Tovar et al v. City of San Antonio

Filing 52

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 34 Report and Recommendations, Accordingly, it is herebyORDERED that the Report and Recommendations of the United StatesMagistrate Judge, filed in this case on July 3, 2024 (docket #34) is ACCEPTED suc h that DefendantsAlfred Flores, Eleazar Alejandro and Nathaniel Villaloboss (12)(b)(6)Motion to Dismiss (docket #12)-2-is GRANTED, but Plaintiffs may file an amended complaint to allege plausible facts necessary toovercome qualified immunity in accordance with the deadlines and any additional requirements set byJudge Bemporad for the filing of an amended complaint and any and all responses and replies thereto.. Signed by Judge Fred Biery. (mgr)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
ALEXIS TOVAR, Individually and as Next
§
Friend of D.P., a Minor, and PHILLIP REYES, §
as Next Friend of A.R. and J.R., Minors,
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§
Plaintiffs,
§
§
VS.
§ CIVIL ACTION NO. SA-23-CV-847-FB
§
THE CITY OF SAN ANTONIO, TEXAS;
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ALFRED FLORES; ELEAZAR ALEJANDRO; §
and NATHANIEL VILLALOBOS,
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Defendants.
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ORDER ACCEPTING REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
Before the Court are (1) the Report and Recommendation of the United States Magistrate Judge
(docket #34); (2) Plaintiffs’ Objections to the Report and Recommendation of United States Magistrate
Judge (docket #37); (3) Alfred Flores, Eleazar Alejandro and Nathaniel Villalobos’s Objections to the
Report and Recommendation (docket #38); (4) Alfred Flores, Eleazar Alejandro and Nathaniel
Villalobos’s Response in Opposition to Plaintiffs’ Objections to the Report and Recommendation
(docket #45); (5) Plaintiffs’ Response to Defendants Alfred Flores, Eleazar Alejandro and Nathaniel
Villalobos’ Objections to the Report and Recommendation of United States Magistrate Judge (docket
#46); and (6) the Officer Defendants’ Reply in Support of Their Objections to the Report and
Recommendation (docket #49).
Where no party has objected to a Magistrate Judge's Report and Recommendation, the Court
need not conduct a de novo review of them. See 28 U.S.C. § 636(b)(1) ("A judge of the court shall
make a de novo determination of those portions of the report or specified proposed findings and
recommendations to which objection is made."). In such cases, the Court need only review the Report

and Recommendation and determine whether they are either clearly erroneous or contrary to law.
United States v. Wilson, 864 F.2d 1219, 1221 (5th Cir.), cert. denied, 492 U.S. 918 (1989).
On the other hand, any Report or Recommendation to which there are objections requires de
novo review by the Court. Such a review means that the Court will examine the entire record, and will
make an independent assessment of the law. The Court need not, however, conduct a de novo review
when the objections are frivolous, conclusive, or general in nature. Battle v. United States Parole
Commission, 834 F.2d 419, 421 (5th Cir. 1987).
In the Report, Magistrate Judge Bemporad recommends that the Officer Defendants’ Motion
to Dismiss (docket #12) be GRANTED but that Plaintiffs should be afforded an opportunity to amend
their complaint to allege plausible facts necessary to overcome qualified immunity. The Court has
reviewed all of the objections filed by the parties to the Report and Recommendation and has conducted
a de novo review of the Magistrate Judge's Report and Recommendation and finds the objections should
be overruled at this time.
The Court hereby accepts, approves, and adopts the factual findings and legal conclusions by
the United States Magistrate Judge contained in the Report and Recommendation (docket #34). The
Report and Recommendation of the United States Magistrate Judge shall be accepted pursuant to 28
U.S.C. § 636(b)(1) such that Defendants Alfred Flores, Eleazar Alejandro and Nathaniel Villalobos’s
(12)(b)(6) Motion to Dismiss (docket #12) shall be GRANTED, but Plaintiffs shall be afforded an
opportunity to amend their complaint to allege plausible facts necessary to overcome qualified
immunity.
Accordingly, it is hereby ORDERED that the Report and Recommendations of the United States
Magistrate Judge, filed in this case on July 3, 2024 (docket #34) is ACCEPTED such that Defendants
Alfred Flores, Eleazar Alejandro and Nathaniel Villalobos’s (12)(b)(6) Motion to Dismiss (docket #12)
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is GRANTED, but Plaintiffs may file an amended complaint to allege plausible facts necessary to
overcome qualified immunity in accordance with the deadlines and any additional requirements set by
Judge Bemporad for the filing of an amended complaint and any and all responses and replies thereto.
It is so ORDERED.
SIGNED this 23rd day of September, 2024.

_________________________________________________
FRED BIERY
UNITED STATES DISTRICT JUDGE

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