Caldera v. Diaz et al
ORDER ADOPTING REPORT AND RECOMMENDATIONS ORDERED that the Court DENIES Defendant Orlando Diaz and Defendant William Daviss motions to dismiss Calderas amended complaint under Rule 12(b)(6) (ECF No. 62, 61) with regard to Calderas Fourth Amendment an d state-law assault claims.IT IS FURTHER ORDERED that the Court GRANTS Defendant Orlando Diaz and Defendant William Daviss motions to dismiss (ECF No. 62, 61) with regard to Calderas First Amendment claims and DISMISSES WITH PREJUDICE Calderas First Amendment claims, 16 Denies Motion to Dismiss filed by Orlando Diaz, 39 Report and Recommendations, 73 , IT IS FINALLY ORDERED that this case is returned to the Magistrate Judge for further proceedings. Signed by Judge Kathleen Cardone. (mt) Modified on 1/28/2016 (bg2).
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
EL PASO DIVISION
OFFICER ORLANDO DIAZ,
OFFICER JOSE ORTIZ,1 and
OFFICER W. DAVIS,
ORDER ACCEPTING THE REPORT AND RECOMMENDATION OF THE
This matter is before the Court on Defendant Officer Orlando Diaz’s motion to dismiss
Plaintiff David Caldera’s original complaint under Federal Rule of Civil Procedure 12(b)(6) (ECF
No. 16), Diaz’s motion to dismiss Caldera’s amended complaint under Rule 12(b)(6) (ECF No.
62), and Defendant Officer William Davis’s motion to dismiss Caldera’s amended complaint
under Rule 12(b)(6) (ECF No. 61).
In Caldera’s amended civil rights complaint under 42 U.S.C. 1983, he alleges that during
his arrest in El Paso, Texas, on March 19, 2014, Diaz and Davis — both on-duty police officers
employed by the City of El Paso Police Department — used excessive force, in violation of his
Fourth Amendment rights. Specifically, Caldera asserts that while restrained by handcuffs,
“Davis … began punching the left side of [his] jaw and ribs [and] Diaz … began assaulting [him]
The Court previously dismissed Caldera’s claims against Defendant Jose Ortiz. See
Order Accepting R&R Mag. J., Aug. 18, 2015, ECF No. 45.
with kicks and punches.”2 Caldera also maintains that Diaz and Davis denied him his right to free
speech, in violation of his First Amendment rights.3
In their motions to dismiss, Diaz and Davis assert an entitlement to the defense of qualified
immunity as to Caldera’s Fourth Amendment claims and the defense of justification as to
Caldera’s state-law assault claims. Diaz also contends Caldera fails to allege sufficient facts to
sustain his First Amendment claims.
In a report and recommendation (ECF No. 73), the United States Magistrate Judge to
whom the Court referred this matter proposes that the Court dismiss Diaz’s motion to dismiss
Caldera’s original complaint as moot.4 She reasons “when a motion to dismiss has been filed
against an original complaint which has been superseded by an amended complaint, the court
should deny the motion to dismiss the original complaint as moot.”5
The Magistrate Judge further proposes that the Court deny, in part, Diaz and Davis’s
motions to dismiss Caldera’s amended complaint. She explains “[a] two-prong inquiry is
conducted when determining whether a defendant is allowed to assert qualified immunity: 1)
‘whether the facts alleged, taken in the light most favorable to the plaintiff, show a violation of a
constitutional right’ and 2) ‘whether the violated constitutional right was clearly established at the
Pl.’s Am. Compl. 2, Aug. 28, 2015, ECF No. 51.
Id. at 3.
R & R 8, Nov. 20, 2015, ECF No. 73. See 28 U.S.C. ' 636(b)(1)(B) (2012) (permitting a
district court, on its own motion, to refer a pending matter to a United States Magistrate Judge for
a report and recommendation).
Id. (citing Michael v. Boutwell, No. 3:14-CV-00116-DMB-SAA, 2015 WL 728516, at *4
(N.D. Miss. Feb. 19, 2015) (collecting cases so holding)).
time in question.’”6 She then notes ‘“the Fifth Circuit has held on numerous occasions that an
officer violates clearly established Fourth Amendment law when he or she inflicts physical harm
upon a suspect that is handcuffed or otherwise subdued.’”7 The Magistrate Judge therefore finds
that Caldera “has alleged facts … that, taken as true, demonstrate a constitutional violation of
excessive force.”8 In light of this finding, she concludes that Diaz and Davis are not entitled to
qualified immunity and that the Court should deny their motions to dismiss Caldera’s Fourth
Amendment claims. Furthermore, based on the same reasoning, she also concludes that Diaz and
Davis are not entitled to the defense of justification as to Caldera’s state-law assault claims and
that the Court should deny their motions to dismiss these claims.9
With regard to Caldera’s First Amendment claims, the Magistrate Judge finds that he “fails
to raise any factual allegations … to state a cause of action.”10 Accordingly, she recommends that
the Court grant Diaz and Davis’s motions insofar as they seek to dismiss his First Amendment
The Magistrate Judge allowed the parties fourteen days to file written objections to her
proposed findings, conclusions, and recommendations.11 A party who files timely written
Id. at 7 (citing Wadsworth v. Hock, No. 3:10-CV-00220-O-BF, 2010 WL 4781157, at *2
(N.D. Tex. Nov. 4, 2010)).
Id. (citing Lozano v. Ortega, No. EP-14-CV-239-KC, 2014 WL 6611595, at *6 (W.D.
Tex. Nov. 19, 2014) (collecting cases)).
Id. at 13.
Id. at 16.
Id. at 17.
Id. at 20. See also 28 U.S.C. ' 636(b)(1) (2012) (“Within fourteen days after being
objections to a magistrate judge=s report is entitled to a “de novo” review of those portions of the
report to which the party objects.12 As to other portions of the report or when a party does not file
written objections, the Court applies a “clearly erroneous, abuse of discretion and contrary to law”
standard of review.13 After completing its review, the Court may accept, reject, or modify the
report, in whole or in part.14 To date, the parties have not responded to the report.15
After reviewing the report, the Court finds that the Magistrate Judge=s proposed findings of
fact and conclusions of law are neither clearly erroneous nor contrary to law.16 Therefore, the
Court enters the following orders:
served with a copy, any party may serve and file written objections to such proposed findings and
recommendations as provided by rules of court.”); Fed. R. Civ. P. 72(b)(2) (“Within 14 days after
being served with a copy of the recommended disposition, a party may serve and file specific
written objections to the proposed findings and recommendations.”).
See 28 U.S.C. ' 636(b)(1)(C) (“A judge of the court shall make a de novo determination
of those portions of the report or specified proposed findings or recommendations to which
objection is made.”); Fed. R. Civ. P. 72(b)(3) (“The district judge must determine de novo any part
of the magistrate judge=s disposition that has been properly objected to.”).
United States v. Wilson, 864 F.2d 1219, 1221 (5th Cir. 1989) (“[T]he >clearly erroneous,
abuse of discretion and contrary to law= standard of review ... is appropriate ... where there has
been no objection to the magistrate=s ruling.”).
See 28 U.S.C. ' 636(b)(1)(C) (“A judge of the court may accept, reject, or modify, in
whole or in part, the findings or recommendations made by the magistrate judge. The judge may
also receive further evidence or recommit the matter to the magistrate judge with instructions.”);
Fed. R. Civ. P. 72(b) (“The district judge may accept, reject, or modify the recommended
disposition; receive further evidence; or return the matter to the magistrate judge with
See Rodriguez v. Bowen, 857 F.2d 275, 276-77 (5th Cir. 1988) (“[A] party is not entitled
to de novo review of a magistrate=s finding and recommendations if objections are not raised in
writing by the aggrieved party ... after being served with a copy of the magistrate=s report.”).
Wilson, 864 F.2d at 1221.
IT IS ORDERED that the Court ACCEPTS the report and recommendation of the
Magistrate Judge (ECF No. 73).
IT IS FURTHER ORDERED that the Court DENIES AS MOOT Defendant Orlando
Diaz’s motion to dismiss Plaintiff David Caldera’s original complaint under Federal Rule of Civil
Procedure 12(b)(6) (ECF No. 16).
IT IS ALSO ORDERED that the Court DENIES Defendant Orlando Diaz and Defendant
William Davis’s motions to dismiss Caldera’s amended complaint under Rule 12(b)(6) (ECF No.
62, 61) with regard to Caldera’s Fourth Amendment and state-law assault claims.
IT IS FURTHER ORDERED that the Court GRANTS Defendant Orlando Diaz and
Defendant William Davis’s motions to dismiss (ECF No. 62, 61) with regard to Caldera’s First
Amendment claims and DISMISSES WITH PREJUDICE Caldera’s First Amendment claims.
IT IS FINALLY ORDERED that this case is returned to the Magistrate Judge for further
SIGNED this 28th day of January, 2016.
UNITED STATES DISTRICT JUDGE
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