Petition for Writ of Certiorari — Amanda Wood, Petitioner v. Bexar County, Texas, et al.

In the

Supreme Court of the United States

________________________________________________

No. _______________________

AMANDA WOOD,

PetitiONer,

v.

BeXAr COuNty, DePuty JOe GereB,

reSPONDeNtS.

_________________________________________________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

________________________________________________

SUPPLEMENTAL CERTIORARI APPENDIX

_________________________________________________

Andres Roberto Cano

Supreme Court Bar # 325608

Texas Bar 24100071

Petitioner’s Counsel

5231 Redding

San Antonio, Texas 78219

(210) 231-0433 (office)

(210) 263-7667 (fax)

dx4829@gmail.com

SUPPLEMENTAL APPENDIX

U.S. Magistrate’s Report & Recommendations

September 20, 2024

Amanda Wood v. Bexar County, et al.

5:21-cv-895-OLG

ROA.24-51006.2760-2797.

pages 1-52

Respectfully Submitted,

/s/ Andres Cano

Petitioner’s Counsel

Supreme Court Bar 325608

Texas Bar 24100071

5231 Redding

San Antonio, Texas 78219

(210) 231-0433

(210) 263-7667 (fax)

dx4829@gmail.com

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IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

AMANDA WOOD,

Plaintiff,

SA5:21cv895-OLG

BEXAR COUNTY, TEXAS,

DEPUTY JOE GEREB,

Defendants.

REPORT AND RECOMMENDATION OF THE

UNITED STATES MAGISTRATE JUDGE

To the Honorable United States District

Judge Orlando L. Garcia:

This Report and Recommendation concerns

motions for summary judgment filed by Defendants

Deputy J. Gereb (“Deputy Gereb”) and Bexar County,

Texas (the “County”). (Docket Entries 72 and 73).

Pretrial matters have been referred to the

undersigned for consideration. (Docket Entry 76.)

For the reasons set out below, I recommend that both

motions (Docket Entries 72 and 73) be GRANTED

I.

Jurisdiction

Plaintiff Amanda Wood asserts various claims

against Defendants under 42 U.S.C. § 1983. (See

Docket Entry 1 at 15–25.) The Court has original

jurisdiction over such claims pursuant to 28 U.S.C.

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§ 1331. The undersigned issues this report pursuant

to 28 U.S.C. § 636(b)(1)(B).

II. Background & Summary Judgment record

The action in this case begins with a traffic stop

conducted by Deputy Gereb on August 4, 2019. (See

Docket Entry 72-1, at 3; Docket Entry 80-1, at 9.)

But the factual background relevant

_________________________________________________

1 To the extent that this Report and Recommendation relies on

proffered summary judgment evidence to which an

authentication or other admissibility objection has been made,

the objection is overruled. See FED. R. CIV. P. 56(c) (“A party

may object that the material cited to support or dispute a fact

cannot be presented in a form that would be admissible at trial.”)

(emphasis added); Patel v. Texas Tech Univ., 941 F.3d 743, 746

(5th Cir. 2019) (“[E]vidence submitted to support or dispute a fact

on summary judgment . . . may be presented in a form that would

not, in itself, be admissible at trial.”); Maurer v. Indep. Town, 870

F.3d 380, 384 (5th Cir. 2017) (“At the summary judgment stage,

evidence need not be authenticated or otherwise presented in an

admissible form; . . . [it] need only be capable of being ‘presented

in a form that would be admissible in evidence.”).

A. Deputy Gereb’s Hiring and Training,

and County Policy

Deputy Gereb became a licensed peace officer

with the Bexar County Sheriff’s Office on January 9,

2015. (Docket Entry 73-1, at 28.) Prior to his

encounter with Plaintiff, Deputy Gereb had received

training from the County on various topics, including

“DWI/DUI Detection and Enforcement” (twice),

“Patrol Procedures” (twice), “Constitutional Law,”

“Selective Traffic Enforcement [Program]” (“STEP”)2,

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“Traffic Stops,” “Traffic Law,” “Use of Force” (three

times), “S.F.S.T.,” (twice), and “Arrest, Search, and

Seizure.” (Docket Entry 73-1, at 33–39.)

2 STEP is a federally funded program that

“assists in paying for overtime activities by local law

enforcement . . . [that] focus on reducing the incidences of

speeding, driving while intoxicated, failure to use

occupant restraint systems [i.e., seatbelts],” and the like.

(Docket Entry 80-9, at 19.) The program is limited to socalled “Enforcement Zones,” which “are based on crash

data . . . supplied by” the Texas Department of

Transportation (“TxDOT”) (Docket Entry 79-4, at 15.)

The County “identifies the zones based on the data,

which is then verified and approved by TxDOT.” (Id.)

Traffic stops are eligible for STEP funds only when

“initiated for infractions witnessed inside of, or in route

to an established Enforcement Zone.” (Docket Entry 799, at 19.) Officers working STEP-funded patrol shifts are

required to “make enforcement of [i]mpaired [d]riving . .

. their top priority during enforcement, although any

traffic-related probable cause may be used to initiate a

vehicle stop.” (Id. at 20.) To be in compliance with

TxDOT’s performance expectations for STEP funding,

officers are expected to “maintain an average of 2.5

vehicle stops or more” per hour. (Id.; Docket Entry 80-2,

at 88.)

Deputy Gereb was working a patrol shift as part

of the STEP program when he encountered Plaintiff.

(Docket Entry 72-1, at 3; Docket Entry 79-4, at 17;

Docket Entry 79-10, at 3.)

Also prior to Deputy Gereb’s encounter with

Plaintiff, the County had adopted several formal

policies on the topics of warrantless arrests,

temporary detentions, and DWI investigations.

(Docket Entries 73-4 and 73-5.) The County’s policy

prohibits warrantless arrests “unless the deputy has

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sufficient reliable information to constitute probable

cause upon which a warrant could be issued.”

(Docket Entry 73-4, at 3.) The policy states that

“authority to arrest without warrant is entirely

statutory,” and the relevant Texas statute—TEX.

CODE CRIM. PROC. art. 14.01(b)—states that

officers “may arrest an offender without a warrant for

any offense committed in their presence or within

their view.” (Docket Entry 73-4, at 2, 17.)

The County’s policy on temporary detentions—

i.e., Terry stops—was that an officer “may

temporarily, involuntarily detain a person for

investigation when he has reasonable suspicion that

the particular person has been, is, or is about to be

involved in criminal activity.” (Id. at 22.) The policy

states that such stops “must be temporary,” and that

“during the period of detention, officers must

continue to diligently pursue a means of

investigation likely to confirm or dispel their

suspicions.” (Id. at 23.) The policy further states that

temporary detentions are permitted “[w]here the

officer observes what he reasonably believes to be a

traffic violation.” (Id. at 24–25.)

The County’s policy has detailed rules for DWI

investigations. It states that an officer has probable

cause to conduct a traffic stop when he observes a

“traffic violation,” or other “[u]nsafe conduct . . . such

as erratic movement across the roadway.” (Docket

Entry 73-5, at 2.) The policy identifies markers of

intoxication, including the “demeanor and physical

appearance of the driver after the stop is made,” the

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“odor of presence of intoxicants,” and “[a]ny field

sobriety tests performed by the driver.” (Id. at 3.)

The policy cautions officers that they should

consider “whether or not the appearance of

intoxication is caused by illness or [is] the result of a

physical handicap.” (Id.) The policy also states

that, when an officer suspects that a detained

driver is intoxicated “and there is a DWI

enforcement/traffic safety officer on duty, that officer

may be called to the scene to assist.” (Id. at 6.) The

policy instructs officers to read the “DWI Statutory

Warning (DIC-24)” to arrestees, which advises that

they are under arrest for DWI, requests that they

provide a specimen of breath or blood, and warns

them of the consequences of refusal—including

temporary loss of driving privileges and having the

specimen involuntarily taken pursuant to a search

warrant. (Id. 4–5; Docket Entry 72-5, at 2.) Finally,

the policy states that, following a DWI arrest, the

suspect’s “vehicle [must be] impounded” unless it can

be entrusted to a passenger, if any, who is both “a

licensed relative” and “not intoxicated.” (Docket

Entry 73-5, at 3.)

B.

Deputy Gereb’s encounter with Plaintiff

In the early, pre-dawn hours of August 4, 2019,

Deputy Gereb initiated a traffic stop of Plaintiff’s

vehicle. (Docket Entry 72-1, at 3; Docket Entry 7910, at 7; Docket Entry 73-8, at 3.) Plaintiff was

driving, and her husband at the time, Christopher

Wood (“C.W.”), was riding in the front passenger

seat. (Docket Entry 72-1, at 4; 72-13, at 2; 79-1, at 8–

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9; see Docket Entry 72-2, at 3:40–6:22.) Deputy

Gereb’s police cruiser was not equipped with a

dashboard camera, so there is no video evidence of

Plaintiff’s driving before the traffic stop. (Docket

Entry 79-2, at 44.)

In his incident report, two affidavits, and at his

deposition, Deputy Gereb averred that he observed

Plaintiff commit several traffic violations, including

changing lanes without a turn signal, speeding, and

driving in multiple lanes at once. (Docket Entry 721, at 3; Docket Entry 72-7, at 2–3; Docket Entry 731, at 21–23; Docket Entry 79-2, at 161–63.) Plaintiff

disputes the veracity of these observations in her

own affidavit, asserting that she “obeyed the posted

speed limits and traffic laws.” (Docket Entry 79-1, at

9.) But in another affidavit, C.W. stated that

Plaintiff was in fact speeding before they were pulled

over. (Docket Entry 72-13, at 2.)

Deputy Gereb approached the vehicle and made

contact with Plaintiff. (Docket Entry 72-1, at 4;

Docket Entry 80-9, at 36.) At some point, Plaintiff

began recording the encounter on her cell phone.

(Docket Entry 72, at 4–5; Docket Entry 80, at 1; 80-1,

at 9; Docket Entry 80-9, at 36.) According to Deputy

Gereb, he smelled alcohol emitting from the vehicle.

(Docket Entry 72-1, at 4; Docket Entry 72-7, at 3;

Docket Entry 80-, at 36; Docket Entry 80-9, at 36.)

Deputy Gereb asked Plaintiff if she had been

drinking and she responded, categorically, that she

does not drink. (Docket Entry 72-1, at 4; Docket

Entry 80-1, at 10; Docket Entry 80-9, at 36.) Deputy

Gereb had Plaintiff exit the vehicle and began

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conducting a roadside interview. (Docket Entry 72-1,

at 4; Docket Entry 80-1, at 10; Docket Entry 80-9, at

36.) According to Deputy Gereb, during the

interview he observed that Plaintiff’s eyes were

glossy, that her words were slurred, and that her

breath smelled of alcohol. (Docket Entry 72-1, at 5;

Docket Entry 72-7, at 3; Docket Entry 80-9, at 36.)

Deputy Gereb asked Plaintiff about her medical

history—including whether she was diabetic or

epileptic. (Docket Entry 72-1, at 4; Docket Entry 801, at 10; Docket Entry 80-2, at 32; Docket Entry 809, at 36.) Plaintiff responded that she had gall

bladder surgery 18 months earlier, and that she

wore contact lenses. (Docket Entry 72-1, at 4; Docket

Entry 80-2, at 32; Docket Entry 80-9, at 36.) Deputy

Gereb then asked Plaintiff whether she had any

sleep the night before, but she refused to answer—

“that’s none of your concern.” (Docket Entry 72-1, at

5; Docket Entry 80-2, at 33; Docket Entry 80-9, at

36.)

According to Plaintiff, she stopped answering

Deputy Gereb’s questions because she felt they were

getting too personal. (Docket Entry 80-1, at 10.)

Deputy Gereb explained to Plaintiff that the

questions were part of a Standard Field Sobriety Test

(“SFST”). (Docket Entry 72-1, at 5; Docket Entry 801, at 10; Docket Entry 80-9, at 36.) According to

Deputy Gereb, such questions are used to determine

whether observed indicators of intoxication—e.g.,

glossy eyes—might actually be the result of

something innocent like a medical condition or even

allergies, thereby potentially dispelling suspicion

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that the offense of Driving While Intoxicated (“DWI”)

had been committed. (See Docket Entry 80-2, at 54–

55.) They are also used more generally to determine

whether a driver “has the mental faculties to be

operating a motor vehicle.” (Docket Entry 73-1, at

25; Docket Entry 80-1, at 165.) Deputy Gereb made

several requests that Plaintiff answer his SFST

questions, but Plaintiff refused. (Docket Entry 72-1,

at 6; 72-7, at 3; Docket Entry 80-1, at 10; Docket

Entry 80-9, at 36.) According to Plaintiff, Deputy

Gereb told her that failure to answer his questions

and perform SFSTs would result in her arrest.

(Docket Entry 80-1, at 10.)

According to Deputy Gereb, due to her erratic

driving, odor of alcohol, slurred speech, and glossy

eyes—and because she refused to answer the

questions or perform the SFSTs that might have

dispelled his suspicions—he advised her that she

was being detained on suspicion of DWI. (Docket

Entry 72-1, at 5; Docket Entry 80-9, at 36.) According

to Plaintiff, Deputy Gereb told her she was being

arrested for refusing to perform SFSTs. (Docket

Entry 80-1, at 10.) Deputy Gereb then handcuffed

Plaintiff, placed her in the back of his cruiser, and

called for backup. (Docket Entry 72-1, at 5; 80-9, at

36.)

Sheriff’s Deputy Brent Bible (“Deputy Bible”),

with the DWI Traffic Enforcement Unit, arrived at

the scene in response to Deputy Gereb’s request.

(Docket Entry 72-1, at 5; Docket Entry 80-2, at 169–

70; Docket Entry 80-9, at 36.) Deputy Bible’s body

camera recorded significant portions of the

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encounter that followed. (See Docket Entry 72-2.)

According to Deputy Bible, as soon as he made

contact with Plaintiff he could smell “a strong

metabolized odor of alcoholic beverages emitting

from h[er] person,” and observed that she had

“glassy, red[,] blood[-]shot eyes.” (Docket Entry 723, at 2; see also Docket Entry72-2, at 3:28–3:35

(telling Deputy Gereb that he also smelled alcohol on

Plaintiff’s person and that “it’s strong”).) Deputy

Bible advised Plaintiff that he could smell alcohol on

her and asked her to consent to perform an SFST,

explaining that the purpose was to confirm or dispel

their suspicion that she had committed a DWI and

determine whether she was fit to safely operate her

vehicle. (Docket Entry 72-2, at 1:30–3:25.) Plaintiff’s

responses were belligerent and interruptive, and her

speech slurred at times, but eventually she told

Deputy Bible: “I don’t need to consent to anything; I

didn’t even do anything; I don’t drink; and I want to

let my attorney know.” (Id.)

Deputy Bible then made contact with C.W., who

was smoking a cigarette in the passenger seat of

Plaintiff’s car. (Docket Entry 72-2 at 3:40.) Upon

questioning, C.W. told Deputy Bible that he and

Plaintiff had recently left a movie at the Casa Blanca

theater. (Id. at 3:45–53.) Deputy Bible asked

whether they had been drinking that evening—

explaining that he could smell alcohol on them—but

C.W. denied it. (Id. at 3:53–4:01.) Deputy Bible then

explained that “because of the strong odor of

alcoholic beverages . . . emitting from her,” and

because Plaintiff refused to perform any SFSTs,

“she’s going to be under arrest for DWI.” (Id. at

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4:51–56; 5:12–17; 5:23–25.) Deputy Bible then

explained that Plaintiff’s vehicle could be left in

C.W.’s care, but that he would have to perform

SFSTs first to confirm that he was fit to safely

operate the vehicle—otherwise the vehicle would be

towed. (Id. at 5:48–6:20.) C.W. declined to perform

SFSTs (Id. at 6:20–22), at which point Deputy Bible

called for a tow truck to impound the vehicle and

proceeded to conduct an inventory search of its

contents. (Id. at 6:26–10:36; 17:32–22:29.)

With Deputy Bible present, Deputy Gereb

advised Plaintiff that she was under arrest for DWI,

advised her of her Miranda rights, and read

verbatim from a document entitled Statutory

Warning. (Docket Entry 72-2, at 11:53–15:38; see

Docket Entry 72-5, at 2.) That statutory warning—

which the parties also refer as the “DIC-24”—informs

the arrestee in relevant part that:

You are under arrest for . . . operating a motor vehicle in a

public place . . . while intoxicated

You will be asked to give

a specimen of your breath and/or blood. The specimen will be

analyzed to determine the alcohol concentration

in your

body. If you refuse to give the specimen, that refusal may be

admissible in a subsequent prosecution. Your license, permit,

or privilege to operate a motor vehicle will be suspended or

denied for not less than 180 days, whether or not you are

subsequently prosecuted for this offense. If you refuse to

submit to the taking of a specimen, the officer may apply for a

warrant authorizing a specimen to be taken from you. . . .

(Docket Entry 72-5, at 2; see Docket Entry 72-2, at

11:53–15:38.) As he read the above warning,

Plaintiff belligerently shouted over and insulted

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Deputy Gereb, her speech noticeably slurring at

times. (Docket Entry 72-2, at 11:53–15:38.) Plaintiff

unambiguously refused to consent to provide a breath

or blood sample. (Id.) In the minutes that followed,

Plaintiff can be heard through Deputy Bible’s bodycamera—from several yards away—screaming

profanities in the back of Deputy Gereb’s cruiser.

(Id. at 16:45–17:06.)

Deputy Gereb then transported Plaintiff to the

Bexar County Adult Detention Center for booking.

(Docket Entry 72-1, at 7; Docket Entry 80-1, at 11;

Docket Entry 80-2, at 55.) Plaintiff was given

another opportunity to volunteer a breath or blood

sample, but she again refused. (Docket Entry 80-1,

at 11.) Deputy Gereb completed and filed an

“Affidavit for Search Warrant and Magistration.”

(Docket Entry 72-1,at 8; Docket Entry 72-7.) In the

affidavit, Deputy Gereb explained that Plaintiff was

arrested for DWI and represented that Plaintiff was

“concealing human blood which constitutes evidence

that . . . [she] committed the offense. . . .” (Docket

Entry 72-7, at 2.) Deputy Gereb represented that, at

approximately 2:09 A.M., he initiated a traffic stop

after observing several traffic infractions. (Id.) He

described observing that Plaintiff “had slurred

speech, glossy eyes, and had a strong odor of alcohol

emitting from her breath and vehicle.” (Id. at 3.) He

further described Plaintiff as talkative, cocky,

excited, profane, and insulting. (Id.) He also

checked boxes describing Plaintiff’s balance as

“hesitant” and her walking as “swaying,” though he

later testified at his deposition that this was

incorrect and he checked those boxes 8 by mistake

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(Id.; Docket Entry 80-2, at 53–54.) Finally, Deputy

Gereb stated that Plaintiff refused to provide a

breath or blood sample after she was arrested for

DWI, which led him to believe that she was

“attempting to hide evidence of . . . her intoxication.”

(Docket Entry 72-7, 4.)

At 4:10 A.M., based on Deputy Gereb’s affidavit,

Bexar County Magistrate Judge Javier Rocha found

that probable cause existed to believe that Plaintiff

had alcohol in her system and issued a search

warrant authorizing the involuntary removal of

samples of her blood. (Docket Entry 72-8.) The

warrant authorized law enforcement officers to “use

all reasonable force necessary to assist” in the

collection of the blood samples. (Id.) Plaintiff

refused to comply with the search warrant. (Docket

Entry 72-9, at 2–4.) She was warned that the blood

would be extracted by force unless she complied with

the warrant, but she again refused. (Id.) At 4:49

A.M., a Specialized Emergency Response Team

(“SERT”) consisting of several officers in tactical

gear was brought in to restrain Plaintiff so that the

warrant could be executed. (Id.; Docket Entry 80-2,

at 58.) The SERT officers placed Plaintiff in a metal

chair and used straps attached to the chair to

restrain her limbs. (Docket Entry 71-17, at 0:30–

2:40.) Throughout the process, Plaintiff lobbed

profanities and insults at the officers. (Id.) Deputy

Gereb never touched Plaintiff during this process—

physically entering the room only after the SERT

officers were finished. (Id.; see Docket Entry 72-1, at

8.) The blood draw was completed at 5:03 A.M.—

roughly three hours after Deputy Gereb initiated the

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traffic stop in this case. (Docket Entry 72-1, at 8;

Docket Entry 72-10, at 4–5, 7.)

Plaintiff’s blood samples were analyzed by Salina

Vargas, a forensic scientist at the Texas Department

of Public Safety’s Crime Laboratory in Austin,

Texas. (Docket Entry 72-11.) Her toxicology report

found 0.019 grams of alcohol per 100 milliliters of

blood, with a margin of error of 0.001 grams. (Id.)

The report was subsequently reviewed by Dr.

Robert Johnson, Chief Toxicologist for the Tarrant

County Medical Examiner in Fort Worth, Texas.

(Docket Entry 72-12.) According to Dr. Johnson, the

toxicology report proves that Plaintiff consumed

alcohol before driving and that her blood alcohol

content (“BAC”) was greater at the time of the traffic

stop than it was when her blood samples were finally

collected three hours later. (Docket Entry 72-12, at

4–5.) Dr. Johnson concluded, moreover, that such

alcohol consumption could have “cause[d] the driving

behaviors observed prior to the stop.” (Id. at 5.)

On September 4, 2020, the DWI charge against

Plaintiff was dismissed. (Docket Entry 80-9, at 8.)

The stated reason for the dismissal was

“[i]nsufficient [e]vidence.” (Id.)

C.

Plaintiff’s Suit

On August 3, 2021, Plaintiff filed suit in the

407th District Court, Bexar County, Texas, asserting

claims under 42 U.S.C. § 1983 against Deputy Gereb

and the County for deprivations of her constitutional

rights. (Docket Entry 1-1, at 1.) Defendants

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removed the case to this Court on September 20,

2021. (Docket Entry 1.)

After removal, Defendants moved to dismiss

Plaintiff’s claims under Federal Rule of Civil

Procedure 12(b)(6). (Docket Entry 4.) Plaintiff then

amended her complaint3 and the District Court

denied the motion as moot. (See Docket Entry 8;

Text Order Dated Nov. 2, 2021.) Defendants

subsequently filed another 12(b)(6) motion to dismiss

Plaintiff’s Amended Complaint. (Docket Entry 14.)

The undersigned recommended that the motion be

granted, and the District Court adopted the

recommendation.4 (Docket Entries 39 and 43,

respectively.) Plaintiff appealed. (Docket Entry 46.)

The Fifth Circuit reversed and remanded, holding

that the Court’s ruling has failed to accept the

veracity of Plaintiff’s allegations that, inter alia,

“Gereb pulled her over ‘without any articulable

basis,’ falsely ‘accus[ed]’ her of being drunk, . . .

‘rummaged’ through her car and person without

reason, ‘seized her cellular phone’ for recording the

stop, . . . [and] then ‘lied in an [a]ffidavit’ to get a

blood draw and knowingly filed ‘false criminal

charges’ against [her].” Wood v. Bexar Cnty., Tex.,

No. 22-50888, 2023 WL 3563012, at *1–2 (5th Cir.

May 19, 2023) (per curiam).

After the case was remanded, Defendants filed

the motions for summary judgment currently

pending before the Court. (Docket Entries 72–73.)

Plaintiff has responded to the motions, and

Defendants have replied. (See Docket Entries 79–80,

85–86.) Thus, the motions are “ripe and ready for

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ruling.” S.P. v. Ne. Indep. Sch. Dist., No. 5:21-CV-388JKP, 2021 WL 3272210, at *1 (W.D. Tex. July 30,

2021). 5

_________________________________________________

Plaintiff’s amended complaint originally

included two state-law claims against Deputy Gereb, for

malicious prosecution and intentional infliction of

emotional distress, respectively. (Docket Entry 8, at 20–

21.) However, Plaintiff subsequently voluntarily

dismissed those claims. (Docket Entry 18, at 23.) See

Griggs v. S.G.E. Mgmt., L.L.C., 905 F.3d 835, 840 (5th

Cir. 2018) (“[A] notice of dismissal is self-effectuating

and terminates the case in and of itself; no order or other

action of the district court is required.”).

3

4 The District Court also sanctioned Plaintiff’s

counsel for inappropriate objections to the undersigned’s

Report and Recommendation. (Docket Entry 47; Text

Entry Dated Oct. 18, 2022.)

5 Plaintiff also filed an Advisory (Docket Entry

88), which is effectively a surreply filed without leave of

the Court. See W.D. TEX. L.R. CV-7(e)(1) (“A party may

file a reply in support of a motion. Absent leave of court,

no further submissions on the motion are allowed.”)

(emphasis added); QUESTION 32, COURT FACTS

SHEET FOR U.S. DISTRICT JUDGE ORLANDO L.

GARCIA (June 3, 2024) (uscourts.gov) (requiring “leave

of court” to file “briefing on motions beyond the motion,

response, and reply.”). Because the Advisory was filed

without leave, the undersigned does not consider it

making recommendations regarding Defendants’

motions.

_______________________________________________________

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III.

Summary Judgment Standard

Summary judgment is appropriate when “the

movant shows that there is no genuine dispute as to

any material fact,” and that they are “entitled to

judgment as a matter of law.” FED. R. CIV.

P. 56(a). A dispute is genuine “if the evidence is such

that a reasonable jury could return a verdict for the

nonmoving party.” Allen v. U.S. Postal Serv., 63

F.4th 292, 300 (5th Cir. 2023) (quoting Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).

Genuineness is neither satisfied by “some

metaphysical doubt as to the material facts, . . . [n]or

by only a ‘scintilla’ of evidence.” Little v. Liquid Air

Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (citations

omitted). A disputed fact is material if it “might

affect the outcome of the suit under the governing

law.” Allen, 63 F.4th at 300 (quoting Anderson, 447

U.S. at 248).

When considering a motion for summary

judgment, the Court “must view all facts and

evidence in the light most favorable to the nonmoving party.” Feist v. La., Dep’t of Just., Off. of the

Atty. Gen., 730 F.3d 450, 452 (5th Cir. 2013).

However, the Court will draw reasonable inferences

in the nonmovant’s favor only “when there is an

actual controversy, that is, when both parties have

submitted evidence of contradictory facts.” Meaux v.

Cooper Consol., LLC, 477 F. Supp. 3d 515, 523 (E.D.

La. 2020) (quoting Little, 37 F.3d at 1075).

“Unsubstantiated assertions, improbable inferences,

and unsupported speculation are not sufficient to

defeat a motion for summary judgment.” Heinsohn v.

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Carabin & Shaw, P.C., 832 F.3d 224, 234 (5th Cir.

2016). And “[w]hen there is video evidence in the

record, courts are not bound to accept the

nonmovant's version of the facts if it is contradicted

by the video.” Crane v. City of Arlington, Tex., 50

F.4th 453, 461-62 (5th Cir. 2022) (citations omitted),

cert. denied, 144 S. Ct. 342 (2023); see Scott v.

Harris, 550 U.S. 372, 378–79 (2007) (“[F]rom the nonmovant’s viewpoint, . . . respondent, rather than

fleeing from police, was attempting to pass his

driving test

[but t]he videotape tells quite a

different story.”).

The party moving for summary judgment

typically bears the initial burden of “informing the

court of the basis for its motion, and identifying those

portions of [the record] which it believes demonstrate

the absence of a genuine issue of material fact.”

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

Once the moving party carries its initial burden, the

nonmovant must “direct the court’s attention to

evidence in the record sufficient to establish that

there is a genuine issue of material fact for trial.”

Mary Kay, Inc. v. Weber, 601 F. Supp. 2d 839, 851

(N.D. Tex. 2009) (citing Celotex, 477 U.S. at 323–24).

However, when a public official defending against a

§ 1983 claim has asserted the defense of qualified

immunity, “the plaintiff bears the burden of showing

the defense does not apply.” Perry v. Mendoza, 83

F.4th 313, 317 (5th Cir. 2023) (citation omitted).

Thus, qualified immunity “alters the usual summary

judgment burden of proof, shifting it to the plaintiff

to show that the defense is not available.” Id.

(citation omitted).

- 18 -

“The parties may satisfy their respective

burdens by tendering depositions, affidavits, and

other competent evidence.” Arthur v. Liberty Mut.

Pers. Ins. Co., No. SA-21-CV-00602-FB, 2022 WL

17824520, at *1 (W.D. Tex. Dec. 20, 2022) (citing

Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir.

1992)), report and recommendation adopted, No. SA21-CA-602-FB, 2023 WL 2557392 (W.D. Tex. Feb. 3,

2023). The Court is required to consider only the

party’s cited materials. FED. R. CIV. P. 56(c)(3); see

Am. Fam. Life Assur. Co. of Columbus v. Biles, 714

F.3d 887, 896 (5th Cir. 2013) (“Rule 56 does not

impose upon the district court a duty to sift through

the record in search of evidence ”) (citation

omitted).

IV.

ANALYSIS

In her Amended Complaint, Plaintiff asserts six

claims against Deputy Gereb for alleged violations of

her rights under the Fourth and First Amendments.

(Docket Entry 8, at 18–20.) She also asserts seven

claims against the County based on the adequacy of

its policies and the training of its deputies. (Id. at

21–27.) Defendants move for summary judgment on

all 13 of Plaintiff’s claims. (See Docket Entry 72 and

73.) The undersigned will begin with Deputy Gereb’s

motion before turning to the County’s.

A.

Deputy Gereb

Deputy Gereb has raised the defense of qualified

immunity as to each of Plaintiff’s claims against him.

(Docket Entry 72, at 9.) Qualified immunity is a

- 19 -

broad defense “protect[ing] all but the plainly

incompetent and those who knowingly violate the

law.” Ashcroft v. al–Kidd, 563 U.S. 731, 743 (2011)

(quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).

“In resolving questions of qualified immunity at

summary judgment, courts engage in a two-pronged

inquiry.” Tolan v. Cotton, 572 U.S. 650, 655 (2014).

The first prong asks “whether the facts, [t]aken in the

light most favorable to the party asserting the injury,

. . . show the officer’s conduct violated a

[constitutional] right.'” Id. (citation and internal

quotation marks omitted). The second asks “whether

the right in question was ‘clearly established’ at the

time of the violation.” Tolan, 572 U.S. at 655 (citing

Hopev. Pelzer, 536 U.S. 730, 739 (2002)). “A court

need not analyze these prongs sequentially because if

either is not satisfied, the government official is

entitled to qualified immunity.” Lance v. City of San

Antonio, No. SA-21-CV-837-JKP, 2024 WL 714327, at

*3 (W.D. Tex. Feb. 20, 2024) (citing Buehler v. Dear,

27 F.4th 969, 981–82 (5th Cir. 2022)).

Whether the law at the time was clearly

established “depends substantially upon the level of

generality at which the relevant legal rule is to be

identified.” Anderson v. Creighton, 483 U.S. 635, 739

(1987). What matters is “whether the violative

nature of particular conduct is clearly established.”

Mullenix v. Luna, 577 U.S. 7, 12 (2015) (emphasis

omitted) (quoting al-Kidd, 563 U.S. at 742).

“Specificity is especially important in the Fourth

Amendment context, where . . . it is sometimes

difficult for an officer to determine how the relevant

legal doctrine . . . will apply to the factual situation

- 20 -

the officer confronts.” Kisela v. Hughes, 138 S. Ct.

1148, 1152 (2018) (quoting Mullenix, 577 U.S. at

12). Accordingly, “when evaluating qualified

immunity in the Fourth Amendment context,”

courts “look for ‘precedent [that] squarely governs

the specific facts at issue.’” Perry, 83 F.4th at 319

(quoting Salazar v. Molina, 37 F.4th 278, 285 (5th

Cir. 2022)).

As Deputy Gereb has invoked the defense as to

each of Plaintiff’s claims against him (Docket Entry

72, at 9), Plaintiff “bears the burden of showing a

genuine and material dispute” as to whether he “(1)

violated a constitutional right that was (2) clearly

established at the time.” Perry, 83 F.4th at 317, 320

(quoting Laviage v. Fite, 47 F.4th 402, 405–06 (5th

Cir. 2022)). This Report and Recommendation

considers whether Plaintiff has met this burden as to

each of her Fourth Amendment claims, and as to her

First Amendment claim.

1.

Plaintiff’s Fourth Amendment Claims

i. False Arrest

“[T]he ultimate inquiry for a Fourth Amendment

false arrest claim is whether the arrest was

reasonable.” Jones v. Perez, 790 F. App’x 576, 580

(5th Cir. 2019) (citing United States v. Morris, 477

F.2d 657, 663 (5th Cir. 1973)). “A warrantless arrest

is reasonable if the officer has probable cause to

believe that the suspect committed a crime in the

officer’s presence.” D.C. v. Wesby, 583 U.S. 48, 56

(2018) (citation omitted). Probable cause exists

“when the totality of the facts and circumstances

- 21 -

within a police officer’s knowledge at the moment of

arrest are sufficient for a reasonable person to

conclude that the suspect had committed or was

committing an offense.” Westfall v. Luna, 903 F.3d

534, 542–43 (5th Cir. 2018) (citation omitted).

Probable cause “is not a high bar: It requires only

the kind of fair probability on which reasonable and

prudent [people,] not legal technicians, act.” Kaley v.

United States, 571 U.S. 320, 338, (2014) (citations and

internal quotations omitted). And “law enforcement

officials who reasonably but mistakenly conclude that

probable cause is present are entitled to immunity.”

Westfall, 903 F.3d at 542–43 (citations omitted).

According to the amended complaint, Plaintiff

was “arrested for refusing to take any [SFSTs],”

which “constituted an unreasonable arrest under the

Fourth Amendment.” (Docket Entry 8, at 18.)

Contrary to this assertion, the record plainly shows

that Plaintiff was arrested for DWI. (See Docket

Entry 72-1, at 6; Docket Entry 72-7, at 2–4; Docket

Entry 72-8; Docket Entry 80-9, at 36.) Under Texas

law, the elements that must be shown to establish

DWI are “that the defendant operated a motor

vehicle in a public place while intoxicated.” Do v.

State, 634 S.W.3d 883, 888 (Tex. Ct. Crim. App. 2021)

“Intoxicated” is defined as “either (1) not having the

normal use of mental or physical faculties by reason

of the introduction of alcohol, or (2) having an alcohol

concentration of .08 or more.” Id. Here, only the first

definition “intoxicated” is applicable to Deputy

Gereb’s arrest determination.

- 22 -

Deputy Gereb’s decision to arrest Plaintiff for

DWI was certainly prompted in part by her refusal

to perform SFSTs or answer related questions. (See

Docket Entry 72-1, at 6 (“Because Ms. Wood was

refusing to answer questions and perform field

sobriety tests, I was unable to determine whether she

had the mental and/or physical faculties to safely

operate a motor vehicle on public roadways.”);

Docket Entry 80-1, at 10 (“He asked if I drank alcohol

that night, . . . [and] instructed me that the direct

result of refusing to perform Field Sobriety Tests was

an arrest.”); Docket Entry 80-2, at 54–55 (“[I]t could

be alcohol. It could be allergies. It could be . . .

[other] reasons as to why their eyes are glossy. But

because of Ms. Wood’s refusal for SFST, I was not

able to identify the reasons for that.”).) But

Plaintiff’s refusal to take the SFSTs was hardly the

only basis for her arrest that evening. The summary

judgment record reveals an amalgam of reasons why

Deputy Gereb believed Plaintiff was intoxicated, and

therefore why she committed DWI. As set out in

Deputy Gereb’s summary judgment affidavit:

Deputy Gereb’s summary judgment affidavit:

I had probable cause to take Ms. Wood

into custody for driving while intoxicated

based on several factors: I had observed

Ms. Wood commit several traffic

violations while operating a motor

vehicle at 2:09 A.M.; both Deputy Bible

and I smelled alcohol on Ms. Wood’s

breath; I observed Ms. Wood had glossy,

watery eyes and slurred speech; Ms.

Wood refused to answer interview

questions; and she refused to perform

[SFSTs].

- 23 -

(Docket Entry 72-1, at 6.) The limited video

evidence in the record confirms much of this. See

Smith v. Sanchez, No. SA-23-CV-00623-JKP, 2024

WL 3882407, at *2 (W.D. Tex. Aug. 16, 2024)

(“Factual allegations arising out of events captured

on video are viewed ‘in the light depicted by the

videotape.’”) (quoting Scott, 550 U.S. at 381). The

video evidence appears to show that Plaintiff had

“glossy, watery eyes and slurred speech;” that C.W.

also had glossy, watery eyes; that Deputy Bible

smelled a strong odor of alcohol on both Plaintiff’s

and C.W.’s person while interacting with them; that

C.W. would rather the car be towed than perform

SFSTs; that the traffic stop and arrest occurred

sometime between midnight and the witching hour;

that Plaintiff refused to perform any SFSTs despite

being advised that they were necessary to determine

whether she could safely operate her vehicle; and

that Plaintiff was loud, belligerent, and hostile

during her interactions with Deputy Gereb, Deputy

Bible, and the SERT officers. (See, e.g., Docket Entry

72-2, at 1:36– 3:25, 3:28–3:34; 3:53–4:40; 5:36–6:21;

11:55–15:38; Docket Entry 72-17, at 2:35–

3:00.)

C.W.’s summary judgment affidavit provides

some additional corroboration for Deputy Gereb’s

probable cause determination. Specifically, C.W.

affirms that he and Plaintiff “stopped drinking about

ten minutes before [they] left the bar . . . at

approximately 1:30 A.M. or 2:00 A.M.,” that Plaintiff

“had at least two mixed drinks,” and that Plaintiff

“was speeding: . . . going about 55–60 miles per

hour.” (Docket Entry 72-13, at 2.) C.W. does not

- 24 -

name or specify the location of the bar, but he stated

that he and Plaintiff were there to watch Plaintiff’s

brother, Eddie Hernandez, Jr., perform as a DJ. (Id.)

In her own affidavit, Plaintiff states that she “did

not drink [a]lcohol on August 4, 2019.” (Docket Entry

80-1, at 15.) She also states that she “was obeying

the traffic laws and driving at the posted speed

limit.” (Id.) She asserts that C.W.—motivated by

resentment over their divorce in April of 2023—

made false statements about her in his affidavit. (Id.

at 14.) Additionally, Plaintiff’s attorney—crossing

the line from advocate to witness—attached his own

affidavit in which he states that he too believes C.W.

lied in his affidavit because (1) C.W. told him over

the phone on August 4, 2019, that Plaintiff had not

been drinking, and (2) he had known Plaintiff for

seven years and had never personally observed her

drinking alcohol. (Docket Entry 80-6, at 2–3.)

Finally, Plaintiff’s brother, Eddie Hernandez, also

swore in an affidavit that various details of C.W.’s

affidavit were false. (Docket Entry 79-7, at 2–3.)

Specifically, Hernandez states that he was at his

grandmother’s birthday party on August 3 and 4,

2019—not at a bar performing as a DJ. (Id. at 3.) In

fact, Hernandez states that he did not become a DJ

until August 1, 2020. (Id. at 2.) He even attached a

screenshot to his affidavit of a receipt for his DJ

license, purchased on August 1, 2020. (Id. at 5.)

Hernandez never affirms that Plaintiff was with him

at their grandmother’s birthday party, but he

attached a photograph to his affidavit which he

purports was taken on August 3 or 4, 2019, and

which appears to depict Plaintiff and himself with

- 25 -

several other people in front of a birthday banner for

someone named “Ama.” (Doket Entry 79-7, at 4.)

Plaintiff appears to be wearing the same grey article

of outerwear in the photograph that she is wearing in

Deputy Gereb’s cruiser, based on Deputy Bible’s

body-camera footage. (Compare id. with Docket

Entry 72-2, at 0:01–3:25.) Hernandez neither

affirms nor denies that Plaintiff was drinking alcohol

on the night or morning in question.

Based on the conflicting affidavits above, and

given the Court’s duty to resolve genuine factual

disputes in Plaintiff’s favor, the Court may properly

find that Plaintiff was not at a bar watching her

brother DJ on August 3 or 4, 2019, but that she was

instead at her grandmother’s birthday party for at

least some of that time. However, whether Plaintiff

ingested alcohol that evening is not in genuine

dispute. Not only did Deputy Gereb and Deputy Bible

both smell alcohol on her breath (Docket Entry 72-1,

at 4; Docket Entry 72-2, at 3:28–3:34; Docket Entry

72-3, at 2; Docket Entry 80-9, at 36), but there is also

physical evidence in the record to confirm that

Plaintiff had been drinking. A toxicology report

confirmed that a few hours after Plaintiff’s arrest, her

blood still contained .019 grams of alcohol per 100

milliliters. (Docket Enty 72-11, at 2.) According to

Dr. Johnson’s expert report—which Deputy Gereb

attached as summary judgment evidence—this

would not be possible unless Plaintiff consumed

alcohol on August 3 or 4, 2019. (Docket Entry 72-12,

at 5.)

- 26 -

Considering the evidence in Plaintiff’s favor,

there is also a genuine dispute as to whether she

committed the traffic violations Deputy Gereb

reported. There is no video evidence to confirm

Deputy Gereb’s observations of Plaintiff changing

lanes without signaling, driving in multiple lanes,

crossing traffic control devices (solid white lines) that

separate lanes of travel from the curb, and driving 15

miles per hours above the posted speed limit. (See

Docket Entry 72-1, at 3; Docket Entry 72-7, at 2–3;

Docket Entry 80-2, at 162–163; Docket Entry 80-9,

at 36.) For her part, Plaintiff avers that she “obeyed

the posted speed limits and traffic laws,” specifically

denying that she ever “straddled traffic lanes,” or

“reach[ed] speeds of 60 mph.” (Docket Entry 80-1, at

9.)

But even absent any observed traffic violations,

the summary judgment record shows that Deputy

Gereb had probable cause to arrest Plaintiff for DWI.

As noted above, there is no genuine dispute that

Plaintiff had been drinking, nor is there any genuine

dispute that, in light of the deputies’ statements and

the confirming video, Plaintiff smelled of alcohol, has

glassy eyes, slurred speech, and a loud, belligerent

attitude; and refused to answer roadside interview

questions, perform SFSTs, or provide a breathalyzer

or blood sample to assist in dispelling the officers’

suspicions. Texas law makes clear that such

evidence supports a finding of probable cause.6

_________________________________________________

6 See, e.g., Tex. Dep’t of Pub. Safety v. Castro, 406 S.W.3d 782,

788 (Tex. App.—El Paso 2013, no pet.) (“[R]efusal to participate

in field sobriety testing is a factor that may be considered in the

totality of the circumstances when determining whether

- 27 -

probable cause exists.”); Holton v. Mohon, 684 F. Supp. 1407,

1412 (N.D. Tex. 1987) (including “loud and uncooperative”

behavior among “the[] facts [that] would support a finding of

probable cause”); Justice v. Austin Police Dep’t, No. A-20-CV1063-RP, 2021 WL 1930302, at *3 (W.D. Tex. May 13, 2021)

(“[R]efusal to submit to a breathalyzer test constitute[d]

probable cause for . . . [DWI suspect’s] arrest.”), report and

recommendation adopted, No. 1:20-CV-1063-RP, 2021 WL

11669843 (W.D. Tex. June 8, 2021); Forbes v. Harris Cnty.,

Tex., No. CV H-17-2256, 2019 WL 2085670, at *7 (S.D. Tex.

May 13, 2019) (finding probable cause existed for DWI arrest

based in part on the traffic stop’s occurring “around 2:30 A.M.,”

and the suspect’s refusal to answer roadside interview

questions or “give a breath or blood sample”), aff'd, 804 F.

App’x 233 (5th Cir. 2020); Miller v. Harget, 458 F.3d 1251, 1260

(11th Cir. 2006) (“A prudent officer could conclude from a

refusal to take a test, coupled with the smell of alcohol, that the

driver had in fact been drinking.”); cf. Bartlett v. State, 270

S.W.3d 147, 153 (Tex. Crim. App. 2008) (“[R]efusal to submit to

a breath test . . . tends to show a consciousness of guilt.”).

___________________________________________________________

Even if the Court were to find that a genuine

dispute exists as to whether Deputy Gereb had

probable cause to arrest Plaintiff for DWI, he would

nevertheless be entitled to qualified immunity

“because his conclusion that he had probable cause

to arrest [Plaintiff] for DWI was a reasonable one

under the circumstances.” Forbes, 2019 WL

2085670, at *8 (citing Westfall, 903 F.3d at 543). As

long as there is at least “arguable probable cause to

arrest,” then “qualified immunity will apply.” Terrell

v. Allgrunn, No. 23-30723, 2024 WL 3948595, at *4

(5th Cir. Aug. 27, 2024) (citation omitted). For all

these reasons, Deputy Gereb’s immunity defense

must be sustained.

- 28 -

Plaintiff makes one additional contention that

requires brief comment. She argues that, because

the initial traffic stop was unlawful—a question

about which there is a genuine dispute—it “renders

all subsequent events unlawful,” including her arrest

for DWI, even if it was supported by probable cause.

(Docket Entry 80, at 9.) This argument fails. The

criminal doctrine of “fruit of the poisonous tree” is

inapplicable to § 1983 claims.7 And even if Plaintiff’s

Fourth Amendment rights were somehow violated by

the initial traffic stop, her only claim of injury

appears to be her subsequent, lawful arrest for DWI.

See Paz v. Hayden, No. CV H-22-1898, 2024 WL

1719917, at*6 (S.D. Tex. Apr. 22, 2024) (holding that

an arrestee is not entitled to damages “for a lawful

arrest that arises from an unlawful search”); Townes,

176 F.3d at 148 (“Victims of unreasonable searches or

seizures . . . cannot be compensated for injuries that

result from the discovery of incriminating evidence

and consequent criminal prosecution.”).

For the foregoing reasons, summary judgment

should be granted for Deputy Gereb on Plaintiff’s

false arrest claim.

7 See De La Paz v. Coy, 786 F.3d 367, 371 (5th Cir. 2015)

(“[P]laintiffs err in arguing that their arrests lacked probable

cause where the answers to the agents' questions were ‘fruit of

the poisonous tree’ of their traffic stops. No court has yet

applied this criminal law doctrine to civil cases

”); Harris v.

Dobbins, No. 3:22-CV-479-TSL-MTP, 2023 WL 2899994, at *9

(S.D. Miss. Apr. 11, 2023) (“[T]he legality of the initial stop has

no bearing on whether the subsequent arrest violated [his]

constitutional rights.”) (quoting Marchand v. Hartman, 395 F.

Supp. 3d 202, 217 (D. Conn. 2019)); Townes v. City of New York,

176 F.3d 138, 149 (2d Cir. 1999) (“The lack of probable cause to

- 29 -

stop and search does not vitiate the probable cause to arrest,

because (among other reasons) the fruit of the poisonous tree

doctrine is not available to assist a § 1983 claimant.”); Baksh v.

City of New York, No. 15-CV-7065-NGG-ST, 2018 WL 1701940,

at *4 (E.D.N.Y. Mar. 31, 2018) (“[T]he ‘fruit of the poisonous

tree’ doctrine does not apply to § 1983 claims.”).

____________________________________________________________

ii.

Vehicular Search

Plaintiff alleges that Deputy Gereb violated her

Fourth Amendment right by unlawfully searching

her car. (Docket Entry 8, at 19.) However, based on

the clear video evidence in the record, Deputy Gereb

never searched Plaintiff’s car—Deputy Bible did.

(See Docket Entry 72-2 at 16:45–22:30.) When a

video shows that the non-movant’s claim

“contradicted by the record, so that no reasonable

jury could believe it,” a court may rely on the facts

shown by the video “for purposes of ruling on a

motion for summary judgment.” Scott, 550 U.S. at

380. Accordingly, Deputy Gereb is entitled to

summary judgment on Plaintiff’s unlawful vehicular

search claim.

iii.

Excessive Force

Plaintiff alleges that Deputy Gereb “used

conventional excessive force against [her] . . . during

the blood draw at the hospital.” (Docket Entry 8, at

19.) According to Plaintiff, Deputy Gereb “took great

pleasure in restraining [her] . . . to a chair, causing

physical pain through twisting [her] . . . limbs, and

knocking [her] . . . backwards into a chair.” (Id.)

- 30 -

Again, the video evidence in the summary

judgment record leaves no room to genuinely dispute

that Deputy Gereb took no part in restraining

Plaintiff to facilitate her blood draw—SERT officers

did. (See generally Docket Entry 72-17.) Indeed,

Deputy Gereb is clearly visible in one of the SERT

officers’ body camera footage standing several feet

away from Plaintiff while they were restraining her.

(Id. at 2:29–39; 2:47–52; 3:09–19.) Viewing “the facts

in the light depicted by the videotape,” Scott, 550

U.S. at 380–81, Deputy Gereb is entitled to summary

judgment on Plaintiff’s excessive force claim.

iv.

Franks Violations

An officer violates the Fourth Amendment by

obtaining a warrant by submitting an “affidavit (1)

contain[ing] false statements or material omissions

(2) made with at least ‘reckless disregard for the

truth’ that (3) were ‘necessary to the finding of

probable cause.’” Hughes v. Garcia, 100 F.4th 611,

619–20 (5th Cir. 2024) (quoting Franks v. Delaware,

438 U.S. 154, 155–56 (1978)).

Plaintiff alleges that Deputy Gereb committed a

Franks violation by affirming materially false

statements in his “Affidavit for Search Warrant and

Magistration.” (Docket Entry 8, at 19; see Docket

Entry 72-7, at 2–5.) Specifically, Plaintiff contends

that Deputy Gereb had “no articulable basis to avow

that . . . [she] was intoxicated or impaired from

alcohol.” (Id. at 19–20.) However, Plaintiff has cited

no evidence in the record to support this contention.

The closest she comes to raising a genuine dispute on

- 31 -

the issue is pointing to Deputy Gereb’s deposition

testimony that he marked the box on the affidavit

form indicating that Plaintiff was “swaying” by

mistake. (Docket Entry 80, at 15.) A mistaken

statement, however, is a far cry from a recklessly or

knowingly false one—by itself it cannot support a

Franks violation.8

_________________________________________________

8 Plaintiff also questions Deputy Gereb’s ability

to detect the smell of alcohol based on his inability to

explain what alcohol smells like by reference to anything

other than alcohol. (Docket Entry 80, at 14–15; see

Docket Entry 80-2, at 51 (“Alcohol smells like alcohol.

Same thing as marijuana smells like marijuana.”).

Plaintiff’s argument in this regard is not credible.

Plaintiff also asserts that her eyes were not

glassy. However, the video evidence in the record shows

otherwise. (See, e.g., Docket Entry 72-2, at 00:45–1:02

(showing Plaintiff’s glassy eyes); Docket Entry 72-17, at

00:27–00:30 (same); see also Docket Entry 72-2, at 5:36–

6:21 (showing C.W.’s glassy eyes).)

Even assuming that Deputy Gereb’s mistake to

be a reckless or knowing falsehood, “[o]fficers are

liable for their false statements only if those

statements were ‘necessary to the finding of probable

cause.’” Hughes, 100 F.4th at 623 (quoting Franks,

438 U.S. at 155–56). Unchecking the “swaying” box

on the affidavit form would have had no effect on the

magistrate judge’s finding of probable cause to

believe that Plaintiff’s blood contained alcohol—i.e.,

evidence that she had committed a DWI. As the

undersigned explained supra in addressing Plaintiff’s

- 32 -

false arrest claim, Deputy Gereb had probable cause

to arrest Plaintiff for DWI, based on the fact that, at

around 2:00 A.M., she smelled like alcohol; had glossy

eyes, slurred speech, and a belligerent attitude; and

refused to answer roadside interview questions,

perform SFSTs, or provide a breathalyzer or blood

sample to assist in dispelling his suspicion that she

had committed a DWI. Unchecking the “swaying”

box does not affect this determination.

Since there was probable cause to arrest Plaintiff

for DWI, there was also probable cause to believe

that evidence of a DWI—i.e., alcohol—would be

found in her blood. In other words, the blood search

warrant would still have been supported by probable

cause even after excising any statement whose

veracity is genuinely disputed. Accordingly, Deputy

Gereb is entitled to summary judgment on Plaintiff’s

Franks violation claim.

v.

Malicious Prosecution

Lastly, Plaintiff alleges that Deputy Gereb

“knowingly and intentionally filed false criminal

charges” against her, and thereby violated her

Fourth Amendment right to be free from malicious

prosecution. (Docket Entry 8, at 20.) Deputy Gereb is

entitled to summary judgment on this claim under

the second prong of the qualified immunity analysis,

because the right to be free from malicious

prosecution was not clearly established in the Fifth

Circuit when Plaintiff was arrested and charged

with DWI in August of 2019. See Espinal v. City of

Hous., 96 F.4th 741, 748–49 (5th Cir. 2024)

- 33 -

(affirming trial court’s grant of qualified immunity

where plaintiff “was arrested and indicted in 2020,

when the constitutional malicious prosecution tort

did not exist in our circuit”). “Since the events here

occurred in 2019, the law . . . was not clearly

established at the time.” Terrell, 2024 WL 3948595,

at *8. Accordingly, under the second qualified

immunity prong, Deputy Gereb is entitled to

summary judgment on Plaintiff’s malicious

prosecution claim.9

9Although the Court need not reach the issue,

Deputy Gereb is also entitled to summary judgment on

Plaintiff’s malicious-prosecution claim under the first

prong of the qualified immunity analysis. The elements

of a malicious prosecution claim are “(1) the

commencement or continuance of an original criminal

proceeding; (2) its legal causation by the present

defendant against plaintiff who was defendant in the

original proceeding; (3) its bona fide termination in favor

of the present plaintiff; (4) the absence of probable cause

for such proceeding; (5) malice; and (6) damages.”

Espinal, 96 F.4th at 748 (citation omitted). Here, for the

reasons already explained, it cannot be genuinely

disputed that Deputy Gereb had probable cause to arrest

Plaintiff for DWI. Thus, based on the evidence in the

summary judgment record, there is no genuine dispute

that Plaintiff has failed to satisfy one of the essential

elements of a malicious prosecution claim. See

Chiaverini v. City of Napoleon, Ohio, 144 S. Ct. 1745,

1750 (2024) (“The ‘gravamen’ of a Fourth Amendment

malicious-prosecution claim is ‘the wrongful initiation of

charges without probable cause.” (quoting Thompson v.

Clark, 596 U.S. 36, 43 (2022)).

__________________________________________________________

- 34 -

2. Plaintiff’s 1st Amendment Retaliatory Arrest

Plaintiff claims that Deputy Gereb violated her

First Amendment rights by arresting her in

retaliation for filming their encounter. “[T]he First

Amendment guarantees, subject to reasonable

limitations, a right to publicly film police.” Buehler

v. Dear, 27 F.4th 969, 992 (5th Cir. 2022). However,

to make out a claim for retaliatory arrest, “a plaintiff

must first establish the absence of probable cause,

and then demonstrate that the retaliation was a

substantial or motivating factor behind the arrest.”

Kokesh v. Curlee, 14 F.4th 382, 396 (5th Cir. 2021)

(citing Nieves v. Bartlett, 587 U.S. 391, 404 (2019)).

“If an officer has probable cause to seize an

individual, ‘the objectives of law enforcement take

primacy over the citizen’s right to avoid retaliation.’”

Zinter v. Salvaggio, 610 F. Supp. 3d 919, 957 (W.D.

Tex. 2022) (quoting Davidson v. City of Stafford,

Tex., 848 F.3d 384, 391 (5th Cir. 2017)), appeal

dismissed, No. 22-50700, 2022 WL 18587913 (5th Cir.

Nov. 17, 2022). See also Terrell, 2024 WL 3948595,

at *8 (“The presence of probable cause should

generally defeat a First Amendment retaliatory

arrest claim.”).

As already explained above, Plaintiff has

demonstrated no genuine dispute that Deputy Gereb

lacked probable cause to arrest her for DWI.

Accordingly, Deputy Gereb is entitled to summary

judgment on Plaintiff’s First Amendment retaliatory

arrest claim.

- 35 -

B.

The County

Plaintiff’s claims against the County are subject

to the holding in Monell, which requires that a

plaintiff show that “the deprivation of a federally

protected right” was “caused by action taken

pursuant to an official municipal policy.” Hutcheson

v. Dall. Cnty., Tex., 994 F.3d 477, 482 (5th Cir. 2021)

(citation omitted). To survive summary judgment on

a Monell claim, a plaintiff must demonstrate a

genuine dispute of material fact as to three elements:

“(1) an official policy (or custom), of which (2) a policy

maker can be charged with actual or constructive

knowledge, and (3) a constitutional violation whose

moving force is that policy (or custom).” Hutcheson,

994 F.3d at 482 (citation omitted). “Official policy

usually exists in the form of written policy

statements, ordinances, or regulations, but may also

arise in the form of a widespread practice that is so

common and well-settled as to constitute a custom

that fairly represents municipal policy.” Lance, 2024

WL 714327, at *14 (citing Piotrowski v. City of

Hous., 237 F.3d 567, 578 (5th Cir. 2001)); see HicksFields v. Harris Cnty., Tex., 860 F.3d 803, 808 (5th

Cir. 2017) (same). “To prevail on a widespread

practice or custom claim, a plaintiff must show that

similar unconstitutional acts ‘have occurred for so

long and with such frequency that the course of

conduct demonstrates the governing body’s

knowledge and acceptance of the disputed conduct.’”

Barnes, 677 F. Supp. 3d at 608 (quoting Zarnow v.

City of Wichita Falls, Tex., 614 F.3d 161, 169 (5th

Cir. 2010)).

- 36 -

Plaintiff’s Monell claims fall into two categories:

(1) claims that the County’s policies caused

violations of Plaintiff’s constitutional rights, and (2)

claims that the County’s failure to properly train its

officers caused violations of Plaintiff’s constitutional

rights. This Report and Recommendation first

addresses Plaintiff’s policy-based claims and then

turns to her failure-to-train claims.

1.

Policy-based Monell claims

Plaintiff alleged that five County policies

resulted in constitutional deprivations in this case.

Each allegation is considered below.

a. No-refusal Policy

Plaintiff alleges that the County has a policy,

custom, or practice whereby “motorists will be

automatically arrested for refusing to perform Field

Sobriety Tests.” (Docket Entry 8, at 21.) The policy

results in violations of motorists’ Fourth and

Fourteenth Amendment rights, Plaintiff argues,

because “they are arrested and charged solely

because they [assert] their rights not to

incriminate themselves, or they are physically

unable to perform these tests.” (Id. at 22.) Plaintiff

argues that Sheriff Javier Salazar, the relevant

policymaker for the County, “approved this policy,

and is deliberately indifferent to the resulting

Constitutional violations.” (Id.) She alleges that

Sheriff Salazar was aware of the “No Refusal” policy

through “personal observation, command decisions,

Internal Affairs Complaints, and lawsuits against

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[the] County.” (Docket Entry 8, at 22.) And she

alleges that he “is deliberately indifferent to the

resulting Constitutional violations” because “he

takes no corrective actions.” (Id.)

The only evidence Plaintiff presents in support for

this contention is Deputy Gereb’s deposition, where

he testified that he was taught that motorists in

Texas may not refuse to perform SFSTs and that he

arrested Plaintiff after she refused to do so. (Docket

Entry 79-2, at 13–14.) This testimony does not show

a policy of automatic arrest for refusing to perform

SFSTs. But even if it could be so construed,

Plaintiff’s claim falls in light of the reasoning set out

in Part IV(a)(1)(i) above. As explained above, Deputy

Gereb had probable cause to arrest Plaintiff, and

therefore she suffered no constitutional violation

when she was arrested. Because Plaintiff’s arrest

was not a constitutional violation, her “No Refusal”

claim necessarily fails; she cannot prove that an

unconstitutional arrest even occurred, let alone that

it was caused by any policy or custom adopted by the

County. See Brown v. City of Grand Prairie, No.

CIV.A. 3:01-CV-0139, 2002 WL 171728, at *6 (N.D.

Tex. Jan. 29, 2002) (“Having already found that

Plaintiff cannot assert a deprivation of his

constitutional rights in this case, the Court shall also

grant summary judgment to Defendant City . . . as to

Plaintiff’s section 1983 claims.”). For this reason,

summary judgment for the County is appropriate on

this claim.

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b.

Policy of Arresting without probable cause

Plaintiff claims that the County has “a policy,

custom, or practice of [a]rresting [s]uspects without

[p]robable [c]ause.” (Docket Entry 8, at 22.)

According to Plaintiff, Sheriff Salazar “approved this

policy,” was “deliberately indifferent” to the fact that

it results in violations of suspects’ Fourth and

Fourteenth Amendment rights, and was aware of

such violations through “personal observation,

command decisions, Internal Affairs Complaints, and

lawsuits against [the] County.” (Id. at 23.)

As with Plaintiff’s “No Refusal” claim, the County

is entitled to summary judgment on this claim

because no false arrest occurred, let alone one

caused by the County’s policies. Assuming arguendo

that the County has such a policy of arresting

motorists without probable cause—Plaintiff’s own

arrest was not based on any such policy. See supra.

Thus, “[h]aving already found that Plaintiff cannot

assert” a false arrest, she necessarily cannot claim

that such was the “result of a custom or practice of

the City.” Brown, 2002 WL 171728, at *6

Accordingly, Plaintiff has failed to demonstrate a

genuine dispute as to whether the County has a

policy of arresting suspects without probable cause.

And even if such a policy existed, it could not have

caused Plaintiff to be falsely arrested, since her

arrest was supported by probable cause.10 Therefore,

the County is entitled to summary judgment on this

claim.

_________________________________________________

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10 In any event, Plaintiff fails to present any evidence of a

no-probable-cause-arrest policy. To the contrary, the

County’s official policy specifically prohibits such arrests: “No

arrest without warrant shall be made unless the deputy has

sufficient reliable information to constitute probable cause

upon which a warrant could be issued.” (Docket Entry 73-4, at

3.) And Plaintiff has produced no evidence to raise a genuine

dispute that the County tacitly has another policy, in the

form of a custom—i.e., “[a] persistent, widespread practice”

of permitting or encouraging its deputies to arrest motorists

without probable cause, which is “so common and well

settled as to constitute a custom that fairly represents” a

policy adopted by the County. Hicks-Fields 860 F.3d 808.

Indeed, Plaintiff fails to present even one similar, prior

incident.

c.

Policy of illegal Terry stops

Plaintiff claims that the County has “a policy,

custom, or practice of [c]onducting illegal ‘Terry

[s]tops.’” (Docket Entry 8, at 24.) She claims that

the policy “permits Deputies to stop citizens without

any articulable legal basis,” in violation of the

Fourth and Fourteenth Amendments. (Id.) The

evidence in the record provides no basis for a

genuine dispute as to this issue. The County’s

formal, written policy complies with Terry v. Ohio,

392 U.S. 1 (1968), specifically stating that deputies

may conduct a traffic stop when he “observes what he

reasonably believes to be a traffic violation.” (Docket

Entry 73-4, at 25.) See Rodriguez v. United States,

575 U.S. 348, 354 (2015) (“A seizure for a traffic

violation justifies a police investigation of that

violation. . . . [and] is more analogous to a . . . Terrystop . . . than to a formal arrest.”) (citation and

internal quotation marks omitted). And the County’s

policies expressly provide that “[a] person may not

- 40 -

be involuntarily detained even momentarily without

reasonable suspicion.” (Docket Entr 73-4, at 23.)

Accordingly, the County is entitled to summary

judgment unless Plaintiff has produced evidence to

demonstrate a genuine dispute as to whether the

County has engaged in a pattern of permitting or

encouraging deputies to stop motorists without

reasonable suspicion, which is “so common and well

settled as to constitute a custom that fairly

represents” a policy adopted by the County. HicksFields, 860 F.3d at 808. Plaintiff has produced no

evidence of such a persistent, widespread practice, or

even one similar, prior incident in which the County,

or one of its deputies, were held liable as a result of

traffic stops unsupported by reasonable suspicion.

Accordingly, Plaintiff has failed to demonstrate a

genuine dispute as to whether the County has a

policy of detaining motorists without reasonable

suspicion. Therefore, the County is entitled to

summary judgment on this claim as well.

d. Policy of inadequately disciplining Deputies

Plaintiff claims that the County has “a policy,

custom, or practice of [f]ailing to [d]iscipline its

[p]atrol [d]eputies.” (Docket Entry 8, at 25.) She

claims that the “lack of [d]iscipline . . . inspires

lawlessness by Sheriff’s [d]eputies,” as they are

effectively permitted to violate people’s Fourth and

Fourteenth Amendment rights. (Id.) According to

Plaintiff, Sheriff Salazar “approved this policy, and

[wa]s deliberately indifferent to the resulting

Constitutional violations.” (Id.)

- 41 -

A failure-to-discipline claim requires proof of

two things: “(1) that the city’s failure to discipline

amounted to deliberate indifference and (2) a causal

link between the failure to discipline and the

violation of their rights.” Verastique v. City of Dall.

Tex., 106 F.4th 427, 432 (5th Cir. 2024) (citing

Armstrong v. Ashley, 60 F.4th 262, 277 (5th Cir.

2023)). Deliberate indifference requires “a pattern of

similar violations.” Verastique, 106 F.4th at 432.

Thus, to create a genuine dispute as to deliberate

indifference, Plaintiff must bring evidence of

“numerous prior incidents . . . [with] specific facts

that are sufficiently similar to” the facts here. Id.

She has failed to do so.

Here Plaintiff produced evidence of only a single,

prior incident in her response to the County’s

motion. (See Docket Entry 79, at 11.) She offers a

“Letter of Reprimand” that was sent to Deputy Gereb

on November 19, 2013. (Docket Entry 79-9, at 109.)

The letter admonishes Deputy Gereb for failing to

mention in an incident report that he used force on

an uncooperative jail inmate—namely, “by grabbing

him by his left should[er] area and pushing him

towards the elevator.” (Id.) The letter then warned

Deputy Gereb that, in the future, unless he

“ensure[s] that all details of any incident . . . are

properly recorded and submitted,” he may face

“serious disciplinary action.” (Id.)

Even if this threat of disciplinary action could

somehow be construed as a failure to discipline

Deputy Gereb, Plaintiff’s evidence of a single incident

“cannot . . . establish a pattern of constitutional

- 42 -

violations.” Verastique, 106 F.4th at 433. Moreover,

the prior incident that Plaintiff produced is factually

dissimilar to the facts of what allegedly transpired in

this case, because there is no basis upon which to

infer that the use of force on the uncooperative

inmate was a Fourth Amendment violation. To the

contrary, disciplinary action was threatened because

Deputy Gereb failed to mention the use of force—not

because the amount of force used was excessive. (See

id.) In fact, Plaintiff acknowledges this in her

response. (See Docket Entry 79, at 11.) Thus, even if

Plaintiff had produced multiple incidents like this

one, they would have failed to demonstrate a pattern

because they “lack ‘similarity’” and thus “do not

‘point to the specific violation in question.’”

Verastique, 106 F.4th at 433 (quoting Edwards v.

City of Balch Springs, 70 F.4th 302, 313 (5th Cir.

2023)).

For the foregoing reasons, Plaintiff has failed to

demonstrate a genuine issue as to whether the

County has a custom or other official policy of failing

to discipline its deputies for violations of the sort that

are alleged to have taken place here. Accordingly, the

County is entitled to summary judgment on

Plaintiff’s failure-to-discipline claim.

e. Policy of using STEP to generate arrests and

funds

For the last of her policy-based claims, Plaintiff

alleges that the County has “a policy, custom, or

practice of using the STEP traffic unit to generate

false arrests and funds for the County.” (Docket

- 43 -

Entry 8, at 26.) She claims that, because the County

“receives federal funds for larger numbers of D.W.I.

arrests,” the STEP program “serves as a catalyst for

pretextual traffic stops.” (Id.) Although there is

some inconsistency in the record on this issue,

Plaintiff cannot prevail on her claim.

In its motion, the County argues that STEP does

not “incentivize[] arrests” and, thus, was not “the

moving force behind [Plaintiff’s] arrest.” (Docket

Entry 73, at 15.) According to the County, “STEP

funds are not based on the number of traffic arrests,”

but rather “the number of vehicular crashes and

injuries in a particular zone.” (Id.) The County

further argues, “there is no mandatory requirement

for an hourly number of traffic stops.” (Id.) To

support these contentions, the County attaches its

verified answers to Plaintiff’s first set of

interrogatories. (Docket Entry 73-6.) There, the

County affirmed that there is “no necessary

relationship between the number of traffic arrests

and grant money received;” rather, “grant money is

based on the number of crashes and injuries in any

particular area.” (Id. at 4.) The County further

affirmed in its answers that there is “no mandatory

requirement for an hourly number of traffic stops,”

but in the same breath stated that TxDOT’s

“performance expectations include that an average

2.5 stops per hour are made.” (Id.) Finally, the

County points to Deputy Gereb’s summary judgment

affidavit, in which he stated (1) that he already had

sufficient driver contacts to meet the performance

expectation of

- 44 -

2.5 stops per hour when he stopped Plaintiff, and (2)

that he had never experienced any difficulty meeting

the performance expectation of 2.5 stops per hour.

(Docket Entry 73-8, at 8–9.)

Deputy Gereb made other statements, however,

which are inconsistent with the remarks highlighted

by the County. Specifically, Deputy Gereb affirmed

that he observed Plaintiff’s alleged traffic

violations—which constituted the basis for initiating

the traffic stop here—while “driving toward [his]

assigned Enforcement Zone.” (Docket Entry 73-8, at

3.) Deputy Gereb similarly testified at his deposition

that he stopped Plaintiff while “en route to the patrol

zone.” (Docket Entry 79-2, at 89.) Viewed in the light

most favorable to Plaintiff, this implies that Deputy

Gereb was just beginning his STEP shift when he

pulled Plaintiff over, which is inconsistent with his

assertion that he had already conducted a sufficient

number of traffic stops to exceed a rate of 2.5 per

hour. Moreover, Deputy Gereb testified at his

deposition that during some STEP shifts, he had

fewer than 2.5 driver contacts per hour—contrary

what he represented in his affidavit. (Id. at 95.)

Inasmuch as the STEP program facially seems to

require that officers working STEP shifts conduct at

least 2.5 traffic stops per hour—irrespective of

whether sufficient observable traffic violations occur

to support this number of stops—a reasonable jury

could conclude that the program encourages

unreasonable seizures, in violation of the Fourth

Amendment. Moreover, there is conflicting evidence

from Deputy Gereb as to whether he had ever failed

- 45 -

to meet his quota on a STEP shift and, in this

instance, whether he had already met his quota by

the time he initiated the traffic stop of Plaintiff’s

vehicle.11 And as already mentioned supra, there is

also conflicting evidence as to whether Deputy Gereb

observed any traffic violations before stopping

Plaintiff’s vehicle. (Compare Docket Entry 72-1, at 3;

Docket Entry 72-7, at 2–3; Docket Entry 80-2, at 162–

163; Docket Entry 80-9, at 36, with Docket Entry 801, at 9.) Viewing the conflicting evidence in the light

most favorable to Plaintiff, a reasonable jury could

find that Deputy Gereb observed no traffic violations

but stopped Plaintiff’s vehicle to meet his

performance expectation of 2.5 stops per hour. As

such, a reasonable jury could conclude that the STEP

program was the moving force behind Deputy

Gereb’s unlawful initial seizure of Plaintiff.

_________________________________________________

11 The undersigned notes that the traffic stop

occurred at “approximately 2:09 A.M.” (Docket Entry 721, at 3), and Deputy Gereb testified that his STEP shift

“started at 11:30 P.M.” (Docket Entry 80-2, at 40). If

Deputy Gereb’s testimony that he began his shift at

11:30 P.M. is accurate, and his affidavit statement that

he stopped Plaintiff while on his way to begin his shift

inaccurate, then it would be plausible that Deputy Gereb

already hit his quota by the time he stopped Plaintiff.

However, the Court must resolve this inconsistent

evidence in Plaintiff’s favor.

33

- 46 -

Notwithstanding the foregoing, the evidence in the

summary judgment record permits no genuine

dispute as to whether the STEP program was the

moving force behind any constitutional violation for

which Plaintiff can actually recover. As discussed

earlier, Plaintiff has failed to present any evidence

of an injury resulting from the initial seizure other

than her subsequent, lawful arrest for DWI. Relief is

foreclosed in such circumstances. See Townes, 176

F.3d at 148 (“Victims of unreasonable searches or

seizures . . . cannot be compensated for injuries that

result from the discovery of incriminating evidence

and consequent criminal prosecution.”); Paz, 2024

WL 1719917, at *6 (holding that an arrestee is not

entitled to damages “for a lawful arrest that arises

from an unlawful search”). “In the absence of

evidence of some injury independent of h[er] arrest

and prosecution,” any claim predicated on the

unlawfulness of Deputy Gereb’s initial traffic stop

“fails as a matter of law.” See Paz, 2024 WL

1719917, at *7. That includes Plaintiff’s claim that

the County’s participation in the STEP program was

the moving force behind Deputy Gereb’s decision to

stop Plaintiff. Accordingly, the County is entitled to

summary judgment on this claim.

2.

Failure to Train

“A failure-to-train action is a type of Monell

claim.” Hutcheson, 994 F.3d at 482. “To establish a

failure-to-train claim, a plaintiff must prove that (1)

the [Coun]ty failed to train or supervise the officers

involved; (2) [that] there is a causal connection

between the alleged failure to supervise or train and

- 47 -

the alleged violation of the plaintiff’s rights; and (3)

[that] the failure to train or supervise constituted

deliberate indifference to the plaintiff’s

constitutional rights.” Id. (citation and internal

quotations omitted). “To show deliberate

indifference, a plaintiff normally must allege ‘a

pattern of similar constitutional violations by

untrained employees.’” Id. (quoting Connick v.

Thompson, 563 U.S. 51, 62 (2011)). While it is

possible to demonstrate deliberate indifference with

just a single incident, this exception to the general

rule is “extremely narrow.” Hutcheson, 994 F.3d at

482 (citation omitted). Indeed, it “is generally

reserved for those cases in which the government

actor was provided no training whatsoever.” Id. at

483; see Peña v. City of Rio Grande City, 879 F.3d

613, 624 (5th Cir. 2018) (holding that plaintiff

failed to satisfy “the exacting test for the narrow

single-incident exception” where officers received

at least some training).

Plaintiff asserts failure-to-train claims based on

alleged inadequate Fourth Amendment training and

inadequate SFST training. This Report and

Recommendation addresses each claim in turn; for

the reasons stated below, the County is entitled to

summary judgment on both claims.

a.

Fourth Amendment Training

Plaintiff claims that deputies, like Deputy Gereb,

“are not instructed on principles such as a [sic]

[r]easonable [s]uspicion or [p]robable [c]ause.”

(Docket Entry 8, at 23.) She alleges that “this lack of

- 48 -

[t]raining leads to pretextual stops, . . . unlawful

detentions, searches, seizures, and bogus criminal

charges.” (Id.) Plaintiff claims that this inadequate

training harmed her because it resulted in “a

pretextual traffic stop, . . . un unlawful detention, . . .

an unlawful seizure of her property, an unlawful

arrest, and the initiation of false criminal charges.”

(Id. at 24.) According to Plaintiff, Sheriff Salazar

was aware that the inadequate Fourth Amendment

training results in such violations through “personal

observation, command decisions, Internal Affairs

Complaints, and lawsuits against [the] County.”

(Id.) Plaintiff alleges that Sheriff Salazar is

deliberately indifferent to the resulting violations

because “he takes no corrective actions.” (Id.)

As to these assertions, the County’s motion

asserts that Plaintiff has failed to present any

evidence to support the third element of her failureto-train claim: deliberate indifference. The County

argues that Plaintiff has presented “no evidence of

numerous, similar incidents of motorists’ rights

being violated as a result of inadequate training.”

(Docket Entry 73, at 13.) The County is correct.

Indeed, Plaintiff has not produced evidence of any

prior, similar incidents occurring as a result of

inadequate training. (See Docket Entry 79, at 10, 20.)

Absent any evidence of “a pattern of similar

constitutional violations by untrained employees,”

the County is entitled to summary judgment unless

the “extremely narrow” single-incident exception

applies here. See Hutcheson, 994 F.3d at 482. But

that exception is “reserved for those cases in which

the government actor was provided no training

- 49 -

whatsoever.” Id. at 483. This is not such a case. It is

undisputed that, before Plaintiff’s arrest, Deputy

Gereb had received pertinent training from the

County regarding DWI detection and enforcement;

constitutional law; traffic stops; use of force; and

arrests, searches, and seizures. (Docket Entry 73-1,

at 33–39.)

Because Plaintiff has presented no evidence of a

pattern of constitutional violations by untrained

employees, and because the single incident exception

is inapplicable, Plaintiff has failed to demonstrate a

genuine dispute as to the third element for her

failure-to-train claim as to the Fourth Amendment.

b.

Standard Field Sobriety Testing

Plaintiff claims that the County also harmed her

by failing to adequately train its deputies regarding

how to enforce and administer SFSTs. (Docket Entry

8, at 27.) She alleges that deputies “are not

instructed that motorists are not legally required to

perform any field sobriety tests,” and that “they are

not properly administered when given.” (Id.)

According to Plaintiff, Sheriff Salazar is aware of the

training deficiency via “personal observation,

command decisions, Internal Affairs Complaints, and

lawsuits against [the] County.” (Id.) She claims that

he is deliberately indifferent to the resulting

violations because “he takes no corrective actions.”

(Id.)

As the County rightly points out in its motion,

Plaintiff refused to submit to any SFSTs. (See

- 50 -

Docket Entry 72-1 at 5–6; Docket Entry 72-7, at 3;

Docket Entry 80-1, at 10; Docket Entry 80-9, at 36.)

And as the undersigned has already explained supra,

Plaintiff was arrested not simply for refusing to

perform SFSTs, but based on probable cause that she

had committed a DWI. Thus, even assuming

arguendo that the County inadequately trains its

deputies regarding how to enforce and administer

SFSTs, no reasonable jury could conclude from the

summary judgment record that such deficiencies

caused any violation of Plaintiff’s rights.12

Based on the foregoing, Plaintiff has failed to

demonstrate a genuine dispute as to whether her

rights were violated as a result of the County’s SFST

training, and whether the County acted with

deliberate indifference regarding its SFST training

of deputies.

V.

Recommendations

For the foregoing reasons, I recommend that the

Court GRANT both motions for summary judgment

(Docket Entries 72 and 73).

VI.

Notice of right to object

The United States District Clerk shall serve a

copy of this Report and Recommendation on all

parties by either (1) electronic transmittal to all

parties represented by attorneys registered as a

“filing user” with the Clerk of Court, or (2) by

mailing a copy to those not registered by certified

mail, return receipt requested. Written objections to

this Report and Recommendation must be filed

- 51 -

within fourteen (14) days after being served with a

copy of the same, unless this time period is modified

by the District Court. 28 U.S.C. § 636(b)(1); FED. R.

CIV. P. 72(b).

The parties shall file any objections with the

Clerk of the Court and serve the objections on all

other parties. Absent leave of Court, objections are

limited to twenty (20) pages in length.

12 Even assuming that Plaintiff’s rights were

violated in some way connected to Deputy Gereb’s

attempts to administer SFSTs, Plaintiff’ has failed to

present either evidence of “a pattern of similar

constitutional violations by untrained employees,” or

evidence that Deputy Gereb “was provided no training

whatsoever.” See Hutcheson, 994 F.3d at 482–483.

Plaintiff has presented no evidence of other incidents of

motorists’ rights being violated as a result of inadequate

training regarding SFSTs. And Deputy Gereb received 32

hours of SFST training from the County prior to

Plaintiff’s arrest. (See Docket Entry 73-1, at 33, 36; Docket

Entry 73-7, at 4.) Accordingly, Plaintiff has failed to

demonstrate a genuine issue as to the deliberate

indifference element of her failure-to-train claim.

An objecting party must specifically identify

those findings, conclusions, or recommendations to

which objections are being made and the basis for

such objections; “[f]rivolous, conclusory, or general

objections can be ignored.” Croy v. United States,

697 F. Supp. 3d 653, 662 (W.D. Tex. 2023) (Moses,

C.J.) (citing Battle v. U.S. Parole Comm’n, 834 F.2d

419, 421 (5th Cir. 1987)).

A party’s failure to file written objections to the

proposed findings, conclusions, and

recommendations contained in this Report and

- 52 -

Recommendation shall bar the party from a de novo

review by the District Court. Thomas v. Arn, 474

U.S. 140, 149–52 (1985); Acuña v. Brown & Root,

Inc., 200 F.3d 335, 340 (5th Cir. 2000). Additionally,

failure to file timely written objections to the

proposed findings, conclusions, and

recommendations contained in this Report and

Recommendation shall bar the aggrieved party,

except upon grounds of plain error, from attacking on

appeal the unobjected-to, proposed findings and

conclusions accepted by the district court. Douglass

v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428–29

(5th Cir. 1996) (en banc).

SIGNED on September 20, 2024.

Henry J. Bemporad

United States Magistrate Judge