Crenshaw v. Anderson — Entry #18: FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

Case 3:24-cv-00731-L     Document 18        Filed 02/13/25   Page 1 of 44   PageID 171


                 IN THE UNITED STATES DISTRICT COURT
                 FOR THE NORTHERN DISTRICT OF TEXAS
                           DALLAS DIVISION


TOMYIA CRENSHAW,                        §
        Plaintiff,                      §
                                        §
V.                                      §              No. 3: 24-CV-731-L
                                        §
LEONARD ANDERSON, et al.,               §
        Defendants.                     §

          FINDINGS, CONCLUSIONS, AND RECOMMENDATION
             OF THE UNITED STATES MAGISTRATE JUDGE

      Before the Court are two motions to dismiss pursuant to Rule 12(b)(6) of the

Federal Rules of Civil Procedure. Defendant City of Dallas (the “City”) filed its

motion on April 30, 2024, (Dkt. No. 7) (“City Mot.”), and Defendants Leonard

Anderson and Darrien Robertson (together, “Officers”) filed their motion on June 3,

2024 (Dkt. No. 12) (“Officers Mot.”).

      Pursuant to 28 U.S.C. § 636(b), United States District Judge Sam Lindsay

referred both motions to the undersigned magistrate judge for hearing, if necessary,

and for proposed findings and recommendations for disposition of the motions. (See

Dkt. Nos. 8, 14, 17.) Upon careful review of the complaint, the parties’ briefing, and

the relevant case law, the undersigned finds that the City’s Motion (Dkt. No. 7)

should be GRANTED, and the Officers’ Motion (Dkt. No. 12) should be

GRANTED.


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                                  I. BACKGROUND

       Plaintiff filed his complaint on March 27, 2024. (See Dkt. No. 1) (“Compl.”).)

Plaintiff alleges that on May 13, 2022, 1 around 2:20 a.m., Dallas Police Department

(“DPD”) officers Senior Corporal Anderson and Officer Trainee Robertson were

patrolling South Dallas. (See Compl. ¶ 24.) Anderson was training Robertson at the

time. (Id.) The Officers were stationed near a Chevron gas station when they saw a

red vehicle driven by Plaintiff, leave the gas station and turn down Martin Luther

King, Jr. Boulevard without its headlights on. (Id.)

       The Officers attempted to stop Plaintiff, and a high-speed chase ensued. (See

Compl. ¶¶ 2, 25.) Plaintiff alleges he was concerned because “a random vehicle

[began] to chase him.” (Id. ¶ 2.) Plaintiff alleges that the lights and sirens were

activated “eventually” (Compl. ¶ 2), but the City maintains that the lights and sirens

were activated “[a]t the pursuit’s inception” (City Mot. at 2). According to Plaintiff,

the Officers deactivated the lights and siren toward the end of the pursuit “but

continued to follow Plaintiff’s vehicle at high speeds as if the pursuit was ongoing.”

(Compl. ¶ 25.) Plaintiff also alleges that engaging in a high-speed pursuit was a

direct violation of DPD policy, since Plaintiff had not committed any crimes and

was not wanted for a felony or in the process of a felony. (Id.)


       1
         Defendants point out (and the Court acknowledges) that the complaint recites the
date of the incident as both May 13, 2020 (see Compl. ¶ 1) and May 13, 2022 (see id. ¶ 24).
May 13, 2022, however, appears to be the correct date. (See Dkt. No. 11 at 2; Dkt. No. 15
at 2.)
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       Plaintiff alleges that after the Officers deactivated lights and sirens, dashboard

camera (“dashcam”) footage from the Officers’ vehicle showed that Plaintiff’s vehicle

“jumped a curb,” “crashed at a high rate of speed,” and “immediately burst into

flames.” (Id. ¶ 26.) The Officers allegedly saw the crash but did not stop,

“continuing their way without checking on the driver.” (Id. at ¶ 27.) Plaintiff avers


that dashcam footage showed the Officers driving by the wreckage, and Anderson

stated, “That’s his fault.” (Id.) Bystanders pulled Plaintiff from the car and carried

him away “as flames began to consume the vehicle.” (Id. ¶¶ 28, 30.) The Officers

later returned to the scene after hearing on the police radio that a vehicle was in

flames. (Id. ¶ 28.) When the Officers returned to the scene, body camera video

showed paramedics tending to Plaintiff “as other police officers face[d] off against

angry onlookers who had seen Anderson and Robertson drive off.” (Id.)

       Plaintiff alleges that DPD Chief Eddie Garcia “said he [was] appalled and

embarrassed by the incident.” (Compl. ¶ 34.) Plaintiff further alleges that the

Officers “violated numerous policies and procedures by improperly engaging in a

high-speed vehicle chase and failing to stop and render aid.” (Id. ¶ 35.)

       Plaintiff alleges that he suffered third degree burns over 50 percent of his body,

some “to the bone,” as well as a broken arm, leg, collar bone, hip, and ribs. (Compl.

¶ 31.) Due to his extensive injuries, Plaintiff was hospitalized from the date of the

incident, May 13, 2022, through September 3, 2022. (Id.) Plaintiff also alleges that

he is still receiving outpatient treatment due to his injuries; he is unable to stand or


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walk for any length of time; and he must now use a wheelchair or a walker to

perform many activities of daily living. (Id. at ¶ 32.)

      Plaintiff’s complaint alleges six causes of action:

      1.     Excessive Deadly Force, pursuant to 42 U.S.C. § 1983 (Against
             Defendants Anderson and Robertson);

      2.     Failure To Render Medical Aid, pursuant to 42 U.S.C. § 1983
             (Against All Defendants);

      3.     Municipal Liability, pursuant to 42 U.S.C. § 1983 (Against the
             City);

      4.     Texas Civil Practice and Remedies Code § 101.021, also known
             as the Texas Tort Claims Act (“TTCA”) (Against the City);

      5.     Respondeat Superior (Against the City); and

      6.     Exemplary Damages.

(Compl. ¶¶ 45-62.)

      On May 21, 2024, Plaintiff filed a response to the City’s motion (Dkt. No. 11)

(“Resp. City”), and the City filed a reply on June 4, 2024 (Dkt. No. 13) (“City

Repl.”). On June 24, 2024, Plaintiff filed a response to the Officers’ motion (Dkt.

No. 15) (“Resp. Officers”), and the Officers filed a reply on July 5, 2024 (Dkt. No.

16) (“Officers Repl.”). Accordingly, the motions are ripe for determination.

                              II. LEGAL STANDARDS

A.    12(b)(6) Motion to Dismiss

      To defeat a motion to dismiss filed pursuant to Federal Rule of Civil

Procedure 12(b)(6), a plaintiff must plead “enough facts to state a claim to relief that

is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); Reliable


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Consultants, Inc. v. Earle, 517 F.3d 738, 742 (5th Cir. 2008). To meet this “facial

plausibility” standard, a plaintiff must “plead[ ] 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 (2009). The court must accept well-

pleaded facts as true and view them in the light most favorable to the plaintiff.

Sonnier v. State Farm Mut. Auto. Ins., 509 F.3d 673, 675 (5th Cir. 2007). However, the

court does not accept as true “conclusory allegations, unwarranted factual inferences,

or legal conclusions.” Ferrer v. Chevron Corp., 484 F.3d 776, 780 (5th Cir. 2007)

(citation omitted). A plaintiff must provide “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 (citation omitted). “Factual allegations must be enough to raise a right to

relief above the speculative level . . . on the assumption that all the allegations in the

complaint are true (even if doubtful in fact).” Id. (citations omitted).

      “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 (2009). “The plausibility

standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer

possibility that a defendant has acted unlawfully.” Id. And “[a] claim for relief is

implausible on its face when ‘the well-pleaded facts do not permit the court to infer

more than the mere possibility of misconduct.’” Harold H. Huggins Realty, Inc. v.

FNC, Inc., 634 F.3d 787, 796 (5th Cir. 2011) (quoting Iqbal, 556 U.S. at 679); see also


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Inclusive Communities Project, Inc. v. Lincoln Prop. Co., 920 F.3d 890, 899 (5th Cir.

2019) (“Where the well-pleaded facts of a complaint do not permit a court to infer

more than the mere possibility of misconduct, the complaint has alleged – but it has

not ‘show[n]’ – ‘that the pleader is entitled to relief.’” (quoting Iqbal, 556 U.S. at 678

(quoting, in turn, Fed. R. Civ. P. 8(a)(2)))).

       Federal Rule of Civil Procedure 8(a)(2) does not mandate detailed factual

allegations, but it does require that a plaintiff allege more than labels and

conclusions. And, while a court must accept a plaintiff's factual allegations as true, it

is “not bound to accept as true a legal conclusion couched as a factual allegation.”

Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555).

       In ruling on a Rule 12(b)(6) motion, the court limits its review to the face of

the pleadings. See Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir. 1999). The

pleadings include the complaint and any documents attached to it. Collins v. Morgan

Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000). The ultimate question is

whether the complaint states a valid claim when viewed in the light most favorable to

the plaintiff. Great Plains Tr. Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305,

312 (5th Cir. 2002). At the motion to dismiss stage, the court does not evaluate the

plaintiff's likelihood of success. It only determines whether the plaintiff has stated a

claim upon which relief can be granted. Mann v. Adams Realty Co., 556 F.2d 288, 293

(5th Cir. 1977).


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C.     Municipal Liability

       The above general pleading standards also apply to a claim against a

municipality. See Hutcheson v. Dall. Cnty., Tex., 994 F.3d 477, 482 (5th Cir. 2021)

(“There is no heightened pleading standard for [42 U.S.C.] § 1983 claims against

municipalities. To survive a motion to dismiss, the complaint need not contain

detailed factual allegations but still must state sufficient facts to establish a plausible

claim on its face.” (citing Littell v. Hous. Indep. Sch. Dist., 894 F.3d 616, 622 (5th Cir.

2018))).

       Because “[a] person may sue a municipality that violates his or her

constitutional rights [only] ‘under color of any statute, ordinance, regulation,

custom, or usage,’” id. (quoting Section 1983; citing Monell v. Dep't of Soc. Servs., 436

U.S. 658, 690 (1978)), a plaintiff alleging a Monell claim “has two burdens: to

[plausibly allege] (1) that a constitutional violation occurred and (2) that a municipal

policy was the moving force behind the violation,” Sanchez v. Young Cnty., Tex., 956

F.3d 785, 791 (5th Cir. 2020) (citing Monell, 436 U.S. at 694). “In municipal-liability

cases,” therefore, the threshold question “is whether the complained-of ‘act may

fairly be said to represent official policy.’” Id. at 792-93 (cleaned up; quoting Monell,

436 U.S. at 694); see also Hutcheson, 994 F.3d at 483 (rejecting the argument that a

district court errs by dismissing a Monell claim without first analyzing the underlying

constitutional violation).


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      Accordingly, a plaintiff may proceed on a Monell claim only by identify[ing]

“(1) an official policy (or custom), of which (2) a policy maker can be charged with

actual or constructive knowledge, and (3) a constitutional violation whose moving

force is that policy (or custom).” Pineda v. City of Hous., 291 F.3d 325, 328 (5th Cir.

2002) (cleaned up). Municipalities are not liable “on the theory of respondeat

superior” and are “almost never liable for an isolated unconstitutional act on the part

of an employee.” Peterson v. City of Fort Worth, 588 F.3d 838, 847 (5th Cir. 2009); see

also Hutcheson, 994 F.3d at 482; Brown v. Tarrant Cnty., Tex., 985 F.3d 489, 497 &

n.11 (5th Cir. 2021) (noting that where a plaintiff's claim fails as to one prong, a

court “need not consider whether [his] claim also fails the other two Monell prongs”

(citing Zarnow v. City of Wichita Falls, 614 F.3d 161, 168-69 (5th Cir. 2010))).

      “Official policy can arise in various forms. It usually exists in the form of

written policy statements, ordinances, or regulations, but may also arise in the form

of a widespread practice that is ‘so common and well-settled as to constitute a

custom that fairly represents municipal policy.’” James v. Harris Cnty., 577 F.3d 612,

617 (5th Cir. 2009) (quoting Piotrowski v. City of Hous., 237 F.3d 567, 579 (5th Cir.

2001) (quoting, in turn, Webster v. City of Hous., 735 F.2d 838, 841 (5th Cir. 1984) (en

banc))); see also Brown, 985 F.3d at 497 (“An ‘official policy’ may take two forms –

either a ‘policy statement formally announced by an official policymaker’ or a

‘persistent widespread practice of city officials or employees, which, although not

authorized by officially adopted and promulgated policy, is so common and well


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settled as to constitute a custom that fairly represents municipal policy.’” (quoting

Zarnow, 614 F.3d at 168-69)).

       “To proceed beyond the pleading stage, a complaint’s ‘description of a policy

or custom and its relationship to the underlying constitutional violation . . . cannot

be conclusory; it must contain specific facts.’” Peña, 879 F.3d at 622 (quoting Spiller

v. City of Tex. City, Police Dep’t, 130 F.3d 162, 167 (5th Cir. 1997); footnote omitted);

see also Pinedo, 2015 WL 5021393, at *5 (N.D. Tex. Aug. 25, 2015) (“To establish a

custom, a plaintiff must demonstrate (and, at the pleading stage, must plausibly

plead) ‘a pattern of abuses that transcends the error made in a single case.’” (quoting

Piotrowski, 237 F.3d at 582)).

C.     Qualified Immunity

       Under 42 U.S.C. § 1983, private citizens may sue public officials for violations

of their federal statutory or constitutional rights. See Monroe v. Pape, 365 U.S. 167,

171 (1961). Section 1983, however, shields public officials from civil liability under

the doctrine of qualified immunity “so long as their conduct ‘does not violate clearly

established statutory or constitutional rights of which a reasonable person would

have known.’” Mullenix v. Luna, 577 U.S. 7, 11 (2015) (quoting Pearson v. Callahan,

555 U.S. 223, 231 (2009)); see also Gibson v. Rich, 44 F.3d 274, 277 (5th Cir. 1995).

“[T]he immunity issue must be resolved at the earliest possible stage of the litigation

since it entails an entitlement to immunity from suit and not merely a defense to

liability.” Gibson, 44 F.3d at 277 (citing Hunter v. Bryant, 502 U.S. 224, 226 (1991)).


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Since the motion to dismiss stage is the earliest possible stage of litigation, the issue

of qualified immunity must be decided then if properly raised. See Carswell v. Camp,

37 F.4th 1062, 1067-68 (5th Cir. 2022).

       “A public official is entitled to qualified immunity unless the plaintiff

demonstrates that (1) the defendant violated the plaintiff's constitutional rights and

(2) the defendant's actions were objectively unreasonable in light of clearly

established law at the time of the violation.” Porter v. Epps, 659 F.3d 440, 445 (5th

Cir. 2011). To be “‘clearly established,’ the contours of the right must be sufficiently

clear that a reasonable official would understand that what he is doing violates the

right.” Anderson v. Creighton, 483 U.S. 635 (1987). “Both steps in the qualified

immunity analysis are questions of law.” Wyatt v. Fletcher, 718 F.3d 496, 503 (5th

Cir. 2013). A good-faith assertion of qualified immunity alters the usual burden of

proof, “shifting it to the plaintiff to show that the defense is not available.” Ratliff v.

Aransas Cnty., 948 F.3d 281, 287 (5th Cir. 2020). An officer is entitled to qualified

immunity “if there is no violation, or if the conduct did not violate law clearly

established at the time.” Bailey v. Iles, No. 22-30509, 2023 WL 8062239 at *2 (5th

Cir. Nov. 21, 2023). Courts have the discretion to decide “which of the two prongs

of the qualified immunity analysis should be addressed first in light of the

circumstances in the particular case at hand.” Pearson, 555 U.S. at 236.


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                                   III. ANALYSIS

       Plaintiff alleges that the Officers violated his Fourth and Fourteenth

Amendment rights to be free from excessive force and unreasonable searches and

seizures. (Compl. ¶¶ 45-50.) Plaintiff does not allege that the Officers physically

struck, detained, or arrested him. (See generally Compl.) Rather, Plaintiff alleges that

(1) the Officers’ improper high-speed pursuit created a dangerous situation that

resulted in the car crash; and then (2) the Officers failed to render aid. (See Compl.

¶¶ 3, 4.)

       Plaintiff’s municipal liability claims against the City amount to allegations that

the City’s policies caused the alleged bad acts of the Officers because DPD failed to

properly train and discipline the Officers and failed to “implement policies and/or

create an atmosphere that that prohibited the very destructive, biased, and reckless

conduct of Officers Anderson and Robertson.” (Compl. ¶ 35; see also ¶¶ 60-61.)

Plaintiff also alleges that “DPD has failed to enact proper policies and procedures

concerning rendering emergency medical treatment and has failed to properly train

its officers with respect to providing emergency medical treatment. DPD has been

made aware of its failures several times.” (Id. ¶ 37.)

A.     Preliminary Matters

       1.    Plaintiff objects the Court finding guidance from cases deciding
             summary judgment motions.

       Plaintiff contends that Defendants are “subject[ing] [him] to a higher standard

than is required or permitted under Rule 12(b)(6)” because they cite cases decided on


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appeal from summary judgment. (See Resp. City at 5; Resp. Officers at 9.) Without

citing any authority, Plaintiff claims that Defendants’ reliance on cases at the

summary-judgment stage is “improper, because it is well established that ‘the

evidentiary burden on the non-movant in a summary judgment motion is

significantly greater than in a motion to dismiss.” (Id. (citing Reese v. Anderson, 926

F.2d 494, 498 (5th Cir. 1991).) While this is a true statement about the differing

burdens, it does not mean that the substantive legal principles expressed in these

cases are irrelevant in the context of a motion to dismiss. See, e.g., Rogers v. Home

Shopping Network, Inc., 57 F. Supp. 2d 973, 984 n.5 (C.D. Cal. 1999) (explaining that

while the standards by which a court decides a question of law are significant, “the

issue of who bears the ‘burden of proof’ regarding those standards cannot affect the

legal question” that such a motion would present).

      And even if the procedural posture of the cases cited by Defendants occurred

at the summary-judgment stage, because “more general” allegations are permitted at

the motion-to-dismiss stage, “the Court must only evaluate whether Plaintiffs pled

sufficient facts that would allow it to draw the reasonable inference that Defendants

are liable for the alleged misconduct.” Oporto v. City of El Paso, No. EP-10-CV-110,

2010 WL 3503457, at *6 (W.D. Tex. Sept. 2, 2010) (cleaned up). Contrary to

Plaintiff’s contentions, the fact that questions of law may be decided at this phase by

relying on cases deciding those questions at the summary-judgment phase does not

mean that Plaintiff is held to the higher summary-judgment standard.


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       In addition, recent cases on Rule 12(b)(6) motions in the § 1983 context from

the Fifth Circuit, as well as this Court, reveal that a decision’s procedural posture

does not preclude the application of its legal holdings in a dismissal context. See, e.g.,

Moore v. City of Dallas, Tex., No. 23-10566, 2024 WL 913368, at *3 (5th Cir. Mar. 4,

2024) (unpublished) (upholding rule 12(b)(6) dismissal of common law tort claims

against officer (citing Shinn on Behalf of Shinn v. Coll. Station Indep. Sch. Dist., 96 F.3d

783, 785 (5th Cir. 1996) (appeal from summary judgment); Monacelli v. City of Dallas,

No. 3:21-CV-2649-L, 2023 WL 6370753, at *1 (N.D. Tex. Sept. 29, 2023) (granting

rule 12(b)(6) dismissal of Monell claims (citing Monell v. Dep’t of Soc. Servs. of City of

New York, 436 U.S. 658, 661 (1978) (appeal from “cross-motions for summary

judgment”); Rusanowsky v. City of Dallas, No. 3:22-CV-01132-K, 2023 WL 2728722,

at *5 (N.D. Tex. Mar. 30, 2023) (granting rule 12(b)(6) dismissal of Monell claims

(citing City of Canton, Ohio v. Harris, 489 U.S. 378, 381 (1989) (appeal from “[a] jury

trial.”); and Vess v. City of Dallas, No. 3:21-CV-1764-D, 2022 WL 625080, at *7 (N.D.

Tex. Mar. 3, 2022) (granting rule 12(b)(6) dismissal of Monell claims (citing Piotrowski

v. City of Houston, 237 F.3d 567, 582 (5th Cir. 2001), appeal from jury trial).

       Therefore, Plaintiff’s concern that the Court might be “swayed by

Defendant[s’] attempt to raise the pleading standard” (see Resp. City at 5; Resp.

Officers at 10) is unfounded. The Court will apply relevant case law for the purposes

of determining questions of law using the applicable legal standard. See Oporto, 2010

WL 3503457, at *6.


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       2.      Plaintiff disclaims any reliance on a state-created danger theory of
               liability.

       The Officers and the City argue in their motions that Plaintiff’s allegations

most resemble “state-created danger” theories of liability and that dismissal is

warranted because this theory is not recognized by the Fifth Circuit. 2 (See Officers

Mot. at 5; City Mot. at 8.) Although Defendants are correct that this theory is not

recognized by the Fifth Circuit, Plaintiff avers that he is not claiming a “state-created

danger” theory of liability. (See Resp. Officers at 11; Resp. City at 13.) Accordingly,

the undersigned will not consider Defendants’ state-created danger liability

arguments as grounds for dismissal.

B.     Plaintiff’s § 1983 claims against the Officers

       Plaintiff seeks to hold the Officers liable under 42 U.S.C. § 1983, which makes

liable “[e]very person” who, under color of state law, violates federal constitutional

rights. (See, e.g., Compl. ¶¶ 19-20.) The Officers move for dismissal under both

general Rule 12(b)(6) standards and based on qualified immunity. (See generally

Officers Mot.) The Officers argues that Plaintiff’s claims fail because they do not

state any constitutional violations or any cognizable claims under state law.


       2
         The state-created danger doctrine is an exception to the general rule that a state has
no duty to protect one private citizen from another. See, e.g., Cano v. Garcia, No. SA-20-CV-
01331-OLG, 2021 WL 2582581, at *5 (W.D. Tex. June 22, 2021), adopted, 2021 WL
8444847 (W.D. Tex. July 13, 2021), aff'd as modified, 2022 WL 1548671 (5th Cir. May 16,
2022) (citing Doe ex rel. Magee v. Covington Cnty. Sch. Dist. ex rel. Keys, 675 F.3d 849, 865 (5th
Cir. 2012). The Fifth Circuit has repeatedly declined to recognize this exception. Id.
(internal citations omitted); see also Fisher v. Moore, 73 F.4th 367, 372 & n.13 (5th Cir. 2023))
(collecting cases).

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Additionally, they argue they are entitled to dismissal based on qualified immunity

because there was no “clearly established” law at the time of the incident prohibiting

the Officers’ actions.

      For the reasons explained below, the undersigned concludes that Plaintiff has

not alleged facts supporting a to reasonable inference that the Officers violated

Plaintiff's constitutional rights. Because Plaintiff has not demonstrated that a

constitutional violation occurred, there is no need to consider whether the Officers’

actions are entitled to qualified immunity.

      1.     Plaintiff’s allegations do not constitute a seizure under the Fourth
             Amendment.

      Plaintiff alleges that the Officers violated his Fourth and Fourteenth

Amendment rights to be free from excessive force and unreasonable searches and

seizures, by “initiating pursuit of Plaintiff despite Plaintiff having never been charged

with a crime.” (Compl. ¶¶ 45-50.) Plaintiff summarizes his Fourth Amendment

claim as follows:

      In the present case, Plaintiff was seized when the Defendants caused his
      vehicle to crash by initiating their high-speed pursuit. When Plaintiff’s
      vehicle crashed, it was set ablaze, trapping Plaintiff inside and completely
      curtailing Plaintiff’s ability and freedom to exit his vehicle and walk
      away. Trapping Plaintiff inside a burning vehicle certainly constitutes a
      seizure for Fourth Amendment purposes.

(Resp. Officers at 13-14 (emphasis in original) (citing Dkt. No. 1.”); see also Resp.

City at 13-15.) Plaintiff thus contends that these actions by the Officers plausibly

state a claim that he was “seized” because “[w]henever an officer restrains the


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freedom of a person to walk away, he has seized that person,” Tennessee v. Garner,

471 U.S. 1, 7 (1985). (See id.)

       The Fourth Amendment confers the right to be free from “unreasonable

searches and seizures[.]” U.S. Const. amend. IV. A seizure is unreasonable under

the Fourth Amendment if it involves excessive force. See Graham v. Connor, 490 U.S.

386, 394–95 (1989). To prevail on a Fourth Amendment excessive-force claim, a

plaintiff must prove he suffered: (1) an injury, (2) resulting directly and only from,

(3) an officer’s use of objectively unreasonable force. Ikerd v. Blair, 101 F.3d 430,

433–34 (5th Cir. 1996) (citation omitted). Only if a seizure has occurred does the

Court ask “whether the officer's actions [were] ‘objectively reasonable’ in light of the

facts and circumstances confronting them, without regard to their underlying intent

or motivation.” Graham v. Connor, 490 U.S. 386, 397 (1989). Thus, the threshold

question is whether a seizure has occurred. See id. at 396. A seizure of the person

occurs if there is actual physical restraint by an officer or a citizen submission to a

governmental show of authority. See California v. Hodari D., 499 U.S. 621, 624–26

(1991).

      Upon review of the allegations in Plaintiff’s complaint and the relevant case

law, the undersigned concludes that the facts as alleged do not constitute a seizure

under the Fourth Amendment. Even if believed, Plaintiff’s allegations fail to

plausibly state any sort of unconstitutional seizure. Without a constitutional

violation, a plaintiff may not maintain a § 1983 claim against any person or

governmental entity. See Bustos v. Martini Club Inc., 599 F.3d 458, 464-66 (5th Cir.
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2010) (dismissing a complaint for failure to plead off-duty officers’ alleged excessive

force “was a misuse of their power as state officers”).

      As an initial matter, Plaintiff failed to cite any authority that supports his

contention that the Officers’ alleged actions constitute a violation of Plaintiff’s

Fourth Amendment rights and failed to cite any case illustrating that a law

enforcement officer’s initiation of a similar vehicle pursuit scenario could potentially

lead to constitutional liability. As previously stated, the threshold question is

whether a seizure has occurred. See Graham , 490 U.S. at 396. A seizure of the

person occurs if there is actual physical restraint by an officer or a citizen submission

to a governmental show of authority. See Hodari D., 499 U.S. at 624–26. But

Plaintiff does not allege any physical restraint by police, and the facts he alleges show

he was actively evading—and did not submit to—a show of authority.

      In Brower v. County of Inyo, the Supreme Court analyzed a §1983 claim in

which a man driving a stolen car led police on a high-speed chase for about 20 miles

before crashing into a police roadblock, resulting in his death. 489 U.S. 593, 594

(1989). The Ninth Circuit found that no seizure occurred because police did not

restrain the decedent prior to his failure to stop voluntarily at the roadblock, despite

opportunities to do so prior to the impact. Id. at 595. The Supreme Court, however,

concluded that the decedent’s “independent decision to continue the chase” did not

eliminate the responsibility of the police for “the termination of his movement effected

by the roadblock.” Id. at 594 (emphasis added).


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       Plaintiff contends that Defendants “misstate[d] the holding in Brower” because

the Supreme Court found that the suspect in Brower had been “seized” unlike here

where Defendants contend that “Plaintiff was not ‘stopped’ or ‘seized.’” (See Resp.

Officers at 12 (citing Brower, 489 U.S. at 599).) But Plaintiff is only partially

correct—the Supreme Court in Brower held that the plaintiff was seized, but it was

police’s use of the roadblock that stated a constitutional deprivation, not the pursuit

alone. See Brower, 489 U.S. at 595-97. In fact, the Court contrasted that plaintiff’s

seizure with a situation similar to the instant case in which a suspect loses control of

his vehicle while attempting to elude police during a chase. Id. at 595 (“The Court of

Appeals impelled to its result by consideration of what it described as the ‘analogous

situation’ of a police chase in which the suspect unexpectedly loses control of his car

and crashes. We agree that no unconstitutional seizure occurs there[.]” (citation

omitted)). Explaining the difference, the Court stated:

       The pursuing police car sought to stop the suspect only by the show of
       authority represented by flashing lights and continuing pursuit; and
       though he was in fact stopped, he was stopped by a different means - his
       loss of control of his vehicle and the subsequent crash. If, instead of
       that, the police cruiser had pulled alongside the fleeing car and
       sideswiped it, producing the crash, then the termination of the suspect's
       freedom of movement would have been a seizure.

Id. at 597. This contrasting scenario described by the Supreme court mirrors the facts

of the instant case. Officers Anderson and Robertson sought to stop Plaintiff by

pursuing him using their lights and sirens, and Plaintiff was in fact stopped, not by

the Officers, but by a different means—Plaintiff’s loss of control of his vehicle and


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the subsequent crash. (See Compl. ¶ 3.) As the Supreme Court explained, such a

scenario is not a seizure. See Brower, 489 U.S. at 597.

       Therefore, “a Fourth Amendment seizure does not occur . . . even whenever

there is a governmentally caused and governmentally desired termination of an

individual’s freedom of movement (the fleeing felon), but only when there is a

governmental termination of freedom of movement through means intentionally

applied.” See Brower, 489 U.S. at 596-97 (emphasis in original).

       Here, like the alternate scenario described in Brower, Plaintiff was not

“stopped” or “seized” by the Officers’ pursuit, even when they activated their lights

and sirens as a command to stop. The pursuit did not curtail Plaintiff’s freedom of

movement; in fact, Plaintiff does not assert that he stopped his vehicle or complied

with the Officers’ show of authority. Consequently, the fact that Plaintiff eventually

lost control of his vehicle and crashed does not constitute a Fourth Amendment

seizure. See Hodari D., 499 U.S. at 628 (applying Brower and noting that in Brower

“[w]e did not even consider the possibility that a seizure could have occurred during

the course of the chase because, as we explained, that ‘show of authority did not

produce his stop’”); see also Cnty. of Sacramento v. Lewis, 523 U.S. 844 (1998) (finding

no Fourth Amendment seizure even where a pursuing police car accidentally

stopped the suspect by crashing into him (quoting Brower, 489 U.S. at 597 and

collecting cases)).

       But even if Plaintiff had alleged that the Officers sideswiped him,

“accidentally stopped” him “by crashing into him,” or ran him off the road, it would
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not have been a violation under the Fourth Amendment. As explained by the Fifth

Circuit, “the Supreme Court has never found the use of deadly force in connection

with a dangerous car chase to violate the Fourth Amendment, let alone to be a basis

for denying qualified immunity.” Morrow v. Meachum, 917 F.3d 870, 878 (5th Cir.

2019) (noting that the only question before the Supreme Court in Brower was whether

a police roadblock constituted a seizure) (internal citations omitted).

      Plaintiff alleges that the Officers observed and ignored Plaintiff’s crash (see

Compl. ¶¶ 4-5), but nothing in the complaint can plausibly be interpreted to allege

that the Officers intended to cause harm to Plaintiff, much less the harm that

allegedly befell him. (See generally Compl.) Even assuming arguendo that the

Officers’ attempts to stop Plaintiff were negligent, under Supreme Court and Fifth

Circuit precedent, attempting a seizure that accidentally or even negligently results in

harm is not a Fourth Amendment violation. See Gorman v. Sharp, 892 F.3d 172, 175

(5th Cir. 2018) (“Brower and subsequent precedents foreclose liability under the

Fourth Amendment in the absence of intentional conduct.”); Watson v. Bryant, 532 F.

App’x 453, 457 (5th Cir. 2013) (“The Supreme Court [in Brower] held that Fourth

Amendment violations occur only through intentional conduct[.] In the absence of

evidence showing that [the officer] intended to use deadly force, we must conclude

that the negligent shooting here did not itself violate [the suspect’s] Fourth

Amendment rights.”) (citations omitted); Baskin v. City of Houston, Miss., 378 F.

App’x 417, 418 n.1 (5th Cir. 2010) (“To the extent that a Fourth Amendment claim

was raised, any attempt to allege excessive use of force in the course of a negligent
                                           20


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seizure is foreclosed by the Supreme Court’s decision in Brower . . . .”). Accordingly,

nothing about Plaintiff’s allegations plausibly allege a Fourth Amendment claim.

      Plaintiff avers that because he “had not committed any crimes,” the Officers’

pursuit was “in direct violation of DPD policy stating that unless a suspect is wanted

for a felony or in the process of a felony, DPD should not pursue and/or engage in a

high-speed chase for safety reasons.” (Compl. ¶ 25.) Even assuming that such a

policy exists, the complaint admits that Plaintiff turned down Martin Luther King,

Jr. Boulevard at around 2:20 a.m. “without headlights on” (id. at ¶ 24), which is a

violation of traffic laws. See Tex. Transp. Code Ann. § 547.302(a) (“A vehicle shall

display each lighted lamp and illuminating device required by this chapter to be on

the vehicle: (1) at nighttime; and (2) when light is insufficient or atmospheric

conditions are unfavorable so that a person or vehicle on the highway is not clearly

discernible at a distance of 1,000 feet ahead.”) Thus, Plaintiff had committed a

crime (albeit a misdemeanor), id. at § 547.004(a)(2), in plain view of the Officers.

      Plaintiff’s § 1983 action also cannot be founded upon an alleged violation of

due process rights guaranteed by the Fourteenth Amendment. See Lewis, 523 U.S. at

849. In Lewis, the Supreme Court set out to resolve the circuit conflict “over the

standard of culpability on the part of a law enforcement officer for violating

substantive due process in a pursuit case.” The Lewis court ultimately held that

“high-speed chases with no intent to harm suspects physically or to worsen their legal

plight do not give rise to liability under the Fourteenth Amendment, redressible by

an action under § 1983.” Id. at 854. As noted previously, nothing alleged in
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Plaintiff’s complaint plausibly alleges that the Officers intended to cause Plaintiff

harm. Therefore, Plaintiff has not plausibly alleged that the Officers’ conduct

deprived him of his due process rights.

       2.     Officers had no Fourteenth Amendment constitutional duty to stop
              and render aid.

       Plaintiff also alleges that the Officers’ failure to render first aid is a Fourteenth

Amendment violation. (See Compl. ¶¶ 7, 55-56.) But the Due Process Clause of the

Fourteenth Amendment only protects an individual's life, liberty, and property from

government action. DeShaney v. Winnebago Cnty. Dep’t Soc. Servs., 489 U.S. 189, 196

(1989) (holding that the “Due Process Clauses generally confer no affirmative right

to governmental aid, even where such aid may be necessary to secure life, liberty, or

property interests of which the government itself may not deprive the individual”)

(collecting cases); see also Kovacic v. Villarreal, 628 F.3d 209, 213 (5th Cir. 2010).

       “The Due Process Clause does, however, require the responsible government

or governmental agency to provide medical care to persons . . . who have been

injured while being apprehended by the police.” City of Revere v. Mass. Gen. Hosp.,

463 U.S. 239, 244 (1983); see also Kovacic, 628 F.3d at 213 (explaining that a “special

relationship” “is formed ‘[w]hen the state, through the affirmative exercise of its

powers, acts to restrain an individual's freedom to act on his own behalf “through

incarceration, institutionalization, or other similar restraint of personal liberty’”

(citing McClendon v. City of Columbia, 305 F.3d 314, 324 (5th Cir. 2002) (quoting

DeShaney, 489 U.S. at 198, 200))). In this case, however, Plaintiff was not


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apprehended when he alleges that officers owed him a duty. Despite the Officers’

“show of authority” by way of flashing lights and sirens as an indication for Plaintiff

to stop, Plaintiff did not stop. See United States v. Morris, 40 F.4th 323, 328 (5th Cir.

2022) (“An officer’s visual signal for a motorist to stop—whether made by hand or

lights and sirens—is such a show of authority.”); see also Hodari D., 499 U.S. at 628

(Under similar circumstances, the Supreme Court “did not even consider the

possibility that a seizure could have occurred during the course of the chase because [

] that ‘show of authority did not produce [a] stop.”)

       Here, the complaint does not allege that the Officers physically touched

Plaintiff, nor was Plaintiff detained, arrested, or taken to jail. As such, there was no

seizure. Rather, Plaintiff successfully evaded seizure notwithstanding the Officers’

“show of authority” indicating that Plaintiff should stop. However uncaring or

objectionable the Officers’ alleged actions after seeing Plaintiff’s car crash (see Compl.

¶¶ 26-27), they did not have a constitutional duty to render aid to Plaintiff. Based on

the foregoing, Plaintiff has not alleged sufficient facts to demonstrate that the Officers

deprived Plaintiff of his due process rights.

       As noted above, courts must first determine whether the factual allegations,

viewed in the light most favorable to the plaintiff reveal a constitutional violation.

See Saucier v. Katz, 533 U.S. at 201. If the facts alleged do not reveal such a violation,

there is no need for the court to proceed to the next step in the qualified immunity

analysis. Id. Because Plaintiff has not plausibly alleged an underlying constitutional


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violation, his § 1983 claims against Officers Anderson and Robertson fail as a matter

of law, and there is no need to conduct further analysis.

C.    Plaintiff's § 1983 claims against the City

      To state a § 1983 claim against the City, the complaint must allege sufficient

facts to permit the reasonable inference that a constitutional violation occurred, and

an “official policy” attributable to the City “was the moving force” behind it. Littell,

894 F.3d at 622–23; Peña, 879 F.3d at 621; Groden v. City of Dallas, 826 F.3d 280,

283–85 (5th Cir. 2016).

      Plaintiff’s complaint alleges a myriad of Monell theories, such as failure to train

and supervise, failure to implement appropriate recruitment, hiring, and candidate

selection methods; and failure to implement appropriate retention efforts. (See

Compl. ¶ 35.) Plaintiff also alleges that “DPD has failed to enact proper policies and

procedures concerning rendering emergency medical treatment and has failed to

properly train its officers with respect to providing emergency medical treatment

[asserting that] DPD has been made aware of its failures several times.” (Id. ¶ 37.)

      Yet, for the reasons explained above, Plaintiff cannot prevail on his § 1983

claims because he has failed to allege a plausible constitutional violation upon which

the City’s municipal liability could be based. See Bustos, 599 F.3d at 467; see also

Whitley v. Hanna, 726 F.3d 631, 648-49 (5th Cir. 2013) (“[I]nadequate supervision,

failure to train, and policy, practice or custom claims fail without an underlying

constitutional violation.”). Even assuming arguendo that Plaintiff plausibly alleged


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that an unconstitutional act caused him injury, his claims against the City still fail for

the reasons set forth below.

      1.     Plaintiff’s complaint does not plausibly allege that the City
             maintained unconstitutional policies.

      A municipality can only be liable under §1983 where the “the action that is

alleged to be unconstitutional implements or executes a policy statement, ordinance,

regulation, or decision officially adopted and promulgated by that body’s officers.”

Monell, 436 U.S. at 690. An “official policy” is:

      1. A policy statement, ordinance, regulation, or decision that is officially
         adopted and promulgated by the municipality’s lawmaking officers or by
         an official to whom the lawmakers have delegated policy-making
         authority; or

      2. A persistent, widespread practice of city officials or employees, which,
         although not authorized by officially adopted and promulgated policy, is so
         common and well settled as to constitute a custom that fairly represents
         municipal policy. Actual or constructive knowledge of such custom must
         be attributable to the governing body of the municipality or to an official to
         whom that body had delegated policy-making authority.

Bennett v. City of Slidell, 735 F.2d 861, 862 (5th Cir. 1984) (en banc). When relying on

prior unconstitutional incidents to show a widespread practice, the incidents “must

have occurred for so long or so frequently that the course of conduct warrants the

attribution to the governing body of knowledge that the objectionable conduct is the

expected, accepted practice of city employees.” Peterson, 588 F.3d at 850.

      Plaintiff’s Complaint does not allege that the City had an unconstitutional

written policy that caused the Officers’ alleged bad acts, but rather Plaintiff alleges

that DPD:


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      violated established training protocols; failed to conduct appropriate
      performance review procedures; failed to implement appropriate
      recruitment, hiring, and candidate selection methods; failed to
      implement appropriate retention efforts; and failed to train, implement
      policies, and/or create an atmosphere that prohibited the very
      destructive, biased, and reckless conduct of Officers Anderson and
      Robertson.

(Compl. ¶ 35.)

      In addition to alleging a general failure to train on the part of DPD (see

Compl. ¶ 35), Plaintiff alleges that “DPD has failed to enact proper policies and

procedures concerning rendering emergency medical treatment and has failed to

properly train its officers with respect to providing emergency medical treatment.”

(Id. ¶ 37.) He further alleges that “DPD has been made aware of its failures several

times” and cites several incidents as evidence that DPD’s policies concerning the

duty to intervene and the duty to render aid were inadequate. (Id. ¶¶ 37-38.)

      “A failure-to-train action is a type of Monell claim.” Hutcheson, 994 F.3d at

482. Although Plaintiff appears to also assert separate claims for failure to discipline,

“the elements required to prove a claim under either theory are the same.” Jean v.

City of Dallas, Texas, No. 3:18-CV-2862-M, 2019 WL 7195308, at *5 n.6 (N.D. Tex.

Aug. 12, 2019) (“Although Plaintiffs separately assert claims for failure to train and

failure to supervise or discipline, the elements required to prove a claim under either

theory are the same.” (citation omitted)), adopted, 2019 WL 7187104 (N.D. Tex.

Dec. 23, 2019); see also Monacelli, 2023 WL 6563410, at *9 n.1 (considering failure-to-

train and failure-to-discipline claims together). “The ‘failure to train can amount to a

policy if there is deliberate indifference to an obvious need for training where citizens
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are likely to lose their constitutional rights on account of novices in law

enforcement.’” Hutcheson, 994 F.3d at 482 (quoting Peterson, 588 F.3d at 849).

       For a failure-to-train or a failure-to-discipline claim to survive a Rule 12(b)(6)

motion, a plaintiff must sufficiently plead “that (1) the city failed to train or

[discipline] the officers involved; (2) there is a causal connection between the alleged

failure to [discipline] or train and the alleged violation of the plaintiff's rights; and (3)

the failure to train or [discipline] constituted deliberate indifference to the plaintiff's

constitutional rights.” Id. (quoting Peña v. City of Rio Grande City, 879 F.3d 613, 623

(5th Cir. 2018)). “A pattern of similar constitutional violations by untrained [or

undisciplined] employees is ‘ordinarily necessary’ to demonstrate deliberate

indifference for purposes of failure to train [or discipline].” Connick v. Thompson, 563

U.S. 51, 62 (2011) (quoting Bd. of Cnty. Comm’rs of Bryan Cnty., Okl. v. Brown, 520

U.S. 397, 409 (1997)). However, “in certain extreme circumstances, a single act by a

municipal employee [may] form the basis of municipal liability apart from a pattern

of unconstitutional activity.” Roberts v. City of Shreveport, 397 F.3d 287, 295 (5th Cir.

2005). But “[t]he ‘single incident exception’ is extremely narrow,” Valle v. City of

Houston, 613 F.3d 536, 549 (5th Cir. 2010), and “is generally reserved for those cases

in which the government actor was provided no training whatsoever.” Peña, 879

F.3d at 624.

       Plaintiff alleges that “DPD was aware that its lack of a policy and lack of

training with respect to providing emergency medical aid was inadequate, as there

have been several reports of DPD officers either failing or refusing to provide aid to
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those in need.” (Compl. ¶ 38.) Plaintiff also alleges “reports” and “allegations” of

supposedly similar behavior in June and July 2020. (See id.) In one example,

Plaintiff alleges that “a woman reported to the Board that several DPD officers sped

past her on the freeway, nearly tearing the front bumper of her vehicle off and failing

to stop to render aid.” (Id.) Another woman complained to the Board that she was

injured following an interaction with a DPD officer and when she explained to the

officer that she was injured, the officer had no concern for her health or well-being

and simply “waved her off ‘like a fly or dog’ and yelled for her to get out of his way.”

(Id.) In the final example, an officer detained a man “in a car with no air for over

thirty minutes, causing him to have an asthma attack,” but “[i]nstead of providing

first aid to the man, the officers completely ignored him.” (Id.) None of these

examples are substantially similar to the circumstances here, where Plaintiff alleges

that after a high-speed pursuit by the Officers, Plaintiff’s car “immediately burst into

flames,” and “the officers did not stop, continuing their way without checking on the

driver.” (Id. ¶¶ 26-27).

      Plaintiff also cites the 2018 arrest of a woman, who is alleged to have been

placed in a holding cell unconscious and subsequently died (id. ¶ 39) and an incident

that occurred in September 2022 (after the incident in this litigation), where a man

with a mental health disorder was taken to jail instead of to the hospital and died

soon after (id. ¶ 40). These two incidents are dissimilar from Plaintiff’s case for

several reasons, most notably that the individuals were arrested and in police custody

when the incidents occurred. (Id.) Here, Plaintiff was never arrested or in police
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custody. Therefore, these handful of examples lack common characteristics with the

instant case, nor are they sufficiently numerous to establish a pattern.

       A pattern of similar prior incidents “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.’” Fuentes v. Nueces Cty., Tex., 689 F. App’x

775, 778 (5th Cir. 2017) (quoting Peterson, 588 F.3d at 851 (alteration in original)).

“In addition to similarity and specificity, a pattern must be comprised of ‘sufficiently

numerous prior incidents’ rather than merely isolated instances.’” Id. (quoting

McConney v. City of Houston, 863 F.2d 1180, 1184 (5th Cir. 1989)); see Peterson, 588

F.3d at 851 (noting that 27 incidents of excessive force over a period of four years did

not “reflect a pattern that can be said to represent official policy of condoning

excessive force so as to hold the city liable for the acts of its employees’

unconstitutional conduct”); Pineda, 291 F.3d at 329 (holding that 11 incidents of

warrantless entry did not support a pattern of unconstitutional warrantless entry);

Moreno v. City of Dallas, No. 3:13-CV-4106-B, 2015 WL 3890467, at *8-9 (N.D. Tex.

June 18, 2015) (allegations of eight prior incidents in which police officers used

excessive force were not sufficient to indicate a pattern); see also Monacelli v. City of

Dallas, No. 3:21-CV-02649-L (BT), 2023 WL 6563410, at *9 (N.D. Tex. Sept. 1,

2023) (explaining that alleging only two prior instances of similar constitutional

violations failed to plausibly state a claim for failure to discipline or failure to train),

adopted, 2023 WL 6370753 (N.D. Tex. Sept. 29, 2023); Jean, 2019 WL 7195308, at


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*6 (alleging three specific instances where officers were not disciplined for similar

misconduct was insufficient).

       Based on the allegations in Plaintiffs' complaint, Plaintiff has failed to

plausibly show a pattern of similar constitutional violations that reveals the City’s

failure to train was the result of deliberate indifference.

       2.     Plaintiff’s complaint does not plausibly allege that any City policies
              were the “moving force” behind Plaintiff’s injuries.

       Even if Plaintiff plausibly alleged that a constitutional violation caused his

injury and plausibly alleged the existence of a City policy or pattern demonstrating

deliberate indifference, his allegations still fall short of constituting “moving force”

under § 1983. To show “moving force causation,” Plaintiff must demonstrate a

“direct causal link” between the municipality’s policy and the deprivation of

Plaintiff’s federal rights. Valle, 613 F.3d at 542 (citing Bryan Cnty. v. Brown, 520 U.S.

at 404). “[T]he connection must be more than a mere ‘but for’ coupling between

cause and effect. The deficiency in training, hiring, or supervision must be the actual

cause of the constitutional violation.” Thompson v. Connick, 578 F.3d 293, 300 (5th

Cir. 2009) (cleaned up), rev’d on other grounds, 563 U.S. 51 (2011).

       Thus, to adequately allege causation at the pleading stage, Plaintiff’s pleadings

must be able to plausibly answer: “Would the injury have been avoided had the

employee been trained under a program that was not deficient in the identified

respect?” City of Canton, Ohio v. Harris, 489 U.S. 378, 391 (1989). Here, Plaintiff’s

complaint repeatedly alleges that the Officers’ high-speed pursuit of Plaintiff was


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against explicit “DPD policy.” (See, e.g., Compl. ¶¶ 6, 25.) These conclusory

allegations alone are insufficient to plausibly allege that the City failed to train or

supervise its officers. Plaintiff does not plausibly plead that a failure to train or

supervise the Officers was the moving force in causing his constitutional injury; and

he does not allege, other than in conclusory terms, that any policymaker acted with

deliberate indifference to the allegedly inadequate training or supervision of DPD

officers. Therefore, in addition to reasons discussed above, Plaintiff’s claim fails for

lack of causation.

       As the Fifth Circuit has held, “absent specific allegations supporting a

plausible causation inference, this legal conclusion does not state a claim for relief

and warrants dismissal under Rule 12(b)(6).” Ratliff v. Aransas County, 948 F.3d 281,

285 (5th Cir. 2020). Accordingly, the undersigned concludes that Plaintiff’s § 1983

claims against the City should be dismissed for failure to state a claim.

D.     Plaintiff’s claims under the Texas Torts Claims Act

       Plaintiff asserts a claim against the City under the Texas Torts Claims Act

(“TTCA”), because the Officers were acting within the scope of their employment

when they negligently used tangible property (their DPD vehicle) “to engage in a

reckless pursuit of Plaintiff which proximately caused Plaintiff’s injuries.” (Compl.

¶¶ 64-65.) “The TTCA does not create a cause of action but, instead, waives

immunity for certain suits against Texas governmental entities.” Campbell v. Pena,

No. 3:23-CV-2232-B, 2024 WL 3841517, at *1 (N.D. Tex. Aug. 15, 2024) (quoting

Johnson v. MHMR Auth. of Brazos Valley, No. CV H-23-3448, 2023 WL 8630064, at *5

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(S.D. Tex. Dec. 13, 2023)). Plaintiff alleges that governmental/sovereign immunity

has been waived and no exception applies to his claim. (Compl. ¶¶ 63, 67.)

      In its motion to dismiss, the City argues that Texas law does not provide a

waiver of sovereign/ governmental immunity under the circumstances alleged in

Plaintiff’s complaint. (See City Mot. at 20-23.) The City also argues that Plaintiff’s

claims fall within the TTCA’s emergency exception, and therefore, the City’s

immunity from Plaintiff’s claims is not waived regardless of whether his claims

would otherwise fall within the scope of that waiver. (See id. at 24-25 (citing Tex.

Civ. Prac. & Rem. Code § 101.055(2)).)

      “The [“TTCA”] provides a limited waiver of immunity for certain suits

against governmental entities and caps recoverable damages.” Mission Consol. Indep.

Sch. Dist. v. Garcia, 253 S.W.3d 653, 655 (Tex. 2008) (citing Tex. Civ. Prac. & Rem.

Code § 101.023). Because the TTCA “is the only, albeit limited, avenue for

common-law recovery against the government,” all tort claims alleged against a

governmental entity alone or with its employee are brought under the TTCA for

purposes of § 101.106(f), even if immunity is not waived under the TTCA. Id. at

659; accord Alexander v. Walker, 435 S.W.3d 789, 792 (Tex. 2014); see also Rivera v.

Garcia, 589 S.W.3d 242, 246 (Tex. App.—San Antonio, 2019, no pet.) (explaining

that the phrase “[c]ould have been brought” applies to all tort claims even where the

TTCA does not waive immunity).

      The TTCA provides a limited waiver of governmental immunity from suit

against a government unit if its employee, while negligently operating a motor-driven
                                           32


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vehicle within the scope of his employment, proximately causes personal injuries or

death. See Tex. Civ. Prac. & Rem. Code Ann. § 101.021(1)(A) (“A governmental

unit in the state is liable for: property damage, personal injury, and death

proximately caused by the wrongful act or omission or the negligence of an

employee acting within his scope of employment if: the property damage, personal

injury, or death arises from the operation or use of a motor-driven vehicle or motor-

driven equipment[.]”); see also Tex. Dep’t of Crim. Justice v. Miller, 51 S.W.3d 583, 587

(Tex. 2001) (“The Tort Claims Act provides a limited waiver of sovereign

immunity[.]”).

      To demonstrate a waiver under this provision, a plaintiff must show a nexus

between the employee’s use of the vehicle and the injuries sustained. Dall. Area Rapid

Transit v. Whitley, 104 S.W.3d 540, 542-43 (Tex. 2003). A causal nexus means that

“the [vehicle]’s use must have actually caused the injury.” Id. at 543 (quoting Tex.

Nat. Res. Conservation Comm’n v. White, 46 S.W.3d 864, 869 (Tex. 2001)). The

operation or use of a motor vehicle “does not cause injury if it does no more than

furnish the condition that makes the injury possible.” Id. “In other words, even

where the plaintiff has alleged a tort on the part of a government driver, there is no

immunity waiver absent the negligent or otherwise improper use of a motor-driven

vehicle.” Ryder Integrated Logistics v. Fayette County, 453 S.W.3d 922, 928 (Tex. 2015).


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      1.     Plaintiff’s injuries did not result from the Officers’ “use” of a vehicle
             as defined by the TTCA.

      The City argues that multiple Texas appellate courts have examined similar,

or essentially identical, fact patterns and declined to find a sufficient nexus between

the use of a government vehicle and a plaintiff’s injuries for a waiver of immunity.

(See City Mot. at 20-24.) According to the City, it is well-settled under Texas law

that a fugitive’s injuries resulting from a chase are not the result of any act for which

immunity is waived. (See City Repl. at 4.) Plaintiff argues in response that he has

shown the requisite “nexus” as defined under the TTCA between the Officers’ use of

the police vehicle and his injuries. (See Resp. City at 15-17.)

      Instead of pointing to any authority under Texas law to support his claim,

Plaintiff maintains that the procedural posture of this case renders the authority cited

by the City inapplicable in the context of a rule 12(b)(6) motion. (See Resp. City at

15-17.) Plaintiff does not cite any authority for this proposition, nor is the Court

aware of any federal authority holding that a state court’s decisions explaining state

law are not controlling because of this—or any—procedural posture. As explained

above, there is no blanket rule stating that questions of law in a Rule 12(b)(6) motion

may not be decided using applicable case law articulated in cases decided at the

summary-judgment phase. See supra Section III.A.

      Contrary to Plaintiff’s arguments regarding a causal link between the Officers’

use of the police vehicle and his injuries (see Resp. City at 15-16), numerous Texas

courts of appeal have declined to find waivers of sovereign immunity under the


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TTCA in cases where the government vehicle was not involved in causing the

injuries made the basis of the suit. See, e.g., Teague v. City of Dallas, 344 S.W.3d 434

(Tex. App.—Dallas 2011, pet. denied) (plaintiff failed to demonstrate causal nexus

between attempted detention and chase and crash because suspect driver’s decision

to cross the median caused the collision and police vehicle was not involved in

crash); Williams v. City of Baytown, 467 S.W.3d 566, 569 (Tex. App.—Houston [1st

Dist.] 2015, no pet.) (no waiver where “no police car was directly involved in the

collision—no officer blinded oncoming traffic or entered a freeway access road the

wrong way during the chase”); City of Dallas v. Hillis, 308 S.W.3d 526 (Tex. App.—

Dallas 2010, pet. denied) (finding that “[t]he causal nexus is not satisfied by the mere

involvement of a vehicle, nor by an operation or use that ‘does no more than furnish

the condition that makes the injury possible’”) (quoting Whitley, 104 S.W.3d at 543);

but see Ryder, 453 S.W.3d at 928-30 (police officer driver, by blinding oncoming

traffic, did more than furnish a condition that later caused an accident; instead, he

was alleged to be a cotortfeasor); Travis v. City of Mesquite, 830 S.W.2d 94, 96, 99

(Tex. 1992) (holding summary-judgment evidence was sufficient to raise fact issue as

to causation where suspect driver and chasing police entered one-way access road in

the wrong direction and suspect crashed head-on into plaintiffs’ car).

      Here, Plaintiff alleges he “lost control of [his] vehicle,” his car “jumped a

curb” along the public street, and his car struck a tree (Compl. ¶¶ 1-3), but the

Officers’ vehicle made no contact with Plaintiff’s car. These facts are analogous to

Teague, Williams, and Hillis, where the police vehicle was not involved in the collision
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that caused the plaintiff’s injuries, but distinguishable from Ryder and Travis, where

the police officer’s faulty driving was arguably a direct cause of the accident.

Considering Texas law requiring a close nexus between the alleged injury and the

government vehicle, the undersigned concludes that Plaintiff’s complaint has not

stated facts from which this Court can reasonably infer that the City’s governmental

immunity is waived. Therefore, Plaintiff’s state law tort claims should be dismissed.

      2.     The facts alleged in Plaintiff’s complaint fall within the TTCA’s
             “emergency exception.”

      The City also contends that Plaintiff’s claim falls within the TTCA’s

“emergency exception” provision. (See City Mot. at 24.) The TTCA “does not

apply to a claim arising . . . from the action of an employee while responding to an

emergency call or reacting to an emergency situation if the action is in compliance

with the laws and ordinances applicable to emergency action, or in the absence of

such a law or ordinance, if the action is not taken with conscious indifference or

reckless disregard for the safety of others.” Tex. Civ. Prac. & Rem. Code

§ 101.055(2). The plaintiff has the burden of proof to establish that the emergency

exception does not apply. See Barbour v. City of Forney, No. 3:15-CV-90-B, 2015 WL

4094005, at *6 (N.D. Tex. June 17, 2015) (citing Quested v. City of Houston, 440

S.W.3d 275, 284 (Tex.App.-Houston [14th Dist.] 2014, aff’d), adopted, 2015 WL

4113571 (N.D. Tex. July 7, 2015).

      First, nothing in Plaintiff’s complaint indicates that the Officers violated

emergency “laws and ordinances.” Plaintiff alleges that the Officers violated City


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policies (see, e.g., Compl. ¶ 6), but according to the Texas Supreme Court, “a police

department’s internal policies, in and of themselves, are not ‘laws’ or ‘ordinances’”

for purposes of the Act. City of San Antonio v. Maspero, 640 S.W.3d 523, 530 (Tex.

2022). Further, nothing in the complaint meets the standard of the Transportation

Code, which holds that “reckless driving consists of driving a vehicle in ‘willful or

wanton disregard for the safety of persons or property.’” Id. at 531 (quoting Tex.

Transp. Code § 545.401(a)). “[T]his standard requires ‘conscious indifference,’ or

‘subjective awareness of an extreme risk.’” Id. (quoting Tarrant County v. Bonner, 574

S.W.3d 893, 902 (Tex. 2019)).

      Here, Plaintiff’s complaint acknowledges that he violated a traffic law, refused

to stop in response to the Officers’ lawful show of authority, ran off the road and

crashed his vehicle. Because Plaintiff has not shown that the emergency exception

was inapplicable here, his state law tort claim fails for this additional and

independent reason.

E.    Plaintiff's miscellaneous causes of action

      Plaintiff also lists Counts for “respondeat superior” (Compl. ¶¶ 58-60) and

“exemplary damages” (Compl. ¶¶ 61-62), neither of which merit extensive analysis.

As previously discussed, a governmental entity cannot be held liable under a theory

of respondeat superior or vicarious liability. Monell, 436 U.S. at 694.

      With respect to damages, first, the TTCA “does not authorize exemplary

damages.” Tex. Civ. Prac. & Rem. Code Ann. § 101.024. Second, under Texas law,

“an award of punitive damages is not a separate cause of action,” Sulzer Carbomedics,

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Inc. v. Or. Cardio–Devices, Inc., 257 F.3d 449, 461 (5th Cir. 2001), such that a demand

for punitive damages is not “separate and distinct from the underlying claim for

compensatory damages,” where “Texas, like the majority of states, limits punitive

damages to cases in which actual compensatory damages are found,” Lanier v. Salas,

777 F.2d 321, 325 (5th Cir. 1985). The same is true for demands for punitive

damages sounding in federal law. See, e.g., Auster Oil & Gas, Inc. v. Stream, 835 F.2d

597, 604 (5th Cir. 1988) (addressing 42 U.S.C. § 1983 claim) (“Punitive damages are

not an independent claim or cause of action, but are a remedy available in various

causes of action.”). Therefore, to the extent Plaintiff brings these two Counts as

separate causes of action, they should be dismissed for failure to state a claim.

E.    Leave to Amend Complaint

      Plaintiff’s responses to both motions conclude with a request, in the

alternative, to amend his complaint should the Court find his pleading insufficient.

(See Resp. City at 19; Resp. Officers at 16.) Under Rule 15(a)(1), “[a] party may

amend its pleading once as a matter of course within” 21 days of service of (1) a

responsive pleading, or (2) a Rule 12(b) motion, “whichever is earlier.” Fed. R. Civ.

P. 15(a)(1)(B). The City filed its 12(b) motion on April 30, 2024 (City Mot.), and the

Officers filed their motion on June 3, 2024 (Officers Mot.). Plaintiff filed a response

to the City’s motion on May 21, 2024 (Resp. City), and as to the Officers’ motion on

June 24, 2024 (Resp. Officers).

      As noted above, both responses embed a request for Plaintiff to amend his

complaint (see Resp. City at 19; Resp. Officers at 16), which is within the 21-day

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deadline for amendment as a matter of course. See Fed. R. Civ. P. 15(a)(1)(B).

However, Plaintiff has not included a proposed amended pleading as required under

this Court’s local rules. See N.D. Tex. L.R. 15.1(b) (stating that when “a party files

by electronic means a motion for leave to file an amended pleading, the party must

attach the proposed amended pleading to the motion as an exhibit”).

       Rule 15(a)(2) provides that leave to amend should be “freely given when

justice so requires.” Avatar Expl., Inc. v. Chevron, U.S.A., Inc., 933 F.2d 314, 320 (5th

Cir. 1991); see Legate v. Livingston, 822 F.3d 207, 211 (5th Cir. 2016) (noting that Rule

15(a)’s language “evinces a bias in favor of granting leave to amend” (internal

quotation marks omitted)). “Although leave to amend under Rule 15(a) is to be

freely given, that generous standard is tempered by the necessary power of a district

court to manage a case.” Schiller v. Physicians Res. Grp. Inc., 342 F.3d 563, 566 (5th

Cir. 2003). Thus, leave to amend is not automatic, and decisions concerning

motions to amend are left to the sound discretion of the court. See Avatar Expl., 933

F.2d at 320; Guerrero ex rel. Jr. v. Taylor Cnty., No. 1:17-CV-050-C-BL, 2018 WL

1033261, at *6 (N.D. Tex. Feb. 23, 2018).

       When considering whether to grant leave under Rule 15(a)(2), courts assess

“undue delay, bad faith or dilatory motive on the part of the movant, repeated

failures to cure deficiencies by amendments previously allowed, undue prejudice to

the opposing party by virtue of the allowance of the amendment, [and] futility of the

amendment.” Whitmire v. Victus Ltd., 212 F.3d 885, 889 (5th Cir. 2000) (quoting

Foman v. Davis, 371 U.S. 178, 182 (1962)) (internal quotations omitted). “The liberal
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amendment rules of F. R. Civ. P. 15(a) do not require that courts indulge in futile

gestures [and] [w]here a complaint, as amended, would be subject to dismissal, leave

to amend need not be granted.” DeLoach v. Woodley, 405 F.2d 496 (5th Cir. 1968)

(citing Foman, 371 U.S. 178; see also Marucci Sports, L.L.C. v. Nat’l Collegiate Athletic

Ass’n, 751 F.3d 368, 378 (5th Cir. 2014) (“Denying a motion to amend is not an

abuse of discretion if allowing an amendment would be futile.”).

       Notwithstanding a plaintiff's failure to plead any set of facts or any possible

theory that they could prove consistent with the allegations in their complaints,

“district courts often afford plaintiffs at least one opportunity to cure pleading

deficiencies before dismissing a case, unless it is clear that the defects are incurable,

or the plaintiffs advise the court that they are willing or unable to amend in a manner

that will avoid dismissal.” In re Am. Airlines, Inc., Privacy Litig., 370 F. Supp.2d 552,

567–68 (N.D. Tex. 2005) (citing Great Plains Trust Co. v. Morgan Stanley Witter & Co.,

313 F.3d 305, 329 (5th Cir. 2002)). “Nevertheless, courts may appropriately dismiss

an action with prejudice if a court finds that the plaintiff has alleged his or her best

case.” Jones v. Greninger, 188 F.3d 322, 327 (5th Cir. 1999). “A plaintiff has pleaded

[his] best case after [he] is apprised of the insufficiency of her complaint.” Wiggins v.

Louisiana State Univ.-Health Care Servs. Div., 710 F. App’x 625, 627 (5th Cir. 2017)

(citing Brewster, 587 F.3d at 768 (citing Bazrowx v. Scott, 136 F.3d 1053, 1054 (5th

Cir. 1998) (internal quotation and citation omitted))).

       “An amendment is futile if it would fail to survive a Rule 12(b)(6) motion.”

Marucci at 378 (citing Briggs v. Miss., 331 F.3d 499, 508 (5th Cir. 2003)). In addition
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to testing the factual sufficiency of a claim, Rule 12(b)(6) authorizes a court to

dismiss claims that have no basis, arguable or otherwise, in the law. Neitzke v.

Williams, 490 U.S. 319, 327 (1989); Moore v. Mabus, 976 F.2d 268, 269 (5th Cir.

1992). A complaint lacks an arguable basis in law when it is “based on an

indisputably meritless legal theory.” Neitzke, 490 U.S. at 326–27; Berry v. Brady, 192

F.3d 504, 507 (5th Cir. 1999).

      The Fifth Circuit has affirmed denials of leave to amend where it determined

that the proposed amendment would be futile after analyzing the claims. See Edoinwe

v. Bailey, 860 F.3d 287, 295 (5th Cir. 2017) (proposed amended complaint failed to

state a claim under 42 U.S.C. § 1983). “[A] bare request in an opposition to a

motion to dismiss—without any indication of the particular grounds on which the

amendment is sought, cf. Fed. R. Civ. P. 7(b)—does not constitute a motion within

the contemplation of Rule 15(a).” Confederate Mem’l Assn, Inc. v. Hines, 995 F.2d 295,

299 (D.C. Cir. 1993). If the plaintiff does not provide a copy of the amended

complaint nor explain how the defects could be cured, a district court may deny

leave. Scott v. U.S. Bank Nat’l Ass’n, 16 F.4th 1204, 1209 (5th Cir. 2021), as revised

(Nov. 26, 2021) (citing McKinney v. Irving Indep. Sch. Dist., 309 F.3d 308, 315 (5th Cir.

2002) (affirming denial of leave to amend where plaintiffs “failed to amend their

complaint as a matter of right, failed to furnish the district court with a proposed

amended complaint, and failed to alert both the court and the defendants to the

substance of their proposed amendment”)).


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       Plaintiff’s request for leave states: “Alternatively, should this Court determine

that Defendant is entitled to dismissal on any of Plaintiff’s claims, Plaintiff

respectfully asks that this Court allow Plaintiff the opportunity to amend its

Complaint.” (See Resp. City at 19; Resp. Officers at 16 (citing Fed. R. Civ. P.

15(a)(2)).) This “does not provide any indication of the grounds on which such an

amendment should be permitted.” Willard, 336 F.3d at 387. Plaintiff attached no

amended pleading to his request for leave as required by the Court’s local rules (see

N.D. Tex. L.R. 15.1(b)) and offers no discussion of factual allegation(s) that he

intends to add or revise in any further amended pleading. (See City Mot. at 19;

Officers Mot. at 16.)

       Further, the undersigned finds that Plaintiff’s amendment would be futile.

Plaintiff has pleaded his best case. (See Compl., Resp. City, Resp. Officers). No

good-faith amendment could plead new factual content sufficient to allow the Court

to reasonably infer that Defendants are liable. The central facts are undisputed: The

Officers observed Plaintiff leave a gas station and turn down the street without

headlights on; the Officers pursued Plaintiff using their lights and sirens as a

command to stop; Plaintiff did not stop; he eventually crashed his vehicle into a tree

which caused his vehicle to burst into flames; Plaintiff suffered severe injuries as a

result. (See generally Compl.) The only disputed fact is whether the Officers observed

the crash or learned about it later, but this disputed fact is irrelevant for purposes of

Plaintiff’s claims.


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      The Officers were not involved in the crash. Plaintiff does not allege that the

Officers caused the accident by sideswiping him, “accidentally” crashing into him,

running him off the road, using lights to blind oncoming traffic, entering a freeway

access road the wrong way, or otherwise furnishing a condition that caused him to

lose control of his vehicle. Even if the Officers observed and ignored Plaintiff’s

crash, as Plaintiff alleges, this only demonstrates actions that were arguably uncaring

and thoughtless, not a legally cognizable claim. There is no Supreme Court or Fifth

Circuit authority that recognizes a Fourth or Fourteenth Amendment claim under

this scenario. See, e.g., Brower, 489 U.S. 593; Hodari D., 499 U.S. 621; Lewis, 523 U.S.

844; Graham, 490 U.S. 386; Morrow, 917 F.3d 870. Similarly, there is no authority

under Texas state law holding that a municipality’s governmental immunity is

waived under these facts. See, e.g., Williams, 467 S.W.3d 566; City of Dallas v. Hillis,

308 S.W.3d 526; Ryder, 453 S.W.3d 922; Travis, 830 S.W.2d 94. Accordingly, there

is no factual content Plaintiff could plead that would allow the Court to reasonably

infer that Defendants are liable for the misconduct alleged. See Martinez v. Nueces

Cnty., Tex., 71 F.4th 385, 391 (5th Cir. 2023).

      For these reasons, the undersigned concludes that amendment would be futile,

and Plaintiff’s request for leave to amend his complaint embedded in his responses to

Defendants’ motions to dismiss should be denied. See Wiggins, 710 F. App’x at 627;

Harris v. UnitedHealth Group, Inc. of Texas, No. 3:23-CV-02486-E; 2024 WL 2734974

(N.D. Tex. May 28, 2024) (denying motion for leave to amend complaint). For those

reasons, the Court denies Plaintiffs' Request for Leave to Amend.
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                               RECOMMENDATION

       For the foregoing reasons, it is RECOMMENDED that the City’s motion (Dkt.

No. 7) and the Officers’ motion (Dkt. No. 12) be GRANTED pursuant to Rule

12(b)(6) for failure to state a claim upon which relief may be granted, and that

Plaintiff’s claims be DISMISSED WITH PREJUDICE.

       SO RECOMMENDED on February 13, 2025.


                                         BRIAN McKAY
                                         UNITED STATES MAGISTRATE JUDGE


                     INSTRUCTIONS FOR SERVICE AND
                   NOTICE OF RIGHT TO APPEAL/OBJECT

A copy of this report and recommendation will be served on all parties in the manner
provided by law. Any party who objects to any part of this report and recommendation
must file specific written objections within 14 days after being served with a copy. See
28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). To be specific, an objection must identify
the finding or recommendation to which objection is made, state the basis for the
objection, and indicate the place in the magistrate judge’s report and recommendation
where the disputed determination is found. An objection that merely incorporates by
reference or refers to the briefing before the magistrate judge is not specific. Failure to
file specific written objections will bar the aggrieved party from appealing the factual
findings and legal conclusions of the magistrate judge that are accepted or adopted by
the district court, except upon grounds of plain error. See Douglass v. United Services
Automobile Ass’n, 79 F.3d 1415, 1417 (5th Cir. 1996), modified by statute on other grounds,
28 U.S.C. § 636(b)(1) (extending the time to file objections to 14 days).


                                            44