Defendant’s Response to Plaintiff’s Motion for Leave for Sur-Reply on Motion for Summary Judgment Page 1

(30028/777273)

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

BRYAN RISER, §

Plaintiff, §

§

vs. § Civil Action No. 3:22-CV-01014-K

§

§

ESTEBAN MONTENEGRO, §

Defendant. §

DEFENDANT ESTEBAN MONTENEGRO’S

RESPONSE TO PLAINTIFF’S MOTION FOR LEAVE TO FILE SUR-REPLY TO 

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

TO THE HONORABLE JUDGE OF SAID COURT:

NOW COMES Esteban Montenegro (hereinafter “Defendant” or “Montenegro”), 

Defendant in this matter and, pursuant to Federal Rule of Civil Procedure 56(b) and Local Civil 

Rules 56.3 and 56.5, files his Response to Plaintiff’s Motion for File a Sur-Reply to Defendant’s 

Motion for Summary Judgment.

I.

SUMMARY

In his effort to try to overcome Officer Montenegro’s entitlement to qualified immunity, 

Plaintiff seeks to file a Sur-Reply which simply reiterates the arguments he already made in his 

response. The interests of justice weigh against permitting him to file a Sur-Reply.

II.

ARGUMENTS AND AUTHORITIES

A. The Court has Discretion to Deny Plaintiff a Sur-Reply.

Courts have discretion to deny a surresponse. Austin v. Kroger Tex., L.P., 864 F.3d 326 

336 (5th Cir. 2017). Courts should weigh the interests of justice when deciding whether to permit 

a surresponse. Id. at 337 (citing La Union Del Pueblo Entero v. Fed. Emergency Mgmt. Agency, 

No. 1:08-cv-487, 2016 WL 6915962, at *1 (S.D. Tex. Apr. 12, 2016).

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B. Plaintiff’s Sur-Reply Fails to Meaningfully Address Montenegro’s Affidavit 

or the Interview Recording of Plaintiff’s Declarant.

In his effort to try to defeat Officer Montenegro’s entitlement to qualified immunity, 

Plaintiff Riser filed a declaration of Officer Brent Maudlin (the “Maudlin declaration.”)1 

Montenegro responded to the Maudlin declaration by producing a summary and recording of

prior interview of Officer Maudlin’s conducted by the Dallas Police Department’s Public 

Integrity Unit (the “prior Maudlin interview.”)

Maudlin’s declaration characterizes Montenegro as “dogmatic” in his belief that Plaintiff 

was involved in the murder-for-hire scheme at issue in this case. But in the prior Maudlin

interview, Maudlin confirms time and again his opinion that Montenegro would not 

“intentionally do anything unscrupulous” and that Montenegro would not “intentionally screw 

someone over to make a case, cop or not.”2 As Plaintiff admits in his proposed sur-reply, 

Maudlin was not fully aware of all the information Montenegro had concerning Emanuel 

Kirkpatrick.3 Plaintiff’s sur-reply merely reiterates his prior argument. 

The fact that Plaintiff’s sur-reply is merely reiterating his prior argument is apparent on 

its face. Plaintiff contends he needs a sur-reply to respond to “new evidence”.4 He claims the 

“new evidence” he needs to respond to is Montenegro’s affidavit and the prior Maudlin

interview. But in his proposed sur-reply, Plaintiff never cites the text in Montenegro’s Affidavit. 

Moreover, Plaintiff cites the prior Maudlin interview only once.5 Thus, Plaintiff’s sur-reply is 

merely a regurgitation of his prior response as evidenced by his citation to his prior response and 

1 Doc. 51-1, at APP. 229–231. 

2 Doc. 57-1, at ¶8.

3 Doc. 60-1, at n.6 (“Note that Maudlin said this despite apparently not knowing that Kilpatrick had, in fact, been 

offered such a deal prior to incriminating Riser.”)

4 Plaintiff’s complaint that the evidence was not disclosed is inapposite because Plaintiff did not make written 

discovery requests for the information.

5 Doc. 60-1, at n.6

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the appendix thereto in 8 of the 15 footnotes. Accordingly, Plaintiff’s request for leave to file a 

sur-reply should be denied.

C. Plaintiff’s Argument that Montenegro Changed the Franks Standard by 

Quoting a Fifth Circuit Case is Without Merit.

Even if Plaintiff could meet his burden to overcome Montenegro’s entitlement to 

qualified immunity by showing a mere inference of recklessness, which he cannot, the next step 

would be to conduct a corrected affidavit analysis. Plaintiff, again, twists the analysis. Plaintiff 

asserts that Montenegro changed the recklessness standard by quoting Hart v. O’Brien.

6 But 

Plaintiff is trying to change the standard by arguing that mere negligence is sufficient to 

overcome qualified immunity. Montenegro has not changed the standard by quoting to 

controlling Fifth Circuit precedent. 

Plaintiff cites Hale v. Fish for the proposition that “[t]he Fifth Circuit has repeatedly 

recognized that such critical omissions allow an inference of recklessness by their very nature.”7

In Hale, the court was faced with a probable cause affidavit that referred to “guard dogs” as 

“attack dogs”; the affidavit named Hale as the person who handcuffed the victim when Hale’s 

companion handcuffed the victim; the affidavit suggested that the victim was kidnapped from 

within the jail, when the kidnapping occurred outside the jail; and other facts.8 The Fifth Circuit 

in Hale found that “[a]lthough these misstatements demonstrate a slanting of the facts, probable 

cause would still have existed had the statements been accurate.”9 As recognized by the Fifth 

6 See Doc. 57 at 4 n.17 (quoting Hart v. O’Brien, 127 F.3d 424, 449 (5th Cir. 1997), abrogated on other grounds by

Kalina v. Fletcher, 522 U.S. 118 (1997).

7 Doc. 60-1, at 3 (citing Hale v. Fish, 899 F.2d 390, 400 (5th Cir. 1990)).

8 Hale, 899 F.2d at 400.

9

Id.

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Circuit, the falsehood or omission must be “clearly critical” or material to a finding of probable 

cause.10

Plaintiff asserts his innocent explanations for his conduct and points to a scrivener’s 

error. Plaintiff then leaps to a conclusion that Montenegro is no longer entitled to qualified 

immunity. The proper inquiry in establishing a Franks violation is “whether any reasonably 

competent officer possessing the information each officer had at the time [the officer] swore her 

affidavit could have concluded that a warrant should issue.”11 In fact, because of Montenegro’s 

entitlement to the defense of qualified immunity, Plaintiff is required to demonstrate that not 

even arguable probable cause supported his arrest.12 Plaintiff calls his argument proof of 

recklessness, but what Plaintiff is really arguing is for this Court to impermissibly apply a 

standard of negligence.

An officer is entitled to qualified immunity even if he did not have probable cause to 

arrest a suspect if a reasonable person in his position would have believed that his conduct 

conformed to the constitutional standard in light of the information available to him and the 

clearly established law.13 Officer Maudlin confirmed that Kilpatrick was a known felon before

the “killing spree” who “had been rejected as an informant because due to concerns about his 

10 Porter v. Lear, 751 Fed. App’x 422, 429–30 (5th Cir. 2018) (citing Hale, 899 F.2d at n.3).

11 Jones v. Perez, No. 17-11242, 2019 WL 5268618, *3 (5th Cir. Oct. 16, 2019) (quoting Freeman v. County of 

Bexar, 210 F.3d 550, 553 (5th Cir. 2000) (holding that the officer did not violate Franks when she did not alert the 

magistrate to the reliability of a witness to the crime that was in serious doubt because the overall evidence 

established probable cause “even if the information on a reconstructed affidavit would not have sufficed.”). 

12 Johnson v. City of San Antonio, No. 22-50196, 2023 WL 3019686, *8 (5th Cir. Apr. 20, 2023) (to succeed on an 

unlawful arrest claim, a plaintiff “must show that there was ‘not even arguably...probable cause’ for her arrest”) 

(quoting Brown v. Lyford, 243 F.3d 185, 190 (5th Cir. 2001)) (ellipses in Johnson); Petersen v. Johnson, 57 F.4th 

225, 232 (5th Cir. 2023) (“Actual probable cause is not necessary; merely arguable probable cause is sufficient to 

trigger qualified immunity.”) (emphasis in original); De La Paz v. Coy, 786 F.3d 367, 371, n.3 (5th Cir. 2015) (on 

summary judgment, a plaintiff must overcome the burden of showing that no reasonable official would have 

concluded that probable cause existed); see also, e.g., Scott v. City of Mandeville, 69 F.4th 249, 255 (5th Cir. 2023) 

(to prevail on a §1983 false arrest claim, the plaintiff must show that the officers did not have probable cause to 

make the arrest).

13 Voss v. Goode, 954 F. 3d 234, 239 (5th Cir. 2020) citing Freeman v. Gore, 483 F. 3d 404, 415 (5th Cir. 2007) and 

Goodson v. City of Corpus Christi, 202 F. 3d 730, 736 (5th Cir. 2000).

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reliability and criminal history.”14 Plaintiff’s own expert, Kevin Horan, confirms that cellular 

records demonstrate twelve cellular communications between Plaintiff and the known felon

Kilpatrick.15 More significantly, these communications occurred during Kilpatrick’s 

“February/March 2017 killing spree.” In addition, Kilpatrick had texted Plaintiff the address of 

another one of the involved murderers, Kevin Kidd.16 And the third felon involved, Jermon 

Simmons, confirmed that Kidd had told Simmons that “Kilpatrick had a ‘crooked cop’ in his 

pocket.”17 Plaintiff Riser was a Dallas Police Officer at that time – an officer who had embedded 

himself with the three felons who murdered Liza Saenz. Plaintiff Riser did this around the time 

of the murder Lisa Saenz and while Kilpatrick was on a murder spree. In assessing probable 

cause, Montenegro was not required to accept Plaintiff Riser’s alleged “innocent” explanations 

for his conduct. 

Montenegro found probable cause. Judge Kemp found probable cause. Montenegro is 

entitled to qualified immunity because, at the very least, arguable probable cause existed to arrest 

Riser.

III.

CONCLUSION

Plaintiff’s motion for leave to file a Sur-Reply should be denied. The Court should enter

summary judgment dismissing, with prejudice, Plaintiff’s claims against Montenegro based on 

Montenegro’s entitlement to qualified immunity.

14 Dkt. 52-1, at 230 ¶13.

15 Dkt. 52-1, at 219; Defendant objects that Plaintiff’s expert cannot opine on Defendant’s mental state or whether 

Defendant “purposely provided false information” in the arrest warrant affidavits. See FED. R. EVID. 702, 704; 

United States v. Dvorin, 817 F.3d 438, 448 (5th Cir. 2016). Defendant reserves his right to object to the expert’s 

conclusions that the probable cause statement was “obviously false” concerning the meaning of the preliminary 

CAST Report and whether the opinion itself survives Daubert. 

16 Dkt. 37, at 6 ¶17.

17 Dkt 52-1, at 281.

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/s/ Thomas P. Brandt

THOMAS P. BRANDT

State Bar No. 02883500

tbrandt@fhmbk.com 

STEPHEN D. HENNINGER

State Bar No. 00784256

shenninger@fhmbk.com

CHRISTOPHER BRANDT

State Bar No. 24095984 

cbrandt@fhmbk.com

FANNING HARPER MARTINSON

 BRANDT & KUTCHIN, P.C.

One Glen Lakes

8140 Walnut Hill Lane, Suite 200

Dallas, Texas 75231

(214) 369-1300 (office)

(214) 987-9649 (telecopier)

ATTORNEYS FOR DEFENDANT 

CERTIFICATE OF SERVICE

I hereby certify that on November 26, 2024, I electronically filed the foregoing document 

with the Clerk of the Court through the ECF system and an email notice of the electronic filing 

was sent to all attorneys of record.

/s/ Thomas P. Brandt

THOMAS P. BRANDT

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