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Blakely v. Kelly

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

April 15, 2019

QUINCY DEMOND BLAKELY and KIMBERLY BLAKELY, Plaintiffs,
v.
JEANETTE L. KELLY, ET AL., Defendants.

          FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

          DAVID L. HORAN UNITED STATES MAGISTRATE JUDGE

         Plaintiffs Quincy Demond Blakely and Kimberly Blakely paid the filing fee to bring this pro se civil rights action under 42 U.S.C. § 1983. Their action has been referred to the undersigned United States magistrate judge for pretrial management under 28 U.S.C. § 636(b) and an order of reference from United States District Judge Ed Kinkeade.

         Based on Mr. Blakely's then-ongoing state misdemeanor prosecution, the Court stayed and administratively closed this action on November 3, 2016. See Dkt. Nos. 11 & 12. On May 20, 2018, Plaintiffs moved to reopen their case, attaching to that motion an order dismissing the misdemeanor prosecution against Mr. Blakely. See Dkt. No. 13. The Court granted their motion, and, because they paid the filing fee, directed Plaintiffs to serve their complaint by August 20, 2018. See Dkt. No. 14.

         Plaintiffs filed an amended complaint [Dkt. No. 15] before that deadline. Several defendants filed waivers of service in September 2018. See Dkt. Nos. 17-24. And, on October 8, 2018, Defendants City of Dallas, see Dkt. No. 26, and Officers Steve Gomez, Jr., Pamela Hampton-Bradley, Francisco J. Mireles, Fidel Padron, Robert Ramsey, Pablo Rojas, and Fernando Silva, see Dkt No. 27, moved to dismiss some - not all - of Plaintiffs' claims against them under Federal Rule of Civil Procedure 12(b)(6).

         The Court then entered an order staying these defendants' deadline to serve responsive pleadings pending the disposition of their motions, advising Plaintiffs of the legal standards governing Rule 12(b)(6) motions, and setting response and reply deadlines. See Dkt. No. 30. And, although Mr. Blakely filed an emergency motion requesting that the Court enjoin “the execution of an arrest warrant issued October 4, 2018 in” his state misdemeanor prosecution [Dkt. No. 29] - a motion that the Court denied under the Anti-Injunction Act, see Dkt. No. 32 - Plaintiffs failed to respond to the motions to dismiss. And the time to do so has expired.

         The undersigned enters these findings of fact, conclusions of law, and recommendation that the Court should grant the motions to dismiss; dismiss with prejudice all claims against the City of Dallas; dismiss with prejudice the claims against Officers Gomez, Hampton-Bradley, Mireles, Padron, Ramsey, Rojas, and Silva based on equal protection, due process, the Texas constitution, and an alleged conspiracy; and re-refer this case to the undersigned for further pretrial management.

         Applicable Background

         Plaintiffs' lawsuit is based on an encounter with Dallas police officers, including the individual defendants, that occurred on October 3, 2014:

18. On October 3, 2014, I, Plaintiff Quincy Blakely made reservations for my family and I at Hattie's restaurant located 418 N Bishop Ave, Dallas, TX 75208 for 7pm.
19. My mother-in-law and niece arrived at Hattie's before 7pm. My mother-in-law parked her car with valet and went into Hattie's to get seated for our reservation.
20. My mother-in-law and niece were advised that the restaurant would not seat incomplete parties and the reservation would be cancelled if arrival is not within 15 minutes of reservation.
21. Because Plaintiff, Kimberly Blakely, our son and I were running late, my mother-in- law contacted us and advised that the reservation would be cancelled, so we could just dine at nearby Gloria's restaurant located at 600 N. Bishop Avenue Dallas, Texas.
22. My mother-in-law and niece left Hattie's restaurant and waited for my wife, son and I to pick them up outside at the corner of Bishop Ave and Seventh Street.
23. Since my mother-in-law had already valeted her vehicle, she just decided to leave it with Hattie's valet in the event there was no handicap parking at Gloria's restaurant.
24. At approximately 7:15pm, we picked up my mother-in-law and niece at the corner of Bishop Ave and Seventh Street and went to Gloria's restaurant located at 600 N. Bishop Avenue Dallas 75208.
25. We arrived at Gloria's restaurant at or about 7:20pm and left at approximately 10:05pm arriving back to pick up my mother-in-law's vehicle.
26. At approximately 10:10pm, myself, my wife, Plaintiff Kimberly Blakely, my 2-year-old son, niece and mother-in-law arrived at the valet stand in front of Hattie's restaurant. I, Quincy Blakely was in the driver's seat, my wife in the passenger and my niece, son and mother in-law in the back seat.
27. My mother-in-law got out, walked up to the valet to retrieve her vehicle. The valet attendant requested $5.00. My mother in law stated she was not advised there was a $5.00 fee, nor was there a posted sign stating there was a valet fee.
28. My mother-in-law stated that when she parked, she asked if there was handicapped parking, and the valet advised that he would park it for her.
29. Plaintiff, Kimberly Blakely got out from the passenger side of the vehicle after listening to valet refuse to get my mother-in-law key, and eventually called 911. While my wife was on the phone with 911, I, Quincy Blakely got out of the vehicle and asked valet where the keys were.
30. The valet attendant looked into the key box and asked what kind of car and what kind of keys. I, Quincy Blakely looked into the opened key box with the valet and said, while reaching to retrieve the keys, here they are.
31. Plaintiff, Kimberly Blakely asked where the car was parked, and the valet attendant then advised that the car was parked blocks down on ninth street.
32. Plaintiff, Kimberly Blakely then called 911 back to cancel the call and advised that we had the keys and valet provided the location of the vehicle.
33. We all then left the location, attempted to look for the vehicle but were unsuccessful. We went back to the valet stand and were given the exact location of the vehicle; which was parked in the dirt across from 302 W. Ninth Street at Madison. We then retrieved my mother-in-law's vehicle and headed home.
34. During the encounter on October 3, 2014, on or about 10:15pm, defendants Kelly, Gomez Jr. and Rojas, used force upon Plaintiff, Quincy Blakely that was completely unwarranted and unnecessary. In an effort to cover up their use of excessive force, Defendants Kelly and Gomez Jr. caused Plaintiff, Quincy Blakely to be arrested and detained for unlawful carrying firearm and resisting arrest despite a lack of probable cause that Plaintiff, Quincy Blakely committed the offense on which Plaintiff, Quincy Blakely was charged and detained.
35. On or about October 3, 2014, defendant Kelly and defendant Gomez Jr. responded to a call that was initiated by Plaintiff, Kimberly Blakely because valet attendants refused to release keys to a vehicle that was valeted by my mother-in-law.
36. Plaintiff Kimberly Blakely cancelled the 911 call after valet released the keys and advised where the vehicle was parked.
37. While heading home, Plaintiffs were stopped by defendants Kelly and Gomez Jr.
38. Upon stopping Plaintiff's vehicle, I, Quincy Blakely rolled the window down to question why we were being stopped and was advised by defendants Kelly and defendant Gomez Jr. that they were conducting an investigation of a disturbance that took place inside of Hattie's restaurant.
39. Defendants Kelly and Gomez Jr. alleged that they were flagged down by a witness and was advised that Plaintiff's caused a disturbance inside Hattie's restaurant and became agitated toward staff because the staff at Hattie's restaurant could not hold Plaintiff's reservation due to the fact the entire party was not present.
40. I was advised that a witness, now known as Anthony Alvarez, owner of Hattie's restaurant allegedly witnessed the disturbance inside the restaurant by Plaintiff's against his staff.
41. I, Quincy Blakely advised defendants Kelly and Gomez Jr that myself nor Kimberly Blakely had NEVER been inside of Hattie's restaurant, let alone caused a disturbance with employees about a reservation.
42. I advised defendants Gomez and Kelly that we had just eaten at Gloria's restaurant located 2 blocks away at 600 Bishop Avenue Dallas, Texas, from 7:20pm-10:00pm, showed them my receipt and advised that they have the wrong suspects.
43. Defendant Kelly and defendant Gomez asked for my identification and I, Quincy Blakely provided my Utah concealed handgun license as well. I advised defendants Kelly and Gomez that we had not committed a crime and asked then to identify the witness but the requests were denied.
44. I was advised that I was under arrest. I questioned what I was under arrest for and defendant Kelly and defendant Gomez Jr. refused to answer the question.
45. I advised defendants Gomez Jr. and Kelly that I was armed, after which, with great force, I was pulled from the vehicle, and pushed onto the police vehicle without making any sudden movements, and without protest.
46. I was put into handcuffs and aggressively searched by defendant Kelly. At one point during the search, Defendant Kelly without reason or provocation, grabbed and pulled my testicles after searching my private area more than once.
47. Defendant Gomez Jr. then got the remote to the police vehicle's dash cam and turned down the volume on defendant Kelly, which I can only assume was so they wouldn't be heard verbally abusing me while I was being searched.
48. While being searched excessively and aggressively without provocation, I advised defendant Kelly that the handcuffs were too tight, yet my handcuffs were never loosened, in fact, she tightened the handcuffs even more while Defendant Gomez Jr. looked at the dash cam, moved and positioned himself in front of the view of the dash cam as defendant Kelly tightened the handcuffs.
49. I, Quincy Blakely, advised unknown male defendant to give my weapon and other property to Kimberly Blakely but unknown male defendant declined and stated that my wife refused to accept the property or give her identification, (which is untrue) as defendant simultaneously put my property into a clear bag as my wife shouted to him that she would take the property and had not refused to identify herself.
50. Defendant Hampton-Bradley then asked for plaintiff wife Kimberly Blakely's identification and at that point her Driver's License was provided to Hampton-Bradley.
51. After being placed in the police vehicle with the volume being turned down, the heat was turned on and the windows rolled down about a 1/2 inch, as defendants Rojas and ...

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