Lee v. AT&T Services, Inc.

IN THE UNITED STATES DISTRICT COURT March 31, 2023

FOR THE SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk

HOUSTON DIVISION

§

R. MICHAEL LEE, §

§

Plaintiff, §

v. § CIVIL ACTION NO. H-22-2027

§

AT&T SERVICES, INC., et al., §

§

Defendants. §

§

§

MEMORANDUM AND ORDER

Michael Lee experienced a significant but all-too-common annoyance: his internet service

was disrupted, and his carrier, AT&T, did not respond to his repair request for two weeks. AT&T

then dispatched a utility crew to Lee’s property to find the problem and repair it if possible during

their visit. AT&T crew members Victor Manual Medrano and Carlos Sanchez arrived to try to fix

the internet service by repairing lines that had fallen. Lee, who apparently is elderly and lives

alone, locked Medrano and Alvarez in the fenced backyard of Lee’s home. Lee kept the gate

locked to be sure the crew stayed until they fixed his internet. The crew members wanted to leave,

but Lee refused to unlock the gate. Lee apparently spoke no Spanish and the crew members spoke

little English, making matters worse.

The crew used their cell phones to call the police when Lee would not unlock the gate and

let them out of his backyard. Two Houston Police Department Officers, T.D. Chapman and N.P.

Matthews, arrived at the scene and asked Lee to unlock the gate. Lee refused. The officers began

to cut the lock. Lee objected. The officers then climbed over the gate and arrested Lee for unlawful

restraint, a charge that was later dismissed.

Lee has sued AT&T, Medrano, Alvarez, Officer Chapman, Officer Matthews, and the City

of Houston, alleging civil conspiracy and violations of his Fourth and Fourteenth Amendment

rights. He seeks a declaratory judgment against AT&T and its employees under 28 U.S.C. § 2201

and money damages against the officers and the City of Houston under 42 U.S.C. § 1983.

Three motions to dismiss are pending. The City of Houston moves to dismiss, asserting

that Lee has failed to state a claim for municipal liability under § 1983. (Docket Entry No. 22).

Officer Chapman and Officer Matthews move to dismiss, asserting qualified immunity. (Docket

Entry No. 23). AT&T moves to dismiss, asserting the lack of an actual controversy between the

parties, as required under the Declaratory Judgment Act. (Docket Entry No. 25).

Having reviewed the briefs, the responses, the record, and the law, all three motions are

granted. This case is dismissed with prejudice because amendment would be futile. The reasons

are explained below.

I. Factual Background

Medrano and Alvarez arrived at Lee’s home on February 28, 2019. Lee unlocked his gate,

let Medrano and Alvarez into the property, and then locked the gate behind them. An hour or so

later, Lee apparently tried to check on Medrano and Alvarez’s progress, but they spoke only

Spanish and he spoke only English. Lee attempted to tell the contractors that they needed to get

an AT&T supervisor on site or arrange for AT&T to translate for him so Lee could be sure that

they had finished the repair correctly and restored the internet. Lee left the workers outside in the

yard behind the locked gate and went back inside his house, where he made multiple calls to

different numbers that he believed would reach high-level AT&T management. During this time,

the crew members reached someone in their office, and reported that the homeowner had them

confined to his backyard, behind a locked fence, and was refusing to let them out. The AT&T

office worker alerted law enforcement.

A Deputy Constable arrived at Lee’s residence and met Lee at his front door. Lee explained

that he was keeping the workers inside the fence until they fixed his internet and gave the Deputy

Constable the AT&T contact information. The Deputy Constable tried to call someone at AT&T,

without success. Lee told the Deputy Constable that the AT&T workers needed to be stay and

refused to release them. The Deputy Constable left the residence.

Soon after, another Deputy Constable arrived with Houston Police Department Officers

Chapman and Matthews. The officers approached the locked gate that Lee was standing behind,

told him that they had a report of people held against their will, and asked for his side of the story.

Lee began by “pleading the Fifth.” He then went on to say that he was waiting for AT&T officials

or the crew members’ supervisor to come to the residence. One of the police officers instructed

Lee to unlock the gate. He did not do so, instead repeating that a representative of AT&T or the

crew members’ supervisor need to show up before he would release the crew members.

The officers then instructed the crew members to cut the lock to open the gate. Lee told

warned them not to damage his property and again insisted on waiting for an AT&T representative

or the contractors’ supervisor to arrive. Lee continued to insist that the crew members had to stay

in his backyard until they received instructions from AT&T to properly finish their job. Lee

insisted that by refusing to let the workers leave, he was just “doing the best he could to protect

his life, safety, and well-being with the cards he had been dealt.”

Lee then told the workers and the law-enforcement officers to wait while he went to the

back of his house to check his internet. When he returned to the gate, Lee saw what appeared to

be one of the AT&T crew members trying to cut the locked gate with bolt cutters. Lee ran toward

them, yelling in English that the workers had to stop and not damage his property (the padlock).

By the time Lee got to the gate, the lock had been cut, but it was stuck in the gate and preventing

it from opening. As Lee reached into his pocket for the key to the lock, one officer climbed to the

top of the fence, jumped over, and grabbed Lee, who fell to the ground. The other officer followed

suit and helped handcuff Lee’s hands behind his back, find his key, and unlock the gate. The crew

members left, and the officers escorted him to their police car.

Lee repeatedly asked the officers what he was being arrested for, but allegedly received no

answer. He believed that he heard the officers trying to persuade Medrano and Alvarez to press

charges, but that they were reluctant to do so. While he Lee was in the police car, Medrano

approached and apologized to Lee. Lee alleges that the officers may have been racially motivated

to press charges “because he was an older white man living in a predominantly black

neighborhood.”

Lee was arrested, charged with the misdemeanor offense of unlawful restraint, released on

bond. He was later diagnosed with a concussion and injuries to his kneecap and back. On March

31, 2021, the State of Texas moved to dismiss the criminal action because Lee had “completed 5

therapy sessions.”

Lee brought this suit in state court in February 2022. Lee asserted claims for malicious

prosecution and conspiracy under 42 U.S.C. § 1983, in violation of his Fourth and Fourteenth

Amendment rights, and sought a declaratory judgment. The City of Houston removed to federal

court based on federal-question jurisdiction. The City of Houston, AT&T, and Officers Chapman

and Matthews all filed individual motions to dismiss all of Lee’s claims.

II. The Legal Standards

A. Rule 12(b)(6)

A pleading is deficient and may be dismissed under Rule 12(b)(6) if a plaintiff fails “to

state a claim upon which relief can be granted.” FED. R. CIV. P. 12(b)(6). Rule 12(b)(6) is read in

conjunction with Rule 8(a), which requires “a short and plain statement of the claim showing that

the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). A complaint must contain “enough facts

to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S.

544, 555 (2007); Ashcroft v. Iqbal, 556 U.S. 662 (2009). Rule 8 “does not require ‘detailed factual

allegations,’ but it demands more than an unadorned, the-defendant-unlawfully-harmed-me

accusation.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555). “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.” Id. (citing Twombly, 550 U.S.

at 556). “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more

than a sheer possibility that a defendant has acted unlawfully.” Id. (citing Twombly, 550 U.S. at

556). “[I]n deciding a motion to dismiss for failure to state a claim, courts must limit their inquiry

to the facts stated in the complaint and the documents either attached to or incorporated in the

complaint.” Lovelace v. Software Spectrum, Inc., 78 F.3d 1015, 1018 (5th Cir. 1996).

A court may “consider documents integral to and explicitly relied on in the complaint, that

the defendant appends to his motion to dismiss, as well as the full text of documents that are

partially quoted or referred to in the complaint.” In re Sec. Litig. BMC Software, Inc., 183

F.Supp.2d 860, 882 (S.D. Tex. 2001) (internal quotation marks omitted). Consideration of

documents attached to a defendant’s motion to dismiss is limited to “documents that are referred

to in the plaintiff’s complaint and are central to the plaintiff’s claim.” Scanlan v. Tex. A & M.

Univ., 343 F.3d 533, 536 (5th Cir. 2003) (citing Collins v. Morgan Stanley Dean Witter, 224 F.3d

496, 498–99 (5th Cir. 2000)). The court may consider these extrinsic materials without converting

to a summary-judgment motion. See Isquith v. Middle S. Utils., Inc., 847 F.2d 186, 193 n.3 (5th

Cir. 1988) (quoting 5 WRIGHT & MILLER, FEDERAL PRACTICE AND PROCEDURE § 1366).

When a complaint fails to state a claim, the court should generally give the plaintiff a

chance to amend before dismissing the action with prejudice, unless amendment would be futile.

Great Plains Trust Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 329 (5th Cir. 2002).

Amendment is futile if an amended complaint would still fail to state a claim. See Mandujano v.

City of Pharr, Texas, 786 F. App’x 434, 438 (5th Cir. 2019); Bernegger v. Dep’t of Revenue, 785

F. App’x 209, 211 n.1 (5th Cir. 2019).

B. Municipal Liability

“Section 1983 provides a remedy against ‘any person’ who, under color of state law,

deprives another of rights protected by the Constitution.” Collins v. City of Harker Heights, 503

U.S. 115, 120 (1992). A local government may not be sued under § 1983 for the deprivation of

rights guaranteed by the Constitution or federal law inflicted solely by its employees or agents.

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

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

that the government entity is responsible under § 1983.” Monell v. N.Y.C. Dept. of Soc. Servs.,

436 U.S. 658, 691 (1978). A municipal entity may not be held liable under § 1983 based on

vicarious liability for the acts of its employees. Id.

To assert a § 1983 claim against the City of Houston and Harris County, a plaintiff must

allege three elements: (1) a policymaker; (2) an official policy or custom; and (3) “a violation of

constitutional rights whose moving force is the policy or custom.” Id. (quoting Zarnow v. City of

Wichita Falls, 614 F.3d 161, 166 (5th Cir. 2010)); Alvarez v. City of Brownsville, 904 F.3d 382,

389 (5th Cir. 2018) (en banc).

“Official municipal policy includes the decisions of a government’s lawmakers, the acts of

its policymaking officials, and practices so persistent and widespread as to practically have the

force of law.” Connick, 563 U.S. at 61. Official policy may be found in “written policy statements,

ordinances, or regulations, but it may also arise in the form of a widespread practice that is ‘so

common and well-settled as to constitute a custom that fairly represents municipal policy.’”

Peterson v. City of Fort Worth, 588 F.3d 838, 847 (5th Cir. 2009) (quoting reference omitted);

Piotrowski, 237 F.3d at 581–82. As the Fifth Circuit has summarized:

[Fifth Circuit] caselaw establishes three ways of establishing a municipal policy for

the purposes of Monell liability. First, a plaintiff can show “written policy

statements, ordinances, or regulations.” Second, a plaintiff can show “a widespread

practice that is so common and well-settled as to constitute a custom that fairly

represents municipal policy.” Third, even a single decision may constitute

municipal policy in “rare circumstances” when the official or entity possessing

“final policymaking authority” for an action “performs the specific act that forms

the basis of the § 1983 claim.”

Webb v. Town of Saint Joseph, 925 F.3d 209, 214–15 (5th Cir. 2019) (footnotes omitted) (quoting

references omitted).

“A policy is only official when it results from the decision or acquiescence of the municipal

officer or body with final policymaking authority over the subject matter of the offending policy.”

Brown v. City of Houston, 297 F. Supp. 3d 748, 765–66 (S.D. Tex. 2017) (quoting Piotrowski v.

City of Houston, 237 F.3d 567, 578 (5th Cir. 2001)). “A customary policy consists of actions that

have occurred for so long and with such frequency that the course of conduct demonstrates the

governing body’s knowledge and acceptance of the disputed conduct.” Jackson v. Valdez, 852 F.

App’x 129, 135 (5th Cir. 2021) (per curiam) (quoting reference omitted). “To plausibly plead a

practice ‘so persistent and widespread as to practically have the force of law,’ a plaintiff must do

more than describe the incident that gave rise to [her] injury.” Id. (quoting Peña v. City of Rio

Grande, 879 F.3d 613, 622 (5th Cir. 2018)). The complaint “must contain specific facts” of the

practice or custom. Taylor v. Hartley, 488 F. Supp. 3d 517, 541 (S.D. Tex. 2020) (quoting Peña

v. City of Rio Grande City, 879 F.3d 613, 621 (5th Cir. 2018)).

The policy itself must be unconstitutional or, if not, must have been adopted ‘with

deliberate indifference to the known or obvious fact that such constitutional violations would

result.’” James v. Harris County, 577 F.3d 612, 617 (5th Cir. 2009) (quoting reference omitted);

see also Connick v. Thompson, 563 U.S. 51, 60 (2011) (“Plaintiffs who seek to impose liability on

local governments under § 1983 must prove that ‘action pursuant to official municipal policy’

caused their injury.” (quoting Monell, 436 U.S. at 691)). “‘[D]eliberate indifference’ is a stringent

standard of fault, requiring proof that a municipal actor disregarded a known or obvious

consequence of his action.” Bd. of Cnty. Comm’rs v. Brown, 520 U.S. 397, 410 (1997). “A

showing of simple or even heightened negligence will not suffice.” Id. at 407. Instead, it “must

amount to an intentional choice, not merely an unintentionally negligent oversight.” James, 557

F.3d at 617–18 (quoting Rhyne v. Henderson County, 973 F.2d 386, 392 (5th Cir. 1992)).

“In order to find a municipality liable for a policy based on a pattern, that pattern must have

occurred for so long or so frequently that the course of conduct warrants the attribution to the

governing body of knowledge that the objectionable conduct is the expected, accepted practice of

city employees.” Davidson v. City of Stafford, 848 F.3d 384, 396 (5th Cir. 2017). “Showing a

pervasive pattern is a heavy burden.” Sanchez v. Young County, 956 F.3d 785, 793 (5th Cir.), cert.

denied, 141 S. Ct. 901 (2020). “A pattern requires similarity, specificity, and sufficiently

numerous prior incidents,” based on the context of the incident and the City’s police force.

Davidson, 848 F.3d at 396–97. Alleging two dissimilar incidents, over an eight-year period,

involving police using force in the fourth-largest city in the United States, was insufficient to plead

a practice so persistent and widespread as to have the force of law as a municipal policy. See, e.g.,

Carnaby v. City of Houston, 636 F.3d 183, 189–90 (5th Cir. 2011) (finding no pattern from two

reports of violations of a policy in four years in Houston); Peterson, 588 F.3d at 851 & n.4 (finding

no pattern from 27 complaints of excessive force over four years in Fort Worth); Pineda v. City of

Houston, 291 F.3d 325, 329 (5th Cir. 2002) (finding no pattern from 11 incidents of warrantless

searches in Houston).

C. Qualified Immunity

“Qualified immunity protects government officials from civil liability in their individual

capacity to the extent that their conduct does not violate clearly established statutory or

constitutional rights.” Garcia v. Blevins, 957 F.3d 596, 600 (5th Cir. 2020) (quoting Cass v. City

of Abilene, 814 F.3d 721, 728 (5th Cir. 2016)); see also Pearson v. Callahan, 555 U.S. 223, 231

(2009). When a defendant invokes qualified immunity, “the burden shifts to the plaintiff to show

that the defense is not available.” Cooper v. Brown, 844 F.3d 517, 522 (5th Cir. 2016) (citation

omitted).

A plaintiff seeking to overcome qualified immunity must show: “(1) that the official

violated a statutory or constitutional right, and (2) that the right was ‘clearly established’ at the

time of the challenged conduct.” Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011); see also Roque v.

Harvel, 993 F.3d 325, 331 (5th Cir. 2021). “These steps may be considered in either order.”

Shumpert v. City of Tupelo, 905 F.3d 310, 320 (5th Cir. 2018).

The first prong requires the plaintiff to point to facts that could support a finding of a

constitutional rights violation. Pearson, 555 U.S. at 232. The second prong requires the plaintiff

to show that “‘the state of the law’ at the time of an incident provided ‘fair warning’ to the

defendants ‘that their alleged [conduct] was unconstitutional.’” Tolan v. Cotton, 572 U.S. 650,

656 (2014) (alterations in original) (citation omitted). In other words, “[t]o defeat qualified

immunity, a plaintiff must demonstrate that ‘it would be clear to a reasonable officer that his

conduct was unlawful in the situation he confronted.’” Shumpert, 905 F.3d at 321 (emphasis

omitted) (quoting Hernandez v. United States, 785 F.3d 117, 120 (5th Cir. 2015) (en banc)). “In

determining what constitutes clearly established law, th[e] court first looks to Supreme Court

precedent and then [to Fifth Circuit precedent]. If there is no directly controlling authority, [the]

court may rely on decisions from other circuits to the extent that they constitute ‘a robust consensus

of cases of persuasive authority.’” Shumpert, 905 F.3d at 320 (citations omitted).

At the motion to dismiss stage, “a plaintiff seeking to overcome qualified immunity 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.” Backe v. LeBlanc, 691 F.3d 645, 648 (5th Cir. 2012). “After the district court finds

a plaintiff has so pleaded, if the court remains unable to rule on the immunity defense without

further clarification of the facts, it may issue a discovery order narrowly tailored to uncover only

those facts needed to rule on the immunity claim.” Zapata v. Melson, 750 F.3d 481, 485 (5th Cir.

2014) (emphasis omitted) (citations and internal quotation marks omitted).

D. The Declaratory Judgment Act

The Declaratory Judgment Act, 28 U.S.C. § 2201, allows a federal court to issue

declaratory relief “[i]n a case of actual controversy within its jurisdiction.” 28 U.S.C. § 2201(a).

The court may issue a declaratory judgment when “the facts alleged, under the circumstances,

show that there is a substantial controversy, between parties having adverse legal interests, of

sufficient immediacy and reality.” Md. Cas. Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273

(1941). The Declaratory Judgment Act “is an enabling act, which confers discretion on the courts

rather than an absolute right on a litigant.” Sherwin–Williams Co. v. Holmes County, 343 F.3d

383, 389 (5th Cir. 2003). “The Declaratory Judgment Act has been understood to confer on federal

courts unique and substantial discretion in deciding whether to declare the rights of litigants.” Id.

“In the declaratory judgment context, the normal principle that federal courts should adjudicate

claims within their jurisdiction yields to considerations of practicality and wise judicial

administration.” Id.

III. Analysis

A. The City of Houston

The crux of Lee’s claim is that he did not unlawfully restrain Medrano and Alvarez and

that the City of Houston Police Officers lacked probable cause to arrest him. To assert a claim

against the City of Houston, Lee must allege an official policy or custom, promulgated by an

official policymaker, that violated his constitutional rights. Monell, 436 U.S. at 691. A

municipality may not be held liable under § 1983 based on vicarious liability for the acts of its

employees. Id.

The operative complaint asserts the following bases for municipal liability:

J. The City of Houston through its Police Chain of Command under the aegis of the

Chief of Police who is a policymaker for City in the matters of pole training and

supervision, investigated through its supervising officers the matters surrounding

the February 28, 2019 events at 5504 Ardmore and ratified Chapman’s and

Matthews’ noncompliance with City policies and/or statutes.

K. The City of Houston failed to adequately train or supervise Chapman and/or

Matthews in the Texas Penal Code or Code of Criminal Procedure, specifically on

issues of defining and identifying TPC 22.02 Probable Cause.

L. The City of Houston has a widespread practice of permitting each officer to

define probable cause and even coerce witnesses to file charges to coverup for

police misconduct.

(Docket Entry No. 16 at 19). Lee has failed allege facts sufficient to support a plausible inference

that the City has a policy, pattern, or practice of allowing its officers or employees to define

probable cause beyond its constitutional limits, or to “coerce witnesses to file charges to coverup

for police misconduct.”

Nor has Lee sufficiently alleged facts to state a failure-to-train claim under § 1983. To do

so, Lee must allege facts that, if proven true, show three elements: “(1) that the municipality's

training procedures were inadequate”; “(2) that the municipality was deliberately indifferent in

adopting its training policy”; “and (3) that the inadequate training policy directly caused the

violations in question.” Ratliff v. Aransas County, 948 F.3d 281, 285 (5th Cir. 2020) (quoting

reference omitted). “Municipal liability doesn't attach merely because ‘a particular officer may be

unsatisfactorily trained’ or ‘an otherwise sound program has occasionally been negligently

administered.’” Taylor, 488 F. Supp. 3d at 535 (quoting City of Canton v. Harris, 489 U.S. 378,

390–91 (1989)). And proof that the plaintiffs’ injury “could have been prevented if the officer had

received better or additional training cannot, without more, support liability.” Roberts v. City of

Shreveport, 397 F.3d 287, 293 (5th Cir. 2005).

To survive the motion to dismiss, Lee “must allege with specificity how the training

program is defective” as to “the tasks the particular officer[s] must perform.” Taylor, 488 F. Supp.

3d at 535. The operative complaint makes a conclusory allegation that the City failed to adequately

train its police officers; the complaint “neither alleges specific facts about the training protocols in

[the City of Houston] nor describes any deficiencies in the program in light of [the identified police

officers’] assigned duties.” Id. Lee has not “identified a specific training program or shown how

it is inadequate.” See Ratliff, 948 F.3d at 285 (the allegation that “‘a deficiency in training actually

caused [the defendants] to violate [the plaintiff's] constitutional rights’ . . . does not state a claim

for relief and warrants dismissal under Rule 12(b)(6)”).

Because the complaint fails to allege a claim for municipal liability, the City of Houston’s

motion to dismiss, (Docket Entry No. 22), is granted. To the extent Lee seeks to amend his

complaint to plead facts relating to municipal liability, the motion is denied with prejudice because

amendment would be futile. Lee’s allegations are directed only against individual City employees.

That is precisely the type of claim prohibited under Monell. See 436 U.S. at 691.

B. The Officers

Officers Chapman and Matthews seek to dismiss on the basis of qualified immunity.

(Docket Entry No. 23). To survive the motion to dismiss, Lee must show: “(1) that the [officers]

violated a statutory or constitutional right, and (2) that the right was ‘clearly established’ at the

time of the challenged conduct.” Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011); see also Roque v.

Harvel, 993 F.3d 325, 331 (5th Cir. 2021).

The Fourth Amendment prohibits unreasonable seizures. U.S. CONST. amend. IV. “Under

the Fourth Amendment, a seizure occurs when, under the totality of the circumstances, a

reasonable person would have thought he was not free to leave.” Keller v. Fleming, 952 F.3d 216,

222 (5th Cir. 2020) (citing Michigan v. Chesternut, 486 U.S. 567, 572 (1988)). “[W]henever a

police officer accosts an individual and restrains his freedom to walk away, he has seized that

person.” Terry v. Ohio, 392 U.S. 1, 16 (1968) (internal quotations omitted). “Absent probable

cause, warrantless searches and seizures are presumptively invalid or ‘per se unreasonable under

the Fourth Amendment—subject only to a few specifically established and well delineated

exceptions.’” Keller, 952 F.3d at 223 (quoting Katz v. United States, 389 U.S. 347, 357 (1967)).

Because there is no question that the facts alleged pleaded a seizure—Lee was arrested—

the “relevant question . . . is . . . whether a reasonable officer could have believed [the seizure] to

be lawful, in light of clearly established law and the information the . . . officers possessed.”

Anderson v. Creighton, 483 U.S. 635, 641 (1987). “In other words, Plaintiffs must point this court

to a legislative directive or case precedent that is sufficiently clear such that every reasonable

official would have understood that what he is doing violates that law.” Keller, 952 F.3d at 225

(citing Reichle v. Howards, 566 U.S. 658, 664 (2012)). “Fourth Amendment reasonableness ‘is

predominantly an objective inquiry.’” al-Kidd, 563 U.S. at 736 (citation omitted). The court must

“ask whether ‘the circumstances, viewed objectively, justify [the challenged] action,’” and “[i]f

so, that action was reasonable ‘whatever the subjective intent’ motivating the relevant officials.”

Id. (quoting Scott v. United States, 436 U.S. 128, 138 (1978); Whren v. United States, 517 U.S.

806, 814 (1996)).

To avoid dismissal on the basis of qualified immunity, it is Lee’s burden to point to

precedent that under the circumstances and clearly established law, Officers Chapman and

Matthews’s seizure was unreasonable. Lee cannot meet this burden. He states that the Officers

did not have probable cause because he told them that the AT&T crew members had not

complained or demanded release. (Docket Entry No. 16 at 13). That is not enough. The

employees had been in the backyard of his home for hours, with the gate locked. They could not

get out, and there is no evidence of a clear alternate way to leave Lee’s enclosed property. When

the police officers arrived, they asked him to unlock and open the gate. Lee repeatedly refused.

Lee has not pleaded facts showing that the officers’ response to his continued refusal to release the

crew members violated his constitutional rights or that a violation was clearly established. The

Houston Police Officers’ motion to dismiss, (Docket Entry No. 23), is granted.

Cc. AT&T

Lee’s seeks relief against AT&T under the Declaratory Judgment Act. Under the Act, Lee

cannot obtain money damages against AT&T; he must “show that there is a substantial

controversy, between parties having adverse legal interests, of sufficient immediacy and reality,”

which can be cured by a declaratory judgment. Md. Cas. Co., 312 U.S. at 273. Lee cannot even

establish a claim against AT&T to survive Rule 12(b)(6) dismissal, let alone show a sufficient

controversy under the Declaratory Judgment Act. There is no live dispute between Lee and AT&T

or its employees. Lee faces no “imminent threat of harm.” MedImmune, Inc. v. Genentech, Inc.,

549 U.S. 118, 128 (2007). AT&T’s motion to dismiss, (Docket Entry No. 25), is granted.

Ill. Conclusion

The motions to dismiss, (Docket Entry Nos. 22, 23, 25), are granted. This case is dismissed

with prejudice, because amendment would be futile. Final judgment will be entered separately.

SIGNED on March 31, 2023, at Houston, Texas.

LV Con

Tee HH. Rosenthal

United States District Judge

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