Hernandez et al v. City of Grand Prairie Texas et al
MEMORANDUM OPINION AND ORDER grants in part and denies in part 9 Motion to Dismiss. Specifically, the court grants the motion regarding Plaintiff's state law claims and dismisses with prejudice all state law claims against Defendants, and grants the motion regarding Plaintiffs' claims for punitive damages against the City, which are dismissed with prejudice. The court denies the motion to dismiss with respect to Plaintiffs' section 1983 claim against Canelos and will not e ntertain any further 12(b)(6) motions to dismiss as to whether Canelos is entitled to qualified immunity. The court grants the motion to dismiss with respect to Plaintiffs' section 1983 claim against the City but allows Plaintiffs to amend in ac cordance with the standard for municipality liability as herein set forth. Plaintiffs shall file an amended pleading that addresses the deficiencies identified by the court, and the amended pleading must be filed by 10/6/2017. The court hereby vacates the stay of discovery order 13 . (Ordered by Judge Sam A Lindsay on 9/15/2017) (epm) (Ordered by Judge Sam A Lindsay on 9/15/2017) (epm)
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
JESSICA HERNANDEZ, Individually and §
as Next Friend of AH, a minor child,
CITY OF GRAND PRAIRIE TEXAS; C. §
CANELOS, Individually and in his official §
capacity; and DOE 1, Individually and in
his official capacity,
Civil Action No. 3:16-CV-2432-L
MEMORANDUM OPINION AND ORDER
Before the court is Defendants’ Motion to Dismiss, filed November 11, 2016. After careful
consideration of the motion, and brief, response, reply, pleadings, and applicable law, the court
grants in part and denies in part Defendants’ Motion to Dismiss.
Jessica Hernandez (“Hernandez”), individually, and as next friend of AH, a minor child
(collectively, “Plaintiffs”), filed this action on August 22, 2016, against the City of Grand Prairie
(the “City”), C. Canelos (“Canelos”) (collectively, “Defendants”), and Doe 1 (“Doe”). Plaintiffs
sued Defendants and Doe pursuant to 42 U.S.C. § 1983 for alleged violations of the Fourth
Amendment to the United States Constitution for unreasonable search and seizure, and for the use
of excessive force. 1 Plaintiffs also assert state law claims of assault; negligence; intentional
Title 42 U.S.C. § 1983 is a federal statute that allows a person to bring a civil action against
another person who, acting under color of state law, deprives him or her of a right or privilege secured by
the United States Constitution or laws of the United States.
Memorandum Opinion and Order – Page 1
infliction of emotional distress (“IIED”); negligent hiring, training, and retention; gross
negligence; and respondent superior. Defendants have filed a motion to dismiss pursuant to
Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be
granted, and they contend that this entire action should be dismissed.
Defendants contend that Plaintiffs’ civil rights claim under section 1983 against the City
fails because the allegations of Plaintiffs’ Original Complaint (“Complaint”) do not allege
sufficiently that Plaintiff was injured as a result of an unconstitutional policy or custom of the City;
that the City has governmental immunity with respect to the state law claims and that such
immunity extends to Canelos individually; that punitive damages are not recoverable against the
City; that Plaintiffs’ excessive force claim against Canelos fails because the allegations are too
conclusory and, therefore, fail to state a claim against Canelos; that Canelos is entitled to qualified
immunity on the federal claim asserted by Plaintiffs because he did not violate clearly established
law of which a reasonable law enforcement officer would have known.
Plaintiffs counter that the allegations of Plaintiff’s Complaint are factually and legally
sufficient to withstand a Rule 12(b)(6) motion to dismiss. They urge the court to deny the motion
Rule 12(b)(6) Standard
To defeat a motion to dismiss filed pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure, a plaintiff must plead “enough facts to state a claim to relief that is plausible on its
face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007); Reliable Consultants, Inc. v.
Earle, 517 F.3d 738, 742 (5th Cir. 2008); Guidry v. American Pub. Life Ins. Co., 512 F.3d 177,
180 (5th Cir. 2007). A claim meets the plausibility test “when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the defendant is liable for the misconduct
Memorandum Opinion and Order – Page 2
alleged. 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.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (internal citations omitted). While a complaint need not contain detailed factual
allegations, it must set forth “more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (citation omitted). The
“[f]actual allegations of [a complaint] must be enough to raise a right to relief above the speculative
level . . . on the assumption that all the allegations in the complaint are true (even if doubtful in
fact).” Id. (quotation marks, citations, and footnote omitted). When the allegations of the pleading
do not allow the court to infer more than the mere possibility of wrongdoing, they fall short of
showing that the pleader is entitled to relief. Iqbal, 556 U.S. at 679.
In reviewing a Rule 12(b)(6) motion, the court must accept all well-pleaded facts in the
complaint as true and view them in the light most favorable to the plaintiff. Sonnier v. State Farm
Mutual Auto. Ins. Co., 509 F.3d 673, 675 (5th Cir. 2007); Martin K. Eby Constr. Co. v. Dallas
Area Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004); Baker v. Putnal, 75 F.3d 190, 196 (5th Cir.
1996). In ruling on such a motion, the court cannot look beyond the pleadings. Id.; Spivey v.
Robertson, 197 F.3d 772, 774 (5th Cir. 1999). The pleadings include the complaint and any
documents attached to it. Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498-99 (5th Cir.
2000). Likewise, “‘[d]ocuments that a defendant attaches to a motion to dismiss are considered
part of the pleadings if they are referred to in the plaintiff’s complaint and are central to [the
plaintiff’s] claims.’” Id. (quoting Venture Assocs. Corp. v. Zenith Data Sys. Corp., 987 F.2d 429,
431 (7th Cir. 1993)). In this regard, a document that is part of the record but not referred to in a
plaintiff’s complaint and not attached to a motion to dismiss may not be considered by the court
in ruling on a 12(b)(6) motion. Gines v. D.R. Horton, Inc., 699 F.3d 812, 820 & n.9 (5th Cir. 2012)
Memorandum Opinion and Order – Page 3
(citation omitted). Further, it is well-established and ‘“clearly proper in deciding a 12(b)(6) motion
[that a court may] take judicial notice of matters of public record.”’ Funk v. Stryker Corp., 631
F.3d 777, 783 (5th Cir. 2011) (quoting Norris v. Hearst Trust, 500 F.3d 454, 461 n.9 (5th Cir.
2007) (citing Cinel v. Connick, 15 F.3d 1338, 1343 n.6 (5th Cir. 1994)). 2
The ultimate question in a Rule 12(b)(6) motion is whether the complaint states a valid
claim when it is viewed in the light most favorable to the plaintiff. Great Plains Trust Co. v.
Morgan Stanley Dean Witter, 313 F.3d 305, 312 (5th Cir. 2002). While well-pleaded facts of a
complaint are to be accepted as true, legal conclusions are not “entitled to the assumption of truth.”
Iqbal, 556 U.S. at 679 (citation omitted). Further, a court is not to strain to find inferences
favorable to the plaintiff and is not to accept conclusory allegations, unwarranted deductions, or
legal conclusions. R2 Invs. LDC v. Phillips, 401 F.3d 638, 642 (5th Cir. 2005) (citations omitted).
The court does not evaluate the plaintiff’s likelihood of success; instead, it only determines
whether the plaintiff has pleaded a legally cognizable claim. United States ex rel. Riley v. St.
Luke’s Episcopal Hosp., 355 F.3d 370, 376 (5th Cir. 2004). Stated another way, when a court
deals with a Rule 12(b)(6) motion, its task is to test the sufficiency of the allegations contained in
the pleadings to determine whether they are adequate enough to state a claim upon which relief
Defendants observe that Plaintiffs have included allegations in their response that are not included
in Plaintiff’s Complaint or the letter complaint Hernandez made to the Internal Affairs Division (“IAD”) of
the Grand Prairie Police Department. “Review of a Rule 12(b)(6) dismissal is, by its very nature, limited
to the allegations and theories set forth in the complaint that the district court had before it when granting
the motion to dismiss.” Law v. Ocwen Loan Servicing, L.L.C., 587 F. App’x 790, 793 n.3 (5th Cir. 2014);
Powell v. Dallas Morning News LP, 610 F. Supp. 2d 569, 577 (N.D. Tex. 2009) (holding that a court may
not consider statements or allegations in a response filed by the plaintiffs). This means that a court is limited
to consideration of the pleadings, and matters or theories raised in a response are not part of the pleadings.
Accordingly, the court will not consider any statement, whether by Plaintiffs or Defendants, that does not
fall within the scope of the pleadings. Frankly, both sides have injected factual allegations that are outside
Memorandum Opinion and Order – Page 4
can be granted. Mann v. Adams Realty Co., 556 F.2d 288, 293 (5th Cir. 1977); Doe v. Hillsboro
Indep. Sch. Dist., 81 F.3d 1395, 1401 (5th Cir. 1996), rev’d on other grounds, 113 F.3d 1412 (5th
Cir. 1997) (en banc). Accordingly, denial of a 12(b)(6) motion has no bearing on whether a
plaintiff ultimately establishes the necessary proof to prevail on a claim that withstands a 12(b)(6)
challenge. Adams, 556 F.2d at 293.
Plaintiffs’ Section 1983 Claim Against the City
The Parties’ Contentions
Defendants, among other things, contend that the allegations of Plaintiffs’ Complaint are
too conclusory to state a claim for municipal liability against the City for the failure to train,
discipline, or supervise its police officers with respect to the use of force. Plaintiffs discuss
municipal liability in a general sense, that is, that a municipal may be sued under section 1983,
which is really not in dispute; however, Plaintiffs do not address the sufficiency of their pleadings
and state that discovery will prove the existence of a policy or custom adopted or ratified by the
City in which it failed to train, discipline, and supervise its police officers regarding the use of
force when interacting with members of the public. This approach puts the “cart before the horse,”
as Plaintiffs must first get past the pleadings stage before they argue about what the evidence will
show or prove. For the reasons that follow, the court agrees with Defendants that Plaintiffs have
failed to state a claim upon which relief can be granted against the City.
Plaintiffs’ Allegations Regarding the City
The court now sets forth the allegations Plaintiffs make regarding their section 1983 claims
against the City. Plaintiffs assert as follows:
Memorandum Opinion and Order – Page 5
Defendant City of Grand Prairie, Texas is also liable under 42 U.S.C. § 1983
for failing to supervise and train its police officers and for sanctioning officer
misconduct. In addition, Defendant City of Grand Prairie, Texas has a general
policy, pattern and/or practice of not disciplining police officers for their conduct,
thereby sanctioning the police officers’ actions, which amounts to a departmental
policy of sanctioning constitutional violations. Defendant City of Grand Prairie,
Texas’ failure to supervise and train its police officers, and its willful sanctioning
of constitutional violations by its employees, constitutes gross negligence and/or
deliberate and conscious indifference to peoples’ rights including the right to be
free from unreasonable search and seizure.
Additionally, municipalities may be held liable under 42 U.S.C. § 1983 for
constitutional torts that are committed pursuant to a policy, procedure, practice, or
custom of the municipality. Even if Defendant City of Grand Prairie, Texas’
practice of sanctioning constitutional torts was not authorized by an officially
adopted policy, the practice may be so common and well-settled that it fairly
represents official policy. See Bd. of County Commr’s of Bryan County v. Brown,
520 U.S. 397, 404 (1997).
In this matter, Defendant City of Grand Prairie, Texas’ formal and informal
actions in sanctioning, overlooking, hiding and/or tacitly encouraging police
misconduct by its officers, the IAD Department, the Grand Prairie police chief, as
well as its Mayor and City Council reflect a policy, practice custom and procedure
authorizing and allowing the use of excessive force that violated the civil rights of
Plaintiff Jessica Hernandez. Consequently, Defendant City of Grand Prairie, Texas
is liable for the harm caused to Plaintiff Jessica Hernandez as a result of its policies,
practices customs and procedures.
Defendant City of Grand Prairie, Texas is liable for the constitutional torts
of Defendants C. Canelos and Doe 1 because it sanctioned the following customs,
practices, and policies:
Using excessive force to carry out an otherwise routine detainment;
Using excessive force when such force is not necessary or permitted
Ignoring the serious need for training and supervision of its officers
in regards to the use of force;
Failing to discipline those persons who are found to have engaged
in the use of excessive force upon those entrusted to their care and/or under
Failing to adequately supervise and/or observe its officers;
Failing to adequately train officers regarding the availability of
alternative means of detaining persons other than the use of force.
Failing to discharge officers who have shown a pattern or practice
of using excessive force; and
Memorandum Opinion and Order – Page 6
Adopting a practice whereby officers who are unfit for peace officer
duties, as shown by prior actions in the line of duty, are allowed to retain
At the time Plaintiff Jessica Hernandez was slammed into the wall,
Defendants C. Canelos and Doe 1 were acting pursuant to an official city policy,
practice, custom and procedure that sanctions, overlooks and/or authorizes police
officers' excessive use of force. See Monell v. New York City Dept. of Social Servs.,
436 U.S. 658, 659 (1978).
Thus, Defendant City of Grand Prairie, Texas’ policy of sanctioning,
overlooking and/or authorizing police brutality was a direct cause of Plaintiff
Jessica Hernandez's injuries; in particular, its policy caused Plaintiff Jessica
Hernandez to be deprived of her constitutional rights to be free from unlawful
seizure and objectively unreasonable force under the Fourth and Fourteenth
Amendments to the United States Constitution and constitutes gross negligence
and/or deliberate and conscious indifference to the rights, safety, and welfare of
others, including Plaintiff Jessica Hernandez.
Pls.’ Original Compl. ¶¶ 30-35.
Municipal Liability under 42 U.S.C. § 1983
A governmental entity can be sued and subjected to monetary damages and injunctive relief
under 42 U.S.C. § 1983 only if its official policy or custom causes a person to be deprived of a
federally protected right. Board of the Cty. Comm’rs of Bryan Cty. v. Brown, 520 U.S. 397, 403
(1997); Monell v. New York City Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978). A governmental
entity cannot be liable for civil rights violations under a theory of respondeat superior or vicarious
liability. Id.; see also Baskin v. Parker, 602 F.2d 1205, 1208 (5th Cir. 1979). Official policy is
A policy statement, ordinance, regulation, or decision that is officially
adopted and promulgated by the [city] lawmaking officers or by an official to whom
the lawmakers have delegated policy-making authority; or
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 [city]
policy. Actual or constructive knowledge of such custom must be attributable to
Memorandum Opinion and Order – Page 7
the governing body of the [city] or to an official to whom that body had delegated
Webster v. City of Houston, 735 F.2d 838, 841 (5th Cir. 1984) (en banc); Bennett v. City of Slidell,
735 F.2d 861, 862 (5th Cir. 1984) (en banc). For purposes of a motion to dismiss under Rule
12(b)(6), a plaintiff must plead facts from which the court can reasonably infer that the “challenged
policy was promulgated or ratified by the city’s policymaker.” Groden v. City of Dallas, Texas,
826 F.3d 280, 285 (5th Cir. 2016). “[C]ourts should not grant motions to dismiss for [the] fail[ure]
to plead the specific identity of the policymaker.” Id. (citing Johnson v. City of Shelby, Miss., 135
S. Ct. 346 (2014)). The ultimate question in deciding the sufficiency of a complaint is whether a
person has alleged facts to show that a policymaker promulgated or ratified an unconstitutional
policy that resulted in injury to him or her.
To defeat “a motion to dismiss, a complaint’s ‘description of a policy or custom and its
relationship to the underlying constitutional violation . . . cannot be conclusory; it must contain
specific facts.’” Balle v. Nueces Cty. Tex., ___ F. App’x ___, 2017 WL 2590512, at *4 (5th Cir.
June 15, 2017) (quoting Spiller v. City of Tex. City Police Dep’t, 130 F.3d 162, 167 (5th Cir.
1997)). In other words, the pleadings are adequate with respect to a section 1983 claim against a
city when they set forth “specific factual allegations that allow a court to reasonably infer that a
policy or practice exists and that the alleged policy or practice was the moving force” for the
constitutional violation asserted. Id. (citation omitted).
A cursory review of the allegations in Plaintiffs’ Complaint readily reveals that the
allegations are conclusory. In other words, Plaintiffs make conclusory statements but do not
provide even a modicum of facts to support the conclusory statements regarding an
Memorandum Opinion and Order – Page 8
unconstitutional policy or custom. As such, the court cannot reasonably infer that Plaintiffs are
entitled to relief beyond the speculative level. By way of example, if Plaintiffs were to assert
merely that a person was intoxicated with no supporting allegations, the court would have no basis
to reasonably infer that person was intoxicated. On the other hand, if Plaintiffs were to assert that
the person had bloodshot and glassy or glazed eyes, smelled of an alcoholic beverage, slurred his
speech as he talked, staggered or had an unsteady walk, was argumentative or combative, and kept
repeating what he said, the court, using some or all of these facts, could reasonably infer, rather
than speculate, that this person was intoxicated. Given the paucity of Plaintiffs’ allegations
regarding the failure of the City to train, discipline, or supervise its police officers regarding the
use of force, this court cannot reasonably infer that the City promulgated or ratified a policy or
custom to not train, discipline, or supervise its police officers, and that any such alleged policy or
custom was the moving force that caused Plaintiffs to suffer a constitutional injury. In other words,
under Twombly and Iqbal, a plaintiff “must plead facts sufficient to show that her claim has
substantive plausibility.” Johnson, 135 S. Ct. at 347. Plaintiffs have not so pleaded. Accordingly,
Plaintiffs have failed to state a claim upon which relief can be granted against the City beyond the
speculative level. 3
Excessive Force and Defendant Canelos’s Qualified Immunity Defense
The Parties’ Contentions
As previously stated, Canelos has asserted the affirmative defense of qualified immunity
to Plaintiff’s section 1983 claims. He contends that the force used was not excessive, and was
In reaching this conclusion, the court agrees with Defendants to the extent that Plaintiffs’
allegations are too conclusory to support a claim against the City. The court, however, places no merit in
the City’s argument that Plaintiffs failed to identify a policymaker, as a party is not required to plead the
identity of a specific policymaker. Groden, 826 F.3d at 285.
Memorandum Opinion and Order – Page 9
objectively reasonable under the circumstances. Plaintiffs contend that Canelos is not entitled to
qualified immunity because they have sufficiently pleaded facts for an excessive force claim to
overcome or defeat his affirmative defense at the pleadings stage. They contend that the use of
force by Canelos was excessive and objectively unreasonable. The court agrees.
Plaintiffs’ Allegations Regarding the Use of Excessive Force
As stated previously, Hernandez believes that Canelos used excessive force during her
encounter with him. The court now sets forth the allegations of Plaintiffs’ Complaint regarding
the use of force by Canelos:
On May 14, 2016 Plaintiff Jessica Hernandez and her minor son [AH] were
visiting her parents’ home located at 629 S.E. 12th Street in Grand Prairie, Texas.
At this time, Plaintiff Jessica Hernandez was 8 months pregnant. The solid front
door to her parents’ home was open to let in the outside breeze through the screen
door, which was secured and unlocked.
As Plaintiff Jessica Hernandez was resting on the couch watching
television, Defendants C. Canelos and Doe 1, without knocking, without requesting
entry, and without a warrant to enter the house, entered through the screen door into
the home demanding to know the whereabouts of documents belonging to Flor
Hernandez, Plaintiff Jessica Hernandez’s sister-in-law.
In response to the demands of Defendants C. Canelos and Doe 1, Plaintiff
Jessica Hernandez got off the couch, intending to escort them to the back yard
where her father and her brother, Jesus Hernandez, the husband of Flor Hernandez,
were performing repair work on an automobile.
Before Plaintiff Jessica Hernandez could escort Defendants C. Canelos and
Doe 1 to the back yard, Defendant C. Canelos began yelling obscenities and racial
slurs at Plaintiff Jessica Hernandez and slammed her against a wall of the home by
pushing her in her stomach, causing her personal and emotional injuries, including
fright, fear, shock, outrage, and humiliation.
The aforedescribed incident was witnessed by Plaintiff [AH], age 5 years,
causing him emotional injuries, including severe fright, fear, shock, outrage, and
As a result of the aforedescribed incident, Plaintiff Jessica Hernandez made
a complaint to the Internal Affairs Division of the Grand Prairie Police Department,
Memorandum Opinion and Order – Page 10
the outcome of which resulted in a finding that “. . . the evidence tends to support
the factual occurrence, as reported by the complainant[.]”
The Civil Rights Act, codified as 42 U.S.C. § 1983, provides as follows:
Every person who, under color of any statute, ordinance,
regulation, custom or usage, of any state or territory or the District
of Columbia, subjects, or causes to be subjected, any citizen of the
United States or any other person within the jurisdiction thereof to
the deprivation of any laws, privileges or immunities secured by the
Constitution and laws, shall be liable to the party injured in an action
at law, suit in equity, or other proper proceeding for redress.
Plaintiffs allege that Defendants, jointly and/or severally, deprived Plaintiff
Jessica Hernandez of her Fourth Amendment rights, as incorporated and applied to
the states through the Fourteenth Amendment. Defendants violated Plaintiff
Jessica Hernandez’s rights in the following ways:
By Defendants C. Canelos and Doe 1 seizing Plaintiff Jessica
Hernandez without probable cause in violation of the Fourth Amendment
and its reasonableness standard.
By Defendants C. Canelos and Doe 1 using excessive force in
seizing Plaintiff Jessica Hernandez, in violation of the Fourth Amendment
and its reasonableness standard.
By Defendant Doe 1’s failure to prevent the deprivation of Plaintiff
Jessica Hernandez’s constitutional rights, knowing such deprivation was
about to occur and which he had the power to prevent[.]
By Defendant City of Grand Prairie, Texas failing to provide
supervision and/or proper training to prevent such incidents of excessive
Defendants’ violations of Plaintiff Jessica Hernandez’s constitutional rights
were a direct cause of her injuries, including personal and emotional injuries,
including fright, fear, shock, outrage, and humiliation.
Plaintiffs bring a claim against Defendants C. Canelos and Doe 1,
individually as well as in their official capacities, pursuant to 42 U.S.C. § 1983.
At all material times, Defendants C. Canelos and Doe 1 were acting under
color of state law as agents and employees of Defendant City of Grand Prairie,
Texas. At all times material, Defendants C. Canelos and Doe 1 were wearing their
Memorandum Opinion and Order – Page 11
official Grand Prairie Police Department uniforms and were acting in the course
and scope of their duties as Grand Prairie Police Officers.
Force is excessive, and therefore violates the Fourth Amendment if it is not
reasonable in light of the circumstances facing the officer. See Graham v. Connor,
490 U.S. 386, 398 (1989). The facts and circumstances of this case show that the
actions of Defendants C. Canelos and Doe 1 against Plaintiff Jessica Hernandez
were clearly unreasonable.
At the time of the incident, Defendants C. Canelos and Doe 1 had no reason
to believe that Plaintiff Jessica Hernandez ·was armed or dangerous. First, Plaintiff
Jessica Hernandez made no violent movements towards Defendants C. Canelos
and/or Doe 1. Second, Plaintiff Jessica Hernandez made no verbal threats to
Defendants C. Canelos and/ or Doe 1. Third, Plaintiff Jessica Hernandez did not
touch Defendants C. Canelos and/or Doe 1. Fourth, it was clear to Defendants C.
Canelos and Doe 1 that Plaintiff Jessica Hernandez was pregnant, was unarmed and
did not have any weapon or dangerous device readily at hand, and was significantly
shorter and lighter than Defendants C. Canelos and Doe 1.
Defendants C. Canelos and Doe 1 did not have a reasonable fear of
imminent bodily harm when Defendant C. Canelos slammed Plaintiff Jessica
Hernandez into the wall, nor did they have a reasonable belief that any other person
was in danger of imminent bodily harm from Plaintiff Jessica Hernandez.
Moreover, Defendant Doe 1’s failure to prevent Defendant C. Canelos from
slamming Plaintiff Jessica Hernandez into the wall, knowing such use of force was
about to occur and which he had the power to prevent, resulted in a deprivation of
Plaintiff Jessica Hernandez’s constitutional rights. Consequently, the use of force
on Plaintiff Jessica Hernandez was unwarranted under these circumstances and was
objectively unreasonable when comparing the amount of force used against the
need for the force.
By using subjectively and objectively unreasonable force while acting
under color of state law, Defendants C. Canelos and Doe 1 violated Plaintiff Jessica
Hernandez’s rights under the Fourth and Fourteenth Amendments to the United
States Constitution and caused her injuries complained of herein.
Pls.’ Original Compl. ¶¶ 11-16, 19-21, and 23-28.
Excessive Force Standard
A plaintiff’s claim for excessive force must be determined according to Fourth Amendment
standards because “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
Memorandum Opinion and Order – Page 12
analyzed under the Fourth Amendment and its ‘reasonableness’ standard, rather than under a
‘substantive due process’ approach.” Graham v. Connor, 490 U.S. 386, 395 (1989) (emphasis in
original). Determining whether the force used was reasonable “requires careful attention to the
facts and circumstances of each particular case, including the severity of the crime at issue, whether
the suspect poses an immediate threat to the safety of the officers or others, and whether [the
suspect] is actively resisting arrest or attempting to evade arrest by flight.” Id. at 396 (citation
omitted). The issue of reasonableness centers on whether the officer’s actions are “objectively
reasonable” in light of the facts and circumstances with which he is faced, without regard to the
officer’s underlying intent or motivation. Id. at 397 (citation omitted). Whether the use of force
is reasonable “must be judged from the perspective of a reasonable officer on the scene, rather than
the 20/20 vision of hindsight.” Id. at 396. In applying Graham, the Fifth Circuit uses a three-part
test that requires a plaintiff to show “(1) injury, (2) which resulted directly and only from a use of
force that was clearly excessive, and (3) the excessiveness of which was clearly unreasonable.”
Cooper v. Brown, 844 F.3d 517, 522 (5th Cir. 2016) (citation omitted); Tarver v. City of Edna,
410 F.3d 745, 751 (5th Cir. 2005) (citation omitted). Injury can be one that is physical or
psychological. Ikerd v Blair, 101 F. 3d 430, 434 n.9 (5th Cir. 1996).
Discussion Regarding Excessive Force
Defendants contend that the allegations of the Complaint are too conclusory to state a claim
of excessive force under the Fourth Amendment. The court disagrees. Considering the allegations
of the Complaint and pleadings in the light most favorable to the Plaintiffs, the court is convinced
that they have adequately pleaded a Fourth Amendment violation.
The court has closely reviewed the pleadings with respect to the excessive force claim. A
review of the allegations of Plaintiffs’ Complaint reveals that: Hernandez was visiting her parents’
Memorandum Opinion and Order – Page 13
home in Grand Prairie; she was lying on the couch when Canelos and another police officer entered
through the front door without knocking and without a search warrant; the officers were inquiring
about documents that pertained to her sister-in-law, Flor Martinez; Hernandez had intended to
escort the officers to the back yard where her father and brother (Flor’s husband) were reparing an
automobile; before she could escort the officers, Canelos began yelling obscenities and racial slurs
at her and slammed her against a wall by pushing her in the stomach, 4 which caused her personal
and emotional injuries that include fright, fear, humiliation, outrage, and shock; Hernandez was
eight months pregnant; she was significantly smaller in size than both officers; she did not threaten
the officers physically or verbally; she made no violent moves toward the officers; she was not
armed and had no weapons in her possession; and finally, Hernandez did not “defiantly walk into
Officer Canelos as he blocked her path” as asserted by Defendants. Defs’. Mot. & Br. to Dismiss
16. Nothing in the pleadings supports this statement.
The court fully understands that “[n]ot every push or shove, even if it may later seem
unnecessary in the peace of a judge’s chambers . . . violates the Fourth Amendment.” Graham v.
Connor, 490 U.S. at 396 (citation omitted). In this case, nothing has been pleaded to indicate that
the officers had a legitimate right to be in the residence or what alleged offense or incident the
officers were investigating; or that Hernandez posed any immediate threat to the officers or a third
In her Complaint to the IAD, Hernandez states that Canelos pushed or slammed her twice. As
Hernandez stated in her Complaint that she complained to the IAD, and Defendants attached her IAD
complaint to their motion to dismiss, it becomes part of the pleadings, as well as the letter from the Chief
of Police stating the conclusions of the IAD investigation.
Memorandum Opinion and Order – Page 14
The court has no pause in concluding that Hernandez has sufficiently alleged facts to show
that she has suffered some injury that resulted directly and only from the use of force that was
clearly excessive, and the excessiveness was clearly unreasonable. Cooper v. Brown, 844 F. 3d at
This is not a case in which a person was merely “pushed” or “shoved.” Hernandez contends
that Canelos “slammed” her twice, and by definition, the verb “slam” necessarily describes force
that is much greater than a mere “push” or “shove.” At this juncture, there are no allegations to
inform the court why any force at all was used against Hernandez.
Defendants argue that Hernandez makes no allegation of any specific injury of Canelos’s
use of force to detain her and contend that the use of force was minimal. Defendants misapprehend
the law on these points. A recent case involving the use of force and qualified immunity, which
cites to earlier precedent, Alexander v. City of Round Rock, 854 F.3d 298 (5th Cir. 2017), is quite
illustrative on this point.
With respect to Lionel Alexander’s claim of excessive force, the Fifth Circuit aptly stated
Alexander alleges that the officers used excessive force in violation of his
Fourth Amendment rights when they “mashed” his face “into the concrete,”
“pinned him by pressing [a] boot or knee on the back of his neck,” and
“manipulate[ed] his limbs and put pressure on his torso, neck, and head.”
Alexander further alleges that, as a result, he “sustained injuries to his body as a
result of this attack, including injuries to his mouth.” He also alleges that he
“sustained emotional and psychological injuries as well.” The district court found
that Alexander did not plead his injuries with enough specificity to overcome the
de minimis requirement.
We disagree. “[A]lthough a de minimis injury is not cognizable, the extent
of injury necessary to satisfy the injury requirement is ‘directly related to the
amount of force that is constitutionally permissible under the circumstances.’”
Brown v. Lynch, 524 Fed. Appx. 69, 79 (5th Cir. 2013) (quoting Ikerd v. Blair, 101
F. 3d 430, 434-35 (5th Cir. 1996)). “Any force found to be objectively unreasonable
Memorandum Opinion and Order – Page 15
necessarily exceeds the de minimis threshold, and, conversely, objectively
reasonable force will result in de minimis injuries only.” Id. (emphasis added)
(footnote omitted). Consequently, “only one inquiry is required to determine
whether an officer used excessive force in violation of the Fourth Amendment.”
Ikerd, 101 F. 3d at 434 n.9. In short, “as long as a plaintiff has suffered ‘some
injury,’ even relatively insignificant injuries and purely psychological injuries will
prove cognizable when resulting from an officer’s unreasonably excessive force.”
Brown, 524 Fed. Appx. at 79 (footnotes omitted) (quoting Ikerd, 101 F.3d at 434).
On the facts alleged, we conclude that the officers’ use of force was
objectively unreasonable. Nothing in Alexander’s statements or actions indicated
that he posed any risk of harm to the officers. Nor did he pose any flight risk—
indeed, he stayed in his vehicle and made no attempt to leave while Garza awaited
backup. Perhaps Alexander’s refusal to exit his vehicle on Garza’s command
warranted physical removal from the car, but it did not warrant throwing Alexander
onto the ground, kneeing him in the back, and pushing his face into the concrete.
The officers’ use of force once Alexander was safely removed from the vehicle was
not objectively reasonable. Consequently, Alexander’s alleged injuries—though
perhaps not sufficient on their own to satisfy the de minimis requirement—are
enough to support a claim for excessive force at the motion to dismiss stage.
Id. at 309.
While the officers in the Alexander case used more force than what Canelos appears to
have used, such distinction is quite beside the point. Whether the force used is excessive and
objectively unreasonable necessarily depends on the situation the police officer encounters. Here,
we have a female who is eight months pregnant, much smaller in size than the officers, and
unarmed; and she posed no danger or threat to the officers, or another person. While Hernandez’s
use of vulgar language during her encounter with the officers is no cause for approbation, the use
of such language, by itself, was insufficient for Canelos to slam her twice, or even once. Under
these circumstances, the court concludes that Hernandez suffered an injury and that the force used
by Canelos was clearly excessive and objectively unreasonable. Accordingly, Hernandez has
alleged sufficient factual allegations to state a claim for excessive force under the Fourth
Memorandum Opinion and Order – Page 16
Qualified Immunity Standard
Government officials who perform discretionary functions are entitled to the defense of
qualified immunity, which shields them from suit as well as liability for civil damages, if 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). A
defendant official must affirmatively plead the defense of qualified immunity. Gomez v. Toledo,
446 U.S. 635, 640 (1980). Canelos has asserted this defense in his motion to dismiss.
In deciding a dispositive motion that raises the defense of qualified immunity, the Supreme
Court initially set forth a mandatory two-part inquiry for determining whether a government
official was entitled to qualified immunity. Saucier v. Katz, 533 U.S. 194, 201 (2001). Under
Saucier, a court must determine first whether the facts alleged or shown are sufficient to make out
a violation of a constitutional or federal statutory right. If the record sets forth or establishes no
violation, no further inquiry is necessary. On the other hand, if the plaintiff sufficiently pleads or
establishes that a violation could be made out, the court must determine whether the right at issue
was clearly established at the time of the government official’s alleged misconduct. Id. The Court
relaxed this mandatory sequence in Pearson v. Callahan, 555 U.S. 223 (2009), and stated,
“[W]hile the sequence set forth [in Saucier] is often appropriate, it should no longer be regarded
as mandatory,” and judges “should be permitted to exercise their sound discretion in deciding
which of the two prongs of the qualified immunity analysis should be addressed first in light of
the circumstances in the particular case at hand.” Id. at 236. The second prong of the test “is better
understood as two separate inquiries: whether the allegedly violated constitutional right [was]
clearly established at the time of the incident; and if so, whether the conduct of the defendant
[official] was objectively unreasonable in light of that then clearly established law.” Hanks v.
Memorandum Opinion and Order – Page 17
Rogers, 853 F.3d 738, 744 (5th Cir. 2017) (quoting Tarver v. City of Edna, 410 F.3d 745, 750 (5th
Cir. 2005) (internal quotation marks and citations omitted)); see also Evans v. Ball, 168 F.3d 856,
860 (5th Cir. 1999); Hare v. City of Corinth, 135 F.3d 320, 326 (5th Cir. 1998); Eugene v. Alief
Indep. Sch. Dist., 65 F.3d 1299, 1305 (5th Cir. 1995).
Ordinarily, one who pleads an affirmative defense must establish his entitlement to such
defense. In the context of qualified immunity, however, this burden varies from the norm. In this
circuit, the rule is as follows:
Where . . . [a] defendant pleads qualified immunity and shows he is a governmental
official whose position involves the exercise of discretion, the plaintiff then has the
burden to rebut this defense by establishing that the official’s allegedly wrongful
conduct violated clearly established law. We do not require that an official
demonstrate that he did not violate clearly established federal rights; our precedent
places that burden upon plaintiffs.
Pierce v. Smith, 117 F.3d 866, 871-72 (5th Cir. 1997) (internal quotations and citations omitted);
see also Brown v. Callahan, 623 F.3d 249, 253 (5th Cir. 2010).
A right is “clearly established” only when its contours are sufficiently clear that a
reasonable public official would have realized or understood that his conduct violated the right in
issue, not merely that the conduct was otherwise improper. See Anderson v. Creighton, 483 U.S.
635, 640 (1987); Foster v. City of Lake Jackson, 28 F.3d 425, 429 (5th Cir. 1994). Thus, the right
must not only be clearly established in an abstract sense but in a more particularized sense so that
it is apparent to the official that his actions [what he is doing] are unlawful in light of pre-existing
law. Anderson v. Creighton, 483 U.S. at 640; Stefanoff v. Hays County, 154 F.3d 523, 525 (5th
Cir. 1998); and Pierce v. Smith, 117 F.3d at 871.
In Anderson, 483 U.S. at 641, the Court refined the qualified immunity standard and held
that the relevant question is whether a reasonable officer or public official could have believed that
Memorandum Opinion and Order – Page 18
his conduct was lawful in light of clearly established law and the information possessed by him.
If public officials or officers of “reasonable competence could disagree [on whether the conduct is
legal], immunity should be recognized.” Malley v. Briggs, 475 U.S. 335, 341 (1986); Gibson v.
Rich, 44 F.3d 274, 277 (5th Cir. 1995) (citing Babb v. Dorman, 33 F.3d 472, 477 (5th Cir. 1994)).
Qualified immunity is designed to protect from civil liability “all but the plainly incompetent or
those who knowingly violate the law.” Malley v. Briggs, 475 U.S. at 341. Conversely, an official’s
conduct is not protected by qualified immunity if, in light of clearly established pre-existing law,
it was apparent the conduct, when undertaken, would be a violation of the right at issue. Foster,
28 F.3d at 429. To preclude qualified immunity, it is not necessary for a plaintiff to establish that
“the [specific] action in question has previously been held unlawful.” Anderson, 483 U.S. at 640.
For an official, however, to surrender qualified immunity, “pre-existing law must dictate, that is,
truly compel (not just suggest or allow or raise a question about), the conclusion for every likesituated, reasonable government agent that what the defendant is doing violates federal law in the
circumstances.” Pierce v. Smith, 117 F.3d at 882 (emphasis in original and citation omitted); and
Stefanoff v. Hays County, 154 F.3d at 525. Stated differently, while the law does not require a
case directly on point, “existing precedent must have placed the statutory or constitutional question
beyond debate.” Ashcroft v. Al-Kidd, 563 U.S. 731, 741 (2011) (citations omitted).
In analyzing qualified immunity claims, the Supreme Court has “repeatedly told courts …
to not define clearly established law at a high level of generality.” Mullenix v. Luna, 136 S. Ct.
305, 308 (2015) (citation omitted). Pursuant to Mullenix, courts must consider “whether the
violative nature of particular conduct is clearly established” and must undertake this inquiry “in
light of the specific context of the case, not as a broad general proposition.” Id. (citations and
internal quotations marks omitted).
Memorandum Opinion and Order – Page 19
To defeat or overcome an official’s qualified immunity defense, a plaintiff’s complaint
must allege specific facts that, if proved, would show that the official’s conduct violated clearly
established constitutional or statutory rights. In cases involving claims of qualified immunity,
often it is appropriate to require a plaintiff to file a detailed reply to address the plea of qualified
immunity. Schultea v. Wood, 47 F.3d 1427, 1433 (5th Cir. 1995) (en banc). “[T]he reply must be
tailored to the assertion of qualified immunity and fairly engage its allegations. A defendant has
an incentive to plead his defense with some particularity because it has the practical effect of
requiring particularity in the reply.” Id. A plaintiff generally must be given the opportunity to
reply with greater specificity in such cases before the court rules on a defendant’s dispositive
motion. Todd v. Hawk, 72 F.3d 443, 446 (5th Cir. 1996).
A reply, however, is only required when the claims in the complaint are not supported
“with sufficient precision and factual specificity to raise a genuine issue as to the illegality of [a]
defendant’s conduct at the time of the alleged acts.” Schultea, 47 F.3d at 1434. If “the pleadings
on their face show an unreasonable violation of a clearly established constitutional right,” the
assertion of a qualified immunity defense is insufficient to sustain a Rule 12(b)(6) motion to
dismiss. Shipp v. McMahon, 234 F.3d 907, 912 (5th Cir. 2000), overruled in part on other grounds
by McClendon v. City of Columbia, 305 F.3d 314 (5th Cir. 2002) (en banc).
Discussion Regarding Qualified Immunity
The court has already concluded that Hernandez stated a claim for excessive force under
the Fourth Amendment. Also, from the citations previously cited by the court, the right to be free
from the use of excessive force was clearly established on May 14, 2016, the date of the incident
made the basis of this action. Further, the court has concluded that, based upon the pleadings, the
use of force by Canelos was clearly unreasonable.
Memorandum Opinion and Order – Page 20
With respect to the issue of qualified immunity, for the reasons previously stated, a
reasonably competent police officer could not have believed, based the pleadings before the court,
that slamming Hernandez into the wall was legal or objectively reasonable. Any reasonably
competent police officer would have known that the use of such force was objectively
unreasonable and a violation of the Fourth Amendment to the United States Constitution. As the
pleadings show on their face an unreasonable violation of the constitutional right to be free from
the use of excessive force by a police officer, the assertion of a qualified immunity defense is
insufficient to sustain a Rule 12(b)(6) motion to dismiss. Shipp, 234 F. 3d at 912.
At this stage of course, the court has only heard Plaintiffs’ side of the story. After discovery
takes place, depending on what evidence is presented to the court, Plaintiffs’ claims may not
survive summary judgment; however, at the Rule 12(b)(6) dismissal stage, the court is required to
accept Plaintiffs’ factual allegations as true. Alexander, 854 F. 3d at 311.
Plaintiffs’ State Claims Against Defendants
Plaintiffs assert several state law claims against Defendants. Specifically, Plaintiffs have
asserted state law claims of negligence; negligent hiring, training and retention; gross negligence,
and respondent superior against the City. Plaintiffs assert claims of negligence, assault, and IIED
against Canelos and Doe 1.
Plaintiffs did not address their state law claims against Defendants in their response to the
motion to dismiss. When a plaintiff fails to defend or pursue a claim in response to a motion to
dismiss or summary judgment, the claim is deemed abandoned. See Black v. North Panola Sch.
Dist., 461 F.3d 584, 588 n.1 (5th Cir. 2006) (concluding that the plaintiff abandoned her retaliatory
abandonment claim when she failed to defend the claim in response to a motion to dismiss)
(citation omitted); Hargrave v. Fibreboard Corp., 710 F. 2d 1154, 1164 (5th Cir. 1983) (explaining
Memorandum Opinion and Order – Page 21
that a plaintiff, “in his opposition to a motion for summary judgment cannot abandon an issue and
then . . . by drawing on the pleadings resurrect the abandoned issue”). As Plaintiffs did not respond
to or address the state law claims, they are deemed abandoned and are no longer before the court.
This alone is a sufficient basis to rule against Plaintiffs and in favor of Defendants on all state law
claims. As Plaintiffs have abandoned all state law claims, the court will dismiss them with
Further, since the court is dismissing all state law claims on the grounds of
abandonment, it need not address Defendants’ governmental immunity arguments.
Punitive Damages Against the City
Defendants contend that punitive damages may not be recovered against the City with
respect to the state law claims or federal claim. The court agrees. As the court dismisses all state
law claims against both Defendants, they cannot be liable to Plaintiffs for any damages. It is wellsettled that punitive damages may not be recovered if there are no actual damages.
With respect to the federal claim against the City, the City contends that it is immune from
Plaintiffs’ claim for punitive damages. The court agrees. A municipality is immune from an award
of punitive damages for actions brought under U.S.C. § 1983. City of Newport v. Fact Concerts,
Inc., 453 U.S. 247, 271 (1981).
Defendant Doe 1
Defendants contend that this action should be dismissed as to Defendant DOE 1. The court
disagrees. Dismissal of Doe 1 is premature. If Doe 1 is not ultimately identified and served, the
court will take such action as necessary regarding the dismissal of Doe 1.
Amendment of Pleadings
In response to Defendants’ Motion to Dismiss, Plaintiffs did not request to amend their
pleadings in the event the court determined that they have failed to state a claim upon which relief
Memorandum Opinion and Order – Page 22
can be granted. The provision of Rule 15(a)(2) of the Federal Rules of Civil Procedure that states
“[t]he court should freely give leave when justice so requires” is not without limitation. The
decision to allow amendment of a party’s pleadings is within the sound discretion of the district
court. Foman v. Davis, 371 U.S. 178, 182 (1962); Norman v. Apache Corp., 19 F.3d 1017, 1021
(5th Cir. 1994) (citation omitted). In determining whether to allow an amendment of the pleadings,
a court considers the following: “undue delay, bad faith or dilatory motive on the part of the
movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice
to the opposing party by virtue of allowance of the amendment, [and] futility of amendment.”
Foman, 371 U.S. at 182; Schiller v. Physicians Res. Grp. Inc., 342 F.3d 563, 566 (5th Cir. 2003)
Justice requires that Plaintiffs be given an opportunity to replead its claim against the City.
Plaintiffs have not previously amended their pleadings. The court ruled that Plaintiffs have not
stated a claim upon which relief can be granted with respect to the municipal claim. Since the
court ruled that the factual allegations were too conclusory for it to reasonably infer that Plaintiffs
were injured because of an unconstitutional policy or custom they will be given an opportunity to
address these deficiencies and file an amended pleading.
For the reasons herein stated, the court grants in part and denies in part Defendants’
Motion to Dismiss. Specifically, the court grants the motion regarding Plaintiff’s state law claims
and dismisses with prejudice all state law claims against Defendants, and grants the motion
regarding Plaintiffs’ claims for punitive damages against the City, which are dismissed with
prejudice. The court denies the motion to dismiss with respect to Plaintiffs’ section 1983 claim
against Canelos and will not entertain any further 12(b)(6) motions to dismiss as to whether
Memorandum Opinion and Order – Page 23
Canelos is entitled to qualified immunity. The court grants the motion to dismiss with respect to
Plaintiffs’ section 1983 claim against the City but allows Plaintiffs to amend in accordance with
the standard for municipality liability as herein set forth. Plaintiffs shall file an amended pleading
that addresses the deficiencies identified by the court, and the amended pleading must be filed by
October 6, 2017. If Plaintiffs fail to amend as herein directed, this action may be dismissed with
prejudice pursuant to Rule 12(b)(6) for failure to state a claim upon which relief can be granted,
or dismissed without prejudice pursuant to Federal Rule of Civil Procedure 41(b) for failure to
comply with a court order.
The court ordered a stay of discovery on January 20, 2017 (Doc. 13). The order stayed all
discovery pending the court’s ruling on Canelos’s motion to dismiss regarding qualified immunity.
As the court has denied the motion and ruled that Canelos is not entitled to qualified immunity,
the court hereby vacates the stay of discovery order (Doc. 13).
It is so ordered this 15th day of September, 2017.
Sam A. Lindsay
United States District Judge
Memorandum Opinion and Order – Page 24
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