The opinion
UNITED STATES DISTRICT COURT April 28, 2026
SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk
HOUSTON DIVISION
John Allen, Jr. et al., §
Plaintiffs, §
§
v. § Civil Action H-18-171
§
Justin Thomas Hayes, §
Defendant. §
MEMORANDUM AND RECOMMENDATION
This case has been referred to the undersigned magistrate
judge pursuant to 28 U.S.C. § 636(b)(1). ECF No. 152. Many
motions are pending before the court: Defendant’s Motion for
Summary Judgment, ECF No. 333; Plaintiffs’ Motion for Summary
Judgment, ECF No. 335; Plaintiffs’ Motion to Quash, ECF No. 317;
Plaintiffs’ Motion for Due Process, ECF No. 324; Plaintiffs’ Motion
for Reconsideration, ECF No. 325; Defendant’s Motion to Strike,
ECF No. 332; and Plaintiffs’ Motion to Strike, ECF No. 336.
The court recommends that Defendant’s Motion for
Summary Judgment, ECF No. 333, be GRANTED in part and
DENIED in part and Plaintiffs’ Motion for Summary Judgment,
ECF No. 335, be DENIED. Plaintiffs’ Motion to Quash, ECF
No. 317, is DENIED; Plaintiffs’ Motion for Due Process, ECF
No. 324, is DENIED as MOOT; Plaintiffs’ Motion for
Reconsideration, ECF No. 325, is DENIED as MOOT;
Defendant’s Motion to Strike, ECF No. 332, is DENIED without
prejudice; and Plaintiffs’ Motion to Strike, ECF No. 336, is
DENIED as MOOT.
1. Background
This case stems from the fatal shooting of John Allen, Sr.
(Allen). Allen v. Hays, 65 F.4th 736, 741 (5th Cir. 2023) (Allen II).
On November 4, 2015, Officer Justin Hayes fatally shot Allen.
Plaintiffs sued multiple defendants under 42 U.S.C. § 1983 and the
Texas wrongful death statute, alleging many claims related to the
violation of Allen’s constitutional rights. Id. at 743–52. The
remaining claims are against Officer Hayes for excessive force,
unlawful arrest, and denial of medical care in violation of Allen’s
constitutional rights. Id. at 752.
Before addressing the events of November 4, 2015, the court
first provides a brief summary of the lengthy procedural history of
this case. Plaintiffs filed suit in Harris County in 2017, and
Defendant Justin Hayes removed the case to federal court in
January 2018. ECF No. 1. Since then, the Fifth Circuit has ruled
on this case and remanded it twice. Allen v. Hays, 812 F. App’x 185
(5th Cir. 2020) (Allen I); Allen II, 65 F.4th at 741.
In 2020, the Fifth Circuit found that the district court
violated procedural safeguards when it converted the motion to
dismiss into a motion for summary judgment. Allen I, 812 F. App’x
at 192–93. The Circuit affirmed in part as to the dismissal of one
defendant and vacated and remanded the case as to the remaining
defendants. Id. at 193–94.
In 2023, the Fifth Circuit considered this case at the motion
to dismiss stage, affirmed dismissal as to several claims, and
reversed and remanded the dismissal of Plaintiffs’ claims for
excessive force, unlawful arrest, and denial of medical care against
Hayes. Allen II, 65 F.4th at 752. Hayes is the only remaining
defendant.
Upon remand in 2023, the case was reassigned to a new
district judge. The case was referred to the undersigned in October
2023. ECF No. 152. Since that time, the court has ruled on many
discovery disputes. See ECF No. 293 (ruling on a discovery dispute
and stating that “[t]he court has held many hearings in this case,
has extended the discovery deadline many times, and has ordered
the parties repeatedly to fully answer all outstanding discovery
requests . . .”). The court ordered that all depositions be completed
by September 30, 2025. Id. Currently pending before the court are
both parties’ summary judgment motions.
The court turns to the relevant events of November 4, 2015,
which are recorded in multiple videos from the officers’ body-worn
cameras (bodycam).1 The parties both rely on the video evidence
and do not object to its authenticity.
Officer Hayes and his partner, Officer Salina, both stated in
sworn statements that, at approximately 12:40 AM on
November 4, 2025, they initiated a traffic stop after observing a
red pickup truck driving erratically with a defective brake light
and a rear license plate bulb hanging down toward the bumper.
ECF No. 334-10 at 3, 7.
The footage from Hayes and Salina’s bodycams begins when
the Officers approached the vehicle. Portions of the video are very
dark. Hayes approached the passenger side of the vehicle and used
his flashlight to illuminate the truck. Hayes Bodycam, ECF
No. 334-3 at 0:00-0:12.2 Allen was in the driver’s seat and Shantell
Arterberry was in the front passenger seat. The passenger-side
window was down. Although it is difficult to discern, Allen
appeared to ask “Who is it?” and stated that he would retrieve his
wallet. Id. at 0:03–0:12. Hayes yelled in response “Hey! Stop
moving! Get your foot off the f***ing gas!” Id. at 0:12–0:18. The
interaction proceeds as follows.
1 Where there is “video and audio recording of the event, we are not required to accept
factual allegations that are ‘blatantly contradicted by the record.’” Tucker v. City of
Shreveport, 998 F.3d 165, 170 (5th Cir. 2021) (quoting Scott v. Harris, 550 U.S. 372,
380 (2007)).
2 To cite specific portions of the recordings, the court includes the minutes and seconds
from the time stamp on the video. For example, ECF No. 334-3 at 0:00-0:12, refers to
the first twelve seconds of Hayes’s bodycam video.
Allen: I ain’t moving, ’m getting my wallet. ’m
getting my wallet.
Hayes: What do you mean, “Who is it?”
Allen: I’m getting my wallet.
Hayes: You better stop pulling—reaching in your
pocket.
Allen: [I’m not reaching in my pocket.
Hayes: Yeah, ’m looking at you reaching in your
pocket. Stop reaching!
Allen: I’m getting my wallet!
Hayes: Stop reaching! That’s not a wallet! Stop
reaching!
Allen: [indistinguishable]
Hayes: [yelling] Stop reaching!
Id. at 0:14-0:38.
During the exchange, the video shows Allen retrieving an
object from his right pocket.
es
rs
af a
ECF No. 334-3 at 00:25.
It is difficult to discern from the video what the item was.
The video shows, and the parties appear to agree, that something
was in Allen’s pocket. See ECF No. 343 at 11 (Plaintiffs argue that
“Mr. Allen’s hand briefly contacts a flat, square-shaped object, not
a firearm, and there is never a white handle visible.”). The image
included above is the clearest view of the item captured on the
video.
Immediately after Hayes yelled “stop reaching!” the final
time, Hayes fired his weapon at Allen through the open passenger
window. ECF No. 334-3 at 0:33–0:36. The bodycam videos do not
clearly show Allen’s pocket at the time Hayes shot. As the court
discusses in more detail below, a silver revolver with a white hand
grip, matching Hayes’s description of the weapon, was found in the
rear seat area of the vehicle. ECF No. 334-18 at 6, 10.
The parties dispute how many times Hayes shot his weapon.
The court assumes in Plaintiffs’ favor that there is a fact dispute
as to this issue. Plaintiffs argue that six “spikes” in the audio from
the bodycam footage indicate that Hayes fired his gun six times.
ECF No. 343 at 2, 10 n.1, 18; ECF No. 335 at 14; ECF No. 348 at 3.
The Autopsy Report indicates that Allen had gunshot wounds in
five locations. ECF No. 334-23 at 13. Multiple other pieces of
evidence, including the Forensics Report on Hayes’s gun, indicate
that Hayes fired his weapon four times. Hayes Deposition, ECF
No. 334-1 at 128:1–18; HPD Homicide Case Report, ECF No. 334-
12 at 22 (“15-round magazine was loaded in [Hayes’s] gun. There
were 11 rounds in the magazine”); ECF No. 334-18 at 11 (stating
that there were 11 rounds in the magazine).
After Hayes shot Allen, Allen’s vehicle moved forward and
crashed into a tree. Hayes and Salina moved to catch up to the
vehicle, and Hayes told Salina to “get it on the radio.” ECF
No. 334-3 at 0:37–0:47. Arterberry exited the crashed vehicle, and
Hayes instructed her to get on the ground. Id. at 0:48–-1:12. Hayes
shined his flashlight on the vehicle from behind and informed
other officers that Allen “tried to pull a gun out of his right pocket.”
Id. at 1:17–1:23. Hayes and other officers yelled at a bystander to
“stay in [the] house!” Id. at 1:20–1:40.
Hayes then took Arterberry into the backseat of a police
vehicle. ECF No. 334-3 at 1:42–2:17. Hayes told Arterberry “You’re
obviously going to be placed in the backseat of a car for now. You
were in a car where someone was shot, okay?” Id. at 1:59–2:06.
Hayes turned toward Allen’s vehicle, and multiple officers
were lined up facing the vehicle with weapons drawn. Hayes
approached the officers and asked “What are we doing?” ECF
No. 334-3 at 2:15–2:23. The officers slowly approached the vehicle
from behind. Id. at 2:23–3:50. Upon arriving at the passenger side
of the vehicle, an officer instructed Allen to put his hands on the
steering wheel. Id. at 3:50–3:56. Hayes stated “In his right pocket,
the last place I saw it. It’s like a white—small caliber revolver with
a white grip.” Id. at 3:54–4:07. Hayes’s description matches the
gun that was later found in the vehicle.
At this time, Hayes was on the passenger side of the vehicle,
and Allen was still sitting in the driver’s seat with his eyes closed
and his head leaned back against the seat. ECF No. 334-3 at 4:03–
4:15. Multiple officers stated that they observed that Allen was
still breathing and had blood on his shirt. ECF No. 334-9 at 6, 15,
24, 40. Hayes asked “Anybody got HFD coming yet? I assume she
did when we dropped it.” ECF No. 334-3 at 4:30–4:36. Salina asked
dispatch to send Houston Fire Department to the scene and stated
that Allen had “several gunshot wounds.” Salina Bodycam, ECF
No. 334-4 at 4:35–4:46.
Multiple officers approached the driver’s side of the vehicle
and broke open the window to unlock and open the driver’s side
door. ECF No. 334-3 at 4:36–5:15. When the officers opened the
door, Allen’s left hand hung at his side. Id. at 5:15–5:27. Officer
Morelli removed Allen from the vehicle and handcuffed him. ECF
No. 334-9 at 40. Morelli states in his sworn Witness Statement
that he “took hold of [Allen] by his left arm and placed him on the
ground.” ECF No. 334-10 at 10. Morelli explains that “[b]y this
time, we still didn’t know if the suspect had a gun on him or if it
was inside the vehicle, so I went ahead and placed handcuffs on
him.” Id. The officers checked Allen’s pockets and waist band for
weapons and removed items from his pockets and placed them on
the street next to Allen.3 Id. at 11, 13.
When Houston Fire Department arrived, they announced
that Allen had died prior to their arrival. ECF No. 334-9 at 4, 23,
31. An officer with the Houston Police Department’s Forensic
Science Center arrived on the scene and observed Allen’s body
lying on his stomach and covered by a sheet. ECF No. 334-18 at 10.
The officer also observed Allen’s truck at the scene. Id. The officer’s
report states that “[v]isible in the rear passenger area of the
[truck’s] cabin . . . was a silver revolver with a white grip.”4 Id.
at 10. The report explains that, after the Medical Examiner
arrived around 4:00 AM, they recovered what appeared to be
Allen’s cellphone and a black nylon wallet near Allen’s body. ECF
No. 334-18 at 13. Both items were processed as evidence and
placed in a secure crime scene vehicle. Id. at 13.
The truck was classified as a “vehicular contained crime
scene.” ECF No. 334-18 at 5. An officer processed the truck at the
Vehicle Examination Building on November 6, 2015, and found a
silver revolver with a white hand grip in the rear seat area of the
vehicle. Id. at 6.
3 The officers did not locate a gun on Allen’s person in this search.
4 Plaintiffs argue that “[n]o firearm was recovered from Allen’s person, vehicle, or the
immediate scene. Exs. 1, 2, 5.” ECF No. 335 at 14. Plaintiffs cite to the entirety of both
Officers Hayes and Salina’s bodycam videos and Hayes’s deposition to support this
statement. It does not appear that the cited evidence supports Plaintiffs’ argument.
The court addresses the remaining facts as needed in its
analysis. The court turns to the evidentiary objections.
2. Evidentiary Objections
On summary judgment, a party may object to exhibits that
“cannot be presented in a form that would be admissible in
evidence.” Fed. R. Civ. P. 56(c)(2); LSR Consulting, LLC v. Wells
Fargo Bank, N.A., 835 F.3d 530, 534 (5th Cir. 2016) (quoting Fed.
R. Civ. P. 56(c)(2)) (“At the summary judgment stage, materials
cited to support or dispute a fact need only be capable of being
‘presented in a form that would be admissible in evidence.’”).
A. Plaintiffs’ Evidentiary Objections
Plaintiffs object to Defendant’s Exhibits 1, 2, 5–8, 10, 11, 13–
19, 22, and 26–28. ECF No. 343 at 4–7. Notably, Plaintiffs do not
object to the bodycam videos from Officer Hayes or Officer Salina.
The court did not rely on many of Defendant’s exhibits in its
analysis. The only exhibits that Plaintiffs objected to and that the
court relied on are Defendant’s Exhibits 1, 10, and 18 (ECF
Nos. 334-1, 334-10, 334-18).
Defendant’s Exhibit 1 is Hayes’s deposition, which is more
than 300 pages long. ECF No. 334-1. Plaintiffs argue that portions
of the deposition are self-serving narrative, contain hearsay within
hearsay, speculate, include improper lay opinion, and lack
foundation. ECF No. 343 at 5. The objections do not specify which
parts of the objected-to document are objectionable. The court is
thus left to guess at the substance and merit of the objections. The
objections are overruled. Even so, the court has attempted to avoid
relying on obviously hearsay or otherwise inadmissible
statements.
Defendant’s Exhibit 10 contains sworn witness statements
from approximately eight different officers. ECF No. 334-10.
Plaintiffs argue that “[s]tatements of officers and witnesses
compiled by homicide investigators are hearsay; Defendant has
not submitted sworn declarations or deposition testimony adopting
these.” ECF No. 343 at 5. The documents in Exhibit 10 include
sworn statements from officers and are each signed by the
testifying officer. The statements generally appear to be based on
each officer’s personal knowledge and experience.
“At the summary judgment stage, evidence need not be
authenticated or otherwise presented in an admissible form.”
Maurer v. Indep. Town, 870 F.3d 380, 384 (5th Cir. 2017); Fed. R.
Civ. P. 56(c). The evidence merely must be capable of being
“presented in a form that would be admissible in evidence.”
Maurer, 870 F.3d at 384 (quoting LSR Consulting, LLC, 835 F.3d
at 534). The sworn statements need not be further “adopted” in a
separate deposition or a separate declaration. The objections are
overruled.
Defendant’s Exhibit 18 includes Forensics Reports. ECF
No. 334-18. Plaintiffs argue that the forensics reports are
“unsworn and not certified under FRE 902(11) or 803(6). Absent
analyst testimony, reports violate Melendez-Diaz v.
Massachusetts, 557 U.S. 305 (2009). Chain of custody not
demonstrated.” ECF No. 343 at 6.
Defendant submitted a Business Record Affidavit, which
incorporates the Forensic Reports in Exhibit 18 (referenced by
bates stamp numbers). ECF No. 334-25. The custodian of the
documents swears that the records were made at or near the time
of the event, by persons with knowledge of the matters, and that it
is the regular practice of Houston Police Department to keep these
records. Id. In their reply, Plaintiffs do not address how or whether
the business records affidavit is insufficient as to the Forensics
Reports. ECF No. 351 at 11. In any event, the court did not rely on
any hearsay portions of the reports. Plaintiffs’ objections are
overruled. Plaintiffs may reraise their objections at trial, as
necessary.
B. Defendant’s Evidentiary Objections
Defendant objects to Plaintiffs’ Exhibits 5–8. ECF No. 345
at 7–18. The court separately rules on Defendant’s objection to
Exhibit 7, the Report of Dr. Howse, in Sections 4B and 5B herein.
As explained in more detail below, the court recommends
that Plaintiffs’ summary judgment motion be denied and that
Defendant’s motion for summary judgment be granted in part and
denied in part. Overruling Defendant’s objections does not have
any material effect on the resolution of either motion for summary
judgment. Nor does it prejudice Defendant. As such, Defendant’s
objections are overruled. Defendant may reraise his objections at
trial, as necessary.
Defendant also objects to Plaintiffs’ “Corrected Response to
Motion for Summary Judgment” (ECF No. 343). ECF No. 345
at 19. The court has discretion to allow untimely responses where
“the party failed to act because of excusable neglect.” Fed. R. Civ.
P. 6(b)(1); see also Rasco v. Potter, 265 F. App’x 279, 283 (5th Cir.
2008). It does not appear to the court that any difference between
the original response and the corrected response prejudiced
Defendant in any way or otherwise significantly altered the court’s
conclusions. Thus, the objection is overruled.
3. Legal Standard
“Summary judgment is appropriate only if, viewing the
evidence in the light most favorable to the nonmovant, ‘the movant
shows that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.’” Davenport
v. Edward D. Jones & Co., 891 F.3d 162, 167 (5th Cir. 2018)
(quoting Fed. R. Civ. P. 56(a)). No genuine issue of material fact
exists if a rational jury could not find for the nonmoving party
based on the complete record. McMichael v. Transocean Offshore
Deepwater Drilling, Inc., 934 F.3d 447, 455 (5th Cir. 2019) (quoting
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986)).
Initially, “[t]he movant bears the burden of identifying those
portions of the record it believes demonstrate the absence of a
genuine issue of material fact.” Lincoln Gen. Ins. Co. v. Reyna, 401
F.3d 347, 349 (5th Cir. 2005) (citing Celotex Corp. v. Catrett, 477
U.S. 317, 322–25 (1986)). If this burden is met, the nonmovant
must then “go beyond the pleadings,” using competent summary
judgment evidence to cite “specific facts” showing a genuine issue
for trial. McCarty v. Hillstone Rest. Grp., Inc., 864 F.3d 354, 357
(5th Cir. 2017) (quoting Boudreaux v. Swift Transp. Co., 402 F.3d
536, 540 (5th Cir. 2005)).
The court reviews all evidence and reasonable inferences in
the light most favorable to the nonmoving party. See Tolan v.
Cotton, 572 U.S. 650, 657 (2014) (quoting Adickes v. S.H. Kress &
Co., 398 U.S. 144, 157 (1970)). The court, however, does not have
a duty “to search the record for material fact issues.” RSR Corp. v.
Int’l Ins. Co., 612 F.3d 851, 857 (5th Cir. 2010) (“Rather, the party
opposing the summary judgment is required to identify specific
evidence in the record and to articulate precisely how this evidence
supports [the] claim.”). Although the court needs to consider only
the cited evidence, it is allowed to consider other materials in the
summary judgment record. Fed. R. Civ. P. 56(c)(3).
4. Summary Judgment Analysis
Plaintiffs and Defendant each filed motions for summary
judgment. The court begins its analysis by recognizing the gravity
of the events at issue in this case. Allen’s death is a tragedy. Even
so, the court must continue its analysis as binding precedent from
the Fifth Circuit and Supreme Court require.
Hayes argues that he is entitled to qualified immunity. ECF
No. 333. Section 1983 provides redress for those who have been
injured or deprived of their rights under color of state law.
42 U.S.C. § 1983; Moody v. Farrell, 868 F.3d 348, 351 (5th Cir.
2017). However, in a lawsuit under Section 1983, “[q]ualified
immunity shields from civil liability ‘all but the plainly
incompetent or those who knowingly violate the law.’” Manis v.
Lawson, 585 F.3d 839, 845 (5th Cir. 2009) (quoting Malley v.
Briggs, 475 U.S. 335, 341 (1986)). State officials are entitled to
qualified immunity unless (1) the evidence demonstrates that the
official’s conduct violated a statutory or constitutional right and
(2) that right was “clearly established” at the time of the violation.
McVae v. Perez, 120 F.4th 487, 492 (5th Cir. 2024); Allen II, 65
F.4th at 743.
A right is clearly established when it “is sufficiently clear
that every reasonable official would have understood that what he
is doing violates that right.” Melton v. Phillips, 875 F.3d 256, 265
(5th Cir. 2017) (en banc). “This is a ‘demanding standard.’”
Degenhardt v. Bintliff, 117 F.4th 747, 753 (5th Cir. 2024). Courts
“can analyze the prongs [of the qualified immunity test] in either
order or resolve the case on a single prong.” Perry v. Mendoza, 83
F.4th 313, 317 (5th Cir. 2023).
When a defendant asserts qualified immunity as a defense
to a claim, “the plaintiff bears the burden of pleading facts that
demonstrate liability and defeat immunity.” Shaw v. Villanueva,
918 F.3d 414, 416–17 (5th Cir. 2019). “Once an officer pleads
qualified immunity, it is the plaintiff’s burden to establish that the
officer violated the plaintiff’s clearly established federal rights.”
Argueta v. Jaradi, 86 F.4th 1084, 1088 (5th Cir. 2023). At the
summary judgment stage, a plaintiff bears the burden of showing
a genuine and material dispute. Perry, 83 F.4th at 320. “A disputed
fact is material if it could affect the outcome of the lawsuit.” Id.
A. Law of the Case
Because Plaintiffs incorrectly state the history of this case,
the court clarifies the procedural history before turning to the
parties’ arguments. The Fifth Circuit issued opinions in this case
in 2020 and 2023. Allen I, 812 F. App’x 185; Allen II, 65 F.4th
at 741. Plaintiffs incorrectly cite Allen II as their “Allen I” case.5
ECF No. 343 at 9. The more concerning error, however, is that
Plaintiffs’ “Allen II” citation does not cite to a legitimate case. Id.
A search on Westlaw for “2024 WL 345995” returns a Wisconsin
Senate Bill. The court is not aware of any Fifth Circuit opinions in
this case in 2024. The case was before the undersigned for the
entirety of 2024 after the Fifth Circuit remanded it in 2023. See
ECF Nos. 131–33 (remanding the case); ECF Nos. 184–266 (entries
in district court from January 4, 2024, through December 2024).
Another concerning issue persists in Plaintiffs’ briefing. On
multiple occasions, quotations appear to be either made up or
hallucinated.6 For example, Plaintiffs argue that facts support “the
Fifth Circuit’s determination that ‘a reasonable jury could find
that Hayes’s use of force was objectively unreasonable.’ Allen v.
Hayes, 2023 WL 2643718, at 3 (5th Cir. 2023).” ECF No. 343 at 11.
In addition to another incorrect case citation, which does not
appear to cite to a real case, the quotation does not appear in either
Allen I or Allen II. Plaintiffs include multiple other alleged
quotations in their briefing that do not appear in any relevant case.
See, e.g., ECF No. 343 at 14 (“We AFFIRM the denial of summary
judgment on all claims.”), 15 (“no reasonable officer could perceive
an immediate threat”), 19 (“Hayes delayed aid for over six minutes
5 Plaintiffs’ citations are as follows: Allen v. Hayes, 63 F.4th 307 (5th Cir. 2023) (per
curiam) (“Allen I”); Allen v. Hayes, No. 23-20144, 2024 WL 345995 (5th Cir. Jan. 30,
2024) (unpublished) (“Allen II”). ECF No. 343 at 9.
6 Plaintiffs might cite to a withdrawn Fifth Circuit opinion that was superseded, see
63 F.4th 307, but the court is unable at this time to determine whether that is true.
while Allen bled out…a jury could find deliberate indifference.”).
The errors are numerous and persistent.
The court turns to the parties’ arguments as to the law of the
case. Plaintiffs argue that the Fifth Circuit’s prior rulings are
binding as law-of-the-case and require denial of Defendant’s
Motion for Summary Judgment. ECF No. 343 at 13–15. According
to Plaintiffs, “[t]he Fifth Circuit has twice reviewed the same
record including body-worn camera footage, depositions, and HPD
mental health records And [sic] twice denied Hayes qualified
immunity[.]” Id. at 13–14. Plaintiffs are plainly incorrect. The
circuit has never reviewed the full record now before the court. Nor
has the circuit considered the bodycam videos under the summary
judgment standard.
In 2020, years before this case was transferred to Judge
Tipton or referred to the undersigned, the Fifth Circuit found that
the district court improperly converted a motion to dismiss into a
motion for summary judgment. Allen I, 812 F. App’x at 189, 192.
The Circuit affirmed the decision in part as to the dismissal of one
defendant and vacated and remanded the case as to the remaining
defendants. Id. at 193–94.
In 2023, the Fifth Circuit again considered this case—this
time at the motion to dismiss stage—and analyzed Plaintiffs’
allegations. Allen II, 65 F.4th at 742 n.3 The Circuit stated that
“[a]ssuming arguendo that the body-cam footage was incorporated
into plaintiffs’ live complaint such that we can consider it at the
motion-to-dismiss stage, which is far from clear, nothing in it
clearly contradicts plaintiffs’ version of events.” Id. The videos did
not “clearly contradict” the pleadings, so the court relied on
Plaintiffs’ allegations. The Circuit affirmed dismissal as to several
claims and reversed and remanded the dismissal of Plaintiffs’
claims for excessive force, unlawful arrest, and denial of medical
care against Hayes. Id. at 752.
Currently pending are summary judgment motions. At this
stage, Plaintiffs must “go beyond the pleadings and designate
specific facts showing that there is a genuine issue for trial.”
McCarty, 864 F.3d at 357 (quoting Boudreaux, 402 F.3d at 540).
The case is now before the court at a different stage than it was
before the Fifth Circuit. In its prior analyses, the Circuit was
required to apply a different legal standard than that currently
before the court. Now, the court considers whether the evidence,
not the allegations, viewed in the light most favorable to the
nonmovant, demonstrates a material fact dispute. There is now
evidence before the court that the circuit expressly did not consider
or that did not even exist when the Circuit last considered this
case. See, e.g., ECF No. 334-1 (Hayes’s Deposition, completed on
August 26, 2025). As such, the court continues its analysis
consistent with the Fifth Circuit’s instructions on remand and
consistent with the binding precedent in this circuit.
B. Excessive Force
Plaintiffs argue that Hayes’s shooting of Allen was an
excessive use of force, which violated Allen’s Fourth Amendment
right to be free from unreasonable search and seizure. “An
excessive-force claim requires (1) an injury, (2) resulting directly
and only from excessive force, (3) that was objectively
unreasonable.” Argueta, 86 F.4th at 1089; Allen II, 65 F.4th at 744.
At issue here is whether Hayes’s use of deadly force was
excessive and unreasonable. To determine whether a use of force
was reasonable, the court considers the facts and circumstances of
the case, including (1) the severity of the crime at issue, (2)
whether the suspect posed an immediate threat to the safety of the
officers or others, and (3) whether the suspect was actively
resisting arrest or attempting to evade arrest by flight. Trammell
v. Fruge, 868 F.3d 332, 340 (5th Cir. 2017) (quoting Graham v.
Connor, 490 U.S. 386, 396 (1989)); Allen II, 65 F.4th at 744. “The
use of force is not excessive and unreasonable if ‘the officer[’s]
actions are objectively reasonable in light of the facts and
circumstances confronting [him], without regard to their
underlying intent or motivation.’” Allen II, 65 F.4th at 744.
(quoting Cloud v. Stone, 993 F.3d 379, 384 (5th Cir. 2021)).
“Claims that law enforcement unreasonably utilized deadly
force are treated as a special subset of excessive force claims.”
Aguirre v. City of San Antonio, 995 F.3d 395, 412 (5th Cir. 2021).
The Fifth Circuit has long held that, “[w]hen an officer uses deadly
force, that force is considered excessive and unreasonable ‘unless
the officer has probable cause to believe that the suspect poses a
threat of serious physical harm, either to the officer or to others.’”
Roque v. Harvel, 993 F.3d 325, 333 (5th Cir. 2021). The
reasonableness of the use of deadly force is based on the
perspective of a reasonable officer on the scene, not with the 20/20
vision of hindsight. Argueta, 86 F.4th at 1089; Allen II, 65 F.4th
at 744.
“[I]t is manifestly unreasonable for an officer to seize a
suspect the officer knows is unarmed and not aggressive by
shooting him dead.” Allen II, 65 F.4th at 744. “But if the officer
believes the suspect has a gun, the calculation changes—even if
there was never, in fact, a gun.” Id.; see also Poole v. City of
Shreveport, 13 F.4th 420, 425 (5th Cir. 2021) (“Whether the
suspect is armed is often the key factor in determining if a threat
to the officer justifies the use of deadly force.”) (citing Tennessee v.
Garner, 471 U.S. 1, 11 (1985)).
Even when a suspect is armed, a warning must be given,
when feasible, before the use of deadly force. Cole v. Carson, 935
F.3d 444, 453 (5th Cir. 2019), as revised (Aug. 21, 2019). The force
an officer uses should be proportional to the threat, and an officer
must use lesser force if an officer could reasonably do so. Allen II,
65 F.4th at 744.
In “furtive gesture” cases, the Fifth Circuit has held that an
officer’s use of deadly force is not unreasonable or excessive where
a suspect “moves out of the officer’s line of sight such that the
officer could reasonably believe the suspect was reaching for a
weapon.” Argueta, 86 F.4th at 1091 (citing Manis, 585 F.3d at 844);
Allen II, 65 F.4th at 744. “Nevertheless, an officer cannot escape
liability any time he claims he saw a gun. The question is whether
the officer’s belief that he saw a gun was sufficiently reasonable to
justify the use of deadly force in light of all the surrounding
circumstances.” Allen II, 65 F.4th at 744.
In Manis, the suspect, who was seated in the driver’s seat of
an SUV, repeatedly reached underneath his seat. Manis, 585 F.3d
at 842. The officers drew their weapons and ordered the suspect to
show his hands. Id. When the suspect appeared to retrieve some
object and began to straighten up, the officer fired four rounds,
killing the suspect. Id. The Fifth Circuit found that the relevant
inquiry was whether, in view of the suspect’s conduct, the officer
was objectively reasonable in believing the suspect posed a threat
of serious harm. Id. at 845. The Circuit found that there was not a
constitutional violation because the evidence showed that the
officer reasonably believed the suspect had retrieved a weapon. Id.
at 844–45.
Here, in 2023, the Fifth Circuit took as true Plaintiffs’
allegations that “Allen was not carrying a gun (nor was there a gun
in the car), that a reasonable officer would have known there was
no gun, and that Allen never reached outside the officer’s line of
sight.” Allen II, 65 F.4th at 745. The evidence now before the court
does not support those allegations.
The question now before the court is whether, based on the
evidence viewed in the light most favorable to Plaintiffs, Hayes’s
belief that he saw a gun was sufficiently reasonable to justify the
use of deadly force in light of all the surrounding circumstances.
See Allen II, 65 F.4th at 744. The evidence shows that Allen was
reaching in his pocket despite Hayes’s warnings to “stop reaching.”
ECF No. 334-3 at 0:03–0:33. Plaintiffs have not pointed to any
evidence that any officer asked for Allen’s wallet at any time.
Hayes stated multiple times that he believed that Allen was
reaching for a weapon. Id. at 1:18–1:23, 3:54–4:07; ECF No. 334-
10 at 4; ECF No. 334-1 at 70:5–72:3. After the fact, a Forensics
Report states that a revolver with a white handle was found in “the
rear seat area” of Allen’s vehicle. ECF No. 334-18 at 6.
The evidence shows that Hayes’s belief that he saw a gun
was sufficiently reasonable to justify the use of deadly force in light
of all the surrounding circumstances. The court “[has] never
required officers to wait until a defendant turns towards them,
with weapon in hand, before applying deadly force to ensure their
safety.” Salazar-Limon v. City of Houston, 826 F.3d 272, 279 at n.6
(5th Cir. 2016), as revised (June 16, 2016) (collecting cases); see
also Valencia v. Davis, No. 19-CV-017, 2020 WL 5580896, at *4
(N.D. Tex. Jan. 13, 2020) (“it was reasonable for [the] Officer to
assume that [the suspect] may have been armed and the
movement of Plaintiff’s hand downward toward his waistline and
pockets (as clearly depicted on the video from the dashcam) was a
furtive gesture”), aff’d, 836 F. App’x 292 (5th Cir. 2020). Plaintiffs
do not explain how a fact dispute about whether Hayes fired his
weapon six times rather than four times, as in Manis, is material.
Plaintiffs’ attempts to identify material fact disputes as to
this claim are unsupported. Plaintiffs argue that “Allen’s hand
briefly contacts a flat, square-shaped object, not a firearm, and
there is never a white handle visible.” ECF No. 343 at 11. Plaintiffs
also point to evidence that Officer Salina testified that he never
saw Allen point a gun at anyone. Id. at 16–17. But whether a gun
was visible or whether Allen pointed a gun at anyone is not the
question.7
The question before the court is whether the evidence shows
that Hayes’s belief that he saw a gun was reasonable. Hayes
warned Allen to stop reaching in his pocket multiple times. The
video shows Allen attempting to remove a white item from his
pocket. The evidence shows that Hayes believed that he saw a gun
and described seeing Allen try to remove a “small caliber revolver
with a white grip” from his right pocket within minutes of the
shooting. ECF No. 334-3 at 3:54–4:07. Hayes reiterated in his
deposition that he saw Allen removing a small caliber revolver
with a white handle from his pocket, and Hayes feared for his life
and for the lives of those around him. ECF No. 334-1 at 127:1–25.
Plaintiffs have not identified a genuine dispute of material fact as
to whether Hayes’s belief was reasonable.
Plaintiffs also argue that Hayes’s commands “were shouted
after the gunfire, as confirmed by the dispatch audio and
Defendant’s own expert, Dr. Robert Taylor who acknowledged no
audible warning in the recordings.” ECF No. 343 at 11–12, 18. The
video plainly shows that Hayes repeatedly told Allen to “stop
reaching” prior to shooting his weapon. There is no genuine
dispute of material fact that Allen disobeyed Hayes’s command to
“stop reaching.”
Plaintiffs also cite to their Expert Report, by Dr. Howse,
which states that “there is nothing to suggest there was any
immediate or imminent threat of harm to Officer Hayes, or any
other person, by Mr. Allen[.]” ECF No. 343 at 20; see also ECF
No. 342-3 at 7. Defendant argues, in part, that Dr. Howse
7 Plaintiffs also argue that Arterberry stated after the fact that Allen did not have a
gun and that Allen was complying with Officer Salina’s instructions. ECF No. 343
at 11; see also ECF No. 335-7. Arterberry’s statements do not alter the court’s analysis.
impermissibly offered legal conclusions in his report.8 ECF No. 345
at 11.
The Fifth Circuit has repeatedly recognized that the risk an
individual poses to officers or others is a legal inquiry and part of
the objective-reasonableness analysis. Argueta, 86 F.4th at 1092–
93. As such, because Dr. Howse’s statement is an impermissible
legal conclusion, Dr. Howse’s statement on this matter is
insufficient to raise a genuine dispute of material fact as to the
events of November 4, 2015. See Manis, 585 F.3d at 844–45 (“[t]he
expert’s subsequent speculation that deadly force was unjustified
is insufficient to create a genuine, material fact issue”); Valencia
v. Davis, 836 F. App’x 292, 299–300 (5th Cir. 2020) (affirming
exclusion of expert testimony wherein an expert opined that an
officer “was not in immediate harm or fear for his life”); Asante-
Chioke v. Dowdle, No. CV 22-4587, 2026 WL 24978, at *7 (E.D. La.
Jan. 5, 2026) (“By opining that Mr. Asante-Chioke is a ‘threat,’
‘imminent threat,’ or ‘imminent deadly threat,’ Mr. Martin is
impermissibly answering a legal question for the jury.”).
Under the first prong of the qualified immunity analysis,
there is no evidence or material fact dispute that Hayes’s shooting
of Allen violated Allen’s Fourth Amendment rights. As the court
stated above, Fifth Circuit precedent dictates that, under these
circumstances, Hayes had probable cause to believe that Allen
posed a threat of serious physical harm to himself and those in the
area. There is no evidence that Hayes’s use of deadly force was
constitutionally excessive or unreasonable.
Even if the evidence demonstrated that Hayes’s conduct
violated a statutory or constitutional right, which it does not,
8 Defendant moves to exclude the entirety of Dr. Howse’s report. ECF No. 332 at 9.
Plaintiffs filed a motion requesting that the court strike Defendant’s motion (ECF
No. 332). ECF No. 336. Section 5, below, includes the court’s ruling on both motions.
Plaintiffs have not met their burden as to the second prong of the
qualified immunity test. The court does “not deny immunity unless
‘existing precedent must have placed the statutory or
constitutional question beyond debate.’” Morgan v. Swanson, 659
F.3d 359, 371 (5th Cir. 2011) (quoting Ashcroft v. al-Kidd, 563 U.S.
731, 741 (2011)). Here, Plaintiffs have not shown that Hayes had
any “fair notice that his conduct was unlawful.” See Elizondo et al.
v. Hinote, No. 25-40007, 2026 WL 311958, at *2 (5th Cir. Feb. 5,
2026). Plaintiffs do not provide any evidence or case law showing
that any constitutional question was “beyond debate.” Also for the
reasons stated in the court’s analysis as to prong one above, there
is no material fact dispute about whether Hayes violated a right
that was “clearly established” when he used deadly force.
Accordingly, Defendant’s Motion for Summary Judgment should
be GRANTED as to Plaintiffs’ excessive force claim.
C. False Arrest
Plaintiffs allege that it was an unlawful arrest for Hayes to
handcuff Allen. Allen II, 65 F.4th at 746. When “an officer has
probable cause to believe that an individual has committed even a
very minor criminal offense in his presence, he may, without
violating the Fourth Amendment, arrest the offender.” Atwater v.
Lago Vista, 532 U.S. 318, 354 (2001). If a police officer lacks
probable cause when he makes an arrest, it is a “false arrest.” Scott
v. City of Mandeville, 69 F.4th 249, 255 (5th Cir. 2023).
Before the court addresses whether qualified immunity
applies to Plaintiffs’ false arrest claim, the court must first
determine whether Hayes is the correct defendant for this claim.
Hayes argues that he did not remove Allen from the vehicle nor
did he handcuff or arrest Allen. ECF No. 333 at 17. Plaintiffs do
not explicitly address Hayes’s argument in their response to
Defendant’s Motion. Plaintiffs do not cite any evidence supporting
their argument that Hayes arrested or otherwise detained Allen.
Plaintiffs generally argue, without citing evidence, that “Hayes
handcuffs a dying, unresponsive man without probable cause[.]”
ECF No. 343 at 2, 18. Plaintiffs confusingly also argue that
“officers” removed Allen from the vehicle and handcuffed him. Id.
at 12.
In Plaintiffs’ reply in support of their Motion for Summary
Judgment, they argue that “Hayes’s participation is undeniable
(BWC shows Hayes directing the scene)[.]” ECF No. 347 at 13.
Plaintiffs argue that Hayes instructed the officers about removing
Allen from the vehicle. Id. The evidence does not support Plaintiffs’
arguments.
The evidence shows that, after Hayes placed Arterberry in
the police car, Hayes approached the other officers and asked
“What are we doing?” ECF No. 334-3 at 2:14–2:26. Undisputed
evidence shows that Officer Morelli removed Allen from the vehicle
and handcuffed him. ECF No. 334-9 at 40. Morelli states in his
sworn Witness Statement that he “took hold of [Allen] by his left
arm and placed him on the ground.” Id. Morelli explains that “[b]y
this time, we still didn’t know if the suspect had a gun on him or if
it was inside the vehicle, so I went ahead and placed handcuffs on
him.” Id. There is no evidence showing that Hayes directed the
officers to break open the vehicle’s window, remove Allen from the
vehicle, or to handcuff Allen. ECF No. 334-3 at 4:45–6:00.
Thus, the evidence does not support Plaintiffs’ argument
that Hayes violated Allen’s rights by conducting an unlawful
arrest or otherwise instructing other officers to arrest Allen.
Plaintiffs have not met their burden to show any genuine or
material dispute that Hayes’s actions violated a clearly established
right. Plaintiffs do not argue that Hayes was liable as a bystander.
Plaintiffs do not explain how Hayes’s presence and failure to
intervene when Morelli handcuffed Allen constitute a violation of
a clearly established constitutional right.
An officer may be liable under § 1983 under a theory of
bystander liability where the officer “(1) knows that a fellow officer
is violating an individual’s constitutional rights; (2) has a
reasonable opportunity to prevent the harm; and (3) chooses not to
act.” Whitley v. Hanna, 726 F.3d 631, 646 (5th Cir. 2013). Plaintiffs
do not argue or provide evidence addressing any element of
bystander liability. It is not clear to the court how Hayes could
otherwise be liable for any allegedly unlawful arrest based on the
evidence in the case. Plaintiffs have not demonstrated any
material fact dispute such that the claim may proceed.
Accordingly, Defendant’s Motion for Summary Judgment
should be GRANTED as to Plaintiffs’ false arrest claim.
D. Denial of Medical Care
Plaintiffs allege that Hayes violated Allen’s rights by failing
to provide life-saving measures, timely summon medical care, or
permit medical personnel to treat Allen. Allen II, 65 F.4th at 747.
Hayes argues that qualified immunity applies.
The court’s law of the case analysis is different as to the
denial of medical care claim. An officer violates a pretrial
detainee’s Fourteenth Amendment right to medical care if the
officer acts with deliberate indifference to a substantial risk of
serious medical harm. Allen II, 65 F.4th at 474. Deliberate
indifference is an extremely high standard. Id.
Hayes argues that Plaintiffs cannot meet their evidentiary
burden to show:
(1) that Officer Hayes subjectively knew of a
substantial risk of serious harm, (2) failed to provide
medical care or delayed medical care to alleviate that
harm, (3) that the failure or delay was objectively
unreasonable, (4) a substantial injury resulting from
the alleged failure or delay, and (4) [sic] that Officer
Hayes was aware of and intended the result.
ECF No. 333 at 21–23 (citing Wagner v. Bay City, 227 F.3d 316,
324–25 (5th Cir. 2000)). However, the Fifth Circuit clarified in this
case that, since Wagner, the court has “rejected the subjective-
intent requirement[.]” Allen II, 65 F.4th at 747. The Fifth Circuit
instructed that, to succeed on a denial of medical care claim,
Plaintiffs must show that “(1) Hayes was aware of facts from which
the inference could be drawn that a substantial risk of serious
harm existed and (2) he drew that inference.” Id. “If the plaintiff
relies on delay as the basis of the claim, then the plaintiff must
show that the delay ‘results in substantial harm.’” Batyukova v.
Doege, 994 F.3d 717, 732 (5th Cir. 2021) (emphasis in original)
(quoting Westfall v. Luna, 903 F.3d 534, 551 (5th Cir. 2018)). Pain
suffered during that delay can constitute substantial harm. Id.
At the motion to dismiss stage, the Fifth Circuit found that
“[a]s alleged, Hayes stood by for six minutes without performing
any medical care or calling for medical backup, aware that he had
shot Allen several times and witnessed him crash into a tree, and
after he had radioed for police backup for himself.” Allen II, 65
F.4th at 748. The Circuit found that those allegations were
sufficient to allege a constitutional violation. Id.
The evidence now before the court indicates that there is a
fact question as to Plaintiffs’ denial of medical care claim. There is
evidence generally supporting or raising a fact question as to each
of the material allegations the Fifth Circuit identified at the
motion to dismiss stage. The evidence viewed in the light most
favorable to Plaintiffs could lead a jury to find that Hayes was
deliberately indifferent. Hayes was aware that he had shot Allen
at close range and witnessed Allen’s vehicle run into a tree. ECF
No. 334-3 at 0:30–0:53. Within approximately twenty seconds of
shooting Allen, Hayes told Salina to “put it on the radio.” ECF
No. 334-4 at 0:48–0:51. Salina reported shots fired, but he did not
ask for medical assistance. Id. at 0:51–0:59. Approximately four
minutes after Hayes shot Allen, Hayes asked whether anyone
called for Houston Fire Department. Id. at 4:35–4:40
(approximately four minutes after Hayes fired shots at 0:37–0:40).
Then, Salina asked dispatch for HFD and reported that Allen had
several gunshot wounds. Id. at 4:35–4:45. There is no evidence that
Hayes performed any medical care in that time.
Defendant argues that “Hayes confirmed that someone had
HFD coming as soon as the immediate threat was over, within
three minutes of the shooting.” ECF No. 333 at 22. Defendant’s
argument raises a fact issue. The court is bound by the Fifth
Circuit’s prior holding in this case.
To overcome qualified immunity, Plaintiffs must also show
that the constitutional violation was clearly established at the time
of Hayes’s actions. Allen II, 65 F.4th at 748. The Fifth Circuit
stated that, as of 2015, “existing precedent showed that officers
who, ‘despite being aware of the detainee’s dire condition[,] . . . did
nothing to secure medical help’ at all were on ‘fair warning’ that
their behavior was deliberately indifferent.” Id. Plaintiffs have met
their burden.
Thus, Defendant’s Motion for Summary Judgment should be
DENIED as to Plaintiffs’ denial of medical care.
5. Remaining Motions
A. Plaintiffs’ Motion for Summary Judgment
Plaintiffs filed an affirmative Motion for Summary
Judgment as to qualified immunity. ECF No. 335 at 1. The court
has already found that there are no material fact disputes as to the
claims of excessive force and false arrest, and that Defendant’s
Motion for Summary Judgment should be granted as to those
claims, which precludes Plaintiffs’ motion as to those claims. As to
denial of medical care, there is a fact dispute as to whether Hayes’s
conduct was deliberately indifferent. Such a fact dispute precludes
Plaintiffs’ motion. Thus, Plaintiffs’ motion should be DENIED.
B. Motion to Exclude and Notice of Violation of
Local Rules, ECF Nos. 332 and 336
Defendant filed a Motion to Strike and Exclude Plaintiffs’
Expert Witness Designations and Motion to Exclude Keith A.
Howse. ECF No. 332. Plaintiffs request that the court strike the
motion. ECF No. 336.
Ruling on Defendant’s request to exclude Dr. Howse, except
to the extent that Plaintiffs cite Dr. Howse’s report in support of
their excessive force claim, is not necessary to resolve the summary
judgment motions. Thus, the motion, ECF No. 332, is DENIED
without prejudice to refiling closer to trial. Accordingly, Plaintiffs’
request, ECF No. 336, that the court strike Defendant’s motion is
DENIED as MOOT.
C. Motion to Quash, Motion for Due Process, and
Motion for Reconsideration, ECF Nos. 317, 324,
and 325
The court turns first to Plaintiffs’ Request for Leave to Take
Depositions and Motion to Quash. ECF No. 317. To the extent that
the motion seeks to take further depositions, it is DENIED. The
parties had two years to complete discovery after remand from the
Fifth Circuit.9 At a hearing on July 24, 2025, the court ordered the
parties to provide a full list of all depositions that up to that point
still needed to be conducted in the case. ECF No. 293; see also ECF
No. 315. The court ordered that:
9 There have been many hearings, and the court has entered many orders. A full
discussion of the convoluted discovery process is contained in the court’s July 24, 2025
Order. ECF No. 293. The court will not repeat here the long history of the discovery
disputes in this case.
The parties shall meet and confer about what
depositions are necessary.
By the close of business on July 29, 2025, the parties
shall provide a joint status report to the court stating
all depositions they have agreed to conduct and all
opposed depositions and why they are opposed.
Depositions shall be completed by September 30, 2025.
Id. at 4. In their status report, Plaintiffs proposed to depose only
four individuals (Oliphant, Irving, Salina, and Hayes) and the City
of Houston. ECF No. 295. Defendant objected to the deposition of
the City of Houston as being overbroad. Id. Defendant also objected
to Irving’s deposition but offered Officer Wesley Fikes in his place.
Id. The court sustained Defendant’s objections to the City of
Houston. ECF No. 296. The court also allowed the substitution of
Fikes, given that Plaintiffs did not object to it. Id.
As to the City of Houston’s deposition, the court ordered the
parties to confer about Plaintiffs’ deposition topics and allowed
Plaintiffs to file a new motion seeking a deposition of the City of
Houston by August 15, 2025. ECF No. 296 at 2. Plaintiffs did not
file such a motion. As the court noted in a September 16, 2025
Order, ECF No. 315, Plaintiffs had requested only a limited
number of depositions and failed to file the motion related to the
City of Houston’s deposition. Id. The court explained that
“[b]ecause the deadline to seek any further depositions ha[d]
passed, only those depositions agreed to by the parties or ordered
by the court shall go forward. All other depositions, subpoenas, and
subpoenas duces tecum are QUASHED.” Id. Plaintiffs did not
object to that order and the time to do so has passed. The order
stands.
Instead of objecting to the court’s order, two days later
Plaintiffs filed the instant request to take further depositions. ECF
No. 317. The list of depositions sought in the motion far exceeds
(and generally does not overlap with) the list of depositions that
Plaintiffs requested in their status report. Id. (seeking depositions
of Salina, Morelli, Sneed, Hurban, Baker, Lopez, and
Zimmerman). In the pending motion, Plaintiffs simply ignore the
court’s order disallowing further depositions and quashing all
other depositions and subpoenas that were then outstanding.
Plaintiffs’ arguments center on orders that were, by then, months
old and superseded by the most recent order. Plaintiffs do not
explain why they did not seek the depositions earlier or explain
how the court’s order quashing all depositions was in error.
Plaintiff’s latest request to seek depositions is far too late, defies
the text and spirit of the court’s orders, and is DENIED.
As to the request to quash the deposition of Sherman Allen,
Plaintiffs informed the court that Sherman Allen appeared for a
remote deposition as ordered, and thus, “the issue is moot[.]” ECF
No. 328. Plaintiffs’ motion, ECF No. 317, is DENIED.
Plaintiffs also filed a “Motion to Reconsider Plaintiff’s Quash
Unilateral Notice of Deposition of Sherman Allen.” ECF No. 325.
The motion also relates to the deposition of Sherman Allen and is
DENIED as MOOT.
Plaintiffs also filed a “Motion for Due Process.” ECF No. 324.
Plaintiffs argue that the court ruled on multiple pending motions
without allowing Plaintiffs an opportunity to reply, or, in some
instances, without allowing Plaintiffs an opportunity to respond.
Defendant did not respond to the motion. In the Southern District
of Texas, “[f]ailure to respond to a motion will be taken as a
representation of no opposition.” S.D. Tex. L.R. 7.4. The court also
notes that it granted the relief Plaintiffs requested in the motion
and ensured that each party had a full and fair opportunity to brief
issues before the court. The court’s rulings when it ruled before
Plaintiffs filed a response were either ministerial (ECF No. 298,
allowing an opposed motion for an extension of time to respond) or
reiterating prior rulings that had already been fully briefed or
addressed at a hearing where all parties were present (ECF
Nos. 298 and 315). In any event, Plaintiffs were not deprived of
due process, and Plaintiffs’ motion, ECF No. 324, is DENIED as
MOOT.
6. Conclusion
The court recommends that Defendant’s Motion for
Summary Judgment, ECF No. 333, be GRANTED in part and
DENIED in part and Plaintiffs’ Motion for Summary Judgment,
ECF No. 335, be DENIED. Plaintiffs’ Motion for Leave to Take
Depositions and Motion to Quash, ECF No. 317, is DENIED;
Plaintiffs’ Motion for Due Process, ECF No. 324, is DENIED as
MOOT; Plaintiffs’ Motion for Reconsideration, ECF No. 325, is
DENIED as MOOT; Defendant’s Motion to Strike, ECF No. 332,
is DENIED without prejudice; and Plaintiffs’ Motion to Strike,
ECF No. 336, is DENIED as MOOT.
The parties have fourteen days from service of this
Memorandum and Recommendation to file written objections. 28
U.S.C. § 686(b)(1); Fed. R. Civ. P. 72. Failure to timely file
objections will preclude appellate review of factual findings or legal
conclusions, except for plain error. See Thomas v. Arn, 474 U.S.
140, 147-49 (1985); Rodriguez v. Bowen, 857 F.2d 275, 276-77 (5th
Cir. 1988).
Signed at Houston, Texas, on April 28, 2026.
Peter Bray 7
United States Magistrate Judge
29