Navarro, et al v. Gonzalez, et al
Filing
147
ORDER granting 83 MOTION for Summary Judgment , Humberto (Bobby) Rodriguez terminated(Signed by Judge Randy Crane) Parties notified.(bgarces, 7)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
MCALLEN DIVISION
RUBEN NAVARRO, et al,
Plaintiffs,
VS.
CITY OF SAN JUAN, TEXAS, et al,
Defendants.
§
§
§
§ CIVIL ACTION NO. 7:12-CV-66
§
§
§
§
ORDER GRANTING DEFENDANT RODRIGUEZ’S
MOTION FOR SUMMARY JUDGMENT
I.
Factual and Procedural Background
Now before the Court is the “Motion for Summary Judgment and Assertion of Qualified
Immunity” (Dkt. No. 83) filed by Defendant Humberto (“Bobby”) Rodriguez.1 This action filed
in state court on January 30, 2012, and removed to this Court on February 12, 2012, arises from
certain Plaintiffs’ involvement with a failed petition to recall four Commissioners of the
Defendant City of San Juan, Texas (“the City”) “due to inefficiency and mismanagement of city
affairs.” (Dkt. No. 1 at ¶ 13).2 Even after successive amendments to their complaint, Plaintiffs’
allegations are sprawling. The Court’s best summary of Plaintiffs’ Sixth Amended Complaint is
that Plaintiffs Ruben Navarro, Gloria Martinez, Yolanda Alvarado, and Ramiro Trevino
(collectively, “Recall Plaintiffs”) initiated the recall petition under the authority of the City
Charter in the fall of 2010. (Dkt. No. 104 at ¶ 13; see also ¶ 72). Plaintiffs allege that
Defendants Rodriguez, J. Jerry Munoz, Ricardo Tamez, Rodolfo Luna, and Juan Gonzalez then
worked individually and in concert with one another, and with others, to undermine Recall
1
Numerous other motions for summary judgment are also pending, and will be addressed separately.
See (Dkt. Nos. 26, 60, 79, 84, 85, 88, 94).
2
Plaintiffs are no longer pursuing this action against any Commissioner. See (Dkt. No. 100).
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Plaintiffs’ efforts. Defendants’ own efforts allegedly took advantage of a requirement in the City
Charter that the petition “have an affidavit of the circulator stating that he, and he only,
personally circulated the [petition]…, that all signatures were made in his presence, and that he
believes them to be the genuine signatures of the persons whose names they purport to be.” Id.
at ¶ 15. Plaintiffs admit that J.J. Garcia, a “close friend” of one of the Commissioners targeted
by the recall petition, assisted Recall Plaintiffs in circulating the petition. Id. at ¶¶ 14, 22.3
Plaintiffs allege that Garcia’s real motive was to undermine the petition “by lying to the
[signers]…that their signatures were needed for a petition to the City to issue a permit for a taco
stand.” Id. at ¶ 14; see also ¶ 22. On or about November 22, 2010, Recall Plaintiffs met with
Plaintiff and notary public Elisa Sanchez (“Notary Sanchez”) for the purpose of notarizing the
“authenticity affidavits” required by the City Charter. Id. at ¶ 15. Recall Plaintiffs submitted the
petition, supported by the authenticity affidavits and 1,438 signatures, to City Secretary
Rodriguez on December 3, 2010. Id. at ¶ 16. In alleged contravention of the City Charter,
Rodriguez forwarded the list of signers to City Attorney Munoz on December 8, 2010. Id. at ¶
18. On the same date, Munoz gave private investigator Tamez the assignment of visiting
targeted signers to obtain their signatures on pre-made affidavits stating that they did not intend
to sign the recall petition. Id. at ¶¶ 18, 19. Tamez allegedly used “coercive tactics” to obtain 51
signatures on the pre-made affidavits. Id. at ¶ 26. On December 23, 2010, Tamez reported to
Luna, a Sergeant with the City Police Department, that Tamez “discovered while obtaining
voters’ signatures…that the voters were ‘misled, lied [to], deceived, their signatures were forged,
and some never met with circulators….’” Id. at ¶ 19.
On January 3, 2011, Rodriguez provided written notice to Recall Plaintiffs of his
3
The Court denied Plaintiffs’ motion for leave to add J.J. Garcia as a defendant to this action. (Dkt. No.
64).
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determination that less than the required number of qualified voters had signed the recall
petition. Id. at ¶ 23. Plaintiffs allege that only 83 of the 489 voters disqualified by Rodriguez
were in fact not qualified to sign the petition. Id. at ¶ 25. Plaintiffs also complain that the “lies”
allegedly uncovered by Tamez were those told by Garcia, and that Tamez reported as “forged”
those signatures that had been signed with permission. Id. at ¶ 74. Further, approximately 29 of
the 51 persons who signed the pre-made affidavits “retracted” their signatures on the grounds
that Tamez had coerced them to sign. Id. at ¶ 26. On January 13, 2011, Recall Plaintiffs
submitted an amended recall petition with 1,418 signatures. Id. at ¶ 27. Plaintiffs allege that
Rodriguez’s failure to take any action on the amended petition again contravened the
requirements of the City Charter. Id.
Meanwhile, the City Police Department through its Chief, Gonzalez, and through
Sergeant Luna, was conducting a criminal investigation into Recall Plaintiffs and Notary
Sanchez. Id. at ¶¶ 28, 29. On or about January 30, 2011, with Gonzalez’s support, Luna
requested and obtained warrants from City Magistrate Ricardo Perez for the arrests of Recall
Plaintiffs and Notary Sanchez on multiple counts of the Texas felony offense of tampering with a
governmental record. Id. at ¶¶ 30, 31, 38.4 Gonzalez and Luna then gathered a team of City
police officers and law enforcement officers from other agencies to begin serving the warrants.
Id. at ¶ 32. Recall Plaintiff Martinez and the Navarro Plaintiffs,5 Alvarado Plaintiffs,6 and
Sanchez Plaintiffs7 all complain of conduct by officers during the service of the warrants. Id. at
¶¶ 33-35, 37. Subsequent to the arrests of Recall Plaintiffs and Notary Sanchez, Magistrate
4
The Court denied Plaintiffs’ motion for leave to add Magistrate Perez as a defendant to this action.
(Dkt. No. 64).
5
The Navarro Plaintiffs are Recall Plaintiff Navarro and Minerva Navarro, individually and as next
friend of M.V.N.; Preston R. Navarro; and Brandon R. Navarro.
6
The Alvarado Plaintiffs are Juan Luis Alvarado and Sandy Alvarado, but do not include Recall Plaintiff
Alvarado.
7
The Sanchez Plaintiffs are Notary Sanchez and Cesar Jaime Sanchez.
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Perez set bail bond conditions which included “staying away from any city employees, not
engaging in any similar conduct, not associating with any of the other criminally accused…, and
staying 500-feet away from any elected official.” Id. at ¶ 38. On September 14, 2011, a grand
jury returned a “no bill” on all charges against Recall Plaintiffs and Notary Sanchez. Id. at ¶ 42.
On these and additional factual bases, pursuant to 42 U.S.C. § 1983,8 Plaintiffs seek to
hold Defendants liable for violating and conspiring to violate Plaintiffs’ rights under the First,
Fourth, Fifth, and Fourteenth Amendments to the U.S. Constitution. Id. at §§ V-VIII, XI.
Pursuant to 28 U.S.C. § 2201, Plaintiffs seek a declaratory judgment that the arrest warrant form
used by the City for longer than ten years, and by Luna in requesting and obtaining warrants in
this case, violates Texas Code of Criminal Procedure article 15.02 and the Fourth Amendment.
Id. at §§ IX, XI. Recall Plaintiffs and Notary Sanchez also seek relief in the form of expunction
of their arrest records “due to deprivation of constitutional rights within the meaning of 42
U.S.C. § 1983.” Id. at §§ X, XI. Finally, Plaintiffs seek to recover attorneys’ fees under 42
U.S.C. § 1988. Id. at § XI.
The instant Motion characterizes Plaintiffs’ complaint against Rodriguez, sued in his
individual capacity, as involving only “his actions as City Secretary in declaring the recall
petition insufficient,” and assert that Plaintiffs lack evidence to support any of the asserted §
1983 violations and requests for relief. (Dkt. No. 83). Rodriguez also asserts the defense of
qualified immunity to the claims against him. Id. Upon consideration of the Motion, responsive
briefing, and summary judgment evidence, in light of the relevant law, the Court finds that the
Motion must be granted for the following reasons.
8
Plaintiffs’ complaint also makes two references to 42 U.S.C. § 1985, but does not assert any cause of
action under this section. (Dkt. No. 104 at ¶¶ 1, 38; see § VIII).
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II.
Rodriguez’s Motion for Summary Judgment
A.
Standard of Review
A district court must grant summary judgment when there is no genuine dispute as to any
material fact and the moving party is entitled to judgment as a matter of law. FED. R. CIV. P.
56(a). A fact is material if it might affect the outcome of the lawsuit under the governing law,
and is genuinely in dispute only if a reasonable jury could return a verdict for the nonmoving
party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A party moving for summary
judgment has the initial responsibility of informing the court of the basis for its motion and
identifying those portions of the pleadings and materials in the record, if any, which it believes
demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986); FED. R. CIV. P. 56(a), (c). Once the moving party carries its burden, the
burden shifts to the nonmovant to go beyond the pleadings and provide specific facts showing
the existence of a genuine issue for trial. Celotex, 477 U.S. at 324; FED. R. CIV. P. 56(c). In
conducting its review of the summary judgment record, the court “may not make credibility
determinations or weigh the evidence” and must resolve doubts and reasonable inferences
regarding the facts in favor of the nonmoving party. Reeves v. Sanderson Plumbing Prods., Inc.,
530 U.S. 133, 150 (2000); Anderson, 477 U.S. at 255; Dean v. City of Shreveport, 438 F.3d 448,
454 (5th Cir. 2006).
However, the nonmovant cannot satisfy its burden with “conclusory
allegations, speculation, and unsubstantiated assertions which are either entirely unsupported, or
supported by a mere scintilla of evidence.” Chaney v. Dreyfus Serv. Corp., 595 F.3d 219, 229
(5th Cir. 2010); see also Brown v. City of Houston, 337 F.3d 539, 541 (5th Cir. 2003)
(“Unsubstantiated assertions, improbable inferences, and unsupported speculation are not
sufficient to defeat a motion for summary judgment.”).
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B.
Overview of Applicable Law
Section 1983 provides a claim against any “person” who, “under color of any statute,
ordinance, regulation, custom, or usage, of any State,” violates another’s rights under the U.S.
Constitution. 42 U.S.C. § 1983; e.g., Whitley v. Hanna, 726 F.3d 631, 638 (5th Cir. 2013). Thus,
a § 1983 claim has two main elements: (1) the violation of a federal constitutional right (2) by a
person acting under color of state law. See Whitley, 726 F.3d at 638. A plaintiff may bring a §
1983 claim against a person in his individual or official capacity, or against a local government
entity. Goodman v. Harris Cnty., 571 F.3d 388, 395 (5th Cir. 2009); Monell v. Dep’t of Soc.
Servs., 436 U.S. 658, 690 (1978) (municipalities and other local government units are “persons”
subject to suit under § 1983). A defendant sued in his individual capacity may assert the defense
of qualified immunity, a doctrine that “protects government officials from civil damages liability
when their actions could reasonably have been believed to be legal.” Whitley, 726 F.3d at 638
(quoting Morgan v. Swanson, 659 F.3d 359, 370 (5th Cir. 2011) (en banc)) (internal quotations
omitted). “Qualified immunity gives government officials breathing room to make reasonable
but mistaken judgments about open legal questions,” and protects “‘all but the plainly
incompetent or those who knowingly violate the law.’” Ashcroft v. al-Kidd, 131 S.Ct. 2074,
2085 (2011) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). A plaintiff seeking to
overcome a qualified immunity defense must show that (1) the defendant violated a federal
constitutional right and (2) that the right was “clearly established” at the time of the challenged
conduct. Whitley, 726 F.3d at 638 (quoting al-Kidd, 131 S.Ct. at 2080). A court has discretion
to decide which prong to consider first. Id. A right is clearly established when “the contours of
the right [are] sufficiently clear [such] that a reasonable official would understand that what he is
doing violates that right.” Morgan, 748 F.3d at 244 (quoting Anderson v. Creighton, 483 U.S.
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635, 640 (1987)) (internal quotations omitted).
C.
Fourth Amendment and Due Process Claims and Requests for Declaratory
Judgment and Expunction
Plaintiffs make no response to Rodriguez’s request for summary judgment on any claim
that he violated any Plaintiff’s (1) Fourth Amendment rights to be free from unlawful search and
seizure, false arrest, and excessive force; or (2) Fifth and Fourteenth Amendment rights to be
free from the deprivation of liberty without due process. (Dkt. No. 83; see Dkt. No. 107). The
Court agrees with Rodriguez that the focus of Plaintiffs’ allegations and evidence are
Rodriguez’s actions (or inaction) as City Secretary upon receipt of the initial and amended recall
petitions, and Rodriguez has presented his deposition testimony that he had no part in the
decision to have any Plaintiff arrested or charged with any crime. See (Depo D1 at pp. 158-59).9
As discussed herein, Plaintiffs take the position that Rodriguez aided the criminal investigation
that led to the issuance of warrants and certain Plaintiffs’ arrests by giving Munoz the list of
petition signers, but any connection between Rodriguez’s action and the asserted Fourth
Amendment and due process violations is too conjectural and remote to defeat summary
judgment. See (Dkt. No. 107). Therefore, the Court will grant Rodriguez’s Motion with respect
to any claim that he violated the Fourth Amendment and due process rights of any Plaintiff.
Plaintiffs’ requests for a declaratory judgment that the City’s arrest warrant form is
unconstitutional, and for expunction of certain Plaintiffs’ arrest records, cannot be obtained from
this Defendant or on the basis of any constitutional violation committed by him. Therefore, the
Court will also enter summary judgment in his favor on these requests for relief.
9
Rodriguez submitted his summary judgment evidence in CD form. The Court’s docket does not
reference the CD but does include Rodriguez’s summary and index of the evidence contained therein.
(Dkt. No. 86). The Court will use the abbreviations provided in the index when citing to the evidence.
7 / 20
D.
First Amendment Claims
1.
Overview of Applicable Law
In relevant part, the First Amendment provides that “Congress shall make no
law…abridging the freedom of speech…or the right of the people peaceably to assemble, and to
petition the Government for a redress of grievances.” U.S. CONST. amend. I. This prohibition is
made applicable to the States through the Fourteenth Amendment. E.g., Meyer v. Grant, 486
U.S. 414, 420 (1988). Further, it encompasses “not only direct limits on individual speech but
also adverse governmental action against an individual in retaliation for the exercise of protected
speech activities.” Keenan v. Tejeda, 290 F.3d 252, 258 (5th Cir. 2002) (citing Colson v.
Grohman, 174 F.3d 498, 508 (5th Cir. 1999)). This is because “if government officials were
permitted to impose serious penalties in retaliation for an individual’s speech, then the
government would be able to stymie or inhibit his exercise of rights in the future and thus obtain
indirectly a result that it could not command directly.” Id. (citing Colson, 174 F.3d at 509-10;
Perry v. Sindermann, 408 U.S. 593, 597 (1972)). Where, as here, a case “does not involve an
employment or other contractual relationship between the plaintiff[ ] and the governmental
official[ ],” a First Amendment retaliation claim has the following three elements: (1) the
plaintiff was engaged in constitutionally protected activity; (2) the defendant’s actions caused the
plaintiff to suffer an injury “that would chill a person of ordinary firmness from continuing to
engage in that activity,” and (3) the defendant’s adverse actions were substantially motivated
against the plaintiff’s exercise of constitutionally protected conduct. Id.
2.
First Amendment Claims against Rodriguez and Overview of Parties’ Arguments
for and against Summary Judgment
Recall Plaintiffs and Notary Sanchez (for purposes of the following sections, “Plaintiffs”)
assert two First Amendment causes of action for: (1) violation of their First Amendment rights to
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freedom of speech, freedom of association, and right to petition; and (2) retaliation for the
exercise of those rights. (Dkt. No. 104 at §§ VI-A, V-B).10 As to Rodriguez, Plaintiffs appear to
allege that his actionable conduct consists of his failure to follow the City Charter upon receipt of
the initial and amended recall petitions, for the intended purpose of ensuring the failure of the
petition. See id. at ¶¶ 16-18, 23-25, 27, 47. Rodriguez does not appear to dispute that the alleged
protected activity—the petition to recall four City Commissioners “due to inefficiency and
mismanagement of city affairs,” circulated and submitted through association with one another
and with voters—is protected by the First Amendment. See (Dkt. No. 83); Buckley v. Am.
Constitutional Law Found., 525 U.S. 182, 186 (1999) (“Petition circulation…is core political
speech because it involves interactive communication concerning political change.”) (quoting
Meyer, 486 U.S. at 422) (internal quotations omitted); Voting for Am., Inc. v. Andrade, 488 F.
App’x 890, 898 n.13 (5th Cir. 2012) (“The circulation and submission of an initiative petition is
closely intertwined with the underlying political ideas put forth by the petition. The petition
itself is the protected speech. Moreover, the very nature of a petition process requires association
between the third-party circulator and the individuals agreeing to sign.”) (citing Meyer, 486 U.S.
at 422) (emphasis in original). However, his Motion asserts that the record establishes no
violation of this right because Rodriguez did not prevent Plaintiffs from circulating and
submitting the petition. (Dkt. No. 83). Further, he committed no First Amendment violation or
retaliation, and is entitled to qualified immunity as to the same, since “his actions were consistent
with the City Charter and the information registered with the Secretary of State, and Plaintiffs
have no evidence to establish otherwise.” Id. In response, Plaintiffs purport to show that
Rodriguez’s actions did not accord with the Charter, and that he disqualified legally qualified
voters, all in violation of the First Amendment. (Dkt. No. 107).
10
The remaining Plaintiffs do not assert causes of action for violation of their First Amendment rights.
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3.
Rodriguez’s Summary Judgment Evidence
a.
City Charter Provisions
Rodriguez presents evidence that on or about December 3, 2010, Recall Plaintiffs
submitted an “Original Petition for Recall Election” of City Commissioners Bob Garza, Lupe
Rodriguez, Armando Garza, and Heriberto Suarez. (Aff 1; Depo D1 at p. 21, Exhs. 3, 5).
Section 11.07 of the “Home Rule Charter of the City of San Juan” provides as follows:
SECTION 11.07
POWER OF RECALL:
The people of the City reserve the power to recall any elected officer of the City
and may exercise such power by filing with the City Secretary a petition signed by
at least 10% of the qualified voters in the last City election, but not less than two
hundred (200) voters, demanding the removal of such elected officers. The
petition shall be signed and verified in the manner required for an initiative
petition.
(Aff 1-A at § 11.07) (emphasis added). Section 11.03 sets forth the form a petition must take,
stating in relevant part:
SECTION 11.03
FORM OF PETITIONS:
[E]ach signer shall sign his name in ink or indelible pencil, together with a
notation showing his residence address. No signature shall be counted where
there is reason to believe it is not the actual signature of the purported signer or
that it is a duplication of name and no signature shall be counted unless the
residence address of the signer is shown. Attached to each separate petition
paper there shall be an affidavit of the circulator thereof that he, and he only,
personally, circulated the foregoing paper, that it bears a stated number of
signatures, that all signatures appended thereto were made in his presence, and
that he believes them to be the genuine signatures of the persons whose names
they purport to be.
Id. at § 11.03 (emphasis added). The ensuing section 11.04 describes the City Secretary’s duties
upon receipt of a petition: within thirty (30) days of its filing, he “shall determine whether the
[petition] is properly signed by the requisite number of qualified voters,” disqualify any signers
found not qualified, and certify the result to the City Commission at its next regular meeting. Id.
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at § 11.04; see also § 11.08 (§ 11.04 “shall apply to recall petitions”). If the Secretary finds the
petition insufficient, he must notify the filer and allow the petition to be amended within ten (10)
days. Id. at § 11.04. Within thirty (30) days of the filing of an amended petition, the Secretary
“shall examine the amended petition and certify as to its sufficiency.” Id. If the amended
petition is still found insufficient, “no further proceedings shall be had with regard to it.” Id.
b.
Rodriguez’s Actions upon Receipt of Recall Petition
Rodriguez’s affidavit states that upon its submission, Recall Plaintiffs’ petition “became
an official document or record of the City of San Juan.” (Aff 1). Its submission also triggered
Rodriguez’s duties as City Secretary under the Charter. See id. Rodriguez had previously
received the advice of outside legal counsel, Bradford Bullock, that the number of signatures
necessary to proceed with a recall petition, i.e., 10% of the qualified voters in the last City
election, was 1,414. (Aff 1-B; Depo D1 at pp. 21-23, 42-43). Rodriguez believed that further
assistance was needed from “an expert in these kinds of petitions,” Alan Bojorquez, and spoke to
Munoz about reaching out to Bojorquez. (Depo D1 at pp. 33-34). Munoz did not advise
Rodriguez on the interpretation of the Charter, as both agreed that they needed independent
advice. Id. at p. 34. Rodriguez testified that he “wanted to make sure that we were transparent
and we were given the best advice,” “that the petitioners were treated fairly and that the City was
treated fairly,” “that I myself not choose sides,” and that “we followed the law.” Id. at pp. 34-35,
151.
Guided by the advice of outside legal counsel regarding the standards that needed to be
met for each signature, Rodriguez reviewed the list of petition signers to determine whether the
signers were registered voters in the City of San Juan. (Aff 1); id. at pp. 72-73. To make this
determination, Rodriguez used the Secretary of State election website, which requires a voter
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registration number, Texas driver’s license number, and/or name and date of birth to verify
whether a person is a registered voter. (Aff 1). Rodriguez looked to the petition for this
information, along with the signer’s precinct number and address. Id. Bullock separately
reviewed the petition and both concluded that it lacked the requisite number of qualified voter
signatures. (Depo D1 at p. 73).
By letter dated January 3, 2011, Rodriguez notified Plaintiffs’ counsel of the deficiency
and that they had ten days from the date of the letter to file an amended petition. (Aff 1-C). An
email dated February 11, 2011 from Bullock to Rodriguez indicates Bullock’s findings that even
if all 77 of the additional signatures submitted by Plaintiffs were valid, Plaintiffs still had not
obtained the requisite number of signatures. (Aff 1-D). Rodriguez therefore notified Plaintiffs’
counsel by letter dated February 14, 2011 that “[p]ursuant to [section] 11.04 of the City Charter
the amended petition is found to be insufficient, [and] no further proceedings shall be had with
regard to the December 3, 2010 recall petition.” (Aff 1-E).
Rodriguez’s affidavit admits that one of the signers he disqualified was Recall Plaintiff
Navarro, due to “the lack of correct information in the petition to identify her as a registered
voter.” (Aff 1). Rodriguez explains that he first determined that Navarro “did not provide the
correct voter identification number or driver’s license number listed by the Secretary of State for
her name.” Id. He then referenced her name and date of birth, which reflected that she was
registered to vote in Precinct 118 rather than the precinct listed for her in the petition, Precinct 4.
Id.
Rodriguez testified that the Commissioners who were the subject of the petition “stopped
by” at different times to look at the petition and to see the names on the list, and that Rodriguez
showed the petition to them. Id. at pp. 97-98. He recalled Commissioner Suarez expressing his
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concern that one of the signers was related to Suarez, and that Rodriguez responded, “[N]othing I
can do about that.” Id. at p. 99.
c.
Plaintiffs’ Testimony Regarding Rodriguez’s Actions
Recall Plaintiffs’ deposition excerpts submitted by Rodriguez provide the following
testimony regarding this Defendant’s actions during the recall process. Navarro complained that
Rodriguez “released government documents.”
complaint about Rodriguez.
(Depo P1 at pp. 55-56).
(Depo P3 at p. 57).
Martinez had no
Alvarado testified that Rodriguez
“disqualif[ied] voters that were registered voters and had voted for many years,” such as Recall
Plaintiff Navarro. (Depo P4 at pp. 17, 99). Trevino complained of “ridicule” and “harassment”
by the City Secretary and others, but pointed to no specific instances of harassment by
Rodriguez. (Depo P7 at pp. 25, 27).
4.
Plaintiffs’ Summary Judgment Evidence
Plaintiffs also submit a copy of the City Charter and cite to an additional provision which
states in relevant part:
SECTION 11.01
POWER OF INITIATIVE
The people of the City reserve the power of direct legislation by initiative, and in
the exercise of such power may propose any ordinance.... Any initiated ordinance
may be submitted to the City Commission by a petition signed by qualified voters
of the City equal in number to at least 10% of the qualified voters voting the last
City election, but not less than two hundred (200 voters).
(Dkt. No. 113, Exh. A).
Plaintiffs’ evidence also includes excerpts from Rodriguez’s deposition. (Dkt. No. 115,
Exh. D). The testimony highlighted by Plaintiffs’ response includes Rodriguez’s stated belief
that the Charter is “vague” and “needs to be amended in some…areas.” Id. at p. 148; see (Dkt.
No. 107). Plaintiffs also point to Rodriguez’s admissions that he discussed the recall petition
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with City Attorney Munoz and provided copies of the petition’s “signature sheets” to Munoz,
and that he did not request updated voter records from the County elections department to aid
him in reviewing the petition signatures. (Dkt. No. 115, Exh. D at pp. 93, 101-04, 126-27, 17576). When questioned as to why he disqualified Recall Plaintiff Navarro, Rodriguez responded
that he made the determination based on the information given and “would have to go back and
look as to why that happened.” Id. at pp. 187-88. Counsel further inquired whether Rodriguez
could have requested that a City police officer visit Navarro to verify her signature, to which
Rodriguez responded in the affirmative but qualified that he “would have had to [do] that with a
lot of other folks, too.” Id. at p. 191. Finally, Plaintiffs point to Rodriguez’s admission that the
Commissioners subject to the attempted recall were in office at the time of Rodriguez’s hiring.
Id. at p. 166. When asked whether he thought that his job would be in jeopardy if the recall
succeeded, Rodriguez responded, “I think anytime that you have a new commission, your job, as
being an appointed official, there’s that—that reality that that could happen….” Id.
Plaintiffs also submit the affidavits of Recall Plaintiffs Trevino and Alvarado stating that
“the City Secretary took more than the 30 days allowed by the city charter to notify us that we
did not meet the requisite number of voters”; specifically, they complain that Rodriguez provided
notice 32 days after submission of the petition, and that he did so “intentionally…to keep
us…from successfully completing the recall process.” (Dkt. No. 113, Exh. B). Alvarado further
attests to her belief that Rodriguez provided Munoz with a copy of the recall petition signatures
“so that…Munoz would begin his criminal investigation against me and against the other [Recall
Plaintiffs].” Id.
Plaintiffs submit invoices from private investigator Tamez reflecting his
December 8, 2010 hiring by Munoz, and that Tamez conducted interviews and obtained
affidavits of recall petition signers through December 15, 2010. (Dkt. No. 115, Exh. E).
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Recall Plaintiff Navarro’s affidavit explains that she has resided at the same address in
the City of San Juan for ten years, and that she is an “active voter” who has voted in City
elections for over 31 years. (Dkt. No. 114, Exh. C). According to Navarro, she has “never had a
problem being allowed to vote” since she has “always kept [her] information current with the
election department.”
Id.
Nonetheless, her voluntary signature on the recall petition was
disqualified for reasons unknown to her, although she appears to offer a potential reason: she
states that “there is another voter in this City…whose name is Minerva O. Navarro.” Id.11
Navarro complains that Rodriguez “did not contact me by telephone or in person nor did I
receive a call from any employee from City Hall attempting to confirm my identity and voter
status.” Id. She further expresses her belief that Rodriguez “failed to do his job and failed in his
duties in disqualifying me from the Recall Petition.” Id.
Plaintiffs also submit numerous other affidavits of persons identifying themselves as
signers of the recall petition, and who state that they signed the petition “freely, voluntarily and
because I want the City of San Juan to hold a recall election of those City Commissioners who
are named in the Recall Petition.” Id. All but one of the affidavits state that “[m]y signature was
disqualified without my consent.” Id.
Finally, Plaintiffs present a copy of the minutes from the December 21, 2010 City
Commission meeting, and draw the Court’s attention to Munoz’s recommendation that
Rodriguez be allowed “to proceed as necessary [with] anything he would need to verify the
signatures on the recall petition.” (Dkt. No. 116, Exh. F). When the Mayor then “asked if
decisions that are needed could be presented to them,” Munoz responded, “how could
[Rodriguez do that if he] only has (30) days and also [Recall Plaintiff] Trevino filed a lawsuit
with a restraining order keeping [Rodriguez] from doing his job.”
11
Recall Plaintiff Minerva Navarro’s middle initial is “J.” (Dkt. No. 114, Exh. C).
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Id.
Munoz then
recommended that Rodriguez be allowed to “do[ ] whatever he needs to do by following the city
charter…to validate and verify all the signatures on the recall petition.” Id. When asked in his
deposition what Munoz’s words meant to him, Rodriguez responded, “To continue doing what I
had been doing…when I was reviewing the signatures.” (Dkt. No. 115, Exh. D. at p. 105).
5.
Rodriguez Entitled to Summary Judgment on First Amendment Claims
a.
No First Amendment Violation or Retaliation
Turning to the merits of Rodriguez’s Motion and the parties’ responsive briefing (Dkt.
Nos. 83, 107, 140), the Court finds that Rodriguez is entitled to summary judgment on Plaintiffs’
First Amendment claims against him. First, the Court agrees that Plaintiffs cannot show that
Rodriguez deprived them of their right to circulate and submit the petition because the record is
undisputed that they did so without interference from him; although Rodriguez allegedly
provided untimely notification that the first petition was deficient, he still gave Plaintiffs the time
allotted by the Charter to submit an amended petition, which they did. See (Dkt. No. 83). The
Court also agrees that the record does not raise a genuine fact issue on whether the means used
by Rodriguez to disqualify signers to the petition violated Plaintiffs’ right to petition or
constituted retaliation. See (Dkt. Nos. 83, 140). Plaintiffs advance the theory that a First
Amendment violation lies in Rodriguez’s failure to follow the Charter upon submission of the
petition, and in his intentional disqualification of legally qualified voters, but the evidence itself
does not support this theory. See (Dkt. No. 107).
b.
Rodriguez’s Actions under Charter
Plaintiffs’ response asserts that Rodriguez failed to apply § 11.01 of the Charter, but this
provision applies to ordinances, and in any event contains the same requirement applicable to
recall petitions under § 11.07, the provision followed by Rodriguez: the petition must be signed
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by at least 10% of the qualified voters in the last City election. Plaintiffs also appear to argue
that the Charter required Rodriguez to determine whether each signer was a qualified voter
without consulting with Munoz or anyone else, and without “resort to a criminal investigation.”
The Court first notes that § 11.03 prohibits the counting of signatures “where there is reason to
believe it is not the actual signature of the purported signer,” a belief that apparently existed and
was investigated, although not by Rodriguez. Further, as the Charter itself does not specify how
to determine whether a signer is qualified, Rodriguez did not fail to follow the Charter by
speaking to City Attorney Munoz, consulting with outside counsel and an expert, and using
information from the election website of the Secretary of State to perform his duties. Although
Plaintiffs complain that Rodriguez could have employed other means for verifying signatures,
the Charter did not so require, and Plaintiffs’ suggestion that Rodriguez could have used City
police to verify Recall Plaintiff Navarro’s signature is baffling given Plaintiffs’ additional
challenges to police involvement in the recall process. Finally, Plaintiffs appear to assert that
Rodriguez violated § 11.04 by failing to notify Plaintiffs within 30 days that their initial petition
was insufficient, and by taking no action on the amended petition. However, the alleged two-day
delay in notification was inconsequential given that Rodriguez still allowed Plaintiffs the
requisite amount of time in which to submit their amended petition. When the amended petition
also lacked the required number of qualified voter signatures, Rodriguez complied with § 11.04
by taking no action on it. Plaintiffs have identified no Charter violation by Rodriguez, much less
any violation that raises the spectre of a First Amendment violation or retaliation.
c.
Rodriguez’s Disqualification of Signers to Petition
Plaintiffs also attempt to show that Rodriguez intentionally disqualified legally qualified
voters, but again, the record fails to raise a genuine fact issue on this point. Rodriguez presents
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evidence that he determined whether a signer was a qualified voter in the City of San Juan by
comparing identifying information provided in the petition with information obtained through
the Secretary of State election website. Notably, the evidence is uncontested that outside counsel
Bullock made his own determination, and both concluded that the initial and amended petitions
lacked the required number of qualified voter signatures. Through his affidavit, Rodriguez
explains that he disqualified Recall Plaintiff Navarro based on his determination that she had not
provided the correct voter identification number or driver’s license number listed by the
Secretary of State for her name. Further, a voter with her name and date of birth was registered
in a precinct different from the one specified in the petition. Plaintiffs present evidence that
Navarro has maintained the same address and voted in City elections without incident for many
years, and that Rodriguez could not explain in his deposition why he disqualified her signature,
but this evidence does not controvert the explanation provided in Rodriguez’s affidavit.
Moreover, Navarro’s own affidavit states that there is another City voter with the same first and
last name; to the extent that Rodriguez’s disqualification of Recall Plaintiff’s signature was a
mistake, it was not retaliatory. Plaintiffs also offer the affidavits of numerous persons stating
that they signed the petition voluntarily and that their signatures were disqualified without their
consent. However, the affiants’ intention at the time of signing, and that they were not consulted
prior to disqualification, does not contradict Rodriguez’s explanation that he used objective
means to verify whether they were in fact qualified voters. Plaintiffs also suggest that Rodriguez
made copies of the petition’s signature pages for Munoz in order “to help start a criminal
investigation,” but this theory is conjecture and does not carry the evidentiary weight necessary
to defeat summary judgment. Finally, the simple fact that Rodriguez was hired by a Commission
that included those individuals subject to the attempted recall does not transform his actions into
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unconstitutional ones.
d.
Rodriguez Entitled to Qualified Immunity
In sum, the Court finds that the record does not place in genuine dispute whether
Rodriguez’s actions or inaction as City Secretary violated Plaintiffs’ right to petition, caused
Plaintiffs to suffer any injury that would “chill a person of ordinary firmness” from exercising
the right to petition, or were substantially motivated against the exercise of that right. Moreover,
even if it did, the Court finds that the “contours” of Plaintiffs’ right to petition were not
sufficiently clear such that a reasonable official would understand that the particular means
chosen by Rodriguez to exercise his duties under the Charter would violate that right. The Court
concludes that Rodriguez is entitled to the defense of qualified immunity, and therefore to
summary judgment on any First Amendment claim against him.
E.
Conspiracy to Violate § 1983
Plaintiffs assert a cause of action against all Defendants under § 1983 for conspiracy to
commit the constitutional violations asserted elsewhere in their pleading. (Dkt. No. 104 at §
VIII). To prevail on this claim, a plaintiff must show: (1) an agreement between private and
public defendants to commit an illegal act; and (2) an actual deprivation of constitutional rights.
Cinel v. Connick, 15 F.3d 1338, 1343 (5th Cir. 1994). As Rodriguez’s Motion points out, “mere
conclusory allegations of conspiracy cannot, absent reference to material facts, state a substantial
claim of federal conspiracy.” McAfee v. 5th Cir. Judges, 884 F.2d 221, 222 (5th Cir. 1989)
(quoting Brinkmann v. Johnston, 793 F.2d 111, 113 (5th Cir. 1986)) (internal quotations omitted);
(Dkt. No. 83). Here, the record does not raise a genuine issue of material fact on whether
Rodriguez acted pursuant to a conspiracy to violate the constitutional right of any Plaintiff. As
explained supra, his connection to the asserted Fourth Amendment and due process violations is
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too conjectural and remote, and the suggestion that Rodriguez conspired with anyone to deprive
Plaintiffs of their First Amendment right to petition, or to retaliate against them for the exercise
of that right, is similarly conjectural. Therefore, the Court will grant Rodriguez’s request for
summary judgment on Plaintiffs’ conspiracy claim against him.
III.
Conclusion
For the foregoing reasons, the Court hereby ORDERS that Defendant Rodriguez’s
“Motion for Summary Judgment and Assertion of Qualified Immunity” (Dkt. No. 83) is
GRANTED.
SO ORDERED this 13th day of June, 2014, at McAllen, Texas.
___________________________________
Randy Crane
United States District Judge
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