Esquivel v. Kendrick et al
ORDER DENYING 50 Motion for Preliminary Injunction; DENYING 51 Motion for Sanctions. IT IS FURTHER ORDERED that if Plaintiff or Defendants have not yet served their Rule 26 initial disclosures, they should do so on or before January 20, 2022. Signed by Judge Elizabeth S. Chestney. (rg)
Case 5:20-cv-00377-OLG-ESC Document 54 Filed 01/06/22 Page 1 of 4
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
ROBERT J. ESQUIVEL,
LOGAN EASTBURN, DPS, TROOPER
#14720; RYAN BIBBY, DPS, TROOPER
#14593; NICHOLAS WINGATE, DPS,
TROOPER #13157; AND TEXAS
HIGHWAY PATROL DEPARTMENT OF
Before the Court in the above-styled cause of action are Plaintiff’s pro se Motion for a
Preliminary Injunction [#50] and Plaintiff’s Motion for Sanction [#51]. The Court ordered
Defendants to respond to the motions. Defendants filed their response as ordered on January 3,
2022 [#53]. Having considered the motions and response and record in this case, the Court will
deny the motions.
By this suit, Plaintiff claims Defendants subjected him to an unlawful search and seizure
and arrest, among other claims, in violation of 42 U.S.C. § 1983. The record reflects that shortly
after the Court entered its Scheduling Order, Plaintiff filed a motion seeking to modify the
deadlines contained therein, due to a need for additional discovery and to amend the pleadings.
The Court denied Defendant’s request to modify and reiterated that the discovery period expires
on February 14, 2022 [#49]. In the Order, the Court directed Plaintiff to be diligent in requesting
documents, serving interrogatories, and seeking to schedule depositions.
Case 5:20-cv-00377-OLG-ESC Document 54 Filed 01/06/22 Page 2 of 4
Plaintiff’s “Motion for a Preliminary Injunction,” though titled as such, in fact asks the
Court to reconsider its denial of Plaintiff’s motion to modify the Scheduling Order. The motion
describes Plaintiff’s efforts to communicate with Defendants’ counsel in an attempt to reach an
agreement on modifying the Scheduling Order, which were unsuccessful. Plaintiff’s motion also,
however, asks the Court to grant an injunction “against defendant’s motion to dismiss” based on
Defendants’ claim that they are entitled to qualified immunity “or any other motion filed by the
defendants to dismiss the charges against them” until they have satisfied the Federal Rules of
Civil Procedure. Yet there is no motion to dismiss pending in this case. Plaintiff then goes on to
discuss the merits of his case and his belief that Defendants violated his constitutional right to be
protected from unlawful search and seizure and asks the Court to order Defendants to submit an
affidavit or more definite statement to clarify to the Court how their actions were within the
scope of their authority.
The Court will construe Plaintiff’s motion for preliminary injunction as a motion for
reconsideration of a prior order regarding the modification of a scheduling order and a motion to
compel discovery, both of which seek non-dispositive relief.
Accordingly, the Court has
authority to issue this Order disposing of the motion in accordance with 28 U.S.C. §
Plaintiff’s motion for sanction asks the Court to sanction Defendants for violating Rule
11(b) of the Federal Rules of Civil Procedure, accusing Defendants of failing to provide any
specific evidence that they were acting within the scope of their duties and instead filing several
motions to dismiss asserting a general (and unfounded) defense of qualified immunity. This
motion also complains of Defendants’ failure to cooperate with discovery.
Case 5:20-cv-00377-OLG-ESC Document 54 Filed 01/06/22 Page 3 of 4
Defendants’ response to the motions explains that prior to Plaintiff filing the pending
motions, he called counsel for Defendants asking for their agreement to extend the Scheduling
Order so he could have additional time to conduct discovery. Counsel directed Plaintiff to the
previous order of the Court instructing Plaintiff to serve discovery. To date, Plaintiff still has not
served any discovery requests on Defendants or sought any depositions. As Plaintiff has not
served discovery, there is no basis to impose sanctions against Defendants for failure to
cooperate with the discovery process.
Both parties should have served each other with their
initial disclosures at the beginning of the case. See Fed. R. Civ. P. 26(a)(1). If they have not
done so already, they should do so within the next two weeks.
Additionally, insofar as Plaintiff desires Defendants to produce evidence of the
constitutionality of their actions underlying this case, Plaintiff may obtain this information by
serving Defendants with requests for production (to obtain documents related to the incidents in
question). See Fed. R. Civ. P. 34. Plaintiff may also obtain sworn answers to questions about
the incidents in questions by serving Defendants with interrogatories pursuant to Fed. R. Civ. P.
33 or by noticing Defendants’ depositions pursuant to Fed. R. Civ. P. 30 (at which Plaintiff may
ask Defendants questions in person about their conduct and the incidents in question). The
Federal Rules of Civil Procedure can be accessed on the Western District of Texas website and
contain rules regarding the exchange of discovery. See https://www.txwd.uscourts.gov/courtinformation/appellate-federal-and-local-court-rules/ (last visited Jan. 6, 2022).
IT IS THEREFORE ORDERED that Plaintiff’s pro se Motion for a Preliminary
Injunction [#50] and Plaintiff’s Motion for Sanction [#51] are DENIED.
IT IS FURTHER ORDERED that if Plaintiff or Defendants have not yet served their
Rule 26 initial disclosures, they should do so on or before January 20, 2022.
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IT IS SO ORDERED.
SIGNED this 6th day of January, 2022.
ELIZABETH S. ("BETSY") CHESTNEY
UNITED STATES MAGISTRATE JUDGE
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