Mendez v. Jones
| Decision Date | 22 September 2021 |
| Docket Number | Civil Action 1:21-cv-80 |
| Parties | SANDRA MENDEZ, individually, and as the Independent Administrator for the Estate of Mark Anthony Galvan Plaintiff, v. SERGEANT JOHN JONES, OFFICER MARIO ALVARADO, OFFICER CELESTE RIVERA, and the CITY OF BROWNSVILLE, Defendants. |
| Court | U.S. District Court — Southern District of Texas |
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
The Court is in receipt of “Defendant City of Brownsville Texas' and Sergeant John Jones, Officer Mario Alvarado and Officer Celeste Rivera in Their Official Capacities' Rule 12 Motion to Dismiss for Failure to State a Claim for Relief” and “Defendants' Sergeant John Jones Officer Mario Alvarado, Officer Celeste Rivera in Their Individual Capacities' Rule 12 Motion to Dismiss for Failure to State a Claim for Relief” (the “Motions”). Dkt. Nos. 8, 9. For the reasons provided below, it is recommended that the Court: 1) GRANT both Motions; 2) DISMISS WITH PREJUDICE (a) Plaintiff's § 1983 excessive force claim under the Fourth Amendment against the City of Brownsville and against Sergeant John Jones, Officer Mario Alvarado, and Officer Celeste Rivera in their official capacities (collectively, “City Defendants”), (b) Plaintiff's § 1983 excessive force claim under the Fourth Amendment against Sergeant Jones, Officer Mario Alvarado, and Officer Celeste Rivera in their individual capacities (collectively, “Individual Defendants”), (c) Plaintiff's § 1983 excessive force claim under the Fourteenth Amendment against City Defendants, (d) Plaintiff's § 1983 excessive force claim under the Fourteenth Amendment against Individual Defendants, and (e) Plaintiff's § 1983 family unit destruction claim under the Fourteenth Amendment against all Defendants; and 3) DENY (a) Plaintiff's request for punitive damages on all claims against City Defendants, and (b) Plaintiff's request for punitive damages on her §1983 Fourth and Fourteenth Amendment claims against Individual Defendants.
Venue is proper in this Division and District because the purported events giving rise to Plaintiff's claims occurred here. See Dkt. No. 1 at 4-8 (); 28 U.S.C. § 1391(b)(2) (). The Court has federal question subject matter jurisdiction over Plaintiff's claims alleging violations of 42 U.S.C. § 1983. See Dkt. No. 1 at 8-9; 28 U.S.C. § 1331 ().
This is a Fourth Amendment unreasonable seizure case brought under 42 U.S.C. § 1983 arising out of a police chase and shooting that resulted in the death of Mark Anthony Galvan. Dkt. No. 1 at 4-8. On June 17, 2019 at 1:37 a.m., in response to a call regarding an assault allegation, Officer Mario Alvarado pulled over a vehicle Galvan was driving on Medical Street in Brownsville, Texas. Dkt. No. 12-1 at 13. Galvan stated to Alvarado that he had argued with his girlfriend and left her residence. Dkt. No. 1 at 4. Galvan failed to produce his driver license upon request. Id. Alvarado subsequently asked Galvan to get out of his vehicle five times. Id. Galvan did not comply; rather, he shifted his vehicle's gear and fled from Alvarado at a high rate of speed. Id.
Sergeant John Jones and Officer Celeste Rivera joined Alvarado, and the officers pursued Galvan to the dead end of the same street, after which Alvarado exited his patrol vehicle and demanded that Galvan stop his vehicle. Id. at 5. Galvan then turned his vehicle around and, seeing that the officers' patrol vehicles had blocked in his vehicle, drove toward Alvarado. Id. Galvan then drove onto the front lawn of a residential property. Id. Alvarado then attempted to open the driver's door of Galvan's vehicle. Id. Jones advised Alvarado to not stand in front of Galvan's vehicle. Id.
While still on the lawn, Galvan accelerated forward and turned left, [1] and all three officers then discharged their weapons at Galvan. Id. Galvan's vehicle then struck Rivera's patrol vehicle and came to a standstill. Id. Galvan raised his hands in the air, and the officers stopped shooting. Id. at 6. However, Galvan then lowered his hands and drove into Rivera's patrol vehicle a second time, and Alvarado and Jones then discharged their weapons at Galvan again. Id. Galvan then accelerated and drove his vehicle away from the scene, scraping Jones' patrol vehicle in the process. Id. at 6-7. Alvarado pursued Galvan onto Boca Chica Boulevard in an eastward direction and then discovered that Galvan had crashed into a palm tree. Id. at 7. Alvarado called emergency medical services, and later that day, Galvan died from the gunshot wounds. Id. at 8.
On June 14, 2021, Plaintiff filed her Complaint, in which she asserts the following claims:[2] (a) § 1983 excessive force claim under the Fourth Amendment against City Defendants; (b) § 1983 excessive force claim under the Fourth Amendment against Individual Defendants; (c) § 1983 excessive force claim under the Fourteenth Amendment against City Defendants; (d) § 1983 excessive force claim under the Fourteenth Amendment against Individual Defendants; (e) § 1983 family unit destruction claim under the Fourteenth Amendment against all Defendants; (f) wrongful death claim against all Defendants; and (g) survival claim against all Defendants. Dkt. No. 1 at 8-9.
On July 2, 2021, Defendants filed the Motions. Dkt. Nos. 8, 9. Defendants did not move to dismiss Plaintiff's claims involving allegations of wrongful death and survival of cause of action.[3] On July 23, 2021, Plaintiff filed a joint response to both Motions. Dkt. No. 12. On August 2, 2021, Defendants filed replies. Dkt. Nos. 13, 14.
Federal Rule of Civil Procedure 12(b)(6) provides for dismissal of a cause of action if the plaintiff fails “to state a claim upon which relief can be granted.” FED. R. CIV. P. 12(b)(6). In Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007), and Ashcroft v. Iqbal, 556 U.S. 662, 678-80 (2009), the Supreme Court found that Rule 12(b)(6) must be read in conjunction with Rule 8(a). Richter v. Nationstar Mortgage, LLC, Civil Action No. H-17-2021, 2017 WL 4155477, at *1 (S.D. Tex., 2017). Rule 8(a) requires “a short and plain statement of the claim showing that the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). To withstand a Rule 12(b)(6) challenge, then, a complaint must contain “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. 544, 570. This means that a complaint, taken as a whole, “must contain either direct or inferential allegations respecting all the material elements necessary to sustain recovery under some viable legal theory[.]” Id. at 562.
“[A] plaintiff's obligation to provide the ‘grounds' of his ‘entitle[ment] 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. 544, 555 (citing Papasan v. Allain, 478 U.S. 265, 286 (2007)). “Factual allegations must be enough to raise a right to relief above the speculative level ... on the assumption that all of the allegations in the complaint are true (even if doubtful in fact).” Id. In Twombly, the Supreme Court stressed that it did not impose a probability standard at the pleading stage; however, an allegation of a mere possibility of relief does not satisfy the requirement of Rule 8(a)(2) that the “plain statement” of a claim include factual “allegations plausibly suggesting (not merely consistent with)” an entitlement to relief. Id. at 557. A court also need not accept as true “conclusory allegations, unwarranted factual inferences, or legal conclusions[.]” Plotkin v. IP Axess, Inc., 407 F.3d 690, 696 (5th Cir. 2005) (citing Southland Sec. Corp. v. INSpire Ins. Solutions, Inc., 365 F.3d 353, 361 (5th Cir. 2004)).
Section 1983 of Title 42 of the United States Code provides as follows:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress [. . .]
42 U.S.C. § 1983. Section 1983 does not create substantive rights. Instead, it creates a private right of action to redress violations of federal law, such as the Fourth Amendment or Fourteenth Amendment, perpetrated by those acting under color of state law. Colson v. Grohman, 174 F.3d 498, 504 n. 2 (5th Cir. 1999). A plaintiff seeking relief under § 1983 must show the following: 1) the conduct complained of was committed under color of state law; and 2) the conduct deprived the plaintiff of rights secured by the Constitution or laws of the United States. See Hernandez v. Maxwell, 905 F.2d 94, 95 (5th Cir. 1990) (citing Daniel v. Ferguson, 839 F.2d 1124, 1128 (5th Cir. 1998)). In interpreting the phrase “under color of . . . State [law, ]”, the United States Supreme Court has explained as follows:
[A]ccording to the traditional definition of “acting under color of state law, ” the defendant in a § 1983 action must have “exercised power ‘possessed by virtue of state law and...
To continue reading
Request your trial