Vess v. City of Dall.

• Decision Date: 23 June 2022
• Docket Number: Civil Action No. 3:21-CV-1764-D
• Parties: Kyle VESS, Plaintiff, v. CITY OF DALLAS, a municipal corporation, and Brad Alan Cox, Defendants.
• Court: U.S. District Court — Northern District of Texas

608 F.Supp.3d 434

Kyle VESS, Plaintiff,

v.CITY OF DALLAS, a municipal corporation, and Brad Alan Cox, Defendants.

Civil Action No. 3:21-CV-1764-D

United States District Court, N.D. Texas, Dallas Division.

Signed June 23, 2022

Sean J. McCaffity, Jody Leigh Rodenberg, Sommerman McCaffity Quesada & Geisler LLP, Dallas, TX, for Plaintiff.

John Cheves Ligon, Devin Quaalon Alexander, Lindsay Wilson Gowin, Dallas City Attorney's Office, Dallas, TX, for Defendant City of Dallas.

Gerald V. Bright, David L. Craft, Walker Bright PC, Richardson, TX, for Defendant Brad Alan Cox.

MEMORANDUM OPINION AND ORDER

SIDNEY A. FITZWATER, SENIOR JUDGE

This is an action by plaintiff Kyle Vess ("Vess"), a homeless man, seeking relief under 42 U.S.C. § 1983 against defendants Brad Cox ("Cox"), a Dallas Fire-Rescue Department ("DFD") employee, and the City of Dallas (the "City") for a beating administered to him by Cox, who was responding to a grass fire. The City moves under Fed. R. Civ. P. 12(b)(6) to dismiss for failure to state a claim on which relief can be granted, and Cox moves under Rule 12(c) for judgment on the pleadings. Vess opposes both motions, and, in the alternative, requests leave to amend. For the reasons that follow, the court grants Cox's motion in part and denies it in part, denies the City's motion, and denies Vess's alternate request for leave to amend.

I

In August 2019 Cox and other DFD personnel were called to extinguish a grass fire.¹ When Cox² and other DFD personnel arrived, Vess, who is mentally ill, was walking near the fire. Due to Vess's proximity to the fire, Cox thought Vess was responsible for starting it.

Cox and other DFD personnel attempted to detain Vess. Meanwhile, other DFD personnel called the Dallas Police Department ("DPD") for assistance. Cox confronted Vess in an effort to detain him. Something provoked Vess, however, and he errantly swung at Cox, who swung back at Vess and hit him. According to the second amended complaint ("SAC"), Cox then beat Vess "senselessly" and subdued him. SAC ¶ 13.³ After subduing Vess, Cox continued to beat him, kicking him six times while he was on the ground. It was necessary for another firefighter to restrain Cox.

But according to the SAC, Cox was not finished. DPD officers eventually arrived and found Vess lying on the ground on his back, "clearly subdued." SAC ¶ 13. The DPD officers, together with Cox and a group of other firefighters, surrounded Vess as he continued to lie on the ground. Cox taunted Vess, telling him to "[g]et up again, get up again." Id. ¶ 14. When Vess lifted his head off the ground, Cox kicked him in the right side of his head with a steel-toed boot. Vess was initially knocked to the ground, but then stood up in a "fight or flight" response to confront Cox. Before Vess could confront Cox, however, another officer used a taser to incapacitate Vess. Cox's actions caused Vess to suffer "a fractured orbital socket on his face, a fractured sinus, cracked teeth, and ... facial paralysis

on the right side of his face." Id. ¶ 17. Vess also suffered an exacerbation of a prior brain injury.

According to the SAC, although the City knew that DFD personnel would be placed in potentially "physical encounters," it did not provide them de-escalation or use-of-force training. Id. ¶ 12. Rather, DFD policies require that firefighters and paramedics do not respond immediately to violent calls, but instead wait for DPD officers to arrive, and only then respond.⁴

The City attempted to avoid disciplining Cox for his encounter with Vess. DFD did not conduct an internal affairs investigation, and the Dallas Public Integrity Unit ("DPIU") cleared Cox of any wrongdoing. Both entities "worked to ensure that no further or deeper investigation was done"⁵ because both had a practice of concealing internal disciplinary measures from the public. SAC ¶ 24.⁶ The office of the Dallas County District Attorney did not pursue an indictment of Cox, later "indicated remorse" for not having done so, and "admitted that a thorough investigation was not undertaken." Id.

Vess alleges that Cox's physical encounter with him was not an isolated incident. According to the SAC, Cox was arrested in 2002 for suspected assault at a birthday party; was reprimanded three times for refusing to provide medical treatment to patients; was counseled in writing in 2011 for "unacceptable conduct" related to a patient; pleaded guilty to falsifying a government report;⁷ and is currently being sued in a case where he allegedly laughed at, and refused to give care to, a homeless man, who ultimately died.

Finally, according to the SAC, Cox's actions were consistent with the City's practices. Vess alleges that the DFD treats fire rescue calls to affluent areas of Dallas differently from those to impoverished communities. DFD and DPD personnel do not find it necessary to adequately respond to these communities and believe they can get away with certain substandard behavior in them. And when DFD personnel do engage in inappropriate behavior (whether in poor communities or elsewhere), DFD has refused to terminate any of these personnel in the last 30 to 40 years. This is so despite numerous examples of such inappropriate behavior—not punished by termination—including refusing to render care because of the person's sexual orientation; refusing to transport a child to the hospital because the paramedic thought the mother was lying about the seriousness of her child's illness; refusing to treat a man with a terminal condition because the paramedic believed the man was already dead; and refusing to follow standard procedures for a gunshot wound.⁸

After Vess filed his complaint, the City moved to dismiss. After Vess filed his amended complaint, the City filed another motion to dismiss, which the court granted.⁹ The City now moves to dismiss Vess's SAC under Rule 12(b)(6) for failure to state a claim on which relief can be granted, and Cox moves under Rule 12(c) for judgment on the pleadings. Vess opposes both motions, and, in the alternative, requests leave to amend his SAC.¹⁰ The court is deciding the motions on the briefs.

II

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 Tr. Co. v. Morgan Stanley Dean Witter & Co. , 313 F.3d 305, 313 n.8 (5th Cir. 2002) ("A number of courts have held that the standard to be applied in a Rule 12(c) motion is identical to that used in a Rule 12(b)(6) motion." (citation omitted) (internal quotation marks omitted)).

"In deciding a Rule 12(b)(6) motion to dismiss, the court evaluates the sufficiency of [plaintiff's] complaint by ‘accept[ing] all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff.’ " Bramlett v. Med. Protective Co. of Fort Wayne, Ind. , 855 F.Supp.2d 615, 618 (N.D. Tex. 2012) (Fitzwater, C.J.) (second alteration in original) (internal quotation marks omitted) (quoting In re Katrina Canal Breaches Litig. , 495 F.3d 191, 205 (5th Cir. 2007) ). To survive a motion to dismiss, Vess must plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). "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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (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, 127 S.Ct. 1955 ("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 has alleged—but it has not ‘shown’—‘that the pleader is entitled to relief.’ " Iqbal , 556 U.S. at 679, 129 S.Ct. 1937 (quoting Rule 8(a)(2)) (alteration omitted). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. at 678, 129 S.Ct. 1937 (citation omitted).

III

The court considers first whether Cox is entitled to judgment on the pleadings dismissing Vess's Fourth Amendment and Fourteenth Amendment excessive force claims brought under § 1983 based on qualified immunity.

A

"[G]overnment officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald , 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982).¹¹ Qualified immunity applies to state officials, as here, sued for constitutional violations under § 1983. See id. at 818 n.30, 102 S.Ct. 2727 (citing Butz v. Economou , 438 U.S. 478, 504, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978) ); Palmer v. Johnson , 193 F.3d 346, 351 (5th Cir. 1999). "The Supreme Court has characterized the doctrine as protecting ‘all but the plainly incompetent or those who knowingly violate the law.’ " Cozzo v. Tangipahoa Parish Council—President Gov't , 279 F.3d 273, 284 (5th Cir. 2002) (quoting Malley v. Briggs , 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986) ).

To decide whether Cox is entitled to qualified immunity, the court performs a two-pronged analysis.¹² Mitchell v. Mills , 895 F.3d 365, 369 (5th Cir. 2018). It begins with the question whether, taken in the light most favorable to plaintiff as the party asserting the injury, the facts he has alleged show that the defendant's conduct violated a constitutional right. Ellis v. Crawford , 2005 WL 525406, at *3 (N.D....