Carter v. Diamond URS Huntsville, LLC (175 F. Supp. 3d 711, 2016)

OPINION AND ORDER

MELINDA HARMON, UNITED STATES DISTRICT JUDGE

Pending before the Court in the above referenced cause, grounded in 42 U.S.C. § 1983 and the Fourth Amendment of the United States Constitution and alleging excessive force and unreasonable search and seizure, in addition to assault and battery and false imprisonment under Texas common law against Defendants/Officers Stacey Smith and Christopher Myers in their individual capacities only, are the following motions: (1) Defendants the City of Hunstville, Texas, Officer Stacey Smith, and Officer Christopher Myers’ motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6)(instrument #82); (2) Defendants City of Huntsville, Officer Stacey Smith, and Officer Christopher Myers’ opposed motion to sever claims (# 22); and (3) Defendants Diamond URS Huntsville, LLC d/b/a the Connection at Huntsville and Asset Campus Housing Inc.’s motion to join #22 (#24).

As a threshold matter, because Plaintiffs’ governing First Amended Complaint (#31) has dropped their earlier claims against Defendants Diamond URS Huntsville, LLC d/b/a the Connection at Huntsville and Asset Campus Housing Inc., the motion to join (# 24) is MOOT.

I. Defendants’ Motion for Severance

The Court addresses the severance issue first.

Federal Rule of Civil Procedure 21pro-vides, Misjoinder of parties is not a ground for dismissing an action. On motion or on its own, the court may at any time, on just terms, add or drop a party. The court may also sever any claim against a party.

A. Standard of Review

The district court has broad discretion to sever claims and parities in a lawsuit. Anderson v. Red River Waterway Com’n, 231 F.3d 211, 214 (5th Cir.2000). “Severance under Rule 21 creates two separate actions or suits where previously there was but one. Where a single claim is severed out of a suit, it proceeds as a discrete, independent action, and a court may render a final, appealable judgment in either one of the resulting two actions notwithstanding the continued existence of unresolved claims in the other.” United States v. O’Neill, 709 F.2d 361, 368 (5th Cir.1983). The Court should examine Fed. R. Civ. P. 20(a) to determine if the parties have been misjoined and should therefore be severed. Acevedo v. Allsup’s Convenience Stores, Inc., 600 F.3d 516, 521 (5th Cir.2010). Rule 20(a) permits individuals to “join in one action as plaintiffs if (A) they assert any right to relief jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence or series of transactions or occurrences; and (B) any question of law or fact common to all plaintiffs will arise in the action.”

The Fifth Circuit has not adopted a particular test to decide what is “the same transaction or occurrence” under Rule 20(a). Lodsys, LLC v. Brother Intern. Corp., No. 2:11-cv-90-JRG, 2012 WL 760729, at *2 (E.D.Tex. Mar. 8, 2012). Several of its district courts have used the Eighth Circuit’s “logically related” test for the “same transaction” requirement in Mosley v. GMC, 497 F.2d 1330, 1332-33 (8th Cir.1974)(“[A]ll ‘logically related’ events entitling a person to institute a legal action against another generally are regarded as comprising a transaction or occurrence”; “as used in Rule 20 [the terms] would permit all reasonably related claims for relief by or against different parties to be tried in a single proceeding. Absolute identity of all events is unnecessary.”)(citing 7 C. Wright, Federal Practice and Procedure § 1653 at 270 (1972)). Id. The “common question” can be satisfied by the presence of oply a single one. Texas Instruments, Inc. v. Citigroup Global Markets, Inc., 266 F.R.D. 143, 148 (N.D.Tex.2010)(“Texas Rule 40 provides that defendants may be joined together in the same action only if (1) ‘there is asserted against them jointly, severally, or in the alternative any right to relief in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences;’ and (2) at least one ‘question of law or fact common to all of them will arise in the action.’”) (citing inter alia Tex. R. Civ. P. 40(a), and 7 C. Wright, A. Miller, & M. Kane, Federal Practice & Procedure § 1653 (3d ed. 2002)).

In In re Rolls Royce Corp., 775 F.3d 671, 680 n. 40 (5th Cir.2014), the Fifth Circuit acknowledged that while it has not yet adopted a test for severance, a number of its district courts have applied the five-factor test in Paragon Office Servs., LLC v. UnitedHealthcare Ins. Co., No. 3:11-CV-2205-D, 2012 WL 4442368, at *1 (N.D. Sept. 26, 2012): “(1) whether the claims arise out of the same transaction or occurrence; (2) whether the claims present some common questions of law or fact; (3) whether settlement of the claims or judicial economy would be facilitated; (4) whether prejudice would be avoided if severance were granted; and (5) whether different witnesses and documentary proof are required for the separate claims.” ‘“[Severance will be refused if the court believes that it only will result in delay, inconvenience, or added expense.’” Id. quoting Wright & Miller, Fed. Prac. & Proc. § 1689 (3d ed. 2004). “’Under the Rules, the impulse is towards entertaining the broadest possible scope of action consistent with fairness to the parties; joinder of claims, parties and remedies is strongly encouraged.’” Acevedo, 600 F.3d at 521, quoting United Mine Workers v. Gibbs, 383 U.S. 715, 724, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966).

B. Defendants’ Argument

Defendants urge the Court to sever this action into two lawsuits because, as United States Magistrate Judge Frances Stacey observed in her Order (# 19 at pp. 1-2) of March 27, 2015, denying Defendants’ motion to disqualify, “This is a civil rights case involving claims that two police officers with the City of Huntsville Police Department (Stacey Smith and Christopher Myers) used excessive force against two unrelated Plaintiffs — Melisa Carter and Chris Smith — in two unrelated incidents.” Defendants maintain that Chris Smith had no involvement or any connection with the arrest of Melisa Carter and vice versa. Furthermore, Chris Smith has not alleged facts and cannot provide any evidence demonstrating that Stacey Smith had any connection with Chris Smith’s arrest. Instead, they argue, it is obvious that Chris Smith is suing his estranged wife, Stacey Smith, in order to gain an advantage in their divorce and child custody litigation. Thus, insist Defendants, Plaintiffs cannot assert any right to relief jointly or severally against all the Defendants and their claims do not arise out of the same transaction or occurrence. The claims of the two Plaintiffs do not share any common questions of law or fact. Even if there were one common question, the Court has the discretion to sever the claims to avoid prejudice and delay, to ensure judicial economy, and to safeguard principles of fundamental fairness at stake here.

The motion also points out that each Defendant here has asserted a defense of qualified immunity and argues that forcing these officers to a trial that includes unrelated claims from unrelated events would deprive them of protections under their immunity defense. Claims about the bad acts of either defendant would be irrelevant to the objective analysis required for their qualified immunity defense and would unfairly prejudice and deprive them of that defense’s protection and inadmissible character evidence under Federal Rules of Evidence 403, 404, and 608. Wicks v. Mississippi State Employment Servs., 41 F.3d 991, 994 (5th Cir.1994)(“in allowing limited discovery on the issue of qualified immunity would deny [party] the benefit of [its] qualified immunity defense, the most relevant being the protection from pretrial discovery”), citing Lion Boulos v. Wilson, 834 F.2d 504, 507-08 (5th Cir.1987)(‘“A defendant entitled to claim qualified immunity is shielded not only from liability, but also from ‘the costs of trial [and]..,the burdens of broad-reaching discovery.’”), quoting Harlow v. Fitzgerald, 457 U.S. 800, 816, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982).

C, Plaintiffs’ Response

In response (# 26) Plaintiffs claim that the two officers’ continuous course of conduct, i.e,, the ongoing use of excessive force and unlawful arrest by Officer Stacey Smith-Gellar (“Officer Stacey Smith”) and Officer Christopher Myers (“Officer Myers” or “Myers”) supports an essential element of their § 1983 claim against the City of Huntsville, i.e., a custom or policy of allowing its officers to violate civil rights. Thus there is a common question of law and fact here relating to qualified immunity as well as to the training, hiring and retention of these officers, and the grounds for Myers’ termination. These same two officers used excessive force and performed two illegal arrests within a week of each other, both for personal reasons and by virtue of being officers of the Huntsville Police Department, acting under color of state law. Plaintiffs claim that the two separate but closely related incidents were part of the same “series of transactions.”

D. Court’s Decision

The Court finds that the motion to sever should be denied. In their allegations against the three Defendants, Plaintiffs have joined claims against the two officers and the City of Huntsville in part to meet (1) the requirement of a policy or custom to impose liability on the City under § 1983; (2) the requirement that policy makers actually or constructively knew of the unconstitutional deficiencies in those policies or customs, which were highly predictable; and (3) the requirement that the customs or policies were the moving force behind the constitutional violation-of Plaintiffs’ rights and adopted with deliberate indifference to the rights of the citizens.

In Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 168, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993), the Supreme Court rejected any heightened pleading standard for section 1983 claims against municipalities and instead applied Rule 8(a)(2)’s requirement of “a short and plain statement of the claim showing the pleader is entitled to relief.” Plaintiffs’ First Amended Complaint (#31) alleges that “Myers had a history and pattern of abusing his office and power and was removed from the police force for excessive force and abuse, of a detainee.” Id., ¶3.1. It continues, ¶3.2,

Prior to the incidents at issue here, Myers while on duty and on patrol, assaulted a citizen he had stopped and, among other bad acts and physical assaults, shoved the detainee’s face into the truck lid of his vehicle in the heat of the summer -and held it there until the victim was severely burned by the hot metal. This felony conduct was recorded on Myers’ patrol car camera and viewed by his superiors shortly thereafter. An investigation ensued, but Myer’s [sic] was not suspended or disciplined, and was, in fact, allowed to continue as a patrolman. The Chief of Police and the City Manager of Huntsville were both aware of Myers’ bad acts and the Chief viewed the video of Myers’ assault.

The First Amended Complaint, ¶ 3.11-3.14 describes in detail the alleged violence with which Myers treated Plaintiff Carter in stopping her and arresting her in her own apartment, purportedly without probable cause. It also alleges facts of his intimidation in his unlawful stop and arrest of Plaintiff Chris Smith after he had already been questioned and released by other officers following an automobile accident. ¶ 3.18-3.21, 3.24. The claims against Defendant Officer Stacey Smith allege that she conspired with Myers and participated in an action with him to “get” Plaintiffs Chris Smith and Carter.

The joinder of the claims against the two officers is relevant to the common legal question of a custom or policy for imposition of liability on the City of Huntsville for the alleged unconstitutional violations of Plaintiffs’ rights. See, e.g., Battison v. City of Electra, No. 7:01-CV-037-R, 2001 WL 497769, at *2 (N.D.Tex. May 8, 2001)(In a § 1983 suit alleging that the City of Electra engaged in a pattern or practice of violating the constitutional rights of its citizens by engaging in negligent hiring, supervision and retention, the court opined, “Where a claim is based on a pattern or practice of conduct, such conduct can constitute the ‘series of transactions or occurrences’ required by Rule 20(a).”). The second prong of Rule 20(a) is met because both Plaintiffs allege the same constitutional violation of false arrest. Because of these common questions of law and fact, judicial economy would be served by trying these claims together. The joinder of these parties and claims therefore does not prolong the litigation nor unnecessarily increase its costs. Plaintiffs have shown why the claims should not be severed and accordingly the Court denies Defendants’ motion to sever. See also, e.g., King v. Ralston Purina Co., 97 F.R.D. 477, 480 (W.D.N.C.1983)(“Common sense says that claims alleged to be part of a ‘pattern or practice’ satisfy both t}ie ‘transaction’ and the ‘common question’ requisites of Rule 20(a).”).

Whether Plaintiffs have succeeded in stating a claim upon which relief may be granted, however, is a separate issue from severance and is raised by Defendants’ motion to dismiss under Rule 12(b)(6).

II. Defendants’ Motion to Dismiss (# 32)

A. Procedural History

This is the second time Defendants have moved to dismiss Plaintiffs’ pleadings. Previously the Court dismissed with prejudice Plaintiffs’ claims under the Fourteenth Amendment, the tort claims under Texas Tort Claims Act (false arrest, assault and battery, malicious prosecution, false imprisonment, negligence, and conspiracy) against Officers Smith and Myers and against the City of Huntsville, and their claims for damages for violations of the Texas Constitution, but otherwise denied the motion. # 28. It granted leave to Plaintiffs to file an amended pleading with viable claims under § 1983 and the Fourth Amendment. Thus the First Amended Complaint is Plaintiffs’ “second bite of the apple.”

B. Standard of Review

When a district court reviews a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), it must construe the complaint in favor of the plaintiff and take all well-pleaded facts as true. Randall D. Wolcott, M.D., P.A. v. Sebelius, 635 F.3d 757, 763 (5th Cir.2011), citing Gonzalez v. Kay, 577 F.3d 600, 603 (5th Cir.2009). The plaintiffs legal conclusions are not entitled to the same assumption. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)(“The tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.”), citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007); Hinojosa v. U.S. Bureau of Prisons, 506 Fed.Appx. 280, 283 (5th Cir.2012).

“While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations,... a plaintiffs obligation to provide the ‘grounds’ of his ‘entitlefment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do_” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1964-65, 167 L.Ed.2d 929 (2007)(citations omitted). “Factual allegations must be enough to raise a right to relief above the speculative level.” Id. at 1965, citing 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed. 2004)(“[T]he pleading must contain something more.. .than... a statement of facts that merely creates a suspicion [of] a legally cognizable right of action”). “Twombly jettisoned the minimum notice pleading requirement of Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80(1957)[“a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief’], and instead required that a complaint allege enough facts to state a claim that is plausible on its face.” St. Germain v. Howard, 556 F.3d 261, 263 n. 2 (5th Cir.2009), citing In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir.2007)(“To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead ‘enough facts to state a claim to relief that is plausible on its face.”’), (citing Twombly, 127 S.Ct. at 1974). “‘A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.’” Montoya v. FedEx Ground Package System, Inc., 614 F.3d 145, 148 (5th Cir.2010), quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). The plausibility standard is not akin to a “probability requirement,” but asks for more than a “possibility that a defendant has acted unlawfully.” Twombly, 550 U.S. at 556, 127 S.Ct. 1955. Dismissal is appropriate when the plaintiff fails to allege “’enough facts to state a claim to relief that is plausible on its face’” and therefore fails to “‘raise a right to relief above the speculative level.’” Montoya, 614 F.3d at 148, quoting Twombly, 550 U.S. at 555, 570, 127 S.Ct. 1955.

In Ashcroft v. Iqbal, 556 U.S. at 679, 129 S.Ct. 1937, the Supreme Court stated that “only a complaint that states a plausible claim for relief survives a motion to dismiss,” a determination involving “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” “[Tjhreadbare recitals of the elements of a cause of action, supported by mere conelusory statements do not suffice” under Rule 12(b). Iqbal, 129 S.Ct. at 1949. The plaintiff must plead specific facts, not merely conelusory allegations, to avoid dismissal. Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir.2000). “Dismissal is proper if the complaint lacks an allegation regarding a required element necessary to obtain relief ....” Rios v. City of Del Rio, Texas, 444 F.3d 417, 421 (5th Cir.2006), cert. denied, 549 U.S. 825, 127 S.Ct. 181, 166 L.Ed.2d 43 (2006).

C. Substantive Law

1. 1*2 U.S.C. § 1983

Title 42 U.S.C. § 1983 does not grant substantive rights, but provides a vehicle for a plaintiff to vindicate rights protected by the United States Constitution and other federal laws. Albright v. Oliver, 510 U.S. 266, 271, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994). It provides a cause of action for individuals who have been “depriv[ed] of [their] rights, privileges, or immunities secured by the Constitution and laws” of the United States by a person acting under color of state law. Id.

2. Municipal Liability Under §' 1983

• Municipalities and other bodies of local government are “persons” within the meaning of § 1983. Monell v. Department of Social Services, 436 U.S. 658, 690, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). “A municipality cannot be held liable solely because it employs a tortfeasor — or, in other words, a municipality cannot be held liable under § 1983 on a respondeat superior theory.” Id. at 691, 98 S.Ct. 2018. See also City of Canton v. Harris, 489 U.S. 378, 392, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989). The bar on vicarious liability means that the municipality can only be liable where the municipality itself causes the constitutional violation at issue. Monell, 436 U.S. 658, 98 S.Ct. 2018. A municipality may be liable under § 1983 if the execution of one of its customs or policies deprives a plaintiff of his constitutional rights. Monell, 436 U.S. at 690-91, 98 S.Ct. 2018. To avoid respondeat superior liability and to impose liability on the City, the plaintiff must establish both the .causal link (that the policy is the “moving force” behind the constitutional violation) and the City’s degree of culpability (“deliberate indifference” to the known or obvious consequences of the City’s unconstitutional policy). Bryan County v. Brown, 520 U.S. 397, 415, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997).

To state a claim for municipal liability under § 1983, a plaintiff must identify (a) a policy maker, (b) an official policy [or custom or widespread practice], and (c) a violation of constitutional rights whose “moving force” is the policy or custom, i.e., the deprivation of plaintiff’s constitutional rights was inflicted pursuant to that official custom or policy. Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th Cir.2001)(a plaintiff must show that the unconstitutional conduct is attributable to the municipality through some official custom or policy that is the “moving force” behind the constitutional violation)(ciimg Monell, 436 U.S. at 694, 98 S.Ct. 2018), cert. denied, 534 U.S. 820, 122 S.Ct. 53, 151 L.Ed.2d 23 (2001). The Fifth Circuit has defined an official policy for purposes of §' 1983 -‘as. “’[a] policy statement, ordinance, regulation or decision that is officially adopted and promulgated by the municipality’s law-making officials or by an official to whom the lawmakers have delegated policy-making authority.’” Okon v. Harris County Hospital District, 426 Fed.Appx. 312, 316 (5th Cir.2011), quoting Bennett v. City of Slidell, 735 F.2d 861, 862 (5th Cir.1984)(en banc), cert. denied, 472 U.S. 1016, 105 S.Ct. 3476, 87 L.Ed.2d 612 (1985). When a policymaker commits the act at issue, that act may establish the policy if the policymaker must be “unconstrained by policies imposed from a higher authority.” Okon, 426 Fed.Appx. at 316, citing Hampton Co. v. Nat’l Sur. LLC v. Tunica County, 543 F.3d 221, 227 (5th Cir.2008).

Alternatively, a policy may be “’a persistent widespread practice of city officials or employees, which, although not authorized by officially adopted and promulgated policy, is so common and well settled as to constitute a custom that fairly represents municipal policy.’” Id., citing id.., and Zarnow v. City of Wichita Falls, 614 F.3d 161, 169 (5th Cir.2010)(“A pattern of conduct is necessary only when the municipal actors are not policymakers”)[, cert. denied, 564 U.S. 1038, 131 S.Ct. 3059, 180 L.Ed.2d 887 (2011)]. “A pattern requires similarity and specificity; [p]rior indications cannot simply be for any and all ‘bad’ or unwise acts, but rather must point to the specific violation in question.., .A pattern also requires ‘sufficiently numerous prior incidents,’ as opposed to ‘isolated instances.’” Peterson v. City of Fort Worth, Texas, 588 F.3d 838, 851 (5th Cir.2009). “If actions of city employees are to be used to prove a custom for which the municipality is liable, those actions must have occurred for so long or so frequently that the course of conduct warrants the attribution to the governing body of knowledge that the objectionable conduct is the expected, accepted practice of city employees.” Webster v. City of Houston, 735 F.2d 838, 842 (5th Cir.1984); Peterson, 588 F.3d at 850. “A pattern requires similarity and specificity”; “[p]rior indications cannot simply be for any and all ‘bad’ or unwise acts, but rather must point to the specific violation in question.” Peterson, 588 F.3d at 851, citing Estate of Davis ex rel. McCully v. City of North Richland Hills, 406 F.3d 375, 383 (5th Cir.2005). “A plaintiff cannot eonclu-sorily allege a policy or a custom and its relationship to the underlying constitutional violation; instead the plaintiff must plead specific facts. Spiller v. City of Texas City, Police Dep’t, 130 F.3d 162, 167 (5th Cir.1997), citing Fraire v. Arlington, 957 F.2d 1268, 1277 (5th Cir.1992).

“Allegations of an isolated incident are not sufficient to show the existence of a custom or policy.” Fraire v. City of Arlington, 957 F.2d 1268, 1278 (5th Cir.1992); see also Rivera v. Houston I.S.D., 349 F.3d 244, 247 (5th Cir.2003)(“[I]solated unconstitutional actions by municipal employees will almost never trigger liability.”), citing Bd. of Cnty. Comm’rs v. Brown, 520 U.S. 397, 403, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997).

“The governing body of the municipality or an official to whom that body has delegated policy-making authority must have actual or constructive knowledge of such a custom.” Okon, 426 Fed.Appx. at 316, citing Bennett, 735 F.2d at 862. ‘“Actual knowledge may be shown by such means as discussions at council meetings or receipt of written information,”’ while “constructive knowledge ‘may be attributed to the governing body on the ground that it would have known of the violations if it had properly exercised its responsibilities, as, for example, where the violations were so persistent and widespread that they were the subject of prolonged public discussion or of a high degree of publicity.’” Id., citing Bennett v. City of Slidell, 728 F.2d 762, 768 (5th Cir.1984)(en banc), cert. denied, 472 U.S. 1016, 105 S.Ct. 3476, 87 L.Ed.2d 612 (1985).

“Deliberate indifference” is a “stringent standard, requiring proof that a municipal actor disregarded a known or obvious consequence of his action,” for which “[a] showing of simple or even heightened negligence will not suffice”; it requires a plaintiff to show that “‘in the light of the duties assigned to specific officers or employees the need for more or different training is so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the policymakers of the city can reasonably be said to have been deliberately indifferent to the need.’” Valle v. City of Houston, 613 F.3d 536, 547 (5th Cir.2010)(quoting City of Canton, 489 U.S. at 390, 109 S.Ct. 1197), cert. denied, 563 U.S. 935, 131 S.Ct. 2094, 179 L.Ed.2d 890 (2011). “Usually a plaintiff must show a pattern of similar violations, and in the case of an excessive force claim.. .the prior act must have involved injury to a third party.” Id.; Rodriguez v. Avita, 871 F.2d 552, 554-55 (5th Cir.1959). “[A] City policy of inadequate officer discipline could be unconstitutional if it was pursued with deliberate indifference toward the constitutional rights of citizens.” Piotrowski, 237 F.3d at 581.

To state a claim against a municipality under § 1983 that will not be dismissed under Rule 12(b)(6), an individual plaintiff can provide fair notice by “inter alia describing] (1) past incidents of misconduct by the defendant to others; (2) multiple harms that occurred to the plaintiff himself; (3) the involvement of multiple officials in the misconduct; or (4) the specific topic of the challenged policy or training inadequacy.... Those types of details, together with any elaboration possible, help to (1) ‘satisfy the requirement of providing not only ‘fair notice’ of the nature of the claim, but also ‘grounds’ on which the claim rests,’ and (2) ‘permits the court to infer more than the mere possibility of misconduct.’” Flanagan v. City of Dallas, Texas, 48 F.Supp.3d 941, 947 (N.D.Tex.2014), citing Thomas v. City of Galveston, 800 F.Supp.2d 826, 843-44 (S.D.Tex.2011); Twombly, 550 U.S. at 555 n. 3, 127 S.Ct. 1955; and Iqbal, 556 U.S. at 679, 129 S.Ct. 1937. For example in Flanagan, id. at 953-54, the district court found adequately pleaded a claim of excessive force by the Dallas Police Department (“DPD”) against the City of Dallas to survive a Rule 12(b)(6) challenge:

Plaintiffs have.. .pleaded several facts from which one could make a reasonable inference of a persistent, widespread practice by DPD officers or otherwise using excessive force rising to the level of a custom having the force, of official City policy. In particular, Plaintiffs alleged in their amended complaint that (1) the policy of the DPD to shoot first and ask questions later; (2) Councilman Caraway informed the media that there were training issues within the DPD that had resulted in the killing of an unarmed individual; (3) Dallas is at the top of the list of police misconduct statistics in the South along with several other Texas cities; (4) Dallas is ranked number 11 in police misconduct incidents; (5) the total number of officer-involved shootings was 144; (6) 86 grand juries have been convened to investigate police misconduct (although only two indictments have been returned); (7) 60 unarmed African-American men have been killed by DPD officers over the past 13 years; (8) at least 12 other shootings of unarmed individuals by DPD officers took place during the year of Allen’s death (Plaintiffs describe the derails of three of the shootings, all of which occurred after the incident involving Allen [and pointing out similarities to allegations regarding Allen’s shooting in that the individuals involved were not provoking or resisting the police when they were shot]); and (9) there are 94 ■open DPD internal affairs investigation into officer-involved shootings.

The district court further noted, id. at 954,

Plaintiffs allege that, on average, more than four unarmed people have been killed by DPD officers each year for the past dozen years and that there are nearly 100 open internal investigations into such shootings and have been nearly as many grand jury proceedings. While it is a close call, taking all of their allegations to be true, Plaintiffs have pled sufficient facts, at the motion to dismiss stage, from which one could make a reasonable inference of a persistent, widespread practice by DPD officers of using excessive force rising to the level of a custom having the force of official City policy.

Id. , citing Oporto v. City of El Paso, No. 10-CV-110-KC, 2010 WL 3503457, at *6 (W.D.Tex.2010), and Rivera v. City of San Antonio, No. SA-06-CA-235-XR, 2006 WL 3340908, at *12 (W.D.Tex.2006).

The right to be free from excessive force during a seizure is clearly-established. Poole v. City of Shreveport, 691 F.3d 624, 627 (5th Cir.2012), citing Deville v. Marcantel, 567 F.3d 156, 169 (5th Cir.2009)(per curiam). To state a claim of excessive force in a seizure under the Fourth Amendment, the plaintiff must demonstrate (1) an injury (2) resulting directly and only from a use of force that was clearly excessive, and (3) that the excessiveness of the force was clearly unreasonable. Tarver v. City of Edna, 410 F.3d 745, 751 (5th Cir.2005). The third prong depends on the “totality of the circumstances.” Tennessee v. Garner, 471 U.S. 1, 8-9, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985). The court should consider “the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Graham, 490 U.S. at 396, 109 S.Ct. 1865. The key issue is “whether the officers’ actions are ‘objectively reasonable in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.’” Poole, 691 F.3d at 628, quoting Graham, 490 U.S. at 397, 109 S.Ct. 1865. The analysis must be objective, and the court must view the officer’s use of force “from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Id. citing id. The court must balance the amount of force used against the need for that force and consider that police officers are often forced to make split-second judgment in situations that are tense, uncertain, and rapidly evolving. Graham, 490 U.S. at 396, 109 S.Ct. 1865. “An officer’s evil intentions will not make a Fourth Amendment violation out of an objectively reasonable use of force; nor will an officers’s good intentions make an objectively unreasonable use of force constitutional.” Id. at 397, 109 S.Ct. 1865.

It is clearly established Fourth Amendment law that an arrest must be based on probable cause, which “exists when ‘the facts and circumstances within the officer’s knowledge... are sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the circumstances shown, that the suspect has committed, is committing, or is about to commit an offense.’” Bosarge v. Mississippi Bureau of Narcotics, 796 F.3d 435, 442 (5th Cir.2015), citing Club Retro, L.L.C. v. Hilton, 568 F.3d 181, 206, 204 (5th Cir.2009). “[R]easonable mistakes by police officers, even leading to the arrest of the wrong person, do not implicate the Fourth Amendment.” Id. To allege a section 1983 claim, the plaintiff must show that the defendant did not have probable cause to arrest the plaintiff. Haggerty v. Texas Southern Univ., 391 F.3d 653, 655 (5th Cir.2004)

The real party in interest in a suit against a person in his official capacity is the governmental entity and not the named official. Hafer v. Melo, 502 U.S. 21, 25, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991). See also Kentucky v. Graham, 473 U.S. 159, 165-66, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985)(“Official-capacity suits... ‘generally represent only another way of pleading an action against an entity of which the officer is an agent.’”), citing Monell v. New York City Dept. of Social Services, 436 U.S. 658, 690 n. 55, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Thus suit against individual Defendants Myers and Stacey Smith in their official capacities is a suit against the City and must be pleaded as such.

5. Excessive Force

To prevail on a § 1983 excessive force claim in violation of the Fourth Amendment, a plaintiff must show (1) that he was seized, (2) that he suffered an injury, (3) which “resulted directly and only from the use of force that was excessive to the need, and that (4) the force used was objectively unreasonable.” Flores v. Palacios, 381 F.3d 391, 396 (5th Cir.2004). “To determine whether a seizure was objectively reasonable, and thus whether an injury is cognizable, we ask whether the totality of the circumstances justified [that] particular sort of search or seizure,” balancing the “amount of force used against the need for force,” Id. at 398-99. See also Carnaby v. City of Houston, 636 F.3d 183, 187 (5th Cir.2011)(“To prevail on a Fourth Amendment excessive force claim, a plaintiff must establish: (1) an injury; (2) that the injury resulted directly from the use of excessive force; and (3) the excessiveness of the force was unreasonable.”) To decide whether the seizure was objectively reasonable, generally the court must ask if the totality of the circumstances justified that kind of search or seizure. Id., citing Tennessee v. Garner, 471 U.S. 1, 8-9, 105 S.Ct 1694, 85 L.Ed.2d 1 (1985), Nevertheless, the Fifth Circuit has narrowed the test and held that “‘[t]he excessive force inquiry is confined to whether the [officer] was in danger at the moment of the- threat that resulted in the [officer’s] shooting.’ Therefore, any of the officers’ actions leading up to the shooting are not relevant for purposes of an excessive force inquiry in this Circuit.” Harris v. Serpas, 745 F.3d 767, 772 (5th Cir.2014), quoting Bazan ex rel. Bazan v. Hidalgo County, 246 F.3d 481, 493 (5th Cir.2001)(“The excessive force inquiry is confined to whether the Trooper was in danger at the moment of the threat that resulted in the Trooper’s shooting Bazan.-‘[R]egardless of what had transpired up until the shooting itself, [the suspect’s] movements gave the officer reason to believe at that moment, that there was a threat of physical harm [citations] omitted [emphasis in original].’”), citing Young v. City of Killeen, 775 F.2d 1349, 1353 (5th Cir.1985)(finding no liability where “only fault found against [the officer] was his negligence in creating a situation where the danger of such a mistake would exist”). Furthermore the law “does not require the court to determine whether an officer was in actual, imminent danger of serious injury, but rather, whether ‘the officer reasonably believe[d] that the suspect pose[d] a threat of serious harm to the officer or to others.” Id. at 773, quoting Rockwell v. Brown, 664 F.3d 985, 991 (5th Cir.2011), cert. denied, - U.S. -, 132 S.Ct. 2433, 182 L.Ed.2d 1062 (2011). Furthermore, ‘“[t]he reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.’” Id,, quoting Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989).

The objective reasonableness of the force used requires the court ‘to balance the amount of force used against the need for that force. Id. at 399, 109 S.Ct. 1865. “It is objectively unreasonable to use deadly force ‘unless it is necessary to prevent a suspect’s escape and the officer has probable cause to believe that the suspect poses, a significant threat of death or serious physical injury to the officer or others.” Flores v. City of Palacios, 381 F.3d 391, 399 (5th Cir.2004), quoting Tennessee v. Garner, 471 U.S. 1, 3, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985). See also Ontiveros v. City of Rosenberg, 564 F.3d 379, 382 (5th Cir.2009)(“An officer’s use of deadly force is presumptively reasonable when the officer has reason to believe that the suspect poses a threat of serious harm to the officer or to others.”). The reasonableness of the force must be judged from the view of a reasonable officer on the scene. Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989).

Moreover, the resulting injury must “be more than a de minimis injury and must be evaluated in the context in which the force was deployed.” Glenn v. City of Tyler, 242 F.3d 307, 314 (5th Cir.2001). See, e.g., Tarver v. City of Edna, 410 F.3d 745, 751-52 (5th Cir.2005)(finding plaintiff faded to show requisite injury because he did “not allege any degree of physical harm greater than de minimis from the handcuffing”); Glenn v. City of Tyler, 242 F.3d 307, 315 (5th Cir.2001)(concluding that “handcuffing too tightly, without more, does not amount to excessive force”). Only substantial psychological injuries are sufficient to' meet the injury element of a claim for excessive force Under the Fourth Amendment. Flores, 381 F.3d at 397-98.

4: Unreasonable Search and Seizure Under § 1983

.The Fourth Amendment protects ‘the security a man relies upon when he places himself or his property within a constitutionally protected area, be it his home or his office, his hotel room or his automobile. There he is protected from unwarranted governmental intrusion. And when he puts something in his filing cabinet, in his desk drawer, or in his pocket, he has a right to know it will be secure from an unreasonable search of an unreasonable seizure.

Hoffa v. U.S., 385 U.S. 293, 301, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966).

The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const, amend. IV. Unless there is consent or exigent circumstances, “entry into a home to conduct a search or make an arrest is unreasonable under the Fourth Amendment unless done pursuant to a warrant.” Steagald v. U.S., 451 U.S. 204, 211-12, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981), citing Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), and Johnson v. U.S., 333 U.S. 10, 13-15, 68 S.Ct. 367, 92 L.Ed. 436 (1948). See also Osborne v. Harris County, Texas, 97 F.Supp.3d 911, 924 (S.D.Tex.2015)(“’[S]earches and seizures inside a home without a warrant are presumptively unreasonable.’”), citing Brigham City v. Stuart, 547 U.S. 398, 403, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006).

It is also well established that a warrantless arrest under the Fourth Amendment must be based on probable cause, i.e., when the totality of facts and circumstances within a police officer’s knowledge at the moment of the arrest are sufficient for a reasonable person to conclude that the suspect had committed or was committing an offense. Hogan v. Cunningham, 722 F.3d 725, 731 (5th Cir.2013); U.S. v. Wadley, 59 F.3d 510, 512 (5th Cir.1995). For probable cause there mpst be more than a bare suspicion of wrongdoing, but substantially less that what is needed to support a conviction. Wadley, 59 F.3d at 512. The purpose of requiring a warrant is to permit a neutral judicial officer to determine whether police have probable cause to make an arrest or conduct a search. Id. at 212, 101 S.Ct. 1642.

The interests protected by an arrest warrant are different from those of a search warrant. Id. at 213, 10l’ S.Ct. 1642. An arrest warrant is issued by a magistrate judge if the petitioner shows that probable cause exists to believe that the subject of the warrant has committed an offense, and it mainly exists to protect an individual from an unreasonable seizure. Id. On the other hand, a search warrant “is issued upon a showing of probable cause to believe that the legitimate object of a search is located in a particular place, and therefore safeguards an individual’s interest in the privacy of his home and possessions against the unjustified intrusion of the police.” Id. “‘An action is ‘reasonable’ under the Fourth Amendment, regardless of the individual officer’s state of mind, ‘as long as the circumstances, viewed objectively, justify [the] action.’” Osborne, 97 F.Supp.3d at 924, citing U.S. v. Jones, 239 F.3d 716, 720 (5th Cir.2001). “Unlawful detention and arrest claims ‘implicate the Fourth Amendment’s proscription against unreasonable seizures.’” Id. at 920-21, citing Peterson v. City of Fort Worth, Texas, 588 F.3d 838, 845 (5th Cir.2009).

Generally there are three kinds of encounters between police and an individual: (1) “A consensual encounter, in which the individual willingly agrees to speak to police, may be initiated by police without any objective level of suspicion,” and without more, does not constitute a Fourth Amendment seizure; (2) “A limited investigative stop is permissible if there is a ‘reasonable suspicion’ that a person has committed or is about to commit a crime”; and (3) “An arrest must be based on probable cause.” Osborne, 97 F.Supp.3d at 931.

5. Qualified Immunity for Officers in their Individual Capacity . Under § 1983

Qualified immunity, an affirmative defense, protects government officials in their personal capacity performing discretionary functions not only from suit, but from “liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982); Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 815, 172 L.Ed.2d 565 (2009). Thus the Court examines whether the “officer’s conduct violated a constitutional right,” and “whether the right was clearly established” at the time of the conduct. Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). Either prong may be addressed first. Pearson, 129 S.Ct. at 808. A right is clearly established when “the contours of the right [are] sufficiently clear [such] that a reasonable official would understand that what he is doing violated that right.” Wernecke v. Garcia, 591 F.3d 386, 392 (5th Cir.2009)(citations omitted). See also Freeman v. Gore, 483 F.3d 404, 411 (5th Cir.2007)(the court applies an objective standard “based on the viewpoint of a reasonable official in light of the information available to the defendant and the law that was clearly established at the time of defendant’s actions.”). To be clearly established, “‘[t]he contours of the right must be sufficiently clear that a reasonable official would understand what he is doing violates that right.’” Kinney v. Weaver, 367 F.3d 337, 349-50 (5th Cir.2004), quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). “The ‘clearly established’ standard does not mean that official’s conduct is protected by qualified immunity unless ‘the very action in question has previously been held unlawful.’” Id. at 350, quoting Anderson, 483 U.S. at 640, 107 S.Ct. 3034. “Where no controlling authority specifically prohibits a defendant’s conduct, and when the federal circuit courts are split on the issue, the law cannot be said to be clearly established.” Morgan v. Swanson, 659 F.3d 359, 372 (5th Cir.2011), cert. denied, - U.S. -, 132 S.Ct. 2740, 183 L.Ed.2d 614 (2012). Officials who act reasonably but mistakenly are entitled to qualified immunity; the defense protects all government employees but “the plainly incompetent or those who knowingly violate the law.” Anderson, 483 U.S. at 641, 107 S.Ct. 3034; Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986). “[A] defendant’s acts are held to be objectively reasonable unless all reasonable officials in the defendant’s circumstances would have then known that the defendant’s conduct violated the United States Constitution or the federal statute as alleged by the plaintiff.” Thompson v. Upshur County, Texas, 245 F.3d 447, 457 (5th Cir.2001). The officer is “entitled to qualified immunity if his or her conduct was objectively reasonable in light of the legal rules that were clearly established at the time of his or her actions,” even if the conduct violated the plaintiffs constitutional right. McClendon v. City of Columbia, 305 F.3d 314, 323 (5th Cir.2002)(ew banc).

Although qualified immunity is an affirmative defense, “plaintiff has the burden to negate the assertion of qualified immunity once properly raised.” Collier v. Montgomery, 569 F.3d 214, 217 (5th Cir.2009). To meet this burden the plaintiff must allege facts showing that the defendants committed a constitutional violation under the current law and that the defendants’ actions were objectively unreasonable in light of the law that was clearly established at the time of the actions complained of. Atteberry v. Nocona General Hosp., 430 F.3d 245, 253 (5th Cir.2005). In negating the defense, the plaintiff cannot rely on conclusory allegations and assertions, but must raise genuine issues of material fact as to the reasonableness of the defendant’s conduct. Michalik v. Hermann, 422 F.3d 252, 262 (5th Cir.2005). The reasonableness of an officer’s use of force “must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989).

In Elliott v. Perez, 751 F.2d 1472, 1473 (5th Cir.1985), the Fifth Circuit held that when defendant-official raises a qualified immunity defense in his individual capacity, a heightened pleading standard must be met by Plaintiff to show with factual detail and particularity why the defendant official cannot maintain the qualified immunity defense. In Schultea v. Wood, 47 F.3d 1427, 1429-34 (5th Cir.1995)(en banc), discussing development of qualified immunity defense and pleading rules, the Fifth Circuit further opined, “When a public official pleads the affirmative defense of qualified immunity in his answer, the district court may, on the official’s motion or its own, require the plaintiff to reply to that defense in detail. By definition, the reply must be tailored to the assertion of qualified immunity and fairly engage its allegations. A defendant has an incentive to plead his defense with some particularity because it has the practical effect of requiring particularity in the reply.” See also Floyd v. City of Kenner, La., 351 Fed.Appx. 890, 893 & n. 2 (5th Cir.2009).

In Morgan v. Hubert, 335 Fed.Appx. 466, 472-73 (5th Cir.2009), the Fifth Circuit reviewed Schultea’s standard (requiring plaintiff to support a “claim with sufficient precision and factual specificity to raise a genuine issue as to the illegality of defendant’s contact at the time of the alleged acts”). The panel pointed to the reasoning in Schultea in requiring a heightened pleading standard in the face of a defendant’s assertion of qualified immunity:

We did not ground any such requirement in Rule 9(b), but nevertheless required a plaintiff to plead more than conclusions. Specifically, we reasoned that “a plaintiff cannot be allowed to rest on general characterizations, but must speak to the factual particulars of the alleged actions, at least when those facts are known to the plaintiff and are not peculiarly within the knowledge of defendants [emphasis added by Morgan panel].” “Heightened pleading requires allegations of fact focusing specifically on the conduct of the individual who caused the plaintiffs’ injury.” Reyes v. Sazan, 168 F.3d 158, 161 (5th Cir.1999).

Morgan, 335 Fed.Appx. at 469-70, citing Schultea, 47 F.3d at 1432-34.

6. False Arrest Under Federal Law

The Fourth Amendment right to be free from false arrest — arrest without probable cause — was clearly established when Melisa Carter and Chris Smith were arrested. Gerstein v. Pugh, 420 U.S. 103, 111-12, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975). The only issue regarding warrantless false arrest and pretrial confinement is whether there is probable cause for detaining the arrested person pending further proceedings. O’Dwyer v. Nelson, 310 Fed.Appx. 741, 745 (5th Cir.2009); Haggerty v. Tex. S. Univ., 391 F.3d 653, 656 (5th Cir.2004)(for false arrest or false imprisonment a plaintiff must show that the defendant did not have probable cause to arrest him.). Probable cause has been defined by the Supreme Court as the “facts and circumstances within the. officer’s knowledge that are sufficient to warrant a prudent person or one of reasonable caution, in believing in the circumstances shown, that the suspect has committed, is committing, or is about to commit an offense.” Michigan v. DeFillippo, 443 U.S. 31, 37, 99 S.Ct. 2627, 61 L.Ed.2d 343 (1979), quoted by Piazza v. Mayne, 217 F.3d 239, 245-46 (5th Cir.2000).

To overcome a qualified immunity defense, the plaintiff must show that the officers could not reasonably believe that they had probable cause to arrest the plaintiff for any crime. Id.; Cole v. Carson, 802 F.3d 752, 764 (5th Cir.2015)(“[T]he relevant actors must be aware of facts constituting probable cause to arrest or detain the person for any crime.”). “[E]ven law enforcement officials who reasonably but mistakenly conclude that probable cause is present are entitled to immunity.” Club Retro, L.L.C. v. Hilton, 568 F.3d 181, 206 (5th Cir.2009). The use of fabricated evidence to obtain a person’s arrest can violate the Fourth Amendment. Cole, 802 F.3d at 763-64.

7. Assault and Battery Under Texas Common Law

The elements of battery under Texas common law are (1) a harmful or offensive contact (2) with a plaintiffs person; the elements of assault are (1) apprehension of (2) an immediate battery. Jackson v. Texas Southern Univ., 997 F.Supp.2d 613, 632 (S.D.Tex.2014), citing Doe v. Beaumont I.S.D., 8 F.Supp.2d 596, 616 (E.D.Tex.1998). Although the two torts are “related but conceptually distinct,” the Texas Penal Code § 22.01(a) joins the two common law torts under its definition of “assault.” City of Watauga v. Gordon, 434 S.W.3d 586, 589 (Tex.2014). As a result, a number of civil courts mix them together under the term “assault.” Id. See, e.g., Hamilton v. Pechacek, 319 S.W.3d 801, 811 (Tex.App.-Fort Worth 2010)(citing Gibbins v. Berlin, 162 S.W.3d 335, 340 (Tex.App.-Fort Worth 2005) “A person commits an assault by intentionally, knowingly or recklessly causing bodily injury to another.”). Relying on the Restatement (Second) of Torts § 18, the Texas Supreme Court noted “that it was the offensive nature of the contact, not its extent, that made the contact actionable; ‘Personal indignity is the essence of an action for battery; and consequently the defendant is liable hot only for contacts which do actual physical harm, but also for those which are offensive and insulting.’” City of Watauga, 434 S.W.3d at 590.

“The actions of a police officer in making an arrest necessarily involve a battery, although the conduct may not be actionable because of privilege.” City of Watauga v. Gordon, 434 S.W.3d at 594. A police officer is privileged to use reasonable force. Id. citing Tex. Dep’t of Pub. Safety v. Petta, 44 S.W.3d 575, 579 (Tex.2001). Under Texas common law, a police officer is not liable for assault if he only uses force reasonably necessary to effectuate the arrest. Petta, 44 S.W.3d at 579 (A police officer may not use force greater than necessary to make an arrest.). The reasonably prudent officer standard is used to determine if there has been an assault. Spencer v. Rau, 542 F.Supp.2d 583, 593 (W.D.Tex.2007), citing Telthorster v. Tennell, 92 S.W.3d 457, 465 (Tex.2002)(“To establish good faith, Officer Tel-thorster must show that a reasonably prudent officer, under the same or similar circumstances, could have believed that his conduct was justified based on the information he possessed when the conduct occurred”)-

8. Official Immunity Under Texas Law

Official immunity is an affirmative defense that may be raised by a government official who has been sued in his individual capacity. Texas A & M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 843 (Tex.2007). It is known by various terms, including “official immunity,” “qualified immunity,” “quasi-judicial immunity,” and “discretionary immunity.” Methodist Hospitals of Dallas v. Miller, 405 S.W.3d 101, 104 n. 5 (Tex.App.-Dallas 2012).

The official immunity defense under Texas law is “substantially the same” as that of federal qualified immunity. Crostley v. Lamar County, Texas, 717 F.3d 410, 424 (5th Cir.2013). Under the affirmative defense of official immunity, a government employee may be immune from a suit that arises from (1) his performance of discretionary duties (2) in good faith, (3) if he was acting in the course and scope of his authority. City of Brazoria, Texas v. Ellis, No. 14-14-00322-CV, 2015 WL 3424732, at *4 (Tex.App.-Houston [14th Dist.] May 28, 2015), citing City of Pasadena v. Belle, 297 S.W.3d 525, 530 (Tex. App.-Houston [14th Dist.] 2009), and Green v. Alford, 274 S.W.3d 5,16 n. 11 (Tex.App.-Houston [14th Dist.] 2008, pet. denied). An action involving personal deliberation, decision, and judgment is discretionary, while actions that require obedience to orders or the performance of a duty regarding which the actor has no choice are ministerial. City of Lancaster v. Chambers, 883 S.W.2d 650, 654 (1994). Texas courts have held that police officers are exercising discretion when performing their duties. Id., citing Dent v. City of Dallas, 729 S.W.2d 114, 117 (Tex.App.-Dallas 1986, writ ref'd n.r.e.)(holding officer was performing discretionary act in deciding when and how to arrest suspect), cert. denied, 485 U.S. 977, 108 S.Ct. 1272, 99 L.Ed.2d 483 (1988). Under the official immunity defense, sometimes called the doctrine of qualified “good faith” immunity, good faith is “a standard of objective legal reasonableness that disregards the police officer’s subjective state of mind.” Id., citing Belle, 297 S.W.3d at 530. An officer acts in good faith if a reasonably prudent officer, under the same or similar circumstances, could have believed that his conduct was lawful in light of clearly established law and the information possessed by the official at the time the conduct occurred. Id. at 656. “To controvert the officer’s summary judgment proof on good faith, the plaintiff must do more than show that a reasonably prudent officer could have decided to stop the [action]; the plaintiff must show that ‘no reasonable person in the defendant’s position could have thought the facts were such that they justified defendant’s actions.” Id. at 657, citing inter alia Walton v. City of Southfield, 995 F.2d 1331, 1336 (6th Cir.1993)(“How-ever, if genuine issues of material fact exist as to whether the defendants did commit acts that would violate a clearly established right, then summary judgment on qualified immunity is improper.”). Qualified or good faith immunity is not available if the officer asserting that affirmative defense “took the action with malicious intention to cause a deprivation of constitutional rights or other injury.” Wood v. Strickland, 420 U.S. 308, 322, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975).

The burden of proof is first on the officers to show they are entitled to official immunity from Plaintiffs’ claims. Id. citing id. Defendants bear the burden to prove conclusively that “a reasonably prudent police officer, under the same or similar circumstances, could have believed his actions were justified based on the information that he possessed at the time.” Id. citing id. Requiring a balancing test, good faith is judged on how a reasonably prudent officer could have assessed the need, i.e., the urgency of the circumstances requiring police intervention, to which an officer responds and the officer’s course of action, based on his perception of the facts at the time of the event. Id., citing Wadewitz v. Montgomery, 951 S.W.2d 464, 467 (Tex.1997). Then in order to rebut such a showing by Defendants, Plaintiffs must then demonstrate that “no reasonable person in the officer’s position could have thought the facts were such that they justified the officer’s actions.” Id., citing id. The Texas Supreme Court opined in Wadewitz at 467, that for rebuttal and to raise a genuine issue of material fact for trial, a party must address the following need/risk factors:

In the context of an emergency response, need is determined by factors such as the seriousness of the crime or accident to which the officer responds, whether the officer’s immediate presence is necessary to prevent injury or loss of life or to apprehend a suspect, and what alternative courses of action, if any, are available to achieve a comparable result. The ‘risk’ aspect of good faith, on the other hand, refers to the countervailing public safety concerns: the nature and severity of harm that the officer’s actions could cause (including injuries to bystanders as well as the possibility that an accident would prevent the officer from reaching the scene of the emergency), the likelihood that any harm would occur, and whether any risk of harm would be clear to a reasonably prudent officer.

9. Allegations of Plaintiffs’ First Amended Complaint (# 31)

Plaintiffs allege that “Myers had a history and pattern of abusing his office and power and was removed from the police force for excessive force and abuse of a detainee.” # 31, ¶ 3.1. As noted above, they allege that before the incidents involving Plaintiffs here, as evidenced by the video camera in his police car, Myers, while on patrol, stopped a man, pushed his face against the lid of his truck in summer heat and held it there until the detainee was severely burned. During the investigation that followed, his superiors reviewed the tapes, but did not suspend or discipline Myers, and allowed him to continue patrolling, although they did refer the matter to the district attorney for presentation to a Grand Jury. Id. at ¶¶ 3.2-3.3. The Chief of Police and the City Manager were aware of Myers’ misconduct and the Chief watched the video of the assault. The City’s failure to remove Myers from patrolling the streets, to discipline or suspend or terminate him or place him under constant supervision, constituted deliberate indifference to -the right of citizens. Id. at ¶ 4.4. Myers was ultimately indicted by the Grand Jury for Felony Official Oppression based on this incident and pled guilty, agreeing never to work again in law enforcement. Id. at ¶ 3.23.

Defendant Officer Stacey Smith, in the midst of a bitter divorce from Plaintiff Officer Chris Smith, was a close friend of Myers and supported Myers despite his misconduct. They, “with malice and in furtherance of personal vendettas, which they subjectively and objectively knew to be violations of the Plaintiffs’ civil rights,” and other officers, discussed the matter and plotted to “get Chris” and even warned Chris Smith that “Stacey, Myers and her crew are gunning for you.” Id. at ¶¶4.2 and 3.5. Stacey Smith purportedly threatened Chris Smith that she would use her position as a police officer against him. Id. at ¶ 3.5.

Plaintiff Melisa Carter (“Carter”) and Defendant Stacey Smith both live at the Connection Apartments in Huntsville, Texas. The complaint asserts that Stacey Smith is easily offended and that