Flores v. The City of San Benito, Texas

IN THE UNITED STATES DISTRICT COURT September 24, 2021

FOR THE SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk

BROWNSVILLE DIVISION

APRIL M. FLORES, §

Plaintiff, §

§

v. § CIVIL ACTION NO. 1:20-cv-169

§

CITY OF SAN BENITO, TEXAS, et al., §

Defendants. §

REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE

On October 9, 2020, April M. Flores, both in her capacity as the mother of Ricardo

Trevino III and as the representative of his estate, filed suit in this Court. Dkt. No. 1.

Trevino was killed in a police shooting after a vehicular chase. Flores sued San Benito

Police Chief Michael Galvan and San Benito police officers David Rebolledo, Victor

Espitia, Jose Santos, Oscar Lara, and Manuel Alvarez. Id. Additionally, Flores has sued

Cameron County Constable Eddie Solis and deputy constables Jose Angel Villarreal and

Carlos Cordova. Id. Flores raised claims of unlawful seizure/false arrest as well as

excessive force against all of the officers. Flores also sued the City of San Benito and

Cameron County on theories of municipal liability, for failure to train and supervise the

officers. Id.

On July 7, 2021, Rebolledo filed a motion to dismiss, pursuant to Fed. R. Civ. P.

12(b)(5) and 12(b)(6), arguing that he was not properly served, and that Flores has not

stated a claim to relief against him as to unlawful seizure/false arrest. Dkt. No. 56.1 The

motion has been fully briefed. Dkt. Nos. 61, 62.

After reviewing the record and the relevant caselaw, it is recommended that the

motion to dismiss filed by Rebolledo be granted. The claim of unlawful seizure/false arrest

should be dismissed for failure to state a claim upon which relief can be granted. The

1 The claims against the other defendants have been addressed in previous Reports and

Recommendations. Dkt. Nos. 41, 44, 57, 60

claims of excessive force should be conditionally dismissed with prejudice for failure to

timely and properly serve Rebolledo.

I. Background

A. Factual Background

On December 7, 2018, Ricardo Trevino III and his cousin were volunteering at

Templo Bethesda Church in San Benito, Texas. Dkt. No. 1, p. 7. Trevino was still

recovering from injuries suffered in a recent motor vehicle accident and purportedly took

some Tylenol to relieve his pain. Id. His cousin witnessed Trevino taking the Tylenol and

called the San Benito Police Department, for reasons that are not apparent from the

complaint. Id.

Police officers Victor Espitia and Jose Santos were dispatched to the church to

conduct a welfare check on Trevino, while Officer Oscar Lara arrived as backup. Dkt. No.

1, pp. 7-8. When the officers arrived, Trevino drove away from the church. Id. The

complaint stated that Trevino “had not been accused of committing a crime or doing

anything illegal, had no criminal history [nor was he] … carrying a weapon.” Id. Espitia,

Santos and Lara pursued Trevino’s vehicle. At a later point, Officers David Rebolledo and

Manuel Alvarez joined the pursuit. Id. No explanation is offered as to why they joined the

pursuit. San Benito Police Chief Michael Galvan also joined the pursuit, even though he

was off duty at the time. Id.

Cameron County Constable Pct. 5 Deputies Jose Angel Villarreal and Carlos

Cordova heard about the chase and joined in the pursuit “even though they were many

miles from the scene.” Dkt. No. 1, p. 8. Constable Eddie Solis gave Villarreal and Cordova

“permission to join the pursuit without conferring with [San Benito police].” Id.

Trevino drove his vehicle down Ranch Park Road, which is a cul-de-sac. Dkt. No.

1, p. 9. When he reached the end of the cul-de-sac, he turned the vehicle around and

attempted to escape. Id. Rebolledo and Villareal had positioned their police vehicles facing

each other in the road, so as to block Trevino’s vehicle from being able to escape the cul-

de-sac. Id.

Trevino “attempted to move out of the cul-de-sac through an opening between the

vehicles.” Dkt. No. 1, p. 9. Galvan moved his vehicle to block that opening, striking

Trevino’s vehicle. Id. As Trevino put his vehicle in reverse, police officers began shooting

at him; Trevino’s vehicle went into a ditch. Id. Officers continued to shoot at Trevino even

after he put the car in park. Id. The complaint stated that officers continued to shoot even

though Trevino “had fully retreated from all officers” and “had even raised up his hands.”

Id. Flores has pled that Rebolledo was one of the officers who fired shots at Trevino even

after he had retreated and raised his hands. Dkt. No. 52, p. 4.

The officers fired 31 total shots, striking Trevino 12 times in the “head, face and

torso.” Dkt. No. 1, p. 9. Trevino died from his injuries on that same date, December 7,

2018.

B. Procedural Background

On October 9, 2020, April M. Flores, both in her capacity as Trevino’s mother and

as the representative of his estate, filed suit in this Court. Dkt. No. 1. Flores sued Galvan,

Rebolledo, Espitia, Santos, Lara, Alvarez, Solis, Villarreal, and Cordova in their individual

and official capacities. She also sued the City of San Benito and Cameron County on

theories of municipal liability. Id.

As to the individual defendants, Flores claims that they used excessive force against

Trevino and unlawfully seized him. Dkt. No. 1. As to the municipal defendants, Flores

claims that both San Benito and Cameron County failed to adequately train their officers

on proper use of force and proper tactics to use in vehicle pursuits. Id.

As to all defendants, Flores seeks punitive and exemplary damages. Dkt. No. 1, p.

23.

On May 7, 2021, the Court noted that more than 120 days had passed since the case

began and Rebolledo had not been served. Dkt. No. 40. The Court ordered Flores to show

cause no later than May 21, 2021, as to why the Court should not dismiss the case without

prejudice to refiling as to Rebolledo for failure to timely effectuate service. Id.

On May 21, 2021, Flores filed a motion seeking authorization for substitute service

on Rebolledo. Dkt. No. 42. Flores sought to serve Rebolledo by either leaving a copy of

the complaint and summons with someone over the age of 16 or by affixing a copy of the

complaint and summons to the door at an address in Baytown, Texas.

On that same day, the Court granted a motion authorizing substitute service as

follows:

The Plaintiff may serve David Rebolledo by leaving a copy of the citation

and of the petition with anyone older than sixteen at both: 629 Rollingbrook

Drive, Apt. 2114, Baytown, Texas, 77521 and 7272 Parker Ave., Olmito,

Texas, 78575. Substitute service must be completed at both addresses to be

considered perfected. Substitute service must be completed no later than July

2, 2021. Failure to complete substitute service by that date will result in the

claims against Rebolledo being dismissed without prejudice for failure to

timely effectuate service.

Dkt. No. 43 (emphasis added). Thus, the order authorizing substitute service clearly stated

that a copy of the complaint and summons had to be left with someone older than sixteen

years old at two different addresses.

On June 5, 2021, a copy of the complaint and summons was left attached to the front

gate at the Olmito address. Dkt. No. 48. On June 30, 2021, a copy of the complaint and

summons was attached to the door at the Baytown address. Dkt. No. 53. There is no

indication in the record that the complaint and summons were left with anyone at either

address.

On July 7, 2021, Rebolledo filed a motion to dismiss for failure to properly serve

him. Dkt. No. 56. Rebolledo argues that Flores did not serve him in accordance with the

Court’s order. Id. In the alternative, Rebolledo argues that Flores has not stated a claim

upon which relief can be granted as to the unlawful seizure/false arrest claim.

On August 6, 2021, Flores filed her response to the motion to dismiss. Dkt. No. 61.

Flores argues that Rebolledo “erroneously claimed that the Court allowed Plaintiff to effect

alternative service only by delivering the summons to a person over sixteen at two different

addresses,” even though the Court’s order said exactly that. Id. Flores asserts that she

properly served Rebolledo, but cites the language from her proposed order on substitute

service (Dkt. No. 42-1), rather than from the Court’s order (Dkt. No. 43). Id. Furthermore,

Flores’s response does not address the motion to dismiss the unlawful seizure claim, but

only focuses on the excessive force claim – a claim that Rebolledo has not sought to

dismiss. Id.

On August 9, 2021, Rebolledo filed a reply brief. Dkt. No. 62. In it, he reiterates

that he was not properly served in accordance with the Court’s order.

On August 11, 2021, the Court issued an order, giving Flores additional time to

complete service on Rebolledo. Dkt. No. 63. The Court found that while Rebolledo was

not properly served, any dismissal would functionally serve as a dismissal with prejudice,

given that the statute of limitations had expired. Id. The Court found, based on the record

at that time, that the facts did not meet the heightened standard for dismissal with prejudice.

Id. The order instructed Flores to serve Rebolledo in accordance with the Court’s order

authorizing substitute service no later than August 25, 2021. Id. Flores was further ordered

to file the returns of service on the Court’s docket no later than September 8, 2021. Id. The

order noted that if Flores failed “to serve Rebolledo in precise accordance with the Court’s

order authorizing substitute service, the Court will consider the failure to be intentional.”

Id., p. 6.

Flores has not filed the returns of service showing that Rebolledo was served in

accordance with the order authorizing substitute service.

II. Applicable Law

A. Section 1983

As relevant here, 42 U.S.C. § 1983 provides:

Every person who, under color of any statute, ordinance, regulation, custom,

or usage, of any State or Territory or the District of Columbia, subjects, or

causes to be subjected, any citizen of the United States or other person within

the jurisdiction thereof to the deprivation of any rights, privileges, or

immunities secured by the Constitution and laws, shall be liable to the party

injured in an action at law, suit in equity, or other proper proceeding for

redress, except that in any action brought against a judicial officer for an act

or omission taken in such officer=s judicial capacity, injunctive relief shall

not be granted unless a declaratory decree was violated or declaratory relief

was unavailable.

Id.

Section 1983 “is not itself a source of substantive rights, but a method for

vindicating federal rights elsewhere conferred by those parts of the United States

Constitution and federal statutes that it describes.” Baker v. McCollan, 443 U.S. 137, 144,

n. 3 (1979). To prevail upon a § 1983 claim a plaintiff must establish two elements: (1) a

constitutional violation; and (2) that the defendants were acting under color of state law

when they committed the constitutional violation. Whitley v. Hanna, 726 F.3d 631, 638

(5th Cir. 2013).

B. Rule 12(b)(5)

“A motion to dismiss pursuant to Rule 12(b)(5) turns on the legal sufficiency of the

service of process.” Holly v. Metro. Transit Auth., 213 F. App’x 343, 344 (5th Cir. 2007).

“[O]nce the validity of service of process has been contested, the plaintiff bears the burden

of establishing its validity.” Henderson v. Republic of Texas, 672 F. App’x 383, 384 (5th

Cir. 2016) (citing Carimi v. Royal Carribean Cruise Line, Inc., 959 F.2d 1344, 1346 (5th

Cir. 1992)). “When service of process is challenged, the serving party bears the burden of

proving ... good cause for failure to effect timely service.” Thrasher v. City of Amarillo,

709 F.3d 509, 511 (5th Cir. 2013) (ellipses original). Good cause is the same showing “as

would be required to show excusable neglect, as to which simple inadvertence or mistake

of counsel or ignorance of the rules usually does not suffice.” Id.

Normally, a dismissal for failure to properly serve is a dismissal without prejudice.

FED. R. CIV. P. 4(m). However, if the application of the statute of limitations will likely

bar future litigation, then the dismissal would be considered with prejudice. Thrasher v.

City of Amarillo, 709 F.3d 509, 512 (5th Cir. 2013). Because dismissal with prejudice is

“an extreme sanction that deprives a litigant of the opportunity to pursue his claim, it is

warranted only where a clear record of delay or contumacious conduct by the plaintiff

exists and a lesser sanction would not better serve the interests of justice.” Id. at 512-513

(cleaned up).2 Even if there is a record of delay, dismissal still generally requires a finding

2 “Cleaned up” is a parenthetical that signals to the reader that the author “has removed

extraneous, non-substantive clutter such as brackets, quotation marks, ellipses, footnote signals,

internal citations or made un-bracketed changes to capitalization,” in order to make the quotation

that the delay: “(1) was caused by the plaintiff himself, as opposed to by counsel; (2)

resulted in actual prejudice to the defendants; or (3) was caused by intentional conduct.”

Lozano v. Bosdet, 693 F.3d 485, 490 (5th Cir. 2012).

C. Rule 12(b)(6)

Dismissal under Rule 12(b)(6) is appropriate when the plaintiff has failed to plead

sufficient facts “to state a claim to relief that is plausible on its face.” Ferguson v. Bank of

New York Mellon Corp., 802 F.3d 777, 780 (5th Cir. 2015) (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007)).

“A claim has facial plausibility when the plaintiff pleads factual content that allows

the court to draw the reasonable inference that the defendant is liable for the misconduct

alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). If “the well-pleaded facts do not

permit the court to infer more than the mere possibility of misconduct,” then dismissal is

proper. Id. at 679.

“In determining whether a plaintiff’s claims survive a Rule 12(b)(6) motion to

dismiss, the factual information to which the court addresses its inquiry is limited to the (1)

the facts set forth in the complaint, (2) documents attached to the complaint, and (3) matters

of which judicial notice may be taken under Federal Rule of Evidence 201.” Walker v.

Beaumont Indep. Sch. Dist., 938 F.3d 724, 735 (5th Cir. 2019). All well-pled facts must

be viewed in the light most favorable to the plaintiff. Schweitzer v. Inv. Comm. of Phillips

66 Sav. Plan, 960 F.3d 190, 194 (5th Cir. 2020).

Dismissal, for failing to state a claim upon which relief can be granted, is a dismissal

on the merits and with prejudice. Memon v. Allied Domecq QSR, 385 F.3d 871, 874 n. 6

(5th Cir. 2004).

III. Analysis

more readable, but has not altered the substance of the quotation. Na v. Gillespie, 2017 WL

5956773, at *3, 234 Md. App. 742, 174 A.3d 493 (Md. Ct. Spec. App. Dec. 1, 2017); see also

Brownback v. King, -- U.S. ---, 141 S. Ct. 740 (2021) (using “cleaned up”).

The Court will first consider whether Flores has stated a claim of unlawful

seizure/false arrest against Rebolledo before turning to whether dismissal is proper for

failure to properly serve Rebolledo.

A. Unlawful Seizure/False Arrest

As an initial matter, Flores refers to this claim as an unlawful seizure claim. Dkt.

No. 1. Indeed, the claim appears to be a false arrest claim, alleging that the officers seized

him without probable cause. Id. In order to plead a claim for false or wrongful arrest,

Flores must plead facts showing that Trevino was arrested without probable cause. Brown

v. Lyford, 243 F.3d 185, 189 (5th Cir. 2001).

There is a constitutional right to be free from the unreasonable seizure or arrest of

one’s person. Brower v. County of Inyo, 489 U.S. 593 (1989). The standard for deciding

the reasonableness of an arrest under the Fourth Amendment is identical in both civil and

criminal cases. Wooley v. City of Baton Rouge, 211 F.3d 913, 925 (5th Cir. 2000) (citing

Soldal v. Cook, 506 U.S. 56 (1992)). For that reason, the Court will cite criminal and civil

cases interchangeably.

A person is considered “seized,” within the meaning of the Fourth Amendment, if

“in view of all of the circumstances surrounding the incident, a reasonable person would

have believed that he was not free to leave.” U.S. v. Mendenhall, 446 U.S. 544, 554 (1980).

The Fifth Circuit has held that a police officer shooting at a fleeing suspect, causing them

to stop fleeing, is considered a seizure under the Fourth Amendment. Flores v. City of

Palacios, 381 F.3d 391, 396 (5th Cir. 2004). When the officers shot at Trevino’s vehicle

and he stopped driving, then the termination of Trevino’s “freedom of movement was

accomplished by exactly the means [the officers] intentionally applied.” Id. Thus, Flores

has pled facts showing that Trevino was seized for constitutionally purposes.

Flores must also plead facts showing that the seizure occurred without probable

cause to believe that a crime had been committed. This is where her claim fails.

Flores makes a point of stating that Trevino “had not been accused of committing a

crime or doing anything illegal, had no criminal history [nor was he] … carrying a

weapon,” to demonstrate that there was no probable cause for arrest. Dkt. No. 1, p. 8.

However, even if the officers were not justified in initially trying to detain Trevino, when

Trevino fled, he gave them probable cause to arrest him. Day v. State, 614 S.W.3d 121,

128 n. 31 (Tex. Crim. App. 2020).

Trevino led officers on a pursuit. Once the pursuit began, the officers had probable

cause to arrest Trevino for evading arrest. TEX. PENAL CODE § 38.04(a) (“A person

commits an offense if he intentionally flees from a person he knows is a peace officer or

federal special investigator attempting lawfully to arrest or detain him.”). Furthermore,

even if the officers did not initially have a valid basis to arrest or detain him, they still had

probable cause to arrest him for evading them. See Day, 614 S.W.3d at 128 n. 31 (“the

evading arrest or detention statute allows prosecution even though the initial detention may

have been unlawful or unreasonably prolonged”). “Fleeing is anything less than prompt

compliance with an officer’s direction to stop.” Smith v. State, 483 S.W.3d 648, 653 (Tex.

App. 2015) (cleaned up).

Accordingly, even if probable cause did not exist when the encounter began,

Trevino supplied the officers with probable cause to believe that a crime had been

committed. The motion to dismiss should be granted as to any claim of false

arrest/unlawful imprisonment.3

Rebolledo has not sought dismissal of the excessive force claim on the merits, but

has sought dismissal for failure to be properly served. Accordingly, the Court turns to that

claim.

B. Service

Flores has the burden of establishing that she timely and properly served Rebolledo.

She has failed to meet this burden.

“Unless federal law provides otherwise, an individual . . . may be served in a judicial

district of the United States by . . . following state law for serving a summons in an action

3 The Court notes that, to the extent that Flores seeks to raise state civil claims to vindicate

Trevino’s rights under the Texas Constitution, those claims are legally frivolous. “[T]ort

damages are not recoverable for violations of the Texas Constitution.” Daniels v. City of

Arlington, Tex., 246 F.3d 500, 507 (5th Cir. 2001).

brought in courts of general jurisdiction in the state where the district court is located or

where service is made.” Fed. R. Civ. P. 4(e)(1). Under Texas law, if service has been

unsuccessfully tried at “the location of the defendant ‘s usual place of business or usual

place of abode or other place where the defendant can probably be found,” then the Court

can authorize substitute service. Tex. R. Civ. P. 106(b). The Court can authorize substitute

service that permits the plaintiff to serve the defendant “by leaving a copy of the citation

and of the petition with anyone older than sixteen at” a specified location. Tex. R. Civ. P.

106(b)(1).

The Court authorized service under Tex. R. Civ. P. 106(b)(1), specifically

authorizing substitute service as follows:

The Plaintiff may serve David Rebolledo by leaving a copy of the citation

and of the petition with anyone older than sixteen at both: 629 Rollingbrook

Drive, Apt. 2114, Baytown, Texas, 77521 and 7272 Parker Ave., Olmito,

Texas, 78575. Substitute service must be completed at both addresses to be

considered perfected. Substitute service must be completed no later than July

2, 2021. Failure to complete substitute service by that date will result in the

claims against Rebolledo being dismissed without prejudice for failure to

timely effectuate service.

Dkt. No. 43 (emphasis added). Thus, the order authorizing substitute service clearly stated

that a copy of the complaint and summons had to be left with someone older than sixteen

years old at two different addresses.

Under Texas law, “any deviation from the trial court’s order” authorizing substitute

service means that service was not properly executed. De La Garza v. Dunn, No. 03-19-

00849-CV, 2021 WL 1202089, at *5 (Tex. App. Mar. 31, 2021) (collecting cases). Flores

clearly deviated from the Court’s order because she did not leave the citation and petition

with someone older than sixteen at both addresses. Flores left the citation and petition

attached to the outside of each building, which was not authorized. Because Flores did not

engage in “strict compliance” with the Court’s order, Rebolledo was not properly served

under Texas law. Becker v. Russell, 765 S.W.2d 899, 900 (Tex. App. 1989). Because

Rebolledo was not properly served under Texas law, he was not properly served under Fed.

R. Civ. P. 4(e). See Taylor v. Alex. Brown & Sons Inc., No. 3:02-CV-0818-P, 2002 WL

31245369, at *3 (N.D. Tex. Oct. 2, 2002) (“If service of process was not executed in strict

compliance with Texas state law, the [Federal] court cannot acquire proper jurisdiction

over a defendant.”). Accordingly, Flores has not properly served Rebolledo.

A defendant must be served within 120 days after the complaint is filed. Fed. R.

Civ. P. 4(m). The complaint was filed on October 9, 2020, which was 350 days ago; more

than 1,000 days have elapsed since the shooting took place. Thus, timely service has not

been effectuated.

As noted earlier, “[w]hen service of process is challenged, the serving party bears

the burden of proving ... good cause for failure to effect timely service.” Thrasher v. City

of Amarillo, 709 F.3d 509, 511 (5th Cir. 2013) (ellipses original). That same case defines

good cause as a showing “required to show excusable neglect, as to which simple

inadvertence or mistake of counsel or ignorance of the rules usually does not suffice.” Id.

Flores has not shown good cause for failure to timely serve this defendant. The

Court authorized substitute service and her attorney failed to carefully read the order to see

what manner of service was authorized. Counsel’s mistake does not suffice to establish

good cause. Thrasher, 709 F.3d at 511. Flores has failed to meet her burden to establish

good cause for the failure to timely serve Rebolledo.

The statute of limitations, however, would almost certainly prevent Flores from

refiling her claims against Rebolledo. Indeed, there is a two-year statute of limitations for

§ 1983 claims filed in Texas. Whitt v. Stephens Cty., 529 F.3d 278, 282 (5th Cir. 2008).

The events underlying this case took place on December 7, 2018. Dkt. No. 1, p. 2. The

statute of limitations expired on December 7, 2020, so any dismissal without prejudice

would functionally serve as a dismissal with prejudice. Thus, the Court must determine

whether the facts of this case meet the “heightened standard” that justifies a dismissal with

prejudice. Thrasher, 709 F.3d at 513.

Under this heightened standard, the Court must either find a record of delay or

contumacious conduct. Thrasher, 709 F.3d at 513. The Fifth Circuit has held that “delay

which warrants dismissal with prejudice must be longer than just a few months; instead,

the delay must be characterized by ‘significant periods of total inactivity.” Millan v. USAA

Gen. Indem. Co., 546 F.3d 321, 326–27 (5th Cir. 2008). The record indicates that this case

was filed in October 2020. Dkt. No. 1. In November 2020, Flores sought to serve

Rebolledo six different times at three different addresses. Dkt. No. 42-2. Flores then made

no attempt to serve Rebolledo over the next six months, until the Court issued the show

cause order in May 2021. Dkt. No. 40. Flores then sought substitute service and attempted

to serve Rebolledo again. Dkt. Nos. 42, 48, 53. Given that a few months of inactivity does

not suffice to establish delay, the Court cannot conclude that a record of delay is present in

this case. Millan, 546 F.3d at 326–27; see also Lewis v. Sheriff’s Dep’t Bossier Par., 478

F. App’x 809, 818 (5th Cir. 2012) (describing a 10-month record of delay as “relatively

short”).

However, the record shows that the delays in serving Rebolledo arose from

contumacious conduct. Contumacious conduct is defined as “willful disobedience of a

court order.” Black’s Law Dictionary (9th ed.2009). In giving Flores one final chance to

serve Rebolledo, the Court noted that the failure to properly effectuate service would be

considered intentional. Dkt. No. 63. This distinction matters. “[I]t is not a party’s

negligence—regardless of how careless, inconsiderate, or understandably exasperating—

that makes conduct contumacious; instead it is the ‘stubborn resistance to authority’ which

justifies a dismissal with prejudice.” Millan v. USAA Gen. Indem. Co., 546 F.3d 321, 327

(5th Cir. 2008). Given that Flores was warned that the failure to comply would be

considered an intentional act, the Court can now say that the conduct has crossed the line

from possibly negligent to fully intentional. Flores’s inaction shows a stubborn resistance

to the Court’s orders.

Additionally, Rebolledo has been potentially prejudiced by Flores’s failure to timely

serve him. The statute of limitations expired in December 2020. “Once the statute has run,

a potential defendant who has not been served is entitled to expect that he will no longer

have to defend against the claim. If service can be delayed indefinitely once the complaint

is filed within the statutory period, these expectations are defeated and the statute of

limitations no longer protects defendants from stale claims.” Gartin v. Par Pharm.

Companies, Inc., 289 F. App’x 688, 694 (5th Cir. 2008). Permitting endless extensions of

service would potentially force Rebolledo to defend himself against a stale claim.

Furthermore, lesser sanctions have proven futile. “Providing a plaintiff with a

second or third chance following a procedural default is a ‘lenient sanction,’ which may

justify dismissal if met with further default.” In re Taxotere (Docetaxel) Prod. Liab. Litig.,

837 F. App’x 267, 276 (5th Cir. 2020) (cleaned up) (citing Callip v. Harris Cnty. Child

Welfare Dep’t, 757 F.2d 1513, 1521 (5th Cir. 1985)). In response to Flores’s failure to

timely serve Rebolledo, the Court has (1) issued a show cause order; (2) authorized

substitute service and (3) issued a detailed order as to the deficiencies in Flores’s attempted

service of Rebelledo and given her another opportunity to correctly complete the service.

Dkt. Nos. 40, 43, 63.

However, even given all of these facts, the Court recognizes that dismissal with

prejudice “is an extreme sanction that deprives a litigant of the opportunity to pursue his

claim.” Millan v. USAA Gen. Indem. Co., 546 F.3d 321, 326 (5th Cir. 2008) (quoting

Gonzalez v. Firestone Tire & Rubber Co., 610 F.2d 241, 247 (5th Cir. 1980)). This is even

more acute in this case where Rebolledo is one of two officers who are alleged to have shot

at Trevino after he surrendered. Accordingly, the dismissal of his claim should be

conditional. If Flores does not serve Rebolledo in accordance with the Court’s order

authorizing substitute service and file the completed returns of service by November 12,

2021, then the dismissal should become final. At that point, the Court would have given

Flores every possible opportunity to serve Rebolledo.

IV. Recommendation

Accordingly, it is recommended that the motion to dismiss filed by David Rebolledo

be granted. Dkt. No. 56.

The claims of unlawful seizure/false arrest and any claims for damages made

pursuant to the Texas constitution should be dismissed with prejudice for failure to state a

claim upon which relief can be granted.

The claim of excessive force should be conditionally dismissed with prejudice for

failure to timely and properly serve Rebolledo. If Flores does not serve Rebolledo in

accordance with the Court’s order authorizing substitute service and file the completed

returns of service by November 12, 2021, then the dismissal should become final.

The parties have fourteen (14) days from the date of being served with a copy of

this Report and Recommendation in which to file written objections, if any, with the United

States District Judge. 28 U.S.C. § 636(b)(1). A party filing objections must specifically

identify the factual or legal findings to which objections are being made. The District Judge

is not required to consider frivolous, conclusive, or general objections. Battle v. United

States Parole Comm’n, 834 F.2d 419, 421 (Sth Cir. 1987).

If any party fails to timely object to any factual or legal findings in this Report and

Recommendation, the District Judge is not required to conduct a de novo review of the

record before adopting these findings. If the District Judge chooses to adopt such findings

without conducting a de novo review of the record, the parties may not attack those findings

on appeal, except on the grounds of plain error. Alexander v. Verizon Wireless Servs..,

L.L.C., 875 F.3d 243, 248 (Sth Cir. 2017).

DONE at Brownsville, Texas on September 24, 2021.

filG9 —

Ronald G. Morgan

United States Magistrate Judge

14