IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

ROBERT RUEAL AMAYA §

§

VS. § CIVIL ACTION NO. 4:04-CV-775-Y

§

BRETT WESTBROOK, et al. §

ORDER DENYING PLAINTIFF’S MOTIONS FOR COUNSEL AND EXTENSION and, 

 ORDER RESOLVING MOTIONS TO DISMISS UNDER RULE 12(C) 

Now pending before the Court are the motions to dismiss under

Federal Rule of Civil Procedure 12(c) of the remaining individual

defendants: Chief of Police Theron Bowman, Sergeant D. Depoma, and

Lieutenant Tim Canas. Plaintiff Amaya did not timely file any

response to the motions, but several weeks later filed a motion for

extension of time to respond, and a motion for appointment of

counsel. With regard to the motion for appointment of counsel, the

Court concludes, as it did with Amaya’s prior request for counsel,

that as he has displayed a greater ability than most incarcerated

litigants, he is not entitled to appointment of counsel. With

regard to Amaya’s motion for extension of time to file a response

to the motions to dismiss, the Court concludes that it must be

denied for several reasons. After the filing of the Rule 12(c)

motions in September 2007, Amaya had already been granted an

extension of time to file a Rule 7 reply, and that reply, filed

September 28, 2007, will be considered by the Court. Further, Amaya

did not seek an extension of time to respond to the 12(c) motions

until January 2008, several months after the filing of the motions.

Thus, the motion for extension of time will be denied. 

Plaintiff Amaya’s pleadings that are subject to the Court’s
1

Chauvin v. State Farm Fire & Cas. Co., 495 F.3d 232, 237 (5th Cir. 2007),

cert den’d, 128 S.Ct. 1075 (2008); Johnson v. Johnson, 385 F.3d 503, 529 (5th

Cir. 2004). 

2

Lowrey v. Texas A & M Univ. Sys., 117 F.3d 242, 247 (5th Cir.1997). 

3

Baker v. Putnal, 75 F.3d 190, 196 (5th Cir.1996). 

4

FED. R. CIV. P. 8(a); see also Swierkiewicz v. Sorema N.A., 534 U.S. 506,

508 (2002) (holding Rule 8(a)’s simplified pleading standard applies to most

civil actions). 

2

review are his original form complaint with a handwritten

attachment entitled “Statement of Facts,” his more definite

statement filed in response to this Court’s order, and the Rule 7

reply. By these pleadings, Amaya asserts claims against Bowman,

Depoma, and Canas for violation of his federal constitutional

rights under 42 U.S.C. § 1983. The respective motions under 12(c)

seek dismissal of all of Amaya’s claims.

The standard for dismissal on a motion for judgment on the

pleadings under Rule 12(c) is the same as that for dismissal for

failure to state a claim under Rule 12(b)(6).1 A motion to

dismiss for failure to state a claim under Rule 12(b)(6) is

generally viewed with disfavor.2 The court must accept all well

pleaded facts in the complaint as true and view them in the light

most favorable to the plaintiff.3 Rule 12 must be interpreted in

conjunction with Rule 8(a), which sets forth the requirements for

pleading a claim for relief in federal court and calls for “a short

and plain statement of the claim showing that the pleader is

entitled to relief.”4 The court cannot look beyond the face of the
5

Baker, 75 F.3d at 196; Spivey v. Robertson, 197 F.3d 772, 774 (5th

Cir.1999), cert. den’d, 530 U.S. 1229 (2000).

6

Schultea v. Wood, 47 F.3d 1427, 1431 (5th Cir. 1995)(en banc); Guidry v.

Bank of LaPlace, 954 F.2d 278, 281 (5th Cir.1992).

7

Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1965, 1974 (2007)(abrogating

Conley v. Gibson, 355 U.S. 41, 45-46 (1957), to the extent the Court concluded

therein that a plaintiff can survive a motion to dismiss “unless it appears

beyond doubt that the plaintiff can prove no set of facts in support of his

claims which would entitle him to relief”); see also Orrill v. Mortgage

Electronic Registration Systems, Inc. et al., No.06-10012, 2008 WL 1867706, at

*1, (E.D. La. April 24, 2008)(applying Bell Atlantic standard to a 12(c) motion.)

8

See Kentucky v. Graham, 473 U.S. 159, 166 (1985); see also Brooks v.

George County, Mississippi, 84 F.3d 157, 165 (5th Cir.), cert. den’d, 519 U.S.

948 (1996), citing Hafer v. Melo, 502 U.S. 21 (1992). 

3

pleadings in resolving a Rule 12(b)(6) motion.5

 A plaintiff,

however, must plead specific facts, not mere conclusory

allegations, to avoid dismissal.6 In other words, he must plead

“enough facts to state a claim to relief that is plausible on its

face” and his “factual allegations must be enough to raise a right

to relief above the speculative level, on the assumption that all

the allegations in the complaint are true (even if doubtful in

fact).”7

Official-capacity claims

Amaya has named Bowman, Depoma, and Canas in both an

individual and an official capacity. These defendants do not deny

that, at the time of the events made the basis of this suit, they

were employed by the City of Arlington, Texas (“Arlington”).

Arlington is a separately named defendant in this suit. Claims

against an individual government employee in an official capacity

are treated as claims against the governmental entity itself.8 As

such official capacity claims against Bowman, Depoma, and Canas are
9

See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); Sorenson v. Ferrie,

134 F.3d 325, 327 (5th Cir. 1998). 

10See Anderson v. Creighton, 483 U.S. 635, 640 (1987).

11See Saucier v. Katz, 533 U.S. 194, 201 (2001).

12See Hassan v. Lubbock Indep. Sch. Dist., 55 F.3d 1075, 1079 (5th Cir.),

cert. denied, 516 U.S. 995 (1995). 

4

redundant to the claims pending against Arlington, they will be

dismissed. 

Individual Defendants 

Each defendant has asserted that Amaya has failed to allege

claims sufficient to overcome the defense of qualified immunity.

Qualified immunity protects government officials performing

discretionary functions from personal liability as long as their

conduct violates no clearly established constitutional or federal

statutory rights.9

 To overcome such an official’s immunity from

suit, a plaintiff must allege violation of a right so apparent or

so obvious that a reasonable official would understand that what he

is doing violates that right.10 When a defendant pleads qualified

immunity, as defendants have done, the Court must initially

determine whether the plaintiff has asserted a violation of a

constitutional or statutory right at all.11 This is the first prong

of a two-prong test. The Court need go no further if the plaintiff

has failed to allege that the defendant violated a constitutional

or federal statutory right.12 If a violation is shown, the Court

must reach the second prong, which involves essentially two

separate inquiries: whether the allegedly violated right was
13See Saucier, 533 U.S. at 202.

14See Anderson, 483 U.S. at 641. 

15Hope v. Pelzer, 536 U.S. 730, 739 (2002)(quoting Anderson, 483 U.S. at

640); see also Saucier, 533 U.S. at 202 (“[T]he right the official is alleged to

have violated must have been clearly established in a more particularized, and

hence more relevant, sense”)(quoting Anderson, 483 U.S. at 640).

16Saucier, 533 U.S. at 202. 

17Thompson v. Upshur County, 245 F.3d 447, 457 (5th Cir. 2001)(citations

omitted). 

5

“clearly established” at the time of the incident;13 and, if so,

whether a reasonable government official in the defendant’s

situation would have understood that his conduct violated that

right.14

In order for a right to be “clearly established” the contours

of the right “must be sufficiently clear that a reasonable official

would understand that what he is doing violates that right. This

is not to say that an official action is protected by qualified

immunity unless the very action in question has previously been

held unlawful . . . but it is to say that in light of pre-existing

law the unlawfulness must be apparent.”15 If the law does not put

the defendant on notice that his conduct would clearly be unlawful,

judgment based on qualified immunity is appropriate.16 With regard

to the question of whether the defendant’s conduct violated a

clearly established right, a defendant’s “acts are held to be

objectively reasonable unless all reasonable officials in the

defendant’s circumstances would have then known that the

defendant’s conduct violated the United States Constitution . . .

.”17 As the inquiry “turns only upon the objective reasonableness
18Id. 

6

of the defendant’s acts, a particular defendant’s subjective state

of mind has no bearing on whether that defendant is entitled to

qualified immunity.”18

Canas

With regard to defendant Canas, Amaya alleges that while he

was housed in the Arlington city jail on November 3, 2002, he was

told by Canas that he could not file a complaint against arresting

officer Westbrook, and that when he still went ahead and asked

Canas to file such a complaint, Canas placed him in an isolation

cell with a loss of privileges. (Compl.; Attachment at ¶¶ 31-34.)

Amaya contends that these actions violated his rights under the

First Amendment and under the due-process clause of the Fourteenth

Amendment. (Compl.; Attachment at ¶ 62.) Amaya also claims that he

wrote the internal affairs division of the Arlington police

department several months later, and that Canas responded to such

inquiry by writing him back with the direction to contact the

Tarrant County district attorney’s office. (More Definite Statement

at 45.) Plaintiff makes no additional allegations against Canas.

Defendant Canas has shown in his motion to dismiss at pages 5-8,

that such allegations do not state any violations of a

constitutional or statutory right. Accoringly, Canas is entitled

to qualified immunity and his motion will be granted. 

Bowman

Amaya’s pleadings state few allegations against Police Chief
7

Bowman. He makes the conclusory allegation that Bowman had a policy

that delayed or prevented him from filing a complaint against one

of his subordinate officers, and that failure to allow him to

complain resulted in undue punishment and the filing of false

charges against him. (Compl.; Attachment at ¶¶ 49-50.) He makes the

allegation that Bowman’s failure to allow him to complain of the

arresting officers’ actions resulted in numerous violations of his

rights. (Compl. Attachment at ¶¶ 66-67.) But since plaintiff Amaya

has not alleged any personal involvement by Bowman, has apparently

named Bowman purely by virtue of his position as chief of police of

the Arlington police department, and has wholly failed to state any

facts–-just conclusions–-as to Bowman’s connection to any of the

other events included in the pleadings, Bowman is entitled to

dismissal for the reasons stated in his motion at pages 4-8. 

Depoma 

Plaintiff’s complaints against Sergeant Depoma arise from an

incident on October 25, 2002, where Amaya was detained by Depoma

and other officers of the Arlington police department.

Specifically, Amaya alleges that after he walked to retrieve his

car from the parking lot of a “Playmates” bar at 3:00 a.m., he was

approached by officers, asked for identification, searched, and

then placed in the back of a patrol car. Amaya alleges that Depoma

stood directly in front of the police car door so that he could not
19Although initially named as “John Doe #1," Amaya identified Doe #1 as

Depoma in his more definite statement. 

8

leave. (Compl. Attachments at ¶ 6.)19 He alleges Depoma did so in

an intimidating and dominant manner. (More Definite Statement

(“MDS”) at 4.) Amaya alleges that he refused to sign a “consent to

search form” on several occasions, and asked to call a lawyer if he

was being placed under arrest or could not leave. (Id. at ¶ 10-11;

MDS at 4-5.) Amaya alleges he “reluctantly” and “involuntarily”

signed the consent to search form at approximately 4:30 a.m. (Id.

at 12.) He alleges he did so only because he believed he would not

be allowed to leave. (MDS at 5.) After the officers searched the

car, he was released to leave. Amaya contends the officers used

false information to establish false probable cause to justify

searching his vehicle. (MDS at 6.) Amaya has included in his more

definite statement the report of the Arlington police department

recording the events of which he complains. (July 13, 2005,

Supplement to MDS Exhibit 1.) In essence, that report indicates

that officers approached Amaya because he fit the description of a

person consistent with information they had just obtained from

another person arrested on the scene due to the presence of a

methamphetamine lab in his vehicle. (Id.) Amaya challenges several

portions of the report in his more definite statement. (Id. at 7-

11.) Amaya contends that Depoma’s actions amounted to: an illegal

investigatory detention of him without reasonable suspicion or

probable cause; an illegal seizure of his personal property without
20United States v. Martinez, 486 F.3d 855, 861 (5th Cir. 2007). 

21United States v. Brigham, 382 F.3d 500, 506 (5th Cir. 2004)(en banc),

citing Terry, 392 U.S. at 19-20. 

22United States v. Santiago, 310 F.3d 336, 341-42 (5th Cir. 2002).

9

reasonable suspicion or probable cause; an illegal custodial

interrogation without reasonable suspicion, probable cause or

“Miranda” warnings; and a compelled, involuntary signing of the

consent-to-search form without reasonable suspicion or probable

cause. (September 27, 2007, Rule 7 Reply at 6.) 

Depoma argues in his motion that Amaya’s claims fail to state

a claim for relief under Terry v. Ohio, 392 U.S. 1, 30 (1968). An

investigative stop is permissible under Terry when the officer has

a reasonable suspicion supported by articulable facts that criminal

activity may be afoot.20 In reviewing the validity of the stop,

“[c]ourts first examine whether the officer’s action was justified

at its inception, and then inquire whether the officer’s subsequent

actions were reasonably related in scope to the circumstances that

justified the stop.”21 In order to continue detention after the

officers complete the review of a driver’s license, insurance

papers, and run any computer check on the driver and vehicle, there

must be a reasonable suspicion of criminal activity.22 Further, in

reviewing the voluntariness of the consent to search, the Court of

Appeals for the Fifth Circuit has listed six factors to consider:

(1)the voluntariness of the defendant’s custodial status;

(2) the presence of coercive police procedures; (3) the

extent and level of the defendant’s cooperation with the

police; (4) the defendant’s awareness of his or her right

to refuse consent; (5) the defendant’s education and
23United States v. Kelly, 981 F.2d 1464, 1470 (5th Cir.), cert den’d, 508

U.S. 944 (1993)(quoting United States v. Olivier-Becerril, 861 F.2d 424, 426 (5th

Cir.1988)).

24Depoma also argues that as he was initially identified as only a John Doe

defendant and was not identified by name and served until after the two-year

statute of limitations had expired. But during some of the relevant periods,

Amaya was awaiting the Court’s screening of his pleadings and then authorization

of service of process under 28 U.S.C. 1915A and 1915(e)(2)(b). Thus, Depoma’s

motion to dismiss on the basis of limitations is denied. 

2542 U.S.C.A. 1997e(e)(West 2006). 

10

intelligence; and (6) the defendant’s belief that no

incriminating evidence will be found.23

Applying these standards to the facts as alleged by Amaya

leads to the conclusion that he has stated a claim for relief

sufficient to withstand a motion to dismiss. Thus, defendant

Depoma’s motion to dismiss on the basis of qualified immunity must

be denied.24 

The Court notes, however, that defendant Depoma has also

sought through the motion to dismiss to limit Amaya’s claims for

recovery of compensatory damages. As a part of the Prison

Litigation Reform Act, Congress placed a restriction on a

prisoner’s remedies unless there is a showing of physical injury:

“[n]o Federal civil action may be brought by a prisoner confined in

a jail, prison, or other correctional facility, for mental or

emotional injury suffered while in custody without a prior showing

of physical injury.”25 The Court of Appeals for the Fifth Circuit

has determined that this provision, absent physical injury, bars

recovery of damages for mental or emotional injury allegedly

resulting from a violation of a constitutional right:

We agree with the majority of the other federal circuits
26Geiger v. Jowers, 404 F.3d 371, 375 (5th Cir. 2005)(citations omitted).

11

that have addressed this issue in holding that it is the

nature of the relief sought, and not the underlying

substantive violation, that controls: Section 1997e(e)

applies to all federal civil actions in which a prisoner

alleges a constitutional violation, making compensatory

damages for mental or emotional injuries non-recoverable,

absent physical injury. Thus, as the district court

correctly held, Geiger's failure to allege physical

injury falls squarely under § 1997e(e)'s bar, precluding

his recovery of compensatory damages for emotional or

mental injuries allegedly suffered as a result of the

purported First Amendment violation.26 

Amaya has not alleged any physical injury as a result of the

claimed violations of his rights by Depoma. Thus, Amaya is not

entitled to recover damages for his alleged mental and emotional

injuries. Any claim for compensatory damages for mental or

emotional injury is barred under 42 U.S.C. § 1997e(e), and must be

dismissed for failure to state a claim.

Therefore:

Plaintiff Amaya’s motion for appointment of counsel [docket

no. 63] is DENIED.

Amaya’s motion for extension of time [docket no. 64] is

DENIED. 

Defendant Theron Bowman’s motion to dismiss under Federal Rule

of Civil Procedure 12(c)[docket no. 53] is GRANTED.

The motion of defendant Tim Canas to dismiss under Federal

Rule of Civil Procedure 12(c)[docket no. 54] is GRANTED; the motion

of defendant Sergeant Depoma to dismiss under Federal Rule of Civil

Procedure 12(c) is GRANTED only to the extent that Amaya is barred
12

from recovering from Depoma any compensatory damages for mental or

emotional injury under 42 U.S.C. § 1997e(e), otherwise, Depoma’s

motion to dismiss is DENIED. 

All of Plaintiff's claims against Theron Bowman and Tim Canas

are DISMISSED WITH PREJUDICE; and all of Plaintiff’s claims against
13

Sergeant Depoma for mental or emotional injury are DISMISSED WITH

PREJUDICE.

SIGNED May 14, 2008.

____________________________

TERRY R. MEANS

UNITED STATES DISTRICT JUDGE