United States District Court, W.D. Texas, Waco Division
PITMAN UNITED STATES DISTRICT JUDGE.
the Court is Defendant Joe Neal's Motion to Dismiss (Dkt.
12). The motion was referred to United States Magistrate
Judge Jeffrey C. Manske for a Report and Recommendation on
the merits pursuant to 28 U.S.C. § 636(b), and Rules
1(h) and 4(b) of Appendix C of the Local Rules of the United
States District Court for the Western District of Texas. On
May 2, 2017, Magistrate Judge Manske filed a Report and
Recommendation in the matter, recommending that this Court
grant Defendant's motion.
to 28 U.S.C. § 636(b), a party may serve and file
specific, written objections to the proposed findings and
recommendations of the Magistrate Judge within fourteen days
after being served with a copy of the Report and
Recommendation, and thereby secure a de novo review by the
district court. (Dkt. 15). Plaintiff timely objected to the
Report and Recommendation of the Magistrate on May 17, 2017.
the Court considers Plaintiff's objection, it will turn
briefly to his recently filed Motion for Oral Hearing, (Dkt.
19), which Defendant opposes. In Plaintiff's motion, he
asks that the Court set an oral hearing so that it can better
understand the details and the history of the case and
“could obtain more information necessary for the Court
to make an informed decision in the matter.” (Pl.'s
Mot. Oral Hearing, Dkt. 19). While the Court appreciates
Plaintiff's willingness to make himself available for a
hearing, the Court will deny his motion. Plaintiff has had
ample opportunity to provide the Court with whatever
information it should need to make a ruling on
Defendant's motion to dismiss. To the extent any factual
information is necessary to Plaintiff's claims, but not
already before the Court, it likely cannot be considered in
ruling on Defendants' motion, which requires that the
Court evaluate the allegations in Plaintiff's complaint.
The Court will therefore consider Defendant's motion to
dismiss, and the Report and Recommendation of the magistrate
without argument from the parties.
Plaintiff's filing, the Court can discern four general
objections. The Court will briefly address each of these.
First, Plaintiff argues that Officer Neal is not entitled to
qualified immunity. The Court first notes that while the
Magistrate Judge's report raises the issue of qualified
immunity, it is not obviously critical to his
analysis-instead, the magistrate appears to hold that
Plaintiff has failed to plausibly allege a constitutional
violation irrespective of what additional protection
Defendant is entitled to because of his qualified immunity.
However, Defendant is nevertheless entitled to qualified
immunity. “The doctrine of qualified immunity protects
government officials ‘from liability for civil damages
insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable
person would have known.'” Pearson v.
Callahan, 555 U.S. 223, 231 (2009). Plaintiff himself
alleges that Defendant was a government official-a police
officer, acting as one-at the time of the events at issue.
Further, this Court agrees with the Magistrate Judge's
report that Plaintiff has failed to allege a clear violation
of his constitutional rights.
Plaintiff argues that his right to assist citizens filing a
complaint against a police officer is a “protected
right” sufficient to give rise to a claim for
retaliation. Plaintiff cites no case to support this
assertion. However, as both the Report and Recommendation and
Defendant's response to Plaintiff's objection point
out, assisting someone else in filing a complaint is not a
personal constitutional right. See Shaw v. Murphy,
532 U.S. 223, 230-32 (2001) (holding that inmates do not
possess a specific First Amendment right to provide legal
assistance to fellow inmates); Henrise v. Horvath,
174 F.Supp.2d 493, 499 (N.D. Tex. 2001) (holding that a
friendship with someone who has complained, where not
directly related to that person's complaint, is not
constitutionally protected by the First Amendment). And, as
the Report and Recommendation and Defendant's response
also notes, even it were a constitutionally protected right,
the stop and citation alleged by Plaintiff are not sufficient
to constitute retaliation. See Dickinson Leisure Indus.
v. City of Dickinson, 329 F.Supp.2d 835, 847 (S.D. Tex.
2004) (“The Court concludes that a ticket for a minor
infraction, quickly dismissed, is not sufficiently
intimidating to chill the speech of a person of ordinary
Plaintiff argues that the unlawful traffic stop is sufficient
to serve as an element of an intentional infliction of
emotional distress claim and a retaliation claim. Regardless
of Plaintiffs arguments regarding his IIED claim, however,
Defendant is entitled to immunity for this state-law claim.
Tipps v. McCraw, 945 F.Supp.2d 761, 768 (W.D. Tex.
2013) (holding that the claim of IIED must be dismissed
because, under Tex. Civ. P. & Rem. Code §
101.106(f), the claim “could have been brought
under” the Texas Claims Tort Act against the
governmental unit). Further, as the Report and Recommendation
makes clear, even if immunity was not at issue, Plaintiff
makes only a conclusory allegation that Defendant's
actions were “so extreme and outrageous in character .
. . as to go beyond all possible bounds of decency.”
The specific allegations about Defendant's conduct do not
support this conclusory allegation.
Plaintiff argues that Defendant's decision to stop and
ticket Plaintiff for loud music was a per se violation of
Plaintiff's Fourth Amendment rights because the ticket
was later dismissed, and that Plaintiff cannot prove a
negative, or a lack of probable cause for the stop at this
stage. This argument is thoroughly addressed by the
Magistrate Judge's Report and Recommendation. Generally,
it is an inconvenience, not a constitutional violation, to be
stopped for a traffic ticket. Although Plaintiff argues his
music was not on, only his GPS, when he was cited for loud
music, Plaintiff alleges nothing about this particular
traffic stop, which he says lasted fifteen to forty-five
minutes, which would suggest the Defendant's behavior was
the Court ORDERS that the Report and Recommendation of the
United States Magistrate Judge (Dkt. 15) is APPROVED AND
ACCEPTED for the reasons stated therein.
Court hereby GRANTS Defendant's Motions to Dismiss (Dkt.
12). Plaintiffs ...