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, § 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 POLICE OFFICERS BROOKS, KING,

MUNOZ AND RIVERA’S MOTION TO DISMISS

TO THE HONORABLE UNITED STATES DISTRICT JUDGE JASON PULLIUM:

NOW COMES CITY OF LEON VALLEY POLICE OFFICERS BROOKS, KING, MUNOZ AND 

RIVERA, Individually, Defendants in the above entitled and numbered cause, and files this their 

Motion to Dismiss pursuant to Rule 12(b)(6) FEDERAL RULES OF CIVIL PROCEDURE and in support 

thereof would respectfully show unto the Court the following:

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Jack Miller, et al v. Chief Joseph Salvaggio, et al Civil Action No. 5:20-cv-00642-JKP

Defendant OFFICERS BROOKS, KING, MUNOZ and RIVERA Motion to Dismiss Page 2

I.

Defendant CITY OF LEON VALLEY POLICE OFFICERS BROOKS, KING, MUNOZ AND 

RIVERA, were named as additional defendants in Plaintiff’s First Amended Complaint [ECF Doc. 

No. 13]. Plaintiffs did not seek leave of Court to file their amended complaint. Defendant City of 

Leon Valley Police Officers files this motion to dismiss Plaintiff’s Complaint against them [ECF 

Doc. No. 13]. 

II.

BACKGROUND

Plaintiff Jack Miller is a zoilist who parades as a First Amendment Auditor in search of 

controversy. Plaintiff Miller by his own pleading states that on May 31, 2018, he entered the Leon 

Valley City Hall wearing a Holster and a “Fake Gun” on his hip. The City of Leon Valley has a 

Municipal Court located within the City Hall Building and said Court was in session on the date 

in question. Under TEXAS PENAL CODE, Chapter 46, § 46.03, Places Weapons Prohibited, the 

statute reads as follows:

§ 46.03 - Places Weapons Prohibited.

“A person commits an offense if the person intentionally, knowingly 

or recklessly possesses or goes with a firearm, location restricted 

knife, club or prohibited weapon...

(3) On the premises of any government court or offices utilized 

by the Court.

Plaintiff claims that Defendant Officers arrived at Plaintiff Miller’s home with a search 

warrant for the following: “a black semi-automatic handgun, a go pro camera and any cell phone 

media devices used to record, computer desktop or lap top and photographic evidence.” The 

search warrant was signed by a Magistrate Judge. Plaintiff’s Complaint erroneous assumes that 

all officers knew that Plaintiff was carrying a “fake gun” as he entered the City of Leon Valley 

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Jack Miller, et al v. Chief Joseph Salvaggio, et al Civil Action No. 5:20-cv-00642-JKP

Defendant OFFICERS BROOKS, KING, MUNOZ and RIVERA Motion to Dismiss Page 3

City Hall / Municipal Court Building. Plaintiffs allege: Count I and II - First Amendment

violation; Count III – Fourth Amendment violation of false arrest; Count IV – Excessive force 

allegation and Count V – Malicious Prosecution. 

Defendant OFFICERS BROOKS, KING, MUNOZ and RIVERA, assert their entitlement to 

qualified immunity under both prongs of the qualified immunity standard. Defendants actions did 

not violate Plaintiffs’ constitutional rights as alleged in Plaintiffs’ Complaint. Defendant 

OFFICERS BROOKS, KING, MUNOZ and RIVERA, further assert that their actions were objectively 

reasonable under the totality of circumstances. 

III.

FEDERAL RULE OF CIVIL PROCEDURE 12(b)(6) authorizes dismissal of a complaint for 

failure to state a claim upon which relief may be granted. Review is limited to the contents of the 

complaint and matters properly subject to judicial notice. In analyzing a motion to dismiss for 

failure to state a claim, the court accepts all well pleaded facts as true, viewing them in the light 

most favorable to the plaintiff. To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must 

plead, “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. 

Twombly, 550 U.S. 544, 570 (2007). A claim has facial plausibility when the plaintiff pleads 

factual content that allows the Court to draw the reasonable inference that the defendant is liable 

for the misconduct alleged. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The plaintiff must do 

more than recite the formalistic elements of a cause of action. Bell Atl. Corp. v. Twombly, 550 

U.S. 544, 556 (2007). The tenet that a court must accept as true all of the allegations contained 

in the complaint is inapplicable to legal conclusions and courts are not bound to accept as true a 

legal conclusion couched as a factual allegation. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 

Thus, although all reasonable inferences will be resolved in favor of the plaintiff, the plaintiff must 

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Jack Miller, et al v. Chief Joseph Salvaggio, et al Civil Action No. 5:20-cv-00642-JKP

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plead specific facts, not merely conclusory allegations. When a complaint fails to adequately state 

a claim such deficiency should be exposed at the point of minimum expenditure of time and money 

by the parties and the court. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 558 (2007). 

IV.

In the case at bar, Plaintiffs erroneously assume that the City of Leon Valley Police Officers 

were aware that Plaintiff Miller was holstering a “Fake Gun” as he entered the City of Leon Valley 

City Hall / Municipal Court building on the date in question. Defendants assert that under TEXAS 

PENAL CODE, Chapter 46, § 46.03, a person commits an offense if he intentionally possesses a 

firearm on the premises of any governmental court (a municipal court). Plaintiff Miller’s 

provocative conduct by intentionally entering the premises of a government court, led to the 

execution of a search warrant at his residence. However, the execution of a search warrant was 

made in good faith by the defendants herein and did not violate Plaintiffs’ constitutional rights. 

V.

Plaintiffs’ Complaint erroneously assumes that all defendant officers were aware of the 

“fake gun,” however, Plaintiffs’ own pleadings allege a violation of 46.03 of Places Weapons 

Prohibited wherein Plaintiff Miller admitted to going to the City of Leon Valley Municipal Court 

located at the City Hall of the City of Leon Valley with a “fake gun” in a holster. Defendant 

OFFICERS BROOKS, KING, MUNOZ and RIVERA, assert that Plaintiffs’ Complaint fails to state a 

cause of action under 42 U.S.C. § 1983 for First Amendment violations, Fourth Amendment 

violation for false arrest or excessive force and malicious prosecution, as alleged. Plaintiffs’ claim 

of excessive force fails on the pleadings since the officers in question were executing a valid search 

warrant. In Strickland v. City of Crenshaw, Miss., 114 F.Supp.3d 400 (N.D. Miss. 2015), the 

Court dismissed plaintiff’s claims for excessive force wherein the officers were executing a search 

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warrant and pointed their weapons at adults and minors inside the residence. The Court held that 

the pointing of weapons during the execution of a search warrant was not a constitutional violation 

and that plaintiff’s allegations failed to overcome the qualified immunity defense raised by the 

individual defendants. Id. at 417. The Court analyzed that certain injuries are so slight that they 

will never satisfy the injury element of the excessive force analysis. Glenn v. City of Tyler, 242 

F.3d 307, 314 (5th Cir. 2001). 

Defendant OFFICERS BROOKS, KING, MUNOZ and RIVERA, assert their entitlement to 

qualified immunity for Plaintiff’s claims under the First Amendment, Fourth Amendment for false 

arrest, Excessive Force and Malicious Prosecution. Plaintiff Miller’s own actions as alleged in his 

complaint, gave rise to probable cause for carrying a weapon on the premises of a government 

court under § 46.03 of the Texas Penal Code. Plaintiff’s Complaint fails to state why the protective 

shroud of qualified immunity should not be granted to the individual officers based on the facts 

alleged in Plaintiffs’ Complaint. Furthermore, under the second prong of the qualified immunity 

analysis, Defendants assert that their conduct was objectively reasonable from a totality of the 

circumstances. Mullinex v. Luna, 577 U.S. ___ 136 S.Ct. 305, 308 (2015). 

WHEREFORE, PREMISES CONSIDERED, Defendants, Defendant OFFICERS BROOKS,

KING, MUNOZ and RIVERA, pray that their Motion to Dismiss be in all things granted and for 

such other and further relief as they may show themselves justly entitled.

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Jack Miller, et al v. Chief Joseph Salvaggio, et al Civil Action No. 5:20-cv-00642-JKP

Defendant OFFICERS BROOKS, KING, MUNOZ and RIVERA Motion to Dismiss Page 6

Respectfully submitted, 

LAW OFFICES OF CHARLES S. FRIGERIO 

A Professional Corporation 

Riverview Towers 

111 Soledad, Suite 840 

San Antonio, Texas 78205 

(210) 271-7877 

(210) 271-0602 Telefax 

BY: /s/ Charles S. Frigerio 

CHARLES S. FRIGERIO 

SBN: 07477500

LEAD COUNSEL IN CHARGE 

HECTOR X. SAENZ 

SBN: 17514850 

ATTORNEYS FOR CHIEF JOSEPH

SALVAGGIO, AND OFFICERS JIM WELLS,

ANDERSON, SAUCEDO AND J. VASQUEZ

OFFICERS BROOKS, KING, MUNOZ and RIVERA

CERTIFICATE OF SERVICE

I hereby certify that on the 13th day of November, 2020, I electronically filed the foregoing 

Defendant OFFICERS BROOKS, KING, MUNOZ and RIVERA’s Motion to Dismiss with the Clerk 

of the Court using the CM/ECF system which will send notification of such filing to the CM/ECF 

Participant as follows : 

Mr. Solomon M. Radner

Excolo Law, PLLC

26700 Lahser Road, Suite 401

Southfield, MI 48033 Email: sradner@excololaw.com

/s/ Charles S. Frigerio 

CHARLES S. FRIGERIO 

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