Moore v. City of Houston et al

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
TANISHA MOORE AND
DESTINY CEASAR,
Plaintiffs,
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v. 	CIVIL ACTION NO. 4:23-cv-3048
CITY OF HOUSTON, et al.,
Defendants.
MEMORANDUM AND RECOMMENDATION
Pending before the Court is Defendant Officers Jaime Vargas (“Vargas”),
Marco 	Lopez 	(“Lopez”), 	Daryl 	Hudeck 	(“Hudeck”), 	Sean 	McCreary
(“McCreary”), Erik Holland (“Holland”), Brandon Hollis (“Hollis”), Tony Villa
(“Villa”), Charles Dexter (“Dexter”), and Jesse Seay (“Seay”) (collectively,
“Defendant 	Officers,” 	excluding 	Cameron 	Overstreet 	(“Overstreet”)) 	and
Defendant City of Houston’s (the “City”) Motion for Judgment on the Pleadings
(ECF No. 58).1 Based on a review of the motion, arguments, and relevant law,
the Court RECOMMENDS the motion (id.) be GRANTED.
1 This case was referred to the Undersigned for all purposes pursuant to 28 U.S.C.
§ 636(b)(1)(A) and (B) and Federal Rule of Civil Procedure 72. (ECF No. 40).
United States District Court
Southern District of Texas
ENTERED
April 23, 2026
Nathan Ochsner, Clerk
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I. 	Background
Plaintiffs 	Tanisha 	Moore 	(“Moore”) 	and 	Destiny 	Ceasar 	(“Destiny”)
(collectively, “Plaintiffs”) bring this action under 42 U.S.C. § 1983 and the
Texas Wrongful Death and Survivorship Statute against the City, Defendant
Officers, and Officer Overstreet, on behalf of Dexter Ceasar (“Ceasar” or “Mr.
Ceasar”), 	following 	an 	encounter 	with 	officers 	of 	the 	Houston 	Police
Department. (See ECF No. 44). Moore is Ceasar’s mother, and Destiny is his
sister. 	(Id.). 	Plaintiffs assert claims for excessive force, wrongful death,
survival, municipal liability, and related theories. (Id.).
On 	August 	28, 	2024, 	this 	Court 	issued 	a 	Memorandum 	and
Recommendation, recommending several motions to dismiss be granted. (ECF
No. 41). On September 26, 2024, the Memorandum and Recommendation was
adopted. 	(ECF No. 43). 	However, this Court granted Moore leave to amend
her complaint. (ECF No. 41 at 33–34). On October 18, 2024, Plaintiffs filed an
Amended Complaint and added Destiny, Ceasar’s sister, as a plaintiff. 	(ECF
No. 44). 	The City and Officers respectively filed Motions to Dismiss. 	(ECF
Nos. 45–46).
On 	May 	30, 	2025, 	this 	Court 	issued 	a 	Memorandum 	and
Recommendation, recommending the City’s Motion to Dismiss be granted and
the Officers’ Motion to Dismiss be granted in part and denied in part. 	(ECF
No. 49). As to the City’s Motion to Dismiss, the Court recommended granting
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the motion as to Plaintiffs’ claims against the City for municipal liability and
wrongful death under § 1983. (Id. at 8–23, 48–49). As to the Officers’ Motion
to Dismiss, the Court recommended (1) granting the motion as to Plaintiffs’
Fourth 	Amendment 	claim 	against 	Vargas 	and 	Seay 	but 	denying 	as 	to
Overstreet; (2) granting as to Plaintiffs’ Fourteenth Amendment violation
claim; (3) denying as to Plaintiffs’ wrongful death claim under § 1983 against
Overstreet but granting as to the remaining Officers; and (4) granting as to
Plaintiff Destiny’s negligent infliction of emotional distress claim. (Id. 24–49).
The Court also recommended dismissing Plaintiffs’ § 1983 claim against the
Houston Police Department because it is a subdivision of the City and not a
separate entity with the capacity to be sued. 	(Id. at 7–8). 	In their Amended
Complaint, Plaintiffs assert a survival action claim and wrongful death claim
against the City and Officers pursuant to Texas Civil Practice and Remedies
Code §§ 71.004(a), 71.002–71.021. 	(ECF No. 44 at 24–25). 	However, neither
the City nor Officers moved to dismiss these state law claims (see ECF Nos.
45–46); therefore, the Court did not recommend dismissal of these claims (ECF
No. 49 at 23, 45–46).
On September 15, 2025, the Memorandum and Recommendation was
adopted, thereby leaving the state law claims against the City and Officers, as
well as the Fourth Amendment and wrongful death claims under § 1983
against Overstreet. (ECF No. 52).
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On October 24, 2025, the City and Defendant Officers (collectively,
“Moving 	Defendants,” 	excluding 	Overstreet) 	filed 	the 	instant 	Motion 	for
Judgment on the Pleadings, seeking dismissal of the state law claims against
them. 	(ECF 	No. 	58). 	As 	of 	the 	date 	of 	this 	Memorandum 	and
Recommendation, Plaintiff did not file a response.2
II. 	Legal Standard
“After the pleadings are closed—but early enough not to delay trial—a
party may move for judgment on the pleadings.” 	FED. R. C IV. P. 12(c). 	“A
motion for judgment on the pleadings under Rule 12(c) is subject to the same
standard as a motion to dismiss under Rule 12(b)(6).” 	Doe v. MySpace, Inc.,
528 F.3d 413, 418 (5th Cir. 2008).
Rule 12(b)(6) allows defendants to move to dismiss a complaint for
“failure to state a claim upon which relief can be granted.” 	F ED. R. C IV. 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
2 Pursuant to Local Rule 7.4, failure to respond is taken as a representation of no
opposition. S.D. T EX . LOCAL R. 7.4. Regardless of Plaintiff’s failure to respond to the motion
to dismiss, the Court will consider the merits of Defendants’ motion before the Court. 	See
Gonzalez v. Mongo, No. 24-cv-5145, 2025 WL 2174763, at *2 (S.D. Tex. July 31, 2025); Chilton
v. Tex. S. Univ., No. 4:24-cv-1646, 2024 WL 4282092, at *1 (S.D. Tex. Sep. 24, 2024) (“[W]here
a party does not respond to a motion to dismiss, such failure does not permit the Court to
enter a ‘default’ dismissal.”).
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plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.’” 	York v.
Welch, No. 20-cv-40580, 2024 WL 775179, at *2 (5th Cir. Feb. 26, 2024)
(quoting Iqbal, 556 U.S. at 678). 	“‘Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do not suffice.’” Id.
(quoting Iqbal, 556 U.S. at 678). In assessing the sufficiency of the complaint,
review is limited “to the complaint, any documents attached to the complaint,
and any documents attached to the motion to dismiss that are central to the
claim and referenced by the complaint.” 	Lone Star Fund V (U.S.), L.P. v.
Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010); see Edmiston v. Borrego,
75 F.4th 551, 557–58 (5th Cir. 2023) (citing Collins v. Morgan Stanley Dean
Witter, 224 F.3d 496, 498 (5th Cir. 2000) (citing F ED. R. C IV. P. 12(b)(6))).
III. 	Discussion
Moving Defendants seek judgment on the pleadings as to Plaintiffs’
remaining state law claims for wrongful death and survival under Texas law.
(ECF No. 58). They argue the claims are derivative and fail in the absence of
an underlying viable claim against them, and the claims are independently
barred by the Texas Tort Claims Act (“TTCA”). (Id. at 3–5).
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A. Texas Wrongful Death and Survival Claims3
First, as to wrongful death, “[a]n action for actual damages arising from
an injury that causes an individual’s death may be brought if liability exists
under” section 71.002 of the Texas Civil Practice and Remedies Code. 	“A
person is liable for damages arising from an injury that causes an individual’s
death if the injury was caused by the person’s or his agent’s or servant’s
wrongful act, neglect, carelessness, unskillfulness, or default.” T EX. C IV. P RAC .
& R EM. CODE § 71.002(b). The relevant subchapter for wrongful death “applies
only if the individual injured would have been entitled to bring an action for
the injury if the individual had lived or had been born alive.” 	Id. at § 71.003.
As to standing, the statute provides:
(a) An action to recover damages . . . is for the exclusive benefit of
the surviving spouse, children, and parents of the deceased.
(b) The surviving spouse, children, and parents of the deceased
may bring the action or one or more of those individuals may bring
the action for the benefit of all.
(c) If none of the individuals entitled to bring an action have begun
the action within three calendar months after the death of the
injured individual, his executor or administrator shall bring and
prosecute 	the 	action 	unless 	requested 	not 	to 	by 	all 	those
individuals.
Id. at § 71.004.
3 Wrongful Death is covered by T EX . CIV. PRAC. & REM . CODE §§ 71.001–71.012.
Survival actions are covered by TEX . CIV. PRAC. & REM . CODE §§ 71.021–71.022.
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Second, as to survival actions, “[a] cause of action for personal injury to
the health, reputation, or person of an injured person does not abate because
of the death of the injured person or because of the death of a person liable for
the injury.” 	Id. at § 71.021(a). 	“A personal injury action survives to and in
favor of the heirs, legal representatives, and estate of the injured person. The
action 	survives 	against 	the 	liable 	person 	and 	the 	person’s 	legal
representatives.” 	Id. 	at 	§ 	71.021(b). 	“The 	suit 	may 	be 	instituted 	and
prosecuted as if the liable person were alive.” Id. at § 71.021(c). The survival
statute allows a plaintiff to bring suit as a representative of the decedent’s
estate and is therefore “entitled to recover, on [the decedent’s] behalf, those
damages which [the decedent] sustained as a result of Defendant’s alleged
wrongful conduct.” Naab v. United States, No. 3:98-cv-0146, 2002 WL 1268032,
at *3 (N.D. Tex. May 31, 2002).
Courts have adjudicated the justiciability and derivative nature of such
claims depending on varying circumstances. 	Indeed, in addressing wrongful-
death and survival claims under Texas law, courts emphasize their derivative
nature and dependence on a viable underlying cause of action. 	In Naab v.
United States, the court held that although the survival statute allows a
claimant to sue as a representative of the decedent’s estate, the claims failed
where the record did not establish that the defendant’s conduct caused the
decedent’s death. 	2002 WL 1268032, at *4. 	Similarly, the court noted that
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while the wrongful death statute provides “a separate cause of action” “for
damages arising from an injury that causes an individual’s death,” the court
concluded the statute did not provide an “independent cause of action” under
which they could proceed because they could not establish the defendant’s
medical-malpractice liability for the decedent’s underlying injury. 	Id. 	The
court further explained that “survival causes of action are derivative of the
decedent’s right to recover in his own capacity had the decedent lived” and
therefore fail where the decedent could not have maintained a viable claim. Id.
at *4–7 (concluding plaintiffs failed to establish the defendant’s medical-
malpractice liability to the decedent in order to support a derivative survival
action).
The 	Fifth 	Circuit 	reaffirmed 	this 	distinction 	in 	Pluet 	v. 	Frasier,
explaining that the Texas wrongful death statute “provides a cause of action
for the benefit of surviving children and parents of the deceased” whereas the
survival statute provides that “a personal injury action survives in favor of the
heirs, legal representatives, and estate of the injured person.” 	355 F.3d 381,
384 (5th Cir. 2004) (citation modified). 	To further clarify, the Fifth Circuit
explained the survival statute differed from the wrongful death statute “in that
the [survival statute] preserves a claim for the estate rather than creating a
new cause of action for those surviving the decedent.” 	Id. at 384–86 (holding
a conservator in a civil rights action had no standing to sue under the Texas
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wrongful death or survival statute in part because she failed to demonstrate
she had adequate authority on behalf of the estate and did not include any of
the deceased’s heirs at the time of filing the complaint); see also Rangel v.
Wellpath, LLC, No. 5:23-cv-128, 2024 WL 4773311, at *5–14 (N.D. Tex. Nov.
13, 2024) (denying a motion to dismiss in a case raising § 1983, wrongful-death,
and survival-action claims and staying the action to give the plaintiff time to
cure the defect in lacking capacity to sue as the estate’s representative).
In Jones v. Wright, 667 S.W.3d 444 (Tex. App.—Beaumont 2023, no pet.),
the Court of Appeals of Texas assessed the derivative nature of survival and
wrongful death claims in a negligence case; albeit without citing the Texas
code. The court stated:
Survival and wrongful death causes of action are wholly derivative
of the decedent’s causes of action. For survival and wrongful death
causes of action to be viable, the decedent must have had viable
causes of action at death. In other words, the [plaintiffs], as the
decedent’s beneficiaries, could pursue their claims only if [the
decedent] would have been entitled to pursue a claim for his injury
if he had lived.
Id. at 449. 	Applying that principle, the court held the claims premised on
negligence failed because the defendants did not owe a duty to the plaintiffs,
and thus no underlying claim existed—i.e., the decedent would not have had a
viable 	cause 	of 	action 	at 	death. 	Id. 	at 	455 	(concluding 	the 	defendants
“conclusively negated the duty element of the [decedent’s beneficiaries’] claims,
and the trial court properly granted summary judgment”).
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Similarly, in Rangel v. Wellpath, LLC, a civil rights case brought by a
decedent’s mother, the court explained “Sections 1983 and 1988 incorporate
state wrongful-death and survival statutes to provide remedies to certain
surviving individuals for damages suffered by the surviving individuals and
the decedent as a result of civil rights violations, ” and therefore, “construed
the claims as theories for damages under Section 1983 and not independent
causes of action.” 	2024 WL 4773311, at *18–19. 	Put differently, the court
emphasized that wrongful-death and survival claims are best understood as
theories of damages tied to an underlying violation, rather than independent
causes of action. 	Id. (noting “both parties agree that the plaintiff is asserting
wrongful-death and survival-action theories to recover damages resulting from
an alleged civil rights violation and not independent causes of action”); see also
id. at *19 (“[B]ecause the plaintiff does not assert stand-alone wrongful-death
or survival claims and, instead, [also] asserts derivative theories of recovery
for the decedent’s timely filed ADA claim, the Court declines to dismiss these
theories of recovery as time-barred.”). 	There, the court dismissed derivative
claims tied to deficient § 1983 allegations but allowed those tied to a surviving
ADA claim to proceed, reinforcing that such claims depend entirely on the
viability of the underlying cause of action. 	Id. (dismissing all Section 1983
claims 	against 	a 	county 	and 	any 	associated 	request 	for 	damages 	under
wrongful-death 	or survival-action 	theories for failure 	to 	state 	claim, but
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denying the county’s motion to dismiss regarding the plaintiff’s derivative
claims for wrongful-death and survival-action damages under her ADA claim
due to denial of medical housing to the decedent).
In a more recent case, and with similar legal issues to the present case,
the Court in Espinoza v. Ramos addressed the viability of wrongful-death and
survival claims arising from a fatal police shooting. 	There, the decedent’s
mother brought § 1983 excessive-force claims and related state law claims,
including a wrongful death and a survival claim, based on an officer’s use of
deadly force during a rapidly evolving encounter. 	Espinoza v. Ramos, No. 24-
cv-68, 	2026 	WL 	471816, 	at 	*3 	(W.D. 	Tex. 	Jan. 	5, 	2026), 	report 	and
recommendation adopted, No. 24-cv-0068, 2026 WL 466763 (W.D. Tex. Feb. 18,
2026). After concluding that the officer’s use of force was objectively reasonable
under 	the 	Fourth 	Amendment—and 	thus 	no 	constitutional 	violation
occurred—the court recommended dismissal of all § 1983 claims. 	Id. at *4–6.
The court then turned to the plaintiff’s state law claims and emphasized that
independent survival claims are not available, the state law tort claims were
foreclosed by statute, and the wrongful-death claims were “wholly derivative
of the other claims in [the] case.” 	Id. at *6–7 & n.3, n.5. 	Because the
underlying § 1983 claims and related tort claims failed, the court concluded
that the wrongful-death claims necessarily failed as well. 	Id. at *7 (citing
Pluet, 355 F.3d at 384). 	Thus, the court granted summary judgment on the
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wrongful-death claims on the basis that no viable underlying cause of action
existed to support them. Id.
Consistent with the foregoing authorities, the Court turns to the viability
of Plaintiffs’ wrongful-death and survival claims in this case. 	Although the
Texas wrongful-death statute creates a cause of action for certain beneficiaries,
and the survival statute preserves a decedent’s personal-injury claims for the
estate, both are, in substance, derivative of the decedent’s underlying right to
recover. 	See Pluet, 355 F.3d at 384–86; Jones, 667 S.W.3d at 449; Espinoza,
2026 WL 471816, at *7. 	As an initial matter, Plaintiffs purport to assert a
standalone “survival action” under § 71.021. 	(See ECF No. 44 ¶¶ 135–138).
However, that statute does not create an independent cause of action; rather,
it merely “preserves a claim for the estate,” such that a decedent’s personal-
injury claim survives their death and may be prosecuted on the decedent’s
behalf. 	Espinoza, 2026 WL 471816, at *n.3 (citing Pluet, 355 F.3d at 384).
Accordingly, the survival claim depends on the viability of the decedent’s
underlying claims.
The same is true of Plaintiffs’ wrongful-death claim. 	While the statute
provides a cause of action for certain beneficiaries, that claim derives from the
cause of action that the decedent could have asserted for personal injuries had
he lived. 	See T EX. C IV. P RAC. & R EM. C ODE § 71.003 (applying provision for
wrongful death “only if the individual injured would have been entitled to bring
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an action for the injury if the individual had lived”). Thus, any defense to the
decedent’s claims, including failure to state a claim, applies equally to the
wrongful-death beneficiaries.4
Here, Plaintiffs allege that Defendant Officers’ conduct violated Mr.
Ceasar’s constitutional rights and caused his death. (ECF No. 44 ¶¶ 131–138).
However, as set forth above, the Court has already recommended dismissal of
all § 1983 claims against the Moving Defendants, and that recommendation
was adopted. (ECF Nos. 49, 52). Therefore, the only remaining federal claims
in this action are Plaintiffs’ Fourth Amendment and wrongful death claims
under § 1983 against Defendant Overstreet (see ECF No. 52), and there is no
constitutional or substantive claim against the City or the other Defendant
Officers. 	As such, no viable underlying claim remains as to the Moving
Defendants to support Plaintiffs’ wrongful death or survival claims against
them. 	Where 	the 	underlying 	claims 	fail, 	courts 	consistently 	hold 	that
4 It is not entirely clear if Moore has standing to sue under T EX . CIV. PRAC. & REM .
CODE § 71.004, as she has not pled whether she has been duly appointed as executor or
administrator. 	See Est. of King v. Texas Dep’t of Crim. Just., No. 22-cv-858, 2023 WL
6370646, at *2 (S.D. Tex. July 13, 2023) (“[T]he lawsuit was not commenced until . . . two
years after the Decedent[’]s death. Therefore, the executor or administrator of the decedent’s
estate was required to bring this action, unless requested not to by any individuals with
standing to bring this suit. The Plaintiffs failed to plead that any such request was made or
that Plaintiffs’ has[sic] been duly appointed as executor or administrator. 	Additionally,
Plaintiffs did not respond to the motion for judgment. 	Failure to respond is taken as a
representation of no opposition. 	Accordingly, the Court grants [defendant’s] motion as it
pertains to the Texas wrongful death statute.” (citing § 71.004(b) and S.D. T EX . LOCAL R.
7.4)) (citation modified). The court assumes, without deciding, that Moore has standing.
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wrongful-death and survival claims premised on the same alleged conduct are
not independently viable. 	See Naab, 2002 WL 1268032, at *4–7; Jones, 667
S.W.3d at 449; Espinoza, 2026 WL 471816, at *7 (dismissing wrongful-death
claims where underlying § 1983 and related claims failed). Indeed, courts have
emphasized that a purported “survival claim” is not a freestanding cause of
action at all, but merely a procedural mechanism through which an estate may
pursue the decedent’s claims, if any such claims are viable. See, e.g., Espinoza,
2026 WL 471816, at *2 n.3.
Moreover, to the extent Plaintiffs attempt to assert these claims as
independent state law causes of action, the Amended Complaint fails to
plausibly 	allege 	an 	alternative 	basis 	for 	liability. 	The 	allegations 	that
Defendants “wrongfully caused the death” and that Mr. Ceasar suffered pre-
death 	injuries 	are 	conclusory 	and 	depend 	entirely 	on 	the 	same 	conduct
underlying the dismissed federal claims.5 (ECF No. 44 ¶¶ 132–137).
In sum, because Plaintiffs have failed to allege a plausible underlying
cause of action against the Moving Defendants, their wrongful-death and
survival claims fail as a matter of law.
5 Notably, Plaintiffs have neither filed a response to the instant Motion for Judgment
on the Pleadings nor offered any additional arguments in support of the state law claims.
Plaintiffs have therefore failed to address Moving Defendants’ arguments that these claims
are derivative or otherwise deficient and have not articulated any independent theory of
liability under Texas law.
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B. The Texas Tort Claims Act
Even if Plaintiffs’ state-law claims were not subject to dismissal as
derivative, they are independently barred by the TTCA.
1. Governmental Immunity Bars Claims Against the City
Under the TTCA, governmental units have immunity from suit unless
such immunity has been expressly waived. 	See TEX. C IV. P RAC. & REM. C ODE
§ 101.021. The TTCA provides:
A governmental unit in the state is liable for:
(1) 	property 	damage, 	personal 	injury, 	and 	death 	proximately
caused by the wrongful act or omission or the negligence of an
employee acting within his scope of employment if:
(A) the [injury] . . . arises from the operation or use of a
motor-driven vehicle or motor-driven equipment; and
(B) the employee would be personally liable to the claimant
according to Texas law; and
(2) personal injury and death so caused by a condition or use of
tangible personal or real property if the governmental unit would,
were it a private person, be liable to the claimant according to
Texas law.
Id. 	In other words, the TTCA provides a limited waiver of a governmental
unit’s immunity for claims arising from an employee’s use of publicly owned
automobiles, premises defects, or injuries arising out of conditions or use of
property. Id. Importantly, the TTCA expressly excludes claims “arising out of
assault, battery, false imprisonment, or any other intentional tort.” 	Id. at §
101.057(2) (emphasis added).
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Here, 	“[t]he 	City 	of 	Houston 	is 	a 	governmental 	unit 	to 	which
governmental immunity applies.” McIntosh v. Smith, 690 F. Supp. 2d 515, 537
(S.D. Tex. 2010) (analyzing City of Houston’s governmental immunity under
TTCA in action brought by administrator of estate of suspect who was fatally
shot by city police officer, alleging that city was liable for suspect’s personal
injury and death). 	Plaintiffs’ wrongful death and survival action claims stem
from alleged intentional excessive force by the Officers employed by the City,
which constitutes an intentional tort outside the scope of the TTCA waiver.
See Espinoza, 2026 WL 471816, at *7 n.6 (noting that § 101.057(2) of the TTCA
does not waive governmental immunity from claims “arising out of assault,
battery, . . . . or any other intentional tort,” where the plaintiff asserted assault
and battery claims against the officer who shot the decedent); City of Watauga
v. Gordon, 434 S.W.3d 586, 594 (Tex. 2014) (“The [TTCA] . . . does not waive
immunity for claims arising out of intentional torts, such as battery. Because
[Plaintiff] alleges that the police used excessive force in his arrest, a claim that
arises 	out 	of 	a 	battery, 	his 	pleadings 	do 	not 	state 	a 	claim 	for 	which
governmental immunity has been waived under the [TTCA].” (citing T EX. C IV .
P RAC. 	& 	R EM. 	CODE 	§ 	101.057(2))). 	Accordingly, 	the 	City 	retains 	its
governmental 	immunity, 	and 	the 	state 	law 	claims 	against 	it 	must 	be
dismissed.
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2. Election of Remedies Bars Claims Against the Defendant
Officers
The TTCA’s election-of-remedies provision further mandates dismissal
of the claims against the individual officers. See T EX. C IV. P RAC. & REM. C ODE
§ 101.106. 	This provision limits a plaintiff’s ability to pursue claims against
individual employees 	if 	a 	governmental 	unit 	is 	also 	sued. 	Id. 	Section
101.106(e) specifically provides that “[if] a suit is filed under this chapter
against both a governmental unit and any of its employees, the employees shall
immediately be dismissed on the filing of a motion by the governmental unit.”
See Univ. of Tex. Health Sci. Ctr. at Houston v. Rios, 542 S.W.3d 530, 537 (Tex.
2017) 	(noting 	“when 	a 	plaintiff 	sues 	both 	a 	governmental 	unit 	and 	its
employees in tort, as Rios did here, section 101.106(e) requires that ‘the
employees shall immediately be dismissed on the filing of a motion by the
governmental unit.’”).
Here, Plaintiffs assert identical wrongful death and survival claims
against both the City and the Defendant Officers, arising from the same
alleged conduct. By naming both the City and its employees in the same action,
Plaintiffs 	triggered 	§ 	101.106(e)’s 	mandatory 	dismissal 	provision. 	See
Espinoza, 2026 WL 471816, at *7 (explaining tort claim against officer must
be dismissed under section 101.106 “even if the governmental unit ‘would be
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immune from suit.’”). 	Therefore, upon the City’s motion, the claims against
the individual officers must be dismissed.
In sum, Plaintiffs’ state law wrongful death and survival claims against
Moving Defendants fail for multiple independent reasons: they are derivative
of underlying claims that have already been dismissed; the claims against the
City are barred by governmental immunity under the TTCA; and the claims
against the Defendant Officers are barred by the TTCA’s election-of-remedies
provision.
IV. 	Conclusion
Based on the foregoing, the Court RECOMMENDS the Motion for
Judgment on the Pleadings (ECF No. 58) be GRANTED. 	The Court further
RECOMMENDS:
• 	Plaintiffs’ Texas wrongful death and survival claims against the
City of Houston should be DISMISSED WITH PREJUDICE.
• 	Plaintiffs’ 	Texas 	wrongful 	death 	and 	survival 	claims 	against
Defendant Officers Vargas, Lopez, Hudeck, McCreary, Holland,
Hollis, Villa, Dexter, and Seay should be DISMISSED WITH
PREJUDICE.
As 	such, 	the 	only 	remaining 	claims 	in 	this 	case 	are 	the 	Fourth
Amendment excessive force and wrongful death claims under § 1983 against
Defendant Officer Overstreet.
The Clerk shall send copies of this Memorandum and Recommendation
to the respective parties who have fourteen days from the receipt thereof to file
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written objections thereto pursuant to Federal Rule of Civil Procedure 72(b)
and General Order 2002-13. Failure to file written objections within the time
period mentioned shall bar an aggrieved party from attacking the factual
findings and legal conclusions on appeal.
SIGNED in Houston, Texas on April 23, 2026.
______________________________
Richard W. Bennett
United States Magistrate Judge
Case 4:23-cv-03048 Document 71 Filed 04/23/26 in TXSD Page 19 of 19