How to object to a recommendation by a Magistrate Judge in District Court

Our Law Firm has objected on numerous occasion the recommendation given by Magistrate Judges to the District Judges during the litigation of our cases. Bellow, is one of such objections for our readers perusal.

The recommendation that Defendant's claims against him on his official capacity and individual capacity should be dismiss are not based on precedent. In Kentucky v. Graham, 473 U.S. 159, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985), the Court sought to eliminate lingering confusion about the distinction between personal- and official-capacity suits. The Court emphasized that official-capacity suits generally represent only another way of pleading an action against an entity of which an officer is an agent. Id., at 165, 105 S.Ct., at 3104 (quoting Monell v. New York City Dept. of Social Services, 436 U.S. 658, 690, n. 55, 98 S.Ct. 2018, 2035, n. 55, 56 L.Ed.2d 611 (1978)). Suits against state officials in their official capacity therefore should be treated (emphasis added) as suits against the State. 473 U.S., at 166, 105 S.Ct., at 3105. Though the Judge relied on Monell for the recommendation to dismiss the Defendant in the instant suit in his official and individual capacity, nowhere in Monell did the Court suggest that the claim against the individual defendant be dismissed in a 12(b)(6) motion.

Indeed, when officials sued in this capacity in Federal court die or leave office, their successors automatically assume their roles in the litigation. See Fed.Rule Civ.Proc. 25(d)(1); Fed.Rule App.Proc. 43(c)(1). The action is not dismissed, it continues.

Because the real party in interest in an official-capacity suit is the governmental entity and not the named official, the entity's policy or custom must have played a part in the violation of federal law. Graham, supra, at 166, 105 S.Ct., at 3105 (quoting Monell, supra, 436 U.S., at 694, 98 S.Ct., at 2037). Plaintiff plead facts in her amended complaint sufficiently to indicate that the Defendant, as the lead officer in his department played a part in carrying out the policies or customs that led to Plaintiff’s rape.

For the same reason, the only immunities available to the defendant Defendant in an official-capacity action are those that the governmental entity possesses. 473 U.S., at 167, 105 S.Ct., at 3105. This is found in Hafer v. Melo, 502 U.S. 21, 25, 112 S. Ct. 358, 361-362, 116 L. Ed. 2d 301 (1991). The language does not suggest that once a claim is filled against an individual in his official capacity, the claims against the official capacity individual should be dismissed.

The phrase, “Acting in their official capacities” is best understood as a reference to the capacity in which the State officer is sued, not the capacity in which the officer inflicts the alleged injury. Hafer at 26.

Like Hafer, Plaintiff is seeking redress for of constitutional rights, privileges and immunities by an official's abuse of his position, including the actions and omissions of Defendant. The Defendant and its’ policies and/or customs played a part in causing the rape and alleged damages which Plaintiff believes is a violation of federal law. But for Defendant's failure to implement a policy to prevent Deputies from terrorizing individuals of the different sex, Plaintiff would not have suffered a rape. The current policy in place, ratified, directed, and enforced by Defendant, allows officers of opposite sex to take advantage of defenseless individuals such as Plaintiff.

Through §1983, Congress sought to give a remedy to parties deprived of constitutional rights, privileges and immunities by an official's abuse of his position. Monroe v. Pape, 365 U.S. 167, 172, 81 S.Ct. 473, 476, 5 L.Ed.2d 492 (1961). Accordingly, it authorized suits to redress deprivations of civil rights by persons acting under color of any [state] statute, ordinance, regulation, custom, or usage. 42 U.S.C. § 1983. In their findings, the Court stated “the requirement of action under color of state law means that Hafer may be liable for discharging respondents precisely because of her authority as auditor general.” The Court ruled that “We cannot accept the novel proposition that this same official authority insulates Hafer from suit.” Hafer at 27-28. This is quite the opposite of what Judge recommended. In essence, Judge insulated Defendant from suit based on official authority, not on his official actions.

Conversely, Judge found that “She does specifically allege that Defendant, through his intentional acts of malfeasance, omissions, neglect, and failure to select, train, supervise, discipline, remove and prosecute his subordinate deputies, deprived Cerda of her constitutional rights under the Fourth, Fifth, Sixth, Eight and Fourteenth Amendments of the Constitution of the United States and under 42 USC § 1981, 1983 and 1985(3).” Recommendations p.14; It is his overall responsibility to supervise and train his deputies and the policy he ratified, directed and enforced to allow unsupervised opposite sex arrests, proximately caused the instant constitutional violations. However, Judge recommendations Dismisses the Defendant in both individual and official capacity. Judge is requiring a higher standard for Plaintiff pleading her case beyond that which is required by precedent. A Federal court may not apply heightened pleading standard, more stringent than usual pleading requirements of civil rule, in civil rights cases alleging municipal liability under 42 U.S.C.A., §1983; Fed.Rules Civ.Proc., Rules 8(a)(2), 9(b), 28 U.S.C.A. Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 113 S. Ct. 1160, 122 L. Ed. 2d 517 (1993).

In Leatherman, the Supreme Court stated “We think that it is impossible to square the heightened pleading standard applied by the Fifth Circuit in this case with the liberal system of notice pleading set up by the Federal Rules. Rule 8(a)(2) requires that a complaint include only a short and plain statement of the claim showing that the pleader is entitled to relief. In Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957), we said in effect that the Rule meant what it said:”
“The Federal Rules of Civil Procedure do not require a claimant to set out in detail the facts upon which he bases his claim. To the contrary, all the Rules require is a short and plain statement of the claim that will give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests.” Id., at 47, 78 S.Ct., at 103, Leatherman at 168.

Rule 9(b) does impose a particularity requirement in two specific instances. It provides that in all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity. Thus, the Federal Rules do address in Rule 9(b) the question of the need for greater particularity in pleading certain actions, but do not include among the enumerated actions any reference to complaints alleging municipal liability under § 1983. Expressio unius est exclusio alterius. Id. at 168.

Since Judge found that claims against Defendatn under the Fourth Amendment and under Due Process Clause of the Fourteen Amendment, pursuant § 1983 remain for trial, the same result should be obtained against Defendant. The same averments of facts and causes of action were pleaded for the County and for the Defendant, yet with different results. This dichotomy should only be resolved by keeping both Defendants for claims for § 1983 or by allowing a Rule 7 to be submitted.
III.
The general rule is that there is an extremely high burden before a Court can dismiss pursuant Rule 12(b)(6) because the complaint must be liberally construed and well pleaded factual allegations in the complaint must be accepted as true. Woodard v. Andrus, 419 F.3d 348, 351 (5th Cir. 2005). If the facts, as pleaded are enough to overcome dismissal for the County, the same facts should overcome dismissal for the Defendant.

A motion to dismiss under Rule 12(b)(6) is viewed with disfavor and is rarely granted. Fernandez-Montez v. Allied Pilots Assoc., 987 F.2d 278 (5th Cir. 1993). Conversely, a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt the plaintiffs can prove no set of facts in support of a claim which would entitle them to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Plaintiff has made averments in her Complaint that should overcome a 12(b)(6) dismissal. Conversely, Plaintiff has requested a Rule 7 to prove some other set of facts in support of her claims. By dismissing the Defendant, she was denied of her right to redress. Plaintiff is attempting to have a change in the policy and custom of the Defendants that allow deputies too much power and no supervision.

Our San Antonio Lawyers will fight for your rights in court all the time.

Personal Injury Trial Lawyers

The Baez Law Firm has been helping injured Texans for several years. Our attorneys will take time to listen to your facts, and will take your case to trial when necessary. Many times though, our attorneys have the tough job to tell a client that, there is no case. When you have been wronged by someone, come see us. We will treat you with respect and dignity. When someone is responsible for their negligence, come see us. We can help, but if we can't, we often tell you who can. Come see us, and you will see the difference from the moment that you walk through our doors. Your personal injury consultations are always free. Visit our websites at http://www.thebaezlawfirm.com or http://www.san-antonio-lawyer-attorney.com

Wrongful death in Texas

Our law firm has been handling wrongful death cases in Texas on behalf of the family members that lost their loves one. A wrongful death occurs when, by negligence or malfeasance of some one, a person dies. It is not to be confused with murder, although there are civil implications from that criminal action (like OJ Simpson's case), but for the most part, a criminal act does not have to be involved.

Texas statute provides that a person is liable for damages arising from an injury that causes an individual's death if the injury was caused by the person's or his agent's or servant's wrongful act, neglect, carelessness, unskillfulness, or default. This is found in the Texas Civil Practice and Remedies Code Sec. 71.002.

Many times the wrongful death was because of medical malpractice, in which case the attorneys handling the case must be knowledgeable and careful with the handling of the case because Chapter 74 of the statute will apply.

Last week our law firm took on a case that our client's children were killed by the negligence of a police department that did nothing to prevent the death of the children. We will keep our readers posted on the results of the case. During this difficult times, our law firm provides the counseling, comfort and compassion needed by the families of the victims.

We are proud of providing legal representation in Texas for the families that would otherwise would have no way to have their cases heard in Court. Although we mainly serve the San Antonio our law firm has cases all throughout Texas and will continue to help the families of Texans.

Our attorneys will treat you with respect and dignity and you will be treated like a family member and not a number. Contact us so that we can discuss your potential case. Let us be your legal team.

Boating accident or injury, come see us

Summer time has officially started in Texas. As such, many people will take out their summer gear, including their boats. However, not all of the individuals are aware of Texas law, regarding boating accidents.

In it pertinent parts, the law states: "Operators of vessels involved in any collision, accident or other casualty resulting in death or injury to any person or property damage exceeding $500 must file a full accident report within 30 days in accordance with Texas Parks and Wildlife Department regulations. Failure to file a report is punishable as a Parks and Wildlife Class C misdemeanor. Accident reports filed by the operator(s) are confidential and not admissible as evidence in court. Report forms may be obtained from Texas Parks and Wildlife officers, marine safety enforcement officers, or game wardens." This part covers the reporting requirements.

Moreover, the law states: "the operator of any vessel involved in a boating accident must stop and render needed assistance unless such action would endanger his crew, passengers or his own vessel. The operator must give his/her name, address, and vessel identification number in writing to any injured person and to the owner of any damaged property. Failure to render aid in an accident resulting in death or serious bodily injury is punishable as a Parks and Wildlife felony. Failure to render aid in an accident not resulting in death or serious bodily injury is punishable as a Parks and Wildlife Class A misdemeanor."

Finally, the law states:"It is unlawful to operate while intoxicated. (Intoxication is defined as the loss of mental or physical faculties, or blood alcohol content of 0.08 or greater). A first conviction is punishable by a fine not to exceed $2,000, confinement in jail not to exceed 180 days, or by both. A second conviction is punishable by a fine not to exceed $4,000, confinement in jail not to exceed one year, or by both. A third conviction is punishable by a fine not to exceed $10,000, imprisonment in jail for not more than 10 years or less than 2 years. Failure to submit a specimen to determine blood alcohol content may result in the suspension of the operator’s driver's license."

Texans need to be aware of the laws that governs boating and adhere to those laws, so that every one can have a more enjoyable summer.

If you have been injured as a result of some one's negligence, The Báez Law Firm, P.C. is here for you. We are a general practice law firm that cares about your legal needs. We handle personal injury, family law, business law, criminal law, bankruptcy, litigation, appeals and many more.

Insurance companies not paying?

If you are like me, that deals with insurance companies all the time, you will know that insurance companies are not paying on their liability like they used to. Why is that? Maybe the economy is affecting them just like any other area of the market.

Although policy holders ultimately are the ones that will pay the increase in premiums, insurance companies nevertheless are not paying on accidents as much and as fast as they used to. What used to take our law firm one month to settle it's taking over six months in today's economy.

Unfortunately, the people affected by the accidents are the ones who suffer, while the shareholders of the insurance companies are getting richer. That is our free enterprise system, the rich get richer and the injured gets caps on damages.

If you have been injured in an accident, please contact our law firm. We are trained on handling insurance companies to get you the maximum amount for your claim.

Should you contact a lawyer?

The longer I practice law, the more I am amazed at the fact that people are trying to take care of their own legal matters. In my opinion, it all comes from too many television shows about lawyers and how they argue, and on TV, how they win all of the cases, all the time. Because of the media, people thing that they too can take care of their legal matters.

The problem with that is very simple. I tell all of my clients that ask me if they should have an attorney take care of their legal problems, my response is always the same. I ask them if they had a medical condition that would require surgery if they wold do it for themselves. I also ask them if they had to change the transmission on their cars would they do it and the response for both of examples is always the same, they would not. So I ask them, why then, would you think that you can do your own legal case?

You should always allow the people that have a specialty on something do what they are trained to do. Although you may think that you are perfectly qualify to handle your case, and even though you may be the most intelligent person in the planet, the fact remains that, when you argue your own case, you can never have an objective way to handle since you will subjectively be involved with the outcome of the case.

In law school they teach you that, only a fool has him/her selves are a client. Don't you be the one to be fooled. Please contact our lawyers if you have a legal problem, specially involving personal injury.

The Baez Law Firm, P.C. is a general practice law firm that is ready to help you during difficult times. We specialize in personal injury and handle criminal law, auto accidents, family law, business law, consumer law, litigation, and appeals.