McCoy v. Harris County et al

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
RICO R. MCCOY,
Plaintiff,
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v. 	CIVIL ACTION NO. 4:25-cv-135
HARRIS COUNTY, TEXAS, et. al,
Defendants.
MEMORANDUM AND RECOMMENDATION
Pending before the Court1 is Defendant Christopher Bolin’s (“Bolin”)
Motion to Dismiss (ECF No. 35), Defendant Harris County, Texas (“Harris
County”) and Sheriff Ed Gonzalez’s (“Gonzalez”) Motion to Dismiss (ECF No.
38), and Defendant Shane Wyrick’s (“Wyrick”) Motion to Dismiss (ECF No. 39).
Based on a review of the motions, arguments, and relevant law, the Court
RECOMMENDS Bolin’s Motion to Dismiss (ECF No. 35) be GRANTED in
part and DENIED in part, Harris County and Gonzalez’s Motion to Dismiss
(ECF No. 38) be GRANTED in part and DENIED in part, and Wyrick’s
Motion to Dismiss (ECF No. 39) be GRANTED in part and DENIED in part.2
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. 8).
2 Plaintiff’s claims against Defendants Lone Star Auto, Sean Kamil, and Cody
Williams were previously dismissed without prejudice. (ECF No. 45 at 1).
United States District Court
Southern District of Texas
ENTERED
January 30, 2026
Nathan Ochsner, Clerk
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I. 	Background3
This is a civil rights lawsuit arising out of a police traffic stop. According
to Plaintiff’s First Amended Complaint (“FAC”), on January 11, 2023, at
approximately 	1:49 	p.m., 	Plaintiff 	was 	traveling 	north-bound 	on 	Barker-
Cypress Road. 	(ECF No. 32 at ¶ 12). 	At the intersection of Barker-Cypress
Road and Keith-Harrow Road, Plaintiff states he positioned his vehicle in the
left turn lane of Barker-Cypress to eventually turn onto Keith-Harrow. (Id. at
¶ 13). 	At the same time, Plaintiff claims Wyrick was in a police cruiser
approximately three vehicles ahead of Plaintiff in a non-turning lane at the
Barker-Cypress/Keith-Harrow intersection. (Id. at ¶ 14).
Plaintiff, “feeling nervous and frightened due to a prior encounter with
a Harris County Deputy,” began recording Wyrick’s cruiser on Plaintiff’s cell
phone. 	(Id. at ¶ 15). 	After the traffic light turned green, Plaintiff states he
made a left turn onto Keith-Harrow. 	(Id. at ¶ 16). 	Instead of proceeding
straight, Wyrick switched lanes and also made a left turn onto Keith-Harrow.
(Id. at ¶ 17).
Plaintiff was driving in the right lane of Keith-Harrow and states he
“maintained a speed slightly below the posted speed limit to ensure compliance
3 “When considering a motion to dismiss, the court accepts as true the well-pled factual
allegations in the complaint, and construes them in the light most favorable to the plaintiff.”
Taylor v. Books A Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002).
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with traffic laws and avoid any potential issues.” (Id. at ¶ 18). Plaintiff claims
Wyrick was driving in the left lane of Keith-Harrow and positioned his cruiser
alongside Plaintiff’s vehicle. (Id. at ¶ 19). Plaintiff noticed that when Plaintiff
reduced his vehicle’s speed, Wyrick also slowed down his cruiser. (Id. at ¶ 20).
Similarly, if Plaintiff increased his vehicle’s speed, Wyrick would speed up to
match Plaintiff’s pace. (Id.). Based on this behavior, Plaintiff believed he was
being followed, racially profiled, and/or targeted by Wyrick. (Id.). At this point,
Wyrick had not turned on his cruiser’s flashing lights. (Id. at ¶ 21).
Plaintiff claims he felt nervous and scared and looked for a safe location
to pull over. 	(Id. at ¶ 22). 	Plaintiff ultimately turned into the parking lot of
the Cy-Fair Fire Department – Station 5. 	(Id.). 	Plaintiff states he activated
his turn signal to make a lawful right turn and entered the fire station’s
parking lot, where he brought his vehicle to a complete stop. (Id. at ¶ 23). As
Plaintiff turned, Wyrick activated his cruiser’s flashing lights, moved into the
right lane, and followed Plaintiff into the parking lot. (Id. at ¶ 24).
Fearing for his safety, Plaintiff called 911 to create a record of the
incident 	and 	requested 	the 	dispatcher 	remain 	on 	the 	line 	until 	Wyrick
departed. 	(Id. at ¶ 26). 	However, the dispatcher disconnected the call when
Plaintiff could not identify the street names in the area. 	(Id.). 	Plaintiff then
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called his wife so she could listen to the interaction between Plaintiff and
Wyrick. (Id. at ¶ 27).
Plaintiff observed another deputy, Bolin, arrive at the scene. 	(Id. at ¶
28). 	During his encounter with police, Plaintiff repeatedly requested the
presence of a supervisor; however, Plaintiff states his requests were not
acknowledged or fulfilled at that time. 	(Id. at ¶ 29). 	At one point, Plaintiff
states Wyrick demanded Plaintiff exit his vehicle and threatened to break the
driver’s side window to forcibly remove Plaintiff. (Id. at ¶ 30).
Plaintiff claims Wyrick used a hand gesture to signal an individual to
approach Plaintiff’s vehicle. (Id. at ¶ 31). Shortly thereafter, Bolin approached
Plaintiff’s vehicle, ordered Plaintiff to exit the vehicle, and threatened to break
the window if he did not comply. 	(Id. at ¶ 32). 	Plaintiff states Bolin then
wielded what appeared to be either a flashlight or a short baton. (Id. at ¶ 33).
Bolin 	struck 	the 	vehicle’s 	window 	with 	minimal 	force 	and 	attempted 	to
dislodge the window by pulling on it. (Id.).
Through a small opening in the driver’s side window, Plaintiff provided
Wyrick and Bolin with his driver’s license and proof of insurance. (Id. at ¶ 34).
Despite this, Plaintiff claims Bolin continued to threaten to break the vehicle’s
window while demanding that Plaintiff exit the vehicle. (Id.). Upon realizing
that Plaintiff was recording the interaction, Plaintiff alleges Wyrick and Bolin
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stated they would also cite him for allegedly operating an electronic device
while driving a motor vehicle. (Id. at ¶ 35).
Plaintiff ultimately agreed to exit his vehicle. (Id. at ¶ 36). As Plaintiff
opened the car door, but before he could unbuckle his seatbelt, he claims his
phone was knocked out of his hand and his head was forcibly pulled downward.
(Id. at ¶ 37). 	At this moment, Plaintiff alleges both Wyrick and Bolin began
striking him with closed fists, targeting and landing punches directly on
Plaintiff’s face and head. (Id. at ¶ 38). Combined, Plaintiff claims Wyrick and
Bolin delivered at least seven closed-fist punches to Plaintiff’s face and head,
with Wyrick responsible for at least two punches and Bolin responsible for at
least five punches. (Id. at ¶ 39).
While Wyrick and Bolin struck Plaintiff, he was still restrained by his
vehicle’s seatbelt. (Id. at ¶ 40). Once Plaintiff’s seatbelt was finally dislodged,
he was forcibly removed from his vehicle and thrown face-down onto the
pavement. 	(Id. at ¶ 41). 	As a result of this incident, Plaintiff alleges he
sustained multiple injuries, including broken teeth, a detached retina, and a
concussion. (Id. at ¶ 49).
II. 	Legal Standard
Federal Rule of Civil Procedure (“Rule”) 12(b)(6) provides for dismissal
of an action for “failure to state a claim upon which relief can be granted.” F ED.
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R. C IV . P. 12(b)(6). 	When considering a motion to dismiss, a court should
construe the allegations in the complaint favorably to the pleader and accept
as true all well-pleaded facts. Sullivan v. Leor Energy, LLC, 600 F.3d 542, 546
(5th Cir. 2010). 	In the Fifth Circuit, motions to dismiss under Rule 12(b)(6)
are viewed with disfavor and rarely granted. 	Lormand v. U.S. Unwired, Inc.,
565 F.3d 228, 232 (5th Cir. 2009). To survive dismissal, a complaint must plead
“enough facts to state a claim to relief that is plausible on its face.” 	Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007). 	“A claim has facial plausibility
when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
However, a court is not bound to accept legal conclusions couched as
factual allegations. Papasan v. Allain, 478 U.S. 265, 286 (1986). Although all
reasonable inferences will be resolved in favor of a plaintiff, a plaintiff must
plead “specific facts, not mere conclusory allegations.” 	Tuchman v. DSC
Commc’ns Corp., 14 F.3d 1061, 1067 (5th Cir. 1994); see also Firefighters’ Ret.
Sys. v. Grant Thornton, L.L.P., 894 F.3d 665, 669 (5th Cir. 2018) (“Although a
complaint does not need detailed factual allegations, the allegations must be
enough to raise a right to relief above the speculative level . . . .”) (internal
quotations omitted)). “‘Threadbare recitals of the elements of a cause of action,
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supported by mere conclusory statements, do not suffice.’” 	Firefighters’ Ret.
Sys., 894 F.3d at 669 (quoting Iqbal, 556 U.S. at 678). 	“The court is not
required to conjure up unpled allegations or construe elaborately arcane
scripts to save a complaint.” 	Santerre v. Agip Petroleum Co., 45 F. Supp. 2d
558, 568 (S.D. Tex. 1999) (internal quotations omitted).
To determine whether to grant a Rule 12(b)(6) motion, a court may only
look to allegations in a complaint to determine their sufficiency. 	Id.; Atwater
Partners of Tex. LLC v. AT & T, Inc., No. 2:10-cv-175, 2011 WL 1004880, at *1
(E.D. Tex. Mar. 18, 2011). 	“A court may, however, also consider matters
outside the four corners of a complaint if they are incorporated by reference,
items 	subject 	to 	judicial 	notice, 	matters 	of 	public 	record, 	orders, 	items
appearing in the record of a case, and exhibits attached to a complaint whose
authenticity is unquestioned.” Joubert on Behalf of Joubert v. City of Hou., No.
4:22-cv-3750, 2024 WL 1560015, at *2 (S.D. Tex. Apr. 10, 2024).
III. 	Discussion
Bolin, Wyrick, Harris County, and Gonzalez filed Motions to Dismiss.
(ECF Nos. 35, 38–39). Because Bolin and Wyrick (the “Officers”) largely make
identical arguments in their respective Motions to Dismiss, the Court will
analyze their motions together before turning to Harris County and Gonzalez’s
Motion to Dismiss.
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a. The Officers’ Motions to Dismiss (ECF Nos. 35, 39)4
The 	Officers 	move 	to 	dismiss 	Plaintiff’s 	FAC 	on 	various 	grounds,
including 	insufficient 	service 	of 	process, 	statute 	of 	limitations, 	qualified
immunity, and failure to state a claim. The Court will address each argument
in turn.
i. 	Insufficient Process and Service of Process
The Officers move to dismiss Plaintiff’s FAC under Rule 12(b)(4) and
12(b)(5), arguing Plaintiff’s process and service of process were insufficient.
(ECF No. 35 at 12–13; ECF No. 39 at 11–12). Specifically, the Officers contend
they were served an incomplete copy of the complaint because the complaint
references video exhibits 1 and 2 but the video exhibits were not included with
the service of the complaint. 	(ECF No. 35 at 12–13; ECF No. 39 at 11–12).
Plaintiff responds that the complaint expressly references video exhibits,
which were filed with the Clerk and “clearly annotated on the docket,” which
provided full notice to the Officers. (ECF No. 47 at 11; ECF No. 48 at 10).
Rule 4 requires a plaintiff to serve a copy of the complaint and a
summons upon the defendant. 	See FED. R. C IV . P. 4(c)(1). 	Rule 12 allows a
defendant to move for dismissal if this process is insufficient. See F ED. R. C IV .
4 Both of the Officers move to stay discovery as part of their motions. (See ECF No.
35 at 25; ECF No. 39 at 21). The Court denies these requests as moot. (See ECF No. 44).
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P.12(b)(4). 	“The primary purpose of the service requirements is to ensure a
defendant receives actual notice of the pendency of litigation against it.” Mable
v. Navasota Indep. Sch. Dist., No. 4:09-cv-123, 2010 WL 11453632, at *1 (S.D.
Tex. June 16, 2010), report and recommendation adopted, No. 09-cv-123, 2010
WL 11453633 (S.D. Tex. July 9, 2010) (citing Goetz v. Synthesys Techs., Inc.,
415 F.3d 481, 484 (5th Cir. 2005)). 	“[R]eviewing courts look to the totality of
the circumstances to determine whether the service was reasonably calculated
to give the defendant notice.” 	Goetz, 415 F.3d at 484 (internal quotations
omitted). 	A court may dismiss “with prejudice for failure to make service of
process . . . only in extreme situations where there is a clear record of delay or
contumacious conduct by the plaintiff.” 	Gaspard v. United States, 713 F.2d
1097, 1105 n.20 (5th Cir. 1983) (internal quotations omitted).
Here, the Officers do not contend they did not have actual notice of the
pendency of litigation or that they suffered prejudice by being served a
complaint without the video exhibits. 	Instead, Bolin simply states “[t]he rule
and common-sense dictate that the Plaintiff must serve a complete copy of the
complaint, not portions of the complaint.” (ECF No. 35 at 12). Wyrick argues
the same. (ECF No. 39 at 11). However, the Officers do not provide any legal
authority or support for dismissing a complaint where a defendant received
service of a complaint but failed to receive two exhibits referenced in the
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complaint. 	As noted by Bolin, he was served the exhibits on a USB drive
approximately one month after a process server “attempted to serve [him] on
February 7, 2025.” (ECF No. 35 at 12–13).
Accordingly, the Court finds dismissal pursuant to Rule 12(b)(4) is not
warranted because the Officers had actual notice of all claims and allegations
contained in Plaintiff’s FAC.5 	See Mable, 2010 WL 11453632, at *3 (“Thus,
there is no prejudice to Defendant’s rights in the case at hand because
Defendant had actual notice of all claims and allegations contained in the
currently effective complaint.”).
The Officers also refer to Rule 12(b)(5), which challenges the mode of
delivery or the lack of delivery of the summons and complaint. (ECF No. 35 at
12; ECF No. 39 at 11). The Officers argue Plaintiff’s attempt at proper service
constitutes a lack of due diligence and is insufficient as a matter of law. (ECF
No. 35 at 13; ECF No. 39 at 15–16). Because this argument appears to overlap
with the Officers’ argument regarding statute of limitations, the Court will
address the two arguments together.
5 The Fifth Circuit has held that dismissal after the statute of limitations has expired
is the equivalent of dismissal with prejudice, and the court will not generally uphold
dismissal with prejudice unless it finds one of three aggravating factors: “(1) delay caused by
the plaintiff himself and not his attorney; (2) actual prejudice to the defendant; or (3) delay
caused by intentional conduct.” Millan v. USAA Gen. Indem. Co., 546 F.3d 321, 326 (5th Cir.
2008) (internal quotations omitted). The Court notes that neither of the Officers contend that
any of these factors apply.
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ii. 	Statute of Limitations
The 	Officers 	argue 	Plaintiff’s 	claims 	are 	barred 	by 	the 	statute 	of
limitations. (ECF No. 35 at 14; ECF No. 39 at 12). The Officers claim that the
statute of limitations for Plaintiff’s claims expired on January 13, 2025.6 (ECF
No. 35 at 15; ECF No. 39 at 13). Here, Plaintiff filed suit on January 11, 2025,
within the limitations period. (ECF No. 1). However, Bolin argues Texas law
requires that Plaintiff “must file the suit within the limitations period AND
continuously exercise due diligence in obtaining service of process if service
occurs after limitations expires.” 	(ECF No. 35 at 15 (emphasis in original)).
Wyrick argues the same. 	(ECF No. 39 at 13). 	As such, because Plaintiff first
served Bolin with the original complaint on February 7, 2025, twenty-five days
after the limitations period expired, Bolin contends Plaintiff’s service of process
shows a lack of due diligence. 	(ECF No. 35 at 18). 	Wyrick also argues that,
because Plaintiff first attempted to serve Wyrick on February 8, 2025, twenty-
six days after the limitations period expired, and without serving Exhibits 1
and 2 of the original complaint, service of process on Wyrick was insufficient.
(ECF No. 39 at 15).
6 The Officers are correct. “If the last day of a limitations period under any statute of
limitations falls on a Saturday, Sunday, or holiday, the period for filing suit is extended to
include the next day that the county offices are open for business.” TEX . CIV. PRAC. & REM.
CODE § 16.072. 	The events of this case took place on January 11, 2023. 	However, since
January 11, 2025 fell on a Saturday, the statute of limitations for Plaintiff’s claims expired
on Monday, January 13, 2025.
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Plaintiff’s claims against the Officers arise under 42 U.S.C. § 1983, a
federal law that allows individuals to sue state and local government officials
alleged to have violated their civil rights. That statute does not contain its own
limitations period. 	Heilman v. City of Beaumont, 638 F. App’x 363, 366 (5th
Cir. 2016). Therefore, in § 1983 actions, federal courts apply the forum state’s
general statute of limitations for personal injury claims. Id. (citing Piotrowski
v. City of Hou., 237 F.3d 567, 576 (5th Cir. 2001)). Texas has a two-year statute
of limitations for personal injury claims. 	T EX . C IV . PRAC . & R EM. C ODE §
16.003(a); Heilman, 638 F. App’x at 366.
The event at issue in this case took place on January 11, 2023. (See ECF
No. 32 at ¶ 12). As noted by the Officers (ECF No. 35 at 15; ECF No. 39 at 15–
16) and acknowledged by Plaintiff (ECF No. 47 at 11), Plaintiff filed suit within
the limitations period. However, the parties dispute whether filing suit within
the limitations period tolls limitations.
Under Texas law, satisfying the statute of limitations ordinarily requires
both filing and service of process within the deadline. 	Ortega v. Young Again
Prods., Inc., 548 F. App’x 108, 113 (5th Cir. 2013) (citing Slagle v. Prickett, 345
S.W.3d 693, 697 (Tex. App.—El Paso 2011, no pet.)). If service is delayed, the
plaintiff must show due diligence in attempting to effectuate it. 	Id. (citing
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Slagle, 345 S.W.3d at 697). 	If they do not, the claims are barred and must be
dismissed. Id.
However, that service requirement applies only to state law claims—it
does not govern federal claims brought in federal court. 	See Vela v. City of
Austin, No. 1:15-cv-1015, 2016 WL 1583676, at *3 (W.D. Tex. Apr. 19, 2016)
(citing Gonzales v. Wyatt, 157 F.3d 1016, 1021 n.1 (5th Cir. 1998)). 	Section
1983 is a federal cause of action. Accordingly, while state law determines the
length of the limitations period, federal law controls what actions must be
taken for a lawsuit to be timely. See id.; see also Jackson v. Duke, 259 F.2d 3,
6 (5th Cir. 1958) (“While state law controls [federal claims] as to the time
within which an action must be begun, the manner in which it is commenced
and when it is deemed to have begun, being procedural and not substantive, is
covered by the Federal Rules of Civil Procedure.”). Under the Federal Rules of
Civil Procedure, a “civil action is commenced by filing a complaint with the
court.” F ED. R. C IV . P. 3. Thus, for federal claims, the filing date—not the date
of service—controls for limitations purpose. 	See Henderson v. United States,
517 U.S. 654, 657 n.2 (1996) (“In a suit on a right created by federal law, a
complaint suffices to satisfy the statute of limitations.”).
Bolin disagrees, stating “the Supreme Court [in Wallace v. Kato] held
that state law provides both the statute of limitations and the tolling rules in
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a § 1983 case.” (ECF No. 50 at 2 (emphasis in original)). Bolin, however, fails
to provide any authority that Kato stands for this proposition. In fact, case law
suggests the opposite. 	McWashington v. Rodgers, No. 4:24-cv-2153, 2025 WL
1124752, at *5 (S.D. Tex. Apr. 15, 2025) (“More specifically, the Fifth Circuit
has held that Texas’s ‘due diligence’ requirement (requiring that a plaintiff
‘must not only file suit but also use due diligence in procuring service on the
defendant in order to toll the statute of limitations’) does not apply to section
1983 actions in Texas federal court.” (quoting Gonzales, 157 F.3d at 1021 n.1));
Thompson ex rel. Neveah T. v. Martinez, 789 F. Supp. 3d 491, 513 (W.D. Tex.
2025) (“[W]hile state law determines the length of the limitations period,
federal law controls what actions must be taken for a lawsuit to be timely.”);
Lambert v. City of Onalaska, Tex., No. 9:23-cv-067, 2025 WL 2369403, at *6
(E.D. Tex. June 9, 2025), report and recommendation adopted, No. 9:23-cv-067,
2025 WL 2028086 (E.D. Tex. July 18, 2025) (reviewing case law and concluding
that “the Texas ‘due diligence’ rule does not apply to . . . § 1983 claims in this
court”); see also Jones v. Lamar Cnty., No. 4:21-cv-156, 2022 WL 17175071, at
*12 (E.D. Tex. Sept. 9, 2022), report and recommendation adopted, No. 4:21-cv-
156, 2022 WL 17170943 (E.D. Tex. Nov. 22, 2022) (“The Texas diligence
requirement applies to federal claims in limited circumstances, not present
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here, where the court’s jurisdiction is based on diversity or where an untimely
claim originally filed in state court is removed to federal court.”).
As such, because Plaintiff filed suit within the two-year period, his § 1983
claims should not be dismissed as time-barred. See Gonzales, 157 F.3d at 1021
n.1; see also Jackson, 259 F.2d at 6 (“In an action under the civil rights statute,
while state law controls as to the time within which an action must be begun,
the manner in which it is commenced and when it is deemed to have begun,
being procedural and not substantive, is covered by the Federal Rules of Civil
Procedure”).
iii. 	Official Capacity Claims
Bolin seeks dismissal of the official capacity claims against him, arguing
that the claims against him are duplicative of the claims against Harris
County. 	(ECF No. 35 at 19–20). 	Plaintiff responds that he brought claims
against Bolin in his official capacity as a vehicle to assert municipal liability
under Monell. (ECF No. 47 at 13).
The Fifth Circuit has held that “[a] claim against an officer in his official
capacity is treated as a claim against the municipality.” Jordan v. Brumfield,
687 F. App’x 408, 415 (5th Cir. 2017). 	“Because a claim against an officer in
his official capacity duplicates the claim against the municipality, a district
court 	faced 	with 	both 	claims 	may 	dismiss 	the 	official 	capacity 	claims.”
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Williams v. Zordan, No. 21-cv-1061, 2023 WL 6451111, at *10 (W.D. La. Sep.
29, 2023) (citing Castro Romero v. Becken, 256 F.3d 349, 355 (5th Cir. 2001)).
As such, the Court recommends the official capacity claims against Bolin be
dismissed 	with 	prejudice 	as 	duplicative 	of 	the 	municipal 	liability 	claims
against Harris County.
iv. 	Individual Capacity Claims
The Officers argue that, to the extent they are sued in their personal
capacity, they are entitled to qualified immunity.7 (ECF No. 35 at 20; ECF No.
39 at 16).
Under 42 U.S.C. § 1983, private citizens may sue public officials for
violations of their federal statutory or constitutional rights. 	See Monroe v.
Pape, 365 U.S. 167, 171–72 (1961). 	Section 1983, however, shields public
officials from civil liability under the doctrine of qualified immunity “so long as
their conduct ‘does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.’” 	Mullenix v. Luna,
577 U.S. 7, 11 (2015) (quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009)).
7 Plaintiff’s FAC explicitly states Bolin and Wyrick are sued in their official capacity.
(ECF No. 32 at ¶¶ 7–8). However, the FAC contains allegations that the Officers participated
in acts that allegedly violated Plaintiff’s constitutional rights, such that Plaintiff could
pursue individual capacity claims against them. Plaintiff also responds that the Officers are
sued in their individual and official capacities. (ECF No. 47 at 9–10; ECF No. 48 at 9).
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The qualified immunity defense has two prongs: (1) whether an official’s
conduct violated a statutory or constitutional right of the plaintiff; and (2)
whether the right was “clearly established” at the time of the violation. Saucier
v. Katz, 533 U.S. 194, 200–01 (2001). Thus, a defendant is “entitled to qualified
immunity at the motion-to-dismiss stage unless the plaintiffs have alleged
facts sufficient to plausibly show that the defendant’s conduct violated a
constitutional right and the constitutional right was clearly established at the
time of the alleged misconduct.” 	Harmon v. City of Arlington, Tex., 16 F.4th
1159, 1163 (5th Cir. 2021).
1. Excessive Force
Plaintiff asserts an excessive force claim under 42 U.S.C. § 1983 against
the Officers. (ECF No. 32 at ¶ 73). Both Officers contend qualified immunity
applies. (ECF No. 35 at 21–22; ECF No. 39 at 18–19).
a. Alleged Constitutional Violation for Excessive
Force
The Fourth Amendment confers the right to be free from unreasonable
searches and seizures. U.S. C ONST . AMEND. IV. A seizure is unreasonable if it
involves excessive force. 	Graham v. Connor, 490 U.S. 386, 394–95 (1989). To
state a claim for excessive force, Plaintiff must allege “(1) an injury, which (2)
resulted directly and only from the use of force that was clearly excessive to
the need; and the excessiveness of which was (3) objectively unreasonable.”
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Bazan ex rel. Bazan v. Hidalgo Cnty., 246 F.3d 481, 487 (5th Cir. 2001)
(internal quotations omitted). 	Because “inquiries regarding whether a use of
force was ‘clearly excessive’ or ‘clearly unreasonable . . . are often intertwined,’”
courts often consider those questions together. Hanks v. Rogers, 853 F.3d 738,
744 (5th Cir. 2017) (quoting Poole v. City of Shreveport, 691 F.3d 624, 628 (5th
Cir. 2012)). 	An injury is “generally legally cognizable when it results from a
degree of force that is constitutionally impermissible—that is, objectively
unreasonable under the circumstances.” Bush v. Strain, 513 F.3d 492, 501 (5th
Cir. 2008).
As to the first prong, Plaintiff alleges his injuries include “broken teeth,
detached retina, concussion, facial nerve damage, bruises and abrasions” as a
result of the alleged seizure. (ECF No. 32 at ¶ 74(iii)(a)). As to the second and
third prongs, Plaintiff alleges the Officers’ use of force was excessive to the
need and objectively unreasonable as Plaintiff was “pulled over” for allegedly
not making a proper right turn, a nonviolent crime, and proceeded to exit his
vehicle when he was then struck multiple times by the Officers. 	(Id. at ¶
74(iii)(b–c); see also ECF No. 47 at 15; ECF No. 48 at 15).
Courts determine the reasonableness of the use of force “from the
perspective of a reasonable officer on the scene, rather than with 20/20 vision
of hindsight.” Graham, 490 U.S. at 396. “The calculus of reasonableness must
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embody allowance for the fact that police officers are often forced to make split-
second judgments—in circumstances that are tense, uncertain, and rapidly
evolving—about 	the 	amount 	of 	force 	that 	is 	necessary 	in 	a 	particular
situation.” Id. at 396–97. This analysis “requires careful attention to the facts
and circumstances of each particular case, including 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. at 396; see also Joseph on behalf of Estate of Joseph
v. Bartlett, 981 F.3d 319, 342 (5th Cir. 2020) (holding that the use of force must
be proportionate “to the situation”); Deville v. Marcantel, 567 F.3d 156, 167
(5th Cir. 2009) (“Excessive force claims are necessarily fact intensive.”). 	The
totality of the circumstances must justify the particular use of force. 	See
Ramirez v. Knoulton, 542 F.3d 124, 128 (5th Cir. 2008). The ultimate inquiry
is whether the force used was reasonable “under the facts as a reasonable
officer would perceive them.” 	Griggs v. Brewer, 841 F.3d 308, 313 (5th Cir.
2016). In analyzing an officer’s use of force, the Court considers “only the facts
that were knowable” to the officer at the time. White v. Pauly, 580 U.S. 73, 77
(2017); see Brown v. Callahan, 623 F.3d 249, 253 (5th Cir. 2010).
Here, the Court finds Plaintiff’s facts, taken as true and viewed in the
light most favorable to Plaintiff, allow for a reasonable inference that the
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Officers’ use of force was objectively unreasonable. 	All three Graham factors
cut in Plaintiff’s favor. 	First, this case involves a traffic stop for allegedly
making an improper right turn. 	(See ECF No. 32 at 74(iii)(b)(1)). 	Thus, the
severity of the crime is low. See Hanks, 853 F.3d at 745 (reiterating that minor
traffic violations, such as driving below the speed limit or failing to provide
proof of insurance, make the need for force substantially lower). 	Second,
Plaintiff did comply with the Officers’ instructions to exit the vehicle. (See ECF
No. 32 at 74(iii)(b)(2)). Thus, Plaintiff did not pose a threat to the safety of the
Officers. See Ramos v. Erwin, 723 F. Supp. 3d 529, 543 (S.D. Tex. 2024), aff’d,
No. 24-20164, 2024 WL 5040984 (5th Cir. Dec. 9, 2024) (noting that complying
with an officer’s order illustrated an individual did not pose a threat to the
safety of the officers). 	Third, Plaintiff was not actively resisting or evading
arrest when Plaintiff opened his car door and the Officers began striking
Plaintiff’s face and head. See id. (noting that complying with an officer’s order
suggested an individual was not resisting or evading arrest); 	see also Hanks,
853 F.3d at 746 (determining the plaintiff’s initial refusals to follow a police
officer’s instructions amounted to, “at most, passive resistance”); Deville, 567
F.3d at 168 (recognizing the plaintiff’s refusal to get out of her car before her
husband arrived on the scene constituted passive resistance).
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As such, Plaintiff sufficiently states a Fourth Amendment violation
against the Officers for their alleged use of excessive force. 	See Williams v.
Bolin, 694 F. Supp. 3d 904, 910 (S.D. Tex. 2023) (finding facts gave rise to an
excessive force claim where officers handcuffed and struck a driver whose truck
was parked slightly over the line of a handicapped parking spot); Blakely v.
Andrade, 360 F. Supp. 3d 453, 480 (N.D. Tex. 2019) (finding facts gave rise to
an excessive force claim where an officer pulled a non-confrontational woman
out of a vehicle and “snatched” her phone out of her hand).
b. Clearly Established Law
The Officers also argue Plaintiff does not allege how the Officers violated
a clearly established right. (ECF No. 35 at 22; ECF No. 39 at 19).
Under the Fourth Amendment, an officer’s right to arrest or detain
necessarily encompasses the right to use “some degree of physical coercion or
threat” to enforce it. 	Graham, 490 U.S. at 396. 	However, as discussed,
excessive force claims necessarily “depend[ ] on the facts and circumstances of
each particular case.” 	Newman v. Guedry, 703 F.3d 757, 761 (5th Cir. 2012).
Relevant here, the Fifth Circuit has held that “it was clearly established that
an officer may not use force on a suspect who is complying with his commands.”
Bagley v. Guillen, 90 F.4th 799, 803 (5th Cir. 2024) (citing Darden v. City of Ft.
Wor., 880 F.3d 722, 728–30 (5th Cir. 2018), Newman, 703 F.3d at 761–64).
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Similarly, the Fifth Circuit has held that when “an individual stopped for a
minor traffic offense offers, at most, passive resistance and presents no threat
or flight risk, abrupt application of physical force rather than continued verbal
negotiating (which may include threats of force) is clearly unreasonable and
excessive.” Hanks, 853 F.3d at 748.
Plaintiff at most committed a minor traffic offense. There are no facts to
suggest Plaintiff physically or verbally threatened the Officers or attempted to
flee. 	The Officers had sufficient notice that, striking Plaintiff after he agreed
to comply with orders to exit his vehicle, constituted excessive force and a
violation of Plaintiff’s constitutional rights. 	See Bolin, 694 F. Supp. 3d at 914
(citing Aguirre v. City of San Antonio, 995 F.3d 395, 415 (5th Cir. 2021) (“The
law can be clearly established despite notable factual distinctions between the
precedents relied on and the cases then before the Court, so long as the prior
decisions gave reasonable warning that the conduct then at issue violated
constitutional rights.”) (internal quotations omitted)); Deville, 567 F.3d at 167–
69 (holding officers were not entitled to qualified immunity for breaking the
plaintiff’s car window and “dragg[ing]” her out of her car when (1) the plaintiff
was only stopped for a minor traffic violation, (2) she evinced no intent to flee
or threaten the officers’ safety, and (3) her resistance to the officer’s commands
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was “at most, passive”); see also Doss v. Helpenstell, 626 F. App’x 453, 460 (5th
Cir. 2015).
As such, taking Plaintiff’s allegations as true, Plaintiff has adequately
alleged that the Officers used excessive force in 	violation of the Fourth
Amendment, and that their use of force was objectively unreasonable. 	The
Officers are therefore not entitled to 	dismissal on the 	basis of qualified
immunity on this claim at this stage, and the Court recommends Bolin and
Wyrick’s motions to dismiss be denied to the extent they seek dismissal of this
claim.
2. Unlawful Search/Seizure
In Plaintiff’s FAC, Plaintiff alleges the traffic stop in this case violates
the Fourth Amendment because “Wyrick had no reasonable suspicion and . . .
[no] probable cause to stop” Plaintiff. (ECF No. 32 at ¶ 77). As to the alleged
unlawful seizure, Plaintiff states he “was not free to leave” and “did not feel
free to leave.” 	(Id. at ¶ 78). 	Plaintiff adds that he “had to endure pre-trial
detention for no legitimate reason other than he could not post bond.” 	(Id. at
¶ 80). The Officers argue qualified immunity applies, that Plaintiff admits to
using a cell phone while driving, which created probable cause to conduct a
traffic stop, and that Plaintiff was not cooperative with the Officers. (ECF No.
35 at 21–22; ECF No. 39 at 18–19).
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In response to Bolin’s Motion to Dismiss, Plaintiff states he “does not
challenge the initial stop.” 	(ECF No. 47 at 15). 	Instead, Plaintiff states “he
challenges 	the 	use 	of 	excessive 	force 	after 	he 	agreed 	to 	comply.” 	(Id.).
Similarly, in response to Wyrick’s Motion to Dismiss, Plaintiff focuses on his
excessive force claim and states that “[e]ven if probable cause existed to stop
or arrest Plaintiff, the amount of force used must be proportional and must
cease once compliance begins.” (ECF No. 48 at 15).
From the Court’s perspective, it appears Plaintiff has abandoned his
unlawful search/seizure claim against the Officers as “a party’s failure to
respond to arguments raised in a motion to dismiss constitutes waiver or
abandonment of those issues at the district court level.” Lewis v. City of Hou.,
No. 4:22-cv-844, 2023 WL 2249991, at *4 (S.D. Tex. Feb. 27, 2023), aff’d sub
nom. Lewis v. Inocencio, No. 23-20098, 2024 WL 229274 (5th Cir. Jan. 22,
2024); see McClelland v. Katy Indep. Sch. Dist., 63 F.4th 996, 1010 (5th Cir.
2023) (“[The Fifth] 	circuit’s well-settled precedent instructs that a party
abandons a claim by failing to defend it in response to motions to dismiss and
other dispositive pleadings.”). 	As such, the Court recommends Plaintiff’s
unlawful search/seizure claim be dismissed with prejudice. 	See Police v.
Navarro Coll., No. 3:22-cv-712, 2023 WL 3362610, at *5 (N.D. Tex. May 10,
2023) (“Plaintiff has also abandoned his malicious prosecution claim insofar as
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he makes no mention of it in his response despite [Defendant] specifically
addressing it in his motion to dismiss.”)
3. Equal Protection Claim
Plaintiff’s FAC also alleges a violation of the Equal Protection Clause,
stating that he was “adversely treated in comparison to the proportionate
travelers on the road that day.” 	(ECF No. 32 at ¶ 104). 	The Officers argue
Plaintiff fails to “allege any facts or make a recital of the elements of an equal
protection claim in his [FAC].” (ECF No. 35 at 23; ECF No. 39 at 19).
“The Equal Protection Clause of the Fourteenth Amendment commands
that no State shall ‘deny to any person within its jurisdiction the equal
protection 	of 	the 	laws,’ 	which 	is 	essentially 	a 	direction 	that 	all 	persons
similarly situated should be treated alike.” 	City of Cleburne, Tex. v. Cleburne
Living Ctr., 473 U.S. 432, 439 (1985) (quoting Plyler v. Doe, 457 U.S. 202, 216
(1982)). To state a claim under the Equal Protection Clause, a § 1983 plaintiff
must allege either that (1) “a state actor intentionally discriminated against
him 	because 	of 	membership 	in 	a 	protected 	class,” 	or 	(2) 	“he 	has 	been
intentionally treated differently from others similarly situated and that there
is no rational basis for the difference in treatment.” 	Gibson v. Tex. Dep’t of
Ins.—Div. of Worker’s Comp., 700 F.3d 227, 238 (5th Cir. 2012) (internal
quotations 	and 	citations 	omitted). 	“[O]fficial 	action 	will 	not 	be 	held
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unconstitutional solely because it results in a racially disproportionate impact
. . . [p]roof of racially discriminatory intent or purpose is required . . . .” Village
of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 264–65 (1977);
Williams, 694 F. Supp. 3d at 915.
While Plaintiff alleges that his rights under the Equal Protection Clause
were violated, Plaintiff has not alleged any non-conclusory or non-speculative
facts 	from 	which 	this 	Court 	can 	reasonably 	infer 	that 	Bolin 	or 	Wyrick
intentionally discriminated against Plaintiff based on his race or treated
Plaintiff differently from other individuals in similar situations because of his
race. 	Stated another way, while Plaintiff alleges that he was “subjected to
excessive and disproportionate force during a routine traffic stop” (ECF No. 47
at 16) because of his race, he does not provide any specific facts that would
enable the Court to infer that a discriminatory intent triggered the “excessive
and 	disproportionate 	force.” 	As 	such, 	Plaintiff 	fails 	to 	allege 	an 	equal
protection claim. See Willis v. De Leon, No. 4:24-cv-778, 2025 WL 1477096, at
*5 (N.D. Tex. May 19, 2025), report and recommendation adopted, No. 4:24-cv-
778, 2025 WL 1463302 (N.D. Tex. May 22, 2025), aff’d, No. 25-10678, 2025 WL
3270631 (5th Cir. Nov. 24, 2025) (collecting cases); Amaru v. Rhome Police
Dep’t, No. 4:22-cv-1090, 2024 WL 4008789, at *16 (N.D. Tex. Aug. 1, 2024),
report and recommendation adopted, No. 4:22-cv-1090, 2024 WL 4009951 (N.D.
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Tex. Aug. 30, 2024); Brown v. Preyor-Johnson, No. 06-cv-1093, 2008 WL
11417071, at *3 (W.D. Tex. Mar. 6, 2008) (“As a prerequisite to an equal
protection claim, a plaintiff must allege ‘that similarly situated individuals
were treated differently.’” (quoting Bryan v. City of Madison, 213 F.3d 267, 276
(5th Cir. 2000))).
4. First Amendment Retaliation
Plaintiff also alleges the Officers’ use of force against him was in
retaliation for conduct protected by the First Amendment, which Plaintiff
describes as using “defiant speech.” 	(See ECF No. 32 at ¶¶ 98(a), 99). 	The
Officers argue probable cause defeats Plaintiff’s First Amendment retaliation
claim. (ECF No. 35 at 23; ECF No. 39 at 20).
“Generally, when a First Amendment retaliation claim is predicated on
an arrest, the plaintiff must adequately allege a lack of probable cause for the
arrest.” 	Ordonez v. Gonzalez, No. 23-cv-99, 2024 WL 1250181, at *19 (W.D.
Tex. Mar. 25, 2024) (citing Nieves v. Bartlett, 587 U.S. 391, 401 (2019)); see
Grisham v. Valenciano, 93 F.4th 903, 909 (5th Cir. 2024) (finding a retaliatory
arrest claim precluded where officers had probable cause for arrest). However,
Plaintiff does not assert a retaliatory arrest claim. Instead, Plaintiff asserts a
retaliatory use of force claim. (See ECF No. 32 at ¶¶ 98–99 (“Bolin and Wyrick
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were 	motivated 	to 	exert 	excessive 	force 	upon 	[Plaintiff] 	because 	they
apparently did not want to deal with [Plaintiff]’s defiant speech.”).
“[T]he First Amendment protects a significant amount of verbal criticism
and challenge directed at police officers.” 	City of Hou., Tex. v. Hill, 482 U.S.
451, 461 (1987). 	As noted by the Fifth Circuit, a “core First Amendment
freedom” allows individuals “verbally to oppose or challenge police action
without thereby risking arrest,” [and] is one of the principal characteristics “by
which we distinguish a free nation from a police state.” 	Seals v. McBee, 898
F.3d 587, 598, 600 (5th Cir. 2018) (quoting Hill, 482 U.S. at 462–63).
While there is some debate over whether a plaintiff can bring a First
Amendment retaliation claim based on retaliatory use of force, this Court will
proceed, as many other district courts have within the Fifth Circuit, that First
Amendment 	retaliatory 	force 	claims 	are 	not 	entirely 	precluded 	by 	the
availability of excessive force claims sounding in the Fourth Amendment. See
Ordonez, 2024 WL 1250181, at *20–21 (collecting cases).
To establish a claim for First Amendment retaliation, a plaintiff must
show that “(1) they were engaged in constitutionally protected activity, (2) the
defendants’ actions caused them to suffer an injury that would chill a person
of ordinary firmness from continuing to engage in that activity, and (3) the
defendants’ 	adverse 	actions 	were 	substantially 	motivated 	against 	the
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plaintiffs’ exercise of constitutionally protected conduct.” 	Bailey v. Iles, 87
F.4th 275, 289 (5th Cir. 2023) (internal quotations omitted).
As to the first element, Plaintiff alleges he used “defiant speech” during
his encounter with the Officers. (ECF No. 32 at ¶ 98(a)). As noted above, the
First Amendment protects the right to verbally criticize or challenge the police.
See Seals, 898 F.3d at 598, 600; Lincoln v. Turner, 874 F.3d 833, 688 (5th Cir.
2017); Alexander v. City of Round Rock, 854 F.3d 298, 308 (5th Cir. 2017); Mesa
v. Prejean, 543 F.3d 264, 273 (5th Cir. 2008). Plaintiff has thus alleged that he
was engaged in constitutionally protected conduct when he was retaliated
against, satisfying the first element of a retaliation claim. See Bailey, 87 F.4th
at 289 (quoting Keenan v. Tejeda, 290 F.3d 252, 258 (5th Cir. 2002)).
As 	to 	the 	second 	element, 	as 	discussed 	above, 	Plaintiff’s 	claim 	of
excessive force is plausible as asserted against the Officers. 	Many courts
within the Fifth Circuit have concluded that being met with excessive force is
“an injury that would chill a person of ordinary firmness from continuing to
engage in that activity.” 	See Batyukova v. Doege, 994 F.3d 717, 730–31 (5th
Cir. 2021); Zinter v. Salvaggio, 610 F. Supp. 3d 919, 956 (W.D. Tex. 2022)
(“Plaintiffs also suffered injuries that would chill the speech of a person of
ordinary firmness. 	They argue that the arrests, detentions, uses of force, and
seizures of property satisfy this element. 	The Court agrees.”); Ordonez, 2024
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WL 1250181, at *21. 	Plaintiff has thus established the second element of a
retaliation 	claim 	against 	the 	Officers 	by 	alleging 	that 	the 	Officers 	used
excessive 	force 	against 	Plaintiff 	in 	retaliation 	for 	his 	First 	Amendment
activity.
To satisfy the third element, Plaintiff must not only show that the
Officers’ actions “‘were substantially motivated against Plaintiff’s exercise of
constitutionally protected conduct,’” but also that “‘the adverse action against
. . . [Plaintiff] would not have been taken absent the retaliatory motive.’” Lupis
v. City of Texas City, Tex., No. 3:22-cv-101, 2023 WL 4864850, at *6 (S.D. Tex.
Mar. 29, 2023) (first quoting Alexander, 854 F.3d at 308; and then quoting
Nieves, 587 U.S. at 399). 	Here, Plaintiff asserts “Bolin’s and Wyrick’s level of
frustration went from zero to sixty in a matter of a couple of minutes, as a
result of [Plaintiff’s] defiant speech.” 	(ECF No. 32 at ¶ 98(a)). 	Plaintiff also
adds that “Bolin and Wyrick were motivated to exert excessive force upon
[Plaintiff] because they apparently did not want to deal with [Plaintiff’s]
defiant speech.” (Id. at ¶ 99). The Court also notes that Plaintiff was speaking
to his wife on the phone during the encounter (id. at ¶ 27) and repeatedly asked
the Officers for a supervisor (id. at ¶ 29) before Plaintiff’s phone was knocked
out of his hand (id. at ¶ 37) and the Officers began striking Plaintiff (id. at ¶
38). Plaintiff has thus plausibly alleged that excessive force was used against
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him in large part because of his exercise of his First Amendment rights and
that it would not have happened absent the Officers’ retaliatory motives. 	See
Ordonez, 2024 WL 1250181, at *22. 	At this motion to dismiss stage, Plaintiff
has stated a First Amendment retaliation claim against the Officers. 	See
Bailey, 87 F.4th at 289 (quoting Keenan, 290 F.3d at 258).
As to the Officers’ assertion of qualified immunity (ECF No. 35 at 21–22;
ECF No. 39 at 18–19), it is clearly established that the First Amendment
prohibits “adverse governmental action against an individual in retaliation for
the exercise of protected speech activities.” 	Keenan, 290 F.3d at 258 (citing
Colson v. Grohman, 174 F.3d 498, 508 (5th Cir. 1999)). And when the incident
took place, verbally challenging police action was a clearly established First
Amendment right in the Fifth Circuit. See Mesa, 543 F.3d at 273.
As such, Plaintiff has sufficiently alleged that the Officers violated his
clearly 	established 	right 	to 	verbally 	challenge 	the 	police 	without 	being
retaliated against. See Mesa, 543 F.3d at 273; Keenan, 290 F.3d at 258 (citing
Colson, 174 F.3d at 508). 	Qualified immunity therefore does not apply, and
the Court recommends the Officers’ Motions to Dismiss be denied as to
Plaintiff’s retaliatory use of force claim. 	See Ordonez, 2024 WL 1250181, at
*23.
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v. 	State Law Claims
The Officers argue, to the extent Plaintiff asserts a state law claim
against them, those claims are barred under the Texas Tort Claims Act (the
“TTCA”). (ECF No. 35 at 24; ECF No. 39 at 20). Plaintiff’s FAC does not assert
state law claims against either Bolin or Wyrick. 	(See ECF No. 32 at ¶¶ 114,
137, 147). As such, the Court recommends the Officers’ Motions to Dismiss be
denied as moot regarding their state law claims argument.
vi. 	Punitive Damages
The Officers argue Plaintiff’s claims for punitive damages should be
dismissed because Plaintiff has failed to plead any plausible factual basis that
the Officers acted with malice. (ECF No. 35 at 25; ECF No. 39 at 21). Plaintiff
contends the dismissal of punitive damages is premature. 	(ECF No. 47 at 19;
ECF No. 48 at 19).
“Punitive 	damages 	may 	be 	awarded 	in 	§ 	1983 	cases 	‘when 	the
defendant’s conduct is shown to be motivated by evil motive or intent, or when
it involves reckless or callous indifference to the federally protected rights of
others.’” 	Heaney v. Roberts, 846 F.3d 795, 803 (5th Cir. 2017) (quoting Smith
v. Wade, 461 U.S. 30, 56 (1983)). 	At this stage of the proceedings, the Court
will 	not 	judge 	whether 	any 	individual 	Defendant’s 	conduct 	meets 	this
standard. See Flores v. City of San Benito, No. 1:20-cv-169, 2021 WL 2367911,
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at *9 (S.D. Tex. May 12, 2021), report and recommendation adopted sub nom.
Flores v. City of San Benito, Tex., No. 1:20-cv-169, 2021 WL 2367866 (S.D. Tex.
June 9, 2021). As such, the Court recommends the Officers’ Motions to Dismiss
be denied as to Plaintiff’s punitive damages claim.
b. Harris County and Gonzalez’s Motion to Dismiss (ECF No. 38)
Harris County and Gonzalez move to dismiss Plaintiff’s FAC on various
grounds, including insufficient service of process, statute of limitations, and
failure to state a claim. The Court will address each argument in turn
i. 	Punitive Damages
Harris County argues that Plaintiff wrongly seeks punitive damages
from the county and contends this damages element should be dismissed.
(ECF No. 38 at 10). Plaintiff does not oppose dismissal of the punitive damages
claim with respect to Harris County and Gonzalez in his official capacity. (ECF
No. 49 at 9). 	As such, the Court recommends Plaintiff’s punitive damages
claim be dismissed with prejudice as to Harris County and Gonzalez in his
official capacity.
ii. 	Service
Harris County argues it never received service of alleged video exhibits
with the original complaint and that by improperly serving all Defendants
after the limitations period expired, the case must be dismissed. (ECF No. 38
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at 11). 	Plaintiff argues his original complaint references video exhibits that
were filed with the Clerk and clearly annotated on the docket, which provided
full notice to Defendants. 	(ECF No. 49 at 10). 	Plaintiff also contends any
procedural deficiency associated with the exhibits to the original complaint
was rendered moot by the FAC. (Id. at 9).
As discussed above, “[t]he primary purpose of the service requirements
is to ensure a defendant receives actual notice of the pendency of litigation
against it.” 	Mable, 2010 WL 11453632, at *1 (citing Goetz, 415 F.3d at 484).
Here, neither Harris County nor Gonzales contend they did not have actual
notice of the pendency of litigation or that they suffered prejudice by being
served a complaint without the video exhibits. Further, neither Harris County
nor Gonzales provide any legal authority or support for dismissing a complaint
where a defendant received service of a complaint but failed to receive exhibits
referenced in the complaint.
Accordingly, the Court finds dismissal pursuant to Rule 12(b)(4) is not
warranted because Harris County and Gonzalez had actual notice of all claims
and allegations contained in Plaintiff’s FAC. 	See Mable, 2010 WL 11453632,
at *3 (“Thus, there is no prejudice to Defendant’s rights in the case at hand
because Defendant had actual notice of all claims and allegations contained in
the currently effective complaint.”); see also Lister v. United States, No. 4:21-
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cv-3087, 2023 WL 4275474, at *3 (S.D. Tex. June 29, 2023) (explaining that
“when superseded pleadings are filed before service of process, serving the
superseded pleadings is not required” (citing Carr v. City of Spring Valley Vill.,
No. 19-cv-20373, 2022 WL 1553539, at *3 (5th Cir. May 17, 2022))).
iii. 	Statute of Limitations
Harris County and Gonzalez also argue Plaintiff’s claims are barred by
the statute of limitations. 	(ECF No. 38 at 12). 	Just as the Officers argue,
Harris County and Gonzalez contend (1) the statute of limitations for Plaintiff’s
claims expired on January 13, 2025 but that (2) Texas law requires Plaintiff to
“file the suit within the limitations period AND continuously exercise due
diligence in obtaining service of process if service occurs after limitations
expires.” (ECF No. 38 at 13 (emphasis in original)).
As previously discussed, Texas’s service requirement applies only to
state law claims and does not govern federal claims brought in federal court.
See Vela, 2016 WL 1583676, at *3 (citing Gonzales, 157 F.3d at 1021 n.1).
Section 1983 is a federal cause of action. As such, while state law determines
the length of the limitations period, federal law controls what actions must be
taken for a lawsuit to be timely. See id.; see also Jackson, 259 F.2d at 6. Under
the Federal Rules of Civil Procedure, a “civil action is commenced by filing a
complaint with the court.” F ED. R. C IV . P. 3. Thus, for federal claims, the filing
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date—not the date of service—controls for limitations purpose. See Henderson,
517 U.S. at 657 n.2 (“In a suit on a right created by federal law, a complaint
suffices to satisfy the statute of limitations.”).
As such, because Plaintiff filed suit within the two-year statute of
limitations period, his § 1983 claims should not be dismissed as time-barred.
See Gonzales, 157 F.3d at 1021 n.1; see also Jackson, 259 F.2d at 6; TEX . C IV .
PRAC . & R EM. C ODE § 16.003(a); Heilman, 638 F. App’x at 366.
iv. 	Equal Protection Claim
Harris County and Gonzalez contend Plaintiff’s Equal Protection claim
should be dismissed for failure to state a claim. (ECF No. 38 at 16). 	Plaintiff
responds, arguing his Equal Protection claim is viable. (ECF No. 49 at 12–13).
Specifically, Plaintiff argues Harris County and Gonzalez have “tolerated” the
Officers’ discriminatory behavior. (Id. at 13).
As discussed, to state a claim under the Equal Protection Clause, a §
1983 	plaintiff 	must 	allege 	either 	that 	(1) 	“a 	state 	actor 	intentionally
discriminated against him because of membership in a protected class,” or (2)
“he has been intentionally treated differently from others similarly situated
and that there is no rational basis for the difference in treatment.” 	Gibson,
700 F.3d at 238 (internal quotations and citations omitted).
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Similar to the Court’s findings as to Plaintiff’s Equal Protection claims
against the Officers, Plaintiff’s Equal Protection claims against Harris County
and Gonzalez fail because Plaintiff does not provide any specific facts that
would 	enable 	the 	Court 	to 	infer 	that 	Plaintiff 	was 	intentionally 	treated
differently from others similarly situated. 	See Brown, 2008 WL 11417071, at
*3 (“As a prerequisite to an equal protection claim, a plaintiff must allege ‘that
similarly situated individuals were treated differently.’” (quoting Bryan, 213
F.3d at 276)); see also Garcia v. Harris Cnty. Tex., No. 4:23-cv-0542, 2024 WL
1291531, at *3 (S.D. Tex. Mar. 26, 2024), opinion vacated on reconsideration
sub nom. Garcia v. Harris Cnty., No. 4:23-cv-0542, 2024 WL 5205920 (S.D. Tex.
Nov. 13, 2024). As such, Plaintiff fails to sufficiently allege an equal protection
claim. See Willis, 2025 WL 1477096, at *5 (collecting cases).
v. 	Official Capacity
Gonzalez seeks dismissal of the official capacity claims against him,
arguing that the claims against Gonzalez are duplicative of the claims against
Harris County. 	(ECF No. 38 at 17–18). 	Plaintiff responds that he brought
claims against Gonzalez in his official capacity because of his role as the official
policymaker whose failure to act constitutes Harris County policy. 	(ECF No.
49 at 15).
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As discussed, “[b]ecause a claim against an officer in his official capacity
duplicates the claim against the municipality, a district court faced with both
claims may dismiss the official capacity claims.” 	Zordan, 2023 WL 6451111,
at *10 (citing Castro Romero, 256 F.3d at 355). As such, the Court recommends
the official capacity claims against Gonzalez be dismissed with prejudice as
duplicative of the municipal liability claims against Harris County.
vi. 	Monell Liability or Ratification
It is well-established that a municipality, like Harris County, cannot be
held vicariously liable under § 1983 for the conduct of its employees. Monell v.
Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978); Hicks-Fields v. Harris Cnty., Tex.,
860 F.3d 803, 808 (5th Cir. 2017) (“Harris County, as a municipality, may not
be held liable under § 1983 on a basis of vicarious liability.”). 	However, a
municipality can be held liable under § 1983 if “the action that is alleged to be
unconstitutional 	implements 	or 	executes 	a 	policy 	statement, 	ordinance,
regulation, or decision officially adopted and promulgated by that body’s
officers.” Monell, 436 U.S. at 690. Thus, to state a claim under § 1983 against
Harris County, Plaintiff must plausibly allege that (1) an official policy, (2)
promulgated by the municipal policymaker, (3) was the moving force behind
the violation of his constitutional rights. 	See Martinez v. City of Rosenberg,
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Tex., 123 F.4th 285, 289 (5th Cir. 2024), cert. denied, 2025 WL 1727389 (U.S.
June 23, 2025).
In Plaintiff’s FAC, he alleges an excessive force claim and unlawful
search/seizure claim against Harris County. 	(ECF No. 32 at ¶ 86). 	However,
because Plaintiff fails to allege an underlying constitutional violation for
unlawful 	search/seizure, 	the 	only 	potential 	basis 	for 	municipal 	liability
concerns the Officers’ use of excessive force. See Albert v. City of Petal, 819 F.
App’x 200, 203 (5th Cir. 2020) (noting that because there was no constitutional
violation, there can be no Monell claims).
As to excessive force, Plaintiff alleges that Harris County has “an official
policy or unofficial custom of systemic unwillingness to address the use of
excessive force.” (ECF No. 32 at ¶ 89(c)). A municipal policy can be shown in
one 	of 	three 	ways: 	(1) 	with 	“written 	policy 	statements, 	ordinances, 	or
regulations;” (2) “a widespread practice that is so common and well-settled as
to constitute a custom that fairly represents municipal policy;” or (3) in “rare
circumstances” a single decision may suffice when “the official or entity
possessing ‘final policy making authority’ for an action ‘performs the specific
act that forms the basis of the § 1983 claim.’” 	Webb v. Town of Saint Joseph,
925 F.3d 209, 215 (5th Cir. 2019) (quoting Davidson v. City of Stafford, Texas,
848 F.3d 384, 395 (5th Cir. 2017), as revised (Mar. 31, 2017)). 	Plaintiff’s FAC
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contains no allegations that would support the first or third categories. 	(See
ECF No. 32 at ¶¶ 86–92). As such, the Court will analyze Plaintiff’s excessive
force claim against Harris County as an allegation of a widespread practice.
An alleged widespread practice must be “so persistent and widespread
as to practically have the force of law.” Connick v. Thompson, 563 U.S. 51, 61
(2011). 	Plaintiff 	must 	show 	a 	pattern 	with 	“similarity, 	specificity, 	and
sufficiently numerous prior incidents” to establish a municipal policy based on
widespread practice. 	See Davidson, 848 F.3d at 396. 	A plaintiff relying on a
theory 	of 	widespread 	practice 	must 	also 	allege 	“‘[a]ctual 	or 	constructive
knowledge 	of 	such 	custom’ 	by 	the 	municipality 	or 	the 	official 	who 	had
policymaking authority.” 	Hicks-Fields, 860 F.3d at 808 (quoting Webster v.
City of Hou., 735 F.2d 838, 841 (5th Cir. 1984)).
A large portion 	of 	Plaintiff’s 	allegations are 	cut 	and 	paste from 	a
complaint filed in a separate case and include discussion of a 2009 Department
of Justice Memorandum. 	(See ECF No. 32 at ¶ 89(c)(a–h); see also 4:22-cv-
01226, ECF No. 18 at ¶ 24(a–h)). That complaint also identifies the following
incidents: (1) Harris County police used excessive force when they incorrectly
raided someone’s home in June 2011; (2) Harris County police used excessive
force on an inmate in October 2015; (3) Harris County police used excessive
force in May 2016; (4) Harris County police used excessive force in April 2017;
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(5) Harris County police used excessive force against an inmate in December
2017. (See ECF No. 32 at ¶ 89(c)(a–h); see also 4:22-cv-01226, ECF No. 18 at ¶
24(a–h)). 	Plaintiff then points to another case’s complaint, stating that there
were more than forty additional incidents listed in that case’s complaint. (See
id. at ¶ 92). 	Plaintiff does not provide any additional details as to these
incidents. (See id.).
Harris County argues Plaintiff’s allegations are wholly conclusory and
offer no allegations to support liability. 	(ECF No. 38 at 18). 	Harris County
adds that (1) Plaintiff’s reference to “40 examples” of unconstitutional conduct
in another 	case’s complaint does 	not 	provide 	any 	specificity 	as to these
examples; (2) the 2009 Department of Justice report regarding the jail is not
applicable to cases, like this one, involving patrol arrests; and (3) many of the
cases identified by the quoted complaint are not factually similar to the case
at hand. 	(Id. at 18–20). 	In response, Plaintiff seems to only address whether
he properly alleged a pattern of unconstitutional stops and arrests and does
not address whether he properly alleged a pattern regarding excessive force.
(See ECF No. 49 at 15–19).
Nevertheless, as to 	Harris County’s argument that Plaintiff’s cited
examples are not similar enough to his encounter with the Officers to show a
pattern, the Court notes that all of Plaintiff’s examples reference Harris
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County officers using excessive force. 	“The Fifth Circuit has tacitly held that
a series of incidents whose only common thread is the use of excessive force by
a 	municipality’s 	police 	officers 	may 	sometimes 	be 	adequately 	specific 	to
establish a pattern.” 	Sinegal v. City of El Paso, No. 19-cv-107, 2020 WL
13442013, at *15 (W.D. Tex. July 6, 2020) (first citing Peterson v. City of Ft.
Wor., 588 F.3d 838, 851–52 (5th Cir. 2009); and then citing Cano v. Bexar
County, 280 F. App’x 404, 406–07 (5th Cir. 2008)). 	However, Plaintiff has
alleged, at most, five incidents of Harris County officers using excessive force
and generally references forty additional incidents that were described in a
separate case. 	These allegations are “too few and too spread out over time to
establish a persistent, widespread pattern necessary for Monell liability.”
Stewart v. Loftin, No. 3:21-cv-3789, 2025 WL 751314, at *8 (W.D. La. Feb. 20,
2025), report and recommendation adopted, No. 3:21-cv-3789, 2025 WL 750198
(W.D. La. Mar. 7, 2025) (collecting cases).
Plaintiff’s conclusory assertions simply “do not raise a right to relief
above the speculative level.” 	See Verastique v. City of Dall., Tex., 106 F.4th
427, 432 (5th Cir. 2024), cert. denied, 145 S. Ct. 772 (2024) (internal quotation
omitted) (rejecting pattern-or-practice allegations based on incidents that were
not described with adequate factual detail). 	As such, the Court recommends
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Plaintiff’s excessive force claim against Harris County be dismissed with
prejudice.
Harris 	County 	also 	argues 	Plaintiff’s 	ratification 	theory 	should 	be
dismissed because the FAC fails to set forth any allegation or factual support
to show any ratification by a policymaker. 	(ECF No. 38 at 23). 	Plaintiff
disagrees. (ECF No. 49 at 18–19).
Under the “ratification theory,” an official policy or custom may be shown
to exist where municipal policymakers ratify an employee’s unconstitutional
conduct by failing to discipline them. 	See King v. City of Austin, No. 1:16-cv-
1020, 2018 WL 2027748, at *10 (W.D. Tex. May 1, 2018) (citing Fuentes v.
Nueces County, 689 F. App’x 775, 779 (5th Cir. 2017)). 	The Fifth Circuit
recognizes municipal liability under a theory of ratification, though it is limited
to “extreme factual situations.” 	Peterson, 588 F.3d at 848 (internal quotation
marks and citations omitted). 	“If the authorized policymakers approve a
subordinate’s 	decision 	and 	the 	basis 	for 	it, 	their 	ratification 	would 	be
chargeable to the municipality because their decision is final.” 	Id. at 854
(internal 	quotations 	omitted). 	“[U]nless 	the 	subordinate’s 	actions 	are
sufficiently extreme—for instance, an obvious violation of clearly established
law—a policymaker’s ratification or defense of his subordinate’s actions is
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insufficient to establish an official policy or custom.” World Wide St. Preachers
Fellowship v. Town of Columbia, 591 F.3d 747, 755 (5th Cir. 2009).
Plaintiff alleges the following in his FAC:
• 	“[P]olicymakers, particularly Gonzalez, within the Department
ratified 	Bolin’s 	and 	Wyrick’s 	actions 	that 	form 	the 	basis 	of
[Plaintiff]’s 42 U.S.C. §1983 claim against the Department.” (ECF
No. 32 at ¶ 87).
• 	The Department has an official policy or unofficial custom of
systemic unwillingness to address the use of excessive force by its
deputies, which Gonzalez ratifies . . . .” (Id. at ¶ 89(c)).
• 	Gonzalez 	“ratified 	Bolin 	and 	Wyrick’s 	violation 	of 	[Plaintiff]’s
Fourth Amendment rights because their official policies, unofficial
customs, 	widespread 	violative 	practices, 	and 	top-down, 	wide-
spread leadership ratifications fly in the face of [Plaintiff]’s United
States Constitutional 4th Amendment Rights.” (Id. at ¶ 90).
Outside of these references, Plaintiff provides no other factual allegations as
to how Gonzalez ratified the Officers’ actions. 	Having reviewed Plaintiff’s
FAC, the Court does not find Plaintiff’s allegations present the extreme factual
situation required for the theory of ratification in the Fifth Circuit. 	See
Perdomo v. City of League City, 765 F. Supp. 3d 613, 626 (S.D. Tex. 2025), aff’d
sub nom. Perdomo v. City of League City, Texas, No. 25-40106, 2026 WL 40954
(5th Cir. Jan. 7, 2026).
IV. 	Conclusion
Based on the foregoing, the Court RECOMMENDS Bolin’s Motion to
Dismiss (ECF No. 35) be GRANTED as to the official capacity claims against
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Bolin, Plaintiff’s unlawful search/seizure claim, and Plaintiff’s equal protection
claim, 	DENIED 	as to Bolin’s insufficient process and 	service of 	process
argument, Bolin’s statute of limitations argument, Plaintiff’s excessive force
claim, Plaintiff’s retaliatory use of force claim, and Plaintiff’s punitive damages
claim, and DENIED AS MOOT as to Bolin’s state law claims argument.
The Court RECOMMENDS Harris County and Gonzalez’s Motion to
Dismiss (ECF No. 38) be GRANTED as to Plaintiff’s punitive damages claim,
Plaintiff’s equal protection claim, the official capacity claims against Gonzalez,
Plaintiff’s 	excessive 	force 	claim 	against 	Harris 	County, 	and 	Plaintiff’s
ratification theory and DENIED as to the service argument and statute of
limitations argument.
The Court RECOMMENDS Wyrick’s Motion to Dismiss (ECF No. 39)
be GRANTED as to the official capacity claims against Wyrick, Plaintiff’s
unlawful search/seizure claim, and Plaintiff’s equal protection claim, and
DENIED as to Wyrick’s insufficient process and service of process argument,
Wyrick’s statute of limitations argument, Plaintiff’s excessive force claim,
Plaintiff’s retaliatory use of force claim, and Plaintiff’s punitive damages claim,
and DENIED AS MOOT as to Wyrick’s state law claims argument.
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Accordingly, the Court RECOMMENDS the following claims should be
DISMISSED WITH PREJUDICE:
• 	Plaintiff’s claims against Bolin, Wyrick, and Gonzalez in their
official capacity;
• 	Plaintiff’s unlawful search/seizure claim against Bolin and Wyrick;
• 	Plaintiff’s 	equal 	protection 	claim 	against 	Bolin, 	Wyrick, 	and
Gonzalez; and
• 	Plaintiff’s claims (excessive force, unlawful search/seizure, equal
protection, punitive damages) against Harris County.
The Clerk shall send copies of this Memorandum and Recommendation
to the respective parties who have fourteen days from the receipt thereof to file
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 January 30, 2026.
______________________________
Richard W. Bennett
United States Magistrate Judge
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