After reviewing all relevant matters of record in this case, including the Findings, Conclusions, and Recommendation of the United States Magistrate Judge and any objections thereto, in accordance with
The Motion to Dismiss Plaintiffs' Second Amended Complaint Under Fed. R. Civ. P. 12(b)(1) and (6) and Brief in Support of Defendants Steven Andrade, Brandon Howell, Keith Samet, Christopher Smith, Floyd Kincaide, Evelio Rivas, Doris Irvin, Candace Carlsen, David Robertson, Lupe Valdez and Dallas County , filed April 11, 2018 (doc. 110), is GRANTED in part and DENIED in part ; and the plaintiffs' Sworn Emergency Motion for Injunction and Restraining Order , filed October 5, 2018 (doc. 150), is DENIED .
By separate judgment, Quincy Blakely's failure to train claim against Dallas County, and his claims against Doris Irvin, Candace Carlsen, David Robertson, and the Dallas County Sheriff will be DISMISSED with prejudice for failure to state a claim upon which relief can be granted, and his claims against Phillip Wainscott and remaining claims against Dallas County will be sua sponte DISMISSED with prejudice for failure to state a claim upon which relief can be granted.
Pretrial Management
FINDINGS, CONCLUSIONS, AND RECOMMENDATION
IRMA CARRILLO RAMIREZ, UNITED STATES MAGISTRATE JUDGE
By Standing Order of Reference , filed November 6, 2017 (doc. 69), this pro se case has been referred for full case management, including the determination of non-dispositive motions and issuance of findings of fact and recommendations on *463dispositive motions. Before the Court for recommendation are the following:
(1) Motion to Dismiss Plaintiffs' Second Amended Complaint Under Fed. R. Civ. P. 12(b)(1) and (6) and Brief in Support of Defendants Steven Andrade, Brandon Howell, Keith Samet, Christopher Smith, Floyd Kincaide, Evelio Rivas, Doris Irvin, Candace Carlsen, David Robertson, Lupe Valdez and Dallas County , filed April 11, 2018 (doc. 110);
(2) Defendants Steven Andrade, Brandon Howell, Keith Samet, Christopher Smith, Floyd Kincaide, Evelio Rivas, Doris Irvin, Candace Carlsen, David Robertson, Lupe Valdez and Dallas County's Motion to Stay Discovery, All Unexpired Deadlines and Other Pretrial Litigation Procedures and Brief in Support , filed April 26, 2018 (doc. 114); and
(3) Sworn Emergency Motion for Injunction and Restraining Order , filed October 5, 2018 (doc. 150).
Based on the relevant filings and applicable law, the motion to dismiss should be GRANTED in part and DENIED in part , the motion for injunction and restraining order should be DENIED , and the motion to stay discovery is DENIED as moot .
I. BACKGROUND
On March 14, 2017, Quincy Blakely (Husband) and Kimberly Blakely (Wife) (collectively, Plaintiffs) filed this pro se action against several defendants based on a traffic stop that occurred on March 14, 2015. (See doc. 3.) They appear to assert claims under
Plaintiffs allege that Deputies Smith and Rivas initiated a traffic stop on the vehicle that Husband was driving, and in which Wife and their child were passengers, on March 14, 2015, because their rear license plate light was not working. (docs. 36 at 2; 109 at 6.) Deputies Andrade, Howell, Samet, and Kincaide arrived on scene to assist. (docs. 109 at 7-9.) Husband handed Deputy Smith his driver's license and concealed *464handgun license. (docs. 36 at 2; 109 at 6.) Deputy Smith asked him to get out of the vehicle because he had a weapon, and Husband "respectfully declined" because he "had not committed a crime and was not in the commission of a crime." (docs. 36 at 2; 109 at 6-7.) Deputy Smith then reached into the vehicle and attempted to unlock the door, but Husband "defended [himself] and put [his] arm on top of [the] lock to prevent" Deputy Smith from unlocking the door. (doc. 109 at 7.) Deputy Kincaide shouted for Husband to get his " '[expletive] out of the vehicle,' " as he "assaulted [him] by reaching for [him] while displaying his service weapon." (Id. ) Husband was then "violently removed" from the vehicle, "thrown to the ground," and assaulted by several Deputies. (Id. )
Wife was recording the traffic stop on her cell phone, and she claims that while Husband was being removed from the vehicle, Deputy Andrade was "assaulting her and using excessive force by grabbing her personal cell phone and her arm while she was exercising her ... right to record" Deputies. (docs. 36 at 2; 109 at 7.) Wife attempted "to record the remainder of the arrest," but Deputy Andrade told her "that if [she] did not put [her] phone down and stop recording, he was going to break it." (doc. 36 at 2.) She turned her phone off as a result of his threat, and Deputy Andrade pulled her out of the car and told her to "stand out of the way." (Id. ) Wife then tried to start recording again, but she was told that if she did not stay to the side of the car, "then [she] would be put in handcuffs," and Deputy Andrade "grabbed [her] arm without consent while he had his hand on his gun." (Id. ) Wife again attempted to record Deputies "but as [she] was recording, [Deputy] Howell snatched [her] phone out of [her] hand and turned [the] phone off to prevent her from recording him and [Deputy] Smith violating her rights." (Id. at 8.) The video recording from the dashboard camera of one of the vehicles on the scene shows one of the Deputies take Wife's cell phone out of her hand because the light from the phone was shining in his face. (doc. 111.) The Deputy then handed the cell phone to another Deputy, and it was returned to her moments later as she was asked to stop shining the light from the phone at them. (See
Husband was subsequently arrested for "unlawfully carrying a firearm while intoxicated by a license holder." (doc. 109 at 8-9.) Following the arrest, Deputies searched Plaintiffs' vehicle without a warrant or consent. (Id. at 6, 9-10.) Husband's handgun was confiscated and "is still in the possession of the [County]," and Plaintiffs' vehicle was towed. (Id. at 10.) Husband claims that he asked that the Sheriff return his handgun, but it has not been returned, and he has not been compensated for it. (Id. at 30.) Husband was ultimately charged with "assault on a public servant, resisting arrest[,] and unlawfully carrying a firearm while intoxicated by a license holder." (Id. at 9.) Wife "was not charged with any offense" following the traffic stop. (Id. at 20.) Husband asserts that his arrest "was made pursuant to warrants issued after the apprehension." (Id. at 9.) He contends that the arrest warrant and a probable cause affidavit were "allegedly signed" by Magistrate, but she was not on duty at the time they were signed. (Id. at 16.) He also claims that Magistrate is not a magistrate and is "not a person authorized to administer an Oath or sign an arrest warrant." (Id. ) Plaintiffs filed a complaint with Detective regarding *465the traffic stop, and he took the recording of the stop and their statements and allegedly "used them against [Husband] to benefit [Deputy] Smith" as part of a conspiracy between him and Deputy Smith. (Id. at 27.) Husband alleges that Detective and Deputy Smith also provided false information to the issuer of his concealed handgun license in order to have his license revoked. (Id. at 29.)
Husband initially hired an attorney to represent him but terminated him and informed the Court Coordinator that he "would be defending himself in the prosecution," and she allegedly told him that the attorney he hired would be his attorney until he hired a new one. (Id. at 12-13.) He asserts that because he attempted to represent himself on October 23, 2015, a warrant was issued for his arrest on October 29, 2015, and he was forced to hire counsel. (Id. at 13.) He contends that the Court Coordinator conspired with a judge to deprive him of his constitutional right to represent himself. (Id. ) He also asserts that Attorney is a state actor who was hired as a bondsman, and who "filed a false affidavit of representation ... stating that he was employed as counsel" on Husband's case. (Id. at 13.) Plaintiffs further allege that the County has multiple customs or policies that violate the rights of individuals, that it failed to train Deputies, and that it "is liable under the Double Jeopardy clause of the [Fifth] Amendment ...." (See
Husband was indicted by a grand jury for assaulting a public servant on September 4, 2015. See State of Tex. v. Quincy Blakely , No. F15-18020-M (194th Dist. Ct., Dallas County, Tex. Apr. 9, 2015). His initial trial was held on May 18, 2018, and a mistrial was ordered after the jury was unable to reach a verdict. See
Plaintiffs filed their initial complaint on March 14, 2017, and subsequently amended their complaint for the first time on March 30, 2017. (docs. 3; 10.) Defendants filed motions to dismiss the first amended complaint on November 10, 2017 and November 29, 2017 based, in part, on qualified immunity, and Plaintiffs then amended their complaint for the second time on March 22, 2018. (docs. 71; 109.)
On April 11, 2018, Defendants moved to dismiss Plaintiffs' second amended complaint, Plaintiffs responded on May 3, 2018, and Defendants replied on May 8, 2018. (docs. 110; 116-17.) Defendants then moved to stay discovery on April 26, 2018, Plaintiffs responded on May 22, 2018, and Defendants replied on May 29, 2018. (docs. 114; 125; 131.)
*466II. PRELIMINARY INJUNCTION
Husband moves for "injunction and restraining order" against Magistrate and the County to enjoin the state judicial criminal proceedings against him. (doc. 150.)
A. Legal Standard
A preliminary injunction can be issued only after notice to the adverse party. See Fed. R. Civ. P. 65(a)(1). The party seeking a preliminary injunction has the burden to show that he or she is entitled to it. Clark v. Prichard ,
(1) a substantial likelihood of success on the merits; (2) a substantial threat that the movant will suffer irreparable injury if the injunction is not issued; (3) that threatened injury to the movant outweighs any damage the injunction might cause to the opponent; and (4) that granting the injunction will not disserve the public interest.
Karaha Bodas Co., LLC v. Perusahaan, et al. ,
B. Substantial Likelihood of Success
Magistrate and County assert that Husband cannot show a substantial likelihood of success on the merits because his claims for injunctive relief are barred by the Younger abstention doctrine.
1. Younger Abstention
Under the Younger abstention doctrine, "federal courts must[ ]refrain from considering requests for injunctive relief based upon constitutional challenges to state criminal proceedings pending at the time the federal action is instituted." Tex. Ass'n of Bus. v. Earle ,
Here, Husband states that his "motion for an injunction is not being directed at the prosecution," but he argues that federal courts "have power to enjoin state officers from instituting a criminal action," he should have been discharged from his criminal case, and the state district court lacks subject-matter jurisdiction to bring a case against him, and he seeks to enjoin the criminal proceedings against him. (doc. 150 at 2, 14, 19, 25.) His second amended complaint essentially seeks the same relief, i.e., to have the indictment in his criminal case quashed and the charges against him dismissed, and to bar his prosecution. (See doc. 109 at 36, 40-41, 43.) Husband seeks "injunctive relief based upon constitutional challenges to [his] state criminal proceedings," which may not be had if the Younger conditions apply. Tex. Ass'n of Bus. ,
Husband's criminal case has been pending in state court since April 9, 2015. See State of Tex. v. Quincy Blakely , No. F15-18020-M (194th Dist. Ct., Dallas County, Tex. Apr. 9, 2015).
Because all three conditions of Younger are met, jurisdiction over Husband's requests for injunctive relief is lacking unless an exception applies. See Gates v. Strain ,
2. Exceptions
Husband asserts that exceptions to the Younger abstention doctrine do apply in this case. (docs. 116 at 2; 150 at 17.)
The Younger abstention doctrine does not apply if:
(1) the state-court proceeding was brought in bad faith or to harass the federal plaintiff; (2) the federal plaintiff seeks to challenge a state statute that is flagrantly and patently violative of express constitutional prohibitions in every clause, sentence, and paragraph, and in whatever manner and against whomever an effort might be made to apply it, or (3) where other extraordinary circumstances threaten irreparable loss [that] is both great and immediate.12
Gates ,
a. Bad Faith
Husband alleges that his criminal prosecution was brought in bad faith, and that he is "being harassed with prosecution ...." (docs. 116 at 2-8; 150 at 17.)
"The Fifth Circuit has applied the bad faith exception in 'two major circumstances': first, when a state commences a prosecution or proceeding to retaliate for or to deter constitutionally protected conduct; and second, when the prosecution or proceeding is taken in bad faith or for the purpose to harass." All Am. Check Cashing, Inc. v. Corley ,
*469Hefner v. Alexander ,
(1) the plaintiff establishes that the conduct allegedly retaliated against or sought to be deterred was constitutionally protected, and that the state's bringing of the criminal prosecution was motivated, at least in part, by a purpose to retaliate for or to deter that conduct; and (2) the state fails to show by a preponderance of the evidence that it would have decided to prosecute even had the impermissible purpose not been considered.
Jordan v. Reis ,
Here, Husband asserts that evidence from his initial trial showed that he did not commit a crime, his arrest was fraudulent, and the indictment against him is fatally defective. (docs. 116 at 2-8; 150 at 17-19.) He does not identify any constitutionally protected conduct, and he fails to allege sufficient facts to show that his subsequent prosecution was "instituted and conducted ... to retaliate for or to deter constitutionally protected conduct ...." All Am. Check Cashing, Inc. ,
b. Unconstitutional State Statute
Husband also argues that section 547.322 of the Texas Transportation Code (the Code), the basis for his traffic stop, "is not positive law, nor does the Code apply to [him]." (doc. 116 at 9-10.) He contends that he has a "natural human right to travel ... without government interference," and that the Code is unconstitutional because it deprives him of his right to travel. (Id. at 10.)
As noted, Younger does not apply if a challenged state statute "flagrantly and patently" violates "express constitutional prohibitions ...." Bice ,
"[C]ourts have held that 'driving an automobile on public roads is not a constitutionally protected right, but a privilege.' " Perkins v. Brewster , No. 1:17-CV-378-LY,
Section 547.322 provides that "vehicles shall be equipped with at least two taillamps," "including a separate lamp used to illuminate a rear license plate ...."
c. Extraordinary Circumstances
Husband finally asserts that his prosecution for assault of a public servant constitutes double jeopardy "because there is no actual victim, complainant, or witness stated with exactitude" in the offense report or indictment, which subjects him "to subsequent prosecution." (doc. 150 at 19.)
"Double-jeopardy claims can constitute the kind of extraordinary circumstances that justify an exception from Younger ...." Gates ,
Here, Husband appears to argue that he could be subjected to subsequent prosecutions for the same offense in violation of the Double Jeopardy Clause because "the indictment is fatally defective for failure to state the nature and cause of the accusation and fails to state the most basic elements of the alleged criminal acts, and fails to name a victim ...." (doc. 150 at 19.) He has not shown that he is being prosecuted after being acquitted of or convicted for assaulting a public servant, or that he has received multiple punishments for that same offense, however. (See
Because all three conditions of the Younger abstention doctrine are met, and Husband fails to show that an exception applies, his motion for injunctive relief should be denied, and any claims for injunctive relief alleged in the second amended complaint should be dismissed without prejudice for lack of subject-matter jurisdiction. Thomas v. State ,
III. MOTION TO DISMISS
Defendants move to dismiss Plaintiffs' claims under Rule 12(b)(6) for failure to state a claim upon which relief may be granted. (doc. 110 at 9-10, 13-28.)
Rule 12(b)(6) allows motions to dismiss for failure to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). Under the 12(b)(6) standard, a court cannot look beyond the face of the pleadings. Baker v. Putnal ,
"[A] well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of [the alleged] facts is improbable, and 'that a recovery is very remote and unlikely.' " Bell Atl. Corp. v. Twombly ,
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. 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. Where a complaint pleads facts that are "merely consistent with" a defendant's liability, it "stops short of the line between possibility and plausibility of 'entitlement to relief.' "
Iqbal ,
As noted, a court cannot look beyond the pleadings in deciding a 12(b)(6) motion. Spivey ,
Nevertheless, "pleadings" for purposes of a Rule 12(b)(6) motion include attachments to the complaint. In re Katrina Canal Breaches Litig. ,
Defendants attached to their motion to dismiss a video recording from the dashboard camera of one of the deputies' vehicles at the traffic stop, and copies of records related to Magistrate's hiring, job position, work schedule, work address, and payroll. (docs. 111; 110-2-110-6.) Although these filings are not attached to Plaintiffs' second amended complaint, they may be considered part of the pleadings because they are attached to Defendants' motion to dismiss, referred to in the second amended complaint, and central to Plaintiffs' claims. See In re Katrina Canal Breaches Litig. ,
Plaintiffs attached documents to their response to Defendants' motion to dismiss that were not attached to their complaint, including copies of the following: warrants for Husband's arrest that resulted from the traffic stop; Magistrate's work schedule, work address, payroll, and oath of office; a determination of probable cause to issue arrest warrants sheet signed by Magistrate; a general warranty deed signed by Magistrate; responses to records requests; an arraignment sheet for Husband; printouts from the Dallas County *473Appraisal District Website; an affidavit from Deputy Smith describing the events of the traffic stop and arrest; Husband's indictment for assaulting a public servant; images from a video of the traffic stop that was recorded by Plaintiffs; and part of a deposition apparently given by Deputy Smith. (doc. 116-1 at 1-33.) These documents are referenced in Plaintiffs' second amended complaint and appear to be central to their claims, so they may also be properly considered without converting the motion to dismiss into a motion for summary judgment.
A. Heck Bar
Defendants move to dismiss Plaintiffs' claims on grounds that they are barred by Heck v. Humphrey ,
Under Heck , when a successful civil rights action would necessarily imply the invalidity of a plaintiff's conviction or sentence, the claim must be dismissed unless the plaintiff demonstrates that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such a determination, or called into question by a federal court's issuance of a writ of habeas corpus under
Heck does not extend to cases where a plaintiff files a civil rights action challenging his arrest before any conviction. Wallace v. Kato ,
If a plaintiff files a false-arrest claim before he has been convicted (or files any other claim related to rulings that will likely be made in a pending or anticipated criminal trial), it is within the power of the district court, and in accord with common practice, to stay the civil action until the criminal case or the likelihood of a criminal case is ended.
Husband is currently facing a charge for assaulting a public servant arising from the traffic stop and arrest. (doc. 109 at 9.) He asserts numerous claims against Defendants, including claims for excessive force, false arrest, and illegal search and seizure against Deputies that all arise out of the traffic stop and his subsequent arrest. (See id. at 6-51.) These claims appear to be "related to rulings that will likely be made" in his pending criminal trial. See Wallace ,
Although Wife's claims arise out of the same traffic stop, she was not arrested or charged with any crimes. She claims, in part, that she was unlawfully seized, deprived of her Fourteenth Amendment due process and equal protection rights as a result of the traffic stop, and that the vehicle was unlawfully searched and seized. (doc. 36 at 3-4, 9-10, 15-16, 20-22.) Even though no criminal proceedings are pending against her, it is possible that Heck may also bar those claims because they "are intertwined and based on substantially the same factual allegations" as Husband's claims, and it would be necessary to make a determination on the validity of the traffic stop and arrest in order to determine whether those alleged violations occurred. Willis v. City of Hattiesburg , No. 2:14cv89-KS-MTP,
At this point, "it is simply premature to determine whether or not" Husband's damages claims against Deputies and Wife's damages claims for unlawful seizure of her person, deprivation of her Fourteenth Amendment rights, and unlawful *475search and seizure of the vehicle are barred under Heck . Mackey v. Dickson ,
B. Absolute Immunity
Magistrate and Court Coordinator argue that Husband's claims against them are barred by absolute immunity. (doc. 110 at 26-28.)
1. Judicial Immunity
Magistrate contends that the claims against her should be dismissed based on the doctrine of judicial immunity. (doc. 110 at 26.)
The Supreme Court has recognized absolute immunity for judges acting in the performance of their judicial duties. See Nixon v. Fitzgerald ,
"Texas courts employ the same judicial immunity analysis as the federal courts in this Circuit ...." Durrance v. McFarling , No. 4:08-CV-289,
*476Here, Husband alleges that Magistrate is not a magistrate judge who enjoys judicial immunity, and is not "authorized to administer an [o]ath or sign an arrest warrant," or "perform any duties at all." (doc. 109 at 16-21.) He contends that Magistrate issued an invalid warrant for his arrest in violation of his constitutional rights because there was "no affidavit supported by oath or affirmation ... [when] a warrant was issued." (Id. at 21-22.) He makes no specific allegations that Magistrate acted outside the scope of her judicial duties and therefore acted without jurisdiction, however. The record shows that Magistrate was selected and confirmed for her position as a part-time magistrate judge for the Criminal District Court of Dallas County. (docs. 110-2 at 2; 110-3 at 2; 110-6 at 2-3.) Because Husband seeks damages for judicial acts that were within her jurisdiction, all of his claims against her are barred by judicial immunity. Florance v. Buchmeyer ,
2. Quasi-Judicial Immunity
Court Coordinator argues that Husband's claims against her should be dismissed because they are barred by quasi-judicial immunity. (doc. 110 at 27-28.)
Individuals who perform judicial functions "have absolute [quasi-judicial] immunity from actions for damages arising from acts they are specifically required to do under court order or at a judge's discretion." Clay v. Allen ,
Here, Husband alleges that the Court Coordinator conspired with a judge to deprive him of his Sixth Amendment right to represent himself. (doc. 109 at 12-13.) He has not alleged that any actions were not *477taken under court order, according to court rules, or at a judge's discretion, however, so the Court Coordinator also has absolute immunity for these actions. See Small v. Dallas Cty. Tex. ,
Because Magistrate and the Court Coordinator have absolute immunity, any claims against them should be dismissed for failure to state a claim. See Nalls v. LaSalle ,
C. Qualified Immunity
Deputies argue that they are entitled to qualified immunity from Wife's remaining § 1983 constitutional claims.
Section 1983"provides a federal cause of action for the deprivation, under color of law, of a citizen's 'rights, privileges, or immunities secured by the Constitution and laws' of the United States." Livadas v. Bradshaw ,
A governmental employee who is sued under § 1983 may assert the affirmative defense of qualified immunity. White v. Taylor ,
The Supreme Court has held that plaintiffs are not required to anticipate a qualified immunity defense by providing greater specificity in their initial pleadings.
*478Crawford-El v. Britton ,
In deciding whether a defendant is entitled to qualified immunity, courts conduct a two-prong inquiry. The first prong entails consideration of whether the facts alleged, taken in the light most favorable to the plaintiff, show a violation of a constitutional right. Saucier v. Katz ,
"The issue of qualified immunity is often resolved on summary judgment, but the Court may also consider the issue in a motion to dismiss." Gill v. Delvin ,
1. Constitutional Violation
Deputies assert that their conduct did not violate Wife's constitutional rights. (doc. 110 at 15-17.)
a. Excessive Force
Wife contends that she was deprived of her constitutional rights "to be free from unreasonable and excessive force," and that the use of force by Deputies Andrade and Howell to remove her from the vehicle caused her "physical injuries that have been medically documented." (docs. 36 at 3, 5, 9, 11; 116 at 19, 21.)
The Fourth Amendment protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV. A seizure of a person occurs when an officer "by means of physical force or show of authority, has in some way restrained the liberty of a citizen." Terry v. Ohio ,
Whether Wife has stated a Fourth Amendment excessive force claim depends on whether she has sufficiently alleged that Deputies Andrade and Howell's alleged use of force was objectively unreasonable under the circumstances. Graham ,
"Fourth Amendment jurisprudence has long recognized that the right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it." Graham ,
Here, Wife alleges that she was "simply sitting in the car" with her son and not being confrontational, and that Deputies Andrade and Howell used excessive and unnecessary force against her without probable cause or legal justification when they grabbed her arm and pulled her out of the vehicle. (doc. 36 at 5, 8-9, 11, 1, 265.) She argues that Deputy Andrade placed her in "fear of losing [her] life as the force occurred while [he] displayed his service weapon," and that the force he used "was applied intentionally and maliciously to cause harm." (Id. at 5.) She also contends that she "was unlawfully threatened and subjected to offensive contact" by Deputy Howell when he "snatched [her] phone out of [her] hand" to prevent her from recording while displaying his service weapon. (Id. at 9, 11, 15.) She claims that she suffered "physical, mental, and emotional injuries," including a separated shoulder, and that Deputies Andrade and Howell's "use of excessive force was not objectively reasonable under the totality of the circumstances." (Id. at 5, 11, 38.)
Accepting these facts as true and viewing them in the light most favorable to Wife, as required at this stage of the proceedings, they suffice to give rise to a reasonable inference that Deputies Andrade and Howell used excessive force against her during the traffic stop. She therefore sufficiently states a Fourth Amendment violation against Deputies Andrade and Howell for their alleged use of excessive force.
*481b. Unlawful Seizure
Wife argues that Deputies Andrade and Howell "seized [her] cell phone without consent" in violation of her constitutional rights. (docs. 36 at 8-9, 12, 15, 20, 27, 32; 116 at 16-17, 21.)
As noted, the Fourth Amendment prohibits unreasonable seizures. U.S. Const. amend. IV. A "seizure" of property within the meaning of the Fourth Amendment occurs when "there is some meaningful interference with an individual's possessory interests in that property." Soldal v. Cook Cnty., Ill., ,
Here, Wife claims that Deputy Howell "snatched [her] phone out of [her] hand and turned [her] phone off to prevent [her] from recording" the alleged violations of her rights. (doc. 36 at 8-9, 12, 15, 19, 27, 32.) The video recording
c. Prevention of Recording
Wife argues that she was deprived of her First Amendment "right to record public officials engaged in the public discharge of their duties" by Deputies Andrade, Howell, and Smith. (docs. 36 at 3-4, 9-10, 20-22, 33; 116 at 17.)
The First Amendment proscribes, in relevant part, that "Congress shall make no law ... abridging the freedom of speech, or of the press ...." U.S. Const. amend. I. Freedom of speech and freedom of the press "has long [been] interpreted to include 'an undoubted right to gather news from any source by means within the law.' " Adelman v. Dallas Area Rapid Transit , No. 3:16-CV-2579-S,
Here, Wife alleges that she began recording on her cell phone when the traffic stop was initiated. (doc. 36 at 8.) As she was recording, Deputy Andrade touched her offensively and pulled on her arms "to try to get [the] phone out of [her] hand to prevent her from recording ...." (Id. ) She was in the vehicle and attempted to start recording again, but as she did, Deputy Andrade opened the car door, grabbed her right arm while her phone was in her left hand, "and told [her] that if [she] did not put [the] phone down and stop recording, he was going to break it." (Id. ) She turned her phone off based on his threat, but then turned her phone back on to begin recording again. (Id. ) When she attempted to move to continue recording, Deputy Andrade threatened to put her in handcuffs if she did not stay on the side of the vehicle. (Id. ) She began recording again "but as [she] was recording, [Deputy] Howell snatched [her] phone out of [her] hand and turned [the] phone off to prevent [her] from recording him and [Deputy] Smith violating [her] rights." (Id. ) She alleges that Deputy Smith ordered Deputy Howell to "seize the phone," and Deputy Howell "acted in concert with [Deputy] Smith and seized [her] cell phone without consent." (Id. at 8-9.)
As noted, Wife's facts must be accepted as true and viewed in the light most favorable to her at this stage of the proceedings. Her allegations sufficiently give rise to a reasonable inference that Deputies Andrade, Howell, and Smith prevented her from recording them during the traffic stop. She therefore sufficiently states a constitutional violation. See Turner ,
*4832. Clearly Established Law
Deputies also argue that Wife has failed to plead specific facts showing that their "conduct violated any clearly established constitutional right ...." (doc. 110 at 17-19.)
To show the inapplicability of the asserted qualified immunity defense, a plaintiff must claim that the constitutional violations were objectively unreasonable given the clearly established law at the time of the alleged constitutional violation.
For purposes of qualified immunity, "clearly established" means that the "contours of the right" are "sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson v. Creighton ,
a. Unreasonableness of Force
Wife asserts that the force used by Deputies Andrade and Howell was objectively unreasonable and in violation of "a clearly established right." (docs. 36 at 3, 5, 10, 11; 116 at 19.)
At the time of the March 2015 traffic stop, it was clearly established that the right to make an investigatory stop necessarily allows for officers "to use some degree of physical coercion or threat thereof to affect it." Graham ,
Here, the traffic stop was initiated for a minor traffic violation, and Wife was not arrested or charged for any crimes; nor does it appear that she was suspected of committing any crime at the time of the incident. (See docs. 36; 109.) Wife alleges that Deputies Andrade and Howell grabbed her arm and pulled her out of her vehicle even though she was "simply sitting in the car" and not being confrontational during the traffic stop. (doc. 36 at 5, 8-9, 11, 19, 26.) She claims that as a result of these actions, she suffered injuries, including a separated shoulder. (Id. at 2, 5, 38.) Although the grabbing of her arm would not in itself appear to be sufficient to show excessive force, she alleges that the grabbing of her arm was severe enough to cause her to suffer a separated shoulder. "While the Fourth Amendment's reasonableness test is 'not capable of precise definition or mechanical application,' the test is clear enough that [Deputies Andrade and Howell] should have known" that they could not remove Wife from the vehicle with such force that would result in a separated shoulder. See Bush v. Strain ,
Taking Wife's allegations as true, as the Court must at this point, she has adequately alleged the Deputies Andrade and Howell used excessive force in violation of the Fourth Amendment, and that their use of force was objectively unreasonable under the law in March 2015. Deputies Andrade and Howell are therefore not entitled to dismissal on the basis of qualified immunity on this claim at this stage, and the motion to dismiss should be denied to the extent it seeks dismissal of this claim.
b. Right to Record
Wife also asserts that she was denied her First Amendment right to record Deputies as they were "engaged in the public discharge of their duties." (docs. 36 at 3, 9; 116 at 17.)
As noted, the Fifth Circuit has established that there is a right to record police officers engaged in their duties. Turner ,
Here, the traffic stop occurred on March 14, 2015. (docs. 36 at 2; 109 at 6.) At the time of the stop, it was not clearly established that there was a right to record officers carrying out their public duties. As in Turner , Deputies Andrade, Howell, and Smith are entitled to qualified immunity on Wife's First Amendment claim for violation of her right to record because that right was not clearly established at the time of the incident. See Turner ,
In summary, Deputies Andrade and Howell are entitled to qualified immunity from Wife's claims that they unlawfully seized her cell phone, and both they and Deputy Smith are also entitled to qualified immunity from her claims that they deprived her of her right to record Deputies during the traffic stop. Deputies Andrade and Howell are not entitled to qualified immunity at this stage of the proceedings from Wife's claims that they used excessive force against her in violation of her rights under the Fourth Amendment at this stage of the proceedings.
D. Municipal Liability
The County argues that Husband's failure to train claim should be dismissed because he fails to "identify any formal policy or persistent and widespread practice that was the 'moving force' behind the alleged constitutional violations in [his] case." (doc. 110 at 22.)
Municipalities, including counties and cities, may be held liable under § 1983. Hampton Co. Nat'l Sur., LLC v. Tunica Cty. ,
"The description of a policy or custom and its relationship to the underlying *486constitutional violation ... cannot be conclusory; it must contain specific facts." Spiller v. City of Texas City, Police Dep't ,
1. Failure to Train
"The failure to train can amount to a policy if there is deliberate indifference to an obvious need for training where citizens are likely to lose their constitutional rights on account of novices in law enforcement." Peterson v. City of Fort Worth, Tex. ,
Here, Husband argues that the County "failed to train its officers adequately to prevent racially discriminatory conduct," unlawful arrests, and the use of excessive force. (doc. 109 at 43-45.) He alleges that the "County failed to provide its law enforcement with ... training, [and] acted with deliberate indifference to [his] constitutionally protected rights, because the *487consequences of failing to provide such training are known or obvious." (Id. at 50.) He alternatively argues that even if the County provided Deputies with proper training, it acted with deliberate indifference to his constitutional rights because it "failed to ensure that its law enforcement actually retained the information." (Id. ) He further claims that the County's "custom was the moving force behind [his] constitutional deprivations." (Id. at 51.) He relies only the actions of Deputies on the night of the traffic stop and arrest to argue that their actions prove "that [they] were not properly trained," and that their lack of training "was the proximate cause of [his] injuries." (Id. at 47-48.)
Husband's allegations do not suffice to show that it was obvious that the highly predictable consequence of the County's alleged failure to train was that its deputies " 'would apply force [or initiate arrests] in such a way that the [constitutional] rights of [citizens] were at risk.' " See Peterson ,
2. Other Claims
In addition to his failure to train claim, Husband asserts that the County is liable under the Fourth and Fourteenth Amendments because it has numerous customs that deprive citizens of their constitutional rights. (doc. 109 at 31-44, 49-51.) The County has not moved to dismiss any claims based on these allegations. (See doc. 110.) A court may sua sponte dismiss a plaintiff's claims for failure to state a claim as long as the plaintiff has notice and an opportunity respond. See Carroll v. Fort James Corp. ,
Husband does not specifically identify a policy, practice, or procedure that the officially adopted and promulgated by the County's policymakers. (See doc. 109.) Rather, he asserts that the County has customs which caused him to be held in jail without a probable cause hearing, denied of his right to indictment by a grand jury and to present exculpatory evidence to a grand jury, arrested and held for bond on assault allegations when there was no victim on the offense report, held without bail for failing to pay bail, and to have false charges filed against him to secure a bond from him. (Id. at 31-44, 49.) He lists about 20 state court case numbers and argues that those cases prove that the County has the customs he has alleged. (Id. at 31-35, 37.)
The Fifth Circuit has explained that "[w]here prior incidents are used to prove *488a pattern, they '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 [county] employees.' " Peterson ,
Although Husband cites case numbers to support his argument that the alleged customs exist, he does not allege any facts to show how any of those cases show that the County has customs which deprive citizens of their rights. (See doc. 109 at 31-35, 37.) He makes only conclusory allegations that the cases show that the County has these alleged customs. (Id. ) These "conclusions, unsupported by facts, are not entitled to the presumption of truth." Davenport v. City of Garland, Tex. , No. 3:09-CV-798-B,
E. Personal Involvement
Sheriff moves to dismiss the claims alleged against her in both her individual and official capacities. (doc. 110 at 21-22.)
1. Individual Capacity
Sheriff argues that the claims against her in her individual capacity should be dismissed because "[t]here are no facts alleged to show that [she] was personally involved in ... the conduct made the basis of this suit." (Id. at 22.)
Supervisory officials cannot be held liable for the unconstitutional actions of their subordinates based on any theory of vicarious or respondeat superior liability. See Estate of Davis ex rel. McCully v. City of North Richmond Hills ,
Here, Husband alleges that he sent requests to Sheriff advising her that Deputy Smith was "in illegal possession of [his] property" and demanding the return of his property. (doc. 109 at 30.) He contends that Sheriff is responsible for Deputy Smith's taking of his personal property and for not returning his property following his requests. (Id. at 29-31.) He does not identify any personal involvement by Sheriff, however, and she cannot be held liable for the allegedly unconstitutional actions of Deputy Smith. See Champagne ,
2. Official Capacity
Sheriff also argues that the official capacity claims against her should be dismissed because his allegations are "insufficient to impose Monell liability." (doc. 110 at 21-22.)
An official capacity claim is merely another way of pleading an action against the entity of which the individual defendant is an agent. See Kentucky v. Graham ,
Here, Husband relies on the same allegations for both his individual capacity and official capacity claims against Sheriff. (doc. 109 at 29-31.) He does not allege a specific policy that was officially adopted and promulgated by the County's lawmaking *490officials, nor does he allege any persistent or widespread practice that caused his alleged injuries as it relates to his allegations against Sheriff. (See id. ) He has therefore failed to state a viable § 1983 claim against the County based on the failure to return his property, and his official capacity claims against Sheriff should be dismissed. See Beavers v. Brown , No. 3:13-CV-1395-B,
F. No Meeting of the Minds
Detective and Deputy Smith argue that Husband fails to allege a meeting of the minds between them to fabricate false charges against him. (doc. 110 at 20.)
As noted, § 1983 provides redress for violations of a citizen's constitutional rights. Livadas ,
Here, Husband alleges that Detective conspired with Deputy Smith "to tamper with government records and remove [an] affidavit from the record" to help secure his arrest warrant. (doc. 109 at 28.) He also alleges that Detective and Deputy Smith conspired to have his concealed handgun license revoked. (Id. at 29.) He does not allege that Detective and Deputy Smith entered into an agreement, nor do his factual allegations show that there was any agreement between them. His " 'conclusory allegations of conspiracy cannot, absent reference to material facts' state a substantial claim of federal conspiracy under
*491G. No Cognizable Oath of Office Claim
Defendants also argue that Plaintiffs' claims that are based on "defective oaths of office must be dismissed with prejudice because they are not cognizable." (doc. 110 at 22-23.) Plaintiffs asserts claims for breach of contract against Deputies and the Sheriff for allegedly breaching their oaths of office. (docs. 36 at 2-3, 7, 9, 13, 15, 18, 21, 28; 109 at 30.)
"[C]laims based on an alleged failure to take the oaths of office required by Texas state law do not raise a federal constitutional claim." Bresler v. Dretke , No. 3:04-CV-2046-B,
IV. CLAIMS AGAINST ATTORNEY
Husband asserts that Attorney violated his "right to [his] choice of counsel" under the Fourth and Sixth Amendments. (doc. 109 at 13-15.) Attorney has not moved to dismiss any claims against him. As noted, a court may sua sponte dismiss a plaintiff's claims on its own for failure to state a claim as long as the plaintiff has notice and an opportunity respond. See Carroll ,
As also noted, section 1983 provides redress for constitutional violations that occurred under color of state law. See Livadas ,
In the absence of an alleged conspiracy with a state actor, a private party can be held to be a state actor (1) where there is a sufficiently close nexus between the state and the challenged action of the private party so that the action of the party may be fairly treated as that of the state itself, (2) where the private party has exercised powers that are "traditionally the exclusive prerogative of the state," or (3) where the state has exercised coercive power or has provided such significant encouragement, either overt or covert, that the action of the private party must in law be deemed to be that of the state. Blum ,
Here, Husband does not allege any facts to support a finding that Attorney is a state actor or that he engaged in anything other than private conduct under any of the three tests for state action. He alleges only that Attorney "is a state actor because he acts as an instrument and/or agent of the government ... by and through the authority of Dallas County" by issuing "surety bonds for defendants in Dallas County for the Dallas County Sheriff's Department ...." (doc. 106 at 15.) He also claims that Attorney "was hired by Dallas County to act as a bondsman." (Id. ) "[B]ail bondsmen are generally not considered state actors for purposes of liability under
V. RECOMMENDATION
Husband's motion for injunctive relief should be DENIED , and his claims for injunctive relief should be DISMISSED without prejudice for lack of subject-matter jurisdiction based on the Younger abstention doctrine. Defendants' motion to dismiss should be GRANTED in part and DENIED in part , and Wife's claims for excessive force under the Eighth Amendment, unlawful seizure of her cell phone under the Fourth Amendment, violations of her right to record under the First Amendment, and violations of the Fifth and Ninth Amendments, and Husband's failure to train claim against the County, federal claims against the Court Coordinator, Magistrate, Detective, and Sheriff, § 1983 conspiracy claims against Deputy Smith only for the alleged conspiracy between him and Detective, and state law claims against the Magistrate and Sheriff, as well as any claims by Plaintiffs based on defective oaths of office should be DISMISSED with prejudice . Husband's claims against Attorney and his remaining claims against the County should be sua sponte DISMISSED with prejudice for failure to state a claim upon which relief can be granted.
The proceedings should be STAYED as to Husband's remaining claims against Deputies
SO RECOMMENDED on this 6th day of December, 2018.
INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO APPEAL/OBJECT
A copy of these findings, conclusions and recommendation shall be served on all parties in the manner provided by law. Any party who objects to any part of these findings, conclusions and recommendation must file specific written objections within 14 days after being served with a copy. See
Notes
Wife appears to allege her claims only against Deputies. (doc. 36 at 1, 7, 13, 18, 25, 31.)
Plaintiffs' second amended complaint states that Wife's claims against Deputies "have been explained in detail via [her answers to] the Magistrate Judge's Questionnaire." (doc. 109 at 12.)
Citations to the record refer to the CM/ECF system page number at the top of each page rather than the page numbers at the bottom of each filing.
Attorney has not moved to dismiss any claims against him, and he has not filed anything in this case since his initial answer. (See doc. 70.)
Husband's reply brief exceeds the page limit in Local Civil Rule 7.2(c) of the Local Civil Rules for the Northern District of Texas and attaches evidence in support without leave of Court. (See docs. 158-60.) The purpose of filing a reply brief "is to rebut the nonmovant's response, thereby persuading the court that the movant is entitled to the relief requested by the motion." See Springs Indus., Inc. v. Am. Motorists Ins. Co. ,
Husband is the only party seeking injunctive relief. (See doc. 150.)
The doctrine takes its name from Younger v. Harris ,
Defendants also make this argument in their motion to dismiss any claims for injunctive relief alleged in the second amended complaint. (doc. 110 at 10-13.)
Judicial notice of the filings in Dallas County District Court may be taken, as they are matters of public record. See Ferguson v. Extraco Mortg. Co. ,
To determine if a "dispute involves an 'ongoing state judicial proceeding,' the point of reference is the date suit was filed." Wightman-Cervantes ,
Husband specifically raises exceptions to Younger in his response to Defendants' motion to dismiss. (See doc. 116 at 9-13.)
The Fifth Circuit has also "recognized that application of the Younger abstention doctrine can ...be waived." Gates ,
Plaintiffs also attached copies of an affidavit for an arrest warrant for an individual not in this case, emails regarding records in Husband's criminal case, and an image of the back of their vehicle to their response. (See doc. 116-1 at 7, 25-27, 29, 31.) Because these documents are not attached to the second amended complaint, referenced in the second amended complaint, or central to their claims, they are not considered as part of the pleadings. Even if considered, these documents do not appear to relate to any issues raised in the motion, so their consideration would not affect this recommendation.
Defendants also move to dismiss under Heck based on Rule 12(b)(1). (doc. 110 at 13-15.) Claims that are Heck - barred are not subject to dismissal for lack of subject-matter jurisdiction under Rule 12(b)(1), however, and instead should be addressed under Rule 12(b)(6). See Johnson v. McElveen ,
Federal courts "have supplemental jurisdiction over all other claims that are so related to claims in the action within [its] original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution."
Even if Husband could assert his claims against Magistrate, any claims that would challenge the validity of his conviction would be barred under Heck if he were convicted of assault of a public servant. See Heck ,
As noted, Wife's claims are asserted only against Deputies. (See doc. 36.)
Although Deputies move to dismiss both Plaintiffs' claims against them based on qualified immunity, only Wife's claims for excessive force against her, unlawful seizure of her cell phone, and for violations of her right to record are addressed at this point because as noted, Plaintiffs' other claims against Deputies may be Heck barred if Husband is convicted in his state court criminal case.
See also Roberts v. Kirkpatrick , No. 3:14-CV-812-N,
Current law applies to the first prong, but "the law at the time of the incident" applies to the second prong. See Bush v. Strain ,
Wife also alleges that she was subjected to cruel and unusual punishment in violation of the Eighth Amendment. (doc. 36 at 3, 9, 21.) To the extent she is asserting this claim in relation to the alleged excessive force used against her by some Deputies, "[c]laims of excessive force ... are based on the Fourth Amendment not the Eighth Amendment." Cabarobio v. Midland Cty., Tex. , No. MO:13-CV-00111-RAJ,
The Supreme Court has held that a plaintiff's version of facts that is blatantly contradicted by video evidence may be disregarded. Scott v. Harris ,
Because dismissal of this claim has been recommended for failure to allege a constitutional violation, it is unnecessary to consider whether Wife sufficiently alleged a violation of clearly established law for her claim that her cell phone was unlawfully seized.
Wife also generally alleges violations of the Fifth and Ninth Amendments. (doc. 36 at 2, 7, 11, 13, 18, 25.) The Fifth Amendment only applies to the actions of the federal government, however, and Wife asserts her claims only against state officials. Richard v. Hinson ,
This is an "entirely separate inquiry" from the reasonableness determination inherent in considering whether the plaintiff has claimed a Fourth Amendment excessive force claim. Ontiveros , 564 at 383 n.1,.
Wife also appears to allege a conspiracy under § 1983, and violations of the Declaration of Independence, Texas Constitution, and state law. (See doc. 36 at 2-33.) Deputies have not moved to dismiss these claims. (See doc. 110.)
Husband also appears to assert that the County violated his constitutional rights by holding him in jail without a probable cause hearing, denying his right to indictment by a grand jury and to present exculpatory evidence to a grand jury, allowing him to be arrested and held for bond on assault allegations when there is no victim on the offense report, permitting false charges to be filed against him to secure a bond from him, violating the Double Jeopardy Clause of the Fifth Amendment, and holding him without bail for failure to pay bail. (doc. 109 at 31-43, 49.) He also appears to assert claims for excessive force and false arrest directly against the County. (Id. at 43-44, 50-51.) The County does not move to dismiss any claims based on these alleged violations. (See doc. 110.)
There is an "extremely narrow" single incident exception in the context of failure-to-train claims. Hobart v. Estrada ,
"The fourteen-day time frame for filing objections to a recommended dismissal provides [a plaintiff] with notice and an opportunity to respond." Fantroy v. First Fin. Bank, N.A. , No. 3:12-CV-0082-N (BH),
Husband also asserts that the County is liable under the Fifth Amendment Double Jeopardy Clause. (doc. 109 at 34-37.) As previously found, however, "double-jeopardy concerns are not implicated" because Husband has not been acquitted, convicted, or punished for the same offense for which he is currently being prosecuted. See Gates ,
Detective and Deputy Smith also move to dismiss the conspiracy claim against them based on official immunity. (doc. 110 at 19-20.) Official immunity applies to state law claims, however, and Husband's conspiracy claim appears to arise only under federal law. See Newman v. Guedry ,
Plaintiffs do not appear to be asserting a separate claim based on the allegedly defective oaths of office. (See docs. 36; 109.)
As noted, the Court may exercise supplemental jurisdiction over Plaintiffs' state law claims because they form part of the same case or controversy or derive from one common nucleus of operative fact. See McKee ,
Defendants argue that the Court should decline to exercise supplemental jurisdiction over Plaintiffs' state law claims if it abstains or dismisses all of Plaintiffs' federal claims. (doc. 110 at 15, 19.) All of their federal claims are not subject to dismissal at this point, however, and the Court has already determined that it should exercise supplemental jurisdiction as to Plaintiffs' state law claims because they form part of the same case or controversy or derive from one common nucleus of operative fact. See McKee ,
"An exception to this rule can exist where the bondsman enlists the assistance of law enforcement officers in arresting the principal ...." Lafayette ,
Husband's remaining claims against Deputies appear to be claims for violations of the Second, Fourth, and Fourteenth Amendments for excessive force, false arrest, and unlawful search and seizure. (See doc. 109.)
Wife's remaining claims appear to be state law claims for assault and battery, breach of fiduciary duty, criminal conversion, intentional infliction of emotional distress, invasion of privacy, trespass, witness tampering, and fraud. (See doc. 36.)
As noted, Defendants also filed a motion to stay discovery in this case. (doc. 114.) Their motion seeks to stay all discovery pending a ruling on their motion to dismiss. (See