# Pierce v. Lubbock Police Department

> District Court, N.D. Texas · February 20, 2025

URL: https://www.frixlaw.com/law-library/cases/10803544

## Case

- **Court:** District Court, N.D. Texas
- **Decided:** February 20, 2025
- **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/10803544

## How later opinions describe it (automated extraction)

- holding that each defendant’s actions in a Section 1983 case must be considered individually
- observing that “the right to make an arrest necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it” (internal quotation marks and citation omitted)
- applying Graham factors and noting that first factor favored plaintiff, where defendant detained him on “suspicion that he had sold marijuana on some prior date—not a trivial offense, but also not one to put any person in real or immediate danger”

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
LUBBOCK DIVISION
ALEXANDER ERIC PIERCE, §
BOP No. 69701-510, §
§
Plaintiff, §
§
v. § 5:24-CV-83-BR
§
LUBBOCK POLICE DEPARTMENT, et §
al., §
§
Defendants. §
MEMORANDUM OPINION AND ORDER OF DISMISSAL
Proceeding pro se and in forma pauperis, Plaintiff Alexander Eric Pierce (“Pierce”) has
filed this action under 42 U.S.C. § 1983, claiming violations of his constitutional rights arising
during his March 19, 2023, arrest. (ECF 1). Pierce filed his Complaint on March 29, 2024, and the
United States District Judge transferred this case to the undersigned United States Magistrate Judge
for further proceedings. (ECF 1, 10). Pierce has consented to proceed before the undersigned
Magistrate Judge. (ECF 7). After considering the allegations in Pierce’s Complaint, his responses
to the Court’s questionnaire, authenticated records provided by Lubbock County, and applicable
law, the Court concludes that Pierce’s claims must be DISMISSED pursuant to 28 U.S.C. §§
1915(e)(2)(B) and 1915A(b), for the reasons stated below.
I. STANDARD OF REVIEW
A court must dismiss a complaint filed in forma pauperis by a prisoner against a
government entity or employee if the court determines that the complaint is frivolous or malicious,
fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant
who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B) (2017); see also Section 1915A(b)
(applying section to any suit by a prisoner against certain governmental entities, regardless of
whether the prisoner is proceeding in forma pauperis). A frivolous complaint lacks any arguable
basis, either in fact or in law, for the wrong alleged. Neitzke v. Williams, 490 U.S. 319, 325 (1989).
A complaint has no arguable basis in fact if it rests upon clearly fanciful or baseless factual
contentions, and similarly lacks an arguable basis in law if it embraces indisputably meritless legal

theories. See id. at 327; Geiger v. Jowers, 404 F.3d 371, 373 (5th Cir. 2005). When analyzing a
prisoner’s complaint, the court may consider reliable evidence such as the plaintiff’s allegations,
responses to a questionnaire, and authenticated prison records. Wilson v. Barrientos, 926 F.2d 480,
483–84 (5th Cir. 1991); see also Berry v. Brady, 192 F.3d 504, 507 (5th Cir. 1999) (explaining
that responses to a questionnaire or testimony given during an evidentiary hearing are incorporated
into the plaintiff’s pleadings).
In evaluating the sufficiency of a complaint, the court accepts well-pleaded factual
allegations as true, but does not credit conclusory allegations or assertions that merely restate the
legal elements of a claim. Chhim v. Univ. of Tex. at Austin, 836 F.3d 467, 469 (5th Cir. 2016).

While courts hold pro se plaintiffs to a more lenient standard than attorneys when analyzing
complaints, such plaintiffs still must plead factual allegations that raise the right to relief above a
speculative level. Id. (citing Taylor v. Books A Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002)).
II. LEGAL ANALYSIS
A. Factual Background.1
Pierce’s Complaint states that, on March 19, 2023, Pierce was shopping in a WalMart store
in Lubbock, Texas, where he was abruptly tackled in an aisle by Defendant Michael Taylor

1These background facts are taken from Plaintiff’s Complaint (ECF 1) and questionnaire responses (ECF
17), and are assumed to be true for the purpose of evaluating the merits of Plaintiff’s causes of action.
(“Taylor”) of the Lubbock Police Department (“LPD”). (ECF 1 at 6). He contends that Taylor
threw him to the ground, jumped on his back, and proceeded to tase him repeatedly. (Id.). At that
time, Defendant LPD Officer Jonathan Ortiz (“Ortiz”) put his knee on Pierce’s neck and “started
punching him in the face and all over his head.” (Id.) Pierce tried to cover his head as Taylor
continued to tase him and Ortiz continued to punch him. He claims that Defendant LPD officer

Jasmine Garcia (“Garcia”) failed to intervene after she arrived on the scene. (Id.).
The police report attached to Pierce’s Complaint provides additional details.2 The report
states that Pierce was observed by security removing a saw blade, knife and pair of pliers from
their packaging and concealing them on his person, which Pierce does not dispute. (Id. at 7; ECF
17 at 4).3 As Officer John Murray (“Murray”) approached Pierce, Pierce immediately fled. When
Pierce attempted to run by Taylor, Taylor “grabbed” Pierce and “took [him] to the ground.” (ECF
1 at 7). The report states that Pierce refused orders to put his hands behind his back, that he resisted
arrest, and there was a struggle to place Pierce in handcuffs.4 (Id.) Murray suffered an injury during
the struggle. (Id.). After Pierce was cuffed and removed to a back office in WalMart, he initially

2Courts are permitted to consider attachments to the complaint when conducting the screening process
pursuant to § 1915(e)(2)(B) because, in determining whether a plaintiff failed to state a claim, courts utilize
the same standard as is used to analyze a motion to dismiss brought pursuant to Federal Rule of Civil
Procedure 12(b)(6). See Lewis v. Guillot, 583 F. App’x 332 (5th Cir. 2014); see also Brown Morgan v. City
of Fort Worth, Tex., 2013 WL 3196580 (N.D. Tex. June 25, 2013); Brown v. Temple, 2013 WL 1335750
(M.D. La. April 1, 2013).
3Page citations to Pierce’s questionnaire responses refer to the electronic page number assigned by the
Court’s electronic filing system.
4Pierce admits in his questionnaire responses that he had removed the blade, knife and pliers from their
packaging and concealed them on his person, but states that he left the packaging in the cart. He states that
he was charging his cell phone with an external charger in the cart, with the intention of adding money to
his WalMart app in order to pay for the items. He admits, however, that he began to run from the officers
because he was aware he was behind on payments for tickets. He said he was tackled before he “could also
abandon the pliers in [his] pocket.” He states that he was tackled by Taylor, and that, while he was on the
ground being tased and punched, he “was panicking and trying to cover [his] face.” (ECF 17 at 5, 6).
refused to identify himself, but later provided a fictitious name and date of birth, which again
Pierce does not dispute. (Id.; ECF 17 at 7). During transport to the Lubbock County Detention
Center (“LCDC”), Pierce attempted to slip out of his handcuffs, causing transport to be halted
while Pierce was re-cuffed.5 At LCDC, Pierce gave his true name and officers discovered there
were outstanding warrants for his arrest. (ECF 1 at 7). Pierce ultimately was charged with the

following crimes: (1) robbery, (2) tampering with/fabricating physical evidence with intent to
impair, (3) evading arrest detention, (4) resisting arrest search or transport, and (5) failure to ID
fugitive intent/give false information. Pierce asserts that a grand jury refused to indict him on the
charges, so they were dismissed.
Pierce filed this lawsuit on March 29, 2024, claiming that Taylor and Ortiz used excessive
force when arresting him, and that Garcia failed to intervene in the unlawful use of force. (ECF 1).
Although Murray was not named in the Complaint, Pierce stated in his questionnaire responses
that he wished to add Murray to the excessive force claim, although he does not recall what, if
anything, Murray did. (ECF 17 at 2-4).

B. Claims Against Defendants in Their Official Capacities.
Pierce states that he is suing Defendants in their individual and official capacities. (ECF 17
at 4). Claims for money damages against Defendants in their official capacities are without merit
in that they are simply another way of suing Lubbock County, and, therefore, the State of Texas.
See Kentucky v. Graham, 473 U.S. 159, 165-66 (1985); see also Hafer v. Melo, 502 U.S. 21, 25
(1991) (“Suits against state officials in their official capacity therefore should be treated as suits
against the State.”). It is well established that suits for monetary damages against state officials in

5Pierce does not dispute this, but states that he was experiencing “extreme fentanyl withdrawal symptoms”
which caused intense cramping in his arms and legs, so he was trying to move into a position that did not
hurt. (ECF 17 at 7).
their official capacities cannot succeed under Section 1983. See Almond v. Tarver, 468 F. Supp.
2d 886, 892-95 (E.D. Tex. 2006) (collecting authorities and holding that claim against state official
in his official capacity was barred by sovereign and Eleventh Amendment immunities). In addition,
state officials acting in their official capacities are not “persons” under Section 1983. See Will v.
Mich. Dep’t of State Police, 491 U.S. 58, 70-71 (1989). Therefore, the claims against Defendants

in their official capacities are dismissed.
C. Claim Against Lubbock Police Department.
Pierce names LPD as a Defendant. (ECF 1). Because LPD is a non-jural entity, however,
Pierce cannot allege an actionable claim against it. “Federal courts in Texas have uniformly held
that entities without a separate jural existence are not subject to suit.” Torti v. Hughes, No. 3:07-
CV-1476-M, 2007 WL 4403983, at *2 (N.D. Tex. Dec. 17, 2007); see Jacobs v. Port Neches
Police Dep’t, 915 F. Supp. 842, 844 (E.D. Tex. 1996) (“In Texas, county sheriff’s and police
departments generally are not legal entities capable of being sued, absent express action by the
superior corporation (the county, in the case of the sheriff’s department) ‘to grant the servient

agency with jural authority.’” (quoting Darby v. Pasadena Police Dep’t, 939 F.2d 311, 313 (5th
Cir. 1991))).
LPD, as a police department, is not a separate jural entity subject to suit. See, e.g., Darby,
939 F.2d at 313 (explaining that a political subdivision such as a police department only has the
capacity to be sued if it “enjoy[s] a separate legal existence” (quoting Mayes v. Elrod, 470 F. Supp.
1188, 1192 (N.D. Ill 1979))); Maxwell v. Henry, 815 F. Supp. 213, 215 (S.D. Tex. 1993)
(dismissing plaintiff’s claims against the Houston Police Department because it “lacks legal
existence and the capacity to be sued”). Pierce pleads no facts demonstrating a grant of jural
authority to LPD. In addition, LPD is not liable for the actions of its employees because 42 U.S.C.
§ 1983 does not impose vicarious liability. Bigford v. Taylor, 834 F.2d 1213, 1220 (5th Cir. 1988).
In his questionnaire, Pierce was warned that LPD was a non-jural entity and he needed to name
proper jural defendants. (ECF 17 at 3). In his response, Pierce added Murray to this lawsuit. (Id.).
Because LPD is a non-jural entity, the Court dismisses all claims against LPD as frivolous.
D. Excessive Force Claim Against Defendants Taylor, Murray and Ortiz.

Pierce alleges that Taylor, Murray and Ortiz used excessive force when arresting him.
Pierce’s use of force claim arises under the Fourth Amendment. Graham v. Connor, 490 U.S. 386,
395 (1989) (“Today we make explicit what [has been] implicit ... and hold that all claims that law
enforcement officers have used excessive force—deadly or not—in the course of an arrest,
investigatory stop, or other ‘seizure’ of a free citizen should be analyzed under the Fourth
Amendment and its ‘reasonableness’ standard....”); Williams v. Bramer, 180 F.3d 699, 704 (5th
Cir. 1999) (holding that plaintiff asserted a valid Fourth Amendment claim where he alleged
defendant maliciously choked him after arresting plaintiff and searching his vehicle, but prior to
transporting him to jail). To sufficiently state an excessive force claim, an arrestee such as Pierce

must demonstrate that he suffered: “(1) an injury that (2) resulted directly and only from the use
of force that was excessive to the need and that (3) the force used was objectively unreasonable.”
Hamilton v. Kindred, 845 F.3d 659, 662 (5th Cir. 2017) (quoting Flores v. City of Palacios, 381
F.3d 391, 396 (5th Cir. 2004)).
1. Injury and Causation.
An arrestee must allege more than de minimis injury to justify an excessive force finding,
and the injury “must be evaluated in the context in which the force was deployed.” Glenn v. City
of Tyler, 242 F.3d 307, 314 (5th Cir. 2001) (citing Williams, 180 F.3d at 703). The injury
requirement is “a sliding scale, not a hard cutoff.” Solis v. Serrett, 31 F.4th 975, 981 (5th Cir. 2022)
(quoting Buehler v. Dear, 27 F.4th 969, 982 (5th Cir. 2022). This approach treats the degree of
injury—even if minor—as interrelated to the reasonableness and excessiveness of the officer’s
force. “[A]lthough a de minimis injury is not cognizable, the extent of injury necessary to satisfy
the injury requirement is ‘directly related to the amount of force that is constitutionally permissible
under the circumstances.’” Solis, 31 F.4th at 981 (quoting Alexander v. City of Round Rock, 854

F.3d 298, 309 (5th Cir. 2017). Accordingly, “[a]ny force found to be objectively unreasonable
necessarily exceeds the de minimis threshold, and, conversely, objectively reasonable force will
result in de minimis injuries only.” Brown v. Lynch, 524 F. App’x 69, 79 (5th Cir. 2013) (per
curiam). “[A]s long as a plaintiff has suffered ‘some injury,’ even relatively insignificant injuries
and purely psychological injuries will prove cognizable when resulting from an officer’s
unreasonably excessive force.” Id. at 79; see also Solis, 31 F.4th at 972. This means that if the
officer’s force was unreasonably excessive, Pierce need only show “some injury.” He alleges that,
as a result of the use of force, he had to have one tooth pulled, lost two fillings (one in the extracted
tooth) and received approximately 1.5 years of medication and treatment for post-traumatic stress.

(ECF 17 at 8-9). While Pierce claims to have been in severe pain during the use of force, he alleges
no other injuries lasting beyond the initial incident.
Pierce must allege facts showing that each Defendant violated his civil rights on an
individual basis rather than as a collective action. Meadours v. Ermel, 483 F.3d 417, 422 (5th Cir.
2007); see also Stewart v. Murphy, 174 F.3d 530, 537 (5th Cir. 1999) (holding that each
defendant’s actions in a Section 1983 case must be considered individually). Pierce makes no
specific factual allegations against Murray, beyond noting that Murray was injured in the incident.
(ECF 1 at 7; ECF 17 at 2). He alleges that Ortiz hit him in the head, which could have caused the
injuries to Pierce’s mouth. While it is unlikely that sitting on Pierce’s back and deploying a taser
caused Pierce to lose a tooth and fillings, it is conceivable that Taylor could have caused the
injuries by his initial tackle of Pierce. Therefore, in construing Pierce’s factual allegations liberally
during the screening process, the Court finds that Pierce has sufficiently alleged “some injury”
against Taylor, Ortiz and Murray individually for the purposes of his excessive force claim.
2. Defendants’ Actions Were Objectively Reasonable.

The Court next must determine if the acts of Taylor, Ortiz and Murray were objectively
reasonable. “The objective reasonableness of the force ... depends on the facts and circumstances
of the particular case, such that the need for force determines how much force is constitutionally
permissible.” Bush v. Strain, 513 F.3d 492, 501 (5th Cir. 2008). In evaluating the objective
reasonableness of an officer’s use of force, courts consider the following nonexclusive criteria,
known as the Graham factors: “the severity of the crime at issue, whether the suspect poses an
immediate threat to the safety of the officers or others, and whether he is actively resisting arrest
or attempting to evade arrest by flight.” Darden v. City of Fort Worth, 880 F.3d 722, 728-29 (5th
Cir. 2018) (quoting Graham, 490 U.S. at 396).

a. Severity of the Crime.
The first Graham factor, considered alone, supports a finding that the force applied by
Defendants Taylor, Murray and Ortiz was excessive. Although Pierce’s subsequent actions—
including fleeing from the officers—escalated the gravity of the circumstances surrounding the
incident and the degree of force appropriate under those conditions, Pierce initially was, at most,
a shoplifting suspect. See, e.g., Brown, 524 F. App’x at 80 (applying Graham factors and noting
that first factor favored plaintiff, where defendant detained him on “suspicion that he had sold
marijuana on some prior date—not a trivial offense, but also not one to put any person in real or
immediate danger”); Molina v. Collin Cnty., No. 4:17-CV-00017, 2017 WL 5441833, at *3 (E.D.
Tex. Nov. 14, 2017) (concluding the first Graham factor favored arrestee, where officers had not
witnessed him commit a crime and arrestee was merely a suspect to a crime). Out of an abundance
of caution and construing the facts in Pierce’s favor, the Court finds that the first Graham factor
favors Pierce, despite the fact that he was seen by security pocketing items that could be used as
weapons.

b. Immediate safety threat.
Defendants were told that Pierce was seen hiding a knife, a saw blade and pliers on his
person, so it was eminently reasonable to believe that he posed an immediate threat to their safety,
especially considering his immediate attempt to evade them and run towards Taylor such that
Taylor was able to “take him down”. (ECF 1 at 7). See Breland v. City of Wiggins, No. 1:17cv276-
HSO-JCG, 2019 WL 1281249, at *9 (S.D. Miss. Mar. 20, 2019) (finding that defendant had
objectively reasonable grounds to believe plaintiff posed an immediate threat to officers’ safety,
where plaintiff dug through pockets of jacket, which had not been searched, and actively resisted
defendant’s efforts to confiscate and search the jacket). The second Graham factor weighs in

Defendants’ favor.
c. Resisting arrest.
It is undisputed that Pierce began running as soon as he saw Murray starting to approach
him. (ECF 1 at 7; ECF 17 at 5). The apprehension of a fleeing suspect necessarily involves some
degree of physical contact. Bush, 513 F.3d at 502 (observing that “the right to make an arrest
necessarily carries with it the right to use some degree of physical coercion or threat thereof to
effect it” (internal quotation marks and citation omitted)). Moreover, due to Pierce’s flight and
resistance, officers had not been able to determine whether Pierce still possessed the knife and saw
blade he was seen concealing, thereby posing a risk to officer safety and providing further
justification for the use of some degree of force. See, e.g., Studzinski v. City of Austin, No. A-19-
CV-709-ML, 2020 WL 8674122, at *7 (W.D. Tex. Dec. 28, 2020) (weighing Graham factors in
determining whether use of force was constitutionally unreasonable, including the fact that the
suspect had not been searched and was suspected of having a weapon). “Officers may consider a
suspect’s refusal to comply with instructions … in assessing whether physical force is needed to

effectuate the suspect’s compliance.” Deville v. Marcantel, 567 F.3d 156, 167 (5th Cir. 2009).
Pierce alleges that Taylor tackled him, sat on his back and tased him five or six times. He
claims that Ortiz punched him in the head numerous times, and that Murray was somehow
involved. (ECF 17 at 3, 6). He asserts that he “was in a frightened state… could barely breathe,
and [was] in incredible pain.” (Id.). Pierce’s brief difficulty breathing as Taylor allegedly used his
body weight to hold Pierce down for handcuffing is insufficient to demonstrate an objectively
unreasonable use of force. See Est. of Armstrong ex rel. Armstrong v. Vill. of Pinehurst, 810 F.3d
892, 906 n.11 (4th Cir. 2016) (“Applying just enough weight to immobilize an individual
continuing to struggle during handcuffing is not excessive force.” (internal quotation marks and

alterations omitted)); Geba v. Norris, No. 2:14cv612, 2016 WL 8730898, at *5-6 (E.D. Va. Apr.
4, 2016) (finding plaintiff’s allegation that defendant tackled her and sat on her back while
handcuffing her after she attempted to flee, resulting in difficulty breathing, did not state sufficient
excessive force claim). While the Court recognizes that breathing trouble may qualify as a stand-
alone injury, it is insufficient under these circumstances to sustain Pierce’s excessive force claim
against Taylor. See, e.g., Williams, 180 F.3d at 704 (finding no cognizable injury, and therefore no
constitutional violation, when suspect’s dizziness and temporary inability to breath or swallow
occurred incident to being choked during a search of his mouth for contraband).
Nor did use of a taser by Taylor constitute excessive force. The “question of whether [use
of] a taser constitutes excessive force ... turns on whether the taser is used while the suspect is
resisting, as opposed to when the suspect is either not resisting or has ceased resisting.” Pratt v.
Harris Cnty., 2015 WL 224945, at *10 (S.D. Tex. Jan. 15, 2015). As such, “force, including the
use of a taser, is often appropriate … when the arrestee is resisting or violent.” Id. (citing Poole v.

City of Shreveport, 691 F.3d 624, 629 (5th Cir. 2012)). In Poole, the court also noted that the
“situation was ‘tense, uncertain, and rapidly evolving,’ and the officers’ decision to use force to
restrain Poole was objectively reasonable. Id. (citing Graham, 490 U.S. at 396). The Fifth Circuit
further reasoned that Poole posed an immediate threat to the officers’ safety and was actively
resisting the officer’s instruction by failing to turn around and be handcuffed. Id. Similarly, here,
the situation was “tense, uncertain, and rapidly evolving.” Pierce admits he was using his arms to
fend off Ortiz, rather than complying with Defendants’ orders to submit to handcuffs. The “great
weight of Texas authority indicates that pulling out of an officer’s grasp is sufficient to constitute
resisting arrest” for purposes of Texas Penal Code § 38.03(a)—and, it stands to reason, for

purposes of excessive-force analysis.” Buehler, 27 F.4th at 984. Therefore, it is not objectively
unreasonable that Defendants believed Pierce to be resisting their instructions and their efforts to
handcuff him as he attempted to fight off Taylor and Ortiz. In addition, there is no allegation that
any of the Defendants continued applying force after Pierce was handcuffed.
“The reasonableness of a particular use of force must be judged from the perspective of a
reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Graham, 490 U.S.
at 396. “The calculus of reasonableness must embody allowance for the fact that police officers
are often forced to make split-second judgments--in circumstances that are tense, uncertain, and
rapidly evolving—about the amount of force that is necessary in a particular situation.” Id. at 396-
97. Pierce admits that he immediately ran from officers and fought them as they attempted to
subdue him. On the facts alleged, Pierce has wholly failed to demonstrate that the use of force
while handcuffing him (a suspect who had fled from officers and was known to have a weapon)
was excessive to the need and that rises to the level of an actionable constitutional claim. Williams,
180 F.3d at 704. The Court therefore dismisses Pierce’s use of force claim against Defendants

Taylor, Murray and Ortiz for failure to state a claim.
E. Bystander Liability Claim Against Garcia.
Pierce brings a bystander liability claim against Garcia, alleging that she failed to protect
him from the above-described actions of Taylor, Murray and Ortiz. Specifically, he states that she
“did not discourage or reprimand their behavior in any way.” (ECF 17 at 1). He further alleges that
she “approved” charges against him that later were dropped. (Id.).
The theory of bystander liability applies to Section 1983 claims for use of excessive force
against a pretrial detainee. See, e.g., Kitchen v. Dallas Cnty., Tex., 759 F.3d 468, 480 (5th Cir.
2014). To prevail on a theory of bystander liability, Pierce must show that Garcia “(1) knew a

fellow officer was violating an individual’s constitutional rights, (2) was present at the scene of
the constitutional violation, (3) had a reasonable opportunity to prevent the harm but nevertheless,
(4) chose not to act.” Joseph on behalf of Estate of Joseph v. Bartlett, 981 F.3d 319, 343 (5th Cir.
2020).
Pierce cannot prevail on a theory of bystander liability because he does not allege facts
showing that Garcia knew that the other Defendants were violating Pierce’s rights. Further, as
shown above, Pierce has not alleged a constitutional violation by the other Defendants. As a result,
he cannot prevail on a bystander liability claim against Garcia. It follows that an officer cannot be
held liable on a theory of bystander liability if the third party’s actions that he failed to prevent do
not, themselves, amount to a constitutional rights violation. See Griffin v. City of Sugarland, 787
F. App’x 244, 245 (Sth Cir. 2019) (“[B]ecause there was no violation of his constitutional rights,
[the plaintiff's] bystander liability theory also fails.” (citing Whitley v. Hanna, 726 F.3d 631, 646
(Sth Cir. 2013)). Lastly, Pierce has alleged no facts showing that Garcia (1) had the authority to
approve the charges against him; (2) that she, in fact, did so;° or (3) that merely “approving
charges” violates his constitutional rights. Accordingly, Pierce’s claims against Garcia are hereby
dismissed for failure to state a claim.
III. CONCLUSION
For the foregoing reasons it is, therefore, ORDERED that Pierce’s Complaint and all claims
therein are DISMISSED with prejudice as frivolous and for failure to state a claim in accordance
with 28 U.S.C. §§ 1915 and 1915A.
This is a consent case assigned to the undersigned United States Magistrate Judge under
28 U.S.C. § 636(c) with authority to enter judgment. This dismissal shall count as a qualifying
dismissal or “strike” under 28 U.S.C. § 1915 and Adepegba v. Hammons, 103 F.3d 383 (Sth Cir.
1996). See Lomax v. Ortiz-Marquez, 140 S. Ct. 1721, 1723 (2020). Any appeal shall be to the
Court of Appeals for the Fifth Circuit under 28 U.S.C. § 636(c)(3).
Judgment shall be entered accordingly.
IT IS SO ORDERED.
ENTERED on February 20, 2025.

UNITED STATES MAGISTRATE JUDGE

report provided by Pierce shows that Taylor, rather than Garcia, determined the charges. (ECF | at 7).
13

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10803544. Public record. Not legal advice.