Gutierrez v. Santiago et al

Filing 27

MEMORANDUM AND ORDER granting 8 MOTION to Dismiss on the Basis of Qualified Immunity or for Judgment on the Pleadings. The claims against Defendant Abbott in his individual capacity and official capacity, and Plaintiffs claim seeking declaratory relief, are hereby DISMISSED. (Signed by Judge George P Kazen) Parties notified.(gsalinas, 5)

United States District Court
Southern District of Texas
o

ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
LAREDO DIVISION

§
§
§
§
v.
§
ALFRED SANTIAGO and GREG ABBOTT, §
§
Defendants.

March 09, 2018
David J. Bradley, Clerk

RAUL ROBERT GUTIERREZ,
Plaintiff,

NO. 5:14-cv-49

MEMORANDUM AND ORDER
Pending before the Court is Defendant Greg Abbott’s Motion to
Dismiss (Dkt. 8).

Plaintiff has responded to the motion (Dkt. 9)

and Defendant has filed a reply (Dkt. 10).
BACKGROUND
Plaintiff Raul Gutierrez is a citizen and resident of Mexico.
Defendant Alfred Santiago is a sergeant in the Law Enforcement
Division of the Texas Office of the Attorney General.

At the

relevant times, Defendant Greg Abbott was the Attorney General of
Texas, and the official charged with the management of the Law
Enforcement Division of the Texas Office of the Attorney General.
Plaintiff alleges that on February 7, 2014 he was legally
transporting $20,100 and 2,500 pesos from Mexico to the United
States. 1

Plaintiff alleges that the money represented proceeds

from a jewelry store in Mexico, and that he was paid to transport

1

All factual allegations are derived from Plaintiff’s May 9, 2014 Amended
Complaint (Dkt. 7).

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and deposit the money into a bank account in the United States.
Plaintiff cleared customs inspection at the border, but was later
detained by Defendant Santiago.

Defendant Santiago alleged that

Plaintiff was illegally transporting money without a license in
violation of state law.

Defendant Santiago seized the money and

Plaintiff was taken into custody.

Plaintiff was arraigned at the

Webb County Law Enforcement Center, but was later released by
Immigration and Customs Enforcement, who stated “that they could
not determine that he had violated any law.”

(Dkt. 7 at ¶¶12-13).

However, the seized moneys were not returned to Plaintiff, and on
March 7, 2014 the State of Texas brought forfeiture proceedings
against the seized money in the 49th District Court of Texas.
On March 16, 2014, Plaintiff brought this action in Texas
state court, which Defendant Abbott removed to federal court on
April 17, 2014.
42

U.S.C.

Plaintiff’s first cause of action is pursuant to

Santiago

1983,
violated

and

alleges

his

that

his

constitutional

detention
rights.

by

Defendant

Specifically,

Plaintiff alleges malicious prosecution, illegal seizure of his
money, false arrest, and false imprisonment.

(Dkt. 7 at ¶¶22-27).

Plaintiff alleges that Defendant Abbott’s policies and training
procedures

with

respect

to

the

enforcement

of

state

transporting laws caused the constitutional deprivation.
at ¶26).

money

(Dkt. 7

Plaintiff seeks both money damages and various forms of

injunctive relief.

Plaintiff further seeks a declaratory judgment
2

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that he is not covered by the definitions set forth in Texas
Finance Code § 151.302(b)(1) and (2).
On May 23, 2014, Defendant Abbott filed a motion to dismiss
pursuant to Federal Rule of Civil Procedure 12(b)(6) and 12(c).
Defendant

Abbott

claims

1)

that

he

is

entitled

to

qualified

immunity, 2) that Plaintiff has failed to state a claim for relief
under 42 U.S.C. § 1983, 3) that injunctive relief for Plaintiff’s
42 U.S.C. § 1983 claim is barred by sovereign immunity, and 4) that
Plaintiff has failed to state a claim under the Texas Declaratory
Judgments Act.
On July 31, 2014, this Court stayed the federal action pending
resolution of the state forfeiture claim in order to avoid the
possibility of conflicting orders in this and the state forfeiture
actions.

The State has now filed a motion for nonsuit, and the

state forfeiture case has been dismissed with prejudice.
2014-CVK-441D1).

(See

Accordingly, the Court now turns to Defendant’s

motion to dismiss. 2
Analysis
In deciding a Rule 12(b)(6) motion to dismiss, the Court
limits itself to the contents of the pleadings, accepting as true
all well-plead facts and viewing them in the light most favorable

2

Defendant Abbott spends much of the thirty-six pages of his opening brief suggesting, but not moving for, Rule 11
sanctions against the Plaintiff. The Court declines to consider sanctions in this case.

3

o
to the plaintiffs.3

Brand Coupon Network, L.L.C. v. Catalina Mktg.

Corp., 748 F.3d 631, 634–35 (5th Cir. 2014).
is inapplicable to legal conclusions.
S.Ct. 1937, 1949 (2009).

However, this tenet

See Ashcroft v. Iqbal, 129

The Court is “not bound to accept as true

a legal conclusion couched as a factual allegation.”
I.

Id. at 1950.

Section 1983 Claim
42 U.S.C. § 1983 creates a private cause of action allowing

recovery from government officials who, acting under color of law,
deprive a United States citizen of “any rights, privileges, or
immunities secured by the Constitution.”

Section 1983 claims may

be brought against an official in either their individual or
official capacity.
(5th Cir. 2009).

See Goodman v. Harris Cty., 571 F.3d 388, 395

Plaintiff brings claims against Defendant Abbott

in both his individual and official capacity.
a. Individual Capacity
Plaintiff claims that Defendant Abbott, in his individual
capacity, implemented policies or failed to implement policies or
training causing the complained of constitutional harms.
Abbott

claims

officials

qualified

acting

within

immunity,
their

which

“shields

discretionary

Defendant
government

authority

from

liability when their conduct does not violate clearly established

3

A motion to dismiss based on qualified immunity is generally evaluated under Rule 12(b)(6). Prison Legal News
v. Livingston, 2010 WL 1610109, at *2 (S.D. Tex. 2010) (citing Collins v. Ainsworth, 382 F.3d 529, 536 (5th
Cir.2004)). “A plaintiff seeking to overcome” a defense of immunity to suit “must plead specific facts that ... allow
the court to draw the reasonable inference that...defeat[s]” the defense. Backe v. LeBlanc, 691 F.3d 645, 648 (5th
Cir. 2012).

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statutory or constitutional law of which a reasonable person would
have known.”

Goodman, 571 F.3d at 395.

Before determining whether

Defendant Abbott is entitled to immunity, the Court must first
determine whether the Plaintiff has successfully pleaded a claim
under Section 1983.

See id. (holding that “qualified immunity is

only applicable as a protective shield once a plaintiff has made
out

a

claim

against

an

official

acting

in

his

individual

capacity”).
As a general rule, in a Section 1983 suit a supervisor may not
be held accountable for the actions caused by a subordinate under a
theory of vicarious liability or respondent superior.

See, e.g.,

Thompkins v. Belt, 828 F.2d 298, 303–04 (5th Cir. 1987).

However,

“a supervisory official may be held liable . . . if (1) he
affirmatively

participates

in

the

acts

that

cause

the

constitutional deprivation, or (2) he implements unconstitutional
policies

that

causally

result

in

the

constitutional

Porter v. Epps, 659 F.3d 440, 446 (5th Cir. 2011).
not

allege

that

Defendant

involvement in the injury.
Abbott

implemented

certain

Abbott

had

injury.”

Plaintiff does

personal

affirmative

Rather, he alleges 1) that Defendant
official

policies,

resulting

in

constitutional injury or, alternatively, 2) that Defendant Abbott
failed to implement policies or failed to train his employees,
resulting in constitutional injury.

5

(Dkt. 7 at ¶¶26-27).

o
i. Official Policy
“Supervisory liability may . . . exist without overt personal
participation

in

the

offensive

act

if

supervisory

officials

implement a policy so deficient that the policy itself is a
repudiation of constitutional rights and is the moving force of the
constitutional violation.”

Cozzo v. Tangipahoa Par. Council--

President Gov't, 279 F.3d 273, 289 (5th Cir. 2002).

Plaintiff has

cited a number of policies allegedly implemented by Defendant
Abbott as being causes of constitutional injury.
Plaintiff alleges that Defendant Abbott stationed employees at
the International Bridge in Laredo, Texas to “illegally accost law
abiding Mexican nationals.”

(Dkt. 7 at ¶18).

Plaintiff cites no

evidence of additional incidents where a Mexican national was
falsely prosecuted at the border.

Plaintiff further fails to

allege any directive or statement by Defendant Abbott that his
officers

were

to

“accost”

Mexican

nationals.

Accordingly,

Plaintiff fails to establish that there is an official policy of
accosting Mexican nationals.

See Thompkins, 828 F.2d at 305

(concluding “that [Defendant] cannot be held liable on the theory
that he implemented an unconstitutional policy when the record
below indicates no more than that the system may have failed in the
one particular instance”); Johnson v. Moore, 958 F.2d 92, 94 (5th
Cir. 1992)(holding that establishing an official policy requires a
“policy statement, ordinance, regulation, or decision that is
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officially adopted”).

Plaintiff’s statement that officers were

posted to “illegally accost law abiding Mexican nationals” is a
conclusory statement not entitled to an assumption of truth.
Iqbal, 129 S.Ct. at 1949.

See

What is left of these allegations, then,

is that Defendant Abbott stationed law enforcement officers at the
border between Texas and Mexico.

The law at question in this case

specifically involves the transportation of money from Mexico into
the United States.

The Court cannot conceive that a state placing

a law enforcement officer at the point where a law must be enforced
is a “repudiation of constitutional rights.”

Cozzo, 279 F.3d at

289.
Plaintiff

next

alleges

that

Defendant

Abbott

implemented

“policies and procedures that cause his employees . . . to file
completely unwarranted and false criminal charges.”
¶19).

(Dkt. 7 at

Again, Plaintiff has not named with any specificity a

“policy statement, ordinance, regulation, or decision that is
officially
unlawful

adopted”

by

prosecutions.

Defendant
Johnson,

Abbott
958

which

F.2d

at

leads

to

such

94.

Further,

Plaintiff has established no “persistent, widespread practice” that
would indicate a policy of “unwarranted or false criminal charges.”
Id.

Once again, this allegation is a bare statement of legal

conclusions, and does not make out a plausible Section 1983 claim.
Finally, Plaintiff alleges that Defendant Abbott enacted a
series of policies designed to increase the cost of litigation.
7

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(Dkt. 7 at ¶21).

Specifically, Plaintiff alleges that Defendant

Abbott enacted a policy by which employees were to refuse to waive
service in Section 1983 claims.

Once again, Plaintiff fails to

point to an official promulgation of the policy, or to more than
one example of a refusal to waive service, and so has failed to
properly allege an official policy.

Johnson, 958 F.2d at 94.

Further, to support supervisory liability, the policy cited must be
causally linked to the complained of constitutional injury.

See

Bennett v. City of Slidell, 728 F.2d 762, 767 (5th Cir. 1984).
Even if Plaintiff is correct in this allegation, the increased cost
of litigation is causally unrelated to his claim of malicious
prosecution and unlawful arrest.
Plaintiff has failed make out a proper Section 1983 claim on
the basis of official policies enacted by Defendant Abbott.
ii. Failure to Train and Failure to Implement Policies
A supervisor may also be liable where he 1) failed to train
the subordinate official or implement certain policies; 2) a causal
link exists between the failure to train or the unimplemented
policies and the violation of the plaintiff's rights; and 3) the
failure to train or failure to implement policies amounts to
deliberate indifference.

See, e.g, Goodman, 571 F.3d at 395.

Plaintiff makes several accusations that Defendant Abbott
failed to train his employees or failed to implement adequate
policies.

However, Plaintiff cannot show that Defendant Abbott
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acted with deliberate indifference.

The Fifth Circuit has laid out

the standard for deliberate indifference in some detail:
Deliberate indifference is a stringent standard of fault,
requiring proof that a municipal actor disregarded a
known or obvious consequence of his action. For an
official to act with deliberate indifference, the
official must both be aware of facts from which the
inference could be drawn that a substantial risk of
serious harm exists, and he must also draw the inference.
Deliberate indifference requires a showing of more than
negligence or even gross negligence. Actions and
decisions by officials that are merely inept, erroneous,
ineffective, or negligent do not amount to deliberate
indifference and do not divest officials of qualified
immunity. To satisfy the deliberate indifference prong, a
plaintiff usually must demonstrate a pattern of
violations and that the inadequacy of the training is
obvious
and
obviously
likely
to
result
in
a
constitutional violation.
Estate of Davis ex rel. McCully v. City of N. Richland Hills, 406
F.3d 375, 381–82 (5th Cir. 2005) (cleaned up).
Plaintiff

alleges

that

Defendant

Abbott

failed

to

train

officers on the “the laws,” including the sections of the Texas
Finance Code at issue in this case.

As support for Defendant

Abbott’s failure to train his employees properly on legal matters,
Plaintiff cites a completely separate and unrelated case in which
Plaintiff

alleges

that

the

Office

of

the

Attorney

General

improperly placed a lien on a bank account for unpaid child
support.

(Dkt. 7 at ¶16.)

To establish deliberate indifference,

“the plaintiff must generally demonstrate at least a pattern of
similar violations.”

Thompson v. Upshur Cty., TX, 245 F.3d 447,

459 (5th Cir. 2001)(emphasis added); McCully, 406 F.3d at 383
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(showing a pattern of violations “require[s] that the prior acts be
fairly similar to what ultimately transpired”)(emphasis added).
Plaintiff

has

cited

only

his

own

arrest,

and

an

dissimilar alleged violation regarding child support.

unrelated,
Accordingly,

Plaintiff has failed to show a pattern of violations that can
create an inference of deliberate indifference with respect to
training of employees.
Plaintiff further alleges that Defendant Abbott failed to
enact a policy by which he would review the merits of forfeiture
proceedings.

Once again, Plaintiff has failed to establish a

pattern of harms related to Defendant Abbott not reviewing the
merits of prosecutions.

See Thompson, 245 F.3d at 459.

At most,

he alleges that in this case, Defendant Abbott’s lack of review led
to constitutional harm.

This is insufficient.

Without some sort

of pattern of issues, “the inadequacy of the [supervision] is [not]
obvious

[or]

violation.”

obviously

likely

to

result

McCully, 406 F.3d at 383.

in

a

constitutional

Accordingly, Plaintiff has

not shown that Defendant Abbott acted with deliberate indifference
with respect to reviewing the actions of his employees.
Plaintiff in each case has failed to establish that Defendant
Abbott acted with deliberate indifference.

It is not necessary to

analyze the other elements of supervisory liability.
571 F.3d at 396.

See Goodman,

Because, as explained above, Plaintiff has also

failed to show that Defendant Abbott enacted unconstitutional
10

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policies that resulted in constitutional harm, Plaintiff has failed
to make out a Section 1983 claim against Defendant Abbott in his
individual

capacity.

Because

“qualified

immunity

is

only

applicable as a protective shield once a plaintiff has made out a
claim against an official acting in his individual capacity,” the
Court does not reach the remaining elements of Defendant Abbott’s
claim of qualified immunity.

See id.

b. Official Capacity
Plaintiff also alleges several claims against Defendant Abbott
in

his

official

capacity

as

the

Attorney

General

of

Texas.

Plaintiff seeks an injunction requiring training on the Texas
Finance Code and an injunction requiring that the Office of the
Attorney General designate an individual with authority to waive
service and accept service on behalf of any employee of the Office.
(Dkt. 7 at ¶30-31.)
A

suit

against

a

state

official

acting

in

his

capacity is akin to a suit against the state itself.
Hafer v. Melo, 112 S.Ct. 358 (1991).

official
See,e.g.,

Generally, such suits are

barred by sovereign immunity under the Eleventh Amendment, unless
the state has waived, or Congress has abrogated, the immunity.
See,e.g., Olivier v. Univ. of Texas Sys., 988 F.2d 1209 (5th Cir.
1993).

However, where a Plaintiff’s claim alleges a continuing

violation of the constitution, and where he seeks prospective
declaratory or injunctive relief, sovereign immunity does not
11

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apply.

See Aguilar v. Texas Dep't of Criminal Justice, 160 F.3d

1052, 1054 (5th Cir. 1998)(citing Ex Parte Young, 28 S.Ct. 441
(1908)).
Plaintiff meets both requirements of the Ex Parte Young
exception.

First, he alleges an ongoing violation of the federal

constitution.

Specifically, he alleges that the Texas Attorney

General currently has insufficient training on certain laws and
that the Texas Attorney General currently has no policy requiring
waiver of service, both of which he claims leads to constitutional
harm.

Second, Plaintiff seeks prospective relief in the form of

injunctions

regarding

training

and

service

of

process.

Accordingly, Plaintiff’s claims fall within the Ex Parte Young
exception and sovereign immunity does not bar his claims against
Defendant in his official capacity.
These claims, however, can go no farther.

For similar reasons

to the claims against Defendant Abbott in his individual capacity,
Plaintiff fails to make out a plausible claim under Section 1983.
With respect to the claim that Defendant Abbott has failed to train
his employees, the Court has already explained that Plaintiff has
failed to show a sufficient pattern of violations that would
indicate that Defendant Abbott was indifferent to the obvious
likelihood of a constitutional violation.

For the same reason,

Plaintiff has failed to show that the Attorney General, in his
official

capacity,

must

have

been
12

deliberately

indifferent.

o
McCully, 406 F.3d at 383.
Court

to

enter

the

There are therefore no grounds for the

requested

injunction

requiring

additional

training.
Plaintiff has also failed to state a claim with respect to his
complaints regarding service of process of employees of the Office.
Plaintiff has provided no authority, and the Court has found no
authority, for the proposition that a refusal to waive service
implicates

a

constitutional

constitutional
right

right.

Plaintiff

is

It

seeking

is
to

unclear

what

vindicate

here.

Moreover, even if the nature of the constitutional harm was clear,
Plaintiff has once again alleged no pattern of violations that
would

that

would

indicate

the

Office

acted

with

deliberate

indifference towards obvious harm caused by these policies.

See

McCully, 406 F.3d at 383.
Accordingly, Plaintiff has failed to state a claim for relief
against Defendant Abbott in his official capacity.
II.

Texas Declaratory Judgment Act
Finally, Plaintiff requests a declaratory judgment pursuant

to the Texas Declaratory Judgment Act that he “does not fit the
definition set forth in Texas Finance Code Section 151.302(b)(1)
and (2).”

(Dkt. 7 at 33).

Defendant Abbott moves to dismiss this

claim, arguing that Plaintiff has not established a justiciable
controversy.

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The Texas Declaratory Judgment Act is a procedural mechanism
and is inapplicable in federal court.

See, e.g., Utica Lloyd's v.

Mitchell, 138 F.3d 208, 210 (5th Cir. 1998).

However, because the

action was removed from state court, the action can be construed by
the

Court

as

having

been

brought

Declaratory Judgment Act (“FDJA”).

pursuant

to

the

federal

Miller v. CitiMortgage, Inc.,

970 F. Supp. 2d 568, 591 (N.D. Tex. 2013).

The FDJA allows a

federal court to declare the rights and legal relations of an
interested party.

28 U.S.C. §§ 2201–2202.

A declaratory judgment,

like other forms of equitable relief, should be granted only as a
matter of judicial discretion, exercised in the public interest.
Brillhart v. Excess Insurance Co. of America, 62 S.Ct. 1173, 1176
(1942).

“Especially where governmental action is involved, courts

should not intervene unless the need for equitable relief is clear,
not remote or speculative.”

Eccles v. Peoples Bank of Lakewood

Vill., Cal., 68 S. Ct. 641, 644 (1948).
In order to receive relief, Plaintiff must demonstrate either
continuing harm or a real and immediate threat of immediate injury
in the future; past exposure to illegal conduct does not itself
show a present case or controversy regarding injunctive relief if
unaccompanied by any continuing, present adverse effects.

Burks v.

Price, 2015 WL 3622684, at *11 (E.D. Tex. June 10, 2015) (citing
Society of Separationists, Inc. v. Herman, 959 F.2d 1283, 1285 (5th
Cir.1992)).

Defendant has argued that Plaintiff has shown only one
14

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instance of the application of the Texas Finance Code against him
and that it is purely speculative that a similar issue will arise
in the future.
Plaintiff has not in fact been prosecuted under the section at
issue.

(Dkt. 7 at ¶13).

Further, the instant application of the

Texas Finance Code to the Plaintiff, which underlies this suit, was
resolved when the State moved to non-suit the forfeiture action.
While there might be some risk that the statute would be applied
against him again, that possibility does not seem “immediate.”
Moreover,

even

if

the

threat

of

injury

appeared

more

immediate, the Court would be reluctant to exercise its discretion
over declaratory judgments in this case.
1287.

See Herman, 959 F.2d at

This Court is instructed to be cautious when interfering

with a state’s good faith application of its criminal laws.
Abbott Laboratories v. Gardner, 87 S.Ct. 1507 (1967).

See

Plaintiff

has the right and ability to defend himself or his property against
enforcement of the Texas Finance Code in state court. In fact, he
has successfully defended himself in the instant case.

The state

forfeiture proceeding has been dismissed, and it is the Court’s
understanding that the money at issue here will be returned to him.
Given

that

considering

there
that

are
the

adequate
chance

of

remedies
further

in
harm

state
is

court

not

and

“clear,”

Herman, 959 F.2d at 1287, Plaintiff has not met the “severe burden”

15

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needed to justify a federal court’s intervention in this case,
Nichols v. Vance, 293 F. Supp. 680, 683 (S.D. Tex. 1968).
The claim for declaratory relief is dismissed.
Conclusion
The

Court

therefore

dismiss (Dkt. 8).

GRANTS

Defendant

Abbott’s

motion

to

The claims against Defendant Abbott in his

individual capacity and official capacity, and Plaintiff’s claim
seeking declaratory relief, are hereby DISMISSED.
DONE at Laredo, Texas, this 8th day of March, 2018.

___________________________________
George P. Kazen
Senior United States District Judge

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