Opinion
CAUSE NO. EP-19-CV-217-KC-ATB
2022-09-02
Fernando MORALES, individually and on behalf of his minor children, F.M. and D.M.; and Zerenia Cardoza, in her individual capacity, Plaintiffs, v. Enrique CARRILLO; Aaron Carrillo; Julio Guereca; Pete Herrera; Gabriel Lechuga; Ruben Cardenas; Miguel Carzoli; Alberto Aguirre; Joseph Valenzuela; City of El Paso, Texas; El Paso Police Department; Juan Ferrel; Martin Gonzalez; and Greg Allen, Defendants.
James Darrell Lucas, Mike Milligan, Attorney at Law, El Paso, TX, for Plaintiffs. Cindy M. Vazquez, M. Mitchell Moss, Moss Legal Group PLLC, El Paso, TX, Eric M. Brittain, Windle Hood Norton Brittain & Jay LLP, El Paso, TX, for Defendants Enrique Carrillo, Aaron Carrillo. Joseph L. Hood, Jr., Eric M. Brittain, Windle Hood Alley Norton Brittain & Jay, LLP, El Paso, TX, for Defendants Ruben Cardenas.
James Darrell Lucas, Mike Milligan, Attorney at Law, El Paso, TX, for Plaintiffs. Cindy M. Vazquez, M. Mitchell Moss, Moss Legal Group PLLC, El Paso, TX, Eric M. Brittain, Windle Hood Norton Brittain & Jay LLP, El Paso, TX, for Defendants Enrique Carrillo, Aaron Carrillo. Joseph L. Hood, Jr., Eric M. Brittain, Windle Hood Alley Norton Brittain & Jay, LLP, El Paso, TX, for Defendants Ruben Cardenas. ORDER KATHLEEN CARDONE, UNITED STATES DISTRICT JUDGE
On this day, the Court considered the above-captioned case. On March 10, 2022, the Court referred Defendant Ruben Cardenas' Motion for Summary Judgment ("Cardenas Motion"), ECF No. 112, and Defendants Enrique Carrillo and Aaron Carrillo's Joint Motion for Summary Judgment ("Carrillo Motion"), ECF No. 113, to Magistrate Judge Anne T. Berton for a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). See Order Ref'g Mots., ECF No. 126. The Report and Recommendation ("R&R") concludes that the Cardenas Motion should be granted and the Carrillo Motion should be denied. R&R 1-2, ECF No. 136. On June 30, 2022, Plaintiffs filed an Opposed Motion for Leave to Amend their Complaint ("Motion to Amend"), ECF No. 139. For the reasons set forth below, the R&R is ADOPTED IN PART, the Cardenas Motion is DENIED, the Carrillo Motion is DENIED, and the Motion to Amend is DENIED.
I. BACKGROUND
A. Factual History
This case arises from a physical altercation between Plaintiff Fernando Morales and Defendants Sgt. Enrique Carrillo and Aaron Carrillo (collectively "the Carrillos"). The Court reads the evidence "in the light most favorable to the nonmovant[s] and draw[s] all reasonable inferences in the nonmovant[s'] favor." Wisznia Co. v. Gen. Star Indem. Co., 759 F.3d 446, 448 (5th Cir. 2014). All of Defendants' Proposed Undisputed Facts ("PUF") that Plaintiffs do not dispute are taken as true. See Fed. R. Civ. P. 56(e) ("If a party fails to . . . properly address another party's assertion of fact as required by Rule 56(c), the court may . . . consider the fact undisputed for purposes of the motion."); Resp. Cardenas PUF, Pls.' Combined Resp. Defs.' Mots. Summ. J. ("Resp. Mots.") App'x A, ECF No. 119-1; Resp. Carrillo PUF, Resp. Mots. App'x B, ECF No. 119-1.
On July 1, 2017, Morales was driving his Ford truck in a Walmart parking lot after spending the day at a water park. Decl. Jaquez ¶¶ 2-6, Resp. Mots. App'x C, ECF No. 119-1. His wife, Plaintiff Zirenia Cardoza; minor children, F.M. and D.M.; and cousin Yesenia Jaquez were among the passengers in the truck. Decl. Morales ¶ 2, Resp. Mots. App'x E, ECF No. 119-1. Morales had to brake suddenly when a Nissan turned left in front of him. Id. ¶ 4. Sgt. Carrillo, an off-duty officer in the El Paso Police Department ("EPPD"), was driving this Nissan, with his adult son Aaron Carrillo as a passenger. Id. ¶¶ 5, 7; EPPD Internal Affairs File ("EPPD File") 145, Cardenas Mot. Ex. B, ECF No. 112-1. After the near-collision, Morales saw the Nissan come to a stop, so he parked his vehicle as well and approached the Nissan "to see if the other driver was drunk." Decl. Morales ¶ 4.
Evidence from the police department's internal affairs file, attached to the Cardenas Motion as Exhibit B, is cited using the "EPPD" Bates numbering on those pages.
Sgt. Carrillo opened his door and began to speak with Morales—but then, without any physical provocation, Aaron Carrillo grabbed Morales from behind and placed him in a chokehold. Id. ¶ 5. Aaron Carrillo pulled Morales to the ground, continuing to choke him. Id. ¶ 6. When Morales began to struggle against the chokehold, Sgt. Carrillo, now kneeling beside him, started punching his head and body. Id. ¶ 6. Jaquez tried to intervene, but Sgt. Carrillo pushed her away and returned to beating Morales. Id.
Sgt. Pete Herrera, an off-duty EPPD officer, witnessed the ongoing altercation and called 911. EPPD File 62-63. He told the 911 operator, "[a] guy's on the ground and they're beating him up." See Resp. Mots. 6 (transcription of audio recording provided at Resp. Mots. Ex. P-4, ECF No. 119-1). He originally did not intend to help separate the parties—but once he recognized Sgt. Carrillo, he decided to approach and intervene. EPPD File 62-63. Several bystanders helped break up the altercation. See Decl. Cardoza ¶ 8, Resp. Mots. App'x D, ECF No. 119-1; Decl. Jaquez ¶ 13. Multiple witnesses stated that, after Morales and the Carrillos were pulled apart, Morales acted aggressively, as if he wanted to continue fighting. See EPPD File 24, 26, 28, 63. Morales' face was visibly injured and bleeding from the altercation. See id.
Plaintiffs do not dispute the fact that Morales continued to act aggressively, although they contest the witnesses' interpretations of his actions. See Pls.' Am. Objs. R&R ("Am. Objs.") 8, ECF No. 144 ("A man [who] gets beaten and choked in front of his family . . . is—understandably—aggressive afterwards."); Resp. Carrillos PUF ¶¶ 7-13 (disputing proposed undisputed facts about witness accounts of Morales' aggression only "as to any implication that [they] occurred before the [Carrillos'] attack on Mr. Morales").
Other officers from the EPPD soon began to arrive. Decl. Morales ¶¶ 7-8. The first officer to arrive was Officer Julio Guereca, followed shortly thereafter by Sgt. Ruben Cardenas. Decl. Cardoza ¶ 9. The on-duty officers greeted Sgt. Carrillo enthusiastically, with "hugging, laughing, talking and dancing." Decl. Morales ¶ 8. In particular, Sgt. Cardenas and Sgt. Carrillo acted "like best friends meeting at a class reunion." Decl. Jaquez ¶ 14. Morales saw Aaron Carrillo make gestures that appeared to be mocking how he had choked Morales, and several officers "laugh[ed] at the . . . imitation." Decl. Morales ¶ 8. Sgt. Cardenas played the role of Morales in this reenactment. EPPD File 82.
Soon after his arrival, Officer Guereca began interviewing Jaquez and Cardoza about the incident while taking notes in a small notebook. Decl. Cardoza ¶ 9. Guereca had been interviewing the two women for "just a short time" when Cardenas appeared and took Guereca aside. Id. Cardoza states that she witnessed Sgt. Cardenas "d[oing] most of the talking" while "Officer Guereca nodded," and that, at the end of the conversation, "Officer Guereca tore out the top few pages where he had been writing in the small notebook, and crumpled them in his hand." Id. Cardoza did not see what happened to the crumpled pages. Id.
The precise sequence of events in the investigation is unclear. However, the R&R places Guereca's preliminary questioning of Jaquez and Cardoza early in the investigation, before Cardenas divided the witnesses into groups. See R&R 6. Since no objections were filed to the R&R's ordering of events, the Court accepts its timeline.
Cardenas thereafter took charge of the investigation, dividing the witnesses into groups and assigning officers to conduct interviews and review video footage, see Aff. Cardenas 5 ("[I] began directing the investigation . . . ."), Cardenas Mot. Ex. A, ECF No. 112-1. Witnesses included Joshua Pena, a Walmart employee; Joseph Darden, an off-duty Border Patrol Agent; and David Schwarz, an off-duty FBI Agent, see EPPD File 24-28, 154-55, in addition to Herrera and the people who had been riding in the two vehicles.
After assigning officers to witnesses, Cardenas began his investigation by interviewing Sgt. Carrillo. Aff. Cardenas 6. According to Sgt. Carrillo's version of events, Morales' truck had been speeding and scraped up against the back of the Carrillos' vehicle. Id. The Carrillos said that Morales threw a bottle at their car, which prompted them to stop and investigate the sound of breaking glass—at which point Morales aggressively approached them and attacked Sgt. Carrillo. Id. at 6-7.
"Eventually," Cardenas informed Morales that he had determined that Morales was "the aggressor in the fight." Decl. Morales ¶ 9. He handcuffed Morales and put him in the back of Officer Gabriel Lechuga's cruiser. Id. Later, when Cardenas returned to question him, Morales saw an ambulance and fire truck arrive on the scene and asked Cardenas if he could receive medical attention for the "serious cut on [his] chin"—but Cardenas "told EMS that the Police Department did not need their help." Id. at ¶ 10. Jaquez was concerned about Morales' condition as he sat in the back of the cruiser. See Decl. Jaquez ¶¶ 14, 16. "Throughout the evening," she asked Sgt. Cardenas if she could go check on him "because we had seen how severely injured and bleeding he was." Id. ¶ 16. Cardenas "curtly refused every time," until near the end of the investigation, when he threatened to arrest Jaquez for public intoxication if she kept asking. Id.
The overall investigation lasted for "a couple of hours," and the witnesses in Plaintiffs' truck were the last to be interviewed. Id. ¶ 15; Decl. Cardoza ¶ 10. Cardenas began this final interview by asking the individuals in the truck for their personal information, then returned to his police car to conduct background checks on them. Decl. Cardoza ¶ 10. He discovered that Cardoza had nine outstanding traffic warrants. Id.; Aff. Cardenas. 11. Back at the truck, Cardenas asked Cardoza to tell him what had happened. Decl. Cardoza ¶ 10. Shortly after she began to speak, he interrupted her and told her to stop telling lies. Id. When she insisted that she was telling the truth, he told her that he would arrest her for her outstanding traffic warrants if she did not "want to cooperate." Id. She responded that she was "done talking" if he was not going to listen to her, and so he arrested her. Id. When Jaquez saw what had happened to Cardoza, she decided that she did not want to answer Cardenas' questions at all. Decl. Jaquez ¶ 16.
After Cardoza's arrest, Officer Lechuga drove Morales to a nearby medical facility. See Id., Decl. Morales ¶ 11. When Lechuga asked Morales if he had been drinking that day, Morales answered that he had consumed three beers. Decl. Morales ¶ 11. At the medical facility, Morales learned that he had a fractured eye socket and received four stitches on his chin. Id. ¶ 12. He also gave his written consent for his blood to be drawn. Id. Blood testing showed that Morales had a blood alcohol concentration of .078, EPPD File 226, just below Texas' presumptive intoxication level of .08, see Tex. Penal Code §§ 49.01(1)-(2), 49.04(a). This testing also revealed evidence of THC metabolites and cocaine metabolites in his system. EPPD File 227; Resp. Cardenas PUF ¶¶ 20-21. When Morales was later taken to the county jail, he was informed that he was "arrested for an assault charge and not DWI." Decl. Morales ¶ 12; see also EPPD File 108, 127-28.
Nearly a year later, as Morales' trial for the misdemeanor assault approached, the prosecutor informed him that he was also being indicted for driving while intoxicated with minor children in his truck on July 1, 2017, a felony charge. Decl. Morales ¶ 13; EPPD File 181. She offered to dismiss the felony indictment if he pled guilty to assaulting Sgt. Carrillo. Decl. Morales ¶ 13. While Morales waited to receive more information about this latest charge, he was arrested on the new indictment. Id. That indictment was later "dismissed for lack of evidence." Id.; see also Resp. Mots. Ex. P-20 (prosecutor's motion to dismiss DWI case), ECF No. 119-1.
The assault charge against Morales went to trial in state court on June 26, 2018. Resp. Mots. Ex. P-18 (assault case docket sheet), ECF No. 119-1. Sgt. Carrillo, Sgt. Cardenas, and Officer Guereca all took the witness stand and gave testimony which differed from Plaintiffs' recollection of the events in the parking lot. See Resp. Mots. 12-14. The jury found Morales not guilty of assault. Id. Ex. P-18.
B. Procedural History
Plaintiffs filed suit against Sgt. Carrillo, Aaron Carrillo, Sgt. Cardenas, several other individual officers, and multiple municipal entities on July 1, 2019. See Pls.' Orig. Pet., ECF No. 1-2. Defendants removed the case to federal court, where it was assigned to United States District Judge Philip Martinez. See Notice Removal, ECF No. 1. On October 21, 2019, Plaintiffs filed their Amended Complaint, ECF No. 11, seeking damages under 42 U.S.C. § 1983 and Texas common law for Morales' injuries, and under Texas common law for Cardoza's and her children's emotional injuries as bystanders. Am. Compl. ¶¶ 33-38. Following a series of motions to dismiss, Plaintiffs' only surviving federal claims were claims against the Carrillos for excessive force and false charges, and a claim against Cardenas for conspiracy to bring false charges. See Order Adopt. Part & Modify. Part R&R ("Martinez Order") 26-34, 57, ECF No. 83. Plaintiffs' state-law assault and bystander claims also remained live. See id. at 15 n.8.
Plaintiffs alternatively seek damages under Texas common law for Morales' injuries if the Court finds that Sgt. Carrillo and his son were acting as a private citizens at the time of the assault. Am. Compl. ¶ 37. Because the parties assume that the Carrillos were acting under color of state law, see, e.g., Resp. Mots. 16, the Court does the same for purposes of the instant motions.
On March 3, 2021, the case was reassigned to United States District Judge David Guaderrama. Order Reassigning Case, ECF No. 85. Defendants filed their motions for summary judgment in early January 2022. See Cardenas Mot., Carrillo Mot. Judge Guaderrama referred the motions to Magistrate Judge Berton on March 10, 2022. Order Ref'g Mots. On March 16, 2022, Judge Guaderrama recused himself from the case, Order Recusal, ECF No. 130, which was ultimately reassigned to this Court, see Standing Order Recusal, ECF No. 131.
The Magistrate Judge filed her R&R on April 29, 2022, recommending that the Cardenas Motion be denied and the Carrillo Motion be granted. R&R 1-2. Plaintiffs timely objected to the recommendation to grant the Cardenas Motion. See Pls.' Objs. R&R ("Objs."), ECF No. 137. No other objections were filed. Cardenas responded to Plaintiffs' Objections. Cardenas Resp. Objs. ("Resp. Objs."), ECF No. 138. After the Magistrate Judge filed her R&R, Plaintiffs filed their Motion to Amend, which Defendants all oppose. See Mot. Amend; Cardenas Resp. Mot. Amend, ECF No. 140; Carrillo Resp. Mot. Amend, ECF No. 143. Finally, Plaintiffs filed Amended Objections to the R&R, ECF No. 144, to which no responses were filed.
Plaintiffs' only amendment was to clarify why their counsel did not plead certain facts about Sgt. Herrera, who is not a current defendant in this case. See Mot. Leave Amend Objs. R&R 2-3, ECF No. 142; Am. Objs. 4. Thus, Cardenas' response to the original Objections applies to the Amended Objections.
The Court first considers the R&R in light of Plaintiffs' Amended Objections and Cardenas' Response to those Objections, then turns to Plaintiffs' Motion to Amend. II. DISCUSSION
The Court considers the following thirteen filings relevant to its assessment of the R&R: Plaintiffs' Amended Complaint, ECF No. 11; the Martinez Order, ECF No. 83; the Cardenas Motion, ECF No. 112; the Carrillo Motion, ECF No. 113; Plaintiffs' Response to Motions, ECF No. 119; Cardenas' Reply in Support of Motion for Summary Judgment, ECF No. 120; the Carrillos' Reply to Plaintiffs' Combined Response, ECF No. 123; Plaintiffs' Supplemental Combined Response, ECF No. 134; the Carrillos' Reply to Plaintiffs' Supplemental Combined Response, ECF No. 135; the R&R, ECF No. 136; Plaintiffs' Objections, ECF No. 137; Cardenas' Response to Objections, ECF No. 138; and Plaintiffs' Amended Objections, ECF No. 144.
A. Standards
1. Review of report and recommendation
Parties have fourteen days from service of a Report and Recommendation of a United States Magistrate Judge to file written objections. See 28 U.S.C. § 636(b)(1)(C). The parties were served with a copy of the R&R through the Court's electronic case filing system on April 29, 2022.
When parties do not file written objections, courts apply a "clearly erroneous, abuse of discretion and contrary to law" standard of review to a report and recommendation. United States v. Wilson, 864 F.2d 1219, 1221 (5th Cir. 1989) ("[T]he 'clearly erroneous, abuse of discretion and contrary to law' standard of review . . . is appropriate . . . where there has been no objection to the magistrate's ruling."); Rodriguez v. Bowen, 857 F.2d 275, 276-77 (5th Cir. 1988) ("[A] party is not entitled to de novo review of a magistrate's finding and recommendations if objections are not raised in writing by the aggrieved party . . . after being served with a copy of the magistrate's report.").
Federal district courts conduct de novo review of those portions of a report and recommendation to which a party has objected. See 28 U.S.C. § 636(b)(1)(C) ("A judge . . . shall make a de novo determination of those portions of the report . . . to which objection is made."). Objections must be "sufficiently specific to put the district court on notice of the urged error." Williams v. K&B Equip. Co., 724 F.2d 508, 511 (5th Cir. 1984). "In order to be specific, an objection must identify the specific finding or recommendation to which objection is made, state the basis for the objection, and specify the place in the magistrate judge's report and recommendation where the disputed determination is found." United States v. Mathis, 458 F. Supp. 3d 559, 564 (E.D. Tex. 2020), R. & R. adopted by 458 F. Supp. 3d 559 (E.D. Tex. 2020).
2. Motion for summary judgment
A court must enter summary judgment "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Weaver v. CCA Indus., Inc., 529 F.3d 335, 339 (5th Cir. 2008). "A fact is 'material' if its resolution in favor of one party might affect the outcome of the lawsuit under governing law." Sossamon v. Lone Star State of Tex., 560 F.3d 316, 326 (5th Cir. 2009) (quoting Hamilton v. Segue Software, Inc., 232 F.3d 473, 477 (5th Cir. 2000) (per curiam)). A dispute about a material fact is genuine only "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Ellison v. Software Spectrum, Inc., 85 F.3d 187, 189 (5th Cir. 1996).
"[The] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323, 106 S.Ct. 2548; Wallace v. Tex. Tech. Univ., 80 F.3d 1042, 1046-47 (5th Cir. 1996). To show the existence of a genuine dispute, the nonmoving party must support its position with citations to "particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations . . . , admissions, interrogatory answers, or other materials[,]" or show "that the materials cited [by the movant] do not establish the absence . . . of a genuine dispute, or that [the moving party] cannot produce admissible evidence to support the fact." Fed. R. Civ. P. 56(c).
The court resolves factual controversies in favor of the nonmoving party; however, factual controversies require more than "conclusory allegations," "unsubstantiated assertions," or "a 'scintilla' of evidence." Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc). Further, when reviewing the evidence, the court must draw all reasonable inferences in favor of the nonmoving party and may not make credibility determinations or weigh evidence. Man Roland, Inc. v. Kreitz Motor Express, Inc., 438 F.3d 476, 478-79 (5th Cir. 2006) (citing Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000)). Thus, the ultimate inquiry in a summary judgment motion is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251-52, 106 S.Ct. 2505.
B. Carrillo Motion
The Carrillos seek summary judgment on Plaintiffs' federal claims for excessive force and false charges, as well as their state-law assault and bystander claims. Carrillo Mot. 1-2. The R&R recommends denying summary judgment on all these claims. R&R 13-16 & n.8. The R&R concludes that Plaintiffs' evidence raises "a genuine issue of material fact as to which party was the initial aggressor during the altercation in the Walmart parking lot," and so "a reasonable jury could find that the Carrillo Defendants were the initial aggressors and that [Sgt.] Carrillo made false statements to the police in order to have Morales arrested and convicted of assault." Id. at 14, 16. Consequently, the R&R also recommends denying summary judgment on the bystander claims because the Carrillos' "only argument is that the bystander claims are barred if 'Morales is not entitled to recover against [the Carrillos] as a matter of law.' " Id. at 13 n.8 (quoting Carrillo Mot. 8). The parties did not file any objections to these determinations.
After reviewing the R&R, the Court agrees with the Magistrate Judge's proposed findings of fact and conclusions of law on the Carrillo Motion and finds that they are neither clearly erroneous nor contrary to law. See Wilson, 864 F.2d at 1221.
Further, the Court notes that the R&R's analysis is largely based on the reasoning set forth in the Martinez Order. See R&R 15 ("Plaintiffs' allegations meet the standards for a false-arrest claim under the Fourteenth Amendment." (citing Martinez Order 28)). The Court is "free to reconsider" that order "for any reason it deems sufficient, even in the absence of new evidence or an intervening change in or clarification of the [substantive] law." Stoffels v. SBC Commc'ns, 677 F.3d 720, 727-28 (5th Cir. 2012) (quoting Zarnow v. City of Wichita Falls, 614 F.3d 161, 171 (5th Cir. 2010)). However, under the "law of the case" doctrine, the Court should generally "show deference to decisions already made in the case." Id. at 727. And although this case has passed through the dockets of multiple district court judges, "successor judges should, in accordance with values of comity and predictability, carefully and respectfully consider the conclusions of prior judges before deciding to overturn them." Id. at 728. Applying this deferential standard, the Court does not see any reason to revisit Judge Martinez's conclusion that Plaintiffs stated claims against the Carrillos for excessive force and false charges. The Court therefore adopts the R&R with respect to the Carrillo Motion.
C. Cardenas Motion
The Court turns next to the portions of the R&R recommending dismissal of Plaintiffs' conspiracy claim against Sgt. Cardenas. The portions of that analysis to which Plaintiffs specifically object are subject to de novo review, and the remainder is reviewed for clear error. See Wilson, 864 F.2d at 1221.
1. R&R and Plaintiffs' objections
The R&R construes Plaintiffs' claim against Sgt. Cardenas as a claim for conspiracy to commit false arrest, in violation of the Fourth Amendment. See R&R 17-18. The R&R recommends granting summary judgment for Cardenas because it reasons that he cannot be liable for a conspiracy to commit false arrest under the Fourth Amendment when the evidence shows that he had probable cause to arrest Morales. Id. at 18-22. Further, the R&R concludes that, even if Plaintiffs' evidence demonstrated that the arrest lacked probable cause, Plaintiffs have not provided sufficient evidence that Cardenas participated in any conspiracy. Id. at 22-31. Plaintiffs' thirteen objections to these findings center on two main points: first, that their evidence would permit a reasonable jury to find that Cardenas lacked probable cause to arrest Morales for either assault or DWI, and second, that their evidence would permit a reasonable jury to conclude that Cardenas conspired with the Carrillos. See Am. Objs. 2-3, 9-17.
The Court finds that it is not necessary to reach Plaintiffs' objections insofar as they relate to evidence of probable cause because it is clearly erroneous for the R&R to analyze Plaintiffs' claim against Cardenas under the Fourth Amendment. As the R&R acknowledges, the Martinez Order determined that Plaintiffs' Amended Complaint stated "a false-arrest claim under the Fourteenth Amendment." R&R 18 (quoting Martinez Order 28) (emphasis added). The R&R accordingly analyzes Plaintiffs' false charges claim against the Carrillos as a Fourteenth Amendment violation, see id. at 15, but it then goes on to analyze the related conspiracy claim against Cardenas under the Fourth Amendment, see id. at 18 (citing Arizmendi v. Gabbert, 919 F.3d 891, 897 (5th Cir. 2019)).
The Martinez Order held that Plaintiffs adequately alleged that the Carrillos fabricated evidence in order to bring false charges against Morales in violation of the Fourteenth Amendment, and that Sgt. Cardenas conspired with them to do so. See Martinez Order 26-34. Further, the Martinez Order explicitly rejected the possibility that Plaintiffs had stated a Fourth Amendment claim against Cardenas. Id. at 23 n.13 ("The Amended Complaint expressly alleges a violation of the Fourteenth Amendment without any reference to the Fourth Amendment."); see also Am. Compl. ¶ 35 (alleging that Sgt. Carrillo "deliberately lied in order to get Mr. Morales charged . . . in violation of . . . the Fourteenth Amendment" and that Sgt. Cardenas participated in his conspiracy to do so). The Court defers to those conclusions because the parties do not argue that they should be reconsidered, and the Court sees no reason to do so of its own accord. See Stoffels, 677 F.3d at 727-28. It is therefore error for the R&R to apply a Fourth Amendment standard to Plaintiffs' conspiracy claim.
The amendment under which Plaintiffs' claim is analyzed is no mere formality, as "the presence of probable cause does not forestall Plaintiff[s'] options under the Fourteenth Amendment" like it would in a Fourth Amendment claim. Robinson v. City of Garland, No. 3:10-CV-2496-M, 2015 WL 9591443, at *9 (N.D. Tex. Nov. 23, 2015) (citing Cole v. Carson, 802 F.3d 752, 772-73 (5th Cir. 2015) ("Cole I"), judgment vacated sub nom. Hunter v. Cole, — U.S. —, 137 S. Ct. 497, 196 L.Ed.2d 397 (2016), opinion reinstated in part, 935 F.3d 444 (5th Cir. 2019) (en banc)), R. & R. adopted by 2015 WL 9593623 (N.D. Tex. Dec. 31, 2015). Accordingly, the Court rejects the recommendation, based on an analysis of probable cause, that summary judgment is proper for Cardenas.
2. Conspiracy to bring false charges
Plaintiffs seek to hold Sgt. Cardenas liable for conspiring to bring false charges against Morales, in violation of the Fourteenth Amendment. Am. Compl. ¶ 35. Cardenas argues that summary judgment is warranted on three separate grounds: first, Plaintiffs have not presented competent evidence of conspiracy; second, his actions were protected by qualified immunity; and third, the intracorporate conspiracy doctrine bars any finding that he conspired with Sgt. Carrillo. Cardenas Mot. 12-20.
a. Evidence of conspiracy
Sgt. Cardenas states under oath that Sgt. Carrillo never asked him to fabricate evidence, and that he never agreed to either fabricate evidence or to conduct a biased investigation. Aff. Cardenas 5. Further, he avers that he only decided to arrest Morales for "[a]ssault and suspicion of DWI" after conducting a full investigation which led him to believe that Morales was "the aggressor in the incident." Id. at 10-12. In response, Plaintiffs argue that their evidence shows that Cardenas' investigation was a sham carried out according to Cardenas' agreement with the Carrillos to frame Morales as the "fall guy" for the Carrillos' unprovoked attack. See Am. Objs. 17.
"An action for conspiracy may be maintained under section 1983." Ryland v. Shapiro, 708 F.2d 967, 974 (5th Cir. 1983). To succeed on a such conspiracy claim, a plaintiff must prove two things: first, "the existence of a conspiracy involving state action," and second, "a deprivation of civil rights in furtherance of the conspiracy by a party to the conspiracy." Shaw v. Villanueva, 918 F.3d 414, 419 (5th Cir. 2019) (quoting Pfannstiel v. City of Marion, 918 F.2d 1178, 1187 (5th Cir. 1990)).
The second prong of this analysis is resolved by the Court's denial of summary judgment for the Carrillos on Plaintiffs' false charges claim. As stated by the Martinez Order, see Martinez Order 27, and the R&R, see R&R 15, the Fifth Circuit has recognized a "due process right not to have police deliberately fabricate evidence and use it to frame and bring false charges against a person," Cole I, 802 F.3d at 771. Despite Cole's "peripatetic procedural history," its recognition of this due process right "is binding Fifth Circuit precedent today." Morgan v. Chapman, 969 F.3d 238, 250 & n.7 (5th Cir. 2020). The Court has adopted the R&R's conclusion that "a reasonable jury could find that the Carrillo[s] were the initial aggressors and that [Sgt.] Carrillo made false statements to the police in order to have Morales arrested and convicted of assault," in violation of Morales' Fourteenth Amendment rights. See R&R 16. Thus, if Sgt. Carrillo conspired with Sgt. Cardenas to bring false charges against Morales, Plaintiffs' evidence suffices at summary judgment to show "a deprivation of civil rights in furtherance of the conspiracy by a party to the conspiracy." See Shaw, 918 F.3d at 419.
The Cardenas Motion therefore hinges on the first prong of the analysis: whether the evidence, viewed in the light most favorable to Plaintiffs, reasonably supports finding that Sgt. Cardenas conspired with the Carrillos to frame Morales for assault. See id. On a claim for civil conspiracy, a plaintiff must prove that the defendants agreed to commit an illegal act. Thomas v. New Orleans, 687 F.2d 80, 83 (5th Cir. 1982). The existence of such an agreement is often shown by circumstantial evidence, because "conspirators rarely formulate their plans in ways susceptible of proof by direct evidence." Id. (quoting Crowe v. Lucas, 595 F.2d 985, 993 (5th Cir. 1979)). Because finding conspiracy "may involve questions of motive or intent, summary judgment is often inappropriate in a section 1983 conspiracy case." Montgomery v. Hughes, 716 F. Supp. 261, 263 (S.D. Miss. 1988). Nevertheless, conclusory allegations of conspiracy are insufficient to survive summary judgment. Rodriguez v. Neeley, 169 F.3d 220, 222 (5th Cir. 1999). A plaintiff must develop facts that evince "a preceding agreement, not merely parallel conduct that could as well be independent action." See Jabary v. City of Allen, 547 F. App'x 600, 610 (5th Cir. 2013) (per curiam) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).
Cardenas argues, citing to Cinel v. Connick, 15 F.3d 1338, 1343 (5th Cir. 1994) that, in order to prove conspiracy, "Plaintiffs must establish 'beyond peradventure' that Cardenas agreed to commit an illegal act." Cardenas Mot. 12; see also id. at 15; Cardenas Reply 2. But that is not the standard for proving conspiracy, and the words "beyond peradventure" never appear in Cinel. Rather, "beyond peradventure" is the burden that applies to a party seeking summary judgment: the movant generally "must come forward with evidence that establishes 'beyond peradventure all of the essential elements of the claim or defense' " on which that party bears the burden of proof. Hutchison v. Brookshire Bros., Ltd., 284 F. Supp. 2d 459, 465 (E.D. Tex. 2003) (quoting Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986)). Plaintiffs would only need to establish Cardenas' participation in a conspiracy "beyond peradventure" if they had moved for summary judgment on this claim. See id.
The R&R finds that "the evidentiary record here is quite distinguishable from the factual allegations before the District Court when considering Cardenas' Motion to Dismiss," and concludes that Plaintiffs have not produced evidence to survive summary judgment. R&R 25-28. Plaintiffs have filed a mélange of objections to this finding, the thrust of which is that the totality of Plaintiffs' circumstantial evidence, properly considered under the standards that apply to summary judgment, would permit a reasonable jury to infer that Sgt. Cardenas conspired with the Carrillos to frame Morales for assault. See Am. Objs. 17.
The Court considers the following objections relevant to the Magistrate Judge's evidentiary finding: First Objection (failure to consider evidence of whether Sgt. Cardenas was dispatched as evidence of conspiracy), Am. Objs. 1-3; Second Objection (failure to consider Sgt. Herrera's conduct as evidence of conspiracy), id. at 3-6; Fourth Objection (analysis of witness statements), id. at 6-8; Seventh Objection (failure to acknowledge various pieces of countervailing evidence when discussing Sgt. Cardenas' affidavit), id. at 9-10; Eighth Objection (failure to consider evidence that Sgt. Cardenas did not arrest Morales for DWI and tried to pressure witnesses to "join his plan to frame" Morales), id. at 10-12; Ninth Objection (failure to consider another case against the EPPD as "circumstantial evidence" that the EPPD treats officers as victims of assault when investigating reports of excessive force), id. at 12-13; Tenth Objection (making credibility determinations that should be left to jury), id. at 13-14; Eleventh Objection (acceptance of Officer Guereca's notes), id. at 14-16; and Twelfth Objection ("piecemeal consideration of Plaintiffs' circumstantial evidence"), id. at 16-17.
Accordingly, the Court considers de novo whether the evidence referenced in Plaintiffs' Amended Objections, viewed in the light most favorable to Plaintiffs, makes out Sgt. Cardenas' liability for conspiracy. This analysis is guided by the Martinez Order, which found that Plaintiffs had adequately alleged Cardenas' liability for conspiracy. See Martinez Order 32-34. Insomuch as Plaintiffs' allegations are now supported by evidence, the Court shows deference to Judge Martinez's findings that such evidence would be probative of a conspiracy. See Stoffels, 677 F.3d at 727-28.
i. The officers' greetings
The Court first considers Plaintiffs' evidence regarding the preliminary interactions that took place between the Carrillos and the EPPD officers who arrived at the scene. As soon as Sgt. Cardenas arrived, "he went straight to the Carrillos and greeted them with smiles, hugs, handshakes and laughter." Decl. Jaquez ¶ 14; see also Decl. Morales ¶ 8. Once several officers had arrived, Morales "saw Sgt. Carrillo's son wrap his arms around [Cardenas'] throat," as if mocking how he had choked Morales, and the nearby officers—apparently including Cardenas—laughed at the imitation. See Decl. Morales ¶ 8.
Sgt. Cardenas states that he participated in Aaron Carrillo's reenactment of the incident by permitting Aaron to demonstrate the chokehold on him (although he contends that Aaron was explaining what had happened, not making fun of Morales), see EPPD 82, and Morales says that "the officers" who "had arrived" laughed at the imitation, see Decl. Morales ¶ 8. This would permit a reasonable jury to infer that Cardenas was among the officers who laughed.
The Martinez Order found similar allegations relevant to its conclusion that Plaintiffs had stated a claim for conspiracy. See Martinez Order 32-33. This analysis is persuasive and merits deference. See Stoffels, 677 F.3d at 727-28. As the Martinez Order observed, these preliminary interactions "plausibly suggest[ ] an opportunity to enter into an agreement." Id. at 33; cf. Veney v. Ojeda, 321 F. Supp. 2d 733, 748 (E.D. Va. 2004) (granting summary judgment for defendant officers when plaintiff did not offer evidence that the alleged co-conspirators "communicated in any manner" before the alleged constitutional violation).
Furthermore, the relationship between alleged co-conspirators is "among the factors a fact finder may consider in inferring a conspiracy." Borden, Inc. v. Spoor Behrins Campbell & Young, 828 F. Supp. 216, 225 (S.D.N.Y. 1993). Friendship is relevant to motive, and "determining whether a conspiracy existed may involve questions of motive or intent." See Donahue v. Smith, No. 15-6036, 2017 WL 3990713, at *6 (E.D. La. Sept. 11, 2017) (cleaned up) (quoting Montgomery, 716 F. Supp. at 263). Sgts. Carrillo's and Cardenas' effusive greetings point to a possible motive: Cardenas may have wanted to protect not merely a coworker but a friend. And perhaps most compellingly, a reasonable jury could consider Cardenas' willingness to laugh with the Carrillos about Morales' distress as evidence that he decided to take the Carrillos' side shortly after arriving on the scene—which would significantly undermine Cardenas' argument that he only concluded that Morales was the aggressor after conducting a thorough investigation. See, e.g., Aff. Cardenas 10.
On its own, this evidence would not make out a claim for conspiracy. It is well established that conclusory allegations of friendship are insufficient, without more, to find the existence of an unlawful agreement. See, e.g., Lumpkins v. Off. of Cmty. Dev., 621 F. App'x 264, 269 (5th Cir. 2015) (per curiam); Kadri v. Haro, No. 1:05-CV-167-C, 2006 WL 3359426, at *7 (N.D. Tex. Nov. 20, 2006). But Plaintiffs' evidence of the close relationship between Sgts. Cardenas and Carrillo is more than just a conclusory allegation, and it is far from the only evidence of a conspiracy. As such, the Court considers it both probative of conspiracy and vital context for the investigation that followed.
ii. Guereca's notes
The Court next considers various pieces of evidence regarding Sgt. Carrera's investigation in the Walmart parking lot. Merely negligent investigatory decisions, alone, cannot make out a claim for conspiracy, because "[t]here is no constitutional right to an 'error-free investigation,' " and conspiracy requires intent. See Jones v. City of Grand Prairie, No. 3:97-CV-1907-H, 1999 WL 21047, at *7 (N.D. Tex. Jan. 6, 1999) (quoting Baker v. McCollan, 443 U.S. 137, 146, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979)). However, apparent shortcomings in a police investigation can be relevant to the extent they evince some other cognizable constitutional violation. See Hernandez v. Terrones, 397 F. App'x 954, 968 (5th Cir. 2010) (discussing Sanders v. English, 950 F.2d 1152 (5th Cir. 1992) ("[E]vidence of a reckless investigation [can] support cognizable constitutional claims . . . under § 1983."). Thus, courts have found facts indicating that police tampered with evidence, ignored exculpatory evidence, or failed to interview key witnesses to be relevant to finding that those officers conspired to violate a plaintiff's constitutional rights. See, e.g., Dean v. Cnty. of Gage, 800 F.3d 945, 953-54 (8th Cir. 2015); Castellano v. Fragozo, 311 F.3d 689, 704 (5th Cir. 2002), overturned on other grounds, 352 F.3d 939 (5th Cir. 2003) (en banc); Dodd v. Simmons, No. 1:12-cv-0087, 2013 WL 5969607, at *20 (M.D. Tenn. Nov. 8, 2013).
One of the central facts at the motion to dismiss stage was Plaintiffs' allegation that Sgt. Cardenas instructed Officer Guereca to throw away his notes about the investigation. See Martinez Order 32-34. In the Amended Complaint, Plaintiffs alleged that "Sgt. Cardenas called out to Officer Guereca that he could throw away the piece of paper he was taking notes on because . . . the decision had already been made to arrest Mr. Morales," and that Guereca responded by "crumpling up the paper on which he had been writing and sticking it into his pocket." Am. Compl. ¶ 21. Discovery revealed that Plaintiffs' witness to this alleged interaction was Cardoza, who did not in fact overhear what Cardenas and Guereca said to one another, did not see what was on the "top few pages" that Guereca tore out of the notebook "where he had been writing," and did not see what Guereca did with the notes after crumpling them. See Decl. Cardoza ¶ 9. Further, Cardenas argues that the evidence at summary judgment shows that no notes were destroyed, because Guereca wrote the final incident report and all of Guereca's notes are included in the record. Cardenas Mot. 15 (citing EPPD File 154-59). Plaintiffs respond that the notes in the EPPD File are not authenticated as Guereca's notes taken at the scene. See Am. Objs. 14-16.
Although Plaintiffs' evidence regarding Guereca's notes is not as powerful as the allegations in the Amended Complaint, the Court finds that it is still competent evidence of Cardenas' role in a conspiracy. Read in the light most favorable to Plaintiffs, Cardoza's declaration establishes that Sgt. Cardenas interrupted Officer Guereca's initial interview of the witnesses in Plaintiffs' truck and pulled him aside for a private conversation. Guereca nodded along to whatever Cardenas said and then, in response to their conversation, "tore out the top few pages where he had been writing in the small notebook, and crumpled them in his hand." Decl. Cardoza ¶ 9. A reasonable jury could infer that the "top few pages where [Guereca] had been writing" contained his notes from his interview of the witnesses in Plaintiffs' truck, and that he tore out those notes because of something Cardenas said to him. And even though Cardoza did not see what happened to the notes, it would also be reasonable to infer that they were destroyed, given that people do not ordinarily "crumple" papers that they intend to preserve.
Moreover, the Court does not consider the notes in the EPPD File conclusive evidence that no notes were destroyed. The notes contain no indication of authorship, and there is no affidavit from Officer Guereca stating that they are his work from that day. Even if they are Guereca's original notes from the investigation, the fact that some of his notes were preserved does not mean that all of his notes were. Additionally, none of the scanned notebook pages in the EPPD File appear to have been torn out or crumpled. See EPPD File 145, 148-49, 156-59. A reasonable jury would not be required to conclude, based on the EPPD File, that Guereca did not destroy any evidence.
Thus, Cardoza's declaration supports the inference that Cardenas interrupted Guereca's interview, told him to destroy his notes from that interview, and then gathered evidence that was more favorable to the Carrillos before returning to interview witnesses who had demonstrated that they would be more friendly to Plaintiffs. A reasonable jury could accordingly find that Cardenas agreed with the Carrillos to perpetuate a false narrative about the events in the parking lot, based in part on Plaintiffs' evidence about Guereca's notes.
iii. Questioning of Cardoza
Plaintiffs also point to Cardenas' treatment of Cardoza as evidence of conspiracy. See Am. Objs. 12. Cardoza states that, when Cardenas returned to interview her near the end of the investigation, he barely gave her a chance to speak. She had just begun to give her account of the initial encounter between the two vehicles when he interrupted her and told her to "stop lying." Decl. Cardoza ¶ 10. She responded that she was not lying and resumed describing how the Carrillos' Nissan cut off Morales' truck. Id. At this point, Cardenas revealed that he was aware of her outstanding traffic warrants and threatened to arrest her on those warrants if she "d[id]n't want to cooperate and tell the truth." Id. When Cardoza said that she did not want to talk to him if he was "not going to listen" to what she had to say, he arrested her. Id. These facts closely match Plaintiffs' allegations about Cardenas' treatment of Cardoza, see Am. Compl. ¶ 23, which the Martinez Order considered relevant to finding conspiracy, see Martinez Order 32-33.
Cardenas argues that his questioning and arrest of Cardoza were entirely lawful, and so those actions cannot be bases for liability. See Cardenas Mot. 15-16, 18-19. But this argument misapprehends the nature of Plaintiffs' evidence. The issue before the Court is whether Cardenas' actions are cognizable evidence of conspiracy—not whether those actions in and of themselves violated any of Plaintiffs' rights. And lawful actions can be evidence of conspiracy. See Comfort Trane Air Conditioning Co. v. Trane Co., 592 F.2d 1373, 1383-84 (5th Cir. 1979) ("[A]ctions innocent and lawful in themselves become actionable when undertaken pursuant to an unlawful conspiracy."); cf. United States v. Baker, 78 F. App'x 318, 321 (5th Cir. 2003) (per curiam) ("Otherwise lawful acts may become unlawful when they as a whole constitute a criminal conspiracy.").
Although Plaintiffs hint that Cardenas acted wrongfully when he arrested Cardoza, see, e.g., Resp. Mots. 18 (referring to Cardenas' actions as "retaliation"), they do not bring a claim for retaliatory arrest, see Am. Compl. ¶¶ 33-43. And given the undisputed evidence that Cardoza had nine outstanding traffic warrants, see Resp. Cardenas PUF ¶ 27, such a claim would likely fail. See Nieves v. Bartlett, — U.S. —, 139 S. Ct. 1715, 1727, 204 L.Ed.2d 1 (2019) (holding that a plaintiff claiming retaliatory arrest must generally show an absence of probable cause).
An officer's disregard of exculpatory evidence and failure to conduct interviews at the scene of an arrest can be taken as evidence of a conspiracy to conduct a sham investigation. See, e.g., Dodd, 2013 WL 5969607, at *20 (considering evidence that defendant "ignor[ed] exculpatory evidence," "fail[ed] to interview [certain witnesses] on the scene," and "reli[ed] on [a witness's] questionable account" relevant to finding a conspiracy to commit false arrest). According to Cardoza's declaration, Sgt. Cardenas did not merely choose to discount her testimony in light of the other evidence that he had gathered; he would not even let her give a witness statement that contradicted the Carrillos' version of events. Decl. Cardoza ¶ 10. When she tried to insist on the truth, he threatened to arrest her, and then followed through on that threat after she refused to say what he wanted to hear. Id. Moreover, there is evidence that Cardenas' tactics impacted the testimony of at least one other witness: Jaquez states that she "refused to talk to [Cardenas]" after Cardoza's arrest because she had "seen with [her] own eyes that disagreeing with him could get [her] arrested." See Decl. Jaquez ¶ 16.
On its own, this evidence that Cardenas conducted an incomplete or biased investigation would likely be insufficient for a reasonable jury to find a conspiracy. See Jones, 1999 WL 21047, at *7. However, when considered alongside the other evidence in the record, the Court finds that a reasonable jury could find that Cardenas' refusal to hear Cardoza's testimony and consequent intimidation of Jaquez are probative of his participation in a conspiracy to ensure that the Carrillos' falsified evidence prevailed. See, e.g., Castellano, 311 F.3d at 704 (finding alteration of evidence and pressuring witness relevant to upholding jury's finding of conspiracy to commit malicious prosecution).
iv. Morales' injuries and isolation
Plaintiffs also argue that Cardenas' apparent disregard of Morales' injuries is evidence of conspiracy. The Court accepted this argument at the motion to dismiss stage. See Martinez Order 33-34.
Generally, Plaintiffs suggest that it is suspect that Cardenas handcuffed Morales, who was "badly injured," while treating "his unmarked assailant . . . as the victim." See Resp. Mots. 17. More specifically, they argue that improper motives drove Cardenas' decision to deny Morales' request for immediate medical care. See id.; Am. Objs. 17. Morales states that, when he saw an ambulance and fire engine arrive at the scene, he asked Cardenas if he could receive treatment for the "serious cut" on his chin. Decl. Morales ¶ 10. In response, "Sgt. Cardenas told EMS that the Police Department did not need their help." Id. Instead, Officer Lechuga later drove Morales to the medical facility, where he received stitches on his chin and was found to have a fractured eye socket. Id. ¶¶ 11-12. Plaintiffs argue that this is evidence that Cardenas intentionally isolated Morales from other city employees, who might have undermined the scheme to bring false charges by listening to and crediting Morales' version of events. See Am. Objs. 17 ("Sgt. Cardenas channeled Mr. Morales away from municipal agencies . . . who might have reasonably questioned why somebody in his condition was treated as the [offender] and not the victim.").
Multiple witnesses stated that Morales continued to act aggressively towards the Carrillos after bystanders had separated them. See EPPD File 24 (Pena statement), 26 (Darden statement), 28 (Schwarz statement), 63 (Herrera statement). Indeed, no one disputes that there was a violent altercation between Morales and the Carrillos, or that Morales was at least somewhat agitated after bystanders pulled the men apart. But in light of the other evidence at summary judgment, the Court does not accept the R&R's implication that the eyewitnesses' accounts of Morales' aggression negate all other evidence of conspiracy. See R&R 19-20, 26-27. At the same time, the Court does not see Cardenas' decision to detain Morales during a portion of the investigation, in and of itself, as evidence of conspiracy.
The same cannot be said for Cardenas' denial of medical care, which the Court considers competent evidence of conspiracy. Plaintiffs argue that Cardenas refused to let Cardoza speak and denied Morales' request for at-the-scene medical attention for similar reasons: he wanted to restrict the reach of any story that might undermine the Carrillos' telling of events. A reasonable jury could, considering the totality of the circumstances, accept this argument. Keeping Morales in the squad car helped ensure that Plaintiff "was never asked to provide [his] entire side of the case." See Decl. Morales ¶ 9. Thus, in light of Plaintiffs' other evidence that Cardenas intentionally limited the evidence that the EPPD collected at the scene, his steps to isolate Morales from other municipal employees could plausibly be read as another attempt to help the Carrillos control the narrative.
v. Totality of the evidence
Viewed together in the light most favorable to Plaintiffs, the above pieces of evidence plausibly establish Cardenas' participation in a conspiracy to falsely charge Morales with assault. Plaintiffs' facts can reasonably be taken to tell the following story: after the Carrillos attacked Morales, witnesses saw Cardenas arrive at the scene, greet Sgt. Carrillo like an old friend, and make light of Morales' predicament, in spite of his obvious and significant injuries. Soon thereafter, as Officer Guereca was interviewing the witnesses who had been riding in Plaintiffs' truck, Cardenas interrupted the interview and said something that prompted Guereca to rip out and crumple his most recent notes. When Cardenas returned hours later to conduct his own interview of the witnesses in the truck, he refused to let Cardoza give her own account of events, then arrested her when she would not tell him what he wanted to hear. This arrest scared Jaquez into silence. And Cardenas did not give Morales a chance to fully explain his side of the case either, instead isolating him in a squad car, away from other municipal employees, despite Morales' meritorious requests for medical care.
These specific facts are not mere "conclusory allegation[s] of conspiracy." See Neeley, 169 F.3d at 222. None of Plaintiffs' facts would support a reasonable finding of conspiracy if considered individually—but summary judgment is based on the record taken as a whole. See Garcia v. Pro. Cont. Servs., 938 F.3d 236, 240 (5th Cir. 2019). A reasonable jury could infer from the totality of the evidence that Cardenas agreed to propagate the Carrillos' false story, then took actions—instructing Guereca to dispose of his notes about what Jaquez and Cardoza witnessed, refusing to gather exculpatory evidence from Cardoza, intimidating Jaquez into silence, and isolating Morales—to minimize the power of Plaintiffs' counternarrative. Of course, the Court expresses no opinion on the merits of Plaintiffs' conspiracy claim; it simply finds that the inference of conspiracy is not "so tenuous" that the Court must withdraw it from the jury. See Montgomery, 716 F. Supp. at 265 (quoting Love v. King, 784 F.2d 708, 711 (5th Cir. 1986)).
The R&R correctly notes that certain facts that were before the Court at the motion to dismiss stage are now weakened or absent. See R&R 26-28. The evidence does not show that "Cardenas immediately announced his decision to arrest Morales for causing a motor vehicle collision after only speaking with the Carrillo[s]," nor that anyone heard Cardenas instruct Guereca to throw away his notes because he had already decided to arrest Morales, nor that Cardenas returned to speak and laugh with the Carrillos for a second time. See id. However, the remaining facts on which the Martinez Order relied—Cardenas' jovial interactions with the Carrillos, Guereca's apparent destruction of evidence after speaking to Cardenas, Cardenas' questioning of Cardoza, and Cardenas' refusal of Morales' request for immediate medical attention, see Martinez Order 32-34—are still present, and make up more than a mere scintilla. And the key inferences that the Martinez Order drew from the missing facts—i.e., that Cardenas decided to arrest Morales as soon as he interacted with the Carrillos, and that he ordered Guereca to destroy his notes from his interview of the witnesses in the truck—can be reasonably inferred from the evidence that remains. See Martinez Order 33-34.
Moreover, some of these remaining relevant facts are now stronger than originally pled. For example, Plaintiffs alleged that, when Cardenas interviewed Cardoza, he "argu[ed] with her about her defense of her husband and attempt[ed] to get information that he could use against Mr. Morales." Am. Compl. ¶ 23. This allegation is unclear about the extent of the interview, and whether Cardenas was willing to hear testimony that was adverse to the Carrillos. But now, as discussed above, Plaintiffs' evidence shows that Cardenas barely even let Cardoza speak before arresting her. Similarly, Plaintiffs' allegation that Cardenas' laughter was at Morales' expense appeared to be a bare assumption. See Am. Compl. ¶ 22. Now, however, Plaintiffs' evidence supports the reasonable inference that Cardenas laughed with the Carrillos when he and Aaron Carrillo reenacted the headlock. See Decl. Morales ¶ 8; EPPD 82.
Because the Court considers the above evidence sufficient to send the question of Cardenas' liability for conspiracy to a jury, the Court does not reach Plaintiffs' objections insofar as they pertain to other pieces of evidence, including Sgt. Herrera's 911 call and later descriptions of what he had witnessed, whether Cardenas was dispatched to the scene, whether Cardenas wrongfully usurped Guereca's control over the investigation, whether Cardenas properly notified his supervisors, Officer Lechuga's interactions with Morales, and subsequent events pertaining to Morales' indictments and trial. However, the Court cautions Plaintiffs that it does not consider Ramirez v. Escajeda "circumstantial evidence" of how Cardenas likely approached the investigation in this case. See Am. Objs. 12-13; Ramirez v. Escajeda, No. EP-17-CV-193-DCG, 2021 WL 3713064 (W.D. Tex. Aug. 20, 2021), reversed in part by 44 F.4th 287 (5th Cir. 2022). Even assuming that the Court may consider the Ramirez court's evidentiary findings about the EPPD's generally biased and inadequate investigatory practices at summary judgment in this case, those findings say nothing about Cardenas, much less whether he intentionally joined a conspiracy to frame Morales for assault. See Ramirez, 2021 WL 3713064, at *46-47.
In particular, the Court notes that it does not consider any evidence of Defendants' testimony at Morales' assault trial. Some courts—notably the Eleventh Circuit—have held that "a witness's absolute immunity from liability for testifying forecloses any use of that testimony as evidence of the witness's membership in a conspiracy prior to his taking the stand." See Rowe v. City of Fort Lauderdale, 279 F.3d 1271, 1282 (11th Cir. 2002). However, "at least one circuit has ruled explicitly that immunized testimony may be used as evidence of a claim based on a non-immunized action," Washington v. Wilmore, No. 3:02-CV-106, 2006 WL 2471611, at *8 (W.D. Va. Aug. 23, 2006) (citing Morley v. Walker, 175 F.3d 756, 761 (9th Cir. 1999)), and some courts have held that Rowe's reasoning does not apply when the defendant's "source of liability is not the testimony itself but an earlier act of misconduct," see id. at *9. The Fifth Circuit does not appear to have addressed this issue. Because the Court finds that the record contains sufficient evidence of conspiracy to survive summary judgment without considering Defendants' trial testimony, the Court need not resolve the question at this time.
b. Qualified immunity
Sgt. Cardenas seeks to invoke qualified immunity, arguing that none of Plaintiffs' allegations about his behavior during the investigation "rise to the level of a constitutional violation or violate any clearly established law." See Cardenas Mot. 18-20. "The doctrine of qualified immunity shields officials from civil liability so long as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Lincoln v. Turner, 874 F.3d 833, 847 (5th Cir. 2017) (quoting Mullenix v. Luna, 577 U.S. 7, 11, 136 S.Ct. 305, 193 L.Ed.2d 255 (2015)). When a defendant official invokes qualified immunity, the burden shifts to the plaintiff to demonstrate that the defense does not apply. Id. "[A] plaintiff seeking to defeat qualified immunity must show '(1) that the official violated a statutory or constitutional right, and (2) that the right was clearly established at the time of the challenged conduct.' " Morgan v. Swanson, 659 F.3d 359, 371 (5th Cir. 2011) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 735, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011)). A clearly established right is one that is "sufficiently clear 'that every reasonable official would [have understood] that what he is doing violates that right." Reichle v. Howards, 566 U.S. 658, 664, 132 S.Ct. 2088, 182 L.Ed.2d 985 (2012) (alteration in original) (quoting al-Kidd, 563 U.S. at 741, 131 S.Ct. 2074). This inquiry "does not require a case directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate." al-Kidd, 563 U.S. at 741, 131 S.Ct. 2074.
The R&R recommended granting the Cardenas Motion based on qualified immunity because it found that the evidence did not show that Sgt. Cardenas "violated any of Morales' constitutional rights." R&R 32. The Court rejects that recommendation because it is based on the Magistrate Judge's analysis of Plaintiffs' claim as a Fourth Amendment false arrest conspiracy, rather than a Fourteenth Amendment false charges conspiracy. See R&R 22.
Under § 1983, "[a] conspiracy by itself . . . is not actionable." Pfannstiel, 918 F.2d at 1187. Rather, conspiracy is the "legal mechanism through which to impose liability on all of the defendants without regard to who committed the particular act." Bevill v. Fletcher, 26 F.4th 270, 283 (5th Cir. 2022) (quoting Latiolais v. Cravins, 484 F. App'x 983, 989 (5th Cir. 2012) (per curiam)); see also Hale v. Townley, 45 F.3d 914, 920 (5th Cir. 1995). Thus, when a defendant faces conspiracy claims under § 1983, the qualified immunity analysis that applies to the underlying § 1983 claims resolves the qualified immunity analysis for the conspiracy. See Bevill, 26 F.4th at 283; Adams v. City of New Orleans, No. 15-1543, 2016 WL 4275246, at *7 (E.D. La. Aug. 15, 2016) ("Defendants are entitled to qualified immunity from the § 1983 conspiracy claim if they are entitled to qualified immunity from the underlying § 1983 claims." (quoting Hill v. City of Seven Points, 31 F. App'x 835 (5th Cir. 2002))). It is clearly established that a defendant may be liable for their participation in a conspiracy to violate a constitutional right, "[r]egardless of whether or not [that defendant's] actions alone actually caused a constitutional violation." See Bevill, 26 F.4th at 283 (quoting Latiolais, 484 F. App'x at 991).
Cardenas argues that the particular actions he took over the course of the investigation are shielded by qualified immunity. See Cardenas Mot. 19 (describing his actions at the scene as "exactly the type of strategic decisions that qualified immunity is designed to protect"). But as previously discussed, this argument misconstrues Plaintiffs' claims. Plaintiffs do not claim that Cardenas' investigatory strategy, interactions with the other officers at the scene, or decisions about Morales' medical treatment amounted to constitutional violations. Rather, they argue that all of those actions evince Cardenas' participation in a conspiracy to bring false charges. See Resp. Mots. 16-19; Am. Objs. 16-17.
And to the extent that Plaintiffs are attempting to claim that Cardenas committed constitutional violations other than conspiracy to bring false charges, see Am. Objs. 12 (referring to the arrests of Morales and Cardoza as "unreasonable seizure[s]"), Plaintiffs cannot raise new claims via arguments in their briefing in opposition to summary judgment. The claims at issue at this stage of litigation are the claims that the Court recognized in the Martinez Order.
And qualified immunity does not protect Cardenas from liability for participating in such a conspiracy. See Martinez Order 30-31. The Martinez Order found that Sgt. Carrillo was not entitled to qualified immunity on Plaintiffs' false charges claim. Id. at 26-29. The R&R, relying on the Martinez Order, then recommended denying summary judgment for the Carrillos, R&R 15-16, despite Sgt. Carrillo's renewed qualified immunity argument, see Carrillo Mot. 6-7 (arguing for qualified immunity on purely evidentiary grounds). No objections were filed to this recommendation, and the Court does not find it clearly erroneous. See Cole I, 802 F.3d at 773-74 (denying qualified immunity for false charges claim that arose in 2010 because no "reasonable law enforcement officer would have thought it permissible to frame somebody for a crime he or she did not commit" (quoting Limone v. Condon, 372 F.3d 39, 50 (1st Cir. 2004))). Therefore, Cardenas' qualified immunity argument also fails. Since Carrillo cannot invoke qualified immunity for bringing false charges, Cardenas cannot invoke qualified immunity for conspiring to bring those same false charges, "whether or not [his] actions alone actually caused a constitutional violation." See Bevill, 26 F.4th at 283 (quoting Latiolais, 484 F. App'x at 991).
c. The intracorporate conspiracy doctrine
Finally, Sgt. Cardenas argues that, even if Plaintiffs' claims survive summary judgment on both their evidentiary burden and qualified immunity, the intracorporate conspiracy doctrine precludes liability. Cardenas Mot. 17. As it applies to this case, the intracorporate conspiracy doctrine bars a plaintiff from recovering for a conspiracy between police officers employed by the same department, because those officers are considered members of a single entity which is "incapable of conspiring with itself for the purposes of § 1983." Thompson v. City of Galveston, 979 F. Supp. 504, 511 (S.D. Tex. 1997).
The R&R did not reach this argument. See R&R 17 n.9.
However, courts recognize an exception to the rule when the alleged conspirators act "for their own personal purposes." Bright v. City of Killeen, 532 F. Supp. 3d 389, 398 (W.D. Tex. 2021); see also Cornett v. Ward, No. 3:18-CV-1395-S, 2020 WL 906290, at *4 (N.D. Tex. Feb. 25, 2020) (stating that the doctrine may not bar liability when "agents engage in acts that exceed the bounds of their authority"). Courts regularly find that this exception applies when officers conspire to conceal an incident of excessive force. See Bright, 532 F. Supp. 3d at 402 (applying exception when defendants allegedly "reached an agreement amongst themselves to cover up" an unjustified shooting during a police raid); Cornett, 2020 WL 906290, at *3-4 (applying exception when defendants conspired to fabricate evidence in order to conceal excessive force); Collins v. Bauer, No. 3:11-CV-00887-B, 2012 WL 443010, at *7-9 (N.D. Tex. Jan. 23, 2012) (same), R. & R. adopted by 2012 WL 444014 (N.D. Tex. Feb. 10, 2012); Hill v. City of New York, 2005 WL 3591719, at *6 (E.D.N.Y. Dec. 30, 2005) (same).
The facts of this case fall squarely within that exception. For purposes of summary judgment, the Court has found that Sgt. Carrillo brought false charges against Morales in order to cover up his own use of excessive force, and that Sgt. Cardenas conspired with him to do so. This conspiracy to conceal the Carrillos' assault was in the officers' personal interest—not the interest of the EPPD—and so the intracorporate conspiracy doctrine is no bar to liability. See, e.g., Cornett, 2020 WL 906290, at *4 ("The allegations of evidence tampering and other misconduct . . . are sufficient to deny the application of the intracorporate conspiracy doctrine . . . .").
In sum, Cardenas' three arguments in favor of summary judgment fail. First, a reasonable jury, reading the evidence in the light most favorable to Plaintiffs, could find that Cardenas conspired with the Carrillos to bring false charges against Morales. Second, qualified immunity does not shield his participation in such a conspiracy. And third, the intracorporate conspiracy doctrine is no bar to liability under these circumstances. Accordingly, the R&R's recommendation to grant summary judgment for Cardenas on Plaintiffs' conspiracy claim is rejected.
D. Motion to Amend
The Court next considers Plaintiffs' request for leave to amend their complaint. Mot. Amend. Under Rule 15, courts "should freely give leave [to amend] when justice so requires." Fed. R. Civ. P. 15(a)(2). However, a "district court properly exercises its discretion under Rule 15(a)(2) when it denies leave to amend for a substantial reason, such as undue delay, repeated failures to cure deficiencies, undue prejudice, or futility." United States ex rel. Spicer v. Westbrook, 751 F.3d 354, 367 (5th Cir. 2014). A court may find undue delay when a party has "fail[ed] to take advantage of earlier opportunities to amend." Brown Shoe Co. v. Com. Credit Couns. Servs., No. M-07-234, 2008 WL 2148749, at *5 (S.D. Tex. May 20, 2008) (quoting Lozano v. Ocwen Fed. Bank, FSB, 489 F.3d 636, 644 (5th Cir. 2007)); see also Daves v. Payless Cashways, Inc., 661 F.2d 1022, 1025 (5th Cir. 1981) ("At some point in the course of litigation, an unjustified delay preceding a motion to amend goes beyond excusable neglect, even when there is no evidence of bad faith or dilatory motive.").
Since the deadline for amendment has long passed, the "good cause" standard of Rule 16(b) applies. S&W Enters. v. Southtrust Bank of Ala., 315 F.3d 533, 535-36 (5th Cir. 2003). However, none of the parties' briefing goes through Rule 16's four-part balancing test. See id. at 536. The Court does not reach the Rule 16 factors because it finds that the Motion to Amend fails under Rule 15's "more liberal standard." See id.
Plaintiffs acknowledge that the Motion to Amend is "filed outside the time limit for amendment," but argue that amendment is proper based on an intervening change in law from the Supreme Court: Thompson v. Clark, — U.S. —, 142 S. Ct. 1332, 212 L.Ed.2d 382 (2022). See Mot. Amend 1-2. Plaintiffs argue that Thompson permits them to bring "a hybrid claim of false arrest and malicious prosecution under the Fourth Amendment," and seek to amend their Complaint accordingly. See id. at 2-4; Proposed 2d Am. Compl. ¶ 35, ECF No. 139-1. They contend that such amendment is necessary because "actions brought under the Fourteenth Amendment require conduct that 'shocks the conscience,' a requirement which is not applicable under Fourth Amendment actions." Mot. Amend 4; see also Pls.' Supp. Resp. 4, ECF No. 134. Further, they raise the possibility that their Fourteenth Amendment false charges claims may no longer be cognizable post-Thompson. See Mot. Amend 4; Pls.' Supp. Resp. 4. In response, Cardenas argues that amendment should not be permitted at this stage in the case because Plaintiffs could have brought malicious prosecution claims under state and federal law even before Thompson, and because amendment would be futile based on the Magistrate Judge's finding that there was probable cause for Morales' arrest. Cardenas Resp. Mot. Amend 1-3. The Carrillos additionally ask the Court to deny leave to amend based on the Magistrate Judge's conclusion that Thompson is not relevant to this case. Carrillo Resp. Mot. Amend 2, ECF No. 143.
Prior to Thompson, "[t]here [was] no freestanding right under the Constitution to be free from malicious prosecution" under Fifth Circuit law. See Anokwuru v. City of Houston, 990 F.3d 956, 963-64 (5th Cir. 2021). Instead, a plaintiff needed to show that "[t]he initiation of criminal charges without probable cause [had] set in force events that r[a]n afoul of [some] explicit constitutional protection." Castellano, 352 F.3d at 953-54. In Thompson, however, the Supreme Court recognized malicious prosecution as an independent cause of action under the Fourth Amendment. See 142 S. Ct. at 1341 (Alito, J., dissenting) (characterizing the majority opinion as creating a new constitutional tort).
Thompson does not justify amendment at this late stage in the case. Although an intervening change in law can be reason to amend, see, e.g., Garcia v. Lion Mex. Consol., L.P., 5:15-CV-1116-DAE, 2016 WL 6157436, at *3 (W.D. Tex. Oct. 21, 2016), the Court sees three reasons why Thompson has changed little for Plaintiffs.
First, Cardenas is correct that Plaintiffs could have previously pursued their malicious prosecution claims as claims for unlawful seizure under the Fourth Amendment. Prior to Thompson, malicious prosecution claims could be pursued within a different constitutional claim, so long as the malicious prosecution led to some other constitutional violation, such as an unlawful seizure. See Chapman, 969 F.3d at 245-46 (stating that, under the pre-Thompson standard, when actions amounting to malicious prosecution "result[ed] in an unreasonable search or seizure, those claims [could] be asserted under § 1983 as violations of the Fourth Amendment"). And as articulated in Thompson, unreasonable seizure remains an element of a Fourth Amendment malicious prosecution claim. 142 S. Ct. at 1337 & n.2. Thus, Plaintiffs could have previously developed their allegations of malicious prosecution within a claim for unreasonable seizure. The Court does not see why they should now be permitted to develop allegations of unreasonable seizure within a claim for malicious prosecution.
The Supreme Court raised the possibility that, when a malicious prosecution does not result in a seizure, such claims might be cognizable under the Fourteenth Amendment—but the Court "ha[d] no occasion to consider such an argument" in Thompson. 142 S. Ct. at 1337 n.2.
This conclusion is bolstered by Plaintiffs' lack of a response to Cardenas' argument on this point. Plaintiffs characterize Cardenas as arguing "that Thompson v. Clark did not create any new cause of action fitting Plaintiffs' facts." Reply Mot. Amend 1, ECF No. 141. But Cardenas does not deny that Thompson recognized malicious prosecution as a cause of action; he simply contends that Plaintiffs could have previously brought the relevant claim as a claim for false arrest. See Cardenas Resp. Mot. Amend 1-2. Plaintiffs do not offer any explanation for why they did not attempt to recover under a false arrest theory. Thus, "Plaintiffs must live with the consequences of their strategic decision[ ]" to not plead a claim for false arrest when they had the chance. See Cory v. City of Houston, No. H-03-0125, 2007 WL 3342198, at *5 (S.D. Tex. Nov. 9, 2007).
Second, the Court does not see any reason to believe that the Supreme Court's recognition of a Fourth Amendment malicious prosecution cause of action in Thompson abrogates the Fifth Circuit's recognition of a Fourteenth Amendment false charges cause of action in Cole I. The claims have distinct elements. The tort of malicious prosecution traditionally requires a plaintiff to show that "(i) the suit or proceeding was 'instituted without any probable cause'; (ii) the 'motive in instituting' the suit 'was malicious,' [. . .] and (iii) the prosecution 'terminated in the acquittal or discharge of the accused.' " Thompson, 142 S. Ct. at 1338 (quoting T. Cooley, Law of Torts 180 (1880)). And as stated, when pursuing claims under the Fourth Amendment, "the plaintiff also has to prove that the malicious prosecution resulted in a seizure of the plaintiff." Id. at 1337 n.2. By contrast, a false charges claim emphasizes the fabrication of evidence: a plaintiff must show that "(1) the officers fabricated evidence (2) for the purpose of falsely obtaining a charge and (3) that the evidence influenced the decision to charge." Cole v. Hunter, 497 F. Supp. 3d 172, 190 (N.D. Tex. 2020) (citing Cole I, 802 F.3d at 777). Moreover, unlike a plaintiff bringing a malicious prosecution claim, "[a] victim of intentional fabrication of evidence by law enforcement officers is denied due process whether he is convicted or acquitted." Id. (citing Cole I, 802 F.3d at 768). Thus, the Court sees little risk that the Supreme Court has implicitly invalidated Plaintiffs' Fourteenth Amendment claims mid-suit. Further, Defendants have made no such argument, and the dispositive motions deadline has elapsed.
Third, the Fourteenth Amendment's "shocks the conscience" standard does not pose any additional hurdles to Plaintiffs' recovery. Plaintiffs argue that the main consequence of their desired amendment would be to "remove[ ] the requirement to shock the conscience of the Court or jury." Reply Mot. Amend 3. But shocking the conscience is not an element that Plaintiffs must prove on their Fourteenth Amendment claims; the Fifth Circuit has already found that Defendants' alleged conduct—bringing false charges "in order to conceal and justify excessive force against one of the people our laws and systems are supposed to protect"—shocks the conscience as a matter of law. See Cole I, 802 F.3d at 771-72. Thus, Plaintiffs have nothing left to prove on this issue. Even if amendment were otherwise proper, it would not have the effect that Plaintiffs anticipate.
III. CONCLUSION
For the foregoing reasons, the R&R, ECF No. 136, is ADOPTED IN PART. The R&R is ADOPTED as to the Carrillo Motion but REJECTED as to the Cardenas Motion. Accordingly, the Carrillo Motion, ECF No. 113, is DENIED, and the Cardenas Motion, ECF No. 112, is DENIED.
IT IS FURTHER ORDERED that Plaintiffs' Motion to Amend, ECF No. 139, is DENIED.
SO ORDERED.