Lozano v. Ortega, EP-14-CV-239-KC

• Court: U.S. District Court — Western District of Texas
• Writing for the Court: KATHLEEN CARDONE UNITED STATES DISTRICT JUDGE
• Decision Date: 19 November 2014
• Docket Number: EP-14-CV-239-KC
• Citation: Lozano v. Ortega, EP-14-CV-239-KC (W.D. Tex. Nov 19, 2014)
• Parties: HENRY LOZANO, Plaintiff, v. VICENTE ORTEGA, Individually and as a Police Officer with the El Paso Police Department; GREG ALLEN, as Chief of Police of the El Paso Police Department; and THE CITY OF EL PASO, Defendants.

HENRY LOZANO, Plaintiff, v. VICENTE ORTEGA, Individually and as a Police Officerwith the El Paso Police Department; GREG ALLEN, as Chief of Policeof the El Paso Police Department; and THE CITY OF EL PASO, Defendants.

EP-14-CV-239-KC

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS EL PASO DIVISION

November 19, 2014

ORDER

On this day, the Court considered Defendant City of El Paso's 12(b)(6) Motion to Dismiss (the "City's Motion"), ECF No. 4, and Defendant Vicente Ortega's Rule 12(b)(6) Motion to Dismiss ("Ortega's Motion"), ECF No. 11, in the above-captioned case (the "Case"). For the reasons set forth below, Ortega's Motion is GRANTED in part and DENIED in part. The City's Motion is GRANTED in its entirety.

I. BACKGROUND

A. Factual Background

The following facts are derived entirely from Plaintiff Henry Lozano's ("Plaintiff") Civil Rights Complaint ("Complaint"). On June 24, 2012, at approximately 3:00 a.m., Plaintiff was walking by a car wash located at 7411 North Mesa, El Paso County, Texas, on his way to work at the adjacent Walmart. Compl. ¶ 15. Plaintiff has a learning disability that prevents him from understanding complex commands. Id. ¶ 16. He is well-known to the owners of the car wash, and often picks up trash and helps around the business. Id. ¶ 17. On this particular morning,Plaintiff found a pair of "clippers" in one of the trash cans near the car wash. Id. ¶ 18. He placed the clippers in his back pack, and proceeded to walk by the coin operated machines to check if there was any excess change in the slots. Id. ¶¶ 19-20. Finding no change, he continued to walk along North Mesa Street through the parking lot of the Home Depot store directly adjacent to his place of employment. Id. ¶ 21.

As Plaintiff approached the Home Depot, an unmarked police vehicle driven by Officer Vicente Ortega ("Ortega") swerved in front of Plaintiff's path. Id. ¶¶ 22-23. Ortega was in plain clothes and did not immediately identify himself as a police officer. Id. ¶¶ 25-26. Fearing that he was under attack from an unknown assailant, Plaintiff tried to run from the car. Id. ¶ 24. Ortega exited his vehicle and pursued Plaintiff with his handgun drawn. Id. ¶ 25. While in pursuit, Ortega continued to shout at Plaintiff unintelligibly until eventually tackling him from behind to the pavement. Id. ¶¶ 27, 29.

Once Plaintiff was subdued, several other unknown police officers (the "Unknown Officers") arrived at the scene. Id. ¶ 29. Ortega and the Unknown Officers then began to severely beat Plaintiff. Id. When Plaintiff yelled for them to stop, Ortega ignored his pleas, and continued to slam and beat him several more times until eventually handcuffing him. Id. ¶ 30. After Plaintiff continued to cry out in pain, Ortega responded by calling Plaintiff an "idiot" and a "stupid fuck." Id. ¶ 31. Ortega then took Plaintiff's head in his hands and slammed his face on the ground. Id. After Plaintiff's arrest, he was placed in a police vehicle, at which point he lost consciousness. Id. ¶ 34.

As a result of the beatings, Plaintiff sustained various injuries to his shoulder, face, eyes, knees, arms, elbows, back, and abdomen. Id. ¶ 33. These injuries prevented Plaintiff from beingaccepted for booking at the El Paso County Detention Facility, and he was instead sent to the University Medical Center for treatment. Id. ¶¶ 35-36.

Based on Ortega's complaint affidavit, Plaintiff was charged with unlawful use of a criminal instrument and resisting arrest. Id. ¶ 40. A magistrate judge rejected the charge of resisting arrest, and the District Attorney's Office declined to prosecute the charge of unlawful use of a criminal instrument. Id. ¶¶ 44-45.

B. Procedural Posture

On June 23, 2014, Plaintiff filed his Complaint with this Court alleging numerous federal and state causes of action against Ortega, the Unknown Officers, the El Paso Chief of Police (Greg Allen ("Allen")), and the City of El Paso (the "City"). Id. ¶¶ 9-13, 52-53. Pursuant to 42 U.S.C. § 1983, Plaintiff sues Ortega individually as well as in his official capacity as an El Paso police officer. Id. ¶ 12. Plaintiff sues Allen in his official capacity only, id. ¶ 13, and does not specify in what capacity he sues the Unknown Officers.¹

In total, Plaintiff asserts seven causes of action against Ortega, and two against the Unknown Officers, all arising out of his arrest on June 24, 2012. Id. ¶¶ 53-129, 147-49. First, Plaintiff alleges that Ortega and the Unknown Officers used excessive force in violation of the Fourth and Fourteenth Amendments. Id. ¶¶ 53-74. Second, Plaintiff alleges that Ortega subjected him to racial- and disability-based discrimination in violation of 42 U.S.C. § 1981 and the Fourteenth Amendment. Id. ¶¶ 75-92. Third, Plaintiff alleges that Ortega retaliated against him for engaging in protected speech in violation of the First and Fifth Amendment. Id. ¶¶ 93-111. Fourth, Plaintiff brings a malicious prosecution claim against Ortega and the Unknown Officers pursuant to the Fourth and Fourteenth Amendments. Id. ¶¶ 112-29. Fifth, Plaintiffasserts that Ortega deprived him of various rights arising under the Texas constitution, including his right to be free from unreasonable searches and seizures, his right against cruel and unusual punishment, and his right to due process of law. Id. ¶ 147. Sixth, Plaintiff alleges that Ortega is liable for common law assault and battery. Id. ¶ 148. And seventh, Plaintiff asserts a claim against Ortega for intentional infliction of emotional distress ("IIED"). Id. ¶ 149.

The Complaint also asserts a variety of claims against Allen and the City. In particular, Plaintiff alleges that the City, acting through Allen, adopted deliberately indifferent policies, practices, customs, training, and supervision, all in violation of Plaintiff's First, Fourth, Fifth, Eighth, and Fourteenth Amendment rights under the Constitution. Id. ¶¶ 130-46. Plaintiff further alleges that the City's conduct violates Article 1, sections 9, 13, and 19 of the Texas constitution. Id. ¶ 147.

The City filed its Motion to Dismiss on September 8, 2014. See City's Mot. 1. Ortega, in turn, filed his Motion to Dismiss on September 29, 2014. See Ortega's Mot. 1. Plaintiff failed to file a response to either motion within the fourteen days required pursuant to Local Rule CV-7(e)(2), or anytime thereafter.

II. DISCUSSION

Before proceeding with its analysis, the Court pauses to discuss Plaintiff's counsel's failure to respond to Defendants' dispositive motions. Pursuant to Local Court Rule CV-7(e), when a party fails to file a timely response to another party's motion, "the court may grant the motion as unopposed." Although the Court declines to summarily grant the instant motions to dismiss without conducting the requisite review, Plaintiff's counsel would be wise to respond to any future motions if he wishes to prosecute this Case. Cf. Watson v. Wintle-Newell, CivilAction No. G-06-0323, 2006 WL 3044477, at *1 (S.D. Tex. Oct. 19, 2006) (treating motion to dismiss as unopposed where opposing party failed to respond).

A. Standard

A motion to dismiss pursuant to Rule 12(b)(6) challenges a complaint on the basis that it fails to state a claim upon which relief may be granted. Fed. R. Civ. P. 12(b)(6). In ruling on a Rule 12(b)(6) motion, the Court must accept well-pleaded facts as true and view them in the light most favorable to the plaintiff. Calhoun v. Hargrove, 312 F.3d 730, 733 (5th Cir. 2002); Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000). Though a complaint need not contain "detailed" factual allegations, a plaintiff's complaint must allege sufficient facts "to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007); Colony Ins. Co. v. Peachtree Constr., Ltd., 647 F.3d 248, 252 (5th Cir. 2011).

"A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). "[A] plaintiff's obligation to provide the grounds of his entitlement to relief requires 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 quotation marks omitted); Gulf Coast Hotel-Motel Ass'n v. Miss. Gulf Coast Golf Course Ass'n, 658 F.3d 500, 506 (5th Cir. 2011). Ultimately, the "[f]actual allegations [in the complaint] must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555 (internal citation omitted). Nevertheless, a "well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and 'that a recovery is very remote and unlikely.'" Id. at 556 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)).

B. Ortega's Motion

Ortega argues that Plaintiff's § 1983 claims against him in his official capacity must be dismissed because they are duplicative of Plaintiff's claims against the City. See Ortega's Mot. 6-7. Ortega further argues that Plaintiff's claims against him in his individual capacity similarly fail because the Complaint contains insufficient factual allegations to overcome his qualified immunity defense. Id. at 3-6. Finally, Ortega seeks dismissal of Plaintiff's common law assault claim on the basis that the amount of force used was justified under the circumstances as a matter of law. Id. at 7. The Court addresses each of these arguments in turn.²

1. Plaintiff's official-capacity claims

A claim against a government employee in his or her official capacity is considered a claim against the government entity itself. McMillian v. Monroe Cnty., 520 U.S. 781, 785 n.2 (1997). Thus, "[a]s long as the government entity receives notice and an opportunity to respond, an official-capacity suit is, in all respects other than name, to be treated as a suit against the entity."...