Petition for Writ of Certiorari — Fred Rahdar, et al., Petitioners v. City of Friendswood, Texas, et al.

TABLE OF CONTENTS

Appendix A

Rahdar v. City of Friendswood, No. 25-40302,

2026 WL 766261 (5th Cir. Mar. 18,

2026) (Unpublished Opinion) ............................. 1a

Appendix B

Rahdar v. City of Friendswood, No.

3:22-CV-280, 2025 WL 1158552 (S.D.

Tex. Apr. 21, 2025) (Order Adopting

Memorandum and Recommendation) .............. 8a

Appendix C

Rahdar v. City of Friendswood, No.

3:22-CV-280, Dkt. 125, (S.D. Tex.

April 21, 2025) (Final Judgment) ................... 10a

Appendix D

Rahdar v. City of Friendswood, No.

3:22-CV-00280, 2025 WL 918539 (S.D. Tex.

Mar. 14, 2025) (Memorandum

and Recommendation) .................................... 12a

Appendix E

Radar v. City of Friendswood, No. 25-40302

(5th Cir. April 14, 2026 (order denying

rehearing en banc) .......................................... 36a

1a

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 25-40302

Summary Calendar

FRED RAHDAR; KOBRA GHORBANI,

Plaintiffs-Appellants,

versus

CITY OF FRIENDSWOOD; ROBERT WIENERS; B. MILLING;

J. DEMENT; M.A. KULHANEK, ET AL.,

Defendants-Appellees.

Unpublished Opinion

Filed: March 18, 2026

Before DAVIS, WILSON, and DOUGLAS, Circuit Judges.

PER CURIAM: *

Plaintiffs-Appellants Fred Rahdar and Kobra

Ghorbani brought claims of false and retaliatory

arrest against a municipality and several of its police

* This opinion is not designated for publication.

47.5.

See 5th Cir. R.

2a

officers pursuant to 42 U.S.C. § 1983. The district

court dismissed the claims. We AFFIRM.

Rahdar and Ghorbani, a married couple,

operated a pub in the City of Friendswood. They

allege that during the COVID-19 pandemic, the pub

was classified as a restaurant and allowed to continue

operating under the applicable executive orders.

Nevertheless, they contend that DefendantsAppellees—various individuals and entities affiliated

with the City of Friendswood Police Department—

commenced “a concerted campaign of official

harassment” against them based on their continued

operation of the pub.

Plaintiffs allege that on August 3, 2020, two

Friendswood police officers attempted to perform a

“bar check” inspection at the pub. But the officers had

“already performed three bar checks per day for each

of the four previous days” such that the bar check was

annoying and harassing. Officers then “arrested the

Plaintiffs for allegedly refusing a bar check” in

violation of a state statute. Plaintiffs assert that

officers arrested Ghorbani first, and when Rahdar

“objected,” they arrested him too, commenting that he

was being arrested for “running your big mouth.”

Plaintiffs also allege that on February 5, 2021,

Rahdar saw a Friendswood police officer, Sergeant

Cordero, sitting in the pub parking lot in an

unmarked police car. Rahdar began filming the officer

but made “no acts of aggression.” Cordero then

radioed for back up and arrested Rahdar for

“obstructing a highway or other passageway.”

3a

Plaintiffs brought claims pursuant to 42 U.S.C.

21 1983. As relevant to this appeal, they brought

claims for (1) false arrest under the Fourth

Amendment as to Rahdar’s August 3, 2020 arrest and

(2) retaliatory arrest under the First Amendment as

to Rahdar’s February 5, 2021 arrest. 1 The district

court dismissed the first claim pursuant to Rule

12(b)(6) and the second on summary judgment.

Plaintiffs timely appealed, challenging the respective

rulings. We examine each in turn and review de

novo. 2

I

The district court dismissed Rahdar’s false

arrest claim arising from the August 3, 2020 pub

incident for failure to state a claim under Rule

12(b)(6). It explained that to adequately plead false

arrest, a plaintiff must allege that the arresting

officers “did not have probable cause to arrest him.” 3

1 Plaintiffs’ Complaint also alleged two other incidents in which

Rahdar was arrested. They brought various false arrest,

retaliatory arrest, and excessive force claims regarding

Ghorbani’s August 3, 2020 arrest and all four of Rahdar’s

arrests. The district court dismissed all the claims, some on the

pleadings and some on summary judgment. But Plaintiffs’

appellate brief challenges only the dismissals of the false arrest

claim arising from the pub incident and the retaliatory arrest

claim arising from the parking lot incident. Accordingly, we

summarize only the facts relevant to these claims.

2 Amin v. United Parcel Serv., Inc., 66 F.4th 568, 572 (5th Cir.

2023) (“This court reviews Rule 12(b)(6) dismissals and

summary judgments de novo.”).

Anokwuru v. City of Houston, 990 F.3d 956, 963 (5th Cir.

2021) (quoting Haggerty v. Tex. S. Univ., 391 F.3d 653, 655

3

(5th Cir. 2004)).

4a

But Plaintiffs failed to make this allegation,

warranting dismissal.

We agree. Plaintiffs’ Complaint merely alleges

that (1) Rahdar and Ghorbani were arrested for

refusing a bar check (2) they had previously been

subjected to a harassing number of bar checks (3)

Rahdar objected to the arrest of his wife during the

incident and (4) officers told Rahdar that his “running

[his] big mouth” was a cause of the arrest. But taking

these allegations as true, they do not establish that

the officers lacked probable cause to arrest Rahdar for

refusing the bar check.

Plaintiffs argue on appeal that Rahdar did not

resist the bar check and that he was arrested solely in

retaliation for “protected” speech: his objectin t his

wife’s arrest. But these appellate allegations conflict

with the Complaint, which specifies that both

Plaintiffs were arrested for refusing the bar check and

is silent regarding Rahdar’s compliance. Rule 12(b)(6)

compels u s to assume the veracity of the Complaint’s

allegations. Because the facts in the Complaint,

which Plaintiffs twice amended, do not show that

officers lacked probable cause to arrest Rahdar, the

district court properly dismissed his false arrest claim

regarding the August 3, 2020 incident.

II

Acting on the recommendation of a magistrate

judge, the district court later granted summary

judgment on Rahdar’s retaliatory arrest claim based

on the February 5, 2021 incident. The court explained

5a

that video footage of the incident paints a very

different picture than Plaintiffs’ Complaint. The video

shows that Cordero pulled into a strip-center parking

lot shared by Plaintiffs’ pub and other

establishments, including a hair salon. While Cordero

waited in his car for an appointment at the hair salon,

Rahdar came outside, yelled at Cordero to leave, and

filmed Cordero while he sat in his car. Eventually,

Rahdar left, and Cordero went into the hair salon. But

while Cordero was inside, one of Rahdar’s employees,

Jazmine Lowery, pulled her car into the parking

space behind Cordero’s vehicle. Rahdar then parked

his truck in the driving lane of the parking lot,

directly in front of Corder’s vehicle. Rahdar admitted

his “vehicle [was] in a place where it was blocking

Sergeant Cordero’s vehicle’s exit from the parking

space.” Corder came outside and returned to his

vehicle. But Rahdar did not move his truck for four

minutes, during which time Cordero radioed for back

up. Officers arrived, then arrested Rahdar for

obstructing a highway or passageway pursuant to

Texas Penal Code § 42.03. The district court held that

give Rahdar’s intentional entrapment of Cordero’s

vehicle, officers had probable cause to arrest him,

defeating Rahdar’s retaliatory arrest claim.

Againt, we agree. For a retaliatory arrest

claim, “to prove causation, a plaintiff generally must

show that the officers lacked probable cause to make

the arrest.” 4 Under the Nieves exception, “a narrow

qualification is warranted for circumstances where

officers have probable cause to make arrests, but

4

Degenhardt v. Bintliff, 117 F.4th 747, 758 (5th Cir. 2024).

6a

typically exercise their discretion not to do so.” 5

Plaintiffs do not dispute on appeal that officers had

probable cause too arrest Rahdar. But they invoke the

Nieves exception, offering two pieces of evidence to

suggest that officers would not generally arrest under

the circumstances: (1) another police officer on the

scene, Lieutenant Price, testified in deposition that he

would have asked Rahdar to move his vehicle prior to

arresting him and (2) officers did not arrest Jazmine

Lowery, even though she participate dint he same

behavior as Rahdar.

Plaintiffs raise these arguments for the first

time on appeal. In their briefing to the district court,

they never directed the court to Price’s deposition

testimony that he would have asked Rahdar to move

prior to arrest. And they mentioned Lowery’s name

only one time, to assert that “there is zero evidence

that Mr. Rahdar colluded with his employee, Jazmine

Lowery.” This is the opposite of what they argue on

appeal under Nieves: that Lowery also participated in

the crime such that the officers’ failure to arrest her

is evidence of their animus toward Rahdar.

Accordingly,

Plaintiffs

have

forfeited

these

6

arguments on appeal. Overall, we agree with the

district court that there was probable cause to arrest

Rahdar and no Nieves exception applied, requiring

summary judgment on the retaliatory arrest claim.

AFFIRMED.

5

6

Nieves v. Bartlett, 587 U.S. 391, 406 (2019)

See Rollins v. Home Depot USA, 8 F.4th 393, 397 (5th Cir. 2021)

(“A party forfeits an argument by failing to raise it in the first

instance in the district court.”).

7a

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

GALVESTON DIVISION

3:22-CV-00280

FRED RAHDAR, et al.,

Plaintiffs,

versus

CITY OF FRIENDSWOOD, et al.

Defendants.

Order Adopting Magistrate Judge’s

Memorandum and Recommendation

Entered:

April 21, 2025

On October 16, 2024, the court referred the

defendants’ motion for summary judgment, Dkt. 70,

to United States Magistrate Judge Andrew M. Edison

under 28 U.S.C. § 636(b)(1)(B). Dkt. 88. Judge Edison

filed a memorandum and recommendation on March

14, 2025, recommending that the court grant the

motion. Dkt. 119.

On April 11, 2025, the plaintiffs filed their

objections to the memorandum and recommendation.

8a

Dkt. 122. In accordance with 28 U.S.C. 636(b)(1)(C),

the court must “make a de novo determination of

those portions of the [magistrate judge’s] report or

specified proposed findings or recommendations to

which objection [has been] made.” After conducting

this de novo review, the court may ‘accept, reject, or

modify, in whole or in part, the findings or

recommendations made by the magistrate judge.” Id.;

see also Fed R. Civ. P. 72(b)(3).

The court has carefully considered the

objections, the memorandum and recommendation,

the pleadings, and the record. The court accepts

Judge Edison’s memorandum and recommendation

and adopts it as the opinion of the court. The court

therefore orders that:

(1)

Judge Edison’s memorandum and

recommendation, Dkt. 119, is approved and

adopted in its entirety as the holding of the

court; and

(2)

The defendants’ motion for summary

judgment, Dkt. 70, is granted.

A final judgment will issue separately.

Signed on Galveston Island this 21st day of April,

2025.

___________________________

JEFFREY VINCENT BROWN

UNITED STATES DISTRICT JUDGE

9a

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

GALVESTON DIVISION

3:22-CV-00280

FRED RAHDAR, et al.,

Plaintiffs,

versus

CITY OF FRIENDSWOOD, et al.

Defendants.

Final Judgment

Entered:

April 21, 2025

Pursuant to the court’s order adopting the

magistrate

judge’s

memorandum

and

recommendations, Dkt. 124, and granting the

defendant’s motion for summary judgment, Dkt. 70, it

is ordered that this case is dismissed with prejudice.

THIS IS A FINAL JUDGMENT.

All pending motions are denied as mott.

10a

The clerk will provide copies of this judgment

to the parties.

Signed on Galveston Island this 21st day of April,

2025.

___________________________

JEFFREY VINCENT BROWN

UNITED STATES DISTRICT JUDGE

11a

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

GALVESTON DIVISION

3:22-CV-00280

FRED RAHDAR, et al.,

Plaintiffs,

versus

CITY OF FRIENDSWOOD, et al.

Defendants.

Memorandum and Recommendation

Filed: March 14, 2025

Plaintiffs Fred Rahdar and his wife, Kobra

Ghorbani, are owners of Friends Pub. On February 5,

2021, Rahdar saw Friendswood Police Department

(“FPD”) Sergeant Michael Cordero sitting inside his

unmarked police vehicle in the parking lot near

Friends Pub. When Cordero exited his vehicle and

entered a nearby business, Rahdar and a cw-worker

positioned their automobiles to block Cordero from

leaving the premises. After 12 minutes inside,

Cordero returned to his car. He was boxed in and

unable to move his vehicle. Police later arrived at the

12a

scene and arrested Rahdar for obstructing a highway

or other passageway in violation of § 42.03 of the

Texas Penal Code.

Shocked that law enforcement would arrest

Rahdar for deliberately blocking Cordero’s police

vehicle without justification, Plaintiffs filed this

lawsuit. Defendants have moved for summary

judgment on Rahdar’s Fourth Amendment false

arrest claim and First Amendment retaliation claim

based on qualified immunity. See Dkt. 70. Having

reviewed the briefing, the record, and the applicable

law, I recommend the motion for summary judgment

be granted.

BACKGROUND

In the First Amended Complaint, Plaintiffs

allege that Defendants—the City of Friendswood and

more than 20 FPD officers and Friendswood fire

marshals—violated their First, Fourth, Fifth, and

Fourteenth Amendment rights. These claims relate to

four separate police interactions from July 2020 to

February 2021. Plaintiffs insist these incidents

represent a “concerted campaign of official

harassment.” Dkt. 54 at 2. Defendants moved to

dismiss the lawsuit on the pleadings. See Dkt. 55. On

January 22, 2024, Judge Jeffrey V. Brown partially

granted Defendants’ Motion to Dismiss, dismissing

all claims brought against the City of Friendswood.

See Dkt. 62 at 28. Judge Brown also dismissed all of

Plaintiffs’ claims against the individual defendants

except for Rahdar’s Fourth Amendment false arrest

claim and First Amendment Retaliation claim, both

13a

arising out of the February 5, 2021 arrest. 1 See id.

Defendants now move for summary judgment. See

Dkt. 70.

After Defendants filed their motin for

summary judgment, Rahdar sought to depose former

FPD Officer Jesse Beckwith. See Dkt. 83. I granted

the request, see Dkt. 98, and the deposition took place

in late 024. After the deposition, the parties

submitted additional summary judgment briefing.

See Dkts. 104, 111. The summary judgment record is

now complete.

The summary judgment record contains a

video taken on February 5, 2021, from a surveillance

camera aimed at the shopping center parking lot.

That video perfectly captures what occurred on that

date in the parking lot. Those events are described

below.

On the afternoon of February 5, 2021, Cordero

drove an unmarked FPD blue Ford Explorer Sports

Utility Vehicle to get his haircut at Q-Cuts, which is

located a few doors down from Friends Pub. Cordero

arrived in the parking lot at 1:17 p.m., and parked in

front of Q-Cuts in a middle row of the half-empty

parking lot. Dkt. 70-2 at 00:14:42. Cordero’s vehicle is

circled in the photo below:

1 Because “Ghorbani was not arrested on February 5, 2021, nor

was she subjected to any other deprivation of her rights” that

day, Ghorbani concedes the only claims arising out of the

February 5, 2021 arrest belong to Rahdar. Dkt. 85 at 2 n.3.

14a

Id.

At 1:55 p.m., while Cordero sat in the

unmarked SUV and waited for the availability of the

barber to cut his hair, Rahdar walked toward Corder’s

vehicle. Id. at 00:53:34. For several minutes, Rahdar

walked around Corder’s vehicle, filming the scene

with his cell phone. Id. at 00:53:34-00:57:11. Rahdar

yelled at Cordero through the closed car window to

leave the premises, claiming the parking lot was

private property. Dkt. 70-28 01:05-01:20. Seated in

the driver’s seat with the windows rolled up, Cordero

did not interact with Rahdar. Cordero did, however,

use his cell phone to record what was happening. Dkt.

70-22. After several minutes, Rahdar returned to

Friends Pub and exited the view of the surveillance

video. Dkt. 70-2 at 00:55:19. At 2:01 p.m., Crdero

Stepped out of the unmarked police vehicle and

walked toward Q-Cuts for his haircut. Id. at 00:58:43.

Then, at 2:03 p.m., a white Ford Mustang drove up

behind Cordero’s police vehicle.

15a

Id. at 01:00:52. Despite many vacant parking spaces

located throughout the parking lot, the Ford Mustang

pulled int the parking space directly behind Cordero’s

police vehicle.

Id. at 01:01:16. A female stepped out of the Ford

Mustang at 2:04 p.m. Id. at 01:01:36. At his

deposition, Rahdar identified the female as Jazmine

Lowery, one of his employees at Friends Pub. See Dkt.

70-9 at 22-23.

16a

Less than a minute after Lowery parked the

Ford Mustang behind Corder’s police vehicle, and as

Lowery was returning to Friends Pub, Rahdar drove

his White pickup truck into the parking lot.

Dkt. 70-2 at 01:01:48. Rahdar parked perpendicular

in front of Cordero’s police vehicle, positioning his

truck directly in front of traffic driving in the opposite

direction.

17a

Id. at 01:01:57. Rahdar claims that he parked in this

manner because he wanted to film the situation “and

see what [was] going on.” Dkt. 85-12 at 28. Rahdar

further testified that he did not see Cordero exit the

SUV before he parked in front of Cordero’s vehicle.

See id. at 27. Nnetheless, Rahdar readily admits that

his “vehicle [was] in a place where it was blocking

Sergeant Cordero’s vehicle’s exit from the parking

space.” Id. at 26-27.

At 2:13 p.m., Cordero exited Q-Cuts and

entered into the surveillance camera’s view. Dkt. 702 at 01:11:13. As Cordero approached his vehicle, he

noticed Rahdar’s white truck blocking his SUV and

stopped. Id. at 01:11:13-01:11:19. Cordero took a few

steps back and started to record the situation with his

cell phone before continuing to walk toward his SUV.

Id. at 01:11:20-01:11:43. Cordero entered his vehicle

at 2:14 p.m., and saw Rahdar sitting in the driver’s

seat of the white truck Id. at 01:11:46. Because

Rahdar’s truck blocked Corder’s vehicle from the front

and the Fort Mustang blocked Cordero from the back,

Cordero could not drive his SUV out of the parking

lot. After entering his vehicle, Cordero used his police

radio to request officer backup at his location.

Both Rahdar and Cordero remained in their

parked vehicles for several minutes. At 2:17 p.m., a

brown pickup truck attempted to park in a front row

parking space, but was unable to do so because

Rahdar’s vehicle blocked the pickup truck’s ability to

enter the parking space. Id. at 01:14:57-01:15:11.

Rahdar then moved his truck forward just enough to

allow the brown truck to pull into a parking space. Id.

18a

at 01:15:12-01:15:20. Rahdar drove his truck forward

several feet, which created enough space for Cordero

to exit. Cordero, however, had already called for police

assistance and decided not to move his vehicle.

At about 2:18 p.m., Rahdar stepped out of his

truck. Id. at 01:15:20-01:15:27. He stood by the rear of

his truck near Cordero’s vehicle, and then moved to

stand near the front of his truck. Id. at 01:15:2701:17:16. Rahdar remained outside this truck for

roughly two minutes before a number of police

vehicles arrived on the scene. Id. at 01:17:16. Several

officers approached Rahdar as Cordero exited his

unmarked SUV. Id. 01:17:30. Corder directed

Lieutenant James Price to arrest Rahdar. Id. at

01:17:32-01:18:05. Approximately two minutes later,

officers waled Rahdar out of the surveillance camera’s

view and placed him in Officer Barry Yodzis’s police

care for transport to the Friendswood City Jail. Id. at

01:19:30. Officials subsequently charged Rahdar with

obstructing a highway or other passageway in

violation of Texas Penal Code § 42.03.

LEGAL STANDARDS

A.

SUMMARY JUDGMENT

Summary judgment is appropriate when “the

movant shows that there is no genuine dispute as to

any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a). A

fact issue is material “if its resolution could affect the

outcome of the action.” Wyatt v. Hunt Plywood Co.,

297 F.3d 405, 409 (5th Cir. 2002). A dispute is genuine

19a

if “a reasonable jury could return a verdict for the

nonmoving party.” Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 248 (1986).

“To satisfy its burden, the party opposing

summary judgment is required to identify specific

evidence in the record, and to articulate the precise

manner in which that evidence supports their claim.”

Willis v. Cleco Corp., 749 F.3d 314, 317 (5th Cir. 2014)

(cleaned up). At this stage, I “consider all of the

evidence in the record, but [I] do not make credibility

determinations or weigh the evidence.” Austin v. WillBurt Co., 361 F.3d 862, 866 (5th Cir. 2004). I “view all

facts and inferences in the light most favorable to the

nonmoving party.” Treme v. St. John the Baptist Par.

Council, 93 F.4th 792, 796 (5th Cir. 2024) (quotation

omitted).

B. QUALIFIED IMMUNITY

“Qualified immunity shields a government

official from liability based on his performance of

discretionary functions.” Mot v. Walthall, 902 F.3d

500, 505 (5th Cir. 2018) (quotation omitted). “Qualified

immunity gives government officials breathing room

to make reasonable but mistaken judgments about

open legal questions. When properly applied, it

protects all but the plainly incompetent or those who

knowingly violate the law.” Ashcroft v. al-Kidd, 563

U.S. 731, 743 (2011) (quotation omitted).

“A good-faith assertion of qualified immunity

alters the usual summary judgment burden of proof,

shifting it to the plaintiff to show that the defense is

20a

not available.” King v. Handorf, 821 F.3d 650, 653 (5th

Cir. 2016) (quotation omitted). “to negate a defense of

qualified immunity and avoid summary judgment,

the plaintiff need not present absolute proof, but must

offer more than mere allegations.” Id. at 654

(quotation omitted).

“There are two aspects to qualified immunity:

whether the plaintiff has alleged a violation of a

constitutional right and whether the right at issue

was ‘clearly established’ at the time of the alleged

violation.” Cope v. Cogdill, 3 F.4th 198, 204 (5th Cir.

2021) (quoting Person v. Callahan, 555 U.S. 223, 232

(2009)). The first prong requires Plaintiffs to

demonstrate there is a genuine dispute of material

fact that Defendants violated a constitutional right.

See Freeman v. Gore, 483 F.3d 404, 410 (5th Cir.

2007). Defendants are entitled to summary judgment

upon qualified immunity if Plaintiffs fail to create a

genuine dispute whether the alleged conduct violated

a constitutional right. See Buehler v. Dear, 27 F.4th

969, 981-82 (5th Cir. 2022).

OBJECTIONS TO SUMMARY JUDGMENT

EVIDENCE

As an initial matter, I must address

Defendants’ objections to a number of exhibits

submitted by Plaintiffs in opposition to the Motion for

Summary Judgment. See Dkt. 113.

First, Defendants object to the submission of

entire deposition transcripts when only selected

portions of those depositions are referenced in

21a

Plaintiffs’ summary judgment response. Plaintiffs

clarify that they have submitted the entire deposition

transcripts simply as a courtesy and are not asking

the court to look at anything other than specific

portions of the depositions cited in their summary

judgment response. See Dkt. 118 at 2-3. (“The

testimony which Plaintiffs have cited [in their

summary judgment response] is the only testimony

which is included in the record from each of these

exhibits.”). Given that the parties agree, I confirm

that I will only consider as part of the summary

judgment record the portions of deposition testimony

cited by Plaintiffs in their summary judgment

response.

Second, Defendants object to Exhibits C, P, and

EE. Plaintiffs do not even bother to respond to these

objections. After review, I determine that the

objections lodged to these exhibits are meritorious,

and I will strike Exhibits C (Dkt. 104-3), P (Dkt. 10416), and EE (Dkt. 104-31) from the summary

judgment record.

Third, Defendants raise a litany of objects to

selected deposition testimony and other exhibits

offered by Plaintiffs. “Because this evidence does not

affect the disposition of the summary judgment

motion, I deny the objection[s] as moot.” Lilly v. SSC

Houston Sw. Operating Co., No. 4:20-CV-03478, 2022

WL 35809. At *3 n.2 (S.D. Tex. Jan. 4, 2022); see also

Banks v. Bell Helicopter Textron, Inc., No. 4:10-CV653, 2011 WL 13291576, at *4 (N.D. Tex. Nov. 4,

2011) (“[B]ecause Bell is entitled to judgment as a

matter of law even considering the objected-to

22a

evidence, the Court overrules Bell’s objects as moot.”);

Jones v. United Parcel Serv., Inc., NO. 3:06-CV-1535,

2008 WL 2627675, at *6 (N.D. Tex. June 30, 2008)

(denying objections to summary judgment evidence as

moot because the evidence was “not central to the

court’s conclusions, and sustaining the parties’

objections would not change the result”).

Having addressed Defendants’ objections to

Plaintiffs’ summary judgment evidence, I now turn to

the merits of the summary judgment motion.

ANALYSIS

A.

RAHDAR’S FOURT

ARREST CLAIM

AMENDMENT

FALSE

Rahdar claims that his February 5, 2021 arrest

violated his Fourt Amendment rights. The Fourth

Amendment protects the “right of people to be secure

in their persons, houses, papers, and effects, against

unreasonable searches and seizures.” U.S. Const.

amend. IV. To establish a Fourth Amendment false

arrest claim, Rahdar must demonstrate “that the

arresting officers did not have probable cause to

arrest him.” Anokwuru v. City of Houston, 990 F.3d

534, 542 (5th Cir. 2021) (cleaned up); see also Westfall

v. Luna, 903 F.3d 534, 542 (5th Cir. 2018) (“A falsearrest claim requires a showing of no probable

cause.”); Ramirez v. Martinez, 716 F.3d 369, 375 (5th

Cir. 2013) (“In order to make a lawful arrest, an

officer must have probable cause to believe the

suspect committed a crime.”); Parm v. Shumate, 513

F.3d 135, 142 (5th Cir. 2007) (“[T]o prevail in a § 1983

23a

claim for false arrest, a plaintiff must show that he

was arrested without probable cause in violation of

the Fourth Amendment.”). “Probable cause exists

when the totality of facts and circumstances 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.” Resendiz v. Miller, 203 F.3d 902, 903 (5th Cir.

2000). “Probable cause is not a high bar. A fair

probability that the suspect has committed a crime is

enough to establish probable cause. The likelihood

that he has done so need not reach even the fifty

percent mark.” Espinal v. City of Houston, 96 F.4th

741, 745 (5th Cir. 2024) (cleaned up).

When an individual asserts a Fourth

Amendment false arrest claim, qualified immunity

will shield officers from suit “if a reasonable officer

could have believed [the arrest at issue] to be lawful,

in light of clearly established law and the information

the arresting officers possessed.” Hunter v. Bryant,

502 U.S. 224, 227 (1991) (cleaned up). “[T]he plaintiff

must show that the officers could not have reasonably

believed that they had probable cause to arrest the

plaintiff for any crime.” Good v. Curtis, 601 F.3d 393,

401 (5th Cir. 2010) (quotation omitted). “Even law

enforcement officials who reasonably but mistakenly

conclude that probable cause is present are entitled to

immunity.” Hunter, 502 U.S. at 227 (quotation

omitted).

Although I must “construe all facts in favor of

[Plaintiffs] as the nonmoving parties, [I] assign

greater weight, even at the summary judgment stage,

24a

to the facts evident from video recordings taken at the

scene.” Ramirez v. Killian, 113 F.4th 415, 421 (5th Cir.

2024) (quotation omitted). I must “view [] the facts in

the light depicted by the videotape.” Scott v. Harris,

550 U.S. 372, 381 (2007). A video “recording [may]

corroborate a probable cause finding.” Turner v.

Lieutenant Driver, 848, F.3d 678, 689 (5th Cir. 2017).

Cordero directed Rahdar’s arrest for the

offense of obstructing a highway or passageway. The

Texas Penal Code provides that:

(a) A person commits an offense if . . . he

intentionally, knowingly, or recklessly:

(1)

obstructs a highway, street,

sidewalk, railway, waterway, elevator,

aisle, hallway, entrance, or exit to

which the public or a substantial group

of the public has access, or any other

place used for the passage of persons,

vehicles, or conveyances, regardless of

the means of creating the obstruction . .

..

....

(b)

For purposes of this section, “obstruct”

means to render impassable or to render

passage

unreasonably

inconvenient

or

hazardous.

Tex. Penal Code § 42.03(a)(1), (b).

25a

The surveillance video establishes that a

reasonable police officer could view Rahdar’s conduct

as obstructing a “place used for the passage of

persons, vehicles, or conveyances” in violation of

Texas Penal Code § 42.03(a)(1). This is not a difficult

call. The key facts evident from the video are not in

dispute: Rahdar intentionally parked in front of

Cordero’s police vehicle, preventing Cordero from

leaving the parking lot. The fact that Rahdar admits

that his “vehicle [was] in a place where it was blocking

Sergeant Cordero’s vehicle’s exit from the parking

space” seals the deal. Dkt. 85-12 at 26-27.

“The act of remaining stationary—i.e.,

continuing to obstruct—is the critical fact” for

determining whether an officer has probable cause to

arrest someone for violating § 42.03. Zinter v.

Salvaggio, 610 F. Supp. 3d 919, 937 (W.D. Tex. 2022);

cf. Sherman v. State, 626 S.W.2d 520, 528 (Tex. Crim.

App. 1981) (holding no obstruction occurred when a

suspect only “caused a momentary hesitation of a

vehicle”). Here, Rahdar caused more than a

momentary hesitation because he remained parked in

front of Cordero’s unmarked police vehicle for a

lengthy period of time—more than 13 minutes, almost

four of which elapsed while Cordero sat in his vehicle

unable to drive away. “[A] qualified immunity defense

cannot succeed where it is obvious that a reasonable

competent officer would find no probable cause.”

Mendenhall v. Riser, 213 F.3d 226, 230 (5th Cir. 2000)

(quotation omitted). 2

Although Defendants’ expert witness, police training expert

Captain Albert Rodriguez,opined that “any prudent law

enforcement officer could have believed grounds existed to arrest

2

26a

In sum, the totality of the circumstances

establishes that the FPD officers had probable cause

to arrest Rahdar on February 5, 2021, for violating

Texas Penal Code § 42.03. Because the officers had

probable cause to arrest Rahdar, they did not violate

Rahdar’s Fourth Amendment rights, and are thus

entitled to qualified immunity. Accordingly, I

recommend summary judgment be granted on

Plaintiffs’ Fourth Amendment false arrest claim in

favor of Defendants.

B.

RAHDAR’S

FIRST

RETALIATION CLAIM.

AMENDMENT

Plaintiffs also assert a First Amendment

retaliation claim. Plaintiffs allege the FPD officers

arrested Rahdar on February 5, 2021, in retaliation

for his public criticism of the FPD and the former FPD

police chief. 3

“[T]he law is settled that as a general matter

the First Amendment prohibits government officials

from subjecting an individual to retaliatory actions,

Rahdar for Obstructing a Highway or Other Passageway . . . in

violation of Texas Penal Code Section[] 42.03,” Dkt. 70-8 at 28, I

give that evidence no weight. Reasonableness and probable

cause are questions of law for which expert testimony is not

required and should not be permitted. See Fetty v. City of Baton

Rouge, 518 F. Supp. 3d 923, 930–34 (M.D. La. 2021).

3 Rahdar claims he openly criticized the FPD and the former

FPD police chief on numerous occasions. To voice his opinions,

Rahdar utilized a billboard, a website, social media, and

numerous interviews with local media outlets. He believes the

February 5, 2021 arrest was simply part of an orchestrated effort

“to silence Plaintiffs through harassment and acts of

intimidation.” Dkt. 104 at 30–31.

27a

including criminal prosecutions, for speaking out.”

Hartman v. Moore, 547 U.S. 250, 256 (200^). “To

prevail on a First Amendment retaliation claim, a

plaintiff must show that he was engaged in

constitutionally protected activity, the officer’s

actions injured him, and ‘the officers’ adverse actions

were substantially motivated against Plaintiff’s

exercise of constitutionally protected conduct.”

Degenhardt v. Bintliff, 117 F.4th 747, 758 (5th Cir.

2024) (quoting Alexander v. City of Round Rock, 854

F.3d 298, 308 (5th Cir. 2017)).

“Although probable cause should generally

defeat a retaliatory arrest claim, a narrow

qualification is warranted for circumstances where

officers have probable cause to make arrests, but

typically exercise their discretion not to do so.”

Nieves, 587 U.S. at 406. In order to qualify for the socalled “Nieves exception,” “a plaintiff [must] present

[] objective evidence that he was arrested when

otherwise similarly situated individuals not engaged

in the same sort of protected speech had not been.” Id.

at 407. Just last year, the Supreme Court clarified

that evidence of “virtually identical and identifiable

comparators” is not required. Gonzalez v. Trevino,

602 U.S. 653, 658 (2024). “The only express limit we

placed on the sort of evidence a plaintiff may present

for the[e] purpose [of the Nieves exception] is that it

must be objective in order to avoid ‘the significant

problems that would arise from reviewing police

conduct under a purely subjective standard.’” Id.

quoting Nieves, 587 at 407). Just last year, the

Supreme Court clarified that evidence of “virtually

identical and identifiable comparators” is not

28a

required. Gonzalez v. Trevino, 602 U.S. 653, 658

(2024) “The only express limit we placed on the sort of

evidence a plaintiff may present for th[e] purpose [of

the Nieves exception] is that it must be objective in

order to avoid ‘the significant problems that would

arise from reviewing police conduct under a purely

subjective standard.’” Id. (quoting Nieves, 587 U.S. at

407). It is important to keep in mind that the Nieves

exception is extremely narrow and should not be used

“as a crowbar for overturning the core of [the Nieves

decision]—namely, that the existence of probable

cause either always or nearly always precludes a suit

[for retaliatory arrest].” Gozalez, 602 U.S. at 667

(Alito, J., concurring).

As I have already discussed, FPD officers had

probable cause to arrest Rahdar for obstructing a

highway or other passageway in violation of Texas

Penal Code § 42.03 when Rahdar used his vehicle to

block Cordero’s SUV, preventing Cordero from

driving away. As a result, Rahdar may prevail on his

First Amendment retaliatory arrest claim only if he

presents objective evidence to show that his arrest

falls within the Nieves exception.

In Gonzalez, the Supreme Court held that a

survey showing that, in the last decade, no one had

been charged with the crime for which plaintiff was

arrested, was sufficient to qualify for the Nieves

exception. See Gonzalez, 602 U.S. at 657-58. The

Supreme Court observed that:

Gonzalez’s survey is a permissible type of

evidence because the fact that no one has ever

29a

been arrested [in the past decade] for engaging

in a certain kind of conduct—especially when

the criminal prohibition is longstanding and

the conduct at issue is not novel—makes it

more likely that an officer has declined to

arrest someone for engaging in such conduct in

the past.

Id. at 658.

In an effort to show that the Nieves exception

applies in light of Gonzalez, Plaintiffs offer the

following evidence: (1) between February 5, 2011, and

February 5, 2023, the FPD arrested only three

individuals other than Rahdar for allegedly violating

Texas Penal Code § 42.03; and (2) various FPD

officers deposed in this litigation cannot recall ever

arresting anyone for violating Texas Penal Code §

42.03. This evidence does not suffice.

Rahdar comes nowhere close to presenting

“objective evidence” that FPD officers who have

probable cause to make arrests for violations of Texas

Penal Code § 42.03 typically exercise their discretion

not to do so. Nieves, 587 U.S. at 407. Unlike Gonzalez,

where the evidence showed that Texas’s antitampering statute had not been used a single time in

10 years in Bexar County to criminally charge

someone for trying to steal a nonbinding or expressive

document, the evidence here demonstrates that

violations of Texas Penal Code § 42.03 have been

enforced by the FPD. In the 12-year period identified

by Plaintiffs, FPD made four arrests (including

Rahdar’s arrest) for violations of Texas Penal code §

30a

42.03. To counter these statistics, Plaintiffs argue

that none “of these [other] arrests include facts which

are remotely similar to what occurred to Mr. Rahdar.”

Dkt. 104 at 32. But that argument cuts against

Rahdar. “When a plaintiff’s alleged criminal conduct

is egregious or novel, . . . the lack of similar arrests

might warrant little weight.” Gonzalez, 602 U.S. at

668 (Alito, J., concurring). As Justice Alito noted:

If a plaintiff could evade the no-probable-cause

requirement simply by submitting evidence

that no one who engaged in an exact duplicate

of his behavior had been arrested, courts will

be flooded with dubious retaliatory arrest suits,

and the Nieves’s exception would drain the noprobable-cause requirement of all force.

Id. (cleaned up).

Rahdar’s argument that he has satisfied the

Nieves exception by presenting testimony from

several FPD officers who report that they have never

arrested anyone for violating Texas Penal Code §

42.03 fares no better. The Fifth Circuit recently

addressed this exact argument and cursorily

dismissed it. Just because select FPD officers have

“never made any arrest for violations of Texas Penal

Code Section [42.03] . . . does not mean that [FPD]

officers . . . did not typically exercise their discretion

to make those arrests or that no other person was ever

arrested for violating Texas Penal Code Section

[42.03].” Miller v. Salvaggio, No. 23-50894, 2024 WL

5116799, at *8 (5th Cir. Dec. 16, 2024). Because “[t]he

Nieves exception is most easily satisfied by strong

31a

affirmative evidence that the defendant let other

individuals off the hook for comparable behavior” and

Rahdar has failed to provide any such evidence, his

arrest does not fall within the Nieves exception.

Gonzalez, 602 U.S. at 668 (Alito, J, concurring). 4

The Supreme Court has explained that the

Nieves exception applies when an individual is

arrested for minor criminal conduct where police

officers “typically exercise their discretion not to

[arrest].” Nieves, 587 U.S. at 406. The prime example

is jaywalking—a rather harmless offense for which

most people are rarely arrested. See id. at 407. By

contrast, the conduct present here—blocking in a

police car and preventing an officer from performing

his duties—places a police officer, not to mention the

public, in a potentially dangerous situation. This is

not a case that calls for the application of the Nieves

exception. In a nutshell, Rahdar has failed to

“surmount a very high bar” to overcome the noprobable-cause requirement. Gonzalez, 602 U.S. at

666 (Alito, J. concurring). I thus recommend that

Gonzalez, Justice Jackson, joined

by Justice Sotomayor, provided examples of the types of objective

evidence they believed could be used to prove that an individual

was arrested when similarly situated individuals who engaged

in the same conduct would not have been arrested. See Gonzalez,

602 U.S. at 675–76 (Jackson, J., concurring). Justice Jackson

suggested that such evidence could include (1) “officers’

employment of an unusual, irregular, or unnecessarily onerous

arrest procedure”; (2) “the timing of and events leading up to a

plaintiff’s arrest”: and (3) “if officers falsely document the arrest

or include other indicia of retaliatory motive in arrest-related

documents, that too might suggest meaningfully differential

treatment.” Id. at 676 (cleaned up). The summary judgment

record is devoid of any such evidence.

4 In a separate concurrence in

32a

summary judgment be granted in favor of Defendants

on Plaintiffs’ First Amendment retaliation claim.

PLAINTIFFS’ MOTION TO REOPEN DISCOVERY

FOR LIMITED PURPOSE

Before concluding this Memorandum and

Recommendation, I must briefly address Plaintiffs

Motion to Reopen Discovery for Limited Purposes. See

Dkt. 107. Plaintiffs ask this court to reopen

discovery—which ended on August 1, 2024—to allow

them to take three depositions relating to an incident

that took place at a Starbucks on December 18, 2024.

On that afternoon, Rahdar claims he received a phone

call from FPD Officer Austin Caballero, who told

Rahdar that he could not visit a Starbucks located in

Frinedswood, Texas, because a criminal trespass

complaint had been filed against him. Rahdar asserts

that this “criminal trespass charge is another

example of the continual targeting of [him] by

Defendants as a result of [his] criticism of Defendants

and FPD.” Dkt. 104-34 at 2. To be clear, Caballero was

not involved in Rahdar’s February 2021 arrest.

As an initial matter, Plaintiffs’ request to

reopen discovery does not preclude the court from

ruling on the pending Motion for Summary

Judgment. To obtain a continuance of a summary

judgment ruling to conduct additional discovery, the

non-movant must “show[] by affidavit or declaration

that, for specified reasons, it cannot present facts

essential to justify its opposition.” Fed. R. Civ. P.

56(d). Plaintiffs have not filed a formal motion for

continuance under Rule 56(d) to seek information

33a

related to the December 2024 incident at Starbucks,

and they have submitted no affidavits or declarations

in support of their Motion to Reopen Discovery for

Limited Purposes. Failure to file a Rule 56(d) motion

for continuance precludes a plaintiff from arguing on

appeal that he did not have adequate time to conduct

discovery. See Potter v. Delta Air Lines, Ind., 98 F.3d

881, 887 (5th Cir. 1996) (“If [plaintiff] needed more

discovery in order to defeat summary judgment, it

was up to her to move for a continuance pursuant to

rule 56(d). Because she did not, she is foreclosed from

arguing that she did not have adequate time for

discovery.”).

Putting aside Plaintiffs’ failure to file a Rule

56(d) motion for continuance, Plaintiffs have failed to

demonstrate good cause to reopen discovery to obtain

evidence relating to the December 2024 incident at

Starbucks. A scheduling order “may be modified only

for good cause and with the judge’s consent.” Fed. R.

Civ. P. 16(b)(4). In determining whether Plaintiffs

have shown good cause under Rule 16(b)(4), I must

consider, among other factors, the importance of the

requested relief. See S&W Enters., L.L.C. v.

SouthTrust Bank of Ala., 315 F.3d 533, 535 (5th Cir.

2003). Here, the requested discovery would not shed

light on any of the issues involved in this lawsuit. As

Defendants note: “Whatever happened at Starbucks

on December 18, 2024, has no bearing on the

propriety of any Defendant officer’s actions on

February 5, 2021, after Fred Rahdar positioned his

34a

vehicle in front of Sergeant Cordero’s police vehicle.”

Dkt. 114 at 2. 5

For these reasons, Plaintiffs’ Motion to Reopen

Discovery for Limited Purposes is denied.

CONCLUSION

For the reasons explained above, I recommend

Defendants’ Motion for Summary Judgment (Dkt. 70)

be granted.

The parties have 14 days from service of this

Memorandum and Recommendation to file written

objections. See 28 U.S.C. § 636 (b)(1); Fed. R. Civ. P.

72(b)(2). Failure to file timely objections will preclude

appellate review of factual findings and legal

conclusions, except for plain error.

SIGNED this 13th day of March 2025.

______________________________

ANDREW M. EDISON

UNITED STATES MAGISTRATE JUDGE

5 As an aside, Rahdar recently filed a lawsuit—in the United

States District Court for the Southern District of Texas,

Galveston Division, against the City of Friendswood, various

FPD officers, and two Starbucks employees—alleging various

claims related to the December 18, 2024 incident at Starbucks.

See Complaint, Rahdar v. Caballero, No. 3:25-cv-00051 (S.D.

Tex. Feb. 24, 2025), ECF No. 1.

35a

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 25-40302

FRED RAHDAR; KOBRA GHORBANI,

Plaintiffs-Appellants,

versus

CITY OF FRIENDSWOOD; ROBERT WIENERS; B. MILLING;

J. DEMENT; M.A. KULHANEK, ET AL.,

Defendants-Appellees.

On Petition for Rehearing En Banc

Filed: April 14, 2026

Before DAVIS, WILSON, and DOUGLAS, Circuit Judges.

PER CURIAM:

Treating the petition for rehearing en banc as

a petition for panel rehearing (5th Cir. R. 40 I.O.P.),

the petition for panel rehearing is DENIED. Because

no member of the panel or judge in regular active

service requested that the court be polled on

rehearing en banc (Fed. R. App. P. 40 and 5th Cir. R.

40), the petition for rehearing en banc is DENIED.