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Apodaca-Fisk v. Allen

United States District Court, W.D. Texas, El Paso Division

January 13, 2020

GREG ALLEN, in his official capacity as Chief of the El Paso Police Department and JOHN DOE, an El Paso Police Department Officer in his individual capacity, Defendants,



         Presently 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.

         I. BACKGROUND

         The 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).

         Plaintiff 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.

         Although 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.

         Plaintiff 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.[1] Id.

         On 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.[2] Id. at 1. Specifically, Plaintiff alleges that Defendants improperly included him into Texas's law enforcement statewide gang database ("TXGANG")- Id.

         The 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 the following:

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 gang;
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 the individual;
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.[3] 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 enforcement. Id.

         On 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.

         By the 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.

         II. STANDARD

         Federal 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.

         On a 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).

         Finally, 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).


         Plaintiff 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. ¶¶ 43-45.

         By 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 order.

         A. ...

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