Regalado v. City of Edinburg

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ROGELIO REGALADO, Plaintiff, v. CITY OF EDINBURG, Defendant.

Civ. No. 7:22-cv-228

United States District Court, S.D. Texas, Mcallen Division

February 1, 2023

REPORT AND RECOMMENDATION

JUAN F. ALANIS UNITED STATES MAGISTRATE JUDGE

Plaintiff Rogelio Regalado, proceeding pro se, initiated this civil action against the Defendant, the City of Edinburg, on July 6, 2022, in the 206th Judicial District Court of Hidalgo County, Texas. (Dkt. No. 1.) On July 17, 2022, the Defendant removed said cause of action to the United States District Court for the Southern District of Texas pursuant to 28 U.S.C. § 1446(a). Id. In the Complaint Plaintiff alleges a deprivation of his constitutional rights during his arrest and subsequent detention on or about December 7, 2021, and requests relief pursuant to 42 U.S.C § 1983. (Dkt. No. 1-2.) On July 29, 2022, Defendant filed a motion to dismiss Plaintiffs Complaint. (Dkt. No. 3.) On September 6, 2022, Plaintiff filed a motion requesting permission to supplement his complaint. (Dkt. No. 7.) On September 9, 2022, Plaintiffs motion to supplement complaint was granted. (Dkt. No. 10.) On October 11, 2022, Plaintiff filed his supplemented complaint (Dkt. No. 22)^[1] and a response to Defendant's motion to dismiss (Dkt. No. 23). On October 27, 2022, Plaintiff filed a request for permissive intervention and/or request for leave to file an amicus brief. (Dkt. No. 24.) On November 8, 2022, Defendant filed a motion to dismiss Plaintiffs amended complaint. (Dkt. No. 25.) On November 21, 2022, Plaintiff filed a motion requesting appointment of counsel. (Dkt. No. 26.) On November 25 and 28, 2022, respectively, Plaintiff filed a motion requesting to amend and/or supplement his amended complaint and a response to Defendant's motion to dismiss his amended complaint. (Dkt. Nos. 27, 28.) On November 30, 2022, Defendant filed a response to Plaintiffs motion to amend his amended complaint and “Reply to Plaintiffs Response to Motion to Dismiss as to Plaintiffs First Amended Complaint.” (Dkt. Nos. 29, 30.) On December 1, 2022, Plaintiff filed “Request for Leave to Amend/Supplement/Proposed 3rd Amended Complaint, or alternatively, Declaration in Support of Complaint.” (Dkt. No. 31.)

On December 12, 2022, Plaintiff filed a motion requesting class certification under Rule 23 regarding the bail bond schedule used by the City of Edinburg. (Dkt. No. 32.) On December 16, 2022, Plaintiff filed an additional response to Defendant's “Reply to Plaintiffs Response to Motion to Dismiss as to Plaintiffs First Amended Complaint,” as well as “Motion to Remand and/or Sever and Remand.” (Dkt. Nos. 34, 35.)

On January 4, 2023, Defendant filed “Response to Plaintiffs Motion for Leave to Amend/Supplement Proposed Third Amended Complaint” and “Response to Plaintiffs Motion for Class Certification.” (Dkt. Nos. 38, 39.) On January 9, 2023, Defendant filed “Response to Plaintiffs Motion to Remand, or, In the Alternative, Motion to Sever and Remand.” (Dkt. No. 40.)

As of December 19, 2022, outside of the noted responses filed in early January by Defendant, an Order was issued that no other pleading or motions would be considered pending review and resolution of the matters pending before the Court.^[2] In direct violation of the Order prohibiting any further motions (Dkt. No. 36), Plaintiff has filed two additional motions with this Court. On January 23, 2023, Plaintiff filed a motion requesting sanctions against Defendant and a motion requesting leave to amend his third amended complaint. (Dkt. Nos. 41, 42).

After careful consideration of the pleadings and relevant case law, the undersigned recommends that “Defendant's Motion to Dismiss as to Plaintiffs First Amended Complaint” (Dkt. No. 25) be GRANTED.

The undersigned recommends that Plaintiffs “Special Motion for Appointment of Counsel” (Dkt. No. 26), “Request for Leave to Amend/Supplement and Plaintiffs Second Amended Complaint” (Dkt. No. 27), “Request for Leave to Amend/Supplement/Proposed 3rd Amended Complaint” (Dkt. No. 31), “Request for Leave to Amend/Supplement/Proposed 4th Amended Complaint” (Dkt. No. 42) all be DENIED. The undersigned recommends that Plaintiffs request for class certification and appointment of counsel (Dkt. No. 32) and motion to sever and/or remand (Dkt. No. 35) be DENIED. The undersigned recommends that Plaintiffs “Request for Leave to File Motion for Sanctions” (Dkt. No. 41) be DENIED as moot.

And, the undersigned recommends that Defendant's first motion to dismiss (Dkt. No. 3) be DENIED as moot and that Plaintiffs Original Petition and Amended Complaint (Dkt. Nos. 1-2, 22) be DISMISSED with prejudice for failure to state a claim and this matter be closed out.

I. BACKGROUND

On or about December 7, 2021, Plaintiff was arrested by the Edinburg Police Department under a parole warrant. (Dkt. No. 1-2 at 2, ¶5.1.) At the time of arrest, Plaintiff was also charged with possession of marijuana, possession of a controlled substance, and criminal trespassing. (Id. at 1 -2, ¶5.1.) The next day, Plaintiff was arraigned on the charges without the assistance of counsel and bond was set totaling $45,000 ($35,000 for possession of a controlled substance, $5,000 for possession of marijuana, and $5,000 for criminal trespassing). (Id.) On March 15, 2022, Plaintiff was convicted of criminal trespass. (Dkt. No. 25-1, Ex. A.)

Plaintiff alleges a series of constitutional violations. First, Plaintiff alleges that he was subject to excessive bail in violation of the Eighth Amendment. (Dkt. No. 1-2 at 4, ¶6.3.) Second, Plaintiff alleges that he requested counsel at the arraignment hearing and counsel was not appointed, in violation of Sixth Amendment right to counsel. (Id. at 5, ¶6.4.) Third, Plaintiff alleges he was wrongfully arrested for the charge of possession of a controlled substance in violation of the Fourth Amendment. (Dkt. No. 1-2 at 3, ¶6.1.) Specifically, Plaintiff argues that he lawfully purchased “a bake vaporizing device that contained cannabidiol (CBD) Delta 8, which was legal in the State of Texas at the time the charges were filed.” (Id.) Plaintiff argues that pursuant to said wrongful arrest, the Edinburg Police Department conspired to violate his constitutional right to be free from illegal seizure of his personal property, specifically Plaintiffs vaporizing device. (Dkt. No. 22 at 6, ¶3.) Fourth, Plaintiff alleges that while in custody he was subject to cruel and unusual punishment in violation of the Eighth Amendment (Dkt. Nos. 1-2 at 4, ¶6.2; 22 at 6, ¶2), specifically that he “was held in an extremely cold cell and was not provided with any blankets or other means of warmth” (id. at 6, ¶2), was denied medical care until he had a seizure (id. at 4, ¶V), and was given nutritionally deficient food (id. at 6, ¶¶2, 5). Fifth, Plaintiff alleges that Defendant intentionally inflicted emotional distress on Plaintiff when Defendant denied him medical and psychiatric attention while in custody. (Dkt. No. 22 at 6, ¶4.) Sixth, Plaintiff argues that Defendant negligently trained the officers, employees, agents, or contractors regarding the above-mentioned allegations made by Plaintiff. (Dkt. No. 22 at 6, ¶6.) Pursuant to these claims, Plaintiff is seeking actual and special damages of more than $1,000,000, injunctive relief, declaratory relief, and prospective relief against Defendant. (Id. at 4, ¶VI.)

In response to Plaintiffs amended complaint, Defendant filed a motion to dismiss, arguing that the facts, even if taken as true, do not entitle the Plaintiff to relief. (Dkt. No. 25.) Furthermore, Defendant argues that even if the facts alleged did give rise to a potential § 1983 claim, qualified immunity prevents the City of Edinburg from being liable for constitutional violations of its employees so the complaint must be dismissed. (See generally id.)

Subsequently and will be addressed within this report as well, on November 25, 2022, Plaintiff filed “Request for Leave to Amend/Supplement and Plaintiffs Second Amended Complaint.” (Dkt. No. 27.) Within this request Plaintiff detailed the nature of his medical history (id. at 2, ¶¶1 .3, 1.4; 7-8, ¶¶1 .8, 1.9), provided more details regarding conditions of confinement (id. at 3-5, ¶¶1.5, 1.6), and detailed the medical attention received while incarcerated (id. at 6, ¶1.7.). Also, in Plaintiffs second amended complaint, Plaintiff seeks to add additional causes of action, including claims under the Civil Rights of Institutionalized Persons Act of 1980, the American with Disabilities Act of 1990, and the Rehabilitation Act of 1973. (Id. at 8, ¶2.1.) Further, Plaintiff seeks to join additional defendants as parties to the suit, including Judge Hector Bustos, Edinburg City Council members, John Doe Officers #2 and #3, former Mayor Richard Molina, and former Municipal Judge Toribio (“Terry”) Palacios. (Id. at 9, ¶¶3.1, 3.2, 3.3.)^[3] On December 1, 2022, Plaintiff filed “Request for Leave to Amend/Supplement/Proposed 3rd Amended Complaint, or Alternatively, Declaration in Support of Complaint.” (Dkt. No. 31.) Within this request Plaintiff alleges that the bail setting scheme is unconstitutional because, when setting bail, the judges do not consider the defendant's ability to pay. (Id. at 2, ¶1 .3.) Plaintiff asserts that the failure to account for the defendant's ability to pay violates the Equal Protection and Due Process Clauses of the United States and Texas State Constitutions because it effectively discriminates against indigent offenders. (Id. at 3, ¶1.4.) Plaintiff sets out additional arguments on why he believes the municipal judges should be held responsible as policymakers and why Defendant should be held liable based on the actions of the jailers as well as in consideration of the conditions Plaintif...