Martinez v. Harris County, Texas

UNITED STATES DISTRICT COURT February 14, 2023

SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk

HOUSTON DIVISION

§

Jose Martinez, §

§

Plaintiff, §

§ Case No. 4:22-cv-00547

v. §

§

Harris County, Texas, et al., §

§

Defendants. §

§

MEMORANDUM AND RECOMMENDATION

Defendants Harris County (the “County”), Sherriff Ed Gonzalez (“the

Sherriff”), Lieutenant John Hernandez, Deputy Jacoby Henderson, and

Deputy Louis Ybarra (collectively, “Individual Defendants”), have filed

separate motions to dismiss all claims. Dkts. 12, 13, 29, 37, 44. In the interim,

this case was referred to the undersigned judge. Dkt. 38. After reviewing the

motions, responses, Dkts. 18, 33, 39, 47, replies, Dkts. 21, 34, 40, 48, and the

applicable law, it is recommended that the motions to dismiss filed by the

County, the Sherriff, Lieutenant Hernandez, and Deputy Henderson be

granted in full. Deputy Ybarra’s motion to dismiss should be granted in part

but denied with respect to Plaintiff Jose Martinez’s claims of excessive force

and for assault. Martinez’s request for leave to amend should be denied, as

should certain defendants’ requests for a stay of discovery.

Background

The following allegations are taken as true at this stage. In February

2022, Martinez was driving home when he saw a confrontation in front of a

school. Dkt. 11 ¶ 9. An adult man lying in the street was being held down by

“one or more” people, with several others standing around. Id. As Martinez

approached in his car, he saw that the man lying in the street had scratches

on his face, and his feet were bound with rope-like material. Id. ¶¶ 10-12.

When Martinez asked the group what was going on, one of them responded

that everything was fine and told Martinez to keep driving. Id. ¶ 13.

Martinez asked the man in the street if he was “okay.” Id. ¶ 14. The

man said that he did not know any of the people restraining him and pleaded

to Martinez, “help me, man!” Id. After Martinez spoke with the people at the

scene, one of them, an unidentified woman, left to go find a police officer. Id.

¶ 15. Martinez decided to wait for the police to arrive, so he parked his car and

called 911. Id. ¶¶ 16, 18. He told the dispatcher what was happening and

stayed on the line. Id. ¶ 18.

Shortly thereafter, the woman returned with a police officer who was

wearing a school district uniform. Id. ¶ 19. Id. The woman yelled at Martinez,

“You see, I came back with a cop! And I told him that you tried to hit me!” Id.

¶ 20. Martinez denied attempting to hit her, and the officer told him not to

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worry about what she was saying. Id. ¶ 21. The officer told Martinez to wait

in his car, which he did. Id. ¶¶ 21, 22.

At least three deputies from the Harris County Sheriff’s Office

eventually arrived. Id. ¶¶ 23, 26-28. One of them, Deputy Ybarra, approached

Martinez and questioned him. Id. ¶ 23. After ordering Martinez to get out of

the car, Ybarra removed him and placed him in handcuffs. Id. ¶ 24-25.

According to the complaint, the officers used considerable force on

Martinez while he was handcuffed. Deputy Ybarra yanked Martinez by the

handcuffs, causing injury. Id. ¶ 25. Another officer, “possibly named

Henderson” pushed Martinez “for no reason,” causing pain to his already

injured knee, and another unnamed deputy kicked him in the leg. Id. ¶¶ 26,

28. After putting Martinez in the squad car (and while Martinez remained

handcuffed), Deputy Ybarra demanded that Martinez exit the car and then

slammed him against it. Id. ¶ 29. Martinez also alleges that Deputy Ybarra

not only refused to loosen the handcuffs, which were too tight, but forcibly

squeezed them, thereby inflicting pain that lingered for weeks. Id. ¶¶ 27, 30.

Martinez filed suit on January 20, 2022, alleging various constitutional

violations under 42 U.S.C. § 1983 and asserting an assault claim under Texas

law. Dkt. 1. Due to problems during service, Deputy Ybarra was not served

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until almost a full year after Martinez filed the original complaint. Dkts. 42,

43. All defendants have moved to dismiss Martinez’s claims.

Legal Standard

To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must plead

“enough facts to state a claim to relief that is plausible on its face.” Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 555 (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). “Conversely, when the allegations

in a complaint, however true, could not raise a claim of entitlement to relief,

this basic deficiency should be exposed at the point of minimum expenditure of

time and money by the parties and the court.” Cuvillier v. Taylor, 503 F.3d

397, 401 (5th Cir. 2007) (quotation marks and alteration omitted).

“When a defendant asserts a qualified-immunity defense in a motion to

dismiss, the court has an ‘obligation ... to carefully scrutinize [the complaint]

before subjecting public officials to the burdens of broad-reaching

discovery.’” Longoria v. San Benito Indep. Consol. Sch. Dist., 942 F.3d 258,

263-64 (5th Cir. 2019) (quoting Jacquez v. Procunier, 801 F.2d 789, 791 (5th

Cir. 1986)). After all, qualified immunity includes immunity from suit, not just

immunity from liability. Westfall v. Luna, 903 F.3d 534, 542 (5th Cir. 2018).

4

Once 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) (en banc) (per curiam). To meet

that burden, a plaintiff “must plead specific facts that both allow the court to

draw the reasonable inference that the defendant is liable for the harm he has

alleged and that defeat a qualified immunity defense with equal specificity.”

Gonzalez v. Trevino, 42 F.4th 487, 491 (5th Cir. 2022) (quoting Backe v.

Leblanc, 691 F.3d 645, 648 (5th Cir. 2012)).

Analysis

I. Harris County and Sheriff Gonzalez

A. Martinez failed to state a claim against Sheriff Gonzalez.

Although Sheriff Gonzalez invokes a qualified immunity defense, see

Dkt. 13 at 4, most of the claims against him simply fail to state a plausible

basis for relief under Rule 12(b)(6). Martinez has not adequately alleged that

the Sherriff was personally involved in the alleged constitutional violations,

that the Sherriff instituted an unconstitutional policy, and that the Sheriff was

properly named as a defendant in his official capacity.

i. Martinez has not plausibly alleged that the Sheriff

participated in any constitutional violations.

Martinez advances two sets of claims against Sheriff Gonzalez in his

individual capacity. One asserts that the Sheriff actively participated in the

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February 2020 incident—and the overarching alleged violations of Martinez’s

constitutional rights. Dkt. 11 ¶ 38. The other asserts that the Sherriff enforced

an unconstitutional policy. Id. ¶ 41.

For a supervisor to be liable under 42 U.S.C. § 1983, the supervisor must

have either “(i) affirmatively participate[d] in acts that cause a constitutional

deprivation or (ii) implement[ed] unconstitutional policies that causally

result[ed] in the plaintiff’s injuries.” Casanova v. City of Brookshire, 119 F.

Supp. 2d 639, 660 (S.D. Tex. 2000) (citing Baker v. Putnal, 75 F.3d 190, 199

(5th Cir. 1996)). Here, Martinez’s allegations are too conclusory to plausibly

state a basis for relief.

Martinez claims that “[t]he deputies referenced (includes Lt. Hernandez

and Sheriff Gonzalez) engaged in deliberate and outrageous invasion of

Plaintiff’s rights that shocks the conscious [sic] in violation of Plaintiffs’ rights

under the Fourth and Fourteenth Amendments ....” Dkt. 11 ¶ 38. But as

Sheriff Gonzalez notes—and the Court agrees—Martinez pleaded no facts

suggesting that the Sheriff was present at the incident, that he told any of the

officers how to conduct the stop, or that he even knew the stop had occurred.

Dkt. 13 at 5. Martinez’s theory that the Sherriff participated in any violations

is thus foreclosed. See James v. Tex. Collin Cnty., 535 F.3d 365, 373 (5th Cir.

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2008) (“A supervisor is not personally liable for his subordinate’s actions in

which he had no involvement.”).

Martinez’s allegations that the Sheriff instituted an unconstitutional

policy are similarly deficient. The complaint asserts, without specifics, that

the deputies were acting through “official policies, practices and customs.”

Dkt. 11 ¶ 41. No facts indicate what that supposed policy entails, much less

that the Sheriff implemented it.1 These bare assertions cannot survive

dismissal. See Moore v. Bowie Cnty., Tex., 2012 WL 4355000, at *2 (E.D. Tex.

Sept. 21, 2012) (rejecting reliance “solely on conclusory allegations as to the

existence of a policy, without a factual predicate,” citing, inter alia, Spiller v.

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

ii. Claims against the Sheriff in his official capacity are nothing

more than claims against Harris County.

Martinez also asserts a claim against Sherriff Gonzalez in his official

capacity. But as the Sheriff observes, Dkt. 13 at 6, suits against officials in

their official capacity are really suits against the governmental entity itself.

1 The complaint does mention an HCSO policy of not conducting internal

affairs investigations if the complainant has a pending criminal case. Dkt. 11

¶ 34; see Dkt. 18 at 3-4. But as discussed below, this policy is not itself

unlawful, and even if it were, it could not have been the moving force behind

any of the constitutional violations alleged. See infra Part I.B.i.

7

Claims against governmental officials in their official capacity “generally

represent only another way of pleading an action against an entity of which an

officer is an agent.” See Goodman v. Harris Cnty., 571 F.3d 388, 395 (5th Cir.

2009) (citing Monell v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 658, 690

n.55 (1978)). Thus, “an official-capacity suit is, in all respects other than name,

to be treated as a suit against the entity. It is not a suit against the official

personally, for the real party in interest is the entity.” Id. (citing Kentucky v.

Graham, 473 U.S. 159, 166 (1985)).

Because Martinez failed to state a claim against Harris County, see infra

Part I.B, his claim against Sheriff Gonzalez likewise fails. See Garcia v. Harris

Cnty., 2022 WL 3328272, at *2 (S.D. Tex. July 21, 2022) (same conclusion),

report and recommendation adopted, 2022 WL 3283747 (S.D. Tex. Aug. 2022).

All claims against the Sheriff should be dismissed.

B. Martinez failed to state a claim against Harris County.

Martinez’s claims against the County raise several theories:

(1) promulgating an unspecified policy of unlawful detention, false arrest,

malicious prosecution, and excessive force, id. ¶¶ 44, 50; and (2) failing to train,

control, discipline, or supervise employees, Dkt. 11 ¶ 50. These are deficient.

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i. Martinez has not pleaded an actionable custom or policy that

was enacted with deliberate indifference to his rights.

The complaint includes non-specific references to “policies, procedures,

practices and customs” that allegedly led to the violations of Martinez’s rights

during the February 2020 incident. See Dkt. 11 ¶¶ 46, 50. Only one purported

policy, however, is identified: HCSO’s policy of not initiating internal

investigations if the complainant is the subject of pending criminal charges.

Id. ¶ 34. None of these allegations can support recovery against the County.

To state a claim against a municipality, a plaintiff must allege: (1) that

“a deprivation of constitutional rights was inflicted pursuant to an official

custom or policy”; (2) that a custom or policy, if facially innocuous, was

“promulgated with deliberate indifference to the known or obvious

consequences that constitutional violations would result”; and (3) there is a

“direct causal link between the municipal policy and constitutional

deprivation.” Piotrowski v. City of Hous., 237 F.3d 567, 579-80 (5th Cir. 2001)

(internal quotation marks omitted). “[A] municipality cannot be held liable

solely because it employs a tortfeasor ....” Monell, 436 U.S. at 691.

“Consequently, the unconstitutional conduct must be directly attributable to

the municipality through some sort of official action or imprimatur; isolated

unconstitutional actions by municipal employees will almost never trigger

liability.” Piotrowski, 237 F.3d at 578 (footnote omitted).

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Short of a written or formal policy, a plaintiff must show a “widespread

practice” that “is so common and well settled as to constitute a custom.” Burge

v. St. Tammany Parish, 336 F.3d 363, 369 (5th Cir. 2003). But such a pattern

“requires similarity and specificity; [p]rior indications cannot simply be for any

and all ‘bad’ or unwise acts, but rather must point to the specific violation in

question.” Peterson v. City of Ft. Worth, 588 F.3d 838, 850 (5th Cir. 2009)

(emphasis added; internal quotation marks omitted). Martinez’s bald

assertions that the County and HCSO engaged in unconstitutional policies and

practices do not suffice. See Dkt. 18 at 6 (citing Dkt. 11 ¶¶ 43, 41, 44-51); Fraire

v. City of Arlington, 957 F.2d 1268, 1278 (5th Cir. 1992) (“We have consistently

required a plaintiff to plead specific facts, not merely conclusory allegations.”)

(internal quotation marks omitted); Taylor v. Hartley, 488 F. Supp. 3d 517, 542

(S.D. Tex. 2020) (“[The plaintiff] doesn’t plead specific facts about the alleged

policy. He simply states that such a policy exists based only on [the

defendant’s] conduct. This is insufficient.”).

Martinez does identify one policy: that HCSO refused to investigate

complaints by individuals who have pending criminal charges against them.

Dkt. 11 ¶ 34. His allegations, however, are not analogous to the case he cites.

Dkt. 20 at 2-4 (discussing Black v. Stephens, 662 F.2d 181 (3rd Cir. 1981)).

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The decision in Black simply reflects the general rule that “a supervisor

may be held liable when the supervisor’s actions proximately caused the

plaintiff’s injury.” Terrell v. Harris Cnty., --- F. Supp. 3d ---, 2022 WL 4084434,

at *6 (S.D. Tex. Sep. 6, 2022). That test was met in Black, but on a specific set

of facts. 622 F.2d at 189-90. There, the evidence indicated that the officer

exploited a policy similar to HCSO’s by filing charges against the plaintiff to

delay the officer’s disciplinary hearing over plaintiff’s pending excessive-force

complaint. Id. at 190. This series of events provided a sufficient basis for the

jury to find a “causal nexus” between the policy and the officer’s “filing of

unwarranted charges” against the plaintiff. Id.

The chronology alleged in Martinez’s complaint differs materially from

Black. By his own account, Martinez did not complain about the alleged use

of excessive force until after the charges against him were dismissed. Dkt. 11

¶ 32. At that point, HCSO’s policy would not have prevented any investigation

of Martinez’s complaint. And there is no allegation that HSCO deputies

previously filed charges against Martinez to thwart a potential investigation

of a hypothetical complaint that was not yet made.

Martinez’s additional allegation that he called the Sheriff’s office the day

after the incident, to complain about the woman who had made false

allegations against him, is inapposite. See Dkt. 11 ¶ 33. There is no indication

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that HCSO’s policy limiting internal investigations of its own personnel has

any bearing on citizen complaints about other citizens.

In sum, nothing in the complaint suggests that HCSO’s policy was the

moving force behind what happened to Martinez. Martinez can only speculate

that the policy led to the deputies’ use of excessive force or to his false arrest.

See Dkt. 18 at 4; cf. Estate of Bonilla v. Orange Cnty., 982 F.3d 298, 311 (5th

Cir. 2020) (affirming summary judgment for county when “[a] jury would have

to resort to impermissible speculation to conclude that there was a ‘direct

causal link’ between the alleged constitutional violation ... and [Bonilla’s]

death”). This claim should be rejected.

ii. Martinez failed to allege sufficient facts demonstrating a

failure to train or supervise HCSO personnel.

Martinez’s theory that the County failed to adequately train or supervise

the deputies’ conduct fares no better. To prevail, a plaintiff must show that

“(1) the training or ... [supervising] procedures of the municipality's

policymaker were inadequate, (2) the municipality’s policymaker was

deliberately indifferent in adopting the ... training [or supervising] policy, and

(3) the inadequate ... training [or supervising] policy directly caused [the

plaintiff] injury.” Pineda v. City of Hous., 124 F. Supp. 2d 1057, 1078 (S.D.

Tex. 2000) (quoting Conner v. Travis Cnty., 209 F.3d 794, 796 (5th Cir. 2000)).

“A pattern of similar constitutional violations by untrained employees is

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‘ordinarily necessary’ to demonstrate deliberate indifference for purposes of

failure to train.” Connick v. Thompson, 563 U.S. 51, 62 (2011) (quoting Bryan

Cnty. v. Brown, 520 U.S. 397, 409 (1997)).

Here, however, the complaint just asserts that the County adopted

(unidentified) procedures with deliberate indifference. See Dkt. 11 ¶ 51. It

provides no factual underpinnings suggesting there was a pattern of similar

constitutional violations by untrained employees. See Henderson v Harris

Cnty., 51 F.4th 125, 130-32 (5th Cir. 2022) (affirming dismissal of failure-to-

train claim); see also Connick, 563 U.S. at 62.

Martinez notes that “particularly egregious facts” can support liability

for failure to train. Dkt. 18 at 5 (citing Pineda, 124 F. Supp. 2d at 1068). In

doing so, Martinez alludes to a “single incident exception” to the general rule

that a pattern of misconduct is necessary to show deliberate indifference. See

Pineda, 124 F. Supp. 2d at 1083-86 (finding exception was not met). But this

exception is “extremely narrow,” see Valle v. City of Hous., 613 F.3d 536, 549

(5th Cir. 2010), and is “generally reserved for those cases in which the

government actor was provided no training whatsoever,” Hutcheson v. Dallas

Cnty., Tex., 994 F.3d 477, 483 (5th Cir. 2021) (citing Pena v. City of Rio Grande

City, 879 F.3d 613, 624 (5th Cir. 2018)), cert. denied, 142 S. Ct. 564 (2021).

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Martinez’s allegations do not fall within the single-incident exception.

He does not claim that the deputies received “no training whatsoever.” See

Hutchenson, 994 F.3d at 483. Rather, Martinez alleges that their training was

inadequate in some unspecified respect. Dkt. 11 ¶ 45. Accordingly, his claims

against the County are barred.

II. Individual Defendants

A. Qualified immunity forecloses some, but not all, of the

claims against Deputy Ybarra.

In his motion to dismiss, Deputy Ybarra invokes qualified immunity,

asserting that he had arguable probable cause to detain Martinez, and that his

actions did not constitute excessive force as a matter of law. Dkt. 44 at 7-9.

Deputy Ybarra also seeks dismissal of Martinez’s state-law assault claim based

on official immunity. Id. at 9-10. Martinez, however, responds that binding

case law puts the unreasonableness of Deputy Ybarra’s actions “beyond

debate.” Dkt. 47 at 6-15. The Court agrees that Martinez’s excessive force and

state-law assault claims survive dismissal at this stage. But his other claims

against Deputy Ybarra should be dismissed.

i. Qualified immunity: legal standard.

Deputy Ybarra raised qualified immunity as a defense to “any claim”

brought by Martinez. Dkt. 44 at 4. As Martinez notes, some jurisdictions

require a defendant to raise “with particularity” the claims against which he

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asserts qualified immunity. See Dkt. 47 at 3-4. But in the Fifth Circuit, once

qualified immunity is invoked, “the burden is on the plaintiff to demonstrate

the inapplicability of the defense.” Ramirez v. Guadarrama, 3 F.4th 129, 133

(5th Cir. 2021) (quoting McClendon, 305 F.3d at 323).

Thus, the inquiry is whether the factual allegations, coupled with

Martinez’s contentions in his response brief, are sufficient to overcome

qualified immunity.2 At this stage, a plaintiff must assert “specific facts that

both allow the court to draw the reasonable inference that the defendant is

liable for the harm he has alleged and that defeat a qualified immunity defense

with equal specificity.” Arnold v. Williams, 979 F.3d 262, 267 (5th Cir. 2020)

(quoting Backe, 691 F.3d at 648). The plaintiff must show that the officer’s

actions violated a constitutional right, and that the right was clearly

established when the incident occurred. Mace v. City of Palestine, 333 F.3d

621, 623-24 (5th Cir. 2003).

There are three ways to show a right is clearly established. First, an on-

point, controlling case can put the constitutional violation “beyond debate.”

2 When “a qualified immunity defense is asserted in an answer or motion to dismiss

... the court may [then], in its discretion, insist that a plaintiff file a reply” under

Federal Rule of Civil Procedure 7(a). Anderson v. Valdez, 845 F.3d 580, 589 (5th Cir.

2016) (internal quotation marks omitted). Because Martinez has already responded

to Individual Defendants’ qualified immunity defense, Dkts. 33, 39, 47, further

briefing is unnecessary.

15

See, e.g., Mullenix v. Luna, 577 U.S. 7, 12 (2015) (per curiam). Second, a

“robust consensus of persuasive authority” can clearly define the contours of a

constitutional right. See, e.g., Wilson v. Layne, 526 U.S. 603, 617 (1999). Third,

absent controlling authority or a robust consensus of persuasive authority,

there may be instances where constitutional violation is nonetheless “obvious.”

See Brousseau v. Haugen, 543 U.S. 194, 199 (2004) (per curiam) (citing Hope v.

Pelzer, 536 U.S. 730, 738 (2002)).

When determining if the defendant’s conduct violated a clearly

established Fourth Amendment right, courts must define the right with a high

degree of specificity. See Dist. of Columbia v. Wesby, 138 S. Ct. 577, 590 (2018).

Although the standard “does not require a case directly on point,” Rivas-

Villegas v. Cortesluna, 142 S. Ct. 4, 7-8 (2021) (per curiam), the Supreme Court

nonetheless has reversed decisions that framed the inquiry without sufficient

factual specificity, see id. at 8; Mullenix, 577 U.S. at 16-17; Ashcroft v. al-Kidd,

563 U.S. 731, 741-42 (2011) (rejecting reliance on the “history and purposes of

the Fourth Amendment” to find a clearly established right).

ii. Deputy Ybarra had arguable probable cause to conduct an

arrest of Martinez.

One claim against Deputy Ybarra disputes the constitutionality of

Martinez’s arrest. See Dkt. 11 ¶ 31. Ybarra asserts that he had an arguable

16

basis to conclude there was probable cause for the arrest. Dkt. 44 at 8. The

Court agrees.

For Fourth Amendment false arrest claims, a plaintiff must allege “that

[the arresting officers] did not have probable cause to arrest him.” Anokwuru

v. City of Hous., 990 F.3d 956, 963 (5th Cir. 2021) (citing Haggerty v. Tex. S.

Univ., 391 F.3d 653, 655 (5th Cir. 2004)). And to defeat qualified immunity,

“plaintiffs must allege facts permitting an inference that defendants lacked

arguable (that is, reasonable but mistaken) probable cause for the arrests.”

Club Retro L.L.C. v. Hilton, 568 F.3d 181, 207 (5th Cir. 2009).

“A warrantless arrest without probable cause violates clearly established

law defining an individual’s rights under the Fourth Amendment.” Davidson

v. City of Stafford, Texas, 848 F.3d 384, 391 (5th Cir. 2017). “The Supreme

Court has defined probable cause as the ‘facts and circumstances within the

officer’s knowledge that are sufficient to warrant a prudent person, or one of

reasonable caution, in believing, in the circumstances shown, that the suspect

has committed, is committing, or is about to commit an offense.’” Piazza v.

Mayne, 217 F.3d 239, 245-46 (5th Cir. 2000) (quoting Michigan v. DeFillippo,

443 U.S. 31, 37 (1979)).

To justify Martinez’s arrest, Deputy Ybarra emphasizes that a woman at

the scene accused Martinez of attempted assault. See Dkt. 11 ¶ 20; Dkt. 44 at

17

8-9. The complaint does not identify the officer with whom the woman spoke,

but Martinez concedes that Deputy Ybarra was “told that [Martinez] tried to

hit her.” Dkt. 47 at 12. Martinez argues that Beck v. Ohio, 379 U.S. 89 (1964)

and its progeny indicate that “[o]ne woman’s uncorroborated claim is not

‘arguable probable cause’ in the Supreme Court’s understanding ....” Dkt. 47

at 11-12. The cited authorities do not support his position.

For instance, the officers in Beck only had amorphous “reports” and

“information” from unnamed informants. 379 U.S. at 93-94. In contrast, the

officers here heard from the alleged victim who was interviewed at the scene.

See Dkt. 11 ¶ 20; Dkt. 47 at 12.

Two other decisions similarly require officers to corroborate tips from

informants, not complaints by alleged victims, with “independent police work.”

Illinois v. Gates, 462 U.S. 213, 241-42 (1983); Adams v. Williams, 407 U.S. 143,

148-49 (1972) (affirming probable cause where the officer ‘‘found the gun

precisely where the informant had predicted”). Moreover, Martinez’s

allegations reflect that at least some “independent police work” was performed.

Police arrived at an active crime scene. See Dkt. 11 ¶¶ 12-15 (injured man

lying on the road). And Deputy Ybarra questioned Martinez about what had

transpired before deciding to arrest him. Id. ¶¶ 23-24.

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In addition, Martinez’s authorities do not clearly establish that probable

cause was lacking. Those decisions did not address similar factual

circumstances: where a victim at the scene accused someone of attempting to

assault her, and the officer interviewed the alleged perpetrator. See Loftin v.

City of Prentiss, Miss., 33 F.4th 774, 781-82 (5th Cir. 2022) (affirming qualified

immunity where the plaintiff failed to “identify a case where a court found that

an officer violated the Fourth Amendment” by arresting someone “in similar

circumstances”). Deputy Ybarra is therefore entitled to qualified immunity for

Martinez’s arrest.

iii. Martinez has abandoned his malicious prosecution claim

against Deputy Ybarra.

Martinez’s failure to defend his malicious prosecution claim against

Deputy Ybarra warrants dismissal of that claim. “A plaintiff abandons claims

when it fails to address the claims or oppose a motion challenging those

claims.” Terry Black’s Barbeque, L.L.C. v. State Auto. Mut. Ins. Co., 22 F.4th

450, 459 (5th Cir. 2022). That principle applies forcefully here because a

defendant’s invocation of qualified immunity places the burden on the plaintiff

to overcome the defense. See Willis v. Bastrop Cnty., 2019 WL 252051, at *5

(W.D. Tex. Jan. 17, 2019) (plaintiff failed to meet this burden “because he has

failed to even respond to the qualified immunity defense”).

19

Despite pleading a malicious prosecution claim, see Dkt. 11 ¶¶ 41, 44, 51,

Martinez does not even mention it when opposing to Deputy Ybarra’s motion

to dismiss, see Dkt. 47. This claim should be dismissed.

iv. The allegations are sufficient to overcome Deputy Ybarra’s

qualified immunity defense with respect to excessive force.

A different result is warranted for Martinez’s excessive force claim

against Deputy Ybarra. For this type of claim, a plaintiff must allege that the

use of force caused “(1) injury, (2) which resulted directly and only from a use

of force that was clearly excessive, and (3) the excessiveness of which was

clearly unreasonable.” Tarver v. City of Edna, 410 F.3d 745, 751 (5th Cir.

2005). Martinez adequately pleaded this claim.

Contrary to Deputy Ybarra’s arguments, Martinez alleges far more than

“[t]ight handcuffing alone ....” See Dkt. 44 at 7-8 (citing Glen v. City of Tyler,

242 F.3d 307, 314 (5th Cir. 2001). The complaint also asserts that Deputy

Ybarra “forcefully pulled [Martinez] out of the car,” Dkt. 11 ¶ 24, yanked him

by the handcuffs “extremely hard causing a high level of pain,” id. ¶ 25, and

slammed Martinez against a car, id. ¶¶ 29-30.

The complaint explicitly alleges that Deputy Ybarra injured Martinez.

Id. ¶¶ 24-25, 27, 29-30. For the remaining elements, courts evaluate multiple

factors in assessing whether the use of force was excessive and clearly

unreasonable. See Poole v. City of Shreveport, 691 F.3d 624, 627-28 (5th Cir.

20

2012). Those factors include “[1] the severity of the crime at issue, [2] whether

the suspect poses an immediate threat to the safety of the officers or others,

and [3] whether he is actively resisting arrest or attempting to evade arrest by

flight.” Id. at 627 (quoting Graham v. Connor, 490 U.S. 386, 396 (1989))

(alterations in original).

Based on those factors, Martinez’s complaint adequately asserts that

Deputy Ybarra used excessive and clearly unreasonable force. Particularly

instructive is Deville v. Marcantel, 567 F.3d 156 (5th Cir. 2009). There, a police

officer broke the window to a suspect’s car, dragged her from it, and slammed

her against the car during a routine traffic stop. Id. at 167. Applying the

Graham factors, the Fifth Circuit held that a reasonable jury could conclude

that the officer had used objectively unreasonable force—particularly when

Ms. Deville was suspected of a minor offense, her car was parked, there was no

reason to believe she was going to use the car as a weapon, and she was not

actively resisting. Id. Analogously, the allegations here indicate that Deputy

Ybarra dragged an already handcuffed Martinez from a car and slammed him

against it, with no indication that Martinez was resisting or otherwise posed a

threat. See Dkt. 11 ¶¶ 27-30.

The factual similarities between Deville and Martinez’s allegations

further indicate that Deputy Ybarra’s conduct—as described in the

21

complaint—violated clearly established law. Like the plaintiff in Deville,

Martinez was sitting in a parked car after being confronted for suspected

wrongdoing supported by limited probable cause. Compare Dkt. 11 ¶ 23

(Martinez sitting in his parked vehicle), with Deville, 567 F.3d at 161 (Deville

sitting in her parked car). Also like Deville, Deputy Ybarra dragged Martinez

from and slammed him against a car. Compare Dkt. 11 ¶ 27-29 (asserting that

Deputy Ybarra dragged Martinez from his car and slammed him, while already

handcuffed, against the trunk of a car), with Deville, 567 F.3d at 162 (deputies

pulled Deville from her car and slammed her against it). And the complaint

alleges that Martinez posed less resistance than the plaintiff in Deville.

Compare Dkt. 11 ¶ 30 (Martinez already in handcuffs), with Deville, 567 F.3d

at 161-62 (Deville refusing officers’ requests before being handcuffed).

Martinez has pleaded enough facts to foreclose dismissal of this claim.

v. Martinez has adequately pleaded a state law claim of assault

against Deputy Ybarra.

Regarding Martinez’s assault claim, Deputy Ybarra invokes official

immunity—a Texas-law analogue to qualified immunity. Dkt. 44 at 9 (citing

Telthorster v. Tennell, 92 S.W.3d 457, 461 (Tex. 2002)). Official immunity is

an affirmative defense that protects officials who perform “(1) discretionary

duties in (2) good faith as long as they are (3) acting within the scope of their

authority.” City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex. 1994)

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(citing, inter alia, Perry v. Texas A & I Univ., 737 S.W.2d 106, 110 (Tex. App.—

Corpus Christi 1987, writ ref’d n.r.e.)). Unlike qualified immunity, the burden

of establishing official immunity rests initially with the defendant officer. See

Morrison v. Walker, 2015 WL 11102144, *9 (E.D. Tex. Sep. 24, 2015) (requiring

the government official to establish official immunity at the motion to dismiss

stage); see also Gonzalez v. Cameron Cnty., Tex., 2006 WL 1710890, at *2 (S.D.

Tex. June 19, 2006) (denying motion to dismiss assault claim where officer

failed to affirmatively establish that he was entitled to qualified immunity).

Under federal pleading standards, dismissal based on official immunity is

appropriate only “if [the] pleadings reveal on their face that the defendants

acted in good faith.” Holcomb v. Berryhill, 2009 WL 10699947, at *8 (W.D. Tex.

2009) (noting that this defense “is more appropriately raised in a motion for

summary judgment or at trial”).

Deputy Ybarra’s arguments for official immunity ignore explicit

allegations that he used excessive force apart from tightening Martinez’s

handcuffs. Dkt. 44 at 7. The Court assumes, without deciding, that Deputy

Ybarra has demonstrated that the arrest in this case was a discretionary

function that occurred in the scope of his authority. See Dkt. 44 at 6-7. But as

reflected supra, Part II.A.iv, Deputy Ybarra still cannot show that a reasonably

prudent officer, under the same or similar circumstances, could have believed

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that the degree of force he used during Martinez’s arrest was reasonable. See

Gaytan v. City of Rockdale, 2009 WL 10699021, at *10 (W.D. Tex. Jan. 13,

2009) (“In light of the Court’s determination regarding the officers’ qualified

immunity for Plaintiffs’ 1983 claims, the undersigned believes that Defendants

have not proven, as a matter of law, that they acted in good faith such that

they are entitled to an official immunity defense.”). Dismissal of the assault

claim is unwarranted.

vi. Martinez fails to state a claim for bystander liability against

Deputy Ybarra.

Deputy Ybarra also seeks dismissal of Martinez’s bystander liability

claim, which alleges that Deputy Ybarra failed to intervene when another

officer attempted to kick Martinez’s legs out from under him. Dkt. 11 ¶ 28;

Dkt. 44 at 4; Dkt. 47 at 8. An officer can be liable as a bystander if “the officer

(1) knows that a fellow officer is violating an individual’s constitutional rights;

(2) has a reasonable opportunity to prevent the harm; and (3) chooses not to

act.” McDonald v. McClelland, 779 F. App’x 222, 226–27 (5th Cir. 2019)

(internal citations and quotation marks omitted).

When faced with a qualified immunity defense, a plaintiff must identify

clearly established law that would require intervention under similar

circumstances. See Whitley v. Hanna, 726 F.3d 631, 647 n.13 (5th Cir. 2013).

Although it is “clearly established that an officer could be liable as a bystander

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if he knew a constitutional violation was taking place and had a reasonable

opportunity to prevent the harm,” see Hamilton v. Kindred, 845 F.3d 659, 663

(5th Cir. 2017) (cleaned up), a plaintiff still must sufficiently allege each of the

elements with sufficient specificity, see Campos v. City of Port Lavaca, 2021

WL 5826783, *6 (S.D. Tex. Dec. 8, 2021) (“An officer’s mere presence at the

scene, without more, is insufficient to establish a claim for failure to

intervene.”) (internal citations omitted).

Even viewing the allegations in the light most favorable to Martinez, the

Court concludes that Martinez has failed to demonstrate that bystander

liability—as presented here—was clearly established at the time of this

incident. The only case he cites—Joseph v. Bartlett, 981 F.3d 319, 345-46 (5th

Cir. 2020)—reversed the denial of qualified immunity for a bystander claim.

See Dkt. 47 at 8. There, the court addressed certain officers’ failures to

intervene while other officers used excessive force. 981 F.3d at 325-32. Despite

concluding that the evidence supported the elements of bystander liability, the

Fifth Circuit held that the plaintiffs failed to provide clearly established law

that put the illegality of the bystanders’ actions beyond debate. Id. at 345-46.

The same deficiency forecloses Martinez’s bystander claim. Martinez

had to show that “any reasonable officer would have known to intervene under

these circumstances,” id., at 345—and at the time of the alleged incident, see

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Ashcroft, 563 U.S. at 741 (limiting analysis of clearly-established law to cases

decided “at the time” of the challenged conduct). Yet the Joseph case was

decided in November of 2020, about nine months after Martinez’s incident

occurred. See 981 F.3d at 319; Dkt. 44 at 8. Deputy Ybarra is thus entitled to

qualified immunity on this claim.

B. Martinez has not stated a cognizable claim against

Lieutenant Hernandez.

Martinez asserts the same claims of unlawful arrest, excessive force, and

malicious prosecution against Lieutenant Hernandez. Dkt. 11 ¶ 41. His sole

factual allegation about Hernandez cannot sustain these claims.

i. There are no factual allegations that Hernandez used

excessive force or committed malicious prosecution.

According to the complaint, Deputy Ybarra made a phone call to

Lieutenant Hernandez, and both officers decided to charge Martinez for

interfering with public duties. Dkt. 11 ¶ 31. Given that Hernandez was not at

the scene, he cannot be liable for using excessive force. This claim is foreclosed.

Martinez’s malicious prosecution claim against Lieutenant Hernandez is

barred because Martinez has abandoned it. See supra Part II.A.iii (failure to

defend a claim subjects it to dismissal). His response brief does not discuss or

defend this claim, much less assert any authority supporting it. To the extent

Martinez asserts that Hernandez wrongfully arrested him, that claim is just

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as deficient as the parallel claim against Deputy Ybarra. See supra Part II.A.ii.

This Court should dismiss the malicious prosecution and any wrongful arrest

claim against Hernandez.

ii. Martinez’s supervisory liability claims against Lieutenant

Hernandez fail as a matter of law.

Martinez’s complaint arguably raises a supervisory liability claim

against Lieutenant Hernandez. See Dkt. 11 ¶¶ 44-51; see also Dkt. 33 at 4

(citing Dkt. 11 ¶ 31 and asserting that Lieutenant Hernandez is liable as for

failing to train and supervise his subordinates). But the allegations in the

complaint cannot sustain this claim.

As explained above, supervisors can only be liable for actively

participating in a constitutional violation or for implementing or enforcing

unconstitutional policies. See supra Part I.A.i; Baker, 75 F.3d at 199. The

Court has already dispensed with the sole factual allegation addressing

Hernandez’s actions. See supra Part II.B.i (rejecting malicious prosecution and

false arrest claim). The Court also concluded that the supervisory claims

against the County and Sheriff Gonzalez should be dismissed for lack of an

actionable policy. See supra Part I.A.ii.; Part I.B. Likewise, there is no basis

for a supervisory claim against Lieutenant Hernandez, particularly when no

allegations link him to any asserted policies in this case.

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C. Martinez fails to state a cognizable claim against Deputy

Henderson.

i. The allegations do not show that Henderson used excessive

force or committed false arrest, malicious prosecution, or

assault.

Martinez sued another officer, Deputy Henderson, for his involvement in

the February 2020 incident. According to Martinez, Deputy Henderson used

unreasonable and excessive force by pushing him “for no reason” while

Martinez was being pulled from the car. Dkt. 11 ¶ 26; see also Dkt. 39 at 5.

Despite alleging that the push injured him, Martinez has not alleged any facts

reflecting that the force used was “clearly excessive” and any excessiveness

was “clearly unreasonable.” Tarver, 410 F.3d at 751. “Not every push or shove,

even if it may later seem unnecessary in the peace of a judge’s chambers ...

violates the Fourth Amendment.” Graham, 490 U.S. at 396. In addition,

Martinez does not cite any binding precedent reflecting that Henderson’s push

was clearly excessive, as necessary to overcome qualified immunity. See Dkt.

39 (providing no supporting authority for Martinez’s excessive force claim

against Henderson). The excessive force claim therefore fails.

As for the assault claim, Martinez has abandoned it by failing to defend

it when responding to Henderson’s motion to dismiss. See supra Part II.A.iii,

(citing Terry Black’s Barbeque, 22 F.4th at 459); Dkt. 39. This claim should be

dismissed.

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To the extent asserted, any claims of false arrest and malicious

prosecution against Deputy Henderson are wholly unsupported. Again, the

only allegation against Henderson asserts that he pushed Martinez. Dkt. 11

¶ 26. There is no factual basis for concluding that Henderson falsely arrested

or maliciously prosecuted Martinez. These claims are barred.

ii. Martinez has not stated a bystander liability claim against

Henderson.

Martinez also brings a bystander liability claim against Deputy

Henderson—a claim that Henderson has not meaningfully addressed. See Dkt.

11 ¶ 26; Dkt. 39 at 8-9. Nonetheless, Deputy Henderson’s request to dismiss

“any” claim compels further analysis. Dkt. 37 at 4, 11.

Martinez’s allegations are insufficient to support bystander liability.

“An officer’s mere presence at the scene, without more, is insufficient to

establish a claim for failure to intervene.” Campos, 2021 WL 5826783, at *6

(internal citations omitted). But that is all the complaint alleges. Henderson

is mentioned only once, for pushing Martinez during the arrest. See Dkt. 11

¶ 26. Nothing indicates that Deputy Henderson knew about Deputy Ybarra’s

or the other officer’s use of force, see id. ¶¶ 25, 27-30, let alone that Henderson

had a “reasonable opportunity to prevent the harm.” See, e.g., Cruz v. Delgado,

2017 WL 11503868, at *7-8 (S.D. Tex. Dec. 7, 2017) (dismissing claim where

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bystander lacked knowledge of arresting officer’s reason for detaining suspect).

This is fatal to Martinez’s claim, warranting its dismissal.

III. Leave to Amend and Stay of Discovery

Martinez’s responses to the motions to dismiss include a conclusory

request for leave to amend his complaint. Dkt. 18 at 7; Dkt. 33 at 6; Dkt. 39 at

9; Dkt. 47 at 15-16. As his sole justification, Martinez declares that “[l]eave to

amend should be ‘freely give[n],’ especially where, as here, any issues with

Plaintiff’s complaint cited by Defendants could be cured by repleading.” E.g.,

Dkt. 39 at 9. This is inadequate to justify another amendment.

Generally, leave to amend a pleading shall be freely given “when justice

so requires.” Fed. R. Civ. P. 15(a). The standard is different when—as here—

the deadline for amending pleadings has expired. See Dkt. 27 (July 31, 2022

deadline); Dkt. 49 (revised scheduling order, noting that pleadings deadline

has passed). In that instance, the movant must demonstrate good cause for

modifying the scheduling order before the more liberal standard for amending

pleadings can apply. See S&W Enters., L.L.C. v. SouthTrust Bank of Ala., N.A.,

315 F.3d 533, 536 (5th Cir. 2003); see also Fed. R. Civ. P. 16(b)(4) (requiring

good cause to modify a scheduling order). Whether good cause exists depends

on “(1) the explanation for the failure to timely move for leave to amend; (2)

the importance of the amendment; (3) potential prejudice in allowing the

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amendment; and (4) the availability of a continuance to cure such prejudice.”

T.O. v. Fort Bend Indep. Sch. Dist., 2 F.4th 407, 418 (5th Cir. 2021) (citing

Meaux Surface Prot., Inc. v. Fogleman, 607 F.3d 161, 167 (5th Cir. 2010)). “The

trial court [also] acts within its discretion in denying leave to amend where the

proposed amendment would be futile because it could not survive a motion to

dismiss.” Rio Grande Royalty Co. v. Energy Transfer Partners, L.P., 620 F.3d

465, 468 (5th Cir. 2010).

Applying these factors, Martinez has not demonstrated good cause for

further amending his complaint. Martinez does not advance any reason for

permitting another amendment. He does not articulate what new allegations

he would include, or how those allegations would rectify the many deficiencies

in his pleading. Absent such an explanation, amendment is properly denied

as futile. See Rio Grande Royalty, 620 F.3d at 468.

Moreover, permitting amendment would prejudice all defendants, by

further delaying a case that has been pending for a year and still remains at

the pleading stage. See Conklin v. Novartis Pharmas. Corp., 2012 WL

4127295, at *6 (E.D. Tex. Sept. 18, 2012) (“In a sense, it would always be

possible to give more time to a party trying to avoid judgment. But that results

in a never-ending burden on a Defendant, and the case is prolonged far beyond

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what is reasonable, contrary to the goals of Federal Rule of Civil Procedure

1.”). Martinez’s request for leave to amend should be denied.

Finally, Deputy Ybarra and Deputy Henderson have asked for a stay of

discovery pending resolution of their motions to dismiss. Government officials

typically are entitled to a stay of discovery upon invoking qualified immunity.

See Freeman v. United States, 556 F.3d 326, 342-43 (5th Cir. 2009) (collecting

cases). But because qualified (or official) immunity should not bar some of the

claims against Deputy Ybarra, see supra Part II.A.iv-v, his motion for stay

should be denied. See, e.g., Hernandez v. City of Grand Prairie, Tex., 2017 WL

4098596, *14 (N.D. Tex. Sep. 15, 2017) (vacating stay of discovery after denying

in part a motion to dismiss on qualified immunity grounds). As for Deputy

Henderson, dismissal of all claims against him would moot his request for a

stay. See supra Part II.C. Deputy Henderson’s request for stay therefore

should be denied as moot.

Recommendation

For the foregoing reasons, it is RECOMMENDED that the Court

GRANT Sheriff Ed Gonzalez’s motion to dismiss (Dkt. 13), GRANT Harris

County’s motion to dismiss (Dkt. 12), GRANT Lieutenant John Hernandez’s

motion to dismiss (Dkt. 29), and GRANT Deputy Jacoby Henderson’s motion

to dismiss (Dkt. 37).

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It is further RECOMMENDED that the Court DENY IN PART Deputy

Louis Ybarra’s motion to dismiss (Dkt. 44) with respect to the excessive force

and assault claims against him, but GRANT IN PART the motion with

respect to all other claims against Deputy Ybarra.

It is further RECOMMENDED that Plaintiff Jose Martinez’s request

for leave to amend be DENIED, that Deputy Henderson’s request for a stay of

discovery (Dkt. 37) be DENIED as MOOT, and Deputy Ybarra’s request for a

stay of discovery (Dkt. 44) be DENIED.

The parties have fourteen days from service of this Report and

Recommendation to file written objections. 28 U.S.C. § 636(b)(1); Fed.

R. Civ. P. 72(b). Failure to file timely objections will preclude

appellate review of factual findings and legal conclusions, except for

plain error. Ortiz v. City of San Antonio Fire Dep’t, 806 F.3d 822, 825

(5th Cir. 2015).

Signed on February 14, 2023, at Houston, Texas.

Me

United States Magistrate Judge

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