Opinion
Civil Action No: SA-04-CA-0363-XR.
September 17, 2004
ORDER
On this date, the Court considered Defendant's Motion to Dismiss. Plaintiff has sued Defendant for use of excessive force in violation of her constitutional rights and for various state law torts. Defendant has moved for dismissal based on qualified immunity. After consideration of the Defendant's motion and Plaintiff's response, the Court is of the opinion that the motion should be DENIED. (docket no. 3).
I. Standard of Review
A. Motion to Dismiss
Defendant has filed a motion to dismiss. In considering a motion to dismiss, the Court must accept all well-pleaded facts as true and view them in the light most favorable to the plaintiff. Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996). The Court must accept the plaintiff's well-pleaded facts as true, even where the defendant has pleaded contradictory facts. Id. The issue is not whether the plaintiff will prevail but whether the plaintiff is entitled to pursue its complaint and offer evidence in support of its claims. Doe v. Hillsboro Indep. Sch. Dist., 81 F.3d 1395, 1401 (5th Cir. 1996). The Court may not look beyond the pleadings in ruling on the motion. Baker, 75 F.3d at 196. Motions to dismiss are disfavored and are rarely granted. Beanal v. Freeport-McMoran, Inc., 197 F.3d 161, 164 (5th Cir. 1999). Dismissal should not be granted "`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.'" Id. at 164 (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). However, the Court does not accept conclusory allegations or unwarranted deductions of fact as true. Tuchman v. DSC Communications Corp., 14 F.3d 1061, 1067 (5th Cir. 1994).
Defendant mistakenly refers to the motions to dismiss as a motion pursuant to Rule 12(b)(6). The motion is, however, properly considered a Rule 12(c) motion for judgment on the pleadings, as Defendant has previously filed his answer. See FED R. CIV. P. 12(b) ("A motion making any of these defenses shall be made before pleading if a further pleading is permitted."); FED. R. CIV. P. 12(c) ("After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings."). Pursuant to Rule 12(h)(2), the Court will treat the motion as a proper motion for judgment on the pleadings. Puckett v. United States, 82 F. Supp. 2d 660, 663 (S.D. Tex. 1999); CHARLES ALAN WRIGHT ARTHUR R. MILLER, 5C FEDERAL PRACTICE AND PROCEDURE § 1361 (2004). The legal standards for granting or denying Rule 12(c) and Rule 12(b)(6) motions are identical. GEOFFREY C. HAZARD, JR., COLIN C. TAIT, WILLIAM A. FLETCHER, PLEADING AND PROCEDURE 1001 (1999). For the sake of convenience, however, the motion will be referred to as a "motion to dismiss."
B. Qualified Immunity
Where a defendant asserts qualified immunity as a defense in a motion to dismiss, the plaintiff must plead more than conclusory allegations. She must plead specific conduct and actions giving rise to a constitutional violation. Baker, 75 F.3d at 195. In the context of an officer's use of alleged excessive force, the plaintiff must set forth specific facts showing that the use of force by the officer was excessive to the need and objectively unreasonable. Id.
II. Factual Allegations
As noted above, at the motion to dismiss stage, the Court accepts all of Plaintiff's factual allegations as true and ignores all of Defendant's contrary allegations. Plaintiff alleges that she was the passenger in a vehicle stopped at a gas station in San Antonio. When she exited the vehicle, she was confronted by Defendant, a San Antonio Police Officer. Defendant ordered Plaintiff to show her driver's license and when Plaintiff did not initially comply, Defendant placed his hand on his gun. As Defendant approached, Plaintiff dialed 911 and was instructed by the dispatcher to follow the officer's instructions. Plaintiff alleges that when she attempted to return to the car to retrieve her license, Defendant twice threw her against the car in which she had been a passenger and then twice threw her against Defendant's patrol car. Plaintiff alleges that during the incident, Defendant made inappropriate physical contact with her. Defendant then allegedly grabbed the back of Plaintiff's neck, shoved her head onto the hood of the patrol car and handcuffed her. He then arrested Plaintiff and took her to the police station. During the walk across the parking lot to the police station, Plaintiff alleges that Defendant pulled Plaintiff's arms up behind her using the chain holding the handcuffs, to the extent that it injured Plaintiff's shoulders. Plaintiff asserts that she has received injuries to her arms, wrists, knee, and other parts of her body. She also asserts that she has suffered and continues to suffer from physical pain and mental anguish, loss of earnings and earning capacity, and other damages. Plaintiff filed this 42 U.S.C. § 1983 claim, as well as state law tort claims. Plaintiff rests jurisdiction on 28 U.S.C. § 1331, federal question jurisdiction, even though there is diversity of citizenship, as Plaintiff is a citizen of Rhode Island and Defendant is a citizen of Texas.III. Analysis
Defendant asserts that he is entitled to dismissal based on qualified immunity. He also asserts that he is immune from suit under the state law claims based on the Texas Tort Claims Act, TEX. CIV. PRAC. REM. CODE § 101.106.
A. Qualified Immunity
Dismissal based on qualified immunity can only be supported by the allegations of the complaint itself. Baker, 75 F.3d at 197. Where a defendant asserts qualified immunity, the complaint should generally not be dismissed for failure to state a claim because the issue of whether immunity applies is a factual question related to the merits. Scheuer v. Rhodes, 416 U.S. 232, 250 (1974). However, the Court should decide the matter of qualified immunity "at the earliest possible stage in litigation." Hunter v. Bryant, 502 U.S. 224, 227 (1991).
Qualified immunity protects "all but the plainly incompetent or those who knowingly violate the law." Malley v. Briggs, 475 U.S. 335, 341 (1986). Qualified immunity protects an officer whose conduct was objectively reasonable, even if the conduct infringed upon a constitutional right of the plaintiff. Anderson v. Creighton, 483 U.S. 635, 640 (1987). Examination of an officer's qualified immunity defense is a two-step process. First, the Court must determine whether the plaintiff has alleged a violation of a clearly established constitutional right. Siegert v. Gilley, 500 U.S. 226, 231 (1991). Second, if the right is clearly established, the Court then examines the objective legal reasonableness of the official's conduct under the circumstances, "in light of clearly established law and the information the . . . officer possessed" at the time. Anderson, 483 U.S. at 640.
Plaintiff alleges that Defendant has violated her constitutional right to be free from excessive force. The Fourth Amendment's prohibition of the use of excessive force by the police against seized persons is a clearly established right. Gutierrez v. City of San Antonio, 139 F.3d 441 (5th Cir. 1998). Plaintiff's factual allegations are sufficient to establish a violation of her constitutional right to be free from excessive force. Plaintiff alleges that she was thrown against two cars by Defendant, that Defendant made inappropriate physical contact, and that Defendant pulled Plaintiff's arms up behind her using the chain holding the handcuffs, to the extent that Plaintiff's shoulders were injured. Assuming at this point that those allegations are true, and ignoring all of Defendant's allegations to the contrary, Plaintiff has sufficiently pled a violation of her clearly established constitutional rights.
To determine the objective reasonableness of Defendant's alleged conduct, the Court must examine whether a "reasonable officer could have believed [his conduct] to be lawful, in light of clearly established law and the information the . . . officer possessed." Anderson, 483 U.S. at 641. The Court must pay "careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect pose[d] an immediate threat to the safety of the officer or others, and whether [she was] actively resisting arrest or attempting to evade arrest by flight." Graham v. Connor, 480 U.S. 386, 396 (1989). As alleged in Plaintiff's Complaint, Defendant's actions would not be objectively reasonable. Given the state of affairs between the parties at the time Plaintiff was allegedly injured, no reasonable officer would have believed Defendant's alleged conduct to be lawful. Cf. Heitschmidt v. City of Houston, 161 F.3d 834, 839-40 (5th Cir. 1998) (holding that officers' failure to loosen handcuffs once police secured the premises, resulting in allegations of serious and permanent injury, was sufficient to state a claim for excessive force against a motion to dismiss).
B. Texas Tort Claims Act
Defendant also claims he is immune from suit for the state law tort claims under the Texas Tort Claims Act. He points to section 101.106(f), which states,
If a suit is filed against an employee of a governmental unit based on conduct within the general scope of that employee's employment and if it could have been brought under this chapter against the governmental unit, the suit is considered to be against the employee in the employee's official capacity only. On the employee's motion, the suit against the employee shall be dismissed unless the Plaintiff files amended pleadings dismissing the employee and naming the governmental unit on or before the thirtieth day after the day the motion is filed.
Plaintiff in response points to section 101.057(2), which states that the Texas Tort Claims Act does not apply to a claim "arising out of assault, battery, false imprisonment, or any other intentional tort." Plaintiff's allegations are sufficient to allege an intentional tort against Defendant. Texas courts have consistently held that claims of excessive force by police officers sound in intentional tort and that the governmental unit is not liable under the Texas Tort Claims Act. See, e.g, Tex. Dep't of Pub. Safety v. Petta, 44 S.W.3d 575, 580 (Tex. 2001) (holding a claim that officer was negligent in ignoring police procedure was an intentional tort for purposes of the Texas Tort Claims Act); City of Laredo v. Nuno, 94 S.W.3d 786 (Tex.App. — San Antonio 2002, no pet.) (holding that a claim for excessive force is an intentional tort that is not actionable under the Texas Tort Claims Act).
IV. Conclusion
Defendant has moved for dismissal based on his defense of qualified immunity. Because Plaintiff's allegations are sufficient to state that her clearly established constitutional rights were violated and that Defendant's conduct was objectively unreasonable based on the circumstances, Defendant is not entitled to dismissal. Defendant is similarly not entitled to dismissal based on immunity under the Texas Tort Claims Act because Plaintiff's allegations are sufficient to allege an intentional tort. Accordingly, Defendant's Motion to Dismiss is DENIED. (docket no. 3) After sufficient time for discovery on the issue of Defendant's entitlement to qualified immunity, the Court is prepared to revisit the issue on motion for summary judgment.