Apodaca-Fisk v. Allen

• Decision Date: 16 February 2021
• Docket Number: EP-19-CV-00259-DCG
• Parties: 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.
• Court: U.S. District Court — Western District of Texas

WILLIAM APODACA-FISK, Plaintiff, v. GREG ALLEN, in his official capacity as Chief of the El Paso Police Departmentand FRANCISCO BALDERRAMA, an El Paso Police Department Officer

in his individual capacity, Defendants.

EP-19-CV-00259-DCG

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS EL PASO DIVISION

February 16, 2021

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.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 theunlawful 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 Orderat 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(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).

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 §...