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IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

ROBERT J. ESQUIVEL,

 Plaintiff,

vs.

DAVID KENDRICK, BADGE #0567, 

PATROL DIVISION, SAN ANTONIO 

POLICE DEPARTMENT; TROOPER 

FNU EASTBURN, #14720, TEXAS 

DEPARTMENT OF PUBLIC SAFETY; 

TROOPER FNU BIBBY, #14593, TEXAS 

DEPARTMENT OF PUBLIC SAFETY; 

TROOPER FNU WINDGATE, #13157, 

TEXAS DEPARTMENT OF PUBLIC 

SAFETY; SAN ANTONIO POLICE 

DEPARTMENT, TEXAS HIGHWAY 

PATROL DEPARTMENT OF PUBLIC 

SAFETY,

 Defendants.

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SA-20-CV-00377-OLG

REPORT AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

To the Honorable Chief United States District Judge Orlando L. Garcia:

This Report and Recommendation concerns Defendants’ Rule 12(b)(6) Motion to 

Dismiss [#15] and Plaintiff’s Rule 11(c)(1) Motion to Sanction Defendant [#21]. All dispositive 

pretrial matters in this case have been referred to the undersigned for disposition pursuant to 

Western District of Texas Local Rule CV-72 and Appendix C [#13]. The undersigned has

authority to enter this recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). For the reasons set 

forth below, it is recommended that Defendants’ motion be GRANTED and Plaintiff’s motion 

be DENIED. 

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I. Background

Plaintiff, proceeding pro se, filed this action against the San Antonio Police Department

(“SAPD”), the Texas Highway Patrol Department of Public Safety (“DPS”), and various officers 

of these departments (Officers Kendrick and Troopers Eastburn, Bibby, and Windgate), alleging 

that he was subjected to an unlawful arrest and illegal search and seizure on April 29, 2018 

following a purported traffic stop. Plaintiff’s original Complaint [#4] advances various 

constitutional claims under 42 U.S.C. § 1983 related to his rights to free speech, due process, and 

equal protection, and the right to be free from excessive force, unlawful search and seizure, and 

cruel and unusual punishment. Plaintiff complains of being wrongfully detained for ten months 

in the Bexar County Jail on a charge of evading arrest, which was ultimately dismissed on March 

18, 2019. After reviewing Plaintiff’s Complaint, the Court ordered Plaintiff to file a More 

Definite Statement prior to permitting service of his Complaint on any Defendant. Plaintiff’s 

More Definite Statement [#7] references additional claims of defamation, slander, and 

intentional infliction of emotional distress. 

The Court concluded that Plaintiff had pleaded at least one non-frivolous claim and 

permitted service of his Complaint. Plaintiff subsequently filed an Amended Complaint [#10], 

indicating his addition of the United States of America as a Defendant and adding allegations 

related to the practice of strip searching inmates at the Bexar County Detention Center without 

cause and referencing class actions challenging such practices on constitutional grounds. 

Thereafter, Defendants David Kendrick and SAPD (hereinafter “Defendants”) filed the 

motion to dismiss that is the subject of this report and recommendation. Plaintiff moved for an 

extension of time to respond to the motion, which the Court granted, making his response due on 

or before September 2, 2020. On September 1, 2020, the Court received correspondence from 

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Plaintiff [#20]. Although this correspondence does not address the merits of Defendants’ motion 

to dismiss, the undersigned has considered its contents in issuing this report and 

recommendation. 

One of the other four Defendants—DPS—has been served but has not answered or 

otherwise responded to this lawsuit. The remaining three defendants—Troopers Eastburn, 

Bibby, and Windgate—have not been served. The record reflects that summonses were issued as 

to the Trooper defendants on June 10, 2020, for service by the United States Marshals Service 

via certified mail. However, the summonses were returned unexecuted as undeliverable as 

addressed. The Court will address this issue by separate Order.

On September 2, 2020, the Court received Plaintiff’s Rule 11(c)(1) Motion to Sanction 

Defendant. In this motion, Plaintiff argues that the Court should sanction Defendants for filing 

their motion to dismiss after the Court already found that Plaintiff’s pleadings stated at least one 

nonfrivolous claim and permitted service on the defendants named in this lawsuit. The Court 

should deny Plaintiff’s motion. Pursuant to 28 U.S.C. § 1915(e), the Court has discretion to 

dismiss a case filed by an individual proceeding pro se at any time in the course of the litigation 

by screening the case for frivolousness or the failure to state a claim upon which relief can be 

granted. The Court declined to exercise this discretion and permitted service of Plaintiff’s 

Complaint based on the conclusion that Plaintiff had stated at least one non-frivolous claim 

against someone named in this lawsuit. The Court’s previous order did not state which claim 

was found to be non-frivolous and did not specifically address any of Plaintiff’s claims against 

SAPD and Officer Kendrick, the Defendants now seeking dismissal. Additionally, an order 

permitting service of pleadings after an initial screening under Section 1915(e) does not prevent 

any defendant from seeking dismissal on any ground set forth in Rule 12 of the Federal Rules of 

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Civil Procedure. Through such a motion, a defendant may raise a defense, such as the qualified 

immunity defense raised in Defendants’ motion, that is not before the Court during its initial 

screening for frivolousness. Defendants’ actions in seeking dismissal of Plaintiff’s claims under 

Rule 12(b)(6) is not sanctionable conduct under Rule 11, as it is not a frivolous filing or a filing 

being presented for an improper purpose. See Fed. R. Civ. P. 11(b), (c)(1). The Court should 

deny Plaintiff’s motion and consider the merits of Defendants’ motion to dismiss. For the 

reasons set forth below, the Court will recommend that Defendants’ motion be granted and 

Plaintiff’s claims against SAPD and Officer Kendrick be dismissed.

II. Legal Standard

“To survive a motion to dismiss, a complaint must contain sufficient factual matter, 

accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 

U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim 

has facial plausibility when the plaintiff pleads factual content that allows the court to draw the 

reasonable inference that the defendant is liable for the misconduct alleged.” Id. “Although a 

complaint “does not need detailed factual allegations,” the “allegations must be enough to raise a 

right to relief above the speculative level.” Twombly, 550 U.S. at 555. The allegations pleaded 

must show “more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. 

at 678. 

In reviewing a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a court

“accepts all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff.” 

Martin K. Eby Const. Co. v. Dallas Area Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004)

(internal quotation omitted). However, a Court need not credit conclusory allegations or 

allegations that merely restate the legal elements of a claim. Chhim v. Univ. of Tex. at Austin, 

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836 F.3d 467, 469 (5th Cir. 2016) (citing Iqbal, 556 U.S. at 678). In short, a claim should not be 

dismissed unless the court determines that it is beyond doubt that the plaintiff cannot prove a 

plausible set of facts that support the claim and would justify relief. See Twombly, 550 U.S. at 

570. 

This Court is mindful that in evaluating the merits of Defendants’ motion to dismiss, a 

court views Phillips’s pro se pleadings under a less stringent standard than those drafted by an 

attorney. Alexander v. Ware, 714 F.2d 416, 419 (5th Cir. 1983). As a result, Phillips’s filings 

are entitled to a liberal construction that includes all reasonable inferences that can be drawn 

from these pleadings. See id.

III. Analysis

Plaintiff’s pleadings appear to allege causes of action under 42 U.S.C. § 1983 for the 

following constitutional violations and state law tort claims: (1) violation of his Fourth 

Amendment right to be free from unlawful search, seizure, and arrest during a traffic stop; (2) 

violation of his Fourth Amendment right to be free from excessive force during this seizure; (3) 

violation of his Eighth Amendment right to be free from cruel and unusual punishment; (4) 

violation of his Fifth Amendment rights based on a failure of arresting officers to follow police 

procedures during his arrest; (5) violation of his First Amendment right to free speech; (6) 

malicious prosecution; (7) intentional infliction of emotional distress; and (8) defamation and 

slander. Defendants Kendrick, proceeding in his individual and official capacity, and SAPD

seek dismissal of all of the claims asserted against them in this lawsuit. 

A. Plaintiff’s claims against SAPD should be dismissed.

SAPD seeks dismissal of Plaintiff’s claims on the basis that it has not been granted jural 

authority to be sued and does not have a separate legal existence from the City of San Antonio. 

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The capacity to be sued is governed by the law of the state where the court is located. Fed. R. 

Civ. P. 17(b)(3). Therefore, in order to sue a city department in this court, that department “must 

enjoy a separate legal existence,” meaning that it must be a “separate and distinct corporate 

entity” under Texas law. Darby v. Pasadena Police Dep’t, 939 F.2d 311, 313 (5th Cir. 1991) 

(internal citations omitted). If the city itself has not granted the agency at issue jural authority to 

be sued, it may not sue or be sued. Id. 

Defendants direct the Court to several cases addressing the question of whether the City 

of San Antonio has granted SAPD with separate jural authority to be sued. See Lone Star 

Chapter Paralyzed Veterans of Am. v. City of San Antonio, No. SA-10-CV-0316-XR, 2010 WL 

3155243, at *1 (W.D. Tex. Aug. 5, 2010); Martin v. City of San Antonio, No. SA-05-CA-0020-

XR, 2006 WL 2062283, at *2 n.2 (W.D. Tex. Jul. 25, 2006). In Lone Star, Judge Rodriguez 

examined San Antonio’s City Charter, which indicates that the city is a “home-rule municipality” 

under Texas Law, allowing for the provision of a police department. 2010 WL 3155243, at *1 

(quoting Burch v. City of San Antonio, 518 S.W.2d 540, 543 (Tex. 1975); Tex. Const. art. XI, § 

5; Tex. Loc. Gov’t Code §§ 5.004, 341.003). “San Antonio created the police department as a 

department of the city government.” Id. (citing San Antonio Charter, art. V, § 50(3)). The city 

also “reserved to itself the general powers of a home-rule city” with “all municipal powers,” 

including a specific grant to “sue and be sued.” Id. (citing San Antonio Charter, § 3, para. 1). 

There is no similar grant of authority to SAPD. Id. Because SAPD lacks jural authority to sue 

and be sued, it must be dismissed from this lawsuit.

However, when a suit is brought against a city department that is not granted jural 

authority, courts may construe the claim to be brought against the city. See id. at *2. But even 

construing Plaintiff’s claims as against the City of San Antonio, as opposed to SAPD, Plaintiff’s 

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claims fail as a matter of law, as discussed infra with respect to Plaintiff’s official capacity 

claims against Officer Kendrick.

B. Plaintiff’s claims against Officer Kendrick in his official capacity should also be 

dismissed.

Insofar as Plaintiff is suing Officer Kendrick in his official capacity as an officer with 

SAPD, these claims should be dismissed. An official-capacity suit is simply another way of 

pleading an action against an entity of which an officer is an agent, here the City of San Antonio. 

See Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 690 n.55 (1978). The 

majority of Plaintiff’s claims arise under Section 1983. Section 1983 provides a cause of action 

against “[e]very person” who, acting under color of state law, has deprived a person of a 

federally protected statutory or constitutional right. 42 U.S.C. § 1983. Under Section 1983, 

municipalities and other such governmental units are considered “persons” subject to liability. 

Monell, 436 U.S. at 691 (local government entities are persons subject to suit under Section 

1983); De La O v. Hous. Auth. of the City of El Paso, 417 F.3d 495, 503 (5th Cir. 2005) (claims 

against municipal housing authority treated as claims against municipality itself). “By including 

municipalities within the class of ‘persons’ subject to liability for violations of the Federal 

Constitution and laws, Congress—the supreme sovereign on matters of foreign law—abolished 

whatever vestige of the State’s sovereign immunity the municipality possessed.” Owen v. City of 

Indep., Mo., 445 U.S. 622, 648 (1980). 

However, only an official policy or custom of the City could expose it to liability for a 

violation of Plaintiff’s constitutional rights; respondeat superior liability for the acts of 

municipal employees is not available. Bd. of Comm’rs of Bryan Cnty. v. Brown, 520 U.S. 397, 

403 (1997); Rivera v. Houston Indep. Sch. Dist., 349 F.3d 244, 247 (5th Cir. 2003). Municipal

liability under 42 U.S.C. § 1983 requires proof of (1) a policymaker; (2) an official policy; and 

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(3) a violation of constitutional rights whose “moving force” is the policy or custom. Monell, 

436 U.S. at 694. 

Regardless of whether Plaintiff states a plausible claim for a violation of his

constitutional rights, his Section 1983 claims against Officer Kendrick in his official capacity 

must be dismissed because Plaintiff has not alleged any facts that suggest that an identified City 

policymaker enacted a policy that is the moving force behind any such violation. Plaintiff’s 

pleadings allege that he was stopped for a traffic violation by two DPS troopers, one on each side 

of his vehicle. (More Definite Statement [#7] at 4.) DPS troopers are state officials, not City 

officials, and so the allegations against them cannot give rise to the City’s liability. Plaintiff 

claims the DPS trooper on the driver side had his weapon drawn and pointed it directly at 

Plaintiff’s face. (Id.) Plaintiff further alleges that the officers ignored his attempts to inform the 

officer that he was on the phone with 911 dispatch at the time of the traffic stop providing “the 

reasons for his actions.” (Id.) According to Plaintiff, the officer grabbed the phone out of his 

hand, threw it to the ground, then proceeded to physically force Plaintiff to the ground. (Id. at 5.) 

At this same time, the officer on the passenger side of the car allegedly broke the passenger 

window. (Id.) Plaintiff claims neither officer provided any reason for the use of excessive force 

or gave any reason for the traffic stop. (Id.) Even if all of these allegations are true, they do not 

support a claim against the City, as the troopers do not act pursuant to City policy. 

Plaintiff alleges that the police report regarding the above incident was written by 

Defendant Kendrick and represented that the arrest was based on probable cause, but an article 

written by a local San Antonio news station indicated the arrest was due to “a warrant for 

unlawful carry.” (More Definite Statement [#7] at 6.) Plaintiff claims he was taken to the San 

Antonio Detention Center upon his arrest but later transferred to the Bexar County Jail System

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where he was detained for 10 months and 20 days, during which his detention was based on a 

combination of GPS monitoring and physical detention. (Id. at 6–7.) During his detention at the 

Bexar County Detention Center, Plaintiff alleges he was subjected to unwarranted strip searches 

every two to three weeks, along with hundreds, if not thousands, of other inmates. (Am. Compl. 

[#10] at 4–6.) Plaintiff alleges he was released from custody on March 18, 2019, after his formal 

charge for evading arrest with a vehicle was dismissed. (Id. at 8.) He does not make any 

allegations of mistreatment while he was in the City’s facility (the San Antonio Detention 

Center).

Plaintiff’s only allegations regarding Officer Kendrick of SAPD are that Officer 

Kendrick authored the police report, stating that the reason for the initial stop was a traffic 

violation and that Kendrick was the “official arresting officer.” (Id. at 3; Compl. [#4] at 6.) The 

only allegation in his pleadings that concerns a pattern, practice, custom, or policy is the 

allegation that Bexar County Detention Center had a practice of subjecting its inmates to 

unwarranted strip searches. These allegations, therefore, concern an alleged Bexar County 

policy, not a policy, practice, or custom of the City. Because Plaintiff has failed to allege facts 

that would implicate the municipal liability of the City of San Antonio, Plaintiff’s officialcapacity claims against Officer Kendrick must be dismissed.

C. Plaintiff’s Texas intentional tort claims against Officer Kendrick must be dismissed.

Plaintiff alleges various intentional tort claims against Officer Kendrick—malicious 

prosecution, intentional infliction of emotional distress, defamation, and slander. Insofar as 

Plaintiff is asserting these claims against Plaintiff in his official capacity, these claims must be 

dismissed. “The Texas Tort Claims Act provides a limited waiver of immunity for certain suits 

against governmental entities and caps recoverable damages.” Mission Consol. Indep. Sch. Dist. 

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v. Garcia, 253 S.W.3d 653, 655 (Tex. 2008) (citing Tex. Civ. Prac. & Rem. Code § 101.023). A 

municipality is a political subdivision of the State. Tex. Civ. Prac. & Rem. Code § 

101.001(3)(B). Whether a municipality is afforded governmental immunity depends on whether 

the municipality is performing a governmental or proprietary function. See City of Houston v. 

Sw. Concrete Const., Inc., 835 S.W.2d 728, 729 (Tex. App.—Houston [14th Dist.] 1992, writ 

denied). Governmental functions are “those functions that are enjoined on a municipality by law 

and are given it by the state as part of the state’s sovereignty, to be exercised by the municipality 

in the interest of the general public.” Tex. Civ. Prac. & Rem. Code § 101.0215(a). Proprietary 

functions are “those functions that a municipality may, in it discretion, perform in the interest of 

the inhabitants of the municipality.” Id. at § 101.0215(b). Texas municipalities are only immune 

for their governmental, not their proprietary, functions. Tex. River Barges v. City of San 

Antonio, 21 S.W.3d 347, 356 (Tex. App.—San Antonio 200, pet denied). One of the 

governmental functions listed by Texas statute is “police and fire protection and control.” Tex. 

Civ. Prac. & Rem. Code § 101.0215(a)(1). Accordingly, even assuming the City of San Antonio 

or Officer Kendrick in his official capacity committed a tort while engaged in the function of 

policing, the City’s liability would be determined by the Texas Tort Claims Act. 

The Texas Tort Claims Act’s waiver of immunity does not extend to claims arising out of 

intentional torts. See Tex. Civ. Prac. & Rem. Code § 101.057 (excluding waiver for a claim 

“arising out of assault, battery, false imprisonment, or any other intentional tort”); Morgan v. 

City of Alvin, 175 S.W.3d 408, 418 (Tex. App.—Houston [14th Dist.] 2004, no pet.). All of 

Plaintiff’s alleged tort claims fall under the category of intentional torts and therefore must be 

dismissed due to the immunity of the City of San Antonio. See Casanova v. City of Brookshire, 

119 F. Supp. 2d 639, 666 (S.D. Tex. 2000) (intentional torts of intentional infliction of emotional 

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distress, false arrest, and malicious prosecution do not fall under Tort Claims Act’s limited 

waiver of sovereign immunity); City of Hempstead v. Kmiec, 902 S.W.2d 118, 122 (Tex. App.—

Houston [1st Dist.] 1995, no pet.) (defamation and slander are intentional torts). 

D. Plaintiff’s Texas tort claims against Officer Kendrick in his individual capacity 

should also be dismissed.

The Texas Tort Claims Act contains an election-of-remedies provision, which requires a 

plaintiff to choose who to sue—the governmental entity or its employee. Tex. Civ. Prac. & Rem. 

Code § 101.106(f). In some cases, the Act dictates that a plaintiff bring suit against the 

governmental entity, even when sovereign immunity has not been waived. Id. Section 

101.106(f) provides that “if suit is filed against an employee of a governmental unit based on 

conduct within the general scope of that employee’s employment, and it could have been brought 

against the governmental unit . . . on the employee’s motion, the suit against the employee shall 

be dismissed unless the Plaintiff substitutes the governmental unit.” Id.; see also Franka v. 

Velasquez, 332 S.W.3d 367, 369–85 (Tex. 2011). This section was intended to “foreclose suit 

against a governmental employee in his individual capacity if he was acting within the scope of 

his employment.” Franka, 332 S.W.3d at 381. The Texas Supreme Court has interpreted the 

language “could have been brought” to include all tort claims, including intentional torts, 

regardless of the fact that the Texas Tort Claims Act’s immunity waiver does not apply for 

intentional torts and therefore bars suit against the governmental unit. Id. at 385. Under these 

precedents, Plaintiff’s intentional tort claims against Officer Kendrick in his individual capacity 

must be dismissed. 

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E. Plaintiff’s claims arising under Section 1983 against Officer Kendrick in his 

individual capacity should also be dismissed.

Again, Plaintiff’s Section 1983 claims allege violations of the First, Fourth, Fifth, and 

Eighth Amendments. All of these claims against Officer Kendrick fail as a matter of law and 

should be dismissed. Insofar Plaintiff is attempting to allege a malicious prosecution claim 

against Officer Kendrick pursuant to Section 1983, this claim also fails as a matter of law. 

i. Fifth Amendment

The Fifth Amendment to the Constitution provides that “[n]o person shall . . . be deprived 

of life, liberty, or property, without due process of law.” Yet this protection attaches only when 

the federal government seeks to deny a liberty or property interest. Knoetze v. U.S. Dep’t of 

State, 634 F.2d 207, 211 (5th Cir. 1981). Plaintiff cannot sue Officer Kendrick in his individual 

capacity for a violation of the Fifth Amendment, as he is not a federal actor. And, although the 

Fourteenth Amendment’s due process clause does apply to municipalities, see Morin v. Caire, 77 

F.3d 116, 120 (5th Cir. 1996), Plaintiff has not pleaded any allegations against Officer Kendrick 

upon which a procedural due process or substantive due process claim could be based. Plaintiff 

only alleges that Officer Kendrick was the officer who authored the police report regarding his 

arrest and was the arresting officer. Plaintiff does not allege that Officer Kendrick deprived him 

of his right to procedural due process in completing the police report and arrest that ultimately 

led to formal charges. The substantive component of the due-process clause also does not 

provide protection from criminal prosecution without probable cause. Albright v. Oliver, 510 

U.S. 266, 274–75 (1994). 

ii. Eighth Amendment

Plaintiff also cannot sue Officer Kendrick in his individual capacity for a violation of the 

Eighth Amendment because the Eighth Amendment only provides protection to convicted 

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prisoners. Morin, 77 F.3d at 120. Plaintiff alleges that he was charged and detained but never 

convicted. The procedural and substantive due process guarantees of the Fourteenth 

Amendment, however, protect the constitutional rights of pretrial detainees like Plaintiff. Hare 

v. City of Corinth, Miss., 74 F.3d 633, 639 (5th Cir. 1996) (citing Bell v. Wolfish, 441 U.S. 520 

(1979). Plaintiff does allege he was subjected to certain conditions in the Bexar County 

Detention Center that violated his constitutional rights. However, Officer Kendrick is not 

involved in those allegations. Plaintiff fails to state a claim under the Eighth Amendment or 

Fourteenth Amendment against Officer Kendrick.

iii. Malicious Prosecution

It is unclear whether Plaintiff is asserting a malicious prosecution claim based on Texas 

law or also attempting to bring such a claim pursuant to Section 1983. Insofar as Plaintiff is 

pursuing this cause of action under Section 1983, this claim also fails as a matter of law. The 

Supreme Court has stated that a Section 1983 claim based solely on malicious prosecution, 

without more, is not cognizable as “causing charges to be filed without probable cause [does] not 

without more violate the Constitution.” Castellano v. Frago, 352 F.3d 939, 953 (5th Cir. 2003). 

Any malicious prosecution claim against Officer Kendrick in his individual capacity must also 

be dismissed. 

iv. Fourth Amendment

Plaintiff alleges that Defendants violated his Fourth Amendment rights to be free from an 

unreasonable search, seizure, and arrest and excessive force during his encounters with law 

enforcement. Officer Kendrick invokes qualified immunity as a defense to Plaintiff’s individualcapacity claims under the Fourth Amendment. Qualified immunity shields federal and state 

officials from individual liability for civil damages unless a plaintiff pleads facts showing (1) that 

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the official violated a statutory or constitutional right, and (2) that the right was “clearly 

established” at the time of the challenged conduct. Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011) 

(citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). 

In the context of a qualified immunity analysis, the facts are construed in the light most 

favorable to the party asserting the injury. Austin v. Johnson, 328 F.3d 204, 207 (5th Cir. 2003) 

(citing Saucier v. Katz, 533 U.S. 194, 201 (2001)). A right is clearly established for purposes of 

the second step of the qualified-immunity analysis if it would be clear to a reasonable official, at 

the time of the challenged conduct, that his or her conduct violated the statutory or constitutional 

right at issue. Saucier, 533 U.S. at 206. Stated another way, a right is clearly established if “the 

contours of the right [are] sufficiently clear that a reasonable official would understand that what 

he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640 (1987). 

The Supreme Court has repeatedly admonished lower courts not to define clearly 

established law at a high level of generality. See, e.g., al-Kidd, 563 U.S. at 742. Rather, the 

inquiry must be undertaken in light of the specific factual context of the case. Mullenix v. Luna, 

--U.S.--, 136 S. Ct. 305, 308 (2015). The dispositive question is “whether the violative nature of 

particular conduct is clearly established.” Al-Kidd, 563 U.S. at 742. Lower courts have 

discretion to decide which of the two prongs of qualified-immunity analysis to tackle first. See 

Pearson v. Callahan, 555 U.S. 223, 236 (2009). 

At the motion-to-dismiss stage, as here, the Fifth Circuit requires plaintiffs invoking 

Section 1983 to plead “specific facts that, if proved, would overcome the individual defendant’s 

immunity defense.” Jackson v. City of Beaumont Police Dept., 958 F.2d 616, 620 (5th Cir. 

1992) (internal quotation and citation omitted). Accordingly, to rebut the qualified immunity of 

Officer Kendrick, Plaintiff must allege facts that, if proved, establish that Officer Kendrick

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violated Plaintiff’s clearly established constitutional rights. Saucier, 533 U.S. at 206. He has 

failed to do so.

Again, the only facts Plaintiff includes in his pleadings related to Officer Kendrick is that 

he authored the police report stating that Plaintiff was stopped initially related to a traffic stop 

and that Officer Kendrick was the “official arresting officer.” Plaintiff does not allege any acts 

from which the Court could reasonably infer that Officer Kendrick was the officer who actually 

stopped Plaintiff, who seized Plaintiff, who searched Plaintiff’s vehicle, or who exerted any force 

on Plaintiff. Nor does Plaintiff explain why he believes any officer lacked probable cause to stop 

him for a traffic stop. Plaintiff also failed to address Defendants’ qualified immunity defense in 

his response to their motion to dismiss. Plaintiff has therefore failed to plead sufficient facts to 

overcome Officer Kendick’s defense of qualified immunity. 

v. First Amendment

Plaintiff’s pleadings also reference the violation of his First Amendment right to freedom 

of speech and peaceful assembly. (Compl. [#4] at 4.) Defendants do not address this claim in 

their motion to dismiss. However, the Court may sua sponte dismiss a claim on its own motion 

so long as the plaintiff has notice and an opportunity to respond. See Carroll v. Fort James 

Corp., 470 F.3d 1171, 1177 (5th Cir. 2006) (internal citation and quotation omitted). Plaintiff’s 

pleadings, construed liberally, do not allege any facts that could support a plausible claim that 

Officer Kendrick violated his First Amendment rights to free speech and assembly. And any 

claim against SAPD for a violation of the First Amendment pursuant to Section 1983 should also 

be dismissed for the reasons stated supra at Section III.B. for failure to allege the City’s 

municipal liability under Monell. If Plaintiff has omitted facts from his three pleadings on file 

that support his First Amendment claim against Officer Kendrick, Plaintiff may inform the 

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District Court of these allegations and make any arguments against dismissal by filing objections 

to this report and recommendation pursuant to 28 U.S.C. § 636(b)(1). 

IV. Conclusion and Recommendation

Having considered Defendants’ motion, Plaintiff’s response, Plaintiff’s Complaint, More 

Definite Statement, and Amended Complaint, and the governing law, the undersigned 

recommends that Plaintiff’s Rule 11(c)(1) Motion to Sanction Defendant [#21] be DENIED;

Defendants’ Rule 12(b)(6) Motion to Dismiss [#15] be GRANTED; and all of Plaintiff’s claims 

against Defendants Kendrick and SAPD be dismissed.

V. Instructions for Service and Notice of Right to Object/Appeal

The United States District Clerk shall serve a copy of this report and recommendation on 

all parties by either (1) electronic transmittal to all parties represented by attorneys registered as 

a “filing user” with the clerk of court, or (2) by mailing a copy to those not registered by certified 

mail, return receipt requested. Written objections to this report and recommendation must be 

filed within fourteen (14) days after being served with a copy of same, unless this time period is 

modified by the district court. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). The party shall file 

the objections with the Clerk of Court and serve the objections on all other parties. A party filing 

objections must specifically identify those findings, conclusions or recommendations to which 

objections are being made and the basis for such objections; the district court need not consider 

frivolous, conclusive or general objections. A party’s failure to file written objections to the 

proposed findings, conclusions and recommendations contained in this report shall bar the party 

from a de novo determination by the district court. Thomas v. Arn, 474 U.S. 140, 149–52 (1985); 

Acuña v. Brown & Root, Inc., 200 F.3d 335, 340 (5th Cir. 2000). Additionally, failure to file 

timely written objections to the proposed findings, conclusions and recommendations contained 

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in this report and recommendation shall bar the aggrieved party, except upon grounds of plain 

error, from attacking on appeal the un-objected-to proposed factual findings and legal 

conclusions accepted by the district court. Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 

1428–29 (5th Cir. 1996) (en banc).

SIGNED this 4th day of September, 2020.

ELIZABETH S. ("BETSY") CHESTNEY

UNITED STATES MAGISTRATE JUDGE

Case 5:20-cv-00377-OLG-ESC Document 22 Filed 09/04/20 Page 17 of 17