MARIA V. PEÑA, Individually and as Next Friend of M.J.P. and a Minor; DANIEL PEÑA, Plaintiffs-Appellants,
CITY OF RIO GRANDE CITY, TEXAS; ROSA SALINAS, in Her Individual and Official Capacity; LIEUTENANT JOSE SOLIS, in His Individual and Official Capacity, Defendants-Appellees.
from the United States District Court for the Southern
District of Texas
SMITH, OWEN, and HIGGINSON, Circuit Judges.
E. SMITH, CIRCUIT JUDGE.
Peña sustained injuries as a result of a tasing by
police officers for the City of Rio Grande City. Peña
sued the city and two of the officers in state court,
alleging excessive force under 42 U.S.C. § 1983 and
negligence under the Texas Tort Claims Act
("TTCA"). Upon removal, the district court denied
Peña's motion for leave to amend, dismissed her
claims against the officers, and entered judgment on the
pleadings for the city. Because the district court erred in
disregarding Peña's proposed amended complaint,
and because that complaint stated plausible claims against
the officers, we vacate and remand for the court to consider
whether Peña's pleadings survive the officers'
defense of qualified immunity ("QI"). We affirm in
part, vacate in part, and remand.
sued the city, Lieutenant Jose Solis, and Officer Rosa
Salinas after Peña was seized by Salinas with a taser.
The circumstances surrounding the incident are disputed, but
it appears that the police intervened after observing an
altercation between Peña and her father near their
family car. Officer Humberto Vela, the first to intercede,
attempted to extract Peña from the back seat.
Peña fled, and Salinas pursued on foot. At Solis's
order, Salinas fired her taser at Peña, and the barbs
attached to Peña's back and scalp. She fell to the
ground with injuries to her face and teeth.
initially sued the city, alleging negligence under the TTCA,
then added § 1983 excessive-force claims against the
city, Salinas, and Solis. The city moved for judgment on the
pleadings, and the officers moved to dismiss for failure to
state a claim and raised the defense of QI. Upon removal to
federal court, Peña twice sought leave to amend her
state-court complaint, presumably to satisfy the federal
pleading standard. Both motions referenced her proposed
amended complaint, but an exhibit of the complaint was
attached only to her initial motion. The district court
looked only to Peña's second motion to amend and
found that allowing the remaining amendments proposed in that
motion would be futile. The court dismissed the claims
against the officers without reaching the QI defense, and it
entered judgment on the pleadings for the city.
asserts the district court erred in evaluating her complaint
under the federal "plausibility" standard instead
of Texas's more lenient "fair notice" standard.
She maintains that Federal Rule of Civil Procedure 8 does not
apply to filings before removal. This court has yet to
address that question squarely, but our closest precedent and
considerations of practicality weigh heavily against
removed action does not need to be repleaded "unless the
court orders it." Fed.R.Civ.P. 81(c)(2). In a removed
case, plaintiffs can rely on the state pleadings, whatever
the state pleading standard, absent a challenge to their
validity. See White v. State Farm Mut. Auto. Ins.
Co., 479 Fed.Appx. 556, 561 (5th Cir. 2012) (per
curiam). Where, as here, the defendants challenge the
pleadings, we conclude, as we will explain, that the federal
pleading standard applies.
International Energy Ventures Management, L.L.C. v.
United Energy Group, Ltd., 818 F.3d 193, 199 (5th Cir.
2016), this court's diversity jurisdiction depended on
whether a non-diverse defendant was properly joined before
removal. To answer that question, we first had to determine
whether the plaintiffs had stated a claim against the
non-diverse defendant in their state-court pleadings.
Id. We concluded that the pleadings must be reviewed
under the federal pleading standard because the question of
improper joinder "[a]t bottom . . . is solely about
determining the federal court's
jurisdiction." Id. at 202. Peña asks
that we distinguish International Energy on the
ground that its reasoning was anchored in the underlying
jurisdictional question. But there is no valid reason to
cabin our decision in that way. Applying contextually
dependent pleading standards to removed cases would bring
more confusion than clarity, especially in areas of federal
law with specialized pleading standards, intertwined with the
QI defense. Cf. Anderson v. Valdez, 845 F.3d 580,
589-90 (5th Cir. 2016). Upon removal, the federal pleading
complains this will unfairly prejudice plaintiffs, but our
liberal amendment rules prove to the contrary. After the
21-day period in which pleadings may be amended "as a
matter of course, " "[t]he court should freely give
leave [to amend] when justice so requires." Fed.R.Civ.P.
15(a)(1)-(2). Removal from a notice-pleading jurisdiction is
a natural time at which justice would call for the court to
permit such an amendment. See Faulkner v. ADT Sec.
Servs., Inc., 706 F.3d 1017, 1021 (9th Cir. 2013).
district court should not have denied Peña leave to
amend to conform to the federal standard. This circuit does
not require a complicated motion to amend, but only that
"the party requesting amendment" "set forth
with particularity the grounds for the amendment and the
relief sought." The failure to attach a copy of the
proposed complaint is not, on its own, fatal to a motion to
amend. Zaidi v. Ehrlich, 732 F.2d 1218, 1220 (5th
Cir. 1984); Davis v. United States, 961 F.2d 53, 57
(5th Cir. 1991). Though Peña failed to attach the
amended complaint to her second motion, she pointed out, in
both motions, that the case had been removed. Additionally,
the proposed complaint was her first pleading in federal
court upon removal. That is sufficient particularity to
permit amendment, and the district court thus abused its
discretion in penalizing Peña for her clerical
the failure of the district court to review the proposed
complaint does not, on its own, compel remand. "[W]here
the district court's denial of leave to amend was based
solely on futility, this court applies a de novo standard of
review 'identical, in practice, to the standard used for
reviewing a dismissal under Rule
12(b)(6).'" Under that standard, we must evaluate the
sufficiency of the proposed complaint and decide which, if
any, of Peña's claims survive the pleadings.
can assert her claims only to the extent they pass the
plausible-pleading test of Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). "To survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as
true, to 'state a claim to relief that is plausible on
its face.'" Id. (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
"Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice." Id. The city's motion for
judgment on the pleadings is subject to this same standard.
Doe v. MySpace, Inc., 528 F.3d 413, 428 (5th Cir.
Section 1983 Claims Against Salinas and Solis
outlined the proper procedural framework for addressing
§ 1983 claims at the pleading stage. Regardless of
whether QI is asserted, a district court must first
"determine whether the plaintiff has 'file[d] a
short and plain statement of his complaint, a statement that
rests on more than conclusions alone.'"
Anderson, 845 F.3d at 589-90 (quoting Schultea
v. Wood, 47 F.3d 1427, 1433 (5th Cir. 1995) (en banc)).
Only after the regular pleading requirement is satisfied can
the court "insist that a plaintiff file a reply tailored
to [the defendant's] answer [or motion to dismiss]
pleading the defense of qualified immunity."
Id. at 590 (quoting Schultea, 47 F.3d at
1433-34). In Anderson, we first evaluated whether
the complaint had sufficiently pleaded the elements of a
First Amendment retaliation claim; only then did we proceed
to the QI analysis. Id. at 590, 599. Here, the
district court granted the officers' motions to dismiss
without reaching QI. Under the above framework, we begin by
reviewing that determination in light of Peña's
proposed amended complaint.
asserts that Solis and Salinas used excessive force to seize
her in violation of the Fourth Amendment. Her proposed
amended complaint alleges that Vela approached to arrest her
and that she did not physically assault either Vela or her
father. While attempting the arrest, Vela threatened and
attempted to dry-stun Peña, but she ran away.
Peña claims that she was unarmed, not a threat to
third parties, and not suspected of a crime while she fled.
Peña was fleeing, Solis gave three orders to the
officers to fire their tasers. Salinas then fired hers while
running, and the barbs lodged in Peña's scalp and
back. Peña fell to the ground, "causing burns and
breaking two of her front teeth." Once she was on the
ground, Peña claims the electrical current continued
to flow; Solis saw her "shaking" and ordered
Salinas to turn off her taser. Peña alleges that
"Salians deliver[ed] more than [one] electrical exposure
charge" after she had been subdued.
state a claim for excessive force, Peña's proposed
complaint 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." Bazan ex rel. Bazan v.
Hidalgo Cty., 246 F.3d 481, 487 (5th Cir. 2001)
(citation omitted). The second and third elements collapse
into a single objective-reasonableness inquiry, see Scott
v. Harris, 550 U.S. 372, 381 (2007), guided by the
following Graham factors: "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." Graham v. Connor, 490 U.S. 386, 396
easily satisfies the injury prong. The central question is
whether she pleaded facts that plausibly suggest the
officers' conduct was objectively unreasonable. We
analyze the officers separately because they are alleged to
have participated in distinct ways: Whereas Solis gave the
order to tase, Salinas fired the neutralizing shot. Cf.
Kitchen v. Dallas Cty., 759 F.3d 468, 480 (5th Cir.
2014) (requiring separate QI analyses where the officers did
not act in unison).
presents two factual grounds for an excessive-force claim
against Salinas: (1) that Salinas used the taser to stop
Peña from fleeing and (2) that she continued to apply
an electrical charge to Peña after she had struck the
ground. The second allegation plausibly suggests objective
unreasonableness. In Cooper v. Brown, 844 F.3d 517,
523-24 (5th Cir. 2016), we distinguished the initial use of a
dog bite to restrain a suspect from the continued application
of that same bite once the suspect was no longer resisting.
We found it clearly established "that once an arrestee
stops resisting, the degree of force an officer can employ is
reduced." Id. at 524 (discussing Bush v.
Strain, 513 F.3d 492, 502 (2008); Newman v.
Guedry, 703 F.3d 757, 762 (5th Cir. 2012)). More
recently, in Darden v. City of Fort Worth, 866 F.3d
698, 706 (5th Cir. 2017), we held it objectively unreasonable
to tase a suspect once he had "put his hands in the
air" and was "no longer resisting
arrest." Hence, the continued tasing of Peña
once she had already hit the ground, and was no longer
resisting, states a well-recognized excessive-force claim.
initial tasing, however, presents a closer question, given
that Peña was fleeing. In Newman, which held
it objectively unreasonable for officers to tase a
non-resisting suspect, we specifically noted that "[n]o
one contends that Newman attempted to flee."
Newman, 703 F.3d at 763. The absence of any evidence
that the suspect had fled was significant likewise in
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