IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

LONNIE CHARLES CHALMERS, §

PLAINTIFF, §

§

V. § CIVIL CASE NO. 3:22-CV-585-G-BK

§

CITY OF DALLAS, DALLAS POLICE §

DEPARTMENT, DALLAS POLICE §

OFFICER BAZZIE 11022, DALLAS §

POLICE OFFICERS AT SCENE YET §

IDENTIFIED, AND DALLAS POLICE §

OFFICER SGT. KELLY 9876, §

DEFENDANTS. §

FINDINGS, CONCLUSIONS AND RECOMMENDATION 

OF THE UNITED STATES MAGISTRATE JUDGE

Pursuant to 28 U.S.C. § 636(b) and Special Order 3, this case has been referred to the 

undersigned magistrate judge for pretrial management. The Court now considers Defendants’ 

respective Motions to Dismiss. Doc. 12; Doc. 13; Doc. 14. For the reasons that follow, the 

motions should be GRANTED.

I. BACKGROUND

In March 2022, Plaintiff filed this pro se action stemming from events that took place at a 

local restaurant. According to Plaintiff, on the day in question, he went to a Golden Chick 

restaurant, placed an order for Chinese food at the counter, paid, and sat down to wait. Doc. 3 at 

4. After he picked up his order, he proceeded to a different register to place a to-go order for 

chicken. Doc. 3 at 4. Upon realizing that his chicken order was incorrect, Plaintiff attempted to 

address the situation with the cashier, but a “discord of personality’s [sic]” arose. Doc. 3 at 4. 

While a second cashier was attempting to refund Plaintiff’s money, he continued to “exchange 

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words” with the first cashier. Doc. 3 at 4. The restaurant owner then approached Plaintiff with a 

bat and repeatedly ordered him to leave, and shortly thereafter an employee with a stun gun also 

confronted him. Doc. 3 at 4. Plaintiff sat down at a table to call 911, but the restaurant owner 

and several employees pulled him out of his chair, dragged him out of the restaurant, and threw 

his money on the ground. Doc. 3 at 4-5. Around this time, Dallas Police Department (“DPD”) 

Officer Bazzie (“Bazzie”) and other DPD officers arrived at the scene. Doc. 3 at 5.

After some discussion, during which DPD officers did not allow Plaintiff “to fully 

explain the situation,” Bazzie went in the restaurant to investigate Plaintiff’s claim that restaurant 

personnel had assaulted and robbed him. Doc. 3 at 5, 7. Upon her return, Bazzie informed 

Plaintiff she did not see any evidence he had been assaulted on the restaurant’s security footage 

and that “Plaintiff caused this problem.” Doc. 3 at 5, 7. Plaintiff denied this and told Bazzie 

“you are a liar at least 3 times straight to her body camera and her face.” Doc. 3 at 5, 7. Bazzie 

then “made [Plaintiff] the criminal on the scene by detaining [him]” so she could issue a criminal 

trespass citation, told him to stop talking, and repeatedly threatened to take him to jail. Doc. 3 at 

6.

Supervising DPD Sergeant Kelly (“Kelly”) subsequently arrived and informed Plaintiff 

the restaurant owner was within his rights to demand that Plaintiff leave his store, at which point 

Bazzie again threatened to take Plaintiff to jail. Doc. 3 at 6. Plaintiff left and proceeded directly 

to a nearby DPD substation to register a complaint. Doc. 3 at 6-7. When Kelly arrived at her 

supervisor’s behest, she “failed to help” Plaintiff and instead issued him an additional report 

number for his complaint of assault and robbery. Doc. 3 at 6.

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Plaintiff sues under 42 U.S.C. §§ 1983 and 19851for: (1) violation of his Fourth 

Amendment rights based on his seizure without probable cause; and (2) violation of his right to 

equal protection and his First Amendment right to “petition the [DPD] for help because a crime 

has been committed against his body because he [is] black and wanted a refund.” Doc. 3 at 6-12. 

Plaintiff seeks compensatory and punitive damages, injunctive and declaratory relief, and 

attorneys’ fees and costs. Doc. 3 at 13-14. Defendants now move to dismiss Plaintiff’s section 

1983 claims pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.

II. APPLICABLE LAW

A. Rule 12(b)(6)

A plaintiff fails to state a claim for relief under Rule 12(b)(6) when the complaint does 

not contain “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). To overcome a Rule 12(b)(6) motion, a plaintiff’s 

“complaint must contain either direct allegations on every material point necessary to sustain a 

recovery . . . or contain allegations from which an inference fairly may be drawn that evidence 

on these material points will be introduced at trial.” Campbell v. City of San Antonio, 43 F.3d 

973, 975 (5th Cir. 1995) (quotation omitted). In ruling on a motion to dismiss, a court must 

accept all factual allegations in the complaint as true. Twombly, 550 U.S. at 572. Nevertheless, 

a complaint should not simply contain conclusory allegations, but must be pled with a certain 

level of factual specificity, and the district court cannot “accept as true conclusory allegations or 

unwarranted deductions of fact.” Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th 

Cir. 2000) (citation and quotation omitted).

1 While Plaintiff also cites 42 U.S.C. § 1988, Doc. 3 at 14, this appears to be in support of his 

request for attorneys’ fees which will be addressed infra.

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B. Section 1983

Section 1983 “provides a federal cause of action for the deprivation, under color of law, 

of a citizen’s ‘rights, privileges, or immunities secured by the Constitution and laws’ of the 

United States.” Livadas v. Bradshaw, 512 U.S. 107, 132 (1994) (citation omitted). To state a 

claim under section 1983, a plaintiff must allege facts showing the defendant (1) deprived him 

“of a right ‘secured by the Constitution and the laws’ of the United States” and (2) was acting 

under color of state law. See Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 155 (1978) (citation 

omitted).

C. Qualified Immunity

“The doctrine of qualified immunity protects government officials ‘from liability for civil 

damages insofar as their conduct does not violate clearly established statutory or constitutional 

rights of which a reasonable person would have known.’” Pearson v. Callahan, 555 U.S. 223, 

231 (2009) (citation omitted). The qualified immunity inquiry involves two prongs which the 

Court must answer affirmatively to subject an official to liability: (1) whether the facts a plaintiff 

has alleged establish a violation of a constitutional right and (2) whether the right at issue was 

“clearly established” at the time of the defendant’s alleged misconduct. Id. at 232. A court may 

begin its assessment with either prong. Id. at 236 (overruling in part Saucier v. Katz, 533 U.S. 

194 (2001)). “Qualified immunity questions should be resolved ‘at the earliest possible stage in 

litigation.’” Porter v. Epps, 659 F.3d 440, 445 (5th Cir. 2011) (quoting Pearson v. Callahan, 

555 U.S. 223, 232 (2009)); see, e.g., Turner v. Lieutenant Driver, 848 F.3d 678, 683 (5th Cir. 

2017) (addressing a qualified immunity defense raised in a motion to dismiss).

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D. Municipal Liability

A municipality does not automatically incur section 1983 liability for injuries caused 

solely by its employees, and it cannot be held liable under section 1983 on a respondeat superior

theory. Monell v. Dept. of Soc. Servs. of City of New York, 436 U.S. 658, 691, 694 (1978); 

Johnson v. Deep East Tex. Reg’l Narcotics Task Force, 379 F.3d 293, 308 (5th Cir. 2004). 

Rather, to establish municipal liability, “a plaintiff must show that (1) an official policy (2) 

promulgated by a municipal policymaker (3) was the moving force behind the violation of a 

constitutional right.” Hicks-Fields v. Harris Cty., Tex., 860 F.3d 803, 808 (5th Cir. 2017)

(citations omitted).

A policy or custom can be either (1) a policy statement or rule that is officially 

promulgated by the county’s lawmaking officers or a delegated official; or (2) “[a] persistent, 

widespread practice of [county] officials or employees, which . . . is so common and well settled 

as to constitute a custom that fairly represents county policy.” Bennett v. City of Slidell, 735 

F.2d 861, 862 (5th Cir. 1984). Knowledge on the part of a policymaker that a constitutional 

violation will likely result from a given policy or custom is an essential element of section 1983

municipal liability. Burge v. St. Tammany Parish, 336 F.3d 363, 370 (5th Cir. 2003). A plaintiff 

thus must demonstrate either actual or constructive knowledge of the custom, which is 

attributable either to the governing body of the municipality or to an official who has been 

designated as a policymaker. Bennett, 735 F.2d at 862. Where an official policy or practice is 

unconstitutional on its face, it is assumed that a policymaker is aware of both the policy and that 

a constitutional violation will most likely occur. Burge, 336 F.3d 370. Where, however, an 

alleged policy or custom is facially innocuous, a plaintiff is required to show that “it was 

promulgated with deliberate indifference to the known or obvious consequences that 

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constitutional violations would result.” Piotrowski v. City of Hous., 237 F.3d 567, 579 (5th Cir. 

2001) (citation and internal quotation marks omitted). Finally, to show that the policy at issue 

was the moving force behind the constitutional violation, there “must be more than a mere ‘but 

for’ coupling between cause and effect”; the policy “must be closely related to the ultimate 

injury” and have “actually caused” the constitutional violation complained of. Johnson, 379 

F.3d at 310 (citations omitted).

III. ANALYSIS

A. Dallas Police Department

The DPD moves to dismiss Plaintiff’s claims on the basis that it is not a jural entity 

capable of being sued. Doc. 12 at 3-5. Plaintiff did not respond to the DPD’s motion, but in his

response to the dismissal motion filed by the City of Dallas (the “City”), he acknowledges he has 

no basis to seek redress from the DPD as it is not a “stand alone entity.” Doc. 20 at 5-6. As the 

parties correctly agree, the DPD is not a jural entity subject to suit, and Plaintiff’s claims against 

the DPD should thus be DISMISSED. See Williams v. Dall. Police Officer, 3:19-CV-3046-BBH, 2021 WL 4552281, at *4 (N.D. Tex. Oct. 5, 2021) (Boyle, J.).

B. Officer Bazzie and Sergeant Kelly2

1. Unlawful Detention Under the Fourth Amendment

Bazzie argues that qualified immunity bars Plaintiff’s Fourth Amendment claim against 

her because Plaintiff failed to plead sufficient facts showing she initially detained Plaintiff 

without legal justification or that she lacked reasonable suspicion to detain him for criminal 

2

In his response to Bazzie and Kelly’s motion to dismiss, Plaintiff names various other DPD 

officers present at the scene who he claims also violated his rights. See Doc. 20 at 7. Those 

allegations are not properly before the Court.

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trespassing after she viewed the restaurant’s video footage of the altercation. Doc. 14 at 2-3, 6-7. 

In particular, Bazzie maintains Plaintiff’s allegations describe a lawful investigatory stop and 

Plaintiff yielding to Bazzie’s initial assertion of authority before leaving after she informed 

Plaintiff there was no evidence he had been assaulted. Doc. 14 at 6. Kelly asserts Plaintiff’s 

Fourth Amendment claim against her should be dismissed because Plaintiff does not allege that 

she was personally involved in his detention. Doc. 14 at 6. 

Plaintiff responds that the 911 incident report reflects that he was a crime victim, it is 

clear “from the record” that he did not engage in any conduct warranting his detention, and 

“Defendants” created their own narrative at the scene despite the evidence.3 Doc. 20 at 2-5. 

Plaintiff maintains Kelly, Bazzie—and a host of other DPD officers he did not name in his 

complaint—violated his clearly established constitutional right to be free from an unlawful 

detention. Doc. 20 at 7-10.

“The Fourth Amendment does not proscribe all contact between the police and citizens, 

but is designed ‘to prevent arbitrary and oppressive interference by enforcement officials with 

the privacy and personal security of individuals.’” I.N.S. v. Delgado, 466 U.S. 210, 215 (1984)

(quoting United States v. Martinez-Fuerte, 428 U.S. 543, 554 (1976)). There are “three tiers of 

police-citizen encounters: communication between police and citizens involving no coercion or 

detention and therefore without the compass of the Fourth Amendment, brief ‘seizures’ that must 

be supported by reasonable suspicion, and full-scale arrests that must be supported by probable 

cause.” United States v. Berry, 670 F.2d 583, 591 (5th Cir. Unit B 1982); see also Florida v. 

Bostick, 501 U.S. 429, 439 (1991) (“The Fourth Amendment . . . does not proscribe voluntary 

3 While Plaintiff repeatedly refers to DPD officers’ body camera footage and various documents, 

the Court will not consider this evidence given the procedural posture of the case.

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cooperation” with police). Accordingly, if a reasonable person would feel free “to disregard the 

police and go about his business,” the encounter is consensual and “will not trigger Fourth 

Amendment scrutiny unless it loses its consensual nature.” Bostick, 501 U.S. at 434 (citation 

omitted). “Unless the circumstances of the encounter are so intimidating as to demonstrate that a 

reasonable person would have believed he was not free to leave if he had not responded, one 

cannot say that the questioning resulted in a detention under the Fourth Amendment.” Delgado, 

466 U.S. 210, 216 (1984) (holding that an initially consensual encounter between a police officer 

and a citizen can transform into a seizure only if “a reasonable person would have believed” he 

was not free to leave) (citation omitted).

The “reasonable person” standard is an objective one and “is concerned not with the 

citizen’s subjective perception . . . but only with what the officers’ words and actions would have 

conveyed to a reasonable and innocent person.” United States v. Mask, 330 F.3d 330, 336 (5th 

Cir. 2003) (citations omitted). Courts consider several non-exclusive factors in determining 

whether a reasonable person would feel free to terminate an encounter with law enforcement: 

“(1) the threatening presence of several officers; (2) the display of a weapon by an officer; (3) 

physical touching of the person of the citizen; and (4) the use of language or tone of voice 

indicating that compliance with an officer’s request might be compelled.” Id. at 337 (citing 

United States v. Mendenhall, 446 U.S. 544, 554 (1980)).

The analysis in this case is best conducted in two parts — first, Plaintiff’s initial contact 

with Bazzie, followed by his interactions with Bazzie and Kelly after Bazzie reviewed the 

restaurant’s security camera footage. 

Plaintiff’s allegations with respect to the initial encounter fail to invoke Fourth 

Amendment protections. By his own account, Plaintiff initiated the encounter by calling 911. 

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Doc. 3 at 4. When Bazzie and other officers arrived, they did not allow him “to fully explain the 

situation,” and when Bazzie asked him what he wanted her to do, Plaintiff responded “I want 

everyone who put they hands on my person arrested for assault/battery and robbery/attempt [sic] 

robbery.” Doc. 3 at 7. Bazzie stated “I will go inside and look at the security camera” to which 

Plaintiff responded “OK.” Doc. 3 at 7. Bazzie then entered the restaurant to investigate. Doc. 3 

at 4-5. While Plaintiff alleges other DPD officers had him “restrained on the ground like a rat 

trapped in a corner,” Doc. 3 at 5, the overall context actually indicates Plaintiff sat outside the 

restaurant while he waited for Bazzie to return, Doc. 3 at 7. No detention occurred at this point. 

First, while there were allegedly several DPD officers present, Plaintiff does not allege any of 

them displayed a weapon or physically touched him. See Mask, 330 F.3d at 337. Nor does he 

indicate the officers gave any verbal cues suggesting he was compelled to remain at the scene.4 

Id. Under these circumstances, no objectively reasonable person in Plaintiff’s position would 

have believed he was not free to leave. See Delgado, 466 U.S. at 216.

Once Bazzie emerged from the restaurant, however, the dynamic apparently shifted. 

Taking Plaintiff’s allegations as true, after reviewing the security footage, Bazzie informed 

Plaintiff she did not see any evidence he had been assaulted and that “Plaintiff caused this 

problem.” Doc. 3 at 5, 7. Plaintiff denied this and told Bazzie “you are a liar at least 3 times 

straight to her body camera and her face.” Doc. 3 at 5, 7. Bazzie then “made [Plaintiff] the 

criminal on the scene by detaining [him]” so she could issue a criminal trespass citation, told him 

4

Indeed, Plaintiff complains the officers made light of the situation by laughing at him and 

mocking his complaints with one Doe officer allegedly telling Plaintiff to “hire a lawyer and sue 

us.” Doc. 3 at 5-6.

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to stop talking, and repeatedly threatened to take him to jail.5 Doc. 3 at 6. Kelly subsequently 

arrived and informed Plaintiff the restaurant owner was within his rights to demand Plaintiff 

leave his store at which point Bazzie again threatened to take Plaintiff to jail. Doc. 3 at 6. 

Plaintiff left the scene and proceeded to a nearby DPD substation to complain. Doc. 3 at 6-7.

These allegations indicate Bazzie briefly detained Plaintiff and cited him for criminal 

trespassing which necessitates a probable cause showing. Berry, 670 F.2d at 591. A person 

commits the misdemeanor of criminal trespass if he “enters or remains on or in property of 

another ... without effective consent and the person . . . received notice to depart but failed to do 

so.” State v. Meru, 414 S.W.3d 159, 163 (Tex. Crim. App. 2013) (quoting TEX. PENAL CODE § 

30.05(a)(2)). “Notice” includes an “oral or written communication by the owner or someone 

with apparent authority to act for the owner.” TEX. PENAL CODE § 30.05(b)(2)(A).

“Probable cause exists when the totality of facts and circumstances within a police 

officer’s knowledge at the moment of the arrest are sufficient for a reasonable person to 

conclude that the suspect had committed or was committing an offense.” Flores v. City of 

Palacios, 381 F.3d 391, 402 (5th Cir. 2004) (emphasis in original) (quotation omitted). To 

overcome a qualified immunity defense, Plaintiff must not only show that Bazzie lacked 

probable cause but also that she was “objectively unreasonable in believing there was probable 

cause for the [citation].” Davidson v. City of Stafford, 848 F.3d 384, 391 (5th Cir. 2017). Put 

differently, qualified immunity protects officers if they had “arguable (that is, reasonable but 

5 While Plaintiff’s complaint indicates Bazzie charged him with criminal trespassing, he states in 

his response to Bazzie and Kelly’s motion that he was merely issued a trespass warning. Doc. 20 

at 8. For purposes of this motion, however, the Court accepts the allegations in Plaintiff’s 

complaint as true. Twombly, 550 U.S. at 572.

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mistaken) probable cause for the [citation].” Club Retro, L.L.C. v. Hilton, 568 F.3d 181, 207 

(5th Cir. 2009).

The Court concludes Bazzie had probable cause to believe Plaintiff had committed the 

offense of criminal trespassing. The allegations in Plaintiff’s complaint indicate he refused to 

leave the restaurant after the owner ordered him to do so following a dispute about his order. 

Doc. 3 at 4. This led the owner and other store personnel to physically remove him from the 

premises, and Bazzie personally observed him being dragged out the door. Doc. 3 at 5-6. After

reviewing the restaurant’s security footage, Bazzie told Plaintiff she did not see any evidence 

that he had been assaulted or robbed and saw only Plaintiff throwing his receipt on the counter. 

Doc. 3 at 7. Based on Plaintiff’s admitted refusal to leave the restaurant following the owner’s 

demand, Bazzie had arguable probable cause to cite him for criminal trespassing. See Meru, 414 

S.W.3d at 163; TEX. PENAL CODE § 30.05(a)(2)). While Plaintiff accuses Bazzie of lying about 

the security footage, “subjective intent, motive, or even outright animus are irrelevant in a 

determination of qualified immunity based on arguable probable cause to arrest.” Mendenhall v. 

Riser, 213 F.3d 226, 231 (5th Cir. 2000).

Plaintiff’s claim against Kelly fares no better. Supervisory officials are not liable under 

section 1983 for the actions of subordinates on a theory of vicarious liability. Turner, 848 F.3d 

at 695. Accordingly, Kelly is not liable for any acts which occurred before she arrived on the 

scene. Id. The only remaining issue is whether Plaintiff adequately alleges Kelly violated his 

Fourth Amendment rights after she arrived. Id. To make this showing, Plaintiff must 

demonstrate Kelly was either personally involved in the alleged constitutional deprivation or 

engaged in wrongful conduct causally connected thereto. Id. According to Plaintiff’s allegations 

Kelly’s only involvement was (1) informing Plaintiff that the restaurant owner had the right to 

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demand he leave the premises; and (2) “failing to help him” after he complained to Kelly’s

superior. Doc. 3 at 6. This is not sufficient to plead a Fourth Amendment claim. Even assuming 

Kelly tacitly or explicitly approved of Bazzie’s actions, as stated above, Bazzie had arguable 

probable cause to find Plaintiff was unlawfully trespassing on the property. As such, Plaintiff’s 

claim that Kelly refused to help him following his complaint does not implicate the Fourth 

Amendment.

Because Plaintiff has not pled sufficient facts to establish that either Bazzie or Kelly violated his 

Fourth Amendment rights, they are entitled to qualified immunity and Plaintiff’s claims against them 

should be DISMISSED. See Defrates v. Podany, 789 F. App’x 427, 431-32 (5th Cir. 2019) (holding 

off-duty police officer had probable cause to arrest a parent at his son’s off-campus school event, and 

thus was entitled to qualified immunity, where the officer knew the school had issued the parent a 

criminal trespass warning, and a school administrator told the officer the parent had refused to leave); 

Pena v. Bexar Cty., Tx., 726 F. Supp. 2d 675, 693 (W.D. Tex. 2010) (holding court security officers 

were entitled to qualified immunity on Fourth Amendment claim brought by a disabled individual 

arrested for criminal trespass as officers reasonably believed the arrestee’s animal was not a service dog 

which violated county policy).

2. First Amendment Claim

The extent of Plaintiff’s allegations with respect to his First Amendment claim is that 

“Defendants,” particularly Bazzie, failed to take his assault/robbery report seriously and retaliated 

against him by treating him like a criminal, which chilled his rights to call 911 for assistance and seek 

justice as a crime victim.6 Doc. 3 at 1, 6-9, 11-12. Bazzie and Kelly argue Plaintiff has not pled facts 

6 While Plaintiff further asserts “Defendants” continue to “chill [his] rights” by delaying 

responses to his open records requests, Doc. 3 at 9-10, the undersigned has not located any case 

law suggesting this implicates First Amendment concerns. Cf. Nabelek v. Bradford, 228 S.W.3d 

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establishing a First Amendment retaliation claim because there was probable cause to believe Plaintiff 

was trespassing on the restaurant’s property. Doc. 14 at 7-8. While Plaintiff does not directly respond 

to this argument, the Court will nonetheless address the merits of his claim.

The First Amendment generally prohibits government officials from retaliating against an 

individual for engaging in protected speech. Nieves v. Bartlett, 139 S. Ct. 1715, 1722 (2019). “If an 

official takes adverse action against someone based on that forbidden motive, and non-retaliatory 

grounds are in fact insufficient to provoke the adverse consequences, the injured person may generally 

seek relief by bringing a First Amendment claim.” Id. (internal quotation marks and citations omitted). 

The elements of such a claim in the present context are (1) the plaintiff engaged in constitutionally 

protected activity; (2) the officer’s actions injured the plaintiff such that the injury “would chill a person 

of ordinary firmness from continuing to engage in that activity”; and (3) the officer’s allegedly unlawful 

actions were substantially motivated by their opposition to the plaintiff’s constitutionally protected 

conduct. Alexander v. City of Round Rock, 854 F.3d 298, 308 (5th Cir. 2017) (citing Keenan v. Tejeda, 

290 F.3d 252, 258 (5th Cir. 2002)).

Plaintiff’s claim that either Bazzie or Kelly retaliated against him for calling 911 and painted him 

as a trespasser are not supported by the facts as alleged in his complaint. Assuming Plaintiff’s complaint 

of criminal activity constituted protected speech, he has not set forth any plausible facts suggesting that 

either Bazzie’s or Kelly’s acts would chill a person of ordinary firmness from reporting a crime. 

Alexander, 854 F.3d at 308. Indeed, Plaintiff acknowledges he went to a DPD substation to complain 

about his treatment directly after leaving the restaurant, where Kelly issued him another incident report 

pertaining to his assault/robbery complaint. Doc. 3 at 6.

715, 720 (Tex. App.—Houston [14th Dist.] 2006, pet. denied) (holding that statute allowing 

records custodians to refuse information requests from prisoners did not violate prisoner’s First 

Amendment right to petition the government for redress of his grievances). 

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Nor does Plaintiff plausibly allege that either officers’ actions were substantially motivated by 

their opposition to him calling 911 or complaining about his treatment at the restaurant. Alexander, 854 

F.3d at 308. Rather, the complaint indicates Bazzie discussed the situation with Plaintiff when she 

arrived, asked him what he wanted her to do, and went inside the restaurant to investigate his claims 

with his acquiescence. Doc. 3 at 7. Furthermore, assuming Bazzie did cite Plaintiff for criminal 

trespassing, that cannot be reasonably attributed to his report of criminal activity because probable cause 

supported the trespassing charge as discussed supra. See Alexander, 854 F.3d at 308 (“Furthermore, any 

adverse action that was taken once the arrest was effected cannot be reasonably attributed to 

Alexander’s alleged use of an expletive, as Alexander was ultimately arrested for resisting a search and 

not for any unfortunate word choice.”). Accordingly, Plaintiff’s First Amendment claims against Bazzie 

and Kelly should be DISMISSED.

3. Equal Protection Claim

The gist of Plaintiff’s equal protection claim is that “Defendants” treated him as they did because 

he is black and was attempting to report a crime. See Doc. 3 at 5 (alleging Bazzie threatened to take him 

to jail “because he is Black and can’t be right”). Bazzie and Kelly argue this claim should be dismissed 

because Plaintiff (1) does not allege he is a member of a protected class and (2) has not pled they treated 

him differently than other crime victims who call 911. Doc. 14 at 8-9.

The Court disagrees as to their first point because Plaintiff plainly alleges his membership in a 

protected racial class. Doc. 3 at 5. The second contention will be discussed infra. “The Equal 

Protection Clause directs that persons similarly situated should be treated alike.” Williams v. Bramer, 

180 F.3d 699, 705 (5th Cir. 1999) (citation omitted), decision clarified on reh’g, 186 F.3d 633 (5th Cir. 

1999). To maintain an equal protection claim, a plaintiff generally must allege he “received treatment 

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different from that received by similarly situated individuals and that the unequal treatment stemmed 

from a discriminatory intent.” Club Retro, L.L.C., 568 F.3d at 212 (citation omitted)

Plaintiff’s allegation that Bazzie and Kelly treated him differently than other crime victims 

because he is black is entirely conclusory and thus insufficient to support an equal protection claim. 

Collins, 224 F.3d at 498 (noting that a court cannot “accept as true conclusory allegations or 

unwarranted deductions of fact.”). Even a “[police] officer’s use of a racial epithet, without harassment 

or some other conduct that deprives the victim of established rights, does not amount to an equal 

protection violation.” Williams, 180 F.3d at 706 (“Where the conduct at issue consists solely of speech, 

there is no equal protection violation.”); Club Retro, L.L.C., 568 F.3d at 213 (holding plaintiffs failed to 

state an equal protection claim where they did not allege any defendant said they “targeted [the club] 

because it was minority-owned and attracted a mixed-race and mixed-ethnicity crowd,” and the 

purported absence of similar raids on a club that catered to white patrons did not carry plaintiffs’ 

burden). Moreover, to the extent Plaintiff implies either Bazzie or Kelly violated his equal protection 

rights by failing to investigate and charge the restaurant personnel who allegedly attacked him, he has no 

constitutional right in that regard. See Oliver v. Collins, 904 F.2d 278, 281 (5th Cir. 1990) (holding 

there is no constitutional right to have an individual investigated and prosecuted). Accordingly, 

Plaintiff’s equal protection claim should be DISMISSED.

C. City of Dallas

The City argues Plaintiff’s section 1983 claims should be dismissed because (1) he has 

not sufficiently alleged that either Bazzie or Kelly violated any of his constitutional rights; (2) he 

has not pled the Monell factors; and (3) his official-capacity claims against Bazzie and Kelly are 

duplicative of his claims against the City. Doc. 13 at 4-7. Additionally, the City requests that 

the Court dismiss Plaintiff’s claims for punitive damages, attorneys’ fees, and declaratory and 

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injunctive relief because he is not entitled to punitive damages or a fee award and has not 

demonstrated that either declaratory or injunctive relief is warranted. Doc. 13 at 8-9. While 

Plaintiff generally argues he can establish Monell liability, he does not otherwise respond to the 

City’s arguments. See Doc. 21, passim.

Upon consideration, the Court finds the City’s arguments are well taken on all points. 

First, because Plaintiff has failed to adequately state any claim against either Bazzie or Kelly, 

there is no basis for liability on the part of the City. See Alpha v. Hooper, 440 F.3d 670, 672 (5th 

Cir. 2006) (holding that where plaintiff’s constitutional claims failed, there was no basis for 

county’s liability). Additionally, Plaintiff’s complaint does not adequately allege a municipal 

liability claim under Monell. Plaintiff does not point to a policymaker, an official City policy or 

custom of violating its citizens’ First, Fourth, or Fourteenth Amendment rights in the manner 

described, or assert that a City policy or custom was the moving force behind the alleged 

violations. Monell, 436 U.S. at 694. Accordingly, Plaintiff’s claims against the City should be 

dismissed.

Plaintiff’s official-capacity claims against Bazzie and Kelly also should be dismissed 

because the claims “represent only another way of pleading an action against an entity of which 

an officer is an agent.” Kentucky v. Graham, 473 U.S. 159, 165 (1985) (quoting Monell, 436 

U.S. at 690 n.55); see also Turner v. Houma Mun. Fire & Police Civil Serv. Bd., 229 F.3d 478, 

485 (5th Cir. 2000) (holding that when a party sues a government employee in her official 

capacity as well as the governmental entity itself, “[t]he official-capacity claims and the claims 

against the governmental entity essentially merge.”).

Plaintiff also is not entitled to attorneys’ fees as he is representing himself, and punitive 

damages are not available against a municipality in a section 1983 action. See Kay v. Ehrler, 499 

Case 3:22-cv-00585-G-BK Document 25 Filed 11/16/22 Page 16 of 18 PageID 313
17

U.S. 432, 435 (1991); City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 271 (1981). Plaintiff 

additionally cannot show that injunctive relief is warranted. To have standing, a plaintiff seeking 

such relief must demonstrate that he has sustained or is in immediate danger of sustaining a 

direct injury as the result of the challenged conduct. Armstrong v. Turner Indus., Inc., 141 F.3d 

554, 563 (5th Cir. 1998) (citation omitted). The injury or threat thereof must be both real and 

immediate, not merely hypothetical. Id. at 563 n.23 (citation omitted). Plaintiff’s suggestion 

that he may face future conflicts involving DPD officers is nothing more than conjecture. See

Doc. 3 at 13. Finally, because Plaintiff has not stated any viable claims, he is not entitled to 

declaratory relief. See Green v. JPMorgan Chase Bank, N.A., 937 F.Supp.2d 849, 864 (N.D. 

Tex. 2013).

IV. LEAVE TO AMEND

A court may dismiss a claim that fails to meet the pleading requirements, but “should not 

do so without granting leave to amend, unless the defect is simply incurable or the plaintiff has 

failed to plead with particularity after being afforded repeated opportunities to do so.” Hart v. 

Bayer Corp., 199 F.3d 239, 247 n.6 (5th Cir. 2000). Plaintiff has not previously been granted 

leave to amend. Thus, if this recommendation is accepted, Plaintiff should be given the 

opportunity to file an amended complaint. See Jacquez v. Procunier, 801 F.2d 789, 792 (5th Cir. 

1986) (holding that dismissing an action after giving the plaintiff only one opportunity to state 

his case is ordinarily unjustified).

V. CONCLUSION

For the reasons set forth above, Defendants’ respective Motions to Dismiss should be 

GRANTED and Plaintiff’s claims should be DISMISSED WITHOUT PREJUDICE. 

However, if Plaintiff fails to cure the deficiencies noted herein by filing an amended complaint 

Case 3:22-cv-00585-G-BK Document 25 Filed 11/16/22 Page 17 of 18 PageID 314
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within 14 days of the acceptance of this recommendation, upon Defendants’ re-urging, Plaintiff’s 

claims should be dismissed with prejudice.

SO RECOMMENDED on November 16, 2022.

INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

A copy of this report and recommendation will be served on all parties in the manner provided by 

law. Any party who objects to any part of this report and recommendation must file specific 

written objections within 14 days after being served with a copy. See 28 U.S.C. § 636(b)(1); FED.

R. CIV. P. 72(b). An objection must identify the specific finding or recommendation to which 

objection is made, state the basis for the objection, and indicate the place in the magistrate judge’s 

report and recommendation where the disputed determination is found. An objection that merely 

incorporates by reference or refers to the briefing before the magistrate judge is not specific. 

Failure to file specific written objections will bar the aggrieved party from appealing the factual 

findings and legal conclusions of the magistrate judge that are accepted or adopted by the district 

court, except upon grounds of plain error. See Douglass v. United Services Automobile Ass’n, 79 

F.3d 1415, 1417 (5th Cir. 1996), modified by statute on other grounds, 28 U.S.C. § 636(b)(1)

(extending the time to file objections to 14 days). 

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