Ettinoffe v. Sheikh
| Decision Date | 04 October 2022 |
| Docket Number | Civil Action 4:21-CV-02646 |
| Parties | MARIE ETTINOFFE, et al., Plaintiffs, v. OFFICER M SHEIKH, et al., Defendants. |
| Court | U.S. District Court — Southern District of Texas |
MARIE ETTINOFFE, et al., Plaintiffs,
v.
OFFICER M SHEIKH, et al., Defendants.
Civil Action No. 4:21-CV-02646
United States District Court, S.D. Texas, Houston Division
October 4, 2022
ORDER
KEITH P. ELLISON UNITED STATES DISTRICT JUDGE
Plaintiffs Marie and Samuel Ettinoffe brought this suit on behalf of Curvin Ettinoffe, alleging that the City of Houston is liable for (1) employing a policy that permits officers to use excessive force and (2) failing to adequately train its officers. Pending before the Court is Defendants' Motion to Dismiss the Ettinoffes' Third Amended Complaint. ECF No. 29. For the reasons that follow, the Court GRANTS IN PART and DENIES IN PART the Motion.
I. BACKGROUND
A. Factual Background[1]
On August 16, 2019, police officers were dispatched to a CVS to respond to a call reporting a possible theft. ECF No. 28 ¶¶ 10-11. Upon arrival, Officer Sheikh shouted to Officer Romero: “You go gun and I'll go taser.” Id. ¶ 16. They yelled at Ettinoffe to get on the ground, and Sheikh shouted “pop him, pop him!” Id. ¶¶ 17-18. The officers “violently tased [Ettinoffe] multiple times.” Id. ¶ 19. Sheikh “slammed [Ettinoffe] to the ground using excessive force, by his neck.” Id. ¶ 21. Soon, multiple officers were “restraining Mr. Ettinoffe, restricting Mr. Ettinoffe's movements, and
holding Mr. Ettinoffe down.” Id. ¶ 22. Sheikh said, “let me see his legs, let me see his legs, now he ain't f***ing moving.” Id. ¶ 23.
Once Ettinoffe was lying face-down on the ground, “at least three” officers used “their full body weight, handcuffs, and zip ties to restrain him.” Id. ¶ 24. Ettinoffe's legs were restrained, and his hands were restrained behind his back. Id. ¶¶ 25-26. Sheikh also “had his knee on [Ettinoffe's] neck, constantly applying excessive amounts of pressure.” Id. ¶ 27. After some time passed, “one of the officers said, ‘he ain't f***ing moving'” Id. ¶ 28. Later, another officer said, “he ain't moving, wanna sit him up?” Id. ¶ 36. After seven minutes, the officers lifted Ettinoffe; Ettinoffe wasn't breathing, and the officers could not find his pulse. Id. ¶¶ 37-38.
EMTs soon arrived and were able to get a pulse. Id. ¶¶ 40-44. Ettinoffe went to the hospital, but the officers remained on the scene to be questioned by the Internal Affairs Division (“IAD”) of the Houston Police Department (“HPD”) and HPD sergeants. Id. ¶ 45-47. One officer told a sergeant that there was no gun involved. Id. ¶¶ 49-51. Allegedly “[i]n an attempt to cover up his excessive force conduct,” Sheikh told a sergeant: “This guy has a f***ing gun, I'm telling you somewhere.” Id. ¶ 52. No gun was found. Id. ¶¶ 52, 56.
After the incident, Officer Sheikh made the following statements to other officers:
• “Bro, I need a solid right now. I've gotten into some shit. The guy might not make it. That's all I can say, ok? No, on duty. This mother***er might not make it dude . . . the suspect. I did what I had to do.” Id. ¶ 59
• “Bro, I had to do what I had to do, you know what I'm saying?” Id. ¶ 60
• “[T]his mother***er was pulling on my partner that's why I had to hit his ass!” Id. ¶ 62.
• “No one is going to pull on my partner, I did what I had to do.” Id. ¶ 63.
• “That's when I grabbed his throat and I did what I did.... I lost my s**t man.” Id. ¶¶ 64 65.
Several officers, including Sheikh “were [also] making jokes about when [Ettinoffe] was found not breathing.” Id. ¶ 70. Sheikh also admitted that he “press[ed] down” on Ettinoffe's neck with his hand and “appl[ied] pressure to [Ettinoffe's] neck” with his knee. Id. ¶¶ 71-72.
As a result of the incident, Ettinoffe is paralyzed from the neck down and will likely remain that way for the rest of his life. Id. ¶ 74.
B. Procedural History
The Ettinoffes sued five individual officers and the City of Houston, bringing claims against the officers in their personal and official capacities and Monell claims against the City. ECF No. 7 ¶¶ 138-48. The defendants moved to dismiss. ECF No. 10. The Court granted the motion, dismissing with prejudice the claims against the officers in their official capacities, and dismissing without prejudice the claims against Sheikh in his personal capacity and the Monell claims against the City. 12/17/2021 Docket Entry.
The Ettinoffes filed a Second Amended Complaint. ECF No. 20. The defendants again moved to dismiss. ECF No. 21. Inexplicably, the Ettinoffes' counsel affirmatively abandoned all claims except for the two Monell claims. 5/23/2022 Minute Entry. Thus, the Court dismissed with prejudice all claims against the officers. Id. The Court dismissed without prejudice the Monell claims. Id. The Court instructed the Ettinoffes that this would be the last opportunity to amend. Id.
The Ettinoffes filed a Third Amended Complaint, bringing excessive-force claims against the officers, ECF No. 28 ¶¶ 208-12, and Monell claims against the City based on a policy of excessive force and failure to train, id. ¶¶ 213-25. The defendants again moved to dismiss. ECF No. 29. The Ettinoffes responded, ECF No. 30, and the defendants replied, ECF No. 32.
II. STANDARD OF REVIEW
A court may dismiss a complaint for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). When considering such a motion, a court must “accept the complaint's well-pleaded facts as true and view them in the light most favorable to the plaintiff.” Johnson v. Johnson, 385 F.3d 503, 529 (5th Cir. 2004); Bustos v. Martini Club Inc.,
599 F.3d 458, 461 (5th Cir. 2010). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. A pleading need not contain detailed factual allegations but must set forth more than “labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (internal citations omitted).
III. ANALYSIS
Officer Sheikh and the City of Houston (“Defendants”) move to dismiss the following claims: (A) the Ettinoffes' claims against the officers; (B) the Ettinoffes' Monell claims against the City based on an official-policy theory; and (C) the Ettinoffes' Monell claims against the City based on a failure-to-train theory.
A. Claims Against the Individual Officers
First, the Ettinoffes' Third Amended Complaint brings an excessive-force claim against the individual officers. ECF No. 28 ¶¶ 208-12. The defendants correctly point out that the Court has already dismissed these claims with prejudice. ECF No. 29 at 7; see 5/23/2022 Minute Entry. Thus, the Ettinoffes cannot bring them again. Mandawala v. Ne. Baptist Hosp., Counts 1, 2, & 11, 16 F.4th 1144, 1155 (5th Cir. 2021). The Ettinoffes' claims against the individual officers are DISMISSED WITH PREJUDICE.
B. Official-Policy Monell Claim
The City moves to dismiss the Ettinoffes' Monell claim based on the City's alleged policy of permitting its officers to use excessive force. “[M]unicipal liability under § 1983 is limited to
deprivations of federally protected rights caused by action taken ‘pursuant to official municipal policy of some nature.'” Cherry Knoll, L.L.C. v. Jones, 922 F.3d 309, 316-17 (5th Cir. 2019) (quoting Monell v. Dep't of Soc. Servs., 436 U.S. 658 (1978)). “To state a claim under Monell and its progeny,” the Ettinoffes must “allege (1) that ‘an official policymaker with actual or constructive knowledge of the constitutional violation acted on behalf of the municipality'; (2) that the allegedly unconstitutional action constitutes a ‘custom or policy'; and (3) that there was ‘a violation of constitutional rights whose moving force is the policy or custom.'” Brown v. Tarrant County, 985 F.3d 489, 497 (5th Cir. 2021) (quoting Zarnow v. City of Wichita Falls, 614 F.3d 161, 166-69 (5th Cir. 2010)); Hicks-Fields v. Harris County, 860 F.3d 803, 808 (5th Cir. 2017).
1. Prong 1: Official Policymaker
“[M]unicipal liability under § 1983 attaches where-and only where-a deliberate choice to follow a course of action is made from among various alternatives by the official or officials responsible for establishing final policy with respect to the subject matter in question.” Pembaur v. City of Cincinnati, 475 U.S. 469, 483 (1986). The identity of a policymaker is a question of state law. City of St. Louis v. Praprotnik, 485 U.S. 112, 124 (1988). Still, “a plaintiff is not required to single out the specific policymaker in his complaint; instead, a plaintiff need only plead facts that show that the defendant or defendants acted pursuant to a specific official policy, which was promulgated or ratified by the legally authorized policymaker.” Groden v. City of Dallas, 826 F.3d 280, 282 (5th Cir. 2016). Thus, in Groden, the plaintiff “carried his burden of connecting the policy to the city council by alleging that the city ‘[publicly] announced' the policy and that its ‘spokesman' gave ‘media interviews describing the new policy.'” Pena v. City of Rio Grande City, 879 F.3d 613, 623 (5th Cir. 2018) (quoting Groden, 826 F.3d at 286). Similarly, Chief Judge Rosenthal recognized that a complaint plausibly indicated a policymaker by alleging “that the
policies were promulgated by ‘the policymakers of the Houston Police Department, up to and including Chief Art Acevedo.'” Chavez v. Alvarado, 550 F.Supp.3d 439, 455 (S.D. Tex. 2021).
The Third Amended Complaint alleges that the policy permitting the use of excessive force “has been promulgated by policymakers and decision makers of the City of Houston and the City of Houston Police...
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