 12(b)(6), this time challenging Plaintiffs’ Amended Complaint (Doc. 46). Specifically, before the
Court are: (1) Defendants Jack Fyall, Richard Houston, Alan Gafford, Zachary Scott, William
Heidelburg and Bill Hedgpeth’s (collectively the Officer Defendants) and Defendants Paul Polish,
Joe Baker’s (collectively the Paramedic Defendants) Motion to Dismiss (Doc. 49); and (2) Defendant
City of Mesquite’s (Mesquite) Motion to Dismiss (Doc. 47). For the reasons that follow, the Court
GRANTS the Paramedic Defendants’ portion of the Motion to Dismiss (Doc. 49); DEFERS

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RULING on the Officer Defendants’ portion of the Motion to Dismiss pending limited discovery
and summary judgment (Doc. 49); and GRANTS Mesquite’s Motion to Dismiss (Doc. 47) in its
entirety.
I.
BACKGROUND1
A.

Factual and Procedural
As addressed in this Court’s previous Order granting Defendants’ Motions to Dismiss

Plaintiffs’ Original Complaint,2 this civil rights case stems from a series of events beginning on the
evening of August 13, 2013 when Plaintiffs Kathy and Robert Dyer’s (collectively the Dyers or
Plaintiffs) teenage son, Graham Dyer (Graham), while out with friends in Mesquite, Texas, ingested
LSD, causing him to become highly agitated which, in turn, led to his arrest by several Mesquite
police officers.3 Hours later, while still in Mesquite custody, Graham was pronounced dead from
“craniocerebral trauma.”4 Other than the undisputed fact that Graham sustained his fatal injuries
while he was in police custody, the cause of his “craniocerebral trauma”—whether due to force by
arresting officers or self-inflicted—is highly contested in this case and is at the core of this second
round of Motions to Dismiss by Defendants. Plaintiffs claim that their son was a victim of excessive
force and of a failure to provide adequate medical care, so they filed this suit under 42 U.S.C. § 1983,
1

The Court draws its factual account from the allegations contained in Plaintiffs’ Amended Complaint (Doc.
46), as well as from the parties’ briefing on the Motions to Dismiss before the Court. Any contested facts are
noted as such.
2

Doc. 45, Mem. Op. & Order at 1–3.

3

Doc. 46, Pls.’ Am. Compl. ¶¶ 14–30.

4

Id.
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as representatives of Graham’s estate, against the Officer and Paramedic Defendants and the City
of Mesquite.5
In their Amended Complaint, Plaintiffs allege that the Officer Defendants involved in the
arrest—Fyall, Houston, Gafford, Scott, Heidelburg, and Hedgpeth—used excessive force against
Graham in violation of his Fourth Amendment rights and denied him adequate medical treatment
under the Fourteenth Amendment.6 Plaintiffs further allege that the Paramedic Defendants, Polish
and Baker, denied Graham proper medical treatment when they examined him and cleared him for
transport to the jail at the scene of the arrest.7 Plaintiffs also allege that the City of Mesquite is liable
for the excessive force and denial of medical care by the Officer and Paramedic Defendants under
a theory of municipal liability.8 Finally, Plaintiffs bring claims in their individual capacities against
all Defendants to recover for their own injuries for interference with a parent-child relationship and
for wrongful death.9
B.

Qualified Immunity
In addition to the above-mentioned claims, and inextricably intertwined with the resolution

of the Officer and Paramedic Defendants’ Motion to Dismiss and qualified immunity defenses, is

5

In describing Plaintiffs’ specific claims, the Court relies on the their First Amended Complaint (Doc. 46),the
subject of the pending Motions to Dismiss, and not on the now-dismissed Original Complaint (Doc. 1).
6

Doc. 46, Pls.’ Am. Compl. ¶¶ 53–61.

7

Id. ¶¶ 48–52.

8

Id. ¶¶ 33–46.

9

Id. ¶¶ 62–63.
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Plaintiffs’ renewed request10 for limited discovery.11 Specifically, in their Amended Complaint,
Plaintiffs seek information on the specific actions of each of the Officer Defendants involved in the
events surrounding the arrest.12 More precisely, Plaintiffs allege the following:
The Dyers have made numerous attempts to obtain sufficient information to identify the
specific actions of specific Defendants, which the Defendants have thwarted at every turn,
refusing to turn over detailed reports, statements and camera footage. However, through
a Freedom of Information request to the FBI, the Dyers have obtained redacted camera
footage and a redacted police report which supply quite a bit of information EXCEPT that
all identifying information has been redacted. Thus, while the Dyers can identify who was
involved in the encounter with Graham, they cannot identify specifically which individual
engaged in which conduct . . . .
Doc. 46, Pls.’ Am. Compl. ¶ 13.
For their part, Defendants hotly dispute Plaintiffs’ version of events and move to dismiss the
Amended Complaint on much the same grounds they relied upon in their first round of motions,
including failure to state a claim under Fed. R. Civ. P. 12(b)(6) and, as to the Officer and Paramedic
Defendants, qualified immunity.13 In urging dismissal, Defendants place a heavy emphasis on
Plaintiffs’ failure to provide any factual specificity in their pleadings that would tie each of
“unidentified officers” to specific “alleged [illegal] actions.”14 But, as in their first round of Motions

10

The Dyers first requested limited discovery in their responsive briefing during the initial round of Motions
to Dismiss, but their request was opposed by Defendants and denied by the Court primarily due to the
inadequacy of the pleadings in their Original Complaint. Doc. 38, Pls.’ Resp. 2; Doc. 45, Mem. Op. & Order
at 15–16.
11

Doc. 46, Pls.’ Am. Compl. ¶ 13.

12

Id.

13

See Docs. 47, 48, 49, 50.

14

Doc. 48, Defs.’ Br. in Supp. of Mot. to Dismiss Am. Compl. ¶ 12 [hereinafter Mesquite’s Br.]; Doc. 50,
Defs.’ Br. in Supp. of Mot. to Dismiss Am. Compl at ¶¶ 7, 11–19; Doc. 53, Defs.’ Reply ¶ 2; see also Doc. 25,
Br. in Supp. of Mot. to Dismiss by the City of Mesquite ¶ 12; Doc. 27, Br. in Supp. of Mot. to Dismiss by Defs.
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to Dismiss, Defendants continue to strongly oppose any, even limited discovery, by Plaintiffs to
identify the actions of the individual Officer Defendants.15 In opposing discovery, Defendants point
to this Court’s reasoning denying Plaintiffs’ discovery request in the first round of Motions to Dismiss
and argue that the same reasoning should apply to this renewed request.16 In that Order, the Court
denied Plaintiffs’ request for discovery based largely on the lack of factual specificity in Plaintiffs’
Original Complaint and on the Officer and Paramedic Defendants’ assertion of qualified immunity,
stating:
Freedom from discovery is included in the qualified immunity defense, and such discovery
“must not proceed until the district court first finds that the plaintiff’s pleadings assert facts
which, if true, would overcome the defense of qualified immunity.” Wicks v. Miss. State
Emp’t Servs., 41 F.3d 991, 994 (5th Cir. 1995) (emphasis omitted); see also Schultea v. Wood,
47 F.3d 1427, 1434 (5th Cir. 1995) (“The district court need not allow any discovery unless
it finds that plaintiff has supported his claim with sufficient precision and factual specificity
to raise a genuine issue as to the illegality of defendant’s conduct at the time of the alleged
acts.”). “[I]n the arena of qualified immunity . . . , discovery is not the place to determine
if one’s speculations might actually be well-founded.” Floyd v. City of Kenner, La., 351 F.
App’x 890, 898 (5th Cir. 2009) (per curiam) (unpublished). Instead, discovery is only
available when “the pleadings . . . have sufficient precision and factual detail to reveal that
more than guesswork is behind the allegation.” Id.17
Defendants add that Plaintiffs do not need discovery because the “very facts” that Plaintiffs are
seeking in discovery “are presented by the individual Defendants in their answers to the Original
Complaint.”18

Fyall, Houston, Gafford, Scott, Polish, & Baker ¶¶ 7, 8.
15

Doc. 48, Mesquite’s Br. ¶ 20.

16

Id.

17

Doc. 45, Mem. Op. & Order at 15–16.

18

Doc. 48, Mesquite’s Br. ¶ 20.
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Not surprisingly, Plaintiffs disagree and counter:
Defendants complain that the Dyers failed to ascribe specific conduct to specific officers
during the course of the restraint, arrest and confinement. As Plaintiffs set forth in their
amended pleading, Plaintiff were able to obtain videos from the FBI. However, the videos
blurred over the faces of the officers and contained no identifying information. While the
individual Defendants filed answers admitting to some of the conduct alleged, they
completely ignore the conduct that is the basis of the constitutional claims in this case. The
‘”Defendants do NOT identify the officer that stomped on Graham’s head at the scene of
initial restraint, the officer that pulled his hair with extreme force during restraint in the
car, the officer who tasered Graham repeatedly in the testicles while he was in the back of
the car in full restraints or the officers who dragged him from the back of the car,
completely unresponsive and in obvious need of urgent medical care, to put him in full
restraints in the jail.
Doc. 52, Pls.’ Resp. at 2.
With Plaintiffs’ request for discovery squarely back before the Court, reinforced this time by
facts gleaned from the above-described redacted video footage and police report pertaining to the
arrest, the Court must revisit the discovery issue. While Defendants are correct in their assertion that
qualified immunity protects defendants asserting the defense from pretrial discovery, there are
exceptions to this principle. See Zapata v. Melson, 750 F.3d 481, 485 (5th Cir. 2014). Specifically, ‘“if
further factual development is necessary to ascertain the availability of . . . [the qualified immunity]
defense,”’ discovery, “narrowly tailored to uncover only those facts needed to rule on the immunity
claim” may be permitted. Id. (quoting Backe v. LeBlanc, 691 F.3d 645, 648 (5th Cir. 2012)). But first,
the district court must carefully ascertain that the plaintiff has alleged “‘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.’” Id.(quoting Backe, 691 F.3d at
648). This inquiry “incorporates the pleading standards established in Twombly and Iqbal.” Jackson
v. Mississippi, 5:12-cv-94-DPJ-FKB, 2012 WL 5185726, at *2 (S.D. Miss. Oct. 18, 2012) (citing

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Backe, 691 F.3d at 648). Assuming the allegations meet this standard, then and only then, if the
court still cannot resolve the qualified immunity defense without further factual development, the
court may defer its qualified immunity ruling and order discovery “‘narrowly tailored to uncover only
those facts needed to rule on the immunity claim.’” Zapata, 750 F.3d at 485 (quoting Lion Boulos v.
Wilson, 834 F.2d 504, 507 (5th Cir. 1987)). And, given what is at stake—overcoming qualified
immunity’s protection from pretrial discovery—the district court’s review process has been described
as a “careful procedure.” Id.(quoting Backe, 691 F.3d at 648).
With these exacting standards in mind, the Court turns to examine Plaintiffs’ factuallyenhanced amended pleadings to determine if they contain the requisite specificity described above.
If the pleadings measure up, the Court will address Plaintiffs’ request for limited discovery and
determine what, if any, limited discovery is needed to rule on Officer and Paramedic Defendants’
qualified immunity defense. Once this issue has been resolved as to the Officer and Paramedic
Defendants, the Court will turn its attention to Mesquite’s Motion to Dismiss (Doc. 47), and the
personal claims brought by Plaintiffs against all Defendants.
II.
LEGAL STANDARD
Under Rule 8(a)(2) of the Federal Rules of Civil Procedure, a complaint must contain “a
short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P.
8(a)(2). Rule 12(b)(6) authorizes a court to dismiss a plaintiff’s complaint for “failure to state a claim
upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). In considering a Rule 12(b)(6) motion
to dismiss, “[t]he court accepts all well-pleaded facts as true, viewing them in the light most favorable
to the plaintiff.” In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007) (quoting
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Martin K. Eby Constr. Co. v. Dall. Area Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004)). The court
will “not look beyond the face of the pleadings to determine whether relief should be granted based
on the alleged facts.” Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir. 1999).
To survive a motion to dismiss, a plaintiff must plead “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). “Threadbare
recitals of the elements of a cause of action, supported by mere conclusory statements, do not
suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “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.” Id. “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.
When well-pleaded facts fail to achieve this plausibility standard, “the complaint has alleged—but
it has not shown—that the pleader is entitled to relief.” Id. at 679 (internal quotation marks and
alterations omitted). As mentioned, these pleading standards drawn from Twombly and Iqbal inform
the Court’s analysis of the Officer and Paramedic Defendants’ qualified immunity defense below.
Jackson, 2012 WL 5185726, at *2 (citing Backe, 691 F.3d at 648).
III.
ANALYSIS
A.

Qualified Immunity Defense of Officer and Paramedic Defendants
Plaintiffs allege that the Officer and Paramedic Defendants violated Graham’s Fourth,

Eighth,19 and Fourteenth Amendment rights, as well as Plaintiffs’ own Fourteenth Amendment

19

While Plaintiffs also allege a violation of Graham’s rights under the Eighth Amendment, the Court
previously rejected Plaintiffs’ assertion that Defendants also violated Graham’s Eighth Amendment rights.
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rights. The Officer and Paramedic Defendants, as public officials, assert a qualified immunity defense
to Plaintiffs’ claims brought against them pursuant to 42 U.S.C. § 1983—(1) excessive force during
the arrest (alleged against the Officer Defendants only); and (2) denial of necessary medical care
following the arrest (alleged against both the Officer and Paramedic Defendants). Qualified
immunity is “an immunity from suit rather than a mere defense to liability,” so it is important to
“resolv[e] immunity questions at the earliest possible stage in litigation.” Pearson v. Callahan, 555
U.S. 223, 232–33 (2009)(quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985); Hunter v. Bryant, 502
U.S. 224, 227 (1991)). Courts examine each public official’s actions independently to determine
whether he or she is entitled to qualified immunity. Newman v. Guedry, 703 F.3d 757, 762 (5th Cir.
2012)(citing Meadours v. Ermel, 483 F.3d 417, 421–22 (5th Cir. 2007)).
Once a defendant asserts qualified immunity, the burden shifts to the plaintiff, who must
negate the qualified immunity defense. Newman, 703 F.3d at 761. A public official is entitled to
qualified immunity unless: (1) “a constitutional right would have been violated on the facts alleged”;
and (2) “the right was clearly established” at the time of the violation. Kitchen v. Dallas Cty., 759
F.3d 468, 476 (5th Cir. 2014) (quoting Saucier v. Katz, 533 U.S. 194, 200 (2001)). Courts have
discretion in deciding which of the two prongs should be addressed first. Id. (citing Pearson, 555 U.S.

Doc. 45, Mem. Op. & Order 5 & nn.3–4. Plaintiffs failed to correct their error in the Amended Complaint,
so the Court must restate the rule. The Supreme Court has made clear that “all claims that law enforcement
officers have used excessive force—deadly or not—in the course of an arrest, investigatory stop, or other
‘seizure’ of a free citizen should be analyzed under the Fourth Amendment and its ‘reasonableness’ standard.”
Graham v. Connor, 490 U.S. 386, 395 (1989); see also Rankin v. Klevenhagen, 5 F.3d 103, 106–07 (5th Cir.
1993) (finding Eight Amendment protections extend only to convicted prisoners and pretrial detainees
subjected to force “in an effort to preserve institutional security”). Likewise, an arrestee like Graham must
rely on the Fourteenth Amendment, rather than the Eighth Amendment, to protect his right to receive
necessary medical care while in custody. See Jacobs v. W. Feliciana Sheriff’s Dep’t, 228 F.3d 388, 393 (5th Cir.
2000).
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at 236).
Here, as mentioned, Plaintiffs have indicated in their Amended Complaint that they cannot
identify which specific official engaged in each of the alleged unlawful actions without additional
information obtained through discovery. Doc. 46, Pls.’ Am. Compl. ¶ 13. As discussed above, for
Plaintiffs to obtain discovery in the face of a qualified immunity defense, this Court must engage in
the Fifth Circuit’s “careful procedure” to ascertain whether Plaintiffs have alleged “‘specific facts that
both allow the court to draw the reasonable inference that the . . . [Defendants] . . . [are] liable for
the harm . . . [Plaintiffs] . . . [have] alleged and that defeat . . . [Defendants’] . . . qualified immunity
defense with equal specificity.’” Zapata,750 F.3d at 485(quoting Backe, 691 F.3d at 648). As stated,
this analysis is governed by the 12(b)(6) standards set forth in Twombly and Iqbal. Jackson, 2012 WL
5185726, at *2 (citing Backe, 691 F.3d at 648). If the pleadings meet these requirements, the Court
then determines if limited discovery is needed to rule on the qualified immunity issue. If so, the Court
may defer its ruling on the issue of qualified immunity until after some narrowly tailored discovery
can be conducted. See Zapata, 750 F.3d at 485 (citing Backe, 691 F.3d at 648).
To sum up, the Court will first consider whether Plaintiffs’ allegations, if true, both state a
claim that the Officer and Paramedic Defendants are liable for the harm alleged against them and
are sufficient to defeat the Officer and Paramedic Defendants’ entitlement to qualified immunity.
See infra Section III.A.1. Assuming Plaintiffs’ allegations meet this standard, the Court next examines
what, if any, factual issues must be resolved before the Court can conclusively rule on the qualified
immunity issue. Assuming these factual issues exist, the Court will address the need for a narrowly
tailored discovery order. See infra Section III.A.2.

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1.

Plaintiffs’ Allegations Would Defeat Qualified Immunity Defense of the Officer
Defendants But Not the Paramedic Defendants

The Court turns to the first part of the Fifth Circuit’s “careful procedure” to determine
whether Plaintiffs’ allegations, if true, state a claim for liability against the Officer and Paramedic
Defendants and would defeat the Officer and Paramedic Defendants’ entitlement to qualified
immunity. In order to defeat qualified immunity, a plaintiff must sufficiently allege that (1) “a
constitutional right would have been violated on the facts alleged”; and (2) “the right was clearly
established” at the time of the violation. Kitchen, 759 F.3d at 476 (quoting Saucier, 533 U.S. at 200).
In exercising its discretion to choose which prong to address first, the Court will first consider
whether Plaintiffs have alleged a violation of a constitutional right before turning to whether that
constitutional right was clearly established at the time of the alleged violation. See id. (citing Pearson,
555 U.S. at 236).
i.

Excessive force claims
a.

Violation of a Constitutional Right

Plaintiffs’ excessive force claims are brought against only the Officer Defendants. Doc. 46,
Pls.’ Am. Compl. ¶ 53. To prevail on a Fourth Amendment excessive force claim, Plaintiffs must
show that Graham (1) suffered an injury, which (2) “resulted directly and only from the use of force
that was clearly excessive to the need,” and (3) “the force used was objectively unreasonable.” Cass
v. City of Abilene, 814 F.3d 721, 731 (5th Cir. 2016) (quoting Goodson v. City of Corpus Christi, 202
F.3d 730, 740 (5th Cir. 2000)). “The ‘reasonableness’ of a particular use of force must be judged from
the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.”
Graham v. Connor, 490 U.S. 386, 396 (1989). This calculus must also “embody allowance for the fact
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that police officers are often forced to make split-second judgments—in circumstances that are tense,
uncertain, and rapidly evolving—about the amount of force that is necessary in a particular
situation.” Id. at 396–97.
Ultimately, “the question is whether the officers’ actions are ‘objectively reasonable’ in light
of the facts and circumstances confronting them, without regard to their underlying intent or
motivation.” Id. at 397. Factors relevant to this analysis include: (1) “the severity of the crime at
issue”; (2) “whether the suspect poses an immediate threat to the safety of the officers or others”; and
(3) “whether he is actively resisting arrest or attempting to evade arrest by flight.” Id. at 396.
“‘Excessive force claims are [thus] necessarily fact-intensive’ and ‘depend[ ] on the facts and
circumstances of each particular case.’” Poole v. City of Shreveport, 691 F.3d 624, 628 (5th Cir. 2012)
(quoting Deville v. Marcantel, 567 F.3d 156, 167 (5th Cir. 2009)).
Here, the Court initially found that Plaintiffs’ Original Complaint failed to allege enough facts
to state an excessive force claim against the Officer Defendants. Doc. 45, Mem. Op. & Order 7.
Specifically, the Court found the pleadings insufficient with regard to the third element: whether the
force used was objectively unreasonable. See id. at 6–7. The Court noted the absence of facts
regarding Graham’s behavior at the time of the alleged application of force and what force the police
applied; without these facts, the Court could not infer whether the force used was objectively
unreasonable. Id. at 7.
In their Amended Complaint, Plaintiffs surmount the factual shortcomings of their previous
Complaint with regard to their excessive force claim. As to the first element—whether the individual
suffered an injury—Plaintiffs now specify Graham’s injuries as “craniocerebral trauma”; lacerations,
abrasions and hematomas to Graham’s face, knees, and elbows; and bruising on Graham’s hands and
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hip. Doc. 46, Pls.’ Am. Compl. ¶¶ 27, 29. These details allow the Court to reasonably infer that
Graham suffered an injury. See Iqbal, 556 U.S. at 678. Regarding the second element, the Court can
also infer that the alleged excessive force—punching Graham in the head, pulling his hair, and
pressing down on Graham’s head by an officer’s foot—if true, directly caused the alleged injuries
because at a minimum, it is plausible that the force applied to Graham’s head directly caused the
injuries to his head. See id.
As for the third element, whether the officers’ actions were objectively reasonable, Plaintiffs
insert a number of material facts about Graham’s behavior and the force applied. Plaintiffs allege that
prior to being handcuffed, Graham was yelling and agitated, so a police officer tased him, causing
Graham to fall face-first to the ground. Id. ¶ 15. Once on the ground and handcuffed, Plaintiffs state
that Graham briefly raised his legs in the air and lifted his head. Id. ¶ 16. In response, Plaintiffs
continue, Graham was repeatedly tased, and an officer shifted his full weight onto Graham’s head
with the officer’s foot. Id. ¶¶ 16, 20. Plaintiffs assert that Graham then walked with officers to the
police car without resistance and once inside, braced his feet and legs against the interior. Id. ¶¶
21–22. In response to this behavior, Plaintiffs allege, officers tased Graham again, restrained his legs,
punched him, and pulled him by his hair. Id. ¶ 22. Graham then purportedly began to move around
the back seat and scream, but he did not make any attempt to contact or harm the officers. Id. ¶ 23.
As a result, Graham was allegedly punched in the head and repeatedly tased on the leg and testicles.
Id.
Plaintiffs’ additional facts clarify with detail the circumstances the Officer Defendants faced
during the events at issue. Now Plaintiffs’ allegations, taken as true, allow the Court to plausibly infer
that the force used on Graham was objectively unreasonable given his alleged relatively non- 13 -

threatening behavior. Thus, because Plaintiffs’ pleadings identify actions that amount to an excessive
force claim violating Graham’s Fourth Amendment rights, the Court continues to the second step
of its qualified immunity analysis to determine whether Graham’s constitutional right to be free from
the kind of excessive force used against him was clearly established at the time it was used.
b.

Constitutional Right was “Clearly Established”

Generally one has a constitutional right to be free from excessive force by the police. Lytle v.
Bexar Cty., 560 F.3d 404, 417 (5th Cir. 2009) (citing Bush v. Strain, 513 F.3d 492, 502 (5th Cir.
2008)). But determining the extent of that right depends on the degree of force applied in light of
a particular situation faced by an officer. Id. For the purposes of determining whether one’s right to
be free a specific kind of force is “clearly established” by the law, a court considers the severity of the
crime faced by officers, whether the suspect posed a threat to the officer’s safety, and whether the
suspect was resisting or attempting to flee.” Bush, 513 F.3d at 502 (citing Graham, 490 U.S. at 396).
Furthermore, even if there is no binding case law ruling on the same kind of particular force at issue,
the Graham excessive-force factors can provide the answer in an obvious case. See Brosseau v. Hagen,
543 U.S. 194, 198–99 (2004).
The Court concludes that the pleadings adequately demonstrate that the Officer Defendants
were on notice that their behavior, in the particular situation as alleged by Plaintiffs, violated
Graham’s constitutional rights. See Anderson v. McCaleb, 480 F. App’x 768, 773 (5th Cir. 2012)
(finding clearly established law put the officers on notice that they could not tase or beat the plaintiff
once he stopped resisting arrest and that they could not slam the plaintiff to the ground after he was
handcuffed); Bush, 513 F.3d at 492 (finding officers were on notice, under clearly established law,
that slamming a plaintiff’s face into a vehicle when she was not resisting arrest or trying to flee
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violated her Fourth Amendment rights). Similar to the plaintiffs in Anderson and Bush, Plaintiffs
assert that Graham was not resisting arrest or trying to flee, but nonetheless he got punched, had his
hair pulled, and was repeatedly tased. Furthermore, Plaintiffs’ facts indicate that Graham was not a
threat to others or the officers around him. Taking Plaintiffs’ allegations as true and in the light most
favorable to them, they have established that the Officer Defendants were on notice that their
actions would violate clearly established law.
Against the foregoing backdrop, the Court concludes that Plaintiffs have sufficiently pled
facts that, if true, would establish the Officer Defendants’ liability for excessive force and would also
overcome the Officer Defendants’ qualified immunity defense with regard to the excessive force
claim. But that does not end the inquiry. Here, Plaintiffs do not supply enough facts that allow the
Court to determine which of the Officer Defendants engaged in which of the alleged unlawful
actions, so the Court is unable to determine which Officer Defendants, if any, might be entitled to
qualified immunity. Thus, it will be necessary to turn to the next step in the Fifth Circuit’s required
analysis and identify the specific factual issues that must be resolved in order for the Court to
conclusively rule on qualified immunity and, if necessary, issue a narrowly tailored discovery order
accordingly. See infra Section III.A.2; Zapata, 750 F.3d at 485. First, however, the Court addresses
the Plaintiffs’ medical care claims against the Officer and Paramedic Defendants.
ii.

Denial of medical care claims
a.

Violation of a Constitutional Right

Under the Fourteenth Amendment, a pre-trial detainee has a “constitutional right to be
secure in his basic human needs, such as medical care and safety.” Hare v. City of Corinth, 74 F.3d

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633, 647–48 (5th Cir. 1996).20 A state official violates that right when he “act[s] or fail[s] to act with
deliberate indifference to the detainee’s needs.”21 Id. at 648. “Deliberate indifference encompasses
only unnecessary and wanton infliction of pain repugnant to the conscience of mankind.” Tamez v.
Manthey, 589 F.3d 764, 770 (5th Cir. 2009) (quoting McCormick v. Stalder, 105 F.3d 1059, 1061
(5th Cir. 1997)).
A plaintiff alleging deliberate indifference must show that: (1) “each defendant had
subjective knowledge of ‘facts from which an inference of substantial risk of serious harm could be
drawn’”; (2) “each defendant actually drew that inference”; and (3) “each defendant’s response to
the risk indicates that [he] ‘subjectively intended that harm occur.’” Id. (quoting Thompson v. Upshur
Cty., 245 F.3d 447, 458–59 (5th Cir. 2001)). It is not enough that the official was negligent—only
a “subjective intent to cause harm” supports a finding of deliberate indifference. Mace v. City of
Palestine, 333 F.3d 621, 625–26 (5th Cir. 2003).
Plaintiffs allege that Paramedic Defendants Polish and Baker failed to provide Graham with
necessary medical care before clearing him to be transported, and they allege that the Officer
Defendants failed to provide necessary medical care at the jail after Graham was taken into custody.
The Court will address each set of allegations individually.

20

Hare involved a pretrial detainee rather than an arrestee; however, an arrestee shares the same substantive
due process rights as a pretrial detainee. See Nerren v. Livingston Police Dep’t, 86 F.3d 469, 472–73 (5th Cir.
1996).
21

The deliberate indifference standard applies to “episodic act[s] or omission[s]” of state officials. Hare, 74
F.3d at 646, 647. An episodic act or omission occurs when “an actor . . . is interposed between the detainee
and the municipality, such that the detainee complains first of a particular act of, or omission by, the actor
and then points derivatively to a policy, custom, or rule (or lack thereof) of the municipality that permitted
or caused the act or omission.” Scott v. Moore, 114 F.3d 51, 53 (5th Cir. 1997). Plaintiffs’ allegations fall
within this category, so they must show that the Individual Defendants acted with deliberate indifference to
Graham’s medical needs.
- 16 -

1.

Paramedic Defendants

The Court originally found Plaintiffs’ allegations against the Paramedic Defendants, Polish
and Baker, to be insufficient because Plaintiffs failed to plead sufficient facts to infer that, at the
scene of the arrest, Polish and Baker made an inference that there was a substantial risk of serious
harm. Doc. 45, Mem. Op. & Order 8–9. Specifically, the Original Complaint lacked any detail about
the head injury that Plaintiffs allege should have alerted Polish and Baker to a risk of serious harm
if not immediately treated.
In their Amended Complaint, Plaintiffs provide no additional detail about the head injury.
See Doc. 46, Pls.’ Am. Compl. ¶¶ 48–52. They do add, however, that Polish and Baker were aware
that Graham ingested LSD, was incoherent and screaming, and had been tased during the restraint
process. Id. ¶ 48. From this, Plaintiffs reason that Polish and Baker knew of the substantial risk of
serious harm that would result from ignoring a visible head injury or from ignoring the psychosis of
someone who had ingested LSD. Id. ¶¶ 50–51. Plaintiffs also presume that Polish and Baker’s failure
to recommend sedation amounted to a violation of Graham’s rights. Id. ¶ 49.
The Court concludes that Plaintiffs have failed to state a plausible Fourteenth Amendment
claim for denial of medical care against either Polish or Baker. Plaintiffs fail to add any additional
detail regarding the degree of Graham’s head injury, from which the Court could infer that upon
seeing such an injury, Polish and Baker should have known that there was a substantial risk of serious
harm if Graham was not immediately given medical care. Furthermore, Plaintiffs’ allegation that
Graham’s LSD-induced behavior alerted Polish and Baker to a substantial risk of serious harm is

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insufficient.22 Plaintiffs do not allege that Polish and Baker’s failure to treat Graham’s LSD-induced
behavior even caused Graham’s injuries.23 And while they do allege that the paramedics should have
recommended sedation, their reasoning is not that it would have prevented harm, but that it “would
have calmed Graham down and allowed him to comply with instructions.” Id. Thus, Plaintiffs’
pleadings do not allow the Court to infer that Polish and Baker failed to provide necessary medical
care after observing Graham at the scene of the arrest. Because Plaintiffs failed to allege a
constitutional violation, the Court need not go further in the qualified immunity analysis with regard
to Polish and Baker.
2.

Officer Defendants

The Court initially determined that in their Original Complaint, Plaintiffs insufficiently pled
a claim against the Officer Defendants for failure to provide necessary medical care. Doc. 45, Mem.
Op. & Order 9. Plaintiffs failed to allege facts that would have allowed the Court to infer that the
Officer Defendants subjectively knew there was a substantial risk of serious harm when faced with
Graham’s injuries because Plaintiffs only provided that his head injury was “obvious” and “serious.”
Id.
In Plaintiffs’ Amended Complaint, presumably based upon the redacted video footage and
police report, they allege that in the police car, Graham sustained blunt force head trauma because
22

The Fifth Circuit has relied on the reasoning of the Fourth Circuit in that “to mandate as a matter of
constitutional law that officers take all criminal suspects under the influence of drugs or alcohol to hospital
emergency rooms rather than detention centers . . . would be a startling step to take.” Estate of Allison v.
Wansley, 524 F. App’x 963, 972 (5th Cir. 2013) (quoting Grayson v. Peed, 195 F.3d 692, 696 (4th Cir. 1999)).
Without any more detail, Plaintiffs essentially urge the Court to reach this conclusion.
23

This Court has previously found that a plaintiff insufficiently pled his claim of deliberate denial of medical
care because he failed to illustrate that a defendant’s denial of care caused him serious harm or caused his
condition to worsen. Curtis v. Mosher, 3:12-cv-4866-B, 2014 WL 2452571 (N.D. Tex. June 2, 2014) (citing
Gilbert v. French, 665 F. Supp. 2d 743, 758 (S.D. Tex. 2009)).
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he beat his head against the cage and car door. Doc. 46, Pls.’ Am. Compl. ¶ 58. Plaintiffs argue that
after witnessing that behavior, the officers in the car must have drawn the inference that the
symptoms from such a head injury carried a substantial risk of serious harm if not treated
immediately. Id. After arriving at the station, Plaintiffs allege, Graham was incoherent, could not
stand or walk, was unresponsive, and his head appeared to be covered in blood. Id. ¶ 59. And at the
jail, Plaintiffs continue, Graham was unresponsive and vomiting. Id. Instead of seeking medical
treatment, the officers allegedly restrained Graham in a chair and left him alone for over two hours
before calling paramedics. Id. ¶ 26–27, 59. When the paramedics24 arrived, the officers purportedly
refused to unshackle Graham from the chair so that he could receive appropriate medical treatment.
Id. ¶ 28. Because of this, the paramedics allegedly were unable to insert an oral airway into Graham.
Id.
The Court concludes that Plaintiffs provided enough additional detail to plausibly infer that
the Officer Defendants failed to provide necessary medical care. Taking Plaintiffs’ allegations as true,
the Officer Defendants knew that Graham was unresponsive, bloody, and vomiting, yet did not
ensure that he received medical care when he arrived at the jail. This meets the standard of
deliberate indifference; the substantial risk of harm from denying medical attention to a person who
is unresponsive, bloody from head injuries allegedly sustained in an officer’s vehicle, and vomiting
would be obvious to any reasonable person, and it can be inferred that the officers knew of that
substantial risk. See Easter v. Powell, 467 F.3d 459, 463 (5th Cir. 2006) (citing Farmer v. Brennan, 511
U.S. 825, 842–43 (1994) (noting that a prison official’s knowledge of a substantial risk of harm may

24

To avoid confusion, these paramedics are not included as defendants in this case.
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be inferred if the risk was obvious)).25
Plaintiffs have also alleged that injuries resulted: Graham suffered additional pain and later
died because he was left unmonitored and untreated, and he was stopped from having an oral airway
inserted by the paramedics. See, e.g., Easter, 467 F.3d at 464–65 (finding the plaintiff to have stated
an Eighth Amendment violation with regard to severe chest pain he suffered during the period of
time he was refused treatment). Thus, because Plaintiffs’ pleadings identify actions that the Court
can infer violated Graham’s Fourteenth Amendment rights, the Court can continue to the second
part of its qualified immunity analysis and determine whether Graham’s constitutional right to
receive medical care in light of his injuries was clearly established at the time of the violation.
b.

Constitutional Right was “Clearly Established”

The Court has already found that Plaintiffs’ claims against Paramedic Defendants Polish and
Baker are insufficient. See supra III.A.1.ii.a.1. So it need only discuss the qualified immunity defense
as it applies to the Officer Defendants.
At the time of the events at issue, it was “clearly established that officials will only be liable
for episodic acts or omissions resulting in the violation of a detainee’s clearly established
25

A number of cases have similarly found officers to have denied medical care with deliberate indifference
when faced with similar injuries. In Thompson v. Upshur County, the Fifth Circuit denied a sergeant qualified
immunity after the sergeant observed an inmate shaking, sweating, hallucinating, and colliding with objects
in his cell, causing his head to bleed. 245 F.3d at 447. A court in the Southern District of Texas found a
plaintiff to have sufficiently alleged a claim for denial of medical care where he pled that some officers injured
plaintiff during his arrest to the point that he became unconscious and bloody, and he did not regain
consciousness until he was in jail. Thomas v. City of Galveston, 800 F. Supp. 2d 826, 840 (S.D. Tex. 2011).
Because the officers knew that the plaintiff was unconscious, but they did not ensure that he received medical
care when he arrived at the jail, the plaintiff met the standard of deliberate indifference. Id. Another court
in the Southern District of Texas found officers to have denied medical care with deliberate indifference
where an officer possessed actual knowledge of the plaintiff’s injuries because the officer inflicted them himself
and attempted to treat the plaintiff. O’Bryant v. Walker Cty., CIV. A. H-08-1880, 2009 WL 212933, at *4
(S.D. Tex. Jan. 29, 2009). The officer then ignored the plaintiff while the officer performed background
checks on other people at the scene. Id.
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constitutional rights if they ‘had subjective knowledge of a substantial risk of serious harm to a
pretrial detainee but responded with deliberate indifference to that risk.’” Jacobs v. W. Feliciana
Sheriff’s Dep’t, 228 F.3d 388, 393–94 (5th Cir. 2000) (quoting Hare, 74 F.3d at 650)). Thus, the
officers were “on notice” that denying Graham medical care violated his due process rights. See
Murray v. Earle, 405 F.3d 278, 289 (5th Cir. 2005). Plaintiffs have alleged facts that would support
the conclusion that the officers’ conduct “was objectively unreasonable when applied against the
deliberate indifference standard.” Jacobs, 228 F.3d at 394.
The Court is persuaded, then, that with regard to the Officer Defendants’ denial of medical
care, Plaintiffs have pled 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.”
See Backe, 691, F.3d at 648. Having said this, Plaintiffs’ Amended Complaint is still insufficient to
the extent that it fails to specify which Officer Defendants engaged in which alleged actions with
regard to the medical care claim. Without this information, the Court cannot resolve each Officer
Defendants’ qualified immunity defense.
Thus, as with the excessive force claims and the corresponding qualified immunity defenses,
it will be necessary to turn to the next step in the Fifth Circuit’s required analysis and identify the
specific factual issues that must be resolved to conclusively rule on the qualified immunity defenses
with respect to the medical care claims and then address the need for a narrowly tailored discovery
order. See Zapata, 750 F.3d at 485. That discussion follows.
2.

Narrowly Tailored Discovery Necessary to Rule on Qualified Immunity

Above, the Court found that Plaintiffs satisfied the first part of the Fifth Circuit’s “careful
procedure” in that they pled facts which, if true, overcome the Officer Defendants’ defense of
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qualified immunity. See Wicks, 41 F.3d at 994. The Court, however, remains unable to rule on the
Officer Defendants’ immunity defense without further clarification of the facts because the facts
provided do not allow the Court to analyze qualified immunity as to each individual defendant. See
Backe, 691 F.3d at 648. As discussed above, Courts must examine each public official’s actions
independently to determine whether he or she is entitled to qualified immunity. Newman, 703 F.3d
at 762(citing Meadours, 483 F.3d at 421–22).While Plaintiffs recognize that they can name each
Officer Defendant who was involved during the night, they cannot identify which individual engaged
in what specific conduct. Doc. 46, Pls.’ Am. Compl. ¶ 13. Consequently, the Court determines that
the Officer Defendants’ identities in relation to each action alleged— who did what that night— is
a question of fact that can be resolved only with additional information through discovery. This
information is essential before the Court can determine if each Officer Defendant is entitled to
qualified immunity from the independent, unlawful actions alleged by Plaintiffs.
Other courts have faced a similar qualified immunity dilemmas where plaintiffs cannot
identify which of several responding police officers engaged in what specific conduct without
discovery. In Khansari v. City of Houston, the Southern District of Texas considered a case where the
plaintiffs sued multiple police officers for the use of excessive force as one or more officers tasered the
victim in the head, resulting in one taser to strike the victim’s eye. 14 F. Supp. 3d 842, 850 (S.D.
Tex. 2014). Similar to the Dyers, the plaintiffs in Khansari could not identify which of the officers
involved actually shot a taser at the victim’s head. Id. at 860. The court determined that at the
12(b)(6) stage of a case, “lack of such factual specificity . . . does not provide a basis on which to
grant or deny defendants’ motion.” Id. at 860–61. Because the pleadings were adequate “to at least
potentially state a claim, discovery may proceed on the limited issue of which of the individual
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officers tasered [the victim] and whether those officers are entitled to qualified immunity.” Id. at 861.
The Western District of Texas, likewise, considered a case where a plaintiff alleged that
multiple SWAT team officers used excessive force against him during their execution of a search
warrant at his home. Crisp v. Dutton, No. A-15-cv-0431-LY-ML, 2015 WL 7076483, at *2 (W.D.
Tex. Nov. 12, 2015). Similarly at issue was the plaintiff’s inability to identify, without further
discovery, the names of most of the individual members of the SWAT team or specify which of the
individual SWAT team officers injured him. Id. The court concluded that at the 12(b)(6) stage of
analysis, “the threshold pleading required of a plaintiff suing multiple officers for the same event is
not identification of which [d]efendant did what, but identification of actions that should reasonably
have been understood as a violation of [the] [p]laintiff’s rights under federal law. Id. at *9. Like the
Dyers, the plaintiff in Crisp met his pleading burden, but because material fact issues remained with
regard to qualified immunity the court determined that discovery was relevant and necessary to
determine qualified immunity, so the court deferred ruling on the qualified immunity issue. Id. at
*11.
Here, Plaintiffs have demonstrated that, even with their independently-obtained redacted
video and police report, they cannot supply the necessary information to ascertain which of the
Defendant Officers did which of the alleged unlawful acts. Compounding the problem is that
Graham, the only eye-witness aside from the officers, is deceased. And despite their insistence to the
contrary, the Officer Defendants’ reliance on their version of events contained in their Answer is
unavailing to them at this stage of the case, where the Court, to the extent plausible, must accept
the Plaintiffs’ version of events. In re Katrina Canal Breaches Litig., 495 F.3d at 205. Therefore, similar
to the courts in Khansari and Crisp, the Court finds that discovery is appropriate, albeit narrowly
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tailored to the limited issue of which of the individual officers were involved in the specific acts of
alleged excessive force and denial of medical care and whether those officers are correspondingly
entitled to qualified immunity. The specific and narrow scope of that discovery will be defined, with
input from the parties, at a hearing before this Court, on a date to be set shortly.26 In the meantime,
the Court does not deny but DEFERS its ruling on the Officer Defendants’ qualified immunity
defense, finding that limited discovery is necessary to resolve qualified immunity through summary
judgment briefing.
That said, the Court turns to the Plaintiffs’ claims against the City of Mesquite.
B.

Plaintiffs’ Claims Against Mesquite
Mesquite, in its Motion to Dismiss (Doc. 47), argues that Plaintiffs fail to adequately plead

the elements of a municipal liability claim. Doc. 48, Mesquite’s Br. ¶ 2. Specifically, the City argues
that the Amended Complaint fails to state any factual allegation that would support an inference of
deliberate indifference by a policymaker or the existence of a policy, practice, or custom of the City
that would have deprived Graham of his rights. Id. ¶ 6. Alternatively, the City argues that the alleged
underlying constitutional violations were insufficiently pled, so municipal liability must fail. Id. ¶ 15.
The Court need not consider the underlying claims of constitutional violations because it can reach
a decision on municipal liability alone.
A claim for municipal liability under § 1983 has three elements: (1) “a policymaker”; (2) “an
official policy”; and (3) “a violation of constitutional rights whose moving force is the policy or
custom.” Zarnow v. City of Wichita Falls, 614 F.3d 161, 166 (5th Cir. 2010). Municipal liability

26

It seems, at a minimum, that unredacted copies of the video footage and police report are called for, but
the Court will make that decision at the upcoming hearing.
- 24 -

requires that “an official policymaker with actual or constructive knowledge of the constitutional
violation [has] acted on behalf of the municipality.” Id. at 167. “A policymaker is ‘one who takes the
place of the governing body in a designated area of city administration.’” Id. (quoting Webster v. City
of Hous., 735 F.2d 838, 841 (5th Cir. 1984)). “He or she must ‘decide the goals for a particular city
function and devise the means of achieving those goals.’” Id. (quoting Bennett v. City of Slidell, 728
F.2d 762, 769 (5th Cir. 1984)).
The Court held that in their Original Complaint, Plaintiffs failed to identify an official
policymaker. Doc. 45, Mem. Op. & Order 11. Instead of naming one of the Defendants or a third
party who acted on Mesquite’s behalf, Plaintiffs simply alleged that “Mesquite” had certain policies
in place. Id. Their Amended Complaint is no better—while Plaintiffs add additional details regarding
the alleged official policy, Plaintiffs do not specify a policymaker beyond the “City” or “Mesquite.”
See Doc. 46, Pls.’ Am. Compl. ¶¶ 33–46. Plaintiffs argue that they cannot establish a pattern of
Mesquite’s behavior because they have not been able to conduct discovery to determine if other
individuals were subject to Mesquite’s alleged policy of always transporting overdose arrestees to the
jail instead of the hospital. Doc. 52, Pls.’ Resp. 7. Plaintiffs, however, fail to address why they were
unable to identify a policymaker who would have acted on Mesquite’s behalf. Mesquite, in reply,
points out that Plaintiffs virtually concede the inadequacy of their pleadings by insisting on more
discovery rather than addressing Mesquite’s arguments. Doc. 53, Defs.’ Reply ¶ 3.
In sum, Plaintiffs failed to point to a policymaker who would have acted on Mesquite’s behalf.
So the Court cannot infer that Mesquite might be held liable under § 1983. Thus, the Court

- 25 -

GRANTS Mesquite’s Motion to Dismiss (Doc. 47) all of Plaintiffs’ claims against the City.27
C.

Plaintiffs’ Personal Claims
Plaintiffs also bring two claims on their own behalf: (1) interference with parent-child

relationship and (2) wrongful death. Doc. 46, Pls.’ Am. Compl. ¶¶ 62, 63–64.
1.

Interference with Parent-Child Relationship

The Court previously found that Plaintiffs insufficiently pled their interference with a parentchild relationship claim in their Original Complaint. Doc. 45, Mem. Op. & Order 13–14. In
particular, the Court found that Plaintiffs failed to allege that Defendants “purposefully interfered”
with the parent-child relationship. Id. at 14. Plaintiffs’ Amended Complaint is the same on this point.
See Doc. 46, Pls.’ Am. Compl. ¶ 62. As Plaintiffs fail to add any additional facts, the interference with
a parent-child relationship claim remains insufficient. Thus, the Court GRANTS Officer and
Paramedic Defendants’ Motion to Dismiss (Doc. 49) with regard to this claim.
2.

Wrongful Death Claims

The Court previously found that Plaintiffs’ claim for wrongful death, which was based on a
violation of Graham’s civil rights, failed because their Original Complaint did not sufficiently allege
a violation of Graham’s civil rights.28
“[A] parent may recover damages analogous to state law wrongful death damages in a § 1983
action based on the violation of her child’s civil rights.” Flores v. Cameron Cty., 92 F.3d 258, 271 (5th
Cir. 1996); Rhyne v. Henderson Cty., 973 F.2d 386, 391 (5th Cir. 1992). The Texas Civil Practice and

27

The claims against the City are Plaintiffs’ municipal liability claims; the Fourth, Eighth, and Fourteenth
Amendment claims as brought against the City; and Plaintiffs’ personal claims as brought against the City.
28

Doc. 45, Mem. Op. & Order 15.
- 26 -

Remedies Code provides that only “the surviving spouse, children, and parents of the deceased” may
bring an action to recover damages for wrongful death. Tex. Civ. Prac. & Rem. Code § 71.004
(West, Westlaw through 2015 Sess.).
Here, the Court has found that Plaintiffs have pled specific facts that allow the Court to infer
that the Officer Defendants are liable for the harm alleged and that defeat a qualified immunity
defense with regard to their allegations that Graham’s civil rights were violated. Thus, Plaintiffs have
remedied the shortcomings addressed by the Court in their prior Original Complaint as to their
wrongful death claim. The Court, then, concludes that Plaintiffs’ wrongful death claim survives the
Court’s 12(b)(6) analysis.29 And the Officer and Paramedic Defendants’ Motion to Dismiss this claim
(Doc. 49) is DENIED.30
IV.
CONCLUSION
For the reasons explained above, the Court GRANTS the Paramedic Defendants’ portion
of the Motion to Dismiss (Doc. 49) and DISMISSES all of the claims against them with prejudice.
With regard to the Officer Defendants, the Court DEFERS RULING31 on their portion of the
Motion to Dismiss (Doc. 49) as to the excessive force claims, denial of medical care claims, and their
29

Of course, because it is derivative of their civil rights claims, the Plaintiffs’ wrongful death claim may be
eliminated if the Officer Defendants’ qualified immunity defenses as to the civil rights claims are successful
on summary judgment.
30

Denying this portion of the Officer and Paramedics’ Motion to Dismiss is of no moment to the Paramedic
Defendants as they are dismissed from the case with prejudice, as addressed.
31

Although the Court “defers ruling” on this portion of the Officer Defendants’ Motion to Dismiss, because
the Court will reconsider the Officer Defendants’ arguments and claims of qualified immunity on summary
judgment and not through the pending Motion to Dismiss (Doc. 49), the Clerk of Court is directed to
terminate both Documents 47 and 49.
- 27 -

corresponding assertions of qualified immunity as to those claims, pending limited discovery and later
reconsideration on summary judgment. The Court GRANTS Officer Defendants’ portion of the
Motion to Dismiss (Doc. 49) with regard to the Dyers’ claim for interference with a parent-child
relationship. Lastly, the Court GRANTS Mesquite’s Motion to Dismiss (Doc. 47) in its entirety and
DISMISSES all of the Plaintiffs’ claims against Mesquite with prejudice.
SO ORDERED.
SIGNED: January 12, 2017.

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