# Gonzalez v. Degollado

> District Court, S.D. Texas · November 29, 2021

URL: https://www.frixlaw.com/law-library/cases/10675042

## Case

- **Court:** District Court, S.D. Texas
- **Decided:** November 29, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10675042

## How later opinions describe it (automated extraction)

- applying deliberate indifference standard for Eighth Amendment claim of inadequate medical care, but intentional standard for First Amendment retaliation claim

## Opinion text

SOUTHERN DISTRICT OF TEXAS November 29, 2021
LAREDO DIVISION
Nathan Ochsner, Clerk

ABELARDO GONZALEZ, §
§
Plaintiff, §
§
VS. § CIVIL ACTION NO. 5:20-CV-30
§
ESTHER DEGOLLADO et al., §
§
Defendants. §

ORDER

The United States Magistrate Judge has issued a Report and
Recommendation (the “Report”) (Dkt. No. 34), which recommends denying Plaintiff
Abelardo Gonzalez’s emergency motion for a temporary restraining order (“TRO”) and
an expedited preliminary injunction hearing (Dkt. No. 33). Plaintiff then filed two
sets of objections (Dkt. Nos. 37, 40). Having considered the pleadings, arguments, and
applicable authorities de novo, the Court agrees with the ultimate findings of the
Magistrate Judge. Plaintiff’s objections (Dkt. Nos. 37, 40) are OVERRULED and
Plaintiff’s emergency motion (Dkt. No. 33) is DENIED. However, the Court declines
to adopt a rule statement in the Report and finds it necessary to make additional
findings. The Magistrate Judge’s Report is therefore ADOPTED IN PART.
Further, pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A, the Court has
conducted a judicial screening of Plaintiff’s pleadings. The Court concludes that
Plaintiff’s pleadings are frivolous and have failed to state a claim upon which relief
can be granted. His claims are therefore DISMISSED WITH PREJUDICE.
Plaintiff is currently incarcerated by the Texas Department of Criminal Justice
(“TDCJ”) in the Joe Ney Unit in Hondo, Texas (Dkt. No. 50). Plaintiff, proceeding pro

se and in forma pauperis, filed an original complaint, which was superseded by a first
amended complaint (Dkt. Nos. 1, 3, 21). The first amended complaint alleges this
matter’s nineteen Defendants have intentionally filed Plaintiff’s court documents in
an untimely manner and conspired to withhold information from Plaintiff (Dkt. Nos.
3, 3-1). Regarding the conspiracy, Plaintiff believes Defendants refuse to divulge
information about a bomb threat the Mexican mafia made against him and his
children (id.). Plaintiff posits Defendants are obligated to convey such information to

him (id.). Asserting his claims through 42 U.S.C. § 1983, Plaintiff avers Defendants
are liable for (1) violating his First Amendment right to access the courts and
(2) forming a civil conspiracy to deprive him of a constitutional right (id.). Notably, in
his second claim, Plaintiff has not identified the constitutional right deprived.
Defendants are law enforcement officers, public information officers, county clerks,
district attorneys, state judges, the City of Laredo, and Webb County, Texas (id.).

After filing his first amended complaint, Plaintiff filed an emergency motion,
which requests a TRO enjoining a county clerk and Webb County to file all court
papers on the same day they are received, to provide information that Plaintiff
requests, and to “immediately tender to [P]laintiff any and all court order’s [sic],
issued by the court” (Dkt. No. 33 at 5). The motion also seeks an expedited
preliminary injunction hearing (id. at 2). The Magistrate Judge then issued the
Report and Plaintiff filed objections (Dkt. Nos. 34, 37, 40).
A. Reviewing a Magistrate Judge’s Report and Recommendation
A party who files timely objections to a magistrate judge’s report and

recommendation is entitled to a de novo review of those findings or recommendations
to which the party specifically objects. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).
Objections to a report must specifically identify portions of the report and the basis
for those objections. Fed. R. Civ. P. 72(b); Battle v. U.S. Parole Comm’n, 834 F.2d 419,
421 (5th Cir. 1987). Moreover, the district court need not consider frivolous,
conclusory, or general objections. Nettles v. Wainwright, 677 F.2d 404, 410 n.8 (5th
Cir. 1982) (en banc), overruled on other grounds, Douglass v. United Servs. Auto.

Ass’n, 79 F.3d 1415 (5th Cir. 1996) (en banc).
B. Issuing a TRO or Preliminary Injunction
Injunctive relief is an extraordinary remedy that requires the applicant to
unequivocally show the need for its issuance. See Valley v. Rapides Par. Sch. Bd., 118
F.3d 1047, 1050 (5th Cir. 1997). TROs and preliminary injunctions are “not to be
granted routinely, but only when the movant, by a clear showing, carries the burden

of persuasion.” White v. Carlucci, 862 F.2d 1209, 1211 (5th Cir. 1989); see also
Albright v. City of New Orleans, 46 F. Supp. 2d 523, 532 (E.D. La. 1999) (“Temporary
restraining orders and preliminary injunctions are extraordinary relief and rarely
issued.”). To obtain such relief, the party seeking a TRO or preliminary injunction
must demonstrate (1) a substantial likelihood of success on the merits; (2) a likelihood
the movant will suffer irreparable harm in the absence of preliminary relief; (3) the
balance of the equities tips in the movant’s favor, and (4) emergency relief is in the
F.3d 200, 206 (5th Cir. 2010). The movant bears the burden of proving all four
requirements. Palmer v. Waxahachie Indep. Sch. Dist., 579 F.3d 502, 506 (5th Cir.

2009)
C. Judicial Screening Under § 1915(e)(2)(B) and § 1915A
The Prison Litigation Reform Act (“PLRA”) amended § 1915 to require the
district court to sua sponte dismiss in forma pauperis prisoner civil rights suits if the
court determines that the action is frivolous, malicious, or does not state a claim upon
which relief may be granted. See 28 U.S.C. §§ 1915(e)(2)(B), 1915A; Black v. Warren,
134 F.3d 732, 733–34 (5th Cir. 1998). A claim is frivolous if it lacks an arguable basis

in law or fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). A claim lacks an arguable
basis in law if it is based on an indisputably meritless legal theory. See Siglar v.
Hightower, 112 F.3d 191, 193 (5th Cir. 1997). A claim lacks an arguable basis in fact
if it describes “fantastic or delusional scenarios.” Neitzke, 490 U.S. at 327–28.
A complaint fails to state a claim when it fails to plead “enough facts to state a
claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,

570 (2007); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). To avoid dismissal for
failure to state a claim, a plaintiff must allege facts to “raise the right to relief above
the speculative level.” Twombly, 550 U.S. at 555. Mere “labels and conclusions” or a
“formulaic recitation of the elements of a cause of action” do not satisfy this standard.
Id.
A. Plaintiff’s Request for a TRO
1. Substantial likelihood of succeeding on the merits

Plaintiff’s motion seeks emergency relief based on his First Amendment access-
to-the-courts claim—not his civil conspiracy claim (Dkt. No. 33). As the Report
correctly notes, Plaintiff has failed to show he is substantially likely to succeed on the
merits of his access-to-the-courts claim (Dkt. No. 34 at 5). The First Amendment’s
Petition Clause entitles prisoners to access the courts and ask that the government
redress their grievances. McDonald v. Smith, 472 U.S. 479, 484 (1985); Brewer v.
Wilkinson, 3 F.3d 816, 820 (5th Cir. 1993).1 “While the precise contours of a prisoner’s

right of access to court remain obscure, the Supreme Court has not extended this
right to encompass more than the ability of an inmate to prepare and transmit a
necessary legal document to a court.” Brewer, 3 F.3d at 821. Further, to prevail on an
access-to-the-courts claim, a prisoner-plaintiff must demonstrate “that his position as
a litigant was prejudiced” by the defendant’s actions. McNatt v. Chapa, No. 2:21-cv-
91, 2021 WL 5142796, at *4 (S.D. Tex. Sept. 22, 2021) (citing Eason v. Thaler, 73 F.3d

1 To clarify, the right to access the courts can derive from multiple constitutional provisions. See Jerald
J. Director, Annotation, Relief Under Federal Civil Rights Act to State Prisoners Complaining of
Interference with Access to Courts, 23 A.L.R. Fed. 6 (2021) (noting claim can derive from the First
Amendment, Fourteenth Amendment’s Due Process Clause, Fourteenth Amendment’s Equal
Protection Clause, and Sixth Amendment); Johnson v. Atkins, 999 F.2d 99, 100 (5th Cir. 1993) (Fifth
Amendment’s Due Process Clause). Each claim effectuates a different animating principle. For
example, a First Amendment access-to-the-courts claim stems from the tenet that individuals have
the right to petition the government to redress their grievances. Bill Johnson’s Rests., Inc. v. NLRB,
461 U.S. 731, 741 (1983). A claim derived from the Fourteenth Amendment’s Due Process Clause, in
the prisoner context, grants prisoners the right to have courts consider claims related their conditions
of incarceration, as well as the right to have meaningful access to legal resources to prepare their
filings. See Lewis v. Casey, 518 U.S. 343, 350–51 (1996); Andrade v. Hauck, 452 F.2d 1071, 1072 (5th
Cir. 1971). Because Plaintiff’s first amended complaint cites only the First Amendment, the Court
limits its discussion accordingly (Dkt. No. 3).
(S.D. Tex. Nov. 3, 2021). Put another way, Plaintiff must show “his ability to pursue
a ‘nonfrivolous,’ ‘arguable’ legal claim was hindered by the defendants’ actions.”

Willoughby v. Davis, No. 2:19-cv-87, 2021 WL 3173904, at *3 (N.D. Tex. July 27, 2021)
(quoting Christopher v. Harbury, 536 U.S. 403, 415 (2002)).
Here, Plaintiff avers Defendants interfered with his ability to litigate three
cases, which the Court denominates as Gonzalez I, II, and III (Dkt. No. 33 at 2–4).2
As the Report correctly notes, Plaintiff has not shown Defendant’s alleged conduct
prejudiced Plaintiff’s position in these cases (Dkt. No. 34 at 5–7). Accordingly,
Plaintiff is not likely to succeed on his access-to-the-courts claim (id.).

Plaintiff claims a county clerk intentionally delayed filing Plaintiff’s pleadings
in Gonzalez I (Dkt. No. 33 at 2–4). Allegedly, the delayed filing caused Plaintiff’s
defamation claim to be asserted outside the statute of limitations (Dkt. No. 33 at 2–
4). However, Gonzalez I was removed to this Court, and when the defendant argued
Plaintiff’s defamation claim was time-barred, the Court rejected the argument. See
Gonzalez I, Dkt. No. 16 at 9 (S.D. Tex. May 20, 2020). Thus, Plaintiff has not shown

that Defendants’ allegedly dilatory conduct prejudiced Plaintiff’s position in Gonzalez
I. See Lewis v. Casey, 518 U.S. 343, 356 (1996); Eason, 73 F.3d at 1328.
As for Gonzalez II, the Court arrives at the same conclusion. Plaintiff avers the

2 The more standard citations for Gonzalez I, II, and III are, respectively: (1) Gonzalez v. Trevino, No.
2020-CVK-391-D4, Orig. Pet. (406th Dist. Ct., Webb Cnty., Tex. Feb. 19, 2020), removed as, No. 5:20-
cv-52, Dkt. 1 (S.D. Tex. Apr. 6, 2020); (2) Gonzalez v. Lichtenberger, No. 2015-CVT-3714-D1, Final J.
(49th Dist. Ct., Webb Cnty., Tex. June 14, 2017), aff’d, No. 04-16-192-CV, 2017 WL 2562768 (Tex.
App.—San Antonio June 14, 2017, pet. denied); and (3) Gonzalez v. Gonzalez, No. 2020-CVK-879-D3,
Orig. Pet. (341st Dist. Ct., Webb Cnty., Tex. May 12, 2020). To facilitate ease of reading, the Court
provides abbreviated citations in this Order’s main body text.
expired (Dkt. No. 33 at 3–4). In Gonzalez II, the state trial court dismissed Plaintiff’s
claims on multiple grounds: frivolousness, a lapsed limitations period, governmental

immunity, absolute immunity, and an election-of-remedies statute. See Gonzalez II,
2017 WL 2562768, at *1. On appeal, the state appellate court concluded Plaintiff’s
claims had no “arguable basis in law” and affirmed the dismissal based on
governmental immunity, absolute immunity, and the election-of-remedies statute. Id.
at *4–5. On this record, the Plaintiff has not made a substantial showing that
Defendants’ alleged conduct prejudiced him. To be sure, the lower state court
concluded Plaintiff’s claims were time-barred. Id. at *1. However, the appellate court

ultimately determined no “arguable basis in law” supported the lawsuit, citing two
immunity doctrines and an election-of-remedies statute. Id. at *4–5. Thus, Plaintiff’s
claims would have been dismissed even if they were timely filed by the county clerk.
Because the county clerk’s alleged denial of access did not prevent Plaintiff from
asserting an “arguable” or “actionable” claim, Plaintiff has not shown prejudice. See
Christopher, 536 U.S. at 415; Lewis, 518 U.S. at 353.

So too with Gonzalez III. Plaintiff alleges a county clerk intentionally did not
mail him a show cause order (Dkt. No. 33 at 3). See Gonzalez III, Show Cause Order
(341st Dist. Ct., Webb Cnty., Tex. June 18, 2020). Plaintiff claims he did not know he
had to file a response, and the county clerk’s intentional inaction led to his lawsuit’s
dismissal (id.). See Gonzalez III, Order of Dismissal (341st Dist. Ct., Webb Cnty., Tex.
Aug. 3, 2020). But public records plainly belie Plaintiff’s argument. Although an order
of dismissal was entered, after receiving a letter from Plaintiff, the state court
Dismissal (341st Dist. Ct., Webb Cnty., Tex. Aug. 6, 2020). Further, Gonzales III
remains pending in state court. Because any prejudice from the county clerk’s

allegedly untimely mailing was later corrected and the case remains pending,
Plaintiff has not shown he was denied access to the courts in Gonzalez III. See Lewis,
518 U.S. at 356; Eason, 73 F.3d at 1328.
2. Plaintiff’s objections
Plaintiff’s objections largely regurgitate the arguments raised in his
emergency motion (Dkt. Nos. 37, 40). To the extent he raises specific objections to the
Magistrate Judge’s Report, they are frivolous. For example, Plaintiff contends the

Report misquotes his pleadings by stating a county clerk denied him access to courts
by filing papers late (Dkt. No. 37 at 2). Plaintiff’s objects to this summary of his
pleadings, stating, “I never state [sic] the clerk DENIED MY RIGHTS OF ACCESS
TO COURT” (Dkt. No. 37 at 2) (emphasis in original). But Plaintiff’s first amended
complaint alleges the county clerk “[i]ntentionally with-held filing of suit past statute
of limitations [and] denied right of access to court under 1st Amend” (Dkt. No. 3 at

4). Because Plaintiff’s objections are frivolous, they are OVERRULED. See Nettles,
677 F.2d at 410 n.8.
In summary, the Court agrees with the Report’s ultimate conclusions. Plaintiff
has not shown he is likely to succeed on his access-to-the-courts claim, and his request
for a TRO is DENIED.
Though the Court agrees with the Report’s ultimate conclusions and overall
reasoning, the Court declines to adopt a statement of law announced therein. The

Report states a plaintiff asserting an access-to-the-courts claim “must” show
prejudice “stemmed from a defendant’s intentional conduct or deliberate indifference”
(Dkt. No. 34 at 7). This rule statement may be too unequivocal.
In support of this proposition, the Report cites the following authorities: Eason,
73 F.3d at 1328; Richardson v. McDonnell, 841 F.2d 120, 122 (5th Cir. 1988); Turner
v. Donnelly, 156 F. App’x 481, 483–84 (3d Cir. 2005); Sims v. Landrum, 170 F. App’x
954, 956–57 (6th Cir. 2006); Porras v. Sanchez, No. EP-13-248, 2014 WL 2118085, at

*8 (W.D. Tex. May 21, 2014) (Dkt. No. 34 at 7). But these five cases do not offer
binding support for the propositions that (1) in First Amendment access-to-the-courts
cases, a defendant can be liable for a deliberately indifferent state of mind and (2) the
Fifth Circuit has foreclosed other states of mind, such as recklessness, from giving
rise to liability. First, Eason did not issue a holding on culpable states of mind. See
generally 73 F.3d at 1322–30. Second and third, Richardson and Donnelly concluded

an intentional denial of access to the courts violated the First Amendment. See
Richardson, 841 F.2d at 122; Turner, 156 F. App’x at 483–84. However, these cases
were silent as to deliberate indifference. See id. Notably, Richardson held a negligent
denial of access will not give rise to liability. See 841 F.2d at 122 (“At best the evidence
suggests that prison officials negligently lost appellant’s mail.”); see also Hines v.
Boothe, 841 F.2d 623, 624 (5th Cir. 1988) (“Negligence does not state a claim under
section 1983 . . . .”) (emphasis original).
motion to dismiss if it alleges more than “mere negligence.” 170 F. App’x at 956. This
implies that any state of mind higher than negligence—e.g., recklessness,

wantonness, gross negligence, or deliberate indifference—will give rise to liability.
However, Sims is not binding on this Court.
Fifth and finally, Porras, an unpublished case from the Western District of
Texas, stated a defendant can be liable for a deliberately indifferent state of mind.
See 2014 WL 2118085, at *10. However, the citations upon which Porras relies do not
offer binding support for this proposition. See id. (citing Herrington v. Martin, No. 09-
cv-785, 2009 WL 5178340, at *2 (W.D. La. Dec. 23, 2009) (citing Richardson, 841 F.2d

at 122; Donnelly, 156 F. App’x at 483–84; Sims, 170 F. App’x at 954)).
The United States Supreme Court has held that § 1983 does not “contain a
state-of-mind requirement,” and, accordingly, claims asserted thereunder are not
limited to “intentional deprivations of constitutional rights.” Parratt v. Taylor, 451
U.S. 527, 532–35 (1981). In other words, § 1983 imposes “no state-of-mind
requirement independent of that necessary to state a violation of the underlying

constitutional right.” Daniels v. Williams, 474 U.S. 327, 329–30 (1986). Therefore, in
§ 1983 suits, courts must take care to identify the constitutional claim asserted and
impose the correct state-of-mind requirement for each claim. See, e.g., Ward v. Fisher,
616 F. App’x 680, 683–84 (5th Cir. 2015) (applying deliberate indifference standard
for Eighth Amendment claim of inadequate medical care, but intentional standard
for First Amendment retaliation claim).
In First Amendment access-to-the-courts cases, federal courts have concluded
Supp. 468, 468 (E.D. Va. 1975) (negligence); Sims, 170 F. App’x at 957 (“more than
negligence”); Johnson v. Miller, 925 F. Supp. 334, 337 (E.D. Pa. 1996) (suggesting “a

less exacting standard than one of ‘deliberate indifference’” may be viable); Scheeler
v. City of St. Cloud, 402 F.3d 826, 830 (8th Cir. 2005) (“some intentional motivation”);
Richardson, 841 F.2d at 122 (5th Cir. 1988) (intentional). To the Court’s knowledge,
the Fifth Circuit has yet to hold whether only an intentional denial of access will
suffice, or whether a less culpable state of mind can also give rise to liability. Indeed,
in Jackson v. Procunier, 789 F.2d 307 (5th Cir. 1986), the Fifth Circuit declined to
answer this very question in the Fourteenth Amendment context:

Following the lead of the Supreme Court in Daniels v. Williams, we
observe: “This case affords us no occasion to consider whether something
less than intentional conduct, such as recklessness or ‘gross negligence’
is enough to trigger the protections of the Due Process Clause.”
Id. at 312 (quoting Daniels, 474 U.S. at 334 n.3.). Notably, the plaintiff in Jackson
also brought a First Amendment denial-of-access claim. Id. at 308, 311. Because the
Fifth Circuit declined to issue a holding regarding the plaintiff’s Fourteenth
Amendment access-to-the-courts claim, it is safe to assume the Fifth Circuit also
declined to issue a holding with respect to the plaintiff’s First Amendment claim.
Given this uncertainty in binding case law, the Court declines to adopt the rule
statement announced in the Magistrate Judge’s Report (Dkt. No. 34 at 7). That is, a
plaintiff “must” show a denial of access occurred from intentional or deliberately
indifferent conduct (id.). Because Plaintiff’s access-to-the-courts claim fails on the
prejudice prong, the Court need not decide whether a deliberately indifferent state of
mind will give rise to liability under the First Amendment.
Preliminary Injunction
The Magistrate Judge’s Report recommends denying a preliminary injunction
because Plaintiff has not shown a substantial likelihood of succeeding on the merits
(Dkt. No. 34 at 8). The Court concurs: Plaintiff has not shown he was prejudiced by
Defendants’ alleged conduct and has not demonstrated his entitlement to emergency
relief. Plaintiff’s requests for an expedited hearing and a preliminary injunction are
therefore DENIED.

C. Judicial Screening Under 28 U.S.C. § 1915(e)(2)(B) and 1915A
Finally, as required by § 1915(e)(2)(B) and § 1915A, the Court judicially screens
Plaintiff’s first amended complaint. To survive judicial screening, Plaintiff must
plead sufficient facts, which, if accepted as true, state a plausible claim. Twombly,
550 U.S. at 570. In this screening, the Court is empowered to “pierce the veil” of
Plaintiff’s allegations if they are clearly baseless. Denton v. Hernandez, 504 U.S. 25,
32 (1992). The Court may also take judicial notice of filings in other court proceedings,

as they are matters of public record. See Murchison Cap. Partners, LP v. Nuance
Commc’ns, Inc., 625 F. App’x 617, 618 n.1 (5th Cir. 2015); see also Ahmadi v. Downey,
No. H-18-211, 2021 WL 1227918, at *2 (S.D. Tex. Mar. 31, 2021) (taking judicial
notice of plaintiff’s “numerous pro se federal civil and habeas lawsuits” in
§ 1915(e)(2)(B) and § 1915A screening). Lastly, the Court can also conclude whether
Plaintiff’s claims are legally or factually frivolous. See Neitzke, 490 U.S. at 325.

1. First Amendment access to the courts
Plaintiff has failed to plausibly plead a First Amendment access-to-the-courts
claim. As stated herein, public court records show Defendants’ alleged conduct has
after taking judicial notice of the filings in Gonzalez I, II, and III and piercing the veil
of Plaintiff’s baseless allegations, the Court concludes Plaintiff has not plausibly

alleged a violation of his First Amendment right to access the courts. The Court also
concludes this claim is based on an indisputably meritless legal theory and is
frivolous.3
2. Civil conspiracy
Plaintiff’s civil conspiracy claim is also meritless. “To establish a conspiracy
claim under § 1983, the plaintiff must show there was an agreement among the
alleged co-conspirators to deprive him of his constitutional rights and that such an

alleged deprivation actually occurred.” Montgomery v. Walton, 759 F. App’x 312, 314
(5th Cir. 2019) (citing Cinel v. Connick, 15 F.3d 1338, 1343 (5th Cir. 1994); Est. of
Farrar v. Cain, 941 F.2d 1311, 1313 (5th Cir. 1991)). Conclusory allegations that do
not reference specific factual allegations tending to show an agreement will not carry
the plaintiff’s burden. See Arsenaux v. Roberts, 726 F.2d 1022, 1023–24 (5th Cir.
1982).

For starters, Plaintiff’s civil conspiracy claims against the City of Laredo and

3 In the interest of brevity, the Court will not fully address other justifications for dismissal. However,
the Court notes that for the individual Defendants, the first amended complaint does not plead
allegations sufficient to overcome these Defendants’ entitlement to absolute judicial immunity,
absolute prosecutorial immunity, and qualified immunity. See, e.g., Jones v. Judge of 129th, Harris
Cnty. Dist. Ct., 113 F. App’x 603, 604–05 (5th Cir. 2004) (absolute judicial immunity); Burnett v.
Denman, 368 F. App’x 603, 604 (5th Cir. 2010) (qualified immunity for county clerks); Torres v. All
Dist. Ct. Judges of 156th Bee Cnty., No. 2:21-cv-140, 2021 WL 4926496, at *5 (S.D. Tex. Sept. 8, 2021)
(absolute prosecutorial immunity), report and recommendation adopted, 2021 WL 4925387 (S.D. Tex.
2021); Waller v. City of Fort Worth, No. 4:15-cv-670, 2018 WL 1757779, at *13–14 (N.D. Tex. Apr. 12,
2018) (qualified immunity for law enforcement officers). As for the City of Laredo and Webb County,
Plaintiff’s first amended complaint fails to plausibly plead municipal liability. See Monell v. Dep’t of
Soc. Servs., 436 U.S. 658, 694 (1978). That is, Plaintiff has not plausibly pled a policymaker
implemented an official policy that was the “moving force” of a constitutional violation. See id.;
Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th Cir. 2001).
R.R. Co. v. Harris Cnty., 790 F. Supp. 2d 568, 580–81 (S.D. Tex. 2011). In 2017—four
years ago—the state appellate court affirmed the lower court’s dismissal of this exact

claim on nearly identical facts. See Gonzalez II, 2017 WL 2562768, at *1, *5.
Moreover, having reviewed Plaintiff’s 94-page complaint, the Court finds that,
despite their length, his allegations are general and conclusory. See Montgomery, 759
F. App’x at 315 (affirming dismissal where prisoner’s civil conspiracy allegations were
conclusory, “disorganized,” and contained facts “very loosely tied together”).
Plaintiff’s allegations largely rely on hyperbolic adjectives and adverbs and offer no
specific facts to provide a reasonable inference that Defendants formed a conspiracy

together (see generally Dkt. Nos. 3, 3-1). For example, Plaintiff has not identified any
time, date, or circumstance illustrating an agreement was formed. Montgomery, 759
F. App’x at 314. Further, Plaintiff has not identified a cognizable constitutional right
allegedly deprived by the conspiracy. Thus, Plaintiff’s civil conspiracy claim should
be dismissed. See id. at 314–15.
3. Request for a Spears hearing

Lastly, Plaintiff’s objections request a Spears hearing (Dkt. No. 37 at 7). In a
Spears hearing, a district court receives evidence to determine a prisoner-plaintiff’s
intent and whether a plaintiff’s claims are frivolous. See, e.g., Gilbert v. Collins, 905
F.2d 61 (5th Cir. 1990). Whether a district court holds a Spears hearing is a matter
of discretion. See Martinez v. Johnson, 103 F. App’x 531, 532 (5th Cir. 2004); Beck v.
Lynaugh, 842 F.2d 759, 761 (5th Cir. 1988). Here, public records show Plaintiff’s First
Amendment claim is frivolous. Further, Plaintiff’s civil conspiracy claim, which avers
mafia’s bomb threat, does not sufficiently identify a constitutional violation that
warrants further elaboration at a hearing. Accordingly, Plaintiff’s request for a

Spears hearing is DENIED.
IV. CONCLUSION
For the foregoing reasons, the Magistrate Judge’s Report (Dkt. No. 34) is
ADOPTED IN PART, insofar that it is consistent with this Order. Plaintiff’s
emergency motion (Dkt. No. 33) is DENIED. Moreover, pursuant to 28 U.S.C. §
1915(e)(2)(B) and § 1915A, the claims in Plaintiff’s first amended complaint (Dkt. No.
3) are DISMISSED WITH PREJUDICE, as they fail to state a claim and are

frivolous. The Court’s dismissal of Plaintiff’s first amended complaint shall count as
a strike under 28 U.S.C. § 1915(g). See Coleman v. Tollefson, 575 U.S. 532, 538–39
(2015); Adepegba v. Hammons, 103 F.3d 383, 387–88 (5th Cir. 1996).
The Court takes judicial notice that this is Plaintiff’s third dismissal under
§ 1915(e)(2)(B). See Gonzalez v. Sarabia, No. 3:14-cv-366, 2017 WL 568764 (S.D. Tex.
Feb. 9, 2017), aff’d, 720 F. App’x 213 (5th Cir. 2018); Gonzalez v. Taylor, No. 2:15-cv-

46, 2016 WL 48126 (S.D. Tex. Jan. 5, 2018), aff’d, 695 F. App’x 731 (5th Cir. 2017).
Under § 1915(g)’s “three strikes” rule, Plaintiff is hereby BARRED from proceeding
in forma pauperis in any civil action or appeal filed while he is incarcerated or
detained in any facility unless he is under imminent danger of serious physical injury.
See 28 U.S.G. § 1915(g). Further, Plaintiff is WARNED that, regardless of the
§ 1915(g) bar, any frivolous, repetitive, or otherwise abusive filings may invite the
imposition of additional sanctions, which may include dismissal, monetary sanctions,
and further restrictions on his ability to file pleadings. See Spence v. Harrison-Dunn,
No. 20-20498, 2021 WL 5409240, at *2 (5th Cir. Nov. 18, 2021).
The Clerk of Court is DIRECTED to send notice of this dismissal to the
Manager of the Three Strikes List for the Southern District of Texas at
Three_Strikes@txs.uscourts.gov.
The Court will enter Final Judgment under separate cover.
Itis so ORDERED.
SIGNED November 29, 2021.

Matina Garcia Marmolejo
United States District Judge

16

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10675042. Public record. Not legal advice.