Case: 3:18-cv-283 As of: 06/11/2020 12:53 PM CDT 1 of 10
CLOSED,MEDIATION
U.S. District Court SOUTHERN DISTRICT OF TEXAS (Galveston) CIVIL DOCKET FOR CASE #: 3:18−cv−00283

Fuller v. City of Santa Fe, Texas This case has been severed from 3:16cv309. Assigned to: Judge George C Hanks, Jr Referred to: Magistrate Judge Andrew M Edison (Settlement) Related Case: 3:16−cv−00309 Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 11/03/2016 Date Terminated: 08/14/2019 Jury Demand: Both Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Brady Fuller On Behalf of Himself and All Others Similary Situated

represented by Andre Ivan Segura ACLU of Texas 5225 Katy Freeway Suite 350 Houston, TX 77007 713−942−8146 Email: asegura@aclutx.org ATTORNEY TO BE NOTICED

Anjali Salvador ACLU Foundation of Texas 5225 Katy Fwy Ste 350 Houston, TX 77007 713−942−8146 Email: asalvador@aclutx.org ATTORNEY TO BE NOTICED

Rebecca L Robertson American Civil Liberties Union of Texas 1500 McGowen St Ste 250 Houston, TX 77004 713−942.8146 ext 116 Fax: 713−942.8966 fax Email: rl.robertson@comcast.net TERMINATED: 06/15/2017 ATTORNEY TO BE NOTICED

Trisha Trigilio American Civil Liberties Union of Texas 5225 Katy Freeway Suite 350 Houston, TX 77007 713−942−8146 ext. 114 Fax: 713−942−8966 Email: ttrigilio@aclutx.org ATTORNEY TO BE NOTICED

V. Defendant City of Santa Fe, Texas

represented by Norman Ray Giles Lewis Brisbois Bisgaard & Smith LLP 24 Greenway Plaza Suite 1400 Houston, TX 77046 713−659−6767 Fax: 713.759.6830

Case: 3:18-cv-283 As of: 06/11/2020 12:53 PM CDT 2 of 10
Email: norman.giles@lewisbrisbois.com ATTORNEY TO BE NOTICED
William Scott Helfand Lewis Brisbois Bisgaard Smith LLP 24 Greenway Plaza Suite 1400 Houston, TX 77046 713−659−6767 Fax: 713−759−6830 Email: bill.helfand@lewisbrisbois.com ATTORNEY TO BE NOTICED

Date Filed 11/03/2016 11/03/2016
11/03/2016 11/04/2016 11/04/2016 11/04/2016 11/07/2016 11/07/2016 11/08/2016 11/17/2016 11/28/2016 11/28/2016

# Docket Text
1 COMPLAINT against All Defendants (Filing fee $ 400 receipt number 0541−17467807) filed by George West, Brady Fuller, Robert Jones. (Attachments: # 1 Civil Cover Sheet)(Trigilio, Trisha) (Entered: 11/03/2016)
2 MOTION to Certify Class by Brady Fuller, Robert Jones, George West, filed. Motion Docket Date 11/25/2016. (Attachments: # 1 Proposed Order, # 2 Appendix Exhibit List, # 3 Exhibit A: Municipal Court Website Excerpts, # 4 Exhibit B: Capias Pro Fine Warrants, # 5 Exhibit C: Emails About Feeding Prisoners, # 6 Exhibit D: Municipal Court Statistical Report, # 7 Exhibit E: Jail Booking List Excerpts, # 8 Exhibit F: Municipal Court Responses to Open Records Requests, # 9 Exhibit G: Capias Pro Fine Warrant List, # 10 Exhibit H: Decl. of Rebecca Robertson, # 11 Exhibit I: Decl. of Trisha Trigilio, # 12 Exhibit J: U.S. Census Quickfacts on Galveston County)(Trigilio, Trisha) (Entered: 11/03/2016)
3 Request for Issuance of Summons as to All Defendants, filed. (Attachments: # 1 Summons request for Municipal Judge Carlton Getty, # 2 Summons request for Police Chief Jeffrey Powell)(Trigilio, Trisha) (Entered: 11/03/2016)
Summons Not Issued as to City of Santa Fe, Texas, Carlton Getty, Jeffrey Powell due to these deficiencies: Name/Address of Plaintiff Attorney or Plaintff not present. Attorney or Plaintiff notified of deficiencies by NEF, filed.(agould, 3) (Entered: 11/04/2016)
4 DOCKETED IN ERROR − INCORRECT DATE FOR INITIAL CONFERENCE − SEE DE 5 . Parties notified.(dwilkerson, 3) Modified on 11/4/2016 (dwilkerson, 3). (Entered: 11/04/2016)
5 ORDER for Initial Pretrial and Scheduling Conference and Order to Disclose Interested Persons. Initial Conference set for 2/10/2017 at 09:30 AM in Sixth Floor Courtroom before Judge George C Hanks Jr(Signed by Judge George C Hanks, Jr) Parties notified.(dwilkerson, 3) (Entered: 11/04/2016)
6 Request for Issuance of Summons as to All Defendants, filed. (Attachments: # 1 Summons request for Municipal Judge Carlton Getty, # 2 Summons request for Police Chief Jeffrey Powell)(Trigilio, Trisha) (Entered: 11/07/2016)
7 NOTICE of Appearance by Rebecca L. Robertson on behalf of Brady Fuller, Robert Jones, George West, filed. (Robertson, Rebecca) (Entered: 11/07/2016)
Summons Issued as to City of Santa Fe, Texas, Carlton Getty, Jeffrey Powell. Issued summons returned to plaintiff by: First−class mail, filed.(agould, 3) (Entered: 11/08/2016)
8 CERTIFICATE OF INTERESTED PARTIES by Brady Fuller, Robert Jones, George West, filed.(Trigilio, Trisha) (Entered: 11/17/2016)
9 RETURN of Service of SUMMONS Executed as to City of Santa Fe, Texas served on 11/22/2016, answer due 12/13/2016, filed.(Robertson, Rebecca) (Entered: 11/28/2016)
10 RETURN of Service of SUMMONS Executed as to Jeffrey Powell served on 11/23/2016, answer due 12/14/2016, filed.(Robertson, Rebecca) (Entered: 11/28/2016)

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12/13/2016 12/19/2016 12/23/2016 12/30/2016
01/11/2017
01/20/2017 01/31/2017 02/08/2017 02/10/2017 02/10/2017 02/10/2017
02/10/2017 02/16/2017 02/24/2017 03/03/2017

11 REQUEST for pre−motion conference re: 1 Complaint, filed.(Giles, Norman) (Entered: 12/13/2016)
12 RESPONSE to Defendants' request for pre−motion conference, filed by Brady Fuller, Robert Jones, George West. (Trigilio, Trisha) (Entered: 12/19/2016)
13 RETURN of Service of SUMMONS Executed as to Carlton Getty served on 12/14/2016, answer due 1/4/2017, filed.(Robertson, Rebecca) (Entered: 12/23/2016)
14 NOTICE of Setting as to 11 REQUEST for pre−motion conference re: 1 Complaint. Parties notified. Pre−Motion Conference set for 1/11/2017 at 02:45 PM in by telephone before Judge George C Hanks Jr, filed. Please call the conference line ten minutes prior to the scheduled hearing at 409−763−7801.***This line will be open 10 minutes prior to the hearing. Once you call the number, you will be connected to the meet−me−line; there will be silence so please hold until the Case Manager calls in to connect all parties. Everyone must be on a land line. No cell phones or speaker phones are permitted. If you have a volume control, please be sure that it is turned up. If more than one attorney/party is on the line, FOR CLARITY OF THE RECORD, PLEASE STATE YOUR NAME WHEN RESPONDING TO THE COURT. *** (dperez, 3) (Entered: 12/30/2016)
15 Minute Entry for proceedings held before Judge George C Hanks, Jr. PRE−MOTION CONFERENCE held on 1/11/2017 The Court defers ruling on Motion to Certify Class until ruling on 12(b)(6)motion to Dismiss, 12(b)(6) Motion to Dismiss to be filed by January 20, 2017, ( Responses due by 2/10/2017., Replies due by 2/17/2017). Appearances: Norman Ray Giles, Rebecca L Robertson, Trisha Trigilio.(Digital # 2:57 − 3:14)(ERO:Donna Wilkerson), filed.(agould, 3) (Entered: 01/11/2017)
16 Opposed MOTION to Dismiss by City of Santa Fe, Texas, filed. Motion Docket Date 2/10/2017. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Proposed Order)(Giles, Norman) . (Entered: 01/20/2017)
17 JOINT DISCOVERY/CASE MANAGEMENT PLAN by Brady Fuller, Robert Jones, George West, filed.(Trigilio, Trisha) (Entered: 01/31/2017)
18 NOTICE of Resetting. Parties notified. Initial Conference reset for 2/10/2017 at 09:30 AM in 7th Floor Courtroom before Magistrate Judge John R Froeschner, filed. (ltrevino, 3) (Entered: 02/08/2017)
19 RESPONSE in Opposition to 16 Opposed MOTION to Dismiss , filed by Brady Fuller, Robert Jones, George West. (Trigilio, Trisha) (Entered: 02/10/2017)
20 ** DOCKETED IN ERROR ** Minute Entry incorrect, disregard. See DE 21 for correct Minute Entry, filed.(dwilkerson, 3) Modified on 2/13/2017 (dwilkerson, 3). (Entered: 02/13/2017)
21 Minute Entry for proceedings held before Magistrate Judge John R Froeschner. SCHEDULING CONFERENCE held on 2/10/2017. Appearances:William Helfand, by telephone; Trisha Trigilio. Initial Conference held. No docket control order to be issued. Order to follow. Court Time: 9:35 − 9:38; 10:14 − 10:22. (ERO:Dana Perez), filed.(dwilkerson, 3) (Entered: 02/13/2017)
22 ORDER re Docket Control Order. No Docket Control Order issued following Initial Conference of 2/10/2017 for reasons set out in the record and in Order.(Signed by Magistrate Judge John R Froeschner) Parties notified.(dwilkerson, 3) (Entered: 02/13/2017)
23 REPLY in Support of 16 Opposed MOTION to Dismiss , filed by City of Santa Fe, Texas, Carlton Getty, Jeffrey Powell. (Helfand, William) (Entered: 02/16/2017)
24 MOTION to Deem Defendants' New Arguments Waived by Brady Fuller, Robert Jones, George West, filed. Motion Docket Date 3/17/2017. (Attachments: # 1 Proposed Order Deeming New Arguments Waived, # 2 Exhibit A, in the alternative, Plaintiffs' Proposed Surreply)(Trigilio, Trisha). (Entered: 02/24/2017)
25 RESPONSE in Opposition to 24 MOTION to Deem Defendants' New Arguments Waived, filed by City of Santa Fe, Texas, Carlton Getty, Jeffrey Powell. (Giles, Norman) (Entered: 03/03/2017)

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03/09/2017 03/23/2017 04/06/2017 05/31/2017 06/15/2017 09/14/2017
09/15/2017
09/18/2017
09/18/2017 09/18/2017 10/06/2017

26 REPLY in Support of 16 Opposed MOTION to Dismiss , filed by City of Santa Fe, Texas, Carlton Getty, Jeffrey Powell. (Giles, Norman) (Entered: 03/09/2017)
27 Opposed MOTION for Protective Order by City of Santa Fe, Texas, Carlton Getty, Jeffrey Powell, filed. Motion Docket Date 4/13/2017. (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B, # 3 Exhibit Exhibit C, # 4 Proposed Order Proposed Order)(Giles, Norman) . (Entered: 03/23/2017)
28 RESPONSE in Opposition to 27 Opposed MOTION for Protective Order, filed by Brady Fuller, Robert Jones, George West. (Attachments: # 1 Proposed Order)(Trigilio, Trisha) (Entered: 04/06/2017)
29 MOTION for Rebecca L. Robertson to Withdraw as Attorney by Brady Fuller, Robert Jones, George West, filed. Motion Docket Date 6/21/2017. (Robertson, Rebecca) (Entered: 05/31/2017)
30 ORDER granting 29 Motion to Withdraw as Attorney. Attorney Rebecca L Robertson terminated.(Signed by Judge George C Hanks, Jr) Parties notified.(agould, 3) (Entered: 06/15/2017)
31 NOTICE of Setting. Parties notified. Status Conference set for 9/15/2017 at 05:00 PM in by telephone before Judge George C Hanks Jr, filed. Please call the conference line at 409−763−7801 ten minutes prior to the scheduled hearing. Once you call the number, you will be connected to the meet−me−line; there will be silence so please hold until the Case Manager calls in to connect all parties. Everyone must be on a landline. No cell phones or speaker phones are permitted. If you have a volume control, please be sure that it is turned up. If more than one attorney/party is on the line, for clarity of the record, please state your name when responding to the Court. (ltrevino, 3) (Entered: 09/14/2017)
32 NOTICE of Resetting. Parties notified. Status Conference set for 9/18/2017 at 08:00 AM in by telephone before Judge George C Hanks Jr, filed. Please call the conference line at 409−763−7801 ten minutes prior to the scheduled hearing. Once you call the number, you will be connected to the meet−me−line; there will be silence so please hold until the Case Manager calls in to connect all parties. Everyone must be on a land line. No cell phones or speaker phones are permitted. If you have a volume control, please be sure that it is turned up. If more than one attorney/party is on the line, for clarity of the record, please state your name when responding to the Court. (SusanGram, 3) (Entered: 09/15/2017)
33 NOTICE of Setting. Parties notified. Status Conference set for 10/12/2017 at 08:00 AM in by telephone before Judge George C Hanks Jr, filed. Please call the conference line at 409−763−7801 ten minutes prior to the scheduled hearing. Once you call the number, you will be connected to the meet−me−line; there will be silence so please hold until the Case Manager calls in to connect all parties. Everyone must be on a land line. No cell phones or speaker phones are permitted. If you have a volume control, please be sure that it is turned up. If more than one attorney/party is on the line, for clarity of the record, please state your name when responding to the Court. (SusanGram, 3) (Entered: 09/18/2017)
34 Minute Entry for proceedings held before Judge George C Hanks, Jr. STATUS CONFERENCE held on 9/18/2017. This case is administratively closed until October 12, 2017. Status Conference set for 10/12/2017 at 08:00 AM in Sixth Floor Courtroom before Judge George C Hanks Jr Appearances: William Scott Helfand by telephone, Trisha Trigilio by telephone.(ERO:Andy Gould), filed.(agould, 3) (Entered: 09/18/2017)
35 ORDER denying 2 MOTION to Certify Class (Telephonic Status Conference set for 10/12/2017 at 08:00 AM by telephone before Judge George C Hanks Jr), Case terminated on 9/18/17(Signed by Judge George C Hanks, Jr) Parties notified.(dperez, 3) (Entered: 09/19/2017)
36 AO 435 TRANSCRIPT REQUEST by Trisha Trigilio for Transcript of Status Conference on 9/18/17 before Judge Hanks. Daily (24 hours) turnaround requested. Court Reporter/Transcriber: Digital Scroll Transcription Services, filed. (Trigilio, Trisha) ELECTRONICALLY FORWARDED TO DIGITAL SCROLL 10/10/2017 (agould, 3). (Entered: 10/06/2017)

Case: 3:18-cv-283 As of: 06/11/2020 12:53 PM CDT 5 of 10

10/11/2017 10/11/2017 10/12/2017 10/13/2017
10/16/2017
10/18/2017 10/23/2017 10/27/2017 10/30/2017 11/02/2017 11/08/2017
11/13/2017 01/17/2018 01/18/2018 01/23/2018 02/09/2018

37 [CHANGE AS TO TIME ONLY] NOTICE of Resetting. Parties notified. Status Conference set for 10/12/2017 at 08:30 AM in by telephone before Judge George C Hanks Jr, filed. (SusanGram, 3) Modified on 10/11/2017 (SusanGram, 3). (Entered: 10/11/2017)
38 NOTICE of Dismissal as to Robert Jones by Robert Jones, filed. (Trigilio, Trisha) (Entered: 10/11/2017)
39 TRANSCRIPT re: Status Conference (Telephonically) held on 9/18/2017 before Judge George C Hanks, Jr. Court Reporter/Transcriber Digital Scroll Transcription. Ordering Party Trisha Trigilio Release of Transcript Restriction set for 1/10/2018., filed. (lgriffin, ) (Entered: 10/12/2017)
40 Minute Entry for proceedings held before Judge George C Hanks, Jr. STATUS CONFERENCE held on 10/13/2017.Plaintiff to file an Amended Complaint by October 23, 2017 at 5:00 AM. Defendant to supplement its Motion to Dismiss, if necessary, by October 30, 2017 at 5:00 AM. Plaintiffs response to Defendants Motion to Dismiss to be filed by November 10, 2017 at 5:00 AM. Appearances: Norman Ray Giles, Trisha Trigilio.(Digital # 9:12 − 9:34)(ERO:Dana Perez), filed.(lusmith, 3) (Entered: 10/13/2017)
41 AO 435 TRANSCRIPT REQUEST by Trisha Trigilio for Transcript of 10/12/17. Daily (24 hours) turnaround requested. Court Reporter/Transcriber: Digital Scroll Transcription Services, filed. (Trigilio, Trisha) ELECTRONICALLY FORWARDED TO DIGITAL SCROLL TRANSCRIPTION 10/17/2017. (agould, 3). (Entered: 10/16/2017)
42 TRANSCRIPT re: Status Conference by Telephone held on 10/12/2017 before Judge George C Hanks, Jr. Court Reporter/Transcriber Digital Scroll Transcription. Ordering Party Trisha Trigilio Release of Transcript Restriction set for 1/16/2018., filed. (lgriffin, ) (Entered: 10/18/2017)
43 First AMENDED COMPLAINT with Jury Demand against City of Santa Fe, Texas, City of Hitchcock, Texas filed by George West, Brady Fuller.(Trigilio, Trisha) (Entered: 10/23/2017)
44 Agreed MOTION for Extension of Time To File Defendants' Supplement to Motion to Dismiss Plaintiffs' Claims by City of Santa Fe, Texas, Carlton Getty, Jeffrey Powell, filed. Motion Docket Date 11/17/2017. (Attachments: # 1 Proposed Order)(Giles, Norman) (Entered: 10/27/2017)
45 SUPPLEMENT to 16 Opposed MOTION to Dismiss by City of Santa Fe, Texas, Carlton Getty, Jeffrey Powell, filed. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Proposed Order)(Giles, Norman) (Entered: 10/30/2017)
46 ANSWER to 43 Amended Complaint/Counterclaim/Crossclaim etc. with Jury Demand by City of Santa Fe, Texas, filed.(Giles, Norman) (Entered: 11/02/2017)
47 ORDER granting 44 Motion for Extension of Time. The deadline for Defendants to file the Supplement to their previously−filed motion to dismiss is extended to November 1, 2017.The deadline for Plaintiffs to file their Response to Defendants Supplement is extended to November 13, 2017.(Signed by Judge George C Hanks, Jr) Parties notified.(jegonzalez, 3) (Entered: 11/08/2017)
48 Supplemental RESPONSE in Opposition to 16 Opposed MOTION to Dismiss , filed by Brady Fuller, George West. (Trigilio, Trisha) (Entered: 11/13/2017)
49 Request for Issuance of Summons as to City of Hitchcock, Texas, filed.(Trigilio, Trisha) (Entered: 01/17/2018)
Summons Issued as to City of Hitchcock, Texas. Issued summons delivered to plaintiff by First−class mail, filed.(agould, 3) (Entered: 01/18/2018)
50 RETURN of Service of SUMMONS Executed as to City of Hitchcock, Texas served on 1/19/2018, answer due 2/9/2018, filed.(Trigilio, Trisha) (Entered: 01/23/2018)
51 REQUEST for pre−motion conference, filed.(Giles, Norman) (Entered: 02/09/2018)

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02/14/2018 02/14/2018 02/14/2018
03/07/2018 03/19/2018 06/01/2018 06/18/2018 07/11/2018
07/17/2018 07/17/2018 07/18/2018
07/18/2018 07/18/2018 07/18/2018 07/20/2018 07/24/2018

52 RESPONSE to 51 REQUEST for pre−motion conference , filed by George West. (Trigilio, Trisha) (Entered: 02/14/2018)
53 ORDER denying as moot 51 Request for Pre−Motion Conference. Defendant City of Hitchcock is hereby instructed to file its proposed motion to dismiss within 10 days of the issuance of this Order.(Signed by Judge George C Hanks, Jr) Parties notified.(agould, 3) (Entered: 02/14/2018)
54 Opposed MOTION to Dismiss 43 Amended Complaint/Counterclaim/Crossclaim etc. by City of Hitchcock, Texas, filed. Motion Docket Date 3/7/2018. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit Court Records Affidavit, # 11 Proposed Order)(Helfand, William) (Entered: 02/14/2018)
55 RESPONSE in Opposition to 54 Opposed MOTION to Dismiss 43 Amended Complaint/Counterclaim/Crossclaim etc. , filed by George West. (Trigilio, Trisha) (Entered: 03/07/2018)
56 REPLY to Response to 54 Opposed MOTION to Dismiss 43 Amended Complaint/Counterclaim/Crossclaim etc. , filed by City of Hitchcock, Texas. (Helfand, William) (Entered: 03/19/2018)
57 NOTICE of Referral of Motion to Magistrate Judge Andrew Edison re 54 Opposed MOTION to Dismiss 43 Amended Complaint/Counterclaim/Crossclaim etc. , filed. (jegonzalez, 3) (Entered: 06/01/2018)
58 NOTICE of Setting as to 54 Opposed MOTION to Dismiss 43 Amended Complaint/Counterclaim/Crossclaim etc. . Parties notified. Motion Hearing set for 7/11/2018 at 10:00 AM in the 7th Floor Courtroom before Magistrate Judge Andrew M Edison, filed. (wbostic, 4) (Entered: 06/18/2018)
Minute entry for proceedings before Magistrate Judge Andrew M. Edison. Motion hearing held on July 11, 2018. The Court heard arguments on the City of Hitchcock's Motion to Dismiss [Dkt. 54] and the motion is taken under advisement. The parties will provide a 2−3 page letter by the close of business Wednesday, July 18, 2018, on how O Donnell impacts this case. Appearances: Trisha Trigilio and Andre Segura for the plaintiffs and Norman Ray Giles for the defendant City of Hitchcock. (ERO:Yes), filed. (wbostic, 4) (Entered: 07/11/2018)
59 NOTICE of Referral of Motion to Magistrate Judge Andrew Edison re 16 Opposed MOTION to Dismiss , filed. (jegonzalez, 3) (Entered: 07/17/2018)
60 NOTICE of Setting as to 16 Opposed MOTION to Dismiss . Parties notified. Status Conference set for 7/18/2018 at 02:30 PM in by telephone before Magistrate Judge Andrew M Edison, filed. (wbostic, 4) (Entered: 07/17/2018)
Minute entry for proceedings before Magistrate Judge Andrew M. Edison. Status conference held on July 18, 2018. The parties discussed the Motion to Dismiss [Dkt. 16] filed by the City of Santa Fe and it will be taken under advisement. Appearances: Trisha Trigilio and Andre Segura for the plaintiffs and Norman Ray Giles for the defendant City of Santa Fe, Texas. (ERO:Yes), filed. (wbostic, 4) (Entered: 07/18/2018)
61 Letter Brief Regarding ODonnell's Impact on Case by City of Hitchcock, Texas, City of Santa Fe, Texas, filed.(Giles, Norman) (Entered: 07/18/2018)
62 SUPPLEMENT to Motion Hearing,, by George West, filed.(Trigilio, Trisha) (Entered: 07/18/2018)
63 Corrected SUPPLEMENT to Motion Hearing,, by George West, filed.(Trigilio, Trisha) (Entered: 07/18/2018)
64 NOTICE of Referral of Motion to Magistrate Judge Andrew Edison re 24 MOTION to Deem Defendants' New Arguments Waived, 27 Opposed MOTION for Protective Order, filed. (jegonzalez, 3) (Entered: 07/20/2018)
65 ORDER denying 24 Motion to Deem Defendants' New Arguments Waived. The Court grants Plaintiffs leave to file Plaintiffs' Surreply in Opposition to Defendants' Motion to Dismiss attached as Exhibit A to Plaintiffs' Motion. Plaintiffs must file the Surreply

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07/26/2018 07/26/2018 08/16/2018
08/22/2018 08/30/2018 08/30/2018 09/05/2018
09/13/2018
09/13/2018 09/19/2018 09/19/2018 09/19/2018
09/19/2018
09/20/2018 09/26/2018 10/24/2018 11/09/2018

by Thursday, July 26, 2018. (Signed by Magistrate Judge Andrew M Edison) Parties notified. (wbostic, 4) (Entered: 07/24/2018)
66 NOTICE of Appearance by Andre Segura on behalf of Brady Fuller, Robert Jones, George West, filed. (Segura, Andre) (Entered: 07/26/2018)
67 SURREPLY to 16 Opposed MOTION to Dismiss , filed by Brady Fuller. (Attachments: # 1 Surreply)(Trigilio, Trisha) (Entered: 07/26/2018)
68 MEMORANDUM AND RECOMMENDATION entered. The Court RECOMMENDS that the Defendant City of Hitchcock's Opposed Motion to Dismiss 54 and Defendants' Opposed Motion to Dismiss Plaintiffs' Claims 16 be DENIED. Objections to M&R due by 8/30/2018. (Signed by Magistrate Judge Andrew M Edison) Parties notified. (wbostic, 4) (Entered: 08/16/2018)
69 ORDER denying as moot 27 Motion for Protective Order. (Signed by Magistrate Judge Andrew M Edison) Parties notified. (wbostic, 4) (Entered: 08/22/2018)
70 OBJECTIONS to 68 Memorandum and Recommendations, filed by City of Hitchcock, Texas. (Attachments: # 1 Proposed Order)(Giles, Norman) (Entered: 08/30/2018)
71 OBJECTIONS to 68 Memorandum and Recommendations, filed by City of Santa Fe, Texas. (Attachments: # 1 Proposed Order)(Giles, Norman) (Entered: 08/30/2018)
72 OBJECTIONS to 69 Order on Motion for Protective Order , filed by City of Hitchcock, Texas, City of Santa Fe, Texas. (Attachments: # 1 Exhibit 1, # 2 Proposed Order)(Giles, Norman) (Entered: 09/05/2018)
73 RESPONSE to 70 Objections to Memorandum and Recommendations , filed by George West. (Attachments: # 1 Proposed Order)(Trigilio, Trisha) (Entered: 09/13/2018)
74 RESPONSE to 71 Objections to Memorandum and Recommendations , filed by Brady Fuller. (Attachments: # 1 Proposed Order)(Trigilio, Trisha) (Entered: 09/13/2018)
75 REPLY to 73 Response , filed by City of Hitchcock, Texas. (Giles, Norman) (Entered: 09/19/2018)
76 REPLY to 74 Response , filed by City of Santa Fe, Texas. (Giles, Norman) (Entered: 09/19/2018)
77 RESPONSE to 72 Objections to Magistrate Judge's denial of protective order, filed by Brady Fuller. (Attachments: # 1 Proposed Order)(Trigilio, Trisha) (Entered: 09/19/2018)
78 ORDER ADOPTING MEMORANDUM AND RECOMMENDATION AND SEVERING CASES re: DENYING 54 Opposed MOTION to Dismiss and DENYING 16 Opposed MOTION to Dismiss. (Signed by Judge George C Hanks, Jr) Parties notified.(ltrevino, 3) (Entered: 09/20/2018)
*** This case was severed from 3:16−cv−309 per Order DKT 78 ., filed. (ltrevino, 3) (Entered: 09/20/2018)
79 ORDER overruled 72 Objections (Signed by Judge George C Hanks, Jr) Parties notified.(agould, 3) (Entered: 09/26/2018)
80 ADVISORY by Brady Fuller, filed.(Trigilio, Trisha) (Entered: 10/24/2018)
81 DOCKET CONTROL ORDER Amended Pleadings due by 12/6/2018. Deft Expert Report due by 3/28/2019. Deft Expert Witness List due by 3/28/2019. Discovery due by 4/18/2019. Dispositive Motion Filing due by 4/30/2019. Joinder of Parties due by 12/6/2018 Joint Pretrial Order due by 5/31/2019. Non−Dispositive Motion Filing due by 5/31/2019. Motion to Certify Class due by 12/31/2018 Pltf Expert Report due by 2/28/2019. Pltf Expert Witness List due by 2/28/2019. Docket Call set for 6/20/2019 at 09:30 AM in Sixth Floor Courtroom before Judge George C Hanks Jr. Jury trial subject to being called on short notice during the months of June/July 2019.(Signed by Judge George C Hanks, Jr) Parties notified.(SusanGram, 3) (Entered: 11/09/2018)

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11/28/2018 03/19/2019 03/19/2019 03/20/2019 03/21/2019
04/12/2019 04/17/2019 05/14/2019 05/14/2019 05/15/2019 05/24/2019
05/24/2019

82 AMENDED ANSWER to 43 Amended Complaint/Counterclaim/Crossclaim etc. with Jury Demand by City of Santa Fe, Texas, filed. (Giles, Norman) (Entered: 11/28/2018)
83 NOTICE of dispute regarding extension of discovery deadline by Brady Fuller, filed. (Trigilio, Trisha) (Entered: 03/19/2019)
84 NOTICE of Setting as to 83 Notice (Other). Parties notified. Scheduling Conference set for 3/21/2019 at 09:00 AM in Sixth Floor Courtroom before Judge George C Hanks Jr, filed. (SusanGram, 3) (Entered: 03/19/2019)
85 NOTICE of Resetting **CHANGED TO TELEPHONIC HEARING** as to 84 Notice of Setting, 83 Notice (Other). Parties notified. Scheduling Conference set for 3/21/2019 at 09:00 AM in by telephone before Judge George C Hanks Jr, filed. (SusanGram, 3) Modified on 3/20/2019 (SusanGram, 3). (Entered: 03/20/2019)
86 Minute Entry for proceedings held before Judge George C Hanks, Jr. TELEPHONIC SCHEDULING CONFERENCE held on 3/21/2019. Discovery due by 5/2/2019. Dispositive Motion Filing due by 5/14/2019. At docket call, this case will be set for trial the last week in July 2019. Appearances: Norman Ray Giles, Trisha Trigilio.(Digital # 9:18 − 9:27; 9:33 − 9:34)(ERO:D. Wilkerson), filed.(agould, 3) (Entered: 03/22/2019)
87 MOTION for Anjali Salvador to Appear Pro Hac Vice by Brady Fuller, filed. Motion Docket Date 5/3/2019. (Trigilio, Trisha) (Additional attachment(s) added on 4/15/2019: # 1 Verified PHV) (SusanGram, 3). (Entered: 04/12/2019)
88 ORDER granting 87 Motion for Anjali Salvador to Appear Pro Hac Vice.(Signed by Judge George C Hanks, Jr) Parties notified.(dwilkerson, 3) (Entered: 04/17/2019)
89 REQUEST for pre−motion conference, filed.(Giles, Norman) (Entered: 05/14/2019)
90 NOTICE of Letter Requesting Pre−Motion Conference by Brady Fuller, filed. (Attachments: # 1 Exhibit A : Getty Deposition, # 2 Exhibit B: Snider Deposition, # 3 Exhibit C: Millo Deposition, # 4 Exhibit D: USDA Guidelines, # 5 Exhibit E: TDCJ Food Service Manual, # 6 Exhibit F: Fuller Deposition, # 7 Exhibit G: Meadows Deposition)(Trigilio, Trisha) (Entered: 05/14/2019)
91 ORDER. The Court GRANTS the parties requests to file their motions for summary judgment. Motions for Summary Judgment Filing due by 5/25/2019.(Signed by Judge George C Hanks, Jr) Parties notified.(agould, 3) (Entered: 05/15/2019)
92 Opposed MOTION for Summary Judgment by City of Santa Fe, Texas, filed. Motion Docket Date 6/14/2019. (Attachments: # 1 Exhibit Exhibit 1 to Fuller Depo, # 2 Exhibit Exhibit 2 to Fuller Depo, # 3 Exhibit Exhibit 3 to Fuller Depo, # 4 Exhibit Exhibit 4 to Fuller Depo, # 5 Exhibit Exhibit 5 to Fuller Depo, # 6 Exhibit Exhibit 6 to Fuller Depo, # 7 Exhibit Exhibit 7 to Fuller Depo, # 8 Exhibit Exhibit 8 to Fuller Depo, # 9 Exhibit Exhibit 9 to Fuller Depo, # 10 Exhibit Plaintiff's Responses to RFA − admissions only, # 11 Exhibit Plaintiff's Responses to Interrogatories, # 12 Exhibit Plaintiff's Responses to Requests for Production, # 13 Exhibit Excerpts from Municipal Clerk's File, # 14 Exhibit Deposition Excerpts − Fuller 04−12−2019, # 15 Exhibit Delaration of Getty, # 16 Exhibit Deposition Excerpts − Getty 04−22−2019, # 17 Exhibit Deposition Excerpts 05−08−2019, # 18 Exhibit Deposition Excerpts − Snider with exhibits 04−30−2019, # 19 Exhibit Deposition Excerpts − Milo with exhibits 05−01−2019, # 20 Exhibit Deposition Excerpts − Meadows with exhibits 04−23−2019, # 21 Exhibit Exhibit 1 to Meadows Depo, # 22 Exhibit Exhibit 3 to Meadows Depo, # 23 Exhibit Declaration of Campbell, # 24 Exhibit Certified Copies − Santa Fe Charter and Ordinance, # 25 Exhibit Fuller's Conviction Records, # 26 Exhibit Thaler − declaration and initial report, # 27 Exhibit Thaler − supplemental report, # 28 Proposed Order)(Giles, Norman) (Entered: 05/24/2019)
93 Opposed MOTION for Summary Judgment by Brady Fuller, filed. Motion Docket Date 6/14/2019. (Attachments: # 1 Appendix, # 2 Exhibit 1. Deposition of Hon. Carlton Getty and Exhibits Cited, # 3 Exhibit 2. Deposition of Lisa Snider and Exhibits Cited, # 4 Exhibit 3. Deposition of Paul Millo and Exhibits Cited, # 5 Exhibit 4. Deposition of Philip Meadows and Exhibits Cited, # 6 Exhibit 5. City of Santa Fe Response to Plaintiff's First Requests for Admission, # 7 Exhibit 6. Deposition of Brady Fuller, # 8 Exhibit 7. Santa Fe, Texas Code of Ordinances Ch. 7 § 4, # 9 Exhibit 8. Santa Fe, Texas Home Rule Charter § 4.02, # 10 Exhibit 9. Pop Tart Nutritional

Case: 3:18-cv-283 As of: 06/11/2020 12:53 PM CDT 9 of 10

05/28/2019 05/29/2019 06/04/2019
06/14/2019 06/14/2019 06/14/2019 06/14/2019 06/14/2019 06/21/2019 06/21/2019 07/02/2019 07/25/2019 07/26/2019 07/26/2019 07/26/2019 07/26/2019 07/26/2019 08/01/2019

Information, # 11 Exhibit 10. Banquet Frozen Meal Nutritional Information, # 12 Exhibit 11. USDA Dietary Guidelines, # 13 Exhibit 12. TDCJ Food Services Procedure Manual)(Trigilio, Trisha) (Entered: 05/24/2019)
94 Unopposed REQUEST for pre−motion conference, filed.(Giles, Norman) (Entered: 05/28/2019)
95 NOTICE of Setting as to 94 Unopposed REQUEST for pre−motion conference. Parties notified. Pre−Motion Conference set for 6/4/2019 at 09:45 AM by telephone before Judge George C Hanks Jr, filed. (jegonzalez, 3) (Entered: 05/29/2019)
96 Minute Entry for proceedings held before Judge George C Hanks, Jr. PRE−MOTION CONFERENCE held on 6/4/2019 re 94 Unopposed REQUEST for pre−motion conference.Joint Pretrial Order due by 7/25/2019. Docket Call set for 8/1/2019 at 09:30 AM in Sixth Floor Courtroom before Judge George C Hanks Jr, Jury Trial set for 8/26/2019 at 08:30 AM in Sixth Floor Courtroom before Judge George C Hanks Jr). Appearances: Norman Ray Giles, Andre Ivan Segura, Trisha Trigilio.(Digital # 9:46 − 9:49)(ERO:Jessica Villarreal), filed.(dwilkerson, 3) (Entered: 06/05/2019)
97 RESPONSE in Opposition to 93 Opposed MOTION for Summary Judgment , filed by City of Santa Fe, Texas. (Giles, Norman) (Entered: 06/14/2019)
98 OBJECTIONS to 93 Opposed MOTION for Summary Judgment Exhibits, filed by City of Santa Fe, Texas. (Attachments: # 1 Proposed Order)(Giles, Norman) (Entered: 06/14/2019)
99 PROPOSED ORDER re: 97 Response in Opposition to Motion, filed.(Giles, Norman) (Entered: 06/14/2019)
100 RESPONSE in Opposition to 92 Opposed MOTION for Summary Judgment , filed by Brady Fuller. (Trigilio, Trisha) (Entered: 06/14/2019)
101 Opposed MOTION to Strike 92 Opposed MOTION for Summary Judgment by Brady Fuller, filed. (Attachments: # 1 Proposed Order)(Trigilio, Trisha) (Entered: 06/14/2019)
102 REPLY in Support of 93 Opposed MOTION for Summary Judgment , filed by Brady Fuller. (Attachments: # 1 Appendix, # 2 Exhibit 13. Declaration of Christopher Clay)(Trigilio, Trisha) (Entered: 06/21/2019)
103 RESPONSE to 98 Objections , filed by Brady Fuller. (Trigilio, Trisha) (Entered: 06/21/2019)
104 RESPONSE in Opposition to 101 Opposed MOTION to Strike 92 Opposed MOTION for Summary Judgment , filed by City of Santa Fe, Texas. (Attachments: # 1 Proposed Order)(Giles, Norman) (Entered: 07/02/2019)
105 Joint Proposed Pretrial Order by Brady Fuller (Attachments: # 1 Joint Trial Worksheet, # 2 Plaintiff's Witness List, # 3 Defendant's Witness List, # 4 Defendant's Voir Dire, # 5 Defendant's Jury Interrogatory)(Trigilio, Trisha) (Entered: 07/25/2019)
106 Other EXHIBITS re: 105 Proposed Pretrial Order, by City of Santa Fe, Texas, filed. (Attachments: # 1 Proposed Order)(Giles, Norman) (Entered: 07/26/2019)
107 Joint Exhibit List by Brady Fuller(Trigilio, Trisha) (Entered: 07/26/2019)
108 MOTION In Limine by Brady Fuller, filed. Motion Docket Date 8/16/2019. (Trigilio, Trisha) (Entered: 07/26/2019)
109 Amended Witness List by City of Santa Fe, Texas(Giles, Norman) (Entered: 07/26/2019)
110 Other EXHIBITS re: 105 Proposed Pretrial Order, by City of Santa Fe, Texas, filed.(Giles, Norman) (Entered: 07/26/2019)
111 Minute Entry for proceedings held before Judge George C Hanks, Jr. At the hearing, the following rulings were made as stated on the record:1. Docket Call held. 2. Jury trial scheduled for August 26, 2019 at 8:30 AM. 3. The following pending motions will be carried with trial, a. Defendant City of Santa Fes Opposed Motion for

Case: 3:18-cv-283 As of: 06/11/2020 12:53 PM CDT 10 of 10

08/02/2019 08/05/2019 08/06/2019
08/06/2019 08/06/2019
08/08/2019 08/12/2019 08/12/2019 08/13/2019 08/14/2019

Summary Judgment (Dkt 92 ); and b. Plaintiffs Motion for Summary Judgment (Dkt 93 ). 4. The Court will have Magistrate Judge Edison available for mediation if the parties wish to mediate this case before trial. 5. The Court will set a separate hearing on the issues of who the relevant policymakers were and whether the plaintiffs right to counsel was violated. The parties will receive electronic notice of the setting. 6. The Court went over its trial procedures.DOCKET CALL held on 8/1/2019. Appearances: Norman Ray Giles, Trisha Trigilio.(Digital # 10:14am−10:30am)(ERO:Jessica Villarreal), filed.(ltrevino, 3) Modified on 8/1/2019 (ltrevino, 3). (Entered: 08/01/2019)
112 MOTION For Court−Ordered Mediation Before Magistrate Judge Edison by Brady Fuller, filed. Motion Docket Date 8/23/2019. (Trigilio, Trisha) (Entered: 08/02/2019)
113 ORDER TO MEDIATE. Dkt 112 Motion is GRANTED.(Signed by Judge George C Hanks, Jr) Parties notified.(ltrevino, 3) (Entered: 08/05/2019)
114 ORDER for partial ruling on 92 City of Santa Fe, Texas Opposed Motion for Summary Judgment and 93 Plaintiff's Motion for Summary Judgment. This order does not terminate 92 Defendant's MSJ nor 93 Plaintiff's MSJ.(Signed by Judge George C Hanks, Jr) Parties notified.(SusanGram, 3) (Entered: 08/06/2019)
115 NOTICE of Setting. Parties notified. Mediation set for 8/13/2019 at 09:00 AM in Courtroom 8B before Magistrate Judge Andrew M Edison, filed. (wbostic, 4) (Entered: 08/06/2019)
116 Unopposed MOTION to Modify Order to Mediate as to 113 Order on Motion for Miscellaneous Relief by City of Santa Fe, Texas, filed. Motion Docket Date 8/27/2019. (Attachments: # 1 Proposed Order Proposed Order to Motion to Modify Order)(Helfand, William) (Entered: 08/06/2019)
117 ORDER Denying 116 Motion to Modify.(Signed by Judge George C Hanks, Jr) Parties notified.(jguajardo, 4) (Entered: 08/09/2019)
118 RESPONSE in Opposition to 108 MOTION In Limine , filed by City of Santa Fe, Texas. (Attachments: # 1 Proposed Order Order Denying Plaintiff's Motion in Limine)(Giles, Norman) (Entered: 08/12/2019)
119 OBJECTIONS to 107 Exhibit List , filed by City of Santa Fe, Texas. (Attachments: # 1 Proposed Order Plaintiff's Trial Exhibits)(Giles, Norman) (Entered: 08/12/2019)
Minute Entry for proceedings held before Magistrate Judge Andrew M Edison. MEDIATION held on 8/13/2019., filed. (wbostic, 4) (Entered: 08/14/2019)
120 CONDITIONAL DISMISSAL ORDER 92 Opposed MOTION for Summary Judgment, 108 MOTION In Limine, 101 Opposed MOTION to Strike 92 Opposed MOTION for Summary Judgment, 93 Opposed MOTION for Summary Judgment. Case terminated on 8/15/19. All pending motions are hereby DENIED, as moot. (Signed by Judge George C Hanks, Jr) Parties notified.(ltrevino, 3) (Entered: 08/15/2019)

 
 Case 3:18-cv-00283 Document 1 Filed on 11/03/16 in TXSD Page 1 of 69

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION

GEORGE WEST, ROBERT JONES, and BRADY FULLER, on behalf of themselves and all others similarly situated,
Plaintiffs, v.
CITY OF SANTA FE, TEXAS; CARLTON GETTY, Municipal Judge, in his individual capacity; and JEFFREY POWELL, Chief of Police, in his official capacity;
Defendants.

Civil Action No. 16-cv-309 Jury Trial Demanded

CLASS ACTION COMPLAINT 1. The City of Santa Fe is running a modern-day debtors’ prison, prioritizing raising revenue for the City over administering justice fairly. Those with means pay a onetime fine for common offenses like traffic tickets. But those who cannot afford to pay upfront—the disabled man on a fixed income, the young veteran who just started a small business, the blue-collar worker supporting his family—are trapped in a maze of escalating fines and fees that can take years to pay off. Anyone who falls behind faces imprisonment

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in unconscionable conditions without the opportunity to see a judge or explain the circumstances that prevent payment.
2. City officials have colluded on this unconstitutional two-tiered system of justice. The City and the Municipal Judge agreed to raise the cost of traffic and other misdemeanor fines to boost revenue. The City then uses multiple constitutional violations as leverage to extract payments from local residents, tacking on further fines and fees at every opportunity. Although traffic violations are, by law, not jailable offenses, police officers regularly jail people who fail to pay their fines without giving them access to a lawyer or the chance to mount a legal defense. Officers do not afford them the opportunity to see a judge for the constitutionally mandated hearing on their ability to pay. The police chief intentionally makes jail intolerable, giving the people he detains too little food to eat and depriving them of medical care.
3. Plaintiffs George West and Robert Jones are caught in this maze—unable to afford to pay their outstanding fines to the City of Santa Fe and unable to seek relief from the judge. There is a high risk that Santa Fe police officers will arrest and jail Mr. West and Mr. Jones in violation of their right to due process, right to equal protection, right to counsel, and right against cruel and unusual punishment. They seek declaratory and injunctive relief protecting themselves and all other similarly situated people from violation of their constitutional rights.
4. Plaintiff Brady Fuller has already been jailed by the City of Santa Fe because he could not afford to pay his fine. The City jailed him in violation of his right to due process, his right to equal protection, his right to counsel, and his right against cruel
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and unusual punishment. He seeks damages on behalf of himself and all other similarly situated people whom the City has already jailed.
JURISDICTION AND VENUE 5. This is a civil rights action arising under 42 U.S.C. § 1983 (civil action for deprivation of rights) and 28 U.S.C. §§ 2201–2202 (declaratory judgments). This Court has jurisdiction under 28 U.S.C. § 1331 (federal question jurisdiction) and § 1343 (civil rights jurisdiction). 6. Venue in this district is proper under 28 U.S.C. § 1391(b)(1), because the City of Santa Fe resides in this district, and under § 1391(b)(2), because a substantial part of the events giving rise to the Plaintiffs’ claims occurred in this district.
PARTIES I. There is a High Risk That the City of Santa Fe Will Jail George West
7. Plaintiff George West is a fifty-seven-year-old resident of La Marque, Texas. He used to own a trailer house in Hitchcock, but he was evicted from his lot because he didn’t have enough money to pay his rent. He receives mail at his aunt’s home in La Marque. Otherwise, he stores his belongings in his pickup truck and he does not have a fixed residence.
8. Mr. West has lived near or below the federal poverty line since he was released from prison for drug possession more than ten years ago. Mr. West’s financial situation has only gotten worse in recent years. He has found honest work in scrap metal salvage and as a day laborer since he was released from prison. But serious repetitive motion injuries from this work, as well as worsening rheumatoid arthritis, keep Mr. West
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from working like he used to. Mr. West’s arthritis has gotten so bad that he was recently approved for a social security disability benefit.
9. When Mr. West was released from prison, he could not obtain a valid Texas driver’s license, because he owed surcharges for old traffic tickets to the Department of Public Safety. Yet he needed to drive to make money to pay his tickets. Between his surcharges, child support obligations, new tickets for driving without a valid license, and basic living expenses, Mr. West has not been able to work his way out of debt since he was released from prison.
10. These were the financial circumstances Mr. West faced when a Santa Fe police officer pulled him over many years ago.
11. Mr. West is Black. He generally goes out of his way to avoid driving through Santa Fe. But in 2005, Mr. West drove through Santa Fe after leaving a scrapyard. He stopped at a stoplight with a Santa Fe police officer facing in the opposite direction, in the lane of oncoming traffic. When the light turned green, the officer immediately made a U-turn, got behind Mr. West, and turned on his lights.
12. The officer claimed to be stopping Mr. West for broken brake lights. 13. The officer wrote Mr. West tickets for four offenses: expired registration, open container, no driver’s license, and no insurance. The open container was a beer can that a friend had brought into in the car; Mr. West had not been drinking that day. Mr. West had committed the remaining offenses due to his poverty. 14. Because of Mr. West’s poverty offenses, the total fines for this single police encounter came up to over $600. As opposed to other people, who could write a check to
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resolve their cases, Mr. West could not afford to pay these fines. Court clerks put Mr. West on the track to jail when they issued a warrant for his arrest.
15. Once a warrant issued, the Municipal Court refused to allow Mr. West to clear his warrants or see a judge unless he paid a cash bond for the total cost of his fines—now over $1100—which he could not afford to do.
16. Mr. West tried to find a way to appear in court and get back on track to a valid driver’s license without paying the full cash bond. He paid $65 for an attorney to help him appear in court and clear the warrants for all of his tickets.
17. When Mr. West appeared in Santa Fe Municipal Court and pled no contest, the Municipal Judge sentenced him to an $1137 fine and ordered him to pay it within sixty days. The judge did not ask any questions about Mr. West’s ability to pay or discuss alternatives to prompt payment in full. Mr. West had absolutely no prospect of coming up with that amount of money, but the Municipal Court ordered him to pay anyway.
18. After Mr. West failed to pay $1137 within sixty days, court clerks issued capias pro fine warrants for his arrest. After the clerks issued capias pro fine warrants, the fees assessed against Mr. West more than doubled his initial fine. He now owes nearly $1500 to the City of Santa Fe.
19. The Municipal Court now refuses to allow Mr. West to clear his warrants unless he pays the total cost of his fines, nearly $1500, which he cannot afford to do. The court will not allow Mr. West to set a court date to explain his inability to pay and ask for an alternative to jail.
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20. Despite his best efforts, Mr. West cannot spare any money to pay toward his fines. Mr. West wants a chance to serve a one-time penalty, just like someone who could afford to write a check, and move on from this one traffic stop more than ten years ago. At a minimum, he wants a chance to explain his financial situation to a judge before he is jailed by the Santa Fe Police Department.
21. Mr. West must drive his truck around the Santa Fe area in order to buy food and get to doctor’s appointments. Because the City of Santa Fe has reported Mr. West’s outstanding fines to the Department of Public Safety, he cannot obtain a valid Texas driver’s license. Mr. West is at high risk for being arrested and jailed by the Santa Fe Police Department in violation of his right to due process, right to equal protection, and right against cruel and unusual punishment. II. There is a High Risk That the City of Santa Fe Will Jail Robert Jones
22. Robert Jones is a twenty-four-year-old father, a small business owner, and a lifelong resident of the Santa Fe area.
23. Mr. Jones enlisted in the Marine Corps shortly after graduating from high school. He suffered an injury after basic training, and he was discharged for medical reasons. Following his discharge in 2011, Mr. Jones has worked jobs in demolition, custodial work, and fencing installation.
24. Mr. Jones and his family started a plumbing company a few months ago to try to make ends meet. Business is slow, and Mr. Jones isn’t making enough to cover his overhead. His household lives below the federal poverty line.
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25. Back in 2013, a Santa Fe police officer pulled Mr. Jones over. The officer said that he had run Mr. Jones’s license plate, and a notice came back that there was no insurance on the car. Mr. Jones did not have insurance. The officer wrote Mr. Jones a ticket and told him to go home.
26. As opposed to other people, who could write a check to resolve their cases, Mr. Jones could not afford to pay his ticket outright. He had recently started working at Pioneer Waste Services, a demolition company, but he was still living near the poverty line.
27. Mr. Jones appeared in Santa Fe Municipal Court on his court date, and he was up front with the Municipal Judge that he had a low income. He knew he could not afford the payments that the judge was ordering. The Municipal Judge considered jail to be a foregone conclusion for someone who couldn’t afford to pay, and told Mr. Jones that a warrant would issue for his arrest.
28. Mr. Jones circled “no contest” and signed his payment plan paperwork as ordered. The Municipal Judge sentenced him to a fine.
29. Neither the judge nor anyone else asked Mr. Jones about his ability to pay. 30. Neither the judge nor anyone else advised Mr. Jones of his right to counsel. Mr. Jones was not represented by counsel, nor did he waive his right to counsel. 31. The day after his court appearance, Mr. Jones asked his grandmother about the best way to handle his unaffordable payments. His grandmother owned her own cleaning company that cleaned the Police Department and Jail, so she was familiar with the people who worked there. She advised him to call a woman named Sheryl who was
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responsible for issuing warrants. Mr. Jones called Sheryl and explained that he could not afford his payments. Because Sheryl knew his grandmother, she agreed to refrain from issuing a warrant.
32. Since receiving his ticket, Mr. Jones has worked various day labor jobs, but he has always lived near or below the federal poverty line.
33. Mr. Jones’s grandmother died in November 2014, and Sheryl is no longer the employee responsible for issuing warrants. The Santa Fe Municipal Court has issued a capias pro fine warrant for Mr. Jones’s arrest, and his fine has climbed to $875.
34. The Municipal Court now refuses to allow Mr. Jones to clear his warrant unless he pays the balance of his fine, which he cannot afford to do. The court will not allow Mr. Jones to set a court date to explain his inability to pay and ask for an alternative to jail.
35. Mr. Jones is afraid of being pulled over by the Santa Fe police. Mr. Jones and his brothers are mixed-race, and they have had bad encounters with the Santa Fe police in the past. His older brother in particular has been subject to excessive force on more than one occasion; once, when Mr. Jones’s brother refused to stop laughing at an officer for locking himself out of his car, the officer retaliated by tasing him just above his heart. Mr. Jones wants to avoid interactions with the Santa Fe Police Department if at all possible.
36. Despite his best efforts, Mr. Jones cannot spare any money to pay toward his fine. Mr. Jones wants to pay a one-time penalty, just like someone who could afford to write a check for his entire fine, and move on from driving with no insurance three
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years ago. At a minimum, he wants a chance to explain his financial situation to a judge before he is jailed by the Santa Fe Police Department.
37. Mr. Jones has a newborn daughter. He must drive around the Santa Fe area in order to buy food, get to doctor’s appointments, and get to jobs for his family’s plumbing company. Mr. Jones is at high risk for being arrested and jailed by the Santa Fe Police Department in violation of his right to due process, right to equal protection, and right against cruel and unusual punishment. III. The City of Santa Fe Unconstitutionally Jailed Brady Fuller
38. Brady Fuller is a resident of Santa Fe, Texas. He lives with and supports his wife and three daughters.
39. For at least the last two years, Mr. Fuller and his family have lived near or below the federal poverty line. The older two daughters receive free lunches at school, and the family has been on food stamps and Medicaid. The mother of Mr. Fuller’s oldest daughter owes him many thousands of dollars in child support arrears.
40. Mr. Fuller has struggled with addiction to pain medication in the past. His addiction began when a doctor prescribed pain medication for Mr. Fuller’s injuries from an accident, including broken bones. Mr. Fuller has been clean for ten months, and he attends Narcotics Anonymous meetings every other day.
41. In 2015, a Santa Fe police officer stopped Mr. Fuller while he was driving through a school zone. Mr. Fuller had not been speeding, and in fact, he had been careful to reduce his speed to the school zone limit. The officer nonetheless pulled Mr. Fuller
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over. The officer noticed that Mr. Fuller had an expired inspection sticker, and wrote him a ticket for that.
42. As opposed to other people, who could write a check to resolve their cases, Mr. Fuller could not afford to pay his fine outright.
43. Mr. Fuller checked into a one-month inpatient rehabilitation program after he received his ticket. He was an inpatient during the court date for his traffic ticket.
44. When Mr. Fuller checked out of the rehabilitation program, a warrant had not yet issued for his arrest. He asked the City Marshal about resetting his court date. The City Marshal told Mr. Fuller a time when he would be able to come to court and speak with the judge, and Mr. Fuller came to court.
45. The Municipal Judge told Mr. Fuller that he had been charged with failure to appear, and Mr. Fuller was not allowed to contest the ticket. The judge required Mr. Fuller to pay the full amount of the failure to appear ticket in order to get on a payment plan.
46. Mr. Fuller made the payment, though he had been planning on using that money to pay other bills, and the clerk handed him the papers to sign for his payment plan. Mr. Fuller told the clerk that he could not afford the monthly payments listed on the paper. The clerk told Mr. Fuller that if he missed a payment, a warrant would issue for his arrest. Mr. Fuller said he would do his best to make the payments, but he wasn’t hopeful. The clerk told Mr. Fuller that if he could not make his payments, once a warrant issued, Santa Fe would jail him for failure to pay.
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47. Neither the Municipal Judge nor the clerk advised Mr. Fuller that, by signing the papers for a payment plan, he was pleading to criminal charges. Mr. Fuller felt that he had no alternative to signing the papers. He circled “no contest,” but no one explained what that meant. The judge sentenced Mr. Fuller to a fine.
48. Neither the Municipal Judge nor the clerk asked Mr. Fuller any questions about his ability to pay.
49. Neither the Municipal Judge nor the clerk advised Mr. Fuller of his right to counsel. Mr. Fuller was not represented by counsel, nor did he waive his right to counsel.
50. Mr. Fuller could not afford his first payment. The City Marshal came to Mr. Fuller’s house, and told Mrs. Fuller that her husband would need to pay the fine, or else the City would jail him for failure to pay.
51. Three days later, the City Marshal came back to Mr. Fuller’s house as he was leaving for work. The marshal asked Mr. Fuller about his work schedule and other obligations, so the marshal would know where to track Mr. Fuller down if he didn’t make a payment. The marshal warned Mr. Fuller that he would lose his TWIC card, a $180 identification card required for his work at the shipyard, if the marshal arrested him at work.
52. Mr. Fuller told the marshal that he could not afford to make a payment. The marshal said that Mr. Fuller’s only option was to pay the fine; otherwise, the City would jail him for failure to pay. Realizing that jail was inevitable, Mr. Fuller offered to surrender himself at the jail that weekend.
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53. Mr. Fuller surrendered himself at the jail, as promised, that weekend. But the Municipal Court had made an error in court records. Mr. Fuller’s file looked like a failure to appear case, and did not reflect the fact that Mr. Fuller had already appeared to answer the failure to appear charges and signed papers for a payment plan. The Police Department treated Mr. Fuller’s case like a failure to appear case, and brought him before the Municipal Judge the next morning.
54. The Municipal Judge fixed the recordkeeping mistake by ordering Mr. Fuller to sign a new set of papers for a payment plan and released him from jail. When Mr. Fuller got home, he realized that his new payment plan was for even more money than he owed before.
55. Mr. Fuller still could not afford his payments. Court clerks issued a capias pro fine warrant for Mr. Fuller’s arrest. Mr. Fuller was hopeful that he would eventually save up enough money to start paying, but despite his best efforts, Mr. Fuller could not spare any money to pay toward his fines.
56. About six months later, Mr. Fuller and his boss were out on business, driving a new truck the company had bought. The temporary tag was flapping in the wind. A state trooper pulled Mr. Fuller over because he could not read the tag.
57. The trooper ran Mr. Fuller’s license and contacted the Santa Fe Marshal about his capias pro fine warrant. The trooper handcuffed Mr. Fuller, and the marshal picked him up and took him to jail.
58. Someone at the Santa Fe Jail told Mr. Fuller that he would be in jail for two days at most. But when Mr. Fuller’s family called to ask about getting him out, his
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mother, father, and wife each got different answers about how much money they would have to pay to get him out, and when he would be released. His family could not get enough money together to get Mr. Fuller out of jail.
59. Each time Mr. Fuller was held in the Santa Fe Jail, Police Department staff booked him without asking him any questions about his medical needs or screening him for risk of suicide. Each time, his jail cell was unsanitary. The mattresses remained damp after prisoners sprayed them with cleaning products, and grew mold where they laid against with the metal bed underneath. There were mashed Pop Tarts crusted onto the mattresses.
60. While Mr. Fuller was permitted to make phone calls, the phone he was allowed to use could not connect with a cell phone unless the recipient had already set up a prepaid account for use with the jail’s phone company. When Mr. Fuller did connect with a landline, a conversation that lasted approximately one minute cost the recipient $48.
61. Each time Mr. Fuller was held in the Santa Fe Jail, the prisoners were fed a maximum of one Pop Tart for breakfast, one Pop Tart for lunch, and a frozen dinner.
62. On two different evenings, Police Department staff forgot to feed Mr. Fuller his frozen dinner. He was extremely hungry and he did not feel well.
63. One of the nights when Mr. Fuller was deprived of food, he decided to try to get someone’s attention around 3:00 AM, even though he was nervous that he would only make the staff angry. He started yelling, then knocking on the door, then kicking the door. He gradually got louder and kicked the door of his cell as hard as he could.
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64. Mr. Fuller kicked the door intermittently for about an hour. Because nobody was near the jail cells at night, and nobody was monitoring the video feed from the jail cells, it took that long for a staff member to realize that Mr. Fuller was trying to get someone’s attention.
65. After an hour of kicking, someone came to Mr. Fuller’s cell and yelled at him for kicking the door. Mr. Fuller said he hadn’t gotten any food for dinner. The staff member was annoyed that Mr. Fuller had made so much noise, so he put the frozen dinner in the microwave—which Mr. Fuller could see from his cell door window—and left the area for another hour. Eventually, the staff member came back and handed Mr. Fuller the food, which was cold.
66. On Mr. Fuller’s third day in jail, jail staff informed him that he had eight more hours to go. They told him that rather than sitting in jail for another eight hours, he could clean their offices and get out early. Mr. Fuller felt angry that he was being pressured to do cleaning for the Police Department, after having been in jail for three days, just because he didn’t have the money to pay his fines. But he did the cleaning anyway because it was his fastest way out.
67. Mr. Fuller was ultimately jailed by the Santa Fe Police Department for three days, in violation of his right to due process, right to equal protection, right to counsel, and right against cruel and unusual punishment.
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IV. Plaintiffs Bring This Action Against the City of Santa Fe and Two City Officials 68. Defendant City of Santa Fe is a municipality organized under Texas law.
Plaintiffs seek injunctive relief, declaratory relief, and damages from the City. The City may be served with process by serving the Mayor Jeff Tambrella, Secretary and Treasurer Janet Davis, or City Manager Joe Dickson (the Chief Executive Officer) at Santa Fe City Hall, 12002 State Highway 6, Santa Fe, Texas 77510.
69. Defendant Carlton Getty is the Santa Fe Municipal Judge. Plaintiffs sue Judge Getty in his individual capacity, for declaratory relief only.
70. Defendant Jeffrey Powell is the Santa Fe Police Chief. Plaintiffs sue Chief Powell in his official capacity, for injunctive and declaratory relief.
CITY OF SANTA FE PRACTICES I. The City of Santa Fe Unconstitutionally Jails Local Residents Under a
Scheme to Raise Revenue A. The Santa Fe Municipal Court Assesses Fines in Unreliable
Proceedings Lacking Basic Constitutional Protections 71. The City of Santa Fe’s revenue-generating scheme begins with Municipal Court proceedings that lack even the most basic constitutional protections. For a person who cannot afford to pay her fine, Santa Fe’s criminal justice system is like a maze with dead ends at every turn. 72. The Santa Fe Municipal Court’s criminal jurisdiction is limited to tickets for Class C Misdemeanors. Class C Misdemeanors are defined by Texas law as “nonjailable,” “fine only” offenses, punishable by a fine up to $500. They are the least
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serious offenses punishable in the State of Texas, such as failure to signal while changing lanes.
73. The Santa Fe Municipal Court permits anyone who can afford to write a check to exit the criminal justice system by pleading guilty and mailing the court payment in full. For most of us, that fine is a proportionate sanction for a minor offense.
74. But for anyone who cannot afford to write a check, the stakes are much higher. For Santa Fe’s poorest residents, the only way out of the system is jail.
75. The City of Santa Fe simply ignores the constitutional prohibition on jailing people unless they were represented by counsel. The court does not appoint counsel to represent people who appear in court, nor does the court staff advise people who appear in court of their right to counsel.
76. The vast majority of people who appear in Santa Fe Municipal Court cannot afford a lawyer, do not understand their right to counsel, and do not have the legal expertise necessary to establish their innocence. Deprivation of counsel is an affirmative defense to jail, but people who appear in court do not know that, because the City does not give people the chance to consult with a lawyer who would advise them of their rights. Court staff do not obtain a knowing, intelligent, or voluntary waiver of the right to counsel from any person in any proceeding.
77. Indeed, the only guidance the court gives the public on the right to counsel creates the false impression that people who cannot afford a lawyer aren’t entitled to one. In describing the accused’s “rights,” the City’s website simply declares: “No attorney will be appointed for you.”
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78. As a result, anyone who cannot afford to pay her fine is disadvantaged by a dramatic imbalance of resources between the accused, who may be experiencing her first contact with the criminal justice system, and the City of Santa Fe, which has established a system for prosecuting more than a thousand Class C misdemeanor cases each year. For example:
a. The City employs a full-time City Attorney with training and experience in prosecuting Class C misdemeanors.
b. The Municipal Court shares resources with the City Attorney. The court clerks work for the City Attorney, serving as his administrative support.
c. Municipal Court staff train the City Attorney about changes in the law that pertain to the court.
d. The Court Administrator engages in direct, off-the-record communication with the City Attorney and Santa Fe Police Department staff to discuss modifying flawed tickets so a case is not subject to dismissal. 79. The Santa Fe Municipal Court also ignores the constitutional requirements for accepting guilty and no contest pleas, which must be knowing, intelligent, and voluntary. Court staff simply instruct anyone who cannot afford to pay her fine to circle “guilty” or “no contest” on a payment plan form if she is not contesting her ticket. It is common for a person who completes that form to do so without understanding that she is pleading to criminal charges, that a judgment of conviction will be entered against her, and that she is at risk of jail time if she cannot make the required payments. Santa Fe Municipal Court staff do not engage in the colloquy that is ordinarily necessary for a
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knowing and intelligent guilty or no contest plea, which would require the Municipal Judge to ask the accused questions and satisfy himself that:
a. The accused understands nature of the charges against her and what the government would have to prove to convict her of her charge.
b. The accused understands rights that she is waiving, including right to plead not guilty, the right to a jury trial, the right to a presumption of innocence unless the government proves her guilt beyond a reasonable doubt, the right to confront witnesses against her, the right to compel witnesses to testify in her defense, the right to remain silent or testify at trial, and the right against any penalty for her silence.
c. The accused understands maximum legal penalties for her charge. d. The accused is competent to enter a plea, is voluntarily making the plea, and has not been induced to make the plea with any false representations or improper promises. 80. To make matters worse, the Municipal Judge allows budgetary considerations to color his judgment about whether to dismiss cases. The judge recently identified dozens of cases in which the prosecutor could not prove the charges against the accused. The judge nevertheless declined to dismiss those charges, because of the negative impact on overall fines owed to the City. If a person is arrested under an open warrant in one of these cases, it is likely that the court will accept her no contest plea and entered a conviction against her—despite the judge’s knowing that the prosecutor would be unable to prove his case.
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81. The Santa Fe Municipal Court ignores the constitutional requirement to offer reasonable alternatives, like community service or proportional fines, for the indigent. Instead, the court simply sentences people to pay fines, and enforces those fines by ordering anyone who cannot pay her fine to make payments in what can be unmanageable installments, generally $100 per month. The court does not determine the accused’s ability to pay before setting the monthly payment amount. Court staff refuse to reduce the payment amount or offer any alternatives, even if someone says that she cannot afford the monthly payment. This one-size-fits-all approach makes it inevitable that poor people and low-income workers will be unable to satisfy the requirements to exit the criminal justice system.
82. The Santa Fe Municipal Court makes failure even more likely by imposing extra fees on anyone who cannot afford to pay her fine. The base fine for a single offense, combined with fees and costs mandated by both the City of Santa Fe and the State, is typically between $200 and $500.1 For anyone who cannot afford to pay her fine outright, her debt for a single ticket will continue to grow: a fee is added for a payment plan; yet another fee if she misses a payment and the court issues a warrant; more fees are added if the court refers her ticket to a debt collection agency. The Santa Fe Municipal Court does not waive any of these fees in any case.
1 Throughout this complaint, Plaintiffs use the term “fine” to refer to this total debt to the court: the base fine plus costs and fees associated with each ticket.
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83. The City of Santa Fe also takes steps that increase the likelihood that a person who cannot afford her fine will receive additional tickets and incur still more fees and costs. The City contracts with the Department of Public Safety to report unpaid fines to the state, resulting in an additional fee for each unpaid fine—a portion of which goes to the City—and preventing anyone with unpaid fines from renewing her driver’s license. The City also reports unpaid fines to the Department of Motor Vehicles, resulting in even more fees and prohibiting anyone with unpaid fines from renewing her car registration. A person in this situation is likely to lose her car insurance, because her premiums will become unaffordable (or her coverage will be dropped altogether) due to her expired driver’s license.
84. Because Santa Fe lacks meaningful public transportation options, a person living in poverty is put to a difficult choice. If she stops driving, she may lose her job or be unable to meet family obligations. But if she drives, her expired car registration increases the likelihood of additional traffic stops, where officers write new tickets for the expired license, expired registration, and lapse in car insurance. It is not uncommon for someone with low income to accrue $1000 or more in fines in a short period of time.
85. Despite having created these obstacles for poor people trying to satisfy their legal obligations, the Santa Fe Municipal Court enforces these fines by summarily issuing a capias pro fine warrant for anyone who fails to make timely payments in full. Court clerks issue capias pro fine warrants in the Municipal Judge’s name. The face of the warrant indicates that it is a capias pro fine warrant, and explicitly states that the basis for the warrant is failure to pay a fine.
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86. Even people who do manage to make their payments are not protected from the court’s harsh enforcement practices. The court’s recordkeeping system invites mistakes, and court clerks issue capias pro fine warrants in error. Court clerks record pleas and judgments of guilt on forms without other identifying information, such as the date of the offense, citation number, or offense charged. Court clerks also record outstanding balances with handwritten notations in two different places, resulting in confusing and inconsistent records of payment already made. Balances increase and decrease with notations that are insufficient to adequately explain changes in the outstanding fine, or to memorialize communication between the person who owes money and the court.
87. This historically poor recordkeeping has led to systemic problems with issuing convictions and warrants in error, keeping even those who comply with the court’s orders ensnared in the Santa Fe criminal justice system. In recent cases, the court has incorrectly entered convictions for people who successfully completed a deferred disposition, and incorrectly issued warrants for people who appeared in court and paid their fines—even for people who received a mere warning, rather than an actual ticket.
88. The court’s recordkeeping problems persist: one of the “operational objectives” for the Santa Fe Municipal Court in the 2015–16 fiscal year is to “[c]ontinue clean-up and maintenance of court database.”
89. Whether warrants are issued as the result of a recordkeeping error or not, court clerks typically issue capias pro fine warrants without prior notice, catching people off guard and triggering harsh procedural rules that put them at further disadvantage.
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Internal court rules specify that the clerks “may or may not” give the person subject to the warrant a “courtesy” phone call. When court staff do make a courtesy call to warn a person about her capias pro fine warrant, and that person asserts inability to pay, officials simply instruct her to come up with the money lest she be arrested and jailed.
90. The capias pro fine warrants issued by court clerks purport to authorize an unconstitutional term in debtors’ prison. The warrants direct officers to either bring the person who owes money before the court immediately, or “place [the person] in jail until such time as [s/he] pays the amount due on said judgment and the further costs of collecting the same or until [s/he] is otherwise legally discharged.”
91. Court clerks issue these warrants without giving people a chance to explain themselves to a judge and keep themselves out of jail: there is no predeprivation hearing inquiring into the reasons for the person’s failure to pay. The Municipal Judge does not make any finding that the person has willfully refused to pay, that the person failed to make sufficient bona fide efforts to acquire the resources to pay, or that alternative measures are inadequate to satisfy the state’s interest in punishment.
92. Court clerks also issue these warrants to enforce fines in complete disregard of the constitutional right to counsel. The warrants purport to authorize a jail term for people who have not had the opportunity to consult with a lawyer. There is no other explanation that would make these jail terms constitutional: the court does not initiate charges for civil or criminal contempt. Court clerks do not limit the authorized period of detention to three days or less. And court clerks issue these warrants without giving
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people a fair opportunity to present information about their ability to pay or object to the absence of court findings about their ability to pay.
93. What counsel would assert, if counsel were appointed, is that these capias pro fine warrants purport to authorize jail terms far beyond the limited liberty deprivation authorized for capias pro fine warrants under Texas law. The only liberty deprivation Texas law authorizes for failure to pay is a capias pro fine warrant directing officers to bring the person before an appropriate court immediately, or if that is impossible, to hold her in jail until the next business day. Tex. Code Crim. Proc. Art. 45.045. Because Santa Fe’s capias pro fine warrants authorize a more serious liberty deprivation, the warrants are unlawful and facially invalid.
94. In short, for a person who cannot afford to pay her ticket, all routes through the Santa Fe Municipal Court lead to one outcome: a capias pro fine warrant. These warrants give officers a choice: either bring the person before the court, or jail her in violation of her right due process, her right to equal protection, and her right to counsel. Once the choice is in the hands of the Santa Fe Police Department, the Department consistently chooses an unconstitutional jail term.
B. The Santa Fe Police Chief Jails Local Residents Under Fundamentally Unfair and Uncivilized Conditions
95. As set forth above, people who cannot afford to pay their fines in Santa Fe Municipal Court are inevitably subject to a capias pro fine warrant. Once a capias pro fine warrant issues, the Santa Fe Police Department prevents any exit from the system except through a jail cell.
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96. The City makes this system clear to the public. In a section entitled “Warrants,” the City of Santa Fe website states:
If you have a Capias Pro-Fine warrant, your options are: • Pay in full. • You may turn yourself in at the Santa Fe Police Department located at 3650 FM 646 N, Santa Fe, TX 77510.
97. The capias pro fine enforcement system is not passive. In addition to taking custody of people who choose to turn themselves in, Santa Fe law enforcement officers (both police officers and the City Marshal) actively search for people subject to capias pro fine warrants, sometimes arresting people at their homes in front of family, friends, and neighbors.
98. In fact, the City has taken many affirmative steps to leverage a credible threat of arrest in order to coerce payments from people who are subject to capias pro fine warrants. The City Marshal has a stated “operational objective” to carry out an “aggressive program of serving and collecting warrants.”
99. The City of Santa Fe also participates in the so-called “Great Texas Warrant Round-Up,” which is an annual campaign during which people subject to open capias pro fine warrants are warned that they must make a payment to avoid being arrested. Santa Fe police officers who would normally focus on other public safety duties devote their time to finding and arresting people who cannot afford to pay their fines. The Round-Up is timed to coincide with the period when people receive their tax refund checks, such as the Earned Income Tax Credit for low- and moderate-income working families.
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100. The City of Santa Fe is also a full-access participant in the Southeast Texas Crime Information Center, an organization that feeds data on capias pro fine warrants to participating law enforcement agencies in the area, and gives those agencies a financial reward for arresting anyone subject to a Santa Fe capias pro fine warrant. The City Marshal will travel up to a hundred miles from Santa Fe to take custody of anyone arrested under a capias pro fine warrant.
101. When a Santa Fe law enforcement officer takes custody of a person under a capias pro fine warrant, the officer has the option, consistent with the language of the warrant, to bring the person before the court immediately. But Santa Fe law enforcement officers do not bring the person before the court, immediately or otherwise.
102. Instead, Santa Fe law enforcement officers transfer anyone arrested under a capias pro fine warrant to the custody of the Santa Fe Police Chief and book her into jail. The Police Chief refuses to release anyone arrested under a capias pro fine warrant unless either she pays her fines in full, or the Department holds her in jail long enough to satisfy her fines with “jail credit.” This practice of enforcing fines turns the Santa Fe Jail into a modern-day debtors’ prison, and it is unconstitutional.
103. This practice is unconstitutional because people are jailed for failure to pay without a hearing. The Santa Fe Police Chief prohibits people in his custody from speaking to a judge to explain why they failed to pay and ask for an alternative to jail. The Chief jails people for failure to pay in the absence of judicial findings that they willfully refused to pay, that they failed to make sufficient bona fide efforts to acquire the
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resources to pay, or that alternative measures are inadequate to satisfy the state’s interest in punishment.
104. These jail terms are also unconstitutional because the people who are jailed don’t get the opportunity to consult with a lawyer. City policymakers including the Police Chief are aware that people arrested under capias pro fine warrants are highly unlikely to have been represented by an attorney at trial, because the City designed its criminal justice system to elicit guilty pleas without appointing defense counsel or advising people of their right to counsel. While anyone who was unrepresented at trial could theoretically assert the deprivation of counsel as an affirmative defense to jail, people arrested under capias pro fine warrants do not understand or exercise this right, precisely because they are deprived of counsel to advise them of the right in the first place. Instead, the Police Department jails people without informing them of their right to counsel, taking any steps to appoint counsel in their defense, or obtaining a knowing, intelligent, or voluntary waiver of the right to counsel.
105. Finally, these jail terms are unconstitutional because they are imposed without a facially valid court order or any other legal justification. Texas law requires officers to take people subject to a capias pro fine warrant before an appropriate court as soon as possible, and no later than the next business day after arrest. But the Police Chief jails people for days, regardless of whether a court appearance is possible. These jail terms violate due process of law because they have no legal justification.
106. The Police Chief’s constitutional violations are compounded by the fact that it is impossible for people to assert their constitutional rights in state court. People
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subject to an open capias pro fine warrant are prohibited from setting an appearance date in Municipal Court, so it isn’t possible to raise these claims prior to arrest. And after arrest, the jail term for failure to pay is too short to permit litigation of a habeas corpus petition in state court. People who the Chief holds in jail cannot vindicate their constitutional rights and invalidate their jail terms before their release.
107. Procedural and substantive unfairness aside, the jail terms imposed by the Santa Fe Police Chief are also unconstitutional because they are cruel. In an attempt to coerce payments, the Police Chief denies people in his custody basic human needs such as food, medical care, and protection from serious harm.
108. The Police Chief compromises his prisoners’ safety by locking them in jail cells without any meaningful supervision in case of an emergency. There are cameras in the jail cells, but staff do not consistently monitor the video feed. If it so happens that no one is close enough to the cells to hear a prisoner call for help—or if a prisoner is incapable of calling for help—no one will know that there is an emergency.
109. Through denial of medical care, the Police Chief also compromises prisoners’ health and safety. The Chief authorizes his staff to lock people in jail cells without any screening for medical needs or suicide risk during the jail booking process. He does not provide a way for anyone in his custody to speak with a medical professional. Even if someone tells Police Department staff that she requires specific medications, the Chief refuses to provide those medications, unless the person in jail can prove that she already has a prescription. For someone who was arrested without notice, this is almost always impossible to do.
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110. Finally, the Police Chief denies people the basic necessity of food. He jails people on a diet of no more than one Pop Tart for breakfast, one Pop Tart for lunch, and frozen meal, such as a Hungry Man frozen dinner, at night. The Police Chief apparently considers one box of Pop Tarts to be adequate to feed anyone in his custody breakfast and lunch for four days straight.
111. This diet is nutritionally and calorically deficient. While the Chief varies the flavor of Pop Tart and the type of frozen meal provided to people in his custody, the diet is always calorically and nutritionally insufficient for an adult, even a sedentary adult.
112. For example, during October 2016, the Police Chief has been feeding people in his custody Pop Tarts and a frozen meal amounting to 720 calories a day. A 720-calorie diet supplies less than half of the calories any sedentary adult requires, and less than a third of the calories sedentary young men require. A 720-calorie diet is not even enough to feed a one-year-old child.
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Daily Nutritional Requirements (Sedentary) versus Santa Fe Jail Diet

3000 2500

2600

60

56

50

46

2000 1500 1000 500

1600

40

30

1000

720

20

10

18 13

0

0

Calories

Protein (grams)

20-year-old male

75-year-old female

1-year-old child

Santa Fe Jail

113. This starvation diet would be bad enough on its own, but the food deprivation gets even worse. The Police Chief has not established a system for alerting on-duty supervisors that a person has been booked into the jail under a capias pro fine warrant, creating a high risk that people in his custody will be deprived of the little food they are supposed to receive, because no one knows they are in the jail.
114. And even when Police Department staff do know that someone has been booked into the jail, the Police Chief has not established a system for ensuring that they get fed. Over the past two years, Police Department staff have repeatedly deprived people in their custody of “meals” they are supposed to receive—simply failing to distribute any food at all.
115. These jail conditions coerce people to pay money they cannot afford to part with—such as money for food or medicine—in order to buy their liberty. Some people make frantic calls to family or friends, asking them to gather whatever money they can
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and turn it over to the police. But for a person who simply does not have access to the money to pay, the Santa Fe Police Chief jails her under fundamentally unfair and uncivilized conditions, solely because she cannot afford to pay her fines. II. The City of Santa Fe is Liable for Jailing Local Residents in Violation of
Their Constitutional Rights A. The Santa Fe Police Chief Jails People Under Two Unconstitutional
Policies 116. The practices described in the foregoing section are not anomalies; they are the persistent and widespread practices of municipal officials handling capias pro fine warrants in the City of Santa Fe. These practices are so common and well-settled that they fairly represent customs that constitute two distinct municipal policies. 117. The first policy is the Debtors’ Prison Policy. As discussed in Section I.B above, the Santa Fe Police Department has a persistent, widespread, and well-settled practice of jailing people under capias pro fine warrants in violation of their constitutional rights. Specifically, police officers do not present people to a judge for an ability to pay hearing. Police officers jail people for uncounseled misdemeanor convictions without advising them of their right to counsel or taking any steps to appoint counsel. And police officers refuse to release a person from jail until she has stayed in custody long enough to discharge her fines, which is often longer than the next business day after her arrest. Moreover, the Santa Fe Police Chief does not train his officers in application of constitutional rights in the context of capias pro fine warrants, such as the right to due process, the right to counsel, and the scope of the liberty deprivation a capias pro fine warrant authorizes under Texas law.
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118. The second policy is the Hungry Man policy. As discussed in Section I.B above, the Santa Fe Police Department has a persistent, widespread, and well-settled practice of jailing people on a diet of one Pop Tart for breakfast, one Pop Tart for lunch, and a frozen meal, such as a Hungry Man meal, for dinner. The Police Chief does not assign responsibility for feeding people in his custody, and he does not supervise the distribution of food, despite repeated instances of his staff forgetting to feed the people locked in jail. These deprivations of food are not episodic omissions, but rather the repeatedly occurring symptom of systemic deficiencies in the Police Chief’s delegation of power and supervision of his staff who operate the Santa Fe Jail.
119. Many aspects of the Police Department’s operations demonstrate that these practices are municipal policy. For example, the forms used by the Police Department evince the persistent, widespread, and well-settled nature of the Debtors’ Prison Policy. There are only two types of paperwork available for documenting the execution of a capias pro fine warrant: a receipt, which is issued for payment, or a “Jail Time Credit” form, which is issued by the Police Department, if at all, after the Department jailed the person long enough to discharge her fine. Police Department staff do not complete any paperwork on a person held in jail until after she has already been held in jail long enough to satisfy her fine. In the words of a supervisor, officers document arrests on paperwork “[s]ometimes, if we are lucky.” A Police Department supervisor gathers the paperwork that officers bother to complete on Monday morning—after the relevant decisions about jail release have been made—and transfers the paperwork for recordkeeping after the fact. It is clear that Police Department staff determine whether
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and when to release a person from the Police Chief’s custody, based solely on the amount of money she owes.
120. The Debtors’ Prison Policy is so persistent, widespread, and well-settled that, when the Municipal Judge goes on vacation, Police Department staff do not make any contingency plans for presenting people who are arrested under a capias pro fine warrant to a judge. This is because Police Department staff do not present such people to a judge in the ordinary course of business.
121. The Police Department’s structural capacity to clear capias pro fine warrants shows that the Debtors’ Prison Policy is persistent, widespread, and well-settled. The Police Department has established a framework for accepting payments toward outstanding fines and clearing capias pro fine warrants from the court’s database after payment or jail time—all without consulting a judge.
122. The Municipal Court’s self-reported data also show how persistent, widespread, and well-settled the Debtors’ Prison Policy is.2 From September 2015 through August 2016, the City of Santa Fe reported that it satisfied 221 cases with jail credit. During the same period, the City allowed a full satisfaction of a fine with community service in just one case, and did not waive any fines in any case—not even
2 The Court should regard data reported to the Office of Court Administration before September 2014 with skepticism. On September 2, 2014, the Court Administrator emailed the City Manager to notify him that the Municipal Court had not been reporting data accurate data to the Office of Court Administration, and she would do her best to report data accurately going forward.
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one dollar—due to the inability to pay. This is because the Police Department does not present people to the judge for hearings concerning ability to pay or alternatives to jail.
123. The Santa Fe Police Department’s public records support the same conclusion. There is only one written Police Department procedure that applies to capias pro fine warrants specifically. The procedure gives a person arrested under a capias pro fine warrant three options: “Pay fine,” “Sit out time in jail (100.00 per day (24 hrs) per charge),” or a combination of the two. Police Department staff have no written procedures concerning producing a person for an ability to pay hearing, informing her of her right to counsel and taking steps to appoint counsel, or any time limit on her detention other than the amount of money she owes to the court. The Santa Fe Police Department does not have any training materials or training policies concerning execution of capias pro fine warrants.
124. It’s also clear that from Santa Fe Municipal Court records that the Debtor’s Prison Policy is persistent, widespread, and well-settled. The Municipal Court simply does not have any of the forms it would need to enforce fines for Class C Misdemeanors in a constitutional manner:
a. The court lacks application forms for payment plans, community service, indigency status, waiver or reduction of fines, or clearing arrest warrants.
b. The court has no policies, procedures, standing orders, rules or other guidance to the City Marshal concerning execution of capias pro fine warrants.
c. The court has not developed training materials or training policies for the City Marshal concerning execution of capias pro fine warrants.
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d. The court’s case files show that the Municipal Judge did not sign a single order committing a person jail during a four-month period from December 1, 2015 through mid-April 2016. Over that same period, the Police Department jailed many people who were arrested under capias pro fine warrants.
e. The court files lack evidence of ability to pay determinations for anyone arrested under a capias pro fine warrant from January 1 through June 23, 2016. Over that same period, the Police Department jailed many people who were arrested under capias pro fine warrants. 125. Just like the Debtors’ Prison Policy, the Hungry Many Policy is also a municipal policy. The Police Chief has failed to promulgate any policies regarding supervisory use of the information recorded in the Jail Management System (JMS), where police department staff are supposed to record each “feeding.” The Chief has not implemented any alert for when a “feeding” is not recorded, nor has he designated any supervisor to systematically check JMS to see whether a person in his custody was fed. The result is that, though the Chief is in possession of records showing whether or not people in the jail were fed, he is not using those records in a preventative way to ensure that someone does, in fact, feed the people in his custody. 126. The risk posed by this policy failure isn’t just theoretical. People in the Police Chief’s custody have been deprived of food repeatedly due to his failure to supervise his staff. 127. For example, on August 16, 2016, City officials realized that someone arrested under a capias pro fine warrant had not been fed for some time. The mistake was
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fixed only because, one morning, the person who had been arrested got the attention of the City Marshal and convinced him that she had not been fed.
128. From the time that person had been booked into jail, there were no jail checks or “feedings” logged in for her. It is not clear whether the she had been fed at all for the duration of her jail term. The Police Department supervisor on duty was completely unaware that this person had been booked into the jail.
129. When this issue was brought to the attention of Santa Fe’s Lieutenant, one of the Police Department’s top officials, he said that no one should “nitpick” about whether people in the Chief’s custody are fed or not. The Lieutenant did not demonstrate any concern about the fact that a person locked in the jail had been deprived of food. Instead, he defended the Police Department’s actions.
130. After this incident, there is still confusion among City officials about who is responsible for feeding someone booked into jail under a capias pro fine warrant. On August 16, 2016, the Police Chief was explicitly warned that “we need to confirm if [the City Marhsal] is responsible for feeding his prisoner or will his prisoner be fed with everyone else.” The Police Chief has not taken any action to address this problem.
131. A diet of two Pop Tarts and a frozen meal per day, less the “meals” missed when Police Department staff are busy or inattentive, is an objectively sufficiently serious deprivation of the calories and nutrition necessary to sustain a healthy adult—it is a starvation diet. Enough food to maintain health is a minimal civilized measure of life’s necessities. The Hungry Man Policy results in cruel and unusual punishment.
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B. Santa Fe’s City Council, City Manager, and Police Chief Are Each Municipal Policymakers
132. The City of Santa Fe is liable for the Debtors’ Prison Policy and the Hungry Man Policy through its municipal policymakers.
133. The City of Santa Fe is a home rule city, meaning that as a matter of Texas law, the local government is free to establish any system of policymaking authority not prohibited by the State. Santa Fe’s Home Rule City Charter designates its form of government as a “Council-Manager Government.”
134. The City Charter vests general policymaking authority in the City Council, which consists of the Mayor and five councilmembers. The Mayor is the head of the City Council.
135. The City Charter vests general executive, administrative, and supervisory authority in the City Manager. This authority entails the power to set policies regarding training and supervision of City employees. By ordinance, the City Council has created the Santa Fe Police Department, subject to administration and supervision by the City Manager.
136. The City Council has also impliedly delegated final authority to set policy regarding all Police Department operations, including operation of the jail, to the City Manager. The City Council has not explicitly authorized establishment of a jail or set any policies whatsoever concerning jail operations. The City Council has not exercised any oversight of jail operations for the entirety of the Council’s history, not even during or after the recent construction of a new multimillion-dollar facility. The City Council has
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never commented authoritatively on operation of the Santa Fe City Jail. The City Council does not exercise any supervisory power over policies concerning the Police Department. Instead, the City Council has delegated policymaking authority for Police Department operations to the City Manager.
137. In an exercise of the authority delegated to him by the City Council, the City Manager expressly delegated final authority to set policy regarding all operations of the Police Department to the Police Chief. Among the “essential job functions” that the City Manager has delegated to the Police Chief are: “Direct and coordinate the work of all divisions of the police department,” “develop[] and review [] policies and procedures,” “[be] responsible for long and short range planning for the department,” and “establish departmental performance goals.” These are classic functions of a municipal policymaker. The Police Chief has recently used this authority to promulgate many final policies governing operation of the Santa Fe Police Department, such as the Department’s policy on racial profiling, and the policy on towing cars during a traffic stop.
138. The communication (or lack thereof) regarding the Police Chief’s policymaking further suggests that the Chief’s policymaking authority is final. No one, including the City Manager, Mayor, and other City Councilmembers, exercises review or oversight of the Police Chief’s policymaking authority, or makes any authoritative commentary about the policies the Police Chief promulgates. Instead, the Police Chief notifies officials outside the Police Department of a change to Departmental policies—if at all—after the change is implemented, with messages such as “Just an FYI.”
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139. In the alternative, the Santa Fe City Council is the policymaker with respect to rules of procedure and practice in the Municipal Court, which entails rules governing appointment of counsel, entry of guilty pleas, jail commitment orders, and access to the court. The City Code explicitly reserves unsupervised, final authority to promulgate policies governing Municipal Court procedures to the City Council. For example, the City Council annually implements a warrant amnesty program, requiring the Municipal Court to dismiss certain charges in exchange for payments. The City Council has also passed ordinances prescribing detailed procedures for the court regarding cash bail, such as the exact conditions a person must agree to in order to post bail, the minimum amount of bail, and how to issue and store receipts for bail.
C. Santa Fe’s Municipal Policymakers Implemented the Debtors’ Prison Policy
140. As described in section II.A above, the Debtors’ Prison Policy is a persistent, widespread practice of Santa Fe Police Department staff, which is so common and well settled as to constitute a custom that fairly represents municipal policy.
141. City Council members, including the Mayor, know of the Debtors’ Prison Policy.
a. The Court Administrator makes a monthly report to the City Manager and City Council. This report focuses exclusively on revenue generated or lost by the court, not the administration of justice. The report includes statistics on the “value,” in dollars, of fines for which police department staff have imprisoned people for failure to pay.
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b. The City Council has publicly boasted about the number of warrants that the Police Department serves.
c. The Mayor has served as a relief magistrate at the Santa Fe Jail when the Municipal Judge was unavailable, magistrating people arrested on higher charges before they were brought to the Galveston County Jail. The Mayor saw firsthand that the Police Department holds people in the Santa Fe Jail 24 hours for every $100 they owe, without presenting them to a judge for an ability to pay hearing or vindication of their right to counsel.
d. The Mayor got upset and expressed disapproval when he learned of an outlier incident when the Debtors’ Prison policy was not followed. The Mayor contacted Police Department officials and the Municipal Judge about how they could “correct” the mistake of releasing people from jail who haven’t paid their fines. 142. The City Manager has implemented the Debtors’ Prison Policy.
a. The City Manager knows of arrangements that Police Department and Municipal Court staff make when the Municipal Judge goes on vacation. Police Department staff make arrangements for presenting all types of people in custody to a judge, except people arrested under a Santa Fe capias pro fine warrant.
b. The City Manager knows that the Mayor has expressed disapproval that the Debtors’ Prison Policy was not followed, and that the Mayor contacted
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Police Department officials and the Municipal Judge to discuss ways to ensure that the policy is followed in the future. 143. The Police Chief has implemented the Debtors’ Prison policy. The current Police Chief, Defendant Chief Powell, was appointed as of August 1, 2016. He was trained in all aspects of the Debtors’ Prison Policy as carried out by his predecessor, including conditions under which people are released from jail, and paperwork to complete when releasing a person from jail. Since taking command of the Santa Fe Police Department, the Police Chief has reviewed other departmental policies and chosen to change at least one policy because it was unlawful. The Police Chief knows of the Debtors’ Prison Policy, he has the power to change it, and he has failed to do so. 144. Even if the City Council, City Manager, and the Police Chief did not have actual knowledge of the Debtors’ Prison policy, they have constructive knowledge of the policy.
a. The Debtors’ Prison Policy is applied regularly. The Santa Fe Police Department takes custody of people under capias pro fine warrants, and jails them if they cannot pay their fines, multiple times a week.
b. Police Department staff flagrantly carry out the Debtors’ Prison Policy.
i. Police Department staff carry out an interdepartmental exchange of forms that are tailor-made for the policy. After the Police Department jails a person for failure to pay, staff complete a “Jail Time Credit Form” and turn it over for recordkeeping—after the fact—that the
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Police Department arrested and jailed a someone for failure to pay her fines.
ii. Police Department staff have posted crucial components of the Debtors’ Prison policy in the jail booking area. The Department’s written procedure for jail releases includes just three options for releasing a person arrested under a capias pro fine warrant: release her after she pays her fine in full, after jailing her at a rate of 24 hours for every $100, or after she pays whatever money she can get her hands on, and she stays in jail long enough to make up the difference. c. Under the Debtors’ Prison Policy, Police Department staff commit a severe constitutional violation. The Police Department subjects people who cannot afford their fines to imprisonment—a deprivation of physical liberty—for days on end. Freedom from imprisonment lies at the heart of the interests protected by the right to due process and the right to counsel. d. Both the City Council and the City Manager have been aware of overcrowding at the jail for years. As early as 2012, the City Council and the City Manager were presented with reports that “The [jail] cells are designed to accommodate two prisoners per cell. More often than not we have at least four people in each cell, requiring at least two per cell to [sleep] on the floor.” Over the course of the next two years, the City undertook repeated initiatives to raise the money necessary to increase the capacity of the jail. A policymaker exercising his
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responsibilities would investigate drivers of the incarceration rate at the jail and consider ways to reduce the jail population.
e. For years, there has been an ongoing national conversation illegal enforcement of fines in municipal courts. The U.S. Department of Justice has been especially vocal in this conversation, most significantly in its 2014–2015 investigation and report on the Ferguson Police Department, its December 2015 and September 2016 national convenings on criminal justice debt, and its March 2016 Dear Colleague letter condemning practices such as the Debtors’ Prison Policy. Here in Texas, there has been considerable discussion among the Texas Judicial Council, the Texas Municipal Courts Education Center, state lawmakers, legal scholars, and criminal justice advocates regarding the legality of widespread practices such as Debtors’ Prison Policy. A 2015 investigative report by Buzzfeed revealed that municipal judges across Texas routinely ignore protections for lowincome people charged with Class C Misdemeanors. This report prompted the Texas Judicial Council to pass regulations reforming collections practices in municipal courts. Litigation and settlements over practices similar to the Debtors’ Prison have developed in Alabama, Colorado, Georgia, Louisiana, Michigan, Mississippi, Missouri, New Hampshire, and Washington, and here in Texas in Amarillo, Austin, El Paso, McAllen, and Tyler. For any municipal policymaker who oversees a local jail or municipal court, proper exercise of his responsibilities would require a basic inquiry into whether the jail or court he oversees commits
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the common constitutional violations that are the subject of statewide and national scrutiny. 145. In short, the Debtors’ Prison Policy is not a hush-hush agreement among low-level Police Department staff, nor is it a policy that the Police Department applies on rare occasions. The constitutional violations the Police Department causes under this policy are not trivial, and they are not highly technical or obscure. The Police Department is openly jailing people, with no legal recourse, just because they are poor. 146. The City Council, City Manager, and Police Chief all know of the Debtors’ Prison Policy. Their failure to train police officers about application of the rights to due process, equal protection, and counsel following arrest under a capias pro fine warrant evinces deliberate indifference to the constitutional rights of people held under these warrants in the Police Chief’s custody. 147. In the alternative, the City Council is responsible for failure to promulgate rules of practice and procedures in the Municipal Court that would remedy the persistent constitutional violations that result from the Municipal Court’s capias pro fine warrants. The City Council has the power to stop the Municipal Court from issuing capias pro fine warrants that purport to authorize unconstitutional jail terms, the power to prohibit jail terms for convictions entered against people who didn’t have the help of a lawyer, and the power to require ability to pay hearings before any deprivation of liberty for failure to pay. Yet the City Council has failed to exercise these policymaking powers in the face of hundreds of unconstitutional jail terms.
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D. Santa Fe’s Municipal Policymakers Implemented the Hungry Man Policy
148. As described in section II.A above, the Hungry Man Policy is a persistent, widespread practice of the Santa Fe Police Department, which is so common and wellsettled as to constitute a custom that fairly represents municipal policy.
149. The City Council, City Manager, and Police Chief know of the Hungry Man Policy.
150. The City Manager is intimately familiar with the Police Department budget. The Police Chief reports detailed budget line item justifications to the City Manager, and the Mayor and City Council approve the budget annually.
151. The City of Santa Fe’s projected spending on jail supplies, for the most recent year for which that statistic is available, was $1500.00 per year. Even if the entirety of this budget went toward food, Santa Fe limited the total spending on food for all people in the Chief’s custody to just $4.11 per day. This is only slightly more than the City’s projected spending on supplies for dogs in the Police Department’s canine unit, which was $3.84 per day.
152. The Police Chief implements the Hungry Man policy. The current Police Chief, Defendant Chief Powell, was appointed as of August 1, 2016. He was trained in all aspects of the Hungry Man policy as established by his predecessor, including the diet his employees feed to people in his custody, and the system (or lack thereof) for ensuring they receive their food. Since taking command of the Santa Fe Police Department, the Chief has reviewed other policies and chosen to change at least one policy because it was
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unlawful. The Police Chief knows of the Hungry Man Policy, he has the power to change it, and he has failed to do so.
153. Moreover, the Police Chief allowed a person in his custody to be deprived of food as recently as mid-August. He knows that the failure to supervise officers and promulgate policies for feeding people in his custody poses a substantial risk that people would not be fed at all. The Chief has not changed any aspect of the Hungry Man Policy.
154. Even if the City Council, City Manager, and the Police Chief did not have actual knowledge of the Hungry Man policy, they have constructive knowledge of the policy.
a. The Hungry Man policy is applied multiple times a day to every person locked in the jail.
b. The Hungry Man policy is applied flagrantly. There is no sign that Police Department staff do anything to conceal the Hungry Man Policy. The Police Chief was explicitly trained in this policy when he was hired. The “meals” for people in the Chief’s custody are stored and microwaved in the same area where Department staff cook their own food and take breaks. Upper-level supervisors have described objections to food deprivation as “nitpicking,” and generally defended the current system rather than trying to conceal it.
c. The severe nutritional and caloric deprivation resulting from a daily diet of two Pop Tarts and one frozen dinner is obvious, whether or not a policymaker takes the time to check the nutritional label. The diet fed to people in the Chief’s custody is a starvation diet that provides less than half of the caloric
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and protein requirements for an adult of any age or sex. For a person who is already living on this diet for days, deprivation of even one “meal” is a severe deprivation of food that would be apparent to any policymaker fulfilling his oversight responsibilities.
d. As alleged above, the City Council, City Manager, and Police Chief approve spending for prison supplies that barely exceeds spending on supplies for the Police Department’s dogs. The Police Chief is aware that at least one person in his custody was recently deprived of food. 155. Like the Debtors’ Prison Policy, the Hungry Man Policy is not a hush-hush agreement among lower-level Police Department staff, nor is it a policy that the Police Department imposes on rare occasions. The constitutional violations the Police Department causes under this policy are not trivial, and they are not highly technical or obscure. The Police Chief is not giving people in his custody enough food to stay healthy. 156. The City Council, City Manager, and Police Chief all know of the Hungry Man Policy. By failing to adequately supervise the distribution of food to people in the Chief’s custody, they are deliberately indifferent to the high risk that people will be deprived of the minimal civilized measure of life’s necessities. III. The City of Santa Fe Has Conspired to Deprive Local Residents of their Constitutional Rights 157. Through its policymakers, the City of Santa Fe has agreed to use its law enforcement powers as a means to generate revenue for the City. The City Council, City Manager, Police Chief, Court Administrator, and Municipal Judge have agreed to deny
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constitutional rights as part of a broader scheme to maximize revenue generation by coercing people to make payments they cannot afford. These officials have all agreed that that the purpose of collecting outstanding fines is not to administer justice, but to use intimidation to generate revenue. These officials have agreed to intimidate people into making payments by systemically violating their right to due process, right to equal protection, right to counsel, and right against cruel and unusual punishment.
158. The City Council, City Manager, Police Chief, Court Administrator, and Municipal Judge have had explicit discussions about assessing and enforcing fines to make up for a budgetary shortfall. Last summer, the City Manager scheduled a meeting with officials including the Court Administrator and Police Chief to brainstorm ways to make up for a budgetary shortfall of nearly $650,000.
159. Shortly after the meeting about the budgetary shortfall, the Municipal Judge raised the fines for all tickets written by the Santa Fe Police Department, requiring people to pay even more money to extricate themselves from cycles of contact with the Santa Fe criminal justice system. The City Manager knew of this change in advance and had a conversation with the Court Administrator about whether the City Council would need to approve it.
160. In the year following the meeting about the budgetary shortfall, court clerks nearly doubled the number of capias pro fine warrants they issued to enforce fines by authorizing the Santa Fe Police Department to jail people for failure to pay.
161. In the year following the meeting about the budgetary shortfall, the Municipal Court tracked and proudly reported monthly increases in revenue. In one
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month, the court reported increased revenue by 75% over the same month in the previous year. Court staff also proudly reported that they had improved their collections by placing more phone calls to people with unpaid fines. During these phone calls, court staff threaten people with unconstitutional jail terms if they fail to make a payment.
162. As a result of the concerted effort among the Municipal Judge, Court Administrator, City Council, City Manager, and Police Chief, the revenue the Municipal Court generated for the City increased by $20,045 over the previous year, to a total of $225,562.
163. These are only the most recent steps in furtherance of an ongoing agreement to deprive people of their constitutional rights as part of a scheme to use the Municipal Court to generate revenue through intimidation. For years, the Santa Fe Police Department has jailed hundreds of people under this agreement in violation of their constitutional rights.
164. The City of Santa Fe has long considered revenue generation to be the function its criminal justice system. Monthly reports from the Court Administrator to the City Council and City Manager focus exclusively on the court’s capacity for generating revenue, including the dollar value of fines that were satisfied because the City put the person who owes the fines in jail.
165. The Mayor has personally urged Police Department staff members and the Municipal Judge to do their part to ensure that people who do not pay their fines are held in jail, in violation of their right to due process, right to equal protection, and right to counsel.
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166. The Municipal Judge and court staff have agreed to keep cases open, even when the judge believes that the prosecutor could not prove the allegations, in order to raise potential revenue streams for the City.
167. The Mayor and City Council decided to hire a City Marshal—a position devoted almost entirely to arresting people for failure to pay their fines—based on a review of the court’s revenue statistics.
168. The City Manager, Mayor, and City Council agree that the Municipal Court’s primary objectives include “improve court collections” and “continue aggressive program of serving and collecting warrants.”
169. The City of Santa Fe is liable for the unconstitutional jail terms resulting from this conspiracy among its policymakers to raise revenue at the expense of the Constitution.
CLASS ACTION ALLEGATIONS 170. The named Plaintiffs bring this action on behalf of themselves and all others similarly situated under Rule 23 of the Federal Rules of Civil Procedure. George West and Robert Jones seek to represent the following Prospective Relief Class:
All people who are subject to an open capias pro fine warrant issued by Santa Fe Municipal Court. And Brady Fuller seeks to represent the following Damages Class: All people confined in the Santa Fe Jail since November 3, 2014, under a capias pro fine warrant resulting from an uncounseled misdemeanor prosecution in Santa Fe Municipal Court.
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Plaintiff George West does not seek to act as a class representative with respect to the right to counsel claims.
171. This action is brought and may properly be maintained as a class action pursuant to Rule 23(a)(1)-(4) and Rule 23(b)(2) (injunctive and declaratory relief for the Prospective Relief class) and 23(b)(3) (damages for the damages subclass). I. The Proposed Classes Satisfy Rule 23(a)
172. Members of the proposed classes are so numerous that joinder is impracticable. Both classes include well over forty members.
173. Joinder is also impracticable because membership in the large proposed classes is fluid. People enter the proposed classes, and leave the Prospective Relief Class, every day. Monitoring for these changes, and joining and dismissing plaintiffs repeatedly, would not be a practical way to manage this litigation.
174. The relief sought is common to all members of the proposed classes, and common questions of law and fact exist as to all members of the classes. Plaintiffs seek prospective relief from the Debtors’ Prison Policy and the Hungry Man Policy, and damages for implementation of those policies, on a classwide basis.
175. Among the most important, but not the only, common questions of law and fact are:
a. Does the Police Chief jail people in violation of their rights to due process, equal protection, counsel, and right against cruel and unusual punishment?
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b. Did Santa Fe’s Municipal Policymakers conspire with Judge Getty to deprive people of their constitutional rights?
c. Is the City of Santa Fe liable for violating class members’ constitutional rights in the past?
d. Is prospective relief appropriate to stop the City of Santa Fe, the Police Chief, and Judge Getty from violating class members’ constitutional rights in the future? 176. The named Plaintiffs’ claims are typical of the claims of the proposed class members, and they have the same interests as all other members of the proposed classes that they represent. The named Plaintiffs’ claims arise from the same course of conduct as claims of the proposed classes, and their claims are based on the same legal theories as those of the proposed classes. 177. The named Plaintiffs are adequate representatives of the proposed classes because they are members of the classes and because their interests coincide with, and are not antagonistic to, those of the classes. 178. The named Plaintiffs are familiar with the City of Santa Fe’s practices challenged here and the constitutional protections they seek to vindicate. The named Plaintiffs are prepared to respond to discovery requests in this case. They are committed to fulfilling the role and duties of a class representative protecting the fundamental constitutional rights of Santa Fe’s poorest residents. 179. The named Plaintiffs are represented by lawyers associated with the American Civil Liberties Union of Texas. Affidavits from Plaintiffs’ counsel describing
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their qualifications accompany the motion for class certification filed simultaneously with this complaint.
180. The named Plaintiffs and their attorneys will fairly and adequately protect the interests of the members of the Class. V. General Applicability, Rule 23(b)(2)
181. Class action status is appropriate because Defendants have acted and refused to act on grounds generally applicable to the proposed class. The City’s Debtors’ Prison Policy and Hungry Man Policy apply equally to the class regardless of differences among class members.
182. Plaintiffs seek final injunctive and declaratory relief protecting them from violation of their rights to due process, equal protection, counsel, and freedom from cruel and unusual punishment.
183. Injunctive and declaratory relief with respect to each claim would be appropriate to the class as a whole. All members of the proposed class are entitled to the constitutional protections Plaintiffs seek to enforce. VI. Predominance and Superiority, Rule 23(b)(3)
184. The predominant questions in this case are whether municipal policies violate the proposed class members’ constitutional rights. This question is susceptible to generalized, class-wide proof. There is no individualized evidence or legal argument required to succeed on such a claim.
185. A class action is superior to alternative methods of trying individual claims. In this case, there is no realistic alternative for members of the proposed classes to try
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their claims. As the working poor, people searching for work, and people unable to work due to disabilities, members of the proposed classes are not likely to be able to invest the resources necessary to retain an attorney or bring their claims pro se.
CLAIMS FOR RELIEF Count One: Imprisonment for Failure to Pay a Fine
in violation of 42 U.S.C. § 1983, and the Fourteenth Amendment Due Process and Equal Protection Clauses
Against the City of Santa Fe 186. Plaintiffs incorporate by reference allegations in the foregoing paragraphs. 187. Plaintiffs bring this claim against the City of Santa Fe on behalf of themselves and members of the proposed classes. 188. Under the Debtors’ Prison Policy, Santa Fe police officers elect to jail people for failure to pay their fines without a predeprivation inquiry into the reasons for failure to pay, and without judicial findings that each person willfully refused to pay, that she failed to make sufficient bona fide efforts to acquire the resources to pay, or that alternative measures are inadequate to satisfy the state’s interest in punishment. Santa Fe police officers are not trained to present a person to a judge before imprisonment for failure to pay, directly resulting in the past violation, and the current high risk of violation, of Plaintiffs’ and proposed class members’ rights to due process and equal protection. 189. The Debtors’ Prison Policy is a persistent and widespread practice that is so common and well-settled as to constitute a custom that fairly represents municipal policy.
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The Debtors’ Prison Policy is the moving force behind past violations, and the current high risk of violation, of Plaintiffs’ and proposed class members’ rights to due process and equal protection.
190. The City is liable because the City Council, City Manager, and the Police Chief, all know of the Debtors’ Prison Policy. They have conspired with the Municipal Judge to violate Plaintiffs’ and proposed class members’ rights to due process and equal protection. Their failure to require officer training in ability to pay hearings evinces deliberate indifference to Plaintiffs’ and proposed class members’ rights to due process and equal protection.
191. In the alternative, the City Council failed to promulgate policies to correct the Municipal Judge’s persistent and widespread authorization of jail terms for failure to pay, without a predeprivation inquiry into the reasons for failure to pay, and without any of the necessary judicial findings, in violation of Plaintiffs’ and proposed class members’ rights to due process and equal protection.
192. In the absence of prospective relief, Prospective Relief Class members are likely to be jailed in violation of their rights to due process and equal protection. On behalf of themselves and the Prospective Relief Class, Plaintiffs George West and Robert Jones seek declaratory and injunctive relief against the City of Santa Fe.
193. On behalf of himself and the Damages Class, Brady Fuller seeks damages against the City of Santa Fe.
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Count Two: Denial of Counsel in violation of 42 U.S.C. § 1983, the Sixth Amendment Right to Counsel Clause, and the Fourteenth Amendment Due Process Clause
Against the City of Santa Fe 194. Plaintiffs incorporate by reference allegations in the foregoing paragraphs. 195. Plaintiffs Robert Jones and Brady Fuller bring this claim against the City of Santa Fe, on behalf of themselves and members of the proposed classes. 196. Under the Debtors’ Prison Policy, Santa Fe police officers elect to jail people as a result of their uncounseled misdemeanor convictions. The officers make no attempt to inform people of their right to counsel, take steps to appoint counsel, or elicit a knowing, voluntary, and intelligent waiver of the right to counsel. Santa Fe police officers are not trained in application of the right to counsel in the misdemeanor context, directly resulting in a high risk that Plaintiffs and proposed class members will be jailed in violation of their right to counsel. 197. The Debtors’ Prison Policy is a persistent and widespread practice among the Santa Fe Police Department that is so common and well-settled as to constitute a custom that fairly represents municipal policy. The Debtors’ Prison Policy is the moving force behind the high risk that Plaintiffs and proposed class members will be jailed in violation of their right to counsel. 198. The City is liable because the City Council, City Manager, and Police Chief all know of the Debtors’ Prison Policy. They have conspired with the Municipal Judge to violate Plaintiffs’ and proposed class members’ right to counsel. Their failure to require
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officer training in the right to counsel evinces deliberate indifference to Plaintiffs’ and proposed class members’ right to counsel.
199. In the alternative, the City Council failed to promulgate policies to correct the Municipal Judge’s persistent and widespread authorization of jail terms for uncounseled misdemeanor convictions.
200. In the absence of prospective relief, Plaintiffs and proposed class members are likely to be jailed in violation of their right to counsel.
201. On behalf of himself and the Prospective Relief class, Robert Jones seeks declaratory and injunctive relief against the City of Santa Fe.
202. On behalf of himself and the Damages Class, Brady Fuller seeks damages against the City of Santa Fe.
Count Three: Unlawful Detention in violation of 42 U.S.C. § 1983, and the Fourteenth Amendment Due Process Clause
Against the City of Santa Fe 203. Plaintiffs incorporate by reference allegations in the foregoing paragraphs. 204. Plaintiffs bring this claim against the City of Santa Fe, on behalf of themselves and members of the proposed classes. 205. Under the Debtors’ Prison Policy, Santa Fe police officers jail people in the absence of a facially valid court order or any other legal authority. Officers elect to jail people under a capias pro fine warrant, even if it is possible to bring the person before an appropriate court. Officers also elect jail people for longer than the next business day after their arrest, if necessary to discharge their outstanding fines. Santa Fe police officers
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are not trained in the legal limits on liberty deprivation under a capias pro fine warrant, directly resulting in past violations, and the current high risk of violation, of Plaintiffs’ and proposed class members’ due process right against unlawful detention.
206. The Debtors’ Prison Policy is a persistent and widespread practice among the Santa Fe Police Department that is so common and well-settled as to constitute a custom that fairly represents municipal policy. The Debtors’ Prison Policy is the moving force behind the past violation, and the current high risk of violation, of Plaintiffs’ and proposed class due process right against unlawful detention.
207. The City Council, City Manager, and Police Chief all know of the Debtors’ Prison Policy. They have conspired with Judge Getty to violate Plaintiffs’ and proposed class members’ due process right against unlawful detention. Their failure to require officer training in the scope of the liberty deprivation authorized by a capias pro fine warrant evinces deliberate indifference to Plaintiffs and proposed class members’ due process right against unlawful detention.
208. In the alternative, the City Council failed to promulgate policies to correct the Municipal Judge’s persistent and widespread authorization of jail terms for uncounseled misdemeanor convictions.
209. In the absence of prospective relief, Plaintiffs and Prospective Relief Class members are likely to be jailed without lawful authority in violation of their right to due process.
210. On behalf of themselves and the Prospective Relief Class, George West and Robert Jones seek declaratory and injunctive relief against the City of Santa Fe.
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211. On behalf of himself and the Damages Class, Brady Fuller seeks damages against the City of Santa Fe.
Count Four: Depriving Prisoners of Adequate Food in violation of 42 U.S.C. § 1983, the
Eighth Amendment Cruel and Unusual Punishments Clause, and the Fourteenth Amendment Due Process Clause Against the City of Santa Fe
212. Plaintiffs incorporate by reference allegations in the foregoing paragraphs. 213. Plaintiffs bring this claim against the City of Santa Fe on behalf of themselves and members of the proposed classes. 214. Under the Hungry Man Policy, Santa Fe police officers feed people a calorically and nutritionally inadequate diet. The Police Chief has not promulgated any policies to ensure that someone actually gives people in his custody the small amount of food that he allocates for them to eat. The Police Chief has failed to supervise whether his staff feed people in his custody, directly resulting in past violations, and the current high risk of violation, of Plaintiffs’ and proposed class members’ rights against cruel and unusual punishment. 215. The Hungry Man Policy is a persistent and widespread practice among the Santa Fe Police Department that is so common and well-settled as to constitute a custom that fairly represents municipal policy. The Hungry Man Policy is the moving force behind the past violation, and the current high risk of violation, of Plaintiffs’ and proposed class members’ right against cruel and unusual punishment.
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216. The City Council, City Manager, and Police Chief all know of the Hungry Man Policy. Their failure to supervise staff to monitor whether someone feeds people in the Chief’s custody evinces deliberate indifference to Plaintiffs’ and proposed class members’ right against cruel and unusual punishment.
217. In the absence of prospective relief, Plaintiffs and proposed class members are likely to be subjected to cruel and unusual punishment.
218. On behalf of themselves and the Prospective Relief Class, Plaintiffs George West and Robert Jones seek declaratory and injunctive relief against the City of Santa Fe.
219. On behalf of himself and the damages subclass, Plaintiff Brady Fuller seeks damages against the City of Santa Fe.
Count Five: Imprisonment for Failure to Pay a Fine in violation of 42 U.S.C. § 1983, and the
Fourteenth Amendment Due Process and Equal Protection Clauses Against Police Chief Jeffrey Powell
220. Plaintiffs incorporate by reference allegations in the foregoing paragraphs. 221. Plaintiffs George West and Robert Jones bring this claim against Chief Powell on behalf of themselves and members of the Prospective Relief Class. 222. Under the Debtors’ Prison Policy, Santa Fe police officers elect to jail people for failure to pay their fines without a predeprivation inquiry into the reasons for failure to pay, and without judicial findings that each person willfully refused to pay, that she failed to make sufficient bona fide efforts to acquire the resources to pay, or that alternative measures are inadequate to satisfy the state’s interest in punishment. Santa Fe
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police officers are not trained to present a person to a judge before imprisonment for failure to pay, directly resulting in the past violation, and the current high risk of violation, of Plaintiffs’ and proposed class members’ rights to due process and equal protection.
223. Chief Powell knows of the Debtors’ Prison Policy, he has the power to change the Debtors’ Prison Policy, and he has failed to do so. There is a significant causal connection between this omission and the high risk that Plaintiffs and proposed class members will be jailed in violation of their rights to due process and equal protection.
224. Chief Powell has conspired with the Municipal Judge to violate Plaintiffs’ and proposed class members’ rights to due process and equal protection.
225. Chief Powell has failed to require officer training in ability to pay hearings, evincing deliberate indifference to Plaintiffs’ and proposed class members’ rights to due process and equal protection.
226. In the absence of prospective relief, Prospective Relief Class members are likely to be jailed in violation of their rights to due process and equal protection. On behalf of themselves and the Prospective Relief Class, George West and Robert Jones seek declaratory and injunctive relief against Chief Powell.
Count Six: Denial of Counsel in violation of 42 U.S.C. § 1983, the Sixth Amendment Right to Counsel Clause, and the Fourteenth Amendment Due Process Clause Against Police Chief Jeffrey Powell 227. Plaintiffs incorporate by reference allegations in the foregoing paragraphs.
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228. Plaintiff Robert Jones brings this claim against Chief Powell on behalf of herself and members of the Prospective Relief Class.
229. Under the Debtors’ Prison Policy, Santa Fe police officers elect to jail people as a result of their uncounseled misdemeanor convictions. The officers make no attempt to inform people of their right to counsel, take steps to appoint counsel, or elicit a knowing, voluntary, and intelligent waiver of the right to counsel. Santa Fe police officers are not trained in application of the right to counsel in the misdemeanor context, directly resulting in a high risk that Plaintiffs and proposed class members will be jailed in violation of their right to counsel.
230. Defendant Chief Powell knows of the Debtors’ Prison Policy, he has the power to change the Debtors’ Prison Policy, and he has failed to do so. There is a significant causal connection between this omission and the high risk that Plaintiffs and proposed class members will be jailed in violation of their right to counsel.
231. Defendant Chief Powell has conspired with the Municipal Judge to violate Plaintiffs’ and proposed class members’ right to counsel.
232. Defendant Chief Powell has failed to require officer training in the right to counsel for people arrested under capias pro fine warrants, evincing deliberate indifference to Plaintiffs’ and proposed class members’ right to counsel.
233. In the absence of prospective relief, Prospective Relief Class members are likely to be jailed in violation of their right to counsel.
234. On behalf of himself and the Prospective Relief class, Plaintiff Robert Jones seeks declaratory and injunctive relief against Chief Powell.
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Count Seven: Unlawful Detention in violation of 42 U.S.C. § 1983, and the Fourteenth Amendment Due Process Clause
Against Police Chief Jeffrey Powell 235. Plaintiffs incorporate by reference allegations in the foregoing paragraphs. 236. Plaintiffs George West and Robert Jones bring this claim against Chief Powell, on behalf of themselves and members of the Prospective Relief Class. 237. Under the Debtors’ Prison Policy, Santa Fe police officers jail people in the absence of a facially valid court order or any other legal authority. Officers elect to jail people under a capias pro fine warrant, even if it is possible to bring the person before an appropriate court. Officers also elect jail people for longer than the next business day after their arrest, if necessary to discharge their outstanding fines. Santa Fe police officers are not trained in the legal limits on liberty deprivation under a capias pro fine warrant, directly resulting in past violations, and the current high risk of violation, of Plaintiffs’ and proposed class members’ due process right against unlawful detention. 238. Defendant Chief Powell knows of the Debtors’ Prison Policy, he has the power to change the Debtors’ Prison Policy, and he has failed to do so. There is a significant causal connection between this omission and the high risk that Plaintiffs and proposed class members will be jailed in violation of their right to due process. 239. Defendant Chief Powell has conspired with the Municipal Judge to violate Plaintiffs’ and proposed class members’ right to due process.
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240. Defendant Chief Powell has failed to require officer training about the scope of the liberty deprivation authorized by a capias pro fine warrant, evincing deliberate indifference to Plaintiffs’ and proposed class members’ right to due process.
241. In the absence of prospective relief, Prospective Relief Class members are likely to be jailed without lawful authority in violation of their right to due process.
242. On behalf of themselves and the Prospective Relief Class, George West and Robert Jones seek declaratory and injunctive relief Chief Powell.
Count Eight: Failure to Give Prisoners Adequate Food in violation of 42 U.S.C. § 1983, the
Eighth Amendment Cruel and Unusual Punishments Clause, and the Fourteenth Amendment Due Process Clause Against Police Chief Jeffrey Powell
243. Plaintiffs incorporate by reference allegations in the foregoing paragraphs. 244. Plaintiffs George West and Robert Jones bring this claim against Chief Powell on behalf of themselves and members of the Prospective Relief Class. 245. Under the Hungry Man Policy, Santa Fe police officers feed people a calorically and nutritionally inadequate diet. Chief Powell has not promulgated any policies to ensure that someone actually gives people in his custody the small amount of food that he allocates for them to eat. Chief Powell has failed to supervise whether his staff feed people in his custody, directly resulting in past violations, and the current high risk of violation, of Plaintiffs’ and proposed class members’ right against cruel and unusual punishment.
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246. Defendant Chief Powell knows of the Hungry Man Policy, he has the power to change the Hungry Man Policy, and he has failed to do so. There is a significant causal connection between this omission and the high risk that Plaintiffs and proposed class members will be jailed in violation of their right against cruel and unusual punishment.
247. In the absence of prospective relief, Prospective Relief Class members are likely to be subjected to cruel and unusual punishment.
248. On behalf of themselves and the Prospective Relief Class, George West and Robert Jones seek declaratory and injunctive relief against Chief Powell.
Count Nine: Imprisonment for Failure to Pay a Fine in violation of 42 U.S.C. § 1983, and the
Fourteenth Amendment Due Process and Equal Protection Clauses Against Municipal Judge Carlton Getty
249. Plaintiffs incorporate by reference allegations in the foregoing paragraphs. 250. Plaintiffs George West and Robert Jones bring this claim against Judge Getty, on behalf of themselves and members of the Prospective Relief Class, for declaratory relief only. 251. Defendant Judge Getty has instructed court clerks to issue, under his signature, capias pro fine warrants that purport to authorize a jail term for failure to pay a fine. Under Judge Getty’s instructions, these warrants issue without a predeprivation inquiry into the reasons for failure to pay, and without a finding that each person willfully refused to pay, that she failed to make sufficient bona fide efforts to acquire the resources
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to pay, or that alternative measures would be inadequate to satisfy the state’s interest in punishment. Judge Getty’s actions thus result in the high risk that Plaintiffs and proposed class members will be jailed in violation of their right to due process and equal protection.
252. In the absence of prospective relief, Prospective Relief Class members are likely to be jailed in violation of their rights to due process and equal protection.
253. On behalf of themselves and the Prospective Relief Class, George West and Robert Jones seek declaratory relief against Judge Getty.
Count Ten: Denial of Counsel in violation of 42 U.S.C. § 1983, the Sixth Amendment Right to Counsel Clause, and the Fourteenth Amendment Due Process Clause Against Municipal Judge Carlton Getty 254. Plaintiffs incorporate by reference allegations in the foregoing paragraphs. 255. Plaintiff Robert Jones brings this claim against Judge Getty, on behalf of herself and members of the Prospective Relief Class, for declaratory relief only. 256. Defendant Judge Getty has instructed court clerks to issue, under his signature, capias pro fine warrants that purport to authorize a jail term resulting from an unreliable uncounseled misdemeanor conviction. Judge Getty’s actions thus result in the high risk that Plaintiffs and proposed class members will be jailed in violation of their right to counsel. 257. In the absence of prospective relief, Plaintiffs and Prospective Relief Class members are likely to be jailed in violation of their right to counsel.
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258. On behalf of himself and the Prospective Relief Class, Robert Jones seeks declaratory relief against Judge Getty.
Count Eleven: Unlawful Detention in violation of 42 U.S.C. § 1983, and the Fourteenth Amendment Due Process Clause Against Municipal Judge Carlton Getty 259. Plaintiffs incorporate by reference allegations in the foregoing paragraphs. 260. Plaintiffs George West and Robert Jones bring this claim against Judge Getty, on behalf of themselves and members of the Prospective Relief Class, for declaratory relief only. 261. Defendant Judge Getty has instructed court clerks to issue, under his signature, capias pro fine warrants that purport to authorize officers to jail people for failure to pay a fine, without bringing them before a judge as required by Texas law. Judge Getty’s actions thus result in the high risk that Plaintiffs and proposed class members will be jailed in violation of their right to due process. 262. In the absence of prospective relief, Prospective Relief Class members are likely to be jailed in violation of their right to due process. 263. On behalf of themselves and the Prospective Relief Class, George West and Robert Jones seek declaratory relief against Judge Getty.
JURY TRIAL DEMAND 264. Plaintiffs demand a trial by jury.
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REQUEST FOR RELIEF WHEREFORE, Plaintiffs request that this Court issue the following relief:
1. An order certifying the proposed classes; 2. An injunction prohibiting the City of Santa Fe and Chief Powell from executing a capias pro fine warrant against any class member:
a. who has not received a predeprivation hearing inquiring into her reasons for failure to pay, and judicial findings that she has willfully refused to pay, that she has failed to make sufficient bona fide efforts to acquire the resources to pay, or that alternative measures are inadequate to satisfy the state’s interest in punishment; or
b. who was not represented by counsel at every critical stage of her underlying Class C misdemeanor prosecution, and did not knowingly, voluntarily, and intelligently waive her right to counsel; and, in any case,
c. without providing her with sufficient calories and nutrition, in accordance with a plan approved by this Court; 3. A declaration that, by authorizing or carrying out a class member’s arrest or detention for failure to pay a judgment issued by the Santa Fe Municipal Court, the City of Santa Fe, Judge Getty, and Chief Powell:
a. violate a class member’s Fourteenth Amendment rights to due process and equal protection, if the class member has not received a predeprivation hearing inquiring into her reasons for failure to pay, and judicial findings that she has willfully refused to pay, that she has failed to
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make sufficient bona fide efforts to acquire the resources to pay, or that alternative measures are inadequate to satisfy the state’s interest in punishment;
b. violate a class member’s Sixth Amendment right to counsel and Fourteenth Amendment right to due process, if the class member was not represented by counsel at every critical stage of her underlying Class C misdemeanor prosecution and in her ability to pay hearing, and she did not knowingly, voluntarily, and intelligently waive that right;
c. violate a class member’s Fourteenth Amendment right to due process by authorizing or carrying out execution of a capias pro fine warrant in a manner unauthorized by law; and
d. violate a class member’s Eighth Amendment right against cruel and unusual punishment, by feeding her a diet that is nutritionally and calorically insufficient, and by failing to supervise employees to ensure that she is fed; 4. A judgment that the City of Santa Fe is liable to the Damages Class in an amount to be determined at trial, including special damages for lost wages, childcare, late fees on bills, vehicle impoundment costs, and other collateral consequences of incarceration; and general damages, or, in the alternative, nominal damages; 5. A judgment that Defendants are liable for reasonable attorneys’ fees and costs pursuant to 42 U.S.C. § 1988; and
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6. Any other relief this Court deems just and proper.

Respectfully Submitted,

By:

/s/ Trisha Trigilio

Trisha Trigilio Attorney-in-charge State Bar No. 24065179 S.D. Tex. Bar No. 2461809 Rebecca Robertson State Bar No. 00794542 S.D. Tex. Bar No. 20061 ACLU of Texas 1500 McGowen Street, Suite 250 Houston, Texas 77004 Phone 713.942.8146 Fax 713.942.8966 ttrigilio@aclutx.org rrobertson@aclutx.org

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 Case 3:18-cv-00283 Document 68 Filed on 08/16/18 in TXSD
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS GALVESTON DIVISION

Page 1 of 35
United States District Court Southern District of Texas
ENTERED
August 16, 2018
David J. Bradley, Clerk

GEORGE WEST and

§

BRADY FULLER

§

§

Plaintiffs.

§

§

§

vs.

§ CIVIL ACTION NO. 3:16-CV-0309

§

CITY OF SANTA FE, TEXAS

§

and CITY OF HITCHCOCK, TEXAS §

§

Defendants.

§

MEMORANDUM AND RECOMMENDATION Pending before the Court is Defendant City of Hitchcock's Opposed Motion to Dismiss ("Hitchcock's Motion to Dismiss") and Defendants' Opposed Motion to Dismiss Plaintiffs' Claims ("Santa Fe's Motion to Dismiss"). Dkts. 54, 16.1 These motions have been referred to this Court for report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). Dkts. 57, 59. After reviewing the briefing and applicable law, the Court RECOMMENDS that Hitchcock's Motion to Dismiss and Santa Fe's Motion to Dismiss be DENIED.

1 Santa Fe's Motion to Dismiss was originally filed by Defendants City of Santa Fe ("Santa Fe"), Santa Fe Municipal Judge Carlton Getty ("Getty"), and Santa Fe Chief of Police Jeffrey Powell ("Powell") in response to the Complaint. The First Amended Complaint ("Amended Complaint") abandoned claims against Getty and Powell, dropped a named Plaintiff (Robert Jones), and added a defendant (City of Hitchcock ("Hitchcock")). The parties have filed, and the Court has considered, supplemental briefing addressing whether the claims in the Amended Complaint brought against Santa Fe should be dismissed.

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I. BACKGROUND
This lawsuit is brought by George West ("West") and Brady Fuller ("Fuller"). West brings claims exclusively against Hitchcock and Fuller brings claims only against Santa Fe. West's claims and Fuller's claims will be examined separately below.
West's Allegations: On May 13, 2014, West drove through Hitchcock without a valid driver's license and motor vehicle liability insurance. A police officer issued West a citation, charging him with violations of the Texas Transportation Code. That same day,_ West purchased an appearance bond. from a private bail bond company and agreed to appear at the Hitchcock Municipal Court two weeks later to answer the charges against him.
On May 27, 2014, West appeared at the Hitchcock Municipal Court. After being informed of his right to trial, West entered a formal appearance, waived his right to trial, and pled "no contest" to charges that he drove without a driver's license and failed to show proof of financial responsibility. West agreed to pay a total fine of $738.00 in monthly installments of $100.00, with the first installment due on June 27, 2014. West acknowledged that if he failed to make the monthly payments, a warrant would be issued for his arrest. There is no allegation that West ever informed the Hitchcock Municipal Court in May 2014 that he was financially unable to pay the amount of the fine.
West did not make his first installment payment, but he did make $100.00 installment payments on July 8, 2014, and August 18, 2014. After the August 2014 payment, West did not make any further installment payments. As a result of West's failure to pay his fine, on October 8, 2014, the Hitchcock Municipal Court Judge issued a
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capias pro fine warrant for West's arrest based on his failure to comply with the court's judgment. There are no allegations that West ever contacted the Hitchcock Municipal Court to (1) explain why he stopped paying the monthly installments; (2) contend that his financial condition prohibited him from paying the fine imposed; or (3) request an alternative sentencing arrangement.
On the afternoon of October 11, 2017, West appeared at the Santa Fe Municipal Court on a separate legal matter. Apparently tipped off as to West's whereabouts, a Hitchcock Municipal Court warrant officer appeared at the Santa Fe Municipal Court and arrested West. West asserts that his lawyer told the marshal that West "was unable to pay, explained that she was a pro bono criminal defense lawyer for impoverished clients, and volunteered to file papers demonstrating Mr. West's poverty in any court where he had open warrants." Dkt. 43 at 8. According to the Amended Complaint, West was transported to the Hitchcock jail where he was booked at 3:20 p.m. that day. West alleges that his attorney went to Hitchcock Municipal Court that afternoon and
asked the court clerk how to present Mr. West's claim of poverty to the judge. The court clerk said that the judges had gone out of town and had not left any way to get in touch with them. The judges had not made any plan for conducting ability to pay hearings in their absence, because it is not their ordinary practice to hold ability to pay hearings before committing someone to jail on a capias pro fine warrant. !d. at 9. West spent the night in jail. The following morning, October 12, 2017, at 8:52am, West entered an appearance at the Hitchcock Municipal Court and pled guilty to the charges pending against him. He
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was given a credit of $829.40 for his overnight stay, which fully satisfied the amount of the fine.
West raises two Section 1983 claims against Hitchcock: (1) imprisonment for inability to pay a fine in violation of the Fourteenth Amendment Due Process and Equal Protection Clauses; and (2) denial of counsel in violation of the Sixth Amendment right to counsel clause, and the Fourteenth Amendment Due Process and Equal Protection Clauses.
Fuller's Allegations: In April 2014, a Santa Fe police officer stopped Fuller and issued him a citation for driving with an expired inspection sticker? Although Fuller signed a promise to appear in Santa Fe Municipal Court on a particular date to address the allegations, he did not show up for the court date. As a result, failure to appear charges were brought against Fuller. Fuller then appeared in person before the Santa Fe Municipal Court Judge and pled "no contest" to the charge that he drove with an expired inspection sticker.3 The Santa Fe Municipal Court assessed a $307.00 fine, with $204.00 due by November 30, 2014, and $50.00 due every two weeks thereafter until the total amount of the fine was paid in full. Fuller did not make any payments toward his fine. Fuller contends that he did not have the money to pay the fine. He alleges that he "told the marshal that he could not afford to make a payment. The marshal said that Mr.
2 The Amended Complaint asserts that Fuller received the ticket in 2015, but that appears to be a mistake. The documents attached to Santa Fe's Motion to Dismiss clearly indicate that the incidents giving rise to this lawsuit occurred in 2014. 3 Fuller claims that he paid the full amount of the failure to appear ticket, utilizing funds earmarked to pay other bills.
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Fuller's only option was to pay the fine; otherwise, Santa Fe would jail him for failure to pay." Dkt. 43 at 11.
Believing that jail was inevitable, Fuller claims he surrendered himself at the Santa Fe jail. But, due to an error in court records, the file failed to reflect that Fuller had already appeared to answer the failure to appear charges and signed papers for a payment plan. After one night in jail, the Santa Fe Police Department brought Fuller before the Municipal Court Judge who purportedly fixed the recordkeeping mistake by having Fuller sign a new set of papers for a payment plan. The new payment plan was for even more money than he owed before.
Fuller still could not afford the payments. As a result, a capias pro fine warrant was issued for Fuller's arrest. About six months later, Fuller was pulled over by a state trooper who ran Fuller's license and discovered the pending warrant. The state trooper turned Fuller over to a Santa Fe marshal, who took Fuller to the Santa Fe jail. "Fuller did not agree to go to jail, nor was he presented with a choice about whether to go to jail." !d. at 12. According to Fuller, "[t]he marshal told Mr. Fuller that the only alternative was to pay his fine in full. Mr. Fuller explained that he did not have the money, and the marshal locked him in jail." !d. at 12-13. Fuller spent three days in jail before being released.
Fuller complains about the conditions he encountered in the Santa Fe jail and specifically objects to being fed one Pop Tart for breakfast, one Pop Tart for lunch, and a frozen dinner. On two of the nights he spent in jail, Fuller claims that the staff at the Santa Fe jail forgot to feed him the frozen dinner.
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Fuller asserts four separate Section 1983 claims against Santa Fe: (1) imprisonment for inability to pay a fine in violation of the Fourteenth Amendment Due Process and Equal Protection Clauses; (2) denial of counsel in violation of the Sixth Amendment right to counsel clause, and the Fourteenth Amendment Due Process and Equal Protection Clauses; (3) unlawful detention in violation of the Fourteenth Amendment Equal Protection Clause; and (4) unlawful deprivation of adequate food in violation of the Eighth Amendment cruel and unusual punishments clause and the Fourteenth Amendment Equal Protection Clause.
II. MOTION TO DISMISS STANDARD Rule 12(b)(l): A court must dismiss a suit for lack of subject matter jurisdiction under Rule 12(b)(l) where it lacks the statutory or constitutional power to adjudicate the case. See Home Builders Ass'n ofMiss., Inc. v. City ofMadison, Miss., 143 F.3d 1006, 1010 (5th Cir. 1998). Subject matter jurisdiction fails if the plaintiff lacks Article III standing. See Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541-42 (1986). Therefore, when a plaintiff lacks standing to sue in federal court, it is appropriate to dismiss the action pursuant to Rule 12(b)(1) for want of subject matter jurisdiction. See Chair King, Inc. v. Houston Cellular Corp., 131 F.3d 507, 509 (5th Cir. 1997). "Where . . . a motion to dismiss for lack ofjurisdiction is limited to a facial attack on the pleadings, it is subject to the same standard as a motion brought under Rule 12(b)(6)." Nat'! Coal. for Men v. Selective Serv. Sys., No. CV H-16-3362, 2018 WL 1694906, at *2 (S.D. Tex. Apr. 6, 2018) (citation omitted).
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Rule 12(b)(6): A pleading must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." FED. R. CIV. P. 8(a)(2). This pleading standard does not require "detailed factual allegations, but it demands more than an unadorned, the defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell At/. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Under Rule 12(b)(6), a party may "move for dismissal for a failure to state a claim upon which relief can be granted." Lemieux v. Am. Optical Corp., 712 F. App'x 409, 412 (5th Cir. 20 18) (internal quotation marks omitted). "The complaint must be liberally construed in favor of the plaintiff, and all facts pleaded in the complaint must be taken as true." Lowrey v. Tex. A&M Univ. Sys., 117 F.3d 242, 247 (5th Cir. 1997) (citation omitted). Dismissal is appropriate "when a plaintiff fails to allege sufficient facts that, taken as true, state a claim that is plausible on its face." Amacker v. Renaissance Asset Mgmt. LLC, 657 F.3d 252, 254 (5th Cir. 2011) (citation omitted). However, "[m]otions to dismiss under Rule 12(b)(6) are viewed with disfavor and are rarely granted." Lormand v. US Unwired, Inc., 565 F.3d 228, 232 (5th Cir. 2009) (citation and internal quotation marks omitted). A 12(b)(6) motion should not be granted "unless the plaintiff would not be entitled to relief under any set of facts or any possible theory that he could prove consistent with the allegations in the complaint." Jones v. Greninger, 188 F.3d 322, 324 (5th Cir. 1999).
On a motion to dismiss, the court's review is generally limited to the complaint and its proper attachments. See Dorsey v. Portfolio Equities, Inc., 540 F.3d 333, 338 (5th Cir. 2008). However, courts may rely upon "documents incorporated into the complaint
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by reference, and matters of which a court may take judicial notice." !d. (quoting Tellabs, Inc., v. Makar Issues & Rights, Ltd., 551 U.S. 308, 322 (2007)). Documents "attache[d] to a motion to dismiss are considered part of the pleadings if they are referred to in the plaintiffs complaint and are central to her claim." Collins v. Morgan Stanley Dean Witter, 214 F.3d 496, 498-99 (5th Cir. 2000).
III. CITY OF HITCHCOCK'S MOTION TO DISMISS A. STANDING
Hitchcock challenges West's standing to sue, arguing that West expressly waived in writing his right to appear before the Hitchcock Municipal Court Judge, and such waiver establishes that he has no case or controversy against the city. Importantly, Hitchcock has not explained in any meaningful way how its waiver argument affects any of the elements of standing.4 Nonetheless, the Court considers Hitchcock's waiver
4 This alone is likely sufficient reason to deny the motion on subject matter jurisdiction grounds. See, e.g., Waldbillig v. SSC Germantown Operating Co. LLC, No. 08-C-1002, 2010 WL 1688535, at *2 (E.D. Wis. Apr. 26, 2010) ("The motion to dismiss for lack of subject matter jurisdiction will be denied.... That [Plaintiff] may have waived her right to a court forum does not affect this court's authority to consider the case. [Pl~intiffs] waiver of her right to a court forum may be an affirmative defense or may indicate she has not satisfied a condition precedent to proceeding in court, matters appropriate for a summary judgment or other motion, but [Defendant] provides no authority indicating that Fed. R. Civ. P. 12(b)(1) is the correct vehicle for its challenge."); Brady Dev. Co. v. Resolution Tr. Corp., 14 F.3d 998, 1007 (4th Cir. 1994) ("The doctrines of waiver and estoppel do not apply to subject matter jurisdiction determinations.").
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argument in the standing context because Hitchcock explicitly makes the wmver argument in the "standing" section of its motion.
The issue of standing presents a "threshold jurisdictional question" in any lawsuit filed in federal district court. Steel Co. v. Citizens for a Better Env 't, 523 U.S. 83, 102 (1998). The requirement that a party have standing to bring suit flows from Article III of the Constitution, which limits the scope of the federal judicial power to the adjudication of "cases" or "controversies." U.S. CONST. art. III, § 2. "No principle is more fundamental to the judiciary's proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies."' Raines v. Byrd, 521 U.S. 811, 818 (1997). To establish standing, West must allege (1) an injury that is concrete, particularized and actual or imminent; (2) a causal connection between the injury and Hitchcock's conduct; and (3) a likelihood that a favorable decision will redress the injury. See Lujan v. Deft. of Wildlife, 504 U.S. 555, 560-61 (1992). When ruling on a motion to dismiss for want of standing, a district court must accept as true all material allegations of the complaint and construe them in favor of the complaining party. See Warth v. Seldin, 422 U.S. 490, 501 (1975).
With these elements in mind, the Court examines the sufficiency of West's allegations.
1. An Injury That Is Concrete, Particularized And Actual or Imminent West claims he was unconstitutionally deprived of his liberty when he was jailed overnight for no reason other than his inability to pay traffic fines in full. This claim is neither theoretical nor generalized. Indeed, the United States Supreme Court has
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expressly held that "incarceration ... constitutes a concrete injury" for the purposes of standing. Bond v. United States, 564 U.S. 211, 217 (2011) (citing Spencer v. Kemna, 523 U.S. 1, 7 (1998)). As such, West easily satisfies the first prong of the standing test.
2. A Causal Connection Between The Injury And Hitchcock's Conduct west also alleges specific facts which, if true, establish a relationship between Hitchcock's practices and his incarceration. According to the Amended Complaint, Hitchcock has a policy in place to jail individuals, like West, who cannot afford to pay fines. This allegation is sufficient to satisfy the causation element for standing purposes. See League of United Latina Am. Citizens Dist. 19 v. City ofBoerne, 659 F.3d 421, 431 (5th Cir. 20 11) ("The causation element does not require a party to establish proximate causation, but only requires that the injury be 'fairly traceable' to the defendant.") (citing Bennett v. Spear, 520 U.S. 154, 168-69 (1997)). 3. A Likelihood That A Favorable Decision Will Redress The Injury West alleges, and Hitchcock does not dispute, that relief from the Court would likely redress his injuries. In the Fifth Circuit, plaintiffs are entitled to at least nominal damages for any constitutional deprivation-even if they are unable to prove an actual (monetary) injury. See Williams v. Kaufman Cty., 352 F.3d 994, 1014 (5th Cir. 2003) (holding any violation of constitutional rights is actionable for nominal damages). Accordingly, West's allegations satisfy the redressability prong of the standing analysis. As evident from the above discussion, a mechanical application of the Lujan standing test demonstrates that the Amended Complaint sufficiently alleges facts to
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establish standing. Moreover, to the extent Hitchcock intended to advance its waiver argument in the failure to state a chiim context, the outcome here remains the same.5
Waiver is an affirmative defense that involves "the intentional relinquishment of a right actually known, or intentional conduct inconsistent with claiming that right." Addicks Servs, Inc. v. GGP-Bridgeland, LP, 596 F.3d 286, 298 (5th Cir. 2010) (citation and internal quotation marks omitted). There is a strong presumption against the waiver of constitutional rights. See In Re Bryan, 645 F.2d 331, 333 (5th Cir. 1981) ("[P]urported waivers of fundamental constitutional guarantees are subject to the most stringent scrutiny ... ([b]ecause of the far-reaching consequences involved in a waiver of a basic right, courts indulge every reasonable presumption against waiver of a fundamental right"). Because waiver typically involves factual determinations (such as the parties' intent), it is generally inappropriate to resolve the waiver issue at the motion to dismiss stage. See First Interstate Bank ofAriz. v. Interfund Corp., 924 F.2d 588, 595 (5th Cir. 1991) ("waiver is a fact question turning on the question of intent"); Tesco Corp. v. Weatherford Intern., Inc., 632 F. Supp. 2d 654, 658 (S.D. Tex. 2009) ("Waiver is typically a fact-intensive inquiry not resolved on a motion to dismiss."). See also Waldbillig, 2010 WL 1688535, at *2 (indicating "waiver ... may be an affirmative defense" and is a "matter[] appropriate for a summary judgment or other motion"). Moreover, the Fifth Circuit has recognized that a Rule 12(b)(6) dismissal based on an
5 Hitchcock further contends that West's claims are not ripe because he failed to raise his claim of indigence before the Hitchcock Municipal Court. The Court is not impressed by that argument and explains why in the constitutional deprivation section of this Memorandum and Recommendation. See Section III.C.3.
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affirmative defense (such as waiver) may be permitted "only if an affirmative defense or other bar to relief appears on the face of the complaint." Garrett v. Commonwealth Mortg. Corp. ofAm., 938 F.2d 591, 594 (5th Cir. 1991).
There is no mention of the purported waiver anywhere in the Amended Complaint. And West vigorously disputes that he waived his right to an ability to pay hearing or his right to appointed counsel, noting that the purported waiver was signed after he had been jailed. These facts, coupled with the strong presumption against the waiver of constitutional rights, militate strongly against dismissal. The Court finds, therefore, that dismissal is inappropriate at this time. The Court will defer addressing the merits of the waiver argument until summary judgment or trial, at which time the Court will have the benefit of a fully developed record. B. THE ROOKER-FELDMAN DOCTRINE
Hitchcock argues that the Rooker-Feldman doctrine precludes West from seeking to overturn the state court judgments against him. See, e.g., Weekly v. Morrow, 204 F.3d 613, 615 (5th Cir. 2000) (the Rooker-Feldman doctrine provides that "federal district courts, as courts of original jurisdiction, lack appellate jurisdiction to review, modify, or nullify final orders of state courts"). West correctly observes that the Rooker-Feldman doctrine has no application to the instant case because he does not seek to overturn a state court judgment against him. Rather, West asks this Court to review the customs and practices he alleges deprived him of his rights. Consequently, the Rooker-Feldman doctrine does not preclude a claim, such as the one raised in this case, concerning the constitutionality of customs or practices utilized to enforce judgments. See Brown v.
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Taylor, 677 F. App'x 924, 928 (5th Cir. 2017) (The Rooker-Feldman doctrine does not prevent review of "discretionary executive action taken in enforcing state court judgments"). C. SECTION 1983 CLAIM FOR UNCONSTITUTIONAL POLICY, CUSTOM, OR
PRACTICE AGAINST HITCHCOCK
"Section 1983 provides a remedy against 'any person' who, under color of state law, deprives another of rights protected by the Constitution." Collins v. City ofHarker Heights, Tex., 503 U.S. 115, 120 (1992). To establish municipal liability under Section 1983, a plaintiff must present proof of three elements: (1) a policymaker; (2) an official policy; and (3) a violation of constitutional rights whose moving force is the policy or custom. See Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th Cir. 2001) (citing Monell v. Dep't ofSoc. Servs., 436 U.S. 658, 694 (1978)). The Court will examine all three elements to determine whether West has properly alleged a Section 1983 claim that can survive a motion to dismiss.
1. A Policymaker "A plaintiff must identify a policymaker who enacted, implemented, or enforced the policy which led to the alleged constitutional violations." Joiner v. Murphy, No. 3:15-CV-304, 2016 WL 8792315, at *3 (S.D. Tex. Aug. 12, 2016). See also Rivera v. Houston Indep. Sch. Dist., 349 F.3d 244, 247 (5th Cir. 2003) (a plaintiff must "identify a policymaker with final policymaking authority"); Piotrowski, 237 F.3d at 578 ("the unconstitutional conduct must be directly attributable to the municipality through some sort of official action or imprimatur"). Whether a particular official has policymaking
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authority sufficient to incur municipal liability under Section 1983 is a question of state law. See Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737 (1989).
In this case, West alleges t~at the Chief of Police is Hitchcock's policymaker with respect to jail operations and the Municipal Court Judge is its policymaker with respect to Municipal Court administrative policies.
There does not appear to be a dispute that the Chief of Police exercises policy making authority in Hitchcock, since he has final decision-making authority to determine how to execute capias pro fine warrants. See HITCHCOCK, TEX., CODE §33.01 (2017) (granting Chief of Police power to "promulgate all orders, rules and regulations for the government of the police force").6
As far as municipal judges are concerned, a "judge acting in his or her judicial capacity to enforce state law does not act as a municipal official or lawmaker." Johnson v. Moore, 958 F.2d 92, 94 (5th Cir. 1992). However, municipal judges are considered policymakers if they establish policies or procedures in their administrative capacity. See ODonnell v. Harris Cty., 892 F.3d 147, 155-156 (5th Cir. 2018). The Fifth Circuit recently held in ODonnell that county court. at law judges are municipal policymakers for post-arrest practices in light of their "broad authority to promulgate rules that will dictate 6 It is worth noting that the capias pro fine warrants at issue in this case directed officers to bring West "before the municipal judge," and no more. Dkt. Nos. 54-5 and 54-6. Nonetheless, West alleges Hitchcock's standard operating procedure is to incarcerate individuals, like himself, who are unable to pay fines prior to bringing them before the Municipal Court Judge and without any sort of pre-detention hearing. See De Luna v. Hidalgo Cty., 853 F. Supp. 2d 623, 641-642 (S.D. Tex. 2012) (holding that municipal liability inured when chief law enforcement offers jailed arrestees over capias pro fine warrants without an ability to pay hearing); Doe v. Angelina Cty., 733 F. Supp. 245, 257 (E.D. Tex. 1990) (same).
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post-arrest policies consistent with the provisions of state law." !d. at 155. In this case,

because Hitchcock's Municipal Court Judge has broad authority to "make and enforce all

rules of practice and procedure," he is considered a municipal policymaker for post-arrest

policies and rules governing the issuance of capias pro fine warrants. TEX. GoV'T CODE

§ 30.00023(a).

In sum, West's Amended Complaint alleges sufficient facts to satisfy the first

element-the "policymaker" prong-to establish municipal liability.

2. An Official Policy

It is well-settled that a governmental entity cannot be liable for civil rights

violations under a theory of respondeat superior or vicarious liability. See Monell, 436

U.S. at 694. A municipality can, however, be sued and subjected to monetary damages

and injunctive relief under Section 1983 if its official policy causes a person to be

deprived of a federally protected right. See id. An official policy is:

1. A policy statement, ordinance, regulation, or decision that is officially adopted and promulgated by the municipality's lawmaking officers or by an official to whom the lawmakers have delegated policy-making authority; or

2. A persistent, widespread practice of city officials or employees, which,

although not authorized by officially adopted and promulgated policy, is so

common and well-settled as to constitute a custom that fairly represents

[city] policy. Actual or constructive knowledge of such custom must be

attributable to the governing body of the [city] or to an official to whom

that body had delegated policy-making authority.

·

Webster v. City ofHouston, 735 F.2d 838, 841 (5th Cir. 1984); Bennett v. City ofSlidell,

735 F.2d 861, 862 (5th Cir. 1984). To survive a motion to dismiss, "[t]he description of a

policy or custom and its relationship to the underlying constitutional violation ... cannot

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be conclusory; it must contain specific facts." Spiller v. Texas City Police Dep 't, 130 F.3d 162, 167 (5th Cir. 1997).
West asserts that Hitchcock's challenged practice falls under the second definition-that is, that Hitchcock has a custom to jail individuals for their failure to pay fines without affording them an ability to pay hearing. More specifically, West claims that the Municipal Court Judge automatically issues capias pro fine warrants without holding or scheduling an ability to pay hearing, and the Chief of Police executes the warrants by jailing people without a hearing. West contends that Hitchcock jails dozens of people in this manner each year. According to the Amended Complaint, the Hitchcock marshal described this practice of jailing individuals without first determining the reason they failed to pay their fines as "how we do it in Galveston County." Dkt. 43 at 50.
West's allegations, if true, support the inference that Hitchcock's practices are so common and well-settled as to constitute a custom attributable to the city. Once again, the Fifth Circuit's recent ODonnell decision provides guidance. In ODonnell, the Fifth Circuit held that Harris County was liable for unconstitutional pretrial detention because its judges "acquiesced in an unwritten, countywide process for setting bail that violated both state law and the Constitution." ODonnell, 892 F.3d at 155-156. See also Jett, 491 U.S. at 737 (unlawful decisions include "acquiescence in a longstanding practice or custom which constitutes the standard operating procedure of the local governmental entity"). With this controlling authority in mind, the Court finds that West has sufficiently identified an "official policy" that would aid in establishing municipal liability against Hitchcock. Simply stated, West's contention that Hitchcock is liable for
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unconstitutional post-judgment imprisonment because its Municipal Court Judge acquiesced in an unwritten, citywide process for issuing and executing capias pro fine warrants is sufficient at the initial pleading stage to adequately state an "official policy" for purposes of a Section 1983 claim.
3. Constitutional Deprivation A plaintiff bringing a Section 1983 lawsuit must also support his claims with specific facts demonstrating a constitutional deprivation and may not simply rely on conclusory allegations. See Angel v. City ofFairfield, 793 F.2d 737, 739 (5th Cir. 1986). West asserts that Hitchcock violated his constitutional rights and deprived him of his liberty by jailing him for failure to pay a fine without first conducting an ability to pay hearing. Hitchcock argues that West was not entitled to a hearing prior to his detention and that both his arrest and short incarceration were lawful. To fully understand the constitutional issues at play in this case, it is important to briefly review the key cases addressing when, if at all, imprisonment is appropriate as punishment for a criminal defendant who fails to pay a fine. In its landmark 1971 Tate v. Short opinion, the United States Supreme Court held that imprisoning an individual solely because he is too poor to pay a fine violates the equal protection clause of the United States Constitution by discriminating based upon economic status. See 401 U.S. 395, 398 (1971) ("the Constitution prohibits the State from imposing a fine as a sentence and then automatically converting it into a jail term solely because the defendant is indigent and cannot forthwith pay the fme in full"); Pugh v. Rainwater, 572 F.2d 1053, 1056 (5th Cir. 1978) ("[I]mprisonment solely because of indigent status is invidious
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discrimination and not constitutionally permissible."); Barnett v. Hopper, 548 F.2d 550,
553 (5th Cir. 1977), vacated as moot by 439 U.S. 1041 (1978) ("[T]he Tate court stated
that once the determination is made that imprisonment is unnecessary and a fine would
suffice, imprisonment could not then be imposed for inability to pay that fine.").
Twelve years later, in Bearden v. Georgia, the Supreme Court applied the lessons
of Tate to the context of probation revocation, holding that a court cannot "revoke a
defendant's probation for failure to pay the imposed fine and restitution, absent evidence
and findings that the defendant was somehow responsible for the failure or that
alternative forms of punishment were inadequate." 461 U.S. 660, 665 (1983). The high
court explained:
[A] sentencing court must inquire into the reasons for the failure to pay. If the probationer willfully refused to pay or failed to make sufficient bona fide efforts legally to acquire the resources to pay, the court may revoke probation and sentence the defendant to imprisonment within the authorized range of its sentencing authority. If the probationer could not pay despite sufficient bona fide efforts to acquire the resources to do so, the court must consider alternate measures of punishment other than imprisonment. Only if alternate measures are not adequate to meet the State's interests in punishment and deterrence may the court imprison a probationer who has made sufficient bona fide efforts to pay. To do otherwise would deprive the probationer of his conditional freedom simply because, through no fault of his own, he cannot pay the fine. Such a deprivation would be contrary to the fundamental fairness required by the Fourteenth Amendment.
Id. at 672-73.
Not surprisingly, there have been a number of cases over the years that have
explored the contours of Tate and Bearden, some which address situations remarkably
similar to this case. Doe v. Angelina County is particularly instructive since it applied
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Bearden to capias warrants. 733 F. Supp. 245. See also United States v. Payan, 992 F.2d 1387, 1396 (5th Cir. 1993) ("Nothing in the language of the Bearden opinion prevents its application to any given enforcement mechanism."). In Doe, the plaintiff was arrested for hunting without a license, pled guilty, and was taken to the County jail "to make a bond or pay, or ... stay." Doe, 733 F. Supp. at 248-49. While plaintiff was being processed at the jail, law enforcement officials discovered that an outstanding capias warrant for his arrest existed because of plaintiffs failure to pay $268.00 in fines assessed as part of a prior conviction. See id. at 249. When plaintiff could not pay the outstanding fine, County officials decided to incarcerate him immediately for the period necessary to "lay out" the fine. !d. The "plaintiff was never taken before a judge, ... no factual determination was ever made concerning the reasons for his failure to pay [the fine], and ... no consideration was given to alternatives to incarceration." !d. at 255. Plaintiff sued Angelina County and its sheriff under Section 1983, claiming that his incarceration in the county jail for failure to pay fines violated his federal due process and equal protection rights. The District Court agreed with the plaintiff, holding that Bearden "require[s] some form of a pre-deprivation procedure for determining the reasons a party has failed to pay a fine or restitution." !d. at 253. The court observed:
Clearly, an important liberty interest is implicated when the state determines to incarcerate a person for failure to pay a fine. This fact, coupled with the likelihood of unconstitutional conduct in the absence of process, clearly requires the institution of some form of pre-incarceration legal process for determining the reasons for a party's failure to pay a fine. Absent such a procedure, a government entity that immediately converts a fine into a jail term when a party fails to pay that fine deprives the imprisoned party of liberty without due process of law. Government
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conduct of this sort IS unlawful whatever the economic status of the incarcerated person. !d. at 254. Citing the Fifth Circuit's ODonnell decision, Hitchcock argues that West was not entitled to an ability to pay hearing prior to being incarcerated for failure to pay a fine. In ODonnell, a group of individuals brought a Section 1983 action, on behalf of themselves and others similarly situated, against Harris County and various county officials alleging that the county's system for setting bail for indigent misdemeanor arrestees, which resulted in detention of the indigent arrestees solely due to their inability to pay bail, violated the Equal Protection and Due Process Clauses to the Constitution. In reviewing the District Court's issuance of a preliminary injunction, the Fifth Circuit noted that "the federal due process right entitles detainees to a [probable cause] hearing within 48 hours." ODonnell, 892 F.3d at 160. Hitchcock reads this language to mean that it has the unfettered right to detain anyone it arrests for up to 48 hours without infringing on any constitutional rights. This Court disagrees with such a reading of ODonnell. ODonnell concerned a situation in which an individual was arrested and accused of a crime. A determination had to be made as to whether bail was appropriate. In such a situation, the Fifth Circuit held that the arrestee was entitled to a probable cause hearing within 48 hours of being detained. See id. at 160. The present case is much, much different. Unlike the plaintiffs in ODonnell, West was not at the initial stages of his case. He had already completed the underlying court proceedings, a fine had been assessed by the Court, and a final judgment had been issued. When, as here, an individual fails to pay
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a fine that has been previously imposed by the sentencing court, Bearden requires some form of pre-deprivation procedure for determining whether the person is indigent and the reasons the individual has failed to pay the fine. See Bearden, 461 U.S. at 665. To allow Hitchcock to detain an individual-even just overnight-without providing an ability to pay hearing beforehand would, in effect, often result in individuals being jailed solely because they cannot afford to pay the fine. That is something the Supreme Court has expressly held is not permitted. See id. at 667-68 ("if the State determines a fine or restitution to be the appropriate and adequate penalty for the crime, it may not thereafter imprison a person solely because he lacked the resources to pay it").
Hitchcock further argues that West had an obligation to raise the indigence issue with the Hitchcock Municipal Court, and his failure to do so torpedoes any constitutional claim he might have. The Court strongly disagrees that the burden rests with West to bring the inability to pay issue to the Court's attention. "No court has held that indigent debtors are required to initiate proceedings to request a modification of their financial obligations or otherwise risk imprisonment for nonpayment." Cain v. City of New Orleans, No. 15-4479, 2016 WL 2962912, at *5 (E.D. La. May 23, 2016). To the contrary, the Supreme Court in Bearden emphatically stated that before a person is incarcerated for failing to pay a fine, a court "must inquire" into a defendant's reasons for nonpayment and, if the defendant cannot pay despite sufficient good faith efforts to do so, the court "must consider alternate measures of punishment other than imprisonment." Bearden, 461 U.S. at 672-73 (emphasis added). Not surprisingly, the Fifth Circuit has consistently interpreted Bearden as requiring courts to make an affirmative inquiry into
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the reasons for failure to pay a fine before imprisoning an individual. See United States
v. Scales, 639 F. App'x 233, 240 (5th Cir. 2016) (explaining Bearden "require[s] a court to inquire into the reasons for the [criminal defendant's] failure to pay before revoking probation" (citing Bearden, 461 US at 672)); Payan, 992 F.2d at 1396 (Under Bearden,
"the proper court must inquire into the reasons for the [criminal defendant's] failure to pay.").7 District Courts in the Fifth Circuit have followed suit. See, e.g., De Luna, 853 F. Supp. 2d at 647-648 (finding that Hidalgo County violated plaintiffs' due process and
equal protection rights by failing to conduct an affirmative indigency determination before incarcerating them for nonpayment of fines).
Even if Hitchcock is correct and West had an affirmative obligation to bring his
inability to pay to the Municipal Court's attention, the Amended Complaint clearly and unambiguously alleges that he did so. According to the Amended Complaint, West's lawyer told the arresting marshal that West "was unable to pay," and "volunteered to file papers demonstrating Mr. West's poverty." Dkt. 43 at 8. West further alleges that his
attorney followed him to the Hitchcock Municipal Court and specifically asked the court clerk how to present his claim of poverty to the judge. "The court clerk said that the
7 Hitchcock cites Sorrells v. Warner, 21 F.3d 1109, 1994 WL 171697, at *3 (5th Cir. 1994) and Howard-Barrows v. City of Haltom City, 106 F. App'x 912, 914 (5th Cir. 2004) for the proposition that "West was obligated to actually appear in the Hitchcock Court and assert his indigence." Dkt. 54 at 14 (emphasis in original). Although there is certainly language in both opinions indicating that the courts were concerned with the plaintiffs' failure to tell anyone they were indigent, neither case "holds that a state court's obligation to ascertain the reason for nonpayment depends on the debtor's initiating proceedings to raise his indigence to the court." Cain, 2016 WL 2962912, at *5 (distinguishing Sorrells). Notably, neither case even mentions Bearden and more recent Fifth Circuit authority clearly establishes that the burden is on the Court to make such an inquiry. See Scales, 639 F. App'x at 240.
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judges had gone out of town and had not left any way to get in touch with them." ld. at 9. Given these allegations, it is hard to argue with a straight face that West failed to raise the. indigence issue with the Hitchcock Municipal Court.8
By not providing an ability to pay hearing prior to his incarceration, West argues
that Hitchcock deprived him of his liberty solely because he could not afford to pay the fine. Based on these allegations, West has alleged facts in support of his constitutional deprivation claim sufficient to survive dismissal on 12(b)(6) grounds. At this stage of the case, however, the Court need not make a final, binding determination on whether West's constitutional rights were violated. It is more appropriate for the parties to conduct discovery and then present a detailed factual record to the Court for a determination-at summary judgment or at trial-as to the constitutionality of Hitchcock's all~ged policy of not providing an ability to pay hearing to indigent defendants before imprisoning them for failure to pay a fine. See ODonnell v. Harris Cty., 227 F. Supp. 3d 706, 731 (S.D. Tex. 2016), aff'd in part, rev'd in part, 892 F.3d 147 (denying motion to dismiss equal protection claim because "[w]ithout a developed factual record ... a motion to dismiss is not the right way to resolve these disputes").
8 Hitchcock notes that West never complained about his inability to pay the fine when it was originally imposed in 2014. Hitchcock also questions West's assertion that he could not afford the fine, noting that West paid for an appearance bond and made two partial payments of $1 00 each back in the summer of 2014. These arguments are unpersuasive because a person's ability to pay is not a permanent state: an individual can experience a change in financial circumstances that causes him to be unable to meet financial obligations that he previously could satisfy. See Cain, 2016 WL 2962912, at *7. That being said, the Court need not decide whether West "willfully refuse[d] to pay the fine or restitution when he ha[d] the means to pay." Bearden, 461 U.S. at668. It is the Municipal Court Judge's responsibility to provide a forum in which West's reasons for failing to pay are considered before committing hint to jail.
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Last, but not least, West asserts that Hitchcock has violated his right to counsel under the Sixth and Fourteenth Amendments. The Court has scoured the Amended Complaint and the basis for the right to counsel claim is, to say the least, far from clear. There are no substantive facts alleged demonstrating that Hitchcock had any policy in place to deny arrestees' access to counsel. Moreover, as Hitchcock notes in a recent submission, it is hard to fathom how West was denied access to counsel when his allegations plainly show that "he was represented by counsel before, during and after his arrest." Dkt. 61 at 3 (emphasis omitted).. Nonetheless, the Court will not dismiss West's right to counsel claim at this juncture. With respect to the right to counsel claim, Hitchcock did not raise this precise argument in its Motion to Dismiss, and the Court is reluctant to invite the Fifth Circuit to reverse a sua sponte dismissal. See Marak v. Dallas Fort Worth Int'l Airport Bd., 124 F. App'x 272, 274 (5th Cir. 2005) (holding that the district court's sua sponte dismissal of an ADEA claim was unfair and constituted reversible error because the defendant did not raise the plaintiffs ADEA claim in its motion to dismiss). Instead of dismissing this claim now, the Court believes the better avenue is to allow Hitchcock to raise the right to counsel issue on summary judgment, and let the Court address the merits of the argument at that time.
IV. SANTA FE'S MOTION TO DISMISS A. STANDING
Santa Fe first challenges Fuller's standing to assert· a claim, argumg that he "executed a written waiver by which he expressly waived his rights to be released from
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custody, and affirmatively requested to remain in custody for a sufficient length of time to discharge the fines he had been assessed." Dkt. 23 at 2-3 (emphasis omitted).
In short, Santa Fe attempts to raise the standing hurdle higher than required. To establish standing, an individual must satisfy the well-known Lujan requirements as set forth above. See Lujan, 504 U.S. at 560-61. As is the case with West, Fuller easily satisfies the Lujan standing test. Fuller alleges that· he has suffered an "injury in fact" (incarceration), that his injuries are traceable, in part, to Santa Fe's actions, and that relief from the Court will likely redress his injuries through nominal or actual damages.
The question of standing is fundamentally about the propriety of an individual to litigate a claim irrespective of its legal merits. See Warth, 422 U.S. at 498. Santa Fe's real complaint is not that Fuller has failed to demonstrate Article III standing, but rather that the affirmative defense of waiver bars his claims. As explained above, that is not an issue that should be decided based solely on arguments raised at the beginning of a case in a motion to dismiss, especially when Fuller vociferously claims that any signed waiver was not a "knowing, intelligent act[] done with sufficient awareness of the relevant circumstances and likely consequences"-as required for a waiver of a constitutional right. United States v. Newell, 315 F.3d 510, 519 (5th Cir. 2002) (citing Brady v. United States, 397 U.S. 742, 748 (1970)). Moreover, there is no mention of the purported waiver anywhere in the Amended Complaint. See Garrett, 938 F.2d 591, at 594 (explaining dismissal based on defense such as waiver is permitted only if apparent on the face of the complaint"). Therefore, dismissal is inappropriate at this time. For the same reasons
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discussed in Section III.A. above, the Court will defer ruling on the waiver issue until

summary judgment or trial.

B. SECTION 1983 CLAIM FOR UNCONSTITUTIONAL POLICY, CUSTOM, OR
PRACTICE AGAINST HITCHCOCK

Fuller alleges that Santa Fe is liable for two official policies: (1) the Debtors'

Prison Policy, by which the Chief of Police jails people without providing the arrestees

an attorney or affording them a hearing for failure to pay fines; and (2) the Hungry Man

Policy, under which the Chief of Police deprives people in his custody of adequate food.

As the Court has already observed, "municipal liability under section 1983

.

.

requires proof of three elements: a policymaker; an official policy; and a violation of

constitutionai rights whose moving force is the policy or custom." Piotrowski, 237 F.3d

at 578 (citation and internal quotation marks omitted). To determine whether Fuller has

alleged a Section 1983 claim that can survive a Rule 12(b)(6) motion to dismiss, it is

necessary to examine each element of such a claim.

1. A Policymaker

The Amended Complaint alleges that the Chief of Police is Santa Fe's

policymaker with respect to jail operations and City Council is its policymaker with

respect to the rules of practice and procedure in the Municipal Court. This assertion is

unsurprising since "[c]ourts have consistently found that chiefs of police are official law

enforcement policymakers for the purposes of municipal liability under § 1983."

Kincheloe v. Caudle, No. A-09-CV-10 LY, 2009 WL 3381047, at *18 (W.D. Tex. Oct.

16, 2009) (citing Fraire v. City ofArlington, 957 F.2d 1268, 1279 n.45 (5th Cir. 1992)

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(finding that the police chief is the principal policymaker for the Arlington Police Department)). Santa Fe contends that Fuller is simply trying to blame the Chief of Police and City Council for actions for which the Municipal Court Judge was solely responsible. This argument ignores that, for purposes of a motion to dismiss, the Court must accept the Amended Complaint's factual allegations as true and must "draw all reasonable inferences in [Fuller's] favor." Lormand v. US Unwired, Inc., 565 F.3d 228, 232 (5th Cir. 2009). Assuming the allegations in the Amended Complaint to be true, Fuller has stated a legal basis to satisfy the "policymaker" prong required to pursue a Section 1983 claim.
2. An Official Policy To succeed on a claim under Section 1983, Fuller must also demonstrate that Santa Fe had an official "policy that acted as the moving force behind a constitutional violation." Forgan v. Howard Cty., Tex., 494 F.3d 518, 522 (5th Cir. ~007) (citing Monell, 436 U.S. at 690-91). As explained above, an "official policy" can be evidenced through duly promulgated policy statements, ordinances or regulations, or by a custom that is such a persistent and widespread practice that, although not officially promulgated, it fairly represents a municipal policy. See Webster v. City ofHouston, 735 F.2d 838, 841 (5th Cir. 1984). "It follows that each and any policy which allegedly caused constitutional violations must be specifically identified by a plaintiff, and it must be determined whether each one is facially constitutional or unconstitutional." Piotrowski, 237 F.3d at 579. A municipality's policy of inaction despite awareness-constructive or actual-that its policy will cause a constitutional violation may be "'the functional
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equivalent of a decision by the city itself to violate the Constitution."' Connick v.
Thompson, 563 U.S. 51, 61-2 (2011) (citing City of Canton, Ohio v. Harris, 489 U.S.
378, 395 (1989)).
The Amended Complaint contains numerous allegations supporting the inference
that the Debtors' Prison Policy and Hungry Man Policy are "so persistent and widespread
as to practically have the force oflaw." Connick, 563 U.S. at 60 (citing Monell, 436 U.S.
at 691). For example, when it comes to the so-called Debtors' Prison Policy, Fuller
alleges that the Santa Fe Police Department regularly jails people for failure to pay fines
without providing them with an ability to pay hearing or counsel:
Santa Fe law enforcement officers transfer anyone arrested under a capias pro fine warrant to the custody of the Santa Fe Police Chief and book her into jail. The Police Chief refuses to release anyone arrested under a capias pro fine warrant unless either she pays her fines in full, or the Department holds her in jail long enough to satisfy her fines with ')ail credit." This practice of enforcing fines turns the Santa Fe jail into a modem-day debtors' prison, and it is unconstitutional. ... The Santa Fe Police Chief prohibits people in his custody from speaking to a judge to explain why they failed to pay and ask for an alternative to jail. . . . [W]hen the Municipal Judge goes on vacation, Police Department staff do not make any contingency plans for presenting people who are arrested under a capias pro fine warrant to a judge. This is because the Police Department staff do not present such people to a judge in the ordinary course of business.
Dkt. 43 at 26, 32. Furthermore, and perhaps most shocking, Fuller alleges that the Santa
Fe Police Department has written procedures posted in the jail booking area requiring jail
time for arrestees who cannot pay, without any corresponding procedure for producing
the arrestee for a hearing or advising him of his right to counsel. Fuller argues that these
allegations, taken together, satisfy his burden to plead an "official policy."
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Fuller has also pled ample factual allegations permitting the Court to infer that the Hungry Man Policy is a municipal custom. He claims that the standard practice at the Santa Fe jail is to feed prisoners one Pop Tart for breakfast, one Pop Tart for lunch, and a frozen meal for dinner. Fuller also alleges that although the Chief of Police is aware that inmates have been repeatedly deprived of food, he has taken no action to ensure that · inmates are properly fed during their incarceration. See Oporto v. City of El Paso, No. EP-10-CV-110-KC, 2010 WL 3503457, at *3 (W.D. Tex. Sept. 2, 2010) ("While it is unnecessary to show formal, documentary approval of a governmental custom or policy in order to state a claim under Monell, it is necessary to allege more than a single incident of illegality ... in order to state a claim for relief'). In short, Fuller alleges that Santa Fe's policymakers knew of customary unconstitutional practices and exhibited deliberate indifference to the risk of continuing constitutional violations. Taking these allegations as true, as is required at this preliminary stage in the litigation, Fuller has sufficiently alleged a custom that fairly represents municipal policy.
3. Constitutional Deprivation The third element of a Section 1983 claim requires that Fuller adequately plead that the municipal policy or custom was the "moving force" of the constitutional deprivation, which requires a "high threshold of proof." Piotrowski, 237 F.3d at 580 (citing Monell, 436 U.S. at 694). The "plaintiff must show that the municipal action was taken with the requisite degree of culpability and must demonstrate a direct causal link between the municipal action and the deprivation of federal rights." Bd. ofCty. Comm 'rs of Bryan Cty., Okl. v. Brown, 520 U.S. 397, 404 (1997). "Congress did not intend
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municipalities to be held liable [under Section 1983] unless action pursuant to official municipal policy of some nature caused a constitutional tort." Monell, 436 U.S. at 691. As a result, even though this case is in its early stages, Fuller must explain how Santa Fe deprived him of his constitutional rights in order to survive a motion to dismiss.
a. Debtors' Prison Policy As far as Fuller's claims that Santa Fe failed to provide him with any sort of hearing prior to being jailed for not paying his fines, the Court has discussed the constitutionality of such a policy in great detail. See Section III.C.3. There is no need to repeat that analysis again. In a nutshell, it is "fundamentally unfair" to jail someone solely because they cannot afford to pay a fine. Bearden, 461 U.S. at 672-73. Fuller alleges that he did not have the funds available to pay the fines imposed by the Santa Fe Municipal Court. As a result, Fuller claims he was jailed for three days against his will without being given an ability to pay hearing. These allegations, set forth with great specification in the Amended Complaint, are sufficient to pass muster at the motion to dismiss stage. Presently, the Court need not issue a final, binding liability determination. The parties will be expected to present a complete factual record, argument, and proper authorities at the summary judgment stage or at trial, and the Court can properly determine at that time if Fuller has been deprived of his constitutional rights.9
9 Like West, Fuller also alleges that his right to counsel rights under the Sixth and Fourteenth Amendments have been violated. The Court adopts the same reasoning referenced above (Section III.C.2) for denying the motion to dismiss on the right to counsel grounds, and defers a dispositive ruling on the issue until summary judgment or trial.
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b. Hungry Man Policy Fuller also complains that he was denied adequate food during the three days he was incarcerated in the Santa Fe jail. He claims Santa Fe maintained a policy of feeding prisoners a daily ration of one Pop Tart for breakfast, one Pop Tart for lunch, and a frozen meal-such as a Hungry Man frozen dinner-at night. Fuller alleges that authorities forgot to feed him dinner on two nights, so he was provided dinner on only one night of his three-day stay at the Santa Fe jail. Santa Fe does not deny Fuller's description of its prison diet. Rather, Santa Fe asserts that the diet meets constitutional requirements to satisfY an Eighth Amendment inquiry because millions of people elect to eat Pop Tarts and frozen dinners every day. Santa Fe further asserts that Fuller fails to state a claim for which relief may be granted because the courts require a physical injury to demonstrate a remediable harm. The Eighth Amendment prohibits the infliction of "cruel and unusual punishments." U.S. CONST. amend. VIII. This prohibition, made applicable to the States through the Fourteenth Amendment, '"does not mandate comfortable prisons,' but neither does it permit inhumane ones." Ball v. LeBlanc, 792 F.3d 584, 592 (5th Cir. 2015) (quoting Farmer v. Brennan, 511 U.S. 825, 832 (1994)). The deprivation of food constitutes cruel and unusual punishment only if it denies a prisoner the "minimal civilized measure of life's necessities." Wilson v. Seiter, 501 U.S. 294, 298 (1991) (citation omitted). See also Gates v. Cook,. 376 F.3d 323, 332-33 (5th Cir. 2004) ("Prison officials must provide humane conditions of confinement; they must ensure that inmates receive adequate food ...." (citing Farmer, 511 U.S. at 832)). It is settled in the
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Fifth Circuit that the provision of at least two nutritionally adequate meals daily satisfies the Eighth Amendment's constitutional requirement of adequate food for prisoners. See Berry v. Brady, 192 F.3d 504, 507 (5th Cir. 1999); Green v. Ferrell, 801 F.2d 765, 77071 (5th Cir. 1986). The meals must be well balanced and contain nutritional value to preserve health. See Smith v. Sullivan, 553 F.2d 373, 379 (5th Cir. 1977). The fact that an inmate misses an occasional meal does not necessarily implicate the inmate's constitutional rights. See Talib v. Gilley, 138 F.3d 211, 214 n.3 (5th Cir. 1998) ("Missing a mere one out of every nine meals is hardly more. than that missed by many working citizens over the same period.").
To·plead an Eighth Amendment violation based on the conditions of an inmate's confinement, a plaintiff must allege (1) conditions that pose a substantial risk of serious harm; and (2) that prison officials were deliberately indifferent to the inmate's health or safety. See Farmer, 511 U.S. at 834; Hinojosa v. Livingston, 807 F.3d 657, 665 (5th Cir. 20 15). The Court will take a closer look at the two required elements of an Eighth Amendment claim.
i. Conditions that pose a substantial risk of serious harm To support his claim that the conditions in the Santa Fe jail pose a substantial risk of serious harm, Fuller argues that the prisoner diet in the Santa Fe jail consists of just 720 calories and 18 grams of protein, a diet that "is always calorically and nutritionally insufficient for an adult, even a sedentary adult." Dkt. 43 at 29. According to the Amended Complaint, these meals provide less than half of the calories any sedentary adult requires, and less than one third the federal recommendations of 2,400 calories and
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56 grams of protein for a sedentary man of Fuller's age (28 years old at the time of his confinement). 10 On two occasions, Fuller claims he was denied even this meager provision when prison officials forgot to feed him dinner, dropping his caloric intake on those days even further. 11 Fuller further contends that a 720 calorie diet is not even enough to satisfy daily nutritional requirements for a one-year old child. These factual allegations support the inference that the Santa Fe jail diet falls short of the constitutional baseline articulated by the Fifth Circuit of two nutritionally adequate meals per day. See Gonzales v. Corrs. Corp. of Am., 344 F. App'x 984, 985 (5th Cir. 2009) (finding nutritional deficiency of bread and cheese diet violated the Eighth Amendment).
ii. Deliberate indifference to the inmate's health or safety "To establish deliberate indifference . . . , the prisoner must show that the defendants (1) were aware of facts from which an inference of an excessive risk to the prisoner's health or safety could be drawn and (2) that they actually drew an inference that such potential for harm existed." Bradley v. Puckett, 157 F.3d 1022, 1025 (5th Cir. 1998). This requires more than an allegation of mere negligence, but less than an allegation of purpose or knowledge. See Farmer, 511 U.S. at 835-836. Fuller claims that his calorie-and nutrient-deficient diet posed an objective risk and that Santa Fe's
10 See U.S. DEP'T OF HEALTH AND HUMAN SERVS., 2015-2020 Dietary Guidelines for Americans, 8th Edition (20 15), https://health.gov/dietaryguidelines/2015/guidelines/appendix-7/. 11 Santa Fe argues without consequence that, on one of these occasions, Fuller eventually received his frozen dinner. However, even including the frozen meal's calories, th~ Santa Fe diet still falls below the Fifth Circuit's baseline of two nutritionally adequate meals per day. Furthermore, Fuller argues that these missed meals were not isolated incidents, rather they were a direct result of Santa Fe's failure develop a system to ensure prisoners are adequately and timely fed.
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City Council, City Manager, and Chief of Police had either actual or constructive knowledge about the policy. If true, these allegations support the inference that city officials acted with the requisite mental culpability to satisfy this element of Fuller's claim.
Finally, Santa Fe argues that, even if the Court finds its prison diet does not pass constitutional muster, Fuller's brief confinement did not result in any physical injury that would constitute a remediable harm sufficient to state a claim for relief. The Court is not persuaded that physical injury is a required element of an Eighth Amendment claim based on prison conditions. As the Fifth Circuit has noted: "In many jail condition cases, the conditions themselves constitute the harm. This is true, for example, where inadequate food ... constitute[s] miserable conditions." Scott v. Moore, 114 F.3d 51, 53 (5th Cir. 1997). But, even if physical injury is a required element, Fuller's allegation that "[t]he Police Chief is not giving people in his custody enough food to stay healthy" constitutes sufficient facts to survive a motion to dismiss. Dkt. 43 at 47.
To be clear, the Court is not currently opining on the ultimate merits of Fuller's Eighth Amendment claim. The severity of Fuller's actual injuries and the degree of prison officials' mental culpability are both questions for another day. At this stage of the proceedings, the Court simply finds Fuller's factual assertions support the inference that he was deprived of the minimum diet held constitutionally acceptable in the Fifth Circuit, and that he has pled sufficient facts under the Eighth Amendment to sustain his claim for relief.
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V. CONCLUSION AND RECOMMENDATION

For the reasons stated above, the Court RECOMMENDS that the Defendant City

of Hitchcock's Opposed Motion to Dismiss (Dkt. 54) and Defendants' Opposed Motion

to Dismiss Plaintiffs' Claims (Dkt. 16) be DENIED.

The Clerk shall provide copies of this Memorandum and Recommendation to the

respective parties who have fourteen days from the receipt thereof to file written

objections pursuant to Federal Rule of Civil Procedure 72(b) and General Order 2002-13.

Failure to file written objections within the time period mentioned shall bar an aggrieved

party from attacking the factual findings and legal conclusions on appeal.

j£_, SIGNED at Galveston, Texas, on August

2018.

ANDREW M. EDISON UNITED STATES MAGISTRATE JUDGE

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 Case 3:18-cv-00283 Document 78 Filed on 09/19/18 in TXSD Page 1 of 2
United States District Court Southern District of Texas
ENTERED
September 20, 2018
David J. Bradley, Clerk

Case 3:18-cv-00283 Document 78 Filed on 09/19/18 in TXSD Page 2 of 2

 
 Case 3:18-cv-00283 Document 120 Filed on 08/14/19 in TXSD
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION

Page 1 of 1
United States District Court Southern District of Texas
ENTERED
August 15, 2019
David J. Bradley, Clerk

BRADY FULLER,
Plaintiff, VS.
CITY OF SANTA FE, TEXAS,
Defendant.

§ § § § CIVIL ACTION NO. 3:18-CV-283 § § § §

CONDITIONAL DISMISSAL ORDER

The Court has been advised that a settlement has been reached between the parties.

Accordingly, it is hereby

ORDERED that this case is DISMISSED WITHOUT PREJUDICE to

reinstatement of Plaintiff’s claims, unless any party represents in writing filed with the

Court on or before September 13, 2019, that the settlement could not be completely

documented.

All pending motions are hereby DENIED, as moot.

SIGNED at Galveston, Texas, this 15th day of August, 2019.

___________________________________ George C. Hanks Jr. United States District Judge

1 / 1

 
 Case 3:18-cv-00283 Document 43 Filed on 10/23/17 in TXSD Page 1 of 55

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION

GEORGE WEST and BRADY FULLER,
Plaintiffs, v.
CITY OF SANTA FE, TEXAS; and CITY OF HITCHCOCK, TEXAS,
Defendants.

Civil Action No. 16-cv-0309 Jury Trial Demanded

FIRST AMENDED COMPLAINT 1. The City of Santa Fe is running a modern-day debtors’ prison, prioritizing revenue over the fair administration of justice. Those with means pay a one-time fine for common offenses like traffic tickets. But those who cannot afford to pay up front—the man with a disability on a fixed income, the blue-collar worker supporting his family—are trapped in a maze of escalating fines and fees that can take years to pay off. Anyone who falls behind faces imprisonment in unconscionable conditions without the opportunity to see a judge or explain the circumstances that prevent payment. 2. Santa Fe officials have colluded on this unconstitutional two-tiered system of justice. Santa Fe and the Municipal Judge agreed to raise the cost of traffic and other misdemeanor fines to boost revenue. Santa Fe then uses multiple constitutional violations

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as leverage to extract payments from local residents, tacking on further fines and fees at every opportunity. Although traffic violations are, by law, not jailable offenses, police officers regularly jail people who fail to pay their fines without giving them access to a lawyer or the chance to mount a legal defense. Officers do not afford them the opportunity to see a judge for the constitutionally mandated hearing on their ability to pay. The Police Chief intentionally makes jail intolerable, giving the people he detains too little food to eat and depriving them of medical care.
3. Plaintiff Brady Fuller was caught in this maze— unable to afford to pay his outstanding fines to the City of Santa Fe, and unable to seek relief from the Municipal Judge. The City of Santa Fe arrested him, jailed him without a hearing, and deprived him of adequate nutrition for three days, all because he could not afford to pay his fine.
4. Plaintiff George West was also caught in this maze. Santa Fe offered Mr. West his constitutionally mandated ability to pay hearing only after he filed this lawsuit to vindicate his rights. Contrary to assurances that were made to Mr. West, when he appeared in court to assert his inability to pay, Santa Fe officials retaliated against him by affirmatively searching for warrants that other jurisdictions had issued due to his poverty, contacting those jurisdictions to inform them when he would be present in court, and detaining him until another jurisdiction could take custody of him. City officials and their representatives deceived Mr. West into believing that he was required to appear in person, despite the fact that he was represented by counsel, and that he would be able to assert his constitutional rights in court without fear of other repercussions. One of the jurisdictions Santa Fe officials called was the City of Hitchcock.
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5. As a result of this retaliation, the City of Hitchcock arrested and jailed Mr. West using the same practices as Santa Fe. The Hitchcock Marshal arrested Mr. West at Santa Fe Municipal Court, responding to his pleas of poverty by saying that he would take Mr. West’s body or his money, one or the other. The Marshal said that jailing people for inability to pay is “how we do it in Galveston County.” Mr. West did not have $800 to pay the Hitchcock Marshal for his freedom, so the City of Hitchcock jailed him, without an ability to pay hearing and in violation of his right to counsel. Municipal officials in Santa Fe and Hitchcock affirmed that jailing people for their inability to pay is “how we do it in Galveston County.” The Constitution, however, prohibits that practice. Plaintiffs bring this action to seek redress for Defendants’ violations of their long-established constitutional rights.
JURISDICTION AND VENUE 6. This is a civil rights action arising under 42 U.S.C. § 1983 (civil action for deprivation of rights) and 28 U.S.C. §§ 2201–2202 (declaratory judgments). This Court has jurisdiction under 28 U.S.C. § 1331 (federal question jurisdiction) and § 1343 (civil rights jurisdiction). 7. Venue in this district is proper under 28 U.S.C. § 1391(b)(1), because the City of Santa Fe resides in this district, and under § 1391(b)(2), because a substantial part of the events giving rise to the Plaintiffs’ claims occurred in this district.
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PARTIES I. The City of Santa Fe Retaliated Against George West, Resulting in an
Unconstitutional Jail Term Imposed by the City of Hitchcock 8. Plaintiff George West is a fifty-eight-year-old resident of La Marque, Texas. He used to own a trailer house in Hitchcock, but he was evicted from his lot because he didn’t have enough money to pay his rent. He receives mail at his aunt’s home in La Marque. Otherwise, he stores his belongings in his pickup truck and he does not have a fixed residence. 9. Mr. West has lived near or below the federal poverty line since he was released from prison for drug possession more than ten years ago. Mr. West’s financial situation has only gotten worse in recent years. He has found honest work in scrap metal salvage and as a day laborer since he was released from prison. But serious repetitive motion injuries from this work, as well as worsening rheumatoid arthritis, keep Mr. West from working like he used to. Mr. West’s arthritis has gotten so bad that he was approved for a social security disability benefit. 10. When Mr. West was released from prison, he could not obtain a valid Texas driver’s license, because he owed surcharges for old traffic tickets to the Department of Public Safety. Yet he needed to drive to make money to pay his tickets. Between his surcharges, child support obligations, new tickets for driving without a valid license, and basic living expenses, Mr. West has not been able to work his way out of debt since he was released from prison.
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11. These were the financial circumstances Mr. West faced when a Santa Fe police officer pulled him over many years ago.
12. Mr. West is Black. He generally goes out of his way to avoid driving through Santa Fe. But in 2005, Mr. West drove through Santa Fe after leaving a scrapyard. He stopped at a stoplight with a Santa Fe police officer facing in the opposite direction, in the lane of oncoming traffic. When the light turned green, the officer immediately made a U-turn, got behind Mr. West, and turned on his lights.
13. The officer claimed to be stopping Mr. West for broken brake lights. 14. The officer wrote Mr. West tickets for four offenses: expired registration, open container, no driver’s license, and no insurance. The open container was a beer can that a friend had brought into in the car; Mr. West had not been drinking that day. Mr. West had committed the remaining offenses due to his poverty. 15. Because of Mr. West’s poverty offenses, the total fines for this single police encounter came up to over $600. As opposed to other people, who could write a check to resolve their cases, Mr. West could not afford to pay these fines. Court clerks put Mr. West on the track to jail when they issued a warrant for his arrest. 16. Once a warrant issued, the Municipal Court refused to allow Mr. West to clear his warrants or see a judge unless he paid a cash bond for the total cost of his fines—now over $1100—which he could not afford to do. 17. Mr. West tried to find a way to appear in court and get back on track to a valid driver’s license without paying the full cash bond. He paid $65 for an attorney to help him appear in court and clear the warrants for all of his tickets.
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18. When Mr. West appeared in Santa Fe Municipal Court and pled no contest, the Municipal Judge sentenced him to an $1137 fine and ordered him to pay it within sixty days. The judge did not ask any questions about Mr. West’s ability to pay or discuss alternatives to prompt payment in full. Mr. West had absolutely no prospect of coming up with that amount of money, but the Municipal Court ordered him to pay anyway.
19. After Mr. West failed to pay $1137 within sixty days, court clerks issued capias pro fine warrants for his arrest. After the clerks issued capias pro fine warrants, the fees assessed against Mr. West more than doubled his initial fine. He now owes nearly $1500 to the City of Santa Fe.
20. Until Mr. West filed this lawsuit, the Municipal Court refused to allow him to clear his warrants unless he paid the total cost of his fines, nearly $1500, which he could not afford to do. The court would not allow Mr. West to set a court date to explain his inability to pay and ask for an alternative to jail.
21. After Mr. West filed this lawsuit, Santa Fe offered him an ability to pay hearing in order to moot his claims in federal court.
22. Mr. West’s criminal defense counsel contacted the Municipal Court to ask whether Santa Fe officials take affirmative steps to facilitate arrests for failure to pay tickets in other jurisdictions. A Municipal Court official told Mr. West’s counsel that the court was not interested in warrants from other jurisdictions, and would not be contacting other jurisdictions.
23. Mr. West’s criminal defense counsel filed papers in advance of Mr. West’s hearing demonstrating that Mr. West was unable to pay his outstanding fines, and giving
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notice that Mr. West would appear through counsel. An attorney representing the Municipal Judge in this action indicated that the judge would not be able to assess Mr. West’s ability to pay without his personal appearance. He suggested that Mr. West must provide documentation of a disabling health condition before the court would consider excusing an in-person appearance. Mr. West received this request for evidence approximately 24 hours before his hearing. Mr. West understood that he would have to appear in person in order to vindicate his right to an ability to pay hearing.
24. Mr. West elected to appear in person rather than risk losing his opportunity to assert his poverty in Santa Fe Municipal Court.
25. At Mr. West’s ability to pay hearing, the Municipal Judge made an out-ofthe-blue comment about Mr. West’s open warrants from other jurisdictions. Neither the City Attorney nor Mr. West’s counsel had mentioned these warrants to the Municipal Judge. Mr. West’s pro bono defense counsel informed the court that she would help Mr. West address his other warrants.
26. The Municipal Judge dismissed Mr. West’s tickets because he realized that the judgments against Mr. West had never been signed. After the hearing, Mr. West and his counsel waited in the courtroom for copies of the court’s order. The attorney representing the Municipal Judge in this action, who had previously corresponded with Mr. West’s counsel about an in-person appearance, hurried out of the courtroom.
27. The City Marshal entered the courtroom and announced that he had called two jurisdictions, Hitchcock and Texas City, where Mr. West had open warrants for
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inability to pay his tickets. When Mr. West’s counsel confronted the marshal about assurances she had received to the contrary, the marshal expressed no concern.
28. When marshals from the other jurisdictions arrived, they already had a plan with the Santa Fe Marshal that Hitchcock would be arresting Mr. West first.
29. Mr. West’s counsel tried to negotiate with the marshals for about thirty minutes to no avail. The marshals insisted on jailing Mr. West unless someone paid them for his outstanding fines and fees, which totaled $2300. The Hitchcock Marshal said that he would be taking Mr. West’s body or his money, one or the other. Mr. West was facing 23 days in jail without an ability to pay hearing from either jurisdiction.
30. Mr. West’s counsel reiterated that Mr. West was unable to pay, explained that she was a pro bono criminal defense lawyer for impoverished clients, and volunteered to file papers demonstrating Mr. West’s poverty in any court where he had open warrants. She specified that the marshals appeared to be retaliating against Mr. West.
31. One of the marshals told Mr. West’s counsel that it was obvious that she was not from “around here.” He specified that jailing people for inability to pay is “how we do it in Galveston County.” All three marshals, including the Santa Fe Marshal, had the same understanding. None of the marshals was surprised or concerned that Mr. West would be jailed, despite his poverty, without any hearing whatsoever.
32. Consistent with this understanding, there was no judge present—or even available by cell phone—when the Hitchcock Marshal booked Mr. West into the Hitchcock Jail.
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33. Mr. West’s criminal defense counsel followed him to Hitchcock Municipal Court and asked the court clerk how to present Mr. West’s claim of poverty to the judge. The court clerk said that the judges had gone out of town and had not left any way to get in touch with them. The judges had not made any plan for conducting ability to pay hearings in their absence, because it is not their ordinary practice to hold ability to pay hearings before committing someone to jail on a capias pro fine warrant.
34. Mr. West spent the night in jail without an ability to pay hearing, and despite the fact that he had not been represented by counsel in his underlying case. Mr. West never received an ability to pay hearing. III. The City of Santa Fe Unconstitutionally Jailed Brady Fuller
35. Brady Fuller is a resident of Santa Fe, Texas. He lives with and supports his wife and three daughters.
36. For at least the last three years, Mr. Fuller and his family have lived near or below the federal poverty line. The older two daughters receive free lunches at school, and the family has been on food stamps and Medicaid. The mother of Mr. Fuller’s oldest daughter owes him many thousands of dollars in child support arrears.
37. Mr. Fuller has struggled with addiction to pain medication in the past. His addiction began when a doctor prescribed pain medication for Mr. Fuller’s injuries from an accident, including broken bones. Mr. Fuller has been clean for ten months, and he attends Narcotics Anonymous meetings every other day.
38. In 2015, a Santa Fe police officer stopped Mr. Fuller while he was driving through a school zone. Mr. Fuller had not been speeding, and in fact, he had been careful
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to reduce his speed to the school zone limit. The officer nonetheless pulled Mr. Fuller over. The officer noticed that Mr. Fuller had an expired inspection sticker, and wrote him a ticket for that.
39. As opposed to other people, who could write a check to resolve their cases, Mr. Fuller could not afford to pay his fine outright.
40. Mr. Fuller checked into a one-month inpatient rehabilitation program after he received his ticket. He was an inpatient during the court date for his traffic ticket.
41. When Mr. Fuller checked out of the rehabilitation program, a warrant had not yet issued for his arrest. He asked the City Marshal about resetting his court date. The City Marshal told Mr. Fuller a time when he would be able to come to court and speak with the judge, and Mr. Fuller came to court.
42. The Municipal Judge told Mr. Fuller that he had been charged with failure to appear, and Mr. Fuller was not allowed to contest the ticket. The judge required Mr. Fuller to pay the full amount of the failure to appear ticket in order to get on a payment plan.
43. Mr. Fuller made the payment, though he had been planning on using that money to pay other bills, and the clerk handed him the papers to sign for his payment plan. Mr. Fuller told the clerk that he could not afford the monthly payments listed on the paper. The clerk told Mr. Fuller that if he missed a payment, a warrant would issue for his arrest. Mr. Fuller said he would do his best to make the payments, but he wasn’t hopeful. The clerk told Mr. Fuller that if he could not make his payments, once a warrant issued, Santa Fe would jail him for failure to pay.
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44. Neither the Municipal Judge nor the clerk advised Mr. Fuller that, by signing the papers for a payment plan, he was pleading to criminal charges. Mr. Fuller felt that he had no alternative to signing the papers. He circled “no contest,” but no one explained what that meant. The judge sentenced Mr. Fuller to a fine.
45. Neither the Municipal Judge nor the clerk asked Mr. Fuller any questions about his ability to pay.
46. Neither the Municipal Judge nor the clerk advised Mr. Fuller of his right to counsel. Mr. Fuller was not represented by counsel, nor did he waive his right to counsel.
47. Mr. Fuller could not afford his first payment. The City Marshal came to Mr. Fuller’s house, and told Mrs. Fuller that her husband would need to pay the fine, or else Santa Fe would jail him for failure to pay.
48. Three days later, the City Marshal came back to Mr. Fuller’s house as he was leaving for work. The marshal asked Mr. Fuller about his work schedule and other obligations, so the marshal would know where to track Mr. Fuller down if he didn’t make a payment. The marshal warned Mr. Fuller that he would lose his TWIC card, a $180 identification card required for his work at the shipyard, if the marshal arrested him at work.
49. Mr. Fuller told the marshal that he could not afford to make a payment. The marshal said that Mr. Fuller’s only option was to pay the fine; otherwise, Santa Fe would jail him for failure to pay. Realizing that jail was inevitable, Mr. Fuller offered to surrender himself at the jail that weekend.
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50. Mr. Fuller surrendered himself at the jail, as promised, that weekend. But the Municipal Court had made an error in court records. Mr. Fuller’s file looked like a failure to appear case, and did not reflect the fact that Mr. Fuller had already appeared to answer the failure to appear charges and signed papers for a payment plan. The Police Department treated Mr. Fuller’s case like a failure to appear case, and brought him before the Municipal Judge the next morning.
51. The Municipal Judge fixed the recordkeeping mistake by ordering Mr. Fuller to sign a new set of papers for a payment plan and released him from jail. When Mr. Fuller got home, he realized that his new payment plan was for even more money than he owed before.
52. Mr. Fuller still could not afford his payments. Court clerks issued a capias pro fine warrant for Mr. Fuller’s arrest. Mr. Fuller was hopeful that he would eventually save up enough money to start paying, but despite his best efforts, Mr. Fuller could not spare any money to pay toward his fines.
53. About six months later, Mr. Fuller and his boss were out on business, driving a new truck the company had bought. The temporary tag was flapping in the wind. A state trooper pulled Mr. Fuller over because he could not read the tag.
54. The trooper ran Mr. Fuller’s license and contacted the Santa Fe Marshal about his capias pro fine warrant. The trooper handcuffed Mr. Fuller, and the marshal picked him up and took him to the Santa Fe Jail.
55. Mr. Fuller did not agree to go to jail, nor was he presented with a choice about whether to go to jail. The marshal told Mr. Fuller that the only alternative was to
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pay his fine in full. Mr. Fuller explained that he did not have the money, and the marshal locked him in jail.
56. Mr. Fuller did not attempt to waive any of the rights he seeks to vindicate in this lawsuit, nor could he have. Mr. Fuller did not know that he had a right to an ability to pay hearing where a judge would be required to consider alternatives to jail in light of Mr. Fuller’s poverty. Mr. Fuller did not know that he had a right to counsel, or that he could claim violation of his right to counsel as an absolute defense to jail time.
57. Mr. Fuller wanted a hearing so that he could explain his financial situation to a judge and ask for alternatives to jail. Mr. Fuller would have readily accepted alternatives, like an affordable payment plan or community service, rather than spend any more time in jail. He did not sign any papers before the marshal jailed him, and he did not have any idea how long he would be jailed.
58. Someone at the Santa Fe Jail told Mr. Fuller that he would be in jail for two days at most. But when Mr. Fuller’s family called to ask about getting him out, his mother, father, and wife each got different answers about how much money they would have to pay to get him out, and when he would be released. His family could not get enough money together to get Mr. Fuller out of jail.
59. Each time Mr. Fuller was held in the Santa Fe Jail, Police Department staff booked him without asking him any questions about his medical needs or screening him for risk of suicide. Each time, his jail cell was unsanitary. The mattresses remained damp after prisoners sprayed them with cleaning products, and grew mold where they
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laid against with the metal bed underneath. There were mashed Pop Tarts crusted onto the mattresses.
60. While Mr. Fuller was permitted to make phone calls, the phone he was allowed to use could not connect with a cell phone unless the recipient had already set up a prepaid account for use with the jail’s phone company. When Mr. Fuller did connect with a landline, a conversation that lasted approximately one minute cost the recipient $48.
61. Each time Mr. Fuller was held in the Santa Fe Jail, the prisoners were fed a maximum of one Pop Tart for breakfast, one Pop Tart for lunch, and a frozen dinner.
62. On two different evenings, Police Department staff forgot to feed Mr. Fuller his frozen dinner. He was extremely hungry and he did not feel well.
63. One of the nights when Mr. Fuller was deprived of food, he decided to try to get someone’s attention around 3:00 AM, even though he was nervous that he would only make the staff angry. He started yelling, then knocking on the door, then kicking the door. He gradually got louder and kicked the door of his cell as hard as he could.
64. Mr. Fuller kicked the door intermittently for about an hour. Because nobody was near the jail cells at night, and nobody was monitoring the video feed from the jail cells, it took that long for a staff member to realize that Mr. Fuller was trying to get someone’s attention.
65. After an hour of kicking, someone came to Mr. Fuller’s cell and yelled at him for kicking the door. Mr. Fuller said he hadn’t gotten any food for dinner. The staff member was annoyed that Mr. Fuller had made so much noise, so he put the frozen
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dinner in the microwave—which Mr. Fuller could see from his cell door window—and left the area for another hour. Eventually, the staff member came back and handed Mr. Fuller the food, which was cold.
66. On Mr. Fuller’s third day in jail, jail staff informed him that he had eight more hours to go. They told him that rather than sitting in jail for another eight hours, he could clean their offices and get out early. Mr. Fuller felt angry that he was being pressured to do cleaning for the Police Department, after having been in jail for three days, just because he didn’t have the money to pay his fines. But he did the cleaning anyway because it was his fastest way out.
67. Jail staff instructed Mr. Fuller to sign at least one written form before he could be released. Jail staff told Mr. Fuller that the form confirmed that staff had returned his property. Jail staff never instructed Mr. Fuller that he was presented with a form purporting to waive any of his rights, and Mr. Fuller never knowingly signed any form to that effect. In any case, by the time Mr. Fuller was presented with any written form to sign, he had already been jailed in violation of his rights and against his will for three days.
68. Mr. Fuller never signed a form that even purported to waive his right to an ability to pay hearing, his right to appointed counsel, or his right to adequate food in jail. IV. Plaintiffs Bring This Action Against the City of Santa Fe and the City of
Hitchcock 69. Defendant City of Santa Fe is a municipality organized under Texas law. Plaintiffs seek damages from Santa Fe. The City may be served with process by serving
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the Mayor Jeff Tambrella, Secretary and Treasurer Janet Davis, or City Manager Joe Dickson (the Chief Executive Officer) at Santa Fe City Hall, 12002 State Highway 6, Santa Fe, Texas 77510.
70. Defendant City of Hitchcock is a municipality organized under Texas law. Plaintiff George West seeks damages from the City of Hitchcock. The City may be served with process by serving the Mayor Anthony Matranga at Hitchcock City Hall, 7423 State Highway 6, Hitchcock, Texas 77563.
CITY OF SANTA FE PRACTICES I. The City of Santa Fe Unconstitutionally Jails Local Residents Under a
Scheme to Raise Revenue A. The Santa Fe Municipal Court Assesses Fines in Unreliable
Proceedings Lacking Basic Constitutional Protections 71. The City of Santa Fe’s revenue-generating scheme begins with Municipal Court proceedings that lack even the most basic constitutional protections. For a person who cannot afford to pay her fine, Santa Fe’s criminal justice system is like a maze with dead ends at every turn. 72. The Santa Fe Municipal Court’s criminal jurisdiction is limited to tickets for Class C Misdemeanors. Class C Misdemeanors are defined by Texas law as “nonjailable,” “fine only” offenses, punishable by a fine up to $500. They are the least serious offenses punishable in the State of Texas, such as failure to signal while changing lanes.
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73. The Santa Fe Municipal Court permits anyone who can afford to write a check to exit the criminal justice system by pleading guilty and mailing the court payment in full. For most of us, that fine is a proportionate sanction for a minor offense.
74. But for anyone who cannot afford to write a check, the stakes are much higher. For Santa Fe’s poorest residents, the only way out of the system is jail.
75. The City of Santa Fe simply ignores the constitutional prohibition on jailing people unless they were represented by counsel. The court does not appoint counsel to represent people who appear in court, nor does the court staff advise people who appear in court of their right to counsel.
76. The vast majority of people who appear in Santa Fe Municipal Court cannot afford a lawyer, do not understand their right to counsel, and do not have the legal expertise necessary to establish their innocence. Deprivation of counsel is an affirmative defense to jail, but people who appear in court do not know that, because Santa Fe does not give people the chance to consult with a lawyer who would advise them of their rights. Court staff do not obtain a knowing, intelligent, or voluntary waiver of the right to counsel from any person in any proceeding.
77. Indeed, the only guidance the court gives the public on the right to counsel creates the false impression that people who cannot afford a lawyer aren’t entitled to one. In describing the accused’s “rights,” Santa Fe’s website simply declares: “No attorney will be appointed for you.”
78. As a result, anyone who cannot afford to pay her fine is disadvantaged by a dramatic imbalance of resources between the accused, who may be experiencing her first
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contact with the criminal justice system, and the City of Santa Fe, which has established a system for prosecuting more than a thousand Class C misdemeanor cases each year. For example:
a. The City employs a full-time City Attorney with training and experience in prosecuting Class C misdemeanors.
b. The Municipal Court shares resources with the City Attorney. The court clerks work for the City Attorney, serving as his administrative support.
c. Municipal Court staff train the City Attorney about changes in the law that pertain to the court.
d. The Court Administrator engages in direct, off-the-record communication with the City Attorney and Santa Fe Police Department staff to discuss modifying flawed tickets so a case is not subject to dismissal. 79. The Santa Fe Municipal Court also ignores the constitutional requirements for accepting guilty and no contest pleas, which must be knowing, intelligent, and voluntary. Court staff simply instruct anyone who cannot afford to pay her fine to circle “guilty” or “no contest” on a payment plan form if she is not contesting her ticket. It is common for a person who completes that form to do so without understanding that she is pleading to criminal charges, that a judgment of conviction will be entered against her, and that she is at risk of jail time if she cannot make the required payments. Santa Fe Municipal Court staff do not engage in the colloquy that is ordinarily necessary for a knowing and intelligent guilty or no contest plea, which would require the Municipal Judge to ask the accused questions and satisfy himself that:
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a. The accused understands nature of the charges against her and what the government would have to prove to convict her of her charge.
b. The accused understands rights that she is waiving, including right to plead not guilty, the right to a jury trial, the right to a presumption of innocence unless the government proves her guilt beyond a reasonable doubt, the right to confront witnesses against her, the right to compel witnesses to testify in her defense, the right to remain silent or testify at trial, and the right against any penalty for her silence.
c. The accused understands maximum legal penalties for her charge. d. The accused is competent to enter a plea, is voluntarily making the plea, and has not been induced to make the plea with any false representations or improper promises. 80. To make matters worse, the Municipal Judge allows budgetary considerations to color his judgment about whether to dismiss cases. The judge recently identified dozens of cases in which the prosecutor could not prove the charges against the accused. The judge nevertheless declined to dismiss those charges, because of the negative impact on overall fines owed to Santa Fe. If a person is arrested under an open warrant in one of these cases, it is likely that the court will accept her no contest plea and entered a conviction against her—despite the judge’s knowing that the prosecutor would be unable to prove his case. 81. The Santa Fe Municipal Court ignores the constitutional requirement to offer reasonable alternatives, like community service or proportional fines, for people
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who cannot afford their fines. Instead, the court simply sentences people to pay fines, and enforces those fines by ordering anyone who cannot pay her fine to make payments in what can be unmanageable installments, generally $100 per month. The court does not determine the accused’s ability to pay before setting the monthly payment amount. Court staff refuse to reduce the payment amount or offer any alternatives, even if someone says that she cannot afford the monthly payment. This one-size-fits-all approach makes it inevitable that people who are unemployed, and low-income workers, will be unable to satisfy the requirements to exit the criminal justice system.
82. The Santa Fe Municipal Court makes failure even more likely by imposing extra fees on anyone who cannot afford to pay her fine. The base fine for a single offense, combined with fees and costs mandated by both the City of Santa Fe and the State, is typically between $200 and $500.1 For anyone who cannot afford to pay her fine outright, her debt for a single ticket will continue to grow: a fee is added for a payment plan; yet another fee if she misses a payment and the court issues a warrant; more fees are added if the court refers her ticket to a debt collection agency. The Santa Fe Municipal Court does not waive any of these fees in any case.
83. The City of Santa Fe also takes steps that increase the likelihood that a person who cannot afford her fine will receive additional tickets and incur still more fees and costs. The City contracts with the Department of Public Safety to report unpaid fines
1 Throughout this complaint, Plaintiffs use the term “fine” to refer to this total debt to the court: the base fine plus costs and fees associated with each ticket.
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to the state, resulting in an additional fee for each unpaid fine—a portion of which goes to Santa Fe—and preventing anyone with unpaid fines from renewing her driver’s license. The City also reports unpaid fines to the Department of Motor Vehicles, resulting in even more fees and prohibiting anyone with unpaid fines from renewing her car registration. A person in this situation is likely to lose her car insurance, because her premiums will become unaffordable (or her coverage will be dropped altogether) due to her expired driver’s license.
84. Because Santa Fe lacks meaningful public transportation options, a person living in poverty is put to a difficult choice. If she stops driving, she may lose her job or be unable to meet family obligations. But if she drives, her expired car registration increases the likelihood of additional traffic stops, where officers write new tickets for the expired license, expired registration, and lapse in car insurance. It is not uncommon for someone with low income to accrue $1000 or more in fines in a short period of time.
85. Despite having created these obstacles for poor people trying to satisfy their legal obligations, the Santa Fe Municipal Court enforces these fines by summarily issuing a capias pro fine warrant for anyone who fails to make timely payments in full. Court clerks issue capias pro fine warrants in the Municipal Judge’s name. The face of the warrant indicates that it is a capias pro fine warrant, and explicitly states that the basis for the warrant is failure to pay a fine.
86. Even people who do manage to make their payments are not protected from the court’s harsh enforcement practices. The court’s recordkeeping system invites mistakes, and court clerks issue capias pro fine warrants in error. Court clerks record
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pleas and judgments of guilt on forms without other identifying information, such as the date of the offense, citation number, or offense charged. Court clerks also record outstanding balances with handwritten notations in two different places, resulting in confusing and inconsistent records of payment already made. Balances increase and decrease with notations that are insufficient to adequately explain changes in the outstanding fine, or to memorialize communication between the person who owes money and the court.
87. This historically poor recordkeeping has led to systemic problems with issuing convictions and warrants in error, keeping even those who comply with the court’s orders ensnared in the Santa Fe criminal justice system. In recent cases, the court has incorrectly entered convictions for people who successfully completed a deferred disposition, and incorrectly issued warrants for people who appeared in court and paid their fines—even for people who received a mere warning, rather than an actual ticket.
88. The court’s recordkeeping problems persist: one of the “operational objectives” for the Santa Fe Municipal Court in the 2015–16 fiscal year is to “[c]ontinue clean-up and maintenance of court database.”
89. Whether warrants are issued as the result of a recordkeeping error or not, court clerks typically issue capias pro fine warrants without prior notice, catching people off guard and triggering harsh procedural rules that put them at further disadvantage.
90. Internal court rules specify that the clerks “may or may not” give the person subject to the warrant a “courtesy” phone call. When court staff do make a courtesy call to warn a person about her capias pro fine warrant, and that person asserts inability to
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pay, officials simply instruct her to come up with the money lest she be arrested and jailed.
91. The capias pro fine warrants issued by court clerks purport to authorize an unconstitutional term in debtors’ prison. The warrants direct officers to either bring the person who owes money before the court immediately, or “place [the person] in jail until such time as [s/he] pays the amount due on said judgment and the further costs of collecting the same or until [s/he] is otherwise legally discharged.”
92. Court clerks issue these warrants without giving people a chance to explain themselves to a judge and keep themselves out of jail: there is no predeprivation hearing inquiring into the reasons for the person’s failure to pay. The Municipal Judge does not make any finding that the person has willfully refused to pay, that the person failed to make sufficient bona fide efforts to acquire the resources to pay, or that alternative measures are inadequate to satisfy the state’s interest in punishment.
93. Court clerks also issue these warrants to enforce fines in complete disregard of the constitutional right to counsel. The warrants purport to authorize a jail term for people who have not had the opportunity to consult with a lawyer. There is no other explanation that would make these jail terms constitutional: the court does not initiate charges for civil or criminal contempt. Court clerks do not limit the authorized period of detention to three days or less. And court clerks issue these warrants without giving people a fair opportunity to present information about their ability to pay or object to the absence of court findings about their ability to pay.
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94. What counsel would assert, if counsel were appointed, is that these capias pro fine warrants purport to authorize jail terms far beyond the limited liberty deprivation authorized for capias pro fine warrants under Texas law. The only liberty deprivation Texas law authorizes for failure to pay is a capias pro fine warrant directing officers to bring the person before an appropriate court immediately, or if that is impossible, to hold her in jail until the next business day. Tex. Code Crim. Proc. Art. 45.045. Because Santa Fe’s capias pro fine warrants authorize a more serious liberty deprivation, the warrants are unlawful and facially invalid.
95. In short, for a person who cannot afford to pay her ticket, all routes through the Santa Fe Municipal Court lead to one outcome: a capias pro fine warrant. These warrants give officers a choice: either bring the person before the court, or jail her in violation of her right due process, her right to equal protection, and her right to counsel. Once the choice is in the hands of the Santa Fe Police Department, the Department consistently chooses an unconstitutional jail term.
B. The Santa Fe Police Chief Jails Local Residents Under Fundamentally Unfair and Uncivilized Conditions
96. As set forth above, people who cannot afford to pay their fines in Santa Fe Municipal Court are inevitably subject to a capias pro fine warrant. Once a capias pro fine warrant issues, the Santa Fe Police Department prevents any exit from the system except through a jail cell.
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97. The City refuses to set ability to pay hearings, even for people who affirmatively contact the Court to assert their inability to pay. The City makes this system clear to the public. In a section entitled “Warrants,” the City of Santa Fe website states:
If you have a Capias Pro-Fine warrant, your options are: • Pay in full. • You may turn yourself in at the Santa Fe Police Department located at 3650 FM 646 N, Santa Fe, TX 77510.
98. For people who elect to avoid the Municipal Court rather than risk an unconstitutional arrest and jail time, the capias pro fine enforcement system is not passive. In addition to taking custody of people who choose to turn themselves in, Santa Fe law enforcement officers (both police officers and the City Marshal) actively search for people subject to capias pro fine warrants, sometimes arresting people at their homes in front of family, friends, and neighbors.
99. In fact, Santa Fe has taken many affirmative steps to leverage a credible threat of arrest in order to coerce payments from people who are subject to capias pro fine warrants. The City Marshal has a stated “operational objective” to carry out an “aggressive program of serving and collecting warrants.” His business card states “WE MAKE HOUSE CALLS AND DELIVER.”
100. The City of Santa Fe also participates in the so-called “Great Texas Warrant Round-Up,” which is an annual campaign during which people subject to open capias pro fine warrants are warned that they must make a payment to avoid being arrested. Santa Fe police officers who would normally focus on other public safety duties
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devote their time to finding and arresting people who cannot afford to pay their fines. The Round-Up is timed to coincide with the period when people receive their tax refund checks, such as the Earned Income Tax Credit for low- and moderate-income working families.
101. When a Santa Fe law enforcement officer takes custody of a person under a capias pro fine warrant, the officer has the option, consistent with the language of the warrant, to bring the person before the court immediately. But Santa Fe law enforcement officers do not bring the person before the court, immediately or otherwise.
102. Instead, Santa Fe law enforcement officers transfer anyone arrested under a capias pro fine warrant to the custody of the Santa Fe Police Chief and book her into jail. The Police Chief refuses to release anyone arrested under a capias pro fine warrant unless either she pays her fines in full, or the Department holds her in jail long enough to satisfy her fines with “jail credit.” This practice of enforcing fines turns the Santa Fe Jail into a modern-day debtors’ prison, and it is unconstitutional.
103. This practice is unconstitutional because people are jailed for failure to pay without a hearing. The Santa Fe Police Chief prohibits people in his custody from speaking to a judge to explain why they failed to pay and ask for an alternative to jail. The Chief jails people for failure to pay in the absence of judicial findings that they willfully refused to pay, that they failed to make sufficient bona fide efforts to acquire the resources to pay, or that alternative measures are inadequate to satisfy the state’s interest in punishment.
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104. These jail terms are also unconstitutional because the people who are jailed don’t get the opportunity to consult with a lawyer. City policymakers including the Police Chief are aware that people arrested under capias pro fine warrants are highly unlikely to have been represented by an attorney at trial, because Santa Fe designed its criminal justice system to elicit guilty pleas without appointing defense counsel or advising people of their right to counsel. While anyone who was unrepresented at trial could theoretically assert the deprivation of counsel as an affirmative defense to jail, people arrested under capias pro fine warrants do not understand or exercise this right, precisely because they are deprived of counsel to advise them of the right in the first place. Instead, the Police Department jails people without informing them of their right to counsel, taking any steps to appoint counsel in their defense, or obtaining a knowing, intelligent, or voluntary waiver of the right to counsel.
105. Finally, these jail terms are unconstitutional because they are imposed without a facially valid court order or any other legal justification. Texas law requires officers to take people subject to a capias pro fine warrant before an appropriate court as soon as possible, and no later than the next business day after arrest. But the Police Chief jails people for days, regardless of whether a court appearance is possible. These jail terms violate due process of law because they have no legal justification.
106. The Police Chief’s constitutional violations are compounded by the fact that it is impossible for people to assert their constitutional rights in state court. People subject to an open capias pro fine warrant are prohibited from setting an appearance date in Municipal Court, so it isn’t possible to raise these claims prior to arrest. And after
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arrest, the jail term for failure to pay is too short to permit litigation of a habeas corpus petition in state court. People who the Chief holds in jail cannot vindicate their constitutional rights and invalidate their jail terms before their release.
107. Procedural and substantive unfairness aside, the jail terms imposed by the Santa Fe Police Chief are also unconstitutional because they are cruel. In an attempt to coerce payments, the Police Chief denies people in his custody basic human needs such as food, medical care, and protection from serious harm.
108. The Police Chief compromises his prisoners’ safety by locking them in jail cells without any meaningful supervision in case of an emergency. There are cameras in the jail cells, but staff do not consistently monitor the video feed. If it so happens that no one is close enough to the cells to hear a prisoner call for help—or if a prisoner is incapable of calling for help—no one will know that there is an emergency.
109. Through denial of medical care, the Police Chief also compromises prisoners’ health and safety. The Chief authorizes his staff to lock people in jail cells without any screening for medical needs or suicide risk during the jail booking process. He does not provide a way for anyone in his custody to speak with a medical professional. Even if someone tells Police Department staff that she requires specific medications, the Chief refuses to provide those medications, unless the person in jail can prove that she already has a prescription. For someone who was arrested without notice, this is almost always impossible to do.
110. Finally, the Police Chief denies people the basic necessity of food. He jails people on a diet of no more than one Pop Tart for breakfast, one Pop Tart for lunch, and
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frozen meal, such as a Hungry Man frozen dinner, at night. The Police Chief apparently considers one box of Pop Tarts to be adequate to feed anyone in his custody breakfast and lunch for four days straight.
111. This diet is nutritionally and calorically deficient. While the Chief varies the flavor of Pop Tart and the type of frozen meal provided to people in his custody, the diet is always calorically and nutritionally insufficient for an adult, even a sedentary adult.
112. For example, during October 2016, the Police Chief was feeding people in his custody Pop Tarts and a frozen meal amounting to 720 calories a day. A 720-calorie diet supplies less than half of the calories any sedentary adult requires, and less than a third of the calories sedentary young men require. A 720-calorie diet is not even enough to feed a one-year-old child.

Daily Nutritional Requirements (Sedentary) versus Santa Fe Jail Diet

3000 2500

2600

60

56

50

46

2000 1500 1000 500

1600

40

30

1000

720

20

10

18 13

0

0

Calories

Protein (grams)

20-year-old male

75-year-old female

1-year-old child

Santa Fe Jail

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113. This starvation diet would be bad enough on its own, but the food deprivation gets even worse. The Police Chief has not established a system for alerting on-duty supervisors that a person has been booked into the jail under a capias pro fine warrant, creating a high risk that people in his custody will be deprived of the little food they are supposed to receive, because no one knows they are in the jail.
114. And even when Police Department staff do know that someone has been booked into the jail, the Police Chief has not established a system for ensuring that they get fed. Over the past two years, Police Department staff have repeatedly deprived people in their custody of “meals” they are supposed to receive—simply failing to distribute any food at all.
115. These jail conditions coerce people to pay money they cannot afford to part with—such as money for food or medicine—in order to buy their liberty. Some people make frantic calls to family or friends, asking them to gather whatever money they can and turn it over to the police. But for a person who simply does not have access to the money to pay, the Santa Fe Police Chief jails her under fundamentally unfair and uncivilized conditions, solely because she cannot afford to pay her fines. II. The City of Santa Fe is Liable for Jailing Local Residents in Violation of
Their Constitutional Rights A. The Santa Fe Police Chief Jails People Under Two Unconstitutional
Policies 116. The practices described in the foregoing section are not anomalies; they are the persistent and widespread practices of municipal officials handling capias pro fine
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warrants in the City of Santa Fe. These practices are so common and well-settled that they fairly represent a customs that constitute two distinct municipal policies.
117. The first policy is the Debtors’ Prison Policy. As discussed in Section I.B above, the Santa Fe Police Department has a persistent, widespread, and well-settled practice of jailing people under capias pro fine warrants in violation of their constitutional rights. Specifically, police officers do not present people to a judge for an ability to pay hearing. Police officers jail people for uncounseled misdemeanor convictions without advising them of their right to counsel or taking any steps to appoint counsel. And police officers refuse to release a person from jail until she has stayed in custody long enough to discharge her fines, which is often longer than the next business day after her arrest. Moreover, the Santa Fe Police Chief does not train his officers in application of constitutional rights in the context of capias pro fine warrants, such as the right to due process, the right to counsel, and the scope of the liberty deprivation a capias pro fine warrant authorizes under Texas law.
118. The second policy is the Hungry Man policy. As discussed in Section I.B above, the Santa Fe Police Department has a persistent, widespread, and well-settled practice of jailing people on a diet of one Pop Tart for breakfast, one Pop Tart for lunch, and a frozen meal, such as a Hungry Man meal, for dinner. The Police Chief does not assign responsibility for feeding people in his custody, and he does not supervise the distribution of food, despite repeated instances of his staff forgetting to feed the people locked in jail. These deprivations of food are not episodic omissions, but rather the
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repeatedly occurring symptom of systemic deficiencies in the Police Chief’s delegation of power and supervision of his staff who operate the Santa Fe Jail.
119. Many aspects of the Police Department’s operations demonstrate that the Debtors’ Prison Policy is a municipal policy. For example, the forms used by the Police Department evince the persistent, widespread, and well-settled nature of this policy. There are only two types of paperwork available for documenting the execution of a capias pro fine warrant: a receipt, which is issued for payment, or a “Jail Time Credit” form, which is issued by the Police Department, if at all, after the Department jailed the person long enough to discharge her fine. Police Department staff do not complete any paperwork on a person held in jail until after she has already been held in jail long enough to satisfy her fine. In the words of a supervisor, officers document arrests on paperwork “[s]ometimes, if we are lucky.” A Police Department supervisor gathers the paperwork that officers bother to complete on Monday morning—after the relevant decisions about jail release have been made—and transfers the paperwork for recordkeeping after the fact. It is clear that Police Department staff determine whether and when to release a person from the Police Chief’s custody, based solely on the amount of money she owes.
120. The Debtors’ Prison Policy is so persistent, widespread, and well-settled that, when the Municipal Judge goes on vacation, Police Department staff do not make any contingency plans for presenting people who are arrested under a capias pro fine warrant to a judge. This is because Police Department staff do not present such people to a judge in the ordinary course of business.
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121. The Police Department’s structural capacity to clear capias pro fine warrants shows that the Debtors’ Prison Policy is persistent, widespread, and well-settled. The Police Department has established a framework for accepting payments toward outstanding fines and clearing capias pro fine warrants from the court’s database after payment or jail time—all without consulting a judge.
122. The Municipal Court’s self-reported data also show how persistent, widespread, and well-settled the Debtors’ Prison Policy is.2 From September 2015 through August 2016, the City of Santa Fe reported that it satisfied 221 cases with jail credit. During the same period, Santa Fe allowed a full satisfaction of a fine with community service in just one case, and did not waive any fines in any case—not even one dollar—due to the inability to pay. This is because the Police Department does not present people to the judge for hearings concerning ability to pay or alternatives to jail.
123. The Santa Fe Police Department’s public records support the same conclusion. There is only one written Police Department procedure that applies to capias pro fine warrants specifically. The procedure gives a person arrested under a capias pro fine warrant three options: “Pay fine,” “Sit out time in jail (100.00 per day (24 hrs) per charge),” or a combination of the two. Police Department staff have no written procedures concerning producing a person for an ability to pay hearing, informing her of
2 The Court should regard data reported to the Office of Court Administration before September 2014 with skepticism. On September 2, 2014, the Court Administrator emailed the City Manager to notify him that the Municipal Court had not been reporting data accurate data to the Office of Court Administration, and she would do her best to report data accurately going forward.
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her right to counsel and taking steps to appoint counsel, or any time limit on her detention other than the amount of money she owes to the court. The Santa Fe Police Department does not have any training materials or training policies concerning execution of capias pro fine warrants.
124. It’s also clear that from Santa Fe Municipal Court records that the Debtor’s Prison Policy is persistent, widespread, and well-settled. The Municipal Court simply does not have any of the forms it would need to enforce fines for Class C Misdemeanors in a constitutional manner:
a. The court lacks application forms for payment plans, community service, indigency status, waiver or reduction of fines, or clearing arrest warrants.
b. The court has no policies, procedures, standing orders, rules or other guidance to the City Marshal concerning execution of capias pro fine warrants.
c. The court has not developed training materials or training policies for the City Marshal concerning execution of capias pro fine warrants.
d. The court’s case files show that the Municipal Judge did not sign a single order committing a person jail during a four-month period from December 1, 2015 through mid-April 2016. Over that same period, the Police Department jailed many people who were arrested under capias pro fine warrants.
e. The court files lack evidence of ability to pay determinations for anyone arrested under a capias pro fine warrant from January 1 through June 23, 2016. Over that same period, the Police Department jailed many people who were arrested under capias pro fine warrants.
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125. Just like the Debtors’ Prison Policy, the Hungry Many Policy is also a municipal policy. The Police Chief has failed to promulgate any policies regarding supervisory use of the information recorded in the Jail Management System (JMS), where police department staff are supposed to record each “feeding.” The Chief has not implemented any alert for when a “feeding” is not recorded, nor has he designated any supervisor to systematically check JMS to see whether a person in his custody was fed. The result is that, though the Chief is in possession of records showing whether or not people in the jail were fed, he is not using those records in a preventative way to ensure that someone does, in fact, feed the people in his custody.
126. The risk posed by this policy failure isn’t just theoretical. People in the Police Chief’s custody have been deprived of food repeatedly due to his failure to supervise his staff.
127. For example, on August 16, 2016, Santa Fe officials realized that someone arrested under a capias pro fine warrant had not been fed for some time. The mistake was fixed only because, one morning, the person who had been arrested got the attention of the City Marshal and convinced him that she had not been fed.
128. From the time that person had been booked into jail, there were no jail checks or “feedings” logged in for her. It is not clear whether the she had been fed at all for the duration of her jail term. The Police Department supervisor on duty was completely unaware that this person had been booked into the jail.
129. When this issue was brought to the attention of Santa Fe’s Lieutenant, one of the Police Department’s top officials, he said that no one should “nitpick” about
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whether people in the Chief’s custody are fed or not. The Lieutenant did not demonstrate any concern about the fact that a person locked in the jail had been deprived of food. Instead, he defended the Police Department’s actions.
130. After this incident, there is still confusion among Santa Fe officials about who is responsible for feeding someone booked into jail under a capias pro fine warrant. On August 16, 2016, the Police Chief was explicitly warned that “we need to confirm if [the City Marshal] is responsible for feeding his prisoner or will his prisoner be fed with everyone else.” The Police Chief has not taken any action to address this problem.
131. A diet of two Pop Tarts and a frozen meal per day, less the “meals” missed when Police Department staff are busy or inattentive, is an objectively sufficiently serious deprivation of the calories and nutrition necessary to sustain a healthy adult—it is a starvation diet. Enough food to maintain health is a minimal civilized measure of life’s necessities. The Hungry Man Policy results in cruel and unusual punishment.
B. Santa Fe’s City Council, City Manager, and Police Chief Are Each Municipal Policymakers
132. The City of Santa Fe is liable for the Debtors’ Prison Policy and the Hungry Man Policy through its municipal policymakers.
133. The City of Santa Fe is a home rule city, meaning that as a matter of Texas law, the local government is free to establish any system of policymaking authority not prohibited by the State. Santa Fe’s Home Rule City Charter designates its form of government as a “Council-Manager Government.”
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134. The City Charter vests general policymaking authority in the City Council, which consists of the Mayor and five councilmembers. The Mayor is the head of the City Council.
135. The City Charter vests general executive, administrative, and supervisory authority in the City Manager. This authority entails the power to set policies regarding training and supervision of City employees. By ordinance, the City Council has created the Santa Fe Police Department, subject to administration and supervision by the City Manager.
136. The City Council has also impliedly delegated final authority to set policy regarding all Police Department operations, including operation of the jail, to the City Manager. The City Council has not explicitly authorized establishment of a jail or set any policies whatsoever concerning jail operations. The City Council has not exercised any oversight of jail operations for the entirety of the Council’s history, not even during or after the recent construction of a new multimillion-dollar facility. The City Council has never commented authoritatively on operation of the Santa Fe City Jail. The City Council does not exercise any supervisory power over policies concerning the Police Department. Instead, the City Council has delegated policymaking authority for Police Department operations to the City Manager.
137. In an exercise of the authority delegated to him by the City Council, the City Manager expressly delegated final authority to set policy regarding all operations of the Police Department to the Police Chief. Among the “essential job functions” that the City Manager has delegated to the Police Chief are: “Direct and coordinate the work of
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all divisions of the police department,” “develop[] and review [] policies and procedures,” “[be] responsible for long and short range planning for the department,” and “establish departmental performance goals.” These are classic functions of a municipal policymaker. The Police Chief has recently used this authority to promulgate many final policies governing operation of the Santa Fe Police Department, such as the Department’s policy on racial profiling, and the policy on towing cars during a traffic stop.
138. The communication (or lack thereof) regarding the Police Chief’s policymaking further suggests that the Chief’s policymaking authority is final. No one, including the City Manager, Mayor, and other City Councilmembers, exercises review or oversight of the Police Chief’s policymaking authority, or makes any authoritative commentary about the policies the Police Chief promulgates. Instead, the Police Chief notifies officials outside the Police Department of a change to Departmental policies—if at all—after the change is implemented, with messages such as “Just an FYI.”
139. The Santa Fe City Council is the policymaker with respect to rules of procedure and practice in the Municipal Court, which entails rules governing appointment of counsel, entry of guilty pleas, jail commitment orders, access to the court, and contact with other jurisdictions. The City Code explicitly reserves unsupervised, final authority to promulgate policies governing Municipal Court procedures to the City Council. For example, the City Council annually implements a warrant amnesty program, requiring the Municipal Court to dismiss certain charges in exchange for payments. The City Council has also passed ordinances prescribing detailed procedures for the court
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regarding cash bail, such as the exact conditions a person must agree to in order to post bail, the minimum amount of bail, and how to issue and store receipts for bail.
C. Santa Fe’s Municipal Policymakers Implemented the Debtors’ Prison Policy
140. As described in section II.A above, the Debtors’ Prison Policy is a persistent, widespread practice of Santa Fe Police Department staff, which is so common and well settled as to constitute a custom that fairly represents municipal policy.
141. City Council members, including the Mayor, know of the Debtors’ Prison Policy.
a. The Court Administrator makes a monthly report to the City Manager and City Council. This report focuses exclusively on revenue generated or lost by the court, not the administration of justice. The report includes statistics on the “value,” in dollars, of fines for which police department staff have imprisoned people for failure to pay.
b. The City Council has publicly boasted about the number of warrants that the Police Department serves.
c. The Mayor has served as a relief magistrate at the Santa Fe Jail when the Municipal Judge was unavailable, magistrating people arrested on higher charges before they were brought to the Galveston County Jail. The Mayor saw firsthand that the Police Department holds people in the Santa Fe Jail 24 hours for every $100 they owe, without presenting them to a judge for an ability to pay hearing or vindication of their right to counsel.
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d. The Mayor got upset and expressed disapproval when he learned of an outlier incident when the Debtors’ Prison policy was not followed. The Mayor contacted Police Department officials and the Municipal Judge about how they could “correct” the mistake of releasing people from jail who haven’t paid their fines. 142. The City Manager has implemented the Debtors’ Prison Policy.
a. The City Manager knows of arrangements that Police Department and Municipal Court staff make when the Municipal Judge goes on vacation. Police Department staff make arrangements for presenting all types of people in custody to a judge, except people arrested under a Santa Fe capias pro fine warrant.
b. The City Manager knows that the Mayor has expressed disapproval that the Debtors’ Prison Policy was not followed, and that the Mayor contacted Police Department officials and the Municipal Judge to discuss ways to ensure that the policy is followed in the future.  143. The Police Chief has implemented the Debtors’ Prison policy.
a. The current Police Chief, Defendant Chief Powell, was appointed as of August 1, 2016. He was trained in all aspects of the Debtors’ Prison Policy as carried out by his predecessor, including conditions under which people are released from jail, and paperwork to complete when releasing a person from jail.
b. Since taking command of the Santa Fe Police Department, the Police Chief has reviewed other departmental policies and chosen to change at least one
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policy because it was unlawful. The Police Chief knows of the Debtors’ Prison Policy, he has the power to change it, and he has failed to do so. 144. Even if the City Council, City Manager, and the Police Chief did not have actual knowledge of the Debtors’ Prison policy, they have constructive knowledge of the policy.
a. The Debtors’ Prison Policy is applied regularly. The Santa Fe Police Department takes custody of people under capias pro fine warrants, and jails them if they cannot pay their fines, multiple times a week.
b. Police Department staff flagrantly carry out the Debtors’ Prison Policy.
i. Police Department staff carry out an interdepartmental exchange of forms that are tailor-made for the policy. After the Police Department jails a person for failure to pay, staff complete a “Jail Time Credit Form” and turn it over for recordkeeping—after the fact—that the Police Department arrested and jailed a someone for failure to pay her fines.
ii. Police Department staff have posted crucial components of the Debtors’ Prison policy in the jail booking area. The Department’s written procedure for jail releases includes just three options for releasing a person arrested under a capias pro fine warrant: release her after she pays her fine in full, after jailing her at a rate of 24 hours for every $100, or
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after she pays whatever money she can get her hands on, and she stays in jail long enough to make up the difference. c. Under the Debtors’ Prison Policy, Police Department staff commit a severe constitutional violation. The Police Department subjects people who cannot afford their fines to imprisonment—a deprivation of physical liberty—for days on end. Freedom from imprisonment lies at the heart of the interests protected by the right to due process and the right to counsel. d. Both the City Council and the City Manager have been aware of overcrowding at the jail for years. As early as 2012, the City Council and the City Manager were presented with reports that “The [jail] cells are designed to accommodate two prisoners per cell. More often than not we have at least four people in each cell, requiring at least two per cell to [sleep] on the floor.” Over the course of the next two years, Santa Fe undertook repeated initiatives to raise the money necessary to increase the capacity of the jail. A policymaker exercising his responsibilities would investigate drivers of the incarceration rate at the jail and consider ways to reduce the jail population. e. For years, there has been an ongoing national conversation illegal enforcement of fines in municipal courts. The U.S. Department of Justice has been especially vocal in this conversation, most significantly in its 2014–2015 investigation and report on the Ferguson Police Department, its December 2015 and September 2016 national convenings on criminal justice debt, and its March 2016 Dear Colleague letter condemning practices such as the Debtors’ Prison
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Policy. Here in Texas, there has been considerable discussion among the Texas Judicial Council, the Texas Municipal Courts Education Center, state lawmakers, legal scholars, and criminal justice advocates regarding the legality of widespread practices such as Debtors’ Prison Policy. A 2015 investigative report by Buzzfeed revealed that municipal judges across Texas routinely ignore protections for lowincome people charged with Class C Misdemeanors. This report prompted the Texas Judicial Council to pass regulations reforming collections practices in municipal courts. Litigation and settlements over practices similar to the Debtors’ Prison have developed in Alabama, Colorado, Georgia, Louisiana, Michigan, Mississippi, Missouri, New Hampshire, and Washington, and here in Texas in Amarillo, Austin, El Paso, McAllen, and Tyler. For any municipal policymaker who oversees a local jail or municipal court, proper exercise of his responsibilities would require a basic inquiry into whether the jail or court he oversees commits the common constitutional violations that are the subject of statewide and national scrutiny. 145. In short, the Debtors’ Prison Policy is not a hush-hush agreement among low-level Police Department staff, nor is it a policy that the Police Department applies on rare occasions. The constitutional violations the Police Department causes under this policy are not trivial, and they are not highly technical or obscure. The Police Department is openly jailing people, with no legal recourse, just because they are poor. 146. The City Council, City Manager, and Police Chief all know of the Debtors’ Prison Policy. Their failure to train police officers about application of the rights to due
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process, equal protection, and counsel following arrest under a capias pro fine warrant evinces deliberate indifference to the constitutional rights of people held under these warrants in the Police Chief’s custody.
147. In the alternative, the City Council is responsible for failure to promulgate rules of practice and procedures in the Municipal Court that would remedy the persistent constitutional violations that result from the Municipal Court’s capias pro fine warrants. The City Council has the power to stop the Municipal Court from issuing capias pro fine warrants that purport to authorize unconstitutional jail terms, the power to prohibit jail terms for convictions entered against people who didn’t have the help of a lawyer, and the power to require ability to pay hearings before any deprivation of liberty for failure to pay. Yet the City Council has failed to exercise these policymaking powers in the face of hundreds of unconstitutional jail terms.
D. Santa Fe’s Municipal Policymakers Implemented the Hungry Man Policy
148. As described in section II.A above, the Hungry Man Policy is a persistent, widespread practice of the Santa Fe Police Department, which is so common and wellsettled as to constitute a custom that fairly represents municipal policy.
149. The City Council, City Manager, and Police Chief know of the Hungry Man Policy.
150. The City Manager is intimately familiar with the Police Department budget. The Police Chief reports detailed budget line item justifications to the City Manager, and the Mayor and City Council approve the budget annually.
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151. The City of Santa Fe’s projected spending on jail supplies, for the most recent year for which that statistic is available, was $1500.00 per year. Even if the entirety of this budget went toward food, Santa Fe limited the total spending on food for all people in the Chief’s custody to just $4.11 per day. This is only slightly more than Santa Fe’s projected spending on supplies for dogs in the Police Department’s canine unit, which was $3.84 per day.
152. The Police Chief implements the Hungry Man policy. The current Police Chief, Defendant Chief Powell, was appointed as of August 1, 2016. He was trained in all aspects of the Hungry Man policy as established by his predecessor, including the diet his employees feed to people in his custody, and the system (or lack thereof) for ensuring they receive their food. Since taking command of the Santa Fe Police Department, the Chief has reviewed other policies and chosen to change at least one policy because it was unlawful. The Police Chief knows of the Hungry Man Policy, he has the power to change it, and he has failed to do so.
153. Moreover, the Police Chief allowed a person in his custody to be deprived of food as recently as mid-August. He knows that the failure to supervise officers and promulgate policies for feeding people in his custody poses a substantial risk that people would not be fed at all. The Chief has not changed any aspect of the Hungry Man Policy.
154. Even if the City Council, City Manager, and the Police Chief did not have actual knowledge of the Hungry Man policy, they have constructive knowledge of the policy.
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a. The Hungry Man policy is applied multiple times a day to every person locked in the jail.
b. The Hungry Man policy is applied flagrantly. There is no sign that Police Department staff do anything to conceal the Hungry Man Policy. The Police Chief was explicitly trained in this policy when he was hired. The “meals” for people in the Chief’s custody are stored and microwaved in the same area where Department staff cook their own food and take breaks. Upper-level supervisors have described objections to food deprivation as “nitpicking,” and generally defended the current system rather than trying to conceal it.
c. The severe nutritional and caloric deprivation resulting from a daily diet of two Pop Tarts and one frozen dinner is obvious, whether or not a policymaker takes the time to check the nutritional label. The diet fed to people in the Chief’s custody is a starvation diet that provides less than half of the caloric and protein requirements for an adult of any age or sex. For a person who is already living on this diet for days, deprivation of even one “meal” is a severe deprivation of food that would be apparent to any policymaker fulfilling his oversight responsibilities.
d. As alleged above, the City Council, City Manager, and Police Chief approve spending for prison supplies that barely exceeds spending on supplies for the Police Department’s dogs. The Police Chief is aware that at least one person in his custody was recently deprived of food.
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155. Like the Debtors’ Prison Policy, the Hungry Man Policy is not a hush-hush agreement among lower-level Police Department staff, nor is it a policy that the Police Department imposes on rare occasions. The constitutional violations the Police Department causes under this policy are not trivial, and they are not highly technical or obscure. The Police Chief is not giving people in his custody enough food to stay healthy.
156. The City Council, City Manager, and Police Chief all know of the Hungry Man Policy. By failing to adequately supervise the distribution of food to people in the Chief’s custody, they are deliberately indifferent to the high risk that people will be deprived of the minimal civilized measure of life’s necessities. III. The City of Santa Fe Has Conspired to Deprive Local Residents of their
Constitutional Rights 157. Through its policymakers, the City of Santa Fe has agreed to use its law enforcement powers as a means to generate revenue for Santa Fe. The City Council, City Manager, Police Chief, Court Administrator, and Municipal Judge have agreed to deny constitutional rights as part of a broader scheme to maximize revenue generation by coercing people to make payments they cannot afford. These officials have all agreed that that the purpose of collecting outstanding fines is not to administer justice, but to use intimidation to generate revenue. These officials have agreed to intimidate people into making payments by systemically violating their right to due process, right to equal protection, right to counsel, and right against cruel and unusual punishment. 158. The City Council, City Manager, Police Chief, Court Administrator, and Municipal Judge have had explicit discussions about assessing and enforcing fines to
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make up for a budgetary shortfall. Last summer, the City Manager scheduled a meeting with officials including the Court Administrator and Police Chief to brainstorm ways to make up for a budgetary shortfall of nearly $650,000.
159. Shortly after the meeting about the budgetary shortfall, the Municipal Judge raised the fines for all tickets written by the Santa Fe Police Department, requiring people to pay even more money to extricate themselves from cycles of contact with the Santa Fe criminal justice system. The City Manager knew of this change in advance and had a conversation with the Court Administrator about whether the City Council would need to approve it.
160. In the year following the meeting about the budgetary shortfall, court clerks nearly doubled the number of capias pro fine warrants they issued to enforce fines by authorizing the Santa Fe Police Department to jail people for failure to pay.
161. In the year following the meeting about the budgetary shortfall, the Municipal Court tracked and proudly reported monthly increases in revenue. In one month, the court reported increased revenue by 75% over the same month in the previous year. Court staff also proudly reported that they had improved their collections by placing more phone calls to people with unpaid fines. During these phone calls, court staff threaten people with unconstitutional jail terms if they fail to make a payment.
162. As a result of the concerted effort among the Municipal Judge, Court Administrator, City Council, City Manager, and Police Chief, the revenue the Municipal Court generated for Santa Fe increased by $20,045 over the previous year, to a total of $225,562.
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163. These are only the most recent steps in furtherance of an ongoing agreement to deprive people of their constitutional rights as part of a scheme to use the Municipal Court to generate revenue through intimidation. For years, the Santa Fe Police Department has jailed hundreds of people under this agreement in violation of their constitutional rights.
164. The City of Santa Fe has long considered revenue generation to be the function its criminal justice system. Monthly reports from the Court Administrator to the City Council and City Manager focus exclusively on the court’s capacity for generating revenue, including the dollar value of fines that were satisfied because Santa Fe put the person who owes the fines in jail.
165. The Mayor has personally urged Police Department staff members and the Municipal Judge to do their part to ensure that people who do not pay their fines are held in jail, in violation of their right to due process, right to equal protection, and right to counsel.
166. The Municipal Judge and court staff have agreed to keep cases open, even when the judge believes that the prosecutor could not prove the allegations, in order to raise potential revenue streams for Santa Fe.
167. The Mayor and City Council decided to hire a City Marshal—a position devoted almost entirely to arresting people for failure to pay their fines—based on a review of the court’s revenue statistics.
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168. The City Manager, Mayor, and City Council agree that the Municipal Court’s primary objectives include “improve court collections” and “continue aggressive program of serving and collecting warrants.”
169. The City of Santa Fe is liable for the unconstitutional jail terms resulting from this conspiracy among its policymakers to raise revenue at the expense of the Constitution.
CITY OF HITCHCOCK PRACTICES 170. Hitchcock’s practices closely mirror Santa Fe’s practices—so closely that Hitchcock has its own Debtors’ Prison Policy. As the Hitchcock Marshal described, unconstitutionally jailing people who can’t afford their tickets is “how we do it in Galveston County.” 171. Hitchcock Municipal Court issues capias pro fine warrants automatically if any payment installment is a day late or a dollar short. The Court does not affirmatively schedule ability to pay hearings. 172. Hitchcock Municipal Court issues capias pro fine warrants without regard for whether the subject of the warrant was represented by counsel in their underlying criminal proceeding. 173. The Hitchcock Marshal executes capias pro fine warrants by jailing people without any hearing whatsoever, and without regard for whether people were represented by counsel in their underlying criminal proceeding.
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174. Hitchcock’s Debtors’ Prison Policy is a persistent, widespread practice of Santa Fe Police Department staff, which is so common and well-settled as to constitute a custom that fairly represents municipal policy.
175. The Hitchcock Police Chief is the policymaker for Hitchcock jail operations. The Police Chief has constructive knowledge of Hitchcock’s Debtors’ Prison Policy.
a. The Debtors’ Prison Policy is applied regularly. Hitchcock law enforcement takes custody of people under capias pro fine warrants, and jails them if they cannot pay their fines, multiple times a month.
b. Police Department staff flagrantly carry out the Debtors’ Prison Policy. They openly discuss jailing people without any hearing whatsoever with the court clerks.
c. Under Hitchcock’s Debtors’ Prison Policy, Police Department staff commit a severe constitutional violation. The Police Department subjects people who cannot afford their fines to imprisonment—a deprivation of physical liberty— for days on end. Freedom from imprisonment lies at the heart of the interests protected by the right to due process and the right to counsel.
d. The ongoing national conversation illegal enforcement of fines in municipal courts, discussed among allegations against Santa Fe above, also supports Hitchcock policymakers’ constructive knowledge of Hitchcock’s Debtors’ Prison Policy.
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176. In short, the Debtors’ Prison Policy is not a hush-hush agreement among low-level Police Department staff, nor is it a policy that the Police Department applies on rare occasions. The constitutional violations the Police Department causes under this policy are not trivial, and they are not highly technical or obscure. The Police Department is openly jailing people, with no legal recourse, just because they are poor.
CLAIMS FOR RELIEF Count One: Imprisonment for Inability to Pay a Fine
in violation of 42 U.S.C. § 1983, and the  Fourteenth Amendment Due Process and Equal Protection Clauses
Against the City of Santa Fe and City of Hitchcock 177. Plaintiffs incorporate by reference allegations in the foregoing paragraphs. 178. Under the Santa Fe and Hitchcock Debtors’ Prison Policies, law enforcement officers elect to jail people for failure to pay their fines without a predeprivation inquiry into the reasons for failure to pay, and without judicial findings that each person willfully refused to pay, that she failed to make sufficient bona fide efforts to acquire the resources to pay, or that alternative measures are inadequate to satisfy the state’s interest in punishment. 179. Brady Fuller seeks damages against the City of Santa Fe for violation of his right to an ability to pay hearing under their Debtors’ Prison Policy. 180. George West seeks damages against the City of Hitchcock for violation of his right to an ability to pay hearing under their Debtors’ Prison Policy.
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Count Two: Denial of Counsel in violation of 42 U.S.C. § 1983, the  Sixth Amendment Right to Counsel Clause, and the Fourteenth Amendment Due Process Clause Against the City of Santa Fe and City of Hitchcock 181. Plaintiffs incorporate by reference allegations in the foregoing paragraphs. 182. Under the Santa Fe and Hitchcock Debtors’ Prison Policies, law enforcement officers elect to jail people for failure to pay their fines as punishment for an uncounseled criminal conviction. 183. Brady Fuller seeks damages against the City of Santa Fe for violation of his right to counsel under their Debtors’ Prison Policy. 184. George West seeks damages against the City of Hitchcock for violation of his right to counsel under their Debtors’ Prison Policy.
Count Three: Unlawful Detention in violation of 42 U.S.C. § 1983, and the Fourteenth Amendment Due Process Clause
Against the City of Santa Fe 185. Plaintiffs incorporate by reference allegations in the foregoing paragraphs. 186. Under the Debtors’ Prison Policy, Santa Fe police officers jail people in the absence of a facially valid court order or any other legal authority. Officers elect to jail people under a capias pro fine warrant, even if it is possible to bring the person before an appropriate court. Officers also elect jail people for longer than the next business day after their arrest, if necessary to discharge their outstanding fines. Santa Fe police officers are not trained in the legal limits on liberty deprivation under a capias pro fine warrant,
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directly resulting in violation of Brady Fuller’s due process right against unlawful detention.
187. Brady Fuller seeks damages against the City of Santa Fe for violation of his right to be free from unlawful detention.
Count Four: Depriving Prisoners of Adequate Food in violation of 42 U.S.C. § 1983, the
 Eighth Amendment Cruel and Unusual Punishments Clause, and the Fourteenth Amendment Due Process Clause Against the City of Santa Fe
188. Plaintiffs incorporate by reference allegations in the foregoing paragraphs. 189. Under the Hungry Man Policy, Santa Fe police officers feed people a calorically and nutritionally inadequate diet. The Police Chief has not promulgated any policies to ensure that someone actually gives people in his custody the small amount of food that he allocates for them to eat. The Police Chief has failed to supervise whether his staff feed people in his custody, directly resulting in past violations, and the current high risk of violation, of Plaintiffs’ and proposed class members’ rights against cruel and unusual punishment. 190. Plaintiff Brady Fuller seeks damages against the City of Santa Fe for violation of his right to be free from cruel and unusual punishment.
JURY TRIAL DEMAND 191. Plaintiffs demand a trial by jury.
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REQUEST FOR RELIEF WHEREFORE, Plaintiffs request that this Court issue the following relief:
192. A judgment that Defendants are liable to Plaintiffs in an amount to be determined at trial, including special damages for lost wages, childcare, late fees on bills, vehicle impoundment costs, and other collateral consequences of incarceration; and general damages, or, in the alternative, nominal damages;
193. A judgment that Defendants are liable for reasonable attorneys’ fees and costs pursuant to 42 U.S.C. § 1988; and
194. Any other relief this Court deems just and proper.

Respectfully Submitted,

By:

/s/ Trisha Trigilio

Trisha Trigilio Attorney-in-charge State Bar No. 24065179 S.D. Tex. Bar No. 2461809 American Civil Liberties Union Foundation of Texas 1500 McGowen Street, Suite 250 Houston, Texas 77004 Phone 713.942.8146 Fax 713.942.8966 ttrigilio@aclutx.org

Attorney for Plaintiffs

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