ANDREW W. AUSTIN, Magistrate Judge.
Before the Court are: Defendants' 12(b)(1) Motion for Dismissal of Assault and Battery Claims (Dkt. No. 24); Plaintiffs' Response to Defendants' Motion for Dismissal of Assault & Battery Claims (Dkt. No. 27); and Defendants' Reply in Support of their Motion for Dismissal of Assault & Battery Claims (Dkt. No. 25). The undersigned submits this Report and Recommendation to the United States District Court pursuant to 28 U.S.C. §636(b) and Rule 1 of Appendix C of the Local Rules of the United States District Court for the Western District of Texas.
The Plaintiffs (collectively "Orr") bring this suit alleging damages arising from the shooting death of Ahmade Jabbar Bradley. One of the causes of action they have brought is a state law claim of assault and battery against Officer Copeland individually. Dkt. No. 1 at 5-7. The Complaint alleges that on April 5, 2012, Officer Copeland stopped Bradley for a traffic infraction, and detained him to investigate a potential narcotics offense. Dkt. No. 1 at 3-4. After stopping and speaking briefly with Officer Copeland, Bradley drove away, and a pursuit ensured. Id. Eventually, Bradley stopped his car and began running. Officer Copeland caught up with Bradley and a struggle ensued, which ended with Officer Copeland shooting and killing Bradley. Id.
Officer Copeland moves to dismiss the assault and battery claim, pursuant to the terms to TEX. CIV. PRAC. REM. CODE § 101.106(f).
This motion is brought pursuant to Federal Rule of Civil Procedure 12(b)(1), asserting the Court lacks subject matter jurisdiction over the assault and battery claim. In evaluating a challenge to subject matter jurisdiction, the Court may weigh the evidence and resolve factual disputes. See Montez v. Dep't of Navy, 392 F.3d 147, 149 (5th Cir. 2004). In conducting its inquiry, the Court may consider: (1) the complaint alone; (2) the complaint supplemented by undisputed facts; or (3) the complaint supplemented by undisputed facts plus the Court's resolution of disputed facts. Id. Here the Court is basing its decision on the allegations in the complaint alone.
Officer Copeland brings his motion pursuant to § 101.106(f) of the TTCA. That section provides:
TEX. CIV. PRAC. & REM. CODE § 101.106(f). The TTCA strongly favors dismissal of suits against government employees. Tipps v. McCraw, 945 F.Supp.2d 761, 766 (W.D. Tex. 2013). To obtain dismissal under this section, the employee must show that the alleged tort was committed in the scope of his employment, and that the claim could have been brought against the governmental unit under the TTCA. Id.
"Scope of employment" is defined in the TTCA as "the performance for a governmental unit of the duties of an employee's office or employment and includes being in and about the performance of a task lawfully assigned to an employee by competent authority." TEX. CIV. PRAC. & REM. CODE ANN. § 101.001(5). Courts hold that a police officer who uses excessive force is still acting within the "scope of employment" for purposes of the TTCA. Tipps, 945 F. Supp. 2d at 766-67; City of Lancaster v. Chambers, 883 S.W.2d 650, 658 (Tex. 1994). "[I]f the conduct is the kind the employee is employed to perform, occurs substantially within the authorized time and space limits, and is actuated, at least in part, by a purpose to serve the employer," then the acts are still within the "scope of employment" under the Act "even if the employee . . . uses forbidden means of accomplishing results." Herrera v. Aguilar, 2013 U.S. Dist. LEXIS 127108, *8 (W.D. Tex. Sept. 6, 2013) (quoting Kolstad v. American Dental Ass'n, 527 U.S. 526, 543-44 (1999)). Here, the encounter between Bradley and Officer Copeland started as a traffic stop, then became an investigation of Officer Copeland's suspicions that Bradley was involved in illegal drug activity, and led to a pursuit and struggle when Bradley fled. All of these actions are within the scope of a police officer's employment. Tipps, 945 F. Supp. 2d at 766-67; Chambers, 883 S.W.2d at 658.
With regard to the second half of the § 101.106(f) analysis, while prior to 2011 it may have been debatable whether an intentional tort "could" have been brought against a governmental defendant under the TTCA, that question was definitively answered in 2011 in Franka v. Velasquez. In that case, the Texas Supreme Court held that "all common-law tort theories alleged against a governmental unit are assumed to be `under the Tort Claims Act' for purposes of § 101.106." Franka v. Velasquez, 332 S.W.3d 367, 369 (Tex. 2011). Therefore, Orr's assault and battery claim is a claim that could have been brought against the City of Austin under the TTCA. Because Officer Copeland has demonstrated that the assault and battery, if any, occurred within the scope of his employment, and Orr could have brought that claim against the City of Austin under the TTCA, he is entitled to dismissal pursuant to § 101.106(f). Tipps, 945 F. Supp. 2d at 765-66.
Under § 101.106(f), when an individual demonstrates entitlement to dismissal pursuant to that section, the court is required to dismiss the claim "unless the plaintiff files amended pleadings dismissing the employee and naming the governmental unit as defendant on or before the 30th day after the date the motion is filed." As part of the motion, the City of Austin requests an order prohibiting Orr from amending the Complaint to name the City as the defendant on the assault and battery claim, because under the TTCA the City is immune from any assault and battery claim. See § 101.057.
Based on the foregoing, the undersigned
The parties may file objections to this Report and Recommendation. A party filing objections must specifically identify those findings or recommendations to which objections are being made. The District Court need not consider frivolous, conclusive, or general objections. Battles v. United States Parole Comm'n, 834 F.2d 419, 421 (5th Cir. 1987).
A party's failure to file written objections to the proposed findings and recommendations within fourteen days after the party is served with a copy of the Report shall bar that party from de novo review by the district court of the proposed findings and recommendations in the Report and, except upon grounds of plain error, shall bar the party from appellate review of unobjected-to proposed factual findings and legal conclusions accepted by the district court. See 28 U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140 (1985); Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996).
To the extent that a party has not been served by the Clerk with this Report & Recommendation electronically pursuant to the CM/ECF procedures of this District, the Clerk is directed to mail such party a copy of this Report and Recommendation by certified mail, return receipt requested.