Nguyen v. Mizell et al

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION
ALEX NGUYEN,
Plaintiff.
V.
A.C. MIZELL, et al.,
Defendants.
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CIVIL ACTION NO. 3:25-cv-00204
MEMORANDUM AND RECOMMENDATION
Defendants The Board of Trustees of the Galveston Wharves (the “Board”)
and Kenneth Brown, Jr. have each filed a motion to dismiss. See Dkts. 42, 43. The
court is familiar with the facts of this case because this is the second round of
motion to dismiss briefing. See Dkt. 35 at 1–3. Having reviewed the briefing, the
record, and the applicable law, I recommend that both motions be granted. I also
recommend that the court sua sponte dismiss the Doe defendants for failure to
state a claim upon which relief may be granted.
DISMISSAL FOR FAILURE TO STATE A CLAIM1
Plaintiff Alex Nguyen asserts the following claims: (1) Fourth Amendment
unlawful seizure/false arrest against the Doe defendants and the Board; (2) Fourth
Amendment excessive force against the Doe defendants and the Board; (3) Monell
ratification against the Board; (4) Monell failure to train, supervise, discipline, and
correct against the Board; and (5) personal ratification, supervisory liability, and
deliberate indifference against Brown. 2
1 The Board argues for dismissal under Federal Rules of Civil Procedure 12(b)(2), 12(b)(5),
and 4(m) in addition to dismissal under Rule 12(b)(6). I do not reach these arguments
because Plaintiff Alex Nguyen fails to state a claim upon which relief may be granted.
2 Nguyen also asserts an official capacity claim against Brown. This claim is redundant to
Nguyen’s claims against the Board. See Kentucky v. Graham, 473 U.S. 159, 165 (1985)
(“Official-capacity suits . . . generally represent only another way of pleading an action
against an entity of which an officer is an agent.” (quotation omitted)).
United States District Court
Southern District of Texas
ENTERED
July 13, 2026
Nathan Ochsner, Clerk
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A. 	L EGAL S TANDARD
A defendant may move to dismiss a complaint when a plaintiff fails “to state
a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). “To survive a
motion to dismiss, a complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). “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.” Iqbal, 556 U.S. at 678. “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. (quoting Twombly, 550 U.S. at 556).
Conversely, “when the allegations in a complaint, however true, could not raise a
claim of entitlement to relief, this basic deficiency should be exposed at the point
of 	minimum 	expenditure 	of 	time 	and 	money 	by 	the 	parties 	and 	the
court.” Twombly, 550 U.S. at 558 (cleaned up).
When evaluating a Rule 12(b)(6) motion, I accept “all well-pleaded facts as
true and view[] those facts in the light most favorable to the plaintiff.” Cummings
v. Premier Rehab Keller, P.L.L.C., 948 F.3d 673, 675 (5th Cir. 2020) (quotation
omitted). 	I 	“do 	not, 	however, 	accept 	as 	true 	legal 	conclusions, 	conclusory
statements, or naked assertions devoid of further factual enhancement.” Benfield
v. Magee, 945 F.3d 333, 336–37 (5th Cir. 2019) (cleaned up). “Threadbare recitals
of the elements of a cause of action, supported by mere conclusory statements, do
not suffice.” Iqbal, 556 U.S. at 678. The Fifth Circuit “hold[s] pro se plaintiffs to a
more lenient standard than lawyers when analyzing complaints, but pro se
plaintiffs must still plead factual allegations that raise the right to relief above the
speculative level.” Chhim v. Univ. of Tex. at Austin, 836 F.3d 467, 469 (5th Cir.
2016); see also Twombly, 550 U.S. at 555.
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* * *
In considering whether Nguyen states a claim against the Board, Brown, or
the Doe defendants, I have relied solely on Nguyen’s operative pleading, see
Dkt. 40, and not any of the evidence attached to the motions to dismiss.
B. 	NGUYEN F AILS TO S TATE A MONELL CLAIM
“In Monell v. New York City Department of Social Services, 436 U.S. 658
(1978), the Supreme Court held that Congress intended [42 U.S.C.] § 1983 to apply
to local government entities as well as to persons.” Doe v. Taylor Indep. Sch. Dist.,
15 F.3d 443, 452 (5th Cir. 1994) (cleaned up). The Fifth Circuit has explained the
contours of Monell liability:
Under the decisions of the Supreme Court and this court,
municipal 	liability 	under 	section 	1983 	requires 	proof 	of 	three
elements: 	a 	policymaker; 	an 	official 	policy; 	and 	a 	violation 	of
constitutional rights whose moving force is the policy or custom.
Monell and later decisions reject municipal liability predicated on
respondeat superior, because the text of section 1983 will not bear
such a reading. Consequently, the unconstitutional conduct must be
directly attributable to the municipality through some sort of official
action or imprimatur; isolated unconstitutional actions by municipal
employees will almost never trigger liability. The three attribution
principles identified here—a policymaker, an official policy and the
“moving force” of the policy—are necessary to distinguish individual
violations perpetrated by local government employees from those that
can be fairly identified as actions of the government itself. Mistakes in
analyzing section 1983 municipal liability cases frequently begin with
a failure to separate the three attribution principles and to consider
each in light of relevant case law.
Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th Cir. 2001) (cleaned up).
Official policy exists in two forms. “First, a plaintiff may point to a policy
statement formally announced by an official policymaker.” Zarnow v. City of
Wichita Falls, 614 F.3d 161, 168 (5th Cir. 2010). Second, an official policy may
“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.’” Peterson v. City of
Fort Worth, 588 F.3d 838, 847 (5th Cir. 2009) (quoting Piotrowski, 237 F.3d at
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579). “A policy or custom is official only ‘when it results from the decision or
acquiescence of the municipal officer or body with “final policymaking authority”
over the subject matter of the offending policy.’” Peterson, 588 F.3d at 847
(quoting Jett v. Dall. Indep. Sch. Dist., 491 U.S. 701, 737 (1989)). “State law
determines whether a particular individual is a county or municipality final
decision maker with respect to a certain sphere of activity.” Bennett v. Pippin, 74
F.3d 578, 586 (5th Cir. 1996).
A 	custom 	or 	policy 	can 	be 	shown 	by 	“a 	pattern 	of 	unconstitutional
conduct . . . on the part of municipal actors or employees,” or where “a final
policymaker took a single unconstitutional action.” Zarnow, 614 F.3d at 169. “A
customary policy consists of actions that have occurred for so long and with such
frequency 	that 	the 	course 	of 	conduct 	demonstrates 	the 	governing 	body’s
knowledge and acceptance of the disputed conduct.” Id. “Allegations [or proof] of
an isolated incident are not sufficient to show the existence of a custom or policy.”
Fraire v. City of Arlington, 957 F.2d 1268, 1278 (5th Cir. 1992). To plausibly “plead
a practice so persistent and widespread as to practically have the force of law,
[Nguyen] must do more than describe the incident that gave rise to his injury.”
Ratliff v. Aransas County, 948 F.3d 281, 285 (5th Cir. 2020) (quotation omitted).
Nguyen identifies the Board and Brown as official policymakers, and, in
conclusory terms, identifies several customs and practices that he believes caused
the violation of his constitutional rights:
102. Upon information and belief, Brown and the Board maintained,
permitted, or failed to correct a custom or practice under which Port
police 	officers 	used 	criminal-law 	authority 	to 	enforce 	private,
administrative, commercial, or property-management preferences at
the Port, including private demands concerning parking or access,
even where no crime, traffic obstruction, trespass warning, lawful
exclusion order, or immediate threat existed.
103. Upon information and belief, Brown and the Board maintained,
permitted, or failed to correct a custom or practice under which Port
police 	officers 	escalated 	nonviolent 	compliance 	disputes 	into
custodial arrests.
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104. Upon information and belief, Brown and the Board maintained,
permitted, or failed to correct a custom or practice under which Port
police officers treated refusal to immediately comply with an officer's
command, or refusal to produce identification before lawful arrest, as
grounds for physical seizure or arrest.
105. Upon information and belief, Brown and the Board maintained,
permitted, or failed to correct a custom or practice under which Port
police officers charged or threatened resisting arrest after officers
initiated physical force without lawful grounds.
106. Upon information and belief, Brown and the Board maintained,
permitted, or failed to correct a custom or practice under which
internal complaints against Port police officers were reviewed within
the same command structure responsible for the officers, without
meaningful independent review.
107. 	Upon 	information 	and 	belief, 	the 	Board’s 	policy, 	custom,
practice, delegation, failure to train, failure to supervise, failure to
discipline, and ratification were moving forces behind the violation of
Plaintiff's Fourth Amendment rights.
Dkt. 40 at 10.
The Fifth Circuit has held that the “description of a policy or custom and its
relationship to the underlying constitutional violation . . . cannot be conclusory; it
must contain specific facts.” Spiller v. City of Texas City, Police Dept., 130 F.3d
162, 167 (5th Cir. 1997). Nguyen does not, however, describe or explain in any
detail how any policy or custom played a part in causing a constitutional violation.
“Instead, the complaint’s only specific facts appear in the section laying out the
events that gave rise to this action. Thus, [Nguyen]’s complaint clearly does not
satisfy Twombly or Iqbal with respect to the allegation[s] that” Brown and the
Board maintained the customs and practices that Nguyen believes gave rise to the
constitutional violations he alleges. Ratliff, 948 F.3d at 285 (emphasis added).
Accordingly, Nguyen’s claims against the Board should be dismissed for failure to
state a Monell claim.
C. 	NGUYEN F AILS TO S TATE A CLAIM A GAINST BROWN
Nguyen asserts a single claim against Brown in his individual capacity:
“Personal Ratification, Supervisory Liability, and Deliberate Indifference.” Dkt. 40
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at 	15. 	Specifically, 	Nguyen 	contends 	that 	Brown 	is 	liable 	because 	Brown
“personally participated in the post-incident review, personally reviewed or
claimed to review the evidence, personally determined that the arrest was justified,
and personally failed to correct, refer, discipline, or retrain after reviewing the
evidence.” Id.
To plead Brown’s liability for actions taken after the alleged constitutional
violations at issue, Nguyen must plead that “(1) [Brown] either failed to supervise
or train the subordinate officer; (2) a causal link exists between the failure to train
or supervise and the violation of [Nguyen]’s rights, and (3) the failure to train or
supervise amounts to deliberate indifference.” Davidson v. City of Stafford, 848
F.3d 384, 397 (5th Cir. 2017), as revised (Mar. 31, 2017).
“Deliberate 	indifference 	is 	a 	stringent 	standard 	of 	fault, 	requiring
[allegations] that [Brown] disregarded a known or obvious consequence of his
action.” Est. of Davis ex rel. McCully v. City of N. Richland Hills, 406 F.3d 375,
381 (5th Cir. 2005) (quoting Bd. of Cnty. Comm’rs of Bryan Cnty. v. Brown, 520
U.S. 397, 410 (1997)). “Actions and decisions by officials that are merely inept,
erroneous, ineffective, or negligent do not amount to deliberate indifference and
do not divest officials of qualified immunity.” Est. of Davis, 406 F.3d at 381
(quoting Alton v. Tex. A&M Univ., 168 F.3d 196, 201 (5th Cir. 1999)).
The Fifth Circuit has explained the two ways in which a plaintiff may allege
deliberate indifference: “First, a plaintiff may demonstrate that a municipality had
notice of a pattern of similar violations. Second, a plaintiff may demonstrate
liability based on a single incident if the constitutional violation was the highly
predictable consequence of a particular failure to train.” Davidson, 848 F.3d at 397
(cleaned up).
As an initial matter, Nguyen fails to allege that the Board or Brown had
notice of a pattern of similar violations. Thus, Nguyen must allege that the incident
at issue was “the highly predictable consequence of a particular failure to train.”
Id. 	Nguyen’s 	amended 	complaint 	contains 	nothing 	more 	than 	conclusory
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allegations about training, and there are certainly no factual allegations suggesting
that the incident at issue was a highly predictable consequence of a particular
failure to train. Plaintiffs “seeking recovery under a failure to train or supervise
rationale must prove that the police chief failed to control an officer’s known
propensity for the improper use of force.” Roberts v. City of Shreveport, 397 F.3d
287, 292 (5th Cir. 2005) (quotation omitted).
To borrow the words of my esteemed colleague, Judge Sim Lake:
There are no allegations here that the officers at issue had not received
any training or supervision, or that they had been involved in any
cases involving the improper use of excessive force or [unlawful
seizures] 	while 	responding 	to 	calls 	involving 	[private 	parking
disputes]. Instead, [Nguyen] merely alleges that the training all [Port
of Galveston] police officers received as a result of Chief [Brown]’s
policies was not enough and that more or different training or
supervision 	would 	have 	prevented 	[Nguyen’s] 	injuries. 	Such
allegations are not sufficient to state a claim for failure to train or
supervise against Chief [Brown] in his personal capacity.
Khansari v. City of Houston, 14 F. Supp. 3d 842, 867 (S.D. Tex. 2014). Accordingly,
Nguyen’s claim against Brown should be dismissed.
D. 	NGUYEN F AILS TO S TATE A CLAIM A GAINST THE D OE D EFENDANTS
Nguyen does not differentiate between the Doe defendants and does not
identify any specific Doe defendant’s alleged actions. “Such broad and unspecific
allegations 	against 	unknown 	persons 	simply 	cannot 	satisfy 	the 	‘personal
involvement’ requirement for civil-rights claims.” Bellard v. Univ. of Tex. Md
Anderson Cancer Ctr., No. 3:22-cv-88, 2023 WL 6373906, at *7 (S.D. Tex. May 16,
2023). Accordingly, Nguyen cannot state a claim against any Doe defendant. The
court should dismiss Nguyen’s claims against the Doe defendants sua sponte.
CONCLUSION
For the reasons discussed above, I recommend that the two pending motions
to dismiss (Dkts. 42, 43) be granted, and that the court sua sponte dismiss the Doe
defendants for failure to state a claim.
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The 	parties 	have 	14 	days 	from 	service 	of 	this 	Memorandum 	and
Recommendation to file written objections. See 28 U.S.C. § 636(b)(1)(C); Fed. R.
Civ. P. 72(b)(2). Failure to file timely objections will preclude appellate review of
factual findings and legal conclusions, except for plain error.
SIGNED this 	day of July 2026.
______________________________
ANDREW M. EDISON
UNITED STATES MAGISTRATE JUDGE
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