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IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

ROBERT J. ESQUIVEL,

 Plaintiff,

vs.

LOGAN EASTBURN, DPS, TROOPER 

#14720; RYAN BIBBY, DPS, TROOPER 

#14593; NICHOLAS WINGATE, DPS, 

TROOPER #13157; AND 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’ Motion for Summary Judgment 

[#60]. 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. 

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 (SAPD Officer David Kendrick and DPS 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 

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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], 

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. 

Defendants David Kendrick and SAPD subsequently filed a motion to dismiss, and the 

Court granted the motion on October 7, 2020, dismissing all of Plaintiff’s claims against these 

Defendants. There were issues related to service of the other four Defendants—DPS and 

Troopers Eastburn, Bibby, and Windgate (hereinafter “the Trooper Defendants”). After service 

was finally effectuated, these Defendants filed motions to dismiss, which the Court granted in 

part, dismissing Plaintiff’s Section 1983 claims against DPS and Section 1983 claims against the 

Trooper Defendants in their official capacities. As to the Trooper Defendants in their individual 

capacities, the Court dismissed Plaintiff’s Section 1983 claims of false arrest and malicious 

prosecution. 

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The following claims remain pending: (1) Plaintiff’s Fourth Amendment excessive force 

and unlawful search and seizure claims against the Trooper Defendants in their individual 

capacity; (2) Plaintiff’s due process claims against the Trooper Defendants in their individual 

capacity; (3) Plaintiff’s Eighth Amendment claims (which, because Plaintiff was a pretrial 

detainee, should be construed under the Fourteenth Amendment) against the Trooper Defendants

in their individual capacity; (4) Plaintiff’s First Amendment claim against the Trooper 

Defendants in their individual capacity; (5) Plaintiff’s tort claims of malicious prosecution, 

intentional infliction of emotional distress, and defamation and slander against DPS and the 

Trooper Defendants. DPS and the Trooper Defendants now move for summary judgment on all 

remaining claims. 

II. Legal Standard

Summary judgment is appropriate under Rule 56 of the Federal Rules of Civil Procedure

only “if the pleadings, depositions, answers to interrogatories, and admissions on file, together

with the affidavits, if any, show that there is no genuine issue as to any material fact and that the

moving party is entitled to a judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S.

317, 322 (1986); see also Fed. R. Civ. P. 56(c). A dispute is genuine only if the evidence is such

that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986). 

The party moving for summary judgment bears the initial burden of “informing the

district court of the basis for its motion, and identifying those portions of [the record] which it

believes demonstrate the absence of a genuine issue of material fact.” Catrett, 477 U.S. at 323. 

Once the movant carries its burden, the burden shifts to the nonmoving party to establish the

existence of a genuine issue for trial. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp.,

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475 U.S. 574, 587 (1986); Wise v. E.I. Dupont de Nemours & Co., 58 F.3d 193, 195 (5th Cir.

1995). The non-movant must respond to the motion by setting forth particular facts indicating

that there is a genuine issue for trial. Miss. River Basin Alliance v. Westphal, 230 F.3d 170, 174

(5th Cir. 2000). The parties may satisfy their respective burdens by tendering depositions,

affidavits, and other competent evidence. Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir.

1992). The Court will view the summary judgment evidence in the light most favorable to the

non-movant. Rosado v. Deters, 5 F.3d 119, 123 (5th Cir. 1993). 

“After the non-movant has been given the opportunity to raise a genuine factual issue, if

no reasonable juror could find for the non-movant, summary judgment will be granted.” 

Westphal, 230 F.3d at 174. However, if the party moving for summary judgment fails to satisfy

its initial burden of demonstrating the absence of a genuine issue of material fact, the motion

must be denied, regardless of the non-movant’s response. Little v. Liquid Air Corp., 37 F.3d

1069, 1075 (5th Cir. 1994) (en banc).

The Fifth Circuit has held that a plaintiff’s pro se status does not relieve her of the duty to

properly support a response to motions for summary judgment. Martin v. Harrison County Jail,

975 F.2d 192, 193 (5th Cir. 1992). The Rules of Civil Procedure and this Court’s Local Rules

are sufficient to apprise a pro se plaintiff of the potential consequences of failing to submit

competent summary judgment proof, such as opposing declarations or affidavits; no additional

notice is required. Id. 

Plaintiff has not filed a response in opposition to Defendants’ motion for summary

judgment, and his deadline to do so has expired. See W.D. Tex. Loc. R. CV-7(d) (responses to

motions other than case management and discovery motions due within 14 days of the motion’s

filing). However, Plaintiff did file a document within the 14-day response period [#62], which

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he states is a response to the undersigned’s order denying Plaintiff’s motion to compel discovery

[#59]. This document expresses Plaintiff’s disagreement with that order and the undersigned’s

general handling of this case, questions the undersigned’s authority to preside over this case as a

United States Magistrate Judge,1demands the removal of the undersigned from her office, and

requests the appointment of counsel due to his inability to understand the proceedings and

effectively prosecute his case and questions about his mental competency. To the extent this

filing may be construed as an appeal of the denial of Plaintiff’s motion to compel, the District

Court may consider the appeal alongside this report and recommendation. 

As Plaintiff has not filed a response in opposition to the motion for summary judgment

and has not submitted any opposing declarations or affidavits or any other evidence, the

summary judgment record recited herein consists solely of the evidence proffered by Defendants. 

Pursuant to this Court’s Local Rules, if there is no response filed within the time period

prescribed by the rules, the court may grant the motion as unopposed. W.D. Tex. Loc. R. CV7(d). However, because Defendants’ motion is a dispositive motion, the undersigned will

nevertheless evaluate the motion on its merits. 

1

 The undersigned has authority to issue orders on all motions that do not involve a 

decision on the merits of any claim of Plaintiff or defense of Defendants pursuant to 28 U.S.C. § 

636(b)(1)(A). The parties’ unanimous consent to the jurisdiction of a United States Magistrate 

Judge is required for the undersigned to issue orders and make decisions on any motion 

involving a decision on the merits of a claim or defense in this case or to preside over a trial. See 

id. at §§ 636(b)(1)(B), (c). Because the parties have not consented to the jurisdiction of a United 

States Magistrate Judge in this case, the undersigned is not “presiding” and only has authority to 

make a recommendation to the District Judge as to Defendants’ motion for summary judgment 

and the ultimate merits of Plaintiffs’ claims. Plaintiff may object to this recommendation as set 

forth at the end of this Order, and the District Judge, here Chief United States District Judge 

Orlando L. Garcia, will consider those objections before making a final decision in this case. 

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III. Summary Judgment Record

The summary judgment record establishes that on April 28, 2018, at approximately 12:31 

a.m., DPS Troopers Logan Eastburn and Nicholas Wingate were on patrol in San Antonio as part 

of the Violent Crimes Task Force, when they overheard radio traffic of a San Antonio Police 

Unit in pursuit of a vehicle. (DPS Use of Force Report [#60-2], at 2; DPS Vehicle Pursuit 

Report [#60-3], at 2.) The vehicle was traveling at a low speed of 20 mph, and DPS’s helicopter 

had the vehicle in sight from overhead. (DPS Use of Force Report [#60-2], at 2; DPS Vehicle 

Pursuit Report [#60-3], at 2; DPS Incident Report [#60-4], at 3.)

The vehicle pulled into a gas station on Interstate 10, and Trooper Wingate pulled in 

behind the vehicle and activated the emergency warning lights in anticipation of conducting a 

traffic stop. (DPS Use of Force Report [#60-2], at 2; DPS Vehicle Pursuit Report [#60-3], at 2.) 

The vehicle ignored the emergency lights and verbal commands of the DPS Troopers. (DPS Use 

of Force Report [#60-2], at 2; DPS Vehicle Pursuit Report [#60-3], at 2.) Trooper Eastburn then 

notified dispatch that the Troopers were in pursuit of the vehicle. (Id.) When the vehicle came 

to another stop at a red light, the Troopers initiated another traffic stop and began giving verbal 

commands. (DPS Use of Force Report [#60-2], at 2; DPS Vehicle Pursuit Report [#60-3], at 2.) 

Plaintiff placed his left hand out of the window but drove away when the light turned green, and 

Troopers Eastburn and Wingate continued to pursue the vehicle. (DPS Use of Force Report 

[#60-2], at 2; DPS Vehicle Pursuit Report [#60-3], at 2.) 

Thereafter, an unknown vehicle pulled alongside Plaintiff’s vehicle with its hazard lights 

flashing. (Supervisor Investigation [#60-2], at 11.) Eventually Plaintiff’s vehicle stopped at an 

intersection with Interstate Loop 410, and the unknown vehicle also stopped beside him. (Id.; 

DPS Use of Force Report [#60-2], at 2; DPS Vehicle Pursuit Report [#60-3], at 2.) Trooper 

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Wingate briefly spoke to the driver of the unknown vehicle, and vulgar language was shared 

between the two, before the unknown driver departed the scene. (Supervisor Investigation [#60-

2], at 11.) 

Troopers Christopher Rocha2and Ryan Bibby, other DPS Troopers on patrol that night, 

were also alerted to the pursuit of Plaintiff’s vehicle. (DPS Incident Report [#60-4], at 3.) The 

patrolling DPS helicopter advised them that the registered owner of Plaintiff’s vehicle had a 

warrant for Unauthorized Carrying of a Weapon. (Id.) Troopers Rocha and Bibby attempted to 

get ahead of the vehicle to deploy spikes and stop Plaintiff from fleeing any further, but then 

noticed other Troopers had stopped Plaintiff and were attempting to take him into custody, so put 

the spikes back in their box and ran towards the vehicle to assist. (Id.) 

Troopers Eastburn and Wingate, as well as Troopers Rocha and Bibby, surrounded 

Plaintiff’s vehicle with weapons drawn. (Id.; Use of Force Report [#60-2], at 2.) Trooper 

Eastburn made a passenger-side approach to the vehicle and discovered Plaintiff as the vehicle’s 

sole occupant; Trooper Jason Norton3 was at the driver-side window. (DPS Use of Force Report 

[#60-2], at 2; DPS Vehicle Pursuit Report [#60-3], at 2.) The vehicle doors were locked, and 

Plaintiff refused to get out of the vehicle or put the vehicle’s transmission into park. (DPS Use 

of Force Report [#60-2], at 2; DPS Vehicle Pursuit Report [#60-3], at 2.) Trooper Eastburn 

moved to the driver-side window, and Trooper Bibby—after advising the other Troopers of his 

intent to do so—used his baton to strike the passenger-side window in order to gain access to the 

door lock. (DPS Use of Force Report [#60-2], at 2; DPS Vehicle Pursuit Report [#60-3], at 2; 

DPS Incident Report [#60-4], at 3.) Trooper Wingate then reached into the driver-side window 

and opened the door. (DPS Use of Force Report [#60-2], at 2; DPS Vehicle Pursuit Report [#60-

2

 Trooper Rocha was not named as a Defendant in this case. 

3

 Trooper Norton was not named as a Defendant in this case. 

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3], at 2.) Plaintiff still refused to exit the vehicle after numerous commands to do so, so Trooper 

Eastburn unbuckled Plaintiff and pulled him out of the vehicle, where he and Troopers Norton

and Bibby placed him on the ground and in handcuffs. (DPS Use of Force Report [#60-2], at 2; 

DPS Vehicle Pursuit Report [#60-3], at 2; DPS Incident Report [#60-4], at 3.) Trooper Eastburn 

double locked the handcuffs and searched the driver for weapons; none were found. (DPS Use 

of Force Report [#60-2], at 2; DPS Vehicle Pursuit Report [#60-3], at 2.) 

During his detention, Plaintiff made several statements about having a microchip in his 

head and trying to draw attention to himself either by causing a chase or attacking a school. 

(DPS Use of Force Report [#60-2], at 2; DPS Vehicle Pursuit Report [#60-3], at 2.) Footage 

from Trooper Bibby’s bodycam recorded the DPS Troopers discussing their concerns that 

Plaintiff was either suffering from drug intoxication or from mental illness, as he exhibited signs 

of paranoia and a fear of retaliation due to the large amount of evidence he believed he had in his 

possession of various illegal activities. (Bodycam Video [#60-5].) The bodycam footage 

depicted Plaintiff as cooperative once he was handcuffed and the DPS Troopers conducting a 

thorough search of Plaintiff’s vehicle. (Id.) 

SAPD Officer Kendrick thereafter arrived on the scene and took custody of Plaintiff, as 

he was the officer originally initiating the pursuit. (DPS Use of Force Report [#60-2], at 2; DPS 

Vehicle Pursuit Report [#60-3], at 2.) On the use-of-force report, Trooper Eastburn noted that 

there were no visible injuries to Plaintiff as a result of the incident. (DPS Use of Force Report 

[#60-2], at 3; DPS Vehicle Pursuit Report [#60-3], at 3.) Additionally, the footage from Trooper 

Bibby’s bodycam does not depict any injuries to Plaintiff as a result of his detention; neither did 

it depict any use-of-force incidents after Plaintiff’s initial detention. (Bodycam Video [#60-5].) 

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IV. Analysis

Defendants’ motion for summary judgment raises three issues to be resolved on the 

summary judgment record: (1) whether Plaintiff has overcome the Trooper Defendants’ 

entitlement to qualified immunity as to Plaintiffs’ Section 1983 claims arising under the First, 

Fourth, Eighth, and Fourteenth Amendments; (2) whether Plaintiff has proven a violation of a 

constitutional right entitling him to relief under Section 1983; and (3) whether Plaintiff’s claims 

brought pursuant to the Texas Tort Claims Act are barred. The undersigned addresses each of 

these argument in turn.

A. Plaintiff has failed to overcome the Trooper Defendants’ entitlement to qualified 

immunity on all of his claims arising under Section 1983. 

The undersigned has construed Plaintiff’s pleadings as asserting the following 

constitutional claims against the Trooper Defendants in their individual capacity: (1) excessive 

force and unlawful search and seizure in violation of the Fourth Amendment; (2) deprivation of 

due process in violation of the Fourteenth Amendment; (3) cruel and unusual punishment in 

violation of the Fourteenth Amendment; and (4) restriction on free speech in violation of the 

First Amendment. The Trooper Defendants have asserted the defense of qualified immunity as 

to all of these claims. 

Qualified Immunity Standard. In resolving questions of qualified immunity at 

summary judgment, courts engage in a two-pronged inquiry. Ashcroft v. al-Kidd, 563 U.S. 731, 

735 (2011). The first inquiry asks whether the facts show the officer’s conduct violation a 

federal statutory or constitutional right. Saucier v. Katz, 533 U.S. 194, 201 (2001). The second 

inquiry is whether that the right in question was “clearly established” at the time of the 

challenged conduct. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Lower courts have 

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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). 

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, 533 U.S. at 201). 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, 

577 U.S. 7, 12 (2015). The dispositive question is “whether the violative nature of particular 

conduct is clearly established.” al-Kidd, 563 U.S. at 742. However, there need not be a specific 

precedent on point that presents identical or even factually analogous circumstances for a 

defendant to be on notice that their conduct violates the Constitution. Taylor v. Riojas, --U.S.--, 

141 S. Ct. 52, 53–54 (2020) (per curiam) (citing Hope v. Peltzer, 536 U.S. 730, 741 (2002) (“a 

general constitutional rule already identified in the decisional law may apply with obvious clarity 

to the specific conduct in question”)). 

“A good-faith assertion of qualified immunity alters the usual summary judgment burden 

of proof, shifting it to the plaintiff to show that the defense is not available.” Cass v. City of 

Abilene, 814 F.3d 721, 728 (5th Cir. 2016) (internal quotation and citation omitted). “The 

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plaintiff must rebut the defense by establishing that the official’s allegedly wrongful conduct 

violated clearly established law and that genuine issues of material fact exist regarding the 

reasonableness of the official’s conduct.” Gates v. Tex. Dep’t of Protective & Regulatory Servs., 

537 F.3d 404, 419 (5th Cir. 2008). “To negate a defense of qualified immunity and avoid 

summary judgment, the plaintiff need not present absolute proof, but must offer more than mere 

allegations.” Manis v. Lawson, 585 F.3d 839, 843 (5th Cir. 2009) (internal quotations and 

citations omitted). Even viewing all the evidence in the light most favorable to Plaintiff, Plaintiff 

has failed to satisfy his burden to rebut the Trooper Defendants’ assertion of qualified immunity 

as to each of Plaintiff’s constitutional claims. 

Excessive Force. To prevail on his claim of excessive force under the Fourth 

Amendment, Plaintiff must prove that he suffered an injury, which resulted directly and only 

from a use of force that was clearly excessive, and the excessiveness was clearly unreasonable. 

Ontiveros v. City of Rosenberg, Tex., 564 F.3d 379, 382 (5th Cir. 2009). This Court judges the 

reasonableness of a use of force from the perspective of a reasonable officer on the scene of the 

incident, in light of the facts and circumstances confronting the officer, without regard to the 

officer’s underlying intent or motivation. Graham v. Connor, 490 U.S. 386, 396–97 (1989). 

There are no facts before the Court from which a factfinder could infer or conclude that 

Plaintiff suffered an injury as a result from the use of force on his vehicle or person. All of the 

DPS reports in evidence state that there was no injury to Plaintiff as a result of his detention and 

arrest or the forced entry into his vehicle. (DPS Use of Force Report [#60-2], at 3; DPS Vehicle 

Pursuit Report [#60-3], at 3.) These assertions are confirmed by the Trooper Bibby’s bodycam 

video footage, which depicts Plaintiff being taken to the ground and handcuffed and then 

standing and conversing with the Troopers while his vehicle was searched without any 

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expression of physical pain or visible injuries. (Bodycam Video [#60-5].) The lack of any injury 

to Plaintiff is fatal to his Fourth Amendment excessive force claim. See Williams v. Bramer, 180 

F.3d 699, 703 (5th Cir. 1999) (requiring injury underlying excessive force claim to be more than 

de minimus). 

Furthermore, the undersigned agrees with the Trooper Defendants that their use of force 

to obtain Plaintiff’s compliance was not unreasonable under the circumstances. The summary 

judgment evidence establishes that Plaintiff ignored emergency lights and verbal commands to 

stop his vehicle and pull over or to exit the vehicle once stopped and that the officers were on 

notice of a pending weapons charge against Plaintiff. The Fifth Circuit has held, in the context

of much more forceful officer conduct, that it is not constitutionally unreasonable in light of 

clearly established law to take someone to the ground if the person is resisting arrest and there is 

a concern for officer safety. Griggs v. Brewer, 841 F.3d 308, 313–14 (5th Cir. 2016). 

Finally, as to the damage to Plaintiff’s vehicle, Plaintiff has failed to raise a fact issue 

from which a reasonable factfinder could conclude that the damage was excessive or 

unnecessary so as to itself violate the Fourth Amendment. See United States v. Ramirez, 523 

U.S. 65, 71 (1998). Plaintiff alleges that his window was broken for an unknown reason and that 

his cell phone was thrown to the ground during the stop. (More Definite Statement [#7], at 5.) 

The bodycam footage and DPS reports collectively refute this assertion, depicting the damage to 

property as limited to the crashed window to gain access to Plaintiff’s vehicle. (Bodycam Video 

[#60-5].) There is no footage of any damage to Plaintiff’s cell phone; rather, officers are 

depicted briefly handling Plaintiff’s cell phone found in the passenger seat of the vehicle. (Id.) 

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In summary, Plaintiff has failed to raise a genuine dispute of material fact as to his 

alleged excessive force claim and has failed to rebut the Trooper Defendants’ qualified immunity 

as to this claim. 

Unreasonable Search and Seizure. Plaintiff has also failed to raise a fact issue as to his 

unreasonable search and seizure claim. The summary judgment evidence demonstrates that the 

Trooper Defendants were responding to an ongoing vehicle pursuit, and, at the time of the stop, 

Plaintiff had repeatedly disregarded officer commands. (DPS Use of Force Report [#60-2], at 2; 

DPS Vehicle Pursuit Report [#60-3], at 2.) Additionally, the Trooper Defendants believed they 

were responding to an outstanding warrant on a charge of Unauthorized Carrying of a Weapon. 

(DPS Incident Report [#60-4], at 3.) Plaintiff has not rebutted Defendants’ summary judgment 

evidence, which establishes that the traffic stop and subsequent search of Plaintiff’s vehicle were 

reasonable.

Courts determine the reasonableness of an investigative stop by examining whether the 

stop was justified at its inception and whether the officer’s actions were reasonably related in 

scope to the circumstances justifying the stop. United States v. Rains, 615 F.3d 589, 594 (5th 

Cir. 2010) (citing Terry v. Ohio, 392 U.S. 1 (1968)). There is no evidence from which a 

reasonable factfinder could conclude that the Trooper Defendants’ actions in stopping, securing, 

and searching Plaintiff and his vehicle were unreasonable here. Plaintiff has therefore failed to 

raise a genuine dispute of material fact as to his alleged excessive force claim and has failed to 

rebut the Trooper Defendants’ qualified immunity as to this claim. 

Due Process. Plaintiff’s claim that the officers violated his due process rights when they 

“failed to properly investigate” during the traffic stop. (More Definite Statement [#7], at 12.) 

The Trooper Defendants are also entitled to summary judgment on this claim. Insofar as 

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Plaintiff is attempting to assert a substantive due process violation based on the scope of the 

search and seizure of his vehicle and the force used during the traffic stop, his complaint must be 

brought under the Fourth Amendment. See Graham, 490 U.S. at 395 (Where a particular 

Amendment “provides an explicit textual source of constitutional protection” against a particular 

sort of government behavior, “that Amendment, not the more generalized notion of ‘substantive 

due process,’ must be the guide for analyzing these claims.”). The Fourth Amendment 

specifically protects Plaintiff from unreasonable searches and seizures and excessive force, and 

his substantive due process claim must be dismissed. 

To the extent Plaintiff is alleging a violation of procedural due process, this claim also 

fails, as “practically speaking, it cannot be that the analysis differs as between a Fourth 

Amendment violation and a procedural due process violation based on the same seizure.” Lowe 

v. Dallas Police Dep’t, No. 3:17-704-G-BN, 2017 WL 4863076, at *5 (N.D. Tex. Oct. 17, 2017). 

These claims fail as a matter of law, and Plaintiff has failed to rebut the Trooper Defendants’ 

qualified immunity as to any alleged due process violation.

Cruel and Unusual Punishment. Plaintiff’s allegations that the Trooper Defendants 

violated his Eighth Amendment right to be free from cruel and unusual punishment must be 

construed under the Fourteenth Amendment, as he is not a convicted prisoner. See Ingraham v. 

Wright, 430 U.S. 651, 671–72 (1977); Morin v. Caire, 77 F.3d 116, 120 (5th Cir. 1996). The 

summary judgment record does not provide any basis to conclude that the Trooper Defendants 

subjected Plaintiff to cruel and unusual punishment, and Plaintiff has not provided the Court with 

any factual basis for this claim. Plaintiff’s More Definite Statement alleges that he was detained 

in the Bexar County Jail system after being arrested by SAPD Officer Kendrick, not the Trooper 

Defendants. (More Definite Statement [#7], at 7–8.) There are no facts before the Court 

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regarding any actions by the Trooper Defendants separate from the excessive force allegations 

already evaluated under the Fourth Amendment standard. This claim fails as a matter of law, 

and the Trooper Defendants are entitled to qualified immunity as to this claim. 

First Amendment. Plaintiff claims he was engaged in a peaceful protest and assembly 

with 50 other individuals through a social media platform when he was stopped by the Trooper 

Defendants. (More Definite Statement, at 10.) Plaintiff alleges that he was prevented from 

protesting and continuing his free speech due to his arrest. These allegations are frivolous in 

light of the undisputed summary judgment record, which establishes that Plaintiff was stopped, 

detained, and ultimately arrested while driving alone at approximately 12:30 a.m. at a gas station 

along a major interstate. Plaintiff has not provided the Court with any competent summary 

judgment evidence that implicates the First Amendment, and there is nothing in the summary 

judgment record from which a factfinder could conclude that Plaintiff’s First Amendment rights 

were infringed by the Trooper Defendants’ actions. The Trooper Defendants are entitled to 

summary judgment on this claim.

B. Plaintiff’s tort claims against DPS and the Trooper Defendants are barred by 

governmental immunity. 

Plaintiff asserts the tort claims of malicious prosecution, intentional infliction of 

emotional distress, and defamation and slander against DPS and the Trooper Defendants. 

Defendants argue these claims are barred because they do not fall under the Texas Tort Claims 

Act’s limited waiver of immunity. 

In Texas, a governmental unit, like the Texas Department of Public Safety, is immune 

from tort liability unless the Legislature has waived immunity. Dallas County Mental Health & 

Mental Retardation v. Bossley, 968 S.W.2d 339, 341 (Tex. 1998). This immunity from suit is 

jurisdictional in nature. Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999). 

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The Texas Tort Claims Act addresses the waiver of governmental immunity for the State 

of Texas and its governmental units. See Tex. Civ. Prac. & Rem. Code §§ 101.001, et seq. As it 

pertains to this case, the Act provides:

A governmental unit in the state is liable for:

(1) property damage, personal injury, and death proximately caused by the 

wrongful act or omission or the negligence of an employee acting within 

his scope of employment if:

(A) the property damage, personal injury, or death arises from the 

operation or use of a motor-driven vehicle or motor-driven equipment; 

and

(B) the employee would be personally liable to the claimant according 

to Texas law . . . .

Id. at § 101.021. Pursuant to the express terms of this limited waiver of immunity, DPS is not 

liable for a personal injury proximately caused by a negligent employee unless the injury “arises 

from the operation or use of a motor-driven vehicle or motor-driven equipment” by the 

employee. Id. No such allegations are at issue here.

Additionally, the Texas Tort Claims Act specifically exempts intentional tort claims such 

as false imprisonment or intentional infliction of emotional distress from the Act’s limited 

waiver of immunity. Id. at §101.057. Accordingly, Plaintiff’s tort claims against DPS (all of 

which are intentional torts) arising out of excessive force allegations during his detention and 

ultimate arrest are barred by the intentional tort exception to Texas’s waiver of immunity.

The Tort Claims Act also has the effect of extending immunity to government employees. 

Subsection 101.106(f) of the Act states:

If a suit is filed against an employee of a governmental unit based on 

conduct within the general scope of that employee’s employment and if it 

could have been brought under this chapter against the governmental unit, 

the suit is considered to be against the employee in the employee’s official 

capacity only. On the employee’s motion, the suit against the employee 

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shall be dismissed unless the plaintiff files amended pleadings dismissing 

the employee and naming the governmental unit as defendant on or before 

the 30th day after the date the motion is filed.

Id. at § 101.106(f). Thus, for subsection 101.106(f) to apply to a suit against a government 

employee in his individual capacity, two conditions must be met: (1) the conduct at issue must 

have been within the general scope of her employment; and (2) the suit could have been brought 

“under this chapter” against the governmental unit. Id. The Texas Supreme Court has construed 

the second condition to cover any claim “in tort and not under another statute that independently 

waives immunity.” Franka v. Velasquez, 332 S.W.3d 367, 381 (Tex. 2011). In light of this 

construction, an intentional tort claim “could have been brought” against a governmental unit 

under the Tort Claims Act even though the Act does not waive the unit’s immunity for such 

claims. See id. at 379–80. Because the conduct at issue in this case falls within the scope of the 

Trooper Defendants’ employment, they are also immune from suit under the Texas Tort Claims 

Act and are entitled to summary judgment on Plaintiff’s tort claims. 

V. Conclusion and Recommendation

Having considered Defendants’ motion for summary judgment, the uncontested summary 

judgment record, and the governing law, the undersigned recommends that Defendants’ Motion 

for Summary Judgment [#60] be GRANTED as to all remaining claims in this case. 

VI. 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 

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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 

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 8th day of June, 2022.

ELIZABETH S. ("BETSY") CHESTNEY

UNITED STATES MAGISTRATE JUDGE

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