Launza Jr v. City of Mesquite

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

KENNETH WAYNE LAUNZA, §

JR. §

Plaintiff, §

§

v. § No. 3:20-cv-01710-E (BT)

§

CITY OF MESQUITE, et al. §

§

Defendants. §

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Pro se Plaintiff Kenneth Wayne Launza Jr. filed this civil action under

42 U.S.C. § 1983 against various Defendants related to his arrests for—and

subsequent convictions of—failure to identify and resisting arrest, search, or

transportation under Texas law. The Court granted Launza leave to proceed

in forma pauperis but withheld issuing service pending judicial screening.

(See ECF No. 3.) For the reasons that follow, the Court should dismiss

Launza’s complaint under 28 U.S.C. § 1915(e)(2)(B) as frivolous or,

alternatively, for failure to state a claim upon which relief can be granted.

Background

Launza’s complaint initially includes a series of allegations that

appear to be based on the so-called “sovereign citizen” ideology. United

States v. Weast, 811 F.3d 743, 746 n.5 (5th Cir. 2016) (“The sovereign citizen

movement is a loose group of litigants, commentators, and tax protestors

who often take the position that they are not subject to state or federal

statutes and proceedings.”). For example, Launza notes that he is going to

change his legal name because he “does not consent to it.” (See ECF No. 3 at

2.) He associates his “sanity” instead with Sanoaman Sedago Leae. (Id.) He

also states that, while he consents to the government, he does not consent to

“people acting as government, using my government to govern my freedom

and any of my other property beyond my consent.” (Id. at 3.) He states

further: “I am not a subject. I am a sovereign.” (Id.) Launza claims that he

goes to jail every year because of fictitious things to which he does not

consent and that artificial rules and regulations beyond his consent do not

apply to him. (See id.) He opines that “[i]f government can control my

freedom beyond my consent, then that makes me a slave to government.”

(Id.)

Launza also includes a myriad of substantive allegations stemming

from an encounter with a City of Mesquite Police officer, Defendant Lijin

John, on June 27, 2018. Specifically, Launza alleges that, at around 2:00

a.m. on June 27, he drove to Mesquite after work to exercise at a 24-hour

fitness club at which he had a membership. (Id. at 4.) Launza was homeless

at the time. (Id.) As he entered the parking lot, he noticed a police vehicle

parked behind the building. (Id.) Launza parked his vehicle in the spot

furthest from the gym, which was the first spot that he saw, and turned his

car off. (Id.) While changing, he noticed the police vehicle moving towards

his. (Id.) Launza grabbed his cell phone and began to record what he “knew

was going to be a verbal engagement between the police officer and

[himself].” It was Launza’s “intent to verbally engage with the police officer

because [he] wanted to talk to the officer about [his] issues and concerns by

protesting [the officer’s] actions.” (Id.) Launza recounts the entirety of his

interaction with Defendant John. In pertinent part, the account reads as

follows:

At the time I started recording the video I was still sitting in my

driver seat, and John was sitting in the driver seat of his vehicle.

When I realized that my camera was recording, I asked John if

he needed something.

John responded ‘what’s up’ [sic]?

I said, ‘you need something?’

John said ‘no.’

I then told John he was running my plates without justification.

John told me he can run my plates anytime he wants.

I told John to come over to me.

John said ‘what.’

I told John to go ahead and come over to me.

John told me he doesn’t need to.

At this time I was going to get out of my car to talk to John face

to face or at least closer than we were because I wanted to, but

I knew I did not have my shoes on.

I reached down and put my shoes on my feet.

While I was putting my shoes on my feet, I asked John to go

ahead and dispatch his supervisor.

After I put my shoes on, I then exited my vehicle to talk with

John.

As I was getting out, I realized John was getting out of his

vehicle.

John told me that he couldn’t hear me.

I was completely out of my vehicle.

I then asked John, as we approached one another, what his

name and badge number was.

John responded with his name only.

I then asked John for his badge number.

John told me his badge number.

I told John to get his supervisor here.

John said, ‘for what?’

I told John it was an order and that I did not ask him to try and

debate about it.

John responded, ‘it’s an order.’

I asked John again to get his supervisor here.

John then asked me to do him a favor and get back in the car

and he would call his supervisor.

I asked John if he was ordering me to get in my car.

John told me for his safety and my safety to get in the car.

I asked John again if he was ordering me to get in my car.

John told me again to get in my car.

I asked John if he was going to place me under arrest if I didn’t

get in my car.

John responded, ‘just get in the car.’

I then began to talk directly to my camera as I was recording

(vlogging) expressing what I was wearing, where I was standing

among other statements.

I then told John that I need him to go ahead and get his

supervisor again.

John asked me if I had a 24-hour membership.

I remained silent to John’s question directly.

I told John if he doesn’t want to get the supervisor there then I

will get the supervisor there myself.

John told me to get in my car as I was reaching towards the

inside of my left front windshield for my other phone.

The phone was attached to a window phone retainer.

As I was turning towards my car [sic] he pointed a flashlight at

me while he made his last statement.

I grabbed my second cell phone and turned to face John again.

I stood in place while trying to turn on my second phone.

John kept the flashlight pointed at me when he initially turned

it on.

After a few seconds when I turned to face John, he turned off

the flashlight.

I told John that I never got his badge number.

I became interested in John’s vehicle number.

I took some steps towards John’s vehicle to get his [sic] the unit

number on his vehicle and came back to the original position

where I was standing while engaging with John.

I asked John if he was recording the video.

He responded ‘yes’ and that he was recording audio and video.

I responded, ‘that’s good to know.’

I then made a statement ‘just gone pull up to my motor vehicle

and run my plates as if you got justification.’

I told John I like his confidence.

John said, ‘that’s fine man, I’m just gonna pat you down to see

if you got any weapons.’

As John was making this statement, he took some steps towards

me and grabbed by body.

This is when John began to assault me.

(Id. at 5-7.) Launza informed John that he could not pat him down without

justification. (Id. at 7.) John and Launza tussled. (Id.) Other officers arrived.

(Id.) Both John and another officer had hands on Launza and ordered him

to the ground, face down. (Id.) Another officer grabbed Launza’s phone and

threw it, cracking the screen and destroying the phone. (Id.) After

restraining Launza, the officers searched his pockets. (Id.)

John then had a conversation with his “partner” about what

happened, which Launza recounts as well. (Id. at 8.) According to John’s

description of the incident to his partner, Launza exited the vehicle despite

John’s instructions to stay in the vehicle. (Id.) Launza then ordered John to

get back into his car and started recording the interaction. (Id.) John then

informed Launza that, if he was going to exit his vehicle, John would need

to pat him down. (Id.) Launza, however, resisted and would not let John

frisk him. (Id.)

John then authored a “false police report.” (Id. at 12.) Launza

specifically questions the veracity of several statements in the report. John

ultimately arrested Launza for failure to identify and for resisting arrest,

search, or transportation. See TEX. PENAL CODE ANN. §§ 38.02, 38.03.1

The rest of Launza’s complaint details why he believes that

Defendants’ actions were unlawful. Again, Launza maintains that “rules and

regulations” to which he does not consent do not apply to him and cannot

1 In pertinent part, the failure to identify statute provides that:

(a) A person commits an offense if he intentionally refused to

give his name, residence address, or date of birth to a peace

officer who has lawfully arrested the person and requested the

information.

TEX. PENAL CODE ANN. § 38.02. And the resisting arrest, search, or

transportation statute provides in pertinent part that:

(a) A person commits an offense if he intentionally prevents or

obstructs a person he knows is a peace officer or a person acting

in a peace officer’s presence and at his direction from effecting

an arrest, search, or transportation of the actor or another by

using force against the peace officer or another.

(b) It is no defense to prosecution under this section that the

arrest or search was unlawful.

Id. at § 38.03.

serve as the probable cause necessary to execute a lawful arrest. (ECF No. 3

at 9.) Launza also takes issue with the Mesquite Police Department’s

training—specifically its alleged failure to train its officers when a weapons

frisk is justified pursuant to Terry v. Ohio, 392 U.S. 1 (1968), and its alleged

failure to train its officers to ask for consent before charging a citizen like

Launza with “an artificial claim against his freedom.” (Id. at 9, 13.)

As for the court process, Launza challenged the resisting arrest,

search, or transportation charge on jurisdictional grounds, but the judge

overruled his objection. (Id. at 13). Launza notes that the prosecution played

“body camera video” in both trials, that the “prosecution heard the lies

directly from John,” and that the jury convicted him after seeing this

evidence. (Id. at 14.) Launza claims that he was “wrongfully convicted” on

September 6, 2018, for failure to identify and on June 3, 2019, for resisting

arrest, search, or transportation. (Id.) He brings this suit against John, as

well as four “unknown, unnamed police officers” in their individual and

official capacities. (Id. at 1.)

Legal Standards

Under 28 U.S.C. § 1915(e), a district court may summarily dismiss a

complaint filed in forma pauperis if it concludes the action is: (1) frivolous

or malicious; (2) fails to state a claim on which relief may be granted; or (3)

seeks monetary relief against a defendant who is immune from such relief.

28 U.S.C. § 1915(e)(2)(B). A complaint is frivolous when it “lacks an arguable

basis either in law or fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). A

court may dismiss a complaint as frivolous when it is based on an

indisputably meritless legal theory or when the factual contentions are

“clearly baseless.” Denton v. Hernandez, 504 U.S. 25, 32 (1992). The latter

category encompasses allegations that describe “fanciful, fantastic, and

delusional” scenarios, or that “rise to the level of the irrational or the wholly

incredible.” Id. at 33. To state a claim upon which relief may be granted, a

plaintiff must plead “enough facts to state a claim to relief that is plausible

on its face[,]” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007), and

must plead those facts with enough specificity “to raise a right to relief above

the speculative level . . . .” Id. at 555. “A claim has facial plausibility when the

plaintiff pleads factual content that allows the court to draw a reasoned

inference that the defendant is liable for the misconduct alleged.” Ashcroft

v. Iqbal, 556 U.S. 662, 677 (2009).

Analysis

A. To the extent asserted, Launza’s sovereign citizen claims are frivolous.

As noted, Launza’s complaint contains several allegations suggesting

that the basis for Defendants’ liability is their failure—evidenced through

searching, arresting, and convicting him of criminal charges under Texas

law—to recognize his sovereign citizen status. If the basis of Launza’s

complaint is his status as a so-called sovereign citizen, his claims should be

dismissed as frivolous. See, e.g., Watson v. Texas State Univ., 829 F. App’x

686 (5th Cir. 2020) (per curiam) (affirming dismissal of claims based on

legal theories associated with sovereign citizen movement as “frivolous” and

“entirely without merit”); Westfall v. Davis, 2018 WL 2422058, at *2 (N.D.

Tex. May 4, 2018), rec. accepted, 2018 WL 2414794 (N.D. Tex. May 29,

2018) (noting that “[s]overeign-citizen legal arguments . . . are indisputably

meritless.”).

B. Launza’s claims against the Mesquite Police Department should be

dismissed because the Mesquite Police Department is a nonjural

entity.

Alternatively, Launza’s claims fail even if not premised upon a

sovereign citizen theory.

Initially, Launza’s claims against the Mesquite Police Department

should be dismissed because the department is a nonjural entity. A plaintiff

may not bring a civil rights action against a servient political agency or

department unless such agency or department enjoys a separate and distinct

legal existence. Darby v. Pasadena Police Dep’t, 939 F.2d 311, 313-14 (5th

Cir. 1991). A governmental department cannot engage in litigation “unless

the true political entity has taken explicit steps to grant the servient agency

jural authority.” Darby, 939 F.2d at 313. As this Court has repeatedly

recognized, a city police department is not a jural entity subject to suit. See,

e.g., Garcia v. Dallas Police Dep’t, 2013 WL 5433502, at *2 (N.D. Tex. July

1, 2013), rec. accepted, 2013 WL 5434165 (N.D. Tex. Sept. 27, 2013);

Thomas v. City of Mesquite, 2011 WL 2622339, at *2 (N.D. Tex. June 1,

2011), rec. accepted, 2011 WL 2624151, at (N.D. Tex. July 5, 2011)

(dismissing claim against Mesquite Police Department as nonjural entity).

C. Launza’s allegations fail to state a failure to train claim.

Launza also alleges that the City of Mesquite is liable for failure to

train its officers regarding search and arrest tactics, specifically the

standards guiding the permissible use of the Terry stop and sometimes-

accompanying weapons frisk, and for failing to train its officers to ask for

consent before arresting citizens.

To establish a claim for municipal liability under § 1983, “a plaintiff

must show the deprivation of a federally protected right caused by action

taken ‘pursuant to an official municipal policy.’” Valle v. City of Houston,

613 F.3d 536, 541 (5th Cir. 2010) (citing Monell v. Dep’t of Soc. Servs., 436

U.S. 658, 691 (1978)). “A plaintiff must identify: ‘(1) an official policy (or

custom), of which (2) a policymaker can be charged with actual or

constructive knowledge, and (3) a constitutional violation whose “moving

force” is that policy or custom.’” Id. at 541-42. (citing Pineda v. City of

Houston, 291 F.3d 325, 328 (5th Cir. 2002)) (further citation omitted).2

2 Launza, in addition to suing the City of Mesquite, sues all Defendants in

their individual and official capacities. But a claim against a municipal

officer in his or her official capacity is tantamount to a suit against the

municipal entity. See Monell, 436 U.S. at 690. “Thus, when a plaintiff asserts

claims against both the municipal entity and a municipal official in his or

her official capacity, the Court can dismiss the official capacity claim as

‘redundant’ to the municipal-entity claim.” Bustillos v. El Paso Cnty.

Hospital Dist., 226 F.Supp.3d 778, 789 (W.D. Tex. 2016) (citation omitted).

“The failure to train can amount to a policy if there is deliberate

indifference to an obvious need for training where citizens are likely to lose

their constitutional rights on account of novices in law enforcement.”

Peterson v. City of Fort Worth, 588 F.3d 838, 849 (5th Cir. 2009) (citing

Brown v. Bryan Cty., 219 .3d 450, 458 (5th Cir. 2000)). To bring a failure

to train claim, “the plaintiffs must show: (1) the City’s ‘training policy or

procedure was inadequate’; (2) ‘the inadequate training policy was a ‘moving

force’ in causing a violation of the [plaintiffs’] rights’; and (3) the City was

deliberately indifferent in adopting its training policy.’” Livezey v. the City

of Malakoff, 657 F. App’x 274, 278 (5th Cir. 2016) (quoting Valle, 613 F.3d

at 544).

Normally, to show deliberate indifference in the failure-to-train

context, a plaintiff may allege that the municipality had “[n]otice of a pattern

of similar violations,” which were “fairly similar to what ultimately

transpired.” Sanders-Burns v. City of Plano, 594 F.3d 366, 381 (5th Cir.

2010). “Alternatively, a plaintiff may allege deliberate indifference if the

specific injury suffered is a ‘patently obvious’ or ‘highly predictable’ result of

inadequate training.” Saenz v. City of El Paso, 637 F. App’x. 828, 832 (5th

Cir. 2016) (citation omitted).

Based on those standards, Launza’s failure-to-train claim fails for

multiple reasons. First, he has not pleaded an underlying constitutional

violation. His assertion that officers had a duty to obtain his consent before

arresting him appears to be based upon his supposed status as a sovereign

citizen and is patently frivolous. Nor, as discussed below, has he stated a

claim for an unreasonable weapons frisk.

Second, Launza has not specified how, exactly, the City of Mesquite’s

training program was defective, which is fatal to his claim. See Roberts v.

City of Shreveport, 397 F.3d 298, 293 (5th Cir. 2005) (citing Benavides v.

Cty. of Wilson, 955 F.2d 968, 973 (5th Cir. 1992)). And third, he has not

pleaded deliberate indifference by alleging a pattern of similar incidents. See

Saenz, F. App’x at 832 (citations omitted). Launza’s failure to train claim

against the City of Mesquite is meritless and should be dismissed.

D. Heck v. Humphrey bars some of Launza’s claims, while the remainder

fail on the merits.

Launza’s claims relate mostly to his arrests and convictions. In Heck

v. Humphrey, 512 U.S. 477, 486-87 (1994), the Supreme Court

unequivocally stated:

We hold that, in order to recover damages for

allegedly unconstitutional conviction or

imprisonment, or for other harm caused by actions

whose unlawfulness would render a conviction or

sentence invalid, [footnote omitted] a § 1983

plaintiff must prove that the conviction or sentence

has been reversed on direct appeal, expunged by

executive order, declared invalid by a state tribunal

authorized to make such determination, or called

into question by a federal court’s issuance of a writ

of habeas corpus, 28 U.S.C. § 2254.

Heck, 512 U.S. at 486-87.

“Consequently, ‘a plaintiff’s claim is Heck-barred despite its

theoretical compatibility with his underlying conviction if specific factual

allegations in the complaint are necessarily inconsistent with the validity of

the conviction.’” Daigre v. City of Waveland, Miss., 549 F. App’x 283, 286

(5th Cir. 2013) (quoting Bush v. Strain, 513 F.3d 492, 498 n.14 (5th Cir.

2008)) (further citations omitted).

In the Fifth Circuit, Heck’s favorable-termination requirement applies

in actions in which the plaintiff is no longer confined. See, e.g., Randell v.

Johnson, 227 F.3d 300, 301 (5th Cir. 2000) (holding unequivocally that §

1983 claimants who could no longer seek habeas relief because they were no

longer confined must still comply with Heck’s favorable-termination

requirement); Black v. Hathaway, 616 F. App’x 650, 654 (5th Cir. 2015)

(“[T]he application of the favorable-termination rule after a prisoner’s

release remains unsettled. Muhammad [v. Close, 540 U.S. 749 (2004),]

failed to effect a change in the law that would allow this panel to revisit the

court’s decision in Randell. Therefore, Black’s argument that Heck does not

bar his § 1983 suit is unavailing.”).

Here, Launza does not allege that his convictions have been reversed

on direct appeal, expunged by executive order, declared invalid by a state

tribunal authorized to make such determination, or called into question by

a federal court’s issuance of a writ of habeas corpus.” Heck, 512 U.S. at 486-

87. Thus, to the extent that Launza’s claims are inconsistent with the validity

of his convictions, Heck bars his claims—even if he is no longer confined.

See, e.g., Jackson v. Vannoy, 49 F.3d 175, 177 (5th Cir. 1995) (dismissing

claim as barred by Heck on a motion to dismiss where the plaintiff did not

allege that “any revocation proceeding has been reversed, expunged, set

aside by a state court, or called into question by a federal court’s issuance of

a writ of habeas corpus”); Robinson v. Salmeron, 2020 WL 1673184, at *2

(S.D. Tex. Apr. 2, 2020) (dismissing claims of unlawful disciplinary

conviction as Heck-barred, noting that, “because he does not allege that the

conviction has been set aside, his section 1983 claims and request for

monetary damages are barred by Heck…”); Robinson v. Bureau of Prisons,

2012 WL 6652772, at *3 (E.D. Tex. Nov. 12, 2012), rec adopted, 2012 WL

6652646 (E.D. Tex. Dec. 20, 2012) (dismissing plaintiff’s claim for failure to

state a claim where Heck applied, and the prisoner failed to “allege or

demonstrate” that he challenged his conviction through a writ of habeas

corpus or that his conviction was invalidated).

i. First Amendment Claim

Launza appears to claim that John violated his First Amendment

rights to “peacefully protest” when he put his hands on his body to prevent

him from recording and denied him his legal right to object to John’s actions.

(ECF No. 3 at 10.) Although the exact contours of such a First Amendment

violation are unclear, to the extent that Launza is claiming that his refusal to

identify himself to John or his resistance to an arrest or search is protected

protest activity, such claims are Heck-barred, as they would undermine his

conviction by suggesting that the conduct leading to his arrest was protected

under the First Amendment. See Mitchell v. Morton County Sheriff Kyle

Kirchmeier, 2020 WL 8073625, at *13 (D.N.D. Dec. 10, 2020) (“If the Court

were to find in this case that [the plaintiff] was lawfully exercising his rights

when he was arrested, this would necessarily invalidate the state-law

proceedings wherein officers had probable cause to charge him with a

trespass and obstruction of a government function for the same exact

incident. On this basis, his claims are Heck-barred.”).

And to the extent that Launza alleges his arrest was in retaliation for

the lawful exercise of his First Amendment rights, the claim fares no better.

Such First Amendment retaliation claims require the plaintiff to “plead and

prove the absence of probable cause for the arrest.” Nieves v. Barlett, 139 S.

Ct. 1715, 1724 (2019)). Courts routinely find such claims to be Heck-barred

when they relate to an arrest that has not been overturned, and this Court

should do the same. See Poole v. Russell, 2016 WL 6082041, at *4 (W.D. La.

Oct. 18, 2016) (“Where a plaintiff was arrested for crimes of which he was

ultimately convicted, Heck bars recovery for free speech retaliation because

the conviction necessarily implies that there was probable cause for the

arrest.”) (citation omitted).

ii. False Arrest Claims

Launza’s false arrest claims also undermine the validity of the

conviction because they imply that John lacked the probable cause to arrest

Launza in the first place. See Wells v. Bonner, 45 F.3d 90, 95 (5th Cir. 1995)

(noting that the proof necessary to establish a false arrest claim—that there

was not probable cause to arrest on charge—would necessarily demonstrate

the invalidity of the conviction for purposes of Heck); see also Joiner v.

Smith, 69 F.3d 536, 539 (5th Cir. 1995) (holding that, “to prove that the

arrest was an unreasonable seizure, [the plaintiff] must demonstrate that

[the officer] lacked probable cause to arrest for either charge, which would

demonstrate the invalidity of [the plaintiff’s] convictions for obstructing

traffic and disorderly conduct”). Launza’s false arrest claims should be

dismissed accordingly as Heck-barred.

iii. Excessive Force Claims

Launza also appears to assert an excessive force claim against John,

asserting that, when an arrest is unlawful, any force used to effectuate it is

excessive. (See ECF No. 3 at 11.) Whether Heck bars this claim is less clear.

“[T]he Fifth Circuit has consistently held that where a plaintiff has been

convicted of resisting arrest, and he later asserts in his § 1983 suit that he

did not resist arrest and that the arresting officers used excessive force

against him, his suit is barred by Heck.” Garcia v. Dallas Police Dep’t, 2013

WL 5433510, at *2 (N.D. Tex. July 29, 2013), rec. accepted 2013 WL

5434165 (N.D. Tex. Sept. 27, 2013) (citing Arnold v. Slaughter, 100 F. App’x

321, 323 (5th Cir. 2004) (holding that a plaintiff’s excessive force claim was

Heck-barred where the plaintiff alleged that he did nothing wrong but was

nevertheless attacked for no reason); Deleon v. City of Corpus Christi, 488

F.3d 649, 656-57 (5th Cir. 2007) (holding that Heck barred an excessive

force claim where the plaintiff claimed that he did not resist arrest) (further

citations omitted). But here, Launza does not dispute that he resisted arrest.

So, the rationale of cases like Arnold is inapplicable.

But even if Heck does not bar Launza’s excessive force claim, his

allegations are nevertheless insufficient. To state a claim for excessive force,

a plaintiff must allege “(1) an injury, which (2) resulted directly and only

from the use of force that was clearly excessive to the need; and the

excessiveness of which was (3) objectively unreasonable.” Spann v. Rainey,

987 F.2d 1110, 1115 (5th Cir. 1993) (internal quotations omitted). Further, to

state a claim for excessive use of force, the plaintiff’s asserted injury must be

more than de minimus. Glenn v. City of Tyler, 242 F.3d 307, 314 (5th Cir.

2005)

Launza, however, alleges no injury—much less an injury above the de

minimus threshold— from the allegedly excessive force. This precludes his

excessive force claim, which should be dismissed. See Mohamed for A.M. v.

Irving Independent School District, 300 F.Supp.3d 857, 891 (N.D. Tex.

2018) (dismissing excessive force claim where the plaintiff alleged no injury

in connection with the excessive force claim) (citation omitted).

iv. Unreasonable Search Claims

Launza appears to present two unreasonable search claims—one

predicated on John’s supposedly-illegal weapons frisk and another based

upon the Defendant officers’ search of his pockets following his arrest. (See

ECF No. 3 at 10.) The Fourth Amendment generally requires a warrant prior

to a search; an exception to the rule, however, allows for a warrantless search

conducted incident to a lawful arrest. See United States v. Ryan, 415 F.2d

847, 850 (5th Cir. 1969) (“As a general rule, a search and seizure incident to

arrest are reasonable if the arrest is lawful and the search is incident to the

arrest in purpose, time, scope and place.”) (citing Preston v. United States,

376 U.S. 364 (1964)).

Here, Launza claims that Defendant officers violated his Fourth

Amendment rights by going through his pockets after he was arrested. (See

ECF No. 3 at 7.) (“I was placed in arm restraints beyond my consent. The

officers collectively, unlawfully searched my body by going though my

pockets.”) But this search can be justified assuming that the arrest was

lawful. Thus, to find in Launza’s favor on this unreasonable search claim, the

Court would have to find that his arrest was not lawful, therefore calling the

validity of his conviction into question. Heck forbids such a result, so any

unreasonable search claim premised upon the search of Launza’s person

following his arrest should be dismissed pursuant to Heck.

The unreasonable search claim premised upon the weapons frisk

presents a closer issue. It does not appear that Heck bars this claim because

the allegations do not necessarily imply the invalidity of Launza’s

convictions. This search happened prior to Launza’s arrest, so it was not

pursuant to a lawful arrest. And Launza does not allege, for example, that

the frisk uncovered evidence that was later used to convict him. Nor does the

resisting arrest, search, or transportation charge depend upon the legality of

the underlying search or arrest. See TEX. PENAL CODE ANN. § 38.03. (“It is no

defense to prosecution under this section that the arrest or search was

unlawful.”). Thus, finding in Launza’s favor on the unreasonable-weapons-

frisk claim would not necessarily undermine his conviction for resisting,

arrest, search, or transportation because even if the weapons frisk was

unlawful, he could still be prosecuted for resisting.3 The undersigned

accordingly concludes that Heck does not bar Launza’s unreasonable-frisk

claim.

3 The failure-to-identify offense does assume a lawful arrest. But if Launza’s

resistance to the weapons frisk brought on the resisting-search arrest, and

then he subsequently refused to identify himself, leading to the failure-to-

identify charge (which, on the facts presented is the most likely sequence

upon which the charges are based), logically, a finding that the initial search

was unlawful would not necessarily undermine the conviction.

Turning to a substantive analysis of the unreasonable-frisk claim,

when John announced that he was going to pat down Launza, the encounter

lost is consensual essence and became a Fourth Amendment seizure. United

States v. Monsivais, 848 F.3d 353, 358 (5th Cir. 2017) (“Under the

principles established by the Supreme Court, it is undisputed that Deputy

Baker effectively seized Monsivais when he announced that he was going to

pat him down . . .”) (citations omitted).

To properly effectuate a weapons frisk, the officer must have

reasonable suspicion that criminal activity is afoot and reasonable,

individualized suspicion that the suspect is armed and dangerous. See

United States v. McKinney, 980 F.3d 485, 490 (5th Cir. 2020) (citing United

States v. Hill, 752 F.3d 1029, 1033 (5th Cir. 2014); United States v.

Michelletti, 13 F.3d 838, 840 (5th Cir. 1994) (en banc) (discussing Terry,

392 U.S. 1; Maryland v. Buie, 494 U.S. 325, 334 n.2 (1990)).

“Reasonable suspicion must be supported by particular and

articulable facts, which, taken together with rational inferences from those

facts, reasonably warrant an intrusion.” Michelletti, 13 F.3d at 840.

Reasonable suspicion exists if the police officer can point to specific and

articulable facts indicating that criminal activity is occurring or is about to

occur. United States v. Alvarado-Zarza, 782 F.3d 246, 249 (5th Cir. 2015)

(citation omitted). The “level of suspicion the standard requires is

‘considerably less than proof of wrongdoing by a preponderance of the

evidence,’ and ‘obviously less’ than is necessary for probable cause . . . ”

Navarette v. California, 572 U.S. 393, 397 (2014) (quoting United States v.

Sokolow, 490 U.S. 1, 7 (1989)). “And the suspicion need not relate to a

particular crime; it is sufficient to have reasonable suspicion ‘that criminal

activity may be afoot.’” United States v. Pena-Gonzalez, 618 F. App’x 195,

198 (5th Cir. 2015) (quoting United States v. Pack, 612 F.3d 341, 356 (5th

Cir. 2010)). Finally, the issue of reasonable suspicion is a legal one for the

Court’s determination when the underlying facts are not in dispute. See

United States v. Ibarra-Sanchez, 199 F.3d 753, 758 (5th Cir. 1999).

Against those standards, the Court finds that the facts, as pleaded by

Launza, could allow John to form reasonable suspicion that criminal activity

was afoot. Specifically, Launza’s allegations show that he was evasive and

belligerent, refusing to answer legitimate questions, such as whether he had

a 24-hour fitness club membership, which could be pertinent to a trespass-

related inquiry. See United States v. Smith, 594 F.3d 530, 542 (6th Cir.

2010) (noting that, while a suspect’s refusal to answer or listen does not, by

itself, justify a reasonable suspicion of criminal activity, it can be a factor

that, together with other factors, supports a finding of reasonable suspicion);

see also United States v. Spears, 636 F. Appx. 893, 903 (5th Cir. 2016)

(“[E]vasive behavior is a pertinent factor in determining reasonable

suspicion,” but because “such behavior ‘is not necessarily indicative of

wrongdoing,’” the “context is key.”) (further citations omitted). Launza was

also hostile and combative, ordering John to contact his supervisor, ordering

John to “come over to [him],” and insisting upon engaging with John as

opposed to remaining in his vehicle. This also supports potential reasonable

suspicion—especially considering that the encounter happened at 2:00 a.m.,

with Launza parked in the spot furthest from the building. See United States

v. Garcia, 751 F.3d 1139, 1144 (10th Cir. 2014) (noting, in case in which the

officer had a previous encounter with the suspect that necessitated the use

of a Taser, that “[t]he reasonable suspicion test is broad enough to include

consideration of aggressive actions—including actions without weapons . .

.”); see also United States v. Conner, 699 F.3d 1225, 1231 (10th Cir. 2012)

(“Another factor in determining the existence of reasonable suspicion is the

time of night.”) (citing Michigan v. Long, 463 U.S. 1032, 1050) (1983)

(Gallegos v. City of Colorado Springs, 114 F.3d 1024, 1029 (10th Cir. 1997)).

John’s weapon frisk was also reasonable. Again, context matters:

according to Launza’s allegations, John and Launza’s interaction occurred

at 2:00 a.m. in a parking area located furthest from the building. At the time

of the initial frisk, John was the only officer on scene. (See ECF No. 3 at 7.)

A reasonable officer in John’s position could have been intimidated by

Launza’s aggressive demeanor. And while, based solely on Launza’s

allegations, John might not have possessed articulable information

indicating that Launza was armed, he possessed information that a

reasonable officer could find indicative of hostility. John did not need to

extend the encounter to obtain more facts indicating that Launa was armed

before initiating a weapons frisk. Indeed, in Terry itself, the court noted that

a police officer “need not be absolutely certain that the individual is armed”

because “the issue is whether a reasonably prudent man in the

circumstances would be warranted in the belief that his safety or that of

others was in danger.” Terry, 392 U.S at 27.; see also United States v.

Brown, 232 F.3d 589 (7th Cir. 2000) (finding protective pat down

reasonable where, although there were no specific facts indicating that the

suspect was armed, there was ample reason to view the uncooperative and

volatile suspect, as dangerous, so officer acted reasonably in conducting pat

down); Adams v. Williams, 407 U.S. 143, 146 (1972)) (stating that “the

purpose of the frisk is to afford an officer ‘the opportunity to protect himself

from attack by a hostile suspect.’”).

Accordingly, the Court should dismiss Launza’s unreasonable-

weapons-frisk claim.

v. Remaining claims: fabrication of police report and

perjured testimony

Last, Launza claims that John fabricated his police report to justify his

unlawful arrest and provided perjured testimony at trial leading to Launza’s

convictions. (See ECF No. 3 at 12, 14). But because success on these claims

would undermine the validity of Launza’s convictions, Heck bars them as

well. See Bailey v. Willis, 2018 WL 3321461, at *6 (E.D. Tex. Jan. 11, 2018),

rec. adopted, 2018 WL 2126476 (E.D. Tex. May 8, 2018) (finding that Heck

barred claim that affidavits for search warrants supporting arrest were

forged); Conlan v. King, et al., 682 F. App’x 345 (5th Cir. 2017) (claim of

false arrest, forced self-incrimination, and illegal seizure of evidence barred

by Heck); Villegas v. Galloway, et al., 458 F. App’x 334, 337 (5th Cir. 2012)

(civil rights clams such as ineffective assistance of counsel, use or perjured

testimony and fabricated evidence, and suppression of favorable evidence

are barred by Heck); Castellano v. Fragozo, 352 F.3d 939, 959-60 (5th Cir.

2003) (claims of manufactured evidence and perjured testimony do not

accrue until after the state court dismisses underlying criminal action).4

Leave to Amend

Ordinarily, a pro se plaintiff should be granted leave to amend his

complaint prior to dismissal. However, leave to amend is not required when

the plaintiff “has already pleaded his ‘best case.’” Brewster v. Dretke, 587

F.3d 764, 767-68 (5th Cir. 2009). As discussed herein, Launza’s claims are

fatally infirm; thus, granting leave to amend under these circumstances

would be futile and cause needless delay.

4 It is unclear whether Launza is also trying to assert a malicious prosecution

claim. He does use this term in his complaint. (See ECF No. 3 at 13.) To the

extent that he is raising such a claim, it is not cognizable in this Circuit. See

Moore v. Blanco, 255 F. App’x 824 (5th Cir. 2007).

Conclusion

The Court should DISMISS Launza’s complaint pursuant to 28 U.S.C.

§ 1915(e)(2)(B) as frivolous, or, alternatively, for failure to state a claim upon

which relief can be granted. To the extent that a judgment in Launza’s favor

would necessarily imply the invalidity of his convictions, Launza’s claims

should be dismissed with prejudice to their being asserted again until the

Heck conditions are met. All other claims should be dismissed with

prejudice for all purposes.

SO RECOMMENDED.

October 8, 2021.

REBECCA RS esi

UNITED STATES§ MAGISTRATE JUDGE

INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

A copy of this report and recommendation shall 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). To be specific, an objection must identify the specific finding or

recommendation to which objection is made, state the basis for the

objection, and specify 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

Servs. Auto. Ass’n, 79 F.3d 1415, 1417 (5th Cir. 1996).

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