Collie v. Barron et al
Memorandum Opinion and Order...the motion of Barron is granted in part and plaintiff's claims against Barron for racketeering activity, malicious prosecution, and false imprisonment are dismissed. Further ordered that if Barron intends to purs ue a motion for summary judgment based on qualified immunity, he file such motion by 4pm on Jun 16 2017. Further ordered that the motions of Harrington, Rohloff and Tarrant County to dismiss are granted, and that plaintiff's claims against said defendants are dismissed. The court determines that there is no just reason for delay and directs entry of final judgment as to the dismissal of the claims against defendants Harrington, Rohloff, and Tarrant County. (Ordered by Judge John McBryde on 6/1/2017) (wrb)
U.S. DISTRICT COURT
NORTHERN_DISTR'fT OF TEXAS
IN THE UNITED STATES DISTRICT OURT _,. ___
NORTHERN DISTRICT OF TEXA
FORT WORTH DIVISION
JUI~ - I 2017
DAVID B. COLLIE,
- t ) --;-
HUGO BARRON, ET AL.
MEMORANDUM OPINION AND ORDER
Came on for consideration the motion of defendant Hugo
Barron ("Barron"), the motion of defendants L. Harrington
("Harrington") and D.G. Rohloff ("Rohloff"), and the motion of
defendant Tarrant County, Texas ("Tarrant County")
Plaintiff, David B. Collie, has responded to the motions of
Barron and Tarrant County and they have replied. Plaintiff has
not responded to the motion of Harrington and Rohloff, which is
ripe for ruling.
On April 18, 2017, plaintiff filed his first amended
complaint, asserting claims arising out of a shooting that left
him paralyzed from the chest down. Doc. 2 30. Plaintiff alleges:
The motion was also filed on behalf of defendant Vanessa Flores ("Flores"), but the claims
against her were dismissed by stipulation.
" reference is to the number of the item on the docket in this action.
On July 27, 2016, at approximately 11:55 p.m., the City of
Fort Worth received a 911 call regarding a robbery committed by
two black males. The first suspect was in his teens or early
20's, 6'1" tall and weighed approximately 180 pounds, having a
small "afro." The second suspect was 6'4" tall and also in his
teens or early 20's. Doc. 30 at 4-5, , 19. 3 Barron searched
apartment complexes in the area. Upon seeing plaintiff, who was
33 years old, 5'6" and 150 pounds, Barron got out of his police
car and shot plaintiff in the back seven seconds later. Barron
did not use cover, did not give clear commands, did not call or
wait for additional law enforcement personnel, did not use
additional illumination, did not warn plaintiff he would shoot,
and did not determine whether plaintiff posed a threat to safety
before shooting plaintiff. Doc. 30 at 5, , 20. The bullet struck
plaintiff in the back, punctured a lung, and severed his spine.
Doc. 30 at 6, , 20. According to internal affairs interviews,
Barron and another officer accompanying him (Flores, who has been
dismissed) , were yelling potentially conflicting commands at
plaintiff. Doc. 30 at 6, , 21. Harrington and Rohloff wrote
narratives and gave statements that plaintiff pointed a weapon at
The police report to which plaintiff refers does not describe the suspects in this manner, but only
says that the first was a black male wearing no shirt, black basketball shorts, and Nike Air Foamposites
and was around 6'1" and skinny, having a short afro hair style. The second suspect was also shirtless,
wearing khaki pants, around 6'4" and skinny, and having short hair. Doc. 30, Ex. A.
Flores. Plaintiff was charged with aggravated assault on a public
servant, which was ultimately resolved in plaintiff's favor. Doc.
30 at 7, , 23. Following surgery, plaintiff was shackled to a
hospital bed for 61 days and placed under armed guard 24 hours a
day. Doc. 30 at 7, , 24. During his last three weeks in custody,
plaintiff was unshackled for one hour at a time two or three days
a week, but placed in handcuffs around his wrist and ankles. Id.
Plaintiff was forced to remain on his back and developed severe
pressure sores. Id. The shackles were removed only after the
grand jury refused to indict plaintiff. Id.
Plaintiff asserts a number of claims. As to Barron, he
alleges use of excessive force, racketeering activity, false
imprisonment, and malicious prosecution. As to Harrington and
Rohloff, he alleges racketeering activity, false imprisonment,
and malicious prosecution. As to Tarrant County, plaintiff
alleges cruel and unusual punishment, false imprisonment, and
Grounds of the Motions
Barron says that plaintiff has failed to state a plausible
claim against him and that, in any event, Barron is entitled to
qualified immunity. Harrington and Rohloff say the same. Tarrant
County says that plaintiff has not stated any plausible state or
federal law claims against it.
Applicable Legal Principles
Rule 8(a) (2) of the Federal Rules of Civil Procedure
provides, in a general way, the applicable standard of pleading.
It requires that a complaint contain "a short and plain statement
of the claim showing that the pleader is entitled to relief,"
Fed. R. Civ. P. 8(a) (2),
"in order to give the defendant fair
notice of what the claim is and the grounds upon which it rests,"
Bell Atl. Corp. v. Twombly, 550
u.s. 544, 555 (2007) (internal
quotation marks and ellipsis omitted) .
Although a complaint need
not contain detailed factual allegations, the "showing"
contemplated by Rule 8 requires the plaintiff to do more than
simply allege legal conclusions or recite the elements of a cause
Twombly, 550 U.S. at 555 & n.3.
Thus, while a court
must accept all of the factual allegations in the complaint as
true, it need not credit bare legal conclusions that are
unsupported by any factual underpinnings.
556 U.S. 662, 679 (2009)
See Ashcroft v. Iqbal,
("While legal conclusions can provide
the framework of a complaint, they must be supported by factual
Moreover, to survive a motion to dismiss for failure to
state a claim, the facts pleaded must allow the court to infer
that the plaintiff's right to relief is plausible.
U.S. at 678.
To allege a plausible right to relief, the facts
pleaded must suggest liability; allegations that are merely
consistent with unlawful conduct are insufficient. Id. In other
words, where the facts pleaded do no more than permit the court
to infer the possibility of misconduct, the complaint has not
shown that the pleader is entitled to relief. Id. at 679.
"Determining whether a complaint states a plausible claim for
[is] a context-specific task that requires the
reviewing court to draw on its judicial experience and common
As the Fifth Circuit has explained: "Where the complaint is
devoid of facts that would put the defendant on notice as to what
conduct supports the claims, the complaint fails to satisfy the
requirement of notice pleading." Anderson v. U.S. Dep't of
Housing & Urban Dev., 554 F.3d 525, 528
(5th Cir. 2008).
"a complaint must do more than name laws that may have been
violated by the defendant; it must also allege facts regarding
what conduct violated those laws. In other words, a complaint
must put the defendant on notice as to what conduct is being
called for defense in a court of law." Id. at 528-29.
In considering a motion to dismiss for failure to state a
claim, the court may consider documents attached to the motion if
they are referred to in the plaintiff's complaint and are central
to the plaintiff's claims. Scanlan v. Tex. A&M Univ., 343 F.3d
(5th Cir. 2003). The court may also refer to matters of
public record. Davis v. Bayless, 70 F.3d 367, 372 n.3
1995); Cinel v. Connick, 15 F.3d 1338, 1343 n.6
(5th Cir. 1994)
This includes taking notice of pending judicial proceedings.
Patterson v. Mobil Oil Corp., 335 F.3d 476, 481 n.1
2003). And, it includes taking notice of governmental websites.
Kitty Hawk Aircargo, Inc. v. Chao, 418 F.3d 453, 457 (5th Cir.
2005); Coleman v. Dretke, 409 F.3d 665, 667
(5u Cir. 2005).
Qualified immunity insulates a government official from
civil damages liability when the official's actions do not
"violate clearly established statutory or constitutional rights
of which a reasonable person would have known."
Fitzgerald, 457 U.S. 800, 818
For a right to be "clearly
established," the right's contours must be "sufficiently clear
that a reasonable official would understand that what he is doing
violates that right."
Anderson v. Creighton, 483 U.S. 635, 640
Individual liability thus turns on the objective legal
reasonableness of the defendant's actions assessed in light of
clearly established law at the time.
Hunter v. Bryant/ 502 U.S.
Anderson/ 483 U.S. at 639-40.
In Harlow/ the
court explained that a key question is "whether that law was
clearly established at the time an action occurred" because "[i]f
the law at that time was not clearly established, an official
could not reasonably be expected to anticipate subsequent legal
developments/ nor could he fairly be said to 'know' that the law
forbade conduct not previously identified as unlawful."
In assessing whether the law was clearly established at
the time/ the court is to consider all relevant legal authority/
whether cited by the parties or not.
Elder v. Holloway/ 510 U.S.
If public officials of reasonable competence
could differ on the lawfulness of defendant's actions/ the
defendant is entitled to qualified immunity. Mullenix v. Luna/
136 S. Ct. 305
Malley v. Briggs/ 475 U.S. 335
Fraire v. City of Arlington/ 957 F.2d 1268
"[A]n allegation of malice is not sufficient to
defeat immunity if the defendant acted in an objectively
Malley/ 475 u.s. at 341.
In analyzing whether an individual defendant is entitled to
qualified immunity/ the court considers whether plaintiff has
alleged any violation of a clearly established right/ and/ if
whether the individual defendant's conduct was objectively
Siegert v. Gilley, 500 U.S. 226, 231 (1991); Duckett
v. City of Cedar Park, 950 F.2d 272, 276-80 (5th Cir. 1992).
so doing, the court should not assume that plaintiff has stated a
claim, i.e., asserted a violation of a constitutional right.
Siegert, 500 U.S. at 232.
Rather, the court must be certain
that, if the facts alleged by plaintiff are true, a violation has
(5th Cir. 1989).
Connelly v. Comptroller, 876 F.2d 1209, 1212
A mistake in judgment does not cause an officer
to lose his qualified immunity defense.
In Hunter, the Supreme
The qualified immunity standard "gives ample room for
mistaken judgments" by protecting "all but the plainly
incompetent or those who knowingly violate the law."
Malley, [475 U.S.] at 343. . . . This accommodation for
reasonable error exists because "officials should not err
always on the side of caution" because they fear being sued.
502 U.S. at 229.
When a defendant relies on qualified immunity, the burden is
on the plaintiff to negate the defense. Kovacic v. Villarreal,
628 F.3d 209, 211 (5th Cir. 2010); Foster v. City of Lake
Jackson, 28 F.3d 425, 428
(5lli Cir. 1994).
The law is clearly established that the doctrine of
respondent superior does not apply to
New York City Dep't of Soc. Servs., 436 U.S. 658, 691 (1978);
Williams v. Luna, 909 F.2d 121, 123
(5th Cir. 1990). Liability
may be imposed against a governmental entity only if the
governmental body itself subjects a person to a deprivation of
rights or causes a person to be subjected to such deprivation.
Connick v. Thompson, 563 U.S. 51, 60
(2011). Local governments
are responsible only for their own illegal acts. Id.
Pembaur v. Cincinnati, 475 U.S. 469, 479 (1986)). Thus,
plaintiffs who seek to impose liability on local governments
1983 must prove that action pursuant to official
municipal policy caused their injury. Monell, 436 U.S. at 691.
Specifically, there must be an affirmative link between the
policy and the particular constitutional violation alleged. City
of Oklahoma City v. Tuttle, 471 U.S. 808, 823
Proof of a single incident of unconstitutional activity is
not sufficient to impose liability, unless proof of the incident
includes proof that it was caused by an existing,
unconstitutional policy, which policy can be attributed to a
municipal policymaker. Tuttle, 471 U.S. at 823-24.
(If the policy
itself is not unconstitutional, considerably more proof than a
single incident will be necessary to establish both the requisite
fault and the causal connection between the policy and the
constitutional deprivation. Id. at 824.) Thus, to establish
governmental liability requires proof of three elements: a
policymaker, an official policy, and a violation of
constitutional rights whose moving force is the policy or custom.
Piotrowski v. City of Houston, 237 F.3d 567, 578
(5th Cir. 2001).
The Fifth Circuit has been explicit in its definition of an
"official policy" that can lead to liability on the part of a
governmental entity, giving the following explanation in an
opinion issued en bane in response to a motion for rehearing in
Bennett v. City of Slidell:
1. A policy statement, ordinance, regulation, or
decision that is officially adopted and promulgated by
the municipality's lawmaking officers or by an official
to whom the lawmakers have delegated policy-making
2. A persistent, widespread practice of city officials
or employees, which, although not authorized by
officially adopted and promulgated policy, is so common
and well settled as to constitute a custom that fairly
represents municipal policy. Actual or constructive
knowledge of such custom must be attributable to the
governing body of the municipality or to an official to
whom that body had delegated policy-making authority.
Actions of officers or employees of a municipality do
not render the municipality liable under § 1983 unless
they execute official policy as above defined.
735 F.2d 861, 862
(5th Cir. 1984)
The general rule is that allegations of isolated incidents
are insufficient to establish a custom or policy. Fraire v. City
957 F.2d 1268, 1278 (5th Cir. 1992); McConney v.
city of Houston, 863 F.2d 1180, 1184
v. Hayden, 717 F.2d 220, 227-28
(5th Cir. 1989); Languirand
(5th Cir. 1983).
The elements of an excessive force claim are (1) an injury,
(2) that resulted directly and only from a use of force that was
clearly excessive, and (3) the excessiveness was clearly
unreasonable. Freeman v. Gore, 483 F.3d 404, 416 (5th Cir. 2007).
A use of deadly force is presumptively reasonable when an officer
has reason to believe that the suspect poses a threat of serious
harm to the officer or to others. Mace v. ·city of Palestine, 333
F . 3d 6 21 , 6 2 4 (5th Ci r . 2 oo3 ) .
The reasonableness of use of force is to be determined from
the perspective of the officer on the scene and not with "the 2020 vision of hindsight." Mace, 333 F.3d at 625
(quoting Graham v.
Connor, 490 U.S. 386, 396 (1989)). That the officer himself may
have created the situation does not change the analysis. In other
words, that the officer could have handled the situation better
is not a factor in the constitutional analysis. Young v. City of
Killeen, 775 F.2d 1349, 1352-53
(5th Cir. 1985). See also City
Cty. Of San Francisco v. Sheehan, 135 S. Ct. 1765, 1777
(2015) (failure to follow training does not itself negate
entitlement to qualified immunity) . And, if there is no
underlying constitutional violation by the officer, i.e., no
excessive force, then the officer's employer cannot be held
liable. City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986).
Texas Tort Claims Act
Under the doctrine of sovereign immunity, a governmental
entity cannot be held liable for the actions of its employees
unless a constitutional or statutory provision waives the
entity's sovereign immunity in clear and unambiguous language.
Univ. of Tex. Med. Branch v. York, 871 S.W.2d 175, 177
(Tex.1994); Duhart v. State, 610 S.W.2d 740, 742
Texas Tort Claims Act provides such a waiver in certain
circumstances. Tex. Civ. Prac. & Rem. Code § 101.025; York, 871
S.W.2d at 177. However, the Act does not waive immunity with
respect to claims "arising out of assault, battery, false
imprisonment, or any other intentional tort." Tex. Civ. Prac. &
Rem. Code§ 101.057(2); see
Goodman v. Harris County, 571 F.3d
(5th Cir. 2009). Claims of assault, battery, false
imprisonment, and malicious prosecution are unquestionably
intentional torts for which immunity has not been waived. Tex.
Civ. Prac. & Rem. Code§ 101.057(2); Goodman v. Harris Cnty., 571
F.3d 388, 394
(sth Cir. 2009); Texas Dep't of Pub. Safety v.
Petta, 44 S.W.3d 575, 580 (Tex. 2001). Use of excessive force is
an intentional tort and an alternative negligence pleading cannot
save the claim where the claim is based on the same conduct as
the intentional tort claim. Saenz v. City of El Paso, 637 F.
App'x 828, 830-31 (5th Cir. 2016)
Cox v. City of Fort Worth, 762
F. Supp. 2d 926, 935 (N.D. Tex. 2010)
Claims Against Barron
Barron contends that plaintiff has not pleaded sufficient
facts to state a plausible claim or to overcome his qualified
immunity defense. Torns v. City of Jackson, 622 F. App'x 414, 416
Cir. 2015). At this, the pleading stage, the court is
satisfied that plaintiff has alleged a plausible claim for
excessive force. Barron's defense of qualified immunity as to
this claim would be better addressed by motion for summary
Plaintiff apparently recognizes that he has not stated a
claim against Barron for racketeering activity4 or for malicious
The Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961-68 ("RICO"),
provides a private civil action to recover damages for injury to one's business or property by the conduct
constituting the violation. Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479,481,496 (1985). To state a
claim, plaintiff must plead (1) conduct, (2) of an enterprise, (3) through a pattern, (4) of racketeering
activity. Id. at 496. A plaintiff only has standing if he has been injured in his business or property. Id.
Personal injuries and losses flowing therefrom are insufficient to establish RICO standing. Vickers v.
Weeks Marine, Inc., 414 F. App'x 656, 657 (5 1h Cir. 2011); Evans v. City of Chicago, 434 F.3d 916, 931
(7th Cir. 2006). And, civil rights violations do not constitute racketeering activity within the meaning of
RICO. Bowen v. Oistead, 125 F.3d 800, 806 (9th Cir. 1997). Plaintiff has not pleaded facts that meet
as he makes no response to Barron's arguments with
regard to those claims. Plaintiff does address false
imprisonment, but only to set forth the elements of such a claim.
Doc. 40 at 7-8. He does not cite any cases to show that the
sparse facts he has alleged are sufficient to overcome Barron's
qualified immunity, much less to state a plausible claim for
false imprisonment against Barron. Plaintiff does not dispute
that if he is asserting a state law claim, it is barred by Tex.
Civ. Prac. & Rem. Code§ 101.106(a).
Claims Against Harrington and Rohloff
Harrington and Rohloff likewise contend that plaintiff has
not stated plausible claims against them and that they are
entitled to qualified immunity as to each of plaintiff's claims
against them. Plaintiff has not filed a response to their motion,
apparently conceding that he has not stated any plausible claims
against them. 6
Claims Against Tarrant County
The only facts pleaded that may relate to the claims against
Tarrant County are as follows:
Barron notes that plaintiff has made an irrevocable election to pursue his state tort claims
against City ofFort Worth. Tex. Civ. Prac. & Rem. Code§ 101.106(a). And, malicious prosecution
standing alone is not a constitutional violation that may be pursued under 42 U.S.C. § 1983. Castellano v.
Fragozo, 352 F.3d 939, 942 (5th Cir. 2003)(en bane).
See n. 4 (plaintiff has not pleaded a RICO claim); n.5 (plaintiff has elected to sue City of Fort
Worth for his state law torts).
Following surgery to save his life, Plaintiff was
shackled to a hospital bed for 61 days and placed under
armed guard 24 hours a day. Plaintiff remained shackled
to the bed 24 hours a day for more than [a] month.
During his last three weeks in custody, Plaintiff now
paralyzed was unshackled from his bed for one hour at a
time two to three days a week. However, even when
Plaintiff was unshackled from the bed, handcuffs were
placed around his wrist and ankles. The cuffs around
Plaintiff's wrists and ankles were then joined by a
chain. Plaintiff was then placed in [a] wheel chair and
still unable to relieve himself of the pressure that
caused sores on his body. Beyond those periods, where
Plaintiff was still shackled to a bed for 23 hours a
day, Plaintiff remained shackled to the bed 24 hours
each other day until he was "no billed" by the Grand
Jury. Shackling the paralyzed plaintiff to the bed
forced him to remain on his back which lead to the
development of sever [sic] Decubitus Ulcers (commonly
referred to as bed sores or pressure sores) . The
shackles were removed only after the Grand Jury refused
to indict Plaintiff on the charge of Aggravated Assault
of a Public Servant. Upon his release from Harris
Methodist Hospital, Plaintiff was detained in the jail
unit of another hospital, shackled to the bed and
forced to incur medical bills as a result. Plaintiff
was never implicated o charged in the alleged
Doc. 30 at 7-8, , 24.
The first cause of action asserted against Tarrant County is
for cruel and unusual punishment. Doc. 30 at 10-11, , , 32-37.
Again, plaintiff recites some of the facts regarding the
shackling and says Tarrant County was acting by and through its
sheriff's department. Doc. 30 at 11, , 34.
The second cause of action asserted against Tarrant County
is for false imprisonment. It simply says that Tarrant County and
other defendants "acting individually and collectively willfully
detained Plaintiff by shooting him in the back, arresting him for
the demonstrably false criminal offense of Aggravated Assault on
a Peace Officer, shackled him to a bed and posted an armed
officer outside of his hospital room door." Doc. 30 at 25, , 68.
The third cause of action asserted against Tarrant County is
for "vacarious liability" for the actions of defendant Flores.
Plaintiff says that he invokes the doctrine of "Respondent
Superior" against Tarrant County for the actions of defendant
Flores, who was engaged in the furtherance of Tarrant County's
business. Doc. 30 at 29, , , 82-84.
As Tarrant County points out, it cannot be held liable under
a theory of respondeat superior or vicarious liability. Monell,
436 U.S. at 694. Liability under§ 1983 requires a policymaker,
an official policy, and a violation of constitutional rights
whose "moving force" is the policy or custom. Piotrowski, 237
F.3d at 578. Plaintiff has not made any attempt to plead facts to
establish any of these elements. Although he asks for a delay in
ruling so that he can conduct discovery regarding Tarrant
County's policies regarding restraints, Doc. 43 at 7, the court
notes that plaintiff has had notice for quite some time of his
pleading deficiencies, but failed to address them. Specifically,
Tarrant County filed a motion to dismiss on March 31, 2017, Docs.
20, 21. In response, plaintiff filed an amended complaint, Doc.
30, which should have addressed the deficiencies but failed to do
so. At this point, plaintiff would simply be going on a fishing
expedition to see if he could state a claim. 7
The court ORDERS that the motion of Barron be, and is
hereby, granted in part, and plaintiff's claims against Barron
for racketeering activity, malicious prosecution, and false
imprisonment be, and are hereby, dismissed.
The court further ORDERS that, if Barron intends to pursue a
motion for summary judgment based on qualified immunity, he file
such motion by 4:00 on June 16, 2017.
The court further ORDERS that the motions of Harrington,
Rohloff, and Tarrant County to dismiss be, and are hereby,
granted, and that plaintiff's claims against said defendants be,
and are hereby, dismissed.
Plaintiff confirms that he did not bring an action against Tarrant County under the Texas Tort
Claims Act, Doc. 43 at 7, although he appears to argue that the handcuffs and shackles could support
such a claim. However, that some tangible property is merely involved is not enough; using the property
must actually have caused the injury. Spindletop MHMR Center v. Beauchamp, 130 S.W.3d 368, 371-72
(Tex. App.-Beaumont 2004, pet. denied). Here there is no reason to believe that the property itself was
The court determines that there is no just reason for delay
in, and hereby directs, entry of final judgment as to the
dismissal of the claims against defendants Harrington, Rohloff,
and Tarrant County.
SIGNED June 1, 2017.
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