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IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

EL PASO DIVISION

RENE TORRES,

Plaintiff,

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v. No. EP-20-CV-00149-DCG-ATB

EL PASO POLICE DEPARTMENT, 

HEIDI MENA, RN, PROVIDENCE 

MEMORIAL HOSPITAL; DAVID 

CAMACHO, DETECTIVE; KFOX NEWS, 

KVIA NEWS, KDBC NEWS, EL PASO 

TIMES,

Defendants.

REPORT AND RECOMMENDATION

OF THE MAGISTRATE JUDGE

On this day, the Court considered the status of the above-styled and numbered cause. On 

May 22, 2020, Plaintiff Rene Torres (“Torres”), proceeding pro se, filed an application to proceed 

in forma pauperis along with a financial affidavit and a Complaint. (ECF No. 1). On May 28, 

2020, this Court granted Plaintiff’s application, and his Complaint was thereafter filed. (ECF Nos. 

2, 3). In the Order, the Court directed that “[p]rior to ordering service of process on Defendants, 

the Court [would] engage in judicial screening of Plaintiff’s Complaint pursuant to 28 U.S.C. § 

1915.” (ECF No. 2). On July 24, 2020, Torres filed his “Summary of Facts in Support of Civil 

Action” (“Supplement”).1 (ECF No. 8). The Court has now screened Plaintiff’s Complaint and 

submits this Report and Recommendation.

1 Based upon the content of the Supplement, it appears that Torres is attempting to supplement rather than supersede 

his original Complaint.

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I. BACKGROUND2

Torres is currently in the custody of the Texas Department of Criminal Justice (“TDCJ”) 

and is incarcerated at the Lindsey Unit in Jacksboro, Texas. (ECF No. 3, p. 1). In his Complaint, 

Torres alleges that on August 18, 2018, he found “Amber Mena deceased at her trailer home . . . 

in El Paso, Texas.” (Id. at 4). Upon discovering Amber Mena, Torres “called 911 and reported 

it.” (Id.). 

Torres contends that Amber Mena’s mother, Heidi Mena, “told the detectives that she 

thought [Torres] . . . killed her daughter.” (Id.). In his Supplement, Torres expands on his 

contentions. According to the Supplement, on February 5, 2019, a detective from the Auto Theft 

unit of the El Paso Police Department (“EPPD”) told Torres to come to the police station to identify 

his car. (ECF No. 8, p. 2). After identifying his car, Torres “was approached by detective[] David 

Camacho and . . . transported to [EPPD] Homicide Division.” (Id.). “After two hours of 

interrogation[, Torres] was arrested” for the murder of Amber Mena. (Id.). While in custody, 

Torres observed media coverage of his arrest for the murder of Amber Mena. (Id. at 6-7). This 

coverage included his picture and reports that he had committed the murder. (Id.)

The murder charge was eventually declined by the District Attorney and the charges were 

dropped. (Id. at 7). Based upon the investigation, arrest, and subsequent news coverage of the 

investigation, Torres contends that he “suffer[s] from PTSD[,] anxiety, Bi-polar depression, and 

[is] permanently damaged mentally and emotionally.” (Id.). Torres now seeks to bring claims 

against numerous defendants for actions taken relating to the investigation, arrest, and related 

media publications. (ECF No. 3, p. 3-4).

2 While recounting the factual background, the Court addresses only the facts relevant to the immediate Report and 

Recommendation. 

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Torres names the EPPD as the first defendant. (ECF No. 3, p. 3). He seeks to bring claims 

for False Arrest, Harassment, Discrimination, and Defamation of Character against the EPPD. 

(Id.).

Next, Torres names Heidi Mena as a defendant. In his Complaint, Torres alleges that Heidi 

Mena “[t]old authorities that [Torres] murdered her daughter with [the] intent to do [Torres] harm.” 

(Id.). Torres seeks to bring a claim against Heidi Mena for defamation of character.

In his Complaint, Torres names Detective David Camacho (“Camacho”) as the third 

defendant. (Id.). Torres alleges that Camacho harassed him, followed him, interrogated him, tried 

to make him confess to a murder that he did not commit, and subsequently arrested him. (Id.at 4). 

Torres seeks to bring claims against Camacho based upon his arrest. (Id.).

Finally, Torres seeks to bring claims against “KFOX Ch 14 News” (“KFOX”), “KVIA Ch 

7 News” (“KVIA”), “KDBC CH 4 News” (“KDBC”) and the El Paso Times (“Times”)

(collectively “News Organizations”) for defamation. (Id.). Torres alleges that the News 

Organizations “[b]lantly [sic] put [his] picture and said [he] committed that murder and defamed 

[him] on . . . television.” 

II. LEGAL STANDARD

Title 28 U.S.C. § 1915 directs a court to dismiss an in forma pauperis complaint at any 

time if it determines that the complaint fails to state a claim on which relief may be granted. 28 

U.S.C. § 1915(e)(2)(B)(ii). Further, the court may sua sponte dismiss on these grounds even 

without serving the defendants. See Wilson v. Barrientos, 926 F.2d 480, 482 (5th Cir. 1991) 

(“Dismissal [under § 1915] is ‘often made sua sponte prior to the issuance of process, so as to 

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spare prospective defendants the inconvenience and expense of answering such complaints.’”) 

(quoting Neitzke v. Williams, 490 U.S. 319, 324 (1989)).3

To determine whether an in forma pauperis complaint fails to state a claim on which relief 

may be granted, courts engage in the same analysis as when ruling on a motion to dismiss under 

Rule 12(b)(6) of the Federal Rules of Civil Procedure. See Hale v. King, 642 F.3d 492, 497–99 

(5th Cir. 2011) (per curiam).

Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for dismissal of a complaint 

when a defendant shows that the plaintiff has failed to state a claim upon which relief can be 

granted. “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)). The factual 

matter contained in the complaint must allege actual facts, not legal conclusions masquerading as 

facts. Id. (citing Twombly, 550 U.S. at 555) (“Although for the purposes of a motion to dismiss 

we must take all of the factual allegations in the complaint as true, we ‘are not bound to accept as 

true a legal conclusion couched as a factual allegation.’”).

To resolve a Rule 12(b)(6) motion, courts must determine “whether in the light most 

favorable to the plaintiff and with every doubt resolved on his behalf, the complaint states any 

valid claim for relief.” Gregson v. Zurich Am. Ins. Co., 322 F.3d 883, 885 (5th Cir. 2003) (citation 

omitted). A complaint states a “plausible claim for relief” when the factual allegations contained 

therein infer actual misconduct on the part of the defendant, not a “mere possibility of misconduct.” 

Iqbal, 556 U.S. at 679. The complaint “‘does not need detailed factual allegations,’ but must 

3 See also Jones v. Smith, 234 F. App’x 249, 250 (5th Cir. 2007) (per curiam) (stating that service on defendants is not 

required before dismissing an action for failure to state a claim) (citing Carr v. Dvorin, 171 F.3d 115, 116 (2d Cir. 

1999) (per curiam) (noting that 28 U.S.C. § 1915A, like § 1915(e)(2), “clearly does not require that process be served 

or that plaintiff be provided an opportunity to respond before dismissal”)).

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provide the plaintiff’s grounds for entitlement to relief—including factual allegations that when 

assumed to be true ‘raise a right to relief above the speculative level.’” Cuvillier v. Taylor, 503 

F.3d 397, 401 (5th Cir. 2007) (quoting Twombly, 550 U.S. at 555).

Furthermore, pro se pleadings are reviewed under a less stringent standard than those 

drafted by attorneys, and such pleadings are entitled to a liberal construction that includes all 

reasonable inferences that can be drawn from them. Haines v. Kerner, 404 U.S. 519, 520–21 

(1972) (per curiam). However, even a pro se complaint may not merely set forth conclusory 

allegations. The pro se litigant must still set forth facts giving rise to a claim on which relief may 

be granted. Johnson v. Atkins, 999 F.2d 99, 100 (5th Cir. 1993) (per curiam).

III. ANALYSIS

At the outset, the Court notes that Torres has filed both a Complaint and a Supplement. 

Torres’s Supplement appears to merely expand on some of the allegations in his Complaint. “An 

amended complaint supersedes the original complaint and renders it of no legal effect unless the 

amended complaint specifically refers to and adopts or incorporates by reference the earlier 

pleading.” King v. Dogan, 31 F.3d 344, 346 (5th Cir. 1994). Rule 10(c) of the Federal Rules of 

Civil Procedure directs that “[a] statement in a pleading may be adopted by reference elsewhere in 

the same pleading or in any other pleading or motion.” Fed. R. Civ. P. 10(c). A valid incorporation 

by reference of an original complaint under Rule 10(c) must provide the defendants with ample 

notice of the claims against them. Carroll v. Fort James Corp., 470 F.3d 1171, 1176 (5th Cir. 

2006); see Wolfe v. Charter Forest Behavioral Health Sys., Inc., 185 F.R.D. 225, 228–29 (W.D. 

La. 1999) (“While Rule 10(c) authorizes adoption by reference in later complaints, such adoption 

must be done with a degree of specificity and clarity which would enable the responding party to 

easily determine the nature and extent of the incorporation.”).

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Furthermore, pro se pleadings are reviewed under a less stringent standard than those 

drafted by attorneys, and such pleadings are entitled to a liberal construction that includes all 

reasonable inferences that can be drawn from them. Haines v. Kerner, 404 U.S. 519, 520–21 

(1972) (per curiam). Here, Torres specifically states that the Supplement is merely a “summary 

of facts in support of [his] civil action.” (ECF No. 8, p. 2). Further, unlike the Complaint, the 

Supplement does not comply with the requirements of Rule 8 of the Federal Rules of Civil 

Procedure. Accordingly, it appears that Torres is attempting to supplement rather than supersede 

his original complaint. See Clemmons v. Georgia-Pac. Corp., No. CV31400432JWDRLB, 2015 

WL 9307272, at *2 fn.6 (M.D. La. Dec. 21, 2015) (“By Plaintiff’s choice, therefore, the Complaint 

does not supersede Plaintiff’s original complaint.”). Construed liberally, the Court finds Torres’s

statements in his Supplement to be a valid incorporation by reference of his original Complaint. 

Therefore, the Court will consider the Supplement to be a supplement to, rather than a replacement 

for, Torres’s Complaint.4

a. Claims against the El Paso Police Department

In his Complaint, Torres seeks to bring claims against the EPPD for False Arrest, 

Harassment, Discrimination, and Defamation of Character. (ECF No. 3, p. 3).

First, the Court finds that Torres’s claims against the EPPD should be dismissed because 

the EPPD is not a proper defendant. Torres has failed to establish that the EPPD enjoys a separate, 

legal existence from the City of El Paso and, therefore, the EPPD cannot be sued separately. “In 

order for a plaintiff to sue a city department, it must enjoy a separate legal existence.” Darby v. 

Pasadena Police Dep’t, 939 F.2d 311, 313 (5th Cir. 1991) (internal quotation marks omitted). 

“The capacity of an entity to sue or be sued ‘shall be determined by the law of the state in which 

4 Torres therefore has a Complaint (ECF No. 3), as supplemented (ECF No. 8).

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the district court is held.’” Darby, 939 at 313 (quoting Fed. R. Civ. P. 17(b)). Further, “unless the 

[legal] entity has taken explicit steps to grant the servient agency with jural authority, the agency 

cannot engage in any litigation except in concert with the government itself.” Id. Finally, “[t]he 

plaintiff has the burden of showing that the city department has the capacity to be sued.” Pueblo 

v. City of El Paso, No. EP-17-CV-00162-DCG, 2018 WL 7133707, at *2 (W.D. Tex. Mar. 22, 

2018) (citing Darby, 939 F.2d at 314).

In Kirkendall v. Grambling & Mounce, Incorporated, the “district court . . . concluded that 

the El Paso Police Department was not subject to suit . . . because it did not have a separate legal 

existence from the municipality itself.” 4 F.3d 989, 1993 WL 360732, at *3 (5th Cir. Aug. 23, 

1993). Further, the plaintiff “d[id] not suggest that the police department [was] a legal entity 

separate from the City of El Paso.” Id. The Fifth Circuit “affirm[ed] the dismissal of the El Paso 

Police Department from the suit because there ha[d] been no showing that the [police] department 

ha[d] a legal existence separate from the City of El Paso.” Id. 

In this case, Torres has not alleged, and has not shown, that the EPPD has a legal existence 

separate and apart from the City of El Paso. Further, Torres has not alleged and has failed to show

that the City of El Paso has taken any steps to grant the EPPD jural authority. Therefore, the Court 

finds that the EPPD should be dismissed from this suit.

Assuming, arguendo, that Torres had named the proper defendant, the City of El Paso, in 

his Complaint, the Court finds that those claims should be dismissed. Municipalities cannot be 

held liable under 42 U.S.C. § 1983 based upon a theory of vicarious liability. Monell v. Dep’t of 

Soc. Servs., 436 U.S. 658, 694 (1978). “Instead, it is when execution of a government’s policy or 

custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to 

represent official policy, inflicts the injury that the government as an entity is responsible under 

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§ 1983.” Id.; see Peterson v. City of Fort Worth, 588 F.3d 838, 847 (5th Cir. 2009) (“[A 

municipality] is liable only for acts directly attributable to it ‘through some [sort of] official action 

or imprimatur.’”) (quoting Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th Cir. 2001)). 

Municipal liability is “limited to acts that are, properly speaking, acts ‘of the municipality’ – that 

is, acts which the municipality has officially sanctioned or ordered.” Pembaur v. City of 

Cincinnati, 475 U.S. 469, 480 (1986).

Under Section 1983, municipal liability for a policy or custom claim requires proof of: (1) 

a policymaker; (2) an official policy or custom; and (3) a violation of constitutional rights of which 

the “moving force” is the official policy or custom. Piotrowski, 237 F.3d at 578. Furthermore, 

only where a municipality adopts a policy that violates a constitutional right or fails to adopt a 

policy preventing the violation of a constitutional right “evidenc[ing] a ‘deliberate indifference’ to 

the rights of its inhabitants[,] can such a shortcoming be properly thought of as a [municipal] 

‘policy or custom’ that is actionable under § 1983.” City of Canton v. Harris, 489 U.S. 378, 389 

(1989). Therefore, to establish municipal liability, a plaintiff must establish both municipal 

causation and culpability. See Snyder v. Trepagnier, 142 F.3d 791, 795–96 (5th Cir. 1998) 

(“Plaintiffs seeking to win under this theory must first prove a direct causal link between the 

municipal policy and the constitutional deprivation; they then must establish that the city 

consciously enacted a policy reflecting ‘deliberate indifference’ to the constitutional rights of its 

citizens.”).

There are multiple ways in which a custom or policy can be found to exist. First, a custom 

or policy can stem from a single act by an official with final policymaking authority. See Pembaur 

v. City of Cincinnati, 475 U.S. 469, 481-83 (1986) (establishing that isolated actions or decisions 

by a municipal policymaker with “final policymaking authority” may create municipal liability). 

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Second, the custom or policy can also be a policy statement formally announced by an official 

policymaker. See Zarnow v. City of Wichita Falls, 614 F.3d 161, 168 (5th Cir. 2010) (citing 

Webster v. City of Houston, 735 F.2d 838, 841 (5th Cir. 1984) (en banc) (per curiam)). Finally, a 

custom or policy can also be demonstrated through a “persistent[,] widespread practice of 

[municipal] 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 

municipal policy.” Id.; see Webster, 735 F.2d at 841. “For a custom or practice to be considered 

a de facto policy, however, a plaintiff must allege facts ‘showing a pattern of abuses that transcends 

the error made in a single case.’” Lozano v. Ortega, No. EP-14-CV-239-KC, 2014 WL 6611595, 

at *15 (W.D. Tex. Nov. 19, 2014) (quoting Piotrowski, 237 F.3d at 582). “[I]solated 

unconstitutional actions by municipal employees will almost never trigger liability.” Piotrowski

237 F.3d at 578.

Torres’s Complaint fails to allege the existence of an official policy of the EPPD or the 

City of El Paso. A plaintiff seeking to establish municipal liability under Monell based upon an 

official policy “may point to a policy statement formally announced by an official policymaker.” 

Zarnow v. City of Wichita Falls, 614 F.3d 161, 168 (5th Cir. 2010). In his Complaint, Torres 

makes no such allegation. Accordingly, the Court finds that Torres has not alleged the existence 

of an official policy “announced by an official policymaker.” Id.

Further, the Court finds that Torres has failed to allege the existence of a custom within the 

EPPD. Rather than relying on an official policy, a “plaintiff may demonstrate 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 municipal policy.’” Id. (quoting Webster v. City of Houston, 735 F.2d 838, 841 (5th 

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Cir. 1984) (en banc) (per curiam)). However, “to plead a practice ‘so persistent and widespread 

as to practically have the force of law’, a plaintiff must do more than describe the incident that 

gave rise to his injury.” Pena v. City of Rio Grande City, 879 F.3d 613, 622 (5th Cir. 2018)

(quoting Connick v. Thompson, 563 U.S. 51, 61 (2011)). In Pena, “the only ‘specific fact’ in the 

complaint [was] the single incident in which Peña was involved.” 879 F.3d at 622. The Fifth 

Circuit held that the plaintiff’s allegations were “conclusional and utterly devoid of factual 

enhancements.” Id. (quotation marks omitted). Just as in Pena, Torres’s Complaint is devoid of 

any facts other than those relating to the single incident giving rise to his alleged injuries. 

Accordingly, the Court finds that Torres has failed to allege a custom in his Complaint sufficient 

to establish municipal liability under Monell.

The Court also finds that Torres’s allegations contained in his Complaint do not allege the 

existence of a policymaker, as required to establish municipal liability. In Pena, the Fifth Circuit 

explained that “because the identity of the policymaker is a legal question, courts should not ‘grant 

motions to dismiss for failing to plead [a] specific identity.’ Rather, ‘the complaint need only allege 

facts that show an official policy, promulgated or ratified by the policymaker, under which the 

municipality is said to be liable.’” Id. (quoting Groden v. City of Dallas, 826 F.3d 280, 286 (5th 

Cir. 2016)). The Fifth Circuit then held that the “complaint invite[d] no more than speculation that 

any particular policymaker, be it the chief of police or the city commissioner, knew about the 

alleged custom” and found that the plaintiff had failed to allege a policymaker. Pena, 879 F.3d at 

622. Just as in Pena, Torres’s Complaint does not suggest the existence of a policymaker. 

Accordingly, the Court finds that Torres has not named the proper defendant for a municipal 

liability claim and that Torres has failed to state a claim for municipal liability.

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b. Claim Against Camacho

In his Complaint, Torres alleges that Camacho “falsely arrested [Torres] for murder.” 

(ECF No. 3, p. 4). “A constitutional claim for false arrest . . . ‘requires a showing of no probable 

cause.’” Arizmendi v. Gabbert, 919 F.3d 891, 897 (5th Cir. 2019), cert. denied, 140 S. Ct. 220 

(2019) (quoting Club Retro, L.L.C. v. Hilton, 568 F.3d 181, 204 (5th Cir. 2009)). “Probable cause 

is established by ‘facts and circumstances within the officer’s knowledge that are sufficient to 

warrant a prudent person, or one of reasonable caution, in believing, in the circumstances shown, 

that the suspect has committed, is committing, or is about to commit an offense.’” Arizmendi, 919 

F.3d at 897 (quoting Hilton, 568 F.3d at 204). Accepting the allegations in the Complaint relating 

to Torres’s arrest as true, the Court finds that Torres has alleged facts sufficient to order service of 

process on Camacho.

c. Defamation Claims

In his Complaint, Torres seeks to bring claims for defamation against Heidi Mena, KFOX, 

KVIA, KDBC, and the El Paso Times (collectively “Defamation Defendants”) for stating that

Torres killed Amber Mena. (ECF No. 3, p. 3). “[D]efamation is not a federal constitutional tort 

cognizable in an action brought pursuant to 42 U.S.C. § 1983.” Davis v. Myers, No. CIVA 08-

4492, 2008 WL 4747424, at *2 (E.D. La. Oct. 17, 2008) (citing Mowbray v. Cameron Cty., 274 

F.3d 269, 277 (5th Cir. 2001)). Instead:

Texas law establishes the following elements to state an actionable claim of 

defamation: (1) publication of a false statement of fact to a third party, (2) the 

statement must concern the plaintiff and be defamatory, (3) the publication must be 

made with the requisite degree of fault, and (4) the publication must cause damages. 

Walker v. Beaumont Indep. Sch. Dist., 938 F.3d 724, 743 (5th Cir. 2019).

The Court finds that the claim for false arrest against Camacho and the claims against the 

Defamation Defendants do not “form part of the same case or controversy.” 28 U.S.C. § 1367(a). 

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“A court with original federal jurisdiction over certain claims has supplemental jurisdiction over 

state law claims “that are so related . . . that they form part of the same case or controversy under 

Article III of the United States Constitution.” Ning Ye v. Holder, 667 F. Supp. 2d 103, 104 (D.D.C. 

2009) (quoting 28 U.S.C. § 1367(a)). In Ning Ye, the plaintiff asserted constitutional claims 

against federal defendants for “discrimination on the basis of race or national origin, false arrest 

and false imprisonment, malicious prosecution, and civil fraud” for incidents occurring on March 

18, 2008, and October 23, 2008. Id. The plaintiff also raised a defamation claim against a 

defendant for defamation for events occurring on February 23, 2008, and October 3, 2008. Id. 

The court found that it lacked supplemental jurisdiction over the defamation claims because “‘[t]he 

event that trigger[ed] liability for [the defamation claim] and the [constitutional claims were] 

completely separate.’” Id. (quoting Taylor v. District of Columbia, 626 F.Supp.2d 25, 29 (D.D.C. 

2009)); cf. Singh v. George Washington Univ., 368 F.Supp.2d 58, 72 (D.D.C. 2005) (finding no 

supplemental jurisdiction over state law defamation claim because facts needed to prove 

defamation claim “would offer no insight” into facts needed to prove the federal claim) vac’d on 

other grounds, 508 F.3d 2097 (D.C. Cir. 2007).

Just as in Ning Ye, the events that allegedly trigger the Defamation Defendants’ potential 

liability for the defamation claims occurred on different dates and are completely separate from 

the events that allegedly trigger Camacho’s liability for the constitutional claims. Torres alleges 

in his Complaint that Camacho falsely arrested Torres without probable cause on February 5, 2019. 

(ECF No. 8, p. 2). The allegedly defamatory statement made by Heidi Mena occurred before 

Torres’s arrest by Camacho. See (ECF No. 3, p. 3). Further, while Torres does not allege an exact 

date, he does allege that it was only after his arrest and while he was in custody, that Torres saw 

the allegedly defamatory statements from the News Organizations. (ECF No. 8, p. 5). 

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Additionally, the elements of the constitutional claim for false arrest are completely separate and 

distinct from the elements of the defamation claims against the Defamation Defendants. Compare

Arizmendi, 919 F.3d at 897, with Walker, 938 F.3d at 743. Therefore, the facts needed to prove 

the defamation claims against the Defamation Defendants would offer no insight into the facts 

needed to prove the constitutional claim against Camacho. Accordingly, the Court recommends 

dismissal of the claims against the Defamation Defendants for lack of supplemental jurisdiction.

In the alternative, the Court finds that the claims against the Defamation Defendants should 

be dismissed because the Defamation Defendants are not properly joined in this action. Pursuant 

to Federal Rule of Civil Procedure 20, defendants may only be joined in a single action if “any 

question of law or fact common to all defendants will arise in the action.” Fed. R. Civ. P. 

20(a)(2)(B). “A district court has discretion under Rule 20(a) to control the scope of a lawsuit by 

limiting the number of defendants a plaintiff may hail into court in a particular case.” Tuft v. Texas, 

397 F. App’x 59, 61 (5th Cir. 2010) (citing Arrington v. City of Fairfield, 414 F.2d 687, 693 (5th 

Cir. 1969)). Further, “‘the creative joinder of actions’ by prisoner plaintiffs to avoid the strictures 

of the Prison Litigation Reform Act of 1995 . . . should be discouraged.” Tuft, 397 F. App’x at 61

(quoting Patton v. Jefferson Corr. Ctr., 136 F.3d 458, 464 (5th Cir. 1998)).

In Smith v. Warden, Hardee Correctional Institution, the court affirmed the dismissal of 

unrelated claims brought against multiple prison officials related to the conditions of his 

confinement at a single correctional institution. 597 F. App’x 1027 (11th Cir. 2015). In Smith, 

the plaintiff brought three types of claims. Id. First, the plaintiff alleged that some defendants 

“interfered with his right of access to the courts.” Id. at 1030. Second, the plaintiff alleged that a 

different group of defendants “conducted unreasonable searches of [plaintiff’s] cell.” Id. Finally, 

the plaintiff alleged that a third group of defendants “supplied inadequate clothing and bedding to 

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inmates.” Id. The court held that the plaintiff’s “status as a pro se litigant did not relieve him of

the obligation to comply with Rule 20(a).” Id.

In this case, it appears that there are no questions of law or fact common to all defendants 

that will arise in Torres’s claims against Camacho and the Defamation Defendants. First, the 

elements of Torres’s 42 U.S.C. § 1983 claim against Camacho are different than the elements of 

his Texas state law defamation claims against the Defamation Defendants. Compare Arizmendi, 

919 F.3d at 897, with Walker, 938 F.3d at 743. Second, the facts at issue are entirely different

between the claims against Camacho and the Defamation Defendants. While the factual inquiry

for the claims against Camacho will be confined to the probable cause at the time of Torres’s arrest, 

the factual inquiry for the claims against the Defamation Defendants will be confined to the 

defamatory nature of the statements at the time they were made. In other words, whether or not 

there was probable cause to arrest Torres for murder will have no bearing on whether or not the 

Defamation Defendants defamed Torres when they allegedly published statements that Torres 

murdered Amber Mena. Accordingly, the Court finds that Torres is attempting to bring multiple

causes of action against different defendants, and that these causes of action require proving 

different elements and entail different factual inquiries. Therefore, the Court recommends that the 

Defamation Defendants be “drop[ped as] part[ies].” Fed R. Civ. P. 21.

Finally, in the alternative, the Court finds that should it be determined that supplemental 

jurisdiction exists over the claims against the Defamation Defendants, the Court recommends that 

the District Court decline to exercise supplemental jurisdiction over those claims because “th[ose] 

claim[s] substantially predominate[] over the claim or claims over which the district court has 

original jurisdiction.” 18 U.S.C. 1367(c)(2). 

There are several discretionary factors to be considered by a district court in 

deciding whether to exercise its pendent jurisdiction power. Those factors pertinent 

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. . . include consideration of whether ‘state issues substantially predominate . . . in 

terms of proof, of the scope of the issues raised, or of the comprehensiveness of the 

remedy sought;’ a policy in favor of avoiding needless decisions of state law ‘both 

as a matter of comity and to promote justice between the parties by providing for 

them a surer-footed reading of applicable law;’ ‘considerations of judicial 

economy, convenience and fairness to litigants;’ consideration of whether ‘the state 

claim is so closely tied to questions of federal policy that the argument for exercise 

of pendent jurisdiction is particularly strong.’”

Jackson v. Stinchcomb, 635 F.2d 462, 473 (5th Cir. 1981) (quoting United Mine Workers v. Gibbs, 

383 U.S. 715, 726-27 (1966). In Jackson, the Fifth Circuit found that “[b]ecause the state law 

issues [were] subsidiary issues in the federal question claim, . . . the state issues [were] not 

substantially predominant.” 635 F.2d at 473. The Fifth Circuit then held that their “review of the 

Gibbs discretionary factors in the context of th[e] case persuade[d the panel] that the exercise of 

pendent jurisdiction [was] appropriate at th[at] stage of the litigation.” Id.

Unlike in Jackson, the Court finds that the consideration of the discretionary facts weighs 

against exercising supplemental jurisdiction. First, the state law defamation claims are not 

subsidiary to the federal claims. Compare (ECF No. 3, p. 3) (raising separate and distinct 

constitutional claims and defamation claims against different defendants) with Jackson, 635 F.2d 

at 473 (stating that “the state law issues are also subsidiary issues in the federal question claim.”). 

Second, the scope of the issues raised against the Defamation Defendants are substantially larger 

than the scope of the issues raised in the federal claim against Camacho. Third, because of the 

separate nature of the constitutional claims and the defamation claims, the “policy in favor of 

avoiding needless decisions of state law” weighs in favor of declining to exercise supplemental 

jurisdiction. Jackson, 635 F.2d at 473. Accordingly, the Court recommends that the District Court 

decline to exercise supplemental jurisdiction over the defamation claims against the Defamation 

Defendants.

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IV. CONCLUSION

For the foregoing reasons, the Court finds that Torres has failed to state a claim against the 

El Paso Police Department. Further, the Court finds that Detective David Camacho should be 

served. Finally, the Court finds that the claims against Heidi Mena, KFOX News, KVIA News, 

KDBC News, and the El Paso Times, should be dismissed, or in the alternative that the District 

Court decline to exercise supplemental jurisdiction over those claims.

Accordingly, the Court RECOMMENDS that:

• Torres’s claim against Defendant the El Paso Police Department be DISMISSED for 

failure to state a claim upon which relief can be granted;

• Defendant Detective David Camacho be SERVED;

• Torres’s defamation claim against Defendant Heidi Mena BE DISMISSED;

• Torres’s defamation claim against Defendant KFOX News BE DISMISSED;

• Torres’s defamation claim against Defendant KVIA News BE DISMISSED;

• Torres’s defamation claim against Defendant KDBC News BE DISMISSED; and

• Torres’s defamation claim against Defendant El Paso Times BE DISMISSED.

SIGNED and ENTERED this 14th day of August, 2020.

ANNE T. BERTON

UNITED STATES MAGISTRATE JUDGE

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NOTICE

FAILURE TO FILE WRITTEN OBJECTIONS TO THE PROPOSED FINDINGS, 

CONCLUSIONS AND RECOMMENDATIONS CONTAINED IN THE FOREGOING 

REPORT, WITHIN FOURTEEN DAYS OF SERVICE OF SAME, MAY BAR DE NOVO 

DETERMINATION BY THE DISTRICT JUDGE OF AN ISSUE COVERED HEREIN 

AND SHALL BAR APPELLATE REVIEW, EXCEPT UPON GROUNDS OF PLAIN 

ERROR, OF ANY UNOBJECTED-TO PROPOSED FACTUAL FINDINGS AND LEGAL 

CONCLUSIONS AS MAY BE ACCEPTED OR ADOPTED BY THE DISTRICT COURT.

Case 3:20-cv-00149-DCG-ATB Document 9 Filed 08/14/20 Page 17 of 17