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.

12 (b)(6) Motions in Federal Court under Fourth Amendment

Our Law Firm has represented numerous clients in Federal Court with their Civil Rights case. We have consistently shown that the facts of the case are more important that precedent since it is those facts that changes the precedent.

Many time, our lawyers have been faced with 12(b)(6) motions in Federal Court and our response has been facts driven rather than law driven. An example of such is given herein for our readers perusal.

Public officials acting within the scope of their official duties are shielded from civil liability by the doctrine of qualified immunity. Harlow v. Fitzgerald, 457 U.S. 800, 815-19 (1982). Qualified immunity “serves to shield a governmental official from civil liability for damages based upon performance of discretionary functions if the official’s acts were objectively reasonable in light of then clearly established law.” Thompson v. Upshur County, Tex., 245 F3d 447, 456 (5th Cir. 2001). A “defendant’s acts are . . . objectively reasonable unless all reasonable officials in the defendant’s circumstances would have then known that the defendant’s conduct violated the United States Constitution or the federal statute as alleged by the plaintiff.” Id at 457.

An excessive-use-of-force claim requires a plaintiff to prove 1) an injury, which 2) resulted directly and solely form the use of force that was clearly excessive to the need, and the excursiveness of which was 3) objectively unreasonable. Ikerd v. Blair, 101 F.3d 430, 433-34 (5th Cir. 1996). This determination “requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Graham v. Connor, 490 U.S. 396 (1989).

In Iderd, plaintiffs brought a 1983 action on behalf of their children claiming that a police officer used excessive force against the child during an arrest of her father. Iderd, 101 F.3d at 432. During the arrest, the police officer jerked the child out of her chair and dragged her into the kitchen, which resulted in her re-injuring a broken arm. Id. In determining the first and second elements required to establish an excessive force claim, the court maintained that “the extent of the injury suffered by a plaintiff is one factor that may suggest whether the use of force was excessive in a particular situation.” Id. at 434. In analyzing the third element, the court reasoned that “in gauging the objective reasonableness of the force used by a law enforcement officer, we must balance the amount of force used against the need for that force.” Id. In overruling the district court’s judgment as a matter of law for the officer, the Fifth Circuit held that the evidence presented as sufficient for a reasonable jury to conclude that the officer used objectively unreasonable force against the plaintiff. Id. at 435.

In Meaux v. Williams, 113 Fed. Appx. 593, 595 (5th Cir. 2004), the Fifth Circuit reversed the district court’s grant of summary judgment, holding that a genuine issue of material fact existed as to whether the police officer used excessive force when arresting the plaintiff. Id. at 594. Meaux alleged that when he answered the door, he was pulled out of his house and handcuffed.

In Heflin v. Town of Warrenton, 944 F.Supp. 472 (E.D.Va. 1996) the United States District Court for the Eastern District of Virginia overruled defendant’s motion to dismiss a 1983 excessive force claim. After a domestic disturbance between brothers, several police officers responded to a residence and arrested several family members. Id. at 473. While effectuating the arrest, the police officers allegedly used excessive force against the plaintiff when he “proceeded to drag Heflin, by the handcuffs, up the concrete steps to the parking lot. In the course of this, Heflin suffered abrasions to his stomach and face, for which he subsequently sought medical treatment.” Id. at 474.

In Harper v. Harris County, Texas, 21 F.3d 597, 599 (5th Cir. 1994) the Fifth Circuit concluded that allegations that an officer grabbed plaintiff by the throat and bruised knee, were sufficient to withstand a summary judgment seeking dismissal of an excessive force claim. In Harper, the Fifth Circuit applied the test of excessive force in effect prior to the Supreme Court case of Hudson v. McMillian, 503 U.S. 1 (1992), which eradicated the requirement of showing “significant” injury in order to prove an excessive force claim. Id. at 601.

Local Rule CV-12 provides, in pertinent part, that “. . . the opposing party shall have eleven days from the date the motion to dismiss is served on the opposing party, to file a response and to specify what, if any, discovery is necessary to determine the issue(s) of qualified immunity and the time period necessary for the specific discovery. Discovery needs to be conducted to see whether a good faith “qualified immunity” exist and whether the Officer Defendants acted reasonably under the circumstances in injuring a two year old child and a disabled veteran based on a “loud noise” dispatch. Plaintiffs should be allowed to obtain the video tape of the incident so they may investigate as to what threat, if any, was posed by Plaintiffs (especially the child) that caused the Officer Defendants to use excessive force. Plaintiffs would also need to depose the Officer Defendants, which can be done within 90 days, from the time the court order discovery.

Officer Defendants argue that the filling of a suit against a governmental entity pursuant to the Texas Tort Claims Act (“TTCA”) creates an irrevocable election and forever bars suit against any government employees in their individual capacity regarding the same subject matter. TEX. CIV. PRAC. & REM. CODE § 101.106(a). They argue that, if a suit is filed pursuant the TTCA against a government unit and any of its employees, the employees are entitled to immediate dismissal upon the filing of a motion by the government unit. Id. However, the Fifth Circuit recently rejected the Officers’ section 101.106 argument because the TTCA does not apply to intentional torts. Meadours v. Ermel, 483 F.3d 417 (5th Cir. 2007). The court concluded that section 101.106 cannot be construed as a statutory bar to intentional tort claims.


In most cases, an expert is not needed to bring a case in Federal Court for violations of the Fourth Amendment but sometimes is necessary if the Plaintiff is seeking to bring Municipalities into the suit.

Do you have a civil rights violation and do not know how to handle it, give us a call (210) 979-9777. Our lawyers are here to help you!

A check from an insurance company Returned for Non Sufficient Funds

Our law firm handles thousands of personal injury claims with multiple insurance companies on behalf of our clients. Recently, we had a claim settled with Old American County Mutual Fire Insurance Co. on a personal injury case and guess what, their check bounced. We received notice from our IOLTA account that their check was "Returned Reason-Not Sufficient Funds!!!!

This creates serious problems: 1)the money is not ours to begin with 2)the clients want their money 3) the law firm is placed on a predicament because of this insurance company 4) the insurance company is not honoring their commitments. What are we to do?

Rather than filling suit against the insurance company or even contacting the District Attorney's Office for help (since the amount is way above the felony amounts) we are writing this entry for several reasons.

First, to let the public know that it happens. Second, to solicit further information from fellow attorneys and law firms on cases such as this; to make a determination if this is a common practice or an isolated case. Finally, to appeal to American County Mutual to make it right for our clients.

We have called, the insurance company but their automated system always says "all of our agents are busy now, please leave your name, number and we will call you as soon as possible." We are still waiting.

Our clients are hard working individuals that lives have been affected by the negligence of some one, and now, by the irresponsibility of an insurance company. We call that a "double whammy." This should never happen to any one! We are writing this because, we care about your legal needs!!!

Say no to the marijuana drinks!

Marijuana in a soda form is getting popularity throughout Texas.This blog is to help consumers and parents to be alert of the new fetish.

A marijuana soda is creating a buzz here in Texas. With names like "Orange Kush" and "Canna Cola," these soda pops don't just appeal to the sweet tooth -- they are infused with marijuana.

You won't be able to find these drinks on San Antonio shelves, but the company Canna Cola hopes to crank out another version for non-marijuana medical consumers.

As responsible Texans, we all need to say no to this drinks.

Here is the link to the video:

Do you have to tell your insurance company?

In Texas, insurance companies have ways to get out of having to pay for the accident caused by their insured. This is so because, the insured has an affirmative duty to inform "or give notice" to the insurance company about potential exposure to liability.

For example, we represented an injured person and won at the trial. The insurance company filed an appeal, we won that too, yet, the insurance gets another bite at the apple when now, they are claiming that, the insured never gave them "notice." I guess they forgot that they filed the appeal.

This is just an example of how insurance companies used their power (money) to get out of paying for their responsibilities. This is why they are rich, and we are not! If you have a problem with your insurance company, give us a call (210) 979-9777 or visit our websites: http://www.thebaezlawfirm.com or http://www.san-antonio-lawyer-attorney.com

What to do when you have an accident

Many people are not aware of what to do when they have an accident. Fortunately, many of you will never have to do deal with this situation; however, if you do, then you should know what to do. When a person causes an accident or when the person is not responsible for the accident, the actions taken at the scene should be the same.

First, check to see if any one is injured. If a person is injured, call an ambulance. This is important because a life could be at risk, and the prompt actions of person could be the difference between life and death. Next, make sure there is no more potential for further accidents. If the scene is unsafe, call the police and wait for their instructions. If the scene is safe, then exchange insurance information.

Next, gather names and phone numbers of witnesses. Many people forget this step and that is the difference on the determination of liability. If possible, take pictures of the accident. This could help you later on in the case.

Finally, call your insurance company and take directions from them.

NEVER admit to any liability at the scene. This is when many people go wrong. It is not the job of the people involved in the accident to determine liability, that is the job for the insurance adjuster.

If you, or some one you love has been injured in an accident, give us a call (210) 979-9777. You can visit our websites at: The Baez Law Firm, P.C. or San Antonio Lawyers.

What is a "police brutality" case?

Depending on which side of the spectrum (political, social, economical) you are in, you may either believe that there is no police brutality in Texas or yes there is. The Baez Law Firm has been fighting for injured Texans as a result of police brutality for some time, and so, we believe that there is way too much brutality!

42 U.S.C § 1983 is the main source of law when police brutality is at issue. The statute states: "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable."

Based on this law, our law firm has successfully litigated numerous "police brutality" cases in Texas. If you or some one you love has been a victim of police brutality, give us a call (210) 979-9777.