Leon Valley’s & Kirby’s 12(b)(1)(6) MTD Plaintiffs’ 2nd Amended 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 CITY OF LEON VALLEY’S AND CITY OF KIRBY’S

MOTION TO DISMISS PLAINTIFFS’ SECOND AMENDED COMPLAINT

TO THE HONORABLE U.S. DISTRICT COURT:

DEFENDANTS CITY OF LEON VALLEY (“Leon Valley) and the CITY OF KIRBY

(“Kirby”) (collectively referred to herein as “Defendants”) file this this Motion to Dismiss in 

response to Plaintiffs’ Second Amended Complaint [Dkt. 31] as authorized by the Federal Rules 

of Civil Procedure 12(b)(1) and (6). Defendants respectfully submit the following:

I.

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PROCEDURAL HISTORY 

1. On May 28, 2020, Plaintiffs filed an Original Complaint and Demand for Jury Trial, 

alleging Defendants violated Plaintiffs’ rights under 42 U.S.C.A. §1983 and the 1st and 4th

Amendments to the U.S. Constitution, and state law claims including conspiracy and failure to 

intervene. [Dkt 1]

2. Defendants’ Chief Salvaggio and Officers Wells, Anderson, Saucedo, and Vasquez filed 

their Motion to Dismiss on June 26, 2020. [Dkt 5] 

3. Defendants’ Chief Salvaggio and Officers Wells, Anderson, Saucedo, and Vasquez’ filed 

an Amended Motion to Dismiss on July 6, 2020. [Dkt 8]

4. On July 20, 2020, Plaintiffs filed their Response in Opposition to Defendants’ Amended 

Motion to Dismiss. [Dkt 9] 

5. Defendants’ Chief Salvaggio and Officers Wells, Anderson, Saucedo, and Vasquez filed a 

Reply in Support of their Amended Motion to Dismiss on July 24, 2020. [Dkt 10] 

6. Defendants’ Leon Valley Police Department and Kirby Police Department’s Motion to 

Dismiss Plaintiffs’ Original Complaint was filed on August 27, 2020. [Dkt 11]

7. September 10, 2020, Plaintiffs filed an amended Complaint1 and Demand for Jury Trial.

[Dkt 13].

8. Defendants City of Leon Valley Police Officers Brooks, King, Munoz and Rivers filed a 

Motion to Dismiss on November 13, 2020. [Dkt 16]

9. On November 23, 2020, Stipulation for Extension of Time for Plaintiffs to Respond to 

Individual Defendants’ Motion to Dismiss Dkt 16 was filed. [Dkt 17]

1 Plaintiff did not reference Dkt. 13 as a “First Amended” Complaint. To avoid confusion, Defendants referred to 

Dkt. 13 as Plaintiffs’ Second Complaint. (Docket sheet reference is “Amended Complaint”). 

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10. Plaintiffs filed a Response in Opposition to Individual Defendants’ Motion to Dismiss on 

December 11, 2020. [Dkt 18]

11. Defendants City of Leon Valley and the City of Kirby filed a Motion to Dismiss Plaintiffs’ 

Second Complaint on December 14, 2020. [Dkt 19] 

12. On December 23, 2020, Defendants City of Leon Valley Police Officers Brooks, King, 

Munoz, and Rivera filed a Reply in Support of their Motion to Dismiss. [Dkt 20]

13. Plaintiffs filed a Response in Opposition to City Defendants’ Motion to Dismiss on 

December 28, 2020. [Dkt 21]

14. Defendants City of Leon Valley and City of Kirby filed a Reply to Plaintiffs’ Response to 

Defendants’ Motion to Dismiss Plaintiffs’ Second Complaint. [Dkt 22]

15. On February 4, 2021, Solomon M. Radner filed a Motion to Withdraw as Counsel for 

Plaintiffs. [Dkt 24]

16. On March 4, 2021, Judge Jason K. Pulliam entered a text order mooting [Dkt 8] Individual 

Defendant’s Motion to Dismiss in light of the filing of Plaintiffs’ Second Complaint [Dkt 13]. The 

text order also mooted [Dkt 11] City of Kirby and City of Leon Valley’s Police Departments’ 

Motion to Dismiss because Kirby Police Department and Leon Valley Police Department are not 

proper defendants under Section 1983. 

17. Brandon J. Grable filed a Notice of Entry of Appearance as Counsel on May 5, 2021.

[Dkt 26]

18. On August 6, 2021, the Court entered a Memorandum Opinion and Order [Dkt. 29] 

granting in part and denying in part Individual Defendant’s Motion to Dismiss [Dkt. 16] and denied 

City Defendants’ Motion to Dismiss without prejudice [Dkt. 19], to refile against Plaintiffs’ 

Second Amended Complaint [Dkt. 31] 

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19. Plaintiffs filed a Second Amended Complaint and Demand for Jury Trial on August 19, 

2021. [Dkt 31]

II.

NATURE OF THE LAWSUIT/FACTUAL ALLEGATIONS

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

asserting Failure to Intervene, Conspiracy, and First and Fourth Amendment violations to the 

United States Constitution.

21. 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. 31, ¶ 28]. 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. 

22. On May 28, 2020, Plaintiffs filed their original Complaint and Demand for Jury Trial [Dkt. 

1] against individually named defendants and the Leon Valley Police Department and the City of 

Kirby Police Department. On August 27, 2020, the Leon Valley and Kirby Police Departments 

filed their 12 (b) (1)(6) Motion to Dismiss because the Leon Valley and Kirby Police Departments 

have no separate legal existence and cannot be sued as a matter of law. [Dkt. 11]. 

23. On September 10, 2020, Plaintiffs filed another Complaint and Demand for Jury Trial, this 

time to include additional police officers and the municipalities of Leon Valley and Kirby as party 

Defendants. [Dkt. 13]. 

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24. Defendants sought dismissal of Plaintiffs’ Second Complaint [Dkt. 13] for lack of subject 

matter jurisdiction (Standing) and failure to state a claim upon which relief can be granted, 

pursuant to FRCP 12 (b) (1) and (6). [Dkt. 19]. 

25. On August 6, 2021, the Court entered a Memorandum Opinion and Order granting in part 

and denying in part Individual Defendants Motion to Dismiss and granted Plaintiffs leave to amend 

their Complaint on or before August 20, 2021. [Dkt. 30]. Within the same Order, the Court denied 

Defendants City of Leon Valley’s and the City of Kirby’s Motion to Dismiss [Dkt.19] without 

prejudice to refiling against Plaintiffs’ Second Amended Complaint.

26. On August 19, 2021, Plaintiffs filed their Second Amended Complaint and Demand for 

Jury Trial. [Dkt. 31]. 

III.

ARGUMENTS AND AUTHORITIES

A. Standing under 12(b)(1)

27. 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. In the instant case, Plaintiffs cannot sustain a 

deprivation of a constitutional or other federally protected right as a result of some official policy, 

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practice or custom of either the City of Olmos Park or the City of Kirby. 

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

28. 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 

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)).

29. 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 

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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).

30. 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. 

31. The Court can determine whether Plaintiffs allege a violation of a constitutional right. Hale 

v. Townley, 45 F.2d 914, 917 (5th Cir. 1995). Plaintiffs’ conclusory claims on unidentified policies 

do not meet the requisite standard to impose constitutional liability. 

32. Plaintiffs’ request 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 “Leon Valley’s policies” to which they refer; 

and fail to establish the constitutional violations they reference. Plaintiffs’ conclusory claims on 

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

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. 

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IV.

PLAINTIFFS CANNOT PROVIDE SUFFICIENT EVIDENCE OF A POLICY,

PRACTICE OR CUSTOM

33. To recover a judgment against a city under Section 1983, a plaintiff must allege and 

establish that he sustained a deprivation of a constitutional or other federally protected right as a 

result of some official policy, practice or custom of the governmental entity. Monell v. Department 

of Social Services, 436 U.S. 658, 691-94 (1978). Plaintiffs assert in their Second Amended 

Complaint that Defendants’ unlawful policies and the cities’ failure to train its police officers were 

the direct and proximate cause of Plaintiffs’ damages and injuries, which resulted in the 

Constitutional violations against Plaintiffs. [Dkt. 31, ¶140]. 

34. In order for a municipality to be liable for its policies, practices, or customs, Plaintiff must 

sufficiently plead that “either (1) that a policy itself violated federal law or authorized or directed 

the deprivation of federal rights or (2) that a policy was adopted or maintained by the 

municipality’s policymakers with ‘deliberate indifference’ as to its known or obvious 

consequences...a showing of simple or even heightened negligence will not suffice.’” Board of 

County Comm’rs of Bryan County v. Brown, 520 U.S. 397, 410 (1997). In a §1983 suit against a 

city, the claim must be based upon the implementation or execution of a policy or custom which 

was officially adopted by the City. Monell holds that a governmental entity can be found liable 

under Section 1983 only if the entity itself causes the constitutional violation at issue. Monell, 

436 U.S. at 690-91. Thus, Plaintiffs must allege with specificity and particularity that their

claims are based on the City’s official policy, not the policy of an individual official or officer. 

Bennett v. City of Slidell, 728 F.2d 762, 769 (5th Cir.1984). 

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35. Plaintiffs do not plead that the implementation or execution of a policy was officially

adopted by the City. Plaintiffs generally allege in their Second Amended Complaint the 

Defendants’ policies, practices and/or customs by failing to: (1) adequately supervise and train 

their officers by, “failing to adequately discourage further constitutional violations on the part of 

its officers”; (2) “properly and adequately monitor and discipline it officers, including individual 

Defendants”; and (3) “adequately and properly investigate citizen complaints of police 

misconduct. . . .” and that Defendants, “acted with deliberate indifference to the constitutional 

rights of the Plaintiffs” [Dkt. 31, ¶140]. Plaintiffs further generally assert that Defendants are, 

“directly responsible for the individual Defendants acting the way they did as outlined in this 

lawsuit.”[Dkt. 31, ¶141]. Plaintiffs make the conclusory allegation that the Defendants’ unwritten 

policies demonstrates deliberate indifference to the constitutional rights of the Plaintiffs. [Dkt. 31, 

¶142].

36. Plaintiffs’ general and conclusory allegations are not sufficient to overcome Defendants’ 

Motion to Dismiss. Plaintiffs must plead specific facts that their alleged injury resulted from a 

permanent and well-settled practice or custom of the City. Fraire v. City of Arlington, 957 F 2d 

1268, 1278 (5th Cir. 1992). In Spiller v. City of Tx. City, Police Dep’t, 130 F.3d 162, 167 (5th 

Cir. 1997), the arrestee alleged the officer who effected arrest without probable cause “was acting 

in compliance with the municipality’s customs, practices or procedures. The Fifth Circuit held that 

an arrestee’s conclusory allegations were insufficient to allege municipal liability under §1983. Id.

at 164. 

A. Plaintiffs have not plead that the alleged policy was adopted or maintained by the 

municipality’s policymakers.

37. Plaintiffs must sufficiently plead that the alleged policy or custom was adopted or 

maintained by the municipality’s policymakers who have either actual or constructive knowledge 

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of the alleged policy, practice, or custom. Brown, 520 U.S. at 410; Piotrowski v. City of Houston, 

237 F.3d 567, 579 (5th Cir. 2001) (“Actual or constructive knowledge of a custom must be 

attributable to the governing body of the municipality or to an official to whom that body has 

delegated policy-making authority.”); Webster v. City of Houston, 735 F.2d 838, 842 (5th Cir. 

1984). Plaintiffs have not alleged that a policymaker for Defendants, having policy making 

authority, had actual or constructive knowledge of an alleged unconstitutional policy, practice or 

custom and acted with ‘deliberate indifference’ as to its known or obvious consequences. 

B. Plaintiffs have not plead deliberate indifference. 

38. To establish deliberate indifference, a plaintiff must plead a pattern of similar violations.

Connick v. Thompson, 563 U.S. 51, 62 (U.S. 2011). “Deliberate indifference is a stringent standard, 

requiring proof that a municipal actor disregarded a known or obvious consequence of his action.” 

Valle v. City of Houston, 613 F.3d 536, 547 (5th Cir. 2010); Brown v. Bryan Cty., OK, 219 F.3d 

450, 457 (5th Cir. 2000) (quoting Bd. of the Cty. Comm'rs of Bryan Cty., Okla. v. Brown, 520 U.S. 

397, 410 (1997)). 

40. A single incident cannot serve as the basis of liability against the government entity. 

Rodriguez v. Avita, 871 F.2d 552, 554 (5th Cir. 1989) (citing, City of Oklahoma City vs. Tuttle,

471 U.S. 808 (1985)).

C. Plaintiffs fails to state a claim for failure to train or supervise. 

39. To prevail on a “failure to train theory” a plaintiff must demonstrate: (1) that the 

municipality’s training procedures were inadequate, (2) that the municipality was deliberately 

indifferent in adopting its training policy, and (3) that the inadequate training policy directly caused 

the violations in question. World Wide Street Preachers Fellowship v. Town of Columbia, 591 F.3d 

747, 756 (5th Cir. 2009). Plaintiffs have failed to state a claim for failure to train or supervise. “In 

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order for liability to attach based on an inadequate training claim, a plaintiff must allege with 

specificity how a particular training program is defective.” Zarnow v. City of Wichita Falls Tex., 

614 F.3d 161, 170 (5th Cir. 2010) (internal quotation marks omitted) (quoting Roberts v. City of 

Shreveport, 397 F.3d 287, 293 (5th Cir. 2005)). 

40. Plaintiffs only generally allege that, “Defendant City of Leon Valley has a history of 

unlawfully training. [Dkt. 31, ¶143]. Plaintiffs make no allegation against the City of Kirby for 

having a history of unlawfully training. As to both Defendants, Plaintiffs make no allegations 

regarding a particular training program at issue, particular inadequacies in Defendant officers’ 

training, or in their specific involvement in the training. Because of this, Plaintiffs fail to 

adequately state a claim for relief as to the first element of a failure to train claim. Trammell v. 

Fruge, 868 F.3d 332, 345 (5th Cir. 2017) (plaintiff “... fails to identify any specific inadequacies 

in [the city’s] training materials or procedures which give rise to his claim”); Bryan v. City of 

Dallas, 188 F.Supp.3d 611, 621 (N.D. Tex. 2016) (dismissing a failure-to-train claim under Rule 

12(b)(6) because the plaintiffs “neither identified a particular training program nor specified how 

such a program is deficient”) as cited by Pierre v. Oginni, No. 3:17-CV-0259, 2018 WL, 4220848, 

at *3 (S.D. Tex. Sept. 5, 2018). Moreover, as to the second and third elements, Plaintiffs make no 

allegation of deliberate indifference on the part of the Defendants, who drew an inference of a 

substantial risk of harm to the Plaintiffs from an inadequate training policy.

41. Plaintiffs make conclusory allegations that Defendants’ supervision of its officers was 

deficient as it relates to excessive force, unlawful arrests, and unlawful searches and seizures, but 

do not plead that the deficient supervision reflects a ‘deliberate’ or ‘conscious’ choice by a 

municipality.” World Wide at 756 (quoting City of Canton, 489 U.S. at 389) (internal quotation 

marks omitted). 

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42. “In order to survive a motion to dismiss, a complaint must contain not only legal 

conclusions, but sufficient factual allegations to state a claim for relief that is ‘plausible on its 

face’.” Pierre v. Oginni, No. 3:17-CV-0259, 2018 WL 4220848, at *4 (citing Ashcroft v. Iqbal, 

556 U.S. 662, 678 (2009)). “... [t]hreadbare recitals of the elements of a cause of action, supported 

by mere conclusory statements” are insufficient. Id. Where, as in the instant case, Plaintiffs allege

no specific facts about a particular training program, its procedures, an alleged deficiency that 

caused the officers’ behavior or any other supporting facts, therefore, Plaintiffs’ claims do not 

survive a motion to dismiss. Id. 

V.

PLAINTIFFS’ CLAIMS ARE ERRONEOUSLY PREMISED 

ON A RESPONDEAT SUPERIOR LIABILITY 

43. Plaintiffs must plead that their claims are based on Defendants’ official policies, not the 

policy of an individual official or officer. Thus, respondeat superior or vicarious liability cannot 

be a basis for recovery under Section 1983. Monell, 436 U.S. at 691. Municipalities “... are liable 

only for their own acts and not those attributed to them by principles of respondeat superior.” 

Victoria W. v. Larpenter, 369 F.3d 475, 482 (5th Cir. 2004) (footnote omitted). 

44. Plaintiffs’ claims must be dismissed because Plaintiffs’ claims are erroneously premised 

on respondeat superior liability. Plaintiffs assert that “Defendants Leon Valley and Kirby directly 

caused the constitutional violations suffered by Plaintiffs and is [sic] liable for the damages caused 

as a result of the conduct of the individual Defendants.” Plaintiffs further assert in their Second 

Amended Complaint: “The conduct of the individual Defendant officers was a direct consequence 

of the policies and practices of Defendant City” [Dkt. 31, ¶139]. “That a plaintiff has suffered a 

deprivation of federal rights at the hands of a municipal employee will not alone permit an 

inference of municipal culpability and causation; . . .” Board of the County Com’rs of Bryan 

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County, Okla. v. Brown, 520 U.S. 397, 406-407 (1997). 

45. Individually named City of Leon Valley police officers2 were employed by the City, when 

these officers allegedly committed the purported acts set forth in Plaintiffs’ Second Amended 

Complaint. [Dkt. 31, ¶¶ 7-15].

46. Plaintiffs’ claims against the City of Kirby must also be dismissed because Plaintiffs’ 

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

City of Kirby is liable, because of the action(s) of individualJohn Doe Kirby officers who allegedly 

“participated in the search of Plaintiff’s home and use of excessive force. . .” [Dkt. 31, ¶¶ 16,]. 

47. 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).

48. For all of the aforementioned reasons, Plaintiffs have failed to plead a viable cause of action 

against Defendants under §1983. Further, since Plaintiffs fail to plead a viable cause of action 

against the City of Kirby, there were no unconstitutional policies, procedures or practices carried 

out by any unnamed Kirby police officers. 

2 Individual Defendants, Salvaggio, Jim Wells, Officer Anderson, Officer Saucedo, Officer J. Vasquez, Officer 

Brooks, Officer King, Officer Munoz, and Officer Rivera. 

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VI.

DISMISSAL OF DECLARATORY JUDGMENT ACTION IS WARRANTED

49. The Declaratory Judgment Act is an enabling act that confirms discretion on the courts 

rather than an absolute right on a litigant. Wilton v. Seven Falls Co., 515 U.S. 277, 287 (1995). 

The act confers on federal courts discretion in deciding whether to declare the rights of litigants. 

Id. at 286. The fact that a Court can enter a declaratory judgment does not mean that it should. 

Hewitt v. Helms, 482 U.S. 755, 762 (1987). The act provides no independent basis for 

jurisdiction. Medtronic Inc. v Mirowski Family Ventures L.L.C., 134 S.Ct. 843, 848 (2014).

50. The Fifth Circuit has held that to demonstrate that a case or controversy exists to meet the 

Article III standing requirement when a plaintiff is seeking injunctive or declaratory relief, the 

plaintiff must allege facts from which it appears that he/she will suffer injury in the future. Bauer 

v. Texas, 341 F.3d 352, 358 (5th Cir. 2003). In the case at bar, plaintiffs do not allege any ongoing 

injury or any threat of a likely or imminent future injury. Plaintiffs merely asks the Court to 

declare that Defendants’ policies are unconstitutional, without sufficient facts. Accordingly, 

Defendants seek dismissal of Plaintiffs’ declaratory judgment action. [Dkt. 31, Prayer for Relief 

(a)].

VII.

DEFENDANTS ARE IMMUNE FROM EXEMPLARY/PUNITIVE DAMAGES

51. The United States Supreme Court has long held that a municipality is immune from 

punitive and exemplary damages. City of Newport v. Fact Concerts, Inc., 453 U.S. 247 (1981). 

The Fifth Circuit has faithfully applied the ruling in City of Newport. See, Skyy v. City of Arlington, 

712 Fed. Appx. 396, 401 (5th Cir. 2017) (municipality immune from punitive damages, issue 

resolved on Rule 12(b)(6) motion); Gil Ramirez Grp., LLC v. Houston Indep. Sch. Dist., 786 F.3d 

400, 412-13 (5th Cir. 2015); Stern v. Hinds Cty. Miss., 436 Fed.Appx. 381, 382 (5th Cir. 2011). As 

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such, Defendants are immune from punitive and exemplary damages and these damages claims 

must be dismissed as a matter of law either under Rule 12(b)(1) or 12(b)(6).

VII.

DEFENDANTS ARE IMMUNE FROM PLAINTIFFS’ ALLEGED CONSPIRACY 

CLAIMS 

52. Assuming without deciding that a cause of action exists for a conspiracy claim, Texas Tort 

Claims Act provides that sovereign immunity exists for intentional torts, such as conspiracy. TEX. 

CIV. PRAC. & REM. CODE ANN. § 101.057; Univ. of Tex. Med. Branch of Galveston v. 

Hohman, 6 S.W.3d 767, 777 (Tex. App.-Houston [1st Dist.] 1999, pet. dism’d w.o.j.). TCI West 

End, Inc., v. City of Dallas and Texas Historical Commission, 274 S. W. 3d 913, 921 (Tex. App. 

–Dallas 2009, rehearing overruled) (the Commission and the City, as governmental units, cannot 

be held liable for the intentional tort of conspiracy). As such, sovereign immunity protects 

Defendants against Plaintiffs’ conspiracy claims. 

VIII.

PLAINTIFFS’ DECLARATORY JUDGMENT ACTION AGAINST DEFENDANTS 

MUST BE DISMISSED.

53. Plaintiffs are not entitled to its attorney’s fees pursuant to 42 U.S.C. §1988. The 

Declaratory Judgment Act “does not create a substantive cause of action,” but “is merely a vehicle 

that allows a party to obtain an early adjudication of an actual controversy arising under other 

substantive law.” Metropcs Wireless, Inc. v. Virgin Mobile USA, L.P., 2009 U.S. Dist. LEXIS 

88527 (N.D. Tex. Sept. 25, 2009). The act provides no independent basis for jurisdiction. 

Medtronic Inc. v Mirowski Family Ventures L.L.C., 134 S.Ct. 843, 848 (2014). The availability 

of a declaratory judgment depends upon the existence of an underlying judicially remediable right 

because the declaratory judgment is not itself a cause of action, only a form of relief the court may 

grant. Schilling v. Rogers, 363 U.S. 666, 677 (1960); Collin Cnty., Tex., v. Homeowners Ass’n 

Case 5:20-cv-00642-JKP Document 33 Filed 08/30/21 Page 15 of 17
Leon Valley’s & Kirby’s 12(b)(1)(6) MTD Plaintiffs’ 2nd Amended Complaint Page 16

for Values Essential to Neighborhoods, 915 F.2d 167, 171 (5th Cir. 1990). Plaintiffs simply ask 

the Court in their prayer to declare Defendants’ policies unconstitutional. However, as noted 

above, Plaintiffs do not have personal First and Fourth Amendment right violations against 

Defendants. Therefore, Plaintiffs do not have an underlying judicially remediable right and 

cannot seek declaratory relief. Accordingly, Defendants seek dismissal of Plaintiffs’ declaratory 

judgment request for relief. [Dkt. 31, Prayer for Relief].

IX.

CONCLUSION AND PRAYER

WHEREFORE, PREMISES CONSIDERED, Defendants pray the Court grant their

Motion to Dismiss and dismiss Plaintiffs’ claims against Defendants City of Leon Valley and City 

of Kirby 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.

SIGNED this 30th day of August 2021.

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

Case 5:20-cv-00642-JKP Document 33 Filed 08/30/21 Page 16 of 17
Leon Valley’s & Kirby’s 12(b)(1)(6) MTD Plaintiffs’ 2nd Amended Complaint Page 17

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 30th day of August 2021 to the 

following:

Brandon Grable E-NOTIFICATION

Austin M. Reyna 

Grable Grimshaw Mora PLLC 

1603 Babcock Road, Suite 280

San Antonio, Texas 78229

__/s/ Adolfo Ruiz_______________________

PATRICK C. BERNAL

ADOLFO RUIZ

Case 5:20-cv-00642-JKP Document 33 Filed 08/30/21 Page 17 of 17