Stovall V The City of Austin; Brian Manley; Ryan Nichols; Jeffery Hutchinson; John Doe 1; John Doe 2; John Doe 3; John Doe 4

Case 1:23-cv-00105 Document 1 Filed 02/01/23 Page 1 of 9
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
ANISSA STOVALL, INDIVIDUALLY AND
§
AS ADMINISTRATOR OF THE ESTATE OF
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JORDAN WALTON, DECEASED, AND
TERRELL WALTON, INDIVIDUALLY
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Plaintiffs,
§
V.
§
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CITY OF AUSTIN; FORMER AUSTIN
§
No.
1:23-cv-00105
POLICE CHIEF BRIAN MANLEY;
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AUSTIN POLICE OFFICER RYAN
NICHOLS; AUSTIN POLICE
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OFFICER JEFFREY HUTCHINSON;
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APD OFFICER JOHN DOE 1; APD OFFICER
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JOHN DOE 2; APD OFFICER JOHN DOE 3;
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APD OFFICER JOHN DOE 4
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Defendants.
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PLAINTIFFS' ORIGINAL COMPLAINT
A. Complaint
1. This action for wrongful death, survival and excessive force is brought pursuant to
42 U.S.C. Sections 1983 and 1988; the Fourth and Fourteenth Amendments to the United States
Constitution; and Tex. Civ. Prac. & Rem. Code Chapter 71. The court has jurisdiction of this
action under 42 U.S.C. Section 1983, 28 U.S.C. Section 1343 and 28 U.S.C. Section 1331.
Plaintiffs also invoke the pendent jurisdiction of this court under 28 U.S.C. Section 1367. The
events giving rise to the claims occurred in Travis County, Texas, in this district. Accordingly,
this Court is the proper venue pursuant to 28 U.S.C. Section 1391(b)(2).
B. Parties
2. Plaintiff, Anissa Stovall, is the surviving mother of Jordan Walton, deceased, and is
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an individual who is a citizen residing in the County of Travis, State of Texas and the United
States of America. Jordan Walton died intestate while a resident of the County of Travis, State
of Texas. Anissa Stovall filed her application for appointment as Temporary Administrator on
December 16, 2022. Plaintiff Stovall brings this action in her capacity as Administrator of the
Estate of Jordan Walton, as mother and as heir at law.
3. Plaintiff, Terrell Walton, is the surviving father of Jordan Walton, deceased, and is
an individual who is a citizen residing in the County of Travis, State of Texas and the United
States of America. Plaintiff Walton brings this action in his individual capacity as father and
as heir at law.
4. At all times referred to herein, Defendant Ryan Nichols was a police officer
employed by the city of Austin. Defendant Nichols can be served wherever he may be found.
5. At all times referred to herein, Defendant Jeffrey Hutchinson was a police officer
employed by the City of Austin. Defendant Hutchinson can be served wherever he may be
found.
6. At all times referred to herein, defendants John Doe 1, John Doe 2, John Doe 3 and
John Doe 4 were police officers employed by the City of Austin, whose names and identities
remain unknown at this time.
7. Defendants John Doe 3 and John Doe 4 were at all times referred to herein ranking
officers and as such they were commanding officers of defendants Hutchinson, Nichols, Doe 1
and Doe 2. They were responsible for training, supervision, and conduct of defendants
Hutchinson, Nichols, Doe 1, Doe 2.
8.
Defendant Brian Manley was at all times referred to herein, chief of police for the
City of Austin, and as such he was commanding officer of defendants Hutchinson, Nichols, Doe
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1, Doe 2, Doe 3 and Doe 4. He was responsible for training, supervision, and conduct of
defendants Hutchinson, Nichols, Doe 1, Doe 2, Doe 3 and Doe 4. Defendant Manley is further
responsible for enforcing the regulations of the City of Austin and for ensuring that City of
Austin police officers obey the laws of the State of Texas and the United States of America.
Defendant Manley is a final policy maker for the Austin Police Department. Defendant
Manley can be served wherever he may be found.
9.
Defendant City of Austin is a municipal corporation, organized and existing under
the laws of the State of Texas and located in the County of Travis. Defendant City of Austin
can be served at City Manager, The City of Austin, City Hall, 301 W. Second Street, 3rd Floor,
Austin, TX 78702.
10. Plaintiffs sue defendants Manley, Hutchinson, Nichols, Doe 1, Doe 2, Doe 3 and
Doe 4 in their individual capacities.
11. At all times referred to herein, defendants Manley, Hutchinson, Nichols, Doe 1,
Doe 2, Doe 3 and Doe 4 acted under color of the laws, statutes, ordinances, regulations,
policies, customs, and usages of the State of Texas and the City of Austin.
C. Facts
The allegations or other factual contentions have evidentiary support or are likely to
have evidentiary support after a reasonable opportunity for further investigation or discovery.
12. On days prior to the killing of Jordan Walton, he experienced severe mental health
symptoms, including paranoia. His parents assisted him in obtaining proper medical care.
Jordan Walton was very close to his mother and father. They spent birthdays and holidays
together and took family vacations twice a year. Two days before his death, he received new
medications that had an unexpected effect on him.
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13. On or about February 10, 2021, Jordan Walton again developed paranoia and a
terrifying fear that someone was after him. Mr. Walton stopped at a gas station with a friend
and then left quickly without the friend.
The friend followed behind on foot. Mr. Walton
sped up a hill and crashed through a residential fence. He got out of the crashed vehicle and
ran into another home where a mother and son were present. Soon after, the friend arrived on
scene and gave the police information regarding Mr. Walton's mental health. At some point
defendants Hutchinson, Nichols, Doe 1, Doe 2, Doe 3, Doe 4 and Chief Bryan Manley
responded at the scene of this incident and were made of aware of the mental health concerns
regarding Jordan Walton.
14. When Austin Police officers initially arrived on scene, they knocked and
announced at the door where the mother and child were being held. Getting no answer, the
officers made multiple strikes to the door and kicked in the door. Upon the officers' entrance
shots were fired. An officer suffered a minor injury and the officers retreated.
15. At some point early in the incident, Mr. Walton called 911 to speak to Austin
police about a peaceful resolution. During the call Mr. Walton said, "I've been getting death
threats." He repeated several times, "God deliver me from evil." On more than one occasion
during the incident, Mr. Walton appeared at the front door of the home and spoke to officers.
During this time, Plaintiff Walton was on scene attempting to help resolve the situation and to
give officers information about the mental health of his son. Although required by Austin
police policy, specially trained negotiation officers and mental health officers were not called to
the scene.
16. After about an hour, an Austin police officer shot and killed Mr. Walton as he
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stood in the doorway with his gun appearing to be pointed upward in a gesture of surrender.
Ranking officers on scene approved and/or ordered the officer to kill Jordan Walton although
they were aware of his mental health status and his attempts to negotiate a peaceful resolution
with officers. An Austin police officer was heard to say Jordan Walton deserved no mercy
because an officer had been injured. Jordan Walton was twenty-one years old when he died.
During his life, he enjoyed good bodily health. He suffered physical pain and mental anguish
from the time of the injury inflicted by Austin police until his death.
17. Plaintiff Stovall suffered mental anguish after the loss of her son. She
experienced depression, anxiety and PTSD. Several months after Jordan Walton's death,
Plaintiff Stovall was hospitalized as a result of the symptoms she experienced. Her grief has
manifested physically and mentally.
18. Plaintiff Walton suffered mental anguish after the loss of his son. He experienced
extreme anxiety, grief and additional trauma from being present at the scene during the incident.
D.
Count 1
For this cause of action against defendants Manley, Hutchinson, Nichols, Doe 1, Doe 2,
Doe 3 and Doe 4, in Count 1, plaintiffs state the following. The allegations in this count are
likely to have evidentiary support after a reasonable opportunity for further investigation or
discovery.
19. By this reference, plaintiffs incorporate each and every allegation and averment set
forth in paragraphs 2 through 18 of this complaint as though fully set forth herein.
20. As a direct and proximate result of the above-referenced unlawful acts of
defendants Manley, Hutchinson, Nichols, Doe 1, Doe 2, Doe 3 and Doe 4 committed under
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color of law and under their authority as City of Austin police officers, Jordan Walton was
deprived of his life and his right to be secure in his person against unreasonable seizure of his
person in violation of the Fourth and Fourteenth Amendments of the Constitution of the United
States.
21. The actions of defendants Manley, Hutchinson, Nichols, Doe 1, Doe 2, Doe 3 and
Doe 4 were objectively unreasonable and constituted the use of excessive force in that there was
no immediate significant threat of great harm.
22. At all times relevant to this complaint, defendants Hutchinson, Nichols, Doe 1, Doe
2, Doe 3 and Doe 4 were acting under the direction and control of Chief Bryan Manley and
were acting pursuant to the official policy, practice or custom of the City of Austin. Defendant
Manley approved the actions of the Austin Police officer who took the life of Jordan Walton.
23. The actions of defendants Manley, Hutchinson, Nichols, Doe 1, Doe 2, Doe 3 and
Doe 4 were intentional, wanton, malicious and oppressive entitling plaintiffs to an award of
punitive damages.
E.
Count 2
For this cause of action against defendants Manley and the City of Austin in Count 2, plaintiffs
state the following. The allegations in this count are likely to have evidentiary support after a
reasonable opportunity for further investigation or discovery.
24. By this reference, plaintiffs incorporate each and every allegation and averment set
forth in paragraphs 2 through 18 of this complaint as though fully set forth herein.
25. Defendant Manley as the final policy maker for the Austin Police Department was
responsible for the training and supervision of all police officers of Defendant City of Austin in
the proper protocol for use of force, forcefully entering a home, managing a possible hostage
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situation and for interactions with individuals experiencing a mental health crisis. On the day
that Jordan Walton died, Defendant Manley, Defendant Doe 3 and Defendant Doe 4 were at the
scene during the hostage situation while defendants failed to contact Critical Incident
Negotiation Team, Crisis Intervention Team or other mental health professional as directed in
Austin Police Department General Orders. The manner in which the City of Austin training
procedures were inadequate regarding these policies as well as the use of force policy will be
determined after further opportunity for investigation. Defendant Manley and other defendants
were aware of a pattern of violations demonstrates their deliberate indifference. The facts
supporting this allegation of deliberate indifference will be established after an opportunity for
further investigation or discovery. The inadequate training directly caused plaintiffs' damages
in that the lack of training caused the death of their son.
26. The city council of Austin is vested by state law with the authority to make policy
for the city on the use of force in making arrests. The City of Austin has a policy that was the
moving force behind the violation of Jordan Walton's constitutional rights. The policy does
not require officers to exhaust all alternatives before using deadly force. This policy allows
the use of deadly force when the threat of serious bodily injury or death is not immediate. City
of Austin failed to promulgate use of lethal force policies that protect the Constitutional rights
of citizens. City of Austin police officers also have a practice or custom, of which Defendant
Manley was aware, of using excessive force as a form of retaliation when an officer has been
injured during an incident. The policy and practice set forth above failed to protect the life of
Jordan Walton by allowing Austin police officers to use lethal force under circumstances where
it is not reasonable to do so.
27. The conduct of defendants Manley and City of Austin described above deprived
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decedent of his right to be secure in his person against unreasonable searches and seizure as
guaranteed to the decedent under the Fourth Amendment to the United Sates Constitution and
the decedent's right to be free from deprivation of life, liberty or property without due process
of law and to be accorded the equal protection of the laws as guaranteed to decedent under the
Fourteenth Amendment to the United States Constitution.
F. Damages
28. Plaintiffs assert the facts outlined in paragraphs 2-18 above.
29. As a direct and proximate result of the unlawful conduct of the defendants as
described above, plaintiffs suffered burial expenses, cost of therapy and counseling; severe
mental anguish in the past and future, loss of society and companionship, services, and affection
of their son.
G. Attorney Fees
30. Plaintiffs are entitled to an award of attorney fees if they are the prevailing party in
this suit. Plaintiffs seek attorney's fee, expert fees, litigation expenses and costs.
H. Jury Demand
31. In compliance with Rule 38, Federal Rules Civil Procedure, plaintiffs hereby notify
all parties of their demand for a jury.
I. Prayer
32. For these reasons, plaintiffs ask for judgment against the defendants for the
following:
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a.
Damages in the form of punitive and compensatory damages;
b.
Costs of suit, expert fees, pre and post judgment interest;
C.
Reasonable attorney's fee; and
d. All other relief the court deems appropriate.
Respectfully submitted,
/s/ Donna Keith
Donna Hall Keith
State Bar No. 00789335
605 W. Oltorf Street
Austin, TX 78704
donna@dhkattorney.com
Tel: 512-379-8321
Fax:
512-681-7094
ATTORNEY IN CHARGE FOR
Anissa Stovall & Terrell Walton
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Case 1:23-cv-00105-LY Document 6 Filed 03/20/23 Page 1 of 9
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
ANISSA STOVALL, INDIVIDUALLY
§
AND AS ADMINISTRATOR OF THE
§
ESTATE OF JORDAN WALTON,
§
DECEASED, AND TERRELL
§
CIVIL ACTION NO. 1:23-cv-00105-LY
WALTON, INDIVIDUALLY
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Plaintiffs,
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V.
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CITY OF AUSTIN; FORMER AUSTIN
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POLICE CHIEF BRIAN MANLEY;
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AUSTIN POLICE OFFICER RYAN
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NICHOLS; AUSTIN POLICE
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OFFICER JEFFREY HUTCHINSON;
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APD OFFICER JOHN DOE 1; APD
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OFFICER JOHN DOE 2; APD
§
OFFICER JOHN DOE 3; APD
§
OFFICER JOHN DOE 4
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Defendants.
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DEFENDANT CITY OF AUSTIN'S MOTION TO DISMISS
TO THE HONORABLE LEE YEAKEL, UNITED STATES DISTRICT JUDGE:
Defendant City of Austin files this Motion to Dismiss pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure as follows:
I. NATURE OF THE LAWSUIT
Plaintiffs bring this civil rights action as a result of injuries and damages they allege they
sustained as the result of the death of Jordan Walton, during an officer-involved shooting in Austin,
Texas on February 10, 2021. Plaintiffs filed this lawsuit against the City as well as former Austin
Police Chief Brian Manley, Austin Police Officers Ryan Nichols and Jeffrey Hutchinson alleging
various constitutional violations under 42 U.S.C. 1983. (Doc. 1)
For the reasons set forth below, the Court should dismiss all of Plaintiffs' claims against the
City since Plaintiffs' allegations fail to state a claim upon which relief can be granted. See Fed. R.
Case 1:23-cv-00105-LY Document 6 Filed 03/20/23 Page 2 of 9
Civ. P. 12(b)(6).
II. MOTION TO DISMISS PURSUANT TO RULE 12(b)(6)
In reviewing a motion to dismiss, the "court accepts all well-pleaded facts as true, viewing
them in the light most favorable to the plaintiff." In re Katrina Canal Breaches Litigation, 495
F.3d 191, 205 (5th Cir. 2007) (internal quotes and citations omitted). To overcome a motion to
dismiss, a plaintiff must plead "enough facts to state a claim to relief that is plausible on its face."
Bell Atlantic Corp. V. Twombly, 550 U.S. 544, 570 (2007). "A claim has facial plausibility when
the plaintiff pleads factual content that allows the court to draw a reasonable inference that the
defendant is liable for the misconduct alleged." Ashcroft V. Iqbal, 556 U.S. 662, 678 (2009)
(internal quotation marks omitted); see also Culberson V. Lykos, 790 F.3d 608, 616 (5th Cir.
2015). A plaintiff's lawsuit will not survive a motion to dismiss if the facts pleaded do not raise
the right to relief "above the speculative level," even if the facts are viewed in the light most
favorable to the plaintiff. Twombly, 550 U.S. at 555. "[C]onclusory allegations or legal
conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss."
Taylor V. Books A Million, 296 F.3d 376, 378 (5th Cir. 2002) quoting Fernandez-Montes V.
Allied Pilots Ass'n, 987 F.2d 278, 284 (5th Cir. 1993).
III. PLAINTIFF'S SECTION 1983 CLAIMS AGAINST THE CITY SHOULD BE
DISMISSED.
A. Insufficient Facts to Establish a Policy or Practice
Contrary to federal pleading requirements, Plaintiffs failed to plead an express policy of the
Austin Police Department that led to any of the alleged constitutional violations. It is well-settled
that to bring a Section 1983 suit against a city, a plaintiff must allege the implementation
or execution of a policy or custom that was officially adopted by the city. Specifically, "[a]
plaintiff must identify: '(1) an official policy (or custom), of which (2) a policymaker can be
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charged with actual or constructive knowledge, and (3) a constitutional violation whose 'moving
force' is that policy or custom." Valle V. City of Houston, 613 F.3d 536, 541-42 (5th Cir. 2010)
quoting Pineda V. City of Houston, 291 F.3d 325, 328 (5th Cir. 2002). Liability can attach only
through "acts directly attributed to it through some official action or imprimatur." Peterson V. City
of Fort Worth, 588 F.3d 838, 847 (5th Cir. 2009) (quoting Piotrowski V. City of Houston, 237 F.3d
567, 578 (5th Cir. 2001)) (internal quotations removed). Respondeat superior liability is
insufficient to establish constitutional liability against a city. See Monell V. Dep't of Social Service
of City of New York, 436 U.S. 658 (1978).
Moreover, the Fifth Circuit has recently confirmed that to survive a motion to dismiss, a
plaintiff's Monell pleadings "must contain sufficient factual matter, accepted as true, to state a claim
to relief that is plausible on its face." Ratliff V. Aransas County, 948 F.3d 281, 285 (5th Cir. 2020),
quoting Ashcroft V. Iqbal, 556 U.S. 662, 678 (2009). To proceed beyond the pleading stage, "a
complaint's description of a policy or custom and its relationship to the underlying constitutional
violation
cannot be conclusory; it must contain specific facts." Pena V. Rio Grande City, 879
F.3d 613, 622 (5th Cir. 2018) In Ratliff, the Fifth Circuit affirmed the dismissal of the plaintiff's
Monell claim when the complaint failed to establish an official custom or policy of excessive force
because the only facts the plaintiff alleged with any specificity related to the incident which was the
subject of the lawsuit. Id. "[T]o plead a practice SO persistent and widespread as to practically have
the force of law, [the plaintiff] must do more than describe the incident that gave rise to his injury."
Id., quoting Pena, 879 F.3d at 622 (5th Cir. 2018).
Here, Plaintiffs do not cite an actual policy of the City of Austin or its police department
which they allege caused the constitutional violation. Plaintiffs refer to no policy number or policy
title of any of the Austin Police Department's numerous policies. Instead, Plaintiffs allege that
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"[t]he City of Austin has a policy that was the moving force behind the violation of Jordan Walton's
constitutional rights. The policy does not require officers to exhaust all alternatives before using
deadly force. This policy allows the use of deadly force when the threat of serious bodily injury or
death is not immediate." (Doc. 1, I 26)
Plaintiffs' Complaint does not contain sufficient factual allegations to support this
allegation. Plaintiffs allege no specific facts to support their allegation that such a policy exists or
that it was the moving force of this incident. The only facts Plaintiffs allege with any specificity are
the facts describing the incident which is the subject of this lawsuit. The Complaint contains no
facts to support the allegation that this alleged policy actually exists. Plaintiffs seemingly
acknowledge their lack of factual allegations to support their Monell claim by stating that "[t]he
allegations in this count are likely to have evidentiary support after a reasonable opportunity for
further investigation or discovery." (Doc. 1, p. 6) However, this catch-all acknowledgment provides
no cover for the failure to allege specific facts to support the Monell claim.
Likewise, Plaintiff's Complaint provides no facts to support an allegation that the City has
a custom or practice of allowing deadly force when the threat of serious bodily injury or death is
not immediate. A plaintiff may show 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."
Piotrowski, 237 F.3d at 579 (quoting Webster V. City of Houston, 735 F.2d 838, (5th Cir.
1984) (en banc)). However, "[a]ctions of officers or employees of a municipality do not render
the municipality liable under section 1983 unless they execute official policy as above defined."
Id.
Plaintiff's Complaint does not contain sufficient factual allegations to sustain such a
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claim. "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
V. City of Fort Worth, 588 F.3d 838, 851-52 (5th Cir. 2009) quoting Estate of Davis ex rel. McCully
V. City of North Richland Hills, 406 F.3d 375, 383 (5th Cir. 2005). A pattern sufficient to support a
Monell claim cannot be established by previous bad acts of the municipality unless those bad acts
are specific and similar to the violation in question. Id.
Here, Plaintiffs make no allegations that any alleged pattern or practice of APD consisted
of prior bad acts which were specific and similar to the officers' use of deadly force in this incident.
Plaintiffs' Complaint fails to allege non-conclusory facts sufficient to establish an actual policy or
custom of the Austin Police Department. As a result, this claim fails as a matter of law.
B.
Insufficient Facts to Establish Moving Force Causation
Plaintiff's Complaint alleges unconstitutional conduct by the officer defendants, and the
Complaint is filled with general conclusions that the officers acted pursuant to policies, practices,
and customs of the City. The Complaint contains a number of specific factual allegations regarding
the incident itself and the actions of the officers along with detailed facts about Walton's death.
The Complaint, however, does not contain any specific facts to support the Plaintiffs' claim that
APD's policies or practices were the moving force of the alleged constitutional violation
committed by the officers in this incident.
In order to hold a municipality liable under Section 1983 for the misconduct of one of its
employees, a plaintiff must initially allege that an official policy or custom "was a cause in fact of
the deprivation of rights inflicted. Spiller V. City of Texas City, Police Dept., 130 F.3d 162, 167 (5th
Cir. 1997), quoting Leffall V. Dallas Indep. Sch. Dist., 28 F.3d 521, 525 (5th Cir. 1994). The
description of a policy or custom and its relationship to the underlying constitutional violation,
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moreover, cannot be conclusory, it must contain specific facts. Spiller, 130 F.3d at 167.
In Spiller, the Fifth Circuit affirmed the trial court's dismissal under Fed. R. Civ. P. 12 (b)(6
of a plaintiff's 1983 claim against a municipality for the alleged wrongful arrest of the plaintiff for
disorderly conduct. Spiller, 130 F.3d at 167. The plaintiff contended that the police department
had policies of operating "in a manner of total disregard for the rights of African American citizens"
and "engag[ing] in conduct toward African American citizens without regard to probable cause to
arrest." Id. The Fifth Circuit found that the plaintiff's complaint failed to allege specific non-
conclusory facts to demonstrate how these alleged policies were causally connected to the officer's
alleged misconduct. Id.
The Plaintiffs in this case likewise fail to allege specific facts that demonstrate that the
officers' alleged constitutional violation was caused by the City's alleged policy of allowing the
use of deadly force when the threat of serious bodily injury or death is not immediate. Plaintiffs'
conclusory allegations of moving force causation are clearly insufficient to support a Monell claim.
As a result, Plaintiffs' claim against the City fails as a matter of law.
C.
Inadequate Training and Supervision Policies
Plaintiffs also allege that the City's lack of adequate training of its officers caused the death
of Jordan Walton. (Doc. 1, I 25) "A municipality's culpability for a deprivation of right is at its
most tenuous where the claim turns upon a failure to train." Connick V. Thompson, 563 U.S. 51,
61 (2011). Failure-to-train claims require sufficient factual allegations to allow the court to draw the
reasonable inference that: (1) the municipality's training procedures were inadequate; (2) the
municipality was deliberately indifferent in adopting its training policy; and (3) the inadequate
training policy directly caused the constitutional violation. See Sanders-Burns V. City of Plano,
594 F.3d 366, 381 (5th Cir. 2010). Further, a failure to train claim cannot be based upon a single
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incident. Rather, a plaintiff must demonstrate "at least a pattern of similar incidents in which the
citizens were injured
to establish the official policy requisite to municipal liability under section
1983." Snyder V. Trepagier, 142 F.3d 791, 798 (5th Cir. 1998) quoting Rodriguez V. Avita, 871
F.2d 552, 554-55 (5th Cir. 1989).
For liability to attach based upon an inadequate training claim, the plaintiff "must allege
with specificity how a particular training program is defective." Roberts V. City of Shreveport,
397 F.3d 287, 293 (5th Cir. 2005); Zarnow V. City of Wichita Falls, Tex., 614 F.3d 161, 170
(5th Cir. 2010). With either a failure to train or failure to supervise claim, the plaintiff must show:
"(1) the supervisor either failed to supervise or train the subordinate official; (2) a causal link exists
between the failure to train or supervise and the violation of the plaintiff's rights; and (3) the failure
to train or supervise amounts to deliberate indifference." Goodman V. Harris County, 571
F.3d 388, 395 (5th Cir. 2009).
Here, Plaintiffs have not included any specific, non-conclusory facts which support a claim
for either failure to train or supervise. The Complaint fails to identify an actual, specific training
policy, fails to describe any training procedures, and fails to provide any factual support to show
a plausible conclusion that the City was indifferent to unconstitutional police action. Instead,
Plaintiffs acknowledge this shortcoming by stating that "[t]he manner in which the
City of Austin training procedures were inadequate regarding these policies as well
as the use of force policy will be determined after further opportunity for
investigation." (Doc. 1, 25) Plaintiffs' Complaint contains no factual allegations regarding
the City's existing training policies or the training or supervision provided to the involved
officers.
Similarly, the Complaint contains no facts regarding deliberate indifference in adopting its
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policies, and no facts that show that any such training or supervision directly caused the alleged
constitutional violation. Plaintiffs generically state that Defendants "were aware of a pattern of
violations [which] demonstrates their deliberate indifference." (Doc. 1, I 25) Yet, Plaintiffs allege
no specific facts regarding a pattern of similar incidents. Again, the Complaint merely states: "[t]he
facts supporting this allegation of deliberate indifference will be established after an opportunity
for further investigation or discovery." (Doc. 1, I 25) This does not satisfy the Plaintiffs' burden to
plead specific non-conclusory facts to support a claim for failure to train or supervise. Therefore,
these claims should be dismissed.
PRAYER
Defendant City of Austin respectfully requests that the Court grant its Motion to Dismiss
and dismiss all claims against the City of Austin with prejudice and with all costs assessed to the
Plaintiffs.
RESPECTFULLY SUBMITTED,
ANNE L. MORGAN, CITY ATTORNEY
MEGHAN L. RILEY, LITIGATION DIVISION CHIEF
/s/ H. Gray Laird III
H. GRAY LAIRD III
Assistant City Attorney
State Bar No. 24087054
gray.laird@austintexas.gov
City of Austin- Law Department
P.O. Box 1546
Austin, Texas 78767-1546
Telephone (512) 974-1342
Facsimile (512) 974-1311
ATTORNEYS FOR DEFENDANT CITY OF AUSTIN
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CERTIFICATE OF SERVICE
This is to certify that I have served a copy of the foregoing on all parties or their attorneys
of record, in compliance with the Federal Rules of Civil Procedure, this 20th day of March, 2023.
Via CM/ECF:
Donna Hall Keith
State Bar No. 00789335
605 W Oltorf Street
Austin, Texas 78704
Telephone: (512) 379-8321
Facsimile: (512) 681-7094
ATTORNEYS FOR PLAINTIFF
/s/ H. Gray Laird III
H. GRAY LAIRD III
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Case 1:23-cv-00105-LY Document 7 Filed 04/10/23 Page 1 of 17
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
ANISSA STOVALL, INDIVIDUALLY AND
§
AS ADMINISTRATOR OF THE ESTATE OF
§
JORDAN WALTON, DECEASED, AND
§
TERRELL WALTON, INDIVIDUALLY
§
Plaintiffs,
§
V.
§
§
CITY OF AUSTIN; FORMER AUSTIN
§
No. 1:23-CV-00105-LY
POLICE CHIEF BRIAN MANLEY;
§
AUSTIN POLICE OFFICER RYAN
§
NICHOLS; AUSTIN POLICE
§
OFFICER JEFFREY HUTCHINSON;
§
APD OFFICER JOHN DOE 1; APD OFFICER
§
JOHN DOE 2; APD OFFICER JOHN DOE 3;
§
APD OFFICER JOHN DOE 4
§
Defendants.
§
PLAINTIFFS' FIRST AMENDED COMPLAINT
A. Complaint
1. This action for wrongful death, survival and excessive force is brought pursuant to
42 U.S.C. Sections 1983 and 1988; the Fourth and Fourteenth Amendments to the United States
Constitution; and Tex. Civ. Prac. & Rem. Code Chapter 71. The court has jurisdiction of this
action under 42 U.S.C. Section 1983, 28 U.S.C. Section 1343 and 28 U.S.C. Section 1331.
Plaintiffs also invoke the pendent jurisdiction of this court under 28 U.S.C. Section 1367.
The
events giving rise to the claims occurred in Travis County, Texas, in this district. Accordingly,
this Court is the proper venue pursuant to 28 U.S.C. Section 1391 (b)(2).
B. Parties
2. Plaintiff, Anissa Stovall, is the surviving mother of Jordan Walton, deceased, and is
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an individual who is a citizen residing in the County of Travis, State of Texas and the United
States of America. Jordan Walton died intestate while a resident of the County of Travis, State
of Texas. Anissa Stovall filed her application for appointment as Temporary Administrator on
December 16, 2022. Plaintiff Stovall brings this action in her capacity as Administrator of the
Estate of Jordan Walton, as mother and as heir at law.
3. Plaintiff, Terrell Walton, is the surviving father of Jordan Walton, deceased, and is
an individual who is a citizen residing in the County of Travis, State of Texas and the United
States of America. Plaintiff Walton brings this action in his individual capacity as father and
as heir at law.
4. At all times referred to herein, Defendant Ryan Nichols was a police officer
employed by the city of Austin. Defendant Nichols can be served wherever he may be found.
5. At all times referred to herein, Defendant Jeffrey Hutchinson was a police officer
employed by the City of Austin. Defendant Hutchinson can be served wherever he may be
found.
6. At all times referred to herein, defendants John Doe 1, John Doe 2, John Doe 3 and
John Doe 4 were police officers employed by the City of Austin, whose names and identities
remain unknown at this time.
7.
Defendants John Doe 3 and John Doe 4 were at all times referred to herein ranking
officers and as such they were commanding officers of defendants Hutchinson, Nichols, Doe 1
and Doe 2. They were responsible for training, supervision, and conduct of defendants
Hutchinson, Nichols, Doe 1, Doe 2.
8.
Defendant Brian Manley was at all times referred to herein, chief of police for the
City of Austin, and as such he was commanding officer of defendants Hutchinson, Nichols, Doe
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1, Doe 2, Doe 3 and Doe 4. He was responsible for training, supervision, and conduct of
defendants Hutchinson, Nichols, Doe 1, Doe 2, Doe 3 and Doe 4. Defendant Manley is
further
responsible for enforcing the regulations of the City of Austin and for ensuring that City of
Austin police officers obey the laws of the State of Texas and the United States of America.
Defendant Manley is a final policy maker for the Austin Police Department. Defendant
Manley can be served wherever he may be found.
9. Defendant City of Austin is a municipal corporation, organized and existing under
the laws of the State of Texas and located in the County of Travis. Defendant City of Austin
can be served at City Manager, The City of Austin, City Hall, 301 W. Second Street, 3rd Floor,
Austin, TX 78702.
10. Plaintiffs sue defendants Manley, Hutchinson, Nichols, Doe 1, Doe 2, Doe 3 and
Doe 4 in their individual capacities.
11.
At all times referred to herein, defendants Manley, Hutchinson, Nichols, Doe 1,
Doe 2, Doe 3 and Doe 4 acted under color of the laws, statutes, ordinances, regulations,
policies, customs, and usages of the State of Texas and the City of Austin.
C. Facts
12. Jordan Walton, a twenty-one year old black man, was shot and killed by Austin
Police Department officers on February 10, 2021. On the days prior to the killing of Jordan
Walton, he experienced severe mental health symptoms, including paranoia. His parents
assisted him in obtaining proper medical care. Jordan Walton was very close to his mother
and father. They spent birthdays and holidays together and took family vacations twice a year.
Two days before his death, he received new medications that had an unexpected effect on him.
13. On February 10, 2021, Jordan Walton again developed paranoia and a terrifying
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fear that someone was after him. Mr. Walton stopped at a gas station with a friend and then
left quickly without the friend.
The friend followed behind on foot and was at the scene of
Mr. Walton's death throughout the incident. Mr. Walton sped up a hill and crashed through a
residential fence. He got out of the crashed vehicle and ran into another home where a mother
and son were present. Soon after, the friend arrived on scene and gave the police information
regarding Mr. Walton's mental health. He also gave the officers the phone number to the
phone that Mr. Walton had in his possession. This friend was sitting in a police patrol car
where he could hear and see police interactions for the duration of the incident. Austin police
did not solicit his assistance in any way. At some point defendants Hutchinson, Nichols, Doe
1, Doe 2, Doe 3, Doe 4 and Chief Bryan Manley responded at the scene of this incident and
were made aware of the mental health concerns regarding Jordan Walton.
14. The woman in the home that Mr. Walton entered called 911 at 5:21 p.m. to report
that she was being held by Mr. Walton. When Austin police officers initially arrived on scene
at 5:23, the officers could hear a woman crying and a man speaking through the door. Austin
Police Department General Order 200.2.1 requires officers on scene to continue gathering
information assessing the risks and benefits. Austin Police Department General Order 412.3.1
directs the ranking officer on the scene of an actual or potential hostage/barricade situation to
consider avoiding confrontation in favor of controlling and containing the situation until the
arrival of trained personnel and/or trained hostage negotiation personnel. Prior to making a
proper threat assessment, Defendant Hutchison and Defendant APD Officer John Doe 1 made
multiple strikes to the door and kicked in the door precipitating a confrontation and jeopardizing
the safety of all involved. Upon the officers' entrance, Defendant Hutchison fired his weapon.
One of the officers suffered a minor injury and the officers retreated.
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15. At some point early in the incident, Mr. Walton called 911 to speak to Austin
police about a peaceful resolution. During the call Mr. Walton said, "I don't want to hurt this
kid... I've been getting death threats." He repeated several times, "God deliver me from evil."
On more than one occasion during the incident, Mr. Walton appeared at the front door of the
home and spoke to officers. During this time, Plaintiff Walton was on scene wanting to help
resolve the situation and attempting to give officers information about the mental health of his
son. Austin police ignored him. Plaintiff Stovall was on the phone with an officer who was
at the scene also providing information about her son. Austin police did not solicit her
assistance in any manner. The City of Austin Office of Police Oversight has recommended a
policy addition to Austin Police General Order 200.2 allowing supportive family members of
the individuals involved to be used as a resource for the officers.
16. Austin Police General Order 412.1 defines the Critical Incident Negotiation
Team's (CINT) sole purpose as facilitating the resolution of hostage and/or barricaded subject
incidents. Austin Police General Order 412.2 requires CINT and SWAT to respond to
hostage/barricaded subject incidents. Austin Police General Order 412.4 requires the supervisor
on scene to notify tactical and hostage negotiation personnel. Austin Police General Order
445.1 defines the Crisis Intervention Team (CIT) as a unit created for the sole purpose of
addressing and responding to any calls for police assistance related to the mental health
community. Austin Police General Order 445.2 requires that a CIT officer be dispatched to
any emergency incident involving a person in mental health crisis. Although required by
Austin police policy, Doe 1, Doe 2, Doe 3, Doe 4, Manley, Hutchinson, did not call specially
trained CINT negotiation officers and CIT mental health officers to the scene.
17. Austin Police General Order 200.2 De-escalation says that officers shall not
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engage in unnecessary conduct that could be expected to escalate a situation, including but not
limited to 1) becoming unnecessarily combative or aggressive, 2) using insults, slurs or rude
gestures, 3) unduly compromising one's own safety or the safety of others by making
inappropriate or misguided tactical decisions and 4) unnecessarily rushing the pace of an
encounter.
Defendants Hutchinson, Nichols, Manley, Doe 1, Doe 2, Doe 3 and Doe 4
violated three of these four rules. Hutchinson and Doe 1 failed to conduct a proper risk
assessment. Hutchinson and Doe 1 became unnecessarily aggressive by kicking in the door
and Hutchinson firing his weapon after being on scene for mere minutes thereby rushing the
pace of the encounter and in doing SO unduly compromising their own safety and the safety of
the individuals in the house.
18. Austin Police General Order 412.4 outlines the supervisor responsibilities during a
hostage situation, including assuming the role of Incident Commander. After about an hour, an
Austin police officer, Defendant Nichols shot and killed Mr. Walton as he stood in the doorway
with his gun appearing to be pointed upward in a gesture of surrender. The child stood next to
Mr. Walton. Chief Manley was on scene and had the authority to override any order. Chief
Manley or Doe 3 or Doe 4 ranking officers on scene ordered, approved or failed to override the
decision to kill Jordan Walton although they were aware of his mental health status and his
attempts to negotiate a peaceful resolution with officers. The friend on the scene heard one
Austin police officer say that Jordan Walton deserved no mercy because an officer had been
injured (by a piece of glass when shots were fired). Jordan Walton was twenty-one years old
when he died. During his life, he enjoyed good bodily health. He suffered physical pain and
mental anguish from the time of the injury inflicted by Austin police until his death.
19. The Austin Police Department General Order 200.4 regarding deadly force and
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Austin Police Department General Order 202.1.1 regarding discharge of a firearm authorize
officers to use deadly force when and to the extent the officer reasonably believes the deadly
force is immediately necessary to protect against an imminent threat of death or serious bodily
injury. The City of Austin Office of Police Oversight has criticized this policy because it does
not require officers to exhaust all alternatives before using deadly force. The Office of Police
Oversight recommended changes to the policy which would eliminate the unnecessary use of
deadly force, including making it clear that officers shall not take unreasonable or unnecessary
actions that escalate any situation into one that would require a deadly force response.
20. The City of Austin has a policy that does not protect the Constitutional rights of
persons suffering from symptoms of mental illness. In a report issued by the City of Austin
Office of the City Auditor entitled APD Response to Mental Health Related Incidents
(September 2018), the City Auditor found that Austin had the highest per capita rate of people
killed by police responding to mental health calls. The same report from the Auditor indicates
that although the following practices are used by other major cities, in Austin CIT trained
officers do not receive regular refresher training on topics related to crisis intervention,
de-escalation and mental health; dispatchers don't identify the nearest CIT officer and
dispatch the officer to the crisis event; CIT incidents are not reviewed and evaluated for
process improvements; police are not paired with mental health professionals. The result of
this policy is seen in Jordan Walton's death where Manley, Hutchinson, Nichols, Doe 1, Doe 2,
Doe 3 and Doe 4 ignored Mr. Waltons mental illness and failed to follow procedure outlined in
Austin Police General Order 200.2.1 and Austin Police General Order 445.2.
21. The City of Austin has a widespread pervasive policy of permitting lethal force
when a threat is not immediate. On April 14, 2017, Lawrence Parrish, a black man, was killed
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by Austin police while simply standing at his door with a gun, never firing or pointing the gun
or acting with aggression toward police. On May 7, 2017, Landon Nobles, a black man, was
killed by Austin police after having fired shots earlier in the day while on 6th Street. He was
shot in the back but was not displaying a weapon or actively posing a threat. On August 16,
2018, Aquantis Griffin, a black man, was killed by Austin police when police fired over 40
shots striking Mr. Griffin 30 times. Although holding a gun, Mr. Griffin was not given an
opportunity to comply with officer commands before officers shot him. Mr. Griffin did not
point the gun in the direction of police or threaten them. On July 31, 2019, Dr. Mauris
DeSilva, a man of color, while experiencing a mental health crisis initially held a knife to his
own throat but when complying with officer commands, he lowered the knife and turned to face
the officers, the officers shot and killed him. On April 24, 2020, Mike Ramos, a black man,
was shot and killed by Austin police while driving away from police. Mr. Ramos was
unarmed and not a threat as he drove away from the scene. On January 15, 2023, Anthony
Marquis Franklin, a black man, was shot and killed by Austin police while laying on the ground
in the fetal position. Mr. Franklin had fired shots earlier that day but was not actively a threat
while lying defenseless on the ground. Like Mr. Jordan, these individuals were not posing an
immediate threat to officers or other individuals when they were killed by Austin police.
22. Austin police also have a widespread and pervasive policy that results in severe
use of force against people of color which is unjustified and disproportionate to other
communities. In 2019, the Austin City Council approved the findings from the Center for
Policing Equity including the following:
a.
Austin police were more likely to use more severe force in Black and Latino
neighborhoods.
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b. Black people were arrested at twice the rate of whites when officers could use
discretion when deciding to make an arrest.
C. For offenses eligible for citation, Black people comprised 32% of those arrested
even though Black people only make up about 8% of the city's population.
23. In January 2020, a joint report by the Austin Office of Police Oversight, the Office
of Innovation and the Equity Office also acknowledged widespread racial policing practices.
The report indicates that in 2018 Black people made up 15% of vehicle stops and 25% of arrests
but only 8% of the population.
24. On June 11, 2020, the Austin City Council approved a resolution acknowledging
that Austin police policy and culture have a disproportionate impact of police violence on Black
people in Austin. This policy and culture lead to the shooting of Jordan Walton while he
attempted to surrender.
25. In 2020, a report by the City's Organizational Development and Training Manager
for the Austin Police Department found that the Austin Police Academy, which trains cadets
who will serve as police officers for the City of Austin, promotes a culture of violence. The
Austin Chief Equity Officer echoed this sentiment when reporting findings that the Academy
provides training based on violent and traumatizing experiences that produce officers trained
primarily to use physical aggression.
26. In January 2021, a report sanctioned by the City of Austin found that training
videos used by the Austin Police Academy for addressing crisis intervention, de-escalation and
use of force, among other topics, displayed communities of color, especially Black men, as
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disproportionate recipients of violent and deadly force by police. The videos were also found
to encourage an adversarial relationship between the police and the public. The videos
encouraged rapid and deadly escalation with people of color and compassion and understanding
for white men. As an example of the disparate treatment resulting from the training, on
September 2, 2020, Austin police were involved in a 31-hour standoff where a white male, who
had been shooting at a neighbor was barricaded in his home. The man was known to suffer
from symptoms of mental illness. During this 31-hour standoff, CIT, a hostage negotiator,
SWAT, and mental health experts were called to the scene. Family members were allowed to
persuade the suspect to exit his home. The suspect was taken into custody without injury. This
incident stands in stark contrast to the incident plaintiffs now complain of where their son was
killed in less than an hour and no attempts to bring in CIT or other mental health professionals
or a trained hostage negotiator was made by Manley, Hutchinson, Nichols, Doe 1, Doe 2, Doe 3
or Doe 4.
27. Plaintiff Stovall suffered mental anguish after the loss of her son.
She
experienced depression, anxiety and PTSD. Several months after Jordan Walton's death,
Plaintiff Stovall was hospitalized as a result of the symptoms she experienced. Her grief has
manifested physically and emotionally resulting in mental health concerns.
28.
Plaintiff Walton suffered mental anguish after the loss of his son. He experienced
extreme anxiety, grief and additional trauma from being present at the scene during the incident.
D. Excessive Force
For this cause of action against defendants Manley, Hutchinson, Nichols, Doe 1, Doe 2,
Doe 3 and Doe 4 plaintiffs state the following.
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29. By this reference, plaintiffs incorporate each and every allegation and averment set
forth herein as though fully set forth in this cause of action.
30. As a direct and proximate result of the above-referenced unlawful acts of
defendants Manley, Hutchinson, Nichols, Doe 1, Doe 2, Doe 3 and Doe 4 committed under
color of law and under their authority as City of Austin police officers, Jordan Walton was
deprived of his life and his right to be secure in his person against unreasonable seizure of his
person in violation of the Fourth and Fourteenth Amendments of the Constitution of the United
States.
31. The actions of defendants Manley, Hutchinson, Nichols, Doe 1, Doe 2, Doe 3 and
Doe 4 were objectively unreasonable and constituted the use of excessive force in that there was
no immediate significant threat of great harm when Jordan Walton was attempting to surrender.
Doe 1 and Hutchinson stormed into the home with reckless abandon having not properly
assessed the situation and escalated the situation into one of gunfire. Nichols shot and killed
Jordan Walton while Mr. Walton attempted to surrender. Manley, Doe 3 and Doe 4 condoned
the conduct and failed to contact negotiators and mental health officials which could have
spared Mr. Walton's life.
32. At all times relevant to this complaint, defendants Hutchinson, Nichols, Doe 1, Doe
2, Doe 3 and Doe 4 were acting under the direction and control of Chief Bryan Manley and
were acting pursuant to the official policy, practice or custom of the City of Austin. Defendant
Manley approved or acquiesced to the actions of the Austin Police officer who took the life of
Jordan Walton. Before the killing of Mr. Walton, Doe 1, Doe 2, Doe 3 or Doe 4 was heard by
the friend on scene saying that Mr. Walton deserved no mercy because a police officer had been
injured.
11
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33. The actions of defendants Manley, Hutchinson, Nichols, Doe 1, Doe 2, Doe 3 and
Doe 4 were intentional, wanton, malicious and oppressive entitling plaintiffs to an award of
punitive damages.
E. Policy and Custom
For this cause of action against defendants Manley and the City of Austin plaintiffs state the
following.
34. By this reference, plaintiffs incorporate each and every allegation and averment set
forth herein as though fully set forth in this cause of action.
35. Defendant Manley as the final policy maker for the Austin Police Department was
responsible for the training and supervision of all police officers of Defendant City of Austin in
the proper protocol for use of force, forcefully entering a home, managing a hostage situation
and for interactions with individuals experiencing a mental health crisis. On the day that
Jordan Walton died, Defendant Manley, Defendant Doe 3 and Defendant Doe 4 were at the
scene during the hostage situation while defendants failed to contact Critical Incident
Negotiation Team, Crisis Intervention Team or other mental health professional as directed in
Austin Police Department General Orders. The manner in which the City of Austin training
procedures were inadequate include the following: providing training that demonstrated
excessive violence against Black people; providing training that demonstrated unjustified and
disproportionate use of force against Black people; providing inadequate training regarding
proper threat assessments; providing inadequate training regarding proper forced entry into a
home; providing inadequate training regarding the use of deadly force; providing inadequate
training for de-escalation; inadequate training for managing a hostage situation; inadequate
training for managing a suspect with symptoms of mental illness.
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36. Defendant Manley and other defendants had to be aware of the widespread pattern
of violations which demonstrates their deliberate indifference. The inadequate training
directly caused plaintiffs' damages in that the lack of training caused the death of their son.
37. The city council of Austin is vested by state law with the authority to make policy
for
the city on the use of force. The Austin Police General Orders as indicated above were the
moving force behind the violation of Jordan Walton's constitutional rights. The policy does
not require officers to exhaust all alternatives before using deadly force. The absence of a policy
requiring officers to exhaust all alternatives before the use of deadly force in turn fuels the
custom allowing the use of deadly force when the threat of serious bodily injury or death is not
immediate. Defendant City of Austin failed to promulgate use of lethal force policies that
protect the Constitutional rights of citizens. City of Austin police officers also have a practice or
custom, which Defendant Manley permitted as final policy maker, of using excessive force as a
form of retaliation when an officer has been injured during an incident. The policy and practice
set forth above failed to protect the life of Jordan Walton by allowing Austin police officers to
use lethal force under circumstances where it is not reasonable to do SO.
F. Training
For this cause of action against defendants Manley and the City of Austin plaintiffs state
the following. By this reference, plaintiffs incorporate each and every allegation and averment
set forth herein as though fully set forth in this cause of action.
38. The City of Austin has a widespread and pervasive policy of racially motivated
policing and training that deprived Jordan Walton of his right to secure in his person against
unreasonable seizure and resulted in his death. The racially motivated policy not only caused
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inadequate training but also caused the death of Jordan Walton by allowing Nichols, Manley,
Hutchinson, Doe 1, Doe 2, Doe 3 and Doe 4 to use excessive force against Jordan Walton.
39.
At the time of Jordan Walton's death and prior to his death, Austin police officers
received racially biased training which negatively colored all aspects of training including
proper threat assessments. Such racially biased training also undermined defendant officers'
understanding of when to properly use force, deadly force and de-escalation measures when
confronting armed Black individuals.
40. The conduct of defendants Manley and City of Austin described above deprived
Jordan Walton of his right to be secure in his person against unreasonable searches and seizure
as guaranteed to Jordan Walton under the Fourth Amendment to the United Sates Constitution
and the decedent's right to be free from deprivation of life, liberty or property without due
process of law and to be accorded the equal protection of the laws as guaranteed to decedent
under the Fourteenth Amendment to the United States Constitution.
G. Wrongful Death and Survival
41. By this reference, plaintiffs incorporate each and every allegation and averment set
forth herein as though fully set forth in this cause of action. Defendants' wrongful conduct
proximately caused the death of Jordan Walton. Mr. Walton would have been entitled to bring
this action against defendants had he lived. He would be entitled to and defendants are liable
for Mr. Walton's pain and suffering and the violation of this civil rights. Those claims survive
in favor of Mr. Walton's heirs. Defendants' conduct also caused plaintiffs to lose the
companionship, love, support and services that Jordan Walton would have provided as their son
had he lived. Plaintiffs have suffered emotional pain and emotional distress and a direct result
14
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of defendants' wrongful killing of Mr. Walton.
H. Damages
42. By this reference, plaintiffs incorporate each and every allegation and averment set
forth herein as though fully set forth here.
43. As a direct and proximate result of the unlawful conduct of the defendants as
described above, plaintiffs suffered burial expenses, cost of therapy and counseling; severe
mental anguish in the past and future, loss of society and companionship, services, and affection
of their son.
I. Exemplary Damages
44. The officer defendants' extreme outrageous and unjustifiable conduct justifies an
award of punitive and exemplary damages. The officer defendants acted with malice and
acted intentionally recklessly and with callous indifference to the unlawful deprivation of
Jordan Walton's constitutionally protected rights.
45. The extreme, outrageous and unjustifiable conduct of the City of Austin justifies
an award of punitive and exemplary damages. The City of Austin implemented policies,
practices and procedures with malice and intent, acting recklessly and with callous indifference
to the unlawful deprivation of Jordan Walton's constitutionally protected rights.
J. Attorney Fees
46. Plaintiffs are entitled to an award of attorney fees if they are the prevailing party in
this suit. Plaintiffs seek attorney's fees, expert fees, litigation expenses and costs.
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K. Jury Demand
47. In compliance with Rule 38, Federal Rules Civil Procedure, plaintiffs hereby notify
all parties of their demand for a jury.
L. Prayer
48. For these reasons, plaintiffs ask for judgment against the defendants for the
following:
a. Damages in the form of punitive and compensatory damages;
b. Costs of suit, expert fees, pre and post judgment interest;
C. Reasonable attorney's fee; and
d. All other relief the court deems appropriate.
Respectfully submitted,
/s/ Donna Keith
Donna Hall Keith
State Bar No. 00789335
605 W. Oltorf Street
Austin, TX 78704
donna@dhkattorney.com
Tel: 512-379-8321
Fax: 512-681-7094
ATTORNEY IN CHARGE FOR
Anissa Stovall & Terrell Walton
CERTIFICATE OF SERVICE
This is to certify that I have served a copy of the foregoing on all parties or their attorneys of
record in compliance with the Federal Rules of Civil Procedure on April 10, 2023.
Via CM/ECF
16
Case 1:23-cv-00105-LY
Document 7
Filed 04/10/23 Page 17 of 17
H. Gray Laird III
Attorney for the City of Austin
State Bar No. 24087054
City of Austin Law Dpt.
P.O. Box 1546
Austin, TX 78767
/s/ Donna Keith
Donna Hall Keith
17
Case 1:23-cv-00105-LY Document 8 Filed 04/12/23 Page 1 of 1
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
FILED
AUSTIN DIVISION
ANISSA STOVALL, INDIVIDUALLY
§
APR 1 2 2023
AND AS ADMINISTRATOR OF THE
§
CLERK. U.S. DISTRICT
ESTATE OF JORDAN WALTON; AND
§
TERRELL WALTON, INDIVIDUALLY,
§
WESTERN BY DISTRICTION of CLERK TEXAS
DEPUTY
PLAINTIFFS,
§
§
V.
§
CAUSE NO. 1:23-CV-00105-LY
§
CITY OF AUSTIN; FORMER AUSTIN
§
POLICE CHIEF BRIAN MANLEY;
§
APD OFFICER RYAN NICHOLS; APD
§
OFFICER JEFFREY HUTCHINSON; APD
§
OFFICER JOHN DOE 1; APD OFFICER
§
JOHN DOE 2; APD OFFICER JOHN DOE
§
3; AND APD OFFICER JOHN DOE 4,
§
DEFENDANTS.
§
ORDER
Before the court is Defendant City of Austin's Motion to Dismiss, filed March 20, 2023
(Doc. #6). Plaintiffs' First Amended Complaint was filed on April 10, 2023 (Doc. #7). In light of
the filing of Plaintiffs' amended complaint,
IT IS ORDERED that Defendant City of Austin's Motion to Dismiss, filed March 20, 2023
(Doc. #6), is DISMISSED WITHOUT PREJUDICE.
SIGNED this 12th
day of April, 2023.
LEE YEAKEL
UNITED STATES DISTRICT JUDGE
Case 1:23-cv-00105-LY Document 9 Filed 04/19/23 Page 1 of 5
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
ANISSA STOVALL, INDIVIDUALLY
§
AND AS ADMINISTRATOR OF THE
§
ESTATE OF JORDAN WALTON,
§
DECEASED, AND TERRELL
§
CIVIL ACTION NO. 1:23-cv-00105-LY
WALTON, INDIVIDUALLY
§
Plaintiffs,
§
§
V.
§
§
CITY OF AUSTIN; FORMER AUSTIN
§
POLICE CHIEF BRIAN MANLEY;
§
AUSTIN POLICE OFFICER RYAN
§
NICHOLS; AUSTIN POLICE
§
OFFICER JEFFREY HUTCHINSON;
§
APD OFFICER JOHN DOE 1; APD
§
OFFICER JOHN DOE 2; APD
§
OFFICER JOHN DOE 3; APD
§
OFFICER JOHN DOE 4
§
Defendants.
§
DEFENDANT CITY OF AUSTIN'S ANSWER AND AFFIRMATIVE DEFENSES TO
PLAINTIFFS' FIRST AMENDED COMPLAINT
TO THE HONORABLE JUDGE OF SAID COURT:
Defendant City of Austin files this Answer and Affirmative Defenses to Plaintiffs' First
Amended Complaint (Doc. No. 7). Pursuant to Rules 8 and 12 of the Federal Rules of Civil
Procedure, Defendant respectfully shows the Court the following:
ORIGINAL ANSWER
Pursuant to Federal Rule of Civil Procedure 8(b), Defendant responds to each of the
specific averments in Plaintiffs' First Amended Complaint as set forth below. To the extent that
Defendant does not address a specific averment made by Plaintiff, Defendant expressly denies that
averment. 1
1 Paragraph numbers in Defendant's Answer correspond to the paragraphs in Plaintiffs' First Amended Complaint.
Case 1:23-cv-00105-LY Document 9 Filed 04/19/23 Page 2 of 5
1.
On information and belief, Defendant admits the allegations contained in Paragraph 1.
2.
Defendant is without sufficient knowledge to form a belief as to the truth of the allegations
contained in Paragraph 2 and therefore denies same.
3.
Defendant is without sufficient knowledge to form a belief as to the truth of the allegations
contained in Paragraph 3 and therefore denies same.
4.
Defendant admits the allegations contained in Paragraph 4.
5.
Defendant admits the allegations contained in Paragraph 5.
6.
Defendant is without sufficient knowledge to form a belief as to the truth of the allegations
contained in Paragraph 6 and therefore denies same.
7.
Defendant is without sufficient knowledge to form a belief as to the truth of the allegations
contained in Paragraph 7 and therefore denies same.
8.
Defendant admits the allegations contained in the first sentence of Paragraph 8. Defendant
denies the remaining allegations as phrased in Paragraph 8.
9.
Defendant admits the allegations contained in Paragraph 9.
10.
Defendant denies the allegations contained in Paragraph 10.
11.
Defendant is without sufficient knowledge to form a belief as to the truth of the allegations
contained in Paragraph 11 and therefore denies same.
12.
Defendant is without sufficient knowledge to form a belief as to the truth of the allegations
contained in Paragraph 12 and therefore denies same.
13.
Defendant is without sufficient knowledge to form a belief as to the truth of the allegations
contained in Paragraph 13 and therefore denies same.
14.
Defendant is without sufficient knowledge to form a belief as to the truth of the allegations
contained in Paragraph 14 and therefore denies same.
15.
Defendant is without sufficient knowledge to form a belief as to the truth of the allegations
Page 2 of 5
Case 1:23-cv-00105-LY Document 9 Filed 04/19/23 Page 3 of 5
contained in Paragraph 15 and therefore denies same.
16.
Defendant is without sufficient knowledge to form a belief as to the truth of the allegations
contained in Paragraph 16 and therefore denies the same.
17.
Defendant is without sufficient knowledge to form a belief as to the truth of the allegations
contained in Paragraph 17 and therefore denies the same.
18.
Defendant is without sufficient knowledge to form a belief as to the truth of the allegations
contained in Paragraph 18 and therefore denies the same.
19.
Defendant is without sufficient knowledge to form a belief as to the truth of the allegations
contained in Paragraph 19 and therefore denies same.
20-46. Defendant denies the allegations contained in Paragraphs 20-46.
47.
Paragraph 47 merely contains Plaintiff's demand for jury trial and thus no response is
required of this Defendant.
48.
Defendant denies the allegations contained in Paragraph 48 and denies that Plaintiffs are
entitled to any relief whatsoever of and from this Defendant.
AFFIRMATIVE DEFENSES
1.
Defendant City of Austin asserts the affirmative defense of governmental immunity as a
municipal corporation entitled to immunity while acting in the performance of its
governmental functions, absent express waiver.
2.
Defendant City of Austin asserts the affirmative defense of governmental immunity
since its employees are entitled to qualified/official immunity for actions taken in the
course and scope of their employment, absent express waiver.
3.
Defendant reserves the right to assert additional affirmative defenses throughout the
development of the case.
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Case 1:23-cv-00105-LY Document 9 Filed 04/19/23 Page 4 of 5
DEFENDANT'S PRAYER
Defendant City of Austin prays that all relief requested by Plaintiffs be denied, that the
Court dismiss this case with prejudice, and that the Court award Defendant costs and attorney's
fees, and any additional relief to which it is entitled under law or equity.
RESPECTFULLY SUBMITTED,
ANNE L. MORGAN, CITY ATTORNEY
MEGHAN L. RILEY, CHIEF, LITIGATION
/s/ H. Gray Laird III
H. GRAY LAIRD III
Assistant City Attorney
State Bar No. 24087054
gray.laird@austintexas.gov
City of Austin- Law Department
P.O. Box 1546
Austin, Texas 78767-1546
Telephone (512) 974-1342
Facsimile (512) 974-1311
ATTORNEYS FOR DEFENDANT CITY OF
AUSTIN
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Case 1:23-cv-00105-LY Document 9 Filed 04/19/23 Page 5 of 5
CERTIFICATE OF SERVICE
This is to certify that I have served a copy of the foregoing on all parties or their attorneys
of record, in compliance with the Federal Rules of Civil Procedure, this 19th day of April, 2023.
Via CM/ECF:
Donna Hall Keith
State Bar No. 00789335
605 W Oltorf Street
Austin, Texas 78704
donna@dhkattorney.com
Telephone: (512) 379-8321
Facsimile: (512) 681-7094
ATTORNEYS FOR PLAINTIFFS
/s/ H. Gray Laird III
H. GRAY LAIRD III
Page 5 of 5
Case 1:23-cv-00105-DAE Document 14 Filed 05/31/23 Page 1 of 5
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
ANISSA STOVALL, INDIVIDUALLY
§
AND AS ADMINISTRATOR OF THE
§
ESTATE OF JORDAN WALTON,
§
DECEASED, AND TERRELL
§
CIVIL ACTION NO. 1:23-cv-00105-LY
WALTON, INDIVIDUALLY
§
Plaintiffs,
§
§
V.
§
§
CITY OF AUSTIN; FORMER AUSTIN
§
POLICE CHIEF BRIAN MANLEY;
§
AUSTIN POLICE OFFICER RYAN
§
NICHOLS; AUSTIN POLICE
§
OFFICER JEFFREY HUTCHINSON;
§
APD OFFICER JOHN DOE 1; APD
§
OFFICER JOHN DOE 2; APD
§
OFFICER JOHN DOE 3; APD
§
OFFICER JOHN DOE 4
§
Defendants.
§
DEFENDANTS BRIAN MANLEY, RYAN NICHOLS AND JEFFREY HUTCHINSON'S
ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFFS'
FIRST AMENDED COMPLAINT
TO THE HONORABLE JUDGE OF SAID COURT:
Defendants Brian Manley, Ryan Nichols and Jeffrey Hutchinson file this Answer and
Affirmative Defenses to Plaintiffs' First Amended Complaint (Doc. No. 7). Pursuant to Rules 8
and 12 of the Federal Rules of Civil Procedure, Defendants respectfully show the Court the
following:
ORIGINAL ANSWER
Pursuant to Federal Rule of Civil Procedure 8(b), Defendants respond to each of the
specific averments in Plaintiffs' First Amended Complaint as set forth below. To the extent that
Case 1:23-cv-00105-DAE Document 14 Filed 05/31/23 Page 2 of 5
Defendants do not address a specific averment made by Plaintiff, Defendants expressly deny that
averment. 1
1.
On information and belief, Defendants admit the allegations contained in Paragraph 1.
2.
Defendants are without sufficient knowledge to form a belief as to the truth of the
allegations contained in Paragraph 2 and therefore deny same.
3.
Defendants are without sufficient knowledge to form a belief as to the truth of the
allegations contained in Paragraph 3 and therefore deny same.
4.
Defendants admit the allegations contained in Paragraph 4.
5.
Defendants admit the allegations contained in Paragraph 5.
6.
Defendants are without sufficient knowledge to form a belief as to the truth of the
allegations contained in Paragraph 6 and therefore deny same.
7.
Defendants are without sufficient knowledge to form a belief as to the truth of the
allegations contained in Paragraph 7 and therefore deny same.
8.
Defendants admit the allegations contained in the first sentence of Paragraph 8. Defendants
deny the remaining allegations as phrased in Paragraph 8.
9.
Defendants admit the allegations contained in Paragraph 9.
10.
Defendants deny the allegations contained in Paragraph 10.
11.
Defendants are without sufficient knowledge to form a belief as to the truth of the
allegations contained in Paragraph 11 and therefore deny same.
12-19. Defendants are without sufficient knowledge to form a belief as to the truth of the
allegations contained in Paragraphs 12-19 and therefore deny same.
20-46. Defendants deny the allegations contained in Paragraphs 20-46.
47.
Paragraph 47 merely contains Plaintiff's demand for jury trial and thus no response is
required of these Defendants.
1
Paragraph numbers in Defendants' Answer correspond to the paragraphs in Plaintiffs' First Amended Complaint.
Page 2 of 5
Case 1:23-cv-00105-DAE Document 14 Filed 05/31/23 Page 3 of 5
48.
Defendants deny the allegations contained in Paragraph 48 and deny that Plaintiffs are
entitled to any relief whatsoever of and from these Defendants.
AFFIRMATIVE DEFENSES
1.
Defendants assert the affirmative defense of qualified/official immunity for actions taken
in the course and scope of their employment, absent express waiver.
2.
Defendants assert the affirmative defense of contributory negligence. Plaintiffs' claims
are barred in whole or in part by Jordan Walton's contributory negligence. Walton, by
his actions, failed to exercise ordinary care for his safety. His actions contributed at least
fifty-one percent to his alleged injuries and the damages asserted in this case.
3.
Defendants affirmatively plead that the Plaintiffs' claims are barred in whole or in part
since Jordan Walton's intentional acts were the proximate cause, or a proximate
contributing cause, of his alleged injuries and damages asserted in this case.
4.
Defendants assert the affirmative defense that Plaintiffs failed to mitigate damages, if any,
and asserts this failure to mitigate as both an affirmative defense and as a reduction in the
damage amount, if any, due Plaintiffs.
5.
Defendants 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.
6.
Defendants 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 Jordan Walton.
7.
Defendants assert the limitations and protections of Chapter 101 of the Texas Civil Practice
and Remedies Code.
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Case 1:23-cv-00105-DAE Document 14 Filed 05/31/23 Page 4 of 5
8.
Defendants assert the limitations and protections of Chapter 41 of the Texas Civil Practice
and Remedies Code, and the Due Process Clause of the United States Constitution.
9.
Defendants reserve the right to assert additional affirmative defenses throughout the
development of the case.
DEFENDANTS' PRAYER
Defendants Brian Manley, Ryan Nichols and Jeffrey Hutchinson pray that all relief
requested by Plaintiffs be denied, that the Court dismiss this case with prejudice, and that the Court
award Defendants costs and attorney's fees, and any additional relief to which it is entitled under
law or equity.
RESPECTFULLY SUBMITTED,
ANNE L. MORGAN, CITY ATTORNEY
MEGHAN L. RILEY, CHIEF, LITIGATION
/s/ H. Gray Laird III
H. GRAY LAIRD III
Assistant City Attorney
State Bar No. 24087054
gray.laird@austintexas.gov
City of Austin- Law Department
P.O. Box 1546
Austin, Texas 78767-1546
Telephone (512) 974-1342
Facsimile (512) 974-1311
ATTORNEYS FOR DEFENDANTS
Page 4 of 5
Case 1:23-cv-00105-DAE Document 14 Filed 05/31/23 Page 5 of 5
CERTIFICATE OF SERVICE
This is to certify that I have served a copy of the foregoing on all parties or their attorneys
of record, in compliance with the Federal Rules of Civil Procedure, this 31st day of May, 2023.
Via CM/ECF:
Donna Hall Keith
State Bar No. 00789335
605 W Oltorf Street
Austin, Texas 78704
donna@dhkattorney.com
Telephone: (512) 379-8321
Facsimile: (512) 681-7094
ATTORNEYS FOR PLAINTIFFS
/s/ H. Gray Laird III
H. GRAY LAIRD III
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