Barnes v. City of El Paso

Full title: Anna BARNES, Plaintiff, v. CITY OF EL PASO et al., Defendants.

Court: United States District Court, W.D. Texas, El Paso Division

Date published: Jun 12, 2023

677 F. Supp. 3d 594 (W.D. Tex. 2023)

Opinion

CAUSE NO. EP-22-CV-161-KC

2023-06-12

Anna BARNES, Plaintiff, v. CITY OF EL PASO et al., Defendants.

Alexander C. Johnson, Pro Hac Vice, Randall L. Kallinen, Kallinen Law PLLC, Houston, TX, for Plaintiff. Carlos Gomez Baca, Jr., Maria Guadalupe Martinez, Michael Kyle Lasley, El Paso City Attorney's Office, El Paso, TX, Mathew Jacob Engelbaum, DOJ-USAO, El Paso, TX, for Defendants City of El Paso, Texas, Gregory K. Allen. James O. Darnell, Sr., Cris Estrada, James (Jeep) O. Darnell, Jr., Jim Darnell, P.C., El Paso, TX, Maria Guadalupe Martinez, El Paso City Attorney's Office, El Paso, TX, for Defendants Oliver Meise, Jarred Frank.

Kathleen Cardone, Judge

Alexander C. Johnson, Pro Hac Vice, Randall L. Kallinen, Kallinen Law PLLC, Houston, TX, for Plaintiff. Carlos Gomez Baca, Jr., Maria Guadalupe Martinez, Michael Kyle Lasley, El Paso City Attorney's Office, El Paso, TX, Mathew Jacob Engelbaum, DOJ-USAO, El Paso, TX, for Defendants City of El Paso, Texas, Gregory K. Allen. James O. Darnell, Sr., Cris Estrada, James (Jeep) O. Darnell, Jr., Jim Darnell, P.C., El Paso, TX, Maria Guadalupe Martinez, El Paso City Attorney's Office, El Paso, TX, for Defendants Oliver Meise, Jarred Frank. ORDER Kathleen Cardone, Judge

On this day, the Court considered Defendants City of El Paso and Greg Allen's Motion to Dismiss ("City Motion"), ECF No. 20; Defendant Jarred Frank's Motion to Dismiss ("Frank Motion"), ECF No. 21; and Defendant Oliver Meise's Motion to Dismiss ("Meise Motion"), ECF No. 36 (collectively, the "Motions"). For the reasons set forth below, the City Motion is GRANTED IN PART and DENIED IN PART, the Frank Motion is GRANTED, and the Meise Motion is GRANTED.

I. BACKGROUND

The following facts are derived from Plaintiff Anna Barnes' First Amended Complaint, ECF No. 18, and are taken as true to adjudicate the present Motions. See Calhoun v. Hargrove, 312 F.3d 730, 733-34 (5th Cir. 2002).

On August 27, 2021, Barnes was driving with her five children in the car. 1st Am. Compl. ¶¶ 16-18. She "had just left a stoplight" and was driving slowly when "a gust of wind came through the driver's side window and blew a lit cigarette ash onto her right arm." Id. ¶ 19. As Barnes brushed the ash from her arm, she accidentally drove over a curb and hit a small tree. Id. ¶ 20. The car's airbag did not deploy, and nobody was injured in the accident. Id. ¶¶ 21-22.

Two El Paso police officers, Defendants Frank and Meise, arrived at the scene a few minutes after the accident. Id. ¶ 24. The officers asked Barnes if she was the driver of the vehicle, and Barnes said yes. Id. ¶ 25. Frank then told Barnes to "go over to [ ] Meise[,] who was about twenty feet away." Id. ¶ 26. Meise told Barnes that "she was going to be arrested for [driving while intoxicated] with children in the car under the age of fifteen, a felony." Id. ¶ 27. "This was quite shocking" to Barnes, since no officer had administered any type of sobriety test, and Barnes was not intoxicated. Id.

Barnes started crying "due to the stress of the situation." Id. ¶ 28. Then, without provocation, Frank "came over and used a leg sweep on [Barnes'] legs," causing her to fall to the ground and sustain bruises to her right hip. Id. ¶ 29. Frank then rolled Barnes onto her stomach and put her in handcuffs. Id. Barnes continued to cry, which "seemed to irritate [ ] Frank." Id. ¶ 30. Frank then hit Barnes in the face twice while she was handcuffed. Id. ¶ 30. After Barnes "criticized the excessive force just inflicted upon her[,] Officer Frank started repeatedly striking [Barnes] in the face—over ten more times." Id. "Meise was holding onto [Barnes'] shoulder" while Frank repeatedly struck her. Id. Barnes did not resist the officers or act uncooperatively at any point during her encounter with the police. See id. ¶¶ 27-30.

El Paso EMS arrived and took Barnes to the hospital. Id. ¶ 32. At the hospital, Barnes was diagnosed with "multiple nasal fractures and other injuries." Id. ¶ 33. There is no indication that Barnes suffered any injury to her shoulders. See id. ¶¶ 29, 33, 38. Examinations, including a blood test, revealed that Barnes was sober. See id. ¶¶ 10-11, 33-34.

Based on these allegations, Barnes brought excessive force claims against Frank and Meise under 42 U.S.C. § 1983 and the Fourth and Fourteenth Amendments to the United States Constitution, as well as assault claims under Texas law. Id. ¶¶ 86-87, 92-93. Barnes also brought "bystander liability" claims against Frank and Meise, seeking to hold each officer liable for acquiescing to the other's violations of her constitutional rights. Id. ¶ 91. Finally, Barnes brought municipal and supervisory liability claims against the City of El Paso ("the City") and former El Paso Police Department ("EPPD") Chief Greg Allen (collectively, the "City Defendants"), arguing that their "customs, policies, practices, and procedures" proximately caused the deprivation of constitutional rights she suffered. Id. ¶¶ 88-90.

Each Defendant moves to dismiss some of the claims in Barnes' First Amended Complaint under Federal Rule of Civil Procedure 12(b)(6). See City Mot. 1; Frank Mot. 1; Meise Mot. 1. The City Defendants move to dismiss all claims against them. City Mot. 16. Frank asserts qualified immunity as to all claims but seeks dismissal of only the bystander liability claim against him. Frank Mot. ¶ 12. And Meise asserts qualified immunity as to all claims and seeks dismissal of the excessive force and assault claims against him. Meise Mot. ¶ 14.

II. DISCUSSION

A. Standard

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 well-pleaded facts as true and view them in a light most favorable to the plaintiff. Hargrove, 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. 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

1. Fourth Amendment excessive force claims

In their briefing, Frank and Meise clarify that they do not seek dismissal of all claims made against them at this stage.¹ See Frank Reply ¶¶ 2, 4, ECF No. 29; Meise Reply ¶¶ 2-4, ECF No. 40. Frank does not seek to dismiss Barnes' excessive force claim against him. See Frank Reply ¶ 4. And Meise does not seek to dismiss Barnes' bystander liability claim against him. Meise Reply ¶ 2. Put differently, Frank and Meise do not contest that Barnes' First Amended Complaint states a claim against both of them arising from Frank's alleged beating of Barnes and Meise's failure to intervene to stop it. See, e.g., Whitley v. Hanna, 726 F.3d 631, 647 (5th Cir. 2013) ("The rationale underlying the bystander liability theory is that a bystanding 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))).

1 Frank and Meise invoke "the doctrine of qualified immunity as to all claims made against [them]" in their Motions. Frank Mot. ¶ 6; Meise Mot. ¶ 6. But both defendants later explain that they simply invoked their entitlement to qualified immunity to preempt future waiver arguments. See Frank Reply ¶ 5, ECF No. 29 ("At this stage in of the proceedings, [ ] Frank has not waived his entitlement to qualified immunity."); Meise Reply ¶ 2, ECF No. 40 ("Meise raised the defense of qualified immunity as to all claims against him so that he could not be accused of failing to raise that defense at the earliest possible moment once the facts are developed."). Both Frank and Meise expressly state that their motions only seek dismissal of certain claims. See Frank Reply ¶ 4; Meise Reply ¶ 2.

Instead, the parties dispute whether Meise independently violated Barnes' constitutional rights. Barnes argues that Meise used excessive force when he held her by the shoulder as Frank struck her. See 1st Am. Compl. ¶¶ 30, 86-87; Pl.'s Resp. to Meise Mot. 5-11, ECF No. 37. And because Frank witnessed Meise's shoulder grab and failed to intervene, Barnes contends, Frank can be held liable for Meise's use of force as a bystander. See 1st Am. Compl. ¶ 91; Pl.'s Resp. to City & Frank Mots. 6, ECF No. 25. Frank and Meise dispute these contentions, mainly arguing that Meise's use of force in grabbing Barnes' shoulder did not, in and of itself, violate her constitutional rights. See Frank Reply ¶ 6; Meise Mot. ¶¶ 8-10; Meise Reply ¶ 9.

a. Meise's use of force

"To prevail on an excessive force claim, a plaintiff must show (1) an injury that (2) resulted directly and only from the use of force that was excessive to the need and that (3) the force used was objectively unreasonable." Sam v. Richard, 887 F.3d 710, 713 (5th Cir. 2018) (quoting Windham v. Harris Cnty., 875 F.3d 229, 242 (5th Cir. 2017) (internal quotation marks omitted)). Regarding the first element of an excessive force claim, "a de minimis injury is not cognizable" under § 1983. Id. (quoting Alexander v. City of Round Rock, 854 F.3d 298, 309 (5th Cir. 2017)). But "[a]ny force found to be objectively unreasonable necessarily exceeds the de minimis threshold." Id. (quoting Alexander, 854 F.3d at 309). Therefore, "as long as a plaintiff has suffered some injury, even relatively insignificant injuries and purely psychological injuries will prove cognizable when resulting from an officer's unreasonably excessive force." Id. (quoting Alexander, 854 F.3d at 309).

Here, Barnes has not alleged any injury that resulted directly and only from Meise's use of force. Meise allegedly held Plaintiff's shoulder. And none of her allegations suggest that she sustained even minor injuries to either shoulder during her encounter with Frank and Meise. While Barnes sustained cognizable physical and psychological injuries, see 1st Am. Compl. ¶¶ 33, 38, these injuries are attributable to Frank's striking of Barnes, rather than Meise's holding of Barnes' shoulder.² See id. ¶ 30 (discussing how Frank struck Barnes in the face "over ten times"); id. ¶ 33 (noting that Barnes suffered "multiple nasal fractures and other injuries"). As this Court has held previously, holding someone still while a fellow officer hits them may give rise to a claim for bystander liability, but not for direct liability, unless the plaintiff sustains an injury attributable to the holding itself. See Sinegal v. City of El Paso, No. EP-19-CV-107-KC, 2020 WL 13442013, at *12-13 (W.D. Tex. July 6, 2020). Since Barnes has not alleged that Meise's holding of her shoulder caused her to suffer any injury, her First Amended Complaint fails to state an excessive force claim against Meise directly. See Trammell v. Fruge, 868 F.3d 332, 343 n.9 (5th Cir. 2017) (finding that the plaintiff did not "rais[e] sufficient facts to allege an independent excessive force violation" when he merely accused the defendant of "attempt[ing] to grab [the plaintiff's] left arm").

2 This is not to say that a plaintiff may only sue an officer under § 1983 if that officer alone causes her injuries. On the contrary, the Fifth Circuit has recognized that "when a plaintiff suffers injuries at the hands of multiple officers for multiple reasons," the plaintiff can state a claim against an individual officer in the group by pleading that the officer's actions contributed to her harms. See Lincoln, 874 F.3d at 846-47. But in this case, Barnes' First Amended Complaint presents no allegations that plausibly link her injuries to Meise's shoulder grab. Compare id. (finding that the plaintiff pleaded causation when she alleged that an officer's specific actions "further traumatized" her), with 1st Am. Compl. ¶¶ 86-87 (generally asserting that Frank and Meise "intentionally us[ed] an objectively unreasonable and excessive amount of force," which "proximately caused [Barnes'] injuries").

b. Frank's bystander liability

An officer may be held liable for the actions of another on a theory of bystander liability when the officer "(1) knows that a fellow officer is violating an individual's constitutional rights; (2) has a reasonable opportunity to prevent the harm; and (3) chooses not to act." Whitley, 726 F.3d at 646 (quoting Randall, 302 F.3d at 204). It follows that an officer cannot be held liable on a theory of bystander liability if the third party's actions that he failed to prevent do not, themselves, amount to a constitutional rights violation. See Griffin v. City of Sugarland, 787 F. App'x 244, 245 (5th Cir. 2019) ("[B]ecause there was no violation of his constitutional rights, [the plaintiff's] bystander liability theory also fails." (citing Whitley, 726 F.3d at 646)).

For the reasons discussed above, Meise's independent use of force—holding Barnes' shoulder—was not excessive on its own. Barnes thus cannot proceed on a theory of bystander liability against Frank. See id. at 245.

Barnes argues in her briefing that Frank can be held liable for failing to intervene when Meise falsely arrested her. See Pl.'s Resp. to City & Frank Mots. 6 (citing 1st Am. Compl. ¶¶ 27-30). But Barnes' First Amended Complaint does not appear to assert a false arrest claim against Meise. See 1st Am. Compl. ¶¶ 86-92. Even if her factual allegations could support a false arrest claim, Barnes has not alleged that Frank knew a false arrest was taking place or had the ability to prevent it. See generally id. These deficiencies prevent Barnes' First Amended Complaint from stating a bystander liability claim against Frank for failure to prevent a false arrest. See Carr v. City of Spring Valley Vill., No. 19-20373, 2022 WL 1553539, at *4 (5th Cir. May 17, 2022) (citing Whitley, 726 F.3d at 646); Griffin, 787 F. App'x at 245.

2. State-law assault claim against Meise

Barnes' First Amended Complaint brings state-law assault claims against Frank and Meise in their individual capacities. 1st Am. Compl. ¶¶ 92-93. Meise moves to dismiss the state-law claim against him.³ Meise Mot. ¶ 14. Initially, Meise argued that he was entitled to qualified immunity on the assault claim. Meise Mot. ¶¶ 11-14. But when Barnes argued that qualified immunity did not apply to state-law claims, see Pl.'s Resp. to Meise Mot. 4, Meise changed his approach, arguing instead that the claim should be dismissed under the Texas Tort Claims Act ("TTCA"), Tex. Civ. Prac. & Rem. Code § 101.101 et seq.⁴ See Meise Reply ¶ 5 (citing Tex. Civ. Prac. & Rem. Code §§ 101.001, 101.106(f)). In his Reply, Meise stated that "[i]f [Barnes] would like to file a surreply to respond to the substance of [his] invocation of [statutory] immunity, [he would] not oppose the filing of such a pleading." Id. at 3 n.1. Barnes did not seek leave to file any additional briefing.

3 Frank has not moved to dismiss the assault claim raised against him, and the Court expresses no opinion on the claim in this Order. See Frank Mot. ¶ 12 (seeking dismissal of only the bystander liability claim); Frank Reply ¶ 4 (explaining that he "only sought to dismiss [Barnes'] bystander liability claim" (emphasis added)).

4 Meise incorrectly refers to this defense as "official immunity," see Meise Reply ¶ 4, which is a separate defense based in common law, see Tipps v. McCraw, 945 F. Supp. 2d 761, 767 (W.D. Tex. 2013) (explaining that statutory immunity "should not be confused" with official immunity (citing Franka v. Velasquez, 332 S.W.3d 367, 393 (Tex. 2011) (Medina, J., dissenting)). Still, it is clear from Meise's briefing that he intends to assert statutory immunity under the TTCA, and the Court construes his arguments accordingly.

The TTCA provides:

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 as defendant on or before the 30th day after the date the motion is filed.

Tex. Civ. Prac. & Rem. Code § 101.106(f). Conduct falls within an employee's "scope of employment" if it involves "the performance of a task lawfully assigned to an employee by competent authority." Id. § 101.101(5); see also Tipps v. McCraw, 945 F. Supp. 2d 761, 766 (W.D. Tex. 2013) ("An official acts within the scope of her authority if she is discharging the duties generally assigned to her." (quoting City of Lancaster v. Chambers, 883 S.W.2d 650, 658 (Tex. 1994))). And the claims that can be "brought under [the TTCA] against [a] governmental unit" include intentional tort claims. See Villasana v. City of San Antonio, No. SA-13-CV-278-XR, 2014 WL 640965, at *13 (W.D. Tex. Feb. 18, 2014) (collecting cases). This remains true although the TTCA does not waive the sovereign immunity of governmental units for such claims. See Franka v. Velasquez, 332 S.W.3d 367, 385 (Tex. 2011); Tex. Civ. Prac. & Rem. Code § 101.057.

Here, Meise is an employee of a Texas governmental unit—i.e., the City of El Paso—who was acting within the scope of his employment during his encounter with Barnes. See Carter v. Diamond URS Huntsville, LLC, 175 F. Supp. 3d 711, 752 (S.D. Tex. 2016) (finding that officers were acting within the scope of their employment when they investigated whether an individual was driving under the influence). And Barnes' assault claim could have been brought against the City as an intentional tort claim under the TTCA. See Villasana, 2014 WL 640965, at *13 (collecting cases); Zepeda v. Sizemore, No. SA:11-CV-901-DAE, 2013 WL 4677964, at *8 (W.D. Tex. Aug. 30, 2013) (collecting cases). Therefore, because Meise has moved to dismiss his assault claim, the Court must grant his motion to do so. See Tex. Civ. Prac. & Rem. Code § 101.106(f).

3. Monell claims

Next, Barnes raises several municipal liability claims—also known as Monell claims—against the City, arguing that the "policies, practices, and/or customs of [ ] EPPD constituted moving forces of the unconstitutional conduct that proximately caused [her] injuries." 1st Am. Compl. ¶ 40(2).⁵ Under Monell v. Department of Social Services, a municipality "can be sued directly under § 1983 . . . [where] the action that is alleged to be unconstitutional implements or executes a policy . . . officially adopted and promulgated by [the municipality's] officers." 436 U.S. 658, 690, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). To state a Monell claim, a plaintiff must identify: "(1) an official policy (or custom), of which (2) a policymaker can be charged with actual or constructive knowledge, and (3) a constitutional violation whose 'moving force' is that policy or custom." Valle v. City of Hous., 613 F.3d 536, 541-42 (5th Cir. 2010) (quoting Pineda v. City of Hous., 291 F.3d 325, 328 (5th Cir. 2002)).

5 Barnes' First Amended Complaint contains two paragraphs numbered "40." See id. at 12-14. The Court differentiates the paragraphs in this order by referring to the first paragraph as paragraph "40(1)," and the second as paragraph "40(2)."

An "official policy or custom" is most clearly established through a formal directive officially adopted and promulgated by a policymaker. See Webster v. City of Hous., 735 F.2d 838, 841 (5th Cir. 1984), modified on reh'g on other grounds, 739 F.2d 993 (5th Cir. 1984). When an "official policy" is not so explicit, the "persistent, widespread practice of city officials or employees . . . so common and well settled as to constitute a custom that fairly represents municipal policy" will suffice. Zarnow v. City of Wichita Falls, 614 F.3d 161, 169 (5th Cir. 2010) (quoting Webster, 735 F.2d at 841). Official policy may also exist where a municipality fails to train its employees, demonstrating a "deliberate indifference" to the rights of its inhabitants. City of Canton v. Harris, 489 U.S. 378, 389-90, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989). Lastly, the existence of a custom or policy may be shown through a "single unconstitutional action" performed by a "final policymaker." Bolton v. City of Dall., 541 F.3d 545, 548 (5th Cir. 2008) (citing Woodard v. Andrus, 419 F.3d 348, 352 (5th Cir. 2005)).

Barnes alleges that the City should face liability for five separate policies or customs: (1) "maintaining a policy or custom of excessive force by [EPPD] officers," (2) "failing to pursue criminal or disciplinary charges or support criminal or disciplinary action against officers . . . who have deprived citizens and residents of El Paso of their constitutional rights," (3) "failing to properly train or supervise members of [ ] EPPD . . . not to use [excessive] force," (4) "failing to implement body worn cameras," and (5) "failing to provide any means for a person to collect monetarily on any claim of excessive force by an individual police officer."⁶ 1st Am. Compl. ¶ 88. The City moves to dismiss all of Barnes' Monell claims. See City Mot. ¶¶ 6-30.

6 Barnes' First Amended Complaint lists eight policies or customs that allegedly caused Barnes' injuries. See 1st Am. Compl. ¶ 88(a)-(h). But several of these alleged policies are materially indistinguishable. Compare, e.g., id. ¶ 88(b) (alleging that the City "maintain[s] a policy or custom of officers' failure to avoid the use of deadly or other excessive force against individuals when the officer is not at risk of imminent serious bodily injury or death"), with, e.g., id. ¶ 88(c) (alleging that the City has a policy of "using intermediate, deadly force, or other excessive force against an individual who does not place the officer or another at risk of imminent serious bodily injury or death"). The five policies listed above adequately capture the substance of Barnes' allegations.

a. Custom of using excessive force

First, Barnes alleges that EPPD "has a persistent and widespread practice of officers using excessive deadly, intermediate force, or other excessive force against El Pasoans." 1st Am. Compl. ¶ 41. Barnes does not allege that this practice is explicitly sanctioned by any formally adopted City policies. Rather, she argues that the practice of using excessive force is "so widespread that [it] constitute[s] a custom that fairly represents municipal policy." Id. The City seeks to dismiss this claim, primarily arguing that Barnes has not alleged enough analogous incidents to establish a pattern of excessive force use. See City Mot. ¶¶ 6-17.

i. Past incident allegations

To prevail on a widespread practice or custom claim, a plaintiff must show that similar unconstitutional acts "have occurred for so long and with such frequency that the course of conduct demonstrates the governing body's knowledge and acceptance of the disputed conduct." Zarnow, 614 F.3d at 169 (citing Webster, 735 F.2d at 842). That is, a pattern requires "sufficiently numerous prior incidents," not "[i]solated instances." McConney v. City of Hous., 863 F.2d 1180, 1184 (5th Cir. 1989). A pattern also requires similarity and specificity; "[p]rior indications cannot simply be for any and all 'bad' or unwise acts, but rather must point to the specific violation in question." Est. of Davis ex rel. McCully v. City of N. Richland Hills, 406 F.3d 375, 383 (5th Cir. 2005) (collecting cases).

Here, Barnes states that "[f]rom 2012 to 2016, based on a limited data set that does not include all instances, EPPD officers utilized excessive deadly or intermediate force at least twenty-one times—fourteen of which resulted in deaths." 1st Am. Compl. ¶ 58. Barnes then discusses ten of these events in detail. Id. ¶¶ 39, 52, 64-80. She also contextualizes these events with statistics about the use of force by officers in El Paso. Most notably, Barnes alleges that "[a] limited review of citizen complaints between 2014 and 2016 show a high rate of excessive force complaints" by El Paso citizens. Id. ¶ 83. For example, Barnes alleges that EPPD received approximately "259-349 complaints of excessive force" in 2014. Id. ¶ 85. Dividing this figure by the approximate size of EPPD, Barnes alleges that the department received "25.9 to 34.9 citizen complaints of excessive force per [one hundred] officer[s]," a rate four-to-five times greater than the national average. See id. ¶ 85.⁷

7 Barnes' First Amended Complaint states that EPPD received "25.9 to 34.9 citizen complaints of excessive force per officer" in 2014, while "the national average for such complaints is only 6.6 complaints per officer." 1st Am. Compl. ¶ 85. But given the number of alleged complaints—"between 259-349 complaints of excessive force"—and the alleged size of EPPD—"approximately 1,000 officers"—it appears that Barnes meant to allege EPPD received 25.9 to 34.9 complaints of excessive force per one hundred officers in 2014. See id. Similarly, it appears Barnes meant to allege that the national average for such complaints is 6.6 complaints per one hundred officers: A 2006 report from the Bureau of Justice Statistics ("BJS") found that "[l]arge State and local law enforcement agencies . . . received more than 26,000 citizen complaints about officer use of force during 2002. This total figure resulted in [an] overall rate[ ] of . . . 6.6 complaints per 100 full-time sworn officers." Matthew J. Hickman, Citizen Complaints about Police Use of Force 1 (2006), https://bjs.ojp.gov/content/pub/pdf/ccpuf.pdf. Courts regularly take judicial notice of BJS reports. See, e.g., United States v. Orozco-Acosta, 607 F.3d 1156, 1164 n.5 (9th Cir. 2010); Zollicoffer v. Livingston, 169 F. Supp. 3d 687, 690 n.3 (S.D. Tex. 2016). Thus, liberally construing Barnes' First Amended Complaint and taking judicial notice of the aforementioned report, the Court finds Barnes has plausibly alleged that EPPD officers receive excessive force complaints at a rate four-to-five times greater than the national average.

The City advances two arguments for why these statements do not allege a pattern of excessive force use. First, it argues that the examples provided by Barnes are not similar enough to her encounter with Frank and Meise to show a pattern. See City Mot. ¶ 15. And to be sure, Barnes' encounter with EPPD officers differs from the ten incidents detailed in her First Amended Complaint in some notable ways. For example, all ten of her examples involve a civilian either being shot or tased by officers, while her case involves a physical beating. Compare 1st Am. Compl. ¶¶ 39, 52, 64-80, with id. ¶¶ 29-30. At least eight of Barnes' ten examples also involve civilians who either had mental health issues or were suffering mental health crises, while hers does not. Compare id. ¶¶ 64-77, 79-80, with id. ¶¶ 19-22.

But Barnes' theory of municipal liability does not focus on the use of force in a particular context. Instead, she alleges that EPPD has a "widespread practice of officers using excessive force . . . against El Pasoans" generally. See id. ¶ 41. And all of her examples involve EPPD officers using excessive force on civilians. "The Fifth Circuit has tacitly held that a series of incidents whose only common thread is the use of excessive force by a municipality's police officers may sometimes be adequately specific to establish a pattern." Sinegal, 2020 WL 13442013, at *15 (first citing Peterson v. City of Fort Worth, 588 F.3d 838, 851-52 (5th Cir. 2009); and then citing Cano v. Bexar Cnty., 280 F. App'x 404, 406-07 (5th Cir. 2008)). Thus, given the breadth of Barnes' claim, her cited prior incidents are similar enough to allege a pattern of excessive force use.

Second, the City argues that even if the prior incidents cited by Barnes are similar enough to her encounter with police, they are not numerous enough to show a pattern. See City Mot. ¶ 14. The City cites Peterson and Pineda in support of this argument. See id. ¶¶ 12-14. In those cases, the Fifth Circuit found that twenty-seven complaints of excessive force and eleven incidents of warrantless entry, respectively, did not establish patterns of constitutional violations. See Peterson, 588 F.3d at 851-52; Pineda, 291 F.3d at 329 & n.12. But critically, the Fifth Circuit reached these holdings at the summary judgment stage. See Peterson, 588 F.3d at 852; Pineda, 291 F.3d at 336. So, "in both Peterson and Pineda[,] [the Fifth Circuit] was concerned with what a 'reasonable jury could conclude' based on the evidence introduced by a plaintiff after a reasonable opportunity for discovery." Bond v. Nueces Cnty., No. 20-40050, 2022 WL 4595000, at *7 (5th Cir. Sept. 30, 2022) (quoting Peterson 588 F.3d at 851 n.4). But at the pleading stage, where no discovery has been conducted, a plaintiff need only "allege[ ] enough to create a reasonable inference that a policy exists." Id. Accordingly, the Fifth Circuit has repeatedly cautioned district courts against relying on "cases dismissed on summary judgment [to support] dismissal of [ ] cases at the pleadings stage." Id. (collecting cases).

Here, before conducting any discovery, Barnes has alleged twenty-one specific incidents—describing ten in detail—of EPPD officers using excessive force. See 1st Am. Compl. ¶¶ 39, 52, 64-80. And she expressly states that her allegations are "based on a limited data set that does not include all instances," indicating that additional instances could be uncovered in discovery. See id. ¶ 58. Taken together, these allegations plausibly suggest that "[s]ufficiently numerous prior incidents" of excessive force use by EPPD officers may exist to establish a pattern of constitutional violations by the City. See McConney, 863 F.2d at 1184.

Furthermore, Barnes has supported her detailed examples with statistics that place them in a larger context. Courts have recognized that a plaintiff can plead sufficient facts to show a custom of constitutional violations by pleading "a combination of statistics, past incidents, and statements by city officials." Sanchez v. Gomez, 283 F. Supp. 3d 524, 536 (W.D. Tex. 2017) (citing Flanagan v. City of Dall., 48 F. Supp. 3d 941, 953 (N.D. Tex. 2014)); see also Ramirez v. Escajeda, 298 F. Supp. 3d 933, 947-48 (W.D. Tex. 2018) (finding that the plaintiff plausibly alleged a "custom of using excessive force against persons exhibiting signs of mental illness" by identifying eight prior incidents and offering additional statistics).

As in those cases, Barnes has supplemented her detailed descriptions of ten prior incidents with statistics that tend to show a larger pattern of excessive force use. See, e.g., 1st Am. Compl. ¶ 85. These statistics show that the City received over 259, and as many as 349, complaints of excessive force in 2014. Id. But they do not merely show that EPPD receives some apparently high number of excessive force complaints. Rather, they have a comparative dimension—showing that EPPD receives significantly more excessive force complaints per officer than police departments across the nation. See id. Thus, Barnes' statistics place her excessive force allegations in a broader national context and make it more plausible that EPPD has a widespread pattern of using excessive force. See Ramirez, 298 F. Supp. 3d at 947-48 (noting that national statistics "are still relevant [at the pleading stage] because they indicate that the City of El Paso disproportionately uses force"); Sanchez, 283 F. Supp. 3d at 538 (allowing a Monell claim to proceed when the plaintiff's statistics suggested that "shootings by EPPD officers involve a much higher proportion of individuals displaying mental health issues than the national average").

Of course, Barnes alleges a much broader custom of constitutional violations than the customs alleged in Ramirez and Sanchez. Compare Ramirez, 298 F. Supp. 3d at 947 ("Plaintiffs . . . narrow the issue to just a custom of using excessive force against persons exhibiting signs of mental illness."), and Sanchez, 283 F. Supp. 3d at 534 ("[T]he Court interprets their allegation as referring only to a policy of excessive force relating to individuals displaying signs of mental illness, and not to all individuals more generally."), with 1st Am. Compl. ¶ 41 (alleging "a persistent and widespread practice of officers using excessive deadly, intermediate force, or other excessive force against El Pasoans"). And "where an alleged customary policy is defined in relatively broad terms . . . it stands to reason that a greater number of prior incidents is required to put the City on notice of a pattern." Sinegal, 2020 WL 13442013, at *16 (first citing Flanagan, 48 F. Supp. 3d at 955; and then citing Moreno v. City of Dall., No. 3:13-CV-4106, 2015 WL 3890467, at *8-9 (N.D. Tex. June 18, 2015)). This is especially true at the summary judgment stage, where Barnes will have to make a considerable showing that a pattern of excessive force use was widespread and pervasive within EPPD. See, e.g., Peterson, 588 F.3d at 850-52. But at this stage, Barnes has come forward with enough examples and statistics to state a plausible claim that EPPD has a custom of using excessive force. See, e.g., Harvey v. Montgomery Cnty., 881 F. Supp. 2d 785, 797-98 (S.D. Tex. 2012) (allowing an excessive force Monell claim to proceed where the plaintiff alleged "200 complaints of excessive use of force . . . [had been] lodged with the Montgomery County Sheriff's Department in the last ten years"); Rivera v. City of San Antonio, No. SA-06-CA-235-XR, 2006 WL 3340908, at *12 & n.8 (W.D. Tex. Nov. 15, 2006) (allowing an excessive force Monell claim to proceed where the plaintiff alleged "the San Antonio Police Department [had] received hundreds of complaints involving the use of excessive force by police officers without ever having taken disciplinary action," without "indicat[ing] the time period in which these complaints were received"); Barr v. City of San Antonio, No. SA-06-CA-0261-XR, 2006 WL 2322861, at *4 & n.3 (W.D. Tex. July 25, 2006) (allowing an excessive force Monell claim to proceed where the plaintiff alleged "the City [had] been named as a defendant in four similar lawsuits," without providing a list of such cases).

ii. Knowledge and causation allegations

As for the second and third elements of her first Monell claim, Barnes alleges that Allen, the El Paso Mayor, and the City Council were "directly responsible" for causing her injuries by implementing the policies and customs she challenges. 1st. Am. Compl. ¶ 88. Barnes further alleges that Allen "had direct knowledge" of the custom of excessive force use, but "failed to discipline officers involved, train them, or otherwise remedy the problem." Id. ¶ 56. And Barnes alleges that the custom of excessive force use was the moving force behind her injuries. Id. ¶ 90.

The City does not argue that Barnes has failed to adequately plead the knowledge and causation elements of her excessive force Monell claim. See generally City Mot. ¶¶ 6-17. And Barnes' allegations about knowledge and causation are plausible: It is evident that the chief of a police force would have actual or constructive knowledge of a widespread pattern of excessive force among his officers. See Ramirez, 298 F. Supp. 3d at 948 ("Constructive knowledge may be attributed to the governing body on the ground that it would have known of the violations if it had properly exercised its responsibilities." (quoting Bennett v. City of Slidell, 728 F.2d 762, 768 (5th Cir. 1984))). Similarly, one can plausibly infer that a custom of EPPD officers using excessive force caused the injuries that Barnes suffered when EPPD officers used excessive force on her. See Sanchez, 283 F. Supp. 3d at 539 ("[A plaintiff] need only provide enough facts to allow the Court to make a plausible inference that the policy was a moving force behind the harm in this case. It does not strike the Court as implausible that the widespread practice of excessive force . . . directly caused this particular case of excessive force.").

Of course, the Court expresses no opinion on the merits of Barnes' claim—she will ultimately have to come forward with evidence showing municipal policymakers' awareness of a pattern of excessive force, and linking that pattern to the incident in which she was injured. But taking Barnes' allegations as true, she has sufficiently pleaded a Monell claim against the City for maintaining a custom of using excessive force within EPPD. Accordingly, the City Motion is denied as to this claim.

b. Custom of failing to discipline officers for using excessive force

In her second Monell claim, Barnes alleges that the City "has a policy of failure to discipline or investigate cases involving excessive deadly force." 1st Am. Compl. ¶ 43. Specifically, Barnes alleges that Allen decides whether to discipline EPPD officers for excessive force use, "with the recommendation of a Disciplinary Review Board (DRB)." Id. But she also alleges that Allen has implemented a DRB where law enforcement officers "comprise[ ] a majority" of its members. Id. ¶ 49. And Barnes alleges that Allen has, at times, ignored the DRB's disciplinary recommendations. See id. ¶¶ 45-48. These practices, according to Barnes, have "caused the disproportionately high incidents of excessive use of force" by EPPD. Id. ¶ 51.

The elements of a Monell claim predicated on a municipality's failure to discipline its officers for using excessive force resemble the elements of a Monell claim for maintaining a customary practice of using excessive force in certain respects. First, a plaintiff must plausibly allege that the municipality has a policy of failing to discipline officers, which she can establish by alleging "a persistent, widespread practice of [ ] officials or employees, which . . . is so common and well-settled as to constitute a custom that fairly represents municipal policy." See Piotrowski v. City of Hous., 237 F.3d 567, 579 (5th Cir. 2001) (quoting Webster, 735 F.2d at 841). And a plaintiff must plausibly allege that the policy or custom of failing to discipline officers was a "moving force" behind the constitutional violation she suffered. See id. at 580 (citing Monell, 436 U.S. at 694, 98 S.Ct. 2018). But unlike a customary policy of using excessive force, a lenient disciplinary policy does not itself run afoul of any right enumerated in the Constitution. Therefore, a plaintiff must plausibly allege that policymakers implemented the lax disciplinary policy or custom "with deliberate indifference to the 'known or obvious consequences' that constitutional violations would result." See id. at 579 (quoting Bd. of Cnty. Comm'rs of Bryan Cnty. v. Brown, 520 U.S. 397, 407, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997)); see also Deville v. Marcantel, 567 F.3d 156, 171 (5th Cir. 2009) ("We have extended [the deliberate indifference standard] to cover a plaintiff's allegations that the municipality failed to properly discipline its employees." (citing Piotrowski, 237 F.3d at 581)).

i. Past incident allegations

As with Barnes' first Monell claim, the City primarily argues that Barnes has not referenced enough specific, similar instances of the City's failure to discipline officers to plausibly allege the existence of a custom. See City Mot. ¶¶ 21-22. But Barnes has referenced ten specific instances in which officers used excessive force against a civilian and suffered little to no consequences. See 1st Am. Compl. ¶¶ 39, 52, 64-80. These include extreme cases where civilians were either shot or tased, despite posing no apparent threat to the public or the officers involved. See, e.g., id. ¶¶ 64-69, 72-73. And the Court has already rejected the City's argument that these events are too dissimilar to Barnes' encounter to show a general custom of excessive force. So too for the City's failure to discipline officers for using excessive force. As the Sanchez court observed, "it is indeed surprising that the officers involved in the various incidents [Barnes] describe[s] were not subject to any notable discipline . . . . This alleged lack of disciplinary measures plausibly suggests to the Court that EPPD had a blanket policy of not disciplining officers who were responsible for using excessive force." 283 F. Supp. 3d at 543.

Moreover, Barnes also provides statistics that further contextualize the specific instances she discusses in her First Amended Complaint. In particular, Barnes notes that "of the cases brought to the DRB from 2012 to 2016, less than 10% of those cases resulted in any action by the DRB against the officer." 1st Am. Compl. ¶ 47. "Of that 10%," Barnes continues, "nearly every officer in question only received counseling, including those found to have engaged in excessive force, as a consequence for their actions." Id. Finally, Barnes observes that "[o]f the shooting deaths reported by [ ] EPPD to the Texas Attorney General between 2012 and 2016, the Department classified all but one as 'Justified Homicide' with one classified as 'Other Homicide.' " Id. ¶ 53. While these statistics do not compare the City's disciplinary practices to those of other municipalities and police departments, it is plausible to infer from them that the City has a common and well-settled practice of failing to discipline officers who use excessive force. As the Fifth Circuit has observed, the fact that a low number of incidents resulted in discipline after review "may tilt in [the plaintiff's] favor." Peterson, 588 F.3d at 852. Taken with her discussion of ten prior incidents when the use of excessive force went unpunished, the Court finds that these statistics support the plausible inference that the City has a custom of failing to discipline EPPD officers for using excessive force. See Ramirez, 298 F. Supp. 3d at 942-44 (allowing a failure-to-discipline claim to proceed on similar facts); Sanchez, 283 F. Supp. 3d at 543-44 (same).

ii. Deliberate indifference and causation allegations

As for the second and third elements of her failure-to-discipline Monell claim, Barnes alleges that "[d]iscipline of all officers for any citizen complaint is the decision of the policymaker, Chief Gregory Allen," 1st Am. Compl. ¶ 43, and that Allen "persisted in his failure to discipline his officers for excessive use of force . . . in knowing disregard that such a failure presents an obvious risk that constitutional violations will occur," id. ¶ 51. She also states that Allen's "failure to discipline officers . . . [is a] moving force[ ] behind the constitutional violations that led to [her] severe assault." Id. ¶ 55.

The City argues that Barnes has not plausibly alleged deliberate indifference because she has not alleged that the City or Allen engaged in a "purely formalistic investigation" of her excessive force incident, nor has she alleged any past complaints against Frank and Meise by other citizens. See City Mot. ¶¶ 24-25 (citing Piotrowski, 237 F.3d at 582). But a purely formalistic investigation is only "[o]ne indication" of a lax disciplinary policy; it is not required to plausibly plead deliberate indifference. See Piotrowski, 237 F.3d at 581-82. Indeed, Piotrowski states that "[a] pattern [of failure to discipline] could evidence not only the existence of a policy but also deliberate indifference." Id. at 582. And as stated above, Barnes has plausibly alleged a pattern of the City failing to discipline EPPD officers who use excessive force.

Moreover, courts have found that similar allegations satisfy the second and third elements of a failure-to-discipline Monell claim. In Ramirez, for example, the plaintiffs "identif[ied] Chief Allen as the policy maker because he has . . . the final say on disciplining officers," and they alleged that "the composition of the DRB and Chief Allen's control over the disciplinary process allowed officers to use excessive force against mentally ill persons without fear of adverse consequences." 298 F. Supp. 3d at 944. Similarly, in Sanchez, the plaintiffs alleged that "Chief Allen makes all final decisions regarding officer discipline," 283 F. Supp. 3d at 538, and they alleged that "EPPD's disciplinary policy allows officers to use excessive force . . . without suffering any disciplinary action," id. at 543. Both courts found that the plaintiffs had stated plausible Monell claims for failure to discipline officers based on these allegations. Ramirez, 298 F. Supp. 3d at 944; Sanchez, 283 F. Supp. 3d at 544; see also Lujan v. Beard, No. EP-21-CV-302-FM, 2022 WL 986442, at *5 & n.74 (W.D. Tex. Mar. 31, 2022) ("[W]hen a police officer knows their use of excessive force 'will meet with the approval of city policymakers, the affirmative link/moving force requirement is satisfied.' " (quoting Grandstaff v. City of Borger, 767 F.2d 161, 170 (5th Cir. 1985))). The Court finds these decisions persuasive, and given the similarity of Barnes' allegations, her failure-to-discipline claim may proceed as well. The City Motion is therefore denied as to Barnes' second Monell claim.

c. Failure to train or supervise officers on use of force

Third, Barnes alleges that EPPD has a custom of failing to train its officers in the proper use of force. 1st Am. Compl. ¶ 40(2). "A claim for failure to train must allege sufficient facts to show that (1) the municipality adopted inadequate training policy procedures, (2) acted with deliberate indifference in doing so, and (3) the inadequate training policy directly caused the plaintiff's injury." Speck v. Wiginton, 606 F. App'x 733, 736 (5th Cir. 2015) (citing Sanders-Burns v. City of Plano, 594 F.3d 366, 381 (5th Cir. 2010)).

As for the first element, "[d]efects in a particular training program must be specifically alleged." Quinn v. Guerrero, 863 F.3d 353, 365 (5th Cir. 2017) (citing Roberts v. City of Shreveport, 397 F.3d 287, 293 (5th Cir. 2005)). Of course, courts should only require "minimal factual allegations" about the training programs at the pleading stage, since "it is exceedingly rare that a plaintiff will have access to (or personal knowledge of) specific details regarding the existence or absence of internal policies or training procedures prior to discovery." Thomas v. City of Galveston, 800 F. Supp. 2d 826, 842-43 (S.D. Tex. 2011). Still, a plaintiff cannot state a failure-to-train claim by making a "conclusory allegation that it is 'apparent from the facts of [the] case' that [ ] excessive force training . . . was insufficient." Speck, 606 F. App'x at 736.

Here, Barnes does not allege any specific deficiencies or omissions in the City's excessive force training programs. See generally 1st Am. Compl. She merely alleges that "EPPD fails to properly train officers in use of force," id. ¶ 40(2), and that Allen allowed these deficiencies to persist despite knowing that EPPD had a "widespread practice of officers using excessive . . . force," id. ¶ 56. But the former statement is wholly conclusory. See Quinn, 863 F.3d at 365; Speck, 606 F. App'x at 736. And the second statement speaks to the City's alleged deliberate indifference, but still fails to identify a particularized issue with the City's training programs. See Speck, 606 F. App'x at 736 (citing Connick v. Thompson, 563 U.S. 51, 62, 131 S.Ct. 1350, 179 L.Ed.2d 417 (2011)). Without any specific factual allegations about deficiencies in the City's training programs, Barnes' failure-to-train claim cannot proceed. See Quinn, 863 F.3d at 365; Speck, 606 F. App'x at 736.

Barnes comes closest to alleging a specific defect with the City's training when she cites two federal court orders allegedly finding "proof of a custom of failure to train" officers on excessive force. 1st. Am. Compl. ¶ 7. But contrary to Barnes' assertions, the two orders—in Ramirez and Sanchez, respectively—did not find broad defects in the City's use-of-force training policies. Rather, the two orders addressed the City's alleged failure to train its officers on how to respond to mental health crises. See Ramirez v. Escajeda, No. EP-17-CV-00193-DCG, 2021 WL 3713064, at *39-42 (W.D. Tex. Aug. 20, 2021), rev'd in part on other grounds, 44 F.4th 287 (5th Cir. 2022); Sanchez v. Gomez, No. EP-17-CV-133-PRM, 2020 WL 1036046, at *34-39 (W.D. Tex. Mar. 3, 2020). These training defects have no bearing on Barnes' injury, since she has not alleged that she was suffering from a mental health crisis during her encounter with EPPD officers. Accordingly, Barnes' citation to these orders does not suffice to state a failure-to-train claim. See, e.g., Pineda, 291 F.3d at 332 ("In resolving the issue of a city's liability, the focus must be on [the] adequacy of the training program in relation to the tasks the particular officers must perform." (quoting City of Canton, 489 U.S. at 390, 109 S.Ct. 1197) (emphasis and alteration in Pineda)). The City Motion is granted as to Barnes' failure-to-train Monell claim.

d. Failure to implement body-worn cameras

Fourth, Barnes alleges that the City caused her injury by failing to equip EPPD officers with body-worn cameras. See 1st Am. Compl. ¶ 88(f). She alleges that "El Paso remains the largest city in Texas without police body worn cameras by conscious choice." Id. ¶ 8. And while she acknowledges that "the El Paso Mayor and City Council did, in March 2022, pass a measure for body worn cameras," she notes that the "timetable of deployment remains unknown." Id. ¶ 37.

These statements fail to plausibly allege the causation required for Monell claims. The connection between a municipal policy and a plaintiff's injuries "must be more than a mere 'but for' coupling between cause and effect. The deficiency . . . must be the actual cause of the constitutional violation." Valle, 613 F.3d at 546 (quoting Thompson v. Connick, 578 F.3d 293, 300 (5th Cir. 2009), rev'd on other grounds, 563 U.S. at 54, 131 S.Ct. 1350). Here, Barnes provides no factual allegations linking the City's policies on body cameras to her injuries, outside of unadorned, conclusory assertions. See 1st Am. Compl. ¶ 90 ("The aforementioned customs, policies, practices, and procedures . . . were a moving force and/or a proximate cause of the deprivations of [Barnes'] clearly established and well settled constitutional rights."). Nor does Barnes provide any factual allegations that might give rise to a causal inference, such as allegations about reports or statistics showing the effect of body-worn cameras in other cities. Without more, Barnes' First Amended Complaint fails to "raise a right to relief above the speculative level." Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (citation omitted).

While the Court is unaware of any Fifth Circuit decision considering a Monell claim predicated on the failure to equip officers with body cameras, courts from other circuits have rejected such claims. See Wooden v. City of Phila., Civil Action No. 19-1054, 2022 WL 17724423, at *4 (E.D. Pa. Dec. 15, 2022) (collecting cases rejecting similar claims); see also Elder-Keep v. Aksamit, 460 F.3d 979, 987 (8th Cir. 2006) ("[The plaintiff] has not shown how [the defendant's] failure to use the [recording] equipment 'caused' the alleged assault."); Sidbury v. City of New York, No. 15-CV-4761 (RRM) (RER), 2020 WL 2615926, at *5 (E.D.N.Y. 2020) (granting summary judgment for the defendant when the plaintiff "presented no evidence to support any causal connection between the lack of video recording . . . and [the] alleged injury"); Baldwin v. Colley, No. 15-cv-02762-KAW, 2015 WL 5836923, at *4 (N.D. Cal. Oct. 7, 2015) (noting, as of 2015, that body cameras and their "use by actual police are too new to know its true effects" (quoting Howard M. Wasserman, Moral Panics and Body Cameras, 92 Wash. U. L. Rev. 831, 837 (2015))). The Court finds these cases persuasive and holds that Barnes has failed to plausibly plead that the City's failure to implement body-worn cameras caused her injuries. The City's Motion to Dismiss is therefore granted as to the body camera claim.

e. Failure to indemnify officers in § 1983 cases

Finally, Barnes raises a Monell claim against the City for its failure to indemnify its officers in § 1983 suits. See 1st Am. Compl. ¶¶ 7, 40(1). Barnes alleges that the City "has no requirement to satisfy judgments entered against its police for violations of civil rights," and that it encourages its employees not to obtain insurance or indemnification "so that they remain 'judgment proof' in the event of litigation." Id. ¶ 40(1). This policy, Barnes argues, "actively discourages litigants and attorneys from filing lawsuits because there is often no ability to recover just compensation for violations of constitutional rights." Id. ¶ 40(1). And because judgment-proof officers "are not held accountable for Constitutional and civil rights violations, this creates an official policy, or unofficial custom, of normalizing the Constitutional and civil rights violations by police and other [City] employees." Id.

These statements fail to plausibly allege that the City's indemnification policy caused Barnes' injury. Barnes' theory of liability assumes that (1) the City's indemnification policies will cause § 1983 plaintiffs to bring fewer suits, (2) EPPD officers are aware of this fact, (3) those officers will conclude that they are less likely to face consequences for constitutional violations as a result, and (4) they will change the way they interact with civilians accordingly. This attenuated causal connection falls well short of the "moving force" causation required to sustain a Monell claim. See Valle, 613 F.3d at 542 (noting that municipal liability requires "a direct causal link between the municipal action and the deprivation of federal rights" (quoting Brown, 520 U.S. at 404, 117 S.Ct. 1382)).

Indeed, the link between officer indemnification and constitutional violations is so attenuated that multiple plaintiffs have advanced the exact opposite argument that Barnes advances here. That is, multiple plaintiffs have argued that a practice of indemnifying officers—rather than failing to indemnify them—caused the constitutional harms they suffered. See, e.g., Hernandez v. Gates, 100 F. Supp. 2d 1209, 1211-12 (C.D. Cal. 2000); Ekergren v. City of Chi., 538 F. Supp. 770, 772 (N.D. Ill. 1982). Each of those courts concluded that the link between an officer's actions and municipal indemnification policy is too tenuous to give rise to municipal liability. See Hernandez, 100 F. Supp. 2d at 1220 ("Allowing plaintiffs to pursue [ ] a theory [of indemnification Monell liability] would be inconsistent with the Supreme Court's repeated admonition that there must be a clear causal connection between the conduct of the defendant and the alleged constitutional violation."); Ekergren, 538 F. Supp. at 773 ("[T]he City's policy of indemnification may lead to an increase in the number of lawsuits filed against police officers . . . but this provides no basis for concluding that indemnification increases the probability that policemen will misbehave.").

That courts have rejected the inverse of Barnes' indemnification claim only underscores its fatal flaw. It is conceivable that a policy of indemnification could encourage constitutional violations by lessening the direct impact of liability verdicts on individual officers. It is also conceivable that a failure to indemnify officers could encourage constitutional violations by reducing the number of § 1983 suits. But conceivability is not the same as plausibility. As with Plaintiff's claim based on the failure to implement body cameras, Plaintiff offers nothing more than speculation regarding the effects of the City's indemnification policy. And speculation does not suffice to state a plausible claim. See Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (citation omitted). At bottom, Barnes' indemnification theory fails to state a claim because "there are too many variables involved" to make out a plausible causal connection between the City's lack of an indemnification policy and Plaintiff's injury. Ekergren, 538 F. Supp. at 773. The City's Motion is granted as to this claim.

4. Individual-capacity claims against Allen

Finally, Barnes' First Amended Complaint purports to bring claims against Allen "in his individual capacity." 1st Am. Compl. ¶ 5. Barnes does not clearly state which claims she raises against Allen individually. See generally id. ¶¶ 86-93. But her briefing suggests that she intends to raise supervisory liability claims against Allen for implementing—or failing to implement—certain policies pertaining to the use of excessive force. See Pl.'s Resp. to City & Frank Mots. 9-10; see also 1st Am. Compl. ¶ 95 (seeking exemplary damages from Allen based on his "repeated past failure to discipline and train regarding excessive force"). Allen moves to dismiss these claims. See City Mot. ¶¶ 31-33.

a. Sufficiency of allegations

"A supervisory official may be held liable under § 1983 only if (1) he affirmatively participates in the acts that cause the constitutional deprivation, or (2) he implements unconstitutional policies that causally result in the constitutional injury." Gates v. Tex. Dep't of Protective & Regul. Servs., 537 F.3d 404, 435 (5th Cir. 2008) (citing Baker v. Putnal, 75 F.3d 190, 199 (5th Cir. 1996)). Supervisors may also be held liable for failing to adopt a policy or practice "when it is obvious that the likely consequences of not adopting a policy will be a deprivation of constitutional rights." Porter v. Epps, 659 F.3d 440, 446 (5th Cir. 2011) (quoting Rhyne v. Henderson Cnty., 973 F.2d 386, 392 (5th Cir. 1992)). "Liability for failure to promulgate policy and failure to train or supervise both require that the defendant have acted with deliberate indifference." Id. And a plaintiff must show that "there is a sufficient causal connection between the supervisor's conduct and the constitutional violation." Rios v. City of Del Rio, 444 F.3d 417, 425 (5th Cir. 2006) (quoting Evett v. DETNTFF, 330 F.3d 681, 689 (5th Cir. 2003) (internal quotation marks omitted)).

Barnes does not allege that Allen personally participated in the excessive force used against her. See generally 1st Am. Compl. Nor does Barnes allege that Allen personally promulgated any official policy or program that led EPPD officers to use excessive force.⁸ See generally id. And while Barnes does allege that Allen personally failed to train EPPD officers, see id. ¶¶ 56, 95, she does not identify any specific deficiencies in Allen's training choices, nor does she discuss how different training programs may have prevented the use of excessive force. Barnes' failure-to-train supervisory liability claim thus fails for much the same reasons that her failure-to-train Monell claim fails.⁹ See Calhoun v. City of Hous. Police Dep't, 855 F. App'x 917, 922 (5th Cir. 2021) (affirming dismissal of supervisory liability claims where the plaintiff "insufficiently pled how [the police chief] failed to train his subordinates").

8 The question of whether Allen personally implemented an unconstitutional policy for the purposes of supervisory liability is separate from the question of whether Allen is a policymaker for the purposes of a Monell claim. See Calhoun v. City of Hous. Police Dep't, 855 F. App'x 917, 921-22 (5th Cir. 2021). Barnes has alleged that Allen is a "policymaker responsible for all policies, practice[s], or customs" described in her First Amended Complaint. See 1st Am. Compl. ¶ 42. And the City Defendants have not argued that there is any deficiency in Barnes' policymaker allegations. See generally City Mot.

9 To the extent she raises them, Barnes' supervisory liability claims based on failure to implement body-worn cameras and failure to indemnify officers also fail. As discussed, Barnes has not plausibly alleged a causal link between these policies and the constitutional harms she suffered, let alone that Allen was personally responsible for implementing these policies with deliberate indifference to their consequences. See Rios, 444 F.3d at 425.

But Barnes does plausibly allege that Allen personally implemented a custom of failing to discipline EPPD officers for using excessive force. Barnes alleges that Allen decided how to "[d]iscipline [ ] all officers for any citizen complaint," and that his "overriding authority has resulted in an atmosphere in which officers accused of excessive force almost uniformly do not face sanctions or just the smallest of discipline." 1st Am. Compl. ¶¶ 43, 47; see also id. ¶¶ 64-80 (discussing several specific incidents where Allen failed to discipline officers for using excessive force). Barnes also alleges that Allen's lenient enforcement of excessive force incidents has "caused [ ] disproportionately high incidents of excessive use of force." Id. ¶ 51. And Barnes alleges that "Allen has had direct knowledge of [ ] statistically high rates of the use of excessive [ ] force and has acted with deliberate indifference to the consequences of these customs." Id. ¶ 63. For essentially the same reasons discussed in connection with Barnes' similar claim against the City, these allegations are plausible and sufficient to state a claim. See Piotrowski, 237 F.3d at 579-80; Ramirez, 298 F. Supp. 3d at 943-44.

Indeed, courts have found similar allegations to plausibly state a supervisory liability claim. In Ingram v. Kubik, for example, the plaintiff alleged that the former sheriff of the county police department had a "routine and de facto policy of approving the force used [by his officers] and never initiating further investigation." 30 F.4th 1241, 1248 (11th Cir. 2022) (cleaned up). The plaintiff's complaint also provided "examples of excessive force that were allegedly not investigated." Id. The plaintiff brought a claim against the sheriff in his individual capacity based on these allegations. Id. at 1249. And the Eleventh Circuit found that the plaintiff's complaint stated a supervisory liability claim: "The factual allegations, if true, establish the 'absence of a policy' of investigating excessive force violations . . . of which [the sheriff] had knowledge." Id. at 1256 (citations omitted) (emphasis in original).

Similarly, in Howard v. City of Houston, the plaintiff alleged that Houston's Chief of Police "knew of and perpetuated a 'culture and pattern of abiding and secreting away instances of excessive force.' " Civ. Action No. H-21-1179, 2022 WL 479940, at *10 (S.D. Tex. Feb. 16, 2022). The plaintiff further alleged that the police chief "attempted to keep six police shootings from public view," and that he and his predecessors "prevented investigations into whether over two-hundred-fifty incidences of [ ] officers' use of firearms constituted excessive force." Id. Based on these allegations, the plaintiff brought a supervisory liability claim against the police chief. Id. at *8. And the district court found that the plaintiff "successfully plead[ed] that [the police chief] allegedly implemented a policy condoning excessive force." Id. at *10.

The Court finds these cases persuasive and applicable to the present case. While Barnes does not allege that Allen completely failed to investigate excessive force incidents or tried to conceal them from the public, she does allege that Allen routinely intervened to prevent the imposition of discipline in clear cases of excessive force use. See 1st Am. Compl. ¶ 48 ("Chief Allen also regularly mitigates discipline against officers engaged in the excessive use of force contrary to the recommendation of the DRBs."). Therefore, Barnes has stated a supervisory liability claim against Allen for failing to discipline EPPD officers who use excessive force. See Ingram, 30 F.4th at 1254-56; Howard, 2022 WL 479940, at *10.

b. Duplicity of Monell claims

Allen argues that Barnes' "claims against [him] are identical to her claims against [the] City." City Mot. ¶ 33. Therefore, he argues, Barnes' supervisory liability claims "are really claims against him in his official capacity." Id. And because Barnes has named the City as a defendant in this case, Allen urges the Court to dismiss Barnes' claims against him as duplicative. See id. ¶¶ 32-33 (citing Doe v. Burleson Cnty., No. 1:20-CV-126-SH, 2021 WL 4267894, at *2 (W.D. Tex. Aug. 27, 2021)); see also Castro Romero v. Becken, 256 F.3d 349, 355 (5th Cir. 2001) (affirming dismissal of official-capacity claims against individual defendants where such claims "duplicate[d] claims against the respective governmental entities themselves").

To be sure, Barnes' supervisory liability claims overlap with her Monell claims to a large extent. The two sets of claims turn on many of the same factual allegations. Compare Pl.'s Resp. to City & Frank Mots. 10 (alleging Allen contributed to a policy of excessive force use by failing to discipline officers), with 1st Am. Compl. ¶ 88(d)-(e) (alleging a municipal custom of failing to discipline officers for using excessive force). And the same fundamental legal standards apply to both sets of claims. See Rios, 444 F.3d at 426 ("[The Fifth Circuit has] held that [it] 'use[s] the same standard in assessing an individual supervisor's liability under § 1983' as that used 'in assessing a municipality's liability' thereunder." (quoting Doe v. Taylor Indep. Sch. Dist., 15 F.3d 443, 453 (5th Cir. 1994))); Jordan v. Gautreaux, 593 F. Supp. 3d 330, 361 (M.D. La. 2022) (collecting cases).

But individual-capacity supervisory liability claims differ from Monell claims in certain key respects. For example, punitive damages are available from individuals (including supervisors) but not municipalities. See Kentucky v. Graham, 473 U.S. 159, 167 n.13, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985). And individuals can assert qualified immunity, while municipalities cannot. See id. at 166-67, 105 S.Ct. 3099 (collecting cases). Most critically, to succeed on a supervisory liability claim, "a plaintiff must allege that the defendant was personally . . . responsible for the policy or custom giving rise to the alleged constitutional deprivation." Hayes v. Rayford, No. SA-21-CV-01039-OLG, 2023 WL 2486606, at *5 (W.D. Tex. Feb. 16, 2023) (collecting cases) (emphasis in original). A plaintiff must also show that the supervisor acted with deliberate indifference in enacting such policies or customs. See Porter, 659 F.3d at 446.

The Fifth Circuit has recognized that a plaintiff can simultaneously bring municipal and supervisory liability claims based on the same alleged policy or custom. In Calhoun, for instance, the plaintiff brought Monell claims against the City of Houston, alleging that it "had a policy of 'failing' to 'properly discipline,' 'restrict,' and 'control' its employees." 855 F. App'x at 922. The plaintiff brought similar supervisory liability claims against the chief of the Houston Police Department, alleging that he "took no actions to discourage [his officer's] unlawful abuse of authority." Id. The Fifth Circuit upheld dismissal of both sets of claims. See id. But it discussed the municipal and supervisory liability claims separately, providing a distinct analysis for each set of claims. See id. Calhoun thus cautions that supervisory liability claims should be considered separately from Monell claims, even when both sets of claims deal with the same factual allegations.

In summary, Barnes' supervisory liability claims do not simply duplicate her Monell claims. Though the two sets of claims involve similar facts and similar legal standards, Barnes' supervisory liability claims turn on Allen's personal actions, while her Monell claims turn on the City's policies and customs, and the actions of its policymakers. See Hayes, 2023 WL 2486606, at *5. While these considerations often overlap, they remain distinct. See Calhoun, 855 F. App'x at 922. Thus, Barnes' supervisory liability claims may proceed.

c. Survival of claims

Finally, the Court takes judicial notice of the fact that Allen died on January 17, 2023.¹⁰ And because Barnes sues Allen in his individual capacity, rather than his official capacity, Allen's official successor is not automatically substituted as a party. See, e.g., Hutchinson v. Cunningham, No. 2:17-cv-185-WKW-GMB, 2018 WL 1474906, at *7 (M.D. Ala. Jan. 23, 2018) (citing Fed. R. Civ. P. 25(d)), R. & R. adopted, 2018 WL 1474532 (M.D. Ala. Mar. 26, 2018). Rather, Barnes' supervisory liability claims may only proceed against a proper, substituted party if they have not been extinguished by Allen's death. See Fed. R. Civ. P. 25(a)(1).

10 See, e.g., Daniel Borunda, El Paso police Chief Greg Allen dies after leading department for nearly 15 years, El Paso Times (Jan. 17, 2023), https://www.elpasotimes.com/story/news/local/el-paso/2023/01/17/el-paso-police-chief-greg-allen-dies-led-department-nearly-15-years/69816394007/. The Court may take judicial notice of this fact because it is "generally known within [the Court's] territorial jurisdiction," and because it can be "accurately and readily determined from sources whose accuracy cannot reasonably be questioned." Fed. R. Evid. 201(b).

Federal law does not address whether § 1983 claims survive the death of a defendant, so courts must look to state-law survivorship statutes to determine whether such claims can proceed. See Robertson v. Wegmann, 436 U.S. 584, 589-90, 98 S.Ct. 1991, 56 L.Ed.2d 554 (1978). Specifically, courts look to survivorship laws governing personal-injury torts to determine whether § 1983 claims can proceed after a party's death. See Caine v. Hardy, 943 F.2d 1406, 1411 (5th Cir. 1991) (citing Wilson v. Garcia, 471 U.S. 261, 276, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985), superseded in part by 28 U.S.C. § 1658). In this case, Texas law provides that "[a] cause of action for personal injury to the health, reputation, or person of an injured person does not abate because of the death of . . . a person liable for the injury." Tex. Civ. Prac. & Rem. Code § 71.021. It follows that Barnes' supervisory liability claims survived Allen's death and may proceed against a proper party or parties. See Caine, 943 F.2d at 1411.

Still, no one has moved to substitute any other party for Allen in this proceeding. Thus, for Barnes' supervisory liability claims to proceed, she must move to substitute the appropriate party or parties in his place. See Fed. R. Civ. P. 25(a).

5. Leave to Amend

Having addressed the merits of Defendants' Motions, the Court considers whether Barnes should be granted leave to amend her First Amended Complaint. Courts "should freely give leave [to amend] when justice so requires." Fed. R. Civ. P. 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).

Here, it would be futile for Barnes to amend her excessive force claim against Meise—and, by extension, the bystander liability claim she brings against Frank for failing to prevent Meise's use of force. The First Amended Complaint does not state that Barnes suffered any injury to her shoulders, even though it discusses other injuries sustained by Barnes in detail. See 1st Am. Compl. ¶¶ 29, 33, 38. Indeed, the factual allegations about Barnes' injuries in the First Amended Complaint are nearly identical to the allegations in her Original Complaint. Compare id., with Compl. ¶¶ 29, 33, 38, ECF No. 1. These facts suggest that Barnes cannot allege any injury caused by Meise's shoulder grab, which necessarily defeats any excessive force claim she could bring against Meise directly, for the reasons discussed above. See Trammell, 868 F.3d at 343 n.9 (5th Cir. 2017); Sinegal, 2020 WL 13442013, at *12-13. And because Barnes cannot state an excessive force claim against Meise, she cannot state a bystander liability claim against Frank based on Meise's use of force. See Griffin, 787 F. App'x at 245. Put differently, Barnes has already pleaded her "best case" regarding her excessive force claim against Meise and the related bystander liability claim against Frank. See Anokwuru v. City of Hous., 990 F.3d 956, 966-67 (5th Cir. 2021). Further amendment of these claims, therefore, is not warranted. See id.

Similarly, Barnes cannot cure her assault claim against Meise by amending her pleading. The TTCA allows a plaintiff to "file[ ] amended pleadings dismissing the employee and naming the governmental unit as defendant on or before the 30th day after the date the [employee's] motion is filed." Tex. Civ. Prac. & Rem. Code § 101.106(f). But more than thirty days have passed since Meise moved to dismiss the assault claim, and Barnes has not sought to drop the assault claim against Meise and re-plead it against the City. And even if Barnes could timely amend her pleading to raise an assault claim against the city, such an amendment would itself be futile, since the TTCA does not waive the sovereign immunity of Texas governmental units with respect to intentional tort claims. See Urquidi v. City of Pecos, No. 4:15-CV-00027-DCG, 2016 WL 4031452, at *6 (W.D. Tex. 2016) (citing Tex. Civ. Prac. & Rem. Code § 101.057).

As for Barnes' Monell claims, her First Amended Complaint failed to state a failure-to-train claim because it did not identify specific defects in EPPD's training programs. Similarly, her First Amended Complaint failed to state a claim for failure to implement body-worn cameras because it did not plausibly allege a causal link between the City's body camera policy and Barnes' injuries. Both of these problems could be cured with additional factual allegations. Therefore, the Court grants leave to amend the First Amended Complaint with respect to these claims.

Barnes' indemnification claim stands on different footing, however. As with her body-worn cameras claim, Barnes' First Amended Complaint failed to plausibly allege how the City's indemnification policies caused her injuries. But Barnes' alleged causal link did not fail due to insufficient factual allegations. Rather, Barnes' theory of the causal link between indemnification policies and constitutional violations is facially implausible. Barnes cannot cure that implausibility through additional allegations because "no persuasive argument can be made that the [indemnification policy] of the City [ ] [was] the 'moving force' behind the constitutional deprivation." Hernandez, 100 F. Supp. 2d at 1224 (quoting Monell, 436 U.S. at 694-95, 98 S.Ct. 2018). Thus, any amendment of this claim would be futile.

III. CONCLUSION

For the foregoing reasons, the Court ORDERS that the Meise Motion, ECF No. 36, is GRANTED. Barnes' § 1983 excessive force claim and state-law assault claim against Meise are DISMISSED with prejudice. Barnes' § 1983 bystander liability claim against Meise shall proceed.

IT IS FURTHER ORDERED that the Frank Motion, ECF No. 21, is GRANTED. Barnes' bystander liability claim against Frank is DISMISSED with prejudice. Barnes' § 1983 excessive force claim and state-law assault claim against Frank shall proceed.

IT IS FURTHER ORDERED that the City Motion, ECF No. 20, is GRANTED IN PART and DENIED IN PART. Barnes' Monell claims for failure to train and failure to implement body-worn cameras are DISMISSED without prejudice. Barnes' Monell claim for failure to indemnify EPPD officers in § 1983 suits is DISMISSED with prejudice. Barnes' Monell claims regarding a custom of excessive force use by EPPD officers and failure to discipline EPPD officers for using excessive force shall proceed.

IT IS FURTHER ORDERED that if Barnes intends to continue pursuing claims against Allen in his individual capacity, she shall FILE a motion to substitute a proper party for Allen on or before June 20 , 2023. If Barnes does not intend to continue pursuing such claims, she shall FILE a motion to voluntarily dismiss the claims on or before June 26 , 2023.

IT IS FURTHER ORDERED that Barnes may FILE a second amended complaint, in accordance with this Order, on or before June 21 , 2023.

IT IS FURTHER ORDERED that the stay in this case, entered pursuant to the Court's January 25, 2023, Order, ECF No. 43, is LIFTED.

IT IS FURTHER ORDERED that the parties shall meet, confer, and submit a joint report of parties' planning meeting as specified in the Court's Standing Order on Pretrial Deadlines on or before June 26 , 2023.

SO ORDERED.