Opinion

United States District Court - Southern District of Texas

Southern District of Texas ~ ENTERED

MAY 0.69998 <a UNITED STATES DISTRICT COURT May 06, 2026 □

cuss SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk

Nathan Ochsner, Clerk” MCALLEN DIVISION

JUDY TANGUMA, as Next Friend of — §

J.LS., a Minor, et al., §

§ .

Plaintiffs, §

§

VS. § CIVIL ACTION NO. 7:25-CV-0405

§

CITY OF MISSION, TEXAS, et al, §

§

Defendants. §

REPORT AND RECOMMENDATION

Plaintiff JUDY TANGUMA, as next friend of J.L.S., a Minor, and ANGEL GABRIEL.

SALINAS (collectively, “Plaintiffs”) bring this civil action against the City of Mission, Texas:

(“Mission”), the City of McAllen, Texas (“McAllen”), and Antonio Garcia, individually and in his

official capacity as a SWAT team officer for Mission and a peace officer for McAllen (“Officer

Garcia”). The factual allegations giving rise to this civil action begin with the death of Gabriel

Salinas, who engaged in a shootout with police officers of the Mission Police Department. Officer

Garcia was assigned to a SWAT team dispatched to the scene. In responding to the shootout, the

SWAT team captured digital images of Salinas’ physical remains. Officer Garcia obtained one

such image and disseminated it to friends and acquaintances on a private chat group. The image

then spread on social media, such that it eventually came to the attention of and was seen by

Plaintiffs. Based on the live pleadings, Plaintiffs seek relief against Mission, McAllen, and Officer

Garcia under the deprivation of civil rights statute, 42 U.S.C. § 1983 (Dkt. No. 1-7 at 12-15), while’

also raising state law causes of action against Officer Garcia for invasion of privacy and intentional

infliction of emotional distress (id. at 10-12).

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Pending now are dispositive motions filed by Mission and McAllen. McAllen has filed a

Motion to Dismiss (the “Motion”) (Dkt. No. 4) pursuant to Rule 12(b)(6) of the Federal Rules of

Civil Procedure. McAllen takes the position that Plaintiffs have failed to state a claim because the

pleadings do not raise sufficient factual allegations to support municipal liability under $1 983.

(Id. at 4-6). Plaintiffs have filed a response in opposition to the Motion (Dkt. No. 13), arguing that

the live pleadings sufficiently allege municipal liability (id at 3-5). In the alternative, Plaintiffs

seek leave to amend the pleadings to correct any deficiencies. (Id. at 5).

These matters have been referred to the Magistrate Judge for report and recommendation □ □

pursuant to 28 U.S.C. § 636(b)(1). Having reviewed the briefs, the pleadings, and the law, the □

Magistrate Judge RECOMMENDS that the Motion (Dkt. No. 4) be GRANTED to the extent that

McAllen seeks dismissal of Plaintiffs’ § 1983 claim against it. Nevertheless, the Magistrate Judge

further RECOMMENDS that Plaintiffs be afforded an opportunity to amend their pleadings. □□□

dispositive issues relating to Mission are addressed through a separate, contemporaneous report □

and recommendation.

I. PROCEDURAL BACKGROUND

On June 12, 2025, Plaintiffs filed an original petition in Texas state court. (Dkt. No. 1-6).

The following day, Plaintiffs filed a First Amended Petition (Dkt. No. 1-7), which

represents the live pleadings. The live pleadings do not appear to make any material changes to

the original pleadings in terms of the named defendants, factual allegations, causes of action, or

requests for damages.

On August 12, 2025, McAllen-removed the action from state court based on this court’s

federal question jurisdiction. (Dkt. No. 1). Mission did not object to the removal. As for Officer

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Garcia, there is no indication from the record that he has been served with process; and he has not □

otherwise made an appearance.

On September 2, 2025, McAllen moved to dismiss through the Motion (Dkt. No. 4), which

was followed by Plaintiffs’ response (Dkt. No. 13).

Il. FACTUAL ALLEGATIONS

The live pleadings raise the following factual allegations. . □

On or about July 30, 2020, officérs with the Mission Police Department responded to a

domestic disturbance at a residence in Mission. (Dkt. No. 1-7 at 5). At the residence, officers □

encountered an armed Gabriel Salinas, who fired in the officers’ direction. (See id.). The officers

retreated from the residence and sent out a radio call for backup. (Id). Salinas continued to fire

at the officers from inside the residence, and the officers returned fire. (See id.). Salinas eventually _.

stopped shooting, after which the Mission Police Department’s SWAT team arrived. (See id. at □

5-6). The SWAT team deployed a remote-controlled robot to enter the residence and locate

Salinas. (Id. at 6). Through a live video feed from a camera mounted on the robot, officers : □

observed Salinas’ deceased body, which bore gunshot wounds and lay naked in a pool of blood..

(Id). As part of the police operation, a digital screenshot was taken of the video feed, ‘(d.).

Plaintiffs allege that Officer Garcia obtained the screenshot by way of his assignment to □

the SWAT team, although he was employed at the time by McAllen as a peace officer. (See □□ at

1. According to Plaintiffs, after Officer Garcia loaded the image to a personal electronic device, . .

he then sent it out for non-law enforcement purposes to a WhatsApp group chat dedicated to racing

enthusiasts. (See id.). The image was shared by chat members with others over social media □

platforms like Facebook and Twitter. (See id. at 7-8). Plaintiff Judy Tanguma was made aware

by friends and family that the image of Salinas’ body was being shared over social media: (See □

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id.) Plaintiff Angel Salinas, who was fifteen years old at the time of Salinas’ death, eventually.

found the image of his father, and Salinas’ younger son, J.I.S., came to learn of the shared image

as well. (See id. at 8-9). □

For purposes of municipal liability, Plaintiffs allege that “[McAllen] failed to adequately

train and supervise [Officer Garcia] and ensure that no officer shared photographs, video,

screenshots, or other visual depictions of human remains for personal, non-law enforcement

purposes.”. (/d. at 14). Nor did McAllen “establish a policy or procedure addressing the treatment:

of human remains, including the taking and. sharing of photographs of human remains.” □□□□

"According to Plaintiffs, when Officer Garcia shared the image, “[McAllen was] aware that the

taking of unnecessary death images and dissemination of death images for non-law enforcement

purposes [was] a widespread problem in law enforcement.” (Jd. at 14-15). Plaintiffs also allege~

that McAllen failed to “investigate or discipline” Officer Garcia for his conduct. (Id. at 15).

Ill. CAUSE OF ACTION

As against McAllen, Plaintiffs raise a claim of municipal liability under § 1983, predicated

on the violation of their Fourteenth Amendment rights to due process. (See Dkt: No. 1-7 at □□□ . □

15). When the screenshot of Salinas was shared with the public, Plaintiffs claira, they were

deprived “of the right to control the physical remains, memory, and death image of their deceased □

father-and-family member.” (/d. at 13). Plaintiffs contend “[t]here is a due process right to privacy

and family integrity guaranteed by the Fourteenth Amendment ... and recognized by courts across

the United States.” (Ud. (citing Marsh vy. Cnty. of San Diego, 680 F.3d 1148 (9th Cir. 2012))).

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IV. LEGAL STANDARDS

A. Rule 12(b)(6) Motion to Dismiss _ oe

‘Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a defendant may move to.

_ dismiss forthe “failure to state a claim upon which relief can be granted[.]” Fed. R. Civ. □□

12(b)(6). Surviving a Rule 12(b)(6) motion means pleading “enough facts to state a claim to relief

that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). ‘A claim □□

facially plausible where the factual allegations “allow[ ] the court to draw the reasonable inference

that the defendant is liable for the misconduct alleged.” Ashcroft v. Igbal, 556 US. 662, 678

(2009). Indeed, “[t]hreadbare recitals of the elements of a cause of action, supported by mere

conclusory statements, do not suffice.” Id. Also insufficient are merely “speculative” inferences,

and any purely legal conclusions should be ignored. See Ghedi v. Mayorkas, 16 F.4th 456, □□□□

(Sth Cir. 2021) (citing Twombly, 550 US. at 555). Ona Rule 12(b)(6) motion, all well-pleaded

are accepted as true and viewed in the plaintiff's favor. In re Katrina Canal Breaches Litig.,

F.3d 191, 205 (Sth Cir. 2007). . . □□ .

B. Rule 15(a) Leave to Amend

Where a plaintiffs claims have been dismissed for the failure to state a claim, a court □

‘should assess whether to allow them leave to amend their pleadings under Rule 15(a). See Bancroft

& Cas. ICC, Ltd. v. GRBR Ventures, LP, 12 F. Supp. 3d 980, 989 (S.D: Tex. 2014). Rule □

15(a) of the Federal Rules of Civil Procedure generally “evinces a bias in favor of granting leave

to amend,” Dussuoy v. Gulf Coast Inv. Corp., 660 F.2d 594, 597 (Sth Cir. 198 1). Leave to amend

should not be denied unless there is a “substantial reason” to do so. Id. at 598. One such reason

is where the amendment would be futile. Stripling v. Jordan Prod. Co., 234 F.3d 863, 872-73 (5th

2000). Accordingly, unless the defects are clearly incurable, a court should afford.the plaintiff □

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at least one opportunity to cure pleadings deficiencies before outright dismissing a case under Rule

12(0)(6). See Bancroft Life, 12 F. Supp. 3d at 989.

C. Section 1983

The § 1983 statute “creates a private right of action for redressing violations of federal law □

by those acting under color of state law.” Olabisiomotosho v. City of Houston, 185 F.3d 521, 525

(Sth Cir. 1999). The violation of law must involve the deprivation of rights or privileges secured

by federal statute or constitutional norms. Livadas v. Bradshaw, 512 U.S. 107, 132 (1994). To |

act under the color of law means to act under the “pretense” of law. Screws v. United States, 325 □

US. 91, 111 (1945). Municipalities and cities qualify as persons liable to suit under Séction 1983,

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

-- That said, a municipality cannot be held liable under § 1983 based on arespondeat superior □

theory. Id. at 691. “ [T}he unconstitutional conduct must be directly attributable to'the municipality □

through some sort of official action or imprimatur; isolated unconstitutional actions by municipal

employees will almost never trigger liability.” Piotrowski v. City of Houston, 237 F.3d 567, 578

(5th Cir. 2001). In other words, there must be both municipal culpability and causation. Jd. at 578

n.17, The official action may come by way of an official policy or custom attributable to an official

policymaker. Jd. at 578.

Therefore, municipal liability consists of three elements: (i) an official policy or custom;.

(ii) a policymaker who can be charged with actual or constructive knowledge of the policy or

custom;- and (iii) a violation of constitutional rights whose “moving force” is the policy

or custom. Cano v. Harlandale Indep. Sch. Dist., 2020 WL 7385843, at *5 (W.D. Tex. Dec. 16,

2020) (citing Fennell v. Marion Indep. Sch. Dist., 804 F.3d 398, 412 (Sth Cir. 20159).

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An official policy includes: (i) a policy statement, ordinance, regulation, or decision that is

officially adopted and promulgated by the municipality’s lawmaking officers or by an official to

whom. the lawmakers have delegated policy-making authority; and (ii) a persistent, widespread

practice of city officials or employees, which, although not authorized by officially adopted and

promulgated policy, is so common and well settled as to constitute a custom that fairly represents

municipal policy. Brown v. Bryan Cnty., 219 F.3d 450, 457 (5th Cir. 2000) (quoting Bennett □□

City of Slidell, 735 F.2d 861, 862 (Sth Cir. 1984) (en banc) (per curiam)) (quotations omitted).

Alternatively, the policy requirement may be satisfied by the policymaker’s affirmative

failure to act, provided such failure amounts to deliberate indifference. See Buehler v. City of

Austin/Austin Police Dep't, 2014 WL 12776539, at *13 (W.D. Tex. July 24, 2014) (citing Burge

v. Parish of St. Tammany, 187 F.3d 452, 471 (Sth Cir. 1999)), aff'd, 824 F.3d 548 (Sth Cir. 2016).

“Deliberate indifference is a stringent standard, requiring proof that a municipal actor

. disregarded a known or obvious consequence of [their] action[,]” for which “[a] showing of simple

or even heightened negligence will not suffice.” Valle v. City of Houston, 613 F.3d 536, 542, 547

(5th Cir. 2010) (quoting Piotrowski, 237 F.3d at 579) (internal quotations omitted). To satisfy this

requirement, the plaintiff must generally show a pattern of similar constitutional violations, which

shows that policymakers have conscious disregard for the consequences of their action. Vessv. □□

City of Dallas, 2022 WL. 625080, at *8 (N Tex. Mar. 3, 2022) (quoting Connick v. Thompson,

563 U.S. 51, 62 (2011)) (quotations omitted). Otherwise, the plaintiff must show “that the risk of

"constitutional violations was or should have been an ‘obvious’ or ‘highly predictable consequence’

_ of the alleged training inadequacy.” Littell v. Houston Indep. Sch. Dist., 894 F.3d 616, 624 (Sth

Cir. 2018) (quoting Bd. of Cnty. Comm ’rs of Bryan Cnty. v. Brown, 520 U.S. 397, 409 (1997)).

□

A plaintiff may also plead municipal liability under the separate, but related, theory of the

failure to train or supervise. See Vess, 2022 WL 625080, at *8; see also Martinez v. City of Alton,

2018 WL 1333884, at *3 (S.D. Tex. Mar. 15, 2018). “A municipality’s culpability for a

deprivation of rights is at its most tenuous where a claim turns on a failure to train[,]” Connick,

563 U.S. at 61, such that the theory is rarely applied, see Martinez, 2018 WL 1333884, at *3 (citing

Thomas v. City of Galveston, 800 F. Supp. 2d 826, 841 (S.D. Tex. 2011)). To establish municipal

liability under this theory, the plaintiff must show that: (i) a supervisor failed to supervise or train

a subordinate, or the training procedures were inadequate; (ii) a causal link exists between the □

failure and the constitutional violation; and (iii) the supervisor was deliberately indifferent. Yara

v. Perryton Indep. Sch. Dist., 560 F. App’x 356, 360 (5th Cir. 2014) (per curiam) (citing Est. of.

Davis ex rel. McCully v. City of N. Richland Hills, 406 F.3d 375, 381 (Sth Cir.2005)); see also -

Carnaby City of Houston, 636 F.3d 183, 189 (Sth Cir. 201 1. Mere negligence or even gross □ □

negli gence is not enough; a plaintiff usually must demonstrate a pattern of constitutional violations

and that the inadequacy of the training is obvious and obviously likely to result in a constitutional, □

violation. Yara, 560 F. App’x at 360 (quoting Est. of Davis, 406 F.3d at 381) (quotations omitted).

A plaintiff must “allege with specificity how a particular training program is defective.” ~

Roberts v. City of Shreveport, 397 F.3d 287, 293 (5th Cir. 2005). Where the subordinate employee. □

in question received minimum state training, a plaintiff must prove that the legal minimum training

is itselfinadequate. See Martinez, 2018 WL 1333884, at *3 (citing Sanders-Burns v. City of Plano,

594 F.3d 366, 382 (Sth Cir. 2010)). . . □

“Though [a plaintiff] need not offer proof of [their] allegations at [the pleadings] stage,

[they] must still plead facts that plausibly support each element of § 1983 municipal liability[.]”

Pefia v. City of Rio Grande City, 879 F.3d 613, 621 (Sth Cir. 2018) (citing Iqbal, 556 U.S. xt 678).

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Insofar as a policy or custom is alleged, “[t]he description of [that] policy or ‘custom and its

‘{felationship to the underlying constitutional violation . . . cannot be conclusory: it must contain

specific facts.” Spiller v. City of Tex. City, Police Dep’t, 130 F.3d 162, 167 (5th Cir. 1997).

The Magistrate Judge will address in turn the sufficiency of Plaintiffs’ claim of municipal

liability under § 1983 and whether to allow Plaintiffs leave to amend to cure the deficiencies with

pleadings. .

Municipal Liability

McAllen raises a global issue over whether Plaintiffs have sufficiently pleaded the

elements of municipal liability under any of the various theories alleged. (Dkt. No. 4 at 4-6). □□

Again, Plaintiffs invoke municipal liability based on McAllen’s failure to (i) establish a

policy for addressing the treatment of human remains and sharing of photographs of human □

remains, (i) adequately train and supervise Officer Garcia concerning the sharing of images of

human remains for non-law enforcement purposes, and (iii) investigate or discipline Officer Garcia

for his conduct. (Dkt. No. 1-7 at 14-15). □

Asa general matter, McAllen argues that the pleadings fail to refer to any ‘unwritten custom □

that violated Plaintiffs’ rights. (See Dkt. No. 4 at 5). Otherwise, McAllen contends that the

pleadings do not adequately allege deliberate indifference associated with the failure to establish

a policy or procedure. (See id at 5-6). Nor do the pleadings, McAllen continues, support

deliberate indifference for purposes of a failure-to-train theory: (See id.). □□

In response, Plaintiffs generally rely on the ostensible sufficiency of their pleadings. (See

Dkt. No. 13 at 3-5). According to Plaintiffs, their “pleading that [McAllen] failed to properly train

{Officer Garcia] is sufficient to state a plausible claim for relief at this early stage... .” (/d. at 4).

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The Magistrate Judge concludes that the live pleadings are insufficient to state a claim of

municipal liability under § 1983.

Asa threshold matter, the Magistrate Judge concludes that the pleadings fail to refer to

either an explicit or unstated policy that violated Plaintiffs’ constitutional rights. Indeed, any

unstated policies may be based on a persistent, widespread practice of a government entity’s □ □

officials or employees, Brown, 219 F.3d at 457, or, in other words, a “pattern or practice,” see □

Miranda v. Bexar Cnty., 2024 WL 314055, at *4 (W.D. Tex. Jan. 26, 2024) (citing Davidson v,

of Stafford, 848 F.3d 384, 396 (Sth Cir. 2017)). To sufficiently plead a pattern or practice, a

plaintiff must do more than describe the incident giving rise to their injury. Pefia, 879 F.3d at 622.

Pleading a pattern involves describing other incidents that are sufficiently similar, specific, and

numerous. Mills v. Connelly, 2024 WL 4799884, at *5 (M.D. La. Aug. 21, 2024) (citing Davidson,

848-F.3d at 396). A pattern requires similarity and specificity, such that prior indications cannot

simply be for any and all bad or unwise acts, but rather must point to the specific violation in

question. Peterson v. City of Fort Worth, 588 F.3d 838, 851 (Sth Cir. 2009) (quoting Est of Davis,

406 F.3d at 383) (quotations omitted). In terms of numerosity, the description of one or even two

prior incidents is generally not enough to plead a pattern. See Prince v. Curry, 423 F. App’x 447, □

451 (Sth Cir. 2011) (per curiam); see also Lewis v. Williamson Cnty, 2022 WL'17823692, at *10 □

(W.D. Tex. Dec. 20, 2022) (citing Vess, 2022 WL 625080, at *6); Garcia v. Harris Cnty., 2024

WL 1291531, at *4 (S.D. Tex. Mar. 26, 2024), opinion vacated on reconsideration on other

grounds, 2024 WL 5205920 (SD. Tex. Nov. 13, 2024). On the other end of the spectrum, the .

Fifth Circuit recently held that the detailing of a total of 23 prior cases involving the failure to

provide adequate medical care to inmates was enough to state a claim as to the existence of a

policy. See Bond v. Nueces Cnty., 2022 WL 4595000, at *4-5 (Sth Cir. Sept. 30, 2022). Pointing

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potential floor, in one case, the Western District of Texas deemed that a pattern had been

sufficiently stated based on allegations of three similar cases. See Carrazco v. Cnty. of Bexar,

2020 WL 13896861, at *3 (W.D. Tex. Feb. 24, 2020); see also Barr v. City of San ‘Antonio, 2006.

WL 2322861, at *4 (W.D. Tex: July 25, 2006) (pattern alleged based on four similar lawsuits).

Here, besides the situation involving Officer Garcia, the pleadings do not refer to any other □

specific instances of law enforcement officers engaged in the sharing of images of deceased bodies

_ gathered from crime scenes. The best Plaintiffs do is allege that McAllen was “aware that the

taking of unnecessary death images and dissemination of death images for non-law enforcement □□

purposes [was] a. widespread problem in law enforcement.” (Dkt. No. 1-7 at 14-15). But this

“general statement does not seemingly implicate prior conduct within the ranks of McAllen’s police

force or any of its other employees. .

Turning to Plaintiffs’ specified theories of municipal liability, the failure to establish a □ □

policy: and failure to train or supervise are both based on the circumstance that the relevant

policymaker acted or failed to act with deliberate indifference. See Buehler, 2014 WL 12776539,

at *13, A policymaker’s deliberate indifference may be inferred from a pattern of similar

constitutional violations. See Vess, 2022 WL 625080, at *6; see also Garza v. City of Donna, 922 □

F.3d 626, 637 (Sth Cir. 2019). As stated, however, the pleadings fail to refer to any pattern 7

whatsoever. Theoretically, a policymaker’s conscious disregard can be.inferred from a single

“incident, such that the plaintiff must show “that the risk of constitutional violations was or should

have been an ‘obvious’ or ‘highly predictable consequence’ of the alleged training inadequacy.” □

Littell, 894 F.3d at 624 (quoting Brown, 520 U.S. at 409). Such an inference, however, “is possible :

in only very narrow circumstances[,]” id. at 624-25, for instance, where a municipality arms its

police officers but fails to train them in the use of ‘deadly force, see Pefia, 879 F.3d at 624 (citing □

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City of Canton v. Harris, 489 US. 378, 390 n.10 (1989). Moreover, “the ‘single-incident □

exception ‘is generally reserved for those cases in which the government actor was provided no

training whatsoever.” Hill v. Turknett, 2020 WL 3872743, at *7 (N.D. Tex. July 9, 2020) (quoting

Pefia, 879 F.3d at 624)). Here, Plaintiffs do not allege that McAllen failed to train Officer Garcia

at all, but, rather, that McAllen failed to adequately train him in the specific area conceming the

. sharing of images of human remains for non-law enforcement purposes. See id. □□

Lastly, Plaintiffs claim that McAllen effectively ratified Officer Garcia’s conduct by failing

to investigate or discipline him. Ratification theory generally requires that. a policymaker

knowingly approve, not just a subordinate’s actions, but also the improper basis for those actions.

Covington v. City of Madisonville, 812 F. App’x 219, 228 (5th Cir. 2020) (per curiam) (citing City □□

oft. Louis v. Praprotnik, 485 U.S. 112, 127 (1988)). Unless conduct is “manifestly indefensible,”

a policymaker’s mistaken defense of a subordinate who is later found to have broken the law is

not ratification chargeable to the municipality. Id. (quoting Coon v. Ledbetter, 780. F.2d 1158,

1161-62 (Sth Cir. 1986)) (quotations omitted). The Fifth Circuit’s “precedent has limited the

theory of ratification to ‘extreme factual situations.’” Peterson, 588 F.3d at 848 (quoting Snyder

v. Ti repagnier, 142 F.3d 791, 798 (Sth Cir. 1998)). The quintessential case is that of Grandstaff v. □

City of Borger, 767 F.2d 161 (Sth Cir. 1985), where a municipality was found liable upon ratifying

the conduct of officers who “poured” gunfire on a truck, killing an innocent occupant. In

Grandstaff, the “officers and their supervisors . . . denied their failures and concerned themselves

only with unworthy, if not despicable, means to avoid legal liability.” Jd. at 166. Here, there is .

nothing from the pleadings to suggest that the incident at issue presents an extreme factual situation

within the meaning of applicable precedent. See Peterson, 588 F.3d at 848; see also Reed v. City,

of Lago Vista, 2022 WL 432563, at *4-5 (W.D. Tex. Feb. 10, 2022), report and recommendation

4g

adopted, 2022 WL 22257843 (W.D. Tex. Mar. 11, 2022). Moreover, as with Plaintiffs’ other

theories of municipal liability, establishing ratification generally requires a pattern of similar □

constitutional violations. See Vess, 2022 WL 625080, at *6. But again, Plaintiffs failto make this =”

showing, nor do they otherwise claim that McAllen failed altogether to train Officer Garcia.

B. Leave to Amend

Insofar as Plaintiffs fail to state a claim. for relief, the question becomes whether they should

_ be allowed the opportunity to amend their pleadings. As noted, unless a party’s pleading defects

are clearly incurable, they should generally be afforded at least one opportunity to cure those

defects before outright dismissal. See Bancroft Life, 12 F. Supp. 3d at.989. Here, although ~~

Plaintiffs have amended their.pleadings once before, the court has not previously considered the

sufficiency of those pleadings. Also, many of the pleading deficiencies noted above are seemingly

- curable. Accordingly, the Magistrate Judge concludes that Plaintiffs should be allowed leave to

amend. See Guerra v. Childress Cnty, 2024 WL 4673928, at *7 (N.D. Tex. Nov. 4, 2024)

(granting leave to amend where plaintiff amended complaint once before in response to a motion □ .

to dismiss but the court had not ruled on the prior motion). □

VI. CONCLUSION

Recommendation .

For these reasons, the Magistrate Judge RECOMMENDS that the Motion (Dkt. No. 4) be

: GRANTED to the extent that McAllen seeks dismissal of Plaintiffs’ § 1983 claim against it.

Nevertheless, the Magistrate Judge further RECOMMENDS that Plaintiffs be afforded an

opportunity to amend their pleadings.

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Notice to the Parties

Within fourteen (14) days after being served a copy of this report, a party. may serve and

file specific, written obj ections to the proposed recommendations. 28 US.C.§ 63 6(by(1 XC): Fed.

R. Civ. P. 72(b). Failure to file written objections within fourteen (14) days after service shall □□□□ □□

aggrieved party from de novo review by the District Judge on an issue covered in this report

and from appellate review of factual findings accepted or adopted by the District Judge, except

grounds of clear error or manifest injustice.

. Directive to Clerk of Court . □

□□□ Clerk of Court is DIRECTED to serve the parties with a copy of this document by any

receipted means. □

DONE at McAllen, Texas this 6th day of May 2026.

ed States Magistrate Judge

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