Dave v. Laird

• Decision Date: 30 November 2021
• Docket Number: Civil Action 1:20-cv-209
• Parties: BERI DAVE, Plaintiff v. DAVID C. LAIRD, ET AL., Defendants
• Court: U.S. District Court — Southern District of Texas

BERI DAVE, Plaintiff
v.
DAVID C. LAIRD, ET AL., Defendants

Civil Action No. 1:20-cv-209

United States District Court, S.D. Texas, Brownsville Division

November 30, 2021

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

IGNACIO TORTEYA, III UNITED STATES MAGISTRATE JUDGE

Pending before the Court is Plaintiff Beri Dave's pro se “Complaint for Violations of Civil Rights” and his “More Definite Statement of All Claims” (hereinafter, Dave's “Complaint” and “Statement of Claims”). Dkt. Nos. 1 and 54. On August 17, 2021, the Court received a “Response in Opposition to Plaintiff's ‘[]More Definite Statement' and ‘Motions to Dismiss Pursuant to Rules 8 and 12'” (hereinafter, Defendants' “Motion” or “Motion to Dismiss”) filed by Defendants City of South Padre Island, David C. Laird, and Claudine O'Carroll. Dkt. No. 55. For the reasons provided below, it is recommended that the Court GRANT Defendants' Motion in part. Specifically, it is recommended that the Court DISMISS, with prejudice, all claims against the Defendants which are based upon the conduct of David C. Laird (hereinafter, “Laird” or “Officer Laird”).^[1]

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I. Jurisdiction and Venue

The Court has federal question subject matter jurisdiction because Dave has alleged violations of 42 U.S.C. § 1983. See Dkt. No. 1 at 3, 7, 5, 10; 28 U.S.C. § 1331 (“The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.”). Venue is also proper in this District because the alleged events giving rise to Dave's lawsuit occurred here. See Dkt. No. 1 at 7-19 (describing events and omissions occurring in Cameron County, Texas); 28 U.S.C. § 1391(b)(2) (noting that a civil action may be brought in the judicial district where “a substantial part of the events or omissions giving rise to the claim occurred”).

II. Background

Dave filed his Complaint in this Court on December 15, 2020. Dkt. No. 1. The Court granted his second “Application to Proceed in District Court without Prepaying Fees or Costs” (hereinafter, “In Forma Pauperis Application” or “IFP Application”) on January 5, 2021. Dkt. No. 12.^[2] After striking several of Dave's subsequent submissions which violated the Local Rules, the Court ordered Dave to provide a more definite statement of his claims. See Dkt. Nos. 29 and 48 (striking Dkt. Nos. 27, 28, and 47 for failure confer with opposing counsel and otherwise comply with the Local Rules); Dkt. No. 51 (ordering Dave to file a more definite statement of his claims). Dave filed his

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Statement of Claims on August 13, 2021. Dkt. No. 54.

Dave's Complaint, supplemented by his Statement of Claims, attempts to allege causes of action against: (1) the City of South Padre Island, Texas; (2) Officer Laird, in his individual and official capacity; (3) Detective Jaime Rodriguez in his individual and official capacity; and (4) Chief of Police, Claudine O'Carroll, in her official capacity. Dkt. No. 1 at 1-2; Dkt. No. 54 at 1. Dave states that Officer Laird, Claudine O'Carroll, and the City of South Padre Island are liable to him under 42 U.S.C. § 1983 for violating his rights under the First, Fourth, Fifth, Sixth, and Fourteenth Amendments to the United States Constitution. Dkt. No. 1 at 3, 7, 10-19; Dkt. No. 54 at 1-7. He claims that, due to the actions of these Defendants, he was unlawfully arrested by Officer Laird while making a video on his mobile phone for his YouTube channel. He contends that during his arrest, Office Laird took his phone from him, did not allow him to continue filming, and unlawfully asked him to identify himself. Among other things, he also states that Defendant Jaime Rodriguez (hereinafter, “Detective Rodriguez”) criminally stalked him after he left the premises of the South Padre Island Police Department (hereinafter, “SPIPD”). Dkt. No. 1 at 8-19; Dkt. No. 54 at 1-6.^[3]

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Dave further asserts that Defendants Claudine O'Carroll and the City of South Padre Island (hereinafter, “Chief O'Carroll” and “the City”) violated his rights by failing to adequately train and supervise Officer Laird. Dkt. No. 1 at 18-19; Dkt No. 54 at 7. He alleges that this failure has caused him continued emotional and mental trauma. Dkt. No. 1 at 17-19; Dkt No. 54 at 7. Due to this trauma, he contends that he has only recently begun “to attempt to resume what was previously, a regular and frequent act of lawfully recording on-duty police officers, publicly funded government buildings, and other matters of public interest related to the first amendment to the U.S. Constitution, for public dissemination on his YouTube channel.” Dkt. No. 54 at 7. He asserts that he has “lost many hours of employment and had to cease employment for an extended period to keep up with the demands of filing a Pro Se Federal Lawsuit[.]” Id.^[4] Dave seeks his legal fees and costs, $50, 000 in compensatory damages, and $250, 000 in punitive damages against all Defendants, or the City. Id. He additionally asks that the Court order training for all City employees, “as a deterrent to future Constitutional rights violations” which burden “the taxpayers who pay the salaries of their public servants and expect their public servants to know and obey the law[.]” Id.

Defendants filed their Motion to Dismiss on August 17, 2021. Dkt. No. 55. Defendants assert that Dave has failed to follow the Court's instructions when filing his Statement of Claims. Id. at 1-4.^[5] Defendants also contend that Dave's lawsuit should be

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dismissed with prejudice pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure because he has failed to state a claim. Id. at 4-14. Defendants seek costs of court and any other relief that they are entitled to receive in law or equity. Id. at 14. Dave has not filed a Response to Defendants' Motion to Dismiss.

III. Legal Standards

A. Fed.R.Civ.P. 12(b)(6).

Dismissal is appropriate under Rule 12(b)(6) if the plaintiff fails “to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). In Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007), and Ashcroft v. Iqbal, 556 U.S. 662, 678-80 (2009), the Supreme Court confirmed that Rule 12(b)(6) must be read in conjunction with Rule 8(a). Richter v. Nationstar Mortgage, LLC, Civil Action No. H- 17-2021, 2017 WL 4155477, at *1 (S.D. Tex., 2017). Rule 8(a) requires “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). To withstand a Rule 12(b)(6) challenge, a complaint must contain “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. 544, 570. This means that a complaint, taken as a whole, “must contain either direct or inferential allegations respecting all the material elements necessary to sustain recovery under some viable legal theory[.]” Id. at 562 (quoting Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1106 (7th Cir. 1984) (internal quotation marks omitted; emphasis and omission in original)).

“[A] plaintiff's obligation to provide the ‘grounds' of his ‘entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. 544, 555 (citing Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 2944 (2007)). “Factual allegations must be enough to raise

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a right to relief above the speculative level . . . on the assumption that all of the allegations in the complaint are true (even if doubtful in fact).” Id. Although the Supreme Court in Twombly stressed that it did not impose a probability standard at the pleading stage, an allegation of a mere possibility of relief does not satisfy the threshold requirement of Rule 8(a)(2) that the “plain statement” of a claim include factual “allegations plausibly suggesting (not merely consistent with)” an entitlement to relief. Id. at 557. A court need not accept as true “conclusory allegations, unwarranted factual inferences, or legal conclusions[.]” Plotkin v. IP Axess, Inc., 407 F.3d 690, 696 (5th Cir. 2005) (citing Southland Sec. Corp. v. INSpire Ins. Solutions, Inc., 365 F.3d 353, 361 (5th Cir. 2004)).

B. Local Rule 7.4.

Local Rule 7.4 provides that a party's failure to respond to a motion “will be taken as a representation of no opposition.” See Rule 7.4 of the Local Rules of the United States District Court for the Southern District of Texas. See also Rule 6(C), Civil Procedures of Judge Rolando Olvera (“Failure to respond to an opposed motion will be taken as a representation of no opposition.”). Nevertheless, a district court may not grant a motion to dismiss simply because the plaintiff has failed to respond. Servicios Azucareros de Venezuela, C.A. v. John Deere Thibodeaux, Inc., 702 F.3d 794, 806 (5th Cir. 2012); Guidry v. Wells Fargo Bank, N.A., No. CV H-16-2618, 2017 WL 58845, at *1 (S.D. Tex. Jan. 4, 2017). The court must still assess the legal sufficiency of the plaintiff's claims to determine if dismissal is warranted. Id.

C. 42 U.S.C. § 1983.

Section 1983 of Title 42 does not grant substantive rights. Instead, it provides a vehicle for a plaintiff to vindicate those rights that are protected by the United States Constitution and other federal laws. Albright v. Oliver, 510 U.S. 266, 271 (1994). Specifically, § 1983 provides a cause of action for individuals who have been “depriv[ed] of [their] rights, privileges, or immunities secured by the Constitution and

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laws” of the United States by a “person” acting under color of state law. Id. at 315. A plaintiff seeking § 1983 relief must show: (1) that the conduct complained of was committed under color of state law, and (2) that the conduct deprived the plaintiff of rights secured by the Constitution or laws of the United States. See Hernandez v. Maxwell, 905 F.2d 94, 95 (5th Cir. 1990) (citing Daniel v. Ferguson, 839 F.2d 1124, 1128 (5th Cir. 1998)).

IV. Discussion

Dave...