Apodaca-Fisk v. Allen et al

Filing 45

MEMORANDUM ORDER GRANTING 40 Motion for Reconsideration ; TERMINATING 43 Motion to Extend Scheduling Order Deadlines; TERMINATING 43 Motion for Extension of Time to File; TERMINATING 32 Motion to Quash Signed by Judge David C Guaderrama. (mt)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
EL PASO DIVISION
WILLIAM APODACA-FISK,
Plaintiff,
v.
GREG ALLEN, in his official capacity as
Chief of the El Paso Police Department and
FRANCISCO BALDERRAMA, an El
Paso Police Department Officer in his
individual capacity,
Defendants.

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EP-19-CV-00259-DCG

MEMORANDUM ORDER
Presently pending before the Court is Defendants Chief Greg Allen and Officer Francisco
Balderrama’s (collectively, “Defendants”) “Joint Motion for Reconsideration and Brief in
Support” (ECF No. 40) (“Motion”) filed on January 11, 2021. Therein, Defendants ask the
Court to reconsider, under Federal Rule of Civil Procedure 54(b), the conclusions in its
“Memorandum Opinion and Order” (ECF No. 8) that Plaintiff William Apodaca-Fisk’s
(“Plaintiff”) sufficiently alleged the existence of an injury and a ripe actual controversy, and to
dismiss Plaintiff’s remaining claims against them. Mot. at 1, ECF No. 40. To date, Plaintiff
failed to file a responsive filing by the appropriate deadline, so the Court construes the motion as
unopposed.1 For the reasons that follow, the Court GRANTS Defendants’ motion.
I. BACKGROUND
A thorough recitation of Plaintiff’s allegations in his original and amended complaints
can be found in the Court’s December 21, 2019 Memorandum Opinion and Order. See Mem.

1

See W.D. Tex. Local R. CV-7(e) (providing that if no responsive filing is filed within the time
period prescribed, the Court may grant the pending motion as unopposed).

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Op. and Order at 1–6, ECF No. 38 [hereinafter “December 21st Order”]. In short, Plaintiff
claims that his alleged improper inclusion as a “criminal street gang member” in the TXGANG
database2 by Defendants injures him by: (1) violating his right to associate under the First
Amendment; and (2) attaching a stigma with legal disabilities (including deterring travel and
preventing him from exercising his Second Amendment rights) under the Fourteenth
Amendment’s Due Process Clause. Compl. at 1, ECF No. 1; Am. Compl. at 1, ECF No. 16.
On October 14, 2019, Defendants filed a motion to dismiss for failure to state a claim.
See Mot. to Dismiss, ECF No. 6. On January 13, 2020, the Court granted in part, denied in part
Defendants’ motion to dismiss. Mem. Op. and Order at 1. While it ruled that Plaintiff had failed
to sufficiently allege an injury on his First Amendment claims, the Court ruled that Plaintiff had
sufficiently alleged the existence of an injury and a ripe actual controversy on his “stigma-plus”
claims under the Due Process Clause. Id. at 10–11. In ruling as such, the Court relied on the
findings that Plaintiff’s allegations appeared to have sufficiently established that his inclusion in
the TXGANG database (1) “carrie[d] with it ‘a change of legal status’ where [Plaintiff] cannot
legally carry a firearm in his vehicle . . . , which he could otherwise legally do in the past”, id. at
18, ECF No. 8; and (2) presented Plaintiff with “a credible threat of prosecution” under the

2

The TXGANG database is a statewide repository of records related to criminal street gangs and
gang members. Article 67.054 of the Texas Code of Criminal Procedure sets forth the submission
criteria that Texas law enforcement uses to determine who can be classified as a criminal street gang
member in the database. See Tex. Code Crim. Proc. Ann. art. 67.054 (Vernon 2019).

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unlawful carry statute, Texas Penal Code § 46.02 (a-1)(2)(C)3, despite his concealed carry
permit4, id. at 21.
After Plaintiff filed his amended complaint to cure his First Amendment claims on May
26, 2020, Defendant Balderrama moved to dismiss Plaintiff’s amended First Amendment claims
again for lack of injury on October 13, 2020. See Def. Balderrama’s Mot. to Dismiss, ECF No.
27. On December 21, 2020, the Court granted the motion and dismissed Plaintiff’s First
Amendment claims after finding that Plaintiff failed to plead sufficient facts to establish how his
inclusion in the TXGANG database objectively burdened his right to associate. Dec. 21st Order
at 8. Specifically, the Court found that, considering the recent relevant rulings of the Texas
Court of Appeals in Amarillo in Becker v. State, 07-19-00286-CR, 2020 WL 4873870, (Tex.
App. Aug. 19, 2020), and Martin v. State, 07-19-00082-CR, 2020 WL 5790424 (Tex. App. Sept.
28, 2020), Plaintiff had failed to allege how Texas Penal Code § 46.02(a-1)(2)(C) and his
inclusion in the TXGANG database regulate, constrain, or compel any action that burdens his
right to associate (in part because he failed to establish a credible fear of prosecution), id. at 12–
20, and that even when construing Plaintiff’s allegations in his favor, his claimed injury was still
speculative and hypothetical, id. at 20–23.
In view of such ruling, the Court notified the parties of its intention to revisit its previous
ruling in its Memorandum Opinion and Order issued on January 13, 2020. See Dec. 21st Order

3

Under § 46.02(a-1)(2)(C) of the Texas Penal Code, a person commits an offense if the person:
(1) intentionally, knowingly, or recklessly carries on or about his or her person a handgun; (2) in a motor
vehicle or watercraft that is owned by the person or under the person's control; and (3) at any time in
which the person is a member of a criminal street gang as defined by § 71.01. In turn, section 71.01(d)
defines a criminal street gang as “three or more persons having a common identifying sign or symbol or
an identifiable leadership who continuously or regularly associate in the commission of criminal
activities.”
4

In his original and amended complaints, Plaintiff claims to hold a concealed carry permit from
New Mexico. Compl. ¶ 35; Am. Compl. ¶ 29.

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at 23–25. In particular, the Court stated that it wished to revisit its conclusions that Plaintiff
sufficiently alleged the existence of an injury and a ripe actual controversy resulting from his
inclusion in the TXGANG database because such conclusion may no longer be viable in light of
Martin and Becker. Id. Accordingly, the Court ordered Defendants to file their initial brief by
January 11, 2021, and further ordered Plaintiff to file a responsive brief “fourteen (14) days”
after Defendants filed their initial brief. Id. at 25 (bold in original).
On January 11, 2021, Defendants filed the instant motion in compliance with the Court’s
December 21st Order. On January 25, 2021, the deadline for Plaintiff to timely file his
responsive brief in compliance with the Court’s December 21st Order expired. On February 5,
2021, the Court ordered Plaintiff to show cause in writing by February 10, 2021, as to why he
failed to file his responsive brief in compliance with the Court’s December 21st Order. Order to
Show Cause at 3, ECF No. 44. The Court also ordered Plaintiff to file his responsive brief by
that same date. Id. The Court also expressly warned Plaintiff “THAT FURTHER FAILURE
COMPLY WITH THE COURT’S ORDERS, INCLUDING THIS ONE, MAY RESULT IN
SANCTIONS AND DISMISSAL OF PLAINTIFF’S CLAIMS AGAINST DEFENDANTS.”
Id. (bold in original). Nearly a week has passed since the Court issued its show cause order and
Plaintiff has yet to file both his explanation as to why he failed to comply with the Court’s
December 21st Order and his responsive brief.
II.

STANDARD

While the Federal Rules of Civil Procedure do not formally recognize the existence of
motions for reconsideration, St. Paul Mercury Ins. Co. v. Fair Grounds Co., 123 F.3d 336, 339
(5th Cir. 1997), courts customarily consider such motions under Rules 54(b), 59(e), or 60(b),
depending on the circumstances. Fishman Jackson PLLC v. Israely, 180 F. Supp. 3d 476, 481

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(N.D. Tex. 2016). Because Defendants move for the Court to reconsider an interlocutory order,
their motion is controlled by Rule 54(b). Austin v. Kroger Texas, L.P., 864 F.3d 326, 336 (5th
Cir. 2017). Specifically, Rule 54(b) provides in relevant part that
any order or other decision, however designated, that adjudicates fewer than all the
claims or the rights and liabilities of fewer than all the parties does not end the
action as to any of the claims or parties and may be revised at any time before the
entry of a judgment adjudicating all the claims and all the parties’ rights and
liabilities.
Fed. R. Civ. P. 54(b).
Although the precise standard for evaluating a motion to reconsider under Rule 54(b) is
unclear, “whether to grant . . . a motion to reconsider rests within the discretion of the court.”
Israely, 180 F. Supp. 3d at 481 (quoting Dos Santos v. Bell Helicopter Textron, Inc. District, 651
F.Supp.2d 550, 553 (N.D. Tex. 2009)). The standard for evaluating motions to reconsider under
Rule 54(b) “would appear to be less exacting than that imposed by Rules 59 and 60,” but courts
still consider the factors that inform the analysis under motions filed under those rules. Id.
(quoting Dos Santos, 651 F. Supp. 2d at 553). These factors include (1) the judgment is based
upon a manifest error of fact or law; (2) newly discovered or previously unavailable evidence
exists; (3) the initial decision was manifestly unjust; (4) counsel engaged in serious misconduct;
and (5) an intervening change in law alters the appropriate outcome. Livingston Downs Racing
Ass’n, Inc. v. Jefferson Downs Corp., 259 F. Supp. 2d 471, 475–76 (M.D. La. 2002). Similarly,
motions filed under Rule 54(b) are “not the proper vehicle for rehashing evidence, legal theories,
or arguments that could have been offered or raised before the entry of judgment,” Templet v.
HydroChem Inc., 367 F.3d 473, 479 (5th Cir. 2004), or to support old arguments that are merely
reconfigured, Resolution Trust Corp. v. Holmes, 846 F. Supp. 1310, 1316, n.18 (S.D. Tex. 1994).

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However, the Fifth Circuit has made clear that analysis under Rule 54(b) is different in
that its “approach to the interlocutory presentation of new arguments as the case evolves can be
more flexible, reflecting the ‘inherent power of the rendering district court to afford such relief
from interlocutory judgments as justice requires.” Austin, 864 F.3d at 336 (quoting Cobell v.
Jewell, 802 F.3d 12, 25–26 (D.C. Cir. 2015)). Such approach is centered on the rationale that
“although courts are concerned with principles of finality and judicial economy, the ultimate
responsibility of the federal courts, at all levels, is to reach the correct judgment under law.”
Adams v. United Ass’n. of Journeymen and Apprentices of the Plumbing and Pipefitting Indus. of
the U.S. and Canada, AFL-CIO, Loc. 198, --- F. Supp. 3d ---, CV 98-400-JWD-RLB, 2020 WL
6074627, at *2 (M.D. La. Oct. 15, 2020) (internal quotations omitted).
III.

DISCUSSION

By their motion, Defendants ask the Court to reconsider its conclusion that Plaintiff
sufficiently alleged the existence of an injury and a ripe actual controversy resulting from his
inclusion in the TXGANG database as a “criminal street gang member”. Mot. at 2–3 (quoting
Mem. Op. and Order at 21). Defendants contend the Court’s conclusion then “was based on
information not yet available” because the Texas Court of Appeals just recently issued its
relevant opinions on Becker and Martin. Mot. at 3. Defendants argue that these two state court
cases have resulted in intervening changes in the controlling case law related to the prosecution
of individuals under Texas Penal Code § 46.02(a-1)(2)(C), and that in light of such changes,
contrary to Plaintiff’s allegations in his original and amended complaints, Plaintiff no longer
suffers a credible threat of prosecution under the statute. Id. Hence, Defendants aver that the
Court must dismiss Plaintiff’s lawsuit because it is not ripe for declaratory judgment as it does
not sufficiently allege an injury and present an actual controversy. Id.

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After due consideration, the Court agrees with Defendants that Martin and Becker have
resulted in intervening changes in the controlling case law related to the prosecution of
individuals under § 46.02(a-1)(2)(C), and that in light of such changes, Plaintiff no longer suffers
a credible threat of prosecution under the statute. The Court first reconsiders its conclusion that
Plaintiff sufficiently alleged an injury-in-fact and then reconsiders its conclusion that he
sufficiently alleged a ripe actual controversy.
A. Injury.
As the Court noted in its Memorandum Opinion and Order, under Article III of the
Constitution, a plaintiff must establish standing to sue to satisfy the “Cases” and “Controversies”
requirement. Clapper v. Amnesty Int’l USA, 568 U.S. 398, 408 (2013). “To establish Article III
standing, a plaintiff must show (1) an ‘injury in fact,’ (2) a sufficient ‘causal connection between
the injury and the conduct complained of,’ and (3) a ‘likel[ihood] that the injury ‘will be
redressed by a favorable decision.’” Susan B. Anthony List v. Driehaus, 573 U.S. 149, 157–58
(2014) (citations omitted) (brackets in original). “A plaintiff can meet the standing requirements
when suit is brought under the Declaratory Judgment Act, 28 U.S.C. § 2201–2202, by
establishing ‘actual present harm or a significant possibility of future harm, . . . even though the
injury-in-fact has not yet been completed.” Bauer v. Texas, 341 F.3d 352, 357–58 (5th Cir.
2003) (internal citations omitted).
“For purposes of ruling on a motion to dismiss for want of standing, both the trial and
reviewing courts must accept as true all material allegations of the complaint, and must construe
the complaint in favor of the complaining party.” Warth v. Seldin, 422 U.S. 490, 501 (1975).
“The party invoking federal jurisdiction bears the burden of establishing these elements.” Lujan
v. Defenders of Wildlife, 504 U.S. 555, 561 (1992).

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To satisfy the injury prong to establish standing, the harm to plaintiff must have already
occurred or it must be likely to occur “imminently.” Defenders of Wildlife, 504 U.S. at 560.
“Imminent” means “certainly impending,” not just a mere “possible future.” Clapper, 568 U.S.
at 409; see also Bauer, 341 F.3d at 358 (“[T]o demonstrate that a case or controversy exists to
meet Article III standing requirement when a plaintiff is seeking injunctive or declaratory relief,
a plaintiff must allege facts from which it appears there is a substantial likelihood that he will
suffer injury in the future.” (citing City of Los Angeles v. Lyons, 461 U.S. 95, 111 (1983)). “At
the pleading stage, general factual allegations of injury resulting from the defendant’s conduct
may suffice, for on a motion to dismiss we presume that general allegations embrace those
specific facts that are necessary to support the claim.” Defenders of Wildlife, 504 U.S. at 561
(quoting Lujan v. National Wildlife Federation, 497 U.S. 871, 889 (1990)).
In its Memorandum Opinion and Order, the Court concluded that Plaintiff sufficiently
alleged the existence of an injury resulting from his inclusion in the TXGANG database. Mem.
Op. and Order at 18–19. In particular, the Court concluded, after drawing all inferences in favor
of Plaintiff, that it appeared that “individuals who have met the two criteria in Article 67.054 and
are inputted to the TXGANG database . . . can be arrested [under § 46.02 (a-1)(2)(C)] for a
period of at least five years”. Id. at 18. Hence, the Court concluded that despite his concealed
carry permit, Plaintiff had sufficiently alleged “‘a change of legal status’ where he cannot legally
carry a firearm in his vehicle . . . , which he could otherwise legally do in the past” and thus,
presented him with a “credible threat of prosecution.” Id. at 18–19.
However, while the instant case was pending, the Texas Court of Appeals decided Martin
and Becker. Martin provides that mere inclusion in the TXGANG database is not enough for the
prosecution to prove that an individual is “a member of a criminal street gang” for him to be

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convicted under § 46.02(a-1)(2)(C). Dec. 21st Order at 16 (citing Martin, 2020 WL 5790424 at
*4). On the other hand, Becker mentions in dicta that the plain language in Texas Penal Code §
46.15(b)(6), which expressly provides that “[s]ection 46.02 does not apply to a person who . . . is
carrying . . . [both] . . . a license issued under subchapter H, Chapter 411, Government Code, to
carry a handgun . . . and . . . a handgun . . . in a concealed manner . . . or . . . in a shoulder or belt
holster,” could potentially act as a statutory exception to § 46.02 as a whole. Becker, 2020 WL
4873870, at *3 (quoting Tex. Penal Code § 46.15(b)(6)). In other words, while the State may
prove that an individual is “a member of a criminal street gang”, if that individual satisfies all the
requirements in § 46.15(b)(6), then he cannot be prosecuted and convicted under § 46.02(a1)(2)(C). While the Becker court could not interpret § 46.15(b)(6)’s meaning because of ripeness
issues in that case, the Court had no such limitations at the time of its December 21st Order.
Dec. 21st Order at 18. Accordingly, the Court concluded that the language of § 46.15(b)(6) is
clear and unambiguous and construed its language to provide a statutory exception to § 46.02 as
a whole. Id. at 18–19.
As such, as the Court noted in its December 21st Order, “Martin, Becker, and §
46.15(b)(6) make clear that the interaction between § 46.02(a-1)(2)(C) and Plaintiff’s inclusion
in the TXGANG database does not criminalize his ability to carry a firearm in his vehicle.” Dec.
21st Order at 19–20. First, “Martin invalidates Plaintiff’s fear of prosecution under § 46.02(a1)(2)(C) upon his mere inclusion in the TXGANG database.” Id. at 20. And second, “the plain
meaning of § 46.15(b)(6) further invalidates Plaintiff’s fear of prosecution under § 46.02(a1)(2)(C) because, taking his allegations as true, Plaintiff’s valid license to carry5 ‘remove[s] him

5

To date, New Mexico and Texas have an agreement reciprocating each other’s concealed
handgun licenses issued to their respective residents. Mem. of Agreement Between the State of Texas
and the State of New Mexico Concerning Concealed Handgun License Reciprocity (June 22, 2012),
https://www.dps.texas.gov/rsd/LTC/legal/reciprocity/newmexicorecip.pdf.

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from the teeth of § 46.02(a-1)(2)(C)’”. Id. (quoting Becker, 2020 WL 4873870, at *3).
Therefore, in light of the intervening changes in law mentioned above, even when construing his
allegations in his favor, Plaintiff’s allegations now fail to sufficiently allege an injury in the form
of a “change of legal status” in that he cannot legally carry a firearm in his vehicle, which he
could otherwise do in the past, because his allegations fail to establish “a credible threat of
prosecution” under § 46.02 (a-1)(2)(C).
B. Actual Controversy.
As the Court noted in its Memorandum Opinion and Order, a declaratory judgment action
is ripe for adjudication only where an “actual controversy” exists. Orix Credit All., Inc. v. Wolfe,
212 F.3d 891, 896 (5th Cir. 2000). “The ‘actual controversy’ required under 28 U.S.C. § 2201(a)
‘is identical to the meaning of ‘case or controversy’ for the purposes of Article III.’” Bauer, 341
F.3d at 358 (quoting Lawson v. Callahan, 111 F.3d 403, 405 (5th Cir. 1997)) “As a general rule,
an actual controversy exists where ‘a substantial controversy of sufficient immediacy and reality
[exists] between parties having adverse legal interests.’” Wolfe, 212 F.3d at 896 (quoting Middle
S. Energy, Inc. v. City of New Orleans, 800 F.2d 488, 490 (5th Cir. 1986)). A plaintiff can
establish an “actual controversy” by demonstrating ‘actual present harm or a significant
possibility of future harm, . . . even though the injury-in-fact has not yet been completed.”
Bauer, 341 F.3d at 357–58 (internal citations omitted).

Ultimately, such agreement means that any license to carry that New Mexico issues under its
applicable law—i.e., Chapter 29, Article 19 of the New Mexico Statutes Annotated—is recognized in
Texas as if it were issued in that state under its own applicable law—i.e., Chapter 411, Subchapter H, of
the Texas Government Code. The agreement also applies the other way around. Hence, Plaintiff’s valid
license to carry from New Mexico would satisfy § 46.15(b)(6)’s requirement that the license be issued
“under subchapter H, Chapter 411, Government Code”.

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“An allegation of future injury may suffice if the threatened injury is certainly
impending, or there is a substantial risk that the harm will occur.” Cruz v. Abbott, 849 F.3d 594,
598 (5th Cir. 2017) (quoting Susan B. Anthony List., 573 U.S. at 158). “But where a plaintiff has
alleged an intention to engage in a course of conduct arguably affected with a constitutional
interest . . . and there exists a credible threat of prosecution thereunder, he should not be required
to await and undergo a criminal prosecution as the sole means of seeking relief.” Id. (quoting
Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979)) (internal quotes
omitted). Requiring that a plaintiff must break the law to test its constitutionality is to risk
punishing him for conduct that he may have honestly thought was constitutionally protected.
Intl. Soc. for Krishna Consciousness of Atlanta v. Eaves, 601 F.2d 809, 821 (5th Cir. 1979).
“Not only is this prima facie unfair, but it discourages people from engaging in protected activity
and enforcing constitutional rights.” Id.
In its Memorandum Opinion and Order, after construing Plaintiff’s allegations in his
favor, the Court concluded that his “stigma-plus” claim presented an actual controversy because
his allegations sufficiently establish that there is a substantial risk that harm or future injury will
occur. Mem. Op. and Order at 20. In particular, the Court found that Plaintiff pleaded enough
facts demonstrating that (1) he intended to exercise his Second Amendment right to carry a
firearm in his vehicle for self-defense during his trips to El Paso; and (2) he faced a credible
threat of prosecution under § 46.02 (a-1)(2)(C) for doing so. Id. Notably, the Court found that
Plaintiff’s allegations demonstrated that § 46.02 (a-1)(2)(C) “is not a mere paper tiger but has a
real history of enforcement” Seals v. McBee, 898 F.3d 587, 592 (5th Cir. 2018), as revised (Aug.
9, 2018), in part because Defendants had never asserted or argued that they would not arrest
Plaintiff for unlawful carry despite his concealed carry permit. Id. at 21; see also Seals, 898 F.3d

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at 592 (“Whether the government disavows prosecution is a factor in finding a credible threat of
prosecution.”); Holder v. Humanitarian Law Project, 561 U.S. 1, 16 (2010) (“The Government
has not argued to this Court that plaintiffs will not be prosecuted if they do what they say they
wish to do.”); Babbitt, 442 U.S. at 302 (“[T]he State has not disavowed any intention of invoking
the criminal penalty provision against unions that commit unfair labor practices. Appellees are
thus not without some reason in fearing prosecution[.]”).
However, in view of the intervening changes in controlling law, the Court agrees with
Defendants that these conclusions have now ceased to be viable. First, as noted above,
Plaintiff’s allegations do not sufficiently establish “a credible fear of prosecution” under § 46.02
(a-1)(2)(C) because his own allegations provide that he can easily satisfy the requirements in §
46.15(b)(6) and remove himself “from the teeth of § 46.02(a-1)(2)(C)”. Dec. 21st Order at 20
(quoting Becker, 2020 WL 4873870, at *3). And second, Defendants are now also explicitly
disavowing prosecution against Plaintiff as long as he satisfies the requirements in § 46.15(b)(6):
[I]f the Plaintiff has a license to carry issued under Subchapter H, Chapter 411, of
the Texas Gov’t Code and the handgun is concealed or in a shoulder or belt holster,
§46.02 would not apply to him. The inclusion of the Plaintiff in TXGANG alone
would not subject him to arrest for possessing a firearm.
...
Pursuant to Becker and Martin, the Plaintiff has at least two avenues to avoid
prosecution for unlawful carry without being compelled to hide his association with
his club. First, [t]he Plaintiff can have a valid license to carry issued under
Subchapter H, Chapter 411, of the Texas Gov’t Code and carry the handgun,
concealed or in a shoulder or belt holster. See Tex. Gov’t Code §46.15(b)(6). As
stated by the Plaintiff, he has a valid license to carry, which “remove[s] him from
the teeth of §46.02(a-1)(2)(C).” Becker, 2020 WL 4873870, at *3.
Mot. at 6, 9. Thus, without a credible fear of prosecution and with Defendants expressly
disavowing prosecution against Plaintiff as long as he meets the requirements of § 46.15(b)(6),

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Plaintiff’s allegations fail to establish a ripe actual controversy because there no substantial risk
that harm or future injury will occur.
Therefore, the Court finds that the intervening changes in law mentioned above have
rendered the Court’s conclusions in its Memorandum Opinion and Order no longer viable or
appropriate, and that Plaintiff’s remaining claims must be dismissed. Moreover, since all of
Plaintiff’s claims have been dismissed and Plaintiff has continuously failed to comply with the
Court’s orders on multiple occasions despite explicit warnings, the Court now dismisses this
lawsuit without prejudice without further delay.
IV.

CONCLUSION

Accordingly, IT IS ORDERED that Defendants Chief Greg Allen and Officer Francisco
Balderrama’s “Joint Motion for Reconsideration and Brief in Support” (ECF No. 40) is
GRANTED.
IT IS FURTHER ORDERED that all of Plaintiff William Apodaca-Fisk’s claims
against Defendants Chief Greg Allen and Officer Francisco Balderrama are DISMISSED
WITHOUT PREJUDICE.
IT IS MOREOVER ORDERED that all pending motions, if any, are DENIED AS
MOOT.
IT IS FINALLY ORDERED that the Clerk of the Court shall CLOSE this matter after
docketing the Final Judgment to be issued separately on this day.
So ORDERED and SIGNED this 16th day of February 2021.

____________________________________
DAVID C. GUADERRAMA
UNITED STATES DISTRICT JUDGE

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