Opinion
CAUSE NO. EP-22-CV-367-KC
08-11-2023
Eduardo Daniel REYES, Plaintiff, v. Anthony Paul GREER et al., Defendants.
Brad D. Hall, Levi A. Monagle, Hall Monagle Huffman Wallace, LLC, Albuquerque, NM, Alejandro Acosta, III, Flores, Tawney & Acosta P.C, El Paso, TX, for Plaintiff. James O. Darnell, Sr., Cris Estrada, James (Jeep) O. Darnell, Jr., Jim Darnell, P.C., El Paso, TX, for Defendant Anthony Paul Greer. Eric M. Brittain, Windle Hood Norton Brittain & Jay LLP, El Paso, TX, for Defendants Armando Diaz, Frederick Gomez, Mike Lara. Evan Daine Reed, El Paso City Attorneys Office, El Paso, TX, Mathew Jacob Engelbaum, DOJ-USAO, El Paso, TX, Eric M. Brittain, Windle Hood Norton Brittain & Jay LLP, El Paso, TX, for Defendants Greg Allen, City of El Paso, Texas.
Brad D. Hall, Levi A. Monagle, Hall Monagle Huffman Wallace, LLC, Albuquerque, NM, Alejandro Acosta, III, Flores, Tawney & Acosta P.C, El Paso, TX, for Plaintiff. James O. Darnell, Sr., Cris Estrada, James (Jeep) O. Darnell, Jr., Jim Darnell, P.C., El Paso, TX, for Defendant Anthony Paul Greer. Eric M. Brittain, Windle Hood Norton Brittain & Jay LLP, El Paso, TX, for Defendants Armando Diaz, Frederick Gomez, Mike Lara. Evan Daine Reed, El Paso City Attorneys Office, El Paso, TX, Mathew Jacob Engelbaum, DOJ-USAO, El Paso, TX, Eric M. Brittain, Windle Hood Norton Brittain & Jay LLP, El Paso, TX, for Defendants Greg Allen, City of El Paso, Texas. ORDER Kathleen Cardone, Judge
On this day, the Court considered Defendant Armando Diaz's Motion to Dismiss ("Diaz Motion"), ECF No. 22; Defendants Greg Allen and City of El Paso's Motion to Dismiss ("City Motion"), ECF No. 27; Defendant Mike Lara's Motion to Dismiss ("Lara Motion"), ECF No. 33; Defendant Frederick Gomez's Motion to Dismiss ("Gomez Motion"), ECF No. 34; and Defendant Anthony Greer's Motion to Dismiss ("Greer Motion"), ECF No. 41. For the reasons below, the Diaz Motion is GRANTED, the City Motion is GRANTED, the Lara Motion is GRANTED, the Gomez Motion is GRANTED, and the Greer Motion is GRANTED in part and DENIED in part.
I. BACKGROUND
The following facts are derived from Reyes' Amended Complaint, ECF No. 17, and are taken as true for purposes of adjudicating Defendants' motions to dismiss. See Calhoun v. Hargrove, 312 F.3d 730, 733 (5th Cir. 2002).
A. Fight with Diaz
On the night of January 30, 2021, Plaintiff Eduardo Reyes had a "verbal confrontation" with employees of The Tap, a bar and restaurant in downtown El Paso, and was asked to leave the establishment. Am. Compl. ¶¶ 13-14. While leaving, Reyes "exchanged a few words" with Defendant Armando Diaz, an off-duty detective for the El Paso Police Department ("EPPD"). Id. ¶¶ 15-16. Because Diaz was not in uniform, Reyes did not know he was an EPPD detective. Id. ¶¶ 16, 19.
Diaz followed Reyes out of the bar. Id. ¶ 18. Though Reyes' "hands were at his sides," and though he was making no physically threatening gestures toward Diaz, Diaz "initiated a physical altercation with [Reyes], striking [him] at least twice in the face." Id. ¶¶ 21-22. Reyes "swung wildly to defend himself . . . but did not land any punches." Id. ¶ 24.
Reyes walked away from Diaz, and "Diaz followed [Reyes] as if to continue his attack." Id. ¶¶ 25-26. Diaz then walked to his car, "opened the door and reached inside (where he had guns including his service revolver)." Id. ¶ 27. Afraid that Diaz was reaching for a gun and would "escalate matters," Reyes put on a set of brass knuckles that he had in his car. Id. ¶¶ 29-30, 100. Diaz approached Reyes, but the two did not continue fighting; they "exchanged words," Reyes dropped his brass knuckles, and one of them kicked the brass knuckles away. Id. ¶¶ 31-34. They shook hands and ceased fighting. Id. ¶¶ 35-36.
B. Greer shooting and the City's body-worn camera policy
Two blocks away, Defendant Anthony Greer—an EPPD officer—was patrolling downtown on his bicycle and received a call about a "potential 'fight in progress' at the Tap." Id. ¶¶ 38-39. Greer and his partner biked there, but by the time they arrived, the confrontation had ended. Id. ¶ 42. Reyes was emptyhanded, and Greer did not know that Reyes had ever had brass knuckles. Id. ¶¶ 44-45. "[Reyes] posed no immediate threat to anyone." Id. ¶ 51. Greer got off his bike, and—without investigating the scene or "utiliz[ing] [ ] de-escalation techniques"—shot him in the chest. Id. ¶¶ 46-50. About three months later, Greer was criminally charged for shooting Reyes. Id. ¶ 63. The Complaint is silent regarding the status of the criminal charges against Greer at the time this lawsuit was filed.
When Greer shot Reyes, he and his partner were both required to wear a body-worn camera ("BWC"). Id. ¶¶ 64-65. And under the City's Police Policies & Procedures ("Policy"), they needed to "record all events surrounding the contact, stop, detention, interview, and arrest of suspected violators when safe to do so." Id. ¶ 73. Despite its broad recording provision, the Policy keeps BWC recordings "involv[ing] the use of deadly force by a peace officer or that is otherwise related to an administrative or criminal investigation of an officer" from being "released to the public until all criminal matters have been finally adjudicated and all related administrative investigations have concluded." Id. ¶ 81. EPPD "may permit a person who is depicted in a recording . . . to view [it]," and "may release [a recording] to the public," if it "determines that the viewing [or release] furthers a law enforcement purpose." Id. ¶¶ 82-83.
In the Amended Complaint, Reyes alleges that Officer Greer and his partner were not wearing their BWCs and did not record the shooting, despite the City's Policy. Id. ¶¶ 66, 84-85. Alternatively, he alleges that "there are video recording(s) of the [ ] shooting . . . which were [ ] not turned over to [Reyes]." Id. ¶ 86. He also alleges that there were "videos of the [shooting] captured by eyewitnesses and nearby surveillance cameras which were provided [to Reyes]." Id. ¶ 105.
C. Reyes' arrest and prosecution
Reyes was hospitalized for forty days because of the shooting. Id. ¶ 149. Before he was discharged, Detectives Frederick Gomez and Mike Lara—colleagues of Diaz—"conspired with [ ] Diaz to make [Reyes] appear to be the bad actor . . . and to stretch the facts to allege felonies against [him]." Id. ¶ 95 (internal quotation marks omitted). The officers procured a warrant for Reyes' arrest. See id. ¶ 238.
When Reyes left the hospital, he was arrested and taken to EPPD headquarters for an interrogation with Gomez and Lara. Id. ¶ 96. During the interrogation, Reyes explained that he "never swung his brass knuckles" and only put them on in self-defense, because Diaz had hit him and, Reyes feared, reached for a gun. Id. ¶¶ 100-01. Reyes told Gomez that once he put on the brass knuckles, the fight ended. Id. ¶ 102. After he explained what had happened, Reyes was told he was being charged with aggravated assault with a deadly weapon. Id. ¶ 107.
Reyes alleges he was charged for three reasons: First, "to exonerate [ ] Diaz at [Reyes'] expense"; second, "to assist [EPPD] in the defense of the shooting"; and third, "because [BWC] footage capturing lethal force cannot be released to the public when criminal matters have not been finally adjudicated." Id. ¶¶ 88, 127, 129 (internal quotation marks omitted); see also id. ¶¶ 174-75.
To achieve those goals, "Gomez [and] Lara . . . met to decide to charge [Reyes]," id. ¶ 126, "Gomez recommended that criminal charges be brought," id. ¶ 125, and Diaz and Gomez brought those charges, see id. ¶¶ 147, 175. Gomez and Lara, however, "knew from various video recordings that . . . Diaz . . . began punching [Reyes] . . . and knew there was unmistakable video of assault and battery committed by Diaz." Id. ¶ 158. For his part, "Diaz lied about feeling fear of being hit by [Reyes'] brass knuckles in order to effectuate [the] criminal indictment." Id. ¶ 139; see also id. ¶ 140. He "provided false information to his fellow police detectives, [ ]or was cajoled into doing so . . . , claiming he had been feloniously assaulted by Reyes." Id. ¶ 168. And "EPPD asked or expected Diaz to pursue criminal prosecution of Reyes knowing that video[s] from passersby and other cameras clearly show Diaz repeatedly punching . . . Reyes, not the other way around, in order to help defend the police shooting case [against Greer]." Id. ¶ 174.
In August 2021, Reyes was indicted with one count of aggravated assault with a deadly weapon. Id. ¶ 128. A little over one year later, the charge was dismissed with prejudice. Id. ¶¶ 164-65.
Based on these allegations, Reyes brought excessive force claims against Greer under 42 U.S.C. § 1983 and the Fourth and Fourteenth Amendments, and malicious prosecution claims against Diaz, Gomez, and Lara—as well as three John Doe Defendants—under § 1983 and the Fourth Amendment. Id. ¶¶ 226-240. He also brought several municipal liability claims against the City of El Paso ("the City") and former EPPD Chief Greg Allen (collectively, the "City Defendants"). Id. ¶¶ 241-261. Greer, Diaz, Gomez, Lara, and the City Defendants now move to dismiss the claims against them under Federal Rule of Civil Procedure 12(b)(6). See Greer Mot. 1; Diaz Mot. 1; Gomez Mot. 1; Lara Mot. 1; City Mot. 1.
II. DISCUSSION
A. Standard
1. Rule 12(b)(6)
A motion to dismiss pursuant to Rule 12(b)(6) challenges a complaint on the basis that it fails to state a claim upon which relief may be granted. Fed. R. Civ. P. 12(b)(6). In ruling on a Rule 12(b)(6) motion, the Court must accept well-pleaded facts as true and view them in a light most favorable to the plaintiff. Calhoun, 312 F.3d at 733; Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000). Though a complaint need not contain "detailed" factual allegations, a plaintiff's complaint must allege sufficient facts "to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007); Colony Ins. Co. v. Peachtree Constr., Ltd., 647 F.3d 248, 252 (5th Cir. 2011). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).
"[A] plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (citation and internal quotation marks omitted); Colony Ins. Co., 647 F.3d at 252. Ultimately, the "[f]actual allegations [in the complaint] must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (citation omitted). Nevertheless, "a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and 'that a recovery is very remote and unlikely.' " Id. at 556, 127 S.Ct. 1955 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974)).
2. Qualified immunity
The doctrine of qualified immunity shields government officials from liability "so long as their conduct 'does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.' " Lincoln v. Turner, 874 F.3d 833, 847 (5th Cir. 2017) (quoting Mullenix v. Luna, 577 U.S. 7, 11, 136 S.Ct. 305, 193 L.Ed.2d 255 (2015)). When a defendant invokes qualified immunity, the burden shifts to the plaintiff to demonstrate that the defense does not apply. Id. A plaintiff seeking to defeat qualified immunity must show "(1) that the official violated a statutory or constitutional right, and (2) that the right was 'clearly established' at the time of the challenged conduct." Id. at 847-48 (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 735, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011)).
A clearly established right is one that is "sufficiently clear that every reasonable official would have understood that what he is doing violates that right." Id. at 848 (quoting Reichle v. Howards, 566 U.S. 658, 664, 132 S.Ct. 2088, 182 L.Ed.2d 985 (2012)). This inquiry "does not require a case directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate." Id. (quoting al-Kidd, 563 U.S. at 741, 131 S.Ct. 2074). The law can be clearly established despite "notable factual distinctions between the precedents relied on and the cases then before the Court, so long as the prior decisions gave reasonable warning that the conduct then at issue violated constitutional rights." Id. (quoting Flores v. City of Palacios, 381 F.3d 391, 399 (5th Cir. 2004)).
B. Analysis
1. Malicious prosecution claims
Reyes brings a claim for malicious prosecution against Diaz, Gomez, and Lara in their individual capacities. Am. Compl. ¶¶ 234-40. The officers make three arguments for why this claim should be dismissed: First, that malicious prosecution is not a viable constitutional claim in the Fifth Circuit; second, that Reyes' allegations fail to meet Rule 12(b)(6)'s pleading standard; and third, that they are entitled to qualified immunity. Diaz Mot. ¶¶ 9-22; Gomez Mot. ¶¶ 9-22; Lara Mot. ¶¶ 9-22.
Reyes also brings malicious prosecution claims against them in their official capacities. Am. Compl. ¶¶ 6-8. "The Fifth Circuit has held that it is appropriate to dismiss claims against officers in their official capacities when the 'allegations duplicate [municipal liability] claims.' " Thomas v. City of Galveston, 800 F. Supp. 2d 826, 832 (S.D. Tex. 2011) (quoting Castro Romero v. Becken, 256 F.3d 349, 355 (5th Cir. 2001)). Reyes also brings municipal liability claims based on the malicious prosecution the three officers allegedly instigated. See Am. Compl. ¶¶ 247-52. The Court thus finds that his official capacity claims against Diaz, Gomez, and Lara are duplicative and grants their Motions to Dismiss these claims.
a. Whether Reyes can bring a freestanding claim for malicious prosecution
Diaz, Gomez, and Lara point out that "[t]he Fifth Circuit has traditionally refused to recognize . . . malicious prosecution [claims]." Diaz Mot. ¶ 15 (citing Cuadra v. Hous. Indep. Sch. Dist., 626 F.3d 808, 813 (5th Cir. 2010)); Gomez Mot. ¶ 15 (same); Lara Mot. ¶ 15 (same). Before 2003, the Fifth Circuit permitted malicious prosecution claims. See, e.g., Gordy v. Burns, 294 F.3d 722, 727 (5th Cir. 2002). But that year, the court held that it was not a "freestanding federal claim." Wallace v. Taylor, No. 22-20342, 2023 WL 2964418, at *6 (5th Cir. Apr. 14, 2023) (citing Castellano v. Fragozo, 352 F.3d 939, 942 (5th Cir. 2003) (en banc)). In 2022, however, "the Supreme Court [in Thompson v. Clark, 596 U.S. 36, 142 S. Ct. 1332, 212 L.Ed.2d 382 (2022),] held that litigants may bring Fourth Amendment malicious prosecution claims under § 1983." Id. So the Fifth Circuit overruled its 2003 holding and "reinstated" its pre-2003 precedent, as modified in light of Thompson. See Armstrong v. Ashley, 60 F.4th 262, 278-79 (5th Cir. 2023). As a result of this recent change, Reyes' malicious prosecution claim does not fail from the outset.
b. Whether Reyes states a claim for malicious prosecution
Diaz, Gomez, and Lara argue that even if malicious prosecution claims are viable, Reyes' allegations fail to state a claim. Diaz Mot. ¶¶ 9-14; Gomez Mot. ¶¶ 9-14; Lara Mot. ¶¶ 9-14.
"The elements of the state-law tort of malicious prosecution and the elements of the constitutional tort of 'Fourth Amendment malicious prosecution' are coextensive." Armstrong, 60 F.4th at 279 (quoting Gordy, 294 F.3d at 725). "[C]ourts must look to the elements of a malicious prosecution claim under the law of the state where the offense was committed," in this case Texas. Gordy, 294 F.3d at 726.
In accordance with Texas' formulation of the elements of the malicious prosecution tort, Reyes must plausibly allege facts showing:
(1) the commencement or continuance of an original criminal proceeding; (2) its legal causation by the present defendant against plaintiff who was defendant in the original proceeding; (3) its bona fide termination in favor of the present plaintiff; (4) the absence of probable cause for such proceeding; (5) malice; and (6) damages.Armstrong, 60 F.4th at 279 (quoting Gordy, 294 F.3d at 727). Following Thompson, as an additional "threshold element," a plaintiff also has to prove that the malicious prosecution resulted in "an unlawful Fourth Amendment seizure." Armstrong, 60 F.4th at 279 (citing Thompson, 142 S. Ct. at 1337 n.2).
i. How to determine the elements' scope
Though the Fifth Circuit has clarified that malicious prosecution's elements derive from state law, it has not settled the source of authority that courts must use to delimit the scope of those elements. Prior to the 2003 abrogation of malicious prosecution as a federal constitutional tort, the Fifth Circuit had "given some weight to [modern] state court decisions interpreting the elements of malicious prosecution." Gordy, 294 F.3d at 727 n.4 (citing Izen v. Catalina, 256 F.3d 324, 328 (5th Cir. 2001)). But it had also suggested that "the scope and meaning of [malicious prosecution's] elements are determined without regard to state decisions." Id. at 726-27 (citations omitted). "If malicious prosecution is . . . a federal constitutional tort," the Fifth Circuit reasoned, "the outcome of [a] case should not hinge on how a state defines and shapes the elements of a tort claim." Id. at 727 (citation omitted). In view of these conflicting approaches, it appears that no Fifth Circuit case has definitively resolved whether the elements of malicious prosecution should be interpreted in light of the forum state's contemporary tort law, or some other source of authority. See generally Wallace, 2023 WL 2964418; Armstrong, 60 F.4th 262.
Thompson provides some guidance. There, the Supreme Court held that determining "what [the elements] entail[ ]" means "look[ing] to [ ] malicious prosecution tort law as of 1871," when § 1983 was enacted. Thompson, 142 S. Ct. at 1338 (citing Nieves v. Bartlett, 587 U.S. 391, 139 S. Ct. 1715, 1726, 204 L.Ed.2d 1 (2019)). As the Eleventh Circuit concluded—in an opinion cited favorably by Thompson, see id. at 1340—"modern common law is not the touchstone when defining a [malicious prosecution] claim under section 1983," Laskar v. Hurd, 972 F.3d 1278, 1294 (11th Cir. 2020). Instead, "[w]hen defining the contours of a claim under § 1983, [courts] look to common-law principles that were well settled at the time of its enactment." Nieves, 139 S. Ct. at 1726 (internal quotation marks omitted) (collecting cases). This nineteenth-century law controls, "so long as [it] is consistent with the values and purposes of [the Fourth Amendment]." Thompson, 142 S. Ct. at 1338 (internal quotation marks omitted) (collecting cases).
Though Thompson also derived the elements themselves from nineteenth-century law, and the Fifth Circuit derives them from modern tort law, the two do not conflict. See Thompson, 142 S. Ct. at 1337-38; Armstrong, 60 F.4th at 279. Thompson "identified three minimum elements," which the Fifth Circuit incorporates, and it "largely left the question of [the remaining] elements to the lower courts." Armstrong, 60 F.4th at 278-79 (citing Thompson, 142 S. Ct. at 1338 & n.3).
This approach, of deriving standards from nineteenth-century state common law to the extent they are consistent with the Civil Rights Act and the constitutional right at hand, plays out across § 1983 jurisprudence. See, e.g., Heck v. Humphrey, 512 U.S. 477, 492, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994) (Souter, J., concurring) (collecting cases); Tennessee v. Garner, 471 U.S. 1, 12-13, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985) (collecting cases).
Accordingly, the Court defines the elements of Reyes' malicious prosecution claim in reference to the Fourth Amendment and common law as of 1871. See id. Because the Fifth Circuit did not develop its malicious prosecution caselaw for two decades—and because the elements are interpreted based on general common-law and constitutional principles—the Court relies on other circuits' precedents as persuasive authority, but only to the extent that they accord with Thompson. Cf. Taylor v. Gregg, 36 F.3d 453, 456 (5th Cir. 1994) (citing out-of-circuit precedent to determine the meaning of favorable termination).
ii. Seizure
As a preliminary matter, Reyes must show his malicious prosecution resulted in an unlawful seizure. See Armstrong, 60 F.4th at 279 (citing Thompson, 142 S. Ct. at 1337 n.2). He does not need to prove that all the elements of his claim were satisfied before he was seized, but he does "need[ ] to show . . . that he was seized following some legal process in violation of the Fourth Amendment." Romine v. Athens Clarke County, 774 F. App'x 620, 621 (11th Cir. 2019) (citing Kingsland v. City of Miami, 382 F.3d 1220, 1235 (11th Cir. 2004), abrogated on other grounds by Williams v. Aguirre, 965 F.3d 1147 (11th Cir. 2020)); see also Pitt v. District of Columbia, 491 F.3d 494, 510-11 (D.C. Cir. 2007) (collecting cases). A warrant that results in an arrest suffices. See Goldring v. Henry, No. 19-13820, 2021 WL 5274721, at *4 (11th Cir. Nov. 12, 2021) (quoting Whiting v. Traylor, 85 F.3d 581, 585 (11th Cir. 1996), abrogated on other grounds by Wallace v. Kato, 549 U.S. 384, 127 S.Ct. 1091, 166 L.Ed.2d 973 (2007)); Bianchi v. McQueen, 818 F.3d 309, 322 & n. 5 (7th Cir. 2016).
Here, the officers obtained a warrant to arrest Reyes after conspiring together to paint him as the instigator of the fight outside the Tap, and when Reyes was discharged from the hospital, he was arrested. Am. Compl. ¶¶ 95-96, 238. As explained below, Defendants knew they lacked probable cause; as a result, the warrant was invalid and the arrest unlawful. See Behrens v. Sharp, 15 F.3d 180, 1994 WL 24936, at *3 (5th Cir. Jan. 18, 1994) ("The legality of [an] arrest [ ] turns on whether there was probable cause to support it."); United States v. Morris, 477 F.2d 657, 662 (5th Cir. 1973) ("[A] warrant's validity [ ] turn[s] upon . . . probable cause."). Because Reyes was unlawfully arrested pursuant to a warrant, he has sufficiently pleaded that his malicious prosecution resulted in a seizure. See Armstrong, 60 F.4th at 279; Goldring, 2021 WL 5274721, at *4.
iii. Commencement
For the first element of his claim, Reyes must show a criminal proceeding was commenced against him. Armstrong, 60 F.4th at 279 (quoting Gordy, 294 F.3d at 727). An arrest can commence criminal proceedings, as can an indictment. See Goldring, 2021 WL 5274721, at *4-5; Mills v. Barnard, 869 F.3d 473, 480 (6th Cir. 2017) ("The prototypical case of malicious prosecution involves . . . [a] wrongful arrest or indictment."). Reyes was arrested as soon as he was discharged from the hospital, and five months later, he was indicted for aggravated assault. Id. ¶¶ 96, 128. So the commencement element of his claim is met. See Goldring, 2021 WL 5274721, at *4-5; Mills, 869 F.3d at 480.
iv. Causation
For the second element—causation—"an officer may be responsible for commencing a criminal proceeding against a plaintiff, where the officer made, influenced, or participated in the decision to prosecute." Sykes v. Anderson, 625 F.3d 294, 311 (6th Cir. 2010) (quoting Fox v. DeSoto, 489 F.3d 227, 237 (6th Cir. 2007), abrogated on other grounds by Pearson v. Callahan, 555 U.S. 223, 227, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009)) (cleaned up). An officer's false testimony at a preliminary hearing may suffice to link him to the commencement of the proceeding. See id. at 312. Yet an officer is also responsible for commencing a proceeding "when they have lied to or misled the prosecutor, . . . failed to disclose exculpatory evidence to the prosecutor, . . . or unduly pressured the prosecutor to seek the indictment." Evans v. Chalmers, 703 F.3d 636, 647-48 (4th Cir. 2012) (citations omitted).
Reyes alleges that Gomez and Lara "met to decide to charge [him]," Am. Compl. ¶ 126, and that Diaz and Gomez filed those charges, id. ¶¶ 147, 175. "[I]n order to effectuate [the] criminal indictment," Diaz "lied about feeling fear of being hit by [Reyes'] brass knuckles." Id. ¶ 139; see also id. ¶ 175 ("Diaz filed false felony charges."). Gomez and Lara "knew from various video recordings that . . . Diaz . . . began punching [Reyes] . . . and [that] there was unmistakable video of assault and battery committed by Diaz." Id. ¶ 158. And, as explained below, these facts would establish that Reyes acted in self-defense, vitiating probable cause to arrest him on assault charges. Yet rather than disclose this exculpatory information, the two "conspired with [ ] Diaz to . . . stretch the facts to allege felonies against Reyes." Id. ¶ 95 (internal quotation marks omitted). In alleging that Diaz lied, and that all three Defendants failed to disclose exculpatory evidence, Reyes sufficiently alleges that Defendants caused the proceedings against him. See Evans, 703 F.3d at 647-48.
v. Independent intermediary
Defendants argue that a magistrate judge and a grand jury broke the causal chain by independently finding that probable cause supported the criminal charge against Reyes. See Diaz Mot. ¶¶ 21-22; Gomez Mot. ¶¶ 21-22; Lara Mot. ¶¶ 21-22. And Reyes alleges that he was arrested pursuant to a warrant, and that a grand jury returned an indictment. See Am. Compl. ¶¶ 90, 96, 128, 238.
"It is well settled 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." Curtis v. Sowell, 761 F. App'x 302, 304 (5th Cir. 2019) (quoting Taylor, 36 F.3d at 456). The same is true for malicious prosecution. See Bledsoe v. Willis, 665 F. Supp. 3d 810, 819-20 (W.D. La. Mar. 30, 2023).
Yet "[t]here is an exception to the independent intermediary rule if the plaintiff shows that the deliberations of that intermediary were in some way tainted by the actions of the defendant." Curtis, 761 F. App'x at 304 (quoting Deville v. Marcantel, 567 F.3d 156, 170 (5th Cir. 2009) (internal quotation marks omitted)); see also Evans, 703 F.3d at 648 (collecting cases) (applying these principles to a malicious prosecution causation analysis). "[A] plaintiff must show that the [officer's] malicious motive led the [officer] to withhold relevant information or otherwise misdirect the independent intermediary by omission or commission." Curtis, 761 F. App'x at 304 (quoting McLin v. Ard, 866 F.3d 682, 689 (5th Cir. 2017)). "[M]ere allegations of taint . . . may be adequate to survive a motion to dismiss where the complaint alleges other facts supporting the inference." Id. at 304-05 (first quoting Cuadra, 626 F.3d at 813; and then quoting McLin, 866 F.3d at 690 (internal quotation marks omitted)).
In McLin, for example, the plaintiff's allegations rebutted the defendant's independent intermediary argument. 866 F.3d at 690-91. He alleged that "the [d]efendants . . . convened for the purposes of discussing the pursuit of criminal charges against [him]," that they "conspired . . . to create false and materially misleading arrest warrant affidavits," and that "the arrest warrants were issued on the basis of the falsified affidavits." Id. (internal quotation marks omitted). In Slaughter v. Torres, by contrast, the plaintiff only alleged that the "[d]efendant caused [the] [p]laintiff to be falsely charged with a criminal offense, . . . even though [he] knew that the charges . . . were false." 592 F. Supp. 3d 515, 527 (M.D. La. 2022) (internal quotation marks omitted). These bare-bones allegations were insufficient to show the defendant tainted a judge's finding of probable cause. See id.
Just as the McLin defendants "convened . . . [to] discuss[ ] the pursuit of criminal charges" and "conspired . . . to create false . . . arrest warrant affidavits," 866 F.3d at 690, "Gomez [and] Lara . . . met to decide to charge [Reyes]," Am. Compl. ¶ 126, and "conspired with [ ] Diaz to . . . stretch the facts to allege felonies against [him]," id. ¶ 95 (internal quotation marks omitted). And unlike the Slaughter plaintiff's conclusory allegation that the defendant knew the charges to be "false," Reyes specifically alleges that Diaz lied about fearing him to secure the indictment and that Gomez and Lara knew from videos that Diaz attacked Reyes, "not the other way around." Compare 592 F. Supp. 3d at 527, with Am. Compl. ¶¶ 139-40, 158, 174. Reyes thus alleges enough facts to "support[ ] the inference" of taint. See Curtis, 761 F. App'x at 304-05 (quoting McLin, 866 F.3d at 690). Therefore, taking Reyes' allegations as true, neither the magistrate judge's nor the grand jury's finding of probable cause severed the causal chain because their decisions were tainted. See Evans, 703 F.3d at 648. Accordingly, Reyes has sufficiently pleaded the causation element of his claim.
vi. Favorable termination
For the third element—favorable termination—"[a] plaintiff need only show that the criminal prosecution ended without a conviction." Thompson, 142 S. Ct. at 1341. It suffices to show that "the prosecutor abandoned the [ ] case." Id. at 1339. Because Reyes alleges that the charges against him were dismissed, he properly alleges that the proceedings against him were favorably terminated. See id.; Am. Compl. ¶¶ 164-65, 178.
vii. Probable cause
At the fourth element, to determine the existence of probable cause, courts ask "whether a reasonable officer—at the time when criminal proceedings were instituted and based solely on the facts as the officer[ ] honestly and reasonably believed them to be—would believe to a 'fair probability' that a crime had been committed." Gordy, 294 F.3d at 728 (citing Piazza v. Mayne, 217 F.3d 239, 246 (5th Cir. 2000) (per curiam)).
A grand jury indictment creates a presumption of probable cause, which is rebutted by evidence that the indictment stemmed from the defendant's lies or omissions. See Moore v. Hartman, 571 F.3d 62, 67 (D.C. Cir. 2009) (collecting cases). The parties do not address whether Defendants are entitled to this presumption. See generally Am. Compl.; Diaz Mot.; Gomez Mot.; Lara Mot. But, as discussed in connection with the causation element and the officers' independent intermediary arguments, Reyes has alleged that Diaz lied to procure the indictment, and that all three individual Defendants withheld information, so there is no presumption of probable cause at this stage. See Moore, 571 F.3d at 67.
But an affirmative defense can destroy probable cause. To be sure, the Fifth Circuit "has repeatedly refused to opine on whether 'facts supporting the existence of an affirmative defense are relevant to the determination of probable cause.' " Loftin v. City of Prentiss, 33 F.4th 774, 780 n.2 (5th Cir. 2022) (quoting Piazza, 217 F.3d at 246-47) (collecting cases). But in Thomas, another district court in this circuit noted that multiple appellate courts "have held that evidence of an affirmative defense is relevant to the probable cause inquiry in some circumstances." Thomas v. City of Galveston, 800 F. Supp. 2d 826, 835 (S.D. Tex. 2011) (collecting cases). "As the Seventh Circuit summarized the law, 'A police officer may not ignore conclusively established evidence of the existence of an affirmative defense.' " Id. at 836 (quoting Hodgkins ex rel. Hodgkins v. Peterson, 355 F.3d 1048, 1061 (7th Cir. 2004)). Indeed, allowing officers to ignore evidence would invest too much in "the formalistic distinction between 'elements of a crime' and 'affirmative defenses.' " Id.
The law of those other circuits squares with general probable cause principles recognized by the Fifth Circuit. Under Fifth Circuit precedent, "[t]he probable cause inquiry looks at the 'totality of facts and circumstances within a police officer's knowledge at the moment of arrest.' " Id. (quoting United States v. Wadley, 59 F.3d 510, 512 (5th Cir. 1995)). "A 'corollary' of that rule is that officers 'may not disregard facts tending to dissipate probable cause.' " Id. (quoting Bigford v. Taylor, 834 F.2d 1213, 1218 (5th Cir. 1988)). In light of these principles, this Court finds the Thomas court's reasoning persuasive. The probable cause inquiry "does not require an officer to affirmatively investigate potential defenses, but it prohibits him from ignoring knowledge that he already possesses." Id.
While Thomas considered a false arrest claim, id. at 834, "[b]oth false arrest and malicious prosecution causes of action require a showing of no probable cause," Hall v. Ramsey, 470 F. App'x 297, 298 (5th Cir. 2012) (collecting cases).
viii. Whether Reyes had an affirmative defense
Reyes was indicted for aggravated assault, Am. Compl. ¶ 128, and he admits that he donned brass knuckles during his confrontation with Diaz, id. ¶¶ 29-30, 100, a concession which, at first blush, would appear to establish probable cause for aggravated assault charges, see Tex. Penal Code § 22.02 (defining aggravated assault). But Reyes contends that he put on his brass knuckles in self-defense, and that Defendants knew as much. See Am. Compl. ¶¶ 100-03, 162.
Because Reyes was charged under Texas law, the Court employs Texas law to determine whether he had an affirmative defense that would undermine probable cause. See Am. Compl. ¶ 90; see, e.g., McLin, 866 F.3d at 695 (analyzing state law to determine if the probable cause element was met for a § 1983 false arrest claim).
A threat of self-defense is justified if self-defense itself would be. See Tex. Penal Code § 9.04. While Reyes did not explicitly threaten to use his brass knuckles, "[t]he display of a deadly weapon constitutes a threat." Gamino v. State, 480 S.W.3d 80, 88 (Tex. App. 2015) (citing Sosa v. State, 177 S.W.3d 227, 231 (Tex. App. 2005)), aff'd, 537 S.W.3d 507 (Tex. Crim. App. 2017). And the brass knuckles constituted a deadly weapon if Reyes "intend[ed] a use . . . which [ ] would be capable of causing death or serious bodily injury." McCain v. State, 22 S.W.3d 497, 503 (Tex. Crim. App. 2000). Reyes displayed his brass knuckles when he put them on during his confrontation with Diaz. See Am. Compl. ¶¶ 30-32. And it appears he intended to hit Diaz with them, which would have been capable of causing serious injury. See id. ¶¶ 29-31, 100. So Reyes' brass knuckles count as a deadly weapon, and by displaying them, he threatened Diaz. See Gamino, 480 S.W.3d at 88.
Threatening deadly force requires more of a justification than threatening non-deadly force. Compare Tex. Penal Code § 9.31, with id. § 9.32. Much like the definition of a deadly weapon, deadly force is "intended . . . to cause" or "is capable of causing[ ] death or serious bodily injury." Id. § 9.01(3). And, again, it appears Reyes intended to hit and seriously injure Diaz. See Am. Compl. ¶¶ 29-31, 100. His threat with a deadly weapon was thus a threat of deadly force. Cf. McCain, 22 S.W.3d at 503 ("[O]bjects used to threaten deadly force are in fact deadly weapons.").
For this threat to have been justified, (1) threatening non-deadly force must have been justified under Section 9.31 of the Texas Penal Code, and (2) Reyes must have "reasonably believ[ed] the [threat of] deadly force [was] immediately necessary[ ] to protect [himself] against [Diaz's] use or attempted use of unlawful deadly force." Tex. Penal Code § 9.32(a). Relevant here, Section 9.31 lays out several circumstances when threatening force is not justified—for instance, "in response to verbal provocation alone." See id. § 9.31(b). But none of these circumstances apply. See id.; see generally Am. Compl.
Therefore, Reyes' threat was justified if he subjectively believed that it was necessary to protect himself from Diaz's deadly force, and that belief was objectively reasonable. See Tex. Penal Code § 9.32(a)(2). First, Reyes must have subjectively believed that Diaz "attempted to use . . . deadly force . . . and that [Reyes' threat of force] in response was immediately necessary." Lozano v. State, 636 S.W.3d 25, 32 (Tex. Crim. App. 2021) (citing Semaire v. State, 612 S.W.2d 528, 530 (Tex. Crim. App. 1980)). Reyes put on his brass knuckles because he "[f]ear[ed] that the man who had physically assaulted him was retrieving a weapon" and that he would use it "to escalate matters." Am. Compl. ¶¶ 29, 100. Taking these allegations as true and drawing all reasonable inferences in his favor, Reyes believed that Diaz was intending to use deadly force and that he needed to protect himself against it.
Second, Reyes' belief that he needed to protect himself must have been reasonable. See Tex. Penal Code § 9.32(a)(2). Such a belief is more likely to be reasonable if someone is defending themself against a person who has hurt them before. In Carmen v. State, for instance, a son shot and killed his abusive father. 276 S.W.3d 538, 539 (Tex. App. 2008). The court held that the son's belief that he needed to use deadly force was reasonable, in part because he had been severely beaten by his father in the past. Id. at 545.
Someone's belief is also more likely to be reasonable if they are defending themselves against someone trying to retrieve a gun. For example, in Hamel v. State, the defendant stabbed his attacker and was denied a self-defense jury instruction at trial. 916 S.W.2d 491, 491-92 (Tex. Crim. App. 1996). He feared his attacker would use deadly force because he was told the attacker had a gun in his car, and the attacker, who was walking back to his car, had threatened to use it. Id. at 493-94. The appeals court reversed, holding that the defendant was entitled to the jury instruction because his belief had been reasonable. Id. at 494.
Even though Reyes, unlike the son in Carmen, was not the victim of a long history of abuse by Diaz, his case resembles Carmen in that Diaz attacked Reyes before Reyes turned to self-defense. After "exchang[ing] a few words" at the Tap, Diaz followed Reyes and "struck [him] twice in the face," though "[his] hands were at his sides and he made no physical[ly] threatening gesture[s]." Am. Compl. ¶¶ 15, 22. And as in Hamel, Reyes could have reasonably believed that Diaz was moving for his gun, even if he did not expressly threaten to use it. Diaz walked to his car "and reached inside (where he had guns including his service revolver)." Id. ¶ 27. He then "approached [Reyes] as [if he] was going to continue the [ ] altercation," and Reyes feared he would "escalate matters." Id. ¶¶ 31, 100. Because Diaz had attacked Reyes, and because Reyes had reason to believe Diaz was approaching him with a gun, Reyes' fear of deadly force was reasonable. See Carmen, 276 S.W.3d at 545; Hamel, 916 S.W.2d at 493-94. Thus, taking his allegations as true, Reyes was acting in self-defense.
If Defendants were aware of the facts that established this defense, then they lacked probable cause for aggravated assault. See Thomas, 800 F. Supp. 2d at 835-36. And Reyes alleges that they were aware: "[V]ideo[s] . . . clearly show Diaz repeatedly punching . . . Reyes, not the other way around." Am. Compl. ¶ 174. The same videos allegedly show that Reyes put on his brass knuckles after "Diaz had already struck [Reyes] several times, and [ ] Diaz had gone to his truck to possibly obtain a weapon." Id. ¶¶ 100, 105. And Gomez and Lara "knew from [these] various video recordings that . . . Diaz . . . began punching [Reyes] . . . and knew there was unmistakable video of assault and battery committed by Diaz." Id. ¶ 158. Diaz himself "claim[ed] he had been feloniously assaulted by Reyes, when in fact [he] went outside the bar to accost and assault [Reyes]." Id. ¶ 168. Because they knew that Diaz attacked Reyes, and that Diaz reached for his gun, they were aware of the facts that would establish Reyes' claim of self-defense. See Thomas, 800 F. Supp. 2d at 835-36. And because they knew about this affirmative defense, they lacked probable cause. See id. The Court thus concludes that Reyes sufficiently pleaded this element of his malicious prosecution claim.
ix. Malice
Defendants next argue Reyes has failed to allege any specific facts to sustain his claim on the fifth element, malice. See Diaz Mot. ¶ 10; Gomez Mot. ¶¶ 12-14; Lara Mot. ¶¶ 12-14. Yet "[d]eliberately concealing or [ ] failing to disclose exculpatory evidence . . . [can] form the basis for an inference that a defendant police officer acted with malice." Sanders v. English, 950 F.2d 1152, 1163 (5th Cir. 1992) (first citing Goodwin v. Metts, 885 F.2d 157, 162 (4th Cir. 1989); and then citing Jones v. City of Chicago, 856 F.2d 985, 993 (7th Cir. 1988)), overruled on other grounds by Albright v. Oliver, 510 U.S. 266, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994). Likewise, it is well established that malice can be inferred from the absence of probable cause. See Stewart v. Sonneborn, 98 U.S. 187, 194, 25 L.Ed. 116 (1878); Young v. City of Idabel, 721 F. App'x 789, 804 (10th Cir. 2018) (collecting cases). As just discussed, Defendants lacked probable cause because they knew that Reyes had a viable self-defense claim. And as discussed earlier, Defendants failed to disclose exculpatory information. See, e.g., Am. Compl. ¶¶ 95, 126, 158. Reyes has thus properly pleaded the malice element of his malicious prosecution claim. See Young, 721 F. App'x at 804; Sanders, 950 F.2d at 1163.
x. Damages
The sixth and final element is damages. Among other injuries, emotional distress satisfies this element. See, e.g., Wynn v. City of Griffin, No. 19-10479, 2021 WL 4848075, at *6 (11th Cir. Oct. 18, 2021) (citing Laskar, 972 F.3d at 1292). And Reyes alleges that he suffered "stress, anxiety and [ ] depression," as well as "flashbacks." Am. Compl. ¶¶ 210-11. The damages element of malicious prosecution is therefore met as well.
In sum, Reyes sufficiently alleges that he was seized; that a criminal proceeding was commenced against him, favorably terminated, and lacked probable cause; that Defendants acted with malice; and that he suffered damages. He thus states a claim for malicious prosecution against Diaz, Gomez, and Lara. See Armstrong, 60 F.4th at 279 (quoting Gordy, 294 F.3d at 727).
c. Qualified immunity
While Reyes has sufficiently pleaded a claim for malicious prosecution, he must also show that Defendants violated a right that was " 'clearly established' at the time of the challenged conduct." Lincoln, 874 F.3d at 847-48 (quoting Morgan v. Swanson, 659 F.3d 359, 371 (5th Cir. 2011)). Reyes was charged and indicted in 2021. Am. Compl. ¶ 128. At the time, the Fifth Circuit did not recognize malicious prosecution claims—Thompson was not decided until 2022, and the Fifth Circuit did not hold that Thompson abrogated its precedent until 2023. Armstrong, 60 F.4th at 279. In this exact situation—a claim of malicious prosecution based on charges filed before Thompson—the Fifth Circuit held that "a claim that [the Court] had expressly not recognized is the antithesis of a clearly established one." Wallace, 2023 WL 2964418, at *6 (quoting Watts v. Northside Indep. Sch. Dist., 37 F.4th 1094, 1096 (5th Cir. 2022)) (cleaned up). Because Reyes' right against malicious prosecution was not clearly established in 2021, Diaz, Gomez, and Lara are entitled to qualified immunity from Reyes' malicious prosecution claim. See id. Their Motions to Dismiss Reyes' malicious prosecution claims against them in their individual capacities are therefore granted.
2. Conspiracy claims
Reyes also claims that Diaz, Gomez, and Lara conspired to maliciously prosecute him. Am. Compl. ¶¶ 95, 129. "An action for conspiracy may be maintained under section 1983." Ryland v. Shapiro, 708 F.2d 967, 974 (5th Cir. 1983) (citing Slavin v. Curry, 574 F.2d 1256, 1261 (5th Cir. 1978), overruled in part on other grounds by Sparks v. Duval Cnty. Ranch Co., 604 F.2d 976, 978 & n.2 (5th Cir. 1979) (en banc)). To do so, a plaintiff must prove two things: first, "the existence of a conspiracy involving state action," and second, "a deprivation of civil rights in furtherance of the conspiracy by a party to the conspiracy." Shaw v. Villanueva, 918 F.3d 414, 419 (5th Cir. 2019) (quoting Pfannstiel v. City of Marion, 918 F.2d 1178, 1187 (5th Cir. 1990), abrogated on other grounds by Martin v. Thomas, 973 F.2d 449 (5th Cir. 1992)).
But a defendant is "entitled to qualified immunity from the § 1983 conspiracy claim if they are entitled to qualified immunity from the underlying § 1983 claims." Adams v. City of New Orleans, No. CV 15-1543, 2016 WL 4275246, at *7 (E.D. La. Aug. 15, 2016) (quoting Hill v. City of Seven Points, 31 F. App'x 835 (5th Cir. 2002)). Because Defendants are entitled to qualified immunity on the underlying malicious prosecution claim, they are entitled to qualified immunity from the conspiracy to commit malicious prosecution claim as well. Therefore, their Motions to Dismiss are also granted as to Reyes' malicious prosecution conspiracy claims.
3. Excessive force claim
Reyes brings an excessive force claim against Greer in his individual capacity. Am. Compl. ¶¶ 226-33. In response, Greer invokes qualified immunity, arguing that Reyes fails to state a claim for excessive force, and that even if he does, the law is not clearly established. Greer Mot. ¶¶ 7-12.
Reyes also brings an excessive force claim against Greer in his official capacity. Am. Compl. ¶ 5. But because that claim is duplicative of a municipal liability claim, Greer's Motion to Dismiss the official capacity claim is granted. See Am. Compl. ¶¶ 241-46; Thomas, 800 F. Supp. 2d at 832.
a. Constitutional violation
"To prevail on an excessive force claim, a plaintiff must show (1) an injury that (2) resulted directly and only from the use of force that was excessive to the need and that (3) the force used was objectively unreasonable." Sam v. Richard, 887 F.3d 710, 713 (5th Cir. 2018) (quoting Windham v. Harris County, 875 F.3d 229, 242 (5th Cir. 2017) (internal quotation marks omitted)). This is a fact-intensive inquiry that depends on the "circumstances of each particular case." Deville, 567 F.3d at 167 (quoting Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989)).
For the first element of an excessive force claim—injury—"a de minimis injury is not cognizable" under § 1983. Sam, 887 F.3d at 713 (quoting Alexander v. City of Round Rock, 854 F.3d 298, 309 (5th Cir. 2017)). But "[a]ny force found to be objectively unreasonable necessarily exceeds the de minimis threshold." Id. (quoting Alexander, 854 F.3d at 309). Therefore, "as long as a plaintiff has suffered some injury, even relatively insignificant injuries and purely psychological injuries will prove cognizable when resulting from an officer's unreasonably excessive force." Id. (quoting Alexander, 854 F.3d at 309).
"The second and third elements collapse into a single objective-reasonableness inquiry." Peña v. City of Rio Grande City, 879 F.3d 613, 619 (5th Cir. 2018) (citing Scott v. Harris, 550 U.S. 372, 381, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007)). This inquiry is guided by the so-called Graham factors: "the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight." Graham, 490 U.S. at 396, 109 S.Ct. 1865 (citing Tennessee v. Garner, 471 U.S. 1, 8-9, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985)); accord Peña, 879 F.3d at 619.
Reyes endured severe physical and psychological injuries: Because of the shooting, he spent forty days in the hospital. Am. Compl. ¶ 149. He underwent surgery and suffered medical complications—including vomiting and excreting blood. Id. ¶¶ 189-206. And he now uses a colostomy bag. Id. ¶¶ 190, 196, 206. He has felt "stress, anxiety and [ ] depression." Id. ¶ 211. And he experiences traumatic flashbacks to the shooting. Id. ¶¶ 209, 218. Thus, the first element of his excessive force claim is met.
Turning to the Graham factors, "[w]hen considering the severity of a crime . . . courts will normally consider the inherent violence of the offense." Campbell v. City of Indianola, 117 F. Supp. 3d 854, 869 (N.D. Miss. 2015) (collecting cases). And "crime[s] of violence," like assault, are more likely to necessitate the use of force than minor crimes, like traffic offenses. See Starr v. Marion County, 573 F. Supp. 3d 1076, 1083 (S.D. Miss. 2021) (citing Parker v. Gerrish, 547 F.3d 1, 9 (1st Cir. 2008)); see also Nowell v. Acadian Ambulance Serv., 147 F. Supp. 2d 495, 509 (W.D. La. 2001) (holding that "aggravated assault on a peace officer with a firearm" was a serious crime).
But the Court must also consider whether a reasonable officer on the scene would have thought that a crime was occurring. See Mazoch v. Carrizales, 733 F. App'x 179, 182 (5th Cir. 2018). In Mazoch, for example, the plaintiff assaulted three police officers with his car, and one of them then shot him. Id. at 180-81. The plaintiff argued that the first Graham factor cut in his favor because the assault had ended by the time he was shot. Id. at 182. The court rejected his argument. Id. at 182-83. Fearing that one of officers was still underneath the car, the officer who fired the shot "could reasonably believe that the assault was ongoing," id. at 182, as "the length of time between the assault and the gunshot 'was insufficient for the officer to perceive new information indicating the threat was past.' " Id. at 184 (quoting Lytle v. Bexar County, 560 F.3d 404, 414 (5th Cir. 2009) (internal quotation marks omitted)).
Unlike in Mazoch, Reyes' allegations do not suggest any reason for Greer to have thought that "the assault was ongoing." See id. at 182; see generally Am. Compl. When Greer arrived outside the Tap, Reyes "was standing on the sidewalk with empty hands," and the fight he had been called about had ended. Am. Compl. ¶¶ 43, 45. When he fired his gun, Reyes was "visibly unarmed." Id. ¶ 52. So a reasonable officer in Greer's position would have seen that Reyes was not committing a crime, let alone a severe one. The first Graham factor thus weighs in Reyes' favor. See Newman v. Guedry, 703 F.3d 757, 764 (5th Cir. 2012) (holding that force was excessive in part because the plaintiff had not committed a crime).
But even if the Court were to assume that the first Graham factor undercuts Reyes' claim because Greer reasonably believed he had committed aggravated assault, the other Graham factors weigh strongly in his favor. His allegations do not suggest he posed a danger to Greer or anyone else outside the Tap by the time Greer arrived. See Am. Compl. ¶¶ 42-46. In Cooper v. Brown, the Fifth Circuit held that the plaintiff was not a danger in part because "[the officer] could see [the plaintiff's] hands and knew he had no weapon." 844 F.3d 517, 522-23 (5th Cir. 2016). Similarly, when Greer shot Reyes, Reyes was empty-handed, his brass-knuckles had been kicked away, and, crucially, Greer did not know that Reyes had ever had them. Am. Compl. ¶¶ 43-45. Reyes' allegations do not even suggest that Greer saw the knuckles on the ground. See id. This factor thus weighs heavily in Reyes' favor. See Harmon v. City of Arlington, 16 F.4th 1159, 1163 (5th Cir. 2021) ("The threat-of-harm factor typically predominates the analysis when deadly force has been deployed."). As does the final Graham factor. Reyes was neither resisting Greer nor attempting to leave the scene—he was simply "standing on the sidewalk," his fight with Diaz already over. Am. Compl. ¶¶ 42, 45.
And even assuming some level of force may have been justified, Greer's immediate escalation to deadly force was not. "[The Fifth Circuit] has several times found that the speed with which an officer resorts to force is relevant in determining whether that force was excessive." Trammell v. Fruge, 868 F.3d 332, 342 (5th Cir. 2017) (collecting cases). Force is more likely to be reasonable "when it involve[s] 'measured and ascending responses' to a plaintiff's noncompliance." Poole v. City of Shreveport, 691 F.3d 624, 629 (5th Cir. 2012) (quoting Galvan v. City of San Antonio, 435 F. App'x 309, 311 (5th Cir. 2010)). But when officers "engage[ ] in very little . . . negotiation" before using force, Deville, 567 F.3d at 168, or "immediately resort[ ] to [force] without attempting to use physical skill, negotiation, or even commands," Newman, 703 F.3d at 763, courts are more likely to consider their use of force unreasonable. This is especially true when an officer uses deadly force, which officers must employ with more restraint than non-deadly force. See Garza v. Briones, 943 F.3d 740, 745 (5th Cir. 2019) (quoting Flores, 381 F.3d at 399).
Greer dismounted his bike and immediately shot Reyes, without investigating and without "utiliz[ing] [ ] de-escalation techniques." Am. Compl. ¶¶ 46-50. And there is no indication that Reyes was noncompliant. See generally id. Rather than deploy measured and ascending responses, Greer's first act was to shoot, strongly suggesting his actions were unreasonable. See Poole, 691 F.3d at 629.
In sum, whether or not Reyes committed a severe crime, shooting him was unreasonable—he posed no danger, was not resisting arrest, and was not attempting to flee. See El-Amin v. Flores, No. CV H-17-1268, 2018 WL 8733162, at *6 (S.D. Tex. Dec. 19, 2018) (collecting cases in which the suspect's crime was severe but the officer's use of force was still unreasonable). On top of that, Greer immediately resorted to deadly force. His use of force was thus excessive. See id.; Garza, 943 F.3d at 745; Poole, 691 F.3d at 629.
b. Clearly established right
Reyes must also show that Greer's use of force violated clearly established law. See Lincoln, 874 F.3d at 847-48 (quoting Morgan, 659 F.3d at 371). And both the Fifth Circuit and Supreme Court have clearly established that "deadly force violates the Fourth Amendment unless 'the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others.' " Bazan ex rel. Bazan v. Hidalgo County, 246 F.3d 481, 488 (5th Cir. 2001) (quoting Garner, 471 U.S. at 11, 105 S.Ct. 1694) (emphasis omitted). To be sure, "[u]se of excessive force is an area of the law 'in which the result depends very much on the facts of each case,' and thus police officers are entitled to qualified immunity unless existing precedent 'squarely governs' the specific facts at issue." Kisela v. Hughes, 584 U.S. 100, 138 S. Ct. 1148, 1153, 200 L.Ed.2d 449 (2018) (quoting Mullenix, 577 U.S. at 13, 136 S.Ct. 305).
Still, it is well established that force is more likely to be excessive when the suspect is neither resisting arrest nor fleeing. Cooper, 844 F.3d at 524-25. And deadly force is excessive when used against an unarmed suspect who poses no immediate threat to others. See Ougel v. Amite City Police Dep't, 352 F. App'x 941, 944 (5th Cir. 2009); Ramos v. Taylor, No. 1:20-CV-1256-RP, 646 F.Supp.3d 807, 818-19 (W.D. Tex. Dec. 19, 2022) (first citing Garner, 471 U.S. at 2, 105 S.Ct. 1694 (1985); and then citing Lytle, 560 F.3d at 408). It is also clearly established that deadly force is excessive when used without a warning, so long as a warning is feasible. Cole v. Carson, 935 F.3d 444, 455 (5th Cir. 2019) (en banc). Likewise, it is clearly established that "abruptly resort[ing] to overwhelming physical force" is excessive when a suspect is neither threatening, fleeing, nor actively resisting. Boyd v. McNamara, 74 F.4th 662, 668-69 (5th Cir. July 24, 2023) (quoting Hanks v. Rogers, 853 F.3d 738, 747 (5th Cir. 2017)).
Of course, each of these cases is not factually on all fours with this one. But they need not be. Lincoln, 874 F.3d at 848 (quoting Flores, 381 F.3d at 399-400) ("The law can be clearly established despite notable factual distinctions between the precedents relied on and the cases then before the Court, so long as the prior decisions gave reasonable warning that the conduct then at issue violated constitutional rights."). And if anything, their differences only underscore that Reyes' rights were clearly established. In Cole, for example, the Fifth Circuit held that officers violated clearly established law when they shot an armed suspect because they did not warn him—though a warning was feasible—and he posed no danger. See 935 F.3d at 455. Here, taking Reyes' allegations as true, he posed no danger, a warning was feasible, and, unlike the suspect in Cole, he was not armed. See Am. Compl. ¶¶ 43-45.
It was thus clearly established that when Greer abruptly shot Reyes—who was not warned, posed no threat, had no weapon, and was neither resisting nor fleeing—he violated the Fourth Amendment. See Cole, 935 F.3d at 455; Cooper, 844 F.3d at 525. Greer's qualified immunity argument thus fails, and his Motion to Dismiss the claim against him in his individual capacity is denied. See Lincoln, 874 F.3d at 847-48 (quoting Morgan, 659 F.3d at 371).
4. Monell claims
Reyes raises multiple municipal liability, or Monell, claims against the City and Greg Allen, in Allen's official capacity. Am. Compl. ¶¶ 241-261. Under Monell v. Department of Social Services, a municipality "can be sued directly under § 1983 . . . [where] the action that is alleged to be unconstitutional implements or executes a policy . . . officially adopted and promulgated by [the municipality's] officers." 436 U.S. 658, 690, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). To state a Monell claim, a plaintiff must identify: "(1) an official policy (or custom), of which (2) a policymaker can be 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)).
As with Reyes' official capacity claims against Greer, Diaz, Gomez, and Lara, his official capacity claims against Allen are duplicative of his Monell claims. See Am. Compl. ¶¶ 241-61. The Court thus grants the City Defendants' Motion to Dismiss the claims against Allen in his official capacity. See Thomas, 800 F. Supp. 2d at 832.
An "official policy or custom" is most clearly established through a formal directive officially adopted and promulgated by a policymaker. See Webster v. City of Houston, 735 F.2d 838, 841 (5th Cir. 1984), modified on reh'g on other grounds, 739 F.2d 993 (5th Cir. 1984). When an "official policy" is not so explicit, the "persistent, widespread practice of city officials or employees . . . so common and well settled as to constitute a custom that fairly represents municipal policy" will suffice. Zarnow v. City of Wichita Falls, 614 F.3d 161, 171 (5th Cir. 2010) (quoting Webster, 735 F.2d at 841). Official policy may also exist where a municipality fails to train its employees, demonstrating a "deliberate indifference" to the rights of its inhabitants. City of Canton v. Harris, 489 U.S. 378, 389-90, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989). Lastly, the existence of a custom or policy may be shown through a "single unconstitutional action" performed by a "final policymaker." Bolton v. City of Dallas, 541 F.3d 545, 548 (5th Cir. 2008) (citing Woodard v. Andrus, 419 F.3d 348, 352 (5th Cir. 2005)).
a. Excessive force Monell claims
Reyes raises a number of Monell claims predicated on Greer's use of excessive force. See Am. Compl. ¶¶ 241-46.
i. Failure to train
He first claims that the moving force behind the shooting was the City's failure to adequately train EPPD officers in "the proper deployment of deadly force." Id. ¶ 242. To succeed on a failure-to-train theory, "[d]efects in a particular training program must be specifically alleged." Quinn v. Guerrero, 863 F.3d 353, 365 (5th Cir. 2017) (citing Roberts v. City of Shreveport, 397 F.3d 287, 293 (5th Cir. 2005)). Of course, courts should only require "minimal factual allegations" about the training programs at the pleading stage, since "it is exceedingly rare that a plaintiff will have access to (or personal knowledge of) specific details regarding the existence or absence of internal policies or training procedures prior to discovery." Thomas, 800 F. Supp. 2d at 842-43. Still, a plaintiff cannot state a failure-to-train claim by making a "conclusory allegation that it is 'apparent from the facts of [the] case' that [ ] excessive force training . . . was insufficient." Speck v. Wiginton, 606 F. App'x 733, 736 (5th Cir. 2015).
Reyes does not point to any specific defects in any particular training programs. See generally Am. Compl. He merely alleges that "there were . . . failures in training . . . within [EPPD] regarding the proper deployment of deadly force." Id. ¶ 242. But this is nothing more than a conclusory allegation that does not sufficiently plead a failure-to-train claim. See Quinn, 863 F.3d at 365; Speck, 606 F. App'x at 736. Without any specific factual allegations about deficiencies in the City's training programs, Reyes' failure-to-train Monell claim cannot proceed.
Reyes also alleges that "public pleadings in lawsuits filed in other . . . cases in El Paso" demonstrate the City's failure to train its officers. Id. ¶ 183. For reasons discussed below, this vague reference to other lawsuits is also inadequate to state a Monell claim.
ii. Failure to discipline
He next claims that the City has "a long and well documented pattern and practice of . . . . fail[ing] to discipline officers who use excessive force." Am. Compl. ¶ 183. For a failure-to-discipline Monell claim, a plaintiff must plausibly allege that the municipality has a policy of failing to discipline officers, which they can establish by alleging "a persistent, widespread practice of [ ] officials or employees, which . . . is so common and well-settled as to constitute a custom that fairly represents municipal policy." See Piotrowski v. City of Houston, 237 F.3d 567, 579 (5th Cir. 2001) (quoting Webster, 735 F.2d at 841). To show such a practice exists, a plaintiff must show that similar unconstitutional acts "have occurred for so long and with such frequency that the course of conduct demonstrates the governing body's knowledge and acceptance of the disputed conduct." Zarnow, 614 F.3d at 169 (citing Webster, 735 F.2d at 842). That is, a pattern requires "[s]ufficiently numerous prior incidents," not "[i]solated instances." McConney v. City of Houston, 863 F.2d 1180, 1184 (5th Cir. 1989). A pattern also 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." Est. of Davis ex rel. McCully v. City of North Richland Hills, 406 F.3d 375, 383 (5th Cir. 2005) (collecting cases).
Reyes does not cite any prior incidents or specific violations. Instead, he alleges that "historical failures to discipline officers for excessive force . . . are laid out in pleadings, briefing and summary judgment rulings in recent Federal cases in the El Paso Division of the Western District of Texas, and need not be repeated here." Am. Compl. ¶ 186; see also id. ¶ 183 ("EPPD fails to discipline officers who use excessive force."). Though the Court must accept all well-pleaded facts as true, Reyes must present more than "a formulaic recitation of the elements" of his claim. Twombly, 550 U.S. at 555, 127 S.Ct. 1955. And Reyes offers no authority for his apparent contention that he can incorporate, wholesale, the factual bases for this Division's recent civil rights decisions into his Complaint by one oblique reference. Thus, without alleging a single specific example, Reyes cannot establish a pattern of the City's failure to discipline, and his failure-to-discipline Monell claim must be dismissed. See McConney, 863 F.2d at 1184.
iii. Written policy
Reyes also claims that the City's BWC Policy was the moving force behind Greer's excessive force violation. Resp. to Defs. the City of El Paso and Greg Allen's Rule 12(b)(6) Motion ("Resp. to City") 5-8, 10, ECF No. 31. The Policy states that recordings "involv[ing] the use of deadly force by a peace officer or that is otherwise related to an administrative or criminal investigation of an officer may not be . . . released to the public until all criminal matters have been finally adjudicated and all related administrative investigations have concluded." Am. Compl. ¶ 81. Reyes argues that keeping recordings from the public "encourage[s] officers to use deadly force . . . [knowing] footage capturing the event will remain under lock-and-key so long as there [is] . . . [a] criminal proceeding[ ] pending." Resp. to City 7. According to Reyes, "Greer would not have shot [him] if he knew he faced any reasonable measure of accountability [based on] his [BWC] recording." Id. at 10.
This argument betrays a misreading of the Policy. Reyes seems to assume that BWC footage will not be released while any related criminal proceedings take place, including criminal proceedings against victims of excessive force. See Am. Compl. ¶ 129; Resp. to City 7, 14. But the Policy withholds recordings "otherwise related to an administrative or criminal investigation of an officer" until "all criminal matters have been adjudicated and all related administrative investigations have concluded"—by its plain text, the Policy is referring to adjudications and investigations of officers, not civilians like Reyes. Am. Compl. ¶ 81 (emphasis added).
On this reading, Reyes fails to plausibly allege that the City's BWC Policy caused Greer's use of excessive force. With a proper understanding of the BWC Policy, Reyes' Monell theory would require the Court to find it plausible that Greer shot him because Greer knew that he would be criminally charged for the shooting and the BWC footage would be withheld as a result. See Resp. City 5-8, 10. This logic is problematically circular—it defies reason to suppose an officer would be motivated to shoot someone because they might be criminally charged for the shooting, and thereby entitled to delay the release of the video footage of that very shooting. Reyes' allegations thus fail to show the Policy was the "moving force" behind the shooting. See Valle, 613 F.3d at 542.
Even if Reyes' tortured reading were correct, he would need to show the Policy and the shooting are connected by "more than a mere 'but for' coupling between cause and effect." Id. at 546 (quoting Thompson v. Connick, 578 F.3d 293, 300 (5th Cir. 2009), rev'd on other grounds by Connick v. Thompson, 563 U.S. 51, 54, 131 S.Ct. 1350, 179 L.Ed.2d 417 (2011)). "The [Policy] must be the actual cause of the constitutional violation." Id. (quoting Thompson, 578 F.3d at 300). Drawing a causal connection thus requires a plaintiff to establish an "affirmativ[e] link[ ]" between the violation and the policy. Henry v. City of Taylor, No. A-06-CA-1007 AWA, 2008 WL 2557489, at *9 (W.D. Tex. June 19, 2008) (quoting Fraire v. City of Arlington, 957 F.2d 1268, 1281 (5th Cir. 1992)). A plaintiff can establish this link by pointing to statistics, for example, or other, similar violations. See Ramirez v. Escajeda, 298 F. Supp. 3d 933, 947 (W.D. Tex. 2018).
The Policy would satisfy Monell's moving-force requirement if it were facially unconstitutional. See Edwards v. City of Balch Springs, 70 F.4th 302, 308 (5th Cir. 2023). But Reyes does not argue it is facially unconstitutional, nor does it appear to be. See generally Am. Compl.; Resp. to City.
Reyes has alleged that the Policy and the shooting were connected, but he does not affirmatively link the two with further allegations, statistics, or examples of similar violations. See generally Am. Compl.; Resp. to City. As a result, his allegation that the BWC Policy caused the shooting does not fulfill Monell's causation requirement or rise "above the speculative level." Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (citation omitted); see also Henry, 2008 WL 2557489, at *9. His BWC Monell claim thus fails too. The City Defendant's Motion to Dismiss is therefore granted as to Reyes' excessive force Monell claims.
b. Malicious prosecution Monell claims
Reyes also raises Monell claims predicated on his underlying malicious prosecution claims. See Am. Compl. ¶¶ 247-52. He first claims that the moving force behind his malicious prosecution was the City's "long and well documented pattern and practice of . . . attempt[ing] to cover up or mitigate excessive force." Am. Compl. ¶ 183. The City, he says, "charg[es] . . . subjects involved in police use of force . . . caus[ing] selective prosecutions[,] such as in this case." Id. Again, to establish a pattern or practice, a plaintiff must bring forward "sufficiently numerous prior incidents" that resemble the constitutional violation in their case. See McConney, 863 F.2d at 1184; see also McCully, 406 F.3d at 383. And again, Reyes cites no specific examples—he only alleges that "public pleadings" in other lawsuits support his allegations. See Am. Compl. ¶ 183. Reyes thus fails to sufficiently plead that the City maintains a pattern or practice of malicious prosecution.
Reyes also claims that his malicious prosecution was caused by the City's BWC Policy. See id. ¶ 257; Resp. to City 14-16. Because the Policy can prevent the public from seeing recordings of deadly force, Reyes alleges it "actively encourage[s] officers and detectives within [EPPD] to charge victims of [ ] excessive force . . . to prevent the release of the evidence." Resp. to City 14. He says that the Policy "provided a significant part of the motivation for [ ] Gomez and [ ] Diaz to . . . pursue criminal charges against [Reyes]." Am. Compl. ¶ 129.
But this argument relies on Reyes' misreading of the Policy. As described above, the Policy keeps recordings of deadly force from the public during criminal and administrative investigations into officers, only. Am. Compl. ¶ 81. For the reasons discussed previously, Reyes' allegations thus fail to show the BWC Policy was the "moving force" behind the charges against him. See Valle, 613 F.3d at 542. The City Defendant's Motion to Dismiss is therefore granted as to Reyes' malicious prosecution Monell claims.
c. Failure to enforce BWC Policy
Finally, Reyes alleges that Greer was required to wear a BWC and that EPPD's failure to enforce that requirement was the moving force behind the shooting and the malicious prosecution. Am. Compl. ¶¶ 253-260. Yet again, Reyes has simply alleged that these violations were caused by the City's actions but has not alleged any facts to establish an "affirmative[ ] link[ ]" between the violations on the one hand, and the City's failure to enforce the BWC Policy on the other. See generally Am. Compl.; see also Henry, 2008 WL 2557489, at *9 (quoting Fraire, 957 F.2d at 1281).
The City Defendants argue that Greer was not required to wear a BWC, City Mot. ¶¶ 31-32, but at this stage, the Court takes the Amended Complaint's allegations as true, Calhoun, 312 F.3d at 733.
Indeed, without such a link, "[c]ourts . . . have universally rejected the theory that a failure to . . . conduct recording of certain law enforcement activities satisfies the . . . causation requirement[ ] of Monell." Wooden v. City of Philadelphia, No. CV 19-1054, 2022 WL 17724423, at *4 (E.D. Pa. Dec. 15, 2022) (collecting cases); see also Elder-Keep v. Aksamit, 460 F.3d 979, 987 (8th Cir. 2006) ("[The plaintiff] has not shown how [the defendant's] failure to use the [recording] equipment 'caused' the alleged assault."); Sidbury v. City of New York, No. 15-CV-4761 (RRM) (RER), 2020 WL 2615926, at *5 (E.D.N.Y. 2020) (granting summary judgment for the defendant when the plaintiff "presented no evidence to support any causal connection between the lack of video recording . . . and [the] alleged injury"); Baldwin v. Colley, No. 15-cv-02762-KAW, 2015 WL 5836923, at *4 (N.D. Cal. Oct. 7, 2015) (noting, as of 2015, that body cameras and their "use by actual police are too new to know its true effects" (quoting Howard M. Wasserman, Moral Panics and Body Cameras, 92 Wash. U. L. Rev. 831, 837 (2015))). Though these cases come from outside the Fifth Circuit, the Court finds their reasoning persuasive. The Court thus holds that Reyes fails to plausibly plead the City's failure to enforce its BWC Policy caused either the shooting or the malicious prosecution. The City Defendant's Motion to Dismiss Reyes' final Monell claim is therefore granted.
In sum, the Court grants the City Defendant's Motion to Dismiss in its entirety.
5. Leave to amend
Finally, the Court considers whether Reyes should be granted to leave to amend his Amended Complaint. Courts "should freely give leave [to amend] when justice so requires." Fed. R. Civ. P. 15(a)(2). But courts may properly deny leave to amend "for a substantial reason, such as undue delay, repeated failures to cure deficiencies, undue prejudice, or futility." United States ex rel. Spicer v. Westbrook, 751 F.3d 354, 367 (5th Cir. 2014) (citing United States ex rel. Steury v. Cardinal Health, Inc., 625 F.3d 262, 270-71 (5th Cir. 2010)). Amendment is futile when "the amended complaint would fail to state a claim upon which relief could be granted." Stripling v. Jordan Prod. Co., 234 F.3d 863, 873 (5th Cir. 2000) (collecting cases). That is, "to determine futility, [courts] apply the same standard of legal sufficiency as applies under Rule 12(b)(6)." Id. (collecting cases) (internal quotation marks omitted).
It would be futile for Reyes to amend his claims against Greer, Diaz, Gomez, Lara, and Allen in their official capacities, because they fail as a matter of law. See Thomas, 800 F. Supp. 2d at 832. The same is true for his individual malicious prosecution claims against Diaz, Gomez, and Lara, and the related malicious prosecution conspiracy claims against them, because there are no facts Reyes could allege to overcome their assertions of qualified immunity. Wallace, 2023 WL 2964418, at *6; Adams, 2016 WL 4275246, at *7. Malicious prosecution claims were not cognizable—and thus, not clearly established—in the Fifth Circuit at the relevant time. Wallace, 2023 WL 2964418, at *6. It would also be futile for Reyes to amend his Monell claims alleging that the BWC Policy allowed EPPD to withhold footage during the criminal proceedings against Reyes, as these claims rely on a misreading of the Policy.
Yet Reyes may amend his remaining Monell claims. Reyes failed to plead a failure-to-train claim because he did not identify specific defects with EPPD's training programs. And he failed to plead a failure-to-discipline claim because he did not cite similar excessive force violations to establish a pattern. Likewise, he failed to plead a custom of malicious prosecution because he did not point to similar violations. Finally, he failed to draw an affirmative causal link between the City's failure to implement its BWC Policy and the shooting and prosecution. It is plausible that these problems could be cured with additional factual allegations. Therefore, the Court grants Reyes leave to amend the Amended Complaint with respect to these Monell claims.
III. CONCLUSION
For the reasons above, the Court ORDERS that the Diaz Motion, ECF No. 22, is GRANTED. Reyes' claims against Diaz are DISMISSED with prejudice.
IT IS FURTHER ORDERED that the City Motion, ECF No. 27, is GRANTED. Reyes' claims against Allen in his official capacity and his Monell claims based on his misreading of the BWC Policy are DISMISSED with prejudice. His remaining Monell claims are DISMISSED without prejudice.
IT IS FURTHER ORDERED that the Lara Motion, ECF No. 33, is GRANTED. Reyes' claims against Lara are DISMISSED with prejudice.
IT IS FURTHER ORDERED that the Gomez Motion, ECF No. 34 is GRANTED. Reyes' claims against Gomez are DISMISSED with prejudice.
IT IS FURTHER ORDERED that the Greer Motion, ECF No. 41, is GRANTED in part and DENIED in part. The Motion is GRANTED as to Reyes' claims against Greer in his official capacity, which claims are DISMISSED with prejudice. The Motion is DENIED as to Reyes' excessive force claim against Greer in his individual capacity.
IT IS FURTHER ORDERED that Reyes may FILE a second amended complaint, in accordance with this Order, on or before August 25 , 2023 .
SO ORDERED.