XAVIER RODRIGUEZ, District Judge.
On this date, the Court considered Defendants' motion for summary judgment. Doc. No. 94. After careful consideration, the motion is GRANTED IN PART and DENIED IN PART. The motion is GRANTED with respect to the claims filed by Texas Indigenous Council, which the Court finds lacks standing. The motion is also GRANTED with respect to Mr. Diaz's claim for injunctive relief. However, the motion is DENIED with respect to Sgt. Simpkin's claim of qualified immunity. For the state law claims, the motion is GRANTED for Plaintiffs' prayer for damages and injunctive relief. However, it is DENIED with respect to Mr. Diaz's prayer for declaratory relief under the Texas Constitution. Accordingly, Mr. Diaz can proceed with this case for damages and declaratory relief against Sgt. Simpkins on his federal constitutional claims. He may also proceed against Sgt. Simpkins for declaratory relief on his state constitutional claims.
The Texas Indigenous Council ("TIC") and Antonio Diaz seek damages, injunctive relief, declaratory relief, and attorneys' fees, alleging that Defendants' enforcement of Texas Penal Code § 42.03 violated their rights guaranteed by the U.S. Constitution. They further assert that the "Defendants' continued enforcement of Penal Code § 42.03 through the use and threats of unlawful arrest under similar circumstances will continue to prevent their peaceable use of public sidewalks in San Antonio and chill their exercise thereof." Amended Complaint at ¶ 1.
On April 29, 2009, Plaintiffs allege that Rodolfo Macias was "dragged" from the Mexican Consulate located in San Antonio, Texas, by members of the San Antonio Police Department ("SAPD"). Plaintiffs further allege that Mr. Macias suffered a fractured bone due to ill treatment by the police officers, and was taken to Metropolitan Methodist Hospital by ambulance.
Plaintiffs claim that they peacefully assembled on the public sidewalk outside the main entrance of Metropolitan Methodist Hospital. They allege that they "gathered to observe and ensure that Rodolfo Macias would not be further abused during his custody by the San Antonio police officers." Id. at ¶ 6. Plaintiffs assert that they "were purposefully dispersed along the length of the sidewalk so as not to obstruct the use of the sidewalk for passing pedestrians...." Id. at ¶ 9. They further allege that although Mr. Diaz was carrying a camcorder bag, the bag did not prevent him from keeping the sidewalk free for use. Id. at ¶ 10.
Plaintiffs allege that although they "were lawfully and peacefully standing on the public sidewalk and not obstructing its use, Defendants Simpkins, Andrade, Johnson, and Tucker threatened to arrest them for obstructing the sidewalk, in violation of the State "Obstructing Highway or Other Passageway" statute (TEX. PENAL CODE §42.03) because they (a) intentionally obstructed a public sidewalk (§42.03(a)(1)) and (b) disobeyed a reasonable request to move, issued by a peace officer to prevent obstruction of a sidewalk (§42.03(a)(2))." Id. at ¶ 13.
Plaintiffs allege that the Defendants "intentionally and wrongly interpreted the ordinance as to the nature of an actual or potential obstruction, and succeeded in compelling Plaintiffs to end their legitimate and constitutionally-protected right of assembly by unlawfully arresting Mr. Diaz and others in the Council." Id. at ¶ 14.
Defendants respond that hospital security guards (not SAPD officers) initially approached Plaintiff Diaz and told him that he could not videotape because of HIPPA concerns. Diaz Depo. at p. 57. The security officers thereafter spoke to Defendant SAPD Sgt. Simpkins and complained that several individuals were in front of the emergency room exit doors, videotaping inside the hospital, and impeding pedestrian and vehicular traffic. Mr. Diaz testified that he did not enter the hospital at any time and was not obstructing any sidewalk. Diaz Depo. at p. 62-64.
When Sgt. Simpkins encountered the individuals, they were outside the hospital and moved to the sidewalk when Sgt. Simpkins approached. Doc. No. 94, Ex. B. Sgt. Simpkins warned Plaintiff Diaz that he had already committed a criminal trespass by refusing to leave the hospital when told to do so by the hospital security guards. Sgt. Simpkins further warned the group that they were blocking the sidewalk. Twenty minutes later, Sgt. Simpkins advised the group that Mr. Macias was expected to remain in the hospital for a while and told them to leave. They refused and Sgt. Simpkins called for a patrol wagon and additional police. After a final warning to disperse, Plaintiff Diaz and others were arrested by Sgt. Simpkins, Officer Andrade, and Officer Johnson.
On November 21, 2013, Defendants filed this motion for summary judgment alleging that the officers are entitled to qualified immunity and that TIC lacks standing to pursue these claims. Doc. No. 94. A hearing was held on this motion on December 12, 2013. At that time, Plaintiffs confirmed their intention to voluntarily dismiss their claims against Officer Tucker, Officer Johnson and Officer Andrade. In addition, the Court ordered the parties to submit additional briefing by January 6, 2014.
Summary judgment is proper when the evidence shows "that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-252 (1986). Rule 56 "mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails... to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Curtis v. Anthony, 710 F.3d 587, 594 (5th Cir. 2013) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)).
The court must draw reasonable inferences and construe evidence in favor of the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Although the evidence is viewed in the light most favorable to the nonmoving party, a nonmovant may not rely on "conclusory allegations, unsubstantiated assertions, or only a scintilla of evidence" to create a genuine issue of material fact sufficient ...