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Trevino v. City of Pleasanton

United States District Court, W.D. Texas, San Antonio Division

April 23, 2019




         To the Honorable Senior United States District Judge David A. Ezra:

         This Report and Recommendation concerns the Amended Complaint filed by Plaintiff Ernest C. Trevino, Dkt. No. 20, and the Motion to Dismiss filed by Defendants City of Pleasanton and City Manager Johnny Huizar, Dkt. No. 25. Because Trevino is proceeding in forma pauperis (“IFP”), this case was automatically referred to the undersigned upon filing, pursuant to 28 U.S.C. § 636(b) and the docket-management order entered on September 29, 2017 in the San Antonio Division of the Western District of Texas. The undersigned has authority to enter this Report and Recommendation regarding the disposition of Trevino's case pursuant to 28 U.S.C. § 636(b)(1)(B) and Federal Rule of Civil Procedure 72.

         Despite ample opportunity to amend his Complaint, Trevino has failed to state a non-frivolous claim on which relief may be granted. Accordingly, it is recommended that Defendants' Motion to Dismiss, Dkt. No. 25, be GRANTED and that this case be DISMISSED WITH PREJUDICE.

         I. Factual and Procedural Background

         Plaintiff Trevino initiated this action on July 5, 2018. He did so seeking to proceed IFP. In his Proposed Original Complaint, Trevino alleged that he is a private citizen who made numerous unspecified complaints against the City of Pleasanton. According to Trevino, the City and City Manager Defendant Johnny Huizar subverted Trevino's attempts at free speech in a “malicious discriminatory and retaliatory manner” by failing to follow the City Charter's mandate on how the City ought to respond to complaints. Trevino believes the alleged failure to properly respond to his complaints is due to his Mexican American descent and was in retaliation for his exercise of his right to free speech. Trevino brings §1983 claims for violations of the Equal Protection Clause of the Fourteenth Amendment, the First Amendment, the Fourth Amendment, and for intentional infliction of emotional distress (the latter presumably in violation of state law). Trevino also brings claims under 42 U.S.C. § 1981 for discrimination. See Dkt. No. 1.

         Originally, it was recommended that IFP status be denied, seie Dkt. No. 3, but this determination was reconsidered and changed after Trevino supplied additional information indicating changed financial circumstances sufficient to warrant IFP status, see Dkt. No. 12 at 2. When granted IFP status, Trevino was ordered to file a more definite statement of his claims. See Id. at 4-5.

         The Order requiring a more definition statement explained why such a statement is needed here. The Order explained that, without any alleged supporting facts, Trevino's mere subjective belief that he suffered unlawful discrimination due to his Mexican-American heritage is insufficient to state a claim. See Id. With respect to Trevino's First Amendment retaliation claim, the Order instructed Trevino to explain or allege facts that would explain the subject matter of his underlying complaints, the constitutional rights Defendants allegedly violated, how Defendants' actions could have caused Trevino to suffer an injury that might chill the speech of a person of ordinary firmness, and the alleged factual basis for Trevino's assertion that Defendants' actions in allegedly ignoring his complaints were motivated by Trevino's speech. See id.

         The Order also noted unexplained inconsistencies within Trevino's allegations in his Proposed Complaint. See Id. For example, the Proposed Complaint alleged that Defendants repeatedly ignored Trevino's complaints because of his race. See Id. Yet the Proposed Complaint also claimed Defendants were motivated by another reason-Trevino's First Amendment protected activity. See Id. Further clarification of these matters was therefore ordered.

         Finally, the Order directed Trevino to explain whether consolidation of this case with a related removed case would be appropriate. See Id. 6-8. In response, on November 13, 2018, Trevino voluntarily dismissed the related removed case and thereby mooting the consolidation issue. See Trevino v. City of Pleasanton, No. 54-18-cv-1006-DAE (removed Sept 25, 2018), Dkt. Nos. 9-10. Trevino also amended his Original Complaint at least twice, attaching various exhibits in an effort to support his claims. See Dkt. Nos. 16, 17, 20, 21.

         As a result of repeated amendments, the live Complaint is difficult to follow. Dkt. Nos. 20 & 21. It alleges that beginning on or about March 9, 2017, Trevino submitted 17 complaints to Defendant City Manager Huizar. Those complaints, which the Complaint categorizes as “free speech, ” concerned Trevino's belief that City employees damaged property located at 2221 W. Goodwin, Pleasanton, Texas that Trevino was renting from a private company. According to Trevino, and contrary to the City's rules, Huizar wholly ignored Trevino's complaints by maintaining that they were not submitted in the proper form. Huizar then allegedly “attempted to subvert the complaint[s] by sending [Trevino] an additional request of requirements in order to take the complaint which were unrealistic without information received from an open records request[, ]” which the City allegedly refused to produce without a valid legal basis. The Complaint further alleges that Defendants conspired against Trevino in conjunction with a property management group and a landowner, all in an effort to deny Trevino's open-records requests and evict him from the rental property.

         The live Complaint attempts to advance various contradictory reasons to explain the motive for Defendants' actions that Trevino categorizes as discrimination against him and “every citizen of Pleasanton.” Id. ¶ 27 (emphasis added). First, Trevino places himself in a class of one, complaining that he was treated differently from every other Pleasanton citizen based “solely on past practices and Trevino['s] previous dealings with the city.” Id. ¶¶ 27, 60. Next, Trevino alleges that Huizar adopted and rewrote various unspecified policies to subvert Trevino from filing his complaint-this time because Trevino is of Mexican-American descent. Id. ¶¶ 27, 49. In support, Trevino alleges that “the City of Pleasanton has handled numerous complaints from white business persons who could help their standings and elected rights.” Id. ¶¶ 28, 80. Trevino further alleges that “[s]ince Huizar's appointment as City Manager he has moved into a mindset and position to take care of white descendant citizen's [sic] before Mexican American citizens.” Id. ¶ 29. Huizar, Trevino alleges, “has developed a practice and pattern by using his position for lunches, dinners, parties and all means to protect his City Manager position by treating them better than the Mexican American citizens including Plaintiff.” Id. Trevino claims that his allegations of racial discrimination will be “prove[n] by [Huizar's] phone records and credit card expenses and persons he protects and takes care of who are of white descent to include allowing white citizens meetings, conferences and mediations to resolve issues but once again not allowing Plaintiff this right.” Id. At other points in his Complaint, however, Trevino alleges that Huizar's allegedly wrongful actions in rewriting City policies have prevented “all citizens of Pleasanton” from exercising their “rights to complain or rights to deal with their city government.” Id. ¶¶ 40, 49.

         Third, Trevino alleges that Defendants retaliated against him for engaging in protected free speech. According to Trevino, he “question[ed] [the] City of Pleasanton['s] adopted policies, rules and regulations regarding the scope of their legal authority to not allow him an avenue to file a complaint, open records, or any citizen right.” Id. ¶¶ 63, 65, 70.

         Finally, Trevino alleges that at some unknown point, the “City of Pleasanton has abused the lobby system in Texas and illegally obtained TxDot grants with the connection between the City Attorney Bobby Maldonado and his close connection to Carlos Uresti.” Id. ¶ 14. This “close connection, ” Trevino alleges, “allowed the City of Pleasanton and City Manager Huizar the opportunity to illegally obtain state funds for illegal use within the City of Pleasanton general fund.” Id. And, according to Trevino, Defendants have “lied under oath in an affidavit [filed in state court] provided by City Manager Huizar to in fact have current airport grants for maintenance since 1996 to present 2018 and a second grant for pavement for 2018.” Id. ΒΆ ...

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