Arevalo v. City of Farmers Branch

• Decision Date: 28 March 2017
• Docket Number: Civil Action No. 3:16-CV-1540-D
• Parties: EVA AREVALO, INDIVIDUALLY AND AS NEXT FRIEND OF E.R., A MINOR, Plaintiff, v. CITY OF FARMERS BRANCH, TEXAS, et al., Defendants.
• Court: U.S. District Court — Northern District of Texas

EVA AREVALO, INDIVIDUALLY AND AS NEXT FRIEND OF E.R., A MINOR, Plaintiff, v. CITY OF FARMERS BRANCH, TEXAS, et al., Defendants.

Civil Action No. 3:16-CV-1540-D

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION

March 28, 2017

MEMORANDUM OPINION AND ORDER

The mother of a teenager shot by a police officer who was residing at an apartment complex and working as its courtesy officer brings this action under 42 U.S.C. § 1983 and Texas law, alleging that the officer, the city that employed him, the city's police chief, and the owner and manager of the apartment complex where the officer resided and worked are liable on theories of use of excessive force, failure to train, and negligent hiring and/or retention. The defendants move to dismiss under Fed. R. Civ. P. 12(b)(6), or for judgment on the pleadings under Rule 12(c), and the police officer moves to stay the proceedings against him pending the outcome of a parallel criminal prosecution. For the reasons that follow, the court grants the motions to dismiss and for judgment on the pleadings—except for the police officer's motion to dismiss—and it grants the police officer's motion to stay. The court dismisses the actions against the apartment complex owner and manager, the city, and the city police chief, but it also grants the plaintiff leave to amend as to the city and the city police chief.

I

A

This is a lawsuit by plaintiff Eva Arevalo ("Arevalo") brought individually and on behalf of her son E___ R ___ ("E.R.").¹ The defendants are the City of Farmers Branch, Texas ("Farmers Branch"); the Farmers Branch Chief of Police, Sid Fuller ("Chief Fuller"); Ken Johnson ("Officer Johnson"), who on the day of the shooting was employed as a Farmers Branch police officer; Adara Communities, LLC ("Adara"), the manager of the Brookhaven Apartments, where Officer Johnson resided and worked as a courtesy officer²; and Brookhaven Apartments, LLC ("Brookhaven"), the owner of the Brookhaven Apartments. Arevalo asserts four claims. In count one, she brings a claim under § 1983 against Farmers Branch, alleging that, through its customs and practices, it has instituted and maintained a policy of police brutality and excessive force that was used against E.R.; thatFarmers Branch failed to train or discipline its law enforcement officers concerning the use of deadly force or determining whether a suspect is armed and/or poses a threat of serious physical harm to a law enforcement officer; and that Farmers Branch failed to train or inadequately trained its law enforcement officers to render medical care to shooting victims in their custody. In count two, Arevalo alleges that Officer Johnson is liable under § 1983 for violating E.R.'s Fourth Amendment rights by using excessive force against him. In count three, Arevalo asserts a claim under § 1983 against Chief Fuller, alleging that he failed to properly train officers employed by the Farmers Branch Police Department ("FBPD") on the constitutionally permissible procedures for the use of deadly force, resulting in the violation of E.R.'s Fourth Amendment rights through the use of excessive force when Officer Johnson shot him. And in count four, Arevalo brings a claim against Adara and Brookhaven for negligent hiring and/or retention, alleging that they negligently hired and/or inadequately supervised, trained, or retrained Officer Johnson as their employee, agent, and/or servant.

The following facts are taken from Arevalo's first amended complaint ("amended complaint") and are accepted as true for purposes of deciding defendants' motions to dismiss and for judgment on the pleadings. On March 13, 2016, between 7:00 p.m. and 7:30 p.m., Officer Johnson allegedly observed E.R. and J___ C___ ("J.C.")³ attempt to burglarize Officer Johnson's personal vehicle while it was parked in the parking lot of the Brookhaven Apartments. Officer Johnson announced himself as a police officer several times beforegetting into his vehicle and pursuing E.R. and J.C., who had fled in their own vehicle. E.R. was 16 years old on March 13.

After ramming the vehicle occupied by E.R. and J.C. and causing it to spin out of control, Officer Johnson exited his vehicle while brandishing his service weapon and identifying himself as a police officer. Officer Johnson then confronted E.R. and J.C. regarding the alleged burglary of his vehicle. Without provocation, Officer Johnson used a semi-automatic handgun to fire 17 rounds into the vehicle occupied by E.R. and J.C., even though there was no evidence that E.R. was armed. E.R. was hit in the hand and head. He was in a defenseless position in the vehicle during the entire time leading up to when Officer Johnson shot him. At no time leading up to the shooting did E.R. commit an act that could have been interpreted as an aggressive move towards Officer Johnson, reach toward his clothing or make any aggressive move in a threatening manner towards Officer Johnson, make a verbal threat towards Officer Johnson, or display any weapon towards Officer Johnson. Photos show that Officer Johnson was standing in the road while shooting into the vehicle occupied by E.R. and J.C., with both occupants totally contained in the vehicle. After intentionally shooting E.R., Officer Johnson returned to his vehicle to obtain more ammunition or another firearm, but then apparently decided to stop shooting. Officer Johnson was standing in the roadway with the gun when other officers arrived at the scene.

E.R. posed no threat of serious physical harm to Officer Johnson at the time of the shooting; Officer Johnson's actions in shooting E.R. were objectively unreasonable in light of the facts and circumstances confronting him; the shooting of E.R. was totally unnecessaryunder the circumstances, considering that he posed no immediate threat of serious physical harm to Officer Johnson; and the use of deadly force in this context was totally unjustified.

While acting under color of state law and under the authority granted him by the FBPD, and in the course and scope of his employment with the FBPD, Officer Johnson shot E.R.

Before Farmers Branch hired Officer Johnson, he had been disciplined at least three different times for excessive force. He had two excessive force complaints filed against him during his eight-year tenure as an officer with Dallas Area Rapid Transit.

According to Arevalo, on or about March 13, 2016, defendant Chief Fuller was the Farmers Branch Chief of Police who was responsible for training officers of the FBPD and for initiating, maintaining, and implementing all FBPD policies and procedures.

Prior to, and at the time of, the events leading up to the shooting of E.R., Officer Johnson had been hired/retained by Brookhaven Apartments, where he resided, as a "courtesy officer," to provide security services at the apartment complex. Adara was the apartment manager, and Brookhaven Apartments was the owner. Adara and Brookhaven both authorized Officer Johnson to patrol the premises and conduct security activities on and around the premises. In addition to his capacity as an officer of the FBPD, Johnson was also acting in the capacity as a security officer for Adara and Brookhaven at the time of the shooting. Adara and Brookhaven did not conduct a thorough and complete background check regarding Officer Johnson's employment history and the claims of excessive forcelodged against him before retaining/hiring him to perform security services for the Brookhaven Apartments.

B

The following motions are pending for decision: Officer Johnson's motion to dismiss Arevalo's amended complaint; Farmers Branch and Chief Fuller's motion to dismiss; Officer Johnson's motion to stay proceedings; and Adara and Brookhaven's Rule 12(c) motion for judgment on the pleadings. Arevalo opposes the motions.

II

Under Rule 12(b)(6), the court evaluates the pleadings by "accept[ing] 'all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff.'" In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007) (quoting Martin K. Eby Constr. Co. v. Dall. Area Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004)). To survive a motion to dismiss, Arevalo must allege enough facts "to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U. S. 544, 570 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant[s] [are] liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id.; see also Twombly, 550 U.S. at 555 ("Factual allegations must be enough to raise a right to relief above the speculative level [.]"). "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint hasalleged—but it has not 'show[n]'—'that the pleader is entitled to relief.'" Iqbal, 556 U.S. at 679 (quoting Rule 8(a)(2)). Furthermore, under Rule 8(a)(2), a pleading must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Although "the pleading standard Rule 8 announces does not require 'detailed factual allegations,'" it demands more than "'labels and conclusions.'" Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). And "'a formulaic recitation of the elements of a cause of action will not do.'" Id. (quoting Twombly, 550 U. S. at 555).

Rule 12(c) provides that "[a]fter the pleadings are closed—but early enough not to delay trial—a party may move for judgment on the pleadings." The standard for deciding a motion under Rule 12(c) is the same as the one for deciding a motion to dismiss under Rule 12(b)(6). See Great Plains Trust Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 313 n.8 (5th Cir. 2002) ("A number...