United States District Court, W.D. Texas, San Antonio Division
ERNEST C. TREVINO, Plaintiff,
CITY OF PLEASANTON, JOHNNY HUIZAR, INDIVIDUALLY, CITY MANAGER FOR THE CITY OF PLEASANTON; Defendants.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE
RICHARD B. FARRER, UNITED STATES MAGISTRATE JUDGE
Honorable Senior United States District Judge David A. Ezra:
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
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.
Factual and Procedural Background
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.
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.
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.
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.
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.
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.
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.
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.
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.