5th Circ. Says Service Error Dooms Excessive Force Case

The Fifth Circuit declined to revive a "gruesome" police brutality case brought by the family of Darrall Thomas, who was wrongly identified by police in a Texas suburb as a suspect in an ATM break-in and was "tased and brutalized" by police until he died, saying that a failure to properly serve the officer who committed the violence doomed the suit.

Although the appellate court said it found the facts presented by the representatives of Thomas' estate and the person acting on behalf of his minor child "gruesome and disturbing," it opted to affirm a Houston federal judge's dismissal of the case because the plaintiffs had not properly served several of the defendants, including the primary officer who brutalized Thomas.

Of the defendants that were properly served, the three-judge panel said in an order Tuesday that they agreed with the district court that the plaintiffs had not provided evidence that those officers had violated Thomas' Fourth Amendment rights protecting against an officer's use of excessive force during an arrest.

In May 2016, in a small suburb of Houston called Spring Valley Village, a silent alarm went off when three men attempted to rob an ATM. Thomas was not one of the men shown in surveillance footage, according to the order, but he was apprehended by police officer Joseph Darrehshoori while standing in a creek near the site.

"Although Thomas was compliant, the officers tased and manhandled him during the encounter," the order said. "Thomas was initially lethargic and could not stand or walk up the creek bed's incline even when the officers attempted to aid or force him out of the creek. When he was unable to answer questions about the ATM robbery, an officer threatened to throw him down a hill, and Darrehshoori tased him."

Thomas told the officers that he couldn't breathe and begged for help or simply to be given a moment to catch his breath. Instead, the officers carried him out of the creek and handcuffed him, laying him face down on the ground. EMTs saw that he was unresponsive and tried to revive him with CPR, but he was transported to a hospital and pronounced dead on arrival.

Thomas' family sued the officers involved, saying their use of excessive force in his arrest and their "deliberate indifference to his medical needs" violated his constitutional rights. They also filed state law claims of negligence and wrongful death. They claimed that Darrehshoori went against manufacturer and researchers' warnings when he tased Thomas multiple times, and the use of the taser was the proximate cause of Thomas' death.

"The complaint alleged that Thomas did not resist, did not fail to comply with any command, did not pose a threat to anyone present, and had already surrendered by the time Darrehshoori tased him," the order said.

The plaintiffs also sued Axon, the manufacturer of the taser used on Thomas.

However, the district court found that those representing Thomas' estate failed to properly serve Darrehshoori or officer Trent Wood, who was with Darrehshoori. The plaintiffs argued in their motion for a new trial that they did timely serve Darrehshoori, and the court did concede that they had served the officer by August 2018, within 90 days of when the original lawsuit was filed in May 2018.

However, the plaintiffs did not file the return of service with the court until April 2019, by which time the suit had been moved from state court to federal court, and they had already amended the complaint. Therefore, a return of service for the initial complaint was useless, the district court found, and the Fifth Circuit agreed.

"Even if such service can be sufficient, service of a superseded complaint — as occurred here given the intervening filing of plaintiffs' amended complaint — is not proper service," the order said. "It is settled in this circuit that '[a]n amended complaint supersedes the original complaint and renders it of no legal effect unless the amended complaint specifically refers to and adopts or incorporates by reference the earlier pleading.'"

As for the six officers who were properly served, the Fifth Circuit agreed with the lower court that there wasn't enough evidence to prove they were responsible for violating Thomas' constitutional rights.

Four of the officers were not proven to be there when Thomas was arrested and tased. Thomas' family accused them of "bystander liability," where officers are present at a scene but do not intervene when another officer is using excessive force.

"It generally will not apply where an officer is not present at the scene of the constitutional violation," the panel said. "Plaintiffs do not allege reasonable measures these four officers could have taken to stop any excessive force, nor even that they knew Darrehshoori used the taser or otherwise engaged in conduct constituting excessive force against Thomas."

The other two officers were present at the site of the incident, but the panel found that their actions throughout the situation, such as carrying Thomas out of the creek bed and laying him flat on the ground, "were reasonable." The two officers were not proven to have been present when Darrehshoori was tasering Thomas.

The Fifth Circuit affirmed the lower court's decision and also found that it had not abused its discretion by not allowing Thomas' family to amend their complaint a third time, as they had already done it once before and to try again would likely prove futile, the panel said.

Neither party responded to a request for comment Thursday.

Judges James L. Dennis, Leslie H. Southwick and James C. Ho sat on the panel for the Fifth Circuit.

Thomas' estate is represented by U.A. Lewis of Lewis Law Group PLLC.

The defendants are represented by William Scott Helfand and Norman Ray Giles of Lewis Brisbois Bisgaard & Smith LLP, and Christopher B. Gilbert of Thompson & Horton LLP.

The case is Carr et al. v. City of Spring Valley et al., case number 19-20373, in the U.S. Court of Appeals for the Fifth Circuit.

--Editing by Adam LoBelia.

For a reprint of this article, please contact reprints@law360.com.

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