Fabian et al v. Dunn et al

Filing 188

ORDER GRANTING 150 Motion to Dismiss ; GRANTING IN PART AND DENYING IN PART 158 Motion to Dismiss ; DENYING 178 Motion to Dismiss. Signed by Judge Xavier Rodriguez. (rf)

In the United States District Court for the Western District of Texas
E M E R S O N GAITAN FABIAN, et a l. v. M A U R E E N DUNN, et al. O rder § § § § §

SA-08-cv-269-XR

O n this day came on to be considered Cornell Defendants' motion to d i s m is s (docket no. 158), the City of San Antonio's motion to dismiss (docket no. 1 5 0 ), and SAPD Officers' motion to dismiss (docket no. 178). B a c k g ro u n d T h e Plaintiffs in this case were unaccompanied minors who entered the U n it e d States illegally. They were apprehended by U.S. immigration authorities a n d detained at the Abraxas Hector Garza Center (hereinafter "Abraxas"). P la in t iffs allege that the U.S. Department of Health and Human Services, Office o f Refugee Rights (hereinafter "ORR") and the Division of Unaccompanied C h i ld r e n 's Services (hereinafter "DUCS") and Department of Homeland S e c u r it y , Immigration and Customs Enforcement (hereinafter "ICE") share r e s p o n s ib ility for protecting and caring for unaccompanied minors. Cornell C o m p a n ie s , Inc. owns and operates the Abraxas facility, which is located in San A n t o n io , Texas. Cornell is licensed and monitored by the Texas Department of

F a m ily and Protective Services (TDFPS) to house and provide care to children. D U C S contracted with Cornell to shelter and care for the unaccompanied minors in this lawsuit. In their Fifth Amended Complaint, Plaintiffs allege that they were s u b je c te d to the following abuses while they were being detained at Abraxas: · P l a in t iff Carlos Acosta Ceballos alleges that in the Fall of 2007, D e fe n d a n t Jose Chapa "tackled him, using excessive force and in ju r in g [his] arm." Acosta Ceballos reported the assault to

D e fe n d a n t Ariana Penalosa and Defendant Jesus Gutierrez, Jr. He a lle g e s nothing was done and he received no medical treatment for h is injury. Acosta Ceballos also alleges that he was assaulted by D e fe n d a n t Jesus Ibarra, "who beat him and struck him in the face, le a v in g him with a visible black eye." Plaintiff also alleges that he w a s abruptly transferred to Houston shortly before a scheduled a p p o in t m e n t with his attorneys and Defendant James DeLaCruz to ld him he was "talking too much with his attorneys." · P la in tiff C.C. alleges he was detained by Border Patrol agents in E a g le Pass, Texas for "nearly a week, given little food, and no s h o w e r s , all in violation of the Flores v. Reno class action s e t t le m e n t ...." At the Abraxas facility, C.C. alleges that Defendant C h a r le s Saldana "severely battered [him], punching and kicking h im , then beating him with a chair as he lay on the floor." On a n o t h e r occasion, he saw "a number of guards beating another child" 2

a n d when he went to that child's defense he alleges Defendants M a r io Gomez and Jose Chapa placed him "in a restraint hold with [h is ] arms hoisted high behind his back, and punched him r e p e a t e d ly in the back, causing severe pain and injury." He alleges t h a t during this beating he lost consciousness. He was taken to a h o s p ita l for treatment. He alleges that after he informed his

a tt o r n e y s of the beating, the U.S. Office of Refugee Resettlement (" O R R " ) Defendants transferred him to an Indiana facility. · P l a in t iff Gregorio Ruiz Mejia alleges that in December of 2007, D e fe n d a n ts Jose Chapa, Mario Gomez and Hector Ruiz awoke him fr o m his sleep and when he "failed to comply with sufficient speed, t h e y grabbed him by one arm and threw him to the floor with such fo r c e that his arm was badly injured and he suffered a blow to the h e a d ." Plaintiff alleges he reported the assault to Defendants Jesus G u t ie r r e z , Jr. and Ariana Penalosa, but nothing was done. He a lle g e s that he was subsequently assaulted by Chapa on another o c c a s io n (pulling Plaintiff's hands behind his back and forcing them h ig h into the air). In March 2008, he alleges that four guards (C h a p a , Gomez, Jesus Mendoza and Reynaldo Flores) "tackled him a n d , even after being physically subdued, once again hurt his arm." · P l a in t iff D.B.G. alleges that from 2007 to early 2008 he was " a s s a u lt e d on more than one occasion by Defendants Ibarra, Gomez a n d Flores." He alleges that one assault left him with "an arm 3

in ju r y so severe that he was sent to a medical facility for emergency tr e a tm e n t." · P l a in t iff Selvin Hernandez Escobar alleges that in February 2008 h e was assaulted and severely beaten by Defendant Mendoza and t w o other guards. Plaintiff alleges that he was slammed against a p ie c e of furniture so hard that it broke into pieces, that he was p u n c h e d in the mouth with a metal ring, and slammed against a w a ll. · P la in tiff Jose Alejandro Flores Cruz alleges he was verbally h a r a s s e d and taunted by Abraxas staff and as a result he attempted s u ic id e . He also claims he was denied appropriate mental health c a r e and punished by being made to sleep in the hallway after his s u i c id e attempt. He also alleges that he was placed in total isolation f o r a week and such treatment was improper and cruel punishment. H e also alleges that Defendants Mendoza and Joel Pardo assaulted h im and used excessive force against him in February 2008. He also a lle g e s that on another occasion another guard stepped on his neck a n d twisted his arm which caused great pain. · P la in t iff L.L.C. alleges that on February 18, 2008 a disturbance o c c u r r e d at the Abraxas facility. He alleges that even though he w a s not involved in the disturbance, Defendants Pardo, Erik Q u in o n e s , Ruiz and Mendoza along with Defendant San Antonio P o l i c e Officers (Juan Torres, Abel Balderas, George Sexton, and 4

M ic h a e l Fletcher) assaulted him. He also alleges that SAPD officers t a s e r e d him when he was handcuffed. He alleges that "Defendant C it y of San Antonio had a custom and policy of such excessive force a n d cruelty." · P la in t iff Emerson Gaitan Fabian alleges that in the Fall of 2007, he w a s assaulted by Defendants Gomez, Ibarra, Chapa, Pardo and C h a r le s Saldana. He alleges that at one point he was "face down on th e ground with one of the Defendants holding his arms, another his le g s while a third Defendant repeatedly punched him in the back w ith his fists." · P la in t iff Edwin Joel Ramirez Aguilar alleges that he was assaulted b y Defendants Chapa and Flores (grabbed by the neck, thrown v io le n t ly to the ground, hands held behind his back into the air, and C h a p a sat on his knees for an hour causing him to lose sensation). T h e Plaintiffs all allege that they have seen other children assaulted and h a v e reported the abuse to Abraxas staff. Plaintiffs Ramirez and Ruiz allege t h a t they reported such abuse to Defendant Jose Gonzalez. The Plaintiffs allege t h a t Defendant Cornell has a custom, practice and policy of authorizing such a b u s e. Plaintiffs allege that Defendant Gonzalez informed other federal Plaintiffs also allege that the Texas

g o v e rn m e n t authorities of the abuse.

D e p a r tm e n t of Family and Protective Services (TDFPS) Defendants received r e p o r t s of child abuse at the Abraxas facility from a number of sources from the F a ll of 2007 through April 2008. Plaintiffs further allege that the TDFPS 5

D e fe n d a n t s notified the ORR Defendants, but no governmental agency took a c t io n to prevent the abuses. Plaintiffs further allege that on February 6, 2008, t h e Women's Commission for Refugee Women and Children visited the Abraxas fa cilit y , interviewed the children and thereafter contacted Defendants Susana O r t iz -A n g , Sergio Fernandez and Jesus Gutierrez expressing grave concerns r e g a r d i n g the conduct of Defendants Chapa, Ibarra and Flores. P la in t iffs allege that Defendants Maureen Dunn, Jose Gonzalez, James D e L a C r u z , Susana Ortiz-Ang, and Cornell, despite having knowledge of ongoing a b u s e , refused and failed to provide a safe environment. P la in t i f f s allege that the ORR Defendants were aware of Defendant C o r n e ll's history of abuse, but nevertheless selected Cornell to house and care fo r the unaccompanied minors. Plaintiffs allege that the ORR Defendants have a policy, custom or pattern of deliberate indifference with regard to selecting, m o n it o r in g and supervising facilities that care for unaccompanied minors. I n addition, Plaintiffs allege that during February and March 2008, D e f e n d a n t s Chapa, Penalosa, Jose Gonzalez and Jesus Gutierrez interfered with th e ir ability to speak and meet with their attorneys. Plaintiffs further allege that they were retaliated against after their la w y e r s filed reports of child abuse. A number of the Plaintiffs were certified to re ce ive a u-visa (crime victim cooperating with law enforcement). Plaintiffs a lle g e that Defendant David Scarberry attempted to get the u-visa certifications r evok ed. Plaintiff Gregorio Ruiz Mejia alleges that Defendant Scarberry

6

p r e v e n te d Plaintiff from attending an asylum hearing that was scheduled.1 W it h regard to the Cornell Defendants, Plaintiffs assert the following: (1) a Bivens claim asserting that Defendants violated their Fifth Amendment right t o not be subject to physical abuse; (2) a Bivens claim asserting that Defendant S c a r b e rr y retaliated against Gregorio Ruiz Mejia; (3) a section 1983 excessive for ce claim against Defendants Gutierrez, Fernandez, Ruiz and Mendoza; (4) a s ta t e law assault and battery claim against Chapa, Ibarra, Saldana, Gomez, F lor e s, Mendoza, Ruiz, Pardo, Mario Charles, and Quinones; and (5) a r e s p o n d e a t superior claim against Cornell for the tortious acts of its employees. W it h regard to the City of San Antonio Defendants, Plaintiffs assert the fo llo w in g : (1) a section 1983 excessive force claim against Officers Juan Torres, A b e l Balderas, George Sexton, and Michael Fletcher; (2) a section 1983 Monell c la im alleging that the City has a policy, pattern and practice of using excessive f o r c e ; (3) a section 1983 claim against the City for failing to properly train its o f fic e r s ; and (4) a section 1983 claim against the police officers for false arrest. C o r n e l l Defendants' Motion to Dismiss T h e Cornell Defendants seek dismissal of Plaintiffs' claims arguing: (1) no B iv e n s claim may be brought against either the corporate entity nor against any o f the individual defendants; (2) the alleged excessive force claims fail to rise to t h e standard of "gross physical abuse" necessary to establish a Fifth Amendment

The various federal governmental defendants and federal employees have filed motions to dismiss that remain pending before the Court. Nevertheless, the background facts are recounted here in their totality for context.

1

7

c la im ; (3) Plaintiffs fail to state facts sufficient to establish a Bivens claim for s u p e r v is o r liability; (4) Plaintiff L.L.C.'s section 1983 claim fails because: (i) he h a s no standing to assert a Fourth Amendment claim; (ii) any Fourteenth A m e n d m e n t claim is precluded by the availability of state remedies; (iii) the C o r n e ll Defendants were not acting under color of state law; and (iv) the a l l e g a t i o n s fail to state a claim of conspiracy to use excessive force or make a fa ls e arrest. Finally, the Cornell Defendants seek dismissal of the state tort c la im s of assault and battery arguing that the Plaintiffs fail to state a claim or a lt e r n a t iv e ly the Court should decline to exercise any supplemental jurisdiction o v e r the state tort claims. City of San Antonio's Motion to Dismiss T h e City argues that Plaintiffs have failed to state a claim inasmuch as t h e y fail to establish that any policy or custom of excessive force exists. The City fu r t h e r argues that Plaintiffs have failed to establish their failure to train claim. F in a lly , the City seeks dismissal of the claims made against the individual police o ffice rs citing Tex. Civ. Prac. & Rem. Code §§ 101.106(a), (b) and (e). S A P D Officers' Motion to Dismiss T h e individual officers seek dismissal of the section 1983 claims made a g a in s t them on the basis of qualified immunity.2 A n a ly s is I. B i v e n s claim against Cornell Companies, Inc.

Plaintiff L.L.C. has agreed to withdraw any section 1983 claims brought against the SAPD officers in their official capacities.

2

8

T o succeed on a Bivens cause of action, the plaintiff must demonstrate a c o n s tit u tio n a l violation. Garcia v. U.S, 666 F.2d 960, 961 (5th Cir. 1982). A B iv e n s action is analogous to an action under § 1983 except that § 1983 applies t o constitutional violations by state, rather than federal actors. The Fifth

C i r c u it does not distinguish between Bivens and § 1983 claims. Izen v. Catalina, 3 9 8 F.3d 363, 367 n.3 (5th Cir. 2005). There is no private right of action, p u r s u a n t to Bivens, for damages against private entities such as Cornell C o m p a n ie s , Inc. that engage in alleged constitutional deprivations while acting u n d e r color of federal law. Correctional Services Corp. v. Malesko, 534 U.S. 61 (2 0 0 1 ); Marsaw v. Thompson, 133 Fed. Appx. 946 (5th Cir. 2005). Accordingly, D e fe n d a n t s ' motion to dismiss any Bivens claim against Cornell Companies, Inc. is granted. II. B i v e n s claim against individual employees of Cornell C o m p a n i e s , Inc. W h ile Correctional Services Corp. v. Malesko, 534 U.S. 61, 66 (2001), fo r e c lo s e s a Bivens action against a corporation, it leaves open the question of w h e th e r a Bivens action could lie against individual employees of such a c o r p o r a tio n . See Bender v. General Services Admin., 539 F. Supp. 2d 702 (S.D. N .Y . 2008) (discussing various cases). In Peoples v. CCA Detention Centers, 422 F .3 d 1090 (10th Cir. 2005), aff'd by equally divided en banc panel, 449 F.3d 1097 (2 0 0 6 ), the Tenth Circuit held that a plaintiff could not avail himself of a Bivens a ct io n against individual employees of a private corporation that operated a

9

p r is o n under contract with the United States Marshal Service. Id. at 1108. The P e o p le s court relied heavily on statements in Malesko recounting the Supreme C o u r t 's history of refusing to extend Bivens where a plaintiff has other remedies a v a ila b le . The same conclusion was reached by the Fourth Circuit on similar r e a s o n in g . Holly v. Scott, 434 F.3d 287, 296 (4th Cir. 2006). A contrary position was taken by the district court in Sarro v. Cornell C o r r e ctio n s , Inc., 248 F. Supp. 2d 52 (D.R.I. 2003). The Sarro court found "p riv a te prison guards to be federal actors within the meaning of Bivens." Id. at 6 1 . It found that such guards act "under color of federal law" because of the role t h e y play in exercising "powers traditionally exclusively reserved to the g o v e r n m e n t ." Id. at 60. The Sarro court also noted that "[f]inding private prison g u a rd s to be federal actors within the meaning of Bivens also is consistent with th e weight of authority holding them to be state actors within the meaning of § 1 9 8 3 ." Id. at 61. The Sarro court concluded that there was "no manifestation o f any Congressional intent to preclude" a remedy under Bivens, where " C o n g r e s s has not provided any comprehensive scheme for redress" of c o n s tit u tio n a l abuses by private prison guards. Id. T h is Court has not located any Fifth Circuit cases on point. This Court d o e s note, however, that the Fifth Circuit has repeatedly stated that a Bivens a c t io n is analogous to an action under § 1983 and it does not distinguish between B iv e n s and § 1983 claims. See e.g. Izen v. Catalina, 398 F.3d 363, 367 n.3 (5th C i r . 2005). The above presents a close question. This Court does not find

10

p e r s u a s iv e Defendants' argument that they were not acting under color of fe d e r a l law. Nevertheless, Malesko cautions against extending Bivens.

P l a i n t iffs have state law claims of assault and battery available to them. P u r s u a n t to Defendants' argument that they are mere private actors, D e fe n d a n t s will not have any qualified immunity defense. Accordingly,

D e fe n d a n t s ' motion to dismiss any Bivens claim against the individual e m p lo y e e s of Cornell Companies, Inc. is granted.3 II I. A. P l a i n t i ff L.L.C.'s section 1983 claim A v a ila b i li t y of state law claims argument

R e ly in g upon Moore v. Willis I.S.D., 233 F.3d 871 (5th Cir. 2000), the C o r n e ll Defendants also claim that Plaintiff's section 1983 claim should be d is m is s e d because of the availability of state law claims. In Moore, the Fifth Circuit stated: W e have held consistently that, as long as the state provides a n adequate remedy, a public school student cannot state a claim for d e n ia l of substantive due process through excessive corporal p u n is h m e n t , whether it be against the school system, a d m in is t r a to r s , or the employee who is alleged to have inflicted the d a m a g e . In Fee v. Herndon, we reiterated that "[c]orporal p u n is h m e n t in public schools `is a deprivation of substantive due p r o c e s s when it is arbitrary, capricious, or wholly unrelated to the le g it im a t e state goal of maintaining an atmosphere conducive to lea rn in g .' " Educators in states that proscribe student mistreatment a n d provide a remedy "do not, by definition, act `arbitrarily,' a n e c e s s a r y predicate for substantive due process relief. We do r e c o g n iz e a student's liberty interest in maintaining bodily integrity. F o r example, we found that right to have been violated by a

Given the Court's ruling that a Bivens claim may not be brought against any of the individual employees, the Court will not address whether Plaintiffs fail to state facts sufficient to establish a Bivens claim for supervisor liability.

3

11

t e a c h e r 's conduct in Doe v. Taylor. But Taylor is distinguishable fro m Aaron's case. Taylor involved the sexual molestation of a s tu d e n t by her teacher, acts unrelated to any legitimate state goal. I n contrast, this case involves excessive exercise imposed as p u n is h m e n t to maintain discipline, and discipline is clearly a le g it im a t e state goal. It must be maintained in school classrooms a n d gymnasiums to create an atmosphere in which students can le a rn . M o o r e v. Willis I.S.D., 233 F.3d at 874-75 (citations omitted). P la in t iffs distinguish Moore arguing that its holding merely applies in the e d u c a t io n a l context. The Fifth Circuit has not definitely stated whether a s e c t io n 1983 claim should be dismissed because of the availability of state law c la im s . A number of circuit courts, including the Fifth Circuit, have proceeded to a p p l y the usual section 1983 framework to detention facilities operated by forp r o fit entities. See e.g. Boyd v. Corrections Corp. of America, 380 F.3d 989 (6th C ir . 2004); Ziegler v. Watkins, 92 Fed. Appx. 684 (10th Cir. 2004); Joyce v. C o r r ec tio n Corp. of America, 229 F.3d 1147 (5th Cir. 2000). Although at first b lu s h it would appear consistent with Malesko and Moore to dismiss Plaintiff's s e c t io n 1983 claim because he has other state remedies available to him, the C o u r t declines to dismiss on this new novel basis. B. U n d e r color of state law argument

D e fe n d a n ts argue that they did not act under color of state law.4 Plaintiffs p l e a d in their Fifth Amended Complaint that Cornell is licensed and monitored

4

Defendants now appear to argue that they were not state actors, but only federal

actors.

12

b y the Texas Department of Family and Protective Services (TDFPS) to house a n d provide care to children.5 Otherwise, Plaintiffs plead that the U.S.

D e p a r tm e n t of Health and Human Services, Division of Unaccompanied C h i l d r e n 's Services ("DUCS") contracted with Cornell to shelter the

u n a c c o m p a n ie d minors.6 Pursuant to Gallien v. Correction Corp., 91 F.3d 140 (5 th Cir. 1996), a private detention facility can be acting under color of state law if it operates and manages a state prison through a contractual relationship with t h e state. However, in this case, Defendants' contract was not with the State of T e x a s , but rather with the federal government. Plaintiffs attempt to overcome this obstacle by arguing that the Cornell D e f e n d a n t s were acting in a joint enterprise and/or conspiracy with a state o ffic ia l. Specifically, they argue that Cornell acted in a joint enterprise and/or c o n s p i ra c y with the San Antonio Police Department when SAPD officers r e s p o n d e d to a disturbance at the facility on one occasion. Plaintiffs allege that n o t only did Cornell Defendants summon the police, they identified children to b e handcuffed, and some of the Cornell Defendants and SAPD officers jointly a s s a u lte d various children. It is clear that the mere summoning of the SAPD officers to respond to a d is t u r b a n c e at the facility is insufficient to establish that the Cornell Defendants a n d SAPD were acting jointly such to trigger "under color of state law" status u p o n the Cornell Defendants. See Arlotta v. Bradley Center, 349 F.3d 517 (7th
5

Plaintiffs' Fifth Amended Complaint at ¶ 177. Id. at ¶¶ 178 - 187.

6

13

C ir . 2003). Under Lugar v. Edmondson Oil Co., 457 U.S. 922 (1982), however, a p r iv a t e party can be deemed a state actor if he or she is a "joint participant" with a state official in the offending enterprise. Id. at 931. To establish that the C o r n e ll Defendants were joint participants with the SAPD officers, Plaintiff is r e q u ir e d to demonstrate that the Cornell Defendants and SAPD officers k n o w in g ly participated in the alleged conspiracy. See Ballard v. Wall, 413 F.3d 5 1 0 , 519 (5th Cir. 2005). Inasmuch as dismissal is sought pursuant to a motion to dismiss (and not a motion for summary judgment), the Court finds that Plaintiffs adequately pled th e ir claim that the Cornell Defendants and SAPD officers knowingly p a r tic ip a t e d in the alleged conspiracy. Accordingly, the motion to dismiss on the b a s is that the Cornell Defendants were not state actors is denied. C. D e fe n d a n t s ' claim that L.L.C. lacks standing to bring a F o u r t h Amendment claim R e ly in g upon Martinez-Aguero v. Gonzalez, 459 F.3d 618 (5th Cir. 2006), th e Cornell Defendants argue that Plaintiff L.L.C. lacks standing to bring his F o u rt h Amendment excessive force claim. This Court is not persuaded.

A lt h o u g h the Fifth Circuit stated in dicta that "[t]here may be cases in which an a lie n 's connection with the United States is so tenuous that he cannot r e a s o n a b ly expect the protection of its constitutional guarantees", the Court w e n t further and stated that "the nature and duration of Martinez-Aguero's

14

c o n t a c t s with the United States, however, are sufficient to confer Fourth A m e n d m e n t rights." Id. at 625. In this case, L.L.C. was under the care and

c o n t r o l of immigration authorities well inside U.S. territory. L.L.C. was not b e in g detained at the border. Unlike Martinez-Aguero, he was not a transient v is ito r . The Fifth Circuit has recognized that whatever due process excludable a lie n s may be denied by virtue of their status, they are entitled under the due p r o c e s s clauses of Fifth and Fourteenth Amendments to be free of gross physical a b u s e at hands of state or federal officials. Lynch v. Cannatella, 810 F.2d 1363, 1 3 7 3 -7 4 (5th Cir. 1987). An attempt to dismiss a similar allegation merely b e c a u s e it has been raised as a Fourth Amendment claim makes little sense. A c co r d in g ly , the motion to dismiss on the basis that Plaintiff L.L.C. lacks s ta n d in g to bring a Fourth Amendment excessive force claim is denied. D. D e f e n d a n t s ' argument that Plaintiff L.L.C. has failed to e s t a b li s h the requisite excessive force R e ly in g upon Hudson v. McMillan, 503 U.S. 1 (1992), Defendants argue t h a t not every malevolent touch by a prison guard establishes a constitutional v io la tio n . The Supreme Court in Hudson held "that whenever prison officials s t a n d accused of using excessive physical force in violation of the Cruel and U n u s u a l Punishments Clause, the core judicial inquiry is that set out in Whitley: w h e t h e r force was applied in a good-faith effort to maintain or restore discipline, o r maliciously and sadistically to cause harm." The Supreme Court further s ta t e d : "Under the Whitley approach, the extent of injury suffered by an inmate

15

is one factor that may suggest `whether the use of force could plausibly have b e e n thought necessary' in a particular situation, `or instead evinced such w a n to n n e s s with respect to the unjustified infliction of harm as is tantamount t o a knowing willingness that it occur.' 475 U.S., at 321, 106 S.Ct., at 1085. In d e t e r m in in g whether the use of force was wanton and unnecessary, it may also b e proper to evaluate the need for application of force, the relationship between t h a t need and the amount of force used, the threat `reasonably perceived by the r e s p o n s ib le officials,' and `any efforts made to temper the severity of a forceful r e s p o n s e .' Ibid. The absence of serious injury is therefore relevant to the Eighth A m e n d m e n t inquiry, but does not end it." Hudson, 503 U.S. at 7. I n this case, Plaintiff L.L.C. has pled that he was not involved in the fa cilit y disturbance, but nevertheless he was assaulted, put in handcuffs, and t h e r e a f te r tasered by SAPD officers.7 Again, Defendants bring a motion to d is m is s , Plaintiff L.L.C. has adequately pled his claim alleging that the Cornell D e f e n d a n t s conspired with SAPD officers to assault him. Defendants' motion to d is m is s on the basis of failure to adequately establish excessive force is denied. S ee Payne v. Parnell, 246 Fed. Appx. 884, 886 (5th Cir. Sep. 5, 2007) (vacating a n d remanding summary judgment order). E. F a l s e arrest claim

P la in t iff L.L.C. also claims that he was falsely arrested after the d i s tu r b a n c e . Defendants counter that he was already in detention and could not

7

Id. at ¶¶ 97-99, 288-292.

16

h a v e been falsely arrested. Defendants over-simplify the situation. Plaintiff was in pretrial detention for an alleged immigration violation. He was thereafter a rr e s t e d 8 for allegedly participating in a melee at the detention facility. If he w a s not a participant in the melee, but nevertheless arrested for assault or p a r tic ip a t in g in a disturbance, that possibly could establish a false arrest claim. A g a in this is in a motion to dismiss stage, Plaintiff has pled that the Cornell D e fe n d a n t s and SAPD officers conspired to have him arrested without cause.9 T h e competent summary judgment evidence may very well establish that D e fe n d a n ts were justified in Plaintiff's arrest, however, that is not the p r o c e d u r a l stage before the Court at this time. Defendants' motion to dismiss th e false arrest claim is denied. The Cornell Defendants' motion to dismiss Plaintiff L.L.C.'s section 1983 c la im is denied. IV. C o r n e ll Defendants' motion to dismiss Plaintiffs' pendent s t a t e claims T h e Cornell Defendants move to dismiss the state tort claims alleging that t h e y do not meet the pleading standards set forth in Twombley. For the reasons s e t forth above, the Court finds that Plaintiffs adequately pled their assault and b a t t e r y claims, the motion is denied. V. C i t y 's Motion to Dismiss

The parties appear to disagree whether L.L.C. was arrested or not. At a minimum he was detained and transported somewhere.
9

8

Id. at ¶¶ 304-307.

17

T h e City seeks dismissal arguing that Plaintiffs have failed to establish, p u r s u a n t to section 1983, that the City had a custom or policy that condoned e x c e s s iv e force by its officers. The City further seeks dismissal of Plaintiffs' fa ilu r e to train allegation arguing that it is procedurally deficient. Finally, the C it y seeks dismissal of the tort claims brought against the individual police o ffic e r s citing Tex. Civ. Prac. & Rem. Code §§ 101.106, et seq. P la in t iffs halfheartedly respond that their pleadings are sufficient. They a r e not. There is no allegation (other than a conclusory allegation) that the City h a s a custom or policy condoning excessive force. Likewise, there is only a c o n c lu s o r y allegation that the City failed to train its officers. The City's motion t o dismiss these claims is granted.10 U n d e r Texas law, "[i]f a suit is filed under [the Texas Tort Claims Act] a g a in s t both a governmental unit and any of its employees, the employees shall im m e d ia te ly be dismissed on the filing of a motion by the governmental unit." T e x . Civ. Prac. & Rem. Code § 101.106(e). The City of San Antonio has so m o v e d . Therefore, any common law causes of action brought against the Officer D e fe n d a n t s (assault, battery, false imprisonment, intentional infliction of e m o tio n a l distress)1 1 are dismissed pursuant to Section 101.106(e). See Mission

Recognizing that their pleadings may be deficient, Plaintiffs seek leave to amend their complaint. That request is denied at this time. Plaintiffs may file a motion for leave to file an amended complaint (which includes as an attachment a copy of their proposed amended complaint which cures these deficiencies). Thereafter, if such a motion for leave is filed, the Court will hear from the City and then issue its ruling. The Court is unsure whether any common law causes of action have been pled against the individual police officers. The Court's reading of the Fifth Amended Complaint appears to only allege section 1983 claims against the individual officers.
11

10

18

C o n so l. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 659 (Tex. 2008). V I. S A P D Officers' motion to dismiss

The individual officers seek dismissal of the section 1983 claims made a g a in s t them on the basis of qualified immunity.1 2 Plaintiff L.L.C. alleges that o n February 18, 2008 a disturbance broke out at the Abraxas facility; he was not a participant in the melee, but four SAPD officers nevertheless tackled him, h a n d c u ffe d him, assaulted him and then tasered him.13 T h e first inquiry for the Court is whether the facts alleged, taken in the lig h t most favorable to Plaintiff, show that Defendants violated his Fourth A m e n d m e n t rights. See Graham v. Connor, 490 U.S. 386, 395 (1989) (an

e x ce s s iv e force claim arising in the context of an arrest is most properly c h a r a c t e r iz e d as invoking the protections of the Fourth Amendment). Claims t h a t police officers used excessive force are analyzed under the Fourth A m e n d m e n t's objective reasonableness standard. Id. This reasonableness

d e t e r m in a tio n requires a balancing of "the nature and intrusion on the i n d iv id u a l 's Fourth Amendment interests against the countervailing

g o v e r n m e n t a l interests at stake." Gutierrez v. City of San Antonio, 139 F.3d 441, 4 4 7 (5th Cir. 1998). Proper application of the Fourth Amendment's

r e a s o n a b le n e s s test requires careful attention to the facts and circumstances of e a ch particular case. The Court must consider "the severity of the crime at

Plaintiff L.L.C. has agreed to withdraw any section 1983 claims brought against the SAPD officers in their official capacities.
13

12

Plaintiffs' Fifth Amended Complaint at ¶¶ 95 - 102, 287 - 292, 304 - 307.

19

is s u e , whether the suspect pose[d] an immediate threat to the officers or others, a n d whether he [was] actively resisting arrest or attempting to evade arrest by f lig h t ." Id. The fact that police officers are required to make split second ju d g m e n ts under tense and rapidly evolving circumstances is considered. Id. If t h e officer reasonably but mistakenly used excessive force, he is entitled to q u a lifie d immunity. See id. The facts here are in dispute. Plaintiff L.L.C. claims he was in no way in v o lv e d in the melee and the SAPD officers came upon him with no cause. The D e fe n d a n t Officers deny the claim. Because this is a motion to dismiss, the C o u r t must view the disputed facts in the light as pled by the Plaintiff. Taking the Plaintiff's alleged facts as true, Plaintiff has alleged that his F o u rt h Amendment rights were violated. Thus, because the events surrounding t h e events at the facility are in dispute, material fact issues exist regarding w h e t h e r the alleged use of excessive force was reasonable. With regard to the e v e n ts at the facility, again taking Plaintiff's allegations that he was assaulted, h a n d c u ffe d and then tasered without cause, the use of such unnecessary physical fo r c e would not have been reasonable. Turning to the second prong of the qualified immunity analysis, whether a reasonably competent officer in Defendants' position could reasonably have t h o u g h t his actions to be consistent with the right he alleged to have violated, th e Court concludes that the right allegedly violated by Defendants was clearly e s ta b l is h e d in February 2008. Certainly, the Fourth Amendment's prohibition o f the use of excessive force by the police against seized persons was clearly 20

e s t a b lis h e d prior to that time. Gutierrez, 139 F.3d at 446 (noting that the g e n e ra l right to be free from excessive force was clearly established by 1994). T h e Court further concludes that, if Plaintiff's allegations are true, it would have b e e n apparent to an officer in the Defendants' position that the actions taken w e r e in violation of Plaintiff's Fourth Amendment rights.1 4 Accordingly, the C o u r t denies the motion to dismiss on the basis of qualified immunity. Conclusion C o r n e ll Defendants' motion to dismiss (docket no. 158) is granted in part a n d denied in part. Defendants' motion to dismiss any Bivens claim against C o r n e ll Companies, Inc. is granted. Defendants' motion to dismiss any Bivens c la im against the individual employees of Cornell Companies, Inc. is granted. T h e Cornell Defendants' motion to dismiss Plaintiff L.L.C.'s section 1983 claim is denied. Cornell Defendants' motion to dismiss Plaintiffs' pendent state claims is denied. T h e City's motion to dismiss (docket no. 150) is granted. Accordingly, P la in tiffs ' section 1983 claim against it is dismissed. T o the extent that any common law causes of action (assault, battery, false im p r is o n m e n t , intentional infliction of emotional distress) have been brought a g a in s t the SAPD Officer Defendants, they are dismissed. T h e SAPD Officers' motion to dismiss on the basis of qualified immunity (d o c k e t no. 178) is denied.

This same analysis applies to Plaintiff's other section 1983 claim (right to a liberty interest in being free from unlawful arrest).

14

21

I t is so ORDERED. S I G N E D this 6 day of August, 2009.

_________________________________ X A V IE R RODRIGUEZ U N I T E D STATES DISTRICT JUDGE

22