Rivera v. Harris County

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

EMILY RIVERA, et al., §

§

Plaintiffs, §

§

v. § CIVIL ACTION H-19-4920

§

HARRIS COUNTY, et al., §

§

Defendants. §

MEMORANDUM OPINION AND ORDER

Pending before the court is a motion to dismiss the claims made against defendants Ana Diaz

and the City of Jacinto City, Texas. Dkt. 35. Having reviewed the motion, response, reply, and

applicable law, the court is of the opinion that the motion to dismiss should be GRANTED.

However, the plaintiffs request leave to amend in their response to the motion to dismiss, Dkt. 45,

and the court finds that the motion for leave to amend should be GRANTED IN PART AND

DENIED IN PART.

I. BACKGROUND

The plaintiffs brought this lawsuit for alleged violations of their First Amendment Rights.

Dkts. 1, 3, 9. Among other defendants, they sued Ana Diaz, the Mayor of Jacinto City, in her

individual capacity, and Jacinto City (collectively, the “Jacinto Defendants”). Dkt. 9 (second

amended complaint). The plaintiffs contend that the Jacinto Defendants “abused their position of

power in order to threaten and intimidate the Plaintiffs for exercising their rights under the First

Amendment.” Id. Specifically, they contend that Ana Diaz, acting under her authority as Mayor of

Jacinto County, (1) allowed a notice to be placed on the property of plaintiff Claudia Arellano

indicating that she violated a city ordinance relating to building without a permit (“Building Permit

Notice”) even though Arellano had not done so; and (2) allowed a notice to be placed on the property

of plaintiff Jerry Luman for violating grass height restrictions (“Grass Notice”) when his grass was

not too high. Id. The plaintiffs assert that these notices were placed to threaten or intimidate the

plaintiffs for exercising their First Amendment rights. Id.

Ana Diaz is married to Christopher Diaz, the elected constable of Harris County Precinct

Two. Id. The plaintiffs are or were employees of Precinct Two. Id. The plaintiffs assert that

Christopher Diaz required them to work for his campaign, and that employees who “spoke out,”

refused to participate in the campaign, or provided information in an investigation by the Texas

Rangers related to how Christopher Diaz operated his campaign, would be disciplined in retaliation.

Id. Luman allegedly refused to contribute to Christopher Diaz’s reelection campaign and

participated in a Texas Rangers investigation of Christopher Diaz. Id. Jacinto City allegedly put a

notice in Luman’s yard regarding his grass about three months after this investigation and ten days

before his employment with Precinct Two was terminated. Id. Arellano allegedly refused

Christopher Diaz’s request to put a yard sign in her yard for a particular candidate and instead put

up a sign for an opposition candidate. Id. She received Building Permit Notice from Jacinto City

six days later. Id. Both of these individuals were discharged from their positions with Precinct Two.

Id.

The Jacinto Defendants move to dismiss the second amended complaint under Federal Rule

of Civil Procedure 12(b)(6), arguing that the plaintiffs fail to plead facts to establish an ordinary

citizen First Amendment retaliation claim against the Jacinto Defendants because their allegations

are all conclusory and do not state how the Jacinto Defendants’ alleged actions had a chilling effect

on the plaintiffs’ First Amendment rights. Dkt. 35. They also argue that there are insufficient facts

alleged to show that any of Jacinto City’s customs, policies, practices, or procedures resulted in the

alleged violation. Id. Additionally, they argue that Ana Diaz is entitled to qualified immunity and

that the City cannot be liable for punitive damages. Id.

The plaintiffs respond that the Jacinto Defendants fail to see the “trout in the milk,” quoting

Henry David Thoreau’s advice that “‘[s]ome circumstantial evidence is very strong, as when you find

a trout in the milk.’” Dkt. 45 (quoting Henry David Thoreau, Journal, Nov. 11, 1850). They argue

that their case arises from political corruption and that conspiracies are “commonly circumstantially

evidenced and inferred.” Id. They contend that while Ana Diaz is the mayor of Jacinto City, “[i]t

is much more pertinent that the mayor of Jacinto City is Mrs. Diaz, Constable Diaz’s wife.” Id. The

plaintiffs concede that Ana Diaz “may, in the end, after discovery, be able to prove herself rather a

catspaw than a co-conspirator with her husband, an incurious (or obsequious to the point of half-

wittedness) wife with no knowledge of her husband’s doings. It is at least remotely conceivable.”

Id. But they argue that they need only comply with the Federal Rule of Civil Procedure Rule 8

pleading standard, asserting that the Jacinto Defendants appear to believe that invoking the standard

enunciated by the U.S. Supreme Court in Bell v. Twombly and Ashcraft v. Iqbal permits “a Rule 56

summary judgment on the cheap.” Id.

The plaintiffs assert they have sufficiently pled a prima facie circumstantial case of

coordinated, conspiratorial acts whereby Ana Diaz used “her influence as a small-town mayor to

serve her husband’s unlawful interests.” Id. Moreover, as to how the municipality can be liable, the

plaintiffs assert that the “city’s liability proceeds, as it were, from what may be called, in rather

doggy Latin, its respondeat inferior,” because the city was merely subservient to Ana Diaz and

Christopher Diaz’s political ambitions. Id. (citing Smith v. Winter, 782 F.2d 508 (5th Cir. 1986)).

They assert that Ana Diaz has “yoked the city to her husband’s chariot wheels” and exercised her

power so as to “land the city in the soup along with her.” Id. They argue that the “ordinary citizen”

standard is inapplicable because Ana Diaz used her power as mayor of Jacinto City to support her

husband’s campaign. Id. Instead, they contend the case involves unofficial misuse of official

influence and position, and argue that Ana Diaz’s ultra vires acts are not entitled to qualified

immunity. Id. (citing Dugan v. Rank, 372 U.S. 609, 621 (1963) and other cases). The plaintiffs

argue that the alleged conspiracy renders it immaterial that the plaintiffs were employees of

Christopher Diaz and not Ana Diaz and the City of Jacinto. Id. As to the Jacinto Defendants’

argument that the City cannot be liable for punitive damages, the plaintiffs agree that this is the

current state of the law but argue that the law prohibiting punitive damages is mistaken and should

be modified, reversed, or overruled. Id.

The Jacinto Defendants point out in their reply that the plaintiffs do not even mention a

conspiracy in their second amended complaint. Dkt. 48. The Jacinto Defendants argue that,

moreover, the plaintiffs do not adequately allege a constitutional violation, that Ana Diaz is immune,

and that even if Jacinto City were subservient to Ana Diaz in this instance, the plaintiffs have not

pled a custom that represents municipal policy and thus the pleading is insufficient to hold the

municipality liable for Ana Diaz’s alleged constitutional violation. Id.

The motion to dismiss is now ripe for disposition.

II. LEGAL STANDARD

“Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the

claim showing that the pleader is entitled to relief.’” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127

S. Ct. 1955, 1964–65 (2007). In considering a Rule 12(b)(6) motion to dismiss a complaint, courts

generally must accept the factual allegations contained in the complaint as true. Kaiser Aluminum

& Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1050 (5th Cir. 1982). The court

does not look beyond the face of the pleadings in determining whether the plaintiff has stated a claim

under Rule 12(b)(6). Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir. 1999). “[A] complaint

attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, [but] a

plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels

and conclusions, and a formulaic recitation of the elements of a cause of action will not do.”

Twombly, 550 U.S. at 555 (citations omitted). The “[f]actual allegations must be enough to raise a

right to relief above the speculative level.” Id. The supporting facts must be plausible—enough to

raise a reasonable expectation that discovery will reveal further supporting evidence.1 Id. at 556.

III. ANALYSIS

A. Violation of First Amendment Rights

The Jacinto Defendants argue that the only facts related to them involve Arellano and Luman,

who were not employees of Jacinto City and thus can assert claims against the Jacinto Defendants

only as ordinary citizens. Dkt. 35. They argue that the facts stated in the complaint show nothing

more than a coincidence in timing between the Building Permit Notice and the Grass Notice and

Arellano’s and Luman’s alleged First Amendment activities. Id. Moreover, the Jacinto Defendants

contend that there is no allegation of injury that would have a chilling effect on the plaintiffs’

continuation of their exercise of their First Amendment rights as the complaint does not suggest that

1 The plaintiffs devote a significant portion of their brief to arguing that the “incantatory,

ritual recital of the Twombly standard is, although common, ill chosen.” Dkt. 45. They specifically

take issue of the notion that Twombly somehow changed the Rule 8 pleading standard. See id. (The

notion which bedevils too many pleaders, that Twombly and Iqbal between them have somehow

rewritten Rule 8, must be discarded.”). The court agrees that Rule 8 is firmly intact, but that does

not change the fact, explained by the U.S. Supreme Court in Twombly and Iqbal, that the short and

plain statement must be plausible. See Ashcraft v. Iqbal, 556 U.S. 662, 677–78 (2009) (explaining

that Rule 8’s “‘short and plain statement of the claim showing that the pleader is entitled to relief’”

“demands more than an unadorned, the defendant-unlawfully-harmed-me accusation” and that it

must “‘state a claim to relief that is plausible on its face’” to survive a motion to dismiss (quoting

Rule 8 and Twombly,550 U.S. at 570)).

either notice resulted in a citation or that Luman or Arellano were prosecuted for any ordinance

violations. Id. There is also no allegation that either plaintiff receiving a notice felt intimidated or

threatened and no indication that they ceased their First Amendment activity as a result of receiving

the notices. Id.

The plaintiffs assert that the notices are part of an overall conspiracy to violate their First

Amendment rights. Dkt. 45. However, the second amended complaint does not directly allege a

conspiracy; it must be inferred. See Dkt. 9. “To establish a cause of action based on conspiracy

[under § 1983] a plaintiff must show that the defendants agreed to commit an illegal act.” Arsenaux

v. Roberts. 726 F.2d 1022, 1024 (5th Cir. 1982). Conclusory or blanket accusations are not

sufficient. Id.; see also Rodriguez v. Neely, 169 F.3d 220, 222 (5th Cir. 1999). The elements are

(1) “‘the existence of a conspiracy involving state action’”; and (2) “‘a deprivation of civil rights in

furtherance of the conspiracy by a party to the conspiracy.’” Shaw v. Villanueva, 918 F.3d 414, 419

(5th Cir. 2019) (quoting Pfannstiel v. City of Marion, 918 F.2d 1178, 1187 (5th Cir. 1990),

abrogated on other grounds).

Here, while there is not an allegation of conspiracy in the second amended complaint, the

plaintiffs seem to indicate that an agreement to conspire can be inferred by the mere fact that Ana

Diaz is married to Chris Diaz. However, agreeing to marry someone is not an agreement to conspire

in illegal activity. There is simply not enough information alleged in the second amended complaint,

taking the facts in the light most favorable to the plaintiffs, to support a conspiracy claim against the

Jacinto Defendants based on the alleged unlawful adverse employment actions taken by Christopher

Diaz.

Because there are not sufficient allegations of a conspiracy, the court must consider whether

the plaintiffs have sufficiently alleged that the Jacinto Defendants deprived the plaintiffs of their First

Amendment rights as ordinary citizens. Certainly, the First Amendment prohibits limitations on an

ordinary citizen’s freedom of speech and retaliation against an ordinary citizen for exercising his or

her First Amendment rights. See Keenan v. Tejeda, 290 F.3d 252, 258 (5th Cir. 2002). To establish

this type of claim, the plaintiffs “must show that (1) they were engaged in constitutionally protected

activity, (2) the defendants’ actions caused them to suffer an injury that would chill a person of

ordinary firmness from continuing to engage in that activity, and (3) the defendants’ adverse actions

were substantially motivated against the plaintiffs’ exercise of constitutionally protected conduct.”

Id. With regard to the second prong, not “all disadvantages imposed for the exercise of First

Amendment freedoms constitute actionable retaliation.” Colson v. Grohman, 174 F.3d 498, 510 (5th

Cir. 1999).“[R]etaliatory criticisms, investigations, and false accusations that do not lead to some

more tangible adverse action are not actionable under § 1983.” Id. at 513.

Here, the plaintiffs contend that Ana Diaz allowed the notices to be placed on Luman’s and

Arellano’s properties. While there is some implication that Ana Diaz’s alleged action of allowing

the notices was motivated by Luman’s and Arellano’s protected activity, there is no indication that

these notices caused Luman or Arellano to suffer any injury. The harm alleged is more akin to

criticisms, investigations, or false accusations, which the Fifth Circuit has determined are not

actionable absent a tangible adverse action. Ana Diaz was not involved in the tangible adverse

actions alleged here, which relate to Luman’s and Arellano’s employment and not the status of

building on their property or the height of their grass.

The court finds that the plaintiffs have not alleged constitutional violations by the Jacinto

Defendants. The court, however, will address the Jacinto Defendants’ other arguments in an

abundance of caution.

B. Monell Claim Against Jacinto County

The plaintiffs assert that Diaz and Jacinto City abused their power by threatening and

intimidating Luman and Arellano for exercising their First Amendment Rights. Dkt. 9. Section

1983 prohibits “persons” acting under the color of law from depriving another of any “rights,

privileges, and immunities secured by the Constitution and laws . . . .” 42 U.S.C. § 1983.

Municipalities and other local government units qualify as “persons” under § 1983. Monell v. Dep't

of Soc. Serv., 436 U.S. 658, 689, 98 S. Ct. 2018 (1978). However, a local government “may not be

sued under § 1983 for an injury inflicted solely by its employees or agents.” Id. at 694. “Instead,

it is when execution of a government’s policy or custom, whether made by its lawmakers or by those

whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the

government as an entity is responsible under § 1983.” Id.; Meadowbriar Home for Children, Inc.

v. Gunn, 81 F.3d 521, 532 (5th Cir. 1996) (“If a § 1983 suit is brought against a [municipality or

local government], the claim must be based upon the implementation or execution of a policy or

custom which was officially adopted by that body’s officers.”) (citing Krueger v. Reimer, 66 F.3d

75, 76 (5th Cir. 1995)). “In order to hold a municipality or local government liable under Section

1983 for the misconduct of one of its employees, a plaintiff must initially allege that an official

policy or custom ‘was the cause in fact of the deprivation of rights inflicted,’” and the “description

of a policy or custom and its relationship to the underlying constitutional violation . . . cannot be

conclusory; it must contain specific facts.” Spiller v. City of Texas City, 130 F.3d 162, 167 (5th Cir.

1997) (quoting Leffall v. Dall. Indep. Sch. Dist., 28 F.3d 521, 525 (5th Cir. 1994)).

“[M]unicipal liability under section 1983 requires proof of three elements: a policymaker;

an official policy, and a violation of constitutional rights whose ‘moving force’ is the policy or

custom.” Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th Cir. 2001). A “policymaker” must

have “‘final policymaking authority’ over the subject matter of the offending policy.” Jett v. Dall.

Indep. Sch. Dist., 491 U.S. 701, 737, 109 S. Ct. 2702 (1989). “There is no ‘de facto’ final

policymaking authority.” Peterson v. City of Fort Worth, 588 F.3d 838, 847 (5th Cir. 2009). A

“final policymaker” has “final authority to establish municipal policy with respect to the action

ordered . . . . [Having] discretion in the exercise of particular functions does not, without more, give

rise to municipal liability based on an exercise of that discretion.” Pembaur v. City of Cincinnati,

475 U.S. 469, 482, 106 S. Ct. 1292 (1986).

To meet the “official policy” element, the plaintiff must either allege (1) a written policy or

procedure that is officially adopted or promulgated by the policymaking authorities of a

governmental agency; or (2) a persistent, widespread practice of governmental agency officials or

employees which, although not officially promulgated or adopted, is so common and well settled as

to constitute a policy or custom that fairly represents the agency’s policy. Piotrowski, 237 F.3d at

579. The plaintiff may also demonstrate an unwritten policy if he or she proves that a “final

policymaker” took a single unconstitutional action. Bolton v. City of Dallas, 541 F.3d 545, 548 (5th

Cir. 2008).

To meet the “moving force” element, the plaintiff must show direct causation by establishing

“‘a direct causal link’ between the policy and the violation.” Peterson, 588 F.3d at 848. It is not

enough for the plaintiff to allege that a change in policy may have prevented the violation, the

municipality’s policy “must be affirmatively linked to the constitutional violation.” Faire v. City

of Arlington, 957 F.2d 1268, 1281 (5th Cir. 1992).

The Jacinto Defendants contend that the plaintiffs fail to allege any facts showing that a

custom, policy, practice, or procedure of Jacinto City was the moving force behind the alleged

violation of Luman’s and Arellano’s constitutional rights. Dkt. 35. The Jacinto Defendants point

out that the Jacinto City Council, not the mayor, is the policymaker for the City, citing the city’s

charter, and that while the mayor is on the council, she can only cast a vote if there is a tie. Id.

(citing Dkt. 35, Exs. A, B, C, and G). They argue that nothing in the second amended complaint

suggests that the notices received by Arellano and Luman were pursuant to a policy of the Jacinto

City Council, and that since Ana Diaz had no final policymaking power, the city cannot be held

liable under § 1983. Id. Additionally, they assert that there is no allegation that there were other

instances where Jacinto City gave notices of ordinance violations as retaliation for exercising First

Amendment rights, and thus there is no pattern or custom alleged. Id. Finally, the Jacinto

Defendants argue that there is nothing to suggest that Jacinto City was deliberately indifferent to the

plaintiffs’ rights. Id.

The plaintiffs contend that the city had a custom of being subservient to Ana Diaz, who “used

the unofficial influence of her official position for unofficial and ultra vires acts, outside the scope

of her office,” and has thus “inculcated a custom in the city of subservience to her and her husband’s

political ambitions.” Dkt. 45. There are a couple of problems with this theory, as it relates to

municipal liability. First, if her acts were outside of the scope of her office, how can the city be

responsible for them? Second, if there is some “custom” of subservience by Jacinto City to Ana

Diaz’s and Christopher Diaz’s actions relating to political advancement, the complaint does not

provide any information about additional instances, other than the two discrete alleged issues with

notifications placed on property, of Ana Diaz using her position in this manner. It is not plausible

that these two notices constitute a custom of subservience to Ana Diaz’s political maneuvering.

Accordingly, Jacinto City cannot be held liable for the allegations of misuse of authority by Ana

Diaz.

C. Qualified Immunity

Next, the Jacinto Defendants argue that the claims against Ana Diaz should be dismissed

because she is entitled to qualified immunity. Dkt. 35. In a lawsuit brought against an individual

defendant in his or her personal capacity, “‘it is enough to show that the official, acting under the

color of state law, caused the deprivation of a federal right.’” Goodman v. Harris Cty., 571 F.3d

388, 395 (5th Cir. 2009). The official may assert qualified immunity, which “shields government

officials acting within their discretionary authority from liability when their conduct does not violate

clearly established statutory or constitutional law of which a reasonable person would have known.’”

Id. at 395 (quoting Wallace v. Cty. of Comal, 400 F.3d 284, 289 (5th Cir. 2005)). “When a defendant

invokes qualified immunity, the burden is on the plaintiff to demonstrate the inapplicability of the

defense.” McClendon v. City of Columbia, 305 F.3d 314, 323 (5th Cir. 2002). At the motion to

dismiss stage, the court must evaluate the conduct as alleged in the complaint for objective legal

reasonableness. Id. (citing Behrens v. Pelletier, 516 U.S. 299, 309, 116 S. Ct. 834 (1996)). Courts

must determine (1) if the plaintiff alleged a violation of a clearly established constitutional right, and

(2) whether the alleged conduct was objectively reasonable under clearly established law that existed

at the time of the incident. Id. Judges are “permitted to exercise their sound discretion in deciding

which of the two prongs of the qualified immunity analysis should be addressed first in light of the

circumstances in the particular case at hand.” Pearson v. Callahan, 555 U.S. 223, 236, 129 S. Ct.

808 (2009).

The Jacinto Defendants argue that the plaintiffs fail to show that the alleged facts establish

a constitutional violation and that Ana Diaz’s actions violated any clearly established laws. Dkt. 48.

The plaintiffs assert that Ana Diaz participated in Christopher Diaz’s adverse employment action that

was based on the plaintiffs’ exercise of their First Amendment rights, as Ana Diaz misused her

official influence and “the coincidence of the petty, pettifogging harassment-by-regulatory-violation-

notices at issue here is prima facie proof of a conspiracy in deprivation of civil rights, at least

sufficient to justify the claim and to preclude its dismissal by a motion under Rule 12(b)(6) at this

juncture.” Dkt. 45. They contend that Ana Diaz is not entitled to qualified immunity for ultra vires

acts of lawlessness. Id. They argue that public officials have been on notice that involvement in a

conspiracy can result in § 1983 liability since Smith v. Winter was decided in 1986. Id. (citing Smith

v. Winter, 782 F.2d 508 (5th Cir. 1986)).

In Smith, the Fifth Circuit found that the plaintiffs had stated a claim when they alleged that

the defendants conspired to misuse the recall statute against the plaintiffs in retaliation for their

exercise of First Amendment rights. 782 F.2d at 512. One of the defendants, a county clerk, falsely

certified names on a recall petition, and the other defendants were allegedly wilful participants in the

state official’s action to deprive the plaintiffs of constitutional rights. Id. The Fifth Circuit found

that the non-government officials acted under the color of law because their co-conspirator was a

government official. Id. It additionally noted that misuse of state law by public officials qualifies

as “under the color of” state law for the purposes of § 1983. Id.

Here, Ana Diaz is not a non-government official, but it appears that the plaintiffs contend that

the alleged ultra vires acts at issue were overt acts in furtherance of the conspiracy and that the

conspiracy and infringement of First Amendment rights relates to the adverse employment decisions

made by Christopher Diaz. It is difficult to ascertain the exact theory, though, because the second

amended complaint does not explain the alleged conspiracy or even mention a conspiracy. While

misuse of state law as part of a conspiracy was clearly established as unlawful, the second amended

complaint does not plausibly assert that Ana Diaz is part of a conspiracy or that her actions caused

a deprivation of any of the plaintiffs’ rights. Accordingly, she is entitled to qualified immunity.

D. Punitive Damages

The Jacinto Defendants argue that Jacinto City cannot be liable for punitive damages, and

the plaintiffs do not disagree that this is currently the law. Dkts. 35, 45. However, the plaintiffs

advocate for a change in the law. The court, however, is bound by current Fifth Circuit precedent.

Thus, if the plaintiffs had stated a claim against Jacinto City, which they did not, punitive damages

would not be available.

E. Leave to Amend

The plaintiffs move for leave to amend in their response to the motion to dismiss. Dkt. 45.

The defendants do not respond to this request in their reply. See Dkt. 48. While the plaintiffs have

already amended twice, under the Federal Rules of Civil Procedure, leave to amend “shall be freely

given when justice so requires,” and the court is given broad discretion in granting leave. See Fed.

R. Civ. P. 15(a); United States ex rel. Willard v. Humana Health Plan of Tex., Inc., 336 F.3d 375,

386 (5th Cir. 2003). However, a “bare request in an opposition to a motion to dismiss—without any

indication of the particular grounds on which the amendment is sought . . . does not constitute a

motion within the contemplation of Rule 15(a).” Willard, 336 F.3d at 387. Here, the plaintiffs ask

in their prayer for relief that “if the Court finds that Plaintiffs’ pleadings are deficient in any

particular way, Plaintiffs ask the Court for clarification as to what elements of the pleading are

lacking before dismissing Plaintiffs’ § 1983 claims under Rule 12(b)(6), and Plaintiffs request leave

to cure those defects before the Court dismisses the claims against Diaz.” Dkt. 45. This could be

construed as a bare request, but, since the Jacinto Defendants did not file an opposition to the request

and leave should be freely given, the court will construe the request as a motion. While generally

the court freely grants leave to amend, it will not do so if a request is futile. An amendment to the

claim for punitive damages could not cure the defect with this claim. There is a possibility, however,

that the plaintiffs will be able to state a claim and overcome Ana Diaz’s claim of qualified immunity

with additional facts and allegations. The plaintiffs’ motion to amend is therefore GRANTED IN

PART AND DENIED IN PART. The plaintiffs may amend their complaint to better explain their

allegations against the Jacinto Defendants, but they may not seek punitive damages against Jacinto

County. The amendment shall be filed within twenty (20) days of the date of this order.

IV. CONCLUSION

The Jacinto Defendants’ motion to dismiss (Dkt. 35) is GRANTED. The plaintiffs fail to

state a claim upon which relief can be granted, Ana Diaz is entitled to qualified immunity, and

Jacinto City cannot be held liable for the alleged conduct of Ana Diaz. The claim for punitive

damages against Jacinto Cityis DISMISSED WITH PREJUDICE. The claims against Ana Diaz and

remaining claims against Jacinto City are DISMISSED WITHOUT PREJUDICE TO REFILING in

an amended complaint.

The plaintiffs’ alternative motion for leave to amend is GRANTED IN PART AND DENIED

IN PART. The plaintiffs’ claims against Ana Diaz and Jacinto City, with the exception of the

punitive damages claim against Jacinto City, will be reinstated if an amended complaint if filed

within twenty (20) days of the date of this order.

Signed at Houston, Texas on May 18, 2020.

Sd

Senior Wnited StateS, District Judge

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