Craig et al v. City of Fort Worth et al

Filing 38

MEMORANDUM OPINION and ORDER: The court ORDERS that the #21 motion to dismiss of Martin be, and is hereby, granted in part and denied in part, and that plaintiffs' Count III claim for Unlawful Seizure of a Person and Count IV claim for Bystander Injury as against Martin be, and are hereby, dismissed (Ordered by Judge John McBryde on 5/17/2018) (bdb)

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\ NORTHERN r::sTmc1OF1EXAS

IN THE UNITED STATES DISTRic1 couRt--····
NORTHERN DISTRICT OF TE:x'f.S
MAY I

I

FORT WORTH DIVISION
JACQUELINE CRAIG, INDIVIDUALLY
AND ON BEHALF OF MINORS J. H. ,
K.H., AND A.C., ET AL.,

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§

Plaintiffs,

§
§

vs.

§
§

CITY OF FORT WORTH, TEXAS,
ET AL.,

§

NO. 4:17-CV-1020-A

§
§

Defendants.

§

MEMORANDUM OPINION
and
ORDER
Before the court for consideration and decision is the
motion of defendant William D. Martin ("Martin"), to dismiss the
claims asserted against him by plaintiffs, Jacqueline Craig
("Craig") , Brea Hymond ( "Hymond"), and J. H., K. H., and A. C., each
a minor acting by and through Craig as his/her next friend.
Having considered the motion, the response of plaintiffs,
Martin's reply, plaintiffs' sur-reply, the record, and the
applicable legal authorities, the court finds that the motion
should be granted in part and denied in part.
I.

Plaintiff's Complaint
Plaintiffs initiated this action by the filing of a
complaint on December 22, 2017, against City of Fort Worth, Texas
("City"), Martin, and Itamar Vardi ( "Vardi") .

An abbreviated

I
\
I

version of its allegations as they pertain to Martin are set
forth below:
On December 21, 2016, A.C., the minor son of Craig, suffered
an injury as a result of Vardi having grabbed him by the back of
the neck and pushing him to the ground because A.C. had dropped
raisins near Vardi's home.

L.C., who was with A.C., alerted her

mother, Craig.
Upon learning of her son's assault, Craig left her home to
approach Vardi.

Vardi admitted to assaulting A.C. after A.C.

refused to pick up raisins he dropped on the walkway near Vardi's
home.

Id.

Craig called law enforcement to report the assault,

then waited, along with several members of her household, for the
police to arrive.

Id.

At some point in time, Hymond began

recording what was happening.
Martin, an officer of City's police department, arrived to
the location of the incident.
admitted to grabbing A.C.

He briefly spoke with Vardi, who

He then spoke to Craig, whom he had

learned before he arrived had outstanding misdemeanor warrants.
Plaintiffs' precise descriptions of the conduct of Martin about
which they complain are that:
20. Defendant Martin then turned his attention to
Craig who explained that Vardi had assaulted her son.
To that, Martin responded, "Why don't you teach your
son not to litter?" Plaintiff Craig answered that even
if he did litter that did not give a stranger the right
to grab or choke her son. Martin responded "Why not?"
2

Craig, upset by this response, stated, "Because it
doesn't!" Defendant Martin informed Craig that if she
continued to yell at him she would "piss [him] off and
then [he would] take [her] to jail."
21. Following this statement, fifteen-year-old
J.H. turned to her mother with her back to Martin and
attempted to end the encounter. Without any explanation
or justification, Defendant Martin grabbed J.H. from
behind and shoved her to the side. Defendant Martin
then grabbed Plaintiff Craig and threw her to the
ground, drawing his Taser gun and shoving it into her
back while she lay prostrate on the ground.
22. Defendant Martin then violently grabbed
Plaintiff Craig's right arm and pulled it behind her
back while pointing the Taser gun at K.H. 1 and
instructing her to get down on the ground. As J.H.
complied, Martin placed Craig in handcuffs while she
lay face down in the street. He then approached J.H.,
who was lying on the ground as instructed, and
straddled the top of her while grabbing the back of her
neck and forcing her head to the concrete. Without any
explanation or justification, Defendant Officer Martin
placed J.H. in handcuffs and lifted her from the ground
by yanking her arms.
23. Defendant Martin then walked Craig and J.H. to
his squad car. Without any justification or
explanation, Defendant Martin placed J.H. in the back
of his car, where she had difficulty maneuvering into
the vehicle with her hands cuffed behind her back.
Defendant Martin grew impatient and shouted "Get in the
car!" while kicking J.H.'s legs into the vehicle and
slamming the door. Defendant Martin also placed Craig
in the vehicle on the opposite side of J.H.
24. Plaintiff, K.H., witnessing the assault on her
mother and sister, attempted to intervene by placing
herself in the path of defendant, Martin in an attempt
to block him from any further assault on members of her

'The court assumes that the "K.H." at this point is intended to be "J.H."
3

family. Defendant, Martin, in turn unlawfully struck
then fourteen year-old plaintiff, K.H., in the throat.

26. Defendant Martin then, suddenly and without
provocation, rushed Plaintiff Brea Hymond, who stood at
a safe distance, recording the arrest. Martin
handcuffed Hymond's arms behind her back and questioned
her about her age. When she failed to respond suitably,
Martin hyper-extended her handcuffed arms by flexing
them above her head in a pain-compliance maneuver,
which he later described as consistent with the
training and procedures he learned at the Fort Worth
Police Academy. When other officers arrived, Plaintiff
Hymond was placed in the back of a police vehicle.
27. Plaintiffs Craig, Hymond and J.H. were taken
into police custody. Plaintiff, Craig was charged with
failure to ID - fugitive from justice (although she is
heard providing proper ID in the recordings available)
and resisting arrest (despite the lack of evidence that
she resisted at any time) . Plaintiff Hymond was
unlawfully charged with interference with a peace
officer and resisting arrest for her actions in
recording the attack. K.H. was transferred to a
juvenile detention center where she was later released
without being charged with any crime.

33. Defendant, Martin, refused to provide
Plaintiffs with any explanation for their unlawful
detention, and although unlawfully detained, Plaintiff
J.H. was never charged.
34. On information and belief, Defendant Martin,
the City and its policymaker acted with deliberate
indifference and/or reckless disregard toward
Plaintiffs' rights, targeting them for unlawful search
and seizure, unlawful assault, and unlawful detention
without any reasonable factual basis to support that
Plaintiffs had committed any crime in responding to an
adult male attack on the'ir minor family member.
Moreover, Defendant Martin failed to adequately
4

investigate the assault of minor plaintiff, A.C., by
defendant, Vardi, disregarding Vardi's admission to the
assault and battery of the minor.
35. On information and belief, Defendant Officer
Martin participated in unlawful threats and abuse of
authority against Plaintiffs under color of law.
Doc. 1 at 7-9, 10, , , 20-24, 26-27, 33-35. 2
Based on those alleged facts, plaintiffs brought claims
against Martin for use of excessive force and unlawful seizure. 3
II.

Grounds of the Motion
Martin contends that plaintiffs failed to state a claim
because (1) the arrests of Craig, J.H., K.H., and Hymond were
constitutional,

(2) plaintiffs failed to allege sufficient injury

as to the excessive force claims of Craig, J.H., and K.H. and
Hymond, and (3) A.C. asserts no cognizable bystander claim as to
Martin.

Martin further contends that the facts alleged do not

overcome his qualified immunity.

2

The "Doc._" references are to the numbers assigned to the referenced items on the docket in
this Case No. 4: l 7-CV-1020-A.
3

In addition to suing Maitin individually, plaintiff named him as a defendant in his official
capacity. The comt is not devoting attention to the official capacity claim in this memorandum opinion
and order because it is to be interpreted as nothing more than a claim against City. See Kentncky v.
Graham, 473 U.S. 159, 165 (1985); Monell v. New York Citv Dep't of Soc. Servs., 436 U.S. 658, 690
n.55 (1978).

5

III.
Pleading Standards
A.

Rule 8 (a) (2)
Rule B(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. B(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. at 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
of action.

Id. 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.

See Ashcroft v. Igbal, 556 U.S. 662, 679

(2009) ("While legal conclusions can provide the framework of a
complaint, they must be supported by factual allegations.")
Moreover, to survive a motion to dismiss for failure to
state a claim under Rule 12(b) (6), the facts pleaded must allow
the court to infer that the plaintiff's right to relief is
6

plausible.

Id. 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.
Twombly, 550 U.S. at 566-69.

"Determining whether a complaint

states a plausible claim for relief .

[is] a context-specific

task that requires the reviewing court to draw on its judicial
experience and common sense."
B.

Igbal, 556 U.S. at 679.

Qualified Immunity
Martin contends that plaintiffs have not pleaded sufficient

facts to overcome his qualified immunity.
Qualified immunity insulates a government official from
liability for civil damages 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 (1982).

Harlow v.

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."
(1987).

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.
224, 228

Hunter v. Bryant, 502 U.S.

(1991); Anderson, 483 U.S. at 639-40.

In Harlow, the

court explained that a key question is "whether that law was
7

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."
at 818.

457 U.S.

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.
510, 512

(1994).

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.

Malley v. Briggs,

475 U.S. 335, 341 (1986); Fraire v. City of Arlington, 957 F.2d
1268, 1273

(5th Cir. 1992).

"[A]n allegation of malice is not

sufficient to defeat immunity if the defendant acted in an
objectively reasonable manner."

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 so,
whether the individual defendant's conduct was objectively
reasonable.

Siegert v. Gilley, 500 U.S. 226, 231 (1991); Duckett

v. City of Cedar Park, 950 F.2d 272, 276-80 (5th Cir. 1992).

In

so doing, the court should not assume that plaintiff has stated a
valid claim, i.e., asserted a violation of a constitutional
8

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 clearly occurred.

Connelly v. Comptroller, 876

F.2d 1209, 1212 (5th Cir. 1989).

A mistake in judgment does not

cause an officer to lose his qualified immunity defense.

In

Hunter, the Supreme Court explained:
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

(5th Cir. 1994).

At the motion-to-

dismiss stage, "a plaintiff seeking to overcome qualified
immunity must plead 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."

Backe v. LeBlanc, 691 F.3d 645,

648 (5th Cir. 2012).

9

IV.
Analysis
Martin asserts that he is entitled to qualified immunity on
plaintiffs' claims.

Thus, the burden falls on each plaintiff to

show that he/she has alleged facts that, if true, would prove
that Martin violated a clearly established statutory or
constitutional right of plaintiffs, and that Martin took action
that was objectively unreasonable.
Kovacic,

628 F.3d at 211.

See Harlow, 457 U.S. at 818;

Plaintiffs' claims against Martin are

based on an asserted violation of plaintiffs' right to be free
from excessive force
III").

("Count I") and unlawful seizure ("Count

Plaintiffs also assert a bystander injury claim against

Martin for the alleged emotional harm to A.C. as a result of the
events giving rise to this action (the "Count IV" on page 22 of
the complaint) . 4
1.

Unlawful Seizure Claims by Craig, J.H., K.H., and
Hymond

The above-described allegations are plaintiffs' pleaded
version of the events that led to Craig and J.H. being taken into
police custody.
from justice."

Craig was charged with "failure to ID - fugitive
Doc. 1 at 8,

~

27.

4

Hymond was charged with

The complaint has two "Count IV" headings. The "Bystander Injury" Count IV is on page 22 of
the complaint.

10

interference with a police officer and resisting arrest.
9.

Id. at

The complaint does not say the charge for which J.H. was

arrested.

Id. at 9,

~

27.

K.H., although not arrested, was

taken to a juvenile detention center, from which she was released
without being charged.

Plaintiffs alleged these arrests were in

violation of their Fourth Amendment right to be free from
unlawful seizure "despite not committing a penal offense or being
suspected of committing a crime."

Id. at 19,

~

79.

Government officials are protected from charges of wrongful
arrest where a reasonable official would believe probable cause
existed, Brown v. Lyford, 243 F.3d 185 (5th Cir. 2001), and an
officer is entitled to qualified immunity for a claim of wrongful
arrest unless the officer lacked probable cause, Eugene v. Alief
Indep. Sch. Dist., 65 F.3d 1299, 1305 (5th Cir. 1995).

The

Supreme Court has defined probable cause as the "facts and
circumstances within the officer's knowledge that are sufficient
to warrant a prudent person, or one of reasonable caution" to
believe that the suspect has committed an offense, Michigan v.
DeFillippo, 443 U.S. 31, 37 (1979), and probable cause requires a
"fair probability" that a defendant engaged in criminal activity,
United States v. Garcia, 179 F.3d 265, 268-69.

A "fair

probability" must be "something more than a bare suspicion, but
need not reach the fifty percent mark."
11

Id. at 269.

The court analyzes the "totality of the circumstances" when
determining whether such "fair probability" existed.
States v. Antone,

United

753 F.2d 1301, 1304 (5th Cir. 1985)

"The

Constitution does not guarantee that only the guilty will be
arrested.

If it did,

§

1983 would provide a cause of action for

every defendant acquitted--indeed, for every suspect released."
Baker v. McCollan, 443 U.S. 137, 145 (1979).

"Whether probable

cause exists depends upon the reasonable conclusion to be drawn
from the facts known to the arresting officer at the time of the
arrest."

Devenpeck v. Alford, 543 U.S. 146, 152

(2004).

Probable cause need not "be 'closely related' to, and based on
the same conduct as, the offense identified by the arresting
officer at the time of arrest."

Id. at 153.

Finally,

"[w]hen an

arrest is made under authority of a properly issued warrant, the
arrest is simply not a false arrest."

Thomas v. Sams, 734 F.2d

185, 191 (5th Cir. 1984) (citing Rodriguez v. Ritchey,

556 F.2d

1185 (5th Cir. 1977) (en bane)).
Applying the standards above, and accepting plaintiffs'
factual allegations as true, the court has determined that Martin
is entitled to qualified immunity on plaintiffs' claims of
unlawful arrest.
Plaintiffs' complaint makes clear that Martin was aware of
Craig's outstanding warrants at the time he arrived on the scene
12

of the disturbance.

See Doc. 1 at 6 & 8, ,, 19 & 27.

Based on

this fact alone, Martin had cause for arresting Craig and is
therefore entitled to qualified immunity on such claim.
Davenpeck, 543 U.S. at 153

("[A]n arresting officer's state of

mind (except for the facts that he knows)
existence of probable cause.

is irrelevant to the

[H]is subjective reason for

making the arrest need not be the criminal offense as to which
the known facts provide probable cause.").
Plaintiffs' recount of the incident also makes clear that
Martin had probable cause to arrest J.H. and K.H. for interfering
with Martin's performance of his job duties, whether that is what
they were charged with or if they were even arrested at all. 5
Section 38.15 of the Texas Penal Code makes it a crime to
interrupt, disrupt, impede, or otherwise interfere with a police
officer "performing a duty or exercising authority imposed or
granted by law.•

Plaintiffs admit in their complaint that (1)

while Martin and Craig were arguing,

"J.H. turned to her mother

with her back to Martin and attempted to end the encounter,"
Doc. 1 at 7, , 21,
J.H., K.H.

(2) after witnessing the arrest of Craig and

"attempted to intervene by placing herself in the path

of [Martin] , " isL_ at 8, , 24, and (3) Hymond, standing "at a safe

5

As noted above, the pleadings do not establish that K.H. was arrested, but rather that she was
taken to a juvenile detention center.

13

distance away" from these events, recorded them on her cellular
device,

id.,

~~

25-26.

Martin was dispatched to the scene of a disturbance call.
Before his arrival, he learned that one of the persons at the
scene, Craig, had outstanding arrest warrants.

Martin began

questioning Craig when he arrived at the scene.

Plaintiffs'

describe the conversation in such a way as to indicate the
discussion was tense.

Martin cautioned Craig that if she

continued to yell at him he would arrest her.

This is when J.H.

attempted to interfere with Martin's interview of Craig by
physically placing herself between them.

Based on these facts, a

reasonable officer could have believed that J.H. was
"interrupting, disrupting, impeding, or otherwise interfering
with a police officer performing a duty or exercising authority
imposed or granted by law," Tex. Penal Code Ann.

§

38.15, because

she immediately placed herself between the officer and an
individual the officer had just stated he might arrest, see
Haggerty v. Texas Southern Univ., 391 F.3d 653, 656-58

(5th Cir.

2004) (officer could have reasonably believed that school official
who did not come within 10-15 feet of officer and student he was
arresting was interfering with performance of officer's duties);
see also Pearlman v. City of Fort Worth, Tex., 400 F. App'x 956

14

(5th Cir. 2010) (officer had probable cause to arrest individual
who physically intervened during arrest of another) .
The same reasoning supports the conclusion that Martin had
probable cause to arrest K.H.
soon,

6

The complaint describes that

if not immediately, after the above-described events, K.H.

"attempted to intervene by placing herself in the path of
defendant.•

Doc. 1 at 8,

'

24.

Finally, regarding Hymond, plaintiffs alleged that Hymond
"was unlawfully charged with interference with a peace officer
and resisting arrest for her actions in recording the attack."
Id. at 9, '27.

Martin could have reasonably believed that

Hymond's act of video recording Martin as he performed his
official duties was an interference with such duties.
v. Lieutenant Driver, 848 F.3d 678, 687-88

See Turner

(5th Cir.

2017) (holding that prior to the Turner opinion, a person's First

Amendment right to record police, subject to reasonable time,
place, and manner restrictions, was not a clearly established
right)

6

As explained earlier, plaintiffs never actually allege in their complaint that K.I-l. was arrested.
They instead state that at some point after she was struck in the throat by Mmtin, K.H. was transferred to
a juvenile detention center. Based on these allegations, K.H. was, at minimum, detained.

15

2.

Excessive Force Claims by Craig, J.H., K.H., and Hymond

Claims for excessive force in the context of an arrest are
analyzed under the "objective reasonableness" standard.
v. Connor, 490 U.S. 386, 388, 395 (1989).

Graham

To state a claim for

excessive force, plaintiffs must allege facts that can show

"(1)

an injury (2) which resulted directly and only from the use of
force that was excessive to the need and (3) the force used was
objectively unreasonable."
314

(5th Cir. 2001)

Glenn v. City of Tyler, 242 F.3d 307,

(internal citations and quotations omitted)

Determining whether an officer used excessive force "requires
careful attention to the facts and circumstances of each
particular case, including the severity of the crime at issue,
whether the suspect posed an immediate threat to the safety of
the officers or others, and whether he

[was) actively resisting

arrest or attempting to evade arrest by flight."

Graham, 490

U.S. at 396 (citing Tennessee v. Garner, 471 U.S. 1, 8-9 (1985))
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, allowing for the fact
that officers are often forced to make split-second judgments-in
circumstances that are tense, uncertain, and rapidly

16

evolving-about the amount of force that is necessary in a
particular situation.

Graham, 490 U.S. at 396-98.

Martin's primary argument supporting his qualified immunity
defense as to the excessive force claims is that with respect to
each defendant he used only minimal force resulting in "de
minimis" injury or no injury at all.

Doc. 21 at 13, 16-19,

Regarding the amount of damages necessary to sustain an excessive
force case, the Fifth Circuit has recently stated
Although 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. Any force found to be objectively
unreasonable necessarily exceeds the de minimis
threshold, and, conversely, objectively reasonable
force will result in de minimis injuries only.
Consequently, only one inquiry is required to determine
whether an officer used excessive force in violation of
the Fourth Amendment. 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.
Alexander v. City of Round Rock, 854 F.3d 298, 309 (5th Cir.
2017) (internal quotation marks, brackets, citations, and emphasis
omitted).

Thus, the appropriate inquiry for the court in

determining whether Martin is entitled to qualified immunity on
plaintiffs' excessive force claims at this stage is whether
Martin used excessive force.

Id.

17

Based on plaintiffs'

allegations in their complaint, and the rest of the record, the
court is unable to find at this time that Martin is entitled to
qualified immunity on such claims.
At the time of the alleged events giving rise this action,
the law was clearly established that the amount of force that
Martin cohld use "depend[ed] on the severity of the crime at
issue, whether the suspect posed a threat to the officer's
safety, and whether the suspect was resisting arrest or
attempting to flee."

Bush v. Strain, 513 F.3d 492, 502

(5th Cir.

2008); Goodson v. City of Corpus Christi, 202 F.3d 730, 740 (5th
Cir. 2000).
Accepting plaintiffs' pleaded version of the facts as true:
This case involved a situation where Martin was called to the
scene of a disturbance.

Prior to arrival, he learned that one of

the persons present at the scene, Craig, was wanted on warrants.
After a verbal exchange with Craig, he informed her she might be
arrested.

After Craig's daughter, J.H., stepped between Martin

and Craig, he threw Craig to the ground, shoved a taser into her
back, and arrested her.

He straddled J.H., pushed her face into

the concrete, handcuffed her, and then lifted her by her arms.
Those events caused plaintiffs •to suffer extreme and severe
mental and emotional distress, agony and anxiety."

18

Doc. 1 at 15,

, 60.

When K.H. attempted to place herself in the path of Martin

and K.H.'s family members who remained at the scene, Martin
punched K.H. in the throat.

Id. at 8, ,

24.

Finally, Martin

rushed Hymond, who "stood a safe distance away," handcuffed her,
and performed a "pain-compliance" maneuver in order to force her
compliance in answering questions.

Id. at 8, , 26.

Because of those allegations, the court cannot conclude that
Martin has demonstrated that he is entitled to qualified immunity
on the § 1983 excessive force claims.

A different conclusion

might well be reached on the basis of a more complete record.
3.

Bystander Claim by A.C.

Plaintiff's claim for bystander injury to A.C., doc. 1 at
22, , , 94-96, must be dismissed for failure to state a claim.
Plaintiffs failed to state in their complaint under what legal
theory such claim is brought.

If such claim is brought pursuant

to § 1983, it is not cognizable.
767 F.2d 161, 172

(5th Cir. 1985).

Grandstaff v. City of Borger,
If such claim was intended to

be brought pursuant to Texas law, it fails because plaintiffs
have asserted the same claim against Martin's employer, the City
of Fort Worth.

See Tex. Civ. Prac. & Rem. Code§ 101.106(f); see

also Nealon v. Williams, 332 S.W.3d 364, 365

19

(Tex. 2011).

4.

Punitive/Exemplary Damages

To whatever extent plaintiffs' Punitive/Exemplary Damages
claim is asserted against Martin based on plaintiffs' unlawful
seizure and bystander claims against Martin, the
Punitive/Exemplary Damages claim is without merit and is
extinguished by the dismissal of the unlawful seizure and
bystander claims against Martin.

* * * * *
In the last section of plaintiffs' response is a request
that,

if the court determines that Martin's motion should be

granted, the court give plaintiffs leave to amend their
complaint.

Doc. 19 at 17.

amended complaint would add.

There is no suggestion as to what an
Nothing in the title of the

responsive document discloses that any such request is contained
therein.

Thus, plaintiff's request is made in violation of Rule

LR 5.l(c) of the Local Civil Rules of this court, which requires
that any filed document "must clearly identify each included
pleading, motion, or other paper in its title."

Moreover,

plaintiffs have had ample opportunity to properly seek to amend
their complaint to meet the grounds of Martin's motion to
dismiss.

If plaintiffs had further facts to allege, presumably

they would have put them in a proposed amended complaint

20

accompanied by a properly filed motion for leave to amend.

See

Rule LR 15.1 of the Local Civil Rules of this court.

v.
Order
Therefore,
The court ORDERS that the motion to dismiss of Martin be,
and is hereby, granted in part and denied in part, and that
plaintiffs' Count III claim for Unlawful Seizure of a Person and
Count IV claim for Bystander Injury as against Martin be, and are
hereby, dismissed.'
SIGNED May 17, 2018.

District J

'The complaint contains two Counts Ill and two Counts IV. The dismissed Counts as to Martin
are the Count III, titled "Unlawful Seizure ofa Person, 42 U.S.C. § 1983," that appears on pages l9-20
of the complaint and the Count IV .titled "Bystander Injury- All Defendants," that appears on pages 2223 of the complaint.

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