White et al v. City of Holliday, Texas et al

Filing 29

MEMORANDUM OPINION AND ORDER: Based on the foregoing, the Court grants in part and denies in part Defendants' Second Motion to Dismiss for Failure to State a Claim. In particular, pursuant to Fed. R. Civ. P. 12(b)(6), the Court grants Defendant s' motion to dismiss Plaintiffs Michael White's and David White's § 1983 claims against the City of Holliday, and grants Defendants' motion to dismiss Plaintiff David White's § 1983 claims against Defendant Dwayne J ackson based on qualified immunity. The Court dismisses these claims with prejudice. The Court denies Defendants' motion to dismiss Plaintiff Michael White's § 1983 claims against Defendant Dwayne Jackson, and denies as moot Defendants ' Alternative Request for Rule 7(a) Reply to Immunity. An order requiring a scheduling conference and report for contents of scheduling order under Fed. R. Civ. P. 16(b) and 26 will issue separately. (Ordered by Judge Reed C O'Connor on 1/10/2014) (apy)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
WICHITA FALLS DIVISION

MICHAEL WHITE and DAVID WHITE,
Plaintiffs,
v.
DWAYNE JACKSON and CITY OF
HOLLIDAY, TEXAS,
Defendants.

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Civil Action No. 7:13-cv-0050-O

MEMORANDUM OPINION AND ORDER
Before the Court is Defendants’ Second Motion and Brief to Dismiss for Failure to State a
Claim and Alternative Request for Rule 7(a) Reply to Immunity, filed October 8, 2013 (ECF No.
23). Having considered the motion, response, reply, pleadings and applicable law, the Court grants
in part and denies in part Defendants’ motion.
I.

Factual Background and Procedural History
Plaintiffs Michael White and his father, David White, filed this action pursuant to 42 U.S.C.

§ 1983, against the City of Holliday, a municipality in Archer County, Texas, and Dwayne Jackson,
a police officer for the City of Holliday at the time of the incident made the basis of this lawsuit.
This case arises from Officer Jackson’s alleged use of excessive force against Plaintiffs during the
April 20, 2011 arrest of Plaintiff Michael White for driving while intoxicated. Plaintiffs contend that
Officer Jackson’s use of force violated the Fourth Amendment and was in retaliation for protected
speech in violation of the First Amendment. In addition to suing Officer Jackson, Plaintiffs sue the
City of Holliday, alleging, among other things, that the City had policies and practices that showed
1

manifest indifference to the use of excessive force by its police officers, and failed to adequately
train or supervise its officers as to the use of force. Officer Jackson and the City move to dismiss
the First Amended Complaint, arguing that Plaintiffs have failed to allege a constitutional violation
arising from the April 20, 2011 arrest. In support of dismissal, Officer Jackson also contends that
his use of force was objectively reasonable, and he is entitled to qualified immunity, or, alternatively,
the Court should require Plaintiffs to file a Rule 7(a) reply.
The Court now sets out the applicable facts upon which it relies in deciding the pending
motion to dismiss. The facts are drawn from Plaintiffs’ First Amended Complaint, which is the live
pleading. See ECF No. 20, First. Am. Compl.1
After leaving a convenience store, Michael White drove on a public highway to a work site
where he was part of a crew working on an oil rig with his father, Plaintiff David White, and others.
Id. ¶ 10.2 After entering the property on which the oil rig was located, Officer Jackson directed
Michael White from the level entrance to an adjacent uneven area to conduct various field sobriety
tests, and re-positioned the police car to capture the events on the car’s audio/video recording device.
Id. ¶ 11. Upon being taken to the uneven area, Michael White became upset, complained as to the
location and began to yell about his treatment and what was being done generally. Id. ¶ 12. Michael
White told Officer Jackson that he would not do the “fairy dance” (referring to the field sobriety

1

In reviewing a Rule 12(b)(6) motion to dismiss, 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 Mut. Auto. Ins. Co.,
509 F.3d 673, 675 (5th Cir. 2007).

2

The Complaint contains no allegations regarding when Officer Jackson first observed Michael White in his
car, how long he followed White, or when White exited his truck.

2

tests) because the ground was uneven and broken. See id. Officer Jackson then escorted Michael
White out of camera range. See id.
David White, upon seeing the activity at the entrance of the property, approached the
entrance. See id. Officer Jackson told David White and others to leave the area. Upon information
and belief, David White and the other observers were more than twenty-five feet from Officer
Jackson and Michael White. Id. ¶ 13. At some point in time during these events, a deputy from the
Sheriff’s Department arrived. See id.
In response to Michael White’s yelling and complaints about his treatment, Officer Jackson
became visibly irritated and said he could do whatever he wanted, stomped around, and “said that
nobody was going to stop him.” Id. ¶ 14. Officer Jackson told Michael White to walk in a straight
line, which he refused to do. See id. Officer Jackson then left Michael White alone, went to his
police car, and returned with handcuffs, which he placed on Michael White without incident. Id. ¶
15. Officer Jackson thereafter moved Michael White from the uneven area, where the actions were
being recorded, toward Michael White’s truck. See id.
While being moved in the direction of his truck, Michael White stopped to tell his father
something else, and Officer Jackson became noticeably angrier and his voice became louder. Id. ¶
16. During this time period, portions of the events were not recorded, “despite the in-car camera
system having been activated and functioning properly minutes before.” See id. Michael White
again called out to his father, asking him to call his attorney. Id. ¶ 17. Officer Jackson suddenly
turned and used his taser on Michael White until such time as Michael White collapsed to the

3

ground. See id.3 Officer Jackson then picked up Michael White and placed him in the rear of the
police car. See id. At no time preceding Officer Jackson’s use of the taser was Michael White
resistant to Officer Jackson’s verbal instructions or “physical pushing/pulling[.]” Id. ¶ 18. Michael
White did not “make any furtive gestures, sudden movements, attempt to flee, or engage in any
actions that could be seen as threatening or uncooperative — other than his verbal complaints and
comments as to Defendant Jackson.” See id.
After Michael White collapsed to the ground, David White heard Officer Jackson talk about
impounding Michael White’s truck, and any other vehicles around it. Id. ¶ 20. David White
informed Officer Jackson that they needed Michael White’s truck at the work site, after which
Officer Jackson stated he could do whatever he wanted with the vehicles, and there was nothing
anyone could do about it. See id. After announcing his intentions to retrieve tools from Michael
White’s truck, as David White reached into the bed of the truck, Officer Jackson walked next to him
and, without warning or notice, struck David White’s hand with a solid object. Id. ¶ 21.4 David
White was momentarily stunned from the sudden attack and pulled his hand back in pain, noticing
the skin was broken and beginning to bleed. See id. At no time before striking David White’s hand
did Officer Jackson tell David White not to approach the truck or remove items from it. Id. ¶ 22.

3

In his Answer, Officer Jackson denies using a taser during the incident. See Jackson Ans. to Am. Compl.
¶¶ 3.08, 3.15. As this is a motion to dismiss, the Court must accept all well-pleaded facts in the first amended
complaint as true and view them in the light most favorable to the plaintiff, and therefore accepts for
purposes of ruling on the pending motion that Officer Jackson tasered Michael White. See Sonnier, 509 F.3d
at 675. Whether Officer Jackson in fact used the taser is an evidentiary question for summary judgment or
trial.

4

In his Answer, Officer Jackson denies striking or having any physical contact with David White. See
Jackson Ans. to Am. Compl. ¶¶ 3.10, 3.15. Accepting all well-pleaded facts in the first amended complaint
as true and viewing them in the light most favorable to the plaintiff, the Court accepts for purposes of ruling
on the pending motion that Officer Jackson struck Michael White. See Sonnier, 509 F.3d at 675.

4

Before Officer Jackson assaulted David White, David White had not engaged in any conduct that
was threatening or contrary to any instruction, and had not attempted to interfere with Officer
Jackson’s arrest of Michael White. Id. ¶ 23.
II.

Legal Standard
To defeat a motion to dismiss 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 Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing
Twombly, 550 U.S. at 556). “The plausibility standard is not akin to a ‘probability requirement,’ but
it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting
Twombly, 550 U.S. at 556). “Where a complaint pleads facts that are ‘merely consistent with’ a
defendant’s liability, it ‘stops short of the line between possibility and plausibility of entitlement to
relief.’” Id. (quoting Twombly, 550 U.S. at 557) (internal quotation marks omitted).
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
Mut. Auto. Ins. Co., 509 F.3d 673, 675 (5th Cir. 2007). The Court is not bound to accept legal
conclusions as true, and only a complaint that states a plausible claim for relief survives a motion
to dismiss. Iqbal, 556 U.S. at 678–79. When there are well-pleaded factual allegations, the Court
assumes their veracity and then determines whether they plausibly give rise to an entitlement to
relief. Id. However, the Court does “not accept as true conclusory allegations, unwarranted factual

5

inferences, or legal conclusions.” Southland Sec. Corp. v. INSpire Ins. Solutions, Inc., 365 F.3d 353,
361 (5th Cir. 2004).
In ruling on a motion to dismiss under Rule 12(b)(6), the Court cannot look beyond the
pleadings. 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, documents 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.
III.

Analysis
Plaintiff Michael White sues the City of Holliday and Officer Jackson pursuant to 42 U.S.C.

§ 1983 alleging violations of his constitutional rights under the First and Fourth Amendments of the
United States Constitution. Plaintiff David White also brings § 1983 claims against the City and
Officer Jackson for Fourth Amendment violations. Section 1983 “provides a federal cause of action
for the deprivation, under color of law, of a citizen’s ‘rights, privileges, or immunities secured by
the Constitution and laws’ of the United States.” Livadas v. Bradshaw, 512 U.S. 107, 132 (1994).
It “afford[s] redress for violations of federal statutes, as well as of constitutional norms.” Id. To
state a claim under § 1983, a plaintiff must allege facts that show (1) he has been deprived of a right
secured by the Constitution and the laws of the United States; and (2) the deprivation occurred under
color of state law. See Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 155 (1978); Cornish v. Corr.
Servs. Corp., 402 F.3d 545, 549 (5th Cir. 2005).
The City of Holliday and Officer Jackson have moved to dismiss Plaintiffs’ § 1983 claims
for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6), and Officer Jackson also asserts he
6

is entitled to qualified immunity from this lawsuit, or, alternatively, Plaintiffs should be required to
file a Rule 7(a) reply. The Court first considers the City’s grounds for dismissal.
A.

The City of Holliday & Officer Jackson Sued in His Official Capacity5

The City moves to dismiss Plaintiffs’ § 1983 claims arguing that Plaintiffs have failed to state
a constitutional deprivation under the First or Fourth Amendment, have failed to adequately allege
a custom or policy that resulted in a deprivation of their constitutional rights, have failed to
adequately allege a claim for failure to train, and are impermissibly seeking to hold the City
vicariously liable for Officer Jackson’s alleged actions. For the reasons stated below, the Court
concludes that the City’s motion to dismiss Plaintiffs’ § 1983 claims should be granted, as Plaintiffs
have failed to adequately allege that the City’s actions, through its duly enacted policies or customs
promulgated by its policymakers, were the motivating force behind any alleged constitutional
violations, have failed to identify a policymaker, and failed to adequately allege a failure to train or
supervise that directly caused their injuries.6
Section 1983 does not allow a municipality to be held vicariously liable for its officers’
actions on a theory of respondeat superior. 42 U.S.C. § 1983; see Bd. of Cnty. Comm'rs of Bryan
Cnty. v. Brown, 520 U.S. 397, 403 (1997). Rather, a municipality may be liable under § 1983 if the

5

To the extent that Plaintiffs are suing Officer Jackson in his official capacity, an official capacity claim is
merely another way of pleading an action against the entity of which the individual defendant is an agent.
See Kentucky v. Graham, 473 U.S. 159, 165 (1985). Thus, Plaintiffs’ allegations against Officer Jackson in
his official capacity are claims against the City of Holliday. See id.

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The Court’s finding that Plaintiffs have failed to allege a custom or policy that resulted in a constitutional
deprivation obviates the need to address the City’s argument that dismissal is also required for Plaintiffs’
failure to assert an underlying cognizable constitutional claim.

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execution of one of its customs or policies deprives a plaintiff of his constitutional rights. Monell
v. Dep’t of Social Serv., 436 U.S. 658, 690-91 (1978). “Official policy” is defined as:
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 authority; or

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.

Webster v. City of Houston, 735 F.2d 838, 841 (5th Cir. 1984) (en banc); accord Pineda v. City of
Houston, 291 F.3d 325, 328 (5th Cir. 2002). A plaintiff must identify the policy, connect the policy
to the governmental entity itself, and show that his injury was incurred because of the application
of that specific provision. See Bennett v. City of Slidell, 728 F.2d 762, 767 (5th Cir. 1984). A
plaintiff must establish that a governmental entity through its deliberate conduct was “the moving
force behind the injury alleged,” and must establish a direct causal link between the governmental
action and the deprivation of a federally protected right. See Bryan Cnty., 520 U.S. at 404. Liability
must rest on official policy, not the policy of an individual officer. Bennett, 728 F.2d at 769. When
the wrongdoer is a policymaking official, a single act will suffice, if deliberate indifference and
causation are established. Pembaur v. City of Cincinnati, 475 U.S. 469, 481 (1986). “When the
challenged conduct relates to a custom or behavior among non-policymaking employees, which may
be contrary to official policy, a plaintiff cannot rely on a single instance of unconstitutional conduct,
but must demonstrate at least a pattern of similar incidents in which citizens were injured . . . to

8

establish the official policy requisite to municipal liability under section 1983.” Duvall v. Dallas
County, 2008 WL 4561563, at *8 (N.D. Tex. Oct. 10, 2008) (Lindsay, J.) (internal quotations and
citation omitted); see also Bennett, 728 F.2d at 768 n.3 (“Isolated violations are not the persistent,
often repeated, constant violations, that constitute custom and policy as required for municipal
section 1983 liability.”). For a facially constitutional policy, the plaintiff must demonstrate that the
policy was promulgated with deliberate indifference to known or obvious unconstitutional
consequences. Piotrowski v. City of Houston, 237 F.3d 567, 579 (5th Cir. 2001); accord Peterson
v. City of Fort Worth, Tex., 588 F.3d 838, 849-50 (5th Cir. 2009) (discussing failure to train or
supervise officers).
To hold a municipality liable under § 1983 due to a policy of inadequate training, a plaintiff
must show that (1) the training procedures of the municipality’s policymaker were inadequate; (2)
the municipality’s policymaker was deliberately indifferent in adopting the training policy; and (3)
the inadequate training policy directly caused the plaintiff’s injury. City of Canton, Ohio v. Harris,
489 U.S. 378, 388-89 (1989); Baker v. Putnal, 75 F.3d 190, 200 (5th Cir. 1996).
In support of its motion to dismiss, the City argues that Plaintiffs fail to identify a
policymaker and fail to identify a policy which was involved in, or caused, a violation of civil rights.
See Def. Mot. at 5-7. The City contends that Plaintiffs “simply make[] nothing but conclusory
allegations attempting to equate the actions of the individual Defendant Officer Jackson with actions
that can be charged to the City . . . Apparently, in an effort to try to avoid the fact that the Complaint
essentially tries to establish respondeat superior liability as to the City, Plaintiffs plug in formulaic
recitations – devoid of specific facts – about alleged de facto policies [and an allegation of a] general
reputation on the party of the City of Holliday’s Police Department” to condone excessive force. See
9

id. at 5-6. With regard to Plaintiffs’ allegation that the City has no system of personnel evaluation
holding individuals accountable for their actions (see First Am. Compl. ¶ 30), the City argues that
“Plaintiffs provide no specific factual allegation to demonstrate this lack of accountability and
further provide[] no specific factual allegation as to a failure of any person in any particular situation
to be held accountable to perform within established standards of professional conduct.” Def. Mot.
at 7.
In response, Plaintiffs “acknowledge that their Complaint is deficient as to the naming of the
police chief as the policymaker responsible for ensuring that his training policies were inadequate
[sic] and/or non-existent [sic] as to the appropriate use of force[,]” but contend that their remaining
allegations are nevertheless sufficient to allege municipal liability See Pl. Resp. at 4. Plaintiffs seek
leave to amend the pleadings to correct pleading deficiencies. Id.
In reply, Defendants argue that leave to amend should be denied since Plaintiffs have already
had the opportunity to amend the pleadings after Defendants filed their first motion to dismiss. See
Def Reply at 2-3 (“. . . [D]espite being given notice and an opportunity to cure deficiencies, Plaintiffs
now want to take a third bite at the apple and want to once again amend the Complaint . . . Plaintiffs
should not be allowed to amend another time to once again try to assert a claim against the City.”).
The Court agrees.
Given that Plaintiffs had prior opportunities to cure any pleading deficiencies after
Defendants field their initial motion to dismiss (see ECF No. 12), and in light of potential undue
prejudice to Defendants of having to file a third motion to dismiss on the same grounds, the Court
denies Plaintiffs’ request. See generally In re Southmark Corp., 88 F.3d 311, 314-315 (5th Cir.
1996) (in considering whether to permit amendment of the pleadings, the district court may consider
10

factors such as whether there has been “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, and the futility of amendment”). Even were the Court to allow Plaintiffs to
once again amend their complaint to cure the deficiencies relating to allegations about a policymaker,
such amendment would be futile, as Plaintiffs’ conclusory allegations regarding de facto policies and
an alleged “general reputation” by the City’s police department to allow excessive force are
insufficient. See generally Iqbal, 556 U.S. at 680–681.
Having considered the First Amended Complaint, the parties’ legal briefs, and governing law,
the Court finds that Plaintiffs have failed to adequately allege that the City had a custom or policy
that resulted in a deprivation of Plaintiffs’ constitutional rights under the First or Fourth
Amendments, or to adequately allege that their injuries were caused by a municipal policymaker who
was deliberately indifferent in adopting unconstitutional training policies. See generally Monell, 436
U.S. at 690-91; Bryan Cnty., 520 U.S. at 404; Webster, 735 F.2d at 841; City of Canton, 489 U.S.
378, 388-89. Plaintiffs’ allegations are about this one incident involving Officer Jackson, that they
allege resulted in a constitutional deprivation, from which Plaintiffs ask the Court to infer that the
City had a de facto policy or customary practice of allowing excessive force by its peace officers,
or that the City engaged in ratification by inaction. As the Court has already noted, pleadings
pertaining to individual actions taken in this specific case do not suffice to establish a pattern
necessary for municipal liability based on custom or practice. See Bennett, 728 F.2d at 768 n.3. In
short, Plaintiffs have failed to adequately allege that the City’s actions, through its duly enacted
policies or customs promulgated by its policymakers, was the motivating force behind any alleged
constitutional deprivation.
11

Following Twombly and Iqbal, Plaintiffs have the burden to allege facts that show entitlement
to relief. Club Retro, L.L.C. v. Hilton, 568 F.3d 181, 213 (5th Cir. 2009). Well-pled facts that
merely permit an inference of possible misconduct do not show entitlement to relief as required by
Rule 8(a)(2). Gonzalez v. Kay, 577 F.3d 600, 603 (5th Cir. 2009) (relying on Iqbal). Without
enough facts to permit the inference of an official custom or policy that resulted in Plaintiffs’ alleged
injuries, their claims against the City (and Officer Jackson in his official capacity) necessarily fail.
See McClure v. Biesenbach, 355 F. App’x 800, 803-04 (5th Cir. 2009) (finding that Plaintiffs must
plead facts showing that a policy or custom existed to state a claim, and affirming dismissal of
municipal liability claims because the complaint alleged insufficient facts).
For the foregoing reasons, the Court grants the City of Holliday’s motion to dismiss
Plaintiffs’ § 1983 claims. A Rule 54(b) final judgment dismissing Plaintiffs’ claims against the City
and Officer Jackson in his official capacity will issue separately. See Fed. R. Civ. P. 54(b).
B.

Officer Jackson Sued in His Individual Capacity - Fourth Amendment Claims

Officer Jackson argues that Plaintiffs’ excessive force claims against him should be
dismissed for failure to state a claim, and asserts his entitlement to dismissal based on qualified
immunity. Def. Mot. at 14-16.
1.

Qualified Immunity Standard

The doctrine of qualified immunity protects government officials sued pursuant to 42 U.S.C.
§ 1983 “from liability for civil damages insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person would have known.” Pearson v.
Callahan, 555 U.S. 223, 231 (2009) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). A
defendant official must affirmatively plead the defense of qualified immunity. Gomez v. Toledo, 446
12

U.S. 635, 640 (1980). Qualified immunity balances two important interests - the need to hold public
officials accountable when they exercise power irresponsibly and the need to shield officials from
harassment, distraction, and liability when they perform their duties reasonably. Id. This doctrine
protects “all but the plainly incompetent or those who knowingly violate the law.” Malley v. Briggs,
475 U.S. 335, 341 (1986).
Courts generally apply the two-pronged analysis established in Saucier v. Katz, 533 U.S. 194
(2001), in determining whether a government official is entitled to qualified immunity for an alleged
constitutional violation. The first prong of the Saucier analysis asks whether the facts alleged or
shown are sufficient to make out a violation of a constitutional or federal statutory right. Saucier,
533 U.S. at 201. If the record sets out or establishes no violation, no further inquiry is necessary.
On the other hand, if the plaintiff sufficiently pleads or establishes the violation of a constitutional
or federal statutory right, the Court then asks whether the right was clearly established at the time
of the government official’s alleged misconduct. Id. If there are sufficient allegations or evidence
to support the violation of a constitutional right, the court asks whether, nevertheless, qualified
immunity is appropriate because defendant’s actions were objectively reasonable “in light of clearly
established law at the time of the conduct in question.” Hampton Co. Nat’l Sur., L.L.C. v. Tunica
County, Miss., 543 F.3d 221, 225 (5th Cir. 2008). 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). Thus, the right must not only be established in
an abstract sense, but in a more particularized sense so that it is apparent to the official that his
actions are unlawful in light of pre-existing law. Id.
13

The Supreme Court has clarified that it is no longer mandatory for courts to consider the two
prongs set out in Saucier in order, although the Court noted that it may be beneficial to do so.
Pearson, 555 U.S. at 236. Under Pearson, courts are now 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.
2.

Discussion

Michael and David White both allege that Officer Jackson used excessive force in connection
with Michael White’s April 20, 2011 arrest. The Court turns first to Michael White’s excessive
force claims.
a.

Michael White’s Excessive Force Claims

It is clearly established that the Fourth Amendment confers a “right to be free from excessive
force during a seizure.” Poole v. City of Shreveport, 691 F.3d 624, 627 (5th Cir. 2012). To establish
that Officer Jackson violated his constitutional right to be free from excessive force, Plaintiff
Michael White must show: “(1) an 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.” Id. at 628
(citing Ontiveros v. City of Rosenberg, 564 F.3d 379, 382 (5th Cir.2009)). Assuming the pleadings
allege a constitutional violation, the Court must determine whether the law was clearly established
at the time of Officer Jackson’s conduct, and if so, whether Officer Jackson’s use of force was
“objectively reasonable” in light of the facts and circumstances confronting him. Bush v. Strain, 513
F.3d 492, 502 (5th Cir. 2008); see generally Graham v. Connor, 490 U.S. 386, 396 (1989).
In evaluating whether the use of force was reasonable, courts look to the “totality of the
circumstances,” “giving ‘careful consideration to the facts and circumstances of each particular case,
14

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 he is actively resisting arrest or attempting to evade
arrest by flight.’” Ramirez v. Martinez, 716 F.3d 369, 376 (5th Cir. 2013) (quoting Graham, 490
U.S. at 396) (internal citation omitted) (the “Graham factors”). Courts must evaluate the officer’s
action “from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision
of hindsight.” Poole, 691 F.3d at 628 (citing Graham, 490 U.S. at 396).
First, Michael White must allege an injury. In his First Amended Complaint, Michael White
alleges that as a result of Officer Jackson’s use of the taser, he “collapsed to the ground” and due to
Officer Jackson’s wrongful acts he “was caused to suffer physical pain and suffering and mental
anguish.” First Am. Compl. ¶¶ 17, 38. Although Officer Jackson challenges the sufficiency of these
allegations, the Court finds that Michael White has adequately alleged a plausible claim that he was
injured based on Officer Jackson’s conduct. See Iqbal, 556 U.S. at 678–79. The Court now turns
to whether Michael White has adequately alleged that Officer Jackson’s use of force was clearly
excessive to the need and objectively unreasonable.7
Officer Jackson contends that his conduct was not excessive to the force needed nor
objectively unreasonable. Although there is no fact pattern identical to this case, the Fifth Circuit
recently ruled that the use of a certain force after an arrestee had been restrained and handcuffed was
excessive and unreasonable. See Ramirez, 716 F.3d at 378-79 (denying qualified immunity where

7

Given the significant overlap in analysis, the Court will consider in tandem whether Plaintiffs have
adequately alleged that the use of force was clearly excessive or clearly unreasonable. See generally Deville
v. Marcantel, 567 F.3d 156, 167 (5th Cir. 2009) (addressing simultaneously the questions of whether force
used was “excessive” and “unreasonable”); Poole, 691 F.3d at 628 (recognizing the “intertwined” nature of
the inquiry for addressing excessive force clams where qualified immunity at issue, and examining whether
officers’ use of force was clearly excessive or clearly unreasonable in tandem).

15

officer used taser on subdued and handcuffed suspect, even where suspect had initially pulled away
from officer’s attempt to handcuff him); see also Newman v. Guedry, 703 F.3d 757, 762-63 (5th Cir.
2012) (denying qualified immunity where officers immediately resorted to nightstick and taser where
suspect did not pose threat to officers’ safety and did not resist officers or attempt to flee); Chacon
v. City of Austin, Texas, 2013 WL 2245139, at *15 (W.D. Tex. May 31, 2013) (denying qualified
immunity where officer tased suspect twice while suspect was on his knees, and at most resisting
officers’ efforts to push him down onto his stomach); Bush, 513 F.3d at 501-02 (denying qualified
immunity where officer used excessive force that was objectively unreasonable and in violation of
clearly established law when he forcefully slammed a suspect’s face into a vehicle after subduing
her and placing her in handcuffs).
Based on this body of case law, as well as the Graham factors, the Court concludes that
Michael White’s allegations are sufficient to state a claim that Officer Jackson used clearly excessive
force that was unreasonable. First, the Court considers the “severity of the crime at issue[,]”
Graham, 490 U.S. at 396, in this case driving while intoxicated. This factor weighs in favor of
minimal force. See Deville v. Marcantel, 567 F.3d 156, 167 (5th Cir. 2009) (lower amount of force
justified where plaintiff was stopped for speeding). The second factor is whether Michael White
posed an immediate threat to the officers or others. Graham, 490 U.S. at 396. Based on the
allegations, a reasonable officer could not have concluded that Michael White posed an immediate
threat to the safety of Officer Jackson, as he alleges he was already handcuffed at the time he was
tased and not resisting Officer Jackson pushing and pulling him toward the vehicle. According to
the pleadings, at no time preceding Officer Jackson’s use of the taser was Michael White resistant
to Officer Jackson’s verbal instructions or “physical pushing/pulling[.]” First Am. Compl. ¶ 18.
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Stopping to yell to his father to call his attorney, without more, is insufficient to find an immediate
threat to the safety of the officers. Officer Jackson relies on Poole, which is distinguishable. 691
F.3d at 628. In Poole, officers witnessed Poole driving in a reckless manner, Poole threw an
unknown liquid onto the police car following him, and after being stopped and smelling of alcohol,
Poole resisted arrest and was tased. Id. In Poole, the majority held that an objectively reasonable
officer could have found Poole to be a threat because he raised his hands at one of the officers and
invited the officer to punch him prior to the tasing. Id. at 627-29. Unlike the suspect in Poole, based
on the allegations, Michael White never attempted to strike Officer Jackson or suggested Officer
Jackson strike him. He could not have raised his hands as he was handcuffed. This factor therefore
weighs in favor of Michael White. As to the final factor, whether Michael White was “actively”
resisting arrest or attempting to evade arrest by fleeing, see Graham, 490 U.S. at 396, taking all
allegations in the pleadings as true, the Court finds that these factors weigh in favor of Michael
White. According to the pleadings, Michael White did not “make any furtive gestures, sudden
movements, attempt to flee, or engage in any actions that could be seen as threatening or
uncooperative — other than his verbal complaints and comments as to Defendant Jackson.” First
Am. Compl. ¶ 18. Further, although Officer Jackson arrested Michael White for driving while
intoxicated, there were “no charges for resisting arrest, disorderly conduct, etc. or allegation of
threatening conduct by Michael which would give rise to a lawful basis requiring the use of force.”
Id. ¶ 19. The Court also notes that cases in this area make a distinction between “active” and
“passive” resistance. See Chacon, 2013 WL 2245139, at *14 (citing Deville, 567 F.3d at 167).
There are simply no allegations that would lead the Court to conclude that Officer Jackson was

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confronted with active resistance or a suspect attempting to flee. Accordingly, this final factor also
weighs in favor of Michael White.
Accepting all well-pleaded facts in the complaint as true, as the Court must at this stage, see
Sonnier, 509 F.3d at 675, and after evaluating the Graham factors, supra, the Court concludes that
a reasonable officer would view Officer Jackson’s use of force as clearly excessive and unreasonable
under the circumstances. See Ramirez, 716 F.3d at 378-79; Newman, 703 F.3d at 762-63; Chacon
v. City of Austin, Texas, 2013 WL 2245139, at *15; see also Bush, 513 F.3d at 501-02.
Having found that there are sufficient allegations to support the violation of a constitutional
right under the Fourth Amendment for excessive force, the Court must determine whether,
nevertheless, qualified immunity is appropriate because Officer Jackson’s actions were objectively
reasonable “in light of clearly established law at the time of the conduct in question.” See Hampton
Co. Nat’l Sur., 543 F.3d at 225. Officer Jackson argues that his conduct was not objectively
unreasonable under clearly established law. As already stated, “the contours of the right must be
sufficiently clear that a reasonable public official would understand that what he is doing violates
that right.” Anderson, 483 U.S. at 640. “The central concept is that of ‘fair warning’: The law can
be clearly established despite notable factual distinctions between the precedents relied on and the
cases then before the Court, so long as the prior decisions gave reasonable warning that the conduct
then at issue violated constitutional rights.” Newman, 703 F.3d at 763 (internal quotations and
citations omitted). In Ramirez, the Fifth Circuit recently re-visited its holding in Newman regarding
the law on the use of tasers, stating “In Newman v. Guidry, we addressed whether the law on the use
of tasers was clearly established at the time of an event that occurred before the incident between
Ramirez and [Officer] Martinez.” 716 F.3d at 379. The events in Newman took place in August
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2007. See Newman, 703 F.3d at 759. The Ramirez court quoted Newman in determining whether
the law regarding taser use was clearly established at the time of the events at issue:
Guedry contends that he had no reasonable warning that tasing Newman multiple
times violated Newman’s constitutional rights, because there was then no binding
case law on the appropriate use of tasers. Lawfulness of force, however, does not
depend on the precise instrument used to apply it. Qualified immunity will not
protect officers who apply excessive and unreasonable force because their means of
applying it is novel.
Id. (quoting Newman, 703 F.3d at 763-64). The Ramirez court, relying on Newman, held that where
“Ramirez alleged he posed no threat to officers and yet was tased twice, including once after he was
handcuffed and subdued,” the district court did not err in denying the officer qualified immunity on
Ramirez’s claim for excessive force. See id.
Based on prior case law, where courts have denied qualified immunity in instances where
officers have tased suspects after they have been handcuffed and subdued, as well as the above
analysis of the Graham factors, the Court concludes that Officer Jackson is not entitled to qualified
immunity on Plaintiff Michael White’s § 1983 claim for use of excessive force in violation of his
Fourth Amendment. Specifically, Plaintiff Michael White has adequately stated a claim that Officer
Jackson’s use of the taser, when Plaintiff was handcuffed and not engaging in active resistance or
attempting to flee, was objectively unreasonable under clearly established law. See Newman, 703
F.3d at 764; Ramirez,716 F.3d at 378-79; Chacon, 2013 WL 2245139, at *15; see also Bush, 513
F.3d at 501-02. Accordingly, the court denies Officer Jackson’s motion to dismiss based on
qualified immunity, and denies as moot Officer Jackson’s alternative request for Rule 7(a) Reply.8

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In reaching this decision, the Court recognizes the “perilous circumstances under which much of law
enforcement work is carried out and the inevitable need for split second decisions.” See Ramirez, 716 F.3d
at 380 (Jones, J. dissenting). The Court further recognizes that the law in question must be clear, “under
reasonably analogous circumstances confronted by an officer, that no reasonable officer would use that

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b.

Plaintiff David White’s Excessive Force Claims

Unlike Michael White’s excessive force claims, the Court determines that Plaintiff David
White has failed to allege a constitutional violation for excessive force. To establish that Officer
Jackson violated his constitutional right to be free from excessive force, Plaintiff David White must
show: “(1) an 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.” Poole, 691 F.3d at 628.
David White alleges he took actions to retrieve tools from the bed of Michael White’s truck after
Officer Jackson stated an intention to impound the truck. First Am. Compl. ¶¶ 20-23. The
complaint also alleges that “Defendant Jackson said he would do whatever he wanted with the
vehicles and there was nothing anyone could do about it.” Id. ¶ 20. These allegations make clear
that despite knowing of Officer Jackson’s intention to impound the truck, David White decided to
approach the truck and begin reaching for tools in the bed of the truck. Under these circumstances,
Officer Jackson could reasonably have believed that he should not allow David White to grab tools
that could potentially be used as weapons. On the face of the First Amended Complaint, there are
simply no allegations from which the Court can find a claim for excessive force. As correctly argued
by Officer Jackson, even if Officer Jackson struck David White’s hand causing injury (which Officer
Jackson denies), this would not be excessive force under the circumstances alleged by Plaintiffs as
Officer Jackson could certainly have concluded that striking David White in the hand while he was

quantum of force.” Id. at 381 (internal quotations and citation omitted). This standard operates to “protect
officers from the sometimes ‘hazy border between excessive and acceptable force.’” Id. (quoting Saucier,
533 U.S. at 206). The Court in this instance does not have the benefit of a summary judgment record where
evidence has been developed regarding the events of April 20, 2011, but is ruling on a motion to dismiss
where all allegations must be taken as true. “Excessive force claims are necessarily fact-intensive; whether
the force used is ‘excessive’ or ‘unreasonable’ depends on ‘the facts and circumstances of each particular
case.’” Deville, 567 F.3d at 167 (quoting Graham, 490 U.S. at 396). Officer Jackson’s entitlement to
qualified immunity, while denied at this juncture, can be re-visited later in the case.

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attempting to grab tools from the bed of a truck was reasonable force under the totality of the
circumstances faced by the Officer. See Def. Mot. at 13 (citing Kellough v. Bertrand, 22 F. Supp.
2d 602, 607 (S.D. Tex. 1998)). Further, as Officer Jackson notes, David White fails to allege that
the broken skin on his hand was disproportionate or excessive in the face of a reasonably perceived
need for force. See id. (citing Saucier, 533 U.S. at 205).
Based on the foregoing, the Court concludes that Officer Jackson’s motion to dismiss David
White’s excessive force claim should be granted, as David White has failed to adequately allege that
the force used by Officer Jackson was clearly excessive or unreasonable under the circumstances
alleged in the complaint. Alternatively, the Court agrees that Officer Jackson is entitled to dismissal
based on qualified immunity, as Plaintiff David White has failed to negate Officer Jackson’s
qualified immunity defense. Otherwise stated, Officer Jackson is entitled to qualified immunity from
David White’s excessive force claim because the pleadings fail to allege that Officer Jackson’s
conduct was objectively unreasonable under clearly established law. See generally Saucier, 533 U.S.
at 201; Anderson, 483 U.S. at 638, 640-44; Graham, 490 U.S. at 396-97.
C.

Officer Jackson Sued in His Individual Capacity - First Amendment Claims

Officer Jackson also moves to dismiss Plaintiff Michael White’s § 1983 claim for alleged
First Amendment violations. To reiterate, Plaintiff Michael White alleges that Officer Jackson’s use
of excessive force was in retaliation for his verbal complaints and his request to his father that he
contact an attorney. See First Am. Compl. ¶ 25 (“The use of force by Defendant Jackson was an
exercise of retaliatory animus for Michael White’s having engaged in protected speech under the
First Amendment during the process of his detention and arrest.”).

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In support of dismissal, Office Jackson argues, “To the extent [Michael White] tries to create
a unique claim under a theory that use of force violated his First Amendment rights, that claim fails
as well.” Def. Reply at 7. In support, Officer Jackson relies on the case of Mesa v. Prejean, 543
F.3d 264, 273 (5th Cir. 2008), a case in which the Fifth Circuit determined that where an arrest is
objectively reasonable and supported by probable cause, a First Amendment claim cannot succeed.
See Def. Mot. at 13. Citing Mesa, Officer Jackson argues that “If a retaliatory arrest claim fails
under the First Amendment in the face of probable cause, then a First Amendment claim in the
context of an alleged retaliatory use of excessive force must also fail if the force was not excessive.”
Def. Reply at 7. In opposition, Plaintiffs contend that Mesa is distinguishable, as it concerns an
individual arrested with probable cause seeking to raise First Amendment claims for a retaliatory
arrest, which is not at issue in this case. See Pl. Resp. at 6. Instead, Plaintiffs argue, “Michael White
claims Defendant Jackson employed the E.C.D. against him in retaliation for his comments and
complaints, as he was already under arrest and hand-cuffed [and] [t]hat employing the E.C.D. was
almost contemporaneous with his telling his dad to call his attorney.” Id.
The Court agrees with Plaintiffs that Mesa is inapposite, as Michael White is not alleging a
retaliatory arrest, but retaliatory use of excessive force post-arrest. Viewing Plaintiffs’ allegations
as true, the Court finds that Plaintiffs have adequately alleged that Officer Jackson’s use of excessive
force was in retaliation for Michael White’s exercise of his First Amendment right to free speech,
and Officer Jackson’s motion to dismiss should be denied. See generally City of Houston v. Hill,
482 U.S. 451, 462 (1987) (the “First Amendment protects a significant amount of verbal criticism
and challenge directed at police officers.”); Mesa, 543 F.3d at 273 (citing Lewis v. City of New

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Orleans, 415 U.S. 130, 134-35 (1974) (Powell, J., concurring)) (“Trained officers must exercise
restraint when confronted with a citizen’s anger over police action.”).
IV.

Conclusion
Based on the foregoing, the Court grants in part and denies in part Defendants’ Second

Motion to Dismiss for Failure to State a Claim. In particular, pursuant to Fed. R. Civ. P. 12(b)(6),
the Court grants Defendants’ motion to dismiss Plaintiffs Michael White’s and David White’s §
1983 claims against the City of Holliday, and grants Defendants’ motion to dismiss Plaintiff David
White’s § 1983 claims against Defendant Dwayne Jackson based on qualified immunity. The Court
dismisses these claims with prejudice.
The Court denies Defendants’ motion to dismiss Plaintiff Michael White’s § 1983 claims
against Defendant Dwayne Jackson, and denies as moot Defendants’ Alternative Request for Rule
7(a) Reply to Immunity.
An order requiring a scheduling conference and report for contents of scheduling order under
Fed. R. Civ. P. 16(b) and 26 will issue separately.
SO ORDERED this 10th day of January, 2014.

_____________________________________
Reed O’Connor
UNITED STATES DISTRICT JUDGE

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