El Bey v. Dominguez, 2:20-CV-73-Z-BQ

• Court: United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Northern District of Texas
• Writing for the Court: MATTHEW J. KACSMARYK, UNITED STATES DISTRICT JUDGE
• Citation: 540 F.Supp.3d 653
• Parties: Hasseh EL BEY and El Yumbe El Bey, Plaintiffs, v. Conrad DOMINGUEZ, et al., Defendants.
• Docket Number: 2:20-CV-73-Z-BQ
• Decision Date: 20 November 2020

540 F.Supp.3d 653

Hasseh EL BEY and El Yumbe El Bey, Plaintiffs,
v.
Conrad DOMINGUEZ, et al., Defendants.

2:20-CV-73-Z-BQ

United States District Court, N.D. Texas, Amarillo Division.

Signed November 20, 2020

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Hasseh El Bey, Las Vegas, NV, Pro Se.

El Yumbe El Bey, Las Vegas, NV, Pro Se.

ORDER

MATTHEW J. KACSMARYK, UNITED STATES DISTRICT JUDGE

This matter comes before the Court on six motions: (1) Motion to Dismiss of the State of Texas, filed June 12, 2020 (ECF No. 10); (2) Motions to Dismiss of the Office of the Attorney General of Texas & Ken Paxton, filed June 12, 2020 (ECF No. 11); (3) Motion to Dismiss of the State of Texas, filed June 4, 2020 (ECF No. 41); (4) Motions to Dismiss of the Texas Department of Public Safety, Texas Highway Patrol, Phillip Ayala & Suzy Whittenton, filed June 5, 2020 (ECF No. 7); (5) Motions to Dismiss of the Texas Department of Public Safety, Texas Highway Patrol, Phillip Ayala & Suzy Whittenton, filed June 12, 2020 (ECF No. 42); and (6) Motions to Dismiss of the Office of the Attorney General of Texas & Ken Paxton, filed June 12, 2020 (ECF No. 43). For the reasons below, the Court GRANTS the six motions to dismiss.

BACKGROUND

In 2019, a patrolman stopped Plaintiffs Hasseh El Bey¹ and El Yumbe El Bey² for speeding and because passenger Hasseh El Bey was not wearing a seatbelt. See Complaint ¶¶ 9–11, at 2–3. The patrolman asserted he smelled marijuana in the vehicle while investigating the traffic violation and therefore suspected the car contained illegal drugs. See ECF No. 19, at 20. The patrolman and two backup officers searched the car without Plaintiffs’ consent or a warrant. See Complaint ¶ 14, at 3; id. ¶ 16, at 3; ECF No. 19, at 24.³

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When the patrolman and backup officers allegedly found more than a pound of marijuana in the vehicle, they arrested Plaintiffs for possession of marijuana and for providing a false name to law enforcement. See ECF No. 19, at 24–26. The patrolman who initiated the traffic stop asserts Plaintiff Hasseh El Bey resisted arrest and was subdued, see ECF No. 19, at 20, which Plaintiffs aver involved holding Plaintiff Hasseh El Bey at gunpoint, see, e.g. , Complaint ¶ 15, at 3. Plaintiffs also contend they were not read their Miranda rights. See Complaint ¶ 40, at 5. The Plaintiffs were then photographed and fingerprinted without their consent, giving rise to Plaintiffs’ arguments that their "likenesses" are in jeopardy. See Complaint ¶¶ 43-44, at 5; ¶ 48, at 5.

Because Plaintiffs were booked late in the afternoon, they remained in jail until their probable cause and bail hearing the following morning. See Complaint ¶ 50, at 6; ECF No. 19, at 20; id. at 26. Plaintiffs were advised of their Miranda rights during the hearing and acknowledged via signature they had been informed of those rights and the charges against them. See ECF No. 19, at 26. Bail was set for each Plaintiff at $15,000, an amount Plaintiffs maintain they subsequently negotiated down to $10,000 combined and paid under "duress" and opposition to such "extort[ion]." Complaint ¶¶ 62–67, at 7.

Plaintiffs each filed Section 1983 suits in this Court on the same day against the same twenty-nine government Defendants, arguing that said Defendants were variously involved in the traffic stop, booking process, or hearing. In April, the Court referred the case to the United States Magistrate Judge based in the Amarillo Division. See ECF No. 5.⁴ When said Magistrate Judge recused, the Court referred the case for pretrial management to the Magistrate Judge in the nearby Lubbock Division. See ECF No. 23. That Magistrate Judge consolidated Plaintiffs’ cases in August. See ECF No. 40.⁵

Plaintiffs allege multiple constitutional claims against the seven Defendants who are the subject of this Order: (1) the State of Texas, (2) Texas Attorney General's Office, (3) Paxton; (4) Texas Department of Public Safety ("TDPS"), (5) Texas Highway Patrol ("THP"), (6) Ayala, and (7) Whittenton. First, they allege all Defendants engaged in a warrantless vehicle search in violation of the Fourth Amendment. See Complaint ¶¶ 28–35, at 4. Second, they contend all Defendants arrested them without mirandizing them, violated their privacy, and committed "trespass

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against their persons" in violation of the Fifth Amendment. Id. ¶¶ 36–48, at 5–6. Third, they maintain all Defendants conspired to jail them without notice of their offense, deprive them of counsel, and violate their right to a speedy trial under the Sixth Amendment. See id. ¶¶ 49-59, at 6-7. Lastly, they aver all Defendants set excessive bail in violation of the Eighth Amendment. See id. ¶¶ 60–69, at 7–8.

Defendants all claim immunity from Plaintiffs’ suit. The four Defendants that are state entities — the State of Texas, Texas Attorney General's Office, TDPS, and THP — and Defendant Paxton in his official capacity as state attorney general argue that they enjoy unwaived sovereign immunity under the Eleventh Amendment. See ECF No. 7, at 2–3; ECF No. 10, at 1–2; ECF No. 11, at 2–4; ECF No. 41, at 1–2; ECF No. 42, at 2–3; ECF No. 43, at 2–4. Defendants Paxton in his individual capacity, Ayala, and Whittenton aver that Section 1983 liability does not attach via respondeat superior absent proof of official policy or custom. See ECF No. 7, at 3; ECF No. 11, at 3–4; ECF No. 42, at 3; ECF No. 43, at 3–4. All seven defendants therefore ask the Court to dismiss Plaintiffs’ claims against them under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure.

LEGAL STANDARD

A. Section 1983 Suits and Immunities

The text of 42 U.S.C. § 1983 holds liable to suit "every" state official who violates an American citizen or resident's rights under color of law. 42 U.S.C. § 1983. Congress created the remedy shortly after the Civil War to counter endemic official action in the South that deprived freed slaves of their rights, and bill sponsors therefore intended for the remedy to be construed liberally. Cong. Globe, 42 Cong., 1st Sess. App 68 (1871) ("liberally and beneficently construed"). Yet the Supreme Court from the start has construed "every person" to exempt certain state officials who were immune from suit under the common law⁶ or because of constitutional necessity.⁷ Absolute immunity attaches to state judges and prosecutors within the scope of their judicial and prosecutorial acts. See Stump v. Sparkman , 435 U.S. 349, 356-57, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978) (state judges); Imbler v. Pachtman , 424 U.S. 409, 425–26, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976) (state prosecutors). Qualified immunity extends to police officers when they arrest a defendant and do "not violate clearly established statutory or constitutional rights of which a reasonable person would have known."⁸

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City of Escondido, Cal. v. Emmons , ––– U.S. ––––, 139 S. Ct. 500, 503, 202 L.Ed.2d 455 (2019) ; see also Porter v. Epps , 659 F.3d 440, 445 (5th Cir. 2011).

More broadly, government officials are not liable for the unconstitutional conduct of their subordinates solely on a theory of respondeat superior or vicarious liability. Ashcroft v. Iqbal , 556 U.S. 662, 676, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Nor are supervisory officials subject to vicarious liability under Section 1983 for the omissions of their subordinates. See Alderson v. Concordia Parish Correctional Facility , 848 F.3d 415, 419–20 (5th Cir. 2017). Consequently, absent direct personal participation in the alleged constitutional violation, a plaintiff must prove each individual defendant either implemented an unconstitutional policy that directly resulted in injury to the plaintiff or failed to properly train a subordinate employee. See Peña v. City of Rio Grande City , 879 F.3d 613, 620 (5th Cir. 2018) ; Thompkins v. Belt , 828 F.2d 298, 303–04 (5th Cir. 1987).

B. The Fourth Amendment and Warrantless Vehicle Searches

Blackstone inveighed against general warrants in his Commentaries ,⁹ while 18th Century English courts denounced government searches that dragnetted entire cities.¹⁰ Yet such protection from unreasonable searches was less secure in the American colonies. For the decade between the Stamp Act of 1765 and the American Revolution, colonists regularly endured British agents who rifled their papers and ransacked their homes in indiscriminate search of untaxed imports.¹¹ The young John Adams in his papers memorialized that British "writs of assistance" placed "the liberty of every man in the hands of every petty officer."¹²

Even before the Americans triumphed at Yorktown in 1781, five new state constitutions banned such indiscriminate searches and seizures.¹³ Support for a similar protection against any new national government ran strong in multiple state ratifying conventions as well, and Madison introduced the primordial Fourth Amendment soon after the First Congress.¹⁴ With

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little discussion and no recorded dissent, Congress passed his proposal to constitutionalize the "right of the people to be secure...