Khansari et al v. City of Houston et al, No. 4:2013cv02722 - Document 35 (S.D. Tex. 2014)

Court Description: MEMORANDUM OPINION AND ORDER granting in part and denying in part 27 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM, granting in part and denying in part 28 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM. The parties have until 5/26/2014 to c onduct paper discovery aimed solely at determining whether the officer defendants are entitled to qualified immunity, and attempt to settle the case. If unable to settle at by 5/26/2014, the parties will provide the contact information of an agreed upon mediator. If the the case does not settle, the court will schedule and initial pretrial and scheduling conference. (Signed by Judge Sim Lake) Parties notified.(aboyd, 4)

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION COREY KHANSARI, DEBRA KHANSARI, and MICHAEL KHANSARI, Plaintiffs, § § § § § § v. § § THE CITY OF HOUSTON, CHIEF OF POLICE CHARLES A. MCCLELLAND, JR., OFFICER WILLIAM E. RUTHERFORD, OFFICER CANDACE M. BRADSHAW VAUGHN, OFFICER JILLIAN MCGOWAN, OFFICER MARIA HERNANDEZ, OFFICER SEAN HUNTER, OFFICER JORGE LUIS HERRERA, and OFFICER WALTER GAW, § § § § Defendants. CIVIL ACTION NO. H-13-2722 § § § § § § § MEMORANDUM OPINION AND ORDER Plaintiffs, Corey Khansari ("Corey") , and his parents, Debra Khansari ("Mrs. Khansari "), and Michael Khansari ("Mr. Khansari ") , bring this action against defendants, the City of Houston, Chief of Police Charles A. McClelland, Jr., and individual police officers William E. Rutherford, Candace M. Bradshaw Vaughn, Jillian McGowan, Maria Hernandez, Sean Hunter, Jorge Luis Herrera, and Walter Gaw, under 42 U.S.C. § 1983 for violation of civil rights guaranteed by the Fourth Amendment to the United States Constitution, and in the alternative, bring claims against the City of Houston for negligent conduct of its employees under the Texas Tort Claims Act ("TTCA"). Pending before the court are the City of Houston's Rule 12 (b) (1) ----.-.- .. -.--.-.-.-.~-----.----... and 12(b) (6) Partial Motion to Dismiss Plaintiffs' Second Amended Complaint Dismiss (Docket Entry No. Second Plaintiffs' Charles A. 27), MCClelland, Jr., and Rule Amended 12 (b) (6) Complaint William Rutherford, Motion by to Defendants Candice Vaughn, Jillian McGowan, Maria Hernandez, Sean Hunter, Jorge Herrera and Walter Gaw (Docket Entry No. 28). For the reasons set forth below, the pending motions to dismiss will be granted in part and denied in part, and limited discovery will be allowed against the individual officer defendants for purposes of determining their entitlement to qualified immunity. I. Standard of Review The individual defendants seek dismissal of all the claims asserted against them under Federal Rule of Civil Procedure 12 (b) (6) for failure to state a claim for which relief may be granted. The City of Houston seeks dismissal under Rule 12(b) (6) of the federal law claims asserted against it for ratifying the allegedly defendants, unconstitutional conduct of the individual officer and of the federal law claims asserted by Debra and Michael Khansari for "individual and bystander liability," and seeks dismissal of the claims asserted under the TTCA for lack of subject matter jurisdiction under Rule 12(b) (1). Under Rule 8 of the Federal Rules of Civil Procedure, a pleading must contain "a short and plain statement of the claim showing that the pleader is entitled to relief. -2- II Fed. R. Ci v. P. 8 (a) (2). A Rule 12 (b) (6) motion tests the formal sufficiency of the pleadings and is "appropriate when a defendant attacks the complaint because it fails to state a legally cognizable claim." Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001), cert. denied sub nom Cloud v. United States, 122 S. Ct. 2665 (2002) The court must accept the factual allegations of the complaint as true, view them in a light most favorable to the plaintiff, and draw all reasonable inferences in the plaintiff's favor. Id. To defeat a motion to dismiss pursuant to Rule 12 (b) (6), a plaintiff must plead "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. (2007). "A claim has facial plausibility when the plaintiff pleads factual content that v. allows Twombly, the court 127 S. to Ct. draw 1955, the 1974 reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 127 S. Ct. at 1965). 'probability (2009) (citing Twombly, "The plausibility standard is not akin to a requirement,' but it asks for more than possibility that a defendant has acted unlawfully." a Id. sheer (quoting Twombly, 127 S. Ct. at 1965). "Where a complaint pleads facts that are a defendant's liability, 'merely consistent with' short of the line between entitlement to relief." Moreover, Id. possibility and it 'stops plausibility of (quoting Twombly, 127 S. Ct. at 1966) . the court does not accept as true legal conclusions: "Threadbare recitals of the elements of a cause of action, -3- ._--_._--_. --------_ _ . . . . . .......... _--- supported by mere conclusory statements, do not suffice." rd. at 1950. Rule 12 (b) (1) challenges to subject matter jurisdiction come in two forms: "facial" attacks and "factual" attacks. v. Weinberger, 644 F.2d 521, 523 (5th Cir. 1981). consists of a Rule 12 (b) (1) See Paterson A facial attack motion unaccompanied by supporting evidence that challenges the court's jurisdiction based solely on the pleadings. subject Id. matter A factual attack challenges the existence of jurisdiction in fact irrespective of the pleadings -- and matters outside the pleadings, such as testimony and affidavits, are considered. rd. Because the City of Houston has not submitted evidence in support of its Rule 12(b) (1) motion to dismiss the TTCA claims asserted against it, the motion is a facial attack on plaintiffs' pleadings, and the court's review is limited to whether the complaint sufficiently alleges jurisdiction. II. Plaintiffs' Factual Allegations Plaintiffs allege that when the incidents at issue occurred Corey was a 19-year old suffering from severe anxiety caused by allergies. Corey's medications. instructions, doctors had prescribed several anxiety Despite taking these drugs according to his doctor's the drugs had a negative effect on Corey, causing thoughts of suicide and depression, and causing him to sleep for long periods of time. -4- 20. On November 25, 2011, Corey slept most of the day. When he awoke in the late afternoon, Mrs. Khansari saw him mumble strangely to himself and then saw him take a large number of medication pills. This caused Mrs. Khansari to fear that Corey had attempted suicide and that his life was in jeopardy. Alarmed, she told Mr. Khansari immediately, who then called 9-1-1. 21. Shortly after Mr. Khansari called 9-1-1, an ambulance arrived at the Khansari home. One of the paramedics approached Corey, and Corey emphatically informed him that he did not wish to go with them in the ambulance. The paramedic informed Mrs. Khansari that they would be calling for another ambulance for back-up. 22. Shortly afterwards, Mrs. Khansari was in the front yard of their home when, to her surprise, a Houston Police Department patrol car arrived. A female officer believed to be Officer Vaughn came out of her squad car armed with a long gun and appeared to put a round in the chamber as if preparing to fire. Mrs. Khansari asked the officer, "What are you doing?" Officer Vaughn replied "I might have to kill someone" or words to that effect. Mrs. Khansari was upset by this statement and explained to Officer Vaughn that Corey had taken lots of medication pills and needed his stomach pumped. Mrs. Khansari repeated that there was no need for Officer Vaughn to be using a gun as no one at the Khansari home was armed and as there were no guns at the Khansari home. 23. Within the next few moments, additional Officers arrived at the scene, and several of the them were also armed with long guns. Armed Officers yelled at Mr. Khansari in a threatening manner to get out of the way, that he was interfering with police work, and that if he did not get out of the way, he would be arrested. Mr. Khansari then complied. 24. At some point, Corey had walked out of the front door of the Khansari home and was standing in the yard near the front door. The Officers pointed their weapons at Corey. Red laser beam dots appeared on Corey, which terribly frightened Corey and his mother. They feared that the Officers were going to shoot Corey. 25. At that point, Mrs. Khansari, trying to protect Corey from the armed Officers, interposed herself between certain Officers , including, upon information and belief, -5- Officer Rutherford, and Corey, repeating that their weapons were unnecessary and that the Khansaris were unarmed. At this time, red laser beam dots appeared on Mrs. Khansari. Officers were shouting. Fearing that his mother was in danger of being shot or of having a heart attack, Corey pushed Mrs. Khansari out of the line of fire. Immediately, Officer Rutherford and/or other Officers used a taser in such a manner as to strike Corey in the face and on his head. One of the taser darts pierced Corey's eye. After being shot with the taser and receiving incapacitating electricity, Corey fell to his knees and was severely disoriented. After a few seconds, Corey tried to get up and was shot several more times with a taser in the torso and legs. Seeing this, Mr. Khansari felt extreme anxiety and fell to the ground, feeling like he was having a heart attack. Paramedics rushed to Mr. Khansari and took him into the ambulance. 1 26. Plaintiffs allege that after being tasered, Corey retreated to his house where he pulled the taser dart from his eye. Mrs. Khansari called Corey on the phonei a police officer refused to speak with Corey but a fireman took the phone and Corey told the fireman that he would come out of the house with his hands over his head. Plaintiffs allege that when Corey exited the house, a police officer kicked Corey to the ground. 2 Hospital for treatment. 3 Corey was taken to St. Joseph Plaintiffs allege that [a] s a result of the taser shot to his eye, Corey suffered and continues to suffer from severe and permanent damage to his optical nerve and retina, losing lPlaintiffs Corey Khansari, Debra Khansari, and Michael Khansari's Second Amended Complaint ("Plaintiffs' Second Amended Complaint"), Docket Entry No. 20, pp. 5-7 ~~ 20-26. 2Id. at 7-8 3Id. at 8 ~ ~ 27. 28. -6- vision in his right eye. As a result of Defendants acts Corey has undergone six surgical procedures for the injuries to his right eyel and his medical treatment is ongoing. Corey feels frequent severe nerve pain on the right side of his face and head that prevents him from doing many things he used to do and that has significantly impacted his life for the worse. 4 1 1 Plaintiffs allege that [a]t no time on November 25 2011[/] did Corey have a weapon; all he had was his epinephrine pen and cell phone. At no time on that day did he give anyone any reasonable belief or suspicion that he had a weapon or could obtain a weapon. On that day Corey made no threats to harm or endanger any [] other person including the Officers. Corey was never arrested or charged with or even suspected of having committed any crime. s 1 1 l Plaintiffs allege that defendants were at all times acting under color of laws of the State of Texas and the City of Houston. 6 III. Motion to Dismiss Chief McClelland and the Individual Officer Defendants Plaintiffs allege that intentional actions of the individual police officer defendants make them liable under 42 U.S.C. § 1983 for infringing plaintiffs 1 rights to be free from excessive force in violation of the Fourth Amendment either by using excessive force or failing SId. at 8 6Id. ~ ~ to prevent the use of excessive force. 7 29. 30. 7Id. at 9-11 ("Excessive Force Claims against the Officers in their Individual Capacities") and 11-12 ("Mr. & Mrs. Khansari/s Individual and Bystander Injury Claims") 1 -7- Plaintiffs allege that Chief McClelland is liable under 42 U.S.C. § 1983 for failing to train and supervise the individual officer defendants conduct. S and for ratifying their allegedly unconstitutional Chief McClelland and the individual officer defendants seek dismissal of all claims asserted against them. 9 A. Personal Capacity Claims for Excessive Use of Force Asserted Against the Individual Officer Defendants 1. Applicable Law (a) 42 U.S.C. 42 U.S.C. § § 1983 1983 provides a private right of action for the deprivation of rights, privileges, and immunities secured by the Consti tution or laws of the United States. § A complaint under 1983 must allege that the acts complained of occurred under color of state law and that the complaining parties were deprived of rights guaranteed by the Constitution or laws of the United States. Parratt v. Taylor, 101 S. Ct. 1908, 1913 (1981), overruled on other grounds, Daniels v. Williams, 106 S. Ct. 662 (1986) City of Houston, under § 51 F.3d 512, 515 (5th Cir. i Piotrowski v. 1995). A complaint 1983 must also allege that the constitutional or statutory SId. at 12-17 ("The City's Failure to Train and/or Supervise the Officers"), 17-21 (liThe City's Unlawful Policy and Custom"), 21-24 ("The City's Ratification"). 9Rule 12 (b) (6) Motion to Dismiss Plaintiffs' Second Amended Complaint by Defendants Charles A. McClelland, Jr., William Rutherford, Candice Vaughn, Jillian McGowan, Maria Hernandez, Sean Hunter, Jorge Herrera and Walter Gaw ("Motion to Dismiss Claims Against Individual Defendants"), Docket Entry No. 28. -8- ----------_ ..... . deprivation was intentional or due to deliberate indifference and not the result of mere negligence. 1970 (1994). file short Farmer v. Brennan, 114 S. Ct. Plaintiffs suing public officials under and plain complaints Schultea conclusive. v. that Wood, 47 must F.3d be § 1983 must factual 1427, 1433 and not (5th Cir. 1995) (en banc) . (b) Official and Personal Liability Public officials like the individual officer defendants and Chief McClelland may be sued pursuant to 42 U.S.C. their official and/or their personal capacities. 112 S. Ct. 358, 361-63 (1991) 1983 in either § Hafer v. Melo, (citing Kentucky v. Graham, 105 S. Ct. 3099 (1985)). [T] he distinction between official-capacity suits and personal-capacity suits is more than "a mere pleading device.". . State officers sued for damages in their official capacity are not "persons" for purposes of the suit because they assume the identity of the government that employs them. . By contrast, officers sued in their personal capacity come to court as individuals. A government official in the role of personal-capacity defendant thus fits comfortably within the statutory term "person." rd. at 362. The real party in interest in an official-capacity suit is the governmental entity, not the named official. 361 (citing Graham, 105 S. Ct. at 3105) officials in their official capacity . suits against the State."). 584 (5th Cir.), Mrs. Bennett cert. sued the ("Suits against state should be treated as See Bennett v. Pippin, denied, Sheriff 117 in -9- rd. at S. his Ct. 68 individual 74 F.3d 578, (1996) and ( "When official capacity, she sued two defendants: the Sheriff and the County.") . See also Turner v. Houma Municipal Fire and Police Civil Service Board, 229 F.3d 478, 483 (5th Cir. 2000) ("Official-capacity suits 'generally represent only another way of pleading an action against an entity Accordingly, a of which 1983 § 'official capacity' an suit does not individual defendant.") capacity claim under officer naming is agent.' defendants involve personal (citations omitted). § an in only their liability to the To state a personal- 1983 plaintiffs must allege that while acting under color of state law defendants were personally involved in the deprivation of a right secured by the laws or Constitution of the United States, or that defendants' wrongful actions were causally connected to such a deprivation. James v. Texas Collin County, 535 involvement subordinates' F.3d or 365, notice, actions. 373 (5th Cir. supervisors Id. 2008). cannot Absent be (citing Doe v. held Taylor School District, 15 F.3d 443, 454 (5th Cir. 1994) (c) personal liable for Independent (en banc)). Qualified Immunity Public officials sued in their individual capacities under § 1983 are immunity. in part shielded from suit by the doctrine of qualified Saucier v. Katz, 121 S. Ct. 2151, 2156 (2001), overruled by Pearson v. Callahan, 129 S. Ct. 808, 812 (2009). "Qualified immunity is 'an entitlement not to stand trial or face the other burdens of litigation,' -10- . it is effectively lost if (quoting a case is erroneously permitted to go to trial." Id. Mitchell v. Forsyth, 105 S. Ct. 2806, 2815 (1985)). The doctrine of interest qualified immunity was created to balance the of compensating persons whose federally protected rights have been violated against the fear that personal liability might inhibit public officials in the discharge of their duties. City of Houston, Texas, 14 F.3d 1056, 1059 qualified (1) immunity whether the constitutional analysis involves plaintiff right i and has (2) (5th Cir. 1994). two-step a alleged whether See Johnston v. a that was established at the time of the alleged misconduct. S. Ct. at 815-16 (citing Saucier, 121 S. inquiry: violation right Ct. The of a clearly Pearson, 129 at 2155). It is within the discretion of the district court to decide which of the two steps to address first. Id. at 818. Courts examine each officer's actions independently to determine whether he or she is entitled to qualified immunity. 762 Newman v. Guedry, (5th Cir. 2012), cert. denied, 134 S. Ct. 162 Meadours v. Ermel, 483 F.3d 417, 421-22 703 F.3d 757, (2013) (citing (5th Cir. 2007)). Once a defendant asserts qualified immunity, the burden shifts to the plaintiffs, negating who bear qualified immunity. (d) the burden of the defense of See Newman, 703 F.3d at 761. Elements of Claims for Excessive Use of Force To state a claim for the use of excessive force under the Fourth Amendment, plaintiffs must first allege facts capable of -11- showing that Palacios, S. Ct. showing they suffered a 381 F.3d 391, at 1871). that 396 See Flores v. seizure. (5th Cir. 2004) City of (citing Graham, 109 Plaintiffs must then allege facts capable of they suffered (1) an injury; (2) which resulted directly and only from a use of force that was clearly excessive to the need; and unreasonable. (3) Id. (5th Cir. 1996). the excessiveness of which was objectively See also Ikerd v. Blair, 101 F.3d 430, 433-34 "[T]he question [is] whether the totality of the circumstances justified" that use of force. Tennessee v. Garner, In Graham, 109 S. Ct. at 1865, the 105 S. Ct. 1694, 1700 (1985). Supreme Court articulated three guideposts for courts to use when determining if a particular use of force was reasonable under the circumstances or excessive to the need. These guideposts - often referred to as the Graham factors - are: crime at issue; (1) the severity of the (2) whether the suspect posed an immediate threat to police officers or civilians; and (3) whether the suspect was actively resisting arrest or attempting to evade arrest by fleeing the scene. for Id. at 1872. judging whether The Graham factors provide the framework an officer's use of force was excessive. Newman, 703 F.3d at 761. To state a claim under § 1983 for an officer's failure to prevent another officer's use of excessive force, plaintiffs must allege that (1) the bystanding officer knew that a fellow officer was violating an individual's constitutional rights, (2) had a reasonable opportunity to prevent violation, and (3) chose not to -12- act. Whitley v. Hanna, 726 F.3d 631, 646 (5th Cir. 2013), pet. for cert. filed, 82 U.S.L.W. Townley, 45 F. 3d 914, premised on the 919 theory (December 5, (5th Cir. 1995» that by 2012) choosing (citing Hale Such liability is not to intervene, bystanding officer participates in his fellow officer's acts. 2. v. a Id. Application of the Law to the Alleged Facts Plaintiffs allege 31. The Officers violated Corey's constitutional right to be free from unreasonable seizure of his person when they used objectively unreasonable force in restraining Corey's liberty, causing him severe personal injuries. The Officers violated Corey's rights to life and the integrity of his person. The Fourth Amendment of the United States Constitution fully protects these rights. 32. Many of the Officers' acts were objectively unreasonable. First, the Officers failed to obtain necessary information relating to the circumstances before planning and coordinating their approach and encounter with the Khansaris at their home. Al ternati vely, the Officers disregarded the important information they did obtain about the circumstances before planning and coordinating their approach and encounter. 33. Second, once the Officers had begun their approach and encounter with the Khansaris, they failed to observe additional circumstances that should have informed them that their approach carrying high powered guns was unnecessary, counterproductive, and dangerous. An objective bystander would have observed that Corey was unarmed and failed to present any real threat to himself or those surrounding him, including the Officers. 34. Third, once in Corey's proximity, the Officers failed to properly deal with Corey, who they knew to be suffering from a state of mental illness and/or mental or emotional instability. The Officers failed to gauge their conduct accordingly so as to deescalate the situation in light of Corey's known mental instability. Instead, the Officers conducted themselves in a manner -13- --_._------ -------_._- ---------- that dangerously escalated the situation. For example, the Officers pointed their long rifles and guns at Mrs. Khansari and at Corey, who could see the red laser beam dots on each other, causing them to fear for their lives. This conduct by the Officers created a situation so escalated that Mrs. Khansari had to try to protect her son from being shot and Corey had to push his mother aside to save her from being shot of having a heart attack. 35. Fourth, Officer Rutherford's and potentially other Officers' use of excessive force did not relate to a proper or conscious assessment of danger; they failed to respond to Corey's behavior proportionately. Officer Rutherford's and potentially other Officers' choices were obj ecti vely unreasonable under the circumstances and unconstitutional. The use of such force as was used against Corey, an unarmed and emotionally disturbed teenager, under these circumstances was objectively unreasonable and unconstitutional. The number of tasers deployed and the manner in which they were deployed was excessive to the circumstances and unnecessary. Further, tasers should never be aimed at or deployed toward a person's head. Yet Officer Rutherford and/or another Officer deployed a taser that landed at [] or near Corey's eye, causing him severe personal injury. 36. Finally, the other Officers present at the scene, seeing that Officer Rutherford and other Officers were using unreasonable and excessive force, failed to take reasonable steps to stop their fellow Officers from using excessive force and/or failed to take reasonable steps to intervene and protect Plaintiffs from such excessive force. Instead, these witnessing Officers, having reasonable opportunities to realize the excessive nature of the force and having realistic and reasonable opportunities to stop such excessive force, stood by and watched as Officer Rutherford and other Officers engaged in excessive force against Plaintiffs through several acts, including but not limited to, pointing their guns at Mrs. Khansari and at Corey, making threats to kill, shooting Corey with a taser in the eye, shooting Corey several more times with a taser, and kicking Corey to the ground after he had come out from inside his home. Such witnessing Officers are liable for their nonfeasance. 1o lOPlaintiffs' Second Amended Complaint, Docket Entry No. 20, pp. 9-11 ~~ 31-36. -14- (a) Facts Alleged Are Sufficient to State a Claim Arising from Force Used Against Corey Khansari Defendants argue that plaintiffs' claims for use of excessive force against Corey arising from the drawing and pointing of weapons and kicking him to the ground are subject to dismissal either because the force used was not excessive or because the officers are entitled to qualified immunity. Defendants argue that [a]ccepting Plaintiffs' own allegations as true, no clearly established Fourth Amendment right would have been violated by an officer using some amount of force to take Corey safely into custody - i.e., taking him to the ground - given the circumstances that preceded his exit from the home.ll Defendants argue that Plaintiffs make absolutely no attempt in their Second Amended Complaint to identify the one officer who allegedly kicked Corey to the ground. All three Plaintiffs purport to have been present during the incident. In addition, Plaintiffs have positively identified two of the officers who first arrived at the scene - Officer Vaughn, a female officer, and Officer Rutherford, a male officer. The other officers they have sued include two female officers, two male officers, and one sergeant. They make no attempt to identify whether the officer they allege kicked Corey was officer Vaughan or Rutherford, or even whether it was a male or female officer. 12 Asserting that the only force alleged to have been used against Corey was tasering four or five times and kicking once, defendants argue that even if these acts constituted excessive defendants are entitled to dismissal of plaintiffs' llMotion to Dismiss Claims Docket Entry No. 28, at 10. 12Id. Against at 11. -15- Individual force, claims for Defendants, failure to prevent these uses of force because neither an officer's decision to fire his taser nor an officer's decision to kick Corey could reasonably have been officers at the scene. 13 anticipated or prevented by other Defendants also argue that "[t]he alleged failures of the officers to properly plan, evaluate or gauge the situation do not state a recognized cause of action for a constitutional violation under the Fourth Amendment,,,14 and that " [p] laintiffs' approach of suing every officer who responded to the scene is insufficient to state viable claims against the individual police officers" entitled to qualified immunity. 15 Acknowledging however that plaintiffs' allegations that Corey was unnecessarily tasered multiple times could potentially state a claim for excessive use of force in violation of the Fourth Amendment, defendants argue that these excessive force claims are nevertheless subject to dismissal on the basis of qualified immunity because a constitutional right to be free from such force was not clearly established in November of 2011 when the incident at issue occurred. Defendants argue that [p]laintiffs' own allegations establish a factual scenario that fails to satisfy the second prong as to Officer Rutherford's deployment of the taser. Plaintiffs allege that Corey was mentally unstable, contemplating suicide, and pushed his mother in the middle of a tense and chaotic scene, which resulted in his tasing. Under l3Id. at 13. 14Id. at 12. 15Id. at 13. -16- the facts alleged by Plaintiffs, they cannot establish that no reasonable officer under the same circumstances could have believed it was constitutional to deploy his taser . . . Thus the excessive force claim against Officer Rutherford should be dismissed under the second prong of qualified immunity. 16 Plaintiffs respond that their allegations are sufficient to state a claim against the individual officers for excessive use of force against Corey because they have alleged that Corey suffered an injury that is more than de minimus since it resulted in loss of vision in one eye, and have alleged that the officers' use of force was clearly and unreasonably excessive. 17 In Ikerd, 101 F.3d at 434, the court stated that in analyzing the first and second elements required to state a claim for the excessive use of force, that i.e., that plaintiff suffered an injury resulted directly and only from a clearly excessive to the need, use of force that was "the extent of the injury suffered by a plaintiff is one factor that may suggest whether the use of force was excessive in a particular situation." In analyzing the third element, i.e., "the excessiveness of force was [] objectively unreasonable," the court reasoned that "[i]n gauging the objective reasonableness of the force used by a law enforcement officer, 16Id. at 14. 17Plaintiffs Corey Khansari, Debra Khansari, and Michael Khansari's Response to Rule 12(b) (6) Motion to Dismiss Plaintiffs' Second Amended Complaint by Defendants Charles A. MCClelland, Jr., William Rutherford, Candice Vaughan, Jillian McGowan, Maria Hernandez, Sean Hunter, Jorge Herrera and Walter Gaw ("Plaintiffs' Response to Individual Defendants' Motion to Dismiss"), Docket Entry No. 31, pp. 5-9. -17- [courts] must balance the amount of force used against the need for that force. 1f Id. Al though plaintiffs have not alleged any facts establishing that Corey suffered inj ury as a capable of result of merely having weapons pointed at him or being kicked to the ground while exiting the house, according to Plaintiffs' Second Amended Complaint, the individual officers who responded to the call for assistance at the Khansari's home on November 25 t 2011, encountered a mentally ill or emotionally disturbed young man who had refused medical services but was not suspected of having committed any crime, was not armed, and did not pose an immediate threat to the officers or to others. physical skill, Nevertheless, negotiation t or immediately deployed their tasers. without attempting to use even commands t the officers Plaintiffs allege that even after a taser dart hit Corey in the eye and caused him to fall to the ground, one or more officers continued to fire tasers until Corey managed to retreat into his house. Plaintiffs' allegations that Corey suffered loss of vision in one eye as a result of being tasered while standing in his yard after having refused medical help are sufficient to satisfy the requirements that plaintiff plead facts capable of establishing that Corey suffered an injury, i.e., loss of vision in one eye, which resulted directly and only from a use of force need, i.e. t t i.e., being tasered t that was excessive to the the need to provide medical assistance to Corey. -18- Because plaintiffs also allege that the officers fired their tasers at Corey even though Corey posed no immediate threat to the officers or to others, the plaintiffs' allegations of fact are also sufficient to satisfy the requirement that plaintiffs plead facts capable of establishing that the excessiveness of the force was objectively unreasonable. Since, moreover, plain-tiffs allege that the defendant officers each had an opportunity upon arrival at the scene and upon observing the drawing of tasers excessive force and prevent the harm to Corey, to stop the but chose not to act, plaintiffs' allegations are also sufficient to state a claim for failure to prevent the use of excessive force. Plaintiffs' allegations that the defendant officers failed to properly plan, evaluate, or gauge the situation are not sufficient to state a claim for violation of rights protected by the Fourth Amendment because these alleged failures neither constitute a seizure, nor a use of force that caused Corey to suffer an injury that was excessive to the need or objectively unreasonable. (1) Facts Alleged Are Sufficient to Overcome Defense of Qualified Immunity for Claims Arising from Force Used Against Corey Khansari Without citing any authority, defendants contend that they are entitled to qualified immunity because in November of 2011 the law was not sufficiently clear that a reasonable officer would have known that tasering Corey multiple times would have violated the constitution. In other words, the defendant officers argue that -19- their conduct was not objectively unreasonable in light of clearly established law. In Saucier, 121 S. Ct. at 2155, the Supreme Court mandated a two-step procedure for resolving government officials' qualified immunity claims. facts that a plaintiff constitutional has First, courts must decide whether the alleged make Second, right. out a violation of a if plaintiffs satisfy the first step, courts must decide whether the right at issue was "clearly established" at the time of defendants' alleged misconduct. Id. Since the the defendants assume, arguendo, for purposes of qualified immunity analysis, that the plaintiffs' allegations that the defendant officers unnecessarily tasered Corey are capable of establishing a violation of Corey's Fourth Amendment rights, the court turns directly to the second analytical step of the qualified immunity analysis: whether that right was clearly established when the actions at issue occurred. A right [that] right is clearly established where [are] 121 S. Ct. contours of sufficiently clear that a reasonable official would understand that what he Saucier, ,,\ [t] he at 2156 S. Ct. 3034, 3039 (1987)). is doing violates (quoting Anderson v. that right.' Creighton, 107 The Fifth Circuit has observed that [a]llegations that an officer used excessive force in conducting a seizure complicates the Saucier inquiry. This complexity stems from having to make two "overlapping obj ecti ve reasonableness inquir [ies] . We must first answer the constitutional violation question by determining whether the officer's conduct met the Fourth Amendment's reasonableness requirement . . . If we find that the officer's conduct was not reasonable /I -20- ¢ ¢ ¢ /I under the Fourth Amendment, we must then answer the qualified immunity question by determining whether the law was sufficiently clear that a reasonable officer would have known that his conduct violated the constitution. In other words, at this second step, we must ask the somewhat convoluted question of whether the law lacked such clarity that it would be reasonable for an officer to erroneously believe that his conduct was reasonable. Despite any seeming similarity between these two questions, they are distinct inquiries under Saucier, and we must conduct them both. Lytle v. Bexar County, Texas, 560 F.3d 404, 410 cert. denied, 130 S. Ct. 1986 (2010). (5th Cir. 2009), Courts do not judge the reasonableness of the officers' use of force from the safety of their chambers or "with 20/20 vision of hindsight" but, instead, "from the perspective of a reasonable officer on the scene." Newman, 703 F.3d at 762 (quoting Graham v. Connor, 109 S. Ct. 1865, 1872 (1989)). The court's inquiry is "whether the officers' actions [we]re 'objectively reasonable' in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation." Id. (quoting Graham, 109 S. Ct. at 1872). Plaintiffs argue that [i]n 2011, when Corey Khansari's injuries occurred, it was clearly established that excessive force violates the Fourth Amendment unless the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others. Bazan v. Hidalgo Cnty., 246 F.3d 481, 488 (5th Cir. 2001) (quoting Tennessee v. Garner, 471 U.S. I, II, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985)). The threat of physical harm must be immediate. Garner, 471 U.S. at 11. Accepting the complaint's well-pleaded facts as true and viewing them in the light most favorable to the Khansaris, Corey did not pose an immediate threat to the officers or to others. The Khansaris' pleadings sufficiently allege that the Officers' use of force was objectively -21- unreasonable in light of clearly established law so as to overcome qualified immunity defense at this stage. 18 There is no dispute that the overarching right to be free from excessive force interaction with was clearly Corey established when However, occurred. the as defendants' the plaintiffs recognize, the general definition of a right is not sufficient to resolve the Gammon, 2010 question WL of 996743, qualified at *5 Citing immunity. (N.D. Tex. January Banks 26, v. 2010), plaintiffs acknowledge that [f]or the purposes of the qualified immunity analysis, "'clearly established' means that the 'contours of the right' are 'sufficiently clear that a reasonable official would understand that what he is doing violates that right.'" . . . The law generally should be established in a more particularized sense, because the primary concern is fair notice to the officer in the specific context in which he is acting. . . When qualified immunity is raised in a motion to dismiss, it is the defendant's conduct as outlined in the pleadings that is examined for objective reasonableness. 19 "Thus, while the right to be free from excessive force is clearly established in a general sense, the right to be free from the degree of force employed in a particular situation may not have been clear to a reasonable officer at the scene." Lytle, 560 F.3d at 417 (quoting Bush v. Strain, 513 F.3d 492, 502 (5th Cir. 2008)). Although neither the plaintiffs nor the defendants have cited any case with facts similar to this one, the Fifth Circuit recently rejected arguments similar to those on which the defendants rely in l8Id. at 13. 19Id. (citations omitted) . -22- a case involving the use of tasers during an investigatory traffic stop. See Newman, 703 F.3d at 757. In Newman, 703 F.3d at 757, the Fifth Circuit considered an excessive force claim against an officer who had repeatedly tasered the plaintiff after the plaintiff had made an off-color joke during an investigatory stop that occurred in 2007. The officer argued that he had no reasonable warning that tasering a suspect multiple times was a constitutional violation because "there was then no binding caselaw on the appropriate use of tasers." Id. at 763. The Fifth Circuit agreed that in 2007 there was no binding caselaw on the appropriate nonetheless use rej ected the of tasers. officer's But the contention Fifth that he Circuit had no reasonable warning that tasering an individual mUltiple times could violate constitutional rights. Explaining that "[l]awfulness of force . . . does not depend on the precise instrument used to apply it," and that " [q]ualified immunity will not protect officers who apply excessive and unreasonable force merely because their means of applying it are novel," id. at 763-64, the Fifth Circuit looked to the Graham factors and held that none of those factors justified the officer's tasering of the plaintiff in that case. See Brosseau v. Haugen, 125 S. Ct. 596, 599 (2004) Id. at 764. ("in an obvious case," the Graham excessive-force factors themselves "can 'clearly establish' the answer, even without a body of relevant case law") . As the Fifth Circuit did in Newman, this court looks to the three Graham factors as guideposts -23- for determining whether plaintiffs' allegations against the individual officer defendants are sufficient to overcome their assertions of qualified immunity: (1) the severity of the crime at issue, (2) whether the plaintiff posed an immediate threat to the safety of the officers or others, and (3) whether the plaintiff was actively resisting arrest or attempting to flee the scene. See Graham, 109 S. Ct. at 1872. As explained in the preceding section, according to the facts alleged in Plaintiffs' Second Amended Complaint, Corey committed no crime, posed no immediate threat to anyone's safety, had resisted medical treatment, but was not resisting arrest or attempting to flee. Taking the facts alleged in the light most favorable to plaintiffs, the court concludes that plaintiffs have alleged facts capable of establishing that the tasering of Corey was objectively unreasonable in light of clearly established law when the incident occurred. 186 See Autin v. City of Baytown, Tex., (5th Cir. 2005) (per curiam) 174 F. App'x 183, (without support of the Graham factors, nothing "would have indicated to a reasonable officer that repeatedly tasing a lawful conduct") i woman while forcing her to the ground was Massey v. Wharton, 477 F. App'x 256, Cir. 2012) (per curiam) reasonable officer would have believed use pepper spray once 263 (5th (without support of the Graham factors, no to be reasonable) F. App'x 768, 773 (5th Cir. 2012) i of taser twice Anderson v. (per curiam) McCaleb, and 480 (deciding that based on the Graham factors, the officer "should have known that he could -24- not continue to shock [the suspect] with the taser after he was no longer resisting arrest") . (2) Limited Discovery Is Required to Resolve Defendants' Entitlement to Qualified Immunity for Claims Arising from Force Used Against Corey Khansari Asserting that "[p]laintiffs' approach of suing every officer who responded to the scene is insufficient to state viable claims against individual defendants argue officers that entitled the plaintiffs' to qualified allegations immunity, "20 of fact are insufficient to state an excessive use of force claim against any of them except, perhaps, Officer Rutherford, because he is the only officer who plaintiffs have alleged deployed his taser against Corey. Plaintiffs respond that [d]efendants complain that Plaintiffs cannot accurately identify who kicked Corey to the ground or engaged in other specific acts other than the tasing and the pointing of weapons with verbal threats. In fact, the reason that Plaintiffs cannot identify specifically who engaged in which acts is that Defendants have not yet provided investigation materials that would shed some light on these issues. The only reason that Plaintiffs can identify who pointed a weapon and who tased Corey is that the Defendants have recently provided a copy of the statements of some of the Officers that describe those two events. 21 To state a § 1983 personal-capacity claim against the officer defendants, plaintiffs must allege facts capable of establishing 2°Motion to Dismiss Claims Docket Entry No. 28, p. 13. Against 21Plaintiffs' Response to Individual Dismiss, Docket Entry No. 31, pp. 8-9. -25- Individual Defendants' Defendants, Motion to that while acting under color of state law, the officers were either personally involved in the deprivation of Corey Khansari's Fourth Amendment right to be free from the excessive use of force, or that their wrongful actions were causally connected to that James, deprivation. the that contention Nevertheless, defendants' 535 F.3d at 373. plaintiffs' allegations of fact are insufficient to survive their Rule 12(b) (6) motion to dismiss all of the officers except, perhaps, Officer Rutherford, who plaintiffs allege tasered Corey, take the principle requiring plaintiffs to identify individual conduct attributable to each officer too far. At this early stage of a case, based on plaintiffs' specificity are successful Rule 12 (b) (6) motions failure to plead their claims with factual typically directed at claims asserted against policymakers who are named as defendants absent any allegation about their specific role challenged policy. See, plaintiffs' asserted however, the policymakers. claims court is in ~, not formulating § III.B.2, or below, implementing a addressing the against Chief MCClelland. Here, dealing with allegations against At issue are allegations that a number of individual officers had direct involvement in using or failing to prevent the use of excessive force against plaintiff Corey Khansari. For the reasons explained in the preceding two sections the court has already concluded that plaintiffs' factual allegations that Corey suffered extensive injuries from having been tasered are not only sufficient to satisfy the requirements for pleading a -26- claim for the excessive use of tasered him but, if true, officers' assertions correctly argue of that the force against the officers who are also sufficient to overcome those qualified While immunity. plaintiffs' allegations defendants lack factual specificity needed to deny their assertions of qualified immunity, lack of such factual specificity at this stage of the case does not provide a basis on which to grant or deny defendants' dismiss for failure to state a claim. Sheriff's Department, 2013) 2013 WL 5574901, motion to See Huff v. Refugio County *2 (S.D. Tex. October 9, (Costa, J.). The Fifth Circuit has established a careful procedure under which a district court may defer its qualified immunity ruling if further factual development availability of that defense. 648 (5th Cir. 2012) is necessary to ascertain the See Backe v. LeBlanc, 691 F.3d 645, (citing Wicks v. Mississippi State Employment Services, 41 F.3d 991, 994-95 (5th Cir.), cert. denied, 115 S. Ct. 2555 (1995)). As explained in Backe, once a district court has found that, if true, plaintiffs' factual allegations are sufficient to overcome defendants' assertions to qualified immunity, "if the court remains 'unable to rule on the immunity defense without further clarification of the facts,' it may issue a discovery order 'narrowly tailored to uncover only those facts needed to rule on the immunity claim.' /I rd. (citing Lion Boulos v. Wilson, 834 F. 2d 504, 507-08 (5th Cir. 1987)). -27- Here, plaintiffs allege that 25. . . , Officer Rutherford and/or other male Officers used a taser in such a manner as to strike Corey in the face and on his head. One of the taser darts pierced Corey's eye. 26. After being shot with the taser and receiving incapacitating electricity, Corey fell to his knees and was severely disoriented. After a few seconds, Corey tried to get up and was shot several more times with a taser in the torso and legs. 22 Absent further clarification of the facts to show which, if any, officers other against Corey, than Officer or which, opportuni ty to prevent, Rutherford if any, but deployed their tasers of the other officers had an chose not excessive force against Corey Khansari, to prevent, the use of the court is not able to rule on the defendant officers' assertions of qualified immunity to the plaintiffs' claims for the use or failure to prevent the use of excessive force against Corey. flesh out the Limited discovery will be able to remaining details of which officer or officers tasered Corey or wrongfully failed to prevent their fellow officers from tasering Corey. (5th Cir. 2006) See Bias v. Lundy, 188 F. App'x 248, 249-50 (vacating judgment as a matter of law granting qualified immunity as to two officers who were alleged to have attacked the plaintiff, but affirming as to four officers about whom plaintiff presented no evidence showing their involvement) . Since the court has concluded that plaintiffs' pleadings are adequate to at least potentially state a claim, discovery may 22Plaintiffs' Second Amended Complaint, Docket Entry No. 20, pp. 6-7 ~~ 25-26. -28- proceed on the limited issue of which of the individual officers tasered Corey and whether those officers are entitled to qualified immunity. The court eventually be able has not concluded that to establish a violation of plaintiffs will Corey's Fourth Amendment rights, but only that the pleadings are sufficient to create that possibility. Should discovery lead to the conclusion that there is no genuine issue of fact that could support such a claim, there will be no procedural or substantive barrier to the filing of a motion for summary judgment on the issue of qualified immunity. Accordingly, the motion to dismiss the claims asserted against the individual officer defendants arising from force used against Corey Khansari will be denied. (b) Facts Alleged Are Not Sufficient to State § 1983 Claims Arising from Force Used Against or Witnessed by Corey's Parents, Debra and Michael Khansari Plaintiffs allege 37. Mrs. Khansari is Corey's mother. She was witness to the entire terrifying event, which began with the female Officer, believed to have been Officer Vaughn, first arrived wielding a long gun. Mrs. Khansari was herself a subject of the Officers' conduct, being pointed at with guns, being grabbed by the neck or shoulder, and being told threatening statements. The Officers completely disregarded her multiple attempts at explaining Corey's state. She was within feet of her son when he was shot by taser guns. She observed that he was shot in the face and later that he had pulled a taser hook out of his eye. She suffered shock as a result of the direct emotional impact upon her from the Officers actions directed specifically at her and from her contemporaneous observance of the events. 38. Mr. Khansari is Corey's father and was also himself a subj ect of the Officers' actions. In a threatening -29- manner, the Officers yelled at Mr. Khansari to get away, that he was interfering with police work, and threatened that if he did not get away, they would arrest him. He complied. Later, after seeing Mrs. Khansari trying to protect Corey, Corey trying to protect his mother, and Corey getting shot with the taser guns, Mr. Khansari felt extreme anxiety and like he was having a heart attack. He fell to the ground and paramedics rushed to him and placed him in the ambulance. He suffered shock as a result of the direct emotional impact upon him from the Officers actions that were directed at him and from his contemporaneous observance of the events. 39. Mr. and Mrs. Khansari have suffered and continue to suffer extreme emotional distress as a result of the conduct of the Defendants and are entitled to mental anguish damages in the past and future. 23 Plaintiffs' claims for excessive use of force asserted against the individual officers arising from drawing and pointing weapons and shouting at Mr. and Mrs. Khansari are subject to dismissal for failure to state a claim because plaintiffs have not alleged facts capable of showing that the police actions were directed at Mr. or Mrs. Khansari or that Mr. and Mrs. Khansari suffered a seizure as required Amendment. for a violation of rights protected by the Fourth Instead, plaintiffs allege that . Armed Officers yelled at Mr. Khansari in a threatening manner to get out of the way, that he was interfering with police work, and that if he did not get out of the way, he would be arrested. Mr. Khansari then complied. 23. 24. At some point, Corey had walked out of the front door of the Khansari home and was standing in the yard near the front door. The Officers pointed their weapons at Corey. They feared that the Officers were going to shoot Corey. 23Id. at 11-12 ~~ 37-39. -30- 25. At that point, Mrs. Khansari, trying to protect Corey from the armed Officers, interposed herself between certain Officers, including, upon information and belief, Officer Rutherford, and Corey, repeating that their weapons were unnecessary and that the Khansaris were unarmed. 24 Nor have plaintiffs alleged facts capable of establishing that either Mr. or Mrs. Khansari suffered an injury that was more than de minimis due to any of the acts about which they complain. Instead, plaintiffs merely allege that "Mr. and Mrs. Khansari have suffered and continue to suffer extreme emotional distress as a result of the conduct of the Defendants."25 Plaintiffs allege no facts capable of establishing that either Mr. or Mrs. Khansari suffered physical injuries from police actions directed at them and not at Corey. 900-01 Nevertheless, citing Petta v. Rivera, 143 F.3d 895, (5th Cir. 1998) (per curiam), plaintiffs argue that the allegations in their Second Amended Complaint are sufficient to show that Mr. and Mrs. Khansari were themselves the subjects of the Officers' excessive force. For example, just as Rivera had threatened to kill Ms. Petta in Petta, here, one Officer told Mrs. Khansari upon arrival at the residence, "I might have to kill somebody" and placed a round into the chamber as if preparing to fire. Also, just as Rivera pointed his .357 Magnum at Ms. Petta, here, one or more of the Officers aimed their guns at Mrs. Khansari, causing the red laser beam to appear as a dot on her person. Additionally, the Officers engulfed the Khansari residence heavily armed, in complete disregard for Mrs. Khansari's description of Corey's medical state and her repeated statements that [no]one there was armed. ~~ 24Id. at 6-7 25Id. at 12 ~ 23-25 39. See also 27 -31- ------------------- ~ 81. The Officers yelled at Mr. Khansari to get out of the way or that he would be arrested. The Officers' aggressive and frightening conduct - yelling at the Khansaris, threatening them, and aiming high powered guns at them without justification placed all three Khansaris in a state of fear for their lives. Mrs. Khansari feared for Corey's life, Corey feared for Mrs. Khansari's life, and Mr. Khansari fell to the ground in a state of shock. Accordingly, Mr. and Mrs. Khansari's claims arise not only from the horror of witnessing their son being shot with a taser in his eye but also from the Officers actions aimed directly at Mr. and Mrs. Khansari. 26 The plaintiffs' reliance on Petta, 143 F.3d at 900-01, in support of their right to recover damages for injuries suffered by Mr. and Mrs. Khansari are misplaced. Petta involved an officer's use of excessive force against a mother and two young children in a car with her during an investigatory traffic stop. The evidence showed that the children were more than bystanders to the use of force against their car, shooting at actions the car, included windows and other acts that the children not only watched their I the officer's I mother experience on The screaming I banging mother. but also experienced themselves. included the children s l breaking The evidence own continued and severe psychological injuries as a result of actions directed not only towards their mother 03. but towards the car that theYI tOOl occupied. l rd. at 902- Petta does not support the argument that Mr. and Mrs. Khansari are able to assert § 1983 claims against the defendant officers. A civil rights claim must be based upon a violation of a plaintiff s personal rights secured by the Constitution l 26Plaintiffs Response to rndi vidual Dismiss Docket Entry No. 31 pp. 21-22. I l 1 -32- ---_._._-_._.. - .....-. __ _-- ¢. Defendants I l and a Motion to bystander who is not the object of police action cannot recover for resulting emotional injuries under § 1983. See Grandstaff v. City of Borger, Texas, 767 F.2d 161, 172 (5th Cir. 1985), cert. denied, 107 S. Ct. 1369 (1987) Cir. 1986) Tex. Aug. Coon v. Ledbetter, 780 F.2d 1158, 1160 (5th j See also Young v. Green, 15, 2012) (\\ [C] ase law 2012 WL 3527040, holds that a *4 bystander (S.D. who witnesses a police action, but who is not himself or herself the object of that injuries under action, § state tort law. cannot recover for resulting emotional 1983, although there may be such a claim under There is no constitutional right to be free from witnessing police action, apart from the question of whether that action physically injured the target of that action.") . Since the facts alleged in Plaintiffs' Second Amended Complaint show that the only claims asserted for injuries suffered by Mr. and Mrs. Khansari are claims for emotional distress arising from witnessing police action against their son, Corey, the motions of the individual defendants' to dismiss Mr. and Mrs. Khansari's claims will be granted because their claims are not cognizable under § 1160-61. 1983. See Grandstaff, 767 F.2d at 172j Coon, 780 F.2d at Because plaintiffs have failed to allege facts capable of establishing a cognizable claim for the excessive use of force against Mr. or Mrs. Khansari, plaintiffs are unable to maintain a claim for the failure to prevent the excessive use of force against Mr. and Mrs. Khansari. Accordingly, the motion to dismiss the individual and bystander claims asserted against the individual -33- officer defendants under § 1983 arising from force asserted against or witnessed by Mr. and Mrs. Khansari will be granted. B. Claims Asserted Against Chief McClelland Defendants argue that the claims asserted against Chief MCClelland should be dismissed because claims asserted against him in his official capacity duplicate claims asserted against the City, and because plaintiffs have failed to allege facts capable of supporting claims against him in his personal capacity. Defendants argue that Plaintiffs allege that the officers used excessive force against Corey, and that his parents, Debra and Michael Khansari suffered extreme emotional distress from witnessing the incident. Plaintiffs do not allege that Chief McClelland was present at the scene or in any way involved in the incident such as would give rise to claims for excessive force against him in his individual capacity. Thus, none of the allegations or causes of action alleged by Plaintiffs even attempt to set out any viable claim for relief against Chief McClelland in his individual capacity. 27 In support of their argument that plaintiffs have failed to assert claims against Chief defendants point out McClelland that in Plaintiffs' his personal capacity, Second Amended Complaint asserts claims for "The City's Failure to Train and/or Supervise the Officers," "The City's Unlawful Policy and Custom," and "The City's Ratification;" but does not assert claims for Chief McClelland's failure to train or supervise the officers involved in 27Motion to Dismiss Claims Docket Entry No. 28, p. 8. Against -34- Individual Defendants, the incident at the Khansari' s home, ratification of the unconstitutional allegedly or for Chief McClelland's conduct of the officers involved in that incident. 28 1. No Official McClelland Asserting McClelland in that his Capacity Claims Are they have official not made capacity, Stated Against a claim plaintiffs against argue Chief Chief that dismissal would be improper as there is no such claim to dismiss. Because plaintiffs official capacity acknowledge claims that against they have Chief not "a 1129 asserted any McClelland, defendants' motion to dismiss such claims will be denied as moot. Facts Alleged Are Not Sufficient to State Capacity Claims Against Chief McClelland 2. Personal Plaintiffs argue that they do not allege that Chief McClelland was personally involved in the injuries to Corey Khansari. Instead, they sue Chief McClelland under the theories that he failed to supervise the officers involved, failed to train his personnel to respond properly to mental health service calls, and ratified the unconstitutional conduct of his [officers]. 30 (a) A § Failure to Train or Supervise 1983 claimant must establish that the defendant was either personally involved in the deprivation of Constitutional or federal 28Id. 29Plaintiffs' Response to Individual Dismiss, Docket Entry No. 31, p. 2. 30Id. at 3. -35- Defendants' Motion to statutory rights connected to or that his wrongful such deprivation. James, actions 535 were F.3d at causally 373. "A supervisor is not personally liable for his subordinate's actions in which he had no involvement." rd. McClelland's were wrongful actions Plaintiffs allege that Chief his failure to train or supervise Houston police officers to respond properly to mental health service calls. The elements of a claim for failure to train or supervise are: (1) the supervisor either failed to supervise or train the subordinate official; the failure plaintiffs' to train rights; or and (2) a causal link exists between supervise (3) the and failure the of the to train or supervise amounts to deliberate indifference to the allegedly violated. violation constitutional right See Estate of Davis ex rel. McCully v. City of N. Richland Hills, 406 F.3d 375, 381-82 (5th Cir. 2005) official to act with deliberate indifference, "For an the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Estate of Davis, 406 F.3d at 381. Proof of more than a single instance of lack of training or supervision causing a violation of constitutional rights is generally required before such lack can constitute deliberate indifference. rd. To rely on the "single incident" exception, a plaintiff must prove that the "highly probable" consequence of a failure to train [or supervise] would result in the specific injury suffered, and that the failure to train [or supervise] represents the moving force behind the Constitutional violation. -36- Thus, Id. at 385-86. to survive a motion to dismiss plaintiffs must allege facts capable of showing that the supervisor had notice of a pattern of prior acts fairly similar to what ultimately transpired, and despite that notice failed to train or supervise; or that the highly predictable consequence of his failure to train or supervise would result in injury to Corey. also Thompson v. Upshur County, Id. at 381-86. 245 F.3d 447, 458-59 See (5th Cir. 2001) Plaintiffs do not allege and, in fact, acknowledge, that Chief McClelland was not present when excessive force was allegedly used against Corey. Instead, plaintiffs argue that their Second Amended Complaint alleges that personnel in proper requests the Chief McClelland communication for mentally ill persons, personnel to the scene. "failed of crisis to train his intervention and dispatching appropriate [and] that a causal connection existed between the lack of training and the injuries to Corey Khansari. 1131 Acknowledging that their claims for failure to train and supervise also require allegations of facts capable of establishing a pattern of constitutional violations, plaintiffs merely "assert in good faith that there are sufficient prior incidents of excessive force being used in mental health calls to support an allegation of a pattern or practice of sUCh." 32 Plaintiffs argue that 31Id. at 4. 32Id. at 5. -37- [b]ecause the case is now at the motion to dismiss phase, providing proof of a pattern of constitutional violations is exceedingly difficult for a plaintiff, who has no source of pre-discovery evidence that they may produce to support such a claim. In fact, Plaintiffs attempted to obtain certain pre-suit information in this matter, but Defendants refused to provide information and obtained support from the Attorney General's office in such refusal. This resulted in the Defendants being able to refuse to provide factual information prior to suit and then filing a motion to dismiss based upon an alleged failure to plead proper factual information. 33 Alternatively, plaintiffs argue that even absent a pattern, an allegation that a single instance supports a constitutional violation survives a motion to dismiss if the instance is egregious accompanied by deliberate indifference. Under these pleadings, where Corey had committed no crime, had no weapons, and posed no legitimate danger to others, shooting him in the eye with one or more taser firings, including taser deployments subsequent to the dart being lodged in his eye, is sufficiently egregious to survive the "single incident" exception. Furthermore, Plaintiffs contend that it has long been known to the. . chief that failing to train [his] officers sufficiently to deal with mental health crises is highly likely to lead to the use of excessive force. 34 As defendants correctly observe in their motion to dismiss, Plaintiffs' Second Amended Complaint contains only conclusory allegations that Chief McClelland failed to train or supervise officers under his command. Plaintiffs "seeking recovery under a failure to train or supervise rationale must prove that the police chief failed to control an officer's improper use of force. "' 33Id. Roberts v. City of Shreveport, 397 F.3d at 4. 34Id. \ known propensity for the at 5. -38- 287, 292 (5th Cir. 2005) (quoting Sims v. Adams, 537 F.2d 829, 832 (5th Cir. 1976), and Chestnut v. City of Quincy, 513 F.2d 91, (5th Cir. 1975)) Moreover, plaintiffs must demonstrate 92 to prove deliberate indifference, "at least a pattern of similar violations arising from training that is so clearly inadequate as to be obviously likely to result in a constitutional violation." rd. (quoting Burge v. St. Tammany Parish, 336 F.3d 363, 370 (5th Cir. 2003), cert. denied, 124 S. Ct. 1074 (2004)). to allege any foundational Plaintiffs fail facts capable of showing that Chief McClelland was directly involved in the training or supervising of the officers involved in the incident at the Khansari's home on November 25, 2011; that the training or supervision that Chief McClelland provided to those officers was inadequate; or that Chief McClelland was aware of a pattern of prior violations by any of those officers that put him on notice that additional training or supervision was needed to prevent a violation of Corey's constitutional rights. Plaintiffs' argument that this case fits within the narrow scope of the single incident exception has no merit because a "lone incident is insufficient to pierce the qualified immunity enjoyed by Chief [McClelland]." nei ther cited a case Roberts, 397 F.3d at 294. that has rel ied on the Plaintiffs have single incident exception as a means of holding an individual supervisor liable in his personal capacity, nor alleged facts capable of establishing that this exception should be applied to Chief McClelland in this -39- ---_. ----_......_---_... _-- case. To rely on this exception plaintiffs must allege facts capable of establishing that the "highly predictable" consequence of Chief McClelland's failure to train or supervise would result in the specific constitutional injury at issue, and that the failure to train or supervise represented the "moving force" behind that injury. There are no See Estate of Davis, 406 F.3d at 385-86. allegations here that the officers at issue had not received any training or supervision, or that they had been involved in any cases involving the improper use of excessive force or tasers while responding to calls involving mental health patients. plaintiffs merely allege that the training all Instead, Houston police officers received as a result of Chief MCClelland's policies was not enough and that more or different training or supervision would have prevented the plaintiffs' injuries. sufficient to state a claim for Such allegations are not failure to train or supervise against Chief McClelland in his personal capacity. F.3d at 293 ("[M]ere proof that the injury Roberts, 397 could have been prevented if the officer had received better or additional training cannot, without more, support liability."). See City of Canton, Ohio v. Harris, 109 S. Ct. 1197, 1206 ("In virtually every instance where a person has had his or her constitutional rights violated by a city employee, a § 1983 plaintiff will something the city 'could have done' incident."). be able to point to prevent the unfortunate Accordingly, defendants' motion to dismiss the -40- to § 1983 claims asserted against Chief McClelland for failure to train or supervise will be granted. (b) Ratification This court is not aware of and plaintiffs have not cited any cases imposing ratification. instances, personal To the be liability extent characterized that as on a supervisor based ratification might, the on in some implementation of an unconstitutional policy that causally results in the constitutional injury, subsequent ratification of a subordinate's excessive use of force does not state a claim for which relief may be granted in this case because such ratification could not have caused the constitutional injury about which the plaintiffs complain. § 1983 claim plaintiffs have attempted to state against Any Chief McClelland for ratification of a subordinate's allegedly excessive use of force is therefore subject to dismissal because, as a matter of law, no such claim may be stated against Chief McClelland. Hobart v. City of Stafford, 2013) (post-incident 916 F. Supp. 2d 783, ratification cannot impart 799 See (S.D. Tex. liability on a supervisor) . Some § 1983 plaintiffs have argued that inadequate use of force investigations performed as a matter of course may constitute a custom of rubber stamping use of force, which then emboldens police officers to employ force with impunity. viable under § This theory may be 1983 although it often fails for lack of proof. -41- See Diamond-Brooks v. City of Webster, Texas, 2014 WL 527910, *10 (S.D. Tex. February 6, 2014). But the theory is not present in this case because plaintiffs have not alleged any prior instances in which Chief McClelland inadequately investigated uses of force, and they have not alleged that Chief McClelland's practice of inadequately investigating or ratifying uses of force caused the officers to use excessive force against Corey Khansari. defendant Because plaintiffs have not alleged any facts capable of establishing that Chief McClelland approved a conscious and unlawful use of force by any of the defendant officers, the court concludes that plaintiffs have failed to state a § 1983 claim against Chief McClelland in his personal capacity for ratification for which relief may be granted. Accordingly, defendants' motion to dismiss the § 1983 ratification claim asserted against Chief McClelland will be granted. C. Texas Tort Claims Act Claims Defendants argue that" [t] 0 the extent that Plaintiffs attempt to sue both the City and the individual employees [for violation of the Texas Tort Claims Act], the City's motion to dismiss the state law claims against the individual defendants as 101.106(e) should be granted. "35 required under Plaintiffs respond that they "have clearly alleged a Texas Tort Claims Act claim against only the City 35Motion to Dismiss Claims Against Individual Defendants, Docket Entry No. 28, pp. 16-17 (citing City of Houston's Rule 12 (b) (1) and 12 (b) (6) Partial Motion to Dismiss Plaintiffs' Second Amended Complaint ("City's Partial Motion to Dismiss"), Docket Entry No. 27, p. 18). -42- and not the individual officers. Thus 1 a dismissal of a claim that has not been asserted would be improper. 1136 Texas law prohibits suing both a governmental entity and its employees for tort claims. See Tex. Civ. Prac. & Rem. Code § See Independent also Mission Consolidated 253 S.W.3d 653 Garcia l plaintiff to decide independently and is 1 657 at (Tex. the thus 101.106 2008) outset solely (Election of Remedies) School ("[The TTCA] whether liable District an or 1 v. force[s] employee a acted acted wi thin the general scope of his or her employment such that the governmental unit is vicariously liable. lI ) ¢ Since under Texas law plaintiffs cannot sue both a governmental entity and its employees 1 and since plaintiffs acknowledge that no claims have been asserted against Chief McClelland defendants 1 or the individual officers under the TTCA 1 motion to dismiss any TTCA claims asserted against Chief McClelland and the officer defendants will be denied as moot. IV. Motion to Dismiss the City of Houston Plaintiffs allege that the City of Houston is liable under 42 U.S.C. 1983 for failing to train and supervise the individual § officers 1 arising for ratifying their conduct from injuries suffered 1 by and for "bystander liabilityll Mr. and 36Plaintiffs Response to Individual Dismiss l Docket Entry No. 31 p. 22. Defendants 1 Khansari .37 Mrs. 1 Motion to 1 37Plaintiffsl Second Amended Complaint Docket Entry No. 20 pp. 12-17 " 40-51 ("The City/s Failure to Train and/or Supervise the Officers ll ) pp. 17-21 " 52-64 (liThe City/s Unlawful Policy and Custom ll ) pp. 21-24 " 65-73 ("The City/s Ratification ll ). 1 1 1 -43- 1 Alternatively, plaintiffs allege that the City of Houston is liable for damages under the TTCA for "bystander liability" arising from injuries suffered by Mr. and Mrs. Khansari, and for injuries caused by the defendant property. 38 officers' negligent use of tangible The City of Houston seeks dismissal of (1) personal the ~ 1983 claims that Mr. and Mrs. Khansari assert for bystander liability, (2) the § 1983 claims asserted by all plaintiffs for ratification of the allegedly unconstitutional conduct of the individual officers, and (3) all TTCA claims. 39 A. The City Is Entitled to Dismissal Bystander Liability and Ratification 1. of § 1983 Claims for Bystander Liability Claims The City argues that the claims for bystander liability should be dismissed because there is no § 1983 cause of action for bystanders who witness police actions but are not, themselves, the target § of action.40 police III.A.2(a) (3), above, facts alleged in For the reasons explained in the court has already concluded that the Plaintiffs' Second Amended Complaint are not capable of establishing that Mr. and Mrs. Khansari were targets, as opposed to mere witnesses, of a police action. Accordingly, the 38Id. at 24 ~ 74 ("In the alternative, pursuant to the Texas Tort Claims Act ("TTCA") (Tex. Civ. Prac. & Rem. Code 101.001, et seq.), and Texas common law, the City is liable for the actions of its employees, including the Officers.") 39City's Partial Motion to Dismiss, Docket Entry No. 27. 4°Id. at 2, 4-7. -44- City's motion to dismiss the against the City for § 1983 claims that plaintiffs assert bystander liability will be granted for failure to state a claim for which relief may be granted. Ratification 2. In pertinent part plaintiffs allege 68. The City ratified the Officers' conduct by knowing of and approving their specific decisions and specific actions in this incident, including but not limited to the deployment of a taser when not necessary under the circumstances, escalating the encounter and/or deploying a taser into the face and eyes of an individual. As a result, the City is responsible for the Officers' constitutional violations. Prior to suit, the City did not provide information about the investigation of this incident. 69. Since the filing of suit, the City has provided an extremely limited incident report but not investigative findings or chain of command review. It is generally municipal policy for the chain of command, on up to the Chief of Pol ice, to review use of force resulting in serious bodily injury and, upon information and belief, the chain of command in this case, up to and including the Chief of Police likely reviewed the use of force on Corey.41 The City argues that plaintiffs' § 1983 claims for ratification should be dismissed because plaintiffs fail to allege facts capable claim.42 of establishing municipal liability for such a The City argues that "Plaintiffs have not alleged that any policy maker for the City approved the allegedly unconstitutional p. 22 41Plaintiffs' Second Amended Complaint, Docket Entry No. 20, ~~ 68-69. 42City's Partial Motion to Dismiss, Docket Entry No. 27, pp. 2, 7-9. -45- conduct after it occurred. taken as true, Further, Plaintiffs' own pleadings, demonstrate that this case does not present the extreme factual situation required for a ratification claim in the Fifth Circuit."43 The City argues that [p]laintiffs do not allege that they filed any complaint with the City of Houston or with the Houston Police Department that would have initiated an internal affairs investigation of the incident. Plaintiffs allege without any basis that "it is generally municipal policy for the chain of command, on up to the Chief of Police, to review the use of force resulting in serious bodily injury" and that "the Chief of Police likely reviewed the use of force of Corey." 44 Plaintiffs respond that the City's motion to dismiss their ratification claims should be denied because they have sufficiently pled facts that unconstitutional represents ratification the a policymaker for the City approved conduct after it occurred and that extreme claim. 45 In factual situation support of this their case required argument the for a plaintiffs assert, inter alia, that ¢ Corey was not a criminal suspect, but a civilian who needed mental health assistance. The pol ice officers with the City are aware and have been aware for years of the necessity to use crisis intervention training on mental health calls. Such training states that those 43Id. at 7. 44Id. at 7-8 (quoting Plaintiffs' Docket Entry No. 20, p. 22 ~ 69). Second Amended Complaint, 45Plaintiffs Corey Khansari, Debra Khansari, and Michael Khansari's Response to Defendant City of Houston's Rule 12(b) (1) and 12(b) (6) Partial Motion to Dismiss Plaintiffs' Second Amended Complaint ("Plaintiffs' Response to City's Partial Motion to Dismiss"), Docket Entry No. 32, pp. 2, 5-7. -46- having a mental health crisis respond in a manner that is opposite that of the general population. . With that knowledge, it was reckless and dangerous to approach Corey with weapons drawn and pointed and issuing commands. Under those circumstances, the approval of such conduct by the City, including its policymakers, is an unconstitutional ratification of an obvious violation of a clearly established right to be free from excessive force. ¢ Additionally, deploying a taser under the circumstances was unnecessary, particularly deploying cycling - the taser five times for a total of twenty five seconds when one of the darts was lodged in Corey's eye was unnecessary, egregious and manifestly indefensible. The City, its officers and chain of command, are aware of the dangers of darts in the eye, repeated cycling and extended duration of taser deployment. Under these circumstances, the approval of such conduct is an unconstitutional ratification of an obvious violation of a clearly established right to be free from excessive force. 46 In Monell v. Department of Social Services of the City of New York, 98 S. Ct. 2018, 2022, 2035-36 (1978), the Supreme Court held that municipalities are "persons" subject to suit under 42 U.S.C. § 1983, but that municipalities cannot he held liable on a respondeat superior basis, i. e., a municipal i ty cannot be held liable simply because one of its employees violated a person's federal rights. the For a municipality to be held liable under municipality policies. " [I] t itself must cause the violation § 1983, through its is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the 46Id. at 6-7. -47- ----, --..----. ----- injury § 1983. that government as an entity is responsible under Id. at 2037-38. f1 The the ratification recognized by the theory Supreme of municipal See Court. Praprotnik l 108 S. Ct. 915 (1988). liability City of St. has been Louis v. There the Court stated: When a subordinatels decision is subject to review by the municipalityl s authorized policymakers l they have retained the authority to measure the officialls conduct for conformance with their policies. If the authorized policymakers approve a subordinate s decision and the basis for itl their ratification would be chargeable to the municipality because their decision is final. I Id. (emphasis in original) . The ratification theory is commonly employed in the employment context. board-a policymaker . "For example I if a school . approves a superintendentls decision to transfer an outspoken teacher retaliatory motive for doing knowing of I the superintendent IS the government entity itself may SOl be liable; but if the school board lacks such awareness of the basis for the decision l it has not ratified the illegality and so the district itself is not liable. 113 F. Applx 622 Regardless Milam v. City of San Antonio l f1 626 (5th Cir. 2004) 1 of the context In which it is raised l the ratification theory "is necessarily cabined in several ways . to prevent respondea t the ratification superior. fI theory from becoming a theory of Milam l 113 F. Applx at 626-27. The mere failure to investigate a subordinatels decision does not amount to ratification. subordinate s Id. And policymakers who simply go along with a decision do not thereby vest -48- final policymaking authority in the subordinate. Id. The ratification theory must be applied with the understanding that "policymakers alone can create municipal liability, and so any violation must traceable to them, not just to their subordinates." be causally Id. Applying the ratification theory as plaintiffs propose in this case would turn it into de facto respondeat superior. While the mere failure to investigate a police officer's conduct that allegedly violated a person's Fourth Amendment rights cannot amount to ratification, the converse must also be true: The mere decision to investigate and exonerate also cannot amount to ratification. approved, or In the example ratified, with mentioned full above, knowledge, a its school board subordinate's decision to commit an act that violates a person's constitutional rights. Because the school board acted with full knowledge and approved the conduct to be perpetrated by the school board's subordinate, the school board not only ratified such conduct, but the school board was complicit. violation assuming traceable that the to the That makes the constitutional policymaker. policymaker, Chief Here, McClelland, however, reviewed even the conduct of the officers who responded to the call for service at the Khansari's home, he reviewed that conduct after the fact, i.e., after the conduct had been committed without his approval. the City officers liable acted because Chief appropriately McClelland would convert concluded liability ratification into respondeat-superior liability. -49- To hold that the through See Milam, 113 F. App'x at 627 ("It is not an easy fit because, at least facially, an illegal arrest that is completed without the involvement of any policymaker does not look like the typical situation in which a policymaker could 'approve [] [the employee's] decision and the basis for it' such that municipal policy can be said to have caused the harm. ") . also Fraire v. Id. (quoting Praprotnik, City of Arlington, Cir.), cert. denied, 108 S. 957 113 S. Ct. 462 Ct. at 926) F.2d 1268, (1992) 1278-79 (5th (refusing to infer an unconstitutional custom or policy from a municipality's failure to discipline an officer for a single incident). Plaintiffs have notably failed to allege facts capable of establishing a pattern or practice of ratifying similar acts and fail to cite any case in which a court has upheld a claim municipality under similar facts. for ratification against a The court therefore concludes that plaintiffs have failed to allege facts capable of establishing a § 1983 claim that the City ratified the officers' Accordingly, the City's motion to dismiss plaintiffs' § conduct. 1983 claim for ratification will be granted. B. The City Is Not Entitled to Dismissal of the TTCA Claims As an alternative to the federal law claims asserted against the City of Houston, plaintiffs allege that the City of Houston is liable for damages under the Texas Tort Claims Act for injuries caused by the defendant police officers' negligent use of tangible personal property, i.e., taser guns, -50- -------_ - _-... . ¢..... weapons, gear, badges, and uniforms. The City argues that the state law tort claims and TTCA claims should be dismissed for want of jurisdiction because the City is immune from damages arising from intentional torts.47 1. Claims Arising from Use of Force Against Corey In pertinent part plaintiffs allege that Officer Rutherford and potentially other Officers were negligent under the TTCA when they used or misused tangible personal property. Specifically, and in the alternative to them acting intentionally or willfully, Plaintiffs allege that Officer Rutherford and potentially other Officers acted negligently in handling and/or firing their taser guns in such a manner that one or more tasers were deployed in the direction of Corey's head, causing them to land in or near Corey's eye. Once the Officers decided to use taser guns, they implemented their use in an improper and negligent manner. Plaintiffs plead in the alternative that the Officers did not deploy their taser guns at Corey's head or eye but because they improperly handled their taser guns, they caused the taser guns to deploy in the direction of Corey's head or eye, which was negligent. 48 A Texas municipality may not be held liable for Texas common law causes of action unless the Texas legislature has waived its governmental immunity. Uni versi ty of Galveston v. York, 871 S.W.2d 175, 177 Texas Medical (Tex. 1994). Branch at Immunity is only waived for claims brought under the TTCA, Tex. Civ. Prac. & Rem. Code University, §§ 101.001, et seq. 540 S.W.2d 297, Id. 298-99 (citing Lowe v. (Tex. 1976)). Texas Tech. In pertinent 47City's Partial Motion to Dismiss, Docket Entry No. 27, pp. 2, 9-18. p. 25 48Plaintiffs' Second Amended Complaint, Docket Entry No. 20, ~ 76. -51- part, the TTCA requires state law claims to arise In one of two ways: (1) from the conduct of a governmental unit's employee that involves the operation of a motor-driven vehicle or equipment; or (2) from the condition or use of tangible personal property or real property if the governmental unit would, were it a private person, Tex. Civ. Prac. & Rem. be liable to the claimant under Texas law. Code § torts. tort 101.021. The TTCA also prohibits claims for intentional Id. at 101.057. may not be A claim properly stated as an intentional restated as a claim for negligence. Lopez- Rodriguez v. City of Levelland, Texas, 100 F. App'x 272, 275 (5th Cir. 2004) (per curiam). However, the conduct underlying intentional torts may be a basis for proper claims of negligence. See Whittington v. City of Cuero, Texas, 2007 WL 951864, *12 (S.D. Tex. March 28, 2007) Plaintiffs' (citing Lopez-Rodriguez, 100 F. App'x at 275) . allegations "that the Officers did not deploy their taser guns at Corey's head or eye but because they improperly handled their taser guns, they caused the taser guns to deploy in the direction of Corey's head or eye, which was negligent,U are similar to allegations in another TTCA case where the Fifth Circuit found that a negligence claim was stated. F. App'x at 275, the Fifth Circuit In Lopez-Rodriguez, 100 found that allegations the defendant officer was negligent "in failing properly to aim his firearm at the tires of [plaintiff's] [plaintiff] when it was not safe to do so, -52- vehicle, U U "in firing at and "in failing to ensure that there was proper space available to fire the gun" were sufficient to state a negligence claim under the TTCA. In City of Lubbock v. Nunez, 279 S.W.3d 739 (Tex. App. Amarillo, 2007, pet. dismissed), a Texas court of appeals reached the same conclusion on facts remarkably similar to those at issue here. There, the City of Lubbock pleaded lack of jurisdiction by action of the TTCA because the complaint pleaded only intentional action by a police officer's use of a taser, and intentional action is not waived under the TTCA. Id. at 742. The Texas court found that although the taser had been intentionally used, negligence was at least implicitly inj uries. Id. at 743 injury from his advertised to be a pleaded as to the cause of the ensuing ("We cannot infer [officer's] intent to cause use of a taser, which 'non-lethal' or 'safe' appellees allege is incapacitation device. Therefore, we conclude that the appellees have pled a negligence cause of action and the City has not established that the intentional tort exception to the Texas Tort Claims Act's limited waiver of immunity applies."). The Court based its finding on the Texas Supreme Court's holding in Reed Tool Co. S.W.2d 404, 406 (Tex. 1985), that the v. Copelin, difference 689 between a negligence cause of action and an intentional tort is not whether defendant intended the acts, but whether defendant intended the resulting injury. In light of the Fifth Circuit's holding in Lopez-Rodriguez, 100 F. App'x at 275, and the Texas court's holding in Nunez, 279 -53- S.W.3d 7421 the court concludes that the plaintiffs l allegations that the defendant officers injured Corey by firing their tasers at him negligently should not be dismissed at this stage of the lawsuit. 2. Claims for Bystander Injuries Alleged by Corey/s Parents A state law bystander claim may be brought under the TTCA. Hermann Hospital v. Martinez Houston [14th Dist.] 1999 1 l 990 S.W.2d pet. Rosamond Village Ltd. Partnership 476 denied); 1 478-79 (Tex. App. - Estate of Barrera v. 983 S.W.2d 795 1 1 799 & n.1 (Tex. App. - Houston [1st Dist.] 1998 / no pet); City of Austin v. Davis 693 S.W.2d 31 1 34 l (Tex. App. - Austin 1985 / writ ref/d n.r.e.). Under Texas law a bystander who witnesses a negligently inflicted serious or fatal injury may recover for mental anguish if: (1) the bystander was located near the scene of the accident as contrasted with one who was a distance away from it; (2) the shock resulted from a direct emotional impact upon the bystander from the sensory and contemporaneous observance of the accident as contrasted wi th learning of the accident from others after its occurrence; and (3) the bystander and the victim were closely related as contrasted with an absence of any relationship or the presence of only a distant relationship. 1 l Martinez, 990 S.W.2d at 478 (citing Edinburg Hospital Authority v. Trevino, Pasadena 941 S.W.2d l 744 76 S.W.2d 1 80 923 1 (Tex. 924 1997) (Tex. and Freeman v. 1988)). Here 1 City of Mr. and Mrs. Khansari personally observed Corey suffer severe injury, and they are however l immediate family members of Corey. The City argues 1 that governmental immunity for bystander injuries was not -54- In support of its argument, the City relies waived in this case. upon Barker v. City of Galveston, 907 S.W.2d 879, 889 (Tex. App. Houston [1st Dist.] 1995, writ denied). Barker involved the interpretation of the section of the Texas Civil Practices & Remedies Code for negligent use of See Tex. Civ, Prac. & personal property owned by a municipality. Rem. Code § 101.021(2) tangible The Barker court held that the plaintiffs could not recover for personal or bystander injuries because they could not prove that the city was negligent. 886-87. In other words, could not the court concluded that the bystander recover because of insufficient proof of liability for the victim's injury. 855 S.W.2d 593, 598 (Tex. 1993) he or she must inflicted serious Barker - establish or Barker, 907 S.W.2d at See also Boyles v. Kerr, ("Before a bystander may recover, that fatal Id. the city's the injuries defendant on has negligently the primary victim. ") . like most of the other cases cited by the City - was decided on a motion for summary judgment, not a motion to dismiss. For the reasons stated in the preceding section, the court has already concluded that the facts are not yet sufficiently developed to determine whether Corey's injuries were incurred by conduct that was intentional or negligent. which the City relies are before the court. 515, 539 See, Barker and other cases on inapplicable to ~, (S.D. Tex. 2010) Thus, the facts currently McIntosh v. Smith, 690 F. Supp. 2d (summary judgment) i Carnaby v. City of Houston, 2009 WL 7806964, *16 (S.D. Tex. October 28,2009) -55- (motion to reconsider grant of summary judgment) . Accordingly, the City's motion to dismiss claims asserted under the TTCA will be denied. V. Conclusions and Order For the reasons explained in § III.A.2(a), above, the court concludes that plaintiffs have alleged facts capable of stating claims against the individual officer defendants for the excessive use of force and for failure to prevent excessive use of force arising from the tasering of Corey Khansari that are sufficient to overcome the defendants' assertions of qualified immunity, but that absent the development of additional facts the court is unable to determine whether the individual officer defendants are entitled to qualified immunity for these claims. to dismiss defendants claims for asserted excessive use Therefore, defendants' motion against of force the and individual officer failure prevent to excessive use of force against Corey Khansari is DENIED. For the reasons explained in § III.A.2. (b), above, the court concludes that plaintiffs have not alleged facts capable of stating claims against the individual officer defendants for the excessive use of force, the failure to prevent the use of excessive force, or bystander liability arising from force asserted against or injuries suffered by Debra or Michael Khansari. Therefore, defendants' motion to dismiss claims asserted against the individual officer defendants by Debra and Michael Khansari is GRANTED. -56- -------------~~------~ For the reasons explained in I I I. B. 1, § above, the court concludes that the plaintiffs have not alleged or attempted to allege claims against Chief McClelland in his official capacity. Therefore, defendants' motion to dismiss claims asserted against Chief McClelland in his official capacity is DENIED as MOOT. For the reasons explained in I I I. B. 2, § above, the court concludes that the plaintiffs have failed to allege facts capable of stating any claims for which relief may be granted against Chief MCClelland in his personal capacity. Therefore, defendants' motion to dismiss claims asserted against Chief McClelland in his personal capacity is GRANTED. For the reasons explained in § III.C, above the court concludes that plaintiffs have not alleged or attempted to allege claims against the MCClelland pursuant individual to officer the Texas Tort defendants Claims Act. or Chief Therefore, defendants' motion to dismiss Texas Tort Claims Act claims asserted against the individual officer defendants and Chief McClelland in their personal capacities is DENIED as MOOT. For the reasons explained in § IV.A, above, the court concludes that the plaintiffs have failed to allege facts capable of stating claims under 42 U. s. C. § 1983 against the City of Houston for bystander liability arising from injuries suffered by Debra and Michael Khansari or for ratification. -57- Therefore, the City of Houston's motion to dismiss 1983 claims for bystander § liability and ratification is GRANTED. For the reasons explained in § IV.B, above, the court concludes that the plaintiffs have alleged facts capable of stating claims against the City of Houston pursuant to the Texas Tort Claims Act for negligent use of personal property arising from the tasering of Corey Khansari and for bystander liability arising from Debra Khansari and Michael Khansari having witnessed that tasering. The City of Houston's motion to dismiss claims asserted pursuant to the Texas Tort Claims Act is therefore DENIED. The Rule 12 (b) (6) Motion to Dismiss Plaintiffs' Second Amended Complaint by Defendants Charles A. McClelland, Jr., William Rutherford, Candice Vaughn, Jillian McGowan, Maria Hernandez, Sean Hunter, Jorge Herrera and Walter Gaw (Docket Entry No. 28) is GRANTED in PART and DENIED in PART. The City of Houston's Rule Motion to Dismiss Plaintiffs' 12 (b) (1) and 12 (b) (6) Partial Second Amended Complaint (Docket Entry No. 27) is GRANTED in PART and DENIED in PART. During the next forty-five (45) days the parties may engage in paper discovery aimed solely at determining whether the officer defendants are entitled to qualified immunity and may attempt to settle the case. If, at the end of the 45-day period the parties are unable to settle this action, -58- the parties will provide the court with the name, address, telephone and facsimile numbers, and e-mail address of an agreed upon mediator. If the case does not settle, the court will schedule an initial pretrial and scheduling conference. SIGNED at Houston, Texas, on this the 9th day of April, 2014. UNITED STATES DISTRICT JUDGE -59-

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