Parker v. Mo. City

• Decision Date: 10 December 2014
• Docket Number: CIVIL ACTION H-12-2484
• Parties: DION W. PARKER, Plaintiff, v. MISSOURI CITY, TEXAS; MISSOURI CITY, TEXAS POLICE DEPARTMENT; MISSOURI CITY, TEXAS POLICE CHIEF JOEL FITZGERALD, SR., in His Individual and Official Capacities; MISSOURI CITY, TEXAS POLICE OFFICER BADGE NO. 1003T, in his Official and Individual Capacities; MISSOURI CITY, TEXAS UNKNOWN POLICE OFFICER, in his Official and Individual Capacities; and TASER INTERNATIONAL, INC., Defendants.
• Court: U.S. District Court — Southern District of Texas

DION W. PARKER, Plaintiff, v. MISSOURI CITY, TEXAS; MISSOURI CITY, TEXAS POLICE DEPARTMENT;MISSOURI CITY, TEXAS POLICE CHIEF JOEL FITZGERALD, SR.,in His Individual and Official Capacities;MISSOURI CITY, TEXAS POLICE OFFICER BADGE NO. 1003T,in his Official and Individual Capacities;MISSOURI CITY, TEXAS UNKNOWN POLICE OFFICER,in his Official and Individual Capacities;and TASER INTERNATIONAL, INC., Defendants.

CIVIL ACTION H-12-2484

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION

December 10, 2014

OPINION AND ORDER OF PARTIAL DISMISSAL

Pending before the Court in the above referenced cause, alleging assault and battery, excessive force by tasing, and unlawful detention (false arrest or illegal seizure) in violation of 42 U.S.C. §§ 1983 and 1988 and the First, Fourth and Fourteenth Amendments of the Unites States Constitution, and under Texas law, the Texas Tort Claims Act ("TTCA"), Texas Civil Practice & Remedies Code §§ 101.001, 101.021, and 101.101, are the following motions: (1) Defendants Missouri City, Texas and Missouri City, Texas Police Department's motion to dismiss pursuant to Section 101.001, et seq., of the Texas Tort Claims Act and pursuant to Rule12(b)(6)(instrument #9); and (2) Defendants Joel Fitzgerald, Sr. ("Fitzgerald"), Missouri City Police Officer Badge No. 1003T ("Officer Badge No. 1003T"), and Unknown Missouri City Police Officer's ("Unknown Officer's") amended motion to dismiss for insufficient service of process pursuant to Federal Rules of Civil Procedure 4(e), 4(m). and 12(b)(5) (#14).¹

I. Standard of Review and Rules of Procedure

Federal Rule of Civil Procedure 8(a)(2) provides, "A pleading that states a claim for relief must contain . . . a short and plain statement of the claim showing that the pleader is entitled to relief." When a district court reviews a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), it must construe the complaint in favor of the plaintiff and take all well-pleaded facts as true. Randall D. Wolcott, MD, PA v. Sebelius, 635 F.3d 757, 763 (5^th Cir. 2011), citing Gonzalez v. Kay, 577 F.3d 600, 603 (5^th Cir. 2009). The plaintiff's legal conclusions are not entitled to the same assumption. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)("The tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions."), citing Bell Atlantic Corp. v. Twombly, 556 U.S. 662, 678 (2007);Hinojosa v. U.S. Bureau of Prisons, 506 Fed. Appx. 280, 283 (5^thCir. Jan. 7, 2012).

"While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, . . . 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 . . . ." Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1964-65 (2007)(citations omitted). "Factual allegations must be enough to raise a right to relief above the speculative level." Id. at 1965, citing 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed. 2004)("[T]he pleading must contain something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally cognizable right of action"). "Twombly jettisoned the minimum notice pleading requirement of Conley v. Gibson, 355 U.S. 41 . . . (1957)["a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief"], and instead required that a complaint allege enough facts to state a claim that is plausible on its face." St. Germain v. Howard,556 F.3d 261, 263 n.2 (5^th Cir. 2009), citing In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5^th Cir. 2007)("To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead 'enoughfacts to state a claim to relief that is plausible on its face.'"), citing Twombly, 127 S. Ct. at 1974). "'A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.'" Montoya v. FedEx Ground Package System, Inc., 614 F.3d 145, 148 (5^th Cir. 2010), quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The plausibility standard is not akin to a "probability requirement," but asks for more than a "possibility that a defendant has acted unlawfully." Twombly, 550 U.S. at 556. Dismissal is appropriate when the plaintiff fails to allege "'enough facts to state a claim to relief that is plausible on its face'" and therefore fails to "'raise a right to relief above the speculative level.'" Montoya, 614 F.3d at 148, quoting Twombly, 550 U.S. at 555, 570.

In Ashcroft v. Iqbal, 556 U.S. at 679, the Supreme Court stated that "only a complaint that states a plausible claim for relief survives a motion to dismiss," a determination involving "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." "[T]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements do not suffice" under Rule 12(b). Iqbal, 129 S. Ct. at 1949. The plaintiff must plead specific facts, not merely conclusory allegations, to avoid dismissal. Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5^th Cir. 2000). "Dismissalis proper if the complaint lacks an allegation regarding a required element necessary to obtain relief . . . ." Rios v. City of Del Rio, Texas, 444 F.3d 417, 421 (5^th Cir. 2006), cert. denied, 549 U.S. 825 (2006).

As noted, on a Rule 12(b)(6) review, although generally the court may not look beyond the pleadings, the Court may examine the complaint, documents attached to the complaint, and documents attached to the motion to dismiss to which the complaint refers and which are central to the plaintiff's claim(s), as well as matters of public record. Lone Star Fund V (U.S.), L.P. v. Barclays Bank PLC, 594 F.3d 383, 387 (5^th Cir. 2010), citing Collins, 224 F.3d at 498-99; Cinel v. Connick, 15 F.3d 1338, 1341, 1343 n.6 (5^th Cir. 1994). See also United States ex rel. Willard v. Humana Health Plan of Tex., Inc., 336 F.3d 375, 379 (5^th Cir. 2003)("the court may consider . . . matters of which judicial notice may be taken"). Taking judicial notice of public records directly relevant to the issue in dispute is proper on a Rule 12(b)(6) review and does not transform the motion into one for summary judgment. Funk v. Stryker Corp., 631 F.3d 777, 780 (5^th Cir. 2011). "A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Fed. R. Evid. 201(b).

When a plaintiff's complaint fails to state a claim, the court should generally give the plaintiff at least one chance to amend the complaint under Rule 15(a) before dismissing the action with prejudice. Great Plains Trust Co v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 329 (5^th Cir. 2002)("District courts often afford plaintiffs at least one opportunity to cure pleading deficiencies before dismissing a case, unless it is clear that the defects are incurable or the plaintiffs advise the court that they are unwilling or unable to amend in a manner that will avoid dismissal."); United States ex rel. Adrian v. Regents of the Univ. of Cal., 363 F.3d 398, 403 (5^th Cir. 2004)("Leave to amend should be freely given, and outright refusal to grant leave to amend without a justification . . . is considered an abuse of discretion. [citations omitted]"). The court should deny leave to amend if it determines that "the proposed change clearly is frivolous or advances a claim or defense that is legally insufficient on its face . . . ." 6 Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Proc. § 1487 (2d ed. 1990).

"The core function of service is to supply notice of the pendency of a legal action, in a manner and at a time that affords the defendant a fair opportunity to answer the complaint and present defenses and objections." Henderson v. U.S., 517 U.S. 654, 672 (1996). "Before a . . . court may exercise personal jurisdiction over a defendant, the procedural requirement ofservice of summons must be satisfied." Omni Capital Int'l, Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 104 (1987).

A pro se plaintiff is not excused from the requirement to effect service of process. Sys. Signs Supplies v. United States Dep't of Justice, 903 F.2d 1011, 1013 (5^th Cir. 1990).

Pursuant to Federal Rule of Civil Procedure 4(e), service on individuals in the United States, such as the individual police officer Defendants here, may be accomplished by (1) serving a defendant in accordance with the laws of the state in which either he is located or in the state where the district court is located, in the instant case Texas²; (2) personally delivering a copy of the summons and complaint to the individual; (3) leaving a copy of the summons and complaint at the individual's dwelling or usual place of abode with someone of suitable age and discretion who residesthere; or (4) by delivering a copy of the summons or complaint to an agent authorized by appointment or by law to receive service of process.

Federal Rule of Civil Procedure 12(b)(5) permits a court to dismiss a claim for "insufficient service of process."³ Where the defendant challenges the validity of the service of process, the court "must look outside the complaint to determine what steps, if any, the plaintiff took to effect service." Dunlap v. City of Fort Worth, No. 4:13-CV-802-0, 2014 WL 1677680, at *2 (N.D. Tex. Apr. 28, 2014). If a defendant has not been served with process in compliance with Rule 4, the court lacks personal jurisdiction over that defenda...