# Licon Jr. v. Low

> District Court, W.D. Texas · August 22, 2025

URL: https://www.frixlaw.com/law-library/cases/11145924

## Case

- **Court:** District Court, W.D. Texas
- **Decided:** August 22, 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/11145924

## How later opinions describe it (automated extraction)

- holding the federal district courts are required to dismiss any action brought by a prisoner that is frivolous, malicious, fails to state a cause of action, or seeks monetary damages from a defendant who is immune from such relief
- holding municipality could not be held liable under § 1983 absent proof its failure to adequately train employees rose to level of deliberate indifference to rights of its citizens

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
MIDLAND/ODESSA DIVISION

JOSE CRUZ LICON JR., §
Plaintiff, §
§
v. § MO:24-CV-00299-DC-RCG
§
JUDGE JUSTIN LOW and ODESSA §
POLICE DEPARTMENT, §
Defendants. §

REPORT AND RECOMMENDATION OF THE U.S. MAGISTRATE JUDGE

BEFORE THE COURT is Plaintiff Jose Cruz Licon Jr.’s (“Plaintiff”) civil rights lawsuit
under 42 U.S.C. § 1983 filed against Judge Justin Low and Odessa Police Department. (Doc. 1).
This case is before the Court through a Standing Order pursuant to 28 U.S.C. § 636 and
Appendix C of the Local Court Rules for the Assignment of Duties to United States Magistrate
Judges. After due consideration of the case and the caselaw, the Court RECOMMEDS
Plaintiff’s Complaint be sua sponte DISMISSED against Defendants Judge Justin Low and the
Odessa Police Department.
I. BACKGROUND
On November 22, 2024, Plaintiff filed his civil rights Complaint against Defendants
Judge Justin Low and the Odessa Police Department. (Doc. 1). Plaintiff explains that he was
falsely incarcerated for two years beginning on February 16, 2022. Id. at 4. Plaintiff provides his
charges were ultimately dismissed by Judge Justin Low. Id. Plaintiff was ordered to file a more
definite statement (Doc. 8) where he added facts surrounding his charges. (Doc. 11).
II. LEGAL STANDARD
When Congress enacted the Prison Litigation Reform Act of 1996 (PLRA), it specifically
amended 28 U.S.C. § 1915(e)(2)(B)(i) and added new § 1915A to provide that a complaint filed
by a prisoner could be dismissed as frivolous regardless of whether any filing fee or portion
thereof had been paid. Martin v. Scott, 156 F.3d 578, 579–80 (5th Cir. 1998). As a prisoner
seeking redress from an employee of a governmental entity, Plaintiff’s complaint is subject to
preliminary screening under § 1915A. Id. And regardless of whether he is proceeding in forma
pauperis or not, his complaint is also subject to screening under § 1915(e)(2).

Therefore, both § 1915(e)(2)(B) and § 1915A(b) provide for sua sponte dismissal of the
complaint, or any portion thereof, if the Court finds it is frivolous or malicious, if it fails to state
a claim upon which relief may be granted, or if it seeks monetary relief against a defendant who
is immune from such relief. See Ruiz v. United States, 160 F.3d 273, 275 (5th Cir. 1998) (holding
the federal district courts are required to dismiss any action brought by a prisoner that is
frivolous, malicious, fails to state a cause of action, or seeks monetary damages from a defendant
who is immune from such relief); 42 U.S.C. §1997e(c).
The PLRA directs federal courts to screen certain complaints filed by prisoners. See 28
U.S.C. §§ 1915(e) and 1915A. In the course of this review, the federal courts must dismiss any

claim which is either (1) frivolous, malicious, or fails to state a claim upon which relief may be
granted or (2) seeks monetary relief from a defendant who is immune from such relief. Morris v.
McAllester, 702 F.3d 187, 189 (5th Cir. 2012); see 28 U.S.C. § 1915A(b).
In the course of conducting the review mandated by § 1915A(b), federal courts accept the
facts alleged in the complaint as true and construe them in the light most favorable to the
prisoner. Coleman v. Sweetin, 745 F.3d 756, 763 (5th Cir. 2014); Green v. Atkinson, 623 F.3d
278, 280 (5th Cir. 2010). The dismissal of a claim under § 1915A(b) for failure to state a claim
upon which relief may be granted is appropriate when the plaintiff fails to plead facts which
allow the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged. DeMoss v. Crain, 636 F.3d 145, 152 (5th Cir. 2011).
Pursuant to 28 U.S.C. § 1915(e)(2)(B), a court is empowered to dismiss a case if it finds
that the action is “frivolous or malicious” or “fails to state a claim on which relief may be
granted.” See 28 U.S.C. § 1915(e)(2)(B)(i)–(ii). Dismissal of a claim as frivolous under §

1915(e) is permissible where the claim lacks an arguable basis either in law or in fact. See
Neitzke v. Williams, 490 U.S. 319, 325 (1989); McCormick v. Stalder, 105 F.3d 1059, 1061 (5th
Cir. 1997). Section 1915 gives the court power to pierce the veil of the complaint’s factual
allegations and dismiss those claims whose factual contentions are clearly baseless. See Neitzke,
490 U.S. at 328.
In addition to dismissal for frivolousness, a court may also dismiss the suit for failure to
state a claim on which relief may be granted. Section 1915(e)(2) instructs a court to “dismiss the
case at any time if the court determines that ... the action ... fails to state a claim on which relief
may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). To determine whether an action states a claim on

which relief may be granted, a court must determine whether the complaint “contain[s] sufficient
factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009); see Newsome v. EEOC, 301 F.3d 227, 231 (5th Cir. 2002)
(citing Moore v. Carwell, 168 F.3d 234, 236 (5th Cir. 1999)) (reviewing dismissal under
§ 1915(e)(2)(B)(ii) according to the same standard used to review a dismissal pursuant to Federal
Rule of Civil Procedure 12(b)(6)).
While a complaint need not contain “detailed factual allegations” to survive
§ 1915(e)(2)(B)(ii) analysis, it must state “more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007). “Where a complaint pleads facts that are ‘merely consistent with’ a defendant’s
liability, it ‘stops short of the line between possibility and plausibility of entitlement to relief.’”
Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557). Conclusory allegations will not
suffice. See Mills v. Criminal Dist. Ct., 837 F.2d 677, 678 (5th Cir. 1988). A complaint fails to
state a claim upon which relief may be granted when it fails to plead “enough facts to state a

claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570.
Typical examples of claims that may properly be dismissed under § 1915(e) include: (1)
claims where it is clear the defendants are immune from suit, see, e.g., Krueger v. Reimer, 66
F.3d 75, 76–77 (5th Cir. 1995); (2) claims of infringement of a legal interest that clearly does not
exist, see, e.g., Longoria v. Dretke, 507 F.3d 898, 901 (5th Cir. 2007); and (3) claims barred by
limitations, see, e.g., Harris v. Hegmann, 198 F.3d 153, 156 (5th Cir. 1999).
An action is frivolous when there is no arguable legal or factual basis for the claim.
Neitzke v. Williams, 490 U.S. 319, 325 (1989). “A complaint lacks an arguable basis in law if it
is based on an indisputably meritless legal theory, such as if the complaint alleges a violation of a

legal interest which clearly does not exist.” Harper v. Showers, 174 F.3d 716, 718 (5th Cir.
1999) (internal quotation and citation omitted). A complaint is factually frivolous when “the
facts alleged are ‘fantastic or delusional scenarios’ or the legal theory upon which a complaint
relies is ‘indisputably meritless.’” Eason v. Thaler, 14 F.3d 8 n.5 (5th Cir. 1994) (quoting
Neitzke, 490 U.S. at 327–28).
III. DISCUSSION
1. Eleventh Amendment Immunity
The Eleventh Amendment of the United States Constitution bars suits by private citizens
against a state in federal court. Union Pac. R. Co. v. Louisiana Pub. Serv. Comm’n, 662 F.3d
336, 340 (5th Cir. 2011); K.P. v. Leblanc, 627 F.3d 115, 124 (5th Cir. 2010) (citing Hutto v.
Finney, 437 U.S. 678, 700 (1978)); see U.S. CONST. amend. XI (“The Judicial power of the
United States shall not be construed to extend to any suit in law or equity, commenced or
prosecuted against one of the United States by Citizens of another State, or by Citizens or
Subjects of any Foreign State.”). It divests federal courts of subject-matter jurisdiction over suits

against a state, unless the state has waived immunity or Congress has enacted a valid override.
Kentucky v. Graham, 473 U.S. 159, 169 (1985); Perez v. Region 20 Educ. Serv. Ctr., 307 F.3d
318, 326 (5th Cir. 2002).
Section 1983 does not include a waiver of the states’ sovereign immunity, and the State
of Texas has not waived its Eleventh Amendment immunity. Quern v. Jordan, 440 U.S. 332, 338
(1979); Sherwinski v. Peterson, 98 F.3d 849, 852 (5th Cir. 1996). In addition, it is well-settled
that “a State is not a ‘person’ within the meaning of § 1983.” Will v. Michigan Dep’t of State
Police, 491 U.S. 58, 65 (1989).
Federal claims against state employees in their official capacities are the equivalent of

suits against the state. Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71 (1989); Monell v.
Dep’t of Soc. Servs. of New York, 436 U.S. at 658, 690 n. 55 (1978). The bar of the Eleventh
Amendment is in effect when state officials are sued for monetary damages or retrospective
relief in their official capacities. See Kentucky v. Graham, 473 U.S. 159, 169 (1985); Cory v.
White, 457 U.S. 85, 90 (1982). This is so because “a judgment against a public servant ‘in his
official capacity’ imposes liability on the entity that he represents.” Graham, 473 U.S. at 169
(quoting Brandon v. Holt, 469 U.S. 464, 471 (1985)).
Regarding § 1983 claims, again a state is not considered a “person” within the statute’s
meaning. Will, 491 U.S. at 64. Thus, although state officials literally are persons, if sued in their
official capacities, they are not deemed “persons” for purposes of § 1983. Id. at 71. A suit against
an official in his or her official capacity is not a suit against the official but rather is a suit against
the official’s office. Id.; Brandon, 469 U.S. at 471. As such, it is no different from a suit against
the state itself. Will, 491 U.S. at 71 (citing Graham, 473 U.S. at 165–66; Monell, 436 U.S. at 690
n.55). Therefore, § 1983 suits brought against state officials in their official capacities for

monetary damages or retrospective relief are barred under the Eleventh Amendment. See
Graham, 473 U.S. at 169; Cory, 457 U.S. at 90.
For these reasons, Plaintiff’s claim against Defendants Judge Justin Low, to the extent
this claim is asserted against them in their official capacities, is barred by the Eleventh
Amendment with regard to any claim for monetary damages or retrospective relief. Thus, in this
regard, Plaintiff has failed to state a non–frivolous claim on which relief may be granted. See
Neitzke, 490 U.S. at 325; 28 U.S.C. §§ 1915(e)(2)(B)(i)–(ii), 1915A(b)(1).
2. Judicial Immunity
“The federal civil rights laws do not provide a vehicle ... to sanction the conduct of state

court judges for actions taken within the scope of their judicial authority.” Bogney v. Jones, 904
F.2d 272, 274 (5th Cir. 1990). It is well-settled that a judge enjoys absolute immunity in his
individual capacity from liability for damages for judicial acts performed within his jurisdiction.
Mays v. Sudderth, 97 F.3d 107, 110–11 (5th Cir. 1996); Hale v. Harney, 786 F.2d 688, 690 (5th
Cir. 1986). Judicial immunity is immunity from suit, not just the assessment of damages. Ballard
v. Wall, 413 F.3d 510, 515 (5th Cir. 2005). When assessing entitlement to judicial immunity, the
Fifth Circuit has held that “[i]t is the Judge’s actions alone, not intent, that we must consider.”
Malina v. Gonzales, 994 F.2d 1121, 1125 (5th Cir. 1993).
The doctrine of absolute judicial immunity protects judges from liability for all actions
taken in their judicial capacities, so long as they do not act in a clear absence of all jurisdiction.
Mireles v. Waco, 502 U.S. 9, 11–12 (1991). The doctrine of absolute judicial immunity protects
judicial officers not only from liability, but also from suit. Mireles, 502 U.S. at 11; Davis v.
Tarrant County, Texas, 565 F.3d 214, 221 (5th Cir. 2009). The doctrine of absolute judicial

immunity applies to judicial acts of judges acting within their jurisdiction even in suits brought
pursuant to § 1983. Pierson v. Ray, 386 U.S. 547, 554 (1967); Mays, 97 F.3d at 111.
Absolute judicial immunity does not apply in certain limited circumstances. Mireles, 502
U.S. at 11–12; Davis, 565 F.3d at 221. First, judges are not immune from liability for non-
judicial actions, i.e., actions not taken in the judge’s judicial capacity. Mireles, 502 U.S. at 11–
12; Davis, 565 F.3d at 221. Second, judges are not immune for actions, though judicial in nature,
taken in complete absence of all jurisdiction. Mireles, 502 U.S. at 11–12; Davis, 565 F.3d at 221.
Finally, judges are not immune when the plaintiff seeks prospective relief for an allegedly
ongoing violation of federal law. See Ex parte Young, 209 U.S. 123, 155–56 (1908).

As to all such actions, judicial immunity bars Plaintiff’s claims arising under 42 U.S.C
§ 1983, Ballard v. Wall, 413 F.3d at 515, and those arising under Texas tort law, Turner v. Pruitt,
161 Tex. 532, 535, 342 S.W.2d 422, 423 (1961) (holding the “reasons underlying immunity of
district judges from tort liability for acts performed or not performed in judicial proceedings
require a conclusion that justices of the peace should enjoy a like immunity when acting in the
course of judicial proceedings of which they have jurisdiction”). All the factors considered here
indicate the Judge in this case was acting in accordance with his occupational duties, and
therefore Defendant Judge Justin Low should be entitled to judicial immunity.
The Fifth Circuit has repeatedly held that “judges are entitled to absolute immunity for all
actions taken in their judicial capacity, even when allegedly rooted in malice and corruption....”
Avdeef v. Royal Bank of Scot., P.L.C., 616 F. App’x 665, 674 (5th Cir. 2015) (per curiam) (citing
Ballard, 413 F.3d at 515) (emphasis in original); see also Mitchell v. McBryde, 944 F.2d 229,
230 (5th Cir. 1991) (“Judges are immune from damages claims arising out of acts performed in

the exercise of their judicial functions, even when the judge is accused of acting maliciously.”
(citing McAlester v. Brown, 469 F.2d 1280, 1282 (5th Cir. 1972); Stump, 435 U.S. at 359));
Brown v. Anderson, No. 16-CV-0620, 2016 WL 6903730, at *3 (N.D. Tex. Oct. 5, 2016), R & R
adopted, 2016 WL 6893723 (N.D. Tex. Nov. 21, 2016) (“Plaintiff’s lawsuit against the justices
... cannot succeed and it must be dismissed on the basis of absolute immunity.”) (citation
omitted); Crissup v. Greenwell, No. 13-cv-137, 2013 WL 12090341, at *2 (S.D. Tex. July 8,
2013), R & R adopted, 2013 WL 12090342 (S.D. Tex. Aug. 7, 2013), aff’d, 568 F. App’x 309
(5th Cir. 2014) (citations omitted).
Based on the foregoing, the Court finds claim against Judge Justin Low in his individual

capacity for monetary or other retrospective relief is barred by judicial immunity. See Mays, 97
F.3d at 110–11; Bogney, 904 F.2d at 274; see also U.S. CONST. amend. XI. “The fact that it is
alleged that the judge acted pursuant to a conspiracy ... is not sufficient to avoid absolute judicial
immunity.” Mitchell v. McBryde, 944 F.2d 229, 230 (5th Cir. 1991). It appears from the filings
that there is nothing to suggest that the judge took actions beyond his judicial capacities or acted
in the absence of jurisdiction. See Mireles, 502 U.S. at 11–12. Nor does Plaintiff appear to seek
prospective relief for an allegedly ongoing violation of federal law. See Ex parte Young, 209
U.S. at 155–56. Thus, as to Judge Justin Low, Plaintiff has failed to state a non–frivolous claim
upon which this Court may grant relief and sought monetary relief against defendants who were
immune from such relief. See Neitzke, 490 U.S. at 325; 28 U.S.C. §§1915(e)(2)(B)(i)–(iii),
1915A(b)(1)–(2).
3. Odessa Police Department
The capacity of a governmental entity to sue or be sued in federal court is determined by
state law. See FED. R. CIV. P. 17(b). As a result, for example, “[a]lthough a municipal

corporation and the individual members of its city council may have capacity to sue and be sued,
the council itself may not be a legal entity for purposes of Rule 17(b).” Wright, Miller, & Kane,
6A Federal Practice and Procedure: Civil 2d §1562, p. 454 (West Publishing, 2d ed. 1990).
Under Texas law, a city or county can designate whether its departments or subdivisions can sue
or be sued. See, e.g., Darby v. Pasadena Police Dept., 939 F.2d 311, 313 (5th Cir. 1991) (“A
Texas city is allowed to designate whether one of its own subdivisions can be sued as an
independent entity.”) A plaintiff cannot sue a city or county department or subdivision unless it
enjoys separate legal existence. Id. In this case, Plaintiff has not alleged facts showing that the
Odessa Police Department has been established as a separate legal entity with the capacity to sue

and be sued.
Section 1983 imposes liability on any “person” who violates someone’s constitutional
rights while acting under color of state law. 42 U.S.C. § 1983; see Will v. Mich. Dep’t of State
Police, 491 U.S. 58 (1989). As noted, Plaintiff contends the Odessa Police Department has
wrongly led to his detention. (Docs. 1, 11). “Federal courts in Texas have uniformly held that
entities without a separate jural existence are not subject to suit.” Torti v. Hughes, No. 07-CV-
1476-M, 2007 WL 4403983, at *2 (N.D. Tex. Dec. 17, 2007). The Odessa Police Department is
simply not a legal entity capable of being sued. See, e.g., Martin v. City of San Antonio, No. SA-
05-CA-0020-XR, 2006 WL 2062283, *2 n.1 (W.D. Tex. 2006 July 25, 2006) (citing Darby v.
Pasadena Police Dep’t, 939 F.2d 311, 313 (5th Cir. 1991)).
The “[c]apacity to sue or be sued” is governed by “the law of the state where the court is
located.” FED. R. CIV. P. 17(b)(3). Thus, Texas law governs this question. To sue a county or a
city department in Texas, “[the department] must enjoy a separate legal existence,” i.e., it must
be a “separate and distinct corporate entity.” Lone Star Chapter Paralyzed Veterans of Am. v.

City of San Antonio, No. 10–CV–316–XR, 2010 WL 3155243, at *1 (W.D. Tex. Aug. 10, 2010)
(quoting Darby, 939 F.2d at 313). Accordingly, unless the “true political entity” has granted the
department jural authority, it may not sue or be sued. Id.
This Court now finds that the Odessa Police Department has not been granted jural
authority, noting that as a home-rule municipality that reserved all general powers, including the
right to sue or be sued, the City of Odessa created the Police Department as a department of city
or county government, but did not grant it the right to sue or be sued. In addition, Plaintiff’s
claim against the Odessa Police Department ignores the well-settled principle that vicarious
liability does not apply to § 1983 claims and must be dismissed. See Connick v. Thompson, 563

U.S. 51, 60 (2011) (holding municipality could not be held liable under § 1983 absent proof its
failure to adequately train employees rose to level of deliberate indifference to rights of its
citizens).
The Court recommendation Plaintiff’s claim against the Odessa Police Department be
sua sponte dismissed with prejudice as this Court has determined that Plaintiff seeks to sue an
entity in the Odessa Police Department that has no separate legal existence and therefore, seeks
monetary relief against a defendant who is immune from such relief and is, therefore, frivolous.
28 U.S.C. §§ 1915(e)(2)(B)(i), (ii), (iii), 1915A(b)(1)–(2).
4. Leave to Amend
Generally, a court should allow a pro se plaintiff an opportunity to further develop his
allegations or remedy inadequacies in his complaint before dismissal. See Neitzke v. Williams,
490 U.S. 319, 329 (1989); Century Sur. Co. v. Blevins, 799 F.3d 366, 372 (Sth Cir. 2015). That
said, allowing a pro se plaintiff to further develop his allegations is “unnecessary in cases where
the ... legal theory upon which a complaint relies is ‘indisputably meritless.’” Eason v. Thaler,
14 F.3d 8, 9, n.5 (Sth Cir. 1994) (quoting Neitzke, 490 U.S. at 928); see Nichols v. Taylor, 928
F.3d 365, 370 (Sth Cir. 2016). Here, affording Plaintiff an opportunity to amend his Complaint is
unnecessary because it cannot be amended to assert a viable claim against these Defendants. See,
supra.
IV. RECOMMENDATION
The Court RECOMMENDS Plaintiff's Complaint against Defendant Judge Justin Low
and Defendant Odessa Police Department be sua sponte DISMISSED pursuant to 28 U.S.C.
§§ 1915(e)(2)(B)G)—-Giii) and 1915A(b)(1)-(2) for the failure of Plaintiff to state a non-frivolous
claim upon which relief can be granted as well as for seeking monetary relief against defendants
who are immune from such relief.
SIGNED this 22nd day of August, 2025.

L047
RONALD C. GRIFFIN
UNITED STATES MAGISTRATE JUDGE

1]

INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO APPEAL/OBJECT

In the event that a party has not been served by the Clerk with this Report and
Recommendation electronically, pursuant to the CM/ECF procedures of this District, the Clerk is
ORDERED to mail such party a copy of this Report and Recommendation by certified mail.
Pursuant to 28 U.S.C. § 636(b)(1), any party who desires to object to this report must serve and
file written objections within fourteen (14) days after being served with a copy. A party filing
objections must specifically identify those findings, conclusions, or recommendations to which
objections are being made; the District Judge need not consider frivolous, conclusive, or general
objections. Such party shall file the objections with the Clerk of the Court and serve the
objections on all other parties. A party’s failure to file such objections to the proposed findings,
conclusions, and recommendations contained in this report shall bar the party from a de novo
determination by the District Judge. Additionally, a party’s failure to file written objections to
the proposed findings, conclusions, and recommendations contained in this report within
fourteen (14) days after being served with a copy shall bar that party, except upon grounds of
plain error, from attacking on appeal the unobjected-to proposed factual findings and legal
conclusions accepted by the District Judge. Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415,
1428–29 (5th Cir. 1996).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11145924. Public record. Not legal advice.