Orr et al v. Copeland et al

Filing 32

REPORT AND RECOMMENDATIONS that the District Court GRANT Defendants' 24 Motion for Dismissal of Battery Claims and that the assault and batteryclaim against Officer Copeland be DISMISSED for lack of subject matter jurisdiction. Signed by Judge Andrew W. Austin. (klw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
ANGELA ORR, et al.
v.
OFFICER ERIC COPELAND, et al.

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A-14-CV-212-LY

REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
TO:

THE HONORABLE JUDGE LEE YEAKEL
UNITED STATES DISTRICT JUDGE
Before the Court are: Defendants’ 12(b)(1) Motion for Dismissal of Assault and Battery Claims

(Dkt. No. 24); Plaintiffs’ Response to Defendants’ Motion for Dismissal of Assault & Battery Claims
(Dkt. No. 27); and Defendants’ Reply in Support of their Motion for Dismissal of Assault & Battery
Claims (Dkt. No. 25). The undersigned submits this Report and Recommendation to the United States
District Court pursuant to 28 U.S.C. §636(b) and Rule 1 of Appendix C of the Local Rules of the United
States District Court for the Western District of Texas.
I. GENERAL BACKGROUND
The Plaintiffs (collectively “Orr”) bring this suit alleging damages arising from the shooting death
of Ahmade Jabbar Bradley. One of the causes of action they have brought is a state law claim of assault
and battery against Officer Copeland individually. Dkt. No. 1 at 5-7. The Complaint alleges that on April
5, 2012, Officer Copeland stopped Bradley for a traffic infraction, and detained him to investigate a
potential narcotics offense. Dkt. No. 1 at 3-4. After stopping and speaking briefly with Officer Copeland,
Bradley drove away, and a pursuit ensured. Id. Eventually, Bradley stopped his car and began running.
Officer Copeland caught up with Bradley and a struggle ensued, which ended with Officer Copeland
shooting and killing Bradley. Id.

Officer Copeland moves to dismiss the assault and battery claim, pursuant to the terms to TEX.
CIV. PRAC. REM. CODE § 101.106(f).1 The City of Austin also asks that the Court prohibit Orr from
repleading to state the claim against it, because it is immune from suit on that claim.
II. STANDARD OF REVIEW
This motion is brought pursuant to Federal Rule of Civil Procedure 12(b)(1), asserting the Court
lacks subject matter jurisdiction over the assault and battery claim. In evaluating a challenge to subject
matter jurisdiction, the Court may weigh the evidence and resolve factual disputes. See Montez v. Dep’t
of Navy, 392 F.3d 147, 149 (5th Cir. 2004). In conducting its inquiry, the Court may consider: (1) the
complaint alone; (2) the complaint supplemented by undisputed facts; or (3) the complaint supplemented
by undisputed facts plus the Court’s resolution of disputed facts. Id. Here the Court is basing its decision
on the allegations in the complaint alone.
III. DISCUSSION
Officer Copeland brings his motion pursuant to § 101.106(f) of the TTCA. That section provides:
If a suit is filed against an employee of a governmental unit based on conduct within the
general scope of that employee’s employment and if it could have been brought under this
chapter against the governmental unit, the suit is considered to be against the employee
in the employee’s official capacity only. On the employee’s motion, the suit against the
employee shall be dismissed unless the plaintiff files amended pleadings dismissing the
employee and naming the governmental unit as defendant on or before the 30th day after
the date the motion is filed.
TEX. CIV. PRAC. & REM. CODE § 101.106(f). The TTCA strongly favors dismissal of suits against
government employees. Tipps v. McCraw, 945 F. Supp. 2d 761, 766 (W.D. Tex. 2013). To obtain
dismissal under this section, the employee must show that the alleged tort was committed in the scope

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All statutory references are to Chapter 101 of the Texas Civil Practice and Remedies Code (the
Texas Tort Claims Act or “TTCA”), unless otherwise noted.
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of his employment, and that the claim could have been brought against the governmental unit under the
TTCA. Id.
“Scope of employment” is defined in the TTCA as “the performance for a governmental unit of
the duties of an employee’s office or employment and includes being in and about the performance of a
task lawfully assigned to an employee by competent authority.” TEX. CIV. PRAC. & REM. CODE ANN.
§ 101.001(5). Courts hold that a police officer who uses excessive force is still acting within the “scope
of employment” for purposes of the TTCA. Tipps, 945 F. Supp. 2d at 766-67; City of Lancaster v.
Chambers, 883 S.W.2d 650, 658 (Tex. 1994). “[I]f the conduct is the kind the employee is employed to
perform, occurs substantially within the authorized time and space limits, and is actuated, at least in part,
by a purpose to serve the employer,” then the acts are still within the “scope of employment” under the
Act “even if the employee . . . uses forbidden means of accomplishing results.” Herrera v. Aguilar, 2013
U.S. Dist. LEXIS 127108, *8 (W.D. Tex. Sept. 6, 2013) (quoting Kolstad v. American Dental Ass’n, 527
U.S. 526, 543-44 (1999)). Here, the encounter between Bradley and Officer Copeland started as a traffic
stop, then became an investigation of Officer Copeland’s suspicions that Bradley was involved in illegal
drug activity, and led to a pursuit and struggle when Bradley fled. All of these actions are within the
scope of a police officer’s employment. Tipps, 945 F. Supp. 2d at 766-67; Chambers, 883 S.W.2d at 658.
With regard to the second half of the § 101.106(f) analysis, while prior to 2011 it may have been
debatable whether an intentional tort “could” have been brought against a governmental defendant under
the TTCA, that question was definitively answered in 2011 in Franka v. Velasquez. In that case, the
Texas Supreme Court held that “all common-law tort theories alleged against a governmental unit are
assumed to be ‘under the Tort Claims Act’ for purposes of § 101.106.” Franka v. Velasquez, 332 S.W.3d
367, 369 (Tex. 2011). Therefore, Orr’s assault and battery claim is a claim that could have been brought

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against the City of Austin under the TTCA. Because Officer Copeland has demonstrated that the assault
and battery, if any, occurred within the scope of his employment, and Orr could have brought that claim
against the City of Austin under the TTCA, he is entitled to dismissal pursuant to § 101.106(f). Tipps,
945 F. Supp. 2d at 765-66.
Under § 101.106(f), when an individual demonstrates entitlement to dismissal pursuant to that
section, the court is required to dismiss the claim “unless the plaintiff files amended pleadings dismissing
the employee and naming the governmental unit as defendant on or before the 30th day after the date the
motion is filed.” As part of the motion, the City of Austin requests an order prohibiting Orr from
amending the Complaint to name the City as the defendant on the assault and battery claim, because under
the TTCA the City is immune from any assault and battery claim. See § 101.057.2 While the City is
correct, such an order is not necessary, as Orr has not sought leave to amend the Complaint to substitute
the City as the defendant on the claim. Further, more than 30 days have passed since the motion to
dismiss was filed on April 27, 2015, and thus it is too late to seek such leave. If Orr seeks such leave in
the future, the Court can address the issue at that time.
IV. RECOMMENDATION
Based on the foregoing, the undersigned RECOMMENDS that the Defendants’ 12(b)(1) Motion
for Dismissal of Assault and Battery Claims (Dkt. No. 24) be GRANTED, and the assault and battery
claim against Officer Copeland be DISMISSED for lack of subject matter jurisdiction.

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If this result seems anomalous in light of the language of 101.106(f), which appears to grant
permission to file an amended pleading naming the governmental unit in place of the employee, that’s
because it is. But this result is the intended result of the Texas Supreme Court’s Franka decision. For
a full discussion—and criticism—of the majority opinion in Franka, see Justice Medina’s dissent in that
case. Franka, 332 S.W.3d at 385-95 (Medina, dissenting).
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V. WARNING
The parties may file objections to this Report and Recommendation. A party filing objections
must specifically identify those findings or recommendations to which objections are being made. The
District Court need not consider frivolous, conclusive, or general objections. Battles v. United States
Parole Comm’n, 834 F.2d 419, 421 (5th Cir. 1987).
A party’s failure to file written objections to the proposed findings and recommendations within
fourteen days after the party is served with a copy of the Report shall bar that party from de novo review
by the district court of the proposed findings and recommendations in the Report and, except upon
grounds of plain error, shall bar the party from appellate review of unobjected-to proposed factual
findings and legal conclusions accepted by the district court. See 28 U.S.C. § 636(b)(1)(C); Thomas v.
Arn, 474 U.S. 140 (1985); Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428–29 (5th Cir. 1996).
To the extent that a party has not been served by the Clerk with this Report & Recommendation
electronically pursuant to the CM/ECF procedures of this District, the Clerk is directed to mail such party
a copy of this Report and Recommendation by certified mail, return receipt requested.
SIGNED this 23rd day of June, 2015.

_____________________________________
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE

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