Opinion
CAUSE NO. EP-22-CV-225-KC
10-26-2023
Debbie NAVEJAS, as representative of the Estate of Armando Navejas, Plaintiff, v. Officer S. JASO, Sgt. Silva, and City of El Paso, Texas, Defendants.
Brock Morgan Benjamin, El Paso, TX, Gabriel S. Perez, Law Office of Gabriel S. Perez, PLLC, El Paso, TX, for Plaintiff. Matt Marquez, Evan Daine Reed, El Paso City Attorney's Office, El Paso, TX, Eric M. Brittain, Windle Hood Norton Brittain & Jay LLP, El Paso, TX, for Defendant City of El Paso. M. Mitchell Moss, Moss Legal Group, PLLC, El Paso, TX, for Defendant S. Jaso. James O. Darnell, Sr., Cris Estrada, James (Jeep) O. Darnell, Jr., Jim Darnell, P.C., El Paso, TX, for Defendant Sgt. Silva.
Brock Morgan Benjamin, El Paso, TX, Gabriel S. Perez, Law Office of Gabriel S. Perez, PLLC, El Paso, TX, for Plaintiff.
Matt Marquez, Evan Daine Reed, El Paso City Attorney's Office, El Paso, TX, Eric M. Brittain, Windle Hood Norton Brittain & Jay LLP, El Paso, TX, for Defendant City of El Paso.
M. Mitchell Moss, Moss Legal Group, PLLC, El Paso, TX, for Defendant S. Jaso.
James O. Darnell, Sr., Cris Estrada, James (Jeep) O. Darnell, Jr., Jim Darnell, P.C., El Paso, TX, for Defendant Sgt. Silva.
ORDER
Kathleen Cardone, Judge.
On this day, the Court considered Defendant Officer S. Jaso's Motion to Dismiss (the "Jaso Motion"), ECF No. 40, and Defendant Sgt. Silva's Motion to Dismiss (the "Silva Motion"), ECF No. 39. For the
following reasons, the Motions are GRANTED.
I. BACKGROUND
This civil rights case arises from the tasing of Armando Navejas by members of the El Paso Police Department ("EPPD"). The following facts are derived from Plaintiff Debbie Navejas' First Amended Complaint ("FAC"), ECF No. 38, and are taken as true for purposes of adjudicating the Motions to Dismiss. See Calhoun v. Hargrove, 312 F.3d 730, 733 (5th Cir. 2002).
Around 10:00 p.m. on October 24, 2021, Armando Navejas' wife called the EPPD to ask for help locating her husband. FAC ¶ 13. Mr. Navejas, who was seventy years old and suffered from Dementia and Alzheimer's, "had wandered away from home." FAC ¶¶ 13, 14. This was at least the fourth time that Mr. Navejas' family had called the EPPD seeking assistance because Mr. Navejas had left home unaccompanied. FAC ¶ 16. Despite this history, EPPD did not deploy its Crisis Intervention Team. FAC ¶ 17.
Nearly four hours after Mrs. Navejas made the call, "police located Mr. Navejas walking down his own street wearing only shorts and socks." FAC ¶ 13. The responding police officers were Jaso and Silva. FAC ¶¶ 15, 17. A confrontation arose between the officers and Mr. Navejas outside of the Navejas home. FAC ¶ 15. Jaso followed Mr. Navejas "with an extremely bright flashlight in [his] face." Id. Mr. Navejas then picked up "some sort" of plant and threw it "towards a parked car." Id. "It is at this point that an El Paso Police Officer is seen in the video circulating on the internet deploying their taser thereby causing Mr. Navejas to fall on his face." Id. Plaintiff states that "Silva was the other [EPPD] officer on the scene and failed to intervene," FAC ¶ 17 (emphasis added), which implies that Jaso was the one who used a taser on Mr. Navejas. But Plaintiff later states, "It is unknown as to the exact identity of the El Paso Police Officer responsible for tasing the decedent, but [it was] either Officer Jaso or Sgt. Silva." FAC ¶ 27.
Elsewhere, Plaintiff includes the following nebulous allegation regarding Jaso and Silva's respective roles in the incident: "Defendants Jaso and Silva, both of whom participated in the unlawful deployment of the taser, (Defendant Jaso), and the restraint of [Mr. Navejas] by Defendant Silva." FAC ¶ 29.
Mr. Navejas, who weighed approximately 130 pounds at the time of the incident, FAC ¶ 14, immediately "sustained road rash to his face, and both arms, left hand pain and a broken eye socket," FAC ¶ 18. He received treatment until he died in March 2022, from complications of his injuries. FAC ¶¶ 18, 21. Later, Jaso and Silva produced an incident report claiming that they were responding to a "domestic incident," in which Mrs. Navejas had been assaulted. FAC ¶ 29. But Plaintiff alleges that incident report contained false information. Id. There was no assault on Mrs. Navejas, and there was no domestic disturbance—EPPD officers were responding to a call for help by Mrs. Navejas because Mr. Navejas had wandered away from home. Id.
Plaintiff—the Navejases' daughter—filed this lawsuit as the representative of Mr. Navejas' estate, bringing claims against Jaso, Silva, and the City of El Paso. FAC ¶¶ 6-8. In the FAC, Plaintiff brings five claims. FAC ¶¶ 24-45. The first claim alleges that "Defendants deprived [Mr. Navejas] of his right to be free of unreasonable search and seizure of his person under the Fourth and Fourteenth Amendments to the United States Constitution," as actionable through 42 U.S.C.
Mrs. Navejas also passed away some time after October 24, 2021. FAC ¶¶ 13, 29.
§ 1983. FAC ¶¶ 24-27. The second claim is for "Conspiracy," alleging that Defendants agreed to violate Mr. Navejas' rights, as described in the first claim, and also that they agreed to attempt to "cover up the battery." FAC ¶¶ 28-30. The third, fourth, and fifth claims are against the City only. FAC ¶¶ 31-45.
The City filed an Answer, ECF No. 49. After Jaso and Silva (the "Officers") filed their Motions to Dismiss, Plaintiff filed a Response to the Silva Motion, ECF No. 41, and a Response to the Jaso Motion, ECF No. 43. The Officers each filed a Reply. Silva Reply, ECF No. 42; Jaso Reply, ECF No. 44.
II. DISCUSSION
A. Standards
1. Rule 12(b)(6)
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 all well-pleaded facts as true and view them in the light most favorable to the plaintiff." Calhoun, 312 F.3d at 733; 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, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (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, 127 S.Ct. 1955 (citation and internal quotation marks omitted); Colony Ins. Co., 647 F.3d at 252. 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, 127 S.Ct. 1955 (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, 127 S.Ct. 1955 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974)).
2. Qualified Immunity
The doctrine of qualified immunity shields government officials from liability "so long as their conduct 'does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" Lincoln v. Turner, 874 F.3d 833, 847 (5th Cir. 2017) (quoting Mullenix v. Luna, 577 U.S. 7, 11, 136 S.Ct. 305, 193 L.Ed.2d 255 (2015)). "When a defendant invokes qualified immunity, the burden shifts to the plaintiff to demonstrate" that the defense does not apply. Id. (quoting Club Retro, L.L.C. v. Hilton, 568 F.3d 181, 194 (5th Cir. 2009)). A plaintiff seeking to defeat qualified immunity must show "(1) that the official violated a statutory or constitutional right, and (2) that the right was 'clearly established' at the time of the challenged conduct." Id. at 847-48 (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 735, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011)).
A clearly established right is one that is "sufficiently clear that every reasonable official would have understood that what he is doing violates that right." Id. at 848 (quoting Reichle v. Howards, 566 U.S.
658, 664, 132 S.Ct. 2088, 182 L.Ed.2d 985 (2012)). This inquiry "does not require a case directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate." Id. (quoting al- Kidd, 563 U.S. at 741, 131 S.Ct. 2074). The law can be clearly established despite "notable factual distinctions between the precedents relied on and the cases then before the Court, so long as the prior decisions gave reasonable warning that the conduct then at issue violated constitutional rights." Id. (quoting Flores v. City of Palacios, 381 F.3d 391, 399 (5th Cir. 2004)).
B. Analysis
The Officers argue that they are entitled to dismissal of all of Plaintiff's claims against them on qualified immunity grounds. Jaso Mot. 9; Silva Mot. 12. First, they argue that they are entitled to qualified immunity from Plaintiff's claim that they used excessive force against Mr. Navejas. Silva Mot. 9-11; Jaso Mot. 5-8. Second, they argue that they are entitled to qualified immunity from the associated conspiracy claim. Silva Mot. 11-12; Jaso Mot. 8-9.
Both Officers construe Plaintiff's first claim—for deprivation of Mr. Navejas' "right to be free of unreasonable search and seizure of his person under the Fourth and Fourteenth Amendments," FAC ¶ 26—as multifaceted. See Jaso Mot. 5-8 (arguing for dismissal of "unreasonable search and seizure," "excessive force," and "denial of due process" claims in count one); Silva Mot. 6-11 (arguing for dismissal of "unlawful seizure" and "excessive force" claims in count one). Count one is certainly pled opaquely. See FAC ¶¶ 24-27. But Plaintiff's Responses clarify any confusion—count one brings only an excessive force claim against both Officers. See generally Resp. Jaso Mot. (arguing only that Plaintiff has alleged a viable excessive force claim); Resp. Silva Mot. (same).
1. Excessive Force
The thrust of each Officer's argument for dismissal of the excessive force claim is the same: Plaintiff fails to allege that either Officer took any specific action that amounted to excessive force. Jaso Mot. 6 ("Plaintiff never refers to any specific actions committed by any officer of the El Paso Police Department besides stating that Officer Jaso followed Mr. Navejas with a flashlight."); Silva Mot. 10 ("Plaintiff fails to allege any facts in which Sgt. Silva was involved in any action towards [Mr. Navejas.]"). Both Officers emphasize Plaintiff's allegation in the First Amended Complaint that she does not know which Officer tased Mr. Navejas. Silva Mot. 9 ("It is unknown as to the exact identity of the El Paso Police Officer responsible for tasing [Mr. Navejas], but either [Jaso or Silva] wrongfully committed [b]attery upon [Mr. Navejas]." (quoting FAC ¶ 27)); see also Jaso. Mot. 2 ("Plaintiff admits that the [identity] of the El Paso Police Officer who tased Mr. Navejas is unknown."). Plaintiff does not engage with these arguments in her Response briefing, arguing only that "the Defendants"—collectively—violated his clearly established constitutional rights when they "illegally tased him." See, e.g., Resp. Silva Mot. 5. The closest Plaintiff comes to responding to the Officers' arguments is the conclusory statement that "[t]hey both, collectively and individually, used excessive force in tasing [Mr. Navejas]." Resp. Jaso Mot. 4.
In a § 1983 action, the conduct of each defendant official must be considered individually. Meadours v. Ermel, 483 F.3d 417, 421 (5th Cir. 2007) (citing Stewart v. Murphy, 174 F.3d 530, 537 (5th Cir. 1999)); see also Cope v. Cogdill, 3 F.4th 198, 207 n.7 (5th Cir. 2021) (noting where it was "unclear exactly [which officer] was responsible for each decision" that the "plaintiff must [show] that each Government-official defendant, through the official's own individual actions, has violated
the Constitution"); Shefeik v. Busby, 836 F. App'x 315, 317 n.1 (5th Cir. 2021) ("We consider qualified immunity as to each defendant individually." (citations omitted)).
At one time, the Fifth Circuit countenanced "a careful procedure," whereby a district court could "defer its qualified immunity ruling if further factual development [was] necessary to ascertain the availability of that defense." Carswell v. Camp, 54 F.4th 307, 311 (5th Cir. 2022) (quoting Zapata v. Melson, 750 F.3d 481, 485 (5th Cir. 2014)). Under that line of cases, courts approached motion-to-dismiss-stage assertions of qualified immunity from unparticularized allegations of unconstitutional conduct against multiple officers in two steps. See Sinegal v. City of El Paso, 414 F. Supp. 3d 995, 1004 (W.D. Tex. 2019) (collecting cases). First, they "determin[ed] whether the alleged actions—regardless of which defendant took them—would state a claim for a constitutional violation." Id. (first citing Dyer v. City of Mesquite, No. 15-cv-2638, 2017 WL 118811, at *3-4 (N.D. Tex. Jan. 12, 2017); and then citing Khansari v. City of Houston, 14 F. Supp. 3d 842, 854-60 (S.D. Tex. 2014)). Second, if the plaintiff had plausibly alleged that unconstitutional acts had been done by some officer, courts authorized narrow discovery tailored to ascertaining which defendant did what. Id. at 1004-05 (citing Khansari, 14 F. Supp. 3d at 861).
In 2022, the Fifth Circuit held that this and similar procedures had been abrogated by an intervening Supreme Court decision. See Carswell, 54 F.4th at 312 ("[W]here the pleadings are insufficient to overcome [qualified immunity], the district court must grant the motion to dismiss without the benefit of pre-dismissal discovery."). The Court is sympathetic to the notion that "a § 1983 plaintiff who alleges mistreatment at the hands of a group of officers may not yet be able to describe with particularity the actions taken by each of them individually." Sinegal, 414 F. Supp. 3d at 1004 (citations omitted). Such considerations are particularly apt here, where Mr. Navejas, who appears to be the only person other than the Officers who could give a first-hand account of what happened, has died. Nevertheless, even where it is "unclear exactly [which officer] was responsible for each decision," a "plaintiff must [ultimately show] that each Government-official defendant, through the official's own individual actions, has violated the Constitution." Cope, 3 F.4th at 207 n.7 (citing Iqbal, 556 U.S. at 675, 129 S.Ct. 1937). And at the motion-to-dismiss stage, the plaintiff must plausibly allege as much. See Carswell, 54 F.4th at 312.
Plaintiff has not sufficiently alleged that either Officer, individually, violated the Constitution. While Plaintiff twice appears to imply that Jaso tased Mr. Navejas, see FAC ¶¶ 17, 29, Plaintiff never clearly alleges that either Jaso or Silva tased Mr. Navejas or otherwise used force against him. Instead, she alleges that "the exact identity" of the tasing officer is "unknown." FAC ¶ 27. This does not suffice to show that either Officer violated Mr. Navejas' constitutional rights through his own individual actions. See Cope, 3 F.4th at 207 n.7. And Plaintiff does not engage with the Officers' arguments whatsoever in her response briefing, much less explain any specific unconstitutional actions that either Officer, individually, is alleged to have taken. Therefore, the Court "must grant the motion to dismiss without the benefit of
Plaintiff's allegation that Silva "failed to intervene" could be construed to bring a claim for bystander liability against Silva, implying that the claim for excessive force for the tasing itself is against Jaso. See FAC ¶ 17; See, e.g., Whitley v. Hanna, 726 F.3d 631, 647 (5th Cir. 2013) ("The rationale underlying the by-stander liability theory is that a by-standing officer, by choosing not to intervene, functionally participates in the unconstitutional act of his fellow officer." (quoting Randall v. Prince George's Cnty., 302 F.3d 188, 204 n.24 (4th Cir. 2002))). But Plaintiff has made no such argument in her briefing. See generally Resp. Jaso Mot; Resp. Silva Mot. Nor has she alleged sufficient facts regarding whether Silva had a reasonable opportunity to intervene. See Whitley, 726 F.3d at 646 (citing Randall, 302 F.3d at 204). Thus, to the extent Plaintiff has brought a bystander liability claim against Silva, that claim is dismissed without prejudice and with leave to amend in compliance with the deadlines below.
pre-dismissal discovery." See Carswell, 54 F.4th at 312.
2. Conspiracy
The Officers next argue that they are entitled to qualified immunity from Plaintiff's conspiracy claim because Plaintiff has only made conclusory allegations without reference to any material facts to show that the Officers conspired. See, e.g., Jaso Mot. 8-9. Plaintiff does not make any argument to the contrary—indeed she does not mention her conspiracy claim whatsoever in her response briefs. See generally Resp. Silva Mot; Resp. Jaso Mot. "When a defendant invokes qualified immunity, the burden shifts to the plaintiff to demonstrate" that the defense does not apply. See Lincoln, 874 F.3d at 847 (quoting Club Retro, 568 F.3d at 194). Plaintiff's complete failure to engage with the Officers' arguments that they are entitled to qualified immunity from the conspiracy claim, in and of itself, warrants dismissal of that claim. See id. at 847-48.
In any event, a § 1983 conspiracy claim requires a plaintiff to prove "the existence of a conspiracy involving state action," as well as "a deprivation of civil rights in furtherance of the conspiracy by a party to the conspiracy." Morales v. Carrillo, 625 F. Supp. 3d 587, 598 (W.D. Tex. 2022) (quoting Shaw v. Villanueva, 918 F.3d 414, 419 (5th Cir. 2019)). Even if the Court were to assume that Plaintiff's allegations that "Defendants made an agreement to attempt to cover up the battery so as to avoid liability," FAC ¶ 29, sufficed to allege the existence of a conspiracy, Plaintiff has not alleged a deprivation of civil rights in furtherance of that conspiracy. Plaintiff does not allege that the Officers conspired to use excessive force against Mr. Navejas, nor that they conspired to falsely arrest him, bring false charges against him, or otherwise violate his constitutional rights. See id. Plaintiff alleges only that they conspired to "cover up" their use of force. Id. However reprehensible it may be to falsify reports in an attempt to escape civil liability, Plaintiff does not explain how this alleged conduct deprived Mr. Navejas of any constitutional right. And the weight of authority suggests that, without more, it does not. See, e.g., Bright v. City of Killeen, 532 F. Supp. 3d 389, 401 (W.D. Tex. 2021) ("Allegations that the officers conspired to cover-up misconduct after the police raid does not alone point to a constitutional violation of [the decedent's] rights."); Vanderburg v. Harrison County, 716 F. Supp. 2d 482, 490-91 (S.D. Miss. 2010) (rejecting a similar claim absent showing of lost opportunity to seek relief for underlying excessive force claim in court due to cover-up). Therefore, Plaintiff's conspiracy claim is dismissed.
3. Leave to Amend
Having determined that Plaintiff's claims against the Officers must be dismissed, the Court considers whether Plaintiff should be given leave to amend her First Amended Complaint. Courts "should freely give leave [to amend] when justice so requires." Fed. R. Civ. P.
Rule 15's "freely given" standard—not Rule 16's "good cause" standard—applies here because the Court has not yet issued a scheduling order. See Jan. 31, 2023, Order, ECF No. 33 (finding good cause to delay issuance of a scheduling order pending resolution of the Motions to Dismiss); S&W Enters., L.L.C. v. SouthTrust Bank of Ala., NA, 315 F.3d 533, 535-36 (5th Cir. 2003).
15(a)(2). But courts may properly deny leave to amend "for a substantial reason, such as undue delay, repeated failures to cure deficiencies, undue prejudice, or futility." United States ex rel. Spicer v. Westbrook, 751 F.3d 354, 367 (5th Cir. 2014) (citing United States ex rel. Steury v. Cardinal Health, Inc., 625 F.3d 262, 270-71 (5th Cir. 2010)). Amendment is futile when "the amended complaint would fail to state a claim upon which relief could be granted." Stripling v. Jordan Prod. Co., 234 F.3d 863, 873 (5th Cir. 2000) (collecting cases). That is, "to determine futility, [courts] apply the same standard of legal sufficiency as applies under Rule 12(b)(6)." Id. (collecting cases) (internal quotation marks omitted).
For the reasons discussed above, the deficiencies necessitating dismissal of Plaintiff's claims could be cured with additional factual allegations. Therefore, the Court grants leave to amend the First Amended Complaint with respect to all claims dismissed in this Order.
III. CONCLUSION
For the foregoing reasons, the Silva Motion, ECF No. 39 is GRANTED. All of Plaintiff's claims against Defendant Sgt. Silva are DISMISSED without prejudice.
IT IS FURTHER ORDERED that the Jaso Motion, ECF No. 40, is GRANTED. All of Plaintiff's claims against Defendant Officer S. Jaso are DISMISSED without prejudice.
IT IS FURTHER ORDERED that Plaintiff may FILE a Second Amended Complaint, on or before November 9, 2023, in which she may replead her dismissed claims.
SO ORDERED.