Salinas v. Ramirez

• Court: District Court, S.D. Texas
• Decided: November 6, 2023
• Docket: 2:23-cv-00147
• Status: Unknown

Opinion

□ Southern District of Texas ENTERED UNITED STATES DISTRICT COURT November 06, □□□ SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk CORPUS CHRISTI DIVISION ROBERT J. SALINAS, SR., § § Plaintiff, § V. § CIVIL ACTION NO. 2:23-CV-00147 § ROMEO R. RAMIREZ, § § Defendant. § ORDER ADOPTING MEMORANDUM AND RECOMMENDATION Before the Court is Magistrate Judge Mitchel Neurock’s Memorandum and Recommendation (“M&R”). (D.E. 13). The M&R recommends that the Court dismiss Plaintiff Robert J. Salinas, Sr.’s claims with prejudice. /d. at 10. Plaintiff filed written objections to the M&R. (D.E. 15). When a party objects to the findings and recommendations of a magistrate judge, the district judge “shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C.§ 636(b)(1)(C). As to any portion for which no objection is filed, a district court reviews for clearly erroneous factual findings and conclusions of law. See United States v. Wilson, 864 F.2d 1219, 1221 (Sth Cir. 1989) (per curiam). Plaintiff's objections to the M&R are not entirely clear; however, Plaintiff appears to be attempting to add an obstruction of justice claim and re-urge his invasion of privacy claim. See (D.E. 15, p. 1-3).! Despite Plaintiff's objections, the Court agrees with the M&R that this case

' While Plaintiff mentioned that he wanted Defendant “brought up on charges” for obstruction of justice in his original complaint, he did not attempt to allege this as a separate cause of action. See (D.E. 1, p. 7). Rather, Plaintiff alleged that Defendant invaded his privacy and violated his First, Third, Fourth, Fifth, and Ninth Amendment rights. /d. at 3. The facts in Plaintiff's complaint also do not suggest obstruction of justice. See id, at 4-5. 1/3

should be dismissed. See (D.E. 13, p. 10). Plaintiff is bringing his 42 U.S.C. § 1983 claim against Defendant Sheriff Romeo R. Ramirez in his official capacity. (D.E. 1, p. 2-3). A suit against Defendant in his official capacity is a suit against the county. See Bennett v. Pippin, 74 F.3d 578, 584 (Sth Cir. 1996) (“A suit against the Sheriff in his official capacity is a suit against the [c]ounty.”). Municipal, or county, liability under § 1983 requires “a policymaker; an official policy; and a violation of constitutional rights whose ‘moving force’ is the policy or custom.” E.g., Piotrowski v. City of Hous., 237 F.3d 567, 578 (Sth Cir. 2001) (quoting Monell v. Dep’t of Social Servs., 436 U.S. 658, 694 (1978)). As the points out, Plaintiff's complaint fails to allege any official policy. (D.E. 13, p. 6). Rather, Plaintiff's complaint alleges that Defendant entered Plaintiff's property without permission. See (D.E. 1, p. 4-6). Now, “in rare circumstances,” “a single decision” may constitute official policy when the official “possessing final policymaking authority for an action performed the specific act

_ that forms the basis of the § 1983 claim”; however, this mechanism of showing an official policy requires the policymaker to make a deliberate choice to act from among various alternatives. Sr. Maron Props., L.L.C. v. City of Hous., 78 F 4th 754, 760 (Sth Cir. 2023) (citations omitted). Here, Plaintiff does not allege that Defendant considered numerous alternatives and then chose to act in a manner violating his constitutional or statutory rights. See (D.E. 1). As such, despite his objections, Plaintiff's claims fail because he does not allege an official policy.’ Having reviewed the proposed findings and conclusions of the M&R, the record, the applicable law, and having made a de novo review of the portions of the M&R to which Plaintiff's objections are directed, 28 U.S.C. § 636(b)(1)(C), the Court OVERRULES Plaintiffs objections, (D.E. 15), and ADOPTS the findings and conclusions of the M&R, (D.E. 13). As such, Plaintiff's

2 plaintiff notes in his objection that he believed this case was consolidated with action No. 2:23-CV-00160. See (D.E. 15, p. 1, 5-7). This matter is not consolidated with any other case; rather, it is its own action. 2/3

§ 1983 claims are dismissed with prejudice for failure to state a claim upon which relief may be granted or as frivolous. (D.E. 1) A final judgment will be entered separately. SO ORDERED. G MORALES UNITED STATES DISTRICT JUDGE

Dated: Corpus Christi, Texas November 6“ 2023

3/3