Smith v. Hernandez

NORTHERN BIS Ie OF TEX

IN THE UNITED STATES DISTRICT COURT FILED

NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION’. | ans

RUSSELL SMITH, 5 oa U.S. DISTRICT COUR]

Plaintiff, : =z

vs. : NO. 4:19-CV-940-A

BLAS A. HERNANDEZ, ET AL., :

Defendants. :

MEMORANDUM OPINION & ORDER

Came on for consideration the motion by defendants, Blas A.

Hernandez (“Hernandez”) and City of Southlake (“Southlake”), to

dismiss the claims brought against them by plaintiff, Russell

Smith, in the above-captioned action. After considering the

motion and brief in support, Hernandez’s supplemental motion and

brief, plaintiff’s response brief, the reply, the record, and

the applicable legal authorities, the court finds that the

motion should be granted in part and denied in part.

I.

Factual Background

This § 1983 action arises out of an interaction between

plaintiff and Hernandez, a corporal of the Southlake Police

Department, who plaintiff alleges violated his Fourth Amendment

rights. Doc.1+ □□ 2, 5. Plaintiff claims he was standing on a

' The “Doc. _” reference is to the number of the item on the docket in this action.

public sidewalk and taking pictures of routine flaring at the

Magellan pipeline plant in Southlake, Texas (“the facility”) and

that an individual saw him and called 911 to report a suspicious

individual photographing the facility. Id. 4 6-7. The 911

caller never stated that the suspicious individual had

trespassed onto the property. Id. §.8. Hernandez,

investigating the tip, approached plaintiff and incorrectly

stated that he was responding to a 911 call about an individual

going through a gate at the facility, which plaintiff denied.

Id. 9-17.

Plaintiff refused to identify himself and insisted that

Hernandez lacked a legal basis for the investigatory detention.

Id. 4 26, 34. Hernandez handcuffed plaintiff. Id. | 36. He

then contacted the 911 caller, who clarified that plaintiff did

not go behind the gate. Id. 4§ 52-57. Next, Hernandez opened

plaintiff’s backpack without plaintiff’s consent, removed

plaintiff's wallet, and used the driver’s license therein to

identify plaintiff. Id. 44 64-66, 69-73. After being told by

dispatch that plaintiff was clear of any warrants, Hernandez

told plaintiff that he was free to go and released him from the

handcuffs. Id. 44 79, 81.

Il.

Procedural Background

On November 7, 2019, plaintiff filed his complaint,

alleging, pursuant to 42 U.S.C. § 1983, that Hernandez violated

his Fourth Amendment rights by illegally detaining him and

searching his backpack, and that Southlake is liable for

policies of (I) inadequate supervision and training in the

police force and (II) unconstitutional stops, detentions,

searches, and arrests. Doc. 1 F§ 119-133 (detention), 134-150

(search), 151-162 (policies). On January 6, 2020, after

defendants answered and filed the motion to dismiss, the court

ordered plaintiff to file a supplemental pleading providing

allegations which support the inapplicability of Hernandez’s

qualified immunity defense and for Hernandez to file a

supplement to the motion to dismiss in response to plaintiff's

supplemented pleading. Doc. 18. The parties complied, Doc. 19,

Doc. 20, and also filed a response and reply, Doc. 21, Doc. 22,

Doc. 23.

Lid.

Grounds of the Motion

Defendants argue that plaintiff’s claims should be

dismissed for failure to state a claim upon which relief may be

granted. Doc. 12 at 2-4 (citing Fed. R. Civ. P. 12(b)(6)). The

motion states that the claims against Southlake fail because

plaintiff did not plead facts to establish the elements required

to state a claim against a municipality under § 1983. Id. at 4-

10. The motion also states that the claims against Hernandez

fail because he is shielded by qualified immunity. Id. at 10-

20.

Iv.

Applicable Law

Rule 8(a)(2) of the Federal Rules of Civil Procedure

provides, in a general way, the applicable standard of pleading.

It requires that a complaint contain “a short and plain statement

of the claim showing that the pleader is entitled to relief,”

Fed. R. Civ. P. 8(a) (2), “in order to give the defendant fair

notice of what the claim is and the grounds upon which it rests.”

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal

quotation marks and ellipsis omitted). Although a complaint need

not contain detailed factual allegations, the “showing”

contemplated by Rule 8 requires the plaintiff to do more than

simply allege legal conclusions or recite the elements of a

cause of action. Id. at 555 & n.3. Thus, while a court must

accept all of the factual allegations in the complaint as true,

it need not credit bare legal conclusions that are unsupported

by any factual underpinnings. See Ashcroft v. Igbal, 556 U.S.

662, 679 (2009) (“While legal conclusions can provide the

framework of a complaint, they must be supported by factual

allegations.”).

Moreover, to survive a motion to dismiss, the facts pleaded

must allow the court to infer that the plaintiff's right to

relief is plausible. Id. at 678. To allege a plausible right

to relief, the facts pleaded must suggest liability; allegations

that are merely consistent with unlawful conduct are

insufficient. Twombly, 550 U.S. at 566-69. “Determining whether

a complaint states a plausible claim for relief .. . fis] a

context-specific task that requires the reviewing court to draw

on its judicial experience and common semse.” Igbal, 556 U.S. at

679.

V.

Analysis

Defendants argue that plaintiff's claims should be

Gismissed for failure to state a claim upon which relief may be

granted. The court finds that dismissal is warranted as to the

claims against Southlake and the illegal detention claim against

Hernandez.

A. The claims against Southlake should be dismissed.

Plaintiff argues that under § 1983, Southlake is liable for

policies of (I) inadequate supervision and training in the

police force and (II) unconstitutional stops, detentions,

searches, and arrests. Doc. 1 4 152. Both claims should be

dismissed for failure to state a claim upon which relief may be

granted.

1. Legal Principles

Municipalities, including cities, may be held liable under

§ 1983. Hampton Co. Nat’l Sur., LLC v. Tunica Cty., 543 F.3d

221, 224 (5th Cir. 2008). However, § 1983 does not allow a

governmental entity to be held vicariously liable for the

actions of its officers under a theory of respondeat superior.

42 U.S.C. § 1983; Bd. of Cty. Comm'rs v. Brown, 520 U.S. 397,

403 (1997). Instead, a governmental entity may be liable under

§ 1983 if the execution of one of its policies or customs

deprives a plaintiff of a constitutional right. Monell v. Dep't

of Soc. Serv., 436 U.S. 658, 690-91 (1978). To hold a city

liable under § 1983 thus requires the plaintiff to “initially

allege that an official policy or custom was a cause in fact of

the deprivation of rights inflicted.” Spiller v. Texas City

Police Dep’t, 130 F.3d 162, 167 (5th Cir. 1997) (internal

quotation marks and citation omitted).

To meet that requirement, a plaintiff must allege: “a

policymaker; an official policy; and a violation of

constitutional rights whose ‘moving force’ is the policy or

custom.” Cox v. City of Dallas, 430 F.3d 734, 748 (5th Cir.

2005) (internal citations omitted). Moreover, “[t]o proceed

beyond the pleading stage, a complaint’s ‘description of a

policy or custom and its relationship to the underlying

constitutional violation . . . cannot be conclusory; it must

contain specific facts.’” Pena v. City of Rio Grande City, 879

F.3d 613, 622 (5th Cir. 2018) (quoting Spiller, 130 F.3d at

167).

Defendants argue that plaintiff's claim against Southlake

should be dismissed because, inter alia,’? plaintiff failed to

allege in nonconclusory terms that a policymaker was involved,

Doc. 12 at 5-6, and that a policy or custom existed, id. at 7-9.

The court agrees that the claims should be dismissed.

2. Plaintiff fails to plead facts about a policymaker.

Defendants argue that plaintiff's claims against Southlake

should be dismissed because, although he alleges that the City

Council, City Manager, and Chief of Police were Southlake’s

policymakers, he does so in a conclusory, boilerplate fashion.

Doc. 12 at 5 (citing Doc. 1 § 162). The court agrees.

First, plaintiff fails to explain how the City Manager and

Chief of Police are policymakers. Generally, a city employee is

? Defendants also allege that plaintiff failed to allege in nonconclusory terms causation and a

constitutional harm. Doc. 12 at 6-7, 9-10.

not a policymaker unless the governmental entity has delegated

exclusive policymaking authority to the employee and cannot

review his or her decisions. City of St. Louis v. Praprotnik,

485 U.S. 112, 127 (1988). “Simply going along with

discretionary decisions made by one’s subordinates, however, is

not a delegation to them of the authority to make policy.” Id.

at 130. Plaintiff has not alleged that the Police Chief and

City Manager have exclusive policymaking authority or that the

City Council delegated such authority to them.

Second, plaintiff fails to plead facts to support his

conclusion that the City Council - or either of the other

purported policymakers - was knowingly involved in the alleged

policy or custom. The complaint states,

The policymakers . ... were aware of the policies,

practices, customs, including retention of Defendant

Hernandez, and failure to train . . . and knowingly

ratified these policies, practices, customs, retention

of Defendant Hernandez, and failures to train with

deliberate indifference to the constitutional violations

that these policies, practices, customs, retention of

Defendant Hernandez, and failures to train were directly

causing.

Doc. 1 § 162.

A City Council may violate rights either by direct orders

or by setting a course of action for city employees which, when

followed, interferes with an individual’s rights. Bennett v.

City of Slidell, 728 F.2d 762, 767 (Sth Cir. 1984). A course of

action may be set by the Council's own promulgation or by its

acceptance of city employees’ conduct. Id. Here, plaintiff

seems to argue that the City Council accepted the conduct

because he contends that the Council was “aware” of the alleged

policy or custom and “knowingly ratified” it. Doc. 1 § 162.

However, plaintiff does not provide any facts to support this

conclusion. Such conclusory statements are inadequate to state

a claim for relief. Igbal, 556 U.S. at 678; Spiller, 130 F.3d

at 167.

The court notes that plaintiff attempts to impute to

Southlake knowledge of Hernandez’s alleged likelihood to violate

individuals’ rights by listing instances of Hernandez scoring

poorly on tests and violating department policies. Doc. 1 § 90,

110. Even if such instances permitted the court to infer the

existence of a policy or custom, plaintiff would still fail to

allege that a policymaker had actual or constructive knowledge

of such policy or custom. “Actual knowledge may be shown

through discussions at council meetings or receipt of written

information.” Pineda v. City of Houston, 291 F.3d 325, 330 (5th

Cir. 2002) (internal quotation and citation omitted).

Constructive knowledge may be attributed to the City Council if

it “would have known of the violations if it had properly

exercised its responsibilities,” such as in situations where the

violations were so widespread as to be the subject of public

discussion or publicity. Id. The complaint does not state that

the purported policy or custom was ever discussed at council

meetings, that documents relaying information about it were sent

to or received by the Council, or that had the Council would

have learned about it had it properly exercised its

responsibilities.

Because plaintiff failed to plead facts regarding the

involvement of a knowing policymaker, he has failed to state a

claim upon which relief may be granted against Southlake, and

such claims should be dismissed.

Je Plaintiff fails to plead facts regarding a policy or

custom of Fourth Amendment violations.

Defendants also argue that plaintiff's claims against

Southlake should be dismissed because he fails to allege facts

regarding the existence of a policy or custom. Doc. 12 at 7-9.

Defendants are correct as to the purported custom of permitting

Fourth Amendment violations.

An “official policy” is “a policy statement, ordinance,

regulation, or decision that is officially adopted and

promulgated by the municipality’s lawmaking officers or by an

official to whom the lawmakers have delegated policy-making

authority.” Pineda, 291 F.3d at 328. In the absence of a

formal policy, a claim against a municipality may be based on a

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custom. A custom is “a pattern of similar incidents in which

citizens were injured or endangered by intentional or negligent

police misconduct and/or that serious incompetence or

misbehavior was general or widespread throughout the police

force.” Fraire v. City of Arlington, 957 F.2d 1268, 1278 (5th

Cir. 1992) (quotation and citation omitted). Plaintiff does not

plead the existence of any official policy because he fails to

identify a policy statement, ordinance, regulation, or decision

officially adopted and promulgated by the municipality.

Therefore, to state claims upon which relief may be granted,

plaintiff must plead facts to support the conclusion that a

custom existed as to each of his claims against Southlake.

Plaintiff does not provide facts to support the conclusion

that a custom existed that allowed unconstitutional detentions,

arrests, and searches.’ Plaintiff alleges no facts to show a

pattern of events similar to his interaction with Hernandez, nor

facts regarding widespread incompetence or misbehavior in the

police force. Id. The complaint states no facts to show that

+ Plaintiff does allege facts to support his conclusion that a custom of inadequate supervision and training

of Southlake police officers exists. He alleges that (I) the Southlake Police Department allowed

Hernandez to enforce and administer the law despite his repeated low scores on both formal and informal

tests, Doc. 1 88-103; (II) the Southlake Police Department did not require Hernandez to attend a

training in 2018 and the first two months of 2019, id. §] 104-106; and (III) Southlake “knowingly failed

to provide or require training on the law to officers who had shown a deficiency in the law and who were

a danger to the constitutional rights of its citizens,” id. § 107. However, because he failed to plead the

existence of a policymaker with knowledge of the custom, this claim should still be dismissed.

11

plaintiff's experience was not an isolated incident, and

allegations of isolated incidents are insufficient to establish

a custom or policy. Id. Instead, plaintiff makes conclusory

statements such as, “At the time of the incident, Defendants

were acting pursuant to a custom, policy, practice, and/or

procedure of the Defendant Southlake, Texas and the Southlake

Police Department.” Doc. 14159. Because plaintiff relies on

vague generalities and conclusions, he has not sufficiently

alleged a custom of permitting Fourth Amendment violations. He

has therefore failed to nudge his claim across the line from

conceivable to plausible at required by Rule 8, and his claim

should be dismissed. See Twombly, 550 U.S. at 555, 570.

B. The illegal detention claim against Hernandez should be

dismissed.

Defendants argue that plaintiff's § 1983 claim against

Hernandez for a detention in violation of the Fourth Amendment

should be dismissed because Hernandez is entitled to qualified

immunity. Doc. 12 at 10-20; Doc. 20 at 1-9. The court agrees.

i. Legal Principles

Qualified immunity insulates a government official from

civil damages liability when the official’s actions do not

“violate clearly established statutory or constitutional rights

of which a reasonable person would have known.” Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982). For a right to be

12

“clearly established,” the right’s contours must be

“sufficiently clear that a reasonable official would understand

that what he is doing violates that right.” Anderson v.

Creighton, 483 U.S. 635, 640 (1987). Individual liability thus

turns on the objective legal reasonableness of the defendant’s

actions assessed in light of clearly established law at the

time. Hunter v. Bryant, 502 U.S. 224, 228 (1991); Anderson, 483

U.S. at 639-40.

In Harlow, the court explained that a key question is

“whether that law was clearly established at the time an action

occurred” because “[i]f the law at that time was not clearly

established, an official could not reasonably be expected to

anticipate subsequent legal developments, nor could he fairly be

said to ‘know’ that.the law forbade conduct not previously

identified as unlawful.” 457 U.S. at 818. In assessing whether

the law was clearly established at the time, the court is to

consider all relevant legal authority, whether cited by the

parties or not. Elder v. Holloway, 510 U.S. 510, 512 (1994).

If public officials of reasonable competence could differ on the

lawfulness of defendant’s actions, the defendant is entitled to

qualified immunity. Malley v. Briggs, 475 U.S. 335, 341 (1986);

Fraire, 957 F.2d at 1273. Allegations of malice or mistake in

judgment will not defeat immunity if the defendant acted in an

13

objectively reasonable manner. Malley, 475 U.S. at 341; Hunter

v. Bryant, 502 U.S. 224, 229 (1991).

When a defendant relies on qualified immunity, the burden

is on the plaintiff to negate the defense. Kovacic v.

Villareal, 628 F.3d 209, 211 (Sth Cir. 2010); Foster v. City of

Lake Jackson, 28 F.3d 425, 428 (Sth Cir. 1994). Although

Supreme Court precedent does not require a case directly on

point, existing precedent must place the statutory or

constitutional question beyond debate. White v. Pauly, 137

S.Ct. 548, 551 (2017). While “general statements of the law are

not inherently incapable of giving fair and clear warning to

officers,” the unlawfulness must be apparent in light of pre-

existing law. Id. (quotations and citations omitted). Thus,

outside of “an obvious case,” failure to identify a prior case

where an officer acting under similar circumstances was held to

have violated a plaintiff’s rights will defeat the plaintiff's

ability to overcome a qualified immunity defense. Id. at 198-

99; Hanks v. Rogers, 853 F.3d 738, 747 (Sth Cir. 2017).

2. Plaintiff failed to show that it is beyond debate that

Hernandez lacked reasonable suspicion to make the

investigatory stop.

Hernandez argues that plaintiff fails to carry his burden

regarding the illegal detention claim because plaintiff does not

provide case law particularized to the facts surrounding the

14

investigatory stop. Doc. 20 at 8-9. Instead, plaintiff relies

on more general precedent establishing the contours of the

investigatory stop, such as Terry v. Ohio, 392 U.S. 1 (1968),

and its progeny. Doc. 19 § 8. Because he fails to cite

factually similar case law, plaintiff does not carry his burden

to show that no reasonable officer would believe that the stop

was justified. See Malley, 475 U.S. at 341.

Plaintiff cites precedent only to show that at the time of

the stop, it was “clearly established” (I) that an officer may

conduct an investigatory stop only if, under a totality of the

circumstances, he “has a reasonable suspicion supported by

articulable facts that criminal activity may be afoot,” Doc. 19

8 (citing United States v. Sokolow, 490 U.S. 1, 7 (1989) ;

United States v. Jones, 234 F.3d 234, 241 (5th Cir. 2000)), and

(II) that the doctrine of false arrest existed, id. 4 21 (citing

Gerstein v. Pugh, 420 U.S. 103, 111-12 (1975); Mendenhall v.

Riser, 213 F.3d 226, 230 (5th Cir. 2000); Thomas v. Kippermann,

846 F.2d 1009, 1011 (5th Cir. 1988)). Plaintiff's explanation

of the law is correct, but such general statements do not place

beyond debate the question of whether Hernandez lacked

reasonable suspicion.

Reasonable officers could disagree as to whether the Terry

stop was justified by reasonable suspicion. A reasonable

15

officer could believe that reasonable suspicion of terrorist

activity existed under a totality of the circumstances. First,

the nature of the facility makes it a potential terrorist target

because the jet fuel there is highly flammable. See Doc. 20 at

2. Second, a gas pipeline in Plano, Texas was subject to an

attempted lone-wolf attack in 2015. Id. at 3. Third, a 911

call reported a suspicious individual taking photographs of the

facility. Finally, the individual matching the 911 caller's

description refused to identify himself when asked by police.

Under these facts, a reasonable officer could conclude that

an investigatory stop was supported by reasonable suspicion that

plaintiff was preparing to attack the facility. See Turner v.

Lieutenant Driver, 848 F.3d 678, 691-92 (5th Cir. 2017) (finding

a reasonable officer could conclude that he had reasonable

suspicion that an individual was “casing the station for an

attack” where the individual was filming a police station while

standing on the sidewalk); Newell v. Cty. of San Diego, No.

3:12-cv-1696-GPC-BLM, 2014 WL 2212136, *6 (S.D. Cal. May 28,

2014) (finding an officer had reasonable suspicion where an

individual was seen taking photographs of courthouse-employee

and law-enforcement vehicles from a public area).

16

3. Plaintiff failed to show that it is beyond debate that

the stop’s duration violated his Fourth Amendment

rights.

Plaintiff also argues that that the length of the

detainment violated his Fourth Amendment rights because he was

not released immediately after Hernandez verified that he did

not trespass. Doc. 22 4 39. Once again, plaintiff fails to

cite any factually similar case law, and this is not an obvious

case. In fact, a reasonable officer would likely conclude that

the stop’s duration did not violate plaintiff's rights. An

individual need not have trespassed to be case a location for an

attack. See Turner, 848 F.3d at 691-92 (suspect stood ona

public sidewalk). Further, an officer may continue detaining an

individual to confirm that they lack warrants, even after

learning that the reasonable suspicion that justified the

original stop has been disproven. See Rodriguez v. United

States, 575 U.S. 348, 355 (2015); see also Turner, 848 F.3d at

695 n.85 (noting that officers cannot prolong an investigative

detention unless they have an investigatory purpose).

Plaintiff also argues, without citing factually similar

precedent, that he should have been released immediately after

Hernandez confirmed that he lacked outstanding warrants. Doc.

22 § 39. However, he was told he was free to go within two

minutes of such confirmation, and it only took that long because

17

plaintiff continued to ask Hernandez questions, which Hernandez

attempted to answer. Doc. 19, Ex. A at 25:17-27:09.

Because he failed to show that it is beyond debate that the

basis or duration of the stop violated his Fourth Amendment

rights, plaintiff fails to overcome Hernandez’s qualified

immunity defense, and his illegal detention claim should be

dismissed.

Cc. The illegal search claim against Hernandez should not. be

dismissed.

Hernandez also argues that plaintiff’s § 1983 claim against

Hernandez for a search in violation of the Fourth Amendment

should be dismissed because Hernandez is entitled to qualified

immunity. Doc. 20 at 8-9. The court disagrees.

As with the investigatory stop, plaintiff cites general

principles regarding searches during Terry stops and does not

provide factually similar case law. Doc. 19 §§ 31-33. Once

again, Hernandez asserts that plaintiff therefore failed to

carry his burden as to the search of his backpack. Doc. 20 at

9. However, the general principles cited by plaintiff are

sufficient to give a reasonable officer a “fair and clear

warning” as to the illegality of Hernandez'’s search. White, 137

S.Ct. at 552.

As plaintiff points out, during a Terry stop, an officer

may conduct a pat-down search to determine whether the suspect

18

is carrying a weapon if he reasonably believes the suspect may

be armed. United States v. Jenson, 462 F.3d 399, 407 (5th Cir.

2006); Minnesota v. Dickerson, 508 U.S. 366, 373 (1993).

However, “any search whatever for anything but weapons” is not

permitted during a Terry stop. Ybarra v. Illinois, 444 U.S. 85,

93-94 (1979). “If the protective search goes beyond what is

necessary to determine if the suspect is armed, it is no longer

valid under Terry.” Dickerson, 508 U.S. at 373.

Here, a reasonable officer would know, based on the general

precedent cited by plaintiff, that the search violated a clearly

established right. A reasonable officer would understand that

Dickerson does not permit a search for identification during a

Terry stop because identifying a suspect is not necessary to

determine if the suspect is armed.’

The facts show that Hernandez conducted a search that went

beyond what was necessary to determine whether plaintiff was

armed. While plaintiff was handcuffed and after Hernandez had

conducted a pat-down of plaintiff’s clothing, Hernandez squeezed

plaintiff's backpack and explained multiple times that he was

4 Even if feeling and opening the bag was justified by a reasonable belief that plaintiff was armed, the

removal of the wallet from the bag exceeded the scope of a permissible search because it was not

necessary to determine whether plaintiff was armed. Dickerson, 508 U.S. at 373. Upon opening the bag

and seeing the wallet, a reasonable officer would recognize that the wallet was not a weapon and that he

had no reason to suspect that it contained one. Besides, Hernandez stated that he did not remove the

wallet to ensure his safety, but “to identify” plaintiff. Doc. 19, Ex. A at 22:50-22:55.

19

seeking plaintiff's wallet so that he could identify plaintiff.

Doc. 20 at 6; Doc. 19, Ex. A at 22:00-22:30. Hernandez opened

the bag over plaintiff's protests, looked inside, reached in,

and removed plaintiff's wallet. Doc. 20 at 6-7; Doc. 19, Ex. A

at 22:00-22:30. After plaintiff asked whether Hernandez had

taken his wallet out of his bag, Hernandez replied, “To identify

you, that’s what I did.” Doc. 19, Ex. A at 22:50-22:55.

Hernandez only stated that he was ensuring that plaintiff was

not armed after plaintiff continued to insist that a search for

his driver's license was illegal. Doc. 20 at 7; Doc. 19, Ex. A

at 23:06-23:11.

Although Hernandez correctly insists that officers may

lawfully request identification from suspects during a Terry

stop, Doc. 20 at 13 (citing Hiibel v. Sixth Judicial Dist.

Court, 542 U.S. 177, 185 (2004)), that does not give the officer

authority to conduct an otherwise illegal search. In fact,

although an individual is required to identify himself to police

when he is “lawfully arrested” in Texas, Tex. Penal Code §

38.02(a), the court is unaware of a Texas law requiring an

individual to identify himself during a Terry stop. Defendants

do not provide a basis for Hernandez’s purported right to

conduct a search to identify a suspect during a Terry stop, and

Hernandez’s supervisor concluded that Hernandez lacked such

20

authority. Doc. 19, Ex. B (“Cpl. Hernandez was under the belief

the subject had to identify himself after being detained on

reasonable suspicion only. His thought process on this lead

[sic] to an unlawful search of the subject’s backpack.”).

Under the precedent cited by plaintiff, it is beyond debate

that Hernandez’s search violated plaintiff's rights. Therefore,

Hernandez’s qualified immunity does not shield him from the

illegal search claim, and such claim should not be dismissed.

VI.

Conclusion

Therefore,

The court ORDERS that the motion to dismiss be, and is

hereby, granted in part and denied in part, and that plaintiff’s

claims and causes of action against Southlake and his illegal

detention claim against Hernandez be, and are hereby, dismissed.

The court determines that there is no just reason for delay

in, and hereby directs, entry of final judgment as to the

dismissal of the claims against Southlake.

SIGNED Ml { , 2020.

0 BRYDE

United States Dist t Judge

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