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Pena v. City of Rio Grande City, Texas

United States Court of Appeals, Fifth Circuit

January 12, 2018

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.

         Appeal from the United States District Court for the Southern District of Texas

          Before SMITH, OWEN, and HIGGINSON, Circuit Judges.


         Maria 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").[1] 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.


         Peña 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.

         Peña 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.


         Peña 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.[2] This court has yet to address that question squarely, but our closest precedent and considerations of practicality weigh heavily against Peña's position.

         A 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.

         In 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.[3] 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 standards control.

         Peña 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).

         The 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."[4] 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[5] in penalizing Peña for her clerical error.

         Nonetheless, 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).'"[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.


         Peña can assert her claims only to the extent they pass the plausible-pleading test of Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).[7] "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. 2008).

          A. Section 1983 Claims Against Salinas and Solis

         We have 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.

         Peña 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.

         As 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.

         To 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 (1989).

         Peña 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).

         1. Salinas

         Peña 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."[8] 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.

         The 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 Deville v. Marcantel, 567 ...

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