Singh Cs. Wal-Mart Stores Inc.; Wal-Mart Stores Texas LLC; Alan Martindale; Eva Marie Moseley; The City of Austin; Art Acevedo; Richard W. Miller; John Doe

Case 1:23-cv-00276-DAE Document 1 Filed 03/14/23 Page 1 of 16
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
DOROTHY C. MOTLEY,
individually,
on behalf of all wrongful death
beneficiaries of
Anthony Marquis Franklin
Plaintiff,
Civil Action No. 1:23-cv-276
V.
KELBY RADFORD, individually;
RYAN RAWLINS, individually;
and JACOB BOWMAN, individually,
Defendants
/
COMPLAINT FOR DAMAGE
Plaintiff DOROTHY C. MOTLEY, through and by her undersigned attorneys,
files this action against Defendant KELBY RADFORD, individually; RYAN
RAWLINS, individually; and JACOB BOWMAN, individually, and would show
the Court and Jury the following in support thereof:
INTRODUCTION
"He was reaching right?'
Statement of Officer Jacob Bowman soon after firing on
Anthony Marquis Franklin
Anthony Marquis Franklin
JURISDICTION AND VENUE
1.
This Court has original subject matter jurisdiction under 28 U.S.C. § 1331 and
§ 1343(4) over Plaintiff's claims under the U.S. Constitution, which are brought both
directly under 42 U.S.C. § 1983.
2.
This Court has supplemental jurisdiction over Plaintiff's state law claim
pursuant to 28 U.S.C § 1367 because it is SO related to the federal claims that it forms
part of the same case or controversy under Article III of the U.S. Constitution.
Case 1:23-cv-00276-DAE Document 1 Filed 03/14/23 Page 3 of 16
3.
Venue is proper in this District under 28 U.S.C § 1391(b)(1)(2). All of the
events giving rise to this Complaint occurred within this District.
PARTIES
4.
Plaintiff DOROTHY C. MOTLEY is the natural parent of Anthony Marquis
Franklin ("Anthony or Mr. Franklin"), deceased. She is a resident of the State of
Texas and sue in her capacity as statutory beneficiaries under the Texas Wrongful
Death Act, on behalf of all statutory beneficiaries of Anthony Marquis Franklin.
Anthony Marquis Franklin died having no surviving spouse.
5.
Defendant KELBY RADFORD (hereinafter "Defendant Radford") was/is a
resident of the State of Texas. At all times, Defendant Radford was acting under the
color of state law in his capacity as a law enforcement officer employed by the
Austin Police Department in Austin, Texas.
6.
Defendant RYAN RAWLINS (hereinafter "Defendant Rawlins") was/is a
resident of the State of Texas. At all times, Defendant Rawlins was acting under the
Case 1:23-cv-00276-DAE Document 1 Filed 03/14/23 Page 4 of 16
color of state law in his capacity as a law enforcement officer employed by the
Austin Police Department in Austin, Texas.
7.
Defendant JACOB BOWMAN (hereinafter "Defendant Bowman") was/is a
resident of the State of Texas. At all times, Defendant Bowman was acting under the
color of state law in his capacity as a law enforcement officer employed by the
Austin Police Department in Austin, Texas.
FACTUAL ALLEGATIONS
Events that occurred on January 15, 2023
8.
On January 15, 2023, at approximately 11:43 pm, Defendants Radford,
Rawlins, and Bowman, located Mr. Franklin, a 31-year-old black man, who they
believe matched the description of a suspected shooter in the Austin, Texas
downtown area.
9.
Defendants Radford, Rawlins, and Bowman approached Mr. Franklin and
ordered him to drop a gun. At that time, Mr. Franklin began running away from the
Defendants.
Case 1:23-cv-00276-DAE Document 1 Filed 03/14/23 Page 5 of 16
10.
Defendant Radford began chasing Mr. Franklin on foot, Defendants Rawlins,
and Bowman proceeded to pursue Mr. Franklin in an Austin Police Department
issued ATV.
11.
During the chase, Mr. Franklin ran onto the porch of O. Henry Hall,
administrative headquarters for the University of Texas System, located at 601
Colorado Street.
12.
As Defendant Radford approached the porch, an unknown white male jumped
off the porch and ran away with his hands in air. Subsequently, Mr. Franklin
attempted to leap over the wall of the porch resulting in him falling to the sidewalk
on his back. Notably, while Mr. Franklin was leaping over the hall and falling to the
ground, Defendant Radford yelled to Mr. Franklin to "show me your hands now."
13.
Less than a second from Mr. Franklin making impact with the sidewalk, and
while Mr. Franklin was lying flat on his back, Defendant Radford discharged his
firearm several times in the direction of Mr. Franklin.
Case 1:23-cv-00276-DAE Document 1 Filed 03/14/23 Page 6 of 16
14.
Less than a second from Mr. Franklin making impact with the sidewalk, and
while Mr. Franklin was lying flat on his back, Defendant Radford began to shoot his
firearm in the direction of Mr. Franklin. Defendant Radford continued to fire his
weapon as Mr. Franklin rolled over into a fetal position not facing Defendant
Radford. Defendant Radford fired his weapon over ten times at Mr. Franklin while
Mr. Franklin was balled up in a fetal position.
15.
At the time, Defendant Radford began to fire his firearm in the direction of
Mr. Franklin, Defendant Rawlins and Bowman, while riding in the Austin Police
Department issued ATV, began to discharge their firearms several times in the
direction of Mr. Franklin, while Mr. Franklin was balled up in the fetal position.
16.
At the time Mr. Franklin was shot by the Defendants, He did not pose an
immediate threat to the public nor the Defendants. Mr. Franklin was gun down while
balled in the fetal position. As a result of being shot by the Defendants multiple
times, Mr. Franklin died.
Case 1:23-cv-00276-DAE Document 1 Filed 03/14/23 Page 7 of 16
17.
At all times relevant, the Defendants, were acting under color of state law and
scope of his employment as a law enforcement officer employed by City of Austin,
Texas.
CLAIMS FOR RELIEF
FIRST CLAIM FOR RELIEF
42 U.S.C. § 1983 - Excessive Force in Violation of the Fourth Amendment
(Against All Defendants)
18.
Plaintiff realleges and incorporates herein by reference each and every
allegation contained in paragraphs 1 through 17 of this Complaint.
19.
42 U.S.C. § 1983 provides that:
Every person, who under color of any statute, ordinance, regulation,
custom or usage of any state or territory or the District of Columbia
subjects or causes to be subjected any citizen of the United States or
other person within the jurisdiction thereof to the deprivation of any
rights, privileges or immunities secured by the constitution and law
shall be liable to the party injured in an action at law, suit in equity, or
other appropriate proceeding for redress
Case 1:23-cv-00276-DAE Document 1 Filed 03/14/23 Page 8 of 16
20.
The Defendants are persons for purposes of 42 U.S.C. § 1983.
21.
The Defendants, at all times relevant hereto, was acting under the color of
state law in his capacity as a police officer for the City of Austin, Texas and their
acts or omissions were conducted within the scope of their official duties or
employment.
22.
At the time of the complained of events, Mr. Franklin had a clearly established
constitutional right under the Fourth Amendment to be secure in his person from
unreasonable seizure through excessive force.
23.
Mr. Franklin also had the clearly established Constitutional right under the
Fourth Amendment to bodily integrity and to be free from excessive force by law
enforcement.
24.
Any reasonable law enforcement officer knew or should have known of these
rights at the time of the complained of conduct as they were clearly established at
that time.
Case 1:23-cv-00276-DAE Document 1 Filed 03/14/23 Page 9 of 16
25.
The Defendants' actions and use of force, as described herein, were
objectively unreasonable in light of the facts and circumstances confronting them
and violated the Fourth Amendment rights of Mr. Franklin.
26.
The Defendants' actions and use of force, as described herein, were also
malicious and/or involved reckless, callous, and deliberate indifference to Mr.
Franklin's federally protected rights. The force used by the Defendants shocks the
conscience and violated the Fourth Amendment rights of Mr. Franklin.
27.
The Defendants unlawfully seized Mr. Franklin by means of objectively
unreasonable, excessive and conscious shocking physical force. The force used was
deadly force and did cause the death of Mr. Franklin.
28.
The Defendants engaged in the conduct described by this Complaint
willfully, maliciously, in bad faith, and in reckless disregard of Mr. Franklin's
protected constitutional rights.
Case 1:23-cv-00276-DAE Document 1 Filed 03/14/23 Page 10 of 16
29.
The Defendants did SO with shocking and willful indifference to Mr.
Franklin's rights and with conscious awareness that it could cause Mr. Franklin
severe bodily harm or death.
30.
The acts or omissions of the Defendants were the moving forces behind Mr.
Franklin's death. The acts or omissions of the Defendants as described herein
intentionally deprived Mr. Franklin of his constitutional rights and caused him other
damages. The Defendants are not entitled to qualified immunity for their actions.
31.
As a proximate result of the Defendants' unlawful conduct, Mr. Franklin was
killed. As a further result of the Defendants' unlawful conduct, Mr. Franklin has
incurred special damages, including medical expenses and other special damages
related expenses, in amounts to be established at trial.
32.
On information and belief, Mr. Franklin suffered lost future earnings and
impaired earnings capacities from the not yet fully ascertained sequelae of his
injuries, in amounts to be ascertained in trial. The Plaintiff is further entitled to
attorneys' fees and costs pursuant to 42 U.S.C. §1988, pre-judgment interest and
Case 1:23-cv-00276-DAE Document 1 Filed 03/14/23 Page 11 of 16
costs as allowable by federal law. There may also be special damages for lien
interests.
33.
In addition to compensatory, economic, consequential and special damages,
the Plaintiff is entitled to punitive damages against all Defendants under 42 U.S.C.
§ 1983, in that the actions of the Defendants have been taken maliciously, willfully
or with a reckless or wanton disregard of the constitutional rights of Mr. Franklin.
SECOND CLAIM FOR RELIEF
(Wrongful Death/Intentional)
(All Defendants)
34.
Plaintiff realleges and incorporates herein by reference each and every
allegation contained in paragraphs 1 through 17 of this Complaint.
35.
On January 15, 2022, the Defendants were employed and uniformed officers
with the City of Austin, Texas who committed a battery when they discharged their
weapons to intentionally strike Mr. Franklin that resulted in the untimely and
unlawful death of Mr. Franklin.
Case 1:23-cv-00276-DAE Document 1 Filed 03/14/23 Page 12 of 16
36.
The aforementioned act of discharging their weapon at Mr. Franklin, was
intentional and deliberate. The Defendants' acts were carried out in bad faith and
with malicious intent to do grave bodily harm Mr. Franklin. As a direct and
proximate result of their acts, Mr. Franklin was killed.
37.
The Defendants' intentional acts and omissions constitute proximate causes
of the incident which resulted in injuries to and the death of Mr. Franklin, which the
Plaintiff on behalf on behalf of all wrongful death beneficiaries of Mr. Franklin are
entitled to recover damages under the Texas Wrongful Death Statute, Texas Statutes
section 71.001, as more particularly described herein.
38.
WHEREFORE, Plaintiffs prays for the following relief:
1. Judgment for compensatory damages;
2. Judgment for exemplary or punitive damages against all Defendants;
3. Cost of suit;
4. The value of support and services the deceased person had provided to the
surviving family member;
5. Loss of companionship, guidance, and protection provided by the deceased
person;
Case 1:23-cv-00276-DAE Document 1 Filed 03/14/23 Page 13 of 16
6. Mental and emotional pain and suffering due to the loss of a child, and medical
or funeral expenses any surviving family member has paid for the deceased
person;
7. The deceased person's estate may also recover certain types of damages.
these include:
lost wages, benefits, and other earnings, including the value of lost earnings that the
deceased person could reasonably have been expected to make if he or she had lived
lost "prospective net accumulations" of the estate, or the value of earnings the estate
could reasonably have been expected to collect if the deceased person had lived, and
medical and funeral expenses that were paid by the estate directly.
Such other relief as this Honorable Court may deem just and appropriate.
THIRD CLAIM FOR RELIEF
(Assault and Battery)
(All Defendants)
39.
Plaintiff realleges and incorporates herein by reference each and every
allegation contained in paragraphs 1 through 17 of this Complaint.
40.
The Defendants pointed their firearm at Mr. Franklin and unjustifiably used
deadly force against Mr. Franklin, such force was objectively excessive and
unreasonable under the circumstances.
Case 1:23-cv-00276-DAE Document 1 Filed 03/14/23 Page 14 of 16
41.
The Defendants' intentional acts as described more fully hereinabove, put Mr.
Franklin in actual, subjective apprehension of immediate harmful or offensive
contact.
42.
Mr. Franklin's apprehension was objectively reasonable under the
circumstances in that a person of ordinary care and prudence under the same or
similar circumstances would have believed that harmful, or offensive contact was
about to occur.
43.
The Defendants' actions against Mr. Franklin were unreasonable and
unlawful. At the time Mr. Franklin was shot by the Defendants, Mr. Franklin did not
pose any threat or harm to any law enforcement officers or others. The Defendants
acted with a depraved indifference to human life and conscious disregard for the
safety of the general public, constituted an intentional unwelcome and unprivileged
touching of Mr. Franklin, and was undertaken in bad faith and with actual malice.
44.
As a further direct and proximate result of the conduct described above, Mr.
Franklin died. Prior to his death Mr. Franklin suffered loss of his liberty and freedom,
Case 1:23-cv-00276-DAE Document 1 Filed 03/14/23 Page 15 of 16
bodily injury resulting in pain and suffering, mental anguish, and medical expenses
for treatment and care. Mr. Franklin did not consent to contact from the Defendants.
PRAYER FOR RELIEF
Plaintiff prays that this Court enter judgment for the Plaintiff and against each
of the Defendants and grant:
1. compensatory and consequential damages, including damages for emotional
distress, humiliation, loss of enjoyment of life, and other pain and suffering
on all claims allowed by law in an amount to be determine by a jury;
2. economic losses on all claims allowed by law;
3. special damages in an amount to be determined at trial;
4. punitive damages on all claims allowed by law against Defendant Doe in an
amount to be determine by the jury;
5. attorneys' fees and the costs associated with this action under 42 U.S.C. §
1988, including expert witness fees, on all claims allowed by law;
6. pre- and post-judgment interest at the lawful rate; and,
7. any further relief that this court deems just and proper, and any other
appropriate relief a law and equity.
PLAINTIFF REQUESTS A TRIAL BY JURY.
Respectfully submitted this 14th day of March 2023.
Case 1:23-cv-00276-DAE Document 1 Filed 03/14/23 Page 16 of 16
MACK INJURY ATTORNEYS
/s/Nathaniel Mack III
Nathaniel Mack III
Texas Bar No.: 24078896
8023 Vantage Dr. Suite 690
San Antonio, Texas 78230
P:(210) 333-6225
F: (210) 855-3152
hmack@macktexaslaw.com
THE LAW OFFICES OF HARRY M.
DANIELS, LLC
/s/Harry M. Daniels
Harry M. Daniels
4751 Best Road Suite 490
Atlanta, GA 30337
Tel. 678.664.8529
Fax. 800.867.5248
daniels@harrymdaniels.com
(Pending Admission to the in the United States District Court
for the Western District of Texas)
STROM LAW FIRM
/s/Bakari Sellers
Bakari Sellers
6923 N. Trenholm Road
Columbia, SC 29206
Tel. 803.252.4800
bsellers@stromlaw.com
(Pending Admission to the in the United States District Court
for the Western District of Texas
JS 44 (Rev. 04/21)
Case 1:23-cv-00276 CHAIR COVER SHEET stuFilled 03/14/23 Page 1 of 2
The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as
provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the
purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)
I. (a) PLAINTIFFS
DEFENDANTS
DOROTHY C. MOTLEY
KELBY RADFORD, et al.
(b) County of Residence of First Listed Plaintiff
County of Residence of First Listed Defendant
(EXCEPT IN U.S. PLAINTIFF CASES)
(IN U.S. PLAINTIFF CASES ONLY)
NOTE:
IN LAND CONDEMNATION CASES, USE THE LOCATION OF
THE TRACT OF LAND INVOLVED.
(c) Attorneys (Firm Name, Address, and Telephone Number)
Attorneys (If Known)
Nathaniel Mack III 8023 Vantage Dr. Suite 690 San
Antonio, Texas 78230P:(210 333-6225
II. BASIS OF JURISDICTION (Place an "X" in One Box Only)
III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an "X" in One Box for Plaintiff
(For Diversity Cases Only)
and One Box for Defendant)
1
U.S. Government
3 Federal Question
PTF
DEF
PTF
DEF
Plaintiff
(U.S. Government Not a Party)
Citizen of This State
1
1 Incorporated or Principal Place
4
4
of Business In This State
2 U.S. Government
4 Diversity
Citizen of Another State
2
2 Incorporated and Principal Place
5
5
Defendant
(Indicate Citizenship of Parties in Item III)
of Business In Another State
Citizen or Subject of a
3
3
Foreign Nation
6
6
Foreign Country
IV. NATURE OF SUIT
(Place an "X" in One Box Only)
Click here for: Nature of Suit Code Descriptions.
CONTRACT
TORTS
FORFEITURE/PENALTY
BANKRUPTCY
OTHER STATUTES
110 Insurance
PERSONAL INJURY
PERSONAL INJURY
625 Drug Related Seizure
422 Appeal 28 USC 158
375 False Claims Act
120 Marine
310 Airplane
365 Personal Injury
of Property 21 USC 881
423 Withdrawal
376 Qui Tam (31 USC
130 Miller Act
315 Airplane Product
Product Liability
690 Other
28 USC 157
3729(a))
140 Negotiable Instrument
Liability
367 Health Care/
INTELLECTUAL
400 State Reapportionment
150 Recovery of Overpayment
320 Assault, Libel &
Pharmaceutical
PROPERTY RIGHTS
410 Antitrust
& Enforcement of Judgment
Slander
Personal Injury
820 Copyrights
430 Banks and Banking
151 Medicare Act
330 Federal Employers'
Product Liability
830 Patent
450 Commerce
152 Recovery of Defaulted
Liability
368 Asbestos Personal
835 Patent Abbreviated
460 Deportation
Student Loans
340 Marine
Injury Product
New Drug Application
470 Racketeer Influenced and
(Excludes Veterans)
345 Marine Product
Liability
840 Trademark
Corrupt Organizations
153 Recovery of Overpayment
Liability
PERSONAL PROPERTY
LABOR
880 Defend Trade Secrets
480 Consumer Credit
of Veteran's Benefits
350 Motor Vehicle
370 Other Fraud
710 Fair Labor Standards
Act of 2016
(15 USC 1681 or 1692)
160 Stockholders' Suits
355 Motor Vehicle
371 Truth in Lending
Act
485 Telephone Consumer
190 Other Contract
Product Liability
380 Other Personal
720 Labor/Management
SOCIAL SECURITY
Protection Act
195 Contract Product Liability
360 Other Personal
Property Damage
Relations
861 HIA (1395ff)
490 Cable/Sat TV
196 Franchise
Injury
385 Property Damage
740 Railway Labor Act
862 Black Lung (923)
850 Securities/Commodities/
362 Personal Injury
Product Liability
751 Family and Medical
863 DIWC/DIWW (405(g))
Exchange
Medical Malpractice
Leave Act
864 SSID Title XVI
890 Other Statutory Actions
REAL PROPERTY
CIVIL RIGHTS
PRISONER PETITIONS
790 Other Labor Litigation
865 RSI (405(g))
891 Agricultural Acts
210 Land Condemnation
440 Other Civil Rights
Habeas Corpus:
791 Employee Retirement
893 Environmental Matters
220 Foreclosure
441 Voting
463 Alien Detainee
Income Security Act
FEDERAL TAX SUITS
895 Freedom of Information
230 Rent Lease & Ejectment
442 Employment
510 Motions to Vacate
870 Taxes (U.S. Plaintiff
Act
240 Torts to Land
443 Housing/
Sentence
or Defendant)
896 Arbitration
245 Tort Product Liability
Accommodations
530 General
871 IRS-Third Party
899 Administrative Procedure
290 All Other Real Property
445 Amer. w/Disabilities
535 Death Penalty
IMMIGRATION
26 USC 7609
Act/Review or Appeal of
Employment
Other:
462 Naturalization Application
Agency Decision
446 Amer. w/Disabilities
540 Mandamus & Other
465 Other Immigration
950 Constitutionality of
Other
550 Civil Rights
Actions
State Statutes
448 Education
555 Prison Condition
560 Civil Detainee
Conditions of
Confinement
V. ORIGIN
(Place an "X" in One Box Only)
1 Original
2 Removed from
3
Remanded from
4 Reinstated or
5 Transferred from
6 Multidistrict
8 Multidistrict
Proceeding
State Court
Appellate Court
Reopened
Another District
Litigation
Litigation
(specify)
Transfer
Direct File
Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):
42 U.S.C. 1983
VI. CAUSE OF ACTION
Brief description of cause:
Wrongful Death/Excessive Force by Law Enforcement
VII. REQUESTED IN
CHECK IF THIS IS A CLASS ACTION
DEMAND $
CHECK YES only if demanded in complaint:
COMPLAINT:
UNDER RULE 23, F.R.Cv.P.
JURY DEMAND:
Yes
No
VIII. RELATED CASE(S)
IF ANY
(See instructions):
JUDGE
DOCKET NUMBER
DATE
SIGNATURE OF ATTORNEY OF RECORD
3/14/2023
/s/Nathaniel Mack III
FOR OFFICE USE ONLY
RECEIPT #
AMOUNT
APPLYING IFP
JUDGE
MAG. JUDGE
JS 44 Reverse (Rev. 04/21)
Case 1:23-cv-00276-DAE Document 1-1 Filed 03/14/23 Page 2 of 2
INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44
Authority For Civil Cover Sheet
The JS 44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and service of pleading or other papers as
required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is
required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk of
Court for each civil complaint filed. The attorney filing a case should complete the form as follows:
I.(a)
Plaintiffs-Defendants. Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, use
only the full name or standard abbreviations. If the plaintiff or defendant is an official within a government agency, identify first the agency and then
the official, giving both name and title.
(b)
County of Residence. For each civil case filed, except U.S. plaintiff cases, enter the name of the county where the first listed plaintiff resides at the
time of filing. In U.S. plaintiff cases, enter the name of the county in which the first listed defendant resides at the time of filing. (NOTE: In land
condemnation cases, the county of residence of the "defendant" is the location of the tract of land involved.)
(c)
Attorneys. Enter the firm name, address, telephone number, and attorney of record. If there are several attorneys, list them on an attachment, noting
in this section "(see attachment)".
II.
Jurisdiction. The basis of jurisdiction is set forth under Rule 8(a), F.R.Cv.P., which requires that jurisdictions be shown in pleadings. Place an "X"
in one of the boxes. If there is more than one basis of jurisdiction, precedence is given in the order shown below.
United States plaintiff. (1) Jurisdiction based on 28 U.S.C. 1345 and 1348. Suits by agencies and officers of the United States are included here.
United States defendant. (2) When the plaintiff is suing the United States, its officers or agencies, place an "X" in this box.
Federal question. (3) This refers to suits under 28 U.S.C. 1331, where jurisdiction arises under the Constitution of the United States, an amendment
to the Constitution, an act of Congress or a treaty of the United States. In cases where the U.S. is a party, the U.S. plaintiff or defendant code takes
precedence, and box 1 or 2 should be marked.
Diversity of citizenship. (4) This refers to suits under 28 U.S.C. 1332, where parties are citizens of different states. When Box 4 is checked, the
citizenship of the different parties must be checked. (See Section III below; NOTE: federal question actions take precedence over diversity
cases.)
III.
Residence (citizenship) of Principal Parties. This section of the JS 44 is to be completed if diversity of citizenship was indicated above. Mark this
section for each principal party.
IV.
Nature of Suit. Place an "X" in the appropriate box. If there are multiple nature of suit codes associated with the case, pick the nature of suit code
that is most applicable. Click here for: Nature of Suit Code Descriptions.
V.
Origin. Place an "X" in one of the seven boxes.
Original Proceedings. (1) Cases which originate in the United States district courts.
Removed from State Court. (2) Proceedings initiated in state courts may be removed to the district courts under Title 28 U.S.C., Section 1441.
Remanded from Appellate Court. (3) Check this box for cases remanded to the district court for further action. Use the date of remand as the filing
date.
Reinstated or Reopened. (4) Check this box for cases reinstated or reopened in the district court. Use the reopening date as the filing date.
Transferred from Another District. (5) For cases transferred under Title 28 U.S.C. Section 1404(a). Do not use this for within district transfers
or
multidistrict litigation transfers.
Multidistrict Litigation - Transfer. (6) Check this box when a multidistrict case is transferred into the district under authority of Title 28 U.S.C.
Section 1407.
Multidistrict Litigation - Direct File. (8) Check this box when a multidistrict case is filed in the same district as the Master MDL docket.
PLEASE NOTE THAT THERE IS NOT AN ORIGIN CODE 7. Origin Code 7 was used for historical records and is no longer relevant due to
changes in statute.
VI.
Cause of Action. Report the civil statute directly related to the cause of action and give a brief description of the cause. Do not cite jurisdictional
statutes unless diversity. Example: U.S. Civil Statute: 47 USC 553 Brief Description: Unauthorized reception of cable service.
VII.
Requested in Complaint. Class Action. Place an "X" in this box if you are filing a class action under Rule 23, F.R.Cv.P.
Demand. In this space enter the actual dollar amount being demanded or indicate other demand, such as a preliminary injunction.
Jury Demand. Check the appropriate box to indicate whether or not a jury is being demanded.
VIII. Related Cases. This section of the JS 44 is used to reference related pending cases, if any. If there are related pending cases, insert the docket
numbers and the corresponding judge names for such cases.
Date and Attorney Signature. Date and sign the civil cover sheet.
Case 1:23-cv-00276-DAE Document 21 Filed 08/18/23 Page 1 of 7
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
DOROTHY C. MOTLEY,
§
individually, and on behalf of all
§
wrongful death beneficiaries of
§
Anthony Marquis Franklin,
§
Plaintiff,
§
§
V.
§
Case No. 1:23-cv-00276-DAE
§
KELBY RADFORD,
§
RYAN RAWLINS, and
§
JACOB BOWMAN,
§
Defendants.
§
DEFENDANTS KELBY RADFORD, RYAN RAWLINS, AND JACOB BOWMAN'S
12(b)(6) PARTIAL MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM
TO THE HONORABLE JUDGE OF SAID COURT:
Defendants, Austin Police Officers Kelby Radford, Ryan Rawlins, and Jacob Bowman,
(the "Officers") now file this Partial Motion to Dismiss Plaintiffs' Texas state law wrongful death
claim and assault and battery claims pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure. In support Defendants would respectfully show the Court as follows:
Case 1:23-cv-00276-DAE Document 21 Filed 08/18/23 Page 2 of 7
I.
INTRODUCTION
1.
On March 14, 2023, Plaintiff Dorothy C. Motley, proceeding through counsel, filed this
lawsuit alleging three distinct causes of action seeking damages arising from the death of Anthony
Marquis Franklin ("Franklin"). Plaintiff Motley is Franklin's mother, and she claims that these
Officers: (1) violated Franklin's right to be free from excessive force under the Fourth Amendment
pursuant to 42 U.S.C. § 1983; (2) are liable to her for a Texas wrongful death claim2 pursuant to
"Texas Statutes section 71.001";3 and (3) are liable for "assault and battery"-an intentional tort
claim arising under Texas State law. 4
2.
The Officers now file this Partial Motion to Dismiss for Failure to State a Claim, because
they are entitled to Statutory Immunity under the Texas Tort Claims Act for the wrongful death
claim and the assault and battery claim. This motion does not challenge the Federal question claim
under 42 U.S.C. § 1983. These Officers have filed an Original Answer to that claim concurrently
with this Motion.6
II.
LEGAL STANDARD
3.
Rule 12(b)(6) provides for dismissal of an action for failure to state a claim upon which
relief can be granted. Under Rule 8 of the Federal Rules of Civil Procedure, a pleading must
contain "a short and plain statement of the claim showing that the pleader is entitled to relief."8 To
1 P1. Orig. Compl, Dkt. # 1, pg. 7.
2 Pl. Orig. Compl., Dkt. # 1, pgs. 11-12.
3
The undersigned presumes that Plaintiff is referring to Texas Civil Practices and Remedies
Code $71.001 et seq.
4 Pl. Orig. Compl., Dkt. # 1, pg. 13.
5
Statutory Immunity and Official Immunity are different concepts that operate under differing
standards. See Matthews V. Harris Cnty., No. CV H-18-0014, 2018 WL 3818001, at fn. 40 (S.D.
Tex. Aug. 10, 2018).
6 See Defs.' Orig. Answer, Dkt. # 22.
7
FED. R. CIV. P. 12(b)(6).
8
FED. R. CIV. P. 8(a)(2).
Defendants' 12(b)(6) Partial Motion to Dismiss
Page 2
Case 1:23-cv-00276-DAE Document 21 Filed 08/18/23 Page 3 of 7
survive a motion to dismiss, a Plaintiff must plead "enough facts to state a claim to relief that is
plausible on its face."9 The court must accept the factual allegations of the complaint as true, and
view them in the light most favorable to the However, the court does not accept as true
any legal conclusions, 11 and "Rule 12(b)(6) authorizes a court to dismiss a claim on the basis of a
dispositive issue of law."12
III.
ARGUMENTS & AUTHORITIES
A. The Officers are entitled to Statutory Immunity for Plaintiff's Wrongful Death Claim.
However, Plaintiff is permitted to assert she is entitled to wrongful death damages
pursuant to state law.
4.
Texas Civil Practices and Remedies Code § 71.002 provides an independent claim under
state law for wrongful death. "To support a claim for wrongful death under Texas law, plaintiffs
must allege that death resulted from the negligent or wrongful act of a person or his agent or
servant."13 However, these Officers are immune to this claim because they are statutorily barred
by the Texas Tort Claims Act (TTCA). 14
5.
The Texas Supreme Court has made it clear that the election of remedies provision found
in Texas Civil Practices and Remedies § 101.106(f) "foreclose[s] suit against a government
employee in his individual capacity if he was acting within the scope of employment." "15 "The
TTCA defines "scope of employment" as "the performance for a governmental unit the duties of
9 Bell Atl. Corp. V. Twombly, 550 U.S. 544, 570 (2007).
10
Ramming V. United States, 281 F.3d 158, 161 (5th Cir. 2001).
11 Ashcroft V. Iqbal, 556 U.S. 662 (2009).
12 Estate of I.C.D. V. Beaumont Indep. Sch. Dist., No. 1:18-CV-137, 2020 WL 1028073, at *4
(E.D. Tex. Mar. 2, 2020) (citing Neitzke V. Williams, 490 U.S. 319, 327 (1989)).
13
Carr V. City of Spring Valley Vill., No. CV H-18-2585, 2019 WL 1276100, at *12 (S.D. Tex.
Mar. 20, 2019), aff' d, No. 19-20373, 2022 WL 1553539 (5th Cir. May 17, 2022).
14 TEX. CIV. PRAC. & REM. CODE $101.001 et seq.
15
Carr, 2019 WL 1276100, at 12 (citing Franka V. Velasquez, 332 S.W.3d 367, 381 (Tex.
2011).
Defendants' 12(b)(6) Partial Motion to Dismiss
Page 3
Case 1:23-cv-00276-DAE Document 21 Filed 08/18/23 Page 4 of 7
an employee's office or employment and includes being in or about the performance of a task
lawfully assigned to an employee by competent authority."16
6.
Specifically in regard to law enforcement officers, Texas law holds that "engaging in an
arrest is conduct that is generally within an officer's scope of employment"17 and that an officer
"who uses excessive force is still acting within the 'scope of employment' for purposes of the
TTCA. "18 Here, Plaintiff Motley concedes that the Officers were "acting under the color of state
law in [their] capacity as police officer[s] for the City of Austin, Texas...' when they fatally shot
Franklin while trying to arrest him. 19
7.
Accordingly, as in Carr, "[b]ecause there is no dispute that plaintiffs have sued the
defendant officers in their individual capacities for acts that occurred in the course and scope of
their employment, [plaintiff's] claims for negligence, wrongful death, and survival claims are
subject to dismissal under § 101.106(f)."22 However, as noted in Hutcheson, there is a difference
between pursuing a state law claim under § 71.002 and asserting entitlement to wrongful death
damages "pursuant to 42 U.S.C. § 1983, as allowed pursuant to state law " 21 The
latter
permissibly provides the Plaintiff with damages should they succeed in their Federal excessive
16 Matthews V. Harris Cnty., No. CV H-18-0014, 2018 WL 3818001, at *4 (S.D. Tex. Aug. 10,
2018) (citing TEX. CIV. PRAC & REM CODE § 101.001(5)).
17 Id. (citing Fink V. Anderson, 477 S.W.3d 460, 467 (Tex. App.-Houston [1st Dist.] 2016, no
pet.).
18 Id. (citing Orr V. Copeland, No. A-14-CV-212-LY, 2015 WL 3901654, at *2 (W.D. Tex.
2015)).
19 P1. Orig. Compl., Dkt. #1, pg. 8 (cleaned up).
20 Carr, 2019 WL 1276100, at *12 (emphasis added).
21 Hutcheson V. Dallas Cnty., Tex., No. 3:17-CV-2021 BN, 2020 WL 1692950, at * 19 (N.D. Tex.
Apr. 7, 2020), aff d, 994 F.3d 477 (5th Cir. 2021).
Defendants' 12(b)(6) Partial Motion to Dismiss
Page 4
Case 1:23-cv-00276-DAE Document 21 Filed 08/18/23 Page 5 of 7
force claim. But "to the extent that [Plaintiff Motley does] assert a state law wrongful death
claim such a claim [must be] dismissed with prejudice."22
B. The Officers are entitled to Statutory Immunity for Plaintiff's intentional tort claims
of Assault and Battery, as they are explicitly not waived under the Texas Tort Claims
Act.
8.
The Officers are also entitled to Statutory Immunity for Plaintiff Motley's state law assault
and battery claims under Texas Civil Practice and Remedies Code § 101.106(f). As stated supra,
"[t]he Texas Supreme Court has explained that the purpose of $101.106(f) was to foreclose suit
against a government employee in his individual capacity if he was acting within the scope of
employment."2 "23 Instead, under the Texas Supreme Court's precedent in Franka, "all tort claims,
including intentional torts, 'could have been brought against the governmental unit, regardless of
whether the governmental unit's immunity from suit is expressly waived by the TTCA for those
claims." Again, Plaintiff Motley concedes that the Officers were "acting under the color of state
law in [their] capacity as police officer[s] for the City of Austin, Texas " when they fatally shot
Franklin while trying to arrest him. 25
9.
"The [TTCA] does not waive immunity for intentional torts. "26 Texas Civil Practice and
Remedies Code § 101.057 explicitly states:
22 Id. (cleaned up) (emphasis added); see also Francis V. Cnty, No. CV H-14-2943, 2016 WL
6662275, at *18 (S.D. Tex. Nov. 10, 2016), aff'd sub nom. Francis V. Garcia, 702 Fed. Appx.
218 (5th Cir. 2017).
23 Bailey V. Willis, No. 4:17-CV-00276-ALM-CAN, 2018 WL 3321461, at *13 (E.D. Tex. Jan.
11, 2018), Report and Recommendation adopted, No. 4:17-CV-00276, 2018 WL 2126476 (E.D.
Tex. May 8, 2018).
24 Id. (citing Franka, 332 S.W.3d at 381) (emphasis added).
25 Pl. Orig. Compl., Dkt. #1, pg. 8 (cleaned up).
26 Hatton V. Harris Cnty, Jail, No. CV H-18-1948, 2019 WL 1858826, at *3 (S.D. Tex. Apr. 25,
2019).
Defendants' 12(b)(6) Partial Motion to Dismiss
Page 5
Case 1:23-cv-00276-DAE Document 21 Filed 08/18/23 Page 6 of 7
This chapter does not apply to a claim arising out of assault, battery, false imprisonment,
or any other intentional tort, including a tort involving disciplinary action by school
authorities.
"This provision shields municipalities from suits arising out of intentional torts committed by
governmental employees and [is] liberally construed to accomplish this objective."28
10.
Accordingly, all of Plaintiff's state law claims are barred. They cannot be brought against
the individual Officers under the election of remedies provision articulated in § 101.106(f) and as
interpreted by Franka. Additionally, Plaintiff cannot replead these claims against the City of
Austin, because the City would be entitled to governmental immunity under § 101.057 of the Texas
Tort Claims Act. 30 These claims should therefore be dismissed with prejudice without permitting
Plaintiff to replead.
IV. PRAYER
WHEREFORE, PREMISES CONSIDERED, Defendants Kelby Radford, Ryan Rawlins,
and Jacob Bowman respectfully request that this Court dismiss Plaintiff's claims of Wrongful
Death/Intentional and Assault and Battery against them, and for all other relief to which they may
be entitled, whether in law or in equity.
Respectfully submitted,
WRIGHT & GREENHILL, P.C.
4700 Mueller Blvd., Suite 200
Austin, Texas 78723
(512) 476-4600
(512) 476-5382 - Fax
By:
/s/ Stephen B. Barron
27 TEX. CIV. PRAC. & REM. CODE § 101.057 (emphasis added).
28
Hatton, 2019 WL 1858826, at *3 (citing Gillum V. City of Kerrville, 3 F.3d 117, 123 (5th Cir.
1993)).
29 Franka, 332 S.W.3d at 381.
30
Pena V. City of Rio Grande City, 870 F.3d 613, 625 (5th Cir. 2018); see also Carr, 2019 WL
1276100, at *13.
Defendants' 12(b)(6) Partial Motion to Dismiss
Page 6
Case 1:23-cv-00276-DAE Document 21 Filed 08/18/23 Page 7 of 7
Blair J. Leake
State Bar No. 24081630
bleake@w-g.com
Stephen B. Barron
State Bar No. 24109619
sbarron@w-g.com
ATTORNEYS FOR DEFENDANTS
KELBY RADFORD, RYAN RAWLINS,
AND JACOB BOWMAN
CERTIFICATE OF SERVICE
I hereby certify that on the 18th day of August 2023, a true and correct copy of the
foregoing document was caused to be served upon all counsel of record via E-File/E-Service/E-
Mail and/or U.S. First Class Mail, in accordance with the Federal Rules of Civil Procedure, as
follows:
Harry M. Daniels, Jr.
daniels@harrymdaniels.com
LAW OFFICES OF HARRY M. DANIELS, LLC
4751 Best Road, Suite 490
Atlanta, GA 30337
Nathaniel Mack, III
inmack@macktexaslaw.com
MACK INJURY ATTORNEYS
8023 Vantage Dr., Suite 690
San Antonio, TX 78230
Bakari T. Sellers
bsellers@stromlaw.com
STROM LAW FIRM
6923 N. Trenholm, Suite 200
Columbia, SC 29206
/s/ Stephen B. Barron
Stephen B. Barron
Defendants' 12(b)(6) Partial Motion to Dismiss
Page 7
Case 1:23-cv-00276-DAE Document 22 Filed 08/18/23 Page 1 of 8
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
DOROTHY C. MOTLEY,
§
individually, and on behalf of all
§
wrongful death beneficiaries of
§
Anthony Marquis Franklin,
§
Plaintiff,
§
§
V.
§
Case No. 1:23-cv-00276-DAE
§
KELBY RADFORD,
§
RYAN RAWLINS, and
§
JACOB BOWMAN,
§
Defendants.
§
DEFENDANTS KELBY RADFORD, RYAN RAWLINS, AND JACOB BOWMAN'S
ORIGINAL ANSWER TO PLAINTIFF'S ORIGINAL COMPLAINT
TO THE HONORABLE UNITED STATES DISTRICT JUDGE:
COME NOW Defendants, Kelby Radford, Ryan Rawlins, and Jacob Bowman, (the
"Officers") by and through their attorneys of record, and files this their Original Answer
to
Plaintiff's Original Complaint, and in support thereof would respectfully show the Court as
follows:
Case 1:23-cv-00276-DAE Document 22 Filed 08/18/23 Page 2 of 8
I. ORIGINAL ANSWER
A. Jurisdiction and Venue.
1.
The Officers admit that this Court has Jurisdiction over the Federal Question Claims
brought by Plaintiff pursuant to 42 U.S.C. § 1983 and the United States Constitution.
2.
The Officers deny that this Court has supplemental jurisdiction over Plaintiff's State Law
Claims, because these Officers are entitled to Statutory Immunity pursuant to the Texas Tort
Claims Act and other applications of Texas state law. A Motion to Dismiss pursuant to Rule
12(b)(6) has been filed concurrently with this Answer.
3.
The Officers admit that Venue is proper in the Western District of Texas.
B. Parties.
4.
The Officers are without sufficient knowledge to form a belief as to the truth of the
allegations contained within Paragraph 4 of Plaintiff's Original Complaint, as these Officers
currently have no basis to affirm or dispute if Dorothy C. Motley is the mother of decedent
Anthony Marquis Franklin ("Franklin"), if he had a spouse, or if she is otherwise entitled to recover
damages.
5.
The Officers admit the allegations contained within Paragraphs 5 - 7 of Plaintiff's Original
Complaint.
C. Facts.
1.
As it pertains to the factual allegations contained in Paragraphs 8 - 16 of Plaintiff's Original
Complaint, the Officers admit that on January 15, 2023-they were on duty as Austin Police
Department Officers, when they responded to numerous 911 calls that a man was firing a gun near
Lavaca and 6th Street. These 911 callers reported that a person had been shot in the head as a result
of the shooting. Witnesses provided a description of the suspect matching Franklin's appearance
Defendants' Original Answer
Page 2
Case 1:23-cv-00276-DAE Document 22 Filed 08/18/23 Page 3 of 8
in the company of a black female. A City-wide search accordingly began for that suspect with the
firearm.
6.
During the search, these Officers canvased the area in an ATV¹ that was equipped with
flashing lights and was clearly marked as a police vehicle. Eventually, the Defendants located
Franklin on the corner of West 6th Street and Colorado Street and began observing him as he
walked away with one hand in his pocket. Suddenly, they saw that Franklin had a gun. All of the
Officers yelled "gun" and Officer Radford and Officer Bowman yelled for Franklin to drop the
gun. Franklin disobeyed these commands, and instead bolted around the corner and began running
Northbound up Colorado Street.
7.
Officer Radford chased Franklin on foot while Officers Bowman and Rawlins pursued in
the ATV. While running, Franklin darted up some stairs and onto the stoop of O'Henry Hall at
601 Colorado. Officer Radford again yelled for Franklin to drop the gun. While on the stoop,
Franklin menaced an uninvolved male who fled in terror by jumping over the stone banister. While
this was occurring, Officer Radford again yelled "show me your hands" at least twice. The
uninvolved man then fled with his hands above his head.
8.
Then-just has Officer Radford yelled "show me your [expletive] hands" for the third
time-Franklin again disobeyed this command and took the following action: while firmly
grasping his handgun in his right hand, Franklin vaulted over the stone banister and flipped over
to land on his back on the pavement. While on his back, Franklin pointed the handgun directly at
Officer Radford. Faced with a split-second decision in the face of potentially deadly force-from
(1) a man who had refused commands to disarm at least three times; (2) had allegedly shot someone
1 Short for "All-Terrain Vehicle."
Defendants' Original Answer
Page 3
Case 1:23-cv-00276-DAE Document 22 Filed 08/18/23 Page 4 of 8
in the head earlier that night, and; (3) had just leaped from a railing instead of submitting to arrest-
all three Officers made the decision to shoot Franklin.
9.
Franklin then threw his handgun a short distance away and it landed on the street in between
the wheel of a parked car and the curb. The Officers ceased fire, and Franklin spun around while
on the ground and began crawling toward the curb where his handgun landed. He then reached his
hands down the curb towards the gun, and Officer Bowman yelled "don't get the gun."
Simultaneously, Officer Rawlins repeatedly yelled "do not move" and Franklin responded "ok, I
don't have nothin'."
10.
Backup then arrived and Franklin was secured in handcuffs. While aid was being rendered
to Franklin, Officer Bowman pointed out Franklin's gun next to the curb to an arriving officer,
saying that "he was reaching right. you can see it right there." It was a statement, not a question.
Otherwise, the Officers deny the factual allegations contained in Paragraphs 8 - 16 inconsistent
with these facts articulated supra.
11.
As to the allegations contained within Paragraph 17 of Plaintiff's Original Complaint, the
Officers admit that they were acting under the color of law during the incident that forms the basis
of this lawsuit.
D. Causes of Action.
i. Fourth Amendment Excessive Force Claim against all Defendants.
12.
As to the allegations contained in Paragraph 18 of Plaintiff's Original Complaint, the
Officers adopt and incorporate their responses to the previous Paragraphs of the Complaint.
13.
As to the allegations contained in Paragraphs 19 - 30 of Plaintiff's Original Complaint, the
Officers admit that they were acting under the color of law during the incident that forms the basis
of this lawsuit. Otherwise, pursuant to Federal Rule of Civil Procedure 8(b), a defendant need not
Defendants' Original Answer
Page 4
Case 1:23-cv-00276-DAE Document 22 Filed 08/18/23 Page 5 of 8
respond to plaintiff's mere legal conclusions. To the extent a response is required, these Officers
deny that they violated Franklin's civil rights. Instead, their actions were justified under clearly
established law. They are entitled to Qualified Immunity and raise that defense infra. Otherwise,
denied.
14.
As to the allegations contained in Paragraphs 31 - 33 of Plaintiff's Original Complaint, no
answer is necessary from these Defendants. To the extent any answer is deemed necessary, the
Officers admit that Plaintiff seeks the relief requested therein, but they deny Plaintiff is entitled to
it.
ii. Wrongful Death/Intentional Claim against all Defendants.
15.
As to the allegations contained in Paragraph 34 - 38 of Plaintiff's Original Complaint, the
Defense does not answer these Paragraphs, as they are the subject of the pending Partial Motion
to Dismiss-filed concurrently with this Original Answer.
iii. Assault and Battery Claims against all Defendants.
16.
As to the allegations contained in Paragraph 39 - 44 of Plaintiff's Original Complaint, the
Defense does not answer these paragraphs, as they are the subject of the pending Partial Motion to
Dismiss-filed concurrently with this Original Answer.
E. Damages, Relief Requested, Jury Demand, & Prayer.
17.
As to the unnumbered allegations contained on page 15 of Plaintiff's Original Complaint,
no answer is necessary from these Officers. To the extent any answer is deemed necessary, the
Officers admit that Plaintiff seeks the relief requested therein, but deny that Plaintiff is entitled to
this relief.
Defendants' Original Answer
Page 5
Case 1:23-cv-00276-DAE Document 22 Filed 08/18/23 Page 6 of 8
II. AFFIRMATIVE DEFENSES & IMMUNITIES
18.
The Officers deny any deprivation under color of statute, ordinance, custom, or abuses of
any rights, privileges, or immunities secured to the decedent by the United States Constitution,
state law, or 42 U.S.C. § 1983, et seq.
19.
The Officers hereby invoke the doctrine of Qualified Immunity, Official Immunity, and
Statutory Immunity. Defendants discharged their obligations and public duties in good faith and
would show that their actions were objectively reasonable in light of the law and the information
possessed at that time, and that no clearly established law exists prohibiting them from using force
against a person who is believed to have very recently used a deadly weapon, and was uncompliant
with officer commands when those commands were given in order to secure the scene to make it
safe for all persons involved.
20.
Further and in the alternative, the incident in question and the resulting harm to Plaintiff
were caused or contributed to by another persons' own illegal and/or violent or reckless conduct,
including but not limited to the conduct of the decedent himself. To the extent legally applicable
herein, the Officers invoke the comparative responsibility provisions of the Texas Civil Practice
& Remedies Code. 2
21.
The Officers further plead that, in the unlikely event they are found to be liable, such
liability be reduced by the percentage of the causation found to have resulted from the acts or
omissions of other persons, including the decedent himself.
22.
The Officers plead that they had legal justification for each and every action taken by them
relating to this incident based on the information available to them at the time.
2 See TEX. CIV. PRAC & REM. CODE ANN. § 33.001.
Defendants' Original Answer
Page 6
Case 1:23-cv-00276-DAE Document 22 Filed 08/18/23 Page 7 of 8
23.
The Officers assert the limitations and protections of Chapter 41 of the Texas Civil Practice
& Remedies Code, and the Due Process Clause of the United States Constitution.
24.
The Officers assert the limitations and protections of Chapter 101 of the Texas Civil
Practice & Remedies Code.
25.
The Officers reserve the right to assert additional affirmative defenses throughout the
development of this case.
26.
To the extent the Officers did not address any specific averment made by Plaintiff in her
Original Complaint, they expressly deny all such averments.
III. JURY DEMAND
27.
Pursuant to Federal Rule of Civil Procedure 48, these Defendant Officers hereby request a
jury trial.
IV. PRAYER FOR RELIEF
WHEREFORE, PREMISES CONSIDERED, Defendants Kelby Radford, Ryan Rawlins,
and Jacob Bowman pray that upon a final hearing of this cause, the Court dismiss all of Plaintiff's
claims with prejudice, that all costs of court be assessed against Plaintiff, that they be awarded
attorney fees incurred in the defense of this suit, and for all further relief to which they may be
justly entitled.
Respectfully submitted,
WRIGHT & GREENHILL, P.C.
4700 Mueller Blvd., Suite 200
Austin, Texas 78723
(512) 476-4600
(512) 476-5382 - Fax
By:
/s/ Stephen B. Barron
Blair J. Leake
State Bar No. 24081630
bleake@w-g.com
Stephen B. Barron
Defendants' Original Answer
Page 7
Case 1:23-cv-00276-DAE Document 22 Filed 08/18/23 Page 8 of 8
State Bar No. 24109619
sbarron@w-g.com
ATTORNEYS FOR DEFENDANTS
KELBY RADFORD, RYAN RAWLINS,
AND JACOB BOWMAN
CERTIFICATE OF SERVICE
I hereby certify that on the 18th day of August 2023, a true and correct copy of the
foregoing document was caused to be served upon all counsel of record via E-File/E-Service/E-
Mail and/or U.S. First Class Mail, in accordance with the Federal Rules of Civil Procedure, as
follows:
Harry M. Daniels, Jr.
daniels@harrymdaniels.com
LAW OFFICES OF HARRY M. DANIELS, LLC
4751 Best Road, Suite 490
Atlanta, GA 30337
Nathaniel Mack, III
inmack@macktexaslaw.com
MACK INJURY ATTORNEYS
8023 Vantage Dr., Suite 690
San Antonio, TX 78230
Bakari T. Sellers
bsellers@stromlaw.com
STROM LAW FIRM
6923 N. Trenholm, Suite 200
Columbia, SC 29206
/s/ Stephen B. Barron
Stephen B. Barron
Defendants' Original Answer
Page 8