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discussing the narrow exception and need for allegations that there was no training whatsoever
Summary of this case from Byrd v. City of MadisonvilleOpinion
EP-19-CV-107-KC
11-05-2019
Albert SINEGAL, Plaintiff, v. CITY OF EL PASO, Chad Corpuz, Peter G. Fonte, H. Enciso, R. Hernandez, D. Mendoza, and R. Lincon, Defendants.
Joshua Cody Spencer, Attorney at Law, El Paso, TX, for Plaintiff Anelisa Benavides, Oscar Guillermo Gabaldon, Jr., City Attorney's Office, James O. Darnell, Cris Estrada, Jim Darnell P.C., James (Jeep) O. Darnell, Jr., Jim Darnell, P.C., Eric M. Brittain, Windle Hood Norton Brittain & Jay LLP, Abbie Laine Mullin, El Paso, TX, for Defendants
Joshua Cody Spencer, Attorney at Law, El Paso, TX, for Plaintiff
Anelisa Benavides, Oscar Guillermo Gabaldon, Jr., City Attorney's Office, James O. Darnell, Cris Estrada, Jim Darnell P.C., James (Jeep) O. Darnell, Jr., Jim Darnell, P.C., Eric M. Brittain, Windle Hood Norton Brittain & Jay LLP, Abbie Laine Mullin, El Paso, TX, for Defendants
ORDER
Kathleen Cardone, District Judge
On this day, the Court considered Defendant Raymond Licon, Jr.'s Motion to Dismiss, ECF No. 4; Defendant Peter G. Fonte's Motion to Dismiss, ECF No. 27; Defendant Ricardo Hernandez's Motion to Dismiss, ECF No. 28; Defendant Chad Corpuz's Motion to Dismiss, ECF. No. 30; Defendant Holden Enciso's Motion to Dismiss, ECF No. 31; Defendant Denisse Mendoza's Motion to Dismiss, ECF. No. 32 (collectively, the "Officers' Motions"); and Defendant City of El Paso's Motion to Dismiss, ECF No. 22 (the "City's Motion").
Plaintiff identifies an individual by the name of "R. Lincon" as a Defendant in the Complaint. Compl. 1, ECF No. 1. However, in his Motion to Dismiss, Officer Raymond Licon, Jr. states that Plaintiff has misspelled his last name. See Def. Raymond Licon, Jr.'s Mot. to Dismiss 1. Therefore, the Court refers to this Defendant as Raymond Licon, Jr.
For the reasons set forth below, the City's Motion and the Officers' Motions are GRANTED in part. All of Plaintiff's claims are dismissed. However, some, and possibly all, of Plaintiff's § 1983 claims may be viable if re-pleaded appropriately. As such, these claims are dismissed without prejudice, and Plaintiff is given leave to file an Amended Complaint on or before December 2, 2019.
I. BACKGROUND
Plaintiff Albert Sinegal filed this action against Defendants under 42 U.S.C. § 1983 and the Texas Tort Claims Act ("TTCA"). Compl. ¶ 10, ECF No. 1. The following facts are derived from the Complaint and are taken as true for the purposes of adjudicating the Motion to Dismiss. See Calhoun v. Hargrove , 312 F.3d 730, 733–34 (5th Cir. 2002).
Shortly after 11:00 p.m. on April 8, 2017, Plaintiff was traveling along East San Antonio Street in El Paso, Texas. Compl. ¶ 12. Plaintiff's brother, who was behind him in another vehicle, was pulled over to the side of the street by an unnamed police officer on a bicycle. Id. Plaintiff pulled over to the opposite side of the street and exited his car. Id. At this point, it appears that at least two officers were on the scene, because Plaintiff alleges that "[o]ne officer insisted he stay back and he complied." Id. Shortly thereafter, some or all of the individual Defendants named in this lawsuit (the "Officers") had arrived, surrounded Plaintiff's brother, and taken him into custody. Id. Plaintiff "did not interfere with the police officers' duties." Id. ¶ 13.
Some or all of the Officers eventually crossed the street and approached Plaintiff, who "asked as to why the officers had taken such excessive and unnecessary actions against his brother." Id. ¶ 13. While asking these questions, Plaintiff remained on the far side of the street and did not attempt to interfere with the Officers' seizure of his brother. Id. "[N]onetheless, Defendants unlawfully used excessive and unreasonable force to seize Plaintiff's person, and several Defendants tased Plaintiff attacking him and tackling him to the ground." Id. Plaintiff was taken "immediately" to an unnamed hospital following the incident. Id. Plaintiff was eventually arrested by one or more of the Officers on unspecified charges arising from these events. See id. ¶ 17.
On April 8, 2019, Plaintiff filed this lawsuit against the Officers and the City of El Paso, Texas (the "City"). Between May 6 and May 15, 2019, the various Defendants filed their Motions to Dismiss. ECF Nos. 4, 22, 27, 28, 30, 31, 32. On June 27, 2019, Plaintiff filed a Response, ECF No. 35, to which Defendants each filed Replies, ECF Nos. 37–42, 47. On July 8, 2019, the case was stayed pending resolution of the Motions to Dismiss. Order, ECF No. 44.
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. Calhoun , 312 F.3d at 733 ; Collins v. Morgan Stanley Dean Witter , 224 F.3d 496, 498 (5th Cir. 2000). Though a complaint need not contain "detailed" factual allegations, a plaintiff's complaint must allege sufficient facts "to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (internal quotation marks omitted) (quoting Papasan v. Allain , 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986) ); 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 ; 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 (internal 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. ––––, 136 S. Ct. 305, 308, 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
Plaintiff's causes of action include 1) a § 1983 claim for false arrest in violation of his Fourth Amendment rights against the Officers in their individual capacities, 2) a § 1983 claim for the use of excessive force in violation of his Fourth Amendment rights against the Officers in their individual capacities, 3) a § 1983 claim for "inadequate training and supervision" against the City of El Paso and the Officers in their official capacities, and 4) a claim against the City of El Paso—and possibly the Officers as well—under the TTCA. Each of the Officers' Motions advances similar arguments for dismissal of all four of Plaintiff's claims. The City of El Paso is not implicated in the first two claims and argues for dismissal of claims three and four. The Court addresses whether Plaintiff has stated a plausible claim for relief as to each cause of action, in turn.
Plaintiff states that he brings both his false arrest and excessive force claims under the Fourth, Eighth, and Fourteenth Amendments, with no explanation in either the Complaint or the Response of how Defendants' alleged conduct infringed upon his Eighth or Fourteenth Amendment rights. Plaintiff complains of wrongs that he suffered while being stopped and arrested by the Officers, putting his allegations squarely within the purview of the Fourth Amendment. See Graham v. Connor , 490 U.S. 386, 394, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) ; Shumpert v. City of Tupelo , 905 F.3d 310, 320 (5th Cir. 2018). He makes no allegations regarding injuries suffered while serving a prison sentence or due to the denial of medical treatment or some procedural or substantive due process right, which would implicate the Eighth or Fourteenth Amendments, respectively. See, e.g. , Wilkins v. Gaddy , 559 U.S. 34, 34–36, 130 S.Ct. 1175, 175 L.Ed.2d 995 (2010) ; Fields v. City of South Houston , 922 F.2d 1183, 1191 (5th Cir. 1991). To the extent that Plaintiff has brought Eighth or Fourteenth Amendment claims, he has pleaded no facts to support them, and they are dismissed.
1. Plaintiff's Fourth Amendment false arrest claim
In the Officers' Motions, each individual Defendant raises two arguments for dismissal of Plaintiff's Fourth Amendment false arrest claim. First, Defendants ask the Court to assume that a state magistrate judge found that there was probable cause to support Plaintiff's arrest. Based on this assumption, they argue that the independent intermediary doctrine demands dismissal of the false arrest claim. Second, Defendants argue that Plaintiff's allegations against the Officers, collectively, lack the specificity required to hold any one of them liable, individually.
a. The Officers' independent intermediary argument
In order to succeed on his Fourth Amendment false arrest claim, Plaintiff must ultimately prove that the Officers did not have probable cause to arrest him. See Sam v. Richard , 887 F.3d 710, 715 (5th Cir. 2018) (citing Gerstein v. Pugh , 420 U.S. 103, 111, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975) ). Moreover, "[e]ven law enforcement officers who ‘reasonably but mistakenly conclude that probable cause is present’ are entitled to [qualified] immunity" from a Fourth Amendment false arrest claim. Mendenhall v. Riser , 213 F.3d 226, 230 (5th Cir. 2000) (quoting Hunter v. Bryant , 502 U.S. 224, 227, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991) ).
Police officers are also immunized from false arrest claims where an independent intermediary was presented with the facts supporting the arrest and found probable cause. Curtis v. Sowell , 761 F. App'x 302, 304 (5th Cir. 2019) (citing Taylor v. Gregg , 36 F.3d 453, 456 (5th Cir. 1994) ). Thus, an arrest "made under authority of a properly issued warrant is simply not a false arrest." Smith v. Gonzales , 670 F.2d 522, 526 (5th Cir. 1982). The independent intermediary doctrine also applies where a person is arrested without a warrant and is later taken before a magistrate judge, who reviews the arresting officer's affidavit or testimony and determines that probable cause existed to support the arrest. See Buehler v. City of Austin , 824 F.3d 548, 553–54 (5th Cir. 2016). In such cases, a subsequent false arrest claim must be dismissed unless the arrestee can show that the officer tainted the magistrate's decision by knowingly supplying false information. See id. at 554–55. "Mere allegations of taint ... may be adequate to survive a motion to dismiss where the complaint alleges other facts supporting the inference." McLin v. Ard , 866 F.3d 682, 690 (5th Cir. 2017) (internal quotation and citation omitted). However, some factual allegations, not merely "bare assertions" of taint, are required. See Shaw v. Villanueva , 918 F.3d 414, 418 (5th Cir. 2019).
Defendants assert, without any legal or factual support, that "[a]fter any warrantless arrest, any arrestee is taken before a magistrate judge for a probable cause hearing." See, e.g. , Def. Holden Enciso's Mot. to Dismiss ¶ 15. Therefore, they argue, this "intermediary's decision breaks the chain of causation for the Fourth Amendment violation" and requires dismissal of Plaintiff's false arrest claim. Id. (quoting Winfrey v. Rogers , 901 F.3d 483, 496 (5th Cir. 2018) ). The problems with this argument are manifold. Chiefly, at the 12(b)(6) stage, the Court accepts as true the well-pleaded allegations of the Complaint and draws all reasonable inferences in favor of Plaintiff. See Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 ; Calhoun , 312 F.3d at 733. Defendants ask the Court to turn this standard on its head: to infer from the absence of any reference to a magistrate hearing in the Complaint that such a hearing must have taken place and that probable cause to support the arrest must have been found. See, e.g. , Def. Holden Enciso's Mot. to Dismiss ¶ 15. The Court simply cannot do so at this stage of the proceedings.
Moreover, this is a civil rights case involving law enforcement officers, which hinges on alleged failures of the ordinary processes of criminal justice. The Court can no more assume that a hearing was held simply because the law requires it to be held, than it can assume that excessive force was not used because the police department maintains a policy against it. Furthermore, even if the Court were to accept Defendants' proposition that every warrantless arrestee in El Paso is taken before a magistrate judge for a probable cause hearing, it is certainly plausible that Plaintiff was subsequently released on the magistrate's finding that there was not, in fact, probable cause to justify his arrest.
While district courts sometimes dismiss false arrest claims under the independent intermediary doctrine at the 12(b)(6) stage, they do so on more than just the unsubstantiated allegations of the defendants. See Scott v. White , No. 1:16-cv-1287-RP, 2018 WL 2014093, at *3–4 (W.D. Tex. Apr. 30, 2018) ; Causey v. Parish of Tangipahoa , 167 F. Supp. 2d 898, 906 (E.D. La. 2001). In both Scott and Causey , the defendants submitted copies of arrest warrants in support of their independent intermediary arguments. Scott , 2018 WL 2014093, at *3 ; Causey , 167 F. Supp. 2d at 906. The courts took judicial notice of the state-court-issued warrants and dismissed the false arrest claims. Scott , 2018 WL 2014093, at *3–4 ; Causey , 167 F. Supp. 2d at 906, 911.
Further, even at summary judgment, courts have required defendants to produce a magistrate judge's probable cause determination in order to apply the independent intermediary doctrine to dismiss a plaintiff's claim. See Holcomb v. McCraw , 262 F. Supp. 3d 437, 452 (W.D. Tex. 2017). The Holcomb court found that the defendants were entitled to qualified immunity on the false arrest claims of two plaintiffs for whom the record contained a magistrate judge's determination that probable cause supported the challenged arrests. Id. However, for a third plaintiff, the defendants did not submit a magistrate judge's order. Id. at 452 n.4. Instead, they submitted only testimonial evidence that the third plaintiff was released on bond subject to certain conditions and asked the court to infer that a magistrate judge had found probable cause. See id. The Holcomb court found that this was insufficient to apply the independent intermediary doctrine and did not dismiss the third plaintiff's claim. See id.
Here, Defendants have supplied no evidence of a magistrate's probable cause determination. They ask the Court to assume that a probable cause hearing took place and that the magistrate found probable cause. The Court will not dismiss Plaintiff's claim on the basis of Defendants' unsubstantiated allegations. See id. Should Plaintiff choose to file an amended complaint, and should Defendants file a renewed motion to dismiss, the Court will not consider independent intermediary arguments unless they are supported by competent evidence. See Scott , 2018 WL 2014093, at *3–4 ; Causey , 167 F. Supp. 2d at 906. b. The Officers' collective allegations argument
The thrust of the Officers' second argument for dismissal of Plaintiff's false arrest claim is that the Court must address each of their assertions of qualified immunity independently but cannot properly do so because of the collective nature of Plaintiff's allegations. Plaintiff alleges that he "was approached by Defendants during [his brother's] detention," subjected to excessive force, and then arrested. Compl. ¶ 13. Defendants argue that this allegation commands an inference that some of the Officers remained on the far side of the street where Plaintiff's brother was being detained, while some other group of Officers crossed the street to arrest him. They argue that Plaintiff's false arrest claim must be dismissed because he does not specify which of the six Officers took him into custody.
Where officers work together to effectuate an arrest, federal district courts frequently analyze false arrest claims, including assertions of qualified immunity, concurrently as to all arresting officers. See, e.g. , Thomas v. City of Galveston , 800 F. Supp. 2d 826, 834–38 (S.D. Tex. 2011) ; Nitsch v. City of El Paso , 482 F. Supp. 2d 820, 826–28 (W.D. Tex. 2007). However, "[i]n cases where the defendants have not acted in unison, ‘qualified immunity claims should be addressed separately for each individual defendant.’ " Darden v. City of Fort Worth , 880 F.3d 722, 731 (5th Cir. 2018) (quoting Kitchen v. Dallas County , 759 F.3d 468, 480 (5th Cir. 2014) ). Furthermore, when an officer asserts qualified immunity, "a plaintiff cannot be allowed to rest on general characterizations, but must speak to the factual particulars of the alleged actions, at least when those facts are known to the plaintiff and are not peculiarly within the knowledge of defendants." Schultea v. Wood , 47 F.3d 1427, 1432 (5th Cir. 1995). Thus, when plaintiffs make only "collective allegations" against a group of police officers, without justification for the lack of individualization, they fail to overcome assertions of qualified immunity at the 12(b)(6) stage. See Bivens v. Forrest County , No. 2:13-CV-8-KS-MTP, 2015 WL 1457529, at *7 (S.D. Miss. Mar. 30, 2015).
However, several district courts in the Fifth Circuit have recognized that prior to undertaking any discovery, a § 1983 plaintiff who alleges mistreatment at the hands of a group of officers may not yet be able to describe with particularity the actions taken by each of them individually. See Delacruz v. City of Port Arthur , No. 1:18-cv-11, 2019 WL 1211843, at *6 (E.D. Tex. Mar. 14, 2019) ; Dyer v. City of Mesquite , No. 3:15-cv-2638-B, 2017 WL 118811, at *11 (N.D. Tex. Jan. 12, 2017) ; Crisp v. Dutton , No. A-15-cv-0431-LY-ML, 2015 WL 7076483, at *9 (W.D. Tex. Nov. 12, 2015) ; Khansari v. City of Houston , 14 F. Supp. 3d 842, 860 (S.D. Tex. 2014) ; Huff v. Refugio Cty. Sherriff's Dept. , No. 6:13-cv-32, 2013 WL 5574901, at *2 (S.D. Tex. Oct. 9, 2013) ; cf. Callaway v. City of Austin , No. 15-cv-103-SS, 2015 WL 4323174 (WD. Tex. July 14, 2015) ("The argument that a plaintiff failed to state a claim for excessive force simply because the witness could not see which officer did what fails at the summary judgment stage.") (emphasis added).
The approach of these courts has been to first determine whether the alleged actions—regardless of which defendant took them—would state a claim for a constitutional violation. See, e.g. , Dyer , 2017 WL 118811, at *3–4 ; Khansari , 14 F. Supp. 3d at 854–60. Then, if the plaintiff has plausibly alleged unconstitutional acts, courts defer ruling on qualified immunity and order discovery "narrowly tailored to uncover only those facts needed to rule on the immunity claim[s]." See Khansari , 14 F. Supp. 3d at 861 (quoting Backe v. LeBlanc , 691 F.3d 645, 648 (5th Cir. 2012) ).
In each of those cases, however, the plaintiffs affirmatively alleged that they were unable to specify what each officer had done to violate their constitutional rights. See, e.g. , Khansari , 14 F. Supp. 3d at 860 (quoting the plaintiffs' response brief, which stated that they "cannot accurately identify who kicked [one of the plaintiffs] to the ground or engaged in other specific acts other than the tasing and the pointing of weapons with verbal threats"). The Khansari plaintiffs were entitled to a preliminary determination of the merits of their claims against the officers collectively, followed by limited discovery aimed at ascertaining their specific identities, only because they alleged that they did not know that information. See Khansari , 14 F. Supp. 3d at 860.
Here, by contrast, Plaintiff has not alleged in either his Complaint or his Response whether he can identify the role played by each of the Officers. In fact, in his Response, Plaintiff fails to engage at all with the "collective allegations" argument made in the Officers' Motions. It is Plaintiff's burden to allege particular facts that refute the Officers' assertions of qualified immunity. See Lincoln , 874 F.3d at 847 ; Schultea , 47 F.3d at 1432. He is not subject to any heightened pleading standard; he need only provide "simple, concise, and direct" factual allegations that engage with the qualified immunity assertion. See Anderson v. Valdez , 845 F.3d 580, 589–90 (5th Cir. 2016). Even so, because Plaintiff has entirely failed to respond to Defendants' collective allegations argument—alleging neither the particular actions taken by the Officers individually nor his lack of knowledge of the same—the Court cannot say that he has carried his burden. Nor can the Court say, however, that Plaintiff has pled his "best case," such that his false arrest claim should be dismissed with prejudice. See Morin v. Caire , 77 F.3d 116, 121 (5th Cir. 1996). On the contrary, Plaintiff seems to recognize the shortcomings of his pleadings and their susceptibility to correction, arguing alternatively in his Response that he should be given leave to amend the Complaint. See Resp. 10.
Because Plaintiff has not made allegations that would refute the Officers' individual assertions of qualified immunity or allegations that would entitle him to limited discovery on the matter, his false arrest claim must be dismissed. However, it is dismissed without prejudice to re-pleading with a clear statement of whether Plaintiff knows the identity of any of the officers who 1) crossed the street to confront him, 2) took him into custody, or 3) remained on the far side of the street detaining his brother while the alleged false arrest took place. See O'Reilly v. Univ. of Miss. Med. Ctr. , No. 3:19CV65TSL-RHW, 2019 WL 2583520, at *5–6 (S.D. Miss. June 24, 2019) (ordering an amended complaint in lieu of a Schultea reply where the plaintiff's response included a request for leave to re-plead in the alternative). If Plaintiff is aware of any of this information, or any other information that may shed light on the false arrest claim, he must provide it in an amended complaint. See Schultea , 47 F.3d at 1432. On the other hand, if Plaintiff cannot identify the role played by some or all Officers, he must allege as much. See Khansari , 14 F. Supp. 3d at 854–61.
2. Plaintiff's Fourth Amendment excessive force claim
The Officers' argument for dismissal of Plaintiff's excessive force claim mirrors their second argument for dismissal of his false arrest claim. Because Plaintiff fails to specify which of the Officers used excessive force, they argue, the claim must be dismissed as to all of them. As previously discussed, it appears from Plaintiff's allegations that some of the Officers may have remained on the far side of the street while other Officers crossed the road to confront Plaintiff. Specifically, regarding the use of force, Plaintiff alleges that "several Defendants tased Plaintiff attacking him and tackling him to the ground." Compl. ¶ 13 (emphasis added). Defendants are quite right that the necessary corollary to this statement is that some of the named Defendants did not, in fact, tase, attack, or tackle him.
In order to succeed on his excessive force claim, Plaintiff must ultimately demonstrate that he suffered "(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 , 887 F.3d at 713 (quoting Windham v. Harris County , 875 F.3d 229, 242 (5th Cir. 2017) ). In addition to the Officers who allegedly used excessive force, Plaintiff may be able to state a claim against the other Officers who were present at the scene. See Whitley v. Hanna , 726 F.3d 631, 646 (5th Cir. 2013). Bystander liability attaches where an 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." Id. (quoting Randall v. Prince George's County , 302 F.3d 188, 204 (4th Cir. 2002) ). For both the Officers who allegedly used excessive force and those who allegedly stood by while it occurred, Plaintiff must overcome their assertions of qualified immunity. In order to do so, he must plausibly allege that no reasonable officer in their respective positions could believe the use of force to be lawful. See Darden , 880 F.3d at 727 (citing Manis v. Lawson , 585 F.3d 839, 846 (5th Cir. 2009) ).
As discussed in the preceding section, the fact-intensive nature of qualified immunity analyses typically requires an individualized approach. See Darden , 880 F.3d at 731. Plaintiff alleges that "several" officers used force against him, while others stood by in close proximity, and still others remained across the street detaining his brother, where they may not have been able to fully observe what transpired. Those who allegedly applied force to Plaintiff are held to a different standard than those who allegedly witnessed the use of force. See Whitley , 726 F.3d at 646–47. And, depending upon the nature and duration of the excessive force, the standard for bystander liability may apply differently to those who stood close enough to quickly intervene and those who remained farther away on the other side of the street. See Garrett v. Crawford , No. SA-15-CV-261-XR, 2016 WL 843391, at *9–10 (W.D. Tex. Mar. 1, 2016). The Court cannot fairly analyze qualified immunity without knowledge of which standard is to be applied to each Officer.
Therefore, and for substantially the same reasons discussed above in connection with Plaintiff's false arrest claim, Plaintiff's excessive force claim is dismissed without prejudice to re-pleading with a clear statement of whether he knows the identity of any of the Officers who 1) tased him, 2) tackled him to the ground, or 3) otherwise physically used force that he claims to be excessive. Plaintiff's amended complaint should also specify whether he knows 4) approximately how close each of the other Officers were when the allegedly excessive force was used. If Plaintiff is aware of any of this information, or any other information that sheds light on the excessive force claim, he must provide it in an amended complaint; if he is not, he must clearly allege his lack of knowledge. See Schultea , 47 F.3d at 1432 ; Khansari , 14 F. Supp. 3d at 854–61.
3. Plaintiff's inadequate training and supervision claim
All Defendants argue that Plaintiff's claim for inadequate training and supervision fails. The City principally argues that Plaintiff's claim must be dismissed because he fails to adequately allege "a pattern, custom, or practice that has caused a constitutional deprivation." City's Mot. ¶ 14. The Officers argue that claims against them in their official capacity are essentially claims against the City, and because the City is named as a Defendant, the claims against them should be dismissed as redundant. "A claim against an officer in his official capacity is treated as a claim against the municipality." Jordan v. Brumfield , 687 F. App'x 408, 415 (5th Cir. 2017) (citing Brooks v. George County , 84 F.3d 157, 165 (5th Cir. 1996) ). The same considerations govern the viability of Plaintiff's § 1983 municipal liability claim as against the City and as against the Officers in their official capacities. See id.
In Monell v. Department of Social Services , 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), the Supreme Court held that "a municipality cannot be held liable under § 1983 on a respondeat superior theory." Id. at 691, 98 S.Ct. 2018. Instead, municipal liability under § 1983 requires a plaintiff to 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 Houston , 613 F.3d 536, 541–42 (5th Cir. 2010) (quoting Pineda v. City of Houston , 291 F.3d 325, 328 (5th Cir. 2002) ). 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 Houston , 735 F.2d 838, 841 (5th Cir. 1984). Where 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, 171 (5th Cir. 2010). 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 Dallas , 541 F.3d 545, 548 (5th Cir. 2008).
Plaintiff alleges "a persistent and widespread practice ... so common and well settled as to constitute a custom that fairly represents municipal policy for the Defendant City of El Paso." Compl. ¶ 24. This practice, he alleges, has been "directed, encouraged, allowed, and/or ratified by the highest active acting policymakers in the El Paso Police Department" and includes a failure "to properly train, instruct, monitor, supervise, and discipline" their police officers. Id. ¶¶ 24, 26. Substantively, the alleged custom has two dimensions: 1) to use and tolerate the use of excessive force, and 2) to use unreasonably aggressive policing tactics that make the use of excessive force more likely. See id.
While styled only as a claim for "inadequate training and supervision," these allegations sketch the contours of two of the four varieties of § 1983 municipal liability claims described above: widespread practice and failure to train. However, they do not suffice to state a plausible claim for relief under either theory. First, in order to prevail on a widespread practice or customary policy claim, Plaintiff must ultimately prove a pattern of similar unconstitutional acts that "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," as opposed to "isolated instances." McConney v. City of Houston , 863 F.2d 1180, 1184 (5th Cir. 1989) (citations omitted). A pattern also requires similarity and specificity, as "[p]rior indications cannot simply be for any and all ‘bad’ or unwise acts, but rather must point to the specific violation in question." Estate of Davis ex rel. McCully v. City of North Richland Hills , 406 F.3d 375, 383 (5th Cir. 2005).
Plaintiff explicitly repudiates any allegation of a formal, official policy. Compl. ¶ 24 ("[T]he following customs and/or policies ... although not authorized by officially adopted and promulgated policy , are so common and well settled as to constitute a custom ....") (emphasis added). And, Plaintiff's Complaint does not contain any allegations of a "single unconstitutional action" performed by a "final policymaker." See Bolton , 541 F.3d at 548. Therefore, the Court limits its analysis to widespread-practice and failure-to-train Monell claims against the City.
While a detailed catalogue of similar incidents may not always be available to plaintiffs at the 12(b)(6) stage, a widespread practice claim must ordinarily at least "identify[ ] similar incidents" to survive dismissal. Skyy v. City of Arlington , 712 F. App'x 396, 401 (5th Cir. 2017) ; see also Oporto v. City of El Paso , No. EP-10-cv-110-KC, 2010 WL 3503457, at *6 (W.D. Tex. Sept. 2, 2010) (collecting cases and noting that "the recitation of a list of similar prior incidents" is often sufficient for such claims to survive a motion to dismiss). Even prior to the adoption of Twombly and Iqbal 's pleading requirements, the Fifth Circuit noted that "[t]he description of a policy or custom and its relationship to the underlying constitutional violation, moreover, cannot be conclusory; it must contain specific facts." Spiller v. City of Texas City , 130 F.3d 162, 167 (5th Cir. 1997).
Other plaintiffs in this district have successfully used publicly available information and statistics to augment their § 1983 municipal liability complaints with detailed factual support. See, e.g. , Ramirez v. Escajeda , 298 F. Supp. 3d 933, 943 (W.D. Tex. 2018). For example, Plaintiffs whose widespread practice claims have survived dismissal have identified previous lawsuits that raised claims similar to their own underlying claims against individual officers. See, e.g. , Barr v. City of San Antonio , No. 06-cv-261, 2006 WL 2322861, at *4 (W.D. Tex. July 25, 2006).
Here, Plaintiff identifies no incidents of excessive force beyond what happened to him on the day in question. Nor does he otherwise plead any facts that would put a municipal policymaker on notice of a custom or widespread practice of excessive force. Indeed, the relevant portion of the Complaint contains little more than the boilerplate recitation of the elements of a municipal liability claim. Therefore, his widespread practice allegations fail to state a claim upon which relief may be granted and must be dismissed without prejudice to re-pleading with the requisite factual support. See Thomas v. City of Galveston , 800 F. Supp. 2d 826, 845 (S.D. Tex. 2011) (dismissing widespread practice claim where the complaint contained only "generic restatements of the elements of such a claim" without even "minimal factual allegations"). Plaintiff's failure to train claim is also dismissed without prejudice, for substantially the same reasons. "A municipality's culpability for a deprivation of rights is at its most tenuous where a claim turns on a failure to train." Connick v. Thompson , 563 U.S. 51, 61, 131 S.Ct. 1350, 179 L.Ed.2d 417 (2011). As with a widespread practice claim, allegations of multiple incidents of fairly similar unconstitutional conduct are typically necessary to survive dismissal. See Speck v. Wiginton , 606 F. App'x 733, 736 (5th Cir. 2015) (citing Connick , 563 U.S. at 62, 131 S.Ct. 1350 ). As discussed above, Plaintiff's Complaint contains no such allegations.
Nor has Plaintiff provided any allegations that would place this case within the "narrow and extreme circumstances" where a single incident of unconstitutional conduct can support a failure to train claim. See Littell v. Hous. Indep. Sch. Dist. , 894 F.3d 616, 627 (5th Cir. 2018). The Supreme Court provided a hypothetical incident that would fall within this category, wherein a municipality "arms its police force with firearms and deploys the armed officers into the public to capture fleeing felons without training the officers in the constitutional limitation on the use of deadly force." Connick , 563 U.S. at 63, 131 S.Ct. 1350 (citing City of Canton , 489 U.S. at 390 n.10, 109 S.Ct. 1197 ). Plaintiff's claims are not comparable to this hypothetical or to Fifth Circuit case law applying the single incident exception. For instance, in Littell , the plaintiff alleged that school officials had been provided with no training whatsoever on the constitutional standards for searches and then expressly given the authority to search students. 894 F.3d at 625–27. When the school officials were ultimately alleged to have conducted unconstitutional strip searches, the court found it plausible that the constitutional violations were an inevitable consequence of the total failure to train. See id. In both Littell and Connick , a glaring and "complete failure to train" made the ensuing constitutional violation an "obvious consequence," so that the plaintiff did not need to allege a pattern. See id. at 627–28. Here, by contrast, Plaintiff does not allege that the City provided its police officers with no training whatsoever on the use of force before deploying them into the public. He merely alleges—with no further explanation or factual support—that the City "failed to properly train" its officers. Compl. ¶ 13. For these reasons, Plaintiff provides no allegations that make the single incident exception applicable here. See Speck , 606 F. App'x at 737.
Having pleaded neither a pattern of unconstitutional conduct nor facts supporting application of the single incident exception, Plaintiff's failure to train claim is dismissed without prejudice. See id. As with his widespread practice claim, Plaintiff is granted leave to amend his Complaint to provide concrete allegations of a pattern of similar unconstitutional conduct or other facts that would permit this claim to survive dismissal.
4. Plaintiff's TTCA negligence claim
Lastly, Defendants argue that Plaintiff's negligence claim under the TTCA must be dismissed. The City argues that the TTCA does not waive sovereign immunity for claims arising out of the conduct alleged here. Plaintiff's TTCA claim alleges that Defendants have been negligent in two ways: 1) in the course of using excessive force against him, and 2) by failing to properly "train, instruct, monitor, supervise, and discipline" the Officers. Neither of these claims are cognizable under the TTCA.
As to the first alleged basis for liability, "[a] municipality, as a political subdivision of the state, is not liable for the acts or conduct of its officers or employees unless the municipality's common law immunity is waived by the [TTCA]." City of Lancaster v. Chambers , 883 S.W.2d 650, 658 (Tex. 1994). And, "[the TTCA] does not waive immunity for claims arising out of intentional torts." Saenz v. City of El Paso , 637 F. App'x 828, 830 (5th Cir. 2016) (quoting City of Watauga v. Gordon , 434 S.W.3d 586, 594 (Tex. 2014) ); see also Tex. Civ. Prac. & Rem. Code § 101.057 (West 2019) (excluding intentional torts from the TTCA). Therefore, "[i]f a plaintiff pleads facts which amount to an intentional tort, no matter if the claim is framed as negligence, the claim generally is for an intentional tort and is barred by the TTCA." Saenz , 637 F. App'x at 830 (quoting Harris County v. Cabazos , 177 S.W.3d 105, 111 (Tex. App. 2005) ). In Saenz , the plaintiff brought an excessive force claim against a police officer for shooting and killing her son. See id. at 831. She also brought a negligence claim against the police officer's municipal employer under the TTCA, arising out of the same conduct. See id. Because the negligence claim was rooted in the same facts as the excessive force claim, the Fifth Circuit affirmed dismissal of the TTCA claim, as an intentional tort erroneously pleaded as negligence. See id. (citing Goodman v. Harris County , 571 F.3d 388, 394 (5th Cir. 2009) ). Because Plaintiff also brings a TTCA claim that arises out of the same conduct as his excessive force claim, and because such claims are not cognizable under the TTCA, this cause of action is dismissed with prejudice. See id. ; see also Stripling v. Jordan Prod. Co. , 234 F.3d 863, 872–73 (5th Cir. 2000) (holding that an amendment to a complaint is futile and leave to amend may be denied where, if amended, the complaint would still fail to state a claim for which relief can be granted).
As to Plaintiff's second theory, "[t]he TTCA is ... not the appropriate vehicle for claims of negligent failure to train or supervise." Goodman , 571 F.3d at 394 (citing Tex. Dep't of Pub. Safety v. Petta , 44 S.W.3d 575, 580 (Tex. 2001) ). The Texas Supreme Court has explained that this is because the TTCA does not waive immunity for all negligence claims, but only where the plaintiff's injury results from the "condition or use of tangible personal or real property." Petta , 44 S.W.3d at 580 (quoting Tex. Civ. Prac. & Rem. Code § 101.021(2) (West 2019)). A failure to train, reasoned the Petta court, does not involve the use tangible property to injure its victims. See id. Because federal courts are bound by the Texas Supreme Court's interpretation of Texas statutes, Plaintiff's TTCA claim predicated on a failure to train must also be dismissed with prejudice. See Goodman , 571 F.3d at 394 ; Stripling , 234 F.3d at 872–73.
For their part, the Officers argue that an election of remedies provision, or alternatively, an immunity provision of the TTCA, operates to mandate the dismissal of these claims, as against them. See Tex. Civ. Prac. & Rem. Code § 101.106(a), (f) (West 2019). As they point out, however, the Complaint is somewhat ambiguous as to which Defendants—all of them or just the City—are being sued under the TTCA. Regardless, "[i]ndividuals may not be sued under the TTCA as the act ‘does not govern suits brought directly against an employee of the State.’ " Goodman , 571 F.3d at 394 (quoting Huntsberry v. Lynaugh , 807 S.W.2d 16, 17 (Tex. App. 1991) ); see also Tex. Civ. Prac. & Rem. Code § 101.102(b) (West 2019) ("The pleadings of the suit must name as defendant the governmental unit against which liability is to be established."). Whether or not Plaintiff has attempted to sue the Officers under the TTCA, he cannot do so. See Huntsberry , 807 S.W.2d at 17. Such claims, to the extent they have been brought, are dismissed with prejudice. See id. ; Stripling , 234 F.3d at 872–73.
Nor can the Court grant Plaintiff leave to re-plead his claim under a theory of common law battery—instead of the erroneous TTCA claim—against the Officers in their individual capacities. This is because "[t]he filing of a suit under this chapter against a governmental unit constitutes an irrevocable election by the plaintiff and immediately and forever bars any suit or recovery by the plaintiff against any individual employee of the governmental unit regarding the same subject matter." Tex. Civ. Prac. & Rem. Code § 101.106(a) (West 2019). "[A]ll tort theories alleged against a government unit, whether it is sued alone or together with its employees, are assumed to be ‘under [the TTCA]’ for the purposes of section 101.106." Mission Consol. Indep. Sch. Dist. v. Garcia , 253 S.W.3d 653, 659 (Tex. 2008).
Counterintuitively, this provision "operate[s] to bar an intentional tort claim against an employee ... even though the Act by its terms expressly excluded intentional torts from the scope of the Act's immunity waiver." See id. at 658. Here, it is undisputed that Plaintiff has sued the City under the TTCA. Therefore, by the plain language of this provision and the gloss placed on it by Texas courts, Plaintiff may not file any tort claim against the Officers now that he has made the irrevocable election to sue the City. See Tex. Civ. Prac. & Rem. Code § 101.106(a) (West 2019); Garcia , 253 S.W.3d at 659.
III. CONCLUSION
For the foregoing reasons, the City's Motion, ECF No. 22, is GRANTED in part. Plaintiff's TTCA claims against the City are DISMISSED with prejudice. Plaintiff's § 1983 municipal liability claims against the City for widespread practice and failure to train are DISMISSED without prejudice. Plaintiff may FILE an Amended Complaint, by no later than December 2, 2019 , in which he may re-plead his § 1983 municipal liability claim.
IT IS FURTHER ORDERED that the Officers' Motions, ECF Nos. 4, 27, 28, 30, 31, 32, are GRANTED in part. To the extent that they have been brought, Plaintiff's TTCA claims against the Officers are DISMISSED with prejudice. Plaintiff's § 1983 municipal liability claims against the Officers in their official capacities for widespread practice and failure to train, as well as Plaintiff's § 1983 false arrest and excessive force claims against the Officers in their individual capacities, are DISMISSED without prejudice. Plaintiff may FILE an Amended Complaint, by no later than December 2, 2019 , in which he may re-plead his § 1983 claims against the Officers.
IT IS FURTHER ORDERED that the stay in this case, entered pursuant to the Court's July 8, 2019, Order, is hereby LIFTED .
Plaintiff's failure to file an amended complaint on or before December 2, 2019, may result in dismissal of his case.