Opinion
CAUSE NO. EP-21-CV-257-KC
2022-06-27
Emma BOWAR, Plaintiff, v. The CITY OF EL PASO et al., Defendants.
Fernando Chacon, El Paso, TX, for Plaintiff. Maria Guadalupe Martinez, Mathew Jacob Engelbaum, El Paso City Attorney's Office, El Paso, TX, for Defendants The City of El Paso, Greg Allen. Mathew Jacob Engelbaum, El Paso City Attorney's Office, El Paso, TX, for Defendant John and Jane Does.
Fernando Chacon, El Paso, TX, for Plaintiff.
Maria Guadalupe Martinez, Mathew Jacob Engelbaum, El Paso City Attorney's Office, El Paso, TX, for Defendants The City of El Paso, Greg Allen.
Mathew Jacob Engelbaum, El Paso City Attorney's Office, El Paso, TX, for Defendant John and Jane Does.
ORDER ADOPTING IN PART REPORT AND RECOMMENDATION
KATHLEEN CARDONE, UNITED STATES DISTRICT JUDGE
On this day, the Court considered the above-captioned case. On March 22, 2022, the Court referred Defendants’ Motion to Dismiss, ECF No. 16, to Magistrate Judge Robert F. Castaneda for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). On May 27, 2022, the Magistrate Judge filed his Report and Recommendation ("R&R"), concluding that the motion should be granted in part and denied in part. R&R 1, ECF No. 30. For the reasons set forth below, the R&R is ADOPTED IN PART .
I. BACKGROUND
The Magistrate Judge recommended granting the Motion to Dismiss with respect to Plaintiff's claims against Defendant Greg Allen in his individual and official capacities; her claims against Defendants John and Jane Does in their individual and official capacities; her Fourth Amendment Claim against Defendant City of El Paso; and her First Amendment free speech and free assembly claims against Defendant City of El Paso, except as they relate to the city ordinance at issue in this case. R&R 19–20. The Magistrate Judge recommended denying the Motion to Dismiss with respect to Plaintiff's declaratory judgment claim against Defendant City of El Paso and her First Amendment free speech and free assembly claims against Defendant City of El Paso to the extent that they relate to the city ordinance. Id.
II. DISCUSSION
A. Standard
Parties have fourteen days from service of a Report and Recommendation of a United States Magistrate Judge to file written objections. See 28 U.S.C. § 636(b)(1)(C). The parties were served with a copy of the R&R through the Court's electronic case filing system on May 27, 2022. The parties did not file written objections to the proposed findings, conclusions, and recommendation of the Magistrate Judge within fourteen days of service of the R&R.
Federal district courts conduct de novo review of those portions of a Report and Recommendation to which a party has objected. See 28 U.S.C. § 636(b)(1)(C) ("A judge ... shall make a de novo determination of those portions of the report ... to which objection is made ....").
When parties do not file written objections, courts apply a "clearly erroneous, abuse of discretion and contrary to law" standard of review to a Report and Recommendation. United States v. Wilson, 864 F.2d 1219, 1221 (5th Cir. 1989) ("[T]he ‘clearly erroneous, abuse of discretion and contrary to law’ standard of review ... is appropriate ... where there has been no objection to the magistrate's ruling."); Rodriguez v. Bowen, 857 F.2d 275, 276–77 (5th Cir. 1988) ("[A] party is not entitled to de novo review of a magistrate's finding and recommendations if objections are not raised in writing by the aggrieved party ... after being served with a copy of the magistrate's report.").
B. Analysis
After reviewing the R&R, the Court finds that the Magistrate Judge's recommendation to grant in part and deny in part Defendants’ Motion to Dismiss is neither clearly erroneous nor contrary to law. See Wilson, 864 F.2d at 1221.
However, the Court notes that the R&R's reasoning contains an overbroad statement of law which merits clarification. Although Defendants do not raise jurisdictional issues, see Mot. Dismiss 3–5; Defs.’ Resp. Pl.’s Supp. Resp. 2, ECF No. 20, the Magistrate Judge's analysis of Plaintiff's declaratory judgment claim properly considers whether Plaintiff has sufficiently pled an "actual controversy." See R&R 8; United States v. Lares-Meraz, 452 F.3d 352, 354–55 (5th Cir. 2006) (stating that a court must address jurisdictional issues even if they are not raised). In this discussion, the R&R states that it makes no difference that the charges against Plaintiff under the Picket Ordinance were dismissed after she filed her Complaint, see Pl.’s Supp. Resp., ECF No. 19, because the "actual controversy" requirement "need only be ‘satisfied at the time the complaint was filed—post-filing conduct is not relevant.’ " R&R 8 (quoting Vantage Trailers, Inc. v. Beall Corp. , 567 F.3d 745, 748 (5th Cir. 2009) ).
This analysis is not entirely correct. Although post-filing conduct cannot create an actual controversy, the inverse is not necessarily true; events that occur after filing may destroy a controversy that previously existed. Compare Vantage Trailers, 567 F.3d at 749 (finding no actual controversy when trademark plaintiff "did not have a substantially fixed ... design when it filed the declaratory judgment action"), with Stauffer v. Gearhart, 741 F.3d 574, 583 n.6 (5th Cir. 2014) (holding that defendant's change in policy mooted plaintiff's request for declaratory judgment). Because it conflates these two distinct concepts, the R&R's application of Vantage Trailers to this case is contrary to law.
Nevertheless, the Court finds it proper to adopt the R&R's conclusion that Plaintiff has sufficiently pled the existence of an actual controversy. While mootness may, in certain circumstances, pose a jurisdictional bar to declaratory judgment actions, see, e.g. , Stauffer, 741 F.3d at 583 n.6, the dismissal of Plaintiff's criminal charges presents no such issue. As the R&R observes, "[i]n the case of a threatened government action, a plaintiff need not ‘expose himself to liability before bringing suit to challenge the basis for the threat—for example, the constitutionality of a law threatened to be enforced.’ " R&R 5 (quoting MedImmune, Inc. v. Genentech, Inc. , 549 U.S. 118, 129, 127 S.Ct. 764, 166 L.Ed.2d 604 (2007) ).
Plaintiff argues that the El Paso Municipal Code's permit requirements for protests violate the First Amendment. Compl. ¶¶ 52–56, ECF No. 1. She alleges that she faces a "serious threat" of being prosecuted or fined if she participates in unpermitted protests, and that this threat will prevent her "from engaging in such protests in the future." Id. ¶¶ 59, 66. The fact that Plaintiff has already faced charges for violating the permit requirement, see id. ¶ 44, makes the threat of prosecution particularly substantial. See Susan B. Anthony List v. Driehaus, 573 U.S. 149, 164, 134 S.Ct. 2334, 189 L.Ed.2d 246 (2014) ("[P]ast enforcement against the same conduct is good evidence that the threat of enforcement is not ‘chimerical.’ " (quoting Steffel v. Thompson, 415 U.S. 452, 459, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974) )). Thus, the R&R's finding that Plaintiff has pled an actual controversy is not clearly erroneous or contrary to law, and it is proper for the Court to deny Defendants’ Motion to Dismiss with respect to Plaintiff's claim for declaratory relief.
III. CONCLUSION
For these reasons, the R&R, ECF No. 30, is ADOPTED IN PART . The R&R is adopted, except for the analysis in section III.A.2 suggesting that Plaintiff has sufficiently pled an actual controversy for declaratory judgment purposes because "post-filing conduct is not relevant" to the Court's jurisdiction. See R&R 8 (quoting Vantage Trailers, 567 F.3d at 748 ). Defendants’ Motion to Dismiss, ECF No. 16, is GRANTED as to Plaintiff's claims against Defendant Greg Allen in his individual and official capacities; her claims against Defendants John and Jane Does in their individual and official capacities; her Fourth Amendment Claim against Defendant City of El Paso; and her First Amendment free speech and free assembly claims against Defendant City of El Paso, except as they relate to the city ordinance at issue in this case. However, the Motion to Dismiss is DENIED as to Plaintiff's declaratory judgment claim against Defendant City of El Paso and her First Amendment free speech and free assembly claims against Defendant City of El Paso with respect to the city ordinance.
Accordingly, it is hereby ORDERED that Plaintiff's claims against Greg Allen in both his individual and official capacities are DISMISSED .
IT IS FURTHER ORDERED that Plaintiff's claims against John and Jane Does in both their individual and official capacities are DISMISSED .
IT IS FURTHER ORDERED that Plaintiff's First Amendment free speech claim against Defendant City of El Paso is DISMISSED , except as it relates to the city ordinance at issue in this case.
IT IS FURTHER ORDERED that Plaintiff's First Amendment free assembly claim against Defendant City of El Paso is DISMISSED , except as it relates to the city ordinance at issue in this case.