pena v. City of Rio Grande City, Texas
OPINION & ORDER re 8 Motion for Judgment; 14 Motion to Dismiss for Failure to State a Claim; 19 Motion to Dismiss for Failure to State a Claim; 20 Motion for Leave to File; 22 Motion for Leave to File.(Signed by Judge Micaela Alvarez) Parties notified.(bgarces, 7)
United States District Court
Southern District of Texas
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
October 18, 2016
David J. Bradley, Clerk
MARIA V. PENA, et al,
§ CIVIL ACTION NO. 7:16-CV-79
CITY OF RIO GRANDE CITY, TEXAS, et §
OPINION & ORDER
There are several motions pending before the Court in this case. First, the City of Rio
Grande City, Texas (“Defendant Rio Grande City”) filed a motion for judgment on the pleadings
on March 4, 2016. 1 Second, Lieutenant Jose Solis (“Defendant Solis”) filed a motion to dismiss
for failure to state a claim on April 11, 2016.2 Third, Officer Rosa Salinas (“Defendant Salinas”)
filed a motion to dismiss for failure to state a claim on May 5, 2016.3 Fourth, Maria J. Peña
(“Ms. Peña”), Maria V. Peña (“Mrs. Peña), and Daniel Peña (“Mr. Peña”) (collectively
“Plaintiffs”) filed a motion for leave to amend their complaint on May 25, 2016.4 Finally,
Plaintiffs filed a first amended motion for leave to amend their complaint on May 26, 2016.5
Since the parties did not file responses to any of these motions, they are all unopposed.
After considering the motions, record, and relevant authorities, the Court DENIES the
motions for leave to amend, GRANTS the motion for judgment on the pleadings, and GRANTS
the motions to dismiss for failure to state a claim.
Dkt. No. 8.
Dkt. No. 14.
Dkt. No. 19.
Dkt. No. 20.
Dkt. No. 22.
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Plaintiffs allege that on June 30, 2014, they were parked in a vehicle nearby the Rio
Grande City Police Department.6 Mr. Peña asked Ms. Peña to exit the vehicle and she refused.7
Thereafter, Officer Humberto Vela (“Officer Vela”) approached the vehicle and asked Ms. Peña
to exit the vehicle, and she again refused.8 Officer Vela then told Ms. Peña to exit the vehicle or
else he would tase her, and Ms. Peña responded by exiting the vehicle through the rear passenger
door and running away.9 While Ms. Peña was running away, Defendant Solis ordered Officer
Salinas to tase Ms. Peña.10 Defendant Salinas deployed her taser, leaving a “taser barb” lodged in
Ms. Peña’s scalp and another “taser barb” lodged in her back. 11 Upon being tased, Ms. Peña lost
control of her body and fell, causing bruises, burns, lacerations, and two broken teeth.12 Mr. and
Mrs. Peña witnessed the incident.13 In the end, Ms. Peña has minor scars, had one tooth
eventually removed by a dentist, and experiences headaches.14
Motions for Leave to Amend
Under Federal Rule of Civil Procedure 15(a), a party may amend his pleadings once as a
matter of course within 21 days after serving it, or if the pleading requires a responsive pleading,
within 21 days after a responsive pleading is served. Thereafter, a party may amend only with
written consent of the opposing party or by leave of the Court.15 Since Plaintiffs cannot amend as
a matter of course and do not provide written consent of Defendants, Plaintiffs require leave of
Court to amend.
Dkt. No. 6-2, at ¶¶ 6.02–03.
Id. at ¶¶ 6.04–05.
Id. at ¶¶ 6.06-07.
Id. at ¶ 6.08.
Id. at ¶ 6.13.
Id. at ¶ 6.14.
Id. at ¶ 6.15.
Id. at ¶ 6.17.
Id. at ¶¶ 6.15-16.
FED. R. CIV. P. 15(a)(2).
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Rule 15(a) provides that leave to amend a party’s pleading “shall be freely given when
justice so requires.”16 Indeed, the Fifth Circuit has stated that “a district court must possess a
‘substantial reason’ to deny a request for leave to amend.”17 In determining whether to allow
leave to amend a complaint, courts examine whether there was 1) undue delay; 2) bad faith or
dilatory motive; 3) repeated failure to cure deficiencies by previous amendments; 4) undue
prejudice to the opposing party; and 5) futility of the amendment.18 In the absence of any of these
factors, the Court should freely grant the requested leave.19 Nevertheless, the decision whether to
grant leave to amend lies within the Court’s sound discretion.20
Here, there are two motions for leave to amend. The Court will consider the more recent
of the two motions. After reviewing the motion, the Court finds that granting leave to amend
would be futile. A motion for leave is futile if “the amended complaint would fail to state a claim
upon which relief could be granted.”21 Plaintiffs seek to amend their complaint to (1) remove
police reports attached to Exhibit A that contain confidential information,22 (2) join Officer Vela
because his police report that “purports to establish probable cause to arrest” Ms. Peña includes
“false allegations,”23 and (3) change the style of the case by removing “Next Friend” because
Ms. Peña is no longer a minor.24 As the first and third proposed amendments do not substantially
change the complaint, the Court disregards same. The only substantive change is the proposed
joinder of Officer Vela. However, the claims sought to be added as to Officer Vela are
substantially the same as those already alleged against Officers Solis and Salinas. As more fully
FED. R. CIV. P. 15(a). See also Lyn-Lea Travel Corp. v. Am. Airlines, 283 F.3d 282, 286 (5th Cir. 2002) (citation
omitted) (noting that the language of Rule 15(a) “evinces a bias in favor of granting leave to amend”).
Smith v. EMC Corp., 393 F.3d 590, 595 (5th Cir. 2004) (citing Lyn-Lea Travel Corp., 283 F.3d at 286)).
Id. (citing Rosezweig v. Azurix Corp., 332 F.3d 854, 864 (5th Cir. 2003)).
Foman v. Davis, 371 U.S. 178, 182 (1962).
Smith, 393 F.3d at 595 (quoting Quintanilla v. Tex. Television, Inc., 139 F.3d 494, 499 (5th Cir. 1998)).
Stripling v. Jordan Production Co., LLC, 234 F.3d 863, 873 (5th Cir. 2000).
Dkt. No. 22, at p. 2.
Id. at ¶ 12.
Id. at ¶ 13.
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discussed below, Plaintiffs’ existing complaint does not survive the legal sufficiency standard
under Federal Rule of Civil Procedure Rule 12(b)(6). Thus, even if these amendments were
considered, they would not make any difference. As a result, the Court denies the amended
motion for leave to amend and conducts its analysis based on Plaintiffs’ Second Amended
Rule 12(b)(6) Legal Standard
Under Rule 12(b)(6), the Court must dismiss Plaintiffs’ complaint if it fails to state a
claim upon which relief can be granted.26 To survive a Rule 12(b)(6) motion, Plaintiffs must
plead “enough facts to state a claim to relief that is plausible on its face.” 27 This does not require
detailed factual allegations, but it does require “more than labels and conclusions” or “a
formulaic recitation of the elements of a cause of action.”28 The Court regards all such wellpleaded facts as true and views them in the light most favorable to the Plaintiffs.29 Considered in
that manner, factual allegations must raise a right of relief above the speculative level.30
Pursuant to the Supreme Court precedent set forth in Ashcroft v. Iqbal,31 the Court first
disregards from its analysis any conclusory allegations as not entitled to the assumption of
truth.32 The Court then undertakes the “context-specific” task of determining whether wellpleaded allegations give rise to an entitlement of relief to an extent that is plausible, rather than
merely possible or conceivable.33 The “plausibility” standard requires the complaint to state
Dkt. No. 6-2.
FED. R. CIV. P. 12(b)(6).
In re Katrina Canal Breaches Litigation, 495 F.3d 191, 205 (5th Cir. 2007) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007)), cert. denied, 552 U.S. 1182 (2008) (internal quotations omitted).
Twombly, 550 U.S. at 555.
In re Katrina Canal, 495 F.3d at 205 (quoting Twombly, 550 U.S. at 555).
Ashcroft v. Iqbal, 556 U.S. 662 (2009).
See id. at 678-679.
See id. at 679-680.
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“enough facts to raise a reasonable expectation that discovery will reveal evidence of the
necessary claims or elements.”34
Defendant Rio Grande City’s Motion for Judgment on the
Plaintiffs allege § 1983 municipal liability and Texas Tort Claims Act violations against
Defendant Rio Grande City. In response, Defendant Rio Grande City filed a motion for judgment
on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). “A motion for judgment on
the pleadings under Rule 12(c) is subject to the same standard as a motion to dismiss under Rule
Under § 1983, a municipality is liable if the claim is “based upon the implementation or
execution of a policy or custom which was officially adopted by that body’s officers.” 36 To
impose “municipal liability” on a city, Plaintiffs must prove the existence of: (1) a policymaker;
(2) an official policy or custom; and (3) a violation of constitutional rights whose “moving force”
is the policy or custom.37 “[A] municipality cannot be held liable solely because it employs a
tortfeasor—or, in other words, a municipality cannot be held liable under §1983 on a respondeat
superior theory.”38 For municipal liability to attach to Defendant Rio Grande City, the
unconstitutional conduct must be “directly attributable to the municipality through some sort of
official action or imprimatur; isolated unconstitutional actions by municipal employees will
almost never trigger liability.”39 Thus, consideration of the three principles of municipal liability
In re So. Scrap Material Co., 541 F.3d 584, 587 (5th Cir. 2008) (quoting Twombly, 550 U.S. at 556).
Ackerson v. Bean Dredging LLC., 589 F.3d 196, 209 (5th Cir. 2009).
Krueger v. Reimer, 66 F.3d 75, 76 (5th Cir. 1995).
See Piotrowski v. City of Houston, 237 F.3d 567, 578-79 (5th Cir. 2001) (citing Monell v. Dep't of Soc. Servs. of
City of New York, 436 U.S. 658, 694 (1978)).
Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 691 (1978) (emphasis in original).
Piotrowski, 237 F.3d at 578.
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is integral to distinguishing individual violations by employees from actions of the governmental
With regards to the policymaker, “[a]ctual or constructive knowledge of [a] custom must
be attributable to the governing body of the municipality or to an official to whom that body has
delegated policy-making authority.”41 Additionally, the existence of a policy or custom can be
established either through an authorized policymaker’s “statement, ordinance, regulation, or
decision,” or a “persistent, widespread practice of city officials and employees” that “is so
common and well settled as to constitute a custom that fairly represents municipal policy.”42
Even if the policy or custom is facially innocuous, it can support liability under § 1983 if it was
“promulgated with deliberate indifference to the ‘known or obvious consequences’ that
constitutional violations would result.”43 Lastly, there must be a direct causal link between the
policy and the constitutional deprivation.44
Plaintiffs allege municipal liability on the basis that Defendant Rio Grande City has “an
unconstitutional and widespread practice of tasing persons, including juveniles who are not
suspects nor present threats of injury to police officers and others,”45 and also “an
unconstitutional and widespread practice of applying excessive force when there is no crime
involved.”46 Plaintiffs contend that Defendant Rio Grande City’s policymakers had actual or
constructive knowledge of these customs, and further failed to (1) instruct police officers about
the risk of secondary impact following taser use, (2) adequately train police officers on
secondary injuries that could thus result, (3) restrict the use of tasers on juveniles, (4) adequately
Webster v. City of Houston, 735 F.2d 838, 842 (5th Cir. 1984)(en banc).
Bennett v. City of Slidell, 735 F.2d 861, 862 (5th Cir. 1984) (per curiam), cert. denied, 105 S.Ct. 3476 (1985).
Piotrowski v. City of Houston, 237 F.3d 567, 579 (5th Cir. 2001) (citing Bd. Of Comm’rs of Bryan County v.
Brown, 520 U.S. 397, 407 (1997)).
Id. at 580.
Dkt. No. 6-2, at ¶ 7.04.
Id. at ¶ 7.05.
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train police officers about the use of force, (5) supervise personnel with previous excessive force
complaints, (6) investigate the tasing of Ms. Peña, or (7) discipline the police officers involved in
Plaintiffs have not identified an official policy or custom that would impose § 1983
municipal liability. Plaintiffs argue that the city has widespread practices of tasing juveniles and
applying excessive force in situations where there is no crime committed, but do not support
these assertions. The complaint fails to demonstrate the existence of these alleged wrongful
practices or that Defendant Rio Grande City was deliberately indifferent to the consequences of
these practices. Plaintiffs merely conclude, without any factual support, that Defendant Rio
Grande City was aware of these alleged practices and was deliberately indifferent to addressing
them. Absent additional factual allegations showing that these practices even existed, the Court
is unable to find deliberate indifference, and thus Plaintiffs’ municipal liability claims against
Defendant Rio Grande City fail to satisfy the Rule 12(b)(6) legal standard.
Texas Tort Claims Act
The Texas Tort Claims Act (“TTCA”) waives sovereign immunity in limited
circumstances. The TTCA provides:
A governmental unit in the state is liable for:
(1) property damage, personal injury, and death proximately caused by the
wrongful act or omission or the negligence of an employee acting within his
scope of employment if:
(A) the property damage, personal injury, or death arises from the
operation or use of a motor-driven vehicle or motor-driven equipment; and
(B) the employee would be personally liable to the claimant according to
Texas law; and
Id. at ¶¶ 7.04–7.11.
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(2) personal injury and death so caused by a condition or use of tangible or real
property if the governmental unit would, were it a private person, be liable to the
claimant according to Texas law.48
Plaintiffs present numerous arguments for why sovereign immunity should be waived:
(1) Officer Salinas, while acting within the scope of her employment as a government employee,
negligently operated a taser by improperly aiming and firing at Ms. Peña when it was not safe to
do so, injuring Ms. Peña with “unreasonably dangerous and violent electrical current,” 49 (2) the
taser was in a defective condition, injuring Ms. Peña with “unreasonably dangerous and violent
electrical current,”50 and (3) the government employees were negligent in their efforts to remove
the taser prongs from Ms. Peña’s scalp and back.51
The Court finds that Plaintiffs are unable to establish that sovereign immunity has been
waived. First, the argument that Officer Salinas was negligent with her use of a taser is
unsupported. Plaintiffs again make conclusory arguments, and in doing so, fail to explain how
Officer Salinas acted negligently. Plaintiffs’ version of the facts indicates that Defendant Salinas
was instructed to tase Ms. Peña. Defendant Salinas’ compliance is more accurately characterized
as an intentional act done pursuant to an order from Defendant Solis. “Texas law does not allow
a plaintiff to avoid the bar of governmental immunity by describing essentially intentional
conduct as an act of negligence.”52 Importantly, sovereign immunity is not waived under the
TTCA for intentional acts.53
Second, the argument that the taser was defective is likewise unsupported. Defendant Rio
Grande City does not dispute that the taser is either a “motor-driven equipment or tangible
TEX. CIV. PRAC. & REM. CODE ANN. § 101.021 (emphasis added).
Dkt. No. 6-2, at ¶¶ 8.01, 8.04.
Id. at ¶ 8.05.
Id. at ¶ 8.07.
Lopez-Rodriguez v. City of Levelland, Texas, 100 Fed.Appx. 272, 275 (5th Cir. 2004).
TEX. CIV. PRAC. & REM. CODE ANN. § 101.057.
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personal property.”54 Nevertheless, Plaintiffs fail to establish the necessary element that Ms.
Peña’s personal injury was caused by the taser’s condition, such that if it were a private person
would subject it to liability. In fact, Plaintiffs merely assert that the taser “was in a defective
condition, injurying her with unreasonably dangerous and violent electrical current.” Without
any additional factual allegations, the Court cannot find that this claim satisfies the Rule 12(b)(6)
Finally, the argument that the government employees were negligent in their efforts to
remove the taser prongs also fails. Plaintiffs do not explain how the employees were negligent.
Plaintiffs merely argue that they “misused said prong(s) during removal/separation.” 55 Without
identifying the proper procedure for removing taser prongs and demonstrating that the employees
negligently departed from that procedure, Plaintiffs’ argument is conclusory and does not satisfy
the Rule 12(b)(6) legal standard.
Motions to Dismiss for Failure to State a Claim
Plaintiffs argue that Defendant Solis and Defendant Salinas violated the Fourth
Amendment by using excessive force against Ms. Peña.56 Specifically, Plaintiffs claim that
Defendant Solis used excessive force by ordering Defendant Salinas to tase Ms. Peña, and
Defendant Salinas used excessive force by tasing Ms. Peña.57 Both Defendants deny violating
the Fourth Amendment, and further raise qualified immunity as an alternate basis for dismissal.
“A government official performing discretionary functions is entitled to qualified
immunity unless his conduct violates clearly established statutory or constitutional rights of
Dkt. No. 8, at ¶ 3.13.
Dkt. No. 6-2, at ¶ 8.07.
Id. at ¶ 7.01.
Id. at ¶ 7.02.
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which a reasonable person would have known.”58 The qualified immunity analysis has two steps:
“(1) the court first determines whether the plaintiff has alleged the violation of a statutory or
constitutional right; (2) the court then determines whether the defendant’s actions violated
‘clearly established statutory or constitutional rights of which a reasonable person would have
known.’”59 Under step one, to state an excessive force violation of the Fourth Amendment, “the
plaintiff must allege: (1) an injury that (2) resulted directly and only from the use of force that
was excessive to the need, and (3) the use of force that was objectively unreasonable.” 60 The
objective reasonableness of the use of force depends on the particular facts and circumstances in
Under step two, the Court considers whether the Fourth Amendment violation of
excessive force “was nevertheless objectively reasonable in light of clearly established law at the
time the challenged conduct occurred.”62 Even if the use of force is deemed objectively
unreasonable and it violates constitutional rights, “a defendant’s violation of constitutional rights
can still be objectively reasonable if the contours of the constitutional right at issue are
Once again, Plaintiffs do not provide enough factual information to survive the Rule
12(b)(6) legal standard. For claims against which qualified immunity may be a defense, the
Court “require[s] a heightened standard of pleading, whereby the plaintiff must allege specific
conduct giving rise to a constitutional violation. Such allegation ‘must be pleaded with factual
Bush v. Strain, 513 F.3d 492, 500 (5th Cir. 2008).
Id. (quoting Flores v. City of Palacios, 381 F.3d 391, 395 (5th Cir. 2004)).
Bush, 513 F.3d at 501.
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detail and particularity, not mere conclusionary allegations.’”64 Here, however, Plaintiffs merely
argue that “[n]o reasonable police officer would have instructed tasing [Ms.] Peña. “No
reasonable police officer would have tased a juvenile who was not suspected of a crime.”65
Plaintiffs have not satisfied the heightened pleading standard. The Plaintiffs do not support their
allegation that Defendants were not reasonable, and the Court finds that the excessive force
claim is conclusory, As a result, Plaintiffs fail to satisfy the Rule 12(b)(6) legal standard.
For the foregoing reasons, the Court DENIES the amended motion for leave to file
complaint, GRANTS the motion for judgment on the pleadings, and GRANTS the motions to
dismiss for failure to state a claim. A final judgment will issue separately.
IT IS SO ORDERED.
DONE at McAllen, Texas, this 17th day of October, 2016.
United States District Judge
Meekings v. Thompson, 252 F.3d 1356, 1357 (5th Cir. 2001) (quoting Jackson v. Widnall, 99 F.3d 710, 715–16
(5th Cir. 1996).
Dkt. No. 6-2, at ¶ 7.02.
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