Winegarner v. City of Irving Texas

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

DAVID WINEGARNER, §

§

Plaintiff, §

§

v. § Civil Action No. 3:24-cv-02171-K-BT

§

CITY OF IRVING TEXAS, et al., §

§

Defendants. §

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Before the Court in this pro se civil rights action under 42 U.S.C. § 1983 are

three separate Motions to Dismiss filed by (1) the Irving Police Department (IPD

or the “Department”) (ECF No. 9); (2) the City of Irving (the “City”) (ECF No. 12);

and (3) IPD Officers Preston Hammel, Travis Reyes, Justin Ivey, and John Phillips

(the “Officer Defendants” or the “Officers”) (ECF No. 10). For the reasons stated,

the District Judge should GRANT the motions to dismiss under Federal Rule of

Civil Procedure 12(b)(6) and DISMISS all of Winegarner’s claims against the

Department, the City, and the Officers.

Factual Background

Plaintiff David Winegarner, proceeding pro se, initiated this lawsuit on

August 23, 2024 against the Department, the City, and IPD Officers Hammel,

Reyes, Ivey, and Phillips. See generally Compl. (ECF No. 3). Winegarner’s claims

arise from his August 23, 2022 arrest, where he alleges that the Officer Defendants

used “unlawful and unreasonable [] excessive force” to arrest him by placing his

“head up under [the] steering wheel, with [his seatbelt] harness on [his] left

shoulder, choking [his] throat [while] both of [the officers’] knees [were] on [his]

back.” Compl. 1, ¶ 1.1 Winegarner contends that the Officer Defendants’ use of force

was excess because he was not resisting arrest. Compl. ¶¶ 5, 31, 33, 36, 51.

The Defendants filed separate Motions to Dismiss. The Department’s

motion argues that Winegarner fails to allege facts establishing that IPD is a

separate legal entity with jural authority. See IPD Mot. 4 (ECF No. 9). The City’s

motion argues that Winegarner’s Complaint fails to plead a plausible claim for

municipal liability under Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978); fails

to state a claim for § 1983 failure to train or supervise; and fails to state a claim

under Title VI. See generally City’s Mot. (ECF No. 12). Lastly, the Officer

Defendants’ motion argues that Winegarner’s claims for wrongful arrest, excessive

force, and malicious prosecution are barred by qualified immunity, and he has

failed to state a claim for failure to intervene and selective enforcement. See

generally Officers’ Mot. (ECF No. 10).

Winegarner filed a consolidated response to the motions to dismiss (ECF

No. 14), and all Defendants joined in a consolidated Reply (ECF No. 15). Therefore,

the motions are ripe for determination.

1 Citations to “Compl. 1” are citations to the cover page of Winegarner’s complaint

that does not have a page number on the bottom right or a paragraph number. Any

citations to the Complaint other than the cover page will be referred to using the

respective paragraph number throughout the Complaint.

Legal Standards

To survive a Rule 12(b)(6) motion, a plaintiff’s complaint must contain

sufficient factual matter to state a claim for relief that is plausible on its face. Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “To be plausible, the complaint’s

‘[f]actual allegations must be enough to raise a right to relief above the speculative

level.’” In re Great Lakes Dredge & Dock Co. LLC, 624 F.3d 201, 210 (5th Cir. 2010)

(quoting Twombly, 550 U.S. at 555).

This pleading standard does not require “detailed factual allegations,” but it

does demand more than an unadorned accusation devoid of factual support.

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555).

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

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

misconduct alleged.” Id. at 678 (citing Twombly, 550 U.S. at 556). “[A] formulaic

recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at

555 (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). “While legal conclusions

can provide the framework of a complaint, they must be supported by factual

allegations.” Iqbal, 556 U.S. at 679. Where the facts do not permit the Court to infer

more than the mere possibility of misconduct, the complaint has stopped short of

showing that the plaintiff is plausibly entitled to relief. Id. at 678 (citing Twombly,

550 U.S. at 557).

When applying the plausibility standard, the Court “accepts all well-pleaded

facts as true, viewing them in the light most favorable to the plaintiff.” In re

Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007) (internal

quotation marks and citations omitted). But a court may not look beyond the

pleadings. Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir. 1999). Review is

“limited to the complaint, any documents attached to the complaint, and any

documents attached to the [motion to dismiss] that are central to the claim and

referenced by the complaint.” Smith v. Buffalo Wild Wings, 2021 WL 4265849, at

*2 (N.D. Tex. Sept. 20, 2021) (Fitzwater, J.) (citing Lone Star Fund V (U.S.), L.P.

v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010)); see also Inclusive

Communities Project, Inc. v. Heartland Cmty. Ass'n, Inc., 399 F. Supp. 3d 657,

665 (N.D. Tex. 2019) (“In ruling on [a Rule 12(b)(6)] motion, the court cannot look

beyond the pleadings.” (citing Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir.

1999))), aff'd, 824 F. App'x 210 (5th Cir. 2020).

Courts considering Rule 12(b)(6) motions generally hold pro se complaints

to less stringent standards than formal pleadings drafted by lawyers. Taylor v.

Books A Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002) (quoting Miller v.

Stanmore, 636 F.2d 986, 988 (5th Cir. 1981)). However, “despite [the] general

willingness to construe pro se filings liberally,” courts “still require pro se parties

to fundamentally abide by the rules that govern the federal courts.” E.E.O.C. v.

Simbaki, Ltd., 767 F.3d 475, 484 (5th Cir. 2014), as revised (Sept. 18, 2014)

(cleaned up). Therefore, a pro se plaintiff is not excused from the requirements to

“properly plead sufficient facts that, when liberally construed, state a plausible

claim to relief[.]” Id. (citations omitted).

Analysis

The Court addresses each of the motions to dismiss individually in the

following order: (I) the Department’s Motion; (II) the City’s Motion; (III) the

Officers’ Motion. The Court concludes that all three motions should be GRANTED.

I. Winegarner fails to state a claim against the Department.

The Department moves to dismiss Winegarner’s claims against it on the

ground that he has failed to allege that the Department has a jural existence and is

an entity that can be sued. See IPD Mot. 4.

“The capacity of an entity to sue or be sued ‘shall be determined by the law

of the state in which the district court is held.’” Darby v. Pasadena Police Dep’t,

939 F.2d 311, 313 (5th Cir. 1991) (quoting Fed. R. Civ. P. 17(b)). “Federal courts in

Texas have uniformly held that entities without a separate jural existence, such as

municipal police departments, are not subject to suit.” Grayson v. Dallas Police

Dep’t, 2023 WL 2286646, at *1 (N.D. Tex. Feb. 2, 2023), rec. accepted, 2024 WL

69160 (N.D. Tex. Jan. 4, 2024); accord Brodzki v. N. Richland Hills Police Dep’t.,

2010 WL 1685799, at *1 (N.D. Tex. Mar. 31, 2010) (“[A] police department is not a

jural entity that can be sued.”), rec. accepted, 2010 WL 1685798 (N.D. Tex. Apr.

19, 2010); see also Harris v. Longview Police Dept., 2019 WL 1907466, at *2 (E.D.

Tex. Mar. 26, 2019) (“The Longview Police Department, however, has no jural

existence and cannot be sued.”); Morales v. Carrillo, 2020 WL 3684864, at *23

(W.D. Tex. July 6, 2020) (“The Plaintiffs have failed to establish that [El Paso

Police Department] enjoys a separate, legal existence from the City of El Paso and,

therefore, [El Paso Police Department] cannot be separately sued.”), rec. accepted,

2021 WL 664854 (Feb. 19, 2021). “In order for a plaintiff to sue a city department,

it must ‘enjoy a separate legal existence.’” Darby, 939 F.2d at 313 (citations

omitted). “Therefore, ‘[u]nless the political entity that created the department has

taken “explicit steps to grant the servient agency with jural authority,” the

department lacks the capacity to sue or to be sued.’” Evans v. City of Dallas, 2017

WL 958607, at *6 (N.D. Tex. Mar. 13, 2017) (citations omitted). “The burden of

showing that the city or county department has the capacity to be sued rests on the

plaintiff.” Cortes v. Havens, 2014 WL 6861245, at *6 (N.D. Tex. Dec. 5, 2014)

(citation omitted).

Here, Winegarner fails to demonstrate or even allege that the Department is

a separate legal entity having jural authority. See Torti v. Hughes, 2007 WL

4403983, at *2 (N.D. Tex. Dec. 17, 2007) (dismissing the claims against the Grand

Prairie Police Department under 28 U.S.C. § 1915(e)(2) because the plaintiff failed

to allege or otherwise demonstrate it has a jural existence); Williams v. Dallas

Police Officer, 2021 WL 4552281, at *4 (N.D. Tex. Oct. 5, 2021) (dismissing

plaintiff’s claims against the Irving Police Department because it is a “non-jural

entit[y], and Plaintiff has neither alleged nor shown that [it has] been granted the

capacity to engage in litigation on [its] own”). Therefore, the District Judge should

DISMISS Winegarner’s claims against the Department under Rule 9(a) and

12(b)(6).

II. Winegarner fails to state a claim against the City.

The City moves to dismiss Winegarner’s § 1983 claim against it on the

grounds that he fails to adequately plead the elements of a Monell claim, a failure

to train or supervise claim, and a Title VI claim.

Winegarner Fails to Plead the Elements of a Monell Claim.

The City moves to dismiss Winegarner’s § 1983 claim asserted against it

because he does not plead “sufficient facts to establish either a constitutional

violation by the City or a policy, custom, or practice of the City that was the moving

force of a constitutional violation.” City’s Mot. 6–7.

A municipality is a “person” subject to liability under § 1983 only if

municipal employees inflicted the deprivation of a constitutional right pursuant to

an official policy or custom. Monell, 436 U.S. at 690; see also Piotrowski v. City of

Houston, 237 F.3d 567, 579 (5th Cir. 2001). Thus, to state a claim for municipal

liability, a plaintiff must identify: “(1) an official policy (or custom), of which (2) a

policymaker can be charged with actual or constructive knowledge, and (3) a

constitutional violation whose ‘moving force’ is that policy or custom.” Valle v. City

of Houston, 613 F.3d 536, 541–42 (5th Cir. 2010) (quoting Pineda v. City of

Houston, 291 F.3d 325, 328 (5th Cir. 2002)). Isolated unconstitutional actions by

municipal employees will almost never trigger municipal liability. Piotrowski, 237

F.3d at 578. And a municipality cannot be held liable simply on a theory of

respondeat superior. Monell, 436 U.S. at 691.

As to the first element of a Monell claim, an “official policy ‘usually exists in

the form of written policy statements, ordinances, or regulations, but 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.’” Covington v. City of

Madisonville, 812 F. App’x 219, 225 (5th Cir. 2020) (per curiam) (quoting James

v. Harris Cnty., 577 F.3d 612, 617 (5th Cir. 2009)). A “pattern of conduct” is

necessary when the municipal actors are not policymakers. Zarnow v. City of

Wichita Falls, 614 F.3d 161, 169 (5th Cir. 2010). 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 Fort Worth, 588 F.3d 838, 851 (5th Cir. 2009) (citations omitted). It also

requires “‘sufficiently numerous prior incidents,’ as opposed to ‘isolated

instances.’” Id. (citations omitted). “To proceed beyond the pleading stage, a

complaint’s ‘description of a policy or custom and its relationship to the underlying

constitutional violation . . . cannot be conclusory; it must contain specific facts.”

Pena v. City of Rio Grande City, 879 F.3d 613, 622 (5th Cir. 2018) (citations

omitted).

Here, Winegarner’s complaint contains only conclusory or speculative

assertions as to a policy or custom. He conclusively states that the City has a

“custom and practice of tolerating (if not encouraging or ratifying) misconduct by

its officers” without pleading a pattern with requisite specificity, similarity, or

numerosity. Compl. ¶ 3 (ECF No. 3). And instead of identifying any official written

policy or widespread custom or practice, he repeatedly refers to evidence that

might be discovered through the discovery process. See, e.g. Compl. ¶ 4 (“per what

maybe found out in Discovery as an IPD’s longstanding customs and practices, [the

Defendants], at the scene of [Officer] Hammel’s unlawful use of excessive force

against [Winegarner], failed to intervene”); id. ¶ 6 (“In discovery, we may find, the

City of Irving’s longstanding custom and practice of unchecked Fourth

Amendment violations committed by IPD officers against its citizenry . . . were

moving forces behind the violation of [Winegarner’s] constitutional rights”); id.

¶ 26 (“Upon Discovery we might found out the city encourages and enables

aggressive, predatory police officers and unconstitutional force practices”); id. ¶ 74

(“With Discovery of this Suit we may find that, Before and after August 23, 2022,

the City of Irving, with deliberate indifference to the rights of citizens, initiated,

tolerated, permitted, failed to correct, promoted and/or ratified a custom, pattern,

or practice on the part of its officers of the improper use of force, including deadly

force”).

These conclusory and speculative allegations are insufficient to plausibly

allege the existence of any particular policy or custom of the City for a Monell claim.

See Brown v. City of Dallas, 2024 WL 5320559, at *3 (N.D. Tex. Dec. 31, 2024)

(Rutherford, J.) (finding that plaintiff failed to state a claim under Monell when

his complaint was “limited to allegations of excessive force used against him”

because he did not “identif[y] any official written policy or widespread custom or

practice in his complaint,” and he did not “plead[] a pattern with the requisite

specificity, similarity, or numerosity”), adopted by, 2025 WL 82535 (N.D. Tex.

Jan. 13, 2025); Birabil v. Martinez, 2016 WL 4402259, at *6 (N.D. Tex. July 11,

2016) (holding that “[b]ecause they rely on a single incident and vague generalities

and conclusions, Plaintiffs have not sufficiently alleged an official policy or custom,

a necessary element to municipal liability under Monell, and therefore have failed

to nudge their claim across the line from conceivable to plausible”), adopted by,

2016 WL 4411412 (N.D. Tex. Aug. 18, 2016). Isolated unconstitutional actions by

municipal employees, like those alleged of Officers Hammel, Reyes, Ivey, and

Phillips, “are not the persistent, often repeated, constant violations that constitute

custom and policy.” Piotrowski, 237 F.3d at 581.

Winegarner’s assertions about what the discovery process might reveal are

similarly insufficient to state a Monell claim. See, e.g., Zinnah v. Lubbock State

Supported Living Ctr., 2023 WL 7314350, at *2 (5th Cir. Nov. 6, 2023) (noting

that plaintiffs “cannot simply rely on vague assertions with the unsubstantiated

hope that discovery will later vindicate them”); Cepeda v. Emerald Corr. Mgmt.

LLC, 2019 WL 4999973, at *4 (W.D. Tex. Aug. 28, 2018) (“Plaintiff cannot

overcome the minimum pleading standard by arguing that additional facts will be

unearthed during the discovery stage”); Cf. Barnes v. City of El Paso, 677 F. Supp.

3d 594, 610 (W.D. Tex. June 12, 2023) (finding that plaintiff’s allegations plausibly

suggested a pattern of constitutional violations by the city because “before

conducting any discovery, [she] ha[d] alleged twenty-one specific incidents—

describing ten in detail—of EEPD officers using excessive force” and she “expressly

state[d] that her allegations [were] ‘based on a limited data set that does not

include all instances’” which “indicat[ed] that additional instances could be

uncovered in discovery”).

Where a plaintiff’s Monell claim fails as to one prong—as is the case here—

the Court “need not consider whether [his] claim also fails the other two Monell

prongs.” Brown v. Tarrant Cnty., Tex., 985 F.3d 489, 497 & n.11 (5th Cir. 2021);

see also Zarnow, 614 F.3d at 168–69 (court need not consider “moving force”

prong because it found no “custom or policy” to link to the alleged unconstitutional

conduct). Thus, since Winegarner has failed to demonstrate an official policy or

custom, the Court finds that the City is entitled to dismissal of Winegarner’s claims

against it without further analyzing the remaining Monell prongs.2

The District Judge should therefore GRANT the City’s motion as to

Winegarner’s Monell claim.

Winegarner Fails to State a Claim for Failure to Train or Supervise.

A municipality’s failure to train or supervise its employees can serve as a

basis for liability under 42 U.S.C. § 1983. See Deville v. Marcantell, 567 F.3d 156,

2 However, the Court notes that Winegarner fails to plead the identity of the City’s

final policymaker. This omission is fatal to his claim. See Davenport v. City of

Garland, Tex., 2010 WL 1779620, at *2 (N.D. Tex. Apr. 9, 2010) (“Plaintiff makes

complaints against the City’s policies but fails to name the final policymaker or

state any facts which would allow the Court to make that determination. These bare

assertions amount to nothing more than a “formulaic recitation of the elements”

of a municipal liability claim. . . . As such, the allegations are conclusory and not

entitled to the assumption of truth.”) (internal citations omitted), rec. accepted,

2010 WL 1779619 (N.D. Tex. Apr. 30, 2010).

170–71 (5th Cir. 2009). To bring a failure-to-train claim, a plaintiff must allege

facts sufficient to show that “(1) the city failed to train or supervise the officers

involved; (2) there is a causal connection between the alleged failure to supervise

or train and the alleged violation of the plaintiff’s rights; and (3) the failure to train

or supervise constituted deliberate indifference to the plaintiff’s constitutional

rights.” Edwards v. City of Balch Springs, 70 F.4th 302, 312 (5th Cir. 2023)

(internal quotation marks and citation omitted).

“[F]or liability to attach based on an inadequate training claim, a plaintiff

must allege with specificity how a particular training program is defective.” Id.

(citation omitted). While courts “only require ‘minimal factual allegations’ about

the training programs at the pleading stage,” Barnes, 677 F. Supp.3d at 614

(internal citation omitted), “a plaintiff cannot state a failure-to-train claim by

making a ‘conclusory allegation that it is “apparent from the facts of [the] case”

that [] excessive force training . . . was insufficient.” Id. (citing Speck v. Wiginton,

606 F. App’x 733, 736 (5th Cir. 2015)).

Here, Winegarner alleges in a conclusory manner that the City’s training and

supervision of its police officers is inadequate, but he does not describe how it is

insufficient. See Compl. ¶ 13 (“Defendants maybe, serial predators who if not

stopped by the Court, will . . . be walking ‘Monell’ violators, encouraged and fully

embraced by the City’s training on dangerous restraint techniques.”); id. ¶ 75 (“By

failing to discipline all officers consistently[,] . . . City and IPD policymakers, with

the department’s ratification and approval, have approved of a deficient policy,

custom, or practice of the improper use of force, maybe including deadly.”); Resp.

7 (“If the City of Irving Police Dept. has been training their officers not to escalate

the situations of an arrest, then why is it acceptable to [Sergeant] Phillips, and

others in charge of them, for Hammel, Reyes, and Ivey, to do the exact opposite in

the violent abusive arrest of Plaintiff?”). Instead, his failure to train or supervise

claim is based on a single incident and speculation as to what discovery might

reveal about other instances. See Compl. ¶ 74 (“With discovery of this Suit we may

find, Before and after August 23, 2022, the City of Irving, with deliberate

indifference to the rights of citizens, initiated, tolerated, permitted, failed to

correct, promoted and/or ratified a custom, pattern or practice on the part of its

officers of the improper use of force, including deadly force.”). He also fails to

allege any facts indicating that the City was deliberately indifferent to his

constitutional rights.

Winegarner’s allegations are insufficient to state a claim under Rule 12(b)(6)

and should be dismissed. See Rivens-Baker v. Riley, 2024 WL 1173045, at *6 (W.D.

Tex. Feb. 15, 2024) (dismissing failure to train or supervise claim when the

complaint “contain[ed] no allegations relative to a pattern of violations” and was

instead “based on a single incident”); Montgomery v. Hollins, 2019 WL 2424053,

at *7 (N.D. Tex. May 8, 2019) (Horan, J.) (rejecting plaintiff’s failure to train or

supervise claims of municipal liability because of the “absence of ‘minimal factual

allegations’ that could ultimately support a showing that the City’s training

procedures were inadequate—and, further, inadequate as a result of deliberate

indifference”), adopted by, 2019 WL 2422493 (N.D. Tex. June 10, 2019); Barnes,

677 F. Supp. 3d at 614 (plaintiff’s allegations that the El Paso Police Department

“fails to properly train officers in use of force” and that the supervisor “allowed

these deficiencies to persist despite knowing that EPPD had a ‘widespread practice

of officers using excessive . . . force” were “wholly conclusory” and “fail[ed] to

identify a particularized issue with the City’s training programs”). Cf. Tuttle v.

Sepolio, 68 F.4th 969, 975–76 (5th Cir. 2023) (concluding that the threshold for

pleading a failure to supervise claim was met when plaintiffs alleged “multiple

instances in which Goines fraudulently obtained a search warrant and in which

violence occurred” and that “Gonzales—in his capacity as Goines’ supervisor—

knew about these infractions, but did nothing to correct them”).

The District Judge should therefore GRANT the City’s motion as to

Winegarner’s claim for municipal liability for failure to train or supervise.

Winegarner Fails to State a Title VI Claim.

Winegarner also brings a claim against the City for violating Title VI, see

Compl. ¶¶ 79–86, which the City moves to dismiss. See City’s Mot. 22.

Title VI of the Civil Rights Act states: “No person in the United States shall,

on the ground of race, color, or national origin, be excluded from participation in,

be denied the benefits of, or be subjected to discrimination under any program or

activity receiving Federal financial assistance.” 42 U.S.C. § 2000d. To sustain a

Title VI claim, Winegarner must allege that the City engaged in intentional

discrimination based on race and that the City received federal financial assistance.

Pathria v. Univ. of Texas Health Sci. Ctr. at San Antonio, 531 F. App’x 454, 455

(5th Cir. 2013) (per curiam) (emphasis in original). And “in Title VI cases that do

not involve an official policy of intentional discrimination, a plaintiff must allege

that ‘an appropriate person—an official authorized to institute corrective

measures—had actual knowledge of the discrimination and responded with

deliberate indifference.” Bhombal v. Irving Indep. Sch. Dist., 2018 WL 2127760,

at *8 (N.D. Tex. May 9, 2018) (internal citation omitted).

Winegarner alleges that the City receives federal financial assistance, but he

does not set forth any specific facts indicating that the City engaged in intentional

discrimination based on his race. See Compl. ¶¶ 79–86. Instead, he merely

contends that after the parties undergo discovery, they “may find” that the City

“has engaged and continues to engage in a pattern and practice of race

discrimination in its policing practices” and that the Department “stops, arrests,

and uses force against Black individuals at significantly higher rates than white

individuals in similar instances.” Id. ¶¶ 82–83. This is insufficient to survive a

motion to dismiss. See Mohamed for A.M. v. Irving Indep. Sch. Dist., 252 F. Supp.

3d 602, 627 (N.D. Tex. 2017) (internal citation omitted) (explaining that “[a]

complaint that does not set forth ‘specific allegations of acts that were taken with

discriminatory intent’ does not state a claim for Title VI violations” and finding

that plaintiff’s allegations failed to state a claim because he “fail[ed] to plead any

facts suggesting that [he was] treated differently than other similarly situated

[persons] based on his race” and instead “advances only his subjective belief that

[his supervisor’s] actions were motivated by [plaintiff’s] race”). Winegarner

similarly failed to allege any facts regarding an official discriminatory policy or an

“appropriate person” who had actual knowledge of the allegedly discriminatory

acts committed by the officers and responded with deliberate indifference.

Thus, the District Judge should DISMISS Winegarner’s Title VI claim.

III. Winegarner’s Claims Against the Officer Defendants Fail.

The Defendant Officers argue that (1) all of Winegarner’s claims against

Officer Phillips are barred by qualified immunity; (2) Winegarner’s wrongful

arrest, excessive force, and malicious prosecution claims are barred by qualified

immunity as to the remaining Officer Defendants; and (3) Winegarner’s failure to

intervene and selective enforcement claims fail to state a claim. See generally

Officers’ Mot. (ECF No. 10). Included in their appendix to their motion is the

footage from the body-worn camera (BWC) worn by Officer Hammel during the

incident. See generally Officers’ Mot. App. (ECF No. 11). Winegarner filed a

response that merely reiterates his assertions from his Complaint regarding the

Officers’ alleged use of excessive force and false charge of resisting arrest. See

generally Resp. (ECF No. 14).

Legal Standard – Qualified Immunity

A governmental employee sued under § 1983 may assert the affirmative

defense of qualified immunity. White v. Taylor, 959 F.2d 539, 544 (5th Cir. 1992).

“Qualified immunity protects government officials from performing discretionary

functions from suit and liability for civil damages to the extent their conduct does

not violate clearly established statutory or constitutional rights of which a

reasonable person would have known.” Blakely v. Andrade, 360 F. Supp. 3d 453,

477 (N.D. Tex. 2019) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). In

other words, qualified immunity protects government officials when their actions

“could reasonably have been believed to be legal.” Anderson v. Valdez, 845 F.3d

580, 599 (5th Cir. 2016). And “this immunity protects ‘all but the plainly

incompetent or those who knowingly violate the law.’” Id. (quoting Malley v.

Briggs, 475 U.S. 335, 335 (1986)).

“When a defendant invokes qualified immunity, the burden is on the

plaintiff to demonstrate the inapplicability of the defense.” Ramirez v.

Guadarrama, 3 F.4th 129, 133 (5th Cir. 2021). See also King v. Handorf, 821 F.3d

650, 653 (5th Cir. 2016) (“[O]nce properly raised by the defendant, the ‘plaintiff

has the burden to negate the assertion of qualified immunity.’”) (citing Collier v.

Montgomery, 569 F.3d 214, 217 (5th Cir. 2009)); Backe v. LeBlanc, 691 F.3d 645,

648 (5th Cir. 2012) (“[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.”).

“Government officials like [Officers Phillips, Hammel, Reyes, and Ivey]

enjoy qualified immunity ‘unless a plaintiff pleads facts showing (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.’” Brown v. Tarrant Cnty., Tex.,

985 F.3d at 494 (citing Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011)). Further,

courts “have discretion to decide which of the two prongs of qualified-immunity

analysis to tackle first.” Id. Here, the Court engages with the first prong first.

Qualified Immunity Bars Winegarner’s Claims Against Officer Phillips.

Winegarner’s Complaint asserts that Officer Phillips reviewed and

“responded to” a complaint sent to the IPD by Winegarner’s father but did not

investigate the complaint sufficiently. Compl. ¶ 5. The Officers’ motion argues that

Phillips is entitled to qualified immunity because he “had no personal involvement

in any alleged constitutional violations and only reviewed the Internal Affairs

complaint submitted by Plaintiff and/or his father” and thus did not violate a

statutory or constitutional right. Mot. 5.

Because “personal involvement is an essential element of a civil rights cause

of action,” Thompson v. Steele, 709 F.2d 381, 382 (5th Cir. 1983), and Winegarner

has not pleaded any facts describing Phillips’ personal involvement in any alleged

constitutional violations, Phillips is entitled to qualified immunity. See Jimerson

v. Lewis, 94 F.4th 423, 429 (5th Cir. 2024) (“A plaintiff seeking to overcome

qualified immunity must specifically identify each defendant’s personal

involvement in the alleged wrongdoing.”) (internal citation and quotation marks

omitted); Blanchard v. Gardner, 2024 WL 5295379, at *13 (E.D. Tex. Sept. 26,

2024) (finding that a police officer named as a defendant was “entitled to qualified

immunity on [p]laintiff’s excessive use of force claim” because “the record

establishe[d] no personal involvement with respect to [the officer] and the alleged

use of force” as the officer did not arrive on the scene until after the force had been

deployed by other officers and he merely “tried to help her get a sip of water while

she was waiting in the police car”), rec. adopted sub nom. Blanchard v. City of

Tyler Police Dep’t, 2025 WL 41920 (E.D. Tex. Jan. 7, 2025).

Thus, the District Judge should DISMISS Winegarner’s claims against

Officer Phillips.

Qualified Immunity Bars Winegarner’s Claim for Wrongful Arrest.

The Court now turns to Officers Hammel, Reyes, and Ivey’s assertions of

qualified immunity as to Winegarner’s wrongful arrest claim. Winegarner’s

Complaint alleges that Defendants violated his rights when they falsely arrested

him for resisting arrest. See Compl. 1, ¶¶ 5, 11, 32–33, 36, 50–51.

“An arrest is unlawful unless it is supported by probable cause.” Flores v.

City of Palacios, 381 F.3d 391, 402 (5th Cir. 2004) (citation omitted). “Probable

cause exists when the totality of facts and circumstances within a police officer’s

knowledge at the moment of arrest are sufficient for a reasonable person to

conclude that the suspect had committed or was committing an offense.” United

States v. Levine, 80 F.3d 129, 132 (5th Cir. 1996) (citation omitted). A person

resists arrest “if he intentionally prevents or obstructs a person he knows is a peace

officer . . . from effecting an arrest . . . by using force against the peace officer[.]”

Tex. Pen. Code § 38.03(a). “It is no defense . . . that the arrest or search was

unlawful.” Id. at § 38.03(b). That means, “[i]n Texas, the act of resisting can supply

probable cause for the arrest itself[.]” Ramirez v. Martinez, 716 F.3d 369, 376 (5th

Cir. 2013).

Qualified immunity cases often involve competing versions of events, and

this case is no exception. When the facts are disputed—as in the present case—the

Court must use the plaintiff’s version of the facts, unless it is blatantly contradicted

by the record, to evaluate whether the officers are entitled to qualified immunity.

See Young v. City of Irving, 2024 WL 4193936, at *9 (N.D. Tex. Sept. 12, 2024)

(quoting Hanks v. Rogers, 853 F.3d 738, 744 (5th Cir. 2017) (“[A] plaintiff’s

version of the facts should not be accepted for purposes of qualified immunity

when it is ‘blatantly contradicted’ and ‘utterly discredited’ by video recordings.”).

Here, Winegarner repeatedly refers to “the Body Worn Camera, BWC, Video” in

his complaint, see, e.g., Compl. 1, ¶¶ 4, 10, and Defendants include the footage in

an appendix to their motion. See Officers’ Mot. App. (BWC) (ECF No. 11). To the

extent that the BWC footage “blatantly contradicts” Winegarner’s allegations, the

Court finds it proper to consider the footage because Winegarner’s consistent

references to it incorporate the footage by reference, and the footage is clearly

central to Winegarner’s claims against the Officers in this suit. See, e.g., Terrell v.

Town of Woodworth, 2024 WL 667690, at *5 (5th Cir. Feb. 19, 2024) (per curiam)

(“[T]he district court properly considered the video evidence from the officers’ two

body cams and Gonzales’s dash cam that Defendants attached to their motion to

dismiss because Terrell consistently referenced the video evidence in his

complaint . . . and the video evidence is clearly central to his claims against

Defendants in this suit.”).

Here, neither Winegarner’s Complaint nor his Response contain any

allegations as to the reason for the initial traffic stop, the details surrounding his

arrest, or assertions that probable cause was lacking. Rather, he merely challenges

that he was resisting arrest. But the BWC footage “blatantly contradicts”

Winegarner’s assertion—it shows that Hammel put his hand on Winegarner’s wrist

and ordered Winegarner to get out of the car but, instead of complying with

Hammel’s order, Winegarner pulled away from Hammel. BWC at 1:00–1:12. “The

great weight of Texas authority indicates that pulling out of an officer’s grasp is

sufficient to constitute resisting arrest.” Ramirez v. Martinez, 716 F.3d at 376

(collecting cases).

Thus, Winegarner fails to state a claim for false arrest and fails to overcome

the Officers’ assertion of qualified immunity. He contends that the charges against

him were dismissed by the Dallas County District Attorney, see Compl. 1, ¶¶ 5, 32,

50, but “the fact that the charges against [a plaintiff] were ultimately dismissed is

irrelevant to the probable cause analysis, which focuses on what the officer could

have reasonably believed as to whether there was probable cause for an arrest at

the time of the arrest.” Esquivel v. Eastburn, 2021 WL 1667132, at *4 (W.D. Tex.

Apr. 8, 2021). Consequently, Winegarner cannot show that the Officer Defendants

violated a statutory or constitutional right by arresting him, and thus they are

entitled to qualified immunity. The District Judge should therefore GRANT the

Officers’ motion as to Winegarner’s wrongful arrest claim.

Qualified Immunity Bars Winegarner’s Claim for Excessive Force.

Winegarner also alleges that the Officer Defendants’ use of force against him

was excessive and violated his Fourth Amendment right against unreasonable

seizures. See Compl. ¶¶ 15, 52–57. In response, Defendants Hammel, Reyes, and

Ivey assert that they are entitled to qualified immunity on Winegarner’s excessive

force claim. Officers’ Mot. 2, 14.

“To overcome [an officer’s] claim of qualified immunity on [a] claim of

excessive force, [a plaintiff] must show (1) an 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.” Terrell v. Allgrunn, 114 F.4th 428, 437 (5th Cir.

2024). The plaintiff’s asserted injury “must be more than a de minimis” injury.

Hanks v. Rogers, 853 F.3d 738, 744–45 (5th Cir. 2017) (internal citation and

quotation marks omitted); Mohamed for A.M. v. Irving Indep. Sch. Dist., 300 F.

Supp. 3d 857, 891 (N.D. Tex. 2018), aff’d sub nom. Mohamed as Next Friend for

A.M. v. Irving Indep. Sch. Dist., 758 F. App’x 352 (5th Cir. 2019). The injury can

be physical or psychological. Mohamed for A.M., 300 F. Supp. 3d at 891 (citing

Ikerd v. Blair, 101 F.3d 430, 434 n.9 (5th Cir. 1996)). If the injury is psychological,

it must be “substantial” to meet the injury element of an excessive force claim. Id.

(citations omitted).

“[T]he right to make an arrest of investigatory stop necessarily carries with

it the right to use some degree of physical coercion or threat thereof to effect it.”

Id. (quoting Graham v. Connor, 490 U.S. 386, 396 (1989)). Courts must “‘focus on

the officers’ reasonable perception of the events at issue, as they happened,

without the aid of hindsight, multiple viewing angles, slow motion, or the ability

to pause, rewind, and zoom.’” Id. (citing Tucker v. City of Shreveport, 998 F.3d

165, 176 (5th Cir. 2021)).

Here, the Officer Defendants contend that Winegarner fails to overcome

qualified immunity as to his excessive force claim because his injuries are de

minimis. Officers’ Mot. 15. Winegarner alleges that his “physical injuries included

difficulty breathing, fear of being killed by them, abrasions to his knees, contusions

on his back, knees, wrists, shoulders, and neck, and neck trauma as a result of

Defendants Hammel and Reyes’ assault” and his psychological injuries include

“significant [a]nxiety, [d]epression, PTSD and emotional distress.” Compl. ¶¶ 37,

39. But these conclusory allegations do not establish more than a de minimis

injury. See Brown v. Coulston, 463 F. Supp. 762, 780 (E.D. Tex. May 29, 2020)

(finding that plaintiff’s allegations were conclusory and “fail[ed] to state anything

more than a de minimis injury” when the plaintiff alleged that he “suffered injuries

and severe, lasting pain to his head, back, neck, and legs” and “psychological

injuries including emotional anguish and fear”); Brooks v. City of W. Point, Miss.,

639 F. App’x 986, 990 (5th Cir. 2016) (holding that physical injuries such as

“abrasions to [plaintiff’s] hands and knees, some pain in his back, and unspecified

problems with his asthma” are de minimis); Freeman v. Gore, 483 F.3d 404, 417

(5th Cir. 2007) (“[M]inor, incidental injuries that occur in connection with the use

of handcuffs to effectuate an arrest do not give rise to a constitutional claim for

excessive force.”); Zavala v. Harmon, 2022 WL 17220034, at *6 (S.D. Tex. Oct. 19,

2022) (noting that “injuries like bruises, contusions, and abrasions are insufficient

to maintain an excessive force claim under Fifth Circuit precedent” because they

are de minimis).

Thus, Winegarner fails to state a claim for excessive force,3 and the District

Judge should GRANT the Officer Defendants’ motion as to the excessive force

claim.

3 Because Winegarner’s allegations fail to satisfy the first element of an excessive

force claim, the Court need not consider the remaining elements. See Clark v. City

of Burleson, 2020 WL 635842, at *4 (N.D. Tex. Feb. 11, 2020) (“But the Court does

not proceed to the second element of the excessive force analysis because

[plaintiff’s] claim fails on the first.”); Ferguson v. Comal Cnty., 2024 WL 4849080,

at *4 (W.D. Tex. Nov. 18, 2024) (“In any event, the Court does not reach the

remaining elements of the excessive force analysis because [p]laintiff has failed on

the first element.”). However, in the interest of thoroughness, the Court will briefly

note that Winegarner also fails to show that the Officers’ use of force was “clearly

excessive” because the BWC footage visibly depicts Winegarner refusing to comply

with the commands of the Officers and actively pulling way when Officer Hammel

instructs him to get out of the car. See BWC at 1:00–1:12; see also Young v. City of

Irving, 2024 WL 4193936, at *9 (N.D. Tex. Sept. 12, 2024) (finding that “[t]he

police video does not permit the reasonable inference that the use of force in this

case was unreasonable when [plaintiff] was actively resisting arrest and repeatedly

refusing to comply with officer commands” and thus granting the individual officer

defendants’ motion to dismiss plaintiff’s excessive force claim based on qualified

immunity).

Qualified Immunity Bars Winegarner’s Claim for Malicious Prosecution.

Winegarner’s Complaint also alleges that he was “false[ly] [and]

malicious[ly]” charged with resisting arrest, and that the Officers “treated [him]

with malicious intent to harm him” and “depriv[ed] [him] of his rights either

maliciously or by acting with reckless disregard for whether his rights would be

violated.” Compl. 1, ¶¶ 42, 54, 63, 69. The Court liberally construes these

allegations as a malicious prosecution cause of action. See Officers’ Mot. 19.

However, Winegarner fails to allege sufficient facts to state a claim for malicious

prosecution.

A party asserting a § 1983 malicious prosecution claim must demonstrate:

“(1) the commencement or continuance of an original criminal proceeding; (2) its

legal causation by the present defendant against plaintiff who was defendant in the

original proceeding; (3) its bona fide termination in favor of the present plaintiff;

(4) the absence of probable cause for such proceeding; (5) malice; and (6)

damages.” Santander v. Salazar, 133 F.4th 471, 482 (5th Cir. 2025). Regardless of

whether Winegarner alleges a plausible claim for malicious prosecution, such a

claim cannot overcome qualified immunity because “the elements of a § 1983

malicious prosecution claim had not been established at the time of the incident,

such that the law was unsettled at the time of [Winegarner’s] conduct.” Id. The

Supreme Court did not recognize a federal claim for malicious prosecution until

April 2022 in Thompson v. Clark, 596 U.S. 36, 42 (2022), and it still “largely left

the question of elements to the lower courts.” Id. The Fifth Circuit did not articulate

the elements of such a claim until February 2023 in Armstrong v. Ashley. Id.

The alleged incident in this case occurred in September 2022, which is after

Thompson but before Armstrong, and thus Defendants “could not have violated

clearly established law because, at the time, there was no clearly established law in

this circuit to violate.” Id. Winegarner’s malicious prosecution claim therefore fails

to overcome Defendants’ assertion of qualified immunity, see id., and the District

Judge should GRANT Defendants’ motion as to Winegarner’s malicious

prosecution claim.

Winegarner Fails to State a Claim for Failure to Intervene.

Winegarner additionally alleges that Reyes, Ivey, and Phillips “failed to

intervene to stop” Hammel’s “unlawful use of excessive force.” Compl. ¶ 4; see also

Compl. ¶¶ 36, 68.

The Fifth Circuit has held that an “officer who is present at the scene and

does not take reasonable measures to protect a suspect from another officer’s use

of excessive force may be liable under section 1983.” Hale v. Townley, 45 F.3d 914,

919 (5th Cir. 1995); accord Elliot v. Linnell, 269 F. App’x 450, 451 (5th Cir. 2008).

But “if a court determines that no excessive force was present, there can be no

claim for failure to intervene.” Garrett v. Crawford, 2016 WL 843391, at *6 (W.D.

Tex. Mar. 1, 2016) (citing Gilbert v. French, 364 F. App’x 76, 83–84 (5th Cir.

2010)).

Winegarner’s failure to intervene claim necessarily fails because he fails to

state a claim for excessive force, as discussed above. See Cobarobio v. Midland

Cnty., Tex., 2015 WL 13608102, at *13 (W.D. Tex. Jan. 7, 2015) (stating that

“[e]xcessive force is a necessary element to assert a claim of failure to intervene”

and therefore holding that “[b]ecause [p]laintiff has failed to allege facts to support

a claim that the force used by the officers . . . was clearly excessive, [p]laintiff has

also failed to state a claim of failure to intervene”). The District Judge should

therefore GRANT Defendants’ motion and DISMISS Winegarner’s failure to

intervene claim.

Winegarner Fails to State a Claim for Selective Enforcement.

In his Complaint, Winegarner also alleges that he was subject to race

discrimination in violation of the Fourteenth Amendment’s Equal Protection

Clause for selective enforcement of the law. See Compl. ¶¶ 58–66. Defendants

argue that Winegarner’s claim should be dismissed because he fails to allege

sufficient facts identifying a race-based motive or a similarly situated person.

Officers’ Mot. 24–25.

To successfully bring a selective prosecution or enforcement claim, a

plaintiff must establish that “the government official’s acts were motivated by

improper considerations, such as race, religion, or the desire to prevent the

exercise of a constitutional right.” Bryan v. City of Madison, 213 F.3d 267, 277 (5th

Cir. 2000). “[T]he conscious exercise of some selectivity in enforcement is not in

itself a federal constitutional violation.” Allred's Produce v. U.S. Dep’t of Agric.,

178 F.3d 743, 748 (5th Cir. 1999) (quoting Oyler v. Boles, 368 U.S. 448, 456

(1962)). “Rather, it must be shown that the selective enforcement was deliberately

based upon an unjustifiable standard such as race, religion, or other arbitrary

classification.” Id. (internal quotation marks and citation omitted).

To establish a claim under the Equal Protection Clause, a plaintiff must show

that two classes of similarly situated persons were treated differently. Id. A plaintiff

also must demonstrate “purposeful discrimination resulting in a discriminatory

effect among persons similarly situated.” Butts v. Martin, 877 F.3d 571, 590 (5th

Cir. 2017) (internal quotation marks and citation omitted). All persons need not

“be dealt with identically[,]” but any distinctions made must “have some relevance

to the purpose for which the classification is made.” Wood v. Collier, 836 F.3d 534,

538-39 (5th Cir. 2016) (internal quotation marks and citation omitted).

Here, Winegarner has not made any factual allegations sufficient to

conclude that the Officers’ action towards him could have been motivated by his

race or his exercise of a fundamental constitutional right. Nor has he alleged any

facts demonstrating that he was treated differently than similarly situated

individuals. Instead, he merely makes speculative and conclusory allegations that

his “Biracial [] personage may have set off something in IPD, Hammel’s head that

caused him to tell David that he was thinking derogatorially against David, Already

just seeing his African American Hair Rastafari Twist Braids was the but-for cause

of [] Hammel’s statement” [sic] about Winegarner being a “dumbass Roadside

Lawyer.” Compl. ¶ 62. This is insufficient to state a claim for selective enforcement

and race discrimination under the Fourteenth Amendment. See Lewis v. Smith,

2022 WL 10965839, at *4–5 (5th Cir. 2022) (finding that the district court

properly dismissed plaintiff’s selective enforcement claim when his complaint does

not describe any information about similarly situated individuals or make any

“factual, nonconclusory allegations that could lead to the conclusion that one

motivation for [defendant’s] enforcement of the policy against him was either his

race or his exercise of a fundamental right”); Ellis v. City of White Settlement, Tex.,

2023 WL 8813890, at *6 (N.D. Tex. Nov. 28, 2023) (holding that plaintiff did not

show a Fourteenth Amendment equal protection violation when he “cite[d] to

several online articles purporting to show the City’s ‘very racial history’” but

“pleads no facts to show selective enforcement of this alleged policy” and “states

no facts to show any sort of discrimination” in either his complaint or response

briefs), adopted by, 2023 WL 8816382 (N.D. Tex. Dec. 20, 2023).

Thus, the District Judge should GRANT Defendants’ motion and DISMISS

Winegarner’s selective enforcement claim.

IV. Leave to Amend

Winegarner has not requested leave to amend his complaint. Nonetheless, a

pro se plaintiff ordinarily should be granted leave to amend his complaint before

dismissal. Brewster v. Dretke, 587 F.3d 764, 767–68 (5th Cir. 2009). But the Court

is not required to grant leave “if the plaintiff has already pleaded his best case,” id.,

and an amendment would be futile. 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).

Here, any amendment to Winegarner’s claim against the Department would

be futile because it is a non-jural entity that cannot be sued. See Sullivan v. Garza

Cnty. Sheriff’s Office, 2023 WL 9219176, at *5 (N.D. Tex. Nov. 3, 2023) (concluding

that granting leave to amend complaint against sheriff’s office would be futile

because the sheriff’s office cannot be sued), adopted by, 2024 WL 130758 (N.D.

Tex. Jan. 11, 2024). Similarly, any amendment to his wrongful arrest, excessive

force, and malicious prosecution claims against the Officers would be futile

because those claims are barred by qualified immunity. See Malloy v. Municipality

of City of Com., Tex., 2023 WL 10352172, at *6 (E.D. Tex. July 14, 2023) (finding

leave to amend futile when plaintiff did not meet his burden to overcome

defendants’ assertion of qualified immunity), adopted by, 2024 WL 1020565 (E.D.

Tex. Mar. 8, 2024). And Winegarner should not be given leave to amend his any of

his remaining claims, including any claim against the City or his failure to

intervene and selective enforcement claims against the Officers, because he gives

no indication that he has not already pleaded his best case. He does not state any

material facts he would have included in an amended complaint. See Shope v.

Texas Dep’t of Criminal Justice, 283 F. App’x 225, 226 (5th Cir. 2008)

(unpublished) (“Shope does not allege what facts he would include in an amended

complaint. Therefore, Shope has not shown that the district court abused its

discretion in dismissing his complaint.”) (citing Ashe v. Corley, 992 F.2d 540, 542

(5th Cir. 1993)); Goldsmith v. Hood County Jail, 299 F. App’x 422, 423 (5th Cir.

2008) (unpublished) (affirming district court’s dismissal of pro se complaint when

litigant failed to “explain what facts he would have added or how he could have

overcome the deficiencies found by the district court if he had been granted an

opportunity to amend”).

To the extent Winegarner wants an opportunity to amend his complaint as

to any other claims, his opportunity to object to this recommendation (explained

below) gives him a chance to plead his best case by explaining how he could amend

his complaint to allege a plausible federal claim. But unless he shows the Court that

he could amend to allege a plausible claim, he is not entitled to further leave to

amend.

Recommendation

In conclusion, the District Judge should GRANT the Motions to Dismiss

filed by the Irving Police Department (ECF No. 9), (2) the City of Irving (ECF No.

12), and Irving Police Department Officers Preston Hammel, Travis Reyes, Justin

Ivey, and John Phillips (ECF No. 10) and DISMISS all of Winegarner’s claims

against Defendants.

SO RECOMMENDED.

August 20, 2025.

REBECCANRUTHERFORD

UNITED S°XJATES MAGISTRATE JUDGE

31

INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

A copy of this report and recommendation shall be served on all parties in

the manner provided by law. Any party who objects to any part of this report and

recommendation must file specific written objections within 14 days after being

served with a copy. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). In order to be

specific, an objection must identify the specific finding or recommendation to

which objection is made, state the basis for the objection, and specify the place in

the magistrate judge’s report and recommendation where the disputed

determination is found. An objection that merely incorporates by reference or

refers to the briefing before the magistrate judge is not specific. Failure to file

specific written objections will bar the aggrieved party from appealing the factual

findings and legal conclusions of the magistrate judge that are accepted or adopted

by the district judge, except upon grounds of plain error. See Douglass v. United

Servs. Auto. Ass’n, 79 F.3d 1415, 1417 (5th Cir. 1996).