Opinion
1:17-CV-459-ADA-JCM
07-26-2024
ELIODORO MUNGIA, JR., Plaintiff, v. BRENT STROMAN, et al, Defendants.
TO: THE HONORABLE ALAN D ALBRIGHT, UNITED STATES DISTRICT COURT JUDGE
REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
JEFFREY C. MANSKE UNITED STATES MAGISTRATE JUDGE
This Report and Recommendation is submitted to the Court pursuant to 28 U.S.C. § 636(b)(1)(C), Fed.R.Civ.P. 72(b), and Rules 1(f) and 4(b) of Appendix C of the Local Rules of the United States District Court for the Western District of Texas, Local Rules for the Assignment of Duties to United States Magistrate Judges. Before the Court are Abelino Reyna's Motion to Dismiss (ECF No. 27); Brent Stroman, Manuel Chavez, and Jeffrey Rogers's Motion to Dismiss (ECF No. 28); and Manuel Chavez, Brent Stroman, and Jeffrey Rogers's Motion to supplement (ECF No. 38). For the following reasons, the undersigned RECOMMENDS Defendants' Motions be GRANTED.
I. BACKGROUND
This case stems from the Twin Peaks restaurant incident on May 17, 2015. Members of the Bandidos and Cossacks Motorcycle Clubs, along with hundreds of other motorcycling enthusiasts, converged on the restaurant. Tensions between the Bandidos and Cossacks erupted in a shootout that left nine dead and many injured. In the aftermath of the incident, police arrested 177 individuals on charges of Engaging in Organized Criminal Activity. The probable cause affidavit in support of the arrest warrants was the same for each of the 177 arrestees, and a justice of the peace set bond for each of the arrestees at one million dollars. Only one of the criminal cases ever went to trial (the defendant in that case is not a party to the instant action), and those proceedings ended in a mistrial. The state eventually dropped all remaining charges against the arrestees. The Plaintiff in this case was arrested pursuant to the same probable cause affidavit as the other arrestees. Significantly, Plaintiff was also indicted. The indictment was later dismissed.
Plaintiff brings this case pursuant to 42 U.S.C. § 1983. He alleges a number of constitutional violations to support his claim: violations of his First Amendment right to association; violations of his Fourth Amendment right to be free from unlawful arrest based on Malley and Franks; violations of his right to equal protection under the Due Process clause of the Fifth Amendment; and a conspiracy to violate those rights. Pl.'s 1st Am. Compl. at ¶ 70-82 (ECF No. 22). The individual defendants all assert qualified immunity.
II. LEGAL STANDARDS
Title 42 U.S.C. § 1983 creates a cause of action against any person who, under color of law, causes another to be deprived of a federally protected constitutional right. Two allegations are required to state a cause of action under 42 U.S.C. § 1983. “First, the plaintiff must allege that some person has deprived him of a federal right. Second, he must allege that the person who has deprived him of that right acted under color of state or territorial law.” Gomez v. Toledo, 446 U.S. 635, 640 (1980); Manax v. McNamara, 842 F.2d 808, 812 (5th Cir. 1988).
Upon motion or sua sponte, a court may dismiss an action that fails to state a claim upon which relief may be granted. FED. R. CIV. P. 12(b)(6); Carroll v. Fort James Corp., 470 F.3d 1171, 1177 (5th Cir. 2006). To survive Rule 8, a nonmovant must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). “The court's task is to determine whether the plaintiff has stated a legally cognizable claim that is plausible, not to evaluate the plaintiff's likelihood of success.” Lone Star Fund V (U.S.), L.P. v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010). The court begins by identifying which allegations are well-pleaded facts and which are legal conclusions or elemental recitations, accepting as true the former and rejecting the latter. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A court need not blindly accept every allegation of fact; properly pleaded allegations of fact amount to more than just conclusory allegations or legal conclusions “masquerading as factual conclusions.” Taylor v. Books A Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002). The court then determines whether the accepted allegations state a plausible claim to relief. Id. at 379.
“Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Twombly, 550 U.S. at 555. “The court accepts all well-pleaded facts as true, viewing them in the light most favorable to the [nonmovant].” In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007) (quotation marks omitted). “A claim has facial plausibility when the [nonmovant] pleads factual content that allows the court to draw the reasonable inference that the [movant] is liable for the misconduct alleged.” Ashcroft, 556 U.S. at 678. “The plausibility standard . . . asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. For purposes of Rule 12(b)(6), “pleadings” include the complaint, its attachments, and documents referred to in the complaint and central to a plaintiff's claims. Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498-499 (5th Cir. 2000).
Under Federal Rule of Civil Procedure 12(b)(6), a court may dismiss an action barred by qualified immunity. See Bustillos v. El Paso Cnty. Hosp. Dist., 226 F.Supp.3d 778, 793 (W.D. Tex. 2016) (Martinez, J.) (dismissing a plaintiff's claim based on qualified immunity). Qualified immunity shields government officials from civil liability for claims under federal law unless their conduct “violates a clearly established constitutional right.” Mace v. City of Palestine, 333 F.3d 621, 623 (5th Cir. 2003). Qualified immunity balances “the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.” Pearson v. Callahan, 555 U.S. 223, 231 (2009). Because qualified immunity shields “all but the plainly incompetent or those who knowingly violate the law,” the Fifth Circuit considers qualified immunity the norm and admonishes courts to deny a defendant immunity only in rare circumstances. Romero v. City of Grapevine, 888 F.3d 170, 176 (5th Cir. 2018) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)) (internal quotation marks omitted).
Courts use a two-prong analysis to determine whether an officer is entitled to qualified immunity. Cole v. Carson, No. 14-10228, 2019 WL 3928715, at *5 (5th Cir. Aug. 20, 2019), as revised (Aug. 21, 2019). A plaintiff must show (1) the official violated a constitutional right; and (2) the constitutional right was “clearly established” at the time of the defendant's alleged misconduct. Reed v. Taylor, 923 F.3d 411, 414 (5th Cir. 2019). The Supreme Court held in Pearson that “the judges of the district courts . . . should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first.” 555 U.S. at 236. Although qualified immunity is an affirmative defense, the plaintiff bears the burden to rebut the defense and assert facts to satisfy both prongs of the analysis. Brumfield, 551 F.3d at 326. If a plaintiff fails to establish either prong, the public official is immune from suit. Zarnow v. City of Wichita Falls, 500 F.3d 401, 407 (5th Cir. 2007).
III. ANALYSIS
A. Fourteenth Amendment claims
Plaintiff sues Defendants for violations of his Fourteenth Amendment right “to be free from law enforcement fabricating evidence” by “creating and promoting falsehoods in the affidavit in support of the arrest warrant.” Pl.'s 1st Am. Compl. at ¶ 77. The Court notes that Plaintiff also brings his claims under the Fourth Amendment. But “[w]here a particular Amendment provides an explicit textual source of constitutional protection against a particular sort of government behavior, that Amendment, not the more generalized notion of substantive due process, must be the guide for analyzing these claims.” Albright v. Oliver, 510 U.S. 266, 273 (1994) (internal punctuation omitted). A citizen has a right under the Fourth Amendment to be free from arrest unless the arrest is supported by either a properly issued arrest warrant or probable cause. Flores v. City of Palacios, 381 F.3d 391, 402 (5th Cir. 2004). “The Framers considered the matter of pretrial deprivations of liberty and drafted the Fourth Amendment to address it.” Albright, 510 U.S. at 274. Because the Fourth Amendment covers unlawful arrest, Plaintiff cannot also seek relief under the Fourteenth Amendment. Cuadra v. Houston Indep. Sch. Dist., 626 F.3d 808, 814 (5th Cir. 2010). Accordingly, the undersigned RECOMMENDS that Plaintiff's Fourteenth Amendment claim be DISMISSED and will address Plaintiff's claim in the context of the Fourth Amendment.
The Court also notes that Plaintiff attempts to invoke an exception to the general rule described above, citing Cole v. Carson, 802 F.3d 752 (5th Cir. 2015), vacated sub nom. Hunter v. Cole, 137 S.Ct. 497 (2016). In Cole, the Fifth Circuit recognized deliberate fabrication of evidence by police may create a Fourteenth Amendment claim if such a claim may not be pursued under the Fourth Amendment. Id. First, Plaintiff has a Fourth Amendment claim in this case. Second, the Fifth Circuit issued this decision on September 25, 2015, over four months after the shootout at Twin Peaks. Again, to overcome a defendant's qualified immunity, a plaintiff must show that the constitutional right was “clearly established” at the time of the defendant's alleged misconduct. Reed, 923 F.3d at 414. The exception that Plaintiff seeks to invoke had not yet been recognized in this Circuit at the time their cause of action arose, and as such, any right recognized in Cole was not clearly established.
B. Fourth Amendment
There are two claims against government agents for alleged Fourth Amendment violations in connection with an arrest warrant: (1) claims under Malley, 475 U.S. at 335, for which the agent may be liable if he “fil[es] an application for an arrest warrant without probable cause” and “a reasonable well-trained officer . . . would have known that [the] affidavit failed to establish probable cause,” Michalik v. Hermann, 422 F.3d 252, 259-60 (5th Cir. 2005) (citations and internal quotation marks omitted); and (2) claims under Franks v. Delaware, 438 U.S. 154 (1978), for which the agent may be liable if he “makes a false statement knowingly and intentionally, or with reckless disregard for the truth that results in a warrant being issued without probable cause,” Michalik, 422 F.3d at 258 n.5. In the instant case, Plaintiff brings claims under both theories.
1. Malley violation
Plaintiff alleges that the defendants violated his Fourth Amendment rights by “creating a facially deficient affidavit in support of the arrest warrant, that utterly lacks facts that would support probable cause to arrest Plaintiff.” Pl.'s 1st Am. Compl. at ¶ 73. Plaintiff argues that the warrant was a general warrant that failed to establish probable cause to arrest Plaintiff within its four-corners. Id. at ¶ 54. This Court has already addressed these same allegations by other Twin Peaks plaintiffs.
In comparing the identical arrest warrant against Malley case law, the Court found that the affidavit was a significant improvement upon the classic bare bones affidavit. Weaver v. Stroman, No. 1:16-CV-1195-ADA-JCM, 2019 WL 4738914, at *4 (W.D. Tex. Sept. 27, 2019), rev'd on other grounds, 4 F.4th 270 (5th Cir. 2021). The Court specifically found that the “affidavit, prepared in the context of a melee involving multiple shootings and 177 arrests, clearly identifies the subject, the offense, the parties involved, the time and circumstances under which they met, what they wore, identifying characteristics, and the weapons they used.” Id. Based on that finding, the Court dismissed those plaintiffs' Malley claims. Moreover, the Fifth Circuit held that “standing alone, as the district court held, the warrant affidavit sufficiently alleged probable cause to arrest those to whom its facts applied.” Terwilliger v. Reyna, 4 F.4th 270, 282 (5th Cir. 2021). Consistent with this Court's prior opinion and the Fifth Circuit affirmation that the warrant affidavit is not facially deficient, the undersigned RECOMMENDS that Plaintiff's Malley claims be DISMISSED.
2. Franks violation
Plaintiff also alleges that the Defendants violated his Fourth Amendment rights by deliberately or recklessly providing false, material information for use in an affidavit in support of an arrest warrant. Franks, 438 U.S. at 171.
The Franks case arose in the context of a search warrant, but its rationale extends to arrest warrants. See Melton v. Phillips, 875 F.3d 256, 262 (5th Cir. 2017) (en banc). Liability under Franks can arise from either material misstatements or material omissions in warrant affidavits. Michalik v. Hermann, 422 F.3d 252, 258 n.5 (5th Cir. 2005); United States v. Martin, 615 F.2d 318, 328 (5th Cir. 1980) (citing cases). Functionally, the holding of Franks is an exception to the
independent intermediary doctrine, which provides that “if facts supporting an arrest are placed before an independent intermediary such as a magistrate or grand jury, the intermediary's decision breaks the chain of causation for false arrest, insulating the initiating party.” Cuadra v. Houston Indep. Sch. Dist., 626 F.3d 808, 813 (5th Cir. 2010) (citation and internal quotation marks omitted). But “the chain of causation remains intact if it can be shown that the deliberations of that intermediary were in some way tainted by the actions of the defendant.” Id. To determine taint, the essential inquiry is whether “there remains sufficient content in the warrant affidavit to support a finding of probable cause” after the “material that is the subject of the alleged falsity or reckless disregard is set to one side.” Franks, 438 U.S. at 171-72, 98 S.Ct. at 2684.Terwilliger, 4 F.4th at 281-82.
Generally, if facts supporting an arrest are placed before an independent intermediary such as a magistrate or grand jury, the intermediary's decision breaks the chain of causation for false arrest. Wilson, 33 F.4th 202, 208 (5th Cir. 2020) (citations omitted). This is true even if the independent intermediary's action occurred after the arrest or if the arrestee was never convicted of a crime. Id. But the intermediary must actually be independent. Id. Thus, defendants can be liable for false arrest if the plaintiff shows that the deliberations were tainted by the defendant's actions. Id. Franks is an exception to the intermediary rule. Id. For plaintiffs that plead an officer obtained an arrest from a magistrate in violation of Franks, nothing more is required to show that the independent intermediary doctrine does not apply to the intermediary's decision. Id. That “does not necessarily prevent a second intermediary's decision-such as a grand jury's indictment-from triggering the independent intermediary doctrine to ultimately insulate the officer from liability.” Id. In a Franks case where a second intermediary is involved, the plaintiff need only show that the second intermediary's deliberations were tainted such that it did not have all the facts before it necessary to render an independent determination of probable cause. Id. at 210. But “there is no requirement to show that each and every defendant . . . tainted the secret grand jury deliberations.” Id. at 209. The Court further clarified that the plaintiffs “must adequately plead (and ultimately prove) that each defendant falls within the scope of liability for the Franks violation allegedly committed in securing the arrest warrant from the magistrate.” Id. (citations omitted).
Plaintiff alleges that Stroman “was on vacation out of state on May 17, 2015” and that Lanning was “Acting Chief of Police for the Waco Police Department in Stroman's absence.” Pl.'s 1st Am. Compl. at ¶ 32. He further alleges that Stroman “was kept in constant communication with his assistant chiefs” and Reyna. Id. at ¶ 37. He also alleges that “Stroman made the decision to allow the arrests of everyone who wore particular colors on their motorcycle vests, as dictated by Reyna,” even though he “did not know what offense would form the basis for the mass arrests.” Id. at ¶¶ 37, 38. As the Fifth Circuit clarified, to be in the scope of Franks liability, a defendant must have participated in the preparation of the warrant application, signed it, or provided information for use in it. See Terwilliger, 4 F.4th at 283. None of Plaintiff's allegations against Stroman plausibly allege that he participated in the preparation of the application while he was on vacation. Nor do they allege that he signed the application or provided information. Instead, Plaintiff's allege that Stroman did not even know what offense the arrestees were to be charged with. Accordingly, Plaintiff's claims against Stroman should be DISMISSED consistent with the Fifth Circuit's opinion in Terwilliger.
Plaintiff alleges that Rogers expected that a “handful of people intended to make trouble” at the Twin Peaks meeting. Pl.'s 1st Am. Compl. at ¶ 7(a). Rogers also allegedly set up video cameras which filmed Plaintiff not participating in the violence. Id. at ¶ 18. Plaintiff also asserts that Rogers should have known that Plaintiff was not a gang member based on “eye witness [sic] information known to Rogers . . . which showed that [Plaintiff] did not commit a crime that day.” Id. at ¶ 46(d). Nowhere in Plaintiff's Complaint does he allege that Rogers provided information to be included in the arrest warrant affidavit or even read it before Chavez swore to it. Plaintiff's claims against Rogers should, therefore, be DISMISSED.
In Terwilliger, the plaintiffs denied affiliation with the Bandidos or Cossacks or any criminal street gang. Terwilliger, 4 F.4th at 282. They also alleged that their attire and behavior before and during the incident was lawful. Id. The Terwilliger plaintiffs further alleged “that the Defendants deliberately excluded relevant information that would have weighed against individualized probable cause, such as video evidence, witness interviews, and membership in motorcycle clubs known to be independent and not affiliated with the Bandidos or Cossacks.” Id. at 283.
Based on these allegations, and assuming that they were true, the Fifth Circuit held that Chavez and Reyna were within the compass of potential Franks liability. Id. at 283-84. Chavez was within the scope because he signed the warrant affidavit and swore to the validity of the facts contained therein. Id. at 283. Reyna was within the scope because the plaintiffs alleged that “Reyna was provided with evidence both from the scene and interviews of attendees,” but directed that “'all bikers wearing colors' should be arrested.” Id. at 284.
Here, Plaintiff alleges that Chavez signed and swore to all 177 affidavits which contained material misrepresentations. Pl.'s 1st Am. Compl. at ¶ 41. Plaintiff also alleges that he is not a member of a criminal street gang and denies that he regularly associates in the commission of criminal activities. Id. at ¶ 44. These allegations clearly put Chavez in the compass of potential Franks liability.
As to Reyna, Plaintiff alleges that “Reyna took over the police investigation,” “acted like a police officer rather than prosecutor, and ordered mass arrests.” Id. at ¶ 7(d). He also alleges that “Reyna urged [Waco Police Department officers] to arrest all of the COC&I attendees who were wearing particular colors.” Id. at ¶ 33. Finally, Plaintiff asserts that “Reyna abdicated his role as prosecutor leading up to the mass arrests by investigating the scene, overruling police officers about whom they did and did not have probable cause to arrest, and by having the probable cause affidavits drafted to effectuate his plan.” Id. at ¶ 40 (emphasis added). While Plaintiff's allegations against Reyna are more sparse than other Twin Peaks complaints, when viewed in a light most favorable to Plaintiff, he has alleged that Reyna provided information for use in or assisted in the preparation of the warrant by developing a plan, directing that the affidavit be drafted to effectuate that plan, and by providing information he learned during the investigation to be included in the affidavit. These allegations, then, place Reyna within the scope of potential Franks liability.
The Court turns next to whether Plaintiff has adequately alleged that the grand jury's deliberations were tainted. The Fifth Circuit held that mere allegations of taint may be adequate to survive a motion to dismiss where the complaint alleges other facts supporting the inference. Wilson v. Stroman, 33 F.4th at 212. It also observed that “allegations about what was presented or omitted in the grand jury room will in some sense be speculative.” Id.
Plaintiff's allegations about whether the grand jury was tainted are slim. Regarding the grand jury proceedings, Plaintiff alleges that Reyna ensured no transcript was created. Pl.'s 1st Am. Compl. at ¶ 63(a). He argues that “it is more than reasonable to believe that the grand jury were handed a stack of indictments . . . and were told that mere presence alone, wearing certain colors, was sufficient to establish probable cause for the crime of engaging in organized criminal activity” because the defendants were indicted for the deaths of ten individuals with “and/or language” when only nine individuals died. Id. at ¶ 63(b). Plaintiff argues that this means that “the grand jury could have technically found probable cause to believe that the indictees were responsible for the death of a 10th man who did not in fact die at Twin Peaks and no probable cause for the 9 that did pass.” Id. He also alleges that the grand jury was presented with false statements about Plaintiff's association with criminal gangs. Id. at ¶ 63(c).
Notably absent from Plaintiff's Complaint is any allegation of fact which could support these conclusory allegations. Plaintiff does not allege who presented the case to the grand jury. Instead, he alleges that Reyna “had 106 people indicted in one day.” Id. at ¶ 63. Nor does Plaintiff allege who testified to the grand jury. In other Twin Peaks cases, the plaintiffs alleged that Chavez testified before the grand jury consistently with his sworn affidavit because he testified consistently with the affidavit at examining trials. Here, Plaintiff merely asserts that there was no probable cause to believe that he committed the offense he was charged for, which is a legal conclusion. Plaintiff has, therefore, failed to allege that the grand jury was tainted and the independent intermediary doctrine applies. Accordingly, Plaintiff's Franks claims against Reyna and Chavez should be DISMISSED.
C. First and Fifth Amendment Violations
Defendants argue that Plaintiff's First Amendment and Fifth Amendment are simply repackaged claims that Plaintiff was arrested without probable cause. In Plaintiff's brief statement of his First and Fifth Amendment claims, Plaintiff asserts that Defendants caused Plaintiff to be arrested “solely for exercising his Constitutional [sic] right of association,” “solely for being present,” and for being a member of a club Defendants did not approve of. Id. at ¶¶ 70, 71, 74. These conclusory allegations are insufficient to state a claim for First Amendment violations. Moreover, Defendants are correct that Plaintiff is merely recasting his unlawful arrest claim under the Fourth Amendment. Since the Court should dismiss Plaintiff's Fourth Amendment unlawful arrest claims, Plaintiff's First and Fifth Amendment claims also cannot survive.
D. Conspiracy
Plaintiff also alleges that “Defendants entered into a conspiracy to deprive Plaintiff of his” constitutional rights and “acted in concert either to orchestrate or to carry out the illegal seizure and cause the illegal arrest.” Id. at ¶ 78. The Complaint further states that the Defendants “conspired to cause a warrant to be issued.” Id. at ¶ 79. Plaintiff's allegations are functionally identical to the allegations in Terwilliger. As the Fifth Circuit held in Terwilliger, the Complaints do not contain any sufficiently pled agreement to violate the Plaintiff's constitutional rights. Terwilliger, 4 F.4th at 285. Plaintiff's conspiracy claims should be DISMISSED.
IV. CONCLUSION
For the reasons outlined above, the undersigned RECOMMENDS that Abelino Reyna's Motion to Dismiss (ECF No. 27); Brent Stroman, Manuel Chavez, and Jeffrey Rogers's Motion to Dismiss (ECF No. 28); and Manuel Chavez, Brent Stroman, and Jeffrey Rogers's Motion to supplement (ECF No. 38). For the following reasons, the undersigned RECOMMENDS Defendants' Motions be GRANTED and the case be DISMISSED.
V. OBJECTIONS
The parties may wish to file objections to this Report and Recommendation. Parties filing objections must specifically identify those findings or recommendations to which they object. The District Court need not consider frivolous, conclusive, or general objections. See Battle v. U.S. Parole Comm'n, 834 F.2d 419, 421 (5th Cir. 1987).
A party's failure to file written objections to the proposed findings and recommendations contained in this Report within fourteen (14) days after the party is served with a copy of the Report shall bar that party from de novo review by the District Court of the proposed findings and recommendations in the Report. See 28 U.S.C. § 636(b)(1)(C); Thomas v Arn, 474 U.S. 140, 150-53 (1985); Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415 (5th Cir. 1996) (en banc). Except upon grounds of plain error, failing to object shall further bar the party from appellate review of unobjected-to proposed factual findings and legal conclusions accepted by the District Court. See 28 U.S.C. § 636(b)(1)(C); Thomas, 474 U.S. at 150-53; Douglass, 79 F.3d at 1415.