4:25-cv-00135•McCoy v. Harris County et al
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION RICO R. MCCOY, Plaintiff, § § § § § § § § § 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 Case 4:25-cv-00135 Document 56 Filed 01/30/26 in TXSD Page 1 of 46
2 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). Case 4:25-cv-00135 Document 56 Filed 01/30/26 in TXSD Page 2 of 46
3 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 Case 4:25-cv-00135 Document 56 Filed 01/30/26 in TXSD Page 3 of 46
4 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 Case 4:25-cv-00135 Document 56 Filed 01/30/26 in TXSD Page 4 of 46
5 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. Case 4:25-cv-00135 Document 56 Filed 01/30/26 in TXSD Page 5 of 46
6 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, Case 4:25-cv-00135 Document 56 Filed 01/30/26 in TXSD Page 6 of 46
7 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. Case 4:25-cv-00135 Document 56 Filed 01/30/26 in TXSD Page 7 of 46
8 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). Case 4:25-cv-00135 Document 56 Filed 01/30/26 in TXSD Page 8 of 46
9 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 Case 4:25-cv-00135 Document 56 Filed 01/30/26 in TXSD Page 9 of 46
10 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. Case 4:25-cv-00135 Document 56 Filed 01/30/26 in TXSD Page 10 of 46
11 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. Case 4:25-cv-00135 Document 56 Filed 01/30/26 in TXSD Page 11 of 46
12 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 Case 4:25-cv-00135 Document 56 Filed 01/30/26 in TXSD Page 12 of 46
13 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 Case 4:25-cv-00135 Document 56 Filed 01/30/26 in TXSD Page 13 of 46
14 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 Case 4:25-cv-00135 Document 56 Filed 01/30/26 in TXSD Page 14 of 46
15 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.” Case 4:25-cv-00135 Document 56 Filed 01/30/26 in TXSD Page 15 of 46
16 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). Case 4:25-cv-00135 Document 56 Filed 01/30/26 in TXSD Page 16 of 46
17 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.” Case 4:25-cv-00135 Document 56 Filed 01/30/26 in TXSD Page 17 of 46
18 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 Case 4:25-cv-00135 Document 56 Filed 01/30/26 in TXSD Page 18 of 46
19 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 Case 4:25-cv-00135 Document 56 Filed 01/30/26 in TXSD Page 19 of 46
20 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). Case 4:25-cv-00135 Document 56 Filed 01/30/26 in TXSD Page 20 of 46
21 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). Case 4:25-cv-00135 Document 56 Filed 01/30/26 in TXSD Page 21 of 46
22 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 Case 4:25-cv-00135 Document 56 Filed 01/30/26 in TXSD Page 22 of 46
23 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). Case 4:25-cv-00135 Document 56 Filed 01/30/26 in TXSD Page 23 of 46
24 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 Case 4:25-cv-00135 Document 56 Filed 01/30/26 in TXSD Page 24 of 46
25 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 Case 4:25-cv-00135 Document 56 Filed 01/30/26 in TXSD Page 25 of 46
26 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. Case 4:25-cv-00135 Document 56 Filed 01/30/26 in TXSD Page 26 of 46
27 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 Case 4:25-cv-00135 Document 56 Filed 01/30/26 in TXSD Page 27 of 46
28 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 Case 4:25-cv-00135 Document 56 Filed 01/30/26 in TXSD Page 28 of 46
29 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 Case 4:25-cv-00135 Document 56 Filed 01/30/26 in TXSD Page 29 of 46
30 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 Case 4:25-cv-00135 Document 56 Filed 01/30/26 in TXSD Page 30 of 46
31 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. Case 4:25-cv-00135 Document 56 Filed 01/30/26 in TXSD Page 31 of 46
32 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, Case 4:25-cv-00135 Document 56 Filed 01/30/26 in TXSD Page 32 of 46
33 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 Case 4:25-cv-00135 Document 56 Filed 01/30/26 in TXSD Page 33 of 46
34 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- Case 4:25-cv-00135 Document 56 Filed 01/30/26 in TXSD Page 34 of 46
35 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 Case 4:25-cv-00135 Document 56 Filed 01/30/26 in TXSD Page 35 of 46
36 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). Case 4:25-cv-00135 Document 56 Filed 01/30/26 in TXSD Page 36 of 46
37 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). Case 4:25-cv-00135 Document 56 Filed 01/30/26 in TXSD Page 37 of 46
38 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, Case 4:25-cv-00135 Document 56 Filed 01/30/26 in TXSD Page 38 of 46
39 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 Case 4:25-cv-00135 Document 56 Filed 01/30/26 in TXSD Page 39 of 46
40 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; Case 4:25-cv-00135 Document 56 Filed 01/30/26 in TXSD Page 40 of 46
41 (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 Case 4:25-cv-00135 Document 56 Filed 01/30/26 in TXSD Page 41 of 46
42 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 Case 4:25-cv-00135 Document 56 Filed 01/30/26 in TXSD Page 42 of 46
43 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 Case 4:25-cv-00135 Document 56 Filed 01/30/26 in TXSD Page 43 of 46
44 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 Case 4:25-cv-00135 Document 56 Filed 01/30/26 in TXSD Page 44 of 46
45 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. Case 4:25-cv-00135 Document 56 Filed 01/30/26 in TXSD Page 45 of 46
46 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 Case 4:25-cv-00135 Document 56 Filed 01/30/26 in TXSD Page 46 of 46
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