Kirk v. City of Garland et al

MEMORANDUM OPINION AND ORDER – PAGE 1
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
LAQUISHA KIRK, 	§
§
Plaintiff, 	§
§
v. 	§ 	Civil Action No. 3:25-CV-0515-N
§
CITY OF GARLAND, et al., 	§
§
Defendants. 	§
MEMORANDUM OPINION AND ORDER
This Order addresses motions to dismiss filed by Garland Police Officer Christopher
Mittendorf [18], the City of Garland (“the City”) [20], and Garland Independent School
District (“GISD”) [21]. For the reasons set forth below, the Court grants the motions and
gives Plaintiff Laquisha Kirk leave to amend in response to the Court’s Order.
I. O RIGINS OF THE MOTIONS
This is an excessive force case. On or about May 23, 2023, Plaintiff H. K., a minor,
stood near a fight involving other students in the hallway of North Garland High School.1
Pl.’s Am. Compl. ¶ 15. Officer Mittendorf, a Garland police officer assigned to the school
as a school resource officer, attempted to break up the fight. Id.; see also Def.’s Mot. Br.
4–5 [21]. 	After observing Mittendorf “restraining her friend in an aggressive manner,”
H.K. alleges that she backed away from the fight and asked Mittendorf get off her friend.
Pl.’s Am. Compl. ¶ 15–16. Mittendorf then “grabbed H.K. by her hair on both sides of her
1 For purposes of these motions, the Court assumes the truth of all well-pleaded facts in the
complaint.
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MEMORANDUM OPINION AND ORDER – PAGE 2
head and forced her to the ground” and, after putting his leg out to trip her down, “he then
put his arm and his knee in H.K.’s back.” Id. ¶ 16. H.K. reported that Mittendorf’s actions
impaired her ability to breathe. Id. H.K. asserts that the incident “was depicted in a video
circulated to news media.”2 Id. Mittendorf then placed H.K. in tight handcuffs and placed
her in the back seat of a police car for thirty minutes. Id. ¶ 18. H.K. later visited a medical
facility where she learned that she had a neck sprain caused by Mittendorf. Id. ¶ 20. She
suffered emotional and psychological trauma and did not return to North Garland High
School to finish her education out of fear of Mittendorf. Id. ¶ 20.
After H.K.’s detainment, she called her mother, Laquisha Kirk, who went to the
campus and questioned the school principal about what happened to her daughter. Id. ¶ 21.
The principal directed Kirk to speak with Mittendorf. Id. Mittendorf walked away from
Kirk and ignored her questions. 	Id. 	Kirk attempted to follow Mittendorf into the
gymnasium as the door closed quickly behind him. 	Id. 	When Mittendorf “noticed that
Kirk caught the door, he . . . grabbed her arm and forcefully pushed her out of the door.”
Id. Mittendorf “grabbed her so violently that he caused bruising on her arm.” Id. ¶ 21.
Kirk brings this suit individually and on behalf of H.K., her daughter. 	Kirk alleges
several causes of action against each defendant. She asserts section 1983 claims against
2 Defendant Mittendorf submitted a video of the incident in support of his motion to
dismiss. 	Def.’s App. 1 [7]. 	However, the Court can properly consider a defendant’s
attachments to its motion only when the attachment is referenced in the complaint and
central to the plaintiff’s complaint. Inclusive Cmtys. Project, Inc. v. Lincoln Prop. Co., 920
F.3d 890, 900 (5th Cir. 2019); see also Salinas v. Loud, 2022 WL 17669724 at *2 (N.D.
Tex. 2022). 	Mittendorf’s video is not the video referenced in the complaint. 	Pl.’s Resp.
Br. 2 [24]. Accordingly, the Court does not consider the video in its analysis.
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MEMORANDUM OPINION AND ORDER – PAGE 3
Officer Mittendorf for excessive force against H.K. and Kirk, and one section 1983 claim
against Mittendorf and two unidentified officers for H.K.’s seizure and arrest. 	Pl.’s Am.
Compl. ¶¶ 29, 34, 39. Separately, she asserts section 1983 claims against Mittendorf, the
City, and GISD, for violating H.K.’s Fourteenth Amendment right to due process. Id. ¶ 32.
She then brings a series of tort claims against the City, the Garland Police Department,
GISD, Mittendorf, and the two unidentified officers. 	Id. ¶¶ 41, 52–53, 60, 65–66, 69.
Mittendorf, the City, and GISD now move to dismiss for failure to state a claim.
II. R ULE 12(B )(6) L EGAL S TANDARD
When addressing a motion to dismiss pursuant to Federal Rule of Civil Procedure
12(b)(6), a court must determine whether the plaintiff has asserted a legally sufficient claim
for relief. 	Blackburn v. City of Marshall, 42 F.3d 925, 931 (5th Cir. 1995). 	“When
reviewing a motion to dismiss, a district court must consider the complaint in its entirety,
as well as . . . documents incorporated into the complaint by reference, and matters of which
a court may take judicial notice.” Funk v. Stryker Corp., 631 F.3d 777, 783 (5th Cir. 2011)
(internal quotation marks omitted). Thus, a district court may properly consider contracts
or other documents that are not attached to the complaint, but are referenced in and central
to it, and attached to a defendant’s Rule 12(b)(6) motion. See Inclusive Cmtys. Proj., Inc.
v. Lincoln Prop. Co., 920 F.3d 890, 900 (5th Cir. 2019).
A viable complaint includes “enough facts to state a claim to relief that is plausible
on its face.” 	Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). 	To meet this
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.
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MEMORANDUM OPINION AND ORDER – PAGE 4
Iqbal, 556 U.S. 662, 678 (2009). A court generally accepts well-pleaded facts as true and
construes the complaint in the light most favorable to the plaintiff. Gines v. D.R. Horton,
Inc., 699 F.3d 812, 816 (5th Cir. 2012). But 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 (internal citations 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.” Id. (internal citations omitted).
III. L EGAL S TANDARD F OR A S ECTION 1983 CLAIM
To state a section 1983 claim, “a plaintiff must (1) allege a violation of a right
secured by the Constitution or laws of the United States and (2) demonstrate that the alleged
deprivation was committed by a person acting under color of state law.” 	James v. Tex.
Collin Cnty., 535 F.3d 365, 373 (5th Cir. 2008) (internal citations omitted).
To establish that Mittendorf violated the Fourth Amendment, Kirk must allege that
H.K. and Kirk “suffer[ed] an injury that result[ed] directly and only from a clearly
excessive and objectively unreasonable use of force.” 	Joseph ex rel. Estate of Joseph v.
Bartlett, 981 F.3d 319, 332 (5th Cir. 2020); see also Graham v. Connor, 490 U.S. 386, 395
(1989). 	“Crucially, this analysis must be objective: To make out a Fourth Amendment
violation . . . ‘the question is whether the officer[’s] actions are objectively reasonable in
light of the facts and circumstances confronting [him], without regard to [his] underlying
intent or motivation.’” 	Poole v. City of Shreveport, 691 F.3d 624, 628 (5th Cir. 2012)
(quoting Graham, 490 U.S. at 397). “The ‘reasonableness’ of a particular use of force must
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MEMORANDUM OPINION AND ORDER – PAGE 5
be judged from the perspective of a reasonable officer on the scene, rather than with the
20/20 vision of hindsight.” Graham, 490 U.S. at 396.
“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.” Id. With “careful attention to the facts and
circumstances of each particular case,” the Court must consider “the severity of the crime
at issue, whether the suspect poses an immediate threat to the safety of the officers or
others, and whether he is actively resisting arrest or attempting to evade arrest by flight.”
Id. 	“But even an officer who may lawfully use or threaten force must appropriately
calibrate the amount of force he employs to the need for force he confronts.” 	Hanks v.
Rogers, 853 F.3d 738, 747 (5th Cir. 2017) (citing Deville v. Marcantel, 567 F.3d 156, 167
(5th Cir. 2009)). 	When detaining an uncooperative arrestee, officers must properly use
“measured and ascending actions that correspond to [the arrestee’s] escalating verbal and
physical resistance.” 	Joseph, 981 F.3d at 332–33 (quoting Poole, 691 F.3d at 629)
(collecting cases).
IV. L EGAL S TANDARD FOR Q UALIFIED IMMUNITY
“Qualified 	immunity 	is 	a 	defense 	available 	to 	public 	officials 	performing
discretionary functions ‘insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person should have known.’”
Noyola v. Tex. Dep’t of Human Res., 846 F.2d 1021, 1024 (5th Cir. 1988) (quoting Harlow
v. Fitzgerald, 457 U.S. 800, 818 (1982)). The doctrine of qualified immunity balances two
interests: “the need to hold public officials accountable when they exercise power
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MEMORANDUM OPINION AND ORDER – PAGE 6
irresponsibly and the need to shield officials from harassment, distraction, and liability
when they perform their duties reasonably.” 	Pearson v. Callahan, 555 U.S. 223, 231
(2009). Because “qualified immunity is designed to shield from civil liability ‘all but the
plainly incompetent or those who knowingly violate the law,’” denial of qualified immunity
is appropriate only in rare circumstances. Brady v. Fort Bend Cnty., 58 F.3d 173, 173–74
(5th Cir. 1995) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). 	Once a defendant
asserts the qualified immunity defense, “[t]he plaintiff bears the burden of negating
qualified immunity.” 	Hyatt v. Thomas, 843 F.3d 172 (5th Cir. 2016) (quoting Brown v.
Callahan, 623 F.3d 249, 253).
Because Mittendorf has properly asserted qualified immunity, the Court must assess
Kirk’ claims to determine (1) whether either plaintiff has alleged a violation of a
constitutional right, and if so, (2) whether that right was “clearly established” at the time
of the public official’s alleged misconduct. Saucier v. Katz, 533 U.S. 194, 201 (2001). At
the motion to dismiss stage, “it is the defendant’s conduct as alleged in the complaint that
is scrutinized for ‘objective legal reasonableness.’” McClendon v. City of Columbia, 305
F.3d 314, 323 (5th Cir. 2002) (en banc) (per curiam) (citing Behrens v. Pelletier, 516 U.S.
299, 309 (1996)).
V. T HE COURT G RANTS T HE M OTIONS TO D ISMISS THE SECTION 1983 C LAIMS
The Court grants each motion to dismiss for failure to state a claim under section
1983. First, the Court finds that H.K. has not adequately alleged that Officer Mittendorf’s
actions were unreasonable under the circumstances. Second, the Court concludes that Kirk
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MEMORANDUM OPINION AND ORDER – PAGE 7
failed to allege that Mittendorf violated her constitutional rights. Next, the Court concludes
that Kirk fails to state claims for relief against the City or GISD.
A. Kirk Do Not State a Plausible Section 1983 Claim Against the Officers
Here, Kirk, on behalf of H.K., alleged that Officer Mittendorf used excessive force
and that Mittendorf and two unidentified officers unlawfully detained her. 	Pl.’s Am.
Compl. ¶ 27, 34. 	However, the complaint lacks sufficient information for the Court to
analyze the Graham factors and determine whether Kirk plausibly alleged that Mittendorf
used excessive force or unlawfully arrested H.K. 	For example, the amended complaint
does not allow the Court to assess whether H.K. clearly posed an immediate threat to the
safety of others or whether she actively resisted arrest. See Joseph, 981 F.3d at 332.
The amended complaint also lacks sufficient detail for the Court to consider whether
H.K.’s detainment was unlawful under the circumstances.3 In supporting Kirk’s argument
that H.K. was unlawfully detained, Kirk asserts that H.K. was never charged with a crime.
Pl.’s Am. Compl. ¶ 19. The assertion, even if taken as true, is not evidence to suggest that
any of the officers lacked probable cause to arrest H.K., and thus wrongfully detained her.
See Flores v. City of Palacios, 381 F.3d 391, 402 (5th Cir. 2004) (“Probable cause exists
when the totality of facts and circumstances within a police officer’s knowledge at the
moment of arrest are sufficient for a reasonable person to conclude that the suspect had
3 Mittendorf argues that the officers had probable cause to arrest H.K. and cites specific
statutory violations. Def.’s Mot. Br. 9. However, this argument relies on video evidence
the Court does not consider. See supra, fn. 2.
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MEMORANDUM OPINION AND ORDER – PAGE 8
committed or was committing an offense.”)). Thus, the Court grants Mittendorf’s motion
to dismiss H.K.’s section 1983 claim.
The Court also grants the motion to dismiss Kirk’s excessive force claim against
Mittendorf. Kirk alleged that Mittendorf violated her Fourth Amendment right to be free
from excessive force by forcing a door closed and injuring her arm. 	Pl.’s Am. Compl.
¶ 21–22. 	However, Kirk did not properly allege that Mittendorf’s conduct constituted a
seizure within the meaning of the Fourth Amendment. 	See e.g., Brower v. Cnty. of Inyo,
489 U.S. 593, 595 (1989); see also Perkins v. Hart, 2023 WL 8274477 at *6 (5th Cir. 2023)
(unpub.) (holding that “there was simply no seizure from which an excessive force claim
can stem” because Plaintiff did not allege that he was prevented from leaving the scene of
an incident). Thus, even accepting Kirk’s version of facts as true, she does not state a claim
of excessive force because there was no underlying violation of her Fourth Amendment
rights. The Court dismisses Kirk’s section 1983 claims against Officer Mittendorf and the
two unidentified officers.
B. Kirk Does Not State a Plausible Section 1983 Claim Against the City
Kirk brings a section 1983 claim against the City and the Garland Police Department
for violating H.K.’s Fourteenth Amendment right to due process and failure to train the
officers involved in the incident. Pl.’s Am. Compl. ¶ 32, 41. First, the Court agrees with
the City that the Garland Police Department is not a proper defendant in this case because
it is a non-jural entity lacking a distinct legal identity from the City. 	Darby v. Pasadena
Police Dep’t, 939 F.2d 311, 313–14 (5th Cir. 1991) (holding that, “for a plaintiff to sue a
city department, it must ‘enjoy a separate legal existence’”); see also Merchant v. Garland
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MEMORANDUM OPINION AND ORDER – PAGE 9
Police Dep’t, 2022 WL 1158262 at *3 (N.D. Tex. 2022), R. & R. adopted, 2022 WL
1158005 (N.D. Tex. 2022).
Next the Court concludes that no facts in the complaint support a claim for section
1983 municipal liability. 	To establish municipal liability under section 1983, a plaintiff
must show that (1) an official policy (2) promulgated by the municipal policymaker (3)
was the moving force behind the violation of a constitutional right. Hicks-Fields v. Harris
Cnty., 860 F.3d 803, 808 (5th Cir. 2017). For example, Kirk wholly fails to allege that the
City deprived Kirk or H.K. of a constitutionally protected right or that the City provided
the moving force, such as a policy, practice, or custom, behind any alleged constitutional
violation. Accordingly, the Court grants the City’s motion to dismiss Kirk’s section 1983
claims against the City and the Garland Police Department.
C. Kirk Does Not State a Plausible Section 1983 Claim Against GISD
Next, Kirk brings a section 1983 claim against GISD for violating H.K.’s Fourteenth
Amendment due process right. Pl.’s Am. Compl. ¶ 32. The Court holds that Kirk fails to
state a claim against GISD because she fails to allege that any GISD employee violated
Kirk or H.K.’s constitutional rights.
Kirk’s allegations against GISD stem from the police officers’ conduct at North
Garland High School. Pl.’s Am. Compl. ¶ 1. However, Kirk does not sufficiently allege
that the officers were GISD employees or assert any facts that would make this allegation
plausible. 	Kirk makes one conclusory allegation that Mittendorf was employed by the
Garland Police Department and GISD. Pl.’s Am. Compl. ¶ 1. Yet, later in her complaint,
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MEMORANDUM OPINION AND ORDER – PAGE 10
she asserts that Mittendorf and the unidentified officers were only employees of the
Garland Police Department. Id. ¶ 6, 45. Moreover, even if the Court accepts the assertion
that the officers were GISD employees as true, the Court has already concluded that Kirk
failed to sufficiently plead section 1983 claims against the officers. Therefore, Kirk fails
to 	adequately 	assert 	that 	a 	GISD 	employee 	violated 	H.K.’s 	constitutional 	rights.
Accordingly, the Court grants the motion to dismiss this claim.
D. The Court Dismisses Kirk’ State Law Claims
Kirk bring the following five state law claims: (1) negligent failure to intervene
against GISD, (2) assault and battery against Mittendorf and the unidentified officers, (3)
false imprisonment against Mittendorf and the unidentified officers, and (4) negligence
against Mittendorf. 4 	See generally, Pl.’s Am. Compl. ¶¶ 40–69. As previously discussed,
the Court holds that the claims against Garland Police Department must be dismissed
because it is a non-jural entity and does not have a distinct legal existence from the City.
Darby, 939 F.2d at 313–14. 	The Court dismisses the state law claims for the following
reasons. 	First, the Court dismisses the intentional tort claims against the City and the
individual officers in accordance with the Texas Tort Claims Act (“TTCA”). 	Then, the
4 Kirk’ negligence claim against Officer Mittendorf relies on the same factual allegations
as their section 1983 excessive force claim. 	However, the Texas Supreme Court has
determined that a plaintiff may not maintain a claim of negligence regarding an officer’s
use of force during an arrest because, while an officer may misjudge the amount of force
needed to conduct an arrest, the use of force was necessarily intentional. City of Watauga
v. Gordon, 434 S.W.3d 586 (Tex. 2014). Thus, Kirk’ negligence claim fails as a matter of
law.
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MEMORANDUM OPINION AND ORDER – PAGE 11
Court dismisses the claims against GISD because the school district is immune from suit
on the negligence claim.
First, Kirk’ claims against the City for the intentional torts of assault and battery,
false imprisonment, and negligence are prohibited under the elections of remedies clause
of the TTCA. Def.’s Mot. Br. 15 [20]; see also T EX. C IV. P RAC . & REM . C ODE §101.106(b).
The election of remedies clause provides:
The filing of a suit against any employee of a governmental unit constitutes
an irrevocable election by the plaintiff and immediately and forever bars any
suit or recovery by the plaintiff against the governmental unit regarding the
same subject matter unless the governmental unit consents.
Id. §101.106(f).
Here, Kirk asserts state law claims against the City and individual officers, including
Officer Mittendorf. Pl.’s Am. Compl. ¶¶ 54–69. Thus, Kirk made an irrevocable election
to proceed against the individual officers only. Accordingly, the Court grants the motion
to dismiss the intentional tort claims against the City.
The Court also dismisses Kirk’s intentional tort claims against the individual
officers. The TTCA allows suits against government employees only in instances where
the employee acted in his or her official capacity:
If a suit is filed against an employee of a governmental unit based on conduct
within the general scope of that employee's employment and if it could have
been brought under this chapter against the governmental unit, the suit is
considered to be against the employee in the employee's official capacity
only. On the employee's motion, the suit against the employee shall be
dismissed 	unless 	the 	plaintiff 	files 	amended 	pleadings 	dismissing 	the
employee and naming the governmental unit as defendant on or before the
30th day after the date the motion is filed.
T EX. C IV. PRAC . & REM . C ODE § 101.106(f).
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MEMORANDUM OPINION AND ORDER – PAGE 12
Kirk does not dispute that the officers were acting in their official capacities as SROs at
North Garland High School. Thus, the officers are entitled to the same sovereign immunity
protections available to the City. Therefore, the Court grants the motion to dismiss these
claims.
Lastly, the Court concludes that GISD is immune from suit on Kirk’s claims. 	In
addition to alleging that Officer Mittendorf was an employee of GISD, Kirk alleges that
two unidentified North Garland High School employees failed to intervene to stop
Mittendorf’s use of force against H.K. Pl.’s Am. Compl. ¶¶ 51–53. Under Texas law, GISD
is entitled to governmental immunity from liability unless it waived the privilege. See Carn
v. Mesquite Indep. Sch. Dist., WL 111348730 at *2 (N.D. Tex. 2020). 	Furthermore, the
TTCA provides a limited waiver of this immunity for tort claims against school districts
when the alleged injury “arises from the operation or use of a motor[] vehicle.” T EX. C IV .
P RAC . & REM . C ODE §§ 101.021, 101.051. 	Here, GISD did not waive its immunity and
Kirk does not make any factual allegations relating to the operation or use of a motor
vehicle. 	See e.g., George v. Abbott, 2024 WL 3687103, at *10 (S.D. Tex. 2024).
Accordingly, the Court grants the motion to dismiss the tort claims against GISD.
C ONCLUSION
Because Kirk did not sufficiently allege section 1983 claims against Officer
Mittendorf and the two unidentified Garland police officers, the Court grants the motion to
dismiss her claims for excessive force and unlawful arrest. Next, the Court concludes that
GISD is entitled to statutory immunity and grants its motion to dismiss Kirk’s claims. The
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MEMORANDUM OPINION AND ORDER – PAGE 13
Court also dismisses the claims against the City for failure to state a claim. 	Lastly, the
Court grants Kirk leave to amend her section 1983 claims against the Garland police
officers. 	She has thirty (30) days to file a second amended complaint. If Kirk does not
amend her complaint, the Court will dismiss all claims with prejudice without further
notice.
Signed March 25, 2026.
___________________________
David C. Godbey
Senior United States District Judge
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