Opinion
CIVIL H-23-21
05-15-2023
ASHLEY MARIE ABELAR, Plaintiff, v. HARRIS COUNTY, TEXAS, LATOYA S. BRYANT, WALMART, INC., and AXON ENTERPRISE, INC., Defendants.
MEMORANDUM AND OPINION
Lee H. Rosenthal United States District Judge
In January 2021, a Harris County Sheriff's Deputy, Latoya Bryant, working a second job as a loss protection officer at Walmart, detained Ashley Abelar for suspected shoplifting. Abelar alleges that, after she followed Deputy Bryant's instructions to accompany her to an office on the premises, Deputy Bryant became violent. Abelar alleges that Deputy Bryant pushed Abelar against the wall and brandished a gun in Abelard's face, then tased Abelar. According to Abelar, Deputy Bryant discharged her taser for about a minute and a half, leaving burn marks on Abelar's legs and hands. Abelar sues Deputy Bryant, Harris County, and Walmart for allegedly violating her civil rights. Abelar sues Axon for the allegedly defective design and manufacture of the taser weapon used. (Docket Entry No. 1). Harris County, Walmart, and Axon have moved to dismiss.(Docket Entry Nos. 8, 13). Abelar did not respond to the defendants' motions, but she has moved to amend her complaint. (Docket Entry No. 28). Walmart and Axon oppose Abelar's motion to amend. (Docket Entry Nos. 38, 40).
With respect to the rule announced in Morris, (Docket Entry No. 28-2 ¶ 4.6), it is not clear whether Deputy Bryant detained Abelar based on the deputy's own observations or at the direction of another Walmart employee. (See, e.g., Docket Entry No. 28-2 ¶ ¶ 4.6 (“Ms. Abelar . . . was stopped before she left the store by Harris County Sheriff's [Deputy] Latoya Bryant.”)). Deputy Bryant then escorted Abelar to an office. (Id. ¶ 4.7). Abelar alleges that “without cause or warning, Deputy Bryant pushed Ms. Abelar up against a wall and[,] brandishing her gun, Deputy Bryant then pulled her Axon TASERTM [out] and electrocuted Ms. Abelar in the chest.” (Id. ¶ 1.3). Viewed in the light most favorable to Abelar, the complaint alleges conduct for which Walmart may be held liable.
III. Conclusion
The court grants the defendants' motions to dismiss, without prejudice. (Docket Entry Nos. 6, 8, 13). Abelar's motion for leave to file a response to the motions to dismiss the original complaint, (Docket Entry No. 42), is denied.
Abelar's proposed amended complaint, (Docket Entry No. 28-2), does not cure the original complaint deficiencies with respect to the claims against Harris Country or the manufacturing-defect claim against Axon. Unless Abelar further amends her complaint, she may not replead those claims. The court grants the motion for leave to amend. (Docket Entry No. 28). Abelar must file her amended complaint by June 16, 2023.