Lewis

Southern District of Texas

ENTERED

UNITED STATES DISTRICT COURT March 26, 2026

SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk

GALVESTON DIVISION

AUSTIN LEWIS, §

Plaintiff. :

V. CIVIL ACTION NO. 3:25-cv-00201

OFFICER TAUCH, et al., :

Defendants.

MEMORANDUM AND RECOMMENDATION

Pending before me is a motion to dismiss filed by Defendants Officer Dennis

Gardner, Officer Logan Frankland, Sergeant Christopher McNeil, and the City of

Galveston. See Dkt.35. Having reviewed the briefing, the record, and the

applicable law, I recommend that the motion be granted. I also recommend that

Lewis’s claims against the still-unserved Officer Hunter Tauch in his individual

capacity be sua sponte dismissed for failure to timely effect service, and the claims

against Tauch in his official capacity be dismissed as redundant.

BACKGROUND:

Plaintiff Austin Lewis, representing himself, brings this lawsuit asserting

claims against four Galveston Police Department officers and the City of Galveston

(the “City”) under 42 U.S.C. § 1983. Lewis alleges violations of his constitutional

rights to be free from unreasonable seizure, wrongful arrest, deprivation of liberty

without due process, and retaliation for protected speech. Lewis’s claims arise from

an interaction with Gardner, Frankland, McNeil, and Tauch (collectively, the

“Officers”) on the early morning of May 13, 2023.

1On January 23, 2026, I gave Lewis until February 13, 2026, to file a Second Amended

Complaint including all factual allegations and legal theories he seeks to advance in this

case. See Dkt. 29 at 2. Lewis did not file an amended complaint. Accordingly, this

background section is derived from Lewis’s First Amended Complaint (Dkt. 17) and, at

this juncture, I take all of Lewis’s well-pleaded facts as true.

According to Lewis, the Officers executed a traffic stop near the vicinity of

3300 Avenue K in Galveston, Texas around midnight on May 13, 2023. Lewis was

in the vicinity of the traffic stop as it occurred. At some point, Lewis verbally

criticized the Officers and used profane and offensive language, but did not

physically interfere with the Officers or threaten them or any bystanders. The

Officers handcuffed and detained Lewis because a bystander in the area appeared

to be offended by the content of Lewis’s speech. Lewis was released without any

charges being filed against him.

On May 13, 2025, Lewis instituted this lawsuit against Defendants. Lewis

asserts § 1983 claims of unlawful detention, unlawful arrest, deprivation of liberty

without due process, First Amendment retaliation, and several Texas state-law tort

claims against the Officers. Lewis claims the City of Galveston is also liable because

it has a policy, procedure, custom, practice, or protocol of: (4) tolerating unlawful

detentions and arrests based on protected speech; (2) failing to adequately train or

supervise officers regarding citizens’ First Amendment rights; (3) failing to

properly investigate or discipline officers who engage in retaliatory detention or

arrest of citizens; and (4) a pattern of condoning or failing to correct conduct

whereby citizens are detained or handcuffed for non-criminal speech. Lewis also

asserts a Texas state law negligence claim against the City.

The Officers move to dismiss Lewis’s claims, arguing that (1) they are

entitled to qualified immunity, and (2) Lewis fails to state a claim against them.

The City moves to dismiss for failure to state a claim. To date, Lewis has not filed

a response to the motion to dismiss. Even so, the Fifth Circuit has held that it is

improper to grant a motion to dismiss solely based on a plaintiffs failure to

respond. See Johnson v. Pettiford, 442 F.3d 917, 918-19 (5th Cir. 2006).

Accordingly, I will consider the motion to dismiss on the merits.

3 Tauch is not a movant, because he has not been served. But the Officers’ arguments

apply with equal force to Tauch, which is an independent reason for the court to sua

sponte dismiss Lewis’s claims against Tauch.

LEGAL STANDARD

A. RULE12(b)(6) MOTION TO DISMISS

Defendants are entitled to dismissal if Lewis’s complaint “fail[s] to state a

claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). “To survive a

motion to dismiss, a complaint must contain 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) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

(2007)). “A claim has facial plausibility when the plaintiff pleads factual content

that allows the court to draw the reasonable inference that the defendant is liable

for the misconduct alleged.” Iqbal, 556 U.S. at 678. Although a complaint need not

contain detailed factual allegations, it “must provide the plaintiffs grounds for

entitlement to relief—including factual allegations that when assumed to be true

raise a right to relief above the speculative level.” Cuvillier v. Taylor, 503 F.3d 397,

401 (5th Cir. 2007) (quotation omitted). “Threadbare recitals of the elements of a

cause of action, supported by mere conclusory statements, do not suffice.” Iqbal,

556 U.S. at 678. Nor will legal conclusions couched as factual allegations satisfy

this standard. See Papasan v. Allain, 478 U.S. 265, 286 (1986).

I must accept “all well-pleaded facts as true and view[] those facts in the light

most favorable to the plaintiff.” True v. Robles, 571 F.3d 412, 417 (5th Cir.

2009) (quotation omitted). “A document filed pro se is to be liberally construed,

and a pro se complaint, however inartfully pleaded, must be held to less stringent

standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S.

89, 94 (2007) (cleaned up). “Liberal construction is afforded to pro se litigants to

serve as a Shield, in line with the ‘congressional goal of assuring equality of

consideration for all litigants’ behind the federal in forma pauperis statute.”

Carmouche v. Hooper, 77 F.4th 362, 368 (5th Cir. 2023) (quoting Denton v.

Hernandez, 504 U.S. 25, 32 (1992)). Pro se litigants are not excused, however,

from complying with the Federal Rules of Civil Procedure. See Carmouche, 77

F.4th at 368 (noting that pro se complaints must still comply with Rule 8’s notice

pleading requirement).

B. 42U.S.C.§ 1983

Section 1983 provides, in relevant part:

Every person who, under color of any statute, ordinance,

regulation, custom, or usage, of any State ..., subjects, or causes to

be subjected, any citizen of the United States . . . to the deprivation of

any rights, privileges, or immunities secured by the Constitution and

laws, shall be liable to the party injured in an action at law, suit in

equity, or other proper proceeding for redress.

42 U.S.C. § 1983. “Section 1983 is not itself a source of substantive rights, but

merely provides a method for vindicating federal rights elsewhere

conferred.” Albright v. Oliver, 510 U.S. 266, 271 (1994) (quotation omitted).

To establish § 1983 liability against the Officers, Lewis must “(1) allege a

violation of a right secured by the Constitution or laws of the United States” and

(2) demonstrate that the Officers were “acting under color of state law.” Moore v.

Willis Indep. Sch. Dist., 233 F.3d 871, 874 (5th Cir. 2000).

Municipalities like the City are not liable under § 1983 based solely on their

employees’ actions. See Valle v. City of Houston, 613 F.3d 536, 541 (5th Cir. 2010).

Lewis may prevail against the City only if “the action that is alleged to be

unconstitutional implements or executes a policy statement, ordinance,

regulation, or decision officially adopted and promulgated by [the City]’s

officers.” Monell v. Dep’t of Soc. Servs. of N.Y., 436 U.S. 658, 690 (1978).

Establishing the City’s liability under § 1983 requires Lewis to 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, 613 F.3d at 541—42 (quotation omitted).

ANALYSIS

A. LEWIS’S CLAIMS ARE NOT TIME-BARRED

Before reaching the merits of Defendants’ motion to dismiss, I must first

address Defendants’ contention that Lewis’s claims are barred by the statute of

limitations. See Dkt. 35 at 17.

“Because there is no federal statute of limitations for civil rights actions

brought pursuant to 42 U.S.C. § 1983, a federal court borrows the forum state’s

general personal injury limitations period.” Gartrell v. Gaylor, 981 F.2d 254, 256

(5th Cir. 1993). “In Texas, the applicable limitations period is two years.” Id. at

256-57 (citing Tex. Civ. Prac. & Rem. Code § 16.003(a)). Although Texas provides

the limitations period, “federal law governs when a cause of action under § 1983

accrues. Under federal law, a cause of action accrues when the plaintiff knows or

has reason to know of the injury which is the basis of the action.” Gartrell, 981 F.2d

at 257 (cleaned up).

Lewis complains of constitutional violations occurring on May 13, 2023. See

Dkt. 17. On May 13, 2025, Lewis filed an application to proceed in forma pauperis,

to which his complaint was attached. See Application to Proceed In Forma

Pauperis, Lewis v. Officer Tauch, et al., No. 3:25-mc-00012 (S.D. Tex. May 13,

2025), ECF No. 1. “For statute of limitations purposes, a complaint in an action in

which leave to proceed in forma pauperis is requested is generally deemed to have

been filed on the day the motion [to proceed in forma pauperis] is received by the

clerk.” Walter v. Ports Am., No. 4:09-cv-3663, 2011 WL 5415176, at *4 (S.D. Tex.

Nov. 8, 2011) (collecting cases). Because Lewis’s complaint was attached to his

application to proceed in forma pauperis, the clerk received the complaint on May

13, 2025, exactly two years after the first alleged violation of Lewis’s constitutional

rights. Accordingly, Lewis’s claims are timely.

B. REPORT AND BODY CAMERA FOOTAGE

Having established that Lewis’s claims are timely, I must answer a second

threshold question: whether it is appropriate to consider evidence of the events

described in Lewis’s complaint at this early stage. Movants attach a Computer-

Aided Dispatch Report (“CAD Report”) of the encounter and a clip of video footage

from Officer Tauch’s body camera to their motion to dismiss. See Dkt. 35-1 (CAD

Report); Dkt. 20 (body camera footage). Defendants argue that “[r]ecordings and

documents central to Plaintiffs claims assist in establishing the basis for [this]

suit” and that this court may “take judicial notice of public records when assessing

the sufficiency of pleading allegations.” Dkt. 35 at 14-15. Defendants also posit that

Recordings before the Court blatantly contradict assertions that

all[:]; (4) “Defendants” detained Plaintiff, placed him in handcuffs,

and restricted his freedom of movement.”; “Defendants stated

justification for detaining Plaintiff was that a bystander appeared to

be offended by Plaintiffs speech.”; “Defendants” [or that any

Defendant] arrested Plaintiff. The recordings establish that Sergeant

McNeil is the only Defendant who interacted with Plaintiff, and that

Sergeant McNeil merely performed a temporary investigative

detention, not an arrest.

Id. at 15 (cleaned up).

The general rule is that courts should consider “the contents of the pleadings

and the attachments thereto when deciding a motion to dismiss under Rule

12(b)(6).” Villarreal v. Wells Fargo Bank, N.A., 814 F.3d 763, 766 (5th Cir. 2016).

I may, however, consider “documents that a defendant attaches to a motion to

dismiss if they are referred to in the plaintiffs complaint and are central to [his]

claim.” Id. (cleaned up).

1. The Body Camera Footage Is Not Referred to in Lewis’s

Complaint or Central to Lewis’s Claims

Defendants incorrectly argue that Lewis referenced the body camera footage

in his complaint. See Dkt. 35 at 15. Lewis does not make a single reference to body

camera footage in his complaint. See Dkt. 17. The lack of reference to the footage

in Lewis’s complaint is reason enough not to consider it. See Ambler v. Williamson

County, No. 1-20-cv-1068, 2021 WL 769667, at *3 (W.D. Tex. Feb. 25, 2021)

(declining to consider video footage at motion to dismiss stage when the plaintiff

did not refer to it in his complaint).

I also refuse to consider the footage because “merely depicting allegations in

a complaint does not make that video central to a plaintiff's claims.” Nunn v.

Converse Police Dep’t, No. SA-24-cv-935, 2025 WL 2673904, at *1 (W.D. Tex.

Sept. 17, 2025); see also Zeng v. City of Joshua, No. 3:23-cv-1570, 2025 WL

847885, at *3 (N.D. Tex. Mar. 18, 2025); Ramos v. Taylor, 646 F. Supp. 3d 807,

815 (W.D. Tex. 2022); Ambler, 2021 WL 769667, at *3.

2. The CAD Report Is Not Central to Lewis’s Claims

Lewis makes two references to the CAD Report in the First Amended

Complaint. See Dkt. 17 at 2 (“Defendants . . . initiated contact with [Lewis] during

what was recorded as a traffic stop according to police CAD Report No. 2023-

255359.”); id. at 3 (“[A] report note indicates that ‘the subject recanted and stated

that he was not offended.”). These passing references to the CAD Report, however,

do not automatically make the document admissible at the motion to dismiss stage.

See Bass v. Jackson, 776 F. Supp. 3d 535, 545 (E.D. Tex. 2025). As already noted,

“[dJocuments that a defendant attaches to a motion to dismiss are considered part

of the pleadings if they are referred to in the plaintiffs complaint and are central

to her claim.” Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498—99 (5th

Cir. 2000) (quotation omitted). I find it illuminating that Lewis does not rely on

the CAD Report “to establish an element of [his] claim.” Dawes v. City of Dallas,

No. 3:17-cv-01424, 2020 WL 3603090, at *2 (N.D. Tex. July 2, 2020). As such, the

CAD Report is better classified as central to Defendants’ defenses rather than

central to Lewis’s claims. See Scanlan v. Tex. A&M Univ., 343 F.3d 533, 537 (5th

Cir. 2003) (holding that attachments to motion to dismiss were not central to the

plaintiffs claims but “much more central to the [defendants]’ defenses.”). I will,

therefore, not consider the CAD Report in ruling on the motion to dismiss.

3. The Evidence Is Not Properly Subject to Judicial Notice

Defendants argue that I may take judicial notice of matters of public record

without converting the motion to dismiss into a motion for summary judgment. I

decline to do so. Notably, the body camera footage attached to Defendants’ motion

to dismiss is only one account of the events that occurred. The footage does not

capture Lewis’s conduct, speech, or the full scope of the interaction between him

and the Officers. Because “[t]he actions and statements contained within the

videos are neither ‘generally known within the trial court’s territorial jurisdiction’

nor ‘accurately and readily determined from sources whose accuracy cannot

reasonably be questioned,” it would be improper to take judicial notice of the

contents of the body camera footage for purposes of a motion to dismiss. Polnac v.

City of Sulphur Springs, 555 F. Supp. 3d 309, 325 (E.D. Tex. 2021) (quoting Fed.

R. Evid. 201(b)) (declining to judicially notice body camera footage at the 12(b)(6)

stage). Nor have Defendants shown that the footage qualifies as a public record.

See Smith v. City of Greensboro, No. 1:19cv386, 2020 WL 1452114, at *4 (M.D.N.C.

Mar. 25, 2020) (ignoring defendant’s request to judicially notice body camera

footage at the motion to dismiss stage). Similarly, I see no need to take judicial

notice of the CAD Report at this stage, as the facts contained within it are “subject

to reasonable dispute.” Fed. R. Civ. P. 201(b).5

C. OFFICIAL CAPACITY SUITS SHOULD BE DISMISSED AS REDUNDANT

The Officers are all sued in their individual and official capacities. See Dkt. 17

at 1-2. “[A]n official-capacity suit is, in all respects other than name, to be treated

4 Defendants do not specify whether they want me to take judicial notice of the fact that

the body camera footage exists, or to take as true the contents of the footage for purposes

of determining whether Defendants’ actions were reasonable. I assume that Defendants

intend the latter.

5 Defendants’ argument that “[w]hen a document is filed with the court, it is filed in the

public record, and that is when the document becomes a judicial record” is too clever.

Dkt. 35 at 15. If all it takes to get a court to judicially notice evidence on a motion to

dismiss without converting the motion to one for summary judgment is to simply file the

evidence on the court’s docket and pronounce it a public record, then the law about

considering only the four corners of the plaintiffs’ pleading would be meaningless.

as a suit against the entity.” Kentucky v. Graham, 473 U.S. 159, 166 (1985). “Thus,

when a plaintiff asserts claims against both the municipal entity and a municipal

official in his or her official capacity, the Court can dismiss the official capacity

claim as ‘redundant’ to the municipal-entity claim.” Bustillos v. El Paso Cnty.

Hosp. Dist., 226 F. Supp. 3d 778, 789 (W.D. Tex. 2016) (quoting Sanders-Burns v.

City of Plano, 594 F.3d 366, 373 (5th Cir. 2010)), aff'd, 891 F.3d 214 (5th Cir.

2018). Because Lewis has sued the City, I recommend that Lewis’s claims against

all the Officers in their official capacities—Tauch, Frankland, Gardner, and

McNeil—be dismissed as redundant.

D. _LEWIS’sS CLAIMS AGAINST TAUCH SHOULD BE DISMISSED FOR FAILURE

TO TIMELY EFFECT SERVICE

“If a defendant is not served within 90 days after the complaint is filed, the

court—on motion or on its own after notice to the plaintiff—must dismiss the

action without prejudice against that defendant.” Fed. R. Civ. P. 4(m). “Pro se

status does not excuse a litigant’s complete failure to effect service.” Sys. Signs

Supplies v. U.S. Dep’t of Justice, 903 F.2d 1011, 1013 (5th Cir. 1990).

Lewis instituted this lawsuit on May 13, 2025, and had until August 11, 2025,

to serve Tauch. Lewis made two attempts to serve Tauch, both unsuccessful. See

Dkts. 13, 28. Over 10 months have passed since Lewis’s filed his complaint, and

Tauch has still not been served. Because Lewis has failed to timely effect service on

Tauch, I recommend that his claims against Tauch be sua sponte dismissed.

E. QUALIFIED IMMUNITY

Law enforcement officers sued in their individual capacity under § 1983 are

entitled to assert the defense of qualified immunity, which is “an immunity from

suit rather than a mere defense to liability.” Mitchell v. Forsyth, 472 U.S. 511, 526

(1985). “Qualified immunity protects government officials from civil liability in

their individual capacity to the extent that their conduct does not violate clearly

established statutory or constitutional rights.” Cass v. City of Abilene, 814 F.3d

721, 728 (5th Cir. 2016). It is a judicially created doctrine designed to avoid “the

expenses of litigation, the diversion of official energy from pressing public issues,

and the deterrence of able citizens from acceptance of public office.” Harlow v.

Fitzgerald, 457 U.S. 800, 814 (1982). The doctrine arises from “the danger that

fear of being sued will dampen the ardor of all but the most resolute, or the most

irresponsible public officials, in the unflinching discharge of _ their

duties.” Id. (cleaned up).

The Officers contend that they are each entitled to qualified immunity. To

overcome their qualified immunity defenses, Lewis must allege “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.” Ashcroft v. al-Kidd,

563 U.S. 731, 735 (2011) (quoting Harlow, 457 U.S. at 818). “These steps may be

considered in either order.” Shumpert v. City of Tupelo, 905 F.3d 310, 320 (5th

Cir. 2018).

The first step asks whether the alleged facts “show the officer’s conduct

violated a constitutional right.” Saucier v. Katz, 533 U.S. 194, 201 (2001). If Lewis’s

allegations, viewed favorably, do not establish a constitutional violation, no further

inquiry is necessary. See id. The second step “asks whether the right in question

was Clearly established at the time of the violation.” Tolan v. Cotton, 572 U.S. 650,

656 (2014) (quotation omitted). The Officers are “shielded from liability for civil

damages if their actions did not violate clearly established statutory or

constitutional rights of which a reasonable person would have known.” Hope v.

Pelzer, 536 U.S. 730, 739 (2002) (quotation omitted). “A right is clearly

established only if the right’s contours were sufficiently definite that any

reasonable official in the defendant’s shoes would have understood that he was

violating it.” Mote v. Walthall, 902 F.3d 500, 505 (5th Cir. 2018) (quotation

omitted). “[T]he salient question . . . is whether the state of the law” at the time of

the incident gave the Officers “fair warning that their alleged [conduct] was

unconstitutional.” Hope, 536 U.S. at 741. Lewis bears a heavy burden on this prong

because a right is clearly established only if relevant precedent has “placed the...

constitutional question beyond debate.” al-Kidd, 563 U.S. at 741.

10

“[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.” Arnold v. Williams, 979 F.3d 262, 267 (5th Cir.

2020) (quotation omitted).

1. Fourteenth Amendment Claim

I will start with Lewis’s Fourteenth Amendment claim. Lewis alleges that he

“had a clearly established liberty interest in being free from arbitrary, retaliatory,

and unjustified detention and restraint by government officials.” Dkt.17 at 4.

Defendants move to dismiss Lewis’s Fourteenth Amendment claim, arguing that

“where, as here, a provision of the Constitution, the First and Fourth

Amendments—provide an explicit textual source of Constitutional protection, a

court must assess Plaintiffs claim under that explicit provision, and not due

process.” Dkt. 35 at 22. Defendants are spot-on.

The Supreme Court has expressly held that “where another provision of the

Constitution provides an explicit textual source of constitutional protection, a

court must assess a plaintiff's claims under that explicit provision and not the more

generalized notion of substantive due process.” Conn v. Gabbert, 526 U.S. 286,

293 (1999) (cleaned up).

Lewis brings claims under the Fourteenth Amendment for the same

allegedly “physically intrusive governmental conduct” that he seeks redress for

under the Fourth Amendment. Graham v. Connor, 490 U.S. 386, 395 (1989).

“Because [Lewis’s] allegations are more appropriately addressed under the Fourth

Amendment, [his] Fourteenth Amendment due process claim must be dismissed.”

Limon v. City of Laredo, No. 5:24-cv-113, 2025 WL 2208851, at *8 (S.D. Tex. Aug.

4, 2025). Thus, I recommend Lewis’s Fourteenth Amendment claims be dismissed.

2. First and Fourth Amendment Claims

Lewis’s First and Fourth Amendment claims both suffer from the same fatal

defect: Lewis fails to identify personal involvement by any of the Officers. For

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example, Lewis alleges that “Defendants detained Plaintiff, placed him in

handcuffs, and restricted his freedom of movement.” Dkt.17 at 2 (emphasis

added). But Lewis must specify which Defendant detained him, placed him in

handcuffs, and restricted his freedom of movement to plausibly state a claim. He

does not do so for any of his claims.

Lewis alleges that “Defendants’ decision to detain, handcuff, and restrict

Plaintiffs liberty was substantially motivated by Plaintiff's protected speech and

the content of that speech”. Jd. at 3 (emphasis added). He goes on to allege that

“Defendants, ... detained Plaintiff without reasonable suspicion that he had

committed, was committing, or was about to commit a criminal offense.” Id. at 4

(emphasis added). Finally, he alleges that “Defendants ... subjected him to an

arrest or de facto arrest within the meaning of the Fourth Amendment.” Id.

(emphasis added). None of these allegations tell me who specifically performed an

alleged unlawful action.

Lewis’s non-specific, group-pleading allegations cannot withstand a motion

to dismiss. See Armstrong v. Ashley, 60 F.4th 262, 274-75 (5th Cir. 2023) (“[A]

§ 1983 plaintiff ‘must plead that each Government-official defendant, th[r]ough

the official’s own individual actions, has violated the Constitution.” (quoting Iqbal,

556 U.S. at 676)); Martinez v. City of N. Richland Hills, 846 F. App’x. 238, 243

(5th Cir. 2021) (“[A]llegations based on a theory of collective responsibility cannot

withstand a motion to dismiss.” (quotation omitted)). Accordingly, Lewis’s

unlawful detention, unlawful arrest, and First Amendment retaliation claims must

be dismissed.”

F. THE CITY OF GALVESTON

For all the reasons discussed above, Lewis has not established a

constitutional violation. Because Lewis has not established a constitutional

violation, his claims against the City must be dismissed. See Romero v. City of

7 I recommend that Lewis’s First, Fourth, and Fourteenth Amendment claims against

Tauch be sua sponte dismissed for the same reasons.

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Grapevine, 888 F.3d 170, 178 (5th Cir. 2018) (holding that claims against a

municipality “cannot survive” where the plaintiff “failed to demonstrate” a

constitutional violation); Whitley v. Hanna, 726 F.3d 631, 648 (5th Cir. 2013) (“All

of Whitley’s inadequate supervision, failure to train, and policy, practice, or custom

claims fail without an underlying constitutional violation.”).

G. STATE LAW CLAIMS

Lewis alleges Texas state law claims of negligence, false imprisonment, and

assault against the Officers and a Texas state law claim of negligence against the

City. See Dkt. 17 at 6. Defendants move to dismiss the claims on the grounds that

The alleged facts show that the claims [Lewis] asserts under Texas law

are intentional torts that provide no basis for waiving governmental

immunity... [and] the City is immune from [Lewis]’s claims asserted

under Texas law because [he] has not alleged facts which show that

his alleged injury was caused by a condition or governmental

employee’s use of tangible property, as required to state a claim that

overcomes immunity under Tex. Civ. Prac. & Rem. Code § 101.021.

Dkt. 35 at 31.

1. The City of Galveston

“A Texas governmental unit is generally immune from tort liability unless

the legislature has somehow waived immunity.” Forgan v. Howard County, 494

F.3d 518, 520 (5th Cir. 2007). “The Tort Claims Act expressly waives sovereign

immunity in three areas: use of publicly owned automobiles, premises defects, and

injuries arising out of conditions or use of property.” Tex. Dep't of Parks & Wildlife

v. Miranda, 133 S.W.3d 217, 225 (Tex. 2004) (quotation omitted).

Texas has not waived sovereign immunity for negligence in all situations.

See id. Further, Lewis has not alleged any acts that have occurred related to the use

of publicly owned automobiles, premises defects, or injuries arising out of

conditions or use of property. Thus, I reeommend that Lewis’s negligence claim

against the City be dismissed.

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2. The Officers

“[W]hen a plaintiff sues both a governmental unit and its employees in tort,

as [Lewis] did here, section 101.106(e) requires that the employees shall

immediately be dismissed on the filing of a motion by the governmental unit.”

Univ. of Tex. Health Sci. Ctr. at Houston v. Rios, 542 S.W.3d 530, 537 (Tex. 2017)

(quotation omitted). “Recovery against a government employee is barred when suit

is filed against an employee whose conduct was within the scope of his or her

employment and the suit could have been brought against the governmental unit.”

Zeng v. Tex. Tech Univ. Health Sci. Ctr. at El Paso, 836 F. App’x. 203, 213 (5th Cir.

2020) (quotation omitted).

Because Lewis has brought a negligence claim against the City, his

negligence claims against the Officers must be dismissed. See Tex. Dep’t of Pub.

Safety v. Petta, 44 S.W.3d 575, 580 (Tex. 2001).

As to the false imprisonment and assault claims against the Officers, I

recommend these claims be dismissed because the Officers were all acting within

the scope of their employment during their encounter with Lewis, and because

Lewis could have asserted these claims against the City. See Alexander v. Walker,

435 S.W.3d 789, 791 (Tex. 2014).

CONCLUSION

For the reasons discussed above, I recommend that Defendants’ motion to

dismiss (Dkt. 35) be granted. I also recommend that the court sua sponte dismiss

Lewis’s claims against Tauch for failure to timely effect service of process and

because, as demonstrated above, Lewis cannot state a claim against any defendant.

The parties have 14 days from service of this Memorandum and

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

Civ. P. 72(b)(2). Failure to file timely objections will preclude appellate review of

factual findings and legal conclusions, except for plain error.

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SIGNED this □□ day of March 2026.

ANDR M. EDISON

UNITED STATES MAGISTRATE JUDGE

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