United States District Court, W.D. Texas, El Paso Division
MEMORANDUM OPINION AND ORDER
C. GUADERRAMA UNITED STATES DISTRICT JUDGE
before the Court is Defendants Chief Greg Allen and Officer
John Doe's (collectively, "Defendants")
"Rule 12 Motion to Dismiss and Brief in Support"
(ECF No. 6) ("Motion") filed on October 14, 2019.
Therein, Defendants request the Court to dismiss Plaintiff
William Apodaca-Fisk's ("Plaintiff) Original
Complaint (ECF No. 1) because Plaintiff has failed to state a
claim under 42 U.S.C. § 1983 arising from Plaintiffs
alleged improper inclusion in the Texas law enforcement gang
database. For the reasons that follow, the Court
GRANTS IN PART and DENIES IN
PART Defendants' Motion.
following facts derive from Plaintiffs "Original
Complaint" (ECF No. 1) (hereinafter,
"Complaint") and, in this posture, are taken as
true. Bowlby v. City of Aberdeen, Miss., 681 F.3d
215, 219 (5th Cir. 2012).
is a former Army Command Sergeant Major who has served our
country in eight combat deployments and has been recognized
with numerous combat and service awards, including: the
Legion of Merit, two awards of the Purple Heart, and five
awards of the Bronze Star for Valor. Compl. ¶¶ 6-7.
Plaintiff is now retired and living in Las Cruces, New Mexico
with his wife, a schoolteacher with whom he had his four
children: a schoolteacher, two college students, and a PhD
candidate at an Ivy League university. Id.
¶¶ 2, 8.
retired, Plaintiff continues to actively serve his community
in a variety of ways, including: serving as the Senior Board
Advisor for Mesilla Valley Community of Hope helping the
homeless, serving as Co-Chair of Willie's Heroes
Community Foundation for Wounded Warriors, serving as a
member of the Las Cruces Mayor's Veteran Advisory Board,
serving as Vice President of the Dona Ana County Humane
Society, and as a board member of the Order of Purple Heart
and National Association of Amputees. Id. ¶ 9.
Plaintiff has also been recognized for his involvement in the
community: he was awarded the Red Cross Regional Hero Award
in 2016 for his work in raising more than $500, 000 for Las
Cruces veterans with various organizations. Id.
is also an active member of a motorcycle club named the
"Squad Veteran Riders Motorcycle Club," in which he
currently serves as President. Id. ¶ 10. The
Squad Veteran Riders Motorcycle Club is a motorcycle club
that is involved in community, charitable, and political
activities. Id. All of its members are military
veterans. Id. Plaintiff is also a board member of
the National Council of Clubs and the Chair for the Southern
New Mexico Council of Clubs. Id.
September 11, 2019, Plaintiff brought this lawsuit, under 42
U.S.C. § 1983, against Defendants Chief of Police Greg
Allen-in his official capacity-and El Paso Police Department
("EPPD") Officer John Doe-in his individual
capacity-for violations of his rights secured by the First,
Second, Fifth, and Fourteenth Amendments to the United States
Constitution. Id. at 1. Specifically, Plaintiff
alleges that Defendants improperly included him into
Texas's law enforcement statewide gang database
TXGANG database is a statewide repository of records related
to criminal street gangs and gang members. Id.
¶ 14. Texas Code of Criminal Procedure 67.054 sets forth
the submission criteria that Texas law enforcement uses to
determine who can be classified as a criminal street gang
member in the database. See Tex. Code Crim. Proc.
Ann. art. 67.054 (Vernon 2019). Under article 67.054, law
enforcement can designate an individual as a criminal street
gang member if: (1) a court judgment exists in which the
court found that the individual committed a crime as a member
of a criminal street gang; (2) an admission in a judicial
proceeding exists in which the person admits to being in a
criminal street gang; or (3) law enforcement observe two of
I. a self-admission by the individual of criminal street gang
membership that is not made during a judicial proceeding,
including the use of the Internet or other electronic format
or medium to post photographs or other documentation
identifying the individual as a member of a criminal street
II. an identification of the individual as a criminal street
gang member by a reliable informant or other individual;
III. a corroborated identification of the individual as a
criminal street gang member by an informant or other
individual of unknown reliability;
IV. evidence that the individual frequents a documented area
of a criminal street gang and associates with known criminal
street gang members;
V. evidence that the individual uses, in more than an
incidental manner, criminal street gang dress, hand signals,
tattoos, or symbols, including expressions of letters,
numbers, words, or marks, regardless of how or the means by
which the symbols are displayed, that are associated with a
criminal street gang that operates in an area frequented by
VI. evidence that the individual has been arrested or taken
into custody with known criminal street gang members for an
offense or conduct consistent with criminal street gang
activity; among other criteria.
VII. evidence that the individual has visited a known
criminal street gang member, other than a family member of
the individual, while the gang member is confined in or
committed to a penal institution; or VII. evidence of the
individual's use of technology, including the Internet,
to recruit new criminal street gang members.
Id. Federal, state, and local law enforcement
agencies have access to the database. Compl. ¶ 14. Once
an individual has been designated as a criminal street gang
member, the Texas Department of Public Safety's
("DPS") computerized criminal history records will
show that the individual is considered a gang member by law
information and belief, Plaintiff alleges that EPPD included
him in the TXGANG database in 2017. Id. ¶ 13.
On or about August 2017, Plaintiff attended another
motorcyclist's funeral at a Catholic church in El Paso,
Texas. Id. ¶ 19. Law enforcement heavily
surveilled the funeral and took almost 4, 000 photographs of
the funeral's attendees and motorcycles, despite the fact
that the Catholic church and cemetery are not documented
areas of criminal street gang activity. Id. ¶
20. After hearing in 2019 that other motorcyclists that
attended the funeral had been included in the TXGANG
database, Plaintiff contacted DPS and asked if his name was
in it. Id. ¶ 21. DPS informed Plaintiff that
his information was in fact in the TXGANG database and that
the EPPD had input him into the database. Id.
instant lawsuit, Plaintiff seeks declaratory relief that
Plaintiffs inclusion in TXGANG database was improper because
(1) it violates his right to associate; (2) it attaches a
stigma with legal disabilities (including deterring travel
and preventing him from exercising his Second Amendment
rights); (3) Texas Code of Criminal Procedure Article
67.054(b)(2)(C) is unconstitutionally vague overbroad; and
(4) Texas Code of Criminal Procedure Articles 67.202-.203
violate substantive and procedural Due Process. Id.
at 1. On October 14, 2019, Defendants filed the instant
motion to dismiss for failure to state a claim. See
Mot., ECF No. 6.
Rule of Civil Procedure 12(b)(6) allows a party to seek
dismissal of a claim for "failure to state a claim upon
which relief can be granted." Fed.R.Civ.P. 12(b)(6). To
survive a Rule 12(b)(6) motion, a plaintiff must plead
"enough facts to state a claim to relief that is
plausible on its face." Bell Atl Corp. v.
Twombly, 550 U.S. 544, 570 (2007). To meet the
"facial plausibility" standard, the plaintiff must
"plead factual content that allows the court to draw
the reasonable inference that the defendant is liable for the
misconduct alleged." Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). The court's task, then, is "to
determine whether the plaintiff has stated a legally
cognizable claim that is plausible, not to evaluate the
plaintiffs likelihood of success." Doe exrel Magee
v. Covington Cty. Sch. Dist, 675 F.3d 849, 854 (5th Cir.
2012) (en banc). "Determining whether a complaint states
a plausible claim for relief... requires the reviewing court
to draw on its judicial experience and common sense."
Iqbal, 556 U.S. at 679.
Rule 12(b)(6) motion, the court "must accept all
well-pleaded facts as true, draw all inferences in favor of
the nonmoving party, and view all facts and inferences in the
light most favorable to the nonmoving party." Club
Retro, L.L.C. v. Hilton, 568 F.3d 181, 194 (5th Cir.
2009). "[A] well-pleaded complaint may proceed even if
it strikes a savvy judge that actual proof of those facts is
improbable, and that a recovery is very remote and
unlikely." Twombly, 550 U.S. at 556 (internal
quotes and citations omitted). "Iqbal does not
allow us to question the credibility of the facts pleaded
.... Iqbal, instead, tells us to assume the veracity
of well-pleaded factual allegations." Ramirez v.
Escajeda, 921 F.3d 497, 501 (5th Cir. 2019) (alteration,
internal quotes, and citations omitted).
in deciding the motion, "a district court may not go
outside the complaint." Gines v. D.R. Horton,
Inc., 699 F.3d 812, 820 (5th Cir. 2012) (internal quotes
and citations omitted). The court may, however, "rely on
documents incorporated into the complaint by reference and
matters of which a court may take judicial notice."
Dorsey v. Portfolio Equities, Inc., 540 F.3d 333,
338 (5th Cir. 2008) (internal quotes and citations omitted).
asserts a claim against Chief Allen in his official capacity
for the failure to properly train the officers under his
command on inputting people suspected of being criminal
street gang members. Compl. ¶¶ 41-42. Plaintiff
also asserts a claim against EPPD Officer John Doe in his
individual capacity for improperly inputting Plaintiff into
the TXGANG database "when there was no reason to
believe" Plaintiff was involved in criminal activity or
was a member of a criminal street gang. Id.
their motion, Defendants ask the Court to dismiss all of
Plaintiff s claims against them: (1) on the qualified
immunity ground; (2) for failure to exhaust available state
remedies; (3) for lack of injury or actual controversy to
entitle him to declaratory judgment; and (4) for failure to
state a claim under § 1983. Mot. at 2, 4, 5, 6. The
Court addresses each of Defendants' arguments in that