Parsons v. Marmarinos et al

Filing 18

REPORT AND RECOMMENDATIONS re 7 Motion to Dismiss for Failure to State a Claim, filed by Darin L. Bayles, Angelo Marmarinos, Mike S. Losoya, Martin A. Flores, D. M. Jennings, Jason W. Huf, B. R. Hall, John Schultz, Paul Hernandez. Signed by Judge Andrew W. Austin. (os)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
RONALD PARSONS
V.
OFCR. ANGELO MARMARINOS, et al.

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1:14-CV-01122-LY

REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
Before the Court is the Defendants’ Rule 12(b)(6) Motion to Dismiss and Alternative
Request for a Rule 7(a) Reply to the Qualified Immunity Defense (Dkt. No. 7), and the Plaintiff’s
response (Dkt. No. 11). The undersigned submits this Report and Recommendation to the United
States District Court pursuant to 28 U.S.C. § 636(b) and Rule 1(h) of Appendix C of the Local Court
Rules of the United States District Court for the Western District of Texas.
I. BACKGROUND
In this suit, Ronald Parsons complains of the alleged use of excessive force, unlawful seizure,
and malicious prosecution. Parsons claims that the Defendants’ use of force violated his Fourth
Amendment rights against the use of excessive force, as he claims the use of force was unreasonable.
Parsons also claims that the malicious prosecution violated his Fourth and Fourteenth Amendment
rights against warrantless and unjustified seizure. Both of these constitutional claims are brought
under 42 U.S.C. § 1983.
The events giving rise to the complaint at issue took place on December 27, 2012, at
Parsons’s house in Round Rock, Texas, where he resided with his wife, Margaret Parsons.1 On that
day, Round Rock police officers were dispatched to Parsons’s neighborhood at approximately 10:00
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These facts were taken from Parsons’s complaint, Dkt. No. 1, and the Court takes them as
true for purposes of this motion to dismiss.

P.M. to investigate a domestic disturbance. The officers investigating the reported disturbance were
Defendants Angelo Marmarinos and Mike S. Losoya. At some point after 10:00 P.M., Parsons
awoke to use the restroom and noticed that the motion-detecting light on his front porch had been
activated. When he went to investigate, Parsons observed the shadow of a man in the entryway of
his home. Upon seeing the shadow, he slapped the door. After hitting the door, Parsons opened the
door and yelled “stay away from my door.” Parsons then closed the door, retrieved his licensed
handgun, and called 911.
When Parsons called 911, the operator informed him that the police were outside of his
home, and then the operator connected Parsons with one of the officers outside of his house. Parsons
states that he was connected with Defendant Jason Huf, who informed Parsons that the police needed
to finish their investigation before they could leave. Huf asked Parsons to put his handgun away and
come outside. Huf also informed Parsons that he would not be forced to lie on the ground when he
went outside . Parsons complied with Huf’s requests, returning the handgun to his closet and coming
outside bare-footed. When he exited his home, some of the Defendants asked Parson to place his
hands over his face. Parsons claims that, instead, he raised his hands over his head. The Defendants
then allegedly asked Parsons to lie on the ground. Parsons claims that he refused to lie on the ground.
The Defendants then asked Parsons to kneel on the ground. Parsons refused again, because, he says,
he has bad knees. After Parsons refused to kneel on the ground, Defendant John Schultz allegedly
discharged his taser on Parsons’s chest. Parsons claims that after Schultz discharged his taser on
Parsons’s chest, Schultz and/or Defendants Paul Hernandez, Martin Flores, Angelo Marmarinos, D.
M. Jennings, and/or other unnamed Defendants proceeded to use their tasers on Mr. Parsons’s legs
and punch, slap, and strike him with their knees. Parsons claims that, after Defendant Jennings tased
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and assaulted him, Jennings placed handcuffs on Parsons so tightly that his wrists began to bleed.
The Defendants then allegedly placed Parsons in the back of a squad car. While in the squad car,
Parsons claims that the Defendants conducted a search of his home. Defendant Michael Scheffler
allegedly verbally abused Parsons while the search was being conducted. It is unclear from Parsons’s
complaint whether the Defendants released Parsons after conducting their search or took him to the
police station. As a result of the events described above, Parsons claims that he sustained injuries
leading to physical pain and discomfort, permanent physical impairment, lost income, and emotional
distress. Subsequently, a criminal case was brought against Parsons for resisting arrest, search, or
transport. The case was decided in Parsons’s favor on April 8, 2014. This suit was filed on December
20, 2014. The Defendants now move to dismiss, arguing that Parsons had failed to state a claim,
and, in the alternative, requesting a Rule 7(a) reply to their qualified immunity defense. Parsons filed
a response on July 3, 2015.
II. MOTION TO DISMISS
The Defendants contend that Parsons has failed to state a claim and therefore seek dismissal
under Rule 12(b)(6).2 They argue that Parsons has failed to plead sufficient facts to demonstrate that
he suffered an injury or that the Defendants’ use of force was excessive under the totality of the
circumstances. The Defendants argue further that Parsons has failed to plead facts avoiding the

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A 12(b)(6) motion must be filed prior to the answer. Jones v. Greninger, 188 F.3d 322, 324
(5th Cir. 1999). This one was not. However, 12(c) motions may be filed after the pleadings have
closed. Courts are permitted to construe an untimely 12(b)(6) motion as though it were a 12(c)
motion, id., and 12(c) motions are analyzed under the same standard as 12(b)(6) motions. Johnson
v. Teva Pharms., Inc., 758 F.3d 605, 610 (5th Cir. 2014). The Court will therefore review the
Defendants’ motion to dismiss as though it were a 12(c) motion.
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Defendants’ qualified immunity and that he has failed to plead facts sufficient to show that he was
prosecuted without probable cause.
The Defendants’ motion is made pursuant to Federal Rule of Civil Procedure 12(b)(6). Rule
12(b)(6) allows for dismissal of an action “for failure to state a claim upon which relief can be
granted.” While a complaint attacked by a Rule 12(b)(6) motion does not need detailed factual
allegations in order to avoid dismissal, the plaintiff's factual allegations “must be enough to raise a
right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007). A plaintiff’s obligation “requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do.” Id. The Supreme Court has explained
that a complaint must contain sufficient factual matter “to state a claim to relief that is plausible on
its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). “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.” Id. In evaluating a
motion to dismiss, the Court must construe the complaint liberally and accept all of the plaintiff's
factual allegations in the complaint as true. See In re Katrina Canal Breaches Litigation, 495 F.3d
191, 205 (5th Cir. 2009).
A.

Excessive Force

Fifth Circuit precedent recognizes a cause of action under the Fourth Amendment for the use
of excessive force while effectuating an arrest, investigatory stop, or other seizure. Spann v. Rainey,
987 F.2d 1110, 1115 (5th Cir. 1993) (citing Graham v. Connor, 490 U.S. 386 (1989)). In order to
state a claim for excessive force in violation of the Constitution, the plaintiff must allege “(1) an
injury, (2) which resulted directly and only from a use of force that was clearly excessive, and
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(3) the excessiveness of which was clearly unreasonable.” Poole v. City of Shreveport, 691 F.3d
624, 628 (5th Cir. 2012).
The Defendants challenge Parsons’s assertion of an injury, arguing that he failed to make
“specific claims of any form of injury.” This argument is without merit. The Fifth Circuit has held
somewhat minor injuries, such as a bruised thigh and a sore jaw, to be sufficient to state a significant
injury in the excessive force context. Hay v. Irving, 893 F.2d 796 (5th Cir. 1990). While Parsons did
not allege that a particular part of his body was injured, he does allege that he suffered “physical
pain, physical discomfort, permanent physical impairment . . . and emotional distress.” Dkt. No. 1
at ¶ 36. He also alleges that the handcuffs were placed on him so tightly that his wrists bled. Id. at
¶ 25. These allegations are sufficient to satisfy the first prong of an excessive force claim at the
motion to dismiss stage. Parsons has also alleged that these injuries occurred as a result of the
Defendants’ use of force, satisfying the second prong.
The Defendants also challenge Parsons’s claim that their use of force was excessive.
According to the Defendants, Parsons’s complaint contains insufficient details about his own
behavior for a court to conclude that the use of force was excessive. Specifically, they contend that
Fifth Circuit precedent permits officers to apply handcuffs too tightly without finding excessive
force. These arguments all go to the reasonableness of the Defendants’ use of force and involve the
third prong of the excessive force determination.
An arrest or seizure necessarily entails “the right to use some degree of physical coercion
. . . to effect it,” however, the amount of force used must be proportional to the need for that force.
Graham, 490 U.S. at 396. When assessing the third prong of an excessive force claim, courts must
determine whether the use of force at issue was objectively reasonable. Objective reasonableness
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is a balancing test that compares the amount of force used to the amount of force needed in the
particular situation—the “facts and circumstances of the particular case” determine the amount of
force that is constitutionally permissible. Poole, 691 F.3d at 628. If the amount of force used is
clearly beyond what is necessary to effectuate the arrest, investigatory stop, or seizure, then the
amount of force is excessive and constitutionally infirm. In determining the amount of force needed
in a particular situation, courts consider a variety of factors, commonly called the Graham factors,
which include “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.” Hogan v. Cunningham, 722 F.3d 725, 734 (5th Cir. 2013) (citing Graham, 490 U.S.
at 396). Moreover, reasonableness is to be judged from the perspective of “a reasonable officer on
the scene, rather than with the 20/20 vision of hindsight.” Officers are frequently placed into “tense,
uncertain, and rapidly evolving” circumstances, and reasonableness must account for “the fact that
police officers are often forced to make split-second decisions.” Id.
In alleging the use of tasers, punches, slaps, and knee strikes in response to Parson’s
unwillingness to kneel down—particularly given that it does not appear from the Complaint that
Parsons was a suspect of the Defendants’ investigation—Parsons has stated sufficient factual
material to raise the possibility that the Defendants’ alleged conduct was unreasonable. Taking
Parsons’s factual allegations as true, the Graham factors do not support the alleged use of force. The
Defendants were investigating a domestic disturbance, and it was not clear that a crime had even
occurred. If the facts in Parsons’s complaint are true, Parsons did not pose an immediate threat of
safety to the officers. Parsons claims that he was not only greatly outnumbered, but he was also
obviously unarmed, and was barefoot. Meredith v. Erath, 342 F.3d 1057 (9th Cir. 2003) (construed
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in Hogan, 722 F.3d at 735-36) (holding that officers’ use of force was unreasonable, in part, because
the plaintiff was outnumbered thirteen to one). According to Parsons’s version of the facts, there
is also no sign that the he was a flight risk. Moreover, Parsons claims that the Defendants failed to
tailor their use of force to the level of resistance they encountered by using negotiation or physical
coercion before resorting to the use of a taser. Newman v. Guedry, 703 F.3d 757, 763 (5th Cir. 2012)
(“[A] reasonable jury could find that the degree of force used was not justified where the officer
engaged in very little, if any, negotiation with the suspect and . . . immediately resorted to taser and
nightstick.”). Although the Defendants argue that Parsons did not allege enough factual material
about his own behavior to permit a judgment concerning the reasonableness of the officers’ use of
force, Parsons claims in his complaint that he was unarmed, complying with the officers’ commands
while he was inside his home, and simply unwilling to kneel because of bad knees. Dkt. No. 1 at
¶¶ 21, 22, 24. Parsons also claims that his passive resistance was predicated on officer promises that
he would not be forced to lie on the ground. Id. at ¶ 22. In alleging these facts about his own
behavior, Parsons has provided enough factual information to raise the possibility that the
Defendants’ alleged use of force was unreasonable. The combination of these factors, if proven true,
could amount to a violation of Parsons’s constitutional right to be free from the use of excessive
force. Because Parsons has alleged sufficient factual material to state a claim for relief that is
plausible on its face, the motion to dismiss should be denied.
B.

Qualified Immunity

The Defendants also argue that Parsons has not stated a claim because he failed to plead facts
demonstrating that they are not entitled to qualified immunity. The doctrine of qualified immunity
affords state actors protection against liability for damages “insofar as their conduct does not violate
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clearly established statutory or constitutional rights of which a reasonable person would have
known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Immunity in this sense means immunity
from suit, not merely from liability. Jackson v. City of Beaumont Police Dep’t, 958 F.2d 616, 618
n.3 (5th Cir. 1992). Moreover, “[q]ualified immunity is designed to shield from civil liability all but
the plainly incompetent or those who violate the law.” Brady v. Fort Bend Cnty., 58 F.3d 173, 174
(5th Cir. 1995). Because the immunity is an immunity from suit, courts treat it as a threshold
question that should be decided “at the earliest possible stage in the litigation.” Hunter v. Bryant,
502 U.S. 224, 227 (1991).
To rebut the qualified immunity defense, a plaintiff must show: (1) he has alleged a violation
of a clearly established constitutional right; and (2) the defendant's conduct was objectively
unreasonable in light of clearly established law at the time of the incident. Waltman v. Payne, 535
F.3d 342, 346 (5th Cir. 2008). In the context of a motion to dismiss, a plaintiff must state facts in
the complaint which, if proven, would overcome the qualified immunity defense. Babb v. Dorman,
33 F.3d 472, 476 (5th Cir. 1994).
There is little question on the first issue. Parsons has pled sufficient facts to demonstrate the
possibility of a constitutional violation. As noted, supra, officers are not permitted to resort
immediately to punching, slapping, striking, or the use of a taser when arresting a compliant or
passively resistant suspect, especially when the suspected criminal activity is relatively minor, the
police officers greatly outnumber the plaintiff, and it is not clear that the plaintiff is even a suspect.
With respect to the second prong, it has been clearly established for some time that the Fourth
Amendment protects people from the use of excessive force. See, e.g., Bush v. Strain, 513 F.3d 492
(5th Cir. 2008). More particularly, it is clearly established that officers must weigh their use of force
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against “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 or attempting to evade arrest by flight.”
Deville v. Marcantel, 567 F.3d 156, 169 (5th Cir. 2009) (quoting Graham v. Connor, 490 U.S. 386,
396 (1989)). Furthermore, officers are only permitted to use “measured and ascending” responses
to resistance by a suspect, which often requires using “physical skill, negotiation, or even
commands” before resorting to the “taser and nightstick.” Newman, 703 F.3d at 763. Parsons has
pled sufficient facts to overcome qualified immunity at the motion to dismiss stage.
C.

Malicious Prosecution

Fifth Circuit precedent recognizes a “constitutional” cause of action for malicious
prosecution, which is defined as the “initiation of criminal proceedings against an innocent person,
for an improper purpose and without probable cause.” Castellano v. Fragozo, 352 F.3d 939, 945
(5th Cir. 2003) (en banc). However, there is no “freestanding constitutional right to be free from
malicious prosecution.” Id. As the Fifth Circuit in Castellano made clear, the initiation of criminal
proceedings, on its own, is not enough to amount to a constitutional violation. In order to have a
malicious prosecution claim, “a claimant must allege that officials violated specific constitutional
rights in connection with a malicious prosecution.” Id. Up until Castellano, malicious prosecution
was a claim that was essentially a “shorthand way of describing a kind of legitimate section 1983
claim.” Id. at 952. Frequently, malicious prosecution claims contained “specific constitutional
violations” that were “embedded, but floated unspecified, undefined, and hence unconfined inside
a general claim of malicious prosecution.” Id. at 945. In order to combat these difficulties, the
Castellano court insisted on “clarity in the identity of constitutional violations asserted.” Id.
Differently put, the claimant must allege with specificity “additional government acts” attending the
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initiation of the criminal proceedings that “could give rise to claims of constitutional deprivation.”
Id. at 953.
Most commonly, the violation alleged in connection with malicious prosecution will be a
violation of the Fourth Amendment’s proscription of unreasonable seizures, usually in the form of
pretrial deprivations of liberty. Although the Fourth Amendment’s protections are broad, they
extend only to “pretrial events of a prosecution.” Id. If the constitutional violation alleged occurred
during or after trial, then the plaintiff will be unable to rely on the Fourth Amendment as support.
Id. at 946 (citing Albright v. Oliver, 510 U.S. 266, 273 (1994). In these circumstances, the plaintiff
will need to rely on the Fourteenth Amendment’s guarantees of due process to ground the alleged
constitutional violation.
Parsons has failed to plead facts sufficient to raise the possibility of a constitutional violation
in connection with his alleged malicious prosecution. While Parsons claims that the Defendants
deprived him of his “right to be free from warrantless and unjustified seizure,” this statement is a
legal conclusion that is not entitled to the presumption of truth at the motion to dismiss stage. In
order to make out a valid malicious prosecution claim, Parsons would need to include facts
amounting to the constitutional violation of unjustified seizure, such as statements averring pretrial
detention in preparation for criminal proceedings. Without alleging such facts, Parsons has not pled
a cognizable constitutional violation in connection with his malicious prosecution claim, as required
by the Fifth Circuit.3

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Moreover, it is unclear whether Parsons is claiming only a Fourth Amendment violation in
connection with his malicious prosecution claim, or if he is also intends to plead a Fourteenth
Amendment violation.
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While Parsons’s complaint is insufficient to state a claim for malicious prosecution, he
should be given leave to amend his complaint and plead with greater specificity. The Federal Rules
were designed to permit “liberal amendment to facilitate determination of claims on the merits and
to prevent litigation from becoming a technical exercise in the fine points of pleading.” Dussouy v.
Gulf Coast Inv. Corp., 660 F.2d 594, 597 (5th Cir. 1981). “[U]nless there is substantial reason to
deny leave to amend, the discretion of the district court is not broad enough to permit denial.” Id.
Thus, the Defendants’ motion to dismiss should be denied without prejudice with respect to
Parsons’s malicious prosecution claim. The District Court should then permit Parsons to replead his
claim for malicious prosecution, and identifying what, if any, constitutional violations occurred. The
Defendants should then be given the opportunity to file a new motion to dismiss on this issue, should
Parsons’s complaint warrant it.
III. ALTERNATIVE REQUEST FOR A RULE 7(a) REPLY TO THE QUALIFIED
IMMUNITY DEFENSE
With their motion to dismiss, the Defendants have filed an alternative request for a Rule 7(a)
reply to the qualified immunity defense. The Defendants argue that, presuming Parsons alleged
enough factual material to overcome the motion to dismiss, he has failed to allege factual material
that is specific enough to overcome the Defendants’ qualified immunity defense.
Within the Fifth Circuit, a Rule 7(a) reply is sometimes used to allow a decision to be made
on the qualified immunity question when the complaint does not allege sufficient factual material
to overcome the defense on its own. Schultea v. Wood, 47 F.3d 1427 (5th Cir. 1995) (en banc).
Because the qualified immunity defense is designed to free governmental officials from the burdens
of litigation, including protracted discovery, a Rule 7(a) reply avoids excessively intrusive and costly

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discovery by allowing limited development of the factual record in order to ascertain the availability
of the defense. Backe v. LeBlanc, 691 F.3d 645, 648 (5th Cir. 2012). However, the Rule 7(a) reply
is only appropriate where the plaintiff has alleged sufficient factual material to make out a
constitutional violation and the district court is still unable to rule on the qualified immunity
question. A district court “may, in its discretion, insist that a plaintiff file a reply,” but it is
unnecessary for the court to do so when the plaintiff has met his pleading burden. Davalos v. Johns,
460 F. App’x. 396, 397 (5th Cir. 2012). Parsons has met his pleading burden. He has alleged
sufficient factual material to raise the possibility that the Defendants are not entitled to the qualified
immunity defense at the motion to dismiss stage, obviating the need for a Rule 7(a) reply. The
Defendants’ alternative request for a Rule 7(a) reply should therefore be denied.
V. RECOMMENDATION
For the reasons set forth above, the undersigned RECOMMENDS that the Defendants’ Rule
12(b)(6) Motion to Dismiss and Alternative Request for a Rule 7(a) Reply (Dkt. No. 7) be
GRANTED IN PART and DENIED IN PART. With respect to the § 1983 excessive force claims
against the Defendants, the Court recommends that the motion be DENIED. With respect to the
claim for malicious prosecution, the Court recommends that the motion be DENIED WITHOUT
PREJUDICE. The Court recommends that the Plaintiff be GRANTED LEAVE TO REPLEAD
this portion of his complaint, alleging with particularity what, if any, constitutional violation
accompanied his alleged malicious prosecution. Finally, the Court recommends that the Defendants’
Alternative Request for a Rule 7(a) Reply be DENIED because further factual allegations are
unnecessary to determine the qualified immunity question at this time.

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VI. OBJECTIONS
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. U. S. 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
contained in this Report within 14 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, 150–153 (1985); Douglass v. United Servs.
Auto. Ass’n, 79 F.3d 1415, 1428–29 (5th Cir. 1996) (en banc).
To the extent that a party has not been served by the Clerk with this Report and
Recommendation electronically, pursuant to the CM/ECF procedures of this District, the Clerk is
ORDERED to mail such party a copy of this Report and Recommendation by certified mail, return
receipt requested.
SIGNED this 31st day of August, 2015.

_____________________________________
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE

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