Leon Valley & Kirby PDs’ 12(b)(1)(6) MTD Plaintiffs’ Complaint Page 1

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

JACK MILLER, ANNABEL CAMPBELL, §

MATTHEW PESINA, LISA PESINA, M.P., a § 

Minor and J.G., a Minor, §

§ 

Plaintiffs, §

§ 

V. §

§ 

CHIEF JOSEPH SALVAGGIO, In His § 

Individual and Official Capacities, §

OFFICER JIM WELLS, In His Individual and § CIVIL ACTION NO. 20-cv-00642 JKP 

OFFICER JIM WELLS, In His Individual and § 

Official Capacities, OFFICER ANDERSON, § 

In His Individual and Official Capacities, § 

OFFICER SAUCEDO, In His Individual and § 

Official Capacities, OFFICER J. VASQUEZ, § 

In His Individual and Official Capacities, § 

STATE POLICE OFFICER JOHN DOE, In His § 

In His Individual and Official Capacities, § 

BEXAR COUNTY MAGISTRATE, In Their § 

Individual and Official Capacities, § 

KIRBY POLICE DEPARTMENT and § 

LEON VALLEY POLICE DEPARTMENT, § 

Jointly and Severally, §

§ 

Defendants. §

DEFENDANTS’ LEON VALLEY POLICE DEPARTMENT AND KIRBY POLICE 

DEPARTMENT’S MOTION TO DISMISS

PLAINTIFFS’ ORIGINAL COMPLAINT

TO THE HONORABLE U.S. DISTRICT COURT:

DEFENDANTS LEON VALLEY POLICE DEPARTMENT (“Leon Valley) and the 

KIRBY POLICE DEPARTMENT (“Kirby”) file this their Motion to Dismiss in response to 

Plaintiffs’ Original Complaint as authorized by the Federal Rules of Civil Procedure 12(b)(1) and 

(6). Defendants respectfully submit the following:

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I.

NATURE OF THE LAWSUIT/FACTUAL ALLEGATIONS

1. The instant case is a civil action for money damages brought pursuant to 42 U.S.C. § 1983, 

asserting First and Fourth Amendment violations to the United States Constitution.

2. On May 31, 2018, Plaintiff, Jack Miller, a self-described First Amendment Auditor, was at 

the City of Leon Valley City Hall, to deliver a complaint against the Leon Valley Police 

Department. By Miller’s own admission in his Complaint, he entered into Leon Valley City Hall 

with a holstered fake gun on his hip, in plain sight. [Dkt. 1, ¶¶ 16, 17]. Leon Valley’s municipal 

court is located inside its City Hall Building and was in session at the time Miller entered City 

Hall. In Texas, a person commits an offense if he intentionally possesses a firearm on the 

premises of a governmental court (municipal court) under TEXAS PENAL CODE, Chapter 46, § 

46.03. 

II.

GROUNDS FOR DISMISSAL

3. Plaintiffs’ claims against the Leon Valley and Kirby Police Departments should be 

dismissed for Plaintiffs’ failure to state a claim upon which relief can be granted, for the following 

reasons:

a. The City of Leon Valley Police Department lacks capacity to be sued;

b. The City of Kirby Police Department lacks capacity to be sued; 

c. Plaintiffs’ claims are erroneously premised on respondeat superior liability and 

therefore fails to state a claim under 42 U.S.C. 1983 for which relief can be granted; 

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III.

ARGUMENTS AND AUTHORITIES

A. Standing under 12(b)(1)

4. A 12(b)(1) motion addresses whether plaintiff has a right to be in the district court at all 

and whether the court has the power to hear and dispose of a plaintiff’s claim. FED R. CIV. P 

12(b)(1). The 12(b)(1) motion addresses whether plaintiff has stated a cognizable claim and it is 

a challenge to the sufficiency of the complaint. Holloway v. Pagan River Dockside Seafood, Inc.,

669 F. 3d 448, 452 (4th Cir. 2012). Lack of subject matter jurisdiction is an affirmative defense 

that a defendant may assert in a motion to dismiss. Where subject matter jurisdiction is challenged 

pursuant to FRCP 12(b)(1), the plaintiff has the burden of proving jurisdiction in order to survive 

the motion. Michigan S. R.R. v. Branch & St. Joseph Cty. Rail Users Ass’n, 287 F. 3d 568, 573 

(6th Cir. 2002). Specifically, the plaintiff must show that the complaint alleges a claim under 

federal law, and that the claim is “substantial.” Id. 

B. Standard for 12(b)(6) Motion

5. If a complaint fails to state a claim upon which relief can be granted, a court is entitled to 

dismiss the complaint as a matter of law FED R. CIV. P 12(b)(6). To survive a Rule 12(b)(6) 

motion to dismiss, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a 

claim for relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 

1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 44, 556 (2007)). A claim is plausible 

on its face “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. (quoting Twombly, 550 U.S. 

at 556). The plausibility standard “asks for more than a sheer possibility that a defendant has 

acted unlawfully.” Id. Rather, the court must be sure that the complaint alleges sufficient facts to 

move the claim “across the line from conceivable to plausible.” Twombly, 550 U.S. at 570. When 

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considering a motion to dismiss under Rule 12(b)(6) the court “accepts all well-pleaded facts as 

true, viewing them in the light most favorable to the plaintiff.” Sonnier v. State Farm Mut. Auto. 

Ins. Co., 509 F.3d 673, 675 (5th Cir. 2007) (quoting In re Katerina Canal Breaches Litig., 495 

F.3d 191, 205 (5th Cir. 2007)).

6. Dismissal can be based on either a lack of a cognizable legal theory or the absence of 

sufficient facts alleged under a cognizable legal theory. Frith v. Guardian Life Ins. Co. of Am., 9 

F. Supp.2d 734, 737-38 (S.D. Tex. 1998). While a complaint need not contain detailed factual 

allegations to survive a 12(b)(6) motion, a plaintiff’s “obligation to provide the ‘grounds’ of his 

‘entitlement to relief’ requires more than labels and conclusions, and a formulaic recitation of the 

elements of a cause of action will not do.” Twombly, 550 U.S. at 555. Conclusory allegations or 

legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to 

dismiss. Fernandez–Montes v. Allied Pilots Ass’n, 987 F.2d 278, 284 (5th Cir.1993); see also 

Great Plains Trust Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 313 (5th Cir. 2002). 

As explained herein, Plaintiffs fail to allege “enough facts to state a claim to relief that is plausible 

on its face” and “raise a right to relief above the speculative level.” Id; Nationwide BiWeekly 

Admin. Inc. v. Belo Corp., 512 F.3d 137, 140 (5th Cir. 2007).

7. When ruling on a rule 12 (b)(6) motion, courts generally examine only the contents of the 

pleadings and any attachments thereto. Brand Coupon Network, LLC v. Catalina Mkting Corp., 

748 F.3d 631, 635 (5th Cir. 2014). However, they may also consider documents attached to either 

a motion to dismiss or an opposition to that motion when the documents are referred to in the 

pleadings and are central to a plaintiff’s claims. Id. 

8. The Court can determine whether the Plaintiff has alleged the violation of a constitutional 

right. Hale v. Townley, 45 F.2d 914, 917 (5th Cir. 1995). 

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9. Plaintiffs requests as an afterthought in their “Prayer for Relief” a Declaratory Judgment 

that Leon Valley’s policies are unconstitutional. Plaintiffs fail to assert a request for declaratory 

relief in the body of its Complaint; fail to identify what “Leon Valley’s policies” they are referring 

to; and fail to establish what constitutional violations they are referencing. Plaintiff’s conclusory 

claims on unidentified policies do not meet the requisite standard to impose constitutional liability. 

Therefore, as cited above, conclusory allegations or legal conclusions masquerading as factual 

conclusions will not suffice to prevent a motion to dismiss. Fernandez–Montes at 284; Great 

Plains Trust Co. at 313. 

IV.

LEON VALLEY AND KIRBY POLICE DEPARTMENTS 

LACK CAPACITY TO BE SUED 

10. Defendants, Leon Valley Police Department and Kirby Police Department, move to 

dismiss the claims against them because they have no separate legal existence and cannot be sued 

as a matter of law. In Texas, a municipal police department or a county’s sheriff’s department is 

not a legal entity capable of being sued. Darby v. Pasadena Police Dep’t., 939 F.2d 311, 313-14 

(5th Cir. 1991) ([I]n order for a plaintiff to sue a city department, it must enjoy a separate legal 

existence,” (citation and internal quotation marks omitted,). “Accordingly, our cases uniformly 

show that unless the true political 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. (citations omitted); see also, Acala v. Dallas County Sheriff’s Dep’t., 988 F.2d 1210 

(5th Cir. 1993) and Melton v. Dallas County Sheriff’s Dept., 39 F.3d 320 (5th Cir. 1994). Attached 

to respectively and incorporated for all purposes are the City of Leon Valley and the City of 

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Kirby’s City Charters. (See Exhibits A & B).1 The Cities of Leon Valley and Kirby are home 

rule municipalities and all power rests with the legislative body, the City Council. See, Section 

1.01 of the City of Leon Valley Charter; Sections 1.01, 2.07 of the City of Kirby Charter; and Tex. 

Local Gov’t Code Section 5.004 (Vernon 2010). Texas home rule municipalities have the full 

power of local self-government. Tex. Local Gov’t Code Section 51.072 (Vernon 2010). This 

includes the authority to organize their own police forces. Tex. Local Gov’t Code Section 341.003 

(Vernon 2010). The Leon Valley and Kirby Police Departments do not have a separate jural or 

legal existence from their respective cities. Because of this pleading failure, Plaintiffs’ lawsuit has 

not properly been filed against any party nor has it stated a claim which waives governmental 

immunity or a substantial federal law claim. As such, Plaintiffs’ lawsuit against the Leon Valley 

and the Kirby Police Departments must be dismissed with prejudice in its entirety for lack of 

subject matter jurisdiction. In addition, Defendants do not have the capacity to be sued pursuant to 

Fed. R. Civ. P. 17.

V.

IN THE ALTERNATIVE, PLAINTIFF’S CLAIMS ARE ERRONEOUSLY PREMISED 

ON A RESPONDEAT SUPERIOR LIABILITY AND THEREFORE FAILS TO STATE A 

CLAIM UNDER 42 U.S.C. 1983 FOR WHICH RELIEF CAN BE GRANTED

11. Plaintiffs’ claims against the Leon Valley Department must be dismissed, because 

Plaintiffs’ claims are erroneously premised on respondeat superior liability. Plaintiffs assert that 

the Leon Valley Police Department is liable because the individual Defendants, Chief Joseph 

Salvaggio, Officer Jim Wells, Officer Anderson, Officer Saucedo, and Officer J. Vasquez were 

employees of the Leon Valley Police Department when these officers allegedly committed the 

purported acts set forth in Plaintiffs’ Complaint. (See Plaintiffs’ Original Complaint, ¶¶ 11, 12) 

1 Defendants request the Court take judicial notice of the City of Leon Valley’s and the City of Kirby’s Charter 

provisions as public records. 

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Plaintiffs’ claims against the Kirby Police Department must also be dismissed, because Plaintiffs’ 

claims are likewise erroneously premised on respondeat superior liability. Plaintiffs assert that the 

Kirby Police Department is liable, because of the action(s) of unidentified “Kirby Police” in 

accompanying Leon Valley police officers in the execution of a no-knock warrant against Plaintiff 

Miller. 

12. It is well established that a municipality is not liable under Section 1983 liability on the 

basis of respondeat superior. Monell v. Dept. of Soc. Servs, 436 U.S. 658 (1978). The Fifth 

Circuit has emphasized that without all of the requisite elements for a Monell claim to establish 

liability, “where a court fails to adhere to the rigorous requirements of culpability (by 

policymakers) and causation, municipal liability collapses into respondeat superior liability”. 

Snyder v. Trepagnier, 142 F.3d 791, 796 (5th Cir. 1998) (quoting Bd. of County Comm.of Bryan 

Cnty. V. Brown, 520 U.S. 397, 415 (1997). (reference to policymakers added); see also, City of 

Canton v. Harris, 489 U.S. 378, 391-92 (1989).

VI.

CONCLUSION AND PRAYER

WHEREFORE, PREMISES CONSIDERED, Defendants pray the Court grant their

Motion to Dismiss and dismiss Plaintiffs’ claims against Defendants Leon Valley and Kirby Police 

Departments pursuant to FRCP 12(b)(1) and (6). Defendants further request such other and further 

relief to which they may show themselves to be justly entitled, at law and in equity.

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SIGNED this 27th day of August 2020.

Respectfully submitted,

DENTON NAVARRO ROCHA BERNAL & ZECH

A Professional Corporation

2517 N. Main Avenue

San Antonio, Texas 78212

Telephone: (210) 227-3243

Facsimile: (210) 225-4481

pbernal@rampaglaw.com

aruiz@rampagelaw.com

BY: /s/ Adolfo Ruiz 

PATRICK C. BERNAL

State Bar No. 02208750

ADOLFO RUIZ

State Bar No. 17385600

COUNSEL FOR DEFENDANTS

 LEON VALLEY AND KIRBY POLICE 

 DEPARTMENTS

CERTIFICATE OF SERVICE

This is to certify that a true and correct copy of the foregoing instrument has been served 

in accordance with the Texas Rules of Civil Procedure on this 27th day of August, 2020 to the 

following:

Solomon M. Radner E-NOTIFICATION

26700 Lahser Road, Suite 401

Southfield, Michigan 48033

Attorney for Plaintiffs 

__/s/ Adolfo Ruiz_______________________

PATRICK C. BERNAL

ADOLFO RUIZ

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