Quiroz V. Eduardo Pineda; Spencer Hanna; The City of Austin

Case 1:21-cv-00443-RP Document 1 Filed 05/19/21 Page 1 of 9
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
ENRIQUE QUIROZ, Deceased,
§
through JOSEPHINE SALAZAR
§
Individually, and as NEXT FRIEND
§
OF J.R.S, E.F Q, AND E.Q. Minors;
§
MERCEDES QUIROZ, JASMINE
§
QUIROZ, ANDREW RAMIREZ AND
§
CHRISTINA ESPINOZA as
§
NEXT FRIEND OF H.E., A MINOR,
§
Plaintiffs
§
CAUSE NO. 1:21-cv-443
§
VS.
§
§
OFFICERS EDUARDO PINEDA,
§
SPENCER HANNA and CITY of
§
AUSTIN, TEXAS
§
Defendants,
§
PLAINTIFFS' ORIGINAL COMPLAINT
AND JURY DEMAND
TO THE HONORABLE JUDGE OF SAID COURT:
NOW COMES ENRIQUE QUIROZ, Deceased, through his heirs at law and files this
cause of action based on Defendants' actions, including the unnecessary, excessive and unreasonable
use of force which included: tasing, striking, punching, and pounding on Plaintiff's head and body
using their fists, tazers, elbow strikes and other manners of physical and mental abuse by Austin
Police Officers, as named herein. Plaintiffs also complain about the City of Austin's failures to
discipline, supervise, terminate, properly train, provide adequate policies, practices and procedures
and require officer compliance with existing policies practices and procedures and for other causes
of action as will be shown in the following. Defendant City had actual knowledge of the prior
abusive history of these individual officers' uses of excessive force and excessive uses of taser
Case 1:21-cv-00443-RP Document 1 Filed 05/19/21 Page 2 of 9
devices but took no actions to prevent such actions as occurred with Plaintiff.
PARTIES AND SERVICE
1.
Plaintiff Enrique Quiroz and his heirs all resided in Austin, Travis County, Texas at
the time of this incident. This incident described herein was the sole cause of his death. He was not
threatening or assaulting any individual or police officer and did not physically resist Defendant
officers or commit any crimes or actions which justified the tasing and assaultive abuses caused to
him. Plaintiff's injuries caused by these Defendants included their tasing and striking Enrique
Quiroz about the face and body before and after placing him in handcuffs when using any force was
unreasonable. Defendants caused numerous facial and head bruises, mental, emotional, physical
bodily injuries and death After being tased and assaulted, the Plaintiff was arrested for trespassing
inside his wife's home and taken to the hospital when he died solely because of his injuries caused
by Defendants. Defendants had actual knowledge that Plaintiff was unarmed and had not caused
danger or threatened any individuals. Defendants had actual knowledge that Plaintiff was preparing
to depart but determined to take unreasonable forceful actions and use tazers to arrest Plaintiff.
2.
Defendants Edwardo Pineda and Spencer Hanna were individually involved in the
assault, physical beating and tasing of Enrique Quiroz. Plaintiffs allege and will show that the
actions of each of these police officers, individually and as a group, contributed to and caused the
death of Plaintiff Quiroz. All officers are being sued individually and were all working as Austin
Police officers on the day and at the time of this incident.
Eduardo Pineda and Spencer Hanna can be served at the Austin Police Department,
Austin, Texas located at 715 East 8th Street, Austin, Texas 78701.
The City of Austin Texas is a municipality and should be cited by service on
Spencer Cronk, Austin City Manager at 301 W. 2nd, 3rd Floor, Austin, TX 78701.
Case 1:21-cv-00443-RP Document 1 Filed 05/19/21 Page 3 of 9
JURISDICTION
3.
The action arises under 28 U.S.C. Section 1331 and 1443 and statutory provisions as
hereinafter more fully appears.
4.
This Court has supplemental jurisdiction over state law claims discussed below under
28 U.S.C. Section 1367(a) because they arise out of the same case or controversy.
NATURE OF ACTION
5.
This is an action under Title 42 U.S.C. Section 1983. as amended by the Civil Rights
Act of 1991 and the Fourteenth Amendment to correct unlawful and unconstitutional practices and
policies. Plaintiffs also sue under the Texas Constitution.
FACTS
6.
On March 31, 2020, Plaintiff was visiting with some of his children inside the home
of his common law wife, Josephine Salazar. Enrique Quiroz was previously placed under a criminal
trespass warning and was asked to leave by his wife. Quiroz did not depart as quickly as requested
and the police arrived to remove him from the premises. Defendant Austin Police Officers
discussed the circumstances of Enrique Quiroz's presence and advised him to depart immediately,
per an existing court trespass order. Plaintiff advised that he was leaving, but Defendant officers
were determined to arrest Quiroz rather than allow him to vacate the residence. Defendant officers
immediately and forcefully grabbed Quiroz and began to force his hands behind his back. Quiroz
was thrown to the floor and Defendant officers, individually and as a group, began to taze and strike
Quiroz all about his body and caused immediate injury and physical pain to Plaintiff. Defendant
3
Case 1:21-cv-00443-RP Document 1 Filed 05/19/21 Page 4 of 9
Officers placed Plaintiff in handcuffs and completely restrained him while continuing to strike and
assault Quiroz as he lay on the floor. Quiroz did not physically resist, threaten or assault any police
officers or individual but attempted to comply with orders. Any resistance from Plaintiff was passive
and not physical or aggressive. Defendant Officers, acting together, continued to assault and strike
Plaintiff in the head and body using full force of knee kicks and fists on his body. These Defendants,
along with other officers who were holding Plaintiff on the ground, had complete control of
Plaintiff's hands and completely restrained his arms and hands. Plaintiff's movement was limited
to attempting to reach up to protect his head, body and face from the continual assaultive actions
oming from these Defendants and others under their directions. All the force used and described
herein was excessive and unnecessary.
7. Defendants caused Plaintiff to suffer various serious injuries and physical damages which
included tazing and causing physical injury to his body which lead to his death.
8. The individual named Officers' actions were done intentionally and with conscious
indifference to the rights, safety and protection of Plaintiff Quiroz and were done to cause the most
serious of injuries to his physical body and mind. At all times relevant to this incident, Defendant
officers did observe both Plaintiff's hands and knew that Plaintiff's hands were empty and that he
made no threats or caused Defendant officers to be in fear for themselves or others. Quiroz did not
attempt to physically resist the officers, avoid the officers, escape, elude, struggle or move in any
direction.
4
Case 1:21-cv-00443-RP Document 1 Filed 05/19/21 Page 5 of 9
EXCESSIVE FORCE
9.
Defendant Officers' actions were intentional and done with conscious indifference to
the rights, safety and suffering of Plaintiff. Defendant Officers had no reasonable beliefs that
Plaintiff was fighting or attempting to assault them, evade them or cause either of them any injury.
Defendants' actions were the sole cause for Plaintiff pain, suffering and injury and each continued
the tazing with knowledge that it could and did lead to the death of Plaintiff. Defendant Officers,
individually and as a group, had actual knowledge that tazing a restrained individual was infliction
of physical pain and suffering and violated Plaintiff's civil rights as assured by the U.S. Constitution
and Texas Constitution. Defendants' actions were conscious, indifferent and in Violation of 42
U.S.C. Section 1983.
NEGLIGENT RETENTION, TRAINING, SUPERVISION AND ABSENCE OF
POLICIES, DISCIPLINE AND PROCEDURES
10.
Plaintiffs alleges that the conduct of Defendant City of Austin, and the individually
identified Defendant Officers were consciously indifferent and constituted negligent and non-
existing training, supervision, discipline, absence of actual policies and procedures and unreasonably
dangerous retention policies. Plaintiff alleges that Defendant Austin Chief of Police and the City of
Austin, Texas did not properly screen, evaluate, train, investigate, discipline, supervise, timely
terminate or take other reasonable steps to determine whether Defendants were unfit, incompetent,
or a danger to third parties. Defendant Chief of Police and the City of Austin also failed and
continues to refuse to discipline these and other officers and were well aware of the extensive history
5
Case 1:21-cv-00443-RP Document 1 Filed 05/19/21 Page 6 of 9
the police department has when using tazers on individuals they are arresting. The arresting of
unarmed and non dangerous individuals by use of tazers is a normal practice of the Austin Police
Department and often amounts to police officers using excessive force on individuals they are
arresting and/or stopping where there is no fear of violence or danger to the officers or others.
Austin Police officers are continuously using tazer devices in similar arrest incidents where the
arrested individuals are showing no indications of violence or danger towards the responding officers
or others. The use of tazers has become a violent tendency and policy of Austin Police officers,
without justification, but yet APD has continually ignored Defendants Officers' past tazing actions.
Defendant City had no policies and procedures relating to proper and correct use of tazers which
prevented these officers from using unreasonable and unnecessary force. Defendant City's failures
to terminate and/or discipline its officers who continue using tazers without justification amounting
to excessive force, encourages officers to use tazers when the use of such force is not necessary. The
City of Austin has ignored its officers excessive practice of immediately using tazers or glorified and
praised Defendant Officers past continual uses of tazers and has made their actions examples for
other officers to follow. The actions of these officers reflects the City's deliberate indifference to
the use of tazers on non violent individuals and shows the continual violations of individuals civil
rights are violations under 42 U.S.C. Section 1983. The failure to train these officers in methods of
arresting individuals who are not violent and/or terminate officers who use excessive methods of
arresting individuals amounts to City of Austin having no actual policy that doesn't violate
individuals civil rights protections.
6
Case 1:21-cv-00443-RP Document 1 Filed 05/19/21 Page 7 of 9
11.
Defendant City of Austin allowed Plaintiff to be abused and have his civil rights
violated, acting through its unwritten daily policies, practices and procedures. The use of a tazer on
Quiroz shows deliberate, callous and conscious indifference to the constitutional rights of Quiroz
and clearly indicates random tazing without fear of punishment resulted in injury to Plaintiff. Failure
to train in proper incidents whereby an officer, who has other officers working with hm, should use
his tazer was the proximate cause of the violations of Quiroz's constitutional rights under 42 U.S.C.
Section 1983.
DAMAGES
12. Plaintiff's injuries and damages are the sole result of the actions and/or omissions of
Defendants described herein above:
a.
Physical and emotional pain, suffering and injuries
b.
All reasonable and necessary Attorney's fees incurred by or on behalf of
Plaintiffs,
C.
All reasonable and necessary costs incurred in pursuit of this suit;
d.
Emotional pain;
e.
Expert fees as the Court deems appropriate;
f.
Surgeries in the past and those needing to be done in the future.
g.
Prejudgment interest;
h.
Medical and death related Expenses in the past and future;
i.
Mental anguish in the past;
7
Case 1:21-cv-00443-RP Document 1 Filed 05/19/21 Page 8 of 9
j.
Mental anguish in the future;
k.
Loss of earnings in the past;
1.
Loss of earning capacity, in all probability, to be incurred in the future;
m.
All Appeal Cost and Expenses;
EXEMPLARY DAMAGES
13.
Plaintiff would further show that the acts and omissions of Defendants Officers were
committed with malice or reckless indifference to the protected rights of Plaintiff. In order to punish
said Defendants, Plaintiff also seeks recovery from Defendants for exemplary damages.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Plaintiffs respectfully pray that the
Defendants be cited to appear and answer herein, and that upon a final hearing of the cause,
judgment be entered against Defendants, jointly and severally, for damages in an amount within the
jurisdictional limits of the Court; exemplary damages, as addressed to each Officer Defendant,
together with interest as allowed by law; costs of court; and such other and further relief to which
the Plaintiff may be entitled at law or in equity.
Respectfully submitted,
BOBBY R TAYLOR
/s/Bobby Taylor
Bobby R. Taylor
8
Case 1:21-cv-00443-RP Document 1 Filed 05/19/21 Page 9 of 9
Texas Bar No. 19685500
1709 E. Martin L. King Jr. Blvd
Austin, Texas, 78702
Tel. 512-476-4886
Fax. (512)476-2818
Attorney for Plaintiff
PLAINTIFF HEREBY DEMANDS TRIAL BY JURY
9
Case 1:21-cv-00443-RP Document 1-1 Filed 05/19/21 Page 1 of 1
CASE
21-CV-
443
JS 44 (Rev. 10/20)
CIVIL COVER SHEET
The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except
as
provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the
purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)
I. (a) PLAINTIFFS
DEFENDANTS
Enrique Quiroz, Deceased, through Josephine Salazar,
Officers Eduardo Pineda, Spencer Hanna, and City of
Individually, and as Next of Friend of J.R.S., E.F.Q and
Austin, Texas
(b) County of Residence of First Listed Plaintiff Travis
County of Residence of First Listed Defendant
Travis
(EXCEPT IN U.S. PLAINTIFF CASES)
(IN U.S. PLAINTIFF CASES ONLY)
NOTE:
IN LAND CONDEMNATION CASES. USE THE LOCATION OF
THE TRACT OF LAND INVOLVED.
(c) Attorneys (Firm Name, Address, and Telephone Number)
Attorneys (If Known)
Law Office of Bobby R. Taylor
1709 E. Martin Luther King Jr. Blvd
Austin. Texas 78702
II. BASIS OF JURISDICTION
(Place
an
"X"
in
One
Box
Only)
III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an "X" in One Box for Plaintiff
(For Diversity Cases Only)
and One Box for Defendant)
1
U.S. Government
3 Federal Question
PTF
DEF
PTF
DEF
Plaintiff
(U.S. Government Not a Party)
Citizen of This State
1
1
Incorporated or Principal Place
4
4
of Business In This State
2
U.S. Government
4 Diversity
Citizen of Another State
2
2 Incorporated and Principal Place
5
5
Defendant
(Indicate Citizenship of Parties in Item III)
of Business In Another State
Citizen or Subject of a
3
3 Foreign Nation
6
6
Foreign Country
IV. NATURE OF SUIT
(Place an "X" in One Box Only)
Click here for: Nature of Suit Code Descriptions.
CONTRACT
TORTS
FORFEITURE/PENALTY
BANKRUPTCY
OTHER STATUTES
110 Insurance
PERSONAL INJURY
PERSONAL INJURY
625 Drug Related Seizure
422 Appeal 28 USC 158
375 False Claims Act
120 Marine
310 Airplane
365 Personal Injury
of Property 21 USC 881
423 Withdrawal
376 Qui Tam (31 USC
130 Miller Act
315 Airplane Product
Product Liability
690 Other
28 USC 157
3729(a))
140 Negotiable Instrument
Liability
367 Health Care/
400 State Reapportionment
150 Recovery of Overpayment
320 Assault, Libel &
Pharmaceutical
PROPERTY RIGHTS
410 Antitrust
& Enforcement of Judgment
Slander
Personal Injury
820 Copyrights
430 Banks and Banking
151 Medicare Act
330 Federal Employers'
Product Liability
830 Patent
450 Commerce
152 Recovery of Defaulted
Liability
368 Asbestos Personal
835 Patent Abbreviated
460 Deportation
Student Loans
340 Marine
Injury Product
New Drug Application
470 Racketeer Influenced and
(Excludes Veterans)
345 Marine Product
Liability
840 Trademark
Corrupt Organizations
153 Recovery of Overpayment
Liability
PERSONAL PROPERTY
LABOR
880 Defend Trade Secrets
480 Consumer Credit
of Veteran's Benefits
350 Motor Vehicle
370 Other Fraud
710 Fair Labor Standards
Act of 2016
(15 USC 1681 or 1692)
160 Stockholders' Suits
355 Motor Vehicle
371 Truth in Lending
Act
485 Telephone Consumer
190 Other Contract
Product Liability
380 Other Personal
720 Labor/Management
SOCIAL SECURITY
Protection Act
195 Contract Product Liability
360 Other Personal
Property Damage
Relations
861 HIA (1395ff)
490 Cable/Sat TV
196 Franchise
Injury
385 Property Damage
740 Railway Labor Act
862 Black Lung (923)
850 Securities/Commodities/
362 Personal Injury
Product Liability
751 Family and Medical
863 DIWC/DIWW (405(g))
Exchange
Medical Malpractice
Leave Act
864 SSID Title XVI
890 Other Statutory Actions
REAL PROPERTY
CIVIL RIGHTS
PRISONER PETITIONS
790 Other Labor Litigation
865 RSI (405(g))
891 Agricultural Acts
210 Land Condemnation
440 Other Civil Rights
Habeas Corpus:
791 Employee Retirement
893 Environmental Matters
220 Foreclosure
441 Voting
463 Alien Detainee
Income Security Act
FEDERAL TAX SUITS
895 Freedom of Information
230 Rent Lease & Ejectment
442 Employment
510 Motions to Vacate
870 Taxes (U.S. Plaintiff
Act
240 Torts to Land
443 Housing/
Sentence
or Defendant)
896 Arbitration
245 Tort Product Liability
Accommodations
530 General
871 IRS-Third Party
899 Administrative Procedure
290 All Other Real Property
445 Amer. w/Disabilities
535 Death Penalty
IMMIGRATION
26 USC 7609
Act/Review or Appeal of
Employment
Other:
462 Naturalization Application
Agency Decision
446 Amer. w/Disabilities
540 Mandamus & Other
465 Other Immigration
950 Constitutionality of
Other
550 Civil Rights
Actions
State Statutes
448 Education
555 Prison Condition
560 Civil Detainee
Conditions of
Confinement
V. ORIGIN
(Place an "X" in One Box Only)
1 Original
2 Removed from
3
Remanded from
4 Reinstated or
5 Transferred from
6 Multidistrict
8 Multidistrict
Proceeding
State Court
Appellate Court
Reopened
Another District
Litigation
Litigation
(specify)
Transfer
Direct File
Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):
42 OSC 1983
VI. CAUSE OF ACTION
Brief description of cause:
Excessive Force and Wrongful Death by Officers
VII. REQUESTED IN
CHECK IF THIS IS A CLASS ACTION
DEMAND $
CHECK YES only if demanded in complaint:
COMPLAINT:
UNDER RULE 23, F.R.Cv.P.
JURY DEMAND:
Yes
No
VIII. RELATED CASE(S)
IF ANY
(See instructions):
JUDGE
DOCKET NUMBER
DATE
SIGNATURE OF ATTORNEY OF RECORD
5-19-2021
FOR OFFICE USE ONLY
RECEIPT #
AMOUNT
APPLYING IFP
JUDGE
MAG. JUDGE
Case 1:21-cv-00443-RP Document 5 Filed 07/19/21 Page 1 of 6
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
ENRIQUE QUIROZ, Deceased,
§
Through JOSEPHONE SALAZAR
§
Individually, and as NEXT FRIEND OF
§
J.R.S, E.F Q, AND E.Q. Minors;
§
MERCEDES QUIROZ, JASMINE
§
QUIROZ, ANDREW RAMIREZ AND
§
CHRISTINA ESPINOZA as NEXT
§
FRIEND OF H.E., A MINOR,
§
CIVIL ACTION NO. 1:21-cv-443-LY
Plaintiffs,
§
§
V.
§
§
OFFICERS EDUARDO PINEDA,
§
SPENCER HANNA and CITY OF
§
AUSTIN, TEXAS,
§
Defendants.
DEFENDANT CITY OF AUSTIN'S RULE 12(b)(1)
MOTION TO DISMISS STATE-LAW CLAIMS
Defendant, City of Austin (the "City"), files this motion to dismiss the Plaintiffs' state-law
claims (see Orig. Compl. (Dkt 1) 4) and claims under the Texas Constitution (see Orig. Compl.
(Dkt 1) q5. The City benefits from sovereign immunity unless the Texas Legislature has
specifically waived that immunity. The Texas Tort Claims Act does not waive immunity for state-
law negligence claims like those pled by the Plaintiffs. Consequently, to that extent, this Court
lacks subject-matter jurisdiction for those claims they should be dismissed against the City.
BACKGROUND
Plaintiffs allege, in part, that: "On March 31, 2020, (Plaintiff's decedent, Enrique Quiroz)
was visiting with some of his children inside the home of his common law wife, Josephine Salazar.
Enrique Quiroz was previously placed under a criminal trespass warning and was asked to leave
by his wife. Quiroz did not depart as quickly as requested and the police arrived to remove him
Case 1:21-cv-00443-RP Document 5 Filed 07/19/21 Page 2 of 6
from the premises. Defendant Austin Police Officers discussed the circumstances of Enrique
Quiroz's presence and advised him to depart immediately, per an existing court trespass order."
Plaintiffs further allege that the Defendant officers were determined to arrest Quiroz rather than
allow him to vacate the residence and forcefully grabbed Quiroz and caused him immediate injury
and physical pain. Orig. Compl. (Dkt 1) T6.
ARGUMENT
Plaintiffs have asserted claims under 42 U.S.C. § 1983. As noted above, however, Plaintiffs
have also included one or more state-law negligence claims against the City, styled as claims for
"negligent retention, training, supervision and absence of policies, discipline and procedures." See
Orig. Compl. (Dkt. 1), IT 10; see also id. 4 (asserting the Court has "supplemental jurisdiction
over state law claims discussed below") and I 5 (asserting the "Plaintiffs also sue under the Texas
Constitution").
Violations of state law are not actionable under § 1983. Woodard V. Andrus, 419 F.3d 348,
353 (5th Cir. 2005) (holding that "§ 1983 is only a remedy for violations of federal statutory and
constitutional rights"). Furthermore, the Texas Constitution itself contains no private right of
action authorizing damages claims. Daniels V. City of Arlington, Tex., 246 F.3d 500, 507 & n.33
(5th Cir. 2001) (holding that "tort damages are not recoverable for violations of the Texas
Constitution"); Calhoun V. City of Austin, Tex., No. A-06-CA-185-AA, 2006 WL 2136153, at *1
(W.D. Tex. July 26, 2006) (Austin, M.J.) ("It is well settled law that Texas has no provision
comparable to § 1983 and there is no private cause of action for damages implied under the Texas
Constitution.").
The Court should dismiss the state-law claims against the City from the case pursuant to
FED. R. CIV. P. 12(b)(1), because the City is immune from Plaintiffs' negligence claims on their
Case 1:21-cv-00443-RP Document 5 Filed 07/19/21 Page 3 of 6
face, and that immunity has not been waived by the Texas Tort Claims Act (the "TTCA").
As a political subdivision of the State of Texas, the City has "full immunity from liability
for torts" except to the extent such immunity has been "waived by the TTCA." Brown V. City of
Houston, 8 S.W.3d 331, 333-34 (Tex. App.-Waco 1999, pet. denied). This immunity "defeats a
trial court's jurisdiction." Harris Cnty. V. Sykes, 136 S.W.3d 635, 638 (Tex. 2004). Accordingly,
dismissal under Rule 12(b)(1) is appropriate. See Pierce V. Hearne Indep. Sch. Dist., 600 Fed.
App'x 194, 197-98 (5th Cir. 2015) (unpublished) (affirming 12(b)(1) dismissal of claims per the
TTCA); Chase V. Nix, No. W-15-CV-258, 2016 WL 11668710, at n.2 (W.D. Tex. June 3, 2016)
(dismissing state-law negligence claims under Rule 12(b)(1) because "the TTCA's limited waiver
of sovereign immunity does not apply to negligence claims").
Plaintiffs' state-law negligence claims against the City purport to be based on the City's
hiring, retention, supervision, and training of its police officers. These are the precise kinds of
negligence claims Texas state courts routinely dismiss pursuant to the TTCA. See, e.g., Tex. Dep't
Pub. Safety V. Petta, 44 S.W.3d 575, 580 (Tex. 2001) (holding TTCA barred claims based on
failure to furnish training materials, failure to devise adequate tests for hiring officers, and failure
to discipline officers after incidents); City of Waco V. Williams, 209 S.W.3d 216, 224 (Tex. App.
Waco 2006, pet. denied) (holding allegations of negligent training and negligent implementation
of policy barred by TTCA); City of Sugarland V. Ballard, 174 S.W.3d 259, 265 (Tex. App.
Houston [1st Dist.] 2005, no pet.) (holding TTCA barred claims for "failure to supervise" as well
as "negligent training and supervision").
These kinds of negligence claims fare no better in federal court, where of course the TTCA
still applies. Federal courts in Texas regularly dismiss state-law negligence claims brought against
municipal entities under the TTCA. See, e.g., Starrett V. City of Richardson, No. 3:18-CV-00191-
Case 1:21-cv-00443-RP Document 5 Filed 07/19/21 Page 4 of 6
L, 2018 WL 4627133, at *11-12 (N.D. Tex. July 27, 2018) (recommending dismissal of negligence
claims, including negligent hiring, training, supervision, and retention, under TTCA), report and
recommendation adopted, 2018 WL 3802038, aff' d, 766 Fed. App'x 108 (5th Cir. April 1, 2019)
(unpublished); Ramirez V. Dimmit Cnty., Tex., No. SA-12-CV-305-DAE, 2014 WL 2780134, at
*5 (W.D. Tex. June 19, 2014) (holding TTCA barred negligent hiring claim unrelated to "three
specific areas of liability" carved out in TTCA); 2 Redhawk V. Hays County, No. A-09-CA-76-SS,
2009 WL 10701310, at *8 (W.D. Tex. July 16, 2009) ("Texas law is clear that claims based on
negligent training and supervision do not fall within the express language of the [TTCA's] waiver
provisions"); Rivera V. City of San Antonio, No. SA- 06-CA-235-XR, 2006 WL 3340908, at 15
(W.D. Tex. Nov. 15, 2006) (holding TTCA barred negligent hiring and negligent training claims).
Additionally, any state-law claims by Plaintiffs "based on the police department's policy
decisions" is expressly exempted from the TTCA's waiver of immunity. See Ballard, 174 S.W.3d
at 265 (citing TEX. CIV. PRAC. & REM. CODE § 101.055 (barring claims arising "from the
failure to provide or the method of providing police or fire protection")).
Consistent with this authority, Plaintiffs' state-law claims for "negligent retention, training,
supervision and absence of policies, discipline and procedures," as well as whatever purported
claims have been pled under the Texas Constitution, are indisputably barred by the TTCA. None
of the conduct described in the complaint fits within any waiver of sovereign immunity granted by
the TTCA. Accordingly, dismissal of those state-law claims under Rule 12(b)(1) is appropriate.
CONCLUSION
For the foregoing reasons, the City respectfully requests that the Court grant its motion to
dismiss Plaintiffs' "supplemental" state-law and Texas Constitution claims with prejudice, and for
the Court to award all other related relief to which the City is entitled.
Case 1:21-cv-00443-RP Document 5 Filed 07/19/21 Page 5 of 6
RESPECTFULLY SUBMITTED,
ANNE L. MORGAN, CITY ATTORNEY
MEGHAN L RILEY, LITIGATION DIVISION CHIEF
/s/ Monte L. Barton, Jr.
MONTE L. BARTON, JR.
State Bar No. 24115616
monte.barton@austintexas.gov
City of Austin
P.O. Box 1546
Austin, Texas 78767-1546
Telephone (512) 974-2409
Facsimile (512) 974-1311
ATTORNEYS FOR DEFENDANT
CITY OF AUSTIN
Case 1:21-cv-00443-RP Document 5 Filed 07/19/21 Page 6 of 6
CERTIFICATE OF SERVICE
This is to certify that I have served a copy of the foregoing on all parties or their attorneys
of record, in compliance with the Texas Rules of Federal Procedure, this 19th day of July, 2021.
Via CM/ECF:
Bobby R. Taylor
Blair J. Leake
State Bar No. 19685500
State Bar No. 24081630
1709 E. Martin L. King Jr. Blvd
bleake@w-g.com
Austin, Texas 78702
Stephen B. Barron
Telephone: (512) 476-4886
State Bar No. 24109619
Facsimile: (512) 476-2818
sbarron@w-g.com
Archie Carl Pierce
ATTORNEY FOR PLAINTIFFS
State Bar No. 5991500
cpierce@w-g.com
WRIGHT & GREENHILL, P.C.
900 Congress Avenue, Suite 500
Austin, Texas 78701
Telephone: (512) 476-4600
Facsimile: (512) 476-5382
ATTORNEY FOR DEFENDANTS
EDUARDO PINEDA and SPENCER
HANNA
/s/ Monte L. Barton, Jr.
MONTE L. BARTON, JR.
Case 1:21-cv-00443-RP Document 6 Filed 07/19/21 Page 1 of 6
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
ENRIQUE QUIROZ, Deceased,
§
Through JOSEPHONE SALAZAR
§
Individually, and as NEXT FRIEND OF
§
J.R.S, E.F Q, AND E.Q. Minors;
§
MERCEDES QUIROZ, JASMINE
§
QUIROZ, ANDREW RAMIREZ AND
§
CHRISTINA ESPINOZA as NEXT
§
FRIEND OF H.E., A MINOR,
§
CIVIL ACTION NO. 1:21-cv-443-LY
Plaintiffs,
§
§
V.
§
§
OFFICERS EDUARDO PINEDA,
§
SPENCER HANNA and CITY OF
§
AUSTIN, TEXAS,
§
Defendants.
DEFENDANT, CITY OF AUSTIN'S ANSWER AND
AFFIRMATIVE DEFENSES TO PLAINTIFF'S ORIGINAL COMPLAINT
TO THE HONORABLE JUDGE OF SAID COURT:
Defendant City of Austin files its Answer and Affirmative Defenses to Plaintiffs' Original
Complaint and Jury Demand (Doc. No. 1). Pursuant to Rules 8 and 12 of the Federal Rules of Civil
Procedure, Defendant respectfully shows the Court the following:
ORIGINAL ANSWER
Pursuant to Federal Rule of Civil Procedure 8(b), Defendant City of Austin responds to each of the
specific averments in Plaintiffs' Complaint as set forth below. To the extent that Defendant City of Austin
does not address a specific averment made by Plaintiff, Defendant expressly denies that averment. 1
The City denies the unnumbered allegations in the preamble paragraph which begins with "NOW
COMES" and precedes the "Parties and Service" section of the Complaint.
PARTIES AND SERVICE
1 Paragraph numbers in Defendant's Answer correspond to the paragraphs in Plaintiffs' Original Complaint.
Case 1:21-cv-00443-RP Document 6 Filed 07/19/21 Page 2 of 6
1.
Denied. The City is without sufficient knowledge to form a belief as to the truth of the allegations
concerning Plaintiffs' residence at the time of this incident and therefore denies the same. The
remaining allegations are denied.
2.
Denied.
JURISDICTION
3.
No response is required to Paragraph 3, as it does not contain any factual allegations. The
City admits that this Court has federal question jurisdiction over any alleged claims
pursuant to 42 U.S.C. § 1983. To the extent a response is required, the City otherwise
denies the remaining allegations in Paragraph 3.
4.
Denied.
NATURE OF ACTION
5.
No response is required to Paragraph 5, as it does not contain any factual allegations. The
City denies any claims under the Texas Constitution and otherwise denies the allegations
in Paragraph 5.
FACTS
6.
Denied.
7.
This Defendant is without sufficient knowledge to form a belief as to the truth of the
allegations contained in Paragraph 7 of the Original Complaint and therefore denies same.
8.
Denied.
EXCESSIVE FORCE
9.
Defendant denies the allegations contained in Paragraph 9.
NEGLIGENT RETENTION, TRAINING, SUPERVISION
AND ABSENCE OF POLICIES, DISCIPLINE AND PROCEDURES
10.
Defendant denies the allegations contained in Paragraph 10.
Case 1:21-cv-00443-RP Document 6 Filed 07/19/21 Page 3 of 6
11.
Defendant denies the allegations contained in Paragraph 11.
DAMAGES
12.
Defendant denies all of the allegations contained in Paragraph 12, including subparts a-m.
EXEMPLARY DAMAGES
13.
Defendant denies the allegations contained in Paragraph 13.
PRAYER
No response is required to the "Prayer" included in the Complaint, which begins with the phrase
"WHEREFORE, PREMISES CONSIDERED," as it does not contain any factual allegations. To the
extent any response is required, the City denies the allegations in the "Prayer" section of the Complaint,
and further denies that Plaintiff has any valid or supportable basis for any recovery from the City.
JURY DEMAND
As for Plaintiffs' jury demand, no response is required of the City Defendant.
AFFIRMATIVE DEFENSES
1.
Defendant City of Austin asserts the affirmative defense of governmental immunity as
a municipal corporation entitled to immunity while acting in the performance of its governmental
functions, absent express waiver.
2.
Defendant City of Austin asserts the affirmative defense of governmental immunity
since its employees are entitled to qualified/official immunity for actions taken in the course and
scope of their employment, absent express waiver.
3.
Defendant City of Austin affirmatively pleads that the Plaintiffs' claims are barred in whole
or in part since Plaintiff Enrique Quiroz's intentional acts were the proximate cause, or a
proximate contributing cause, of the alleged injuries and damages asserted in this case.
Case 1:21-cv-00443-RP Document 6 Filed 07/19/21 Page 4 of 6
4.
Defendant City of Austin reserves the right to assert additional affirmative defenses
throughout the development of the case.
5.
The City asserts that it is absolutely immune from punitive damages under 42 U.S.C. §
1983 pursuant to City of Newport V. Fact Concerts, Inc., 453 U.S. 247 (1981).
6.
Defendant asserts the affirmative defense that Plaintiffs failed to mitigate damages, if any,
and asserts this failure to mitigate as both an affirmative defense and as a reduction in the
damage amount, if any, due Plaintiffs.
7.
Defendants assert the affirmative defense of contributory negligence. Plaintiffs' claims are
barred in whole or in part by contributory negligence. Plaintiff, by his actions, failed to
exercise ordinary care for his safety. His actions contributed at least fifty-one percent to
the alleged injuries and the damages asserted in this case.
8.
Defendants affirmatively plead that the Plaintiff's claims are barred in whole or in part
since Plaintiffs intentional acts were the proximate cause, or a proximate contributing
cause, of the alleged injuries and damages asserted in this case.
9.
The incident in question and the resulting harm to Decedent were caused or contributed to
by Decedent's own illegal conduct.
10.
Pleading further and in the alternative, Plaintiffs' injuries and damages were caused in
whole or in part by the conduct of other persons or entities who are not currently parties to
this lawsuit.
11.
Pleading further, alternatively, and by way of affirmative defense, Defendant would show
that at the time and on the occasion in question, Decedent failed to use care or caution that
a person of ordinary prudence would have used under the same or similar circumstances,
and that such failure was a producing cause or the sole proximate cause of the incident and
Case 1:21-cv-00443-RP Document 6 Filed 07/19/21 Page 5 of 6
alleged damages that arise therefrom. If applicable and subject to withdrawal, Defendant
invokes the comparative responsibility provision of the Texas Civil Practice & Remedies
Code.
12.
Defendant further pleads any fault to be reduced by the percentage of the causation found
to have resulted from the acts or omissions of other persons.
13.
Defendant asserts the limitations and protections of Chapters 41 & 101 of the Texas Civil
Practice & Remedies code, and the due process clause of the United States Constitution.
14.
To the extent Defendant did not address a specific averment made by Plaintiffs in the
Complaint, Defendant expressly denies all such averments.
DEFENDANTS' PRAYER
Defendant City of Austin prays that all relief requested by Plaintiff be denied, that the Court
dismiss this case with prejudice, and that the Court award Defendants costs and attorney's fees,
and any additional relief to which it is entitled under law or equity.
RESPECTFULLY SUBMITTED,
ANNE L. MORGAN, CITY ATTORNEY
MEGHAN L. RILEY, LITIGATION DIVISION CHIEF
/s/ Monte L. Barton, Jr.
MONTE L. BARTON, JR.
State Bar No. 24115616
monte.barton@austintexas.gov
City of Austin
P. O. Box 1546
Austin, Texas 78767-1546
Telephone (512) 974-2409
Facsimile (512) 974-1311
ATTORNEYS FOR DEFENDANT
CITY OF AUSTIN
Case 1:21-cv-00443-RP Document 6 Filed 07/19/21 Page 6 of 6
CERTIFICATE OF SERVICE
This is to certify that I have served a copy of the foregoing on all parties or their attorneys
of record, in compliance with the Texas Rules of Federal Procedure, this 19th day of July, 2021.
Via CM/ECF:
Bobby R. Taylor
Blair J. Leake
State Bar No. 19685500
State Bar No. 24081630
1709 E. Martin L. King Jr. Blvd
bleake@w-g.com
Austin, Texas 78702
Stephen B. Barron
Telephone: (512) 476-4886
State Bar No. 24109619
Facsimile: (512) 476-2818
sbarron@w-g.com
Archie Carl Pierce
ATTORNEY FOR PLAINTIFFS
State Bar No. 5991500
cpierce@w-g.com
WRIGHT & GREENHILL, P.C.
900 Congress Avenue, Suite 500
Austin, Texas 78701
Telephone: (512) 476-4600
Facsimile: (512) 476-5382
ATTORNEY FOR DEFENDANTS
EDUARDO PINEDA and SPENCER HANNA
/s/ Monte L. Barton, Jr.
MONTE L. BARTON, JR.
Case 1:21-cv-00443-RP Document 7 Filed 07/19/21 Page 1 of 9
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
ENRIQUE QUIROZ, Deceased,
§
through JOSEPHINE SALAZAR
§
Individually, and as NEXT FRIEND
§
OF J.R.S., E.F.Q., and E.Q., Minors;
§
MERCEDES QUIROZ, JASMINE
§
QUIROZ, ANDREW RAMIREZ and
§
CHRISTINA ESPINOZA as
§
NEXT FRIEND OF H.E., a Minor,
§
Plaintiffs,
§
§
V.
§
No. 1:21-cv-00443-RP
§
OFFICERS EDUARDO PINEDA,
§
SPENCER HANNA and
§
CITY OF AUSTIN, TEXAS,
§
Defendants.
§
DEFENDANTS EDUARDO PINEDA AND SPENCER HANNA'S ANSWER
TO PLAINTIFF'S ORIGINAL COMPLAINT
TO THE HONORABLE UNITED STATES DISTRICT JUDGE:
COMES NOW Defendants, Eduardo Pineda and Spencer Hanna (hereinafter
"Defendants" or "Pineda and Hanna') by and through their attorneys of record, and file this
Answer to Plaintiff, Enrique Quiroz, deceased, through Josephine Salazar, individually and as
next friend of J.R.S., E.F.Q., and E.Q., minors; Mercedes Quiroz, Jasmine Quiroz, Andrew
Ramirez and Christina Espinoza as next friend of H.E., a minor (hereinafter "Quiroz"), Original
Complaint and in support thereof would respectfully show the Court as follows:
Defendants Eduardo Pineda and Spencer Hanna's Original Answer
Page 1
Case 1:21-cv-00443-RP Document 7 Filed 07/19/21 Page 2 of 9
I.
INTRODUCTION
1.
In the month leading up to March 31, 2020, Plaintiff, Josephine Salazar, sought and
obtained a formal trespass warning issued to Decedent Enrique Quiroz, forbidding him from
entering her property henceforth-namely, her apartment home where the facts underlying this
lawsuit occurred. 1 On March 31, 2020, Decedent forced his way into Plaintiff Salazar's home
and refused to leave, causing Plaintiff Salazar to seek the help of the Austin Police Department
to remove him from her home once again. Decedent's entry and presence in Plaintiff Salazar's
home against her will-after having already received a formal trespass warning-constituted a
Class A misdemeanor under Texas law, which is punishable by up to one year in jail.2
2.
Defendants, Austin Police Department Officers Eduardo Pineda and Spencer Hanna,
were both called to the scene to assist Plaintiff Salazar. The prior trespass warning was
confirmed, and the officers spoke to Plaintiff Salazar outside of the apartment. The officers
learned that Decedent had refused to leave, may be under the influence of drugs, and that he had
been acting in an erratic or strange manner.
3.
Officers Pineda and Hanna entered the apartment, while Plaintiff Salazar remained
outside due to her fear that Decedent might resist arrest or fight with the officers. Once inside,
the Officers verbally engaged Decedent and noticed that he was a very large and imposing
man-weighing as much as both Officers combined. For approximately the next fifteen minutes,
the Officers used de-escalation techniques, including conversing with Decedent and even giving
him a chance to find evidence on his phone to prove that Plaintiff Salazar had invited him into
her apartment. After it was clear that he possessed no such evidence and was indeed acting in an
1 See Tex. Pen. Code § 30.05.
2 See Tex. Pen. Code § 30.05(c)(3)(i).
Defendants Eduardo Pineda and Spencer Hanna's Original Answer
Page 2
Case 1:21-cv-00443-RP Document 7 Filed 07/19/21 Page 3 of 9
erratic manner, the officers began to initiate an arrest to remove the man from the residence of a
woman-Plaintiff Salazar-who had gone to great lengths to get him to leave her home.
4.
During the approximately fifteen-minute period of de-escalation, the officers informed
Decedent that he would be arrested absent the above-referenced proof of an invitation.
Eventually, the officers issued commands for him to stand up and put his hands behind his back
SO that he could be placed under arrest. Decedent stood up, but otherwise refused to comply. The
officers attempted to take hold of Decedent's arm to initiate the arrest, but Decedent pulled his
arm away and resisted any and all subsequent attempts by the officers to arrest him. At that
point, the officers had not yet had a chance to frisk Decedent, and-as they would later
discover-Decedent was carrying a knife in his pocket.
5.
After de-escalation, verbal commands, and attempts at relaxed physical control failed,
Officer Pineda was eventually forced to use his Taser device on Decedent to allow them to arrest
him. However, the Taser device was not effective, and the officers were still unable to subdue
Decedent and place him under arrest. By this point, both officers were forced to go hands-on in
an attempt to wrestle Quiroz to the floor SO that he could be placed in handcuffs and arrested. For
the next approximately five minutes, Decedent dragged and wrestled the two officers across the
apartment, and refused all officer commands to submit to arrest. At one point, Decedent grabbed
one officer's vest near his throat and yelled threateningly into his face.
6.
Eventually-after having dragged and wrestled the two officers outside onto the
apartment complex second-floor landing-Decedent was finally taken to the ground and put in
handcuffs. Decedent only spent a matter of seconds laying on his stomach while restrained in
handcuffs. Almost immediately thereafter, several APD officers arrived as backup and took
Defendants Eduardo Pineda and Spencer Hanna's Original Answer
Page 3
Case 1:21-cv-00443-RP Document 7 Filed 07/19/21 Page 4 of 9
control of the scene. Officers Pineda and Hanna had virtually no interactions whatsoever with
Decedent from that point forward.
7.
The APD officers who had arrived as backup attempted to transport Decedent down the
stairs to where EMS had arrived. Decedent-who is believed to have weighed approximately
330 pounds at that time-refused to walk to EMS's location on his own, and actively resisted
being physically carried to where EMS was waiting to help him. Eventually-long after any of
Officers Pineda and Hanna's interactions with Decedent-EMS administered to Decedent what
is believed to have been a benzodiazepine via syringe to sedate the still-resisting Decedent.
Decedent soon after suffered a medical emergency. Life-saving measures were attempted by
EMS, but Decedent ultimately passed away shortly thereafter. Based on information and belief,
Decedent was discovered to have been under the influence of numerous illicit drugs during the
entire encounter that forms the basis of this lawsuit.
8.
In contrast to the description of events contained in the Original Complaint, Officer
Pineda and Officer Hanna never punched or kicked or elbowed Decedent, never used force
against him once he had already been restrained in handcuffs, and never struck Decedent in the
head. The force used by Officers Pineda and Hanna was used only to the extent necessary to
subdue Decedent and make it possible to arrest him and remove him from Plaintiff Salazar's
residence, as she had requested. This lawsuit follows.
II.
ORIGINAL ANSWER
A. Parties and Service.
9.
Defendants are without sufficient knowledge to form a belief as to the truth of the
allegations contained in Paragraph 1 of Plaintiffs' Original Complaint regarding place of
residence, and therefore deny the same. Otherwise, denied.
Defendants Eduardo Pineda and Spencer Hanna's Original Answer
Page 4
Case 1:21-cv-00443-RP Document 7 Filed 07/19/21 Page 5 of 9
10.
As to the allegations contained within Paragraph 2 of Plaintiffs' Original Complaint,
Defendants admit that they were working as Austin Police Department officers on the day and
time of the incdient. Defendants are without sufficient knowledge to form a belief as to the truth
of the allegations contained in Paragraph 2 of Plaintiffs' Original Complaint regarding service.
All defendants appear to have formaly waived service of summons. Otherwise, denied.
B. Jurisdiction and Venue & Nature of Action.
11.
As to the allegations contained within Paragraphs 3 - 5 of Plaintiff's Original Complaint,
no answer is necessary from these Defendants. To the extent any answer is deemed necessary,
Defendants admit that Plaintiffs seek the relief requested therein pursuant to the cited bodies of
law. Otherwise, denied.
C. Facts.
12.
As to the allegations contained within Paragraphs 6 - 8 of Plaintiff's Original Complaint,
Defendants admit that Decedent had been previously issued a criminal trespass warning by
Plaintiff Josephine Salazar; that Plaintiff violated that criminal trespass notice by entering
Plaintiff Salazar home; that Plaintiff Salazar instructed him to leave and he refused; admit that
Officer Pineda used a Taser device to attempt to subdue Decedent; admit that they used a small
number of minor knee strikes against Decedent in their attempts to subdue and arrest him; and
admit that they wrestled with Decedent for approximately five minutes to attempt to subdue and
arrest him in the face of his continuing aggressive physical resistance. Otherwise, denied.
D. Causes of Action.
i.
Excessive Force.
13.
Defendant deny the allegations contained within Paragraph 9 of Plaintiffs' Original
Complaint.
Defendants Eduardo Pineda and Spencer Hanna's Original Answer
Page 5
Case 1:21-cv-00443-RP Document 7 Filed 07/19/21 Page 6 of
9
ii. Negligent Retention, Training, Supervision and Absence of Policies,
Discipline and Procedures.
14.
As to the allegations contained within Paragraphs 10 - 11 of Plaintiff's Original
Complaint, no answer is necessary from these Defendants. To the extent any answer is deemed
necessary, Defendants deny such allegations.
iii. Damages, Exemplary Damages, & Prayer.
15.
As to the allegations contained in Paragraphs 12 - 13 and the Prayer, no answer is
necessary from these Defendants. To the extent any answer is deemed necessary, Defendants
admit that Plaintiffs seek the relief requested therein. Otherwise, denied.
III.
AFFIRMATIVE DEFENSES & IMMUNITIES
16.
Defendants Pineda and Hanna deny any deprivation under color of statute, ordinance,
custom, or abuses of any rights, privileges, or immunities secured to the decedent by the United
States Constitution, state law, or 42 U.S.C. § 1983, et seq.
17.
Defendants hereby invoke the doctrine of Qualified Immunity and Official Immunity.
Defendants discharged their obligations and public duties in good faith, and would show that
their actions were objectively reasonable in light of the law and the information possessed at that
time.
18.
The incident in question and the resulting harm to Decedent were caused or contributed
to by Decedent's own illegal conduct.
19.
Pleading further and in the alternative, Plaintiff's injuries and damages were caused in
whole or in part by the conduct of other persons or entities who are not currently parties to this
lawsuit.
Defendants Eduardo Pineda and Spencer Hanna's Original Answer
Page 6
Case 1:21-cv-00443-RP Document 7 Filed 07/19/21 Page 7 of 9
20.
Pleading further, alternatively, and by way of affirmative defense, Defendants Pineda and
Hanna would show that at the time and on the occasion in question, Decedent failed to use any
degree of care or caution that a person of ordinary prudence would have used under the same or
similar circumstances, and that such failure was a producing cause or the sole proximate cause of
the incident and alleged damages that arise therefrom. Defendants Pineda and Hanna invoke the
comparative responsibility provisions of the Texas Civil Practice & Remedies Code. 3
21.
Defendants further plead that, in the unlikely event they are found to be liable, such
liability be reduced by the percentage of the causation found to have resulted from the acts or
omissions of other persons.
22.
Defendants plead that they had legal justification for each and every action taken by them
relating to this incident.
23.
Defendants assert the limitations and protections of Chapters 41 & 101 of the Texas Civil
Practice & Remedies Code, and the due process clause of the United States Constitution.
24.
Defendants reserve the right to assert additional affirmative defenses throughout the
development of this case.
25.
To the extent Defendants did not address a specific averment made by Plaintiff in his
Original Complaint, Defendants expressly deny all such averments.
IV.
JURY DEMAND
26.
Pursuant to Federal Rule of Civil Procedure 48, Defendants hereby request a jury trial.
3 See TEX. CIV. PRAC & REM. CODE ANN. § 33.001.
Defendants Eduardo Pineda and Spencer Hanna's Original Answer
Page 7
Case 1:21-cv-00443-RP Document 7 Filed 07/19/21 Page 8 of 9
V.
PRAYER FOR RELIEF
WHEREFORE, PREMISES CONSIDERED, Defendants Eduardo Pineda and Spencer
Hanna pray that upon a final hearing of this cause, the Court dismiss all of Plaintiffs' claims with
prejudice, that all costs of court be assessed against Plaintiffs, that they be awarded attorney fees
incurred in the defense of this suit, and for all further relief to which they may be justly entitled.
Respectfully submitted,
WRIGHT & GREENHILL, P.C.
900 Congress Avenue, Suite 500
Austin, Texas 78701
512-476-4600
512-476-5382 - Fax
By:
/s/ Blair J. Leake
Blair J. Leake
State Bar No. 24081630
bleake@w-g.com
Stephen B. Barron
State Bar No. 24109619
sbarron@w-g.com
Archie Carl Pierce
State Bar No. 15991500
cpierce@w-g.com
ATTORNEYS FOR DEFENDANTS
EDUARDO PINEDA AND
SPENCER HANNA
Defendants Eduardo Pineda and Spencer Hanna's Original Answer
Page 8
Case 1:21-cv-00443-RP Document 7 Filed 07/19/21 Page 9 of 9
CERTIFICATE OF SERVICE
I hereby certify that on the 19th day of July, 2021, a copy of Defendants Eduardo Pineda
and Spencer Hanna's Answer to Plaintiff's Original Complaint was electronically filed on the
CM/ECF system, which will automatically serve a Notice of Electronic Filing on the following
attorneys of record:
Bobby R. Taylor
1709 E. Martin L. King, Jr. Blvd.
Austin, Texas 78702
bobby@taylor-law.com
Monte L. Barton, Jr.
City of Austin - Law Department
P.O. Box 1546
Austin, Texas 78767-1546
monte.barton@austintexas.gov
/s/ Blair J. Leake
Blair J. Leake
Defendants Eduardo Pineda and Spencer Hanna's Original Answer
Page 9
Case 1:21-cv-00443-RP Document 8 Filed 07/27/21 Page 1 of 8
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
ENRIQUE QUIROZ, Deceased,
§
through JOSEPHINE SALAZAR
§
Individually, and as NEXT FRIEND
§
OF J.R.S, E.F Q, AND E.Q. Minors;
§
MERCEDES QUIROZ, JASMINE
§
QUIROZ, ANDREW RAMIREZ AND
§
CHRISTINA ESPINOZA as
§
NEXT FRIEND OF H.E., A MINOR,
§
Plaintiffs
§
CAUSE NO. 1:21-CV-00443-RP
§
VS.
§
§
OFFICERS EDUARDO PINEDA,
§
SPENCER HANNA and CITY of
§
AUSTIN, TEXAS
§
Defendants,
§
PLAINTIFFS' FIRST AMENDED COMPLAINT
AND JURY DEMAND
TO THE HONORABLE JUDGE OF SAID COURT:
NOW COMES ENRIQUE QUIROZ, Deceased, through his heirs at law and files this
First Amended Complaint based on Defendants' actions. Plaintiff sues Eduardo Pineda and Spencer
Hanna based upon their individual uses of force, including the tasing, striking, punching, and
pounding on Plaintiff's head and body using their fists, tazers, elbow strikes and other manners of
physical and mental abuse. Plaintiffs complain about the City of Austin's failures to provide
adequate policies, practices and procedures in violation of the U.S Constitution..
PARTIES AND SERVICE
1.
Plaintiff Enrique Quiroz and his heirs all resided in Austin, Travis County, Texas at
the time of this incident. This incident described herein was the sole cause of his death. He was not
Case 1:21-cv-00443-RP Document 8 Filed 07/27/21 Page 2 of 8
threatening or assaulting any individual or police officer and did not physically resist Defendant
officers or commit any crimes or actions which justified the tasing and assaultive abuses caused to
him. Plaintiff's injuries caused by these Officer Defendants included their tasing and striking
Enrique Quiroz about the face and body before and after placing him in handcuffs. Defendants
caused numerous facial and head bruises, mental, emotional, physical bodily injuries and death
After being tased and assaulted, the Plaintiff was arrested for trespassing inside his wife's home and
taken to the hospital when he died solely because of his injuries caused by Defendants. Defendants
had actual knowledge that Plaintiff was unarmed and had not caused danger or threatened any
individuals. Defendants had actual knowledge that Plaintiff was preparing to depart but determined
to take unreasonable forceful actions and use tazers to arrest Plaintiff.
2.
Defendants Edwardo Pineda, Spencer Hanna and the City of Austin have all been
served and made their appearances in this lawsuit.
JURISDICTION
3.
The action arises under 28 U.S.C. Section 1331 and 1443.
NATURE OF ACTION
4.
This is an action under Title 42 U.S.C. Section 1983. as amended by the Civil Rights
Act of 1991 and the Fourteenth Amendment to correct unlawful and unconstitutional practices and
policies.
FACTS
5.
On March 31, 2020, Plaintiff was visiting with some of his children inside the home
of his common law wife, Josephine Salazar. Enrique Quiroz was previously placed under a criminal
trespass warning and was asked to leave by his wife. Quiroz did not depart as quickly as requested
and the police arrived to remove him from the premises. Defendant Austin Police Officers
Case 1:21-cv-00443-RP Document 8 Filed 07/27/21 Page 3 of 8
discussed the circumstances of Enrique Quiroz's presence and advised him to depart immediately,
per an existing court trespass order. Plaintiff advised that he was leaving, but Defendant officers
were determined to arrest Quiroz rather than allow him to vacate the residence. Defendant officers
immediately and forcefully grabbed Quiroz and began to force his hands behind his back. Quiroz
was thrown to the floor and Defendant officers, individually and as a group, began to taze and strike
Quiroz all about his body and caused immediate injury and physical pain to Plaintiff. Defendant
Officers placed Plaintiff in handcuffs and completely restrained him while continuing to strike and
assault Quiroz as he lay on the floor. Quiroz did not physically resist, threaten or assault any police
officers or individual but attempted to comply with orders. Any resistance from Plaintiff was passive
and not physical or aggressive. Defendant Officers, acting together, continued to assault and strike
Plaintiff in the head and body using full force of knee kicks and fists on his body. These officer
Defendants, along with other officers who were holding Plaintiff on the ground, had complete
control of Plaintiff's hands and completely restrained his arms and hands. Plaintiff's movement was
limited to attempting to reach up to protect his head, body and face from the continual assaultive
actions coming from these Defendants and others under their directions. All the force used and
described herein was excessive and unnecessary.
6. Defendant officers caused Plaintiff to suffer various serious injuries and physical damages
which included tazing and causing physical injury to his body which lead to his death.
7. The individual named Officers' actions were done intentionally and with conscious
indifference to the rights, safety and protection of Plaintiff Quiroz and were done to cause the most
3
Case 1:21-cv-00443-RP Document 8 Filed 07/27/21 Page 4 of 8
serious of injuries to his physical body and mind. At all times relevant to this incident, Defendant
officers did observe both Plaintiff's hands and knew that Plaintiff's hands were empty and that he
made no threats or caused Defendant officers to be in fear for themselves or others. Quiroz did not
attempt to physically resist the officers, avoid the officers, escape, elude, struggle or move in any
direction.
EXCESSIVE FORCE
8.
Defendant Officers' actions were intentional and done with conscious indifference to
the rights, safety and suffering of Plaintiff. Defendant Officers had no reasonable beliefs that
Plaintiff was fighting or attempting to assault them, evade them or cause either of them any injury.
Defendants' actions were the sole cause for Plaintiff pain, suffering and injury and each continued
the tazing with knowledge that it could and did lead to the death of Plaintiff. Defendant Officers,
individually and as a group, had actual knowledge that tazing a restrained individual was infliction
of physical pain and suffering and violated Plaintiff's civil rights as assured by the U.S. Constitution.
Defendants' actions were conscious, indifferent and in Violation of 42 U.S.C. Section 1983.
NEGLIGENT RETENTION, TRAINING, SUPERVISION AND ABSENCE OF
POLICIES, DISCIPLINE AND PROCEDURES IN VIOLATION OF
42 U.S.C. SECTION 1983
9.
Plaintiffs alleges that the conduct of Defendant City of Austin, and the individually
identified Defendant Officers were consciously indifferent and constituted negligent and non-
existing training, supervision, discipline, absence of actual policies and procedures and unreasonably
dangerous retention policies in violation of 42 U.S.C. Section 1983. Defendant Chief of Police and
4
Case 1:21-cv-00443-RP Document 8 Filed 07/27/21 Page 5 of 8
the City of Austin failed and continues to refuse to discipline these and other officers and were well
aware of the extensive history the police department has when using tazers on individuals they are
arresting. The arresting of unarmed and non dangerous individuals by use of tazers is a normal
practice of the Austin Police Department and often amounts to police officers using excessive force
on individuals they are arresting and/or stopping where there is no fear of violence or danger to the
officers or others. Austin Police officers are continuously using tazer devices in similar arrest
incidents where the arrested individuals are showing no indications of violence or danger towards
the responding officers or others. The use of tazers has become a violent tendency and policy of
Austin Police officers, without justification, but yet APD has continually ignored Defendants
Officers' past tazing actions. Defendant City had no policies and procedures relating to proper and
correct use of tazers which prevented these officers from using unreasonable and unnecessary force.
Defendant City's failures to terminate and/or discipline its officers who continue using tazers without
justification amounting to excessive force, encourages officers to use tazers when the use of such
force is not necessary. The City of Austin has ignored its officers excessive practice of immediately
using tazers or glorified and praised Defendant Officers past continual uses of tazers and has made
their actions examples for other officers to follow. The actions of these officers reflects the City's
deliberate indifference to the use of tazers on non violent individuals and shows the continual
violations of individuals civil rights are violations under 42 U.S.C. Section 1983. The failure to train
these officers in methods of arresting individuals who are not violent and/or terminate officers who
use excessive methods of arresting individuals amounts to City of Austin having no actual policy that
5
Case 1:21-cv-00443-RP Document 8 Filed 07/27/21 Page 6 of 8
doesn't violate individuals civil rights protections.
10.
Defendant City of Austin allowed Plaintiff to be abused and have his civil rights
violated, acting through its unwritten daily policies, practices and procedures. The use of a tazer on
Quiroz shows deliberate, callous and conscious indifference to the constitutional rights of Quiroz
and clearly indicates random tazing without fear of punishment resulted in injury to Plaintiff. Failure
to train in proper incidents whereby an officer, who has other officers working with hm, should use
his tazer was the proximate cause of the violations of Quiroz's constitutional rights under 42 U.S.C.
Section 1983.
DAMAGES
11. Plaintiff's injuries and damages are the sole result of the actions and/or omissions of
Defendants described herein above:
a.
Physical and emotional pain, suffering and injuries
b.
All reasonable and necessary Attorney's fees incurred by or on behalf of
Plaintiffs,
c.
All reasonable and necessary costs incurred in pursuit of this suit;
d.
Emotional pain;
e.
Expert fees as the Court deems appropriate;
f.
Surgeries in the past and those needing to be done in the future.
g.
Prejudgment interest;
h.
Medical and death related Expenses in the past and future;
6
Case 1:21-cv-00443-RP Document 8 Filed 07/27/21 Page 7 of 8
i.
Mental anguish in the past;
j.
Mental anguish in the future;
k.
Loss of earnings in the past;
1.
Loss of earning capacity, in all probability, to be incurred in the future;
m.
All Appeal Cost and Expenses;
EXEMPLARY DAMAGES
12.
Plaintiff would further show that the acts and omissions of Defendants Officers were
committed with malice or reckless indifference to the protected rights of Plaintiff. In order to punish
said Defendants, Plaintiff also seeks recovery from Defendants for exemplary damages.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Plaintiffs respectfully pray that the
Defendants be cited to appear and answer herein, and that upon a final hearing of the cause,
judgment be entered against Defendants, jointly and severally, for damages in an amount within the
jurisdictional limits of the Court; exemplary damages, as addressed to each Officer Defendant,
together with interest as allowed by law; costs of court; and such other and further relief to which
the Plaintiff may be entitled at law or in equity.
Respectfully submitted,
BOBBY R TAYLOR
7
Case 1:21-cv-00443-RP Document 8 Filed 07/27/21 Page 8 of
8
/s/Bobby Taylor
Bobby R. Taylor
Texas Bar No. 19685500
1709 E. Martin L. King Jr. Blvd
Austin, Texas, 78702
Tel. 512-476-4886
Fax. (512)476-2818
Attorney for Plaintiff
PLAINTIFF HEREBY DEMANDS TRIAL BY JURY
CERTIFICATE OF SERVICE
I hereby certify that on July 27, 2021, a true and correct copy of the foregoing
document was served on all counsel of record by filing with the Court's CM/ECF system, as
well as by sending a copy to lead counsel by email.
/s/BobbyTaylor
Bobby Taylor
Via Electronic Filing:
Blair J. Leake
bleake@w-g.com
Anne L. Morgan, City Attorney
Stephen B. Barron sbarron@w-g.com
Meghan L. Riley, Litigation Div. Chief
Archie Carl Pierce cpierce@w-g.com
Monte L. Barton, Jr.
WRIGHT & GREENHILL, P.C.
monte.barton@austintexas.gov
900 Congress Avenue, Ste. 500
P.O. Box 1546
Austin, Texas 78701
Austin, Texas 78767
Attorneys for Defendant, City of Austin
8
Case 1:21-cv-00443-RP Document 9 Filed 07/27/21 Page 1 of 6
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
ENRIQUE QUIROZ, Deceased,
§
through JOSEPHINE SALAZAR
§
Individually, and as NEXT FRIEND
§
OF J.R.S, E.F Q, AND E.Q. Minors;
§
MERCEDES QUIROZ, JASMINE
§
QUIROZ, ANDREW RAMIREZ AND
§
CHRISTINA ESPINOZA as
§
NEXT FRIEND OF H.E., A MINOR,
§
Plaintiffs
§
CAUSE NO. 1:21-CV-00443-RP
§
VS.
§
§
OFFICERS EDUARDO PINEDA,
§
SPENCER HANNA and CITY of
§
AUSTIN, TEXAS
§
Defendants,
§
PLAINTIFF'S RESPONSE TO
DEFENDANTS CITY OF AUSTIN'S MOTION TO DISMISS
TO THE HONORABLE JUDGE:
COMES NOW, Plaintiff and files this Response to Defendant City of Austin's Motion To
Dismiss and shows as follows:
I.
STATUS OF CASE
1.
Plaintiff filed the Original Complaint and Jury Demand on May 19, 2021. Defendants
Eduardo Pineda and Spencer Hanna have appeared and filed their Original Answer. The City of
Austin filed their Rule 12(b)(1) Motion To Dismiss and Answer to Original Complaint on July 19,
2021. In the City of Austin's Motion To Dismiss, Defendant argues that Plaintiff's claim against
the City included various state law negligence claims against the City of Austin. Defendant also
references Plaintiff's referring to the Court having "supplemental jurisdiction over state law claims".
Defendant also references words suggesting Plaintiff was suing under the Texas Constitution and
assumed and argued those words referred to Plaintiff's suit against the City of Austin. Plaintiff never
Page 1 of 6
Case 1:21-cv-00443-RP Document 9 Filed 07/27/21 Page 2 of
6
intended to suggest it has any state law claims against the City Defendant while arguing the only
basis was in its claims against the individual Defendant Officers.
2.
Plaintiffs have filed Plaintiff's First Amended Complaint on today's date and have removed
any and all statements and references that Defendant City of Austin interpreted to allege the
City of Austin violated any state law claims. The wording "supplemental jurisdiction" has been
removed and any references to the Texas Constitution have also been deleted in the First Amended
Complaint.
3.
Plaintiffs has dropped every reference to state law claims that could be assumed to include
Defendant City of Austin in their First Amended Complaint. Plaintiffs are not alleging any state law
claims against the City for negligent retention, training, supervision, absence of policies, discipline
and procedures". This is a false reading of Plaintiff's Original Complaint and misleads this Court.
Plaintiff describes the case as arising under 28 U.S.C. Section 1331 and 1443. The Complaint
describes the nature as being under Section 1983 and the Civil Rights Act of 1991. This suit does
not allege any state law violations against the City of Austin. All allegations against the City of
Austin, those specifically described and identified in Paragraph 10 are constitutional violation of 42
U.S.C. Section 1983 by the City of Austin. Paragraph 11 states that the City of Austin "allowed
Plaintiff to be abused and have his civil right violated, which resulted in injury to Plaintiff".
II.
ARGUMENTS
4.
Under FRCP 8(a), pleadings must include a "short and plain" statement of the grounds for
jurisdiction, the claims presented, and the relief sought. Swierkiewicz V. Sorema, 534 U.S. 506, 512
(2002). The purpose of a motion to dismiss is to ensure that the defendant is given at least minimal
notice of the plaintiff's claims. Vicom, Inc. V. Harbridge Mechant Servs, 20 F.3d 771, 775 (7th Cir.
1994). In reviewing the sufficiency of a complaint, the issue is not whether a plaintiff will ultimately
prevail but whether the claimant is entitled to offer evidence to support the claims. Scheuer V.
Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds, Harlow V. Fitzgerald, 457 U.S. 800
(1982). The complaint must be liberally construed in favor of the plaintiff and all facts pleaded
Page 2 of 6
Case 1:21-cv-00443-RP Document 9 Filed 07/27/21 Page 3 of
6
therein must be taken as true. Leatherman V. Tarrant County Narcotics Intelligence & Coordination
Unit, 507 U.S. 163, 164. 113 S.Ct. 1160. 1161 (1993); Baker V. Putnal, 75 F.3d 190, 196 (5th Cir.
1996). In order to survive a motion to dismiss, a complaint need only contain "a short and plain
statement of the claim showing that the pleader is entitled to relief" Swierkiewicz at 506, (quoting
Fed. R.Civ. P. 8(a)(2). A complaint is sufficient if it "gives the defendant fair notice of what
plaintiff's claim is and the grounds upon which it rests." Id. (Quoting Conley V. Gibson, 355 U.S.
41, 47; 78 S.Ct. 99, 103 (1957). A motion to dismiss under Rule 12(b)(6) "is viewed with disfavor
and rarely granted". Lowrey V. Texas A&M Univ. Sys., 117 F.3d 242, 247 (5th Cir. 1997).
5.
Plaintiff's Original Complaint gave Defendant City of Austin actual notice of Plaintiff's
civil rights complaints against the City and left no doubts that Plaintiff was seeking protection of his
42 U.S. C. Section 1983 civil rights. Defendant's argument that Plaintiff was seeking a state law
claim was a misreading. Plaintiff's civil rights alleged to have been violated were clearly established
at the time. If, this Court accepts Defendants' arguments in their motion, Plaintiff seeks the
opportunity to amend pleadings.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Plaintiff request this Court deny Defendant's
Motion To Dismiss in its entirety. Plaintiffs also seek any further relief to which they are entitled.
Respectfully submitted,
THE LAW OFFICE OF BOBBY R. TAYLOR, P.C.
1709 E. Martin Luther King Jr., Blvd
Austin, Texas 78702
512-476-4886
512-476-2818 (fax)
By:/s/Bobby Taylor
Bobby R. Taylor
State Bar No. 19685500
Page 3 of 6
Case 1:21-cv-00443-RP Document 9 Filed 07/27/21 Page 4 of 6
ATTORNEY FOR PLAINTIFFS
CERTIFICATE OF SERVICE
I hereby certify that on July 27, 2021, a true and correct copy of the foregoing
document was served on all counsel of record by filing with the Court's CM/ECF system,
as well as by sending a copy to lead counsel by email.
/s/BobbyTaylor
Bobby Taylor
Via Electronic Filing:
Blair J. Leake
bleake@w-g.com
Anne L. Morgan, City Attorney
Stephen B. Barron sbarron@w-g.com
Meghan L. Riley, Litigation Div. Chief
Archie Carl Pierce cpierce@w-g.com
Monte L. Barton, Jr.
WRIGHT & GREENHILL, P.C.
monte.barton@austintexas.gov
900 Congress Avenue, Ste. 500
P.O. Box 1546
Austin, Texas 78701
Austin, Texas 78767
Attorneys for Defendants Pineda & Hanna
Attorneys for Defendant, City of Austin
Page 4 of 6
Case 1:21-cv-00443-RP Document 9 Filed 07/27/21 Page 5 of 6
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
ENRIQUE QUIROZ, Deceased,
§
through JOSEPHINE SALAZAR
§
Individually, and as NEXT FRIEND
§
OF J.R.S, E.FQ, AND E.Q. Minors;
§
MERCEDES QUIROZ, JASMINE
§
QUIROZ, ANDREW RAMIREZ AND
§
CHRISTINA ESPINOZA as
§
NEXT FRIEND OF H.E., A MINOR,
§
Plaintiffs
§
CAUSE NO. 1:21-CV-00443-RP
§
VS.
§
§
OFFICERS EDUARDO PINEDA,
§
SPENCER HANNA and CITY of
§
AUSTIN, TEXAS
§
Defendants,
§
ORDER
WHEREAS, COMES Plaintiffs' Response to Defendant's Motion to Dismiss and after
considering the motion, response and record in this case and after consideration of all matters,
Plaintiffs' Response to Defendants' Motion to Dismiss is GRANTED and Defendants' Motion to
Dismiss is DENIED.
SIGNED this the
day of
.
Page 5 of 6
Case 1:21-cv-00443-RP
Document 9
Filed 07/27/21 Page 6 of 6
UNITED STATES DISTRICT JUDGE
Page 6 of 6
Case 1:21-cv-00443-RP Document 10 Filed 08/10/21 Page 1 of 6
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
ENRIQUE QUIROZ, Deceased,
§
Through JOSEPHONE SALAZAR
§
Individually, and as NEXT FRIEND OF
§
J.R.S, E.F Q, AND E.Q. Minors;
§
MERCEDES QUIROZ, JASMINE
§
QUIROZ, ANDREW RAMIREZ AND
§
CHRISTINA ESPINOZA as NEXT
§
FRIEND OF H.E., A MINOR,
§
CIVIL ACTION NO. 1:21-cv-443-LY
Plaintiffs,
§
§
V.
§
§
OFFICERS EDUARDO PINEDA,
§
SPENCER HANNA and CITY OF
§
AUSTIN, TEXAS,
§
Defendants.
DEFENDANT, CITY OF AUSTIN'S AMENDED ANSWER AND
AFFIRMATIVE DEFENSES TO PLAINTIFF'S FIRST AMENDED COMPLAINT
TO THE HONORABLE JUDGE OF SAID COURT:
Defendant City of Austin files its Amended Answer and Affirmative Defenses to Plaintiffs' First
Amended Complaint and Jury Demand (Doc. No. 8). Pursuant to Rules 8 and 12 of the Federal Rules of
Civil Procedure, Defendant respectfully shows the Court the following:
FIRST AMENDED ANSWER
Pursuant to Federal Rule of Civil Procedure 8(b), Defendant City of Austin responds to each of the
specific averments in Plaintiffs' Complaint as set forth below. To the extent that Defendant City of Austin
does not address a specific averment made by Plaintiff, Defendant expressly denies that averment. 1
The City denies the unnumbered allegations in the preamble paragraph which begins with "NOW
COMES" and precedes the "Parties and Service" section of the Complaint.
1
Paragraph numbers in Defendant's Answer correspond to the paragraphs in Plaintiffs' Original Complaint.
Case 1:21-cv-00443-RP Document 10 Filed 08/10/21 Page 2 of 6
PARTIES AND SERVICE
1.
Denied. The City is without sufficient knowledge to form a belief as to the truth of the allegations
concerning Plaintiffs' residence at the time of this incident and therefore denies the same. The
remaining allegations are denied.
2.
Admit.
JURISDICTION
3.
No response is required to Paragraph 3, as it does not contain any factual allegations. The
City admits that this Court has federal question jurisdiction over any alleged claims
pursuant to 42 U.S.C. § 1983. To the extent a response is required, the City otherwise
denies the remaining allegations in Paragraph 3.
NATURE OF ACTION
4.
No response is required to Paragraph 5, as it does not contain any factual allegations. To
the extent a response is required, the City denies any allegations of unlawful or
unconstitutional practices and policies. Further, this defendant, City of Austin, states the
following: That upon information and belief from the pleadings, including Plaintiff's First
Amended Complaint (Dkt. 8), the parties are in agreement that Plaintiff's claims against
the City of Austin are limited to allegations brought under Section 1983, as discussed and
addressed in related filings, including the City of Austin's Motion to Dismiss (Dkt. 5.),
Plaintiffs' First Amended Complaint (Dkt. 8), and the Plaintiff's Response to the Motion
to Dismiss (Dkt. 9), SO that any claims originally asserted by the Plaintiffs' based on state
law or the Texas Constitution which were included in the original Complaint (Dkt. 1) have
been removed by the Plaintiffs and are not included in their First Amended Complaint (Dkt.
8). Plaintiffs are not alleging any state law claims against the City of Austin and their claims
against the City will be limited to allegations brought under Section 1983.
Case 1:21-cv-00443-RP Document 10 Filed 08/10/21 Page 3 of 6
FACTS
5.
Defendant denies the allegations contained in Paragraph 5.
6.
This Defendant is without sufficient knowledge to form a belief as to the truth of the
allegations contained in Paragraph 6 of the First Amended Complaint and therefore denies
same.
7.
Defendant denies the allegations contained in Paragraph 7.
EXCESSIVE FORCE
8.
Defendant denies the allegations contained in Paragraph 8.
NEGLIGENT RETENTION, TRAINING, SUPERVISION
AND ABSENCE OF POLICIES, DISCIPLINE AND PROCEDURES
IN VIOLATION OF 42 U.S.C. SECTION 1983
9.
Defendant denies the allegations contained in Paragraph 9.
10.
Defendant denies the allegations contained in Paragraph 10.
DAMAGES
11.
Defendant denies all of the allegations contained in Paragraph 11, including subparts a-m.
EXEMPLARY DAMAGES
12.
Defendant denies the allegations contained in Paragraph 12.
PRAYER
No response is required to the "Prayer" included in the Complaint, which begins with the phrase
"WHEREFORE, PREMISES CONSIDERED," as it does not contain any factual allegations. To the
extent any response is required, the City denies the allegations in the "Prayer" section of the Complaint,
and further denies that Plaintiff has any valid or supportable basis for any recovery from the City.
AFFIRMATIVE DEFENSES
1.
Defendant City of Austin asserts the affirmative defense of governmental immunity as
Case 1:21-cv-00443-RP Document 10 Filed 08/10/21 Page 4 of 6
a municipal corporation entitled to immunity while acting in the performance of its governmental
functions, absent express waiver.
2.
Defendant City of Austin asserts the affirmative defense of governmental immunity
since its employees are entitled to qualified/official immunity for actions taken in the course and
scope of their employment, absent express waiver.
3.
Defendant City of Austin affirmatively pleads that the Plaintiffs' claims are barred in whole
or in part since Plaintiff Enrique Quiroz's intentional acts were the proximate cause, or a
proximate contributing cause, of the alleged injuries and damages asserted in this case.
4.
Defendant City of Austin reserves the right to assert additional affirmative defenses
throughout the development of the case.
5.
The City asserts that it is absolutely immune from punitive damages under 42 U.S.C. §
1983 pursuant to City of Newport V. Fact Concerts, Inc., 453 U.S. 247 (1981).
6.
Defendant asserts the affirmative defense that Plaintiffs failed to mitigate damages, if any,
and asserts this failure to mitigate as both an affirmative defense and as a reduction in the
damage amount, if any, due Plaintiffs.
7.
Defendants assert the affirmative defense of contributory negligence. Plaintiffs' claims are
barred in whole or in part by contributory negligence. Plaintiff, by his actions, failed to
exercise ordinary care for his safety. His actions contributed at least fifty-one percent to
the alleged injuries and the damages asserted in this case.
8.
Defendants affirmatively plead that the Plaintiff's claims are barred in whole or in part
since Plaintiffs intentional acts or the acts of others for which this defendant has no
responsibility were the proximate cause, or a proximate contributing cause, of the alleged
injuries and damages asserted in this case.
Case 1:21-cv-00443-RP Document 10 Filed 08/10/21 Page 5 of 6
9.
The incident in question and the resulting harm to Decedent were caused or contributed to
by Decedent's own illegal conduct.
10.
Pleading further and in the alternative, Plaintiffs' injuries and damages were caused in
whole or in part by the conduct of other persons or entities who are not currently parties to
this lawsuit.
11.
Pleading further, alternatively, and by way of affirmative defense, Defendant would show
that at the time and on the occasion in question, Decedent failed to use care or caution that
a person of ordinary prudence would have used under the same or similar circumstances,
and that such failure was a producing cause or the sole proximate cause of the incident and
alleged damages that arise therefrom. If applicable and subject to withdrawal, Defendant
invokes the comparative responsibility provision of the Texas Civil Practice & Remedies
Code.
12.
Defendant further pleads any fault to be reduced by the percentage of the causation found
to have resulted from the acts or omissions of other persons.
13.
Defendant asserts the limitations and protections of Chapters 41 & 101 of the Texas Civil
Practice & Remedies code, and the due process clause of the United States Constitution.
14.
To the extent Defendant did not address a specific averment made by Plaintiffs in the
Complaint, Defendant expressly denies all such averments.
DEFENDANTS' PRAYER
Defendant City of Austin prays that all relief requested by Plaintiff be denied, that the Court
dismiss this case with prejudice, and that the Court award Defendants costs and attorney's fees,
and any additional relief to which it is entitled under law or equity.
Case 1:21-cv-00443-RP Document 10 Filed 08/10/21 Page 6 of 6
RESPECTFULLY SUBMITTED,
ANNE L. MORGAN, CITY ATTORNEY
MEGHANL.RILEY, LITIGATION DIVISION CHIEF
/s/ Monte L. Barton, Jr.
MONTE L. BARTON, JR.
State Bar No. 24115616
monte.barton@austintexas.gov
City of Austin
P.O. Box 1546
Austin, Texas 78767-1546
Telephone (512) 974-2409
Facsimile (512) 974-1311
ATTORNEYS FOR DEFENDANT
CITY OF AUSTIN
CERTIFICATE OF SERVICE
This is to certify that I have served a copy of the foregoing on all parties or their attorneys
of record, in compliance with the Texas Rules of Federal Procedure, this 10th day of August, 2021.
Via CM/ECF:
Bobby R. Taylor
Blair J. Leake
State Bar No. 19685500
State Bar No. 24081630
1709 E. Martin L. King Jr. Blvd
bleake@w-g.com
Austin, Texas 78702
Stephen B. Barron
Telephone: (512) 476-4886
State Bar No. 24109619
Facsimile: (512) 476-2818
sbarron@w-g.com
Archie Carl Pierce
ATTORNEY FOR PLAINTIFFS
State Bar No. 5991500
cpierce@w-g.com
WRIGHT & GREENHILL, P.C.
900 Congress Avenue, Suite 500
Austin, Texas 78701
Telephone: (512) 476-4600
Facsimile: (512) 476-5382
ATTORNEY FOR DEFENDANTS
EDUARDO PINEDA and SPENCER HANNA
/s/ Monte L. Barton, Jr.
MONTE L. BARTON, JR.
Case 1:21-cv-00443-RP Document 11 Filed 08/10/21 Page 1 of 9
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
ENRIQUE QUIROZ, Deceased,
§
through JOSEPHINE SALAZAR
§
Individually, and as NEXT FRIEND
§
OF J.R.S., E.F.Q., and E.Q., Minors;
§
MERCEDES QUIROZ, JASMINE
§
QUIROZ, ANDREW RAMIREZ and
§
CHRISTINA ESPINOZA as
§
NEXT FRIEND OF H.E., a Minor,
§
Plaintiffs,
§
§
V.
§
No. 1:21-cv-00443-RP
§
OFFICERS EDUARDO PINEDA,
§
SPENCER HANNA and
§
CITY OF AUSTIN, TEXAS,
§
Defendants.
§
DEFENDANTS EDUARDO PINEDA AND SPENCER HANNA'S ANSWER
TO PLAINTIFFS' FIRST AMENDED COMPLAINT
TO THE HONORABLE UNITED STATES DISTRICT JUDGE:
COMES NOW Defendants, Eduardo Pineda and Spencer Hanna (hereinafter
"Defendants" or "Pineda and Hanna") by and through their attorneys of record, and file this
Answer to Plaintiff, Enrique Quiroz, deceased, through Josephine Salazar, individually and as
next friend of J.R.S., E.F.Q., and E.Q., minors; Mercedes Quiroz, Jasmine Quiroz, Andrew
Ramirez and Christina Espinoza as next friend of H.E., a minor (hereinafter "Quiroz"), First
Amended Complaint and in support thereof would respectfully show the Court as follows:
Defendants Pineda and Hanna's Answer to Plaintiffs' First Amended Complaint
Page 1
Case 1:21-cv-00443-RP Document 11 Filed 08/10/21 Page 2 of 9
I.
INTRODUCTION
1.
In the month leading up to March 31, 2020, Plaintiff, Josephine Salazar, sought and
obtained a formal trespass warning issued to Decedent Enrique Quiroz, forbidding him from
entering her property henceforth-namely, her apartment home where the facts underlying this
lawsuit occurred. 1 On March 31, 2020, Decedent forced his way into Plaintiff Salazar's home
and refused to leave, causing Plaintiff Salazar to seek the help of the Austin Police Department
to remove him from her home once again. Decedent's entry and presence in Plaintiff Salazar's
home against her will-after having already received a formal trespass warning-constituted a
Class A misdemeanor under Texas law, which is punishable by up to one year in jail.2
2.
Defendants, Austin Police Department Officers Eduardo Pineda and Spencer Hanna,
were both called to the scene to assist Plaintiff Salazar. The prior trespass warning was
confirmed, and the officers spoke to Plaintiff Salazar outside of the apartment. The officers
learned that Decedent had refused to leave, may be under the influence of drugs, and that he had
been acting in an erratic or strange manner.
3.
Officers Pineda and Hanna entered the apartment, while Plaintiff Salazar remained
outside due to her fear that Decedent might resist arrest or fight with the officers. Once inside,
the Officers verbally engaged Decedent and noticed that he was a very large and imposing
man-weighing as much as both Officers combined. For approximately the next fifteen minutes,
the Officers used de-escalation techniques, including conversing with Decedent and even giving
him a chance to find evidence on his phone to prove that Plaintiff Salazar had invited him into
her apartment. After it was clear that he possessed no such evidence and was indeed acting in an
1 See Tex. Pen. Code § 30.05.
2 See Tex. Pen. Code § 30.05(c)(3)(i).
Defendants Pineda and Hanna's Answer to Plaintiffs First Amended Complaint
Page 2
Case 1:21-cv-00443-RP Document 11 Filed 08/10/21 Page 3 of 9
erratic manner, the officers began to initiate an arrest to remove the man from the residence of a
woman-Plaintiff Salazar-who had gone to great lengths to get him to leave her home.
4.
During the approximately fifteen-minute period of de-escalation, the officers informed
Decedent that he would be arrested absent the above-referenced proof of an invitation.
Eventually, the officers issued commands for him to stand up and put his hands behind his back
SO that he could be placed under arrest. Decedent stood up, but otherwise refused to comply. The
officers attempted to take hold of Decedent's arm to initiate the arrest, but Decedent pulled his
arm away and resisted any and all subsequent attempts by the officers to arrest him. At that
point, the officers had not yet had a chance to frisk Decedent, and-as they would later
discover-Decedent was carrying a knife in his pocket.
5.
After de-escalation, verbal commands, and attempts at relaxed physical control failed,
Officer Pineda was eventually forced to use his Taser device on Decedent to allow them to arrest
him. However, the Taser device was not effective, and the officers were still unable to subdue
Decedent and place him under arrest. By this point, both officers were forced to go hands-on in
an attempt to wrestle Quiroz to the floor SO that he could be placed in handcuffs and arrested. For
the next approximately five minutes, Decedent dragged and wrestled the two officers across the
apartment, and refused all officer commands to submit to arrest. At one point, Decedent grabbed
one officer's vest near his throat and yelled threateningly into his face.
6.
Eventually-after having dragged and wrestled the two officers outside onto the
apartment complex second-floor landing-Decedent was finally taken to the ground and put in
handcuffs. Decedent only spent a matter of seconds laying on his stomach while restrained in
handcuffs. Almost immediately thereafter, several APD officers arrived as backup and took
Defendants Pineda and Hanna's Answer to Plaintiffs First Amended Complaint
Page 3
Case 1:21-cv-00443-RP Document 11 Filed 08/10/21 Page 4 of 9
control of the scene. Officers Pineda and Hanna had virtually no interactions whatsoever with
Decedent from that point forward.
7.
The APD officers who had arrived as backup attempted to transport Decedent down the
stairs to where EMS had arrived. Decedent-who is believed to have weighed approximately
330 pounds at that time-refused to walk to EMS's location on his own, and actively resisted
being physically carried to where EMS was waiting to help him. Eventually-long after any of
Officers Pineda and Hanna's interactions with Decedent-EMS administered to Decedent what
is believed to have been a benzodiazepine via syringe to sedate the still-resisting Decedent.
Decedent soon after suffered a medical emergency. Life-saving measures were attempted by
EMS, but Decedent ultimately passed away shortly thereafter. Based on information and belief,
Decedent was discovered to have been under the influence of numerous illicit drugs during the
entire encounter that forms the basis of this lawsuit.
8.
In contrast to the description of events contained in the First Amended Complaint,
Officer Pineda and Officer Hanna never punched or kicked or elbowed Decedent, never used
force against him once he had already been restrained in handcuffs, and never struck Decedent in
the head. The force used by Officers Pineda and Hanna was used only to the extent necessary to
subdue Decedent and make it possible to arrest him and remove him from Plaintiff Salazar's
residence, as she had requested. This lawsuit follows.
II.
ORIGINAL ANSWER
A. Parties and Service.
9.
Defendants are without sufficient knowledge to form a belief as to the truth of the
allegations contained in Paragraph 1 of Plaintiffs' First Amended Complaint regarding place of
residence, and therefore deny the same. Otherwise, denied.
Defendants Pineda and Hanna's Answer to Plaintiffs First Amended Complaint
Page 4
Case 1:21-cv-00443-RP Document 11 Filed 08/10/21 Page 5 of 9
10.
As to the allegations contained within Paragraph 2 of Plaintiffs' First Amended
Complaint, Defendants admit that they have been served and have appeared.
B. Jurisdiction and Venue & Nature of Action.
11.
As to the allegations contained within Paragraphs 3 - 4 of Plaintiffs' First Amended
Complaint, no answer is necessary from these Defendants. To the extent any answer is deemed
necessary, Defendants admit that Plaintiffs seek the relief requested therein pursuant to the cited
bodies of law. Otherwise, denied.
C. Facts.
12.
As to the allegations contained within Paragraphs 5 - 7 of Plaintiffs' First Amended
Complaint, Defendants admit that Decedent had been previously issued a criminal trespass
warning by Plaintiff Josephine Salazar; that Plaintiff violated that criminal trespass notice by
entering Plaintiff Salazar's home; that Plaintiff Salazar instructed him to leave and he refused;
admit that Officer Pineda used a Taser device to attempt to subdue Decedent; admit that they
used a small number of minor knee strikes against Decedent in their attempts to subdue and
arrest him; and admit that they wrestled with Decedent for approximately five minutes to attempt
to subdue and arrest him in the face of his continuing aggressive physical resistance. Otherwise,
denied.
D. Causes of Action.
i. Excessive Force.
13.
Defendants deny the allegations contained within Paragraph 9 of Plaintiffs' First
Amended Complaint.
ii. Negligent Retention, Training, Supervision and Absence of Policies,
Discipline and Procedures.
Defendants Pineda and Hanna's Answer to Plaintiffs First Amended Complaint
Page 5
Case 1:21-cv-00443-RP Document 11 Filed 08/10/21 Page 6 of 9
14.
As to the allegations contained within Paragraphs 9 - 10 of Plaintiffs' First Amended
Complaint, no answer is necessary from these Defendants. To the extent any answer is deemed
necessary, Defendants deny such allegations.
iii. Damages, Exemplary Damages, & Prayer.
15.
As to the allegations contained in Paragraphs 11 - 12 and the Prayer, no answer is
necessary from these Defendants. To the extent any answer is deemed necessary, Defendants
admit that Plaintiffs seek the relief requested therein. Otherwise, denied.
III.
AFFIRMATIVE DEFENSES & IMMUNITIES
16.
Defendants Pineda and Hanna deny any deprivation under color of statute, ordinance,
custom, or abuses of any rights, privileges, or immunities secured to the decedent by the United
States Constitution, state law, or 42 U.S.C. § 1983, et seq.
17.
Defendants hereby invoke the doctrine of Qualified Immunity and Official Immunity.
Defendants discharged their obligations and public duties in good faith, and would show that
their actions were objectively reasonable in light of the law and the information possessed at that
time.
18.
The incident in question and the resulting harm to Decedent were caused or contributed
to by Decedent's own illegal and/or dangerous conduct.
19.
Pleading further and in the alternative, Plaintiffs' injuries and damages were caused in
whole or in part by the conduct of other persons or entities who are not currently parties to this
lawsuit.
20.
Pleading further, alternatively, and by way of affirmative defense, Defendants Pineda and
Hanna would show that at the time and on the occasion in question, Decedent failed to use any
degree of care or caution that a person of ordinary prudence would have used under the same or
Defendants Pineda and Hanna's Answer to Plaintiffs First Amended Complaint
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Case 1:21-cv-00443-RP Document 11 Filed 08/10/21 Page 7 of 9
similar circumstances, and that such failure was a producing cause or the sole proximate cause of
the incident and alleged damages that arise therefrom. Defendants Pineda and Hanna invoke the
comparative responsibility provisions of the Texas Civil Practice & Remedies Code. 3
21.
Defendants further plead that, in the unlikely event they are found to be liable, such
liability be reduced by the percentage of the causation found to have resulted from the acts or
omissions of other persons.
22.
Defendants plead that they had legal justification for each and every action taken by them
relating to this incident.
23.
Defendants assert the limitations and protections of Chapters 41 & 101 of the Texas Civil
Practice & Remedies Code, and the due process clause of the United States Constitution.
24.
Defendants reserve the right to assert additional affirmative defenses throughout the
development of this case.
25.
To the extent Defendants did not address a specific averment made by Plaintiffs in their
First Amended Complaint, Defendants expressly deny all such averments.
IV.
JURY DEMAND
26.
Pursuant to Federal Rule of Civil Procedure 48, Defendants hereby request a jury trial.
V.
PRAYER FOR RELIEF
WHEREFORE, PREMISES CONSIDERED, Defendants Eduardo Pineda and Spencer
Hanna pray that upon a final hearing of this cause, the Court dismiss all of Plaintiffs' claims with
prejudice, that all costs of court be assessed against Plaintiffs, that they be awarded attorney fees
incurred in the defense of this suit, and for all further relief to which they may be justly entitled.
3
See TEX. CIV. PRAC & REM. CODE ANN. § 33.001.
Defendants Pineda and Hanna's Answer to Plaintiffs First Amended Complaint
Page 7
Case 1:21-cv-00443-RP Document 11 Filed 08/10/21 Page 8 of 9
Respectfully submitted,
WRIGHT & GREENHILL, P.C.
900 Congress Avenue, Suite 500
Austin, Texas 78701
512-476-4600
512-476-5382 - Fax
By:
/s/ Blair J. Leake
Blair J. Leake
State Bar No. 24081630
bleake@w-g.com
Stephen B. Barron
State Bar No. 24109619
sbarron@w-g.com
Archie Carl Pierce
State Bar No. 15991500
cpierce@w-g.com
ATTORNEYS FOR DEFENDANTS
EDUARDO PINEDA AND
SPENCER HANNA
Defendants Pineda and Hanna's Answer to Plaintiffs' First Amended Complaint
Page 8
Case 1:21-cv-00443-RP Document 11 Filed 08/10/21 Page 9 of 9
CERTIFICATE OF SERVICE
I hereby certify that on the 10th day of August, 2021, a copy of Defendants Eduardo
Pineda and Spencer Hanna's Answer to Plaintiffs' First Amended Complaint was electronically
filed on the CM/ECF system, which will automatically serve a Notice of Electronic Filing on the
following attorneys of record:
Bobby R. Taylor
1709 E. Martin L. King, Jr. Blvd.
Austin, Texas 78702
bobby@taylor-law.com
Monte L. Barton, Jr.
City of Austin - Law Department
P.O. Box 1546
Austin, Texas 78767-1546
monte.barton@austintexas.gov
/s/ Blair J. Leake
Blair J. Leake
Defendants Pineda and Hanna's Answer to Plaintiffs' First Amended Complaint
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Case 1:21-cv-00443-RP Document 16 Filed 11/08/21 Page 1 of 18
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
ENRIQUE QUIROZ, Deceased,
§
through JOSEPHINE SALAZAR
§
Individually, and as NEXT FRIEND
§
OF J.R.S., E.F.Q., and E.Q., Minors;
§
MERCEDES QUIROZ, JASMINE
§
QUIROZ, ANDREW RAMIREZ and
§
CHRISTINA ESPINOZA as
§
NEXT FRIEND OF H.E., a Minor,
§
Plaintiffs,
§
§
V.
§
No. 1:21-cv-00443-RP
§
OFFICERS EDUARDO PINEDA,
§
SPENCER HANNA and
§
CITY OF AUSTIN, TEXAS,
§
Defendants.
§
DEFENDANTS EDUARDO PINEDA AND SPENCER HANNA'S
MOTION TO STAY DISCOVERY
TO THE HONORABLE UNITED STATES DISTRICT JUDGE:
NOW COMES Defendants Eduardo Pineda and Spencer Hanna, and files this, their
motion to stay discovery of this civil matter pending the resolution of their criminal proceedings,
and would respectfully show the Court as follows:
Case 1:21-cv-00443-RP Document 16 Filed 11/08/21 Page 2 of 18
I.
BACKGROUND
A. The day of the incident.
1.
In the month leading up to March 31, 2020, Plaintiff Josephine Salazar sought and
obtained a formal criminal trespass warning issued to Decedent Enrique Quiroz, forbidding him
from entering her property henceforth-namely, her apartment home where the facts underlying
this lawsuit occurred. On March 31, 2020, Quiroz forced his way into Plaintiff Salazar's home
and refused to leave, causing Plaintiff Salazar to seek the help of the Austin Police Department
to remove him from her home once again. Quiroz's entry and presence in Plaintiff Salazar's
home against her will-after having already received a formal criminal trespass warning-
constituted a Class A misdemeanor under Texas law, which is punishable by up to one year in
jail.
2.
Defendants, Austin Police Department Officers Eduardo Pineda and Spencer Hanna,
were both called to the scene to assist Plaintiff Salazar. The prior trespass warning was
confirmed, and the officers spoke to Plaintiff Salazar outside of the apartment. The officers
learned that Quiroz had refused to leave, may be under the influence of drugs, and that he had
been acting in an erratic or strange manner.
3.
Officers Pineda and Hanna entered the apartment, while Plaintiff Salazar remained
outside due to her fear that Quiroz might resist arrest or fight with the officers. Once inside, the
Officers verbally engaged Quiroz and noticed that he was a very large and imposing man-
weighing as much as both Officers combined. For approximately the next fifteen minutes, the
Officers used de-escalation techniques, including conversing with Quiroz and even giving him a
chance to find evidence on his phone to prove that Plaintiff Salazar had invited him into her
1 See Tex. Pen. Code § 30.05.
2
See Tex. Pen. Code § 30.05(c)(3)(i).
Defendants Pineda and Hanna's Motion to Stay Discovery
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Case 1:21-cv-00443-RP Document 16 Filed 11/08/21 Page 3 of 18
apartment. After it was clear that he possessed no such evidence and was acting in an erratic
manner, the officers began to initiate an arrest to remove Quiroz from the residence of a
woman-Plaintiff Salazar-who had to seek police intervention to force a man to leave her
home a second time.
4.
The officers issued commands for Quiroz to stand up and put his hands behind his back
SO that he could be placed under arrest for criminal trespass. Quiroz stood up but otherwise
refused to comply. The officers attempted to take hold of Quiroz's arm to initiate the arrest, but
Quiroz pulled his arm away and resisted any and all subsequent attempts by the officers to arrest
him. At that point, the officers had not yet had a chance to frisk Quiroz, and-as they would later
discover-Quiroz was carrying a knife in his pocket.
5.
After de-escalation, verbal commands, and attempts at relaxed physical control failed,
Officer Pineda was eventually forced to use his Taser device on Quiroz to allow them to arrest
him. However, the Taser device was not effective, and the officers were still unable to subdue
Quiroz and place him under arrest. By this point, both officers were forced to go hands-on in an
attempt to wrestle Quiroz to the floor SO that he could be placed in handcuffs and arrested. For
the next approximately five minutes, Quiroz dragged and wrestled the two officers across the
apartment, and refused all officer commands to calm down and allow himself to be put under
arrest. At one point, Quiroz grabbed one officer's vest near his throat and yelled profane threats
into his face.
6.
Eventually-after having dragged and wrestled the two officers outside onto the
apartment complex second-floor landing-Quiroz was finally wrestled to the ground and put in
handcuffs. Quiroz only spent a matter of seconds laying on his stomach while restrained before
he was sat upright by the officers. Almost immediately thereafter, several other APD officers
Defendants Pineda and Hanna's Motion to Stay Discovery
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Case 1:21-cv-00443-RP Document 16 Filed 11/08/21 Page 4 of 18
arrived as backup and took control of the scene. Officers Pineda and Hanna were relieved and
had no interactions whatsoever with Quiroz from that point forward.
7.
The APD officers who had arrived as backup attempted to transport Quiroz down the
stairs to where EMS had arrived. Quiroz-who is believed to have weighed approximately 330
pounds at that time-refused to walk to EMS's location on his own, and actively resisted being
physically carried to where EMS was waiting to help him. Eventually-long after Officers
Pineda and Hanna's earlier interactions with Quiroz had concluded-an EMS medical
professional administered an involuntary injection of what is believed to have been a
benzodiazepine or other sedative drug to sedate the still-resisting Quiroz. Quiroz suffered a
medical emergency almost immediately after being injected with the benzodiazepine. Life-
saving measures were attempted by EMS, but Quiroz ultimately passed away shortly thereafter.
Based on information and belief, Quiroz was discovered to have been under the influence of
numerous illicit drugs during the entire encounter that forms the basis of this lawsuit.
8.
In contrast to the description of events contained in the First Amended Complaint,
Officer Pineda and Officer Hanna never punched or kicked or elbowed Quiroz, never used force
against him once he had already been restrained in handcuffs, and never struck Quiroz in the
head. The force used by Officers Pineda and Hanna was used only to the extent necessary to
subdue Quiroz and make it possible to arrest and remove him from Plaintiff Salazar's residence
as she had requested.
B. The Travis County District Attorney has telegraphed criminal proceedings for
Officers Pineda and Hanna arising out of Plaintiffs' allegations.
9.
Travis County District Attorney Jose Garza has made it clear that he will pursue what
ostensibly will be felony Aggravated Assault by a Public Servant charges against Officers Pineda
Defendants Pineda and Hanna's Motion to Stay Discovery
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Case 1:21-cv-00443-RP Document 16 Filed 11/08/21 Page 5 of 18
and Hanna related to the conduct alleged by Plaintiff herein.³ District Attorney Garza issued one
of several press releases that plainly state that he will present Officers Pineda and Hanna to a
grand jury in "early fall of 2021" for the exact same conduct and accusations underlying this
lawsuit. The District Attorney's press releases also list as suspects the other APD Officers
Officers Dowdell, Parker, Yaletchko, and Garcia-who were involved in the subduing of Quiroz
after they took over and relieved Officers Pineda and Hanna as backup. The other officers are not
parties to this lawsuit. Likewise, for reasons unknown, Plaintiffs did not sue the medical
professional who injected Quiroz with a sedative drug immediately prior to the medical
emergency that led to his death, nor did the District Attorney list such medical professional as a
possible criminal defendant.
10.
Based on District Attorney Garza's campaign promises and corresponding thirteen
indictments of local first responders in his less-than-one-year tenure as the Travis County's
District Attorney-and with grand jury presentations for roughly 40 other Travis County first
responders already announced by his office-the likely result of the grand jury presentation
related to Officers Pineda and Hanna is not hard to predict. 5
11.
Officers Pineda and Hanna assert that their ability to effectively defend themselves in this
civil lawsuit will be crippled by the fact that their pending felony indictment makes it de facto
necessary for them to invoke their Fifth Amendment rights during civil discovery. Accordingly,
Defendant Pineda and Hanna's civil counsel respectfully requests that this Court temporarily stay
civil discovery in this suit in order to ensure that Defendants Pineda and Hanna are able to fully
3 See Ex. 1. District Attorney's September 13, 2021 Press Release, pg. 4, available at
https://www.traviscountytx.gov/images/district_attorney/docs/Press_Releases/2021/Case_Summ
aries_September_13.pdf.
4 Id.
5 See e.g. Id at pgs. 1-3 (listing and describing the 13 indictments of local first responders within
the past year).
Defendants Pineda and Hanna's Motion to Stay Discovery
Page 5
Case 1:21-cv-00443-RP Document 16 Filed 11/08/21 Page 6 of 18
defend themselves, their actions, and their reputations in both this suit and the parallel criminal
proceedings-without one defense being necessarily and fundamentally crippled by the other.
II.
ARGUMENTS & AUTHORITIES
A. Standard Applied to a Motion to Stay.
12.
"A district court has the inherent power to stay proceedings incidental to its power to
control the disposition of its docket. " This Court recently granted stays of discovery similar to
the one requested herein in Ambler, Drake, and Nembhard.7 Courts may utilize their power to
stay discovery "when the interests of justice seems to require such action. ",8 In Campbell, the
Fifth Circuit admonished district courts to "be sensitive to the difference in the rules of discovery
in civil and criminal cases. ,,9 "While the Federal Rules of Civil Procedure have provided a well-
stocked battery of discovery procedures, the rules governing criminal discovery are far more
restrictive."10 The Fifth Circuit further advised that "in ruling on requests for stays of the civil
side of parallel civil/criminal proceedings, [j]udicial discretion and procedural flexibility should
be utilized to harmonize the conflicting rules and policies applicable to one suit from doing
violence to those pertaining to the other."
6
Order, Drake V City of Austin, 1:20-cv-00956-RP (W.D. Tex. Sept. 21, 2021), Dkt. # 31, pg. 2
(citing Clinton V. Jones, 520 U.S. 681, 706 (1997); Landis V. N. Am. Co., 299 U.S. 248, 254-55
(1936); Wedgeworth V. Fibreboard Corp., 706 F.2d 541, 545 (5th Cir. 1983)).
7 See Order, Ambler V. Williamson County, 1:20-cv-01068-LY (W.D. Tex. July 27, 2021), Dkt. #
89; see also Order, Drake V City of Austin, 1:20-cv-00956-RP (W.D. Tex. Sept. 21, 2021), Dkt. #
31; see also Text Order, Nembhard V. Williamson County, 1:21-cv-00350-RP (W.D. Tex. Aug.
26, 2021).
8
United States V. Kordel, 397 U.S. 1, 12, n. 27 (1970).
9
Campbell V. Eastland, 307 F.2d 478, 487 (5th Cir. 1962).
10 Id.
11 Id.
Defendants Pineda and Hanna's Motion to Stay Discovery
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Case 1:21-cv-00443-RP Document 16 Filed 11/08/21 Page 7 of 18
13.
Courts have established several factors to be considered in determining whether a stay is
appropriate. 12 The current variation of these factors was first articulated in Plumbers &
Pipefitters, and has been adopted and applied by District Courts in the Fifth Circuit:13
(1) The extent to which the issues in the criminal case overlap with those presented in the
civil case;
(2)
The status of the criminal case, including whether the criminal defendant has been
indicted;
(3) The private interests of the plaintiff in proceeding expeditiously weighed against the
prejudice to plaintiff caused by the delay;
(4) The private interests of and burden on the defendant;
(5) The interests of the courts; and
(6) The public interest. 14
B. On balance, the factors weigh in favor of staying discovery to relieve Officers Pineda
and Hanna of the impossible choice between either harming their criminal defense
or harming their civil defense.
a. The "overlap" factor weighs in favor of a stay of discovery because the facts
and legal issues align to create a danger of self-incrimination.
14.
The first factor-the degree to which civil issues overlap with criminal issues-has been
deemed the most important factor. 15 The primacy and importance of the overlap factor is because
"[i]f there is no overlap, there would be no danger of self-incrimination and accordingly no need
12 See Walker V. Wilburn, No. 3:13-CV-4896-D, 2015 WL 5873392, at *5 (N.D. Tex. Oct. 5,
2015) (citing Heller Healthcare Fin., Inc. V. Boyes, 2002 WL 1558337, at *2 (N.D. Tex. July 15,
2020); see also Trs. of Plumbers & Pipefitters Nat'l Pension Fund V. Transworld Mech. Inc., 886
F.Supp. 1134, 1139 (S.D. NY. 1995) (establishing current variation of test); see also Golden
Quality Ice Cream Co., Inc. V. Deerfield Specialty Papers, Inc., 87 F.R.D. 53 (E.D. Pa. 1980)
(establishing initial test).
13
See Plumbers and Pipefitters, 886 F.Supp at 1139; see also Librado V. M.S. Carriers, Inc.,
CIV.A. 3:02-CV-2095D, 2002 WL 31495988, at *1 (N.D. Tex. Nov. 5, 2002); see also Alcala V.
Tex. Webb County, 625 F.Supp.2d 391, 398 - 99 (S.D. Tex. 2009); see also Walker, 2015 WL
5873392 at *5.
14 Walker, 2015 WL 5873392 at *5; see also Alcala, 625 F.Supp.2d at 399; see also Sec. & Exch.
Comm'n V. Kiselak Capital Grp., LLC, No. 4:09-CV-256-A, 2011 WL 4398443, at *2; see also
Agueros, 2008 WL 2937972, at *1.
15 See S.E.C. V. AmeriFirst Funding, Inc., CIV A 307-CV-1188-D, 2008 WL 866065, at *2 (N.D.
Tex. Mar. 17, 2008 (citing Volmar Distribs., Inc. V. New York Post Co., 152 F.R.D. 36, 39
(S.D.N.Y. 1993)).
Defendants Pineda and Hanna's Motion to Stay Discovery
Page 7
Case 1:21-cv-00443-RP Document 16 Filed 11/08/21 Page 8 of 18
for a stay." "16 A court should consider whether the defendant could effectively defend the civil
lawsuit without being pressured into waiving his Fifth Amendment rights if no stay is
entered.17 Some courts have decided that the overlap factor weighs in favor of a stay simply
because the subject matter of the two proceedings was substantially similar. 18 Courts have
weighed this factor in favor of a stay even when the overlap of the issues was not "entirely
coterminous." S
15.
The underlying legal subject matter of Officers Pineda and Hanna's criminal exposure
and this civil lawsuit is undoubtably substantially similar. The District Attorney explicitly
indicated that he will present Officers Pineda and Hanna to a grand jury "in early fall of 2021"
for the exact same alleged conduct Plaintiffs complain of in this lawsuit. 20 It is also readily
apparent that the officers cannot effectively defend this civil suit without being pressured into
waiving their Fifth Amendment rights. 21
16.
Assuming the grand jury will find cause to indict them, Officers Pineda and Hanna would
predictably be indicted for Aggravated Assault by a Public Servant in the First Degree. 22
16 AmeriFirst Funding, Inc., 2008 WL 866065, at *2 (citing Trs. of Plumbers & Pipefitters Nat'l
Pension Fund, 886 F.Supp. at 1139)).
17 See Alcala, 625 F.Supp.2d at 400.
18
See Sec & Exch. Comm'n V. Mutuals.com Inc., CIV. A.3:03-CV-2912-D, 2004 1629929, at *3
(N.D. Tex. July 20, 2004); see also Dominguez V. Hartford Fin. Svcs. Grp., Inc., 530 F.Supp.2d
902, 907 (S.D. Tex. 2008); see also Doe V. Morris, No.11-1532, 2012 WL 359315, at *1 (E.D.
La. Feb. 2, 2012).
19 Heller Healthcare Fin., Inc., 2002 WL 1558337, at *2.
20 Ex. 1, District Attorney's September 13, 2021 Press Release, pg. 4 (emphasis added).
21 See Alcala, 625 F.Supp. 2d at 400.
22 Because Quiroz later died after he was involuntarily injected with a sedative by a medical
professional at the scene, the officers could also arguably be indicted for Manslaughter,
Criminally Negligent Homicide, or even Murder in the First Degree, but such charges are less
likely due to the seemingly obvious intervening causes of death. See TEX. PENAL CODE § 19.02,
19.04, & 19.06; see also Hutcherson V. State, 373 S.W.3d 179, 186 (Tex. App. 2012) (holding
that the doctrine of "intervening cause" is built into standard Texas jury charges for the crimes of
Defendants Pineda and Hanna's Motion to Stay Discovery
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Case 1:21-cv-00443-RP Document 16 Filed 11/08/21 Page 9 of 18
Aggravated Assault by a Public Servant in the First Degree requires the State to prove Officers
Pineda and Hanna caused serious bodily injury to Quiroz while Pineda and Hanna were acting as
public servants under color of his office/employment.2 23 The Texas Penal Code allows for a
peace officer to use force against another person "when and to the degree the actor reasonably
believes the force is immediately necessary to make or assist in making an arrest or search."24
17.
Here, Plaintiffs' Excessive Force claim in this civil suit requires them to prove that
Quiroz: (1) suffered a physical injury; (2) which resulted directly and only from a use of force by
Defendants Pineda and Hanna while acting under color of State law that was clearly excessive to
the need; and (3) the excessiveness of the force employed was objectively unreasonable.25
18.
Demonstrably, these legal tests for the telegraphed criminal grand jury proceeding and
this civil lawsuit overlap significantly-in that both require an examination of the force allegedly
used by Officers Pineda and Hanna, and whether it was reasonable and necessary. This legal
overlap-arising from the exact same event and involving the exact same parties-reveals that
these issues are effectively "coterminous."2 This Court in Drake-an ongoing civil suit wherein
the grand jury presentation is likewise scheduled for the fall of 2021-held recently that "the
likely substantial overlap between the expected indictment against [the officer for using a less
lethal round against the plaintiff] and claims against him in the current suit favor a stay of
discovery against him. "27
Murder, Manslaughter, and Criminally Negligent Homicide, because a plausible intervening
cause would negate causation beyond a reasonable doubt.).
23 See TEX. PENAL CODE § 22.02(a)(1) and (b)(2)(A).
24 Tex. Penal Code Ann. § 9.51 (West) (emphasis added).
25
See Knight V. Caldwell, 970 F.2d 1430, 1432, n.3 (5th Cir. 1992); see also Johnson V. Morel,
876 F.2d 477 (5th Cir. 1989).
26 Heller Healthcare Fin., Inc., 2002 WL 1558337, at 2
27 Order, Drake V City of Austin, 1:20-cv-00956-RP (W.D. Tex. Sept. 21, 2021), Dkt. # 31, pg. 4
(staying discovery for ninety days).
Defendants Pineda and Hanna's Motion to Stay Discovery
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Case 1:21-cv-00443-RP Document 16 Filed 11/08/21 Page 10 of 18
19.
Permitting civil discovery before the criminal matters have been resolved would force
Officers Pineda and Hanna to choose between either (1) revealing their criminal defense
strategies and providing criminal impeachment testimony, or (2) asserting their Fifth
Amendment rights in civil discovery and thus being unable to fully defend themselves in this
lawsuit-precisely the situation this factor seeks to avoid. In the context of that impossible
decision, the first and most important overlap factor weighs heavily in favor of the stay of
discovery requested herein.
b. The "status of the criminal case" factor does not weigh against a stay enough
to merit denying them the chance to present a vigorous defense in both legal
actions.
20.
Officers Pineda and Hanna recognize that the "strongest case for a stay exists where a
party is indicted for a serious offense and must defend a civil action involving the same
matter." Whether the civil and criminal issues will overlap prior to an indictment is normally a
"matter of speculation." 29 In the aforementioned Drake case, Officers Pineda and Hanna
acknowledge and respect that this Court held that the lack of an indictment weighed against a
stay of discovery, but that on balance a stay of discovery was still warranted. 30 Apart from
Drake, this Court and others within the Fifth Circuit have held that this factor can be found to
weigh in favor of a stay of discovery where the status of the investigation renders the potential
indictment imminent. 31 The grand jury presentation of this matter is scheduled to take place in
28 Id. (emphasis added) (internal quotations removed); see also Lizarraga V. City of Nogales
Arizona, 2007 WL 215616, at *3 (D. Arizona, January 24, 2007).
29 Acala, 625 F. Supp. 2d at 401.
30 Order, Drake V City of Austin, 1:20-cv-00956-RP (W.D. Tex. Sept. 21, 2021), Dkt. # 31, pg. 5.
31 See Slack V. City of San Antonio, Texas, No. CV SA-18-CA-1117-FB, 2019 WL 11097069, at
* 1 (W.D. Tex. May 28, 2019) (granting a stay of discovery, and stating that the Court's
expectation of a "swift resolution" to the investigation merited a short stay of discovery.); see
also See Brown V. Kenner Police Dep't, Civil Action No. 17-3445, 2017 WL 5157563, at *1-2
(E.D. La. Nov. 7, 2017).
Defendants Pineda and Hanna's Motion to Stay Discovery
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Case 1:21-cv-00443-RP Document 16 Filed 11/08/21 Page 11 of 18
"early fall of 2021," and thus likewise constitutes an imminent determination of whether or not
the officers will be indicted. Thus, either the second factor weighs in favor of a stay because the
indictment determination is imminent as in Brown and Slack, or at the very least as in Drake, this
factor does not weigh heavily enough against a stay to merit denying Officers Pineda and Hanna
the right to present a vigorous legal defense in both cases.
c. The factor related to Plaintiffs' interests does not negate the need for a stay,
because mere delay alone is legally insufficient, and Plaintiffs' interests do
not outweigh the interests of Defendants when compared.
21.
Courts recognize that a "civil plaintiff has an interest in the prompt resolution of its
claims and in obtaining discovery while information is still fresh in witnesses' minds." 32
However, "[n]ormally in evaluating the plaintiff's burden resulting from the stay, courts may
insist that the plaintiff establish more prejudice than simply a delay in his right to expeditiously
pursue his claim."33 Courts recognize that this allegation of prejudice is typically insufficient-
even if the criminal case is "proceeding slowly and uncertainly, with no specific trial date,"
because "Texas law recognizes a right to a speedy trial." Moreover, the events of this lawsuit
were largely captured via video evidence, which does not have the corresponding threat of
degradation like that of a human witness's memory.
22.
The above notwithstanding, Officers Pineda and Hanna acknowledge and respect that this
Court in Drake found that the plaintiff had a heightened interest due to the fact that the defendant
officer had not yet been indicted, which is also true here.35 When weighed however, this Court
also found that the prejudice to the plaintiff was outweighed by the prejudice to the defendant
32 See Mutuals.com Inc., 2004 WL 1629929, at *3.
33 Walker, 2015 WL 5873392 at *7 (citing Alcala, 625 F.Supp.1 2d at 397).
34
Librado, 2002 WL 31495988, at *2; see also Walker, 2015 WL 5873392 at *7.
35 Order, Drake V City of Austin, 1:20-cv-00956-RP (W.D. Tex. Sept. 21, 2021), Dkt. # 31, pg. 5.
Defendants Pineda and Hanna's Motion to Stay Discovery
Page 11
Case 1:21-cv-00443-RP Document 16 Filed 11/08/21 Page 12 of 18
officer-the only party to the suit facing a potential prison sentence. 36 In Slack, in contrast, this
Court held that the short time the case had been on the docket and the lack of any showing of
"discovery or witnesses that would be lost during the stay" shifted the analysis to the extent that
the plaintiff's interests factor weighed in favor of granting a stay of discovery.37 The case at bar
has likewise only been pending for a short amount of time, and Plaintiffs will likewise be unable
to prove that any discovery opportunities will be irreparably lost if a stay is granted. Because
mere delay alone is insufficient as a legal argument for this factor, and because the potential
consequences of this motion for the respective parties are far more grievous for Officers Pineda
and Hanna, this factor either favors a stay of discovery, or at the very least does not weigh
heavily enough against a stay overall to merit denying Officers Pineda and Hanna the right to
present a vigorous legal defense in both cases. 38
d. The factor related to Defendants' interests weighs heavily in favor of a stay,
because the lack of a stay would unavoidably cripple either their criminal
defense or their civil defense.
23.
With all due respect to Plaintiffs' claims and the tragic medical emergency and resulting
death of Quiroz, the potential consequences tied to the results of this motion to stay are far more
grievous for Defendants Pineda and Hanna. The fourth factor considers the private interest of the
defendant in securing a stay, and the burden that would result if the stay were denied. 39 "[A]bsent
a stay, [the officer] faces a conflict between asserting his Fifth Amendment rights and fulfilling
his legal obligations as a witness in this civil action. This conflict may be largely, if not
36 Id. at 5-6.
37
See Slack V. City of San Antonio, Texas, 2019 WL 11097069, at *2.
38 See id.
39 Librado, 2002 WL 31495988, at *3; see also Walker, 2015 WL 5873392, at *8.
Defendants Pineda and Hanna's Motion to Stay Discovery
Page 12
Case 1:21-cv-00443-RP Document 16 Filed 11/08/21 Page 13 of 18
completely, eliminated by granting a stay. ,40 A defendant officer also has an interest in a stay "to
avoid exposing [his] criminal defense strategy to the prosecution."41
24.
The insidious civil-law threat looming over Officers Pineda and Hanna-should they
choose to invoke their Fifth Amendment Constitutional rights during depositions-is the
potential for harmful adverse inferences in this civil case. Legally, when a party invokes his or
her Fifth Amendment privilege during a deposition, the invocation of such privilege is
potentially admissible against the invoking party, specifically as an inference allowing a civil
jury to interpret such invocations adversely against the invoking party. 42
25.
Applied here in more direct terms, Plaintiffs would have the right to petition this Court to
instruct the jurors that they are allowed to interpret Officers Pineda and Hanna's decisions to
invoke their Constitutional rights to mean that their testimony-had they testified-would have
proven they used excessive force against Quiroz. Such an inference would inevitably be fatal for
their civil defense, and a corresponding liability verdict would inevitably affect their reputations,
their current employment as police officers, and their ability to find future employment in any
field.
26.
In contrast, the criminal-law insidious threat looming over Officers Pineda and Hanna-
should they choose not to invoke their Fifth Amendment Constitutional rights-is that written
discovery and depositions in this lawsuit will force Pineda and Hanna to potentially create a
record of evidence that the Travis County District Attorney's office may use for potential
impeachment evidence during their criminal trial. Officers Pineda and Hanna would be forced to
40 See Librado V. M.S. Carriers, Inc., No. CIV.A. 3:02-CV-2095D, 2002 WL 31495988, at *3
(N.D. Tex. Nov. 5, 2002).
41 Walker, 2015 WL 5873392, at *8.
42 See F.D.I.C. V. Fid. & Deposit Co. of Maryland, 45 F.3d 969, 977 (5th Cir. 1995) (reiterating
that courts have discretion as to whether to allow a party's Fifth Amendment invocation into
evidence, and permit an adverse inference to be drawn from the same).
Defendants Pineda and Hanna's Motion to Stay Discovery
Page 13
Case 1:21-cv-00443-RP Document 16 Filed 11/08/21 Page 14 of 18
each create a sworn, seven-hour record about their split-second decisions to use force against the
large, imposing Quiroz once the de facto wrestling match began. 43 Such impeachment evidence
would otherwise never be obtainable to use against almost any other criminal defendant.
27.
Absent a stay, Officers Pineda and Hanna would thus effectively be forced to choose
between (1) the civil jury holding their decision not to testify against them; or (2) providing
information and potential impeachment fodder to the Travis County District Attorney, who
would otherwise not be entitled obtain any sworn testimony from Officers Pineda or Hanna prior
to any criminal trial. Other than the granting of this stay, there is no third alternative option
that would allow Officers Pineda and Hanna to avoid suffering prejudice in one case or the
other.
28.
Like in Librado and in Walker, Officers Pineda and Hanna's dilemma of being forced to
pick between the two testimonial poisons will be "largely, if not completely, eliminated by
granting a stay of appropriate scope." This Court in Drake agreed, holding that the officer
defendant's interests outweighed any prejudice the plaintiff may have faced based on the
outcome of the motion to stay. 45 The fourth factor relating to the defendant's interests
consequently weighs heavily in favor of granting the requested stay of discovery.
e. The factor related to the Courts' interests weighs in favor of a stay, because
the criminal case's results could have legal effects on the burden of proof in
this suit, and could also increase the likelihood of settlement.
43 See TEX. PENAL CODE § 22.02(a)(1) and (b)(2)(A); see also Graham V. Connor, 490 U.S. 386,
396-97, 109 S. Ct. 1865, 1872, 104 L. Ed. 2d 443 (1989) ("The calculus of reasonableness must
embody allowance for the fact that police officers are often forced to make split-second
judgments-in circumstances that are tense, uncertain, and rapidly evolving-about the
amount of force that is necessary in a particular situation.") (emphasis added).
44 Librado, 2002 WL 31494988, at *3; see also Walker, 2015 WL 5873392 at *8.
45
Order, Drake V City of Austin, 1:20-cv-00956-RP (W.D. Tex. Sept. 21, 2021), Dkt. # 31, pgs.
5-6.
Defendants Pineda and Hanna's Motion to Stay Discovery
Page 14
Case 1:21-cv-00443-RP Document 16 Filed 11/08/21 Page 15 of 18
29.
The fifth factor takes this Court's own interests into account, including judicial
efficiency. 46 While progressing civil cases on a docket is no doubt important, courts have
recognized that "granting a stay of discovery serves the interests of the courts, because
conducting the criminal proceedings first advances judicial economy."47 To advance judicial
economy here, the Court should analyze whether-and to what extent-the outcome of the
parallel criminal proceedings would "streamline" the issues in this lawsuit. 48 The judicial
efficiency analysis also turns upon the degree of overlap between the criminal and civil cases,
with an eye toward whether a conviction in the criminal case would "speak to the actual bases of
liability" in the latter civil action. 49
30.
Due to differences in the standards of proof between civil and criminal persecutions, "the
possibility always exists for a collateral estoppel or res judicata effect on some or all of the
overlapping issues." 50 Resolution of the criminal case consequently may also increase the
likelihood of reaching a settlement that resolves the civil lawsuit outright. 51 All of the possible
efficiencies discussed supra are palpable in the case at bar.
31.
Officers Pineda and Hanna acknowledge and respect that this Court found in Drake that
the factor regarding the Court's interest favored neither party. 52 In Slack, this Court had earlier
held that this factor "supports a stay" even pre-indictment, because the case had only been
46 Offill, 2008 WL 958072, at *3
47 Id.; see also Walker, 2015 WL 5873392 at *8.
48
See Alcala, 625 F.Supp.2 2d at 406.
49
Id.
50
Offill, 2008 WL 958072, at *3; see also Emich Motors Corp. V. Gen. Motors Corp., 340 U.S.
558, 568 (1951).
51 See Offill, 2008 WL 958072 at *3; see also Alcala, 625 F.Supp.2d at 406 (noting a potential
criminal conviction against the civil defendant might significantly decide that gambling
occurred, the wrongful conduct in dispute in the overlapping civil case, and therefore promote
settlement of the civil litigation).
52 Order, Drake V City of Austin, 1:20-cv-00956-RP (W.D. Tex. Sept. 21, 2021), Dkt. # 31, pg. 6.
Defendants Pineda and Hanna's Motion to Stay Discovery
Page 15
Case 1:21-cv-00443-RP Document 16 Filed 11/08/21 Page 16 of 18
pending on the Court's docket for seven months, and thus a temporary stay of discovery would
"not 'unduly interfere with the management of its docket." 53 The fifth factor of judicial
efficiency consequently should be viewed in this case as either neutral or weighing in favor of
granting Officers Pineda and Hanna's requested stay.
f. The factor related to the public's interests weighs in favor of a stay, because
the public has an interest in preserving citizens' abilities to invoke their
Constitutional rights.
32.
The public has an interest in the just and Constitutional resolution of disputes with
minimal delay. 54 However, that resolution must be weighed against the possibility that the
"integrity" of a citizen's Constitutional rights rights might be in jeopardy. 55 The Fifth Circuit has
also recognized that the public has an interest in protecting law enforcement, and "ensuring the
criminal discovery process is not subverted."56
33.
Considering these principles, the public's interests also weigh in favor of granting Deputy
Pineda and Hanna's requested stay. Staying civil discovery will protect the integrity of Pineda
and Hanna's criminal process by refraining from jeopardizing their Constitutional rights pursuant
to the Fifth Amendment. The public has a vested interest in maintaining the integrity of a
citizen's choice to invoke the Fifth Amendment-and also in being shielded from the
unavoidable tainting of that Constitutional right discussed supra. 57
53 See Slack V. City of San Antonio, Texas, 2019 WL 11097069, at *1 (citing Bean V. Alcorta, 220
F. Supp. 3d 772, 777 (W.D. Tex. 2016)).
54 See Collins, 2011 WL 3874910, at *4; see also Librado, 2002 WL 31495988, at *3; see also
Frierson V. City of Terrell, CIV.A.3:02CV2340-H, 2003 WL 21355969, at *4 (N.D. Tex. June 6,
2003).
55 Frierson, 2003 WL 21355969, at *4.
56 Offill, 2008 WL 958072, at *4 (citing Campbell, 307 F.2d at 487).
57 See Campbell, 307 F.2d at 487.
Defendants Pineda and Hanna's Motion to Stay Discovery
Page 16
Case 1:21-cv-00443-RP Document 16 Filed 11/08/21 Page 17 of 18
34.
Officers Pineda and Hanna acknowledge and respect that this Court found in Drake that
the factor regarding the public's interest favored neither party. 58 In Slack, this Court previously
held that the public interest factor weighed in favor of granting a stay because "a review and
criminal investigation of the incident has begun."59 The investigation in this case is likewise
underway to the extent that a grand jury presentation of the findings of such investigation is
scheduled to take place any day now-the fall of 2021. The public's interests in preserving the
ability of all citizens to invoke their Constitutional rights-and otherwise be afforded fair trials
in both civil and criminal actions-thus should likewise be viewed as either neutral, or weighing
in favor of granting Deputy Pineda and Hanna's requested stay.
III.
PRAYER
35.
WHEREFORE, PREMISES CONSIDERED, Defendants Pineda and Hanna respectfully
request that this Court grant their motion to stay civil discovery, and for all other relief to which
Defendants Pineda and Hanna may justly be entitled in law or equity.
Respectfully submitted,
WRIGHT & GREENHILL, P.C.
900 Congress Avenue, Suite 500
Austin, Texas 78701
512/476-4600
512/476-5382 - Fax
By:
/s/ Blair J. Leake
Archie Carl Pierce
State Bar No. 15991500
cpierce@w-g.com
Blair J. Leake
State Bar No. 24081630
bleake@w-g.com
Stephen B. Barron
State Bar No. 24109619
58 Order, Drake V City of Austin, 1:20-cv-00956-RP (W.D. Tex. Sept. 21, 2021), Dkt. # 31, pg. 6.
59
See Slack, 2019 WL 11097069, at *4.
Defendants Pineda and Hanna's Motion to Stay Discovery
Page 17
Case 1:21-cv-00443-RP Document 16 Filed 11/08/21 Page 18 of 18
sbarron@w-g.com
ATTORNEYS FOR DEFENDANT
EDUARDO PINEDA AND SPENCER
HANNA
CERTIFICATE OF CONFERENCE
Counsel for Defendants Pineda and Hanna has complied with the Court's requirement to
confer. Defense counsel conferred with all counsel of record. Plaintiff's counsel is opposed to
this motion. Defendant City of Austin is not opposed to this motion.
/s/ Blair J. Leake
Blair J. Leake
CERTIFICATE OF SERVICE
I hereby certify that on the 5th day of November, 2021, a true and correct copy of the
above and foregoing Motion was electronically filed with the Clerk of the Court using the
CM/ECF system, which will automatically serve a Notice of Electronic Filing on the following
counsel of record:
Bobby R. Taylor
1709 E. Martin L. King, Jr. Blvd.
Austin, Texas 78702
bobby@taylor-law.com
Monte L. Barton, Jr.
City of Austin - Law Department
P.O. Box 1546
Austin, Texas 78767-1546
monte.barton@austintexas.gov
/s/ Blair J. Leake
Blair J. Leake
Defendants Pineda and Hanna's Motion to Stay Discovery
Page 18
Case 1:21-cv-00443-RP Document 17 Filed 11/22/21 Page 1 of 5
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
ENRIQUE QUIROZ, Deceased,
§
through JOSEPHINE SALAZAR
§
Individually, and as NEXT FRIEND
§
OF J.R.S, E.F Q, AND E.Q. Minors;
§
MERCEDES QUIROZ, JASMINE
§
QUIROZ, ANDREW RAMIREZ AND
§
CHRISTINA ESPINOZA as
§
NEXT FRIEND OF H.E., A MINOR,
§
Plaintiffs
§
CAUSE NO. 1:21-CV-00443-RP
§
VS.
§
§
OFFICERS EDUARDO PINEDA,
§
SPENCER HANNA and CITY of
§
AUSTIN, TEXAS
§
Defendants,
§
PLAINTIFF'S RESPONSE TO
DEFENDANTS PINEDA AND HANNA'S MOTION STAY DISCOVERY
TO THE HONORABLE JUDGE:
COMES NOW, Plaintiff and files this Response to Defendant Pineda and Hanna's Motion
To Stay Discovery state that Plaintiff Disagrees with said Motion and shows as follows:
I.
STATUS OF CASE
1.
Plaintiff, Enrique Quiroz, died and/or was killed on March 31, 2020, at a time when he was
in the custody and care of Defendants Eduardo Pineda, Spencer Hanna, other City of Austin police
officers and medical staff with EMS. Plaintiff's family was outside the apartment where Defendants
tased Quiroz and are not aware of the circumstances which caused the death of Plaintiff. The
Original Complaint and Jury Demand was filed on May 19, 2021, more than thirteen months after
the death of Plaintiff. Defendants Eduardo Pineda, Spencer Hanna and the City of Austin were
named in this lawsuit and have all appeared.
Page 1 of 5
Case 1:21-cv-00443-RP Document 17 Filed 11/22/21 Page 2 of 5
2.
Plaintiffs have continuously sought relevant videos, offense reports, autopsy reports and
other documents which relate to and explain the events that led to the death of Enrique Quiroz, but
has been denied any and all information about events immediately prior to Mr. Quiroz being
determined to be deceased. Plaintiff's counsel has sought a copy the Medical Examiner's Report
and Autopsy and have been denied. Counsel has sought an opportunity to view the officers' videos
of the events which occurred at the time of Quiroz's death and have been denied other than viewing
one brief video which was modified and limited in what was shown. Plaintiff's counsel has
communicated directly with the Medical Examiner's office and have been advised that the District
Attorney has refused to allow them to produce relevant medical information about Mr. Quiroz's
causes of death. Counsel has communicated with an individual prosecutor in the District Attorney's
Civil Rights Office for more than a year and continuously been denied access to any details which
explains why Mr. Quiroz is deceased. Counsel has communicated with attorneys in the City
Attorney's office and been continuously denied all evidence except the one opportunity to view a
short modified video with family members.
3.
Plaintiffs filed this lawsuit knowing additional individuals might need to be identified and
additional parties might be responsible for events which caused the death of Mr. Quiroz and time
was becoming a factor. Since the filing of this lawsuit, Counsel has sought information about what
the medical examiner's autopsy and video evidence would produce to assist in identifying all legally
liable parties but have been denied any information. Plaintiff's counsel has attempted to have a Rule
26(f) conference, but other counsels would not agree to any earlier dates even though Plaintiff's
counsel was always ready and able to agree to abiding by this Court's Protective Order. No
assistance in making any discovery available to Plaintiff's counsel have been provided. Defendants'
counsels have all been approached by Plaintiff's counsel for purposes of getting assistance with
understanding the medical considerations which affect this case, but has received no information
which provided much needed incident details.
4.
Plaintiff has consented to the Agreed Protective Order and has sent Plaintiff's Request for
Production to the City of Austin. Plaintiff have Interrogatories ready to present to the individual
officers, but needs immediate access to the discovery being held by all Defendants to determine what
additional individuals might be legal parties to this lawsuit and any additional causes of action.
Page 2 of 5
Case 1:21-cv-00443-RP Document 17 Filed 11/22/21 Page 3 of 5
5,
Defendants's Motion states "an EMS medical professional administered an involuntary
injection of what is believed to have been a benzodiazepine or other sedative drug" in paragraph 7
of their Motion. This information is critical information which everyone continues to refuse to detail
to Plaintiff. Defendants Pineda and Hanna also admit tasing Plaintiff in their pleadings.
II.
ARGUMENTS
6.
The Statute of Limitation occurs on March 31, 2022 and Plaintiff has taken every action
reasonably possible to get critical details about what occurred to Enrique Quiroz. Defendants have
critical information, videos, medical examiner's reports and other evidence which Plaintiff must
have to prosecute this case. Plaintiff asks that this Court deny any requests to Stay any Discovery
and allow Plaintiff to receive all relevant discovery, either by agreements of counsels, or by
discovery proceedings.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Plaintiff request this Court deny Defendant's
Motion To Stay Discovery in its entirety. Plaintiffs also seek any further relief to which they are
entitled.
Respectfully submitted,
THE LAW OFFICE OF BOBBY R. TAYLOR
1709 E. Martin Luther King Jr., Blvd
Austin, Texas 78702
512-476-4886
512-476-2818(fax)
By:/s/Bobby Taylor
Bobby R. Taylor
State Bar No. 19685500
ATTORNEY FOR PLAINTIFFS
Page 3 of 5
Case 1:21-cv-00443-RP Document 17 Filed 11/22/21 Page 4 of 5
CERTIFICATE OF SERVICE
I hereby certify that on November 22, 2021, a true and correct copy of the foregoing
document was served on all counsel of record by filing with the Court's CM/ECF system,
as well as by sending a copy to lead counsel by email.
/s/BobbyTaylor
Bobby Taylor
Via Electronic Filing:
Blair J. Leake
bleake@w-g.com
Anne L. Morgan, City Attorney
Stephen B. Barron sbarron@w-g.com
Meghan L. Riley, Litigation Div. Chief
Archie Carl Pierce cpierce@w-g.com
Monte L. Barton, Jr.
WRIGHT & GREENHILL, P.C.
monte.barton@austintexas.gov
900 Congress Avenue, Ste. 500
P.O. Box 1546
Austin, Texas 78701
Austin, Texas 78767
Attorneys for Defendants Pineda & Hanna
Attorneys for Defendant, City of Austin
Page 4 of 5
Case 1:21-cv-00443-RP Document 17 Filed 11/22/21 Page 5 of 5
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
ENRIQUE QUIROZ, Deceased,
§
through JOSEPHINE SALAZAR
§
Individually, and as NEXT FRIEND
§
OF J.R.S, E.F Q, AND E.Q. Minors;
§
MERCEDES QUIROZ, JASMINE
§
QUIROZ, ANDREW RAMIREZ AND
§
CHRISTINA ESPINOZA as
§
NEXT FRIEND OF H.E., A MINOR,
§
Plaintiffs
§
CAUSE NO. 1:21-CV-00443-RP
§
VS.
§
§
OFFICERS EDUARDO PINEDA,
§
SPENCER HANNA and CITY of
§
AUSTIN, TEXAS
§
Defendants,
§
ORDER
WHEREAS, COMES Plaintiffs' Response to Defendant's Motion to Stay Discovery and
after considering the motion, response and record in this case and after consideration of all matters,
Plaintiffs' Response to Defendants' Motion to Dismiss is GRANTED and Defendants' Motion to
Stay Discovery is DENIED.
SIGNED this the
day of
.
UNITED STATES DISTRICT JUDGE
Page 5 of 5
Case 1:21-cv-00443-RP Document 26 Filed 01/10/22 Page 1 of 5
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
ENRIQUE QUIROZ, Deceased,
§
through JOSEPHINE SALAZAR
§
Individually, and as NEXT FRIEND
§
OF J.R.S., E.F.Q., and E.Q., Minors;
§
MERCEDES QUIROZ, JASMINE
§
QUIROZ, ANDREW RAMIREZ and
§
CHRISTINA ESPINOZA as
§
NEXT FRIEND OF H.E., a Minor,
§
Plaintiffs,
§
§
V.
§
No. 1:21-cv-00443-RP
§
OFFICERS EDUARDO PINEDA,
§
SPENCER HANNA and
§
CITY OF AUSTIN, TEXAS,
§
Defendants.
§
JOINT NOTICE REGARDING MEET & CONFER COURT DIRECTIVE
REGARDING PENDING MOTION TO STAY DISCOVERY
TO THE HONORABLE UNITED STATES DISTRICT JUDGE:
Defendants Officer Eduardo Pineda and Officer Spencer Hanna and the City of Austin and
Plaintiffs Josephine Salazar, Mercedes Quiroz, Jasmine Quiroz, Andrew Ramirez and Christina
Espinoza (collectively, the "Parties"), by and through their respective counsel, file this Joint Notice
Regarding Meet & Confer Court Directive Regarding Pending Motion to Stay Discovery, and
would respectfully show the Court as follows:
I.
The parties have reached a potential compromise agreement.
Pursuant to this Court's order1, the parties have engaged in a diligent meet and confer
process that has involved numerous telephone conferences and emails in a good faith effort to
1
See Order Setting Hearing, Dkt. # 24.
Case 1:21-cv-00443-RP Document 26 Filed 01/10/22 Page 2 of 5
reach a compromise to forestall the need for this Court to formally adjudicate the pending motion
to stay discovery.2 As a result of those efforts, the parties have reached a potential compromise
agreement that could result in the mooting of any need to stay discovery.
The parties would need this Court's assistance and approval in order to effectuate the
proposed agreement, because it entails moving various deadlines and settings. The
parties
consequently believe that discussing this proposed agreement during Wednesday's hearing will
provide the parties and this Court the chance to make a good faith effort to put the proposed
agreement into effect.
II.
The proposed agreement would stay all discovery for 60 days to potentially moot
the need for a stay of discovery.
The terms of the parties' proposed compromise agreement are as follows.
i.
Pending Motion Deferral - The pending motion to stay discovery will be deferred,
but not waived. Nothing in this Agreement shall preclude any defendant from
moving for a stay of discovery at a later date.
ii.
60-Day Stay - All discovery in this case shall be stayed for a period of sixty days.
The purpose of the proposed 60-day stay would be that the need for a motion to
stay discovery would be rendered moot in the event that the Travis County grand
jury delivers a "No Bill" during the next 60 days. Such an eventuality would also
theoretically unburden the parties of the need to litigate with third parties to obtain
the medical examiner's findings regarding the decedent's toxicology results and
causes of death, because "the District Attorney has refused to allow [the Medical
2
See Defs.' Pineda and Hanna's Mot. to Stay Disc., Dkt. # 16.
Joint Notice of Meet & Confer Regarding Pending Motion to Stay Discovery
Page 2
Case 1:21-cv-00443-RP Document 26 Filed 01/10/22 Page 3 of 5
Examiner's office] to produce relevant medical information about Mr. Quiroz's
causes of death."
iii.
New Trial Date and Deadlines - The parties agree that a new trial date and
scheduling order deadlines will need to be agreed to as part of this agreement. The
parties agree to work in good faith with each other and this Court to agree upon
mutually agreeable new deadlines and a new trial setting.
PRAYER FOR RELIEF
WHEREFORE PREMISES CONSIDERED, after a hearing or other conference between
the Court and the parties, the parties request that this Court stay discovery as requested herein,
enter a new scheduling order and trial setting, and for all other relief to which the parties may be
justly entitled.
Respectfully submitted,
WRIGHT & GREENHILL, P.C.
900 Congress Avenue, Suite 500
Austin, Texas 78701
512-476-4600
512-476-5382 - Fax
By:
/s/ Blair J. Leake
Blair J. Leake
State Bar No. 24081630
bleake@w-g.com
Stephen B. Barron
State Bar No. 24109619
sbarron@w-g.com
Archie Carl Pierce
State Bar No. 15991500
cpierce@w-g.com
ATTORNEYS FOR DEFENDANTS
EDUARDO PINEDA AND
SPENCER HANNA
3
Pls.' Unopposed Mot. to Amend Scheduling Order to Suppl. or Join Parties, Dkt. # 25, pg. 2.
Joint Notice of Meet & Confer Regarding Pending Motion to Stay Discovery
Page 3
Case 1:21-cv-00443-RP Document 26 Filed 01/10/22 Page 4 of 5
- AND -
The Law Office of Bobby R. Taylor
1709 E. Martin Luther King Jr Blvd
Austin, Texas 78702
(512) 476-4886
(512) 476-2818 - Fax
By:
/s/ Bobby R. Taylor
Bobby R. Taylor
State Bar No. 19685500
bobby@taylor-law.com
ATTORNEYS FOR PLAINTIFFS
- AND -
ANNE L. MORGAN, CITY ATTORNEY
MEGHAN L. RILEY, LITIGATION
DIVISION CHIEF
By:
/s/ Monte L. Barton, Jr.
Monte L. Barton, Jr.
State Bar No. 24115616
monte.barton@austintexas.gov
City of Austin
P.O. Box 1546
Austin, Texas 78767-1546
(512) 974-2409
(512) 974-1311 - Fax
ATTORNEYS FOR DEFENDANT
CITY OF AUSTIN
Joint Notice of Meet & Confer Regarding Pending Motion to Stay Discovery
Page 4
Case 1:21-cv-00443-RP Document 26 Filed 01/10/22 Page 5 of 5
CERTIFICATE OF SERVICE
I hereby certify that on the 10th day of January, 2022, a true and correct copy of the
foregoing document was electronically filed with the Clerk of the Court using the CM/ECF system,
which will automatically serve a Notice of Electronic Filing on the following attorneys of record:
Bobby R. Taylor
1709 E. Martin Luther King Jr Blvd
Austin, Texas 78702
bobby@taylor-law.com
Monte L. Barton, Jr.
City of Austin - Law Department
P.O. Box 1546
Austin, Texas 78767-1546
monte.barton@austintexas.gov
/s/ Blair J. Leake
Blair J. Leake
Joint Notice of Meet & Confer Regarding Pending Motion to Stay Discovery
Page 5
Case 1:21-cv-00443-RP Document 28 Filed 01/12/22 Page 1 of 2
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
ENRIQUE QUIROZ, Deceased, through
§
JOSEPHINE SALAZAR Individually,
§
and as NEXT FRIEND OF J.R.S., E.F.Q.,
§
and E.Q., Minors; MERCEDES QUIROZ,
§
JASMINE QUIROZ, ANDREW
§
A-21-CV-443-RP
RAMIREZ and CHRISTINA ESPINOZA
§
as NEXT FRIEND OF H.E., a Minor,
§
Plaintiffs,
§
V.
§
§
OFFICERS EDUARDO PINEDA,
§
SPENCER HANNA and CITY OF
§
AUSTIN, TEXAS,
§
Defendants.
§
ORDER
Before the court is Defendants Eduardo Pineda and Spencer Hanna's Motion to Stay
Discovery (Dkt. #16) ("the Motion"), Plaintiff's Response to Defendants Pineda and Hanna's
Motion to Stay Discovery (Dkt.#17), and Defendants Eduardo Pineda and Spencer Hanna's Reply
in Support of Motion to Stay Discovery (Dkt. #19). 1 In compliance with this court's order setting
this matter for a hearing, the parties met and conferred in an effort to resolve the issues raised by
the Motion. Dkt. #24. In the wake of those discussions, the parties filed a Joint Notice Regarding
Meet & Confer Court Directive Regarding Pending Motion to Stay Discovery ("Joint Notice").
Dkt. #26.
1 On November 30, 2021, the Motion was referred by United States District Judge Robert Pitman, via text order, to
the undersigned for resolution pursuant to 28 U.S.C. § 636(b)(1)(A), Rule 72 of the Federal Rules of Civil Procedure,
and Rule 1(c) of Appendix C of the Local Rules of the United States District Court for the Western District of Texas.
1
Case 1:21-cv-00443-RP Document 28 Filed 01/12/22 Page 2 of 2
On January 12, 2022, a hearing was held via Zoom on the Motion and the Joint Notice.
After reviewing the pleadings, the relevant case law, and the entire case file, the court GRANTS
the Motion for the reasons stated in the Joint Notice.
For the reasons stated at the hearing and in compliance with the agreement reached by the
parties, IT IS ORDERED that Defendants Eduardo Pineda and Spencer Hanna's Motion to Stay
Discovery (Dkt. #16) is GRANTED.
IT IS FURTHER ORDERED that, consistent with the agreement reached by the parties,
discovery is STAYED for a period of 60 (sixty) days from the date this Order is entered.
2
IT IS FURTHER ORDERED that, in light of the mutually agreeable 60-day stay, the
parties submit a proposed revised scheduling order to the District Judge for his consideration
within 14 days.
SIGNED on January 12, 2022.
MARK LANE
UNITED STATESMAGISTRATE JUDGE
MY
2 This Order applies to all parties, including the City, as the second page of the Joint Notice refers to "all discovery"
and the City signed the Joint Notice. However, as stated at the hearing, this Order does not preclude Plaintiffs moving
the court for relief regarding discovery they need to identify additional defendants.
2
Case 1:21-cv-00443-RP Document 31 Filed 03/25/22 Page 1 of 4
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
ENRIQUE QUIROZ, Deceased,
through JOSEPHINE SALAZAR
Individually, and as NEXT FRIEND
OF J.R.S, E.F Q, AND E.Q. Minors;
MERCEDES QUIROZ, JASMINE
QUIROZ, ANDREW RAMIREZ AND
CHRISTINA ESPINOZA as
NEXT FRIEND OF H.E., A MINOR,
Plaintiffs
CAUSE NO. 1:21-CV-00443-RP
VS.
OFFICERS EDUARDO PINEDA,
SPENCER HANNA and CITY of
AUSTIN, TEXAS
Defendants,
PLAINTIFFS' MOTION FOR LEAVE
TO FILE PLAINTIFF'S SECOND AMENDED COMPLAINT
To The Honorable Judge of this Court:
NOW COMES Josephine Salazar, Plaintiffherein, and files this Motion seeking consent and
leave to file Plaintiff's Second Amended Complaint and shows the Court as follows:
1. The Statute of Limitations expires on March 31, 2022 in this incident as Plaintiff Enrique
Quiroz was in the custody of Austin Police Department and its officers when he died on March 31,
2020. Any and all claims that could exist will expire if all claims and parties are not named and
included before March 31, 2022.
2. Plaintiffs were completely denied all access to information relating to the incidents that
lead up to and caused the death of Enrique Quiroz. Plaintiff had continuously attempted to receive
the offense reports and medical examiner reports but has been refused any and all such documents
even though timely requests have made to the proper parties.
3. In December 2021, Plaintiffs were provided a copy of the Austin Police Department
offense reports relating to what occurred at the time when officers arrested and assaulted Enrique
Plaintiff s' Motion for Leave to File Plaintiffs' Second Amended Complaint
Page 1 of 4
Case 1:21-cv-00443-RP Document 31 Filed 03/25/22 Page 2 of 4
Quiroz. Plaintiffs also received the Medical Examiner's report which detailed the causes of death
and all matters which are relevant to this incident. The medical report and records clearly
documented the status of injuries suffered by Enrique Quiroz, described the death as a Homicide and
listed the causes of death to include "the restraint procedures used" by APD officers. Additionally,
the medical records and offense reports identified medications which were injected into Mr. Quiroz
as he was in police custody.
4. Austin Police Officers who were involved with the arrest, physical beating of and
Homicide of Enrique Quiroz are currently awaiting the Grand Jury's investigation into their actions.
Because of such, all parties to this lawsuit have agreed to delay any and all discovery pending
further Orders of this Court and actions of the Grand Jury. Because of such, Plaintiffs' counsel has
been denied any opportunity to depose any of the officers and others involved and has been delayed
in seeking needed discovery to prepare this case for disposition.
5. Plaintiff seeks to file Plaintiff's Second Amended Complaint to give actual notice to all
other individuals who Plaintiffs believe could have liability relating to the in custody death of
Quiroz based upon the offense report and medical records. Plaintiff is adding two additional Austin
Police Officers who had hands on contact with Quiroz and the EMS technician who injection
medicines into the body of Quiroz as he lay handcuffed in the custody of APD.
6. The First Amended Scheduling Order allows all motions to amend or supplement
pleadings or to join additional parties to be filed before May 13, 2022, which is a time outside the
Statute of Limitations.
PRAYER
Wherefore, Premises Considered, Plaintiffs seek consent and permission to file Plaintiff's
Second Amended Complaint to comply with Statute of Limitations and Federal Rules of Civil
Procedures.
Plaintiff s' Motion for Leave to File Plaintiffs' Second Amended Complaint
Page 2 of 4
Case 1:21-cv-00443-RP Document 31 Filed 03/25/22 Page 3 of 4
Respectfully submitted,
By:/s/BobbyTaylor
Bobby R. Taylor
Texas Bar No. 19685500
1709 E. Martin L. King, Jr. Blvd.
Austin, Texas 78702
Tel. (512)476-4886
Fax. (512)476-2818
Attorney for Plaintiffs
CERTIFICATE OF SERVICE
I certify that on March 25th, 2022 a true and correct copy of Plaintiffs' Motion For Leave to
File Plaintiffs' Second Amended Complaint was send along with a copy of the Second Amended
Complaint to all attorneys currently involved in this lawsuit.
/s/BobbyTaylor
Bobby R. Taylor
Plaintiff s' Motion for Leave to File Plaintiffs' Second Amended Complaint
Page 3 of 4
Case 1:21-cv-00443-RP Document 31 Filed 03/25/22 Page 4 of 4
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
ENRIQUE QUIROZ, Deceased,
through JOSEPHINE SALAZAR
Individually, and as NEXT FRIEND
OF J.R.S, E.F Q, AND E.Q. Minors;
MERCEDES QUIROZ, JASMINE
QUIROZ, ANDREW RAMIREZ AND
CHRISTINA ESPINOZA as
NEXT FRIEND OF H.E., A MINOR,
Plaintiffs
CAUSE NO. 1:21-CV-00443-RP
VS.
OFFICERS EDUARDO PINEDA,
SPENCER HANNA and CITY of
AUSTIN, TEXAS
Defendants,
ORDER ON PLAINTIFFS' MOTION FOR LEAVE
TO FILE PLAINTIFF'S SECOND AMENDED COMPLAINT
WHEREAS, COMES Plaintiffs' Motion for Leave to File Plaintiff's Second Amended
Complaint and after considering the motion, response and record in this case and after consideration
of all matters, Plaintiffs' Motion is GRANTED.
SIGNED this the
day of
.
UNITED STATES DISTRICT JUDGE
Plaintiff s' Motion for Leave to File Plaintiffs' Second Amended Complaint
Page 4 of 4
Case 1:21-cv-00443-RP Document 31-1 Filed 03/25/22 Page 1 of 9
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
ENRIQUE QUIROZ, Deceased,
§
through JOSEPHINE SALAZAR
§
Individually, and as NEXT FRIEND
§
OF J.R.S, E.F Q, AND E.Q. Minors;
§
MERCEDES QUIROZ, JASMINE
§
QUIROZ, ANDREW RAMIREZ AND
§
CHRISTINA ESPINOZA as
§
NEXT FRIEND OF H.E., A MINOR,
§
Plaintiffs
§
CAUSE NO. 1:21-CV-00443-RP
§
VS.
§
§
OFFICERS EDUARDO PINEDA,
§
SPENCER HANNA, ZANE
DOWDELL, LUCAS PARKER
WILLIAM LEGGIO and CITY of
§
AUSTIN, TEXAS
§
Defendants,
§
PLAINTIFFS' SECOND AMENDED COMPLAINT
AND JURY DEMAND
TO THE HONORABLE JUDGE OF SAID COURT:
NOW COMES ENRIQUE QUIROZ, Deceased, through his heirs at law and files this
Second Amended Complaint based on Defendants' actions. Plaintiff sues Austin Police Department
Officers Eduardo Pineda, Spencer Hanna, Zane Dowdell, Lucas Parker and EMS Officer William
Leggio based upon their individual uses of force and improper medical attention which includes the
tasing, striking, punching, kicking and pounding on Plaintiff's head and body using their fists,
tazers, knees, elbow strikes and other manners of physical and mental abuse. Plaintiff also alleges
APD Defendants used restraint procedures which contributed to and caused Plaintiff's death. EMS
Officer Leggio administered drugs into Plaintiff's body in a means and method which was unsafe
and didn't consider the status of Plaintiff's body and the effects of drugs being administered.
Case 1:21-cv-00443-RP Document 31-1 Filed 03/25/22 Page 2 of 9
Plaintiffs complain about the City of Austin's failures to provide adequate policies, practices,
training and procedures in violation of the U.S. Constitution.
PARTIES AND SERVICE
1.
Plaintiff Enrique Quiroz and his heirs all resided in Austin, Travis County, Texas
at the time of this incident. This incidents and actions of named Defendants described herein were
the sole causes of Plaintiff's death. He was not threatening or assaulting any individuals or police
officers and Hanna and Pineda described his resistence as "passive". Plaintiff did not physically
assault or strike any officer and was not causing any officers to fear for their life or safety. During
all relevant times, Defendant City of Austin had numerous additional officers immediately available.
Plaintiff was handcuffed with one set of handcuffs with his hands and arms behind his back on the
floor and stairs. He was eventually hobbled SO that any moving and breathing were extremely
difficult. Plaintiff was not resisting as he laid handcuffed on the stairs. Plaintiff had taken no
actions which justified the tasing and assaultive abuses caused to him prior to being handcuffed.
Plaintiff's injuries caused by these Officer Defendants included their tasing and striking Enrique
Quiroz about the face and body before placing him in handcuffs. He was continuously handcuffed
with his hands and arms behind his back while laying on his stomach, face down for an extended
period of time. He was continuously restrained without consideration of his body side, weight and
position during his being handcuffed and hobbled. Defendants caused numerous facial and head
bruises, mental, emotional, physical bodily injuries and death EMS employee Leggio administered
medications which included Versed, Narcan and Epinephrine without verifying Plaintiff's medical
status and conditions. Defendants had actual knowledge that Plaintiff was unarmed and had not
caused danger or threatened any individuals. Defendants detained and restrained Plaintiff without
considerations for the damages being done by the restraint procedures used and the effects of
Case 1:21-cv-00443-RP Document 31-1 Filed 03/25/22 Page 3 of 9
medications used on Plaintiff.
2.
Defendants Edwardo Pineda, Spencer Hanna and the City of Austin have all made
their appearances in this lawsuit. All other Defendants need to be served in this lawsuit.
JURISDICTION
3.
The action arises under 28 U.S.C. Section 1331 and 1443.
NATURE OF ACTION
4.
This is an action under Title 42 U.S.C. Section 1983. as amended by the Civil Rights
Act of 1991 and the Fourteenth Amendment to correct unlawful and unconstitutional practices and
policies.
FACTS
5.
On March 31, 2020, Plaintiff was visiting with some of his children inside the home
of his common law wife, Josephine Salazar. Enrique Quiroz was previously placed under a criminal
trespass warning and was asked to leave by his wife. Quiroz did not depart as quickly as requested
and the police arrived to remove him from the premises. Defendant Austin Police Officers Hanna
and Pineda discussed the circumstances of Enrique Quiroz's presence and advised him to depart
immediately, per an existing court trespass order. Plaintiff advised that he was leaving, but
Defendant officers were determined to arrest Quiroz rather than allow him to vacate the residence.
Hanna and Pineda forcefully grabbed Quiroz and began to force his hands behind his back. Quiroz
was thrown to the floor and Defendant officers began to tase, kick and strike Quiroz all about his
body and caused immediate injury and physical pain to Plaintiff. The assault on Plaintiff lasted more
than five (5) minutes and included continual tasing and kicking Plaintiff as he lay on the ground.
Defendant Hanna and Pineda forced Plaintiff's arms to the back and locked him in one single pair
of handcuffs which restrained his movement and breathing. Plaintiff weighed approximately Three
Case 1:21-cv-00443-RP Document 31-1 Filed 03/25/22 Page 4 of
9
Hundred pounds and stood approximately Five (5) feet Nine inches tall. Pineda and Hanna placed
their body weight and knees on Plaintiff's body as he laid on his stomach with his hands cuffed to
his back. Plaintiff asked Defendants to loosen restraints and modify their handcuffing position as
his size made breathing difficult. Any resistance from Plaintiff was passive and not physical or
aggressive. Defendants Hanna and Pineda, acting together, continued to assault and strike Plaintiff
in the head and body using full force of knee kicks and fists on his body. Other officers arrived,
including Officers Dowdell and Parker who cooperated with Defendants Hanna and Pineda in
restraining Plaintiff and holding him down on his stomach or hunched over as they applied
additional pressures. All Defendant Officer had complete control of Plaintiff's hands and body and
completely restrained his movements and breathing abilities. Defendant Leggio injected Plaintiff
with medications which included Versed, Narcan and Epinephrine which were damaging to
Defendant's body at the time of Leggio's actions. All the physical force used and medical actions
described herein was excessive, unnecessary and caused or contributed to Plaintiff's death.
6. Defendants caused Plaintiff to suffer various serious injuries and physical damages which
included tazing, and illegal restraint procedures causing physical injury to his body and lead to his
death.
7. The individual named Officers' actions were done intentionally and with conscious
indifference to the rights, safety and protection of Plaintiff Quiroz and were done to cause the most
serious of injuries to his physical body and mind. At all times relevant to this incident, Defendant
officers did observe both Plaintiff's hands and knew that Plaintiff's hands were empty and that he
made no threats or caused Defendant officers to be in fear for themselves or others. Quiroz did not
4
Case 1:21-cv-00443-RP Document 31-1 Filed 03/25/22 Page 5 of 9
attempt to physically resist the officers, avoid the officers, escape, elude, struggle or move in any
direction. Defendant Leggio administered medications which were dangerous to Plaintiff's health
and welfare.
EXCESSIVE FORCE
8. Defendants' actions were intentional and done with conscious indifference to the rights,
safety and suffering of Plaintiff. Defendant Officers had no reasonable beliefs that Plaintiff was
fighting or attempting to assault them, evade them or cause either of them any injury. Defendants'
actions were the sole cause for Plaintiff pain, suffering and injury and each continued the tazing with
knowledge that it could and did lead to the death of Plaintiff. Defendant Officers and Leggio,
individually and as a group, had actual knowledge that tazing a restrained individual and the
physical restraints methods used as well as the medications shot into his body was infliction of
physical pain and suffering and violated Plaintiff's civil rights as assured by the U.S. Constitution.
Defendants' actions were conscious, indifferent and in Violation of 42 U.S.C. Section 1983.
NEGLIGENT RETENTION, TRAINING, SUPERVISION AND ABSENCE OF
POLICIES, DISCIPLINE AND PROCEDURES IN VIOLATION OF
42 U.S.C. SECTION 1983
9.
Plaintiffs alleges that the conduct of Defendant City of Austin, and the individually
identified Defendant Officers were consciously indifferent and constituted negligent and non-
existing training, supervision, discipline, absence of actual policies and procedures and unreasonably
dangerous retention policies in violation of 42 U.S.C. Section 1983. Defendant Chief of Police and
the City of Austin failed and continues to refuse to discipline these and other officers and were well
5
Case 1:21-cv-00443-RP Document 31-1 Filed 03/25/22 Page 6 of 9
aware of the extensive history the police department has when using tazers on individuals they are
arresting. The arresting of unarmed and non dangerous individuals by use of tazers is a normal
practice of the Austin Police Department and often amounts to police officers using excessive force
on individuals they are arresting and/or stopping where there is no fear of violence or danger to the
officers or others. Austin Police officers are continuously using tazer devices in similar arrest
incidents where the arrested individuals are showing no indications of violence or danger towards
the responding officers or others. The use of tazers has become a violent tendency and policy of
Austin Police officers, without justification, but yet APD has continually ignored Defendants
Officers' past tazing actions. Defendant City had no policies and procedures relating to proper and
correct use of tazers which prevented these officers from using unreasonable and unnecessary force.
Defendant City's failures to terminate and/or discipline its officers who continue using tazers
without justification amounting to excessive force, encourages officers to use tazers when the use
of such force is not necessary. The City of Austin has ignored its officers excessive practice of
immediately using tazers or glorified and praised Defendant Officers past continual uses of tazers
and has made their actions examples for other officers to follow. The actions of these officers
reflects the City's deliberate indifference to the use of tazers on non violent individuals and shows
the continual violations of individuals civil rights are violations under 42 U.S.C. Section 1983. The
failure to train these officers in methods of arresting individuals who are not violent and/or terminate
officers who use excessive methods of arresting individuals amounts to City of Austin having no
actual policy that doesn't violate individuals civil rights protections.
10.
Defendant City of Austin allowed Plaintiff to be abused and have his civil rights
6
Case 1:21-cv-00443-RP Document 31-1 Filed 03/25/22 Page 7 of 9
violated, acting through its unwritten daily policies, practices and procedures. Defendant Officers
ignored the dangers of the physical restraints used on Plaintiff and the handcuffing behind his back
and keeping him laying face down for extended periods of time. The use of a tazer on Quiroz shows
deliberate, callous and conscious indifference to the constitutional rights of Quiroz and clearly
indicates random tazing and dangerous restraint methods without fear of punishment resulted in
death to Plaintiff. Failure to train in proper incidents whereby an officer, who has other officers
working with him, should use his properly restrain and taze was the proximate cause of the
violations of Quiroz's constitutional rights under 42 U.S.C. Section 1983. Defendants actions
included using dangerous and harmful restraint methods which also violated Plaintiff's rights under
the U.S. Constitution.
DAMAGES
11. Plaintiff's injuries and damages are the sole result of the actions and/or omissions of
Defendants described herein above:
a.
Physical and emotional pain, suffering and injuries
b.
All reasonable and necessary Attorney's fees incurred by or on behalf of
Plaintiffs,
C.
All reasonable and necessary costs incurred in pursuit of this suit;
d.
Emotional pain;
e.
Expert fees as the Court deems appropriate;
f.
Surgeries in the past and those needing to be done in the future.
g.
Prejudgment interest;
7
Case 1:21-cv-00443-RP Document 31-1 Filed 03/25/22 Page 8 of 9
h.
Medical and death related Expenses in the past and future;
i.
Mental anguish in the past;
j.
Mental anguish in the future;
k.
Loss of earnings in the past;
1.
Loss of earning capacity, in all probability, to be incurred in the future;
m.
All Appeal Cost and Expenses;
EXEMPLARY DAMAGES
12.
Plaintiff would further show that the acts and omissions of Defendants Officers were
committed with malice or reckless indifference to the protected rights of Plaintiff. In order to
punish said Defendants, Plaintiff also seeks recovery from Defendants for exemplary damages.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Plaintiffs respectfully pray that
the
Defendants be cited to appear and answer herein, and that upon a final hearing of the cause,
judgment be entered against Defendants, jointly and severally, for damages in an amount within the
jurisdictional limits of the Court; exemplary damages, as addressed to each Defendant, together with
interest as allowed by law; costs of court; and such other and further relief to which the Plaintiff may
be entitled at law or in equity.
Respectfully submitted,
BOBBY R TAYLOR
8
Case 1:21-cv-00443-RP Document 31-1 Filed 03/25/22 Page 9 of 9
/s/Bobby Taylor
Bobby R. Taylor
Texas Bar No. 19685500
1709 E. Martin L. King Jr. Blvd
Austin, Texas, 78702
Tel. 512-476-4886
Fax. (512)476-2818
Attorney for Plaintiff
PLAINTIFF HEREBY DEMANDS TRIAL BY JURY
CERTIFICATE OF SERVICE
I hereby certify that on March 25th, 2022, a true and correct copy of the foregoing
document was served on all counsel of record by filing with the Court's CM/ECF system, as
well as by sending a copy to lead counsel by email.
/s/BobbyTaylor
Bobby Taylor
Via Electronic Filing:
Blair J. Leake
bleake@w-g.com
Anne L. Morgan, City Attorney
Stephen B. Barron
sbarron@w-g.com
Meghan L. Riley, Litigation Div. Chief
Archie Carl Pierce cpierce@w-g.com
Monte L. Barton, Jr.
WRIGHT & GREENHILL, P.C.
monte.barton@austintexas.gov
900 Congress Avenue, Ste. 500
P.O. Box 1546
Austin, Texas 78701
Austin, Texas 78767
Attorneys for Defendant, City of Austin
9
Case 1:21-cv-00443-RP Document 32 Filed 03/30/22 Page 1 of 1
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
ENRIQUE QUIROZ, Deceased,
through JOSEPHINE SALAZAR
Individually, and as NEXT FRIEND
OF J.R.S, E.F Q, AND E.Q. Minors;
MERCEDES QUIROZ, JASMINE
QUIROZ, ANDREW RAMIREZ AND
CHRISTINA ESPINOZA as
NEXT FRIEND OF H.E., A MINOR,
Plaintiffs
CAUSE NO. 1:21-CV-00443-RP
VS.
OFFICERS EDUARDO PINEDA,
SPENCER HANNA and CITY of
AUSTIN, TEXAS
Defendants,
CERTIFICATE OF CONFERENCE AND SERVICE
I, Bobby R. Taylor, Attorney for Plaintiffs, certify that I discussed the need to file this
Second Amended Complaint with all Defense Counsels and they stated that they agree and do not
oppose the Motion to File (Doc. 31) and that a true and correct copy of the Motion to File with
Plaintiffs' Second Amended Complaint (Doc. 31-1) was sent by electronic-filing to Defendants'
Attorney for all Defendants on the 25th day of March 2022.
/s/Bobby Taylor
Bobby R. Taylor
Via Electronic Filing:
Blair J. Leake
bleake@w-g.com
Anne L. Morgan, City Attorney
Stephen B. Barron sbarron@w-g.com
Meghan L. Riley, Litigation Div. Chief
Archie Carl Pierce cpierce@w-g.com
Monte L. Barton, Jr.
WRIGHT & GREENHILL, P.C.
monte.barton@austintexas.gov
900 Congress Avenue, Ste. 500
P.O. Box 1546
Austin, Texas 78701
Austin, Texas 78767
Attorneys for Defendants Pineda & Hanna
Attorneys for Defendant, City of Austin
Notice of Conference and Service
Page 1 of 1
Case 1:21-cv-00443-RP Document 33 Filed 03/30/22 Page 1 of 9
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
ENRIQUE QUIROZ, Deceased,
§
through JOSEPHINE SALAZAR
§
Individually, and as NEXT FRIEND
§
OF J.R.S, E.F Q, AND E.Q. Minors;
§
MERCEDES QUIROZ, JASMINE
§
QUIROZ, ANDREW RAMIREZ AND
§
CHRISTINA ESPINOZA as
§
NEXT FRIEND OF H.E., A MINOR,
§
Plaintiffs
§
CAUSE NO. 1:21-CV-00443-RP
§
VS.
§
§
OFFICERS EDUARDO PINEDA,
§
SPENCER HANNA, ZANE
DOWDELL, LUCAS PARKER
WILLIAM LEGGIO and CITY of
§
AUSTIN, TEXAS
§
Defendants,
§
PLAINTIFFS' SECOND AMENDED COMPLAINT
AND JURY DEMAND
TO THE HONORABLE JUDGE OF SAID COURT:
NOW COMES ENRIQUE QUIROZ, Deceased, through his heirs at law and files this
Second Amended Complaint based on Defendants' actions. Plaintiff sues Austin Police Department
Officers Eduardo Pineda, Spencer Hanna, Zane Dowdell, Lucas Parker and EMS Officer William
Leggio based upon their individual uses of force and improper medical attention which includes the
tasing, striking, punching, kicking and pounding on Plaintiff's head and body using their fists,
tazers, knees, elbow strikes and other manners of physical and mental abuse. Plaintiff also alleges
APD Defendants used restraint procedures which contributed to and caused Plaintiff's death. EMS
Officer Leggio administered drugs into Plaintiff's body in a means and method which was unsafe
and didn't consider the status of Plaintiff's body and the effects of drugs being administered.
Case 1:21-cv-00443-RP Document 33 Filed 03/30/22 Page 2 of 9
Plaintiffs complain about the City of Austin's failures to provide adequate policies, practices,
training and procedures in violation of the U.S. Constitution.
PARTIES AND SERVICE
1.
Plaintiff Enrique Quiroz and his heirs all resided in Austin, Travis County, Texas
at the time of this incident. This incidents and actions of named Defendants described herein were
the sole causes of Plaintiff's death. He was not threatening or assaulting any individuals or police
officers and Hanna and Pineda described his resistence as "passive". Plaintiff did not physically
assault or strike any officer and was not causing any officers to fear for their life or safety. During
all relevant times, Defendant City of Austin had numerous additional officers immediately available.
Plaintiff was handcuffed with one set of handcuffs with his hands and arms behind his back on the
floor and stairs. He was eventually hobbled SO that any moving and breathing were extremely
difficult. Plaintiff was not resisting as he laid handcuffed on the stairs. Plaintiff had taken no
actions which justified the tasing and assaultive abuses caused to him prior to being handcuffed.
Plaintiff's injuries caused by these Officer Defendants included their tasing and striking Enrique
Quiroz about the face and body before placing him in handcuffs. He was continuously handcuffed
with his hands and arms behind his back while laying on his stomach, face down for an extended
period of time. He was continuously restrained without consideration of his body side, weight and
position during his being handcuffed and hobbled. Defendants caused numerous facial and head
bruises, mental, emotional, physical bodily injuries and death EMS employee Leggio administered
medications which included Versed, Narcan and Epinephrine without verifying Plaintiff's medical
status and conditions. Defendants had actual knowledge that Plaintiff was unarmed and had not
caused danger or threatened any individuals. Defendants detained and restrained Plaintiff without
considerations for the damages being done by the restraint procedures used and the effects of
Case 1:21-cv-00443-RP Document 33 Filed 03/30/22 Page 3 of 9
medications used on Plaintiff.
2.
Defendants Edwardo Pineda, Spencer Hanna and the City of Austin have all made
their appearances in this lawsuit. All other Defendants need to be served in this lawsuit.
JURISDICTION
3.
The action arises under 28 U.S.C. Section 1331 and 1443.
NATURE OF ACTION
4.
This is an action under Title 42 U.S.C. Section 1983. as amended by the Civil Rights
Act of 1991 and the Fourteenth Amendment to correct unlawful and unconstitutional practices and
policies.
FACTS
5.
On March 31, 2020, Plaintiff was visiting with some of his children inside the home
of his common law wife, Josephine Salazar. Enrique Quiroz was previously placed under a criminal
trespass warning and was asked to leave by his wife. Quiroz did not depart as quickly as requested
and the police arrived to remove him from the premises. Defendant Austin Police Officers Hanna
and Pineda discussed the circumstances of Enrique Quiroz's presence and advised him to depart
immediately, per an existing court trespass order. Plaintiff advised that he was leaving, but
Defendant officers were determined to arrest Quiroz rather than allow him to vacate the residence.
Hanna and Pineda forcefully grabbed Quiroz and began to force his hands behind his back. Quiroz
was thrown to the floor and Defendant officers began to tase, kick and strike Quiroz all about his
body and caused immediate injury and physical pain to Plaintiff. The assault on Plaintiff lasted more
than five (5) minutes and included continual tasing and kicking Plaintiff as he lay on the ground.
Defendant Hanna and Pineda forced Plaintiff's arms to the back and locked him in one single pair
of handcuffs which restrained his movement and breathing. Plaintiff weighed approximately Three
Case 1:21-cv-00443-RP Document 33 Filed 03/30/22 Page 4 of
9
Hundred pounds and stood approximately Five (5) feet Nine inches tall. Pineda and Hanna placed
their body weight and knees on Plaintiff's body as he laid on his stomach with his hands cuffed to
his back. Plaintiff asked Defendants to loosen restraints and modify their handcuffing position as
his size made breathing difficult. Any resistance from Plaintiff was passive and not physical or
aggressive. Defendants Hanna and Pineda, acting together, continued to assault and strike Plaintiff
in the head and body using full force of knee kicks and fists on his body. Other officers arrived,
including Officers Dowdell and Parker who cooperated with Defendants Hanna and Pineda in
restraining Plaintiff and holding him down on his stomach or hunched over as they applied
additional pressures. All Defendant Officer had complete control of Plaintiff's hands and body and
completely restrained his movements and breathing abilities. Defendant Leggio injected Plaintiff
with medications which included Versed, Narcan and Epinephrine which were damaging to
Defendant's body at the time of Leggio's actions. All the physical force used and medical actions
described herein was excessive, unnecessary and caused or contributed to Plaintiff's death.
6. Defendants caused Plaintiff to suffer various serious injuries and physical damages which
included tazing, and illegal restraint procedures causing physical injury to his body and lead to his
death.
7. The individual named Officers' actions were done intentionally and with conscious
indifference to the rights, safety and protection of Plaintiff Quiroz and were done to cause the most
serious of injuries to his physical body and mind. At all times relevant to this incident, Defendant
officers did observe both Plaintiff's hands and knew that Plaintiff's hands were empty and that he
made no threats or caused Defendant officers to be in fear for themselves or others. Quiroz did not
4
Case 1:21-cv-00443-RP Document 33 Filed 03/30/22 Page 5 of 9
attempt to physically resist the officers, avoid the officers, escape, elude, struggle or move in any
direction. Defendant Leggio administered medications which were dangerous to Plaintiff's health
and welfare.
EXCESSIVE FORCE
8. Defendants' actions were intentional and done with conscious indifference to the rights,
safety and suffering of Plaintiff. Defendant Officers had no reasonable beliefs that Plaintiff was
fighting or attempting to assault them, evade them or cause either of them any injury. Defendants'
actions were the sole cause for Plaintiff pain, suffering and injury and each continued the tazing with
knowledge that it could and did lead to the death of Plaintiff. Defendant Officers and Leggio,
individually and as a group, had actual knowledge that tazing a restrained individual and the
physical restraints methods used as well as the medications shot into his body was infliction of
physical pain and suffering and violated Plaintiff's civil rights as assured by the U.S. Constitution.
Defendants' actions were conscious, indifferent and in Violation of 42 U.S.C. Section 1983.
NEGLIGENT RETENTION, TRAINING, SUPERVISION AND ABSENCE OF
POLICIES, DISCIPLINE AND PROCEDURES IN VIOLATION OF
42 U.S.C. SECTION 1983
9.
Plaintiffs alleges that the conduct of Defendant City of Austin, and the individually
identified Defendant Officers were consciously indifferent and constituted negligent and non-
existing training, supervision, discipline, absence of actual policies and procedures and unreasonably
dangerous retention policies in violation of 42 U.S.C. Section 1983. Defendant Chief of Police and
the City of Austin failed and continues to refuse to discipline these and other officers and were well
5
Case 1:21-cv-00443-RP Document 33 Filed 03/30/22 Page 6 of 9
aware of the extensive history the police department has when using tazers on individuals they are
arresting. The arresting of unarmed and non dangerous individuals by use of tazers is a normal
practice of the Austin Police Department and often amounts to police officers using excessive force
on individuals they are arresting and/or stopping where there is no fear of violence or danger to the
officers or others. Austin Police officers are continuously using tazer devices in similar arrest
incidents where the arrested individuals are showing no indications of violence or danger towards
the responding officers or others. The use of tazers has become a violent tendency and policy of
Austin Police officers, without justification, but yet APD has continually ignored Defendants
Officers' past tazing actions. Defendant City had no policies and procedures relating to proper and
correct use of tazers which prevented these officers from using unreasonable and unnecessary force.
Defendant City's failures to terminate and/or discipline its officers who continue using tazers
without justification amounting to excessive force, encourages officers to use tazers when the use
of such force is not necessary. The City of Austin has ignored its officers excessive practice of
immediately using tazers or glorified and praised Defendant Officers past continual uses of tazers
and has made their actions examples for other officers to follow. The actions of these officers
reflects the City's deliberate indifference to the use of tazers on non violent individuals and shows
the continual violations of individuals civil rights are violations under 42 U.S.C. Section 1983. The
failure to train these officers in methods of arresting individuals who are not violent and/or terminate
officers who use excessive methods of arresting individuals amounts to City of Austin having no
actual policy that doesn't violate individuals civil rights protections.
10.
Defendant City of Austin allowed Plaintiff to be abused and have his civil rights
6
Case 1:21-cv-00443-RP Document 33 Filed 03/30/22 Page 7 of 9
violated, acting through its unwritten daily policies, practices and procedures. Defendant Officers
ignored the dangers of the physical restraints used on Plaintiff and the handcuffing behind his back
and keeping him laying face down for extended periods of time. The use of a tazer on Quiroz shows
deliberate, callous and conscious indifference to the constitutional rights of Quiroz and clearly
indicates random tazing and dangerous restraint methods without fear of punishment resulted in
death to Plaintiff. Failure to train in proper incidents whereby an officer, who has other officers
working with him, should use his properly restrain and taze was the proximate cause of the
violations of Quiroz's constitutional rights under 42 U.S.C. Section 1983. Defendants actions
included using dangerous and harmful restraint methods which also violated Plaintiff's rights under
the U.S. Constitution.
DAMAGES
11. Plaintiff's injuries and damages are the sole result of the actions and/or omissions of
Defendants described herein above:
a.
Physical and emotional pain, suffering and injuries
b.
All reasonable and necessary Attorney's fees incurred by or on behalf of
Plaintiffs,
C.
All reasonable and necessary costs incurred in pursuit of this suit;
d.
Emotional pain;
e.
Expert fees as the Court deems appropriate;
f.
Surgeries in the past and those needing to be done in the future.
g.
Prejudgment interest;
7
Case 1:21-cv-00443-RP Document 33 Filed 03/30/22 Page 8 of 9
h.
Medical and death related Expenses in the past and future;
i.
Mental anguish in the past;
j.
Mental anguish in the future;
k.
Loss of earnings in the past;
1.
Loss of earning capacity, in all probability, to be incurred in the future;
m.
All Appeal Cost and Expenses;
EXEMPLARY DAMAGES
12.
Plaintiff would further show that the acts and omissions of Defendants Officers were
committed with malice or reckless indifference to the protected rights of Plaintiff. In order to
punish said Defendants, Plaintiff also seeks recovery from Defendants for exemplary damages.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Plaintiffs respectfully pray that
the
Defendants be cited to appear and answer herein, and that upon a final hearing of the cause,
judgment be entered against Defendants, jointly and severally, for damages in an amount within the
jurisdictional limits of the Court; exemplary damages, as addressed to each Defendant, together with
interest as allowed by law; costs of court; and such other and further relief to which the Plaintiff may
be entitled at law or in equity.
Respectfully submitted,
BOBBY R TAYLOR
8
Case 1:21-cv-00443-RP Document 33 Filed 03/30/22 Page 9 of 9
/s/Bobby Taylor
Bobby R. Taylor
Texas Bar No. 19685500
1709 E. Martin L. King Jr. Blvd
Austin, Texas, 78702
Tel. 512-476-4886
Fax. (512)476-2818
Attorney for Plaintiff
PLAINTIFF HEREBY DEMANDS TRIAL BY JURY
CERTIFICATE OF SERVICE
I hereby certify that on March 25th, 2022, a true and correct copy of the foregoing
document was served on all counsel of record by filing with the Court's CM/ECF system, as
well as by sending a copy to lead counsel by email.
/s/BobbyTaylor
Bobby Taylor
Via Electronic Filing:
Blair J. Leake
bleake@w-g.com
Anne L. Morgan, City Attorney
Stephen B. Barron
sbarron@w-g.com
Meghan L. Riley, Litigation Div. Chief
Archie Carl Pierce cpierce@w-g.com
Monte L. Barton, Jr.
WRIGHT & GREENHILL, P.C.
monte.barton@austintexas.gov
900 Congress Avenue, Ste. 500
P.O. Box 1546
Austin, Texas 78701
Austin, Texas 78767
Attorneys for Defendant, City of Austin
9
Case 1:21-cv-00443-RP Document 34 Filed 04/13/22 Page 1 of 6
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
ENRIQUE QUIROZ, Deceased,
§
Through JOSEPHONE SALAZAR
§
Individually, and as NEXT FRIEND OF
§
J.R.S, E.F Q, AND E.Q. Minors;
§
MERCEDES QUIROZ, JASMINE
§
QUIROZ, ANDREW RAMIREZ AND
§
CHRISTINA ESPINOZA as NEXT
§
FRIEND OF H.E., A MINOR,
§
CIVIL ACTION NO. 1:21-cv-443-RP
Plaintiffs,
§
§
V.
§
§
OFFICERS EDUARDO PINEDA,
§
SPENCER HANNA, ZANE
§
DOWDELL, LUCAS PARKER
§
WILLIAM LEGGIO and CITY of
AUSTIN, TEXAS
Defendants.
DEFENDANT, CITY OF AUSTIN'S ANSWER AND
AFFIRMATIVE DEFENSES TO PLAINTIFF'S SECOND AMENDED COMPLAINT
TO THE HONORABLE JUDGE OF SAID COURT:
Defendant City of Austin files its Answer and Affirmative Defenses to Plaintiffs' Second
Amended Complaint and Jury Demand [Doc. No. 33]. Pursuant to Rules 8 and 12 of the Federal Rules of
Civil Procedure, Defendant respectfully shows the Court the following:
SECOND AMENDED ANSWER
Pursuant to Federal Rule of Civil Procedure 8(b), Defendant City of Austin responds to each of
the specific averments in Plaintiffs' Second Amended Complaint as set forth below. To the extent that
Defendant City of Austin does not address a specific averment made by Plaintiff, Defendant expressly
denies that averment. 1
The City denies the unnumbered allegations in the preamble paragraph which begins with "NOW
COMES" and precedes the "Parties and Service" section of the Complaint.
1
Paragraph numbers in Defendant's Answer correspond to the paragraphs in Plaintiffs' Original Complaint.
1
Case 1:21-cv-00443-RP Document 34 Filed 04/13/22 Page 2 of 6
PARTIES AND SERVICE
1.
Denied. The City is without sufficient knowledge to form a belief as to the truth of the allegations
concerning Plaintiffs' residence at the time of this incident and therefore denies the same. The
remaining allegations are denied.
2.
Admit.
JURISDICTION
3.
No response is required to Paragraph 3, as it does not contain any factual allegations. The
City admits that this Court has federal question jurisdiction over any alleged claims
pursuant to 42 U.S.C. § 1983. To the extent a response is required, the City otherwise
denies the remaining allegations in Paragraph 3.
NATURE OF ACTION
4.
No response is required to Paragraph 4, as it does not contain any factual allegations. To
the extent a response is required, the City denies any allegations of unlawful or
unconstitutional practices and policies.
FACTS
5.
Defendant denies the allegations contained in Paragraph 5.
6.
This Defendant is without sufficient knowledge to form a belief as to the truth of the
allegations contained in Paragraph 6 and therefore denies same.
7.
Defendant denies the allegations contained in Paragraph 7.
EXCESSIVE FORCE
8.
Defendant denies the allegations contained in Paragraph 8.
NEGLIGENT RETENTION, TRAINING, SUPERVISION
AND ABSENCE OF POLICIES, DISCIPLINE AND PROCEDURES
IN VIOLATION OF 42 U.S.C. SECTION 1983
9.
Defendant denies the allegations contained in Paragraph 9.
2
Case 1:21-cv-00443-RP Document 34 Filed 04/13/22 Page 3 of 6
10.
Defendant denies the allegations contained in Paragraph 10.
DAMAGES
11.
Defendant denies all of the allegations contained in Paragraph 11, including subparts a-m.
EXEMPLARY DAMAGES
12.
Defendant denies the allegations contained in Paragraph 12.
PRAYER
No response is required to the "Prayer" included in the Complaint, which begins with the phrase
"WHEREFORE, PREMISES CONSIDERED," as it does not contain any factual allegations. To the
extent any response is required, the City denies the allegations in the "Prayer" section of the Complaint,
and further denies that Plaintiff has any valid or supportable basis for any recovery from the City.
AFFIRMATIVE DEFENSES
1.
Defendant City of Austin asserts the affirmative defense of governmental immunity as
a municipal corporation entitled to immunity while acting in the performance of its governmental
functions, absent express waiver.
2.
Defendant City of Austin asserts the affirmative defense of governmental immunity
since its employees are entitled to qualified/official immunity for actions taken in the course and
scope of their employment, absent express waiver.
3.
Defendant City of Austin affirmatively pleads that the Plaintiffs' claims are barred in
whole or in part since Plaintiff Enrique Quiroz's intentional acts were the proximate
cause, or a proximate contributing cause, of the alleged injuries and damages asserted in
this case.
4.
Defendant City of Austin reserves the right to assert additional affirmative defenses
throughout the development of the case.
3
Case 1:21-cv-00443-RP Document 34 Filed 04/13/22 Page 4 of 6
5.
The City asserts that it is absolutely immune from punitive damages under 42 U.S.C. §
1983 pursuant to City of Newport V. Fact Concerts, Inc., 453 U.S. 247 (1981).
6.
Defendant asserts the affirmative defense that Plaintiffs failed to mitigate damages, if any,
and asserts this failure to mitigate as both an affirmative defense and as a reduction in the
damage amount, if any, due Plaintiffs.
7.
Defendants assert the affirmative defense of contributory negligence. Plaintiffs' claims
are barred in whole or in part by contributory negligence. Plaintiff, by his actions, failed
to exercise ordinary care for his safety. His actions contributed at least fifty-one percent
to the alleged injuries and the damages asserted in this case.
8.
Defendants affirmatively plead that the Plaintiff's claims are barred in whole or in part
since Plaintiffs intentional acts or the acts of others for which this defendant has no
responsibility were the proximate cause, or a proximate contributing cause, of the alleged
injuries and damages asserted in this case.
9.
The incident in question and the resulting harm to Decedent were caused or contributed
to by Decedent's own illegal conduct.
10.
Pleading further and in the alternative if applicable, Plaintiffs' injuries and damages were
caused in whole or in part by the conduct of other persons or entities who are not
currently parties to this lawsuit.
11.
Pleading further, alternatively, and by way of affirmative defense, Defendant would show
that at the time and on the occasion in question, Decedent failed to use care or caution
that a person of ordinary prudence would have used under the same or similar
circumstances, and that such failure was a producing cause or the sole proximate cause of
the incident and alleged damages that arise therefrom. If applicable and subject to
4
Case 1:21-cv-00443-RP Document 34 Filed 04/13/22 Page 5 of 6
withdrawal, Defendant invokes the comparative responsibility provision of the Texas
Civil Practice & Remedies Code.
12.
Defendant further pleads any fault to be reduced by the percentage of the causation found
to have resulted from the acts or omissions of other persons.
13.
Defendant asserts the limitations and protections of Chapters 41 & 101 of the Texas Civil
Practice & Remedies code, and the due process clause of the United States Constitution.
14.
To the extent Defendant did not address a specific averment made by Plaintiffs in the
Complaint, Defendant expressly denies all such averments.
DEFENDANTS' PRAYER
Defendant City of Austin prays that all relief requested by Plaintiff be denied, that the
Court dismiss this case with prejudice, and that the Court award Defendants costs and attorney's
fees, and any additional relief to which it is entitled under law or equity.
RESPECTFULLY SUBMITTED,
ANNE L. MORGAN, CITY ATTORNEY
MEGHAN L. RILEY, LITIGATION DIVISION CHIEF
/s/ Monte L. Barton Jr.
MONTE L. BARTON JR.
State Bar No. 24115616
monte.barton@austintexas.gov
City of Austin
P.O. Box 1546
Austin, Texas 78767-1546
Telephone (512) 974-2409
Facsimile (512) 974-1311
ATTORNEYS FOR DEFENDANT
CITY OF AUSTIN
5
Case 1:21-cv-00443-RP Document 34 Filed 04/13/22 Page 6 of 6
CERTIFICATE OF SERVICE
This is to certify that I have served a copy of the foregoing on all parties or their
attorneys of record, in compliance with the Rules of Federal Procedure, this 13th day of April,
2022.
Via CM/ECF:
Bobby R. Taylor
Blair J. Leake
State Bar No. 19685500
State Bar No. 24081630
1709 E. Martin L. King Jr. Blvd
bleake@w-g.com
Austin, Texas 78702
Stephen B. Barron
Telephone: (512) 476-4886
State Bar No. 24109619
Facsimile: (512) 476-2818
sbarron@w-g.com
Archie Carl Pierce
ATTORNEY FOR PLAINTIFFS
State Bar No. 5991500
cpierce@w-g.com
WRIGHT & GREENHILL, P.C.
900 Congress Avenue, Suite 500
Austin, Texas 78701
Telephone: (512) 476-4600
Facsimile: (512) 476-5382
ATTORNEY FOR DEFENDANTS
EDUARDO PINEDA and SPENCER HANNA
/s/ Monte L. Barton, Jr.
MONTE L. BARTON JR.
6
Case 1:21-cv-00443-RP Document 36 Filed 04/20/22 Page 1 of
9
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
ENRIQUE QUIROZ, Deceased,
§
through JOSEPHINE SALAZAR
§
Individually, and as NEXT FRIEND
§
OF J.R.S., E.F.Q., and E.Q., Minors;
§
MERCEDES QUIROZ, JASMINE
§
QUIROZ, ANDREW RAMIREZ and
§
CHRISTINA ESPINOZA as
§
NEXT FRIEND OF H.E., a Minor,
§
Plaintiffs,
§
§
V.
§
No. 1:21-cv-00443-RP
§
OFFICERS EDUARDO PINEDA,
§
SPENCER HANNA and
§
CITY OF AUSTIN, TEXAS,
§
Defendants.
§
DEFENDANTS EDUARDO PINEDA AND SPENCER HANNA'S ANSWER
TO PLAINTIFFS' SECOND AMENDED COMPLAINT
TO THE HONORABLE UNITED STATES DISTRICT JUDGE:
COMES NOW Defendants, Eduardo Pineda and Spencer Hanna (hereinafter "Defendants"
or "Pineda and Hanna") by and through their attorneys of record, and file this Answer to Plaintiff,
Enrique Quiroz, deceased, through Josephine Salazar, individually and as next friend of J.R.S.,
E.F.Q., and E.Q., minors; Mercedes Quiroz, Jasmine Quiroz, Andrew Ramirez and Christina
Espinoza as next friend of H.E., a minor (hereinafter "Quiroz"), Second Amended Complaint (Dkt.
# 33) and in support thereof would respectfully show the Court as follows:
Defendants Pineda and Hanna's Answer to Plaintiffs Second Amended Complaint
Page 1
Case 1:21-cv-00443-RP Document 36 Filed 04/20/22 Page 2 of 9
I.
INTRODUCTION
1.
In the month leading up to March 31, 2020, Plaintiff, Josephine Salazar, sought and
obtained a formal trespass warning issued to Decedent Enrique Quiroz, forbidding him from
entering her property henceforth-namely, her apartment home where the facts underlying this
lawsuit occurred. 1 On March 31, 2020, Decedent forced his way into Plaintiff Salazar's home and
refused to leave, causing Plaintiff Salazar to seek the help of the Austin Police Department to
remove him from her home once again. Decedent's entry and presence in Plaintiff Salazar's home
against her will-after having already received a formal trespass warning-constituted a Class A
misdemeanor under Texas law, which is punishable by up to one year in jail.2
2.
Defendants, Austin Police Department Officers Eduardo Pineda and Spencer Hanna, were
both called to the scene to assist Plaintiff Salazar. The prior trespass warning was confirmed, and
the officers spoke to Plaintiff Salazar outside of the apartment. The officers learned that Decedent
had refused to leave, may be under the influence of drugs, and that he had been acting in an erratic
or strange manner.
3.
Officers Pineda and Hanna entered the apartment, while Plaintiff Salazar remained outside
due to her fear that Decedent might resist arrest or fight with the officers. Once inside, the Officers
verbally engaged Decedent and noticed that he was a very large and imposing man-weighing
approximately as much as both Officers combined. For approximately the next fifteen minutes, the
Officers used de-escalation techniques, including conversing with Decedent and even giving him
a chance to find evidence on his phone to prove that Plaintiff Salazar had invited him into her
apartment. After it was clear that he possessed no such evidence and was indeed acting in an erratic
1
See TEX. PEN. CODE § 30.05.
2
See TEX. PEN. CODE § 30.05(c)(3)(i).
Defendants Pineda and Hanna's Answer to Plaintiffs Second Amended Complaint
Page 2
Case 1:21-cv-00443-RP Document 36 Filed 04/20/22 Page 3 of 9
manner, the officers began to initiate an arrest to remove the man from the residence of a woman-
Plaintiff Salazar-who had gone to great lengths to get him to leave her home.
4.
During the approximately fifteen-minute period of de-escalation, the officers informed
Decedent that he would be arrested absent the above-referenced proof of an invitation. Eventually,
the officers issued commands for him to stand up and put his hands behind his back SO that he
could be placed under arrest. Decedent stood up, but otherwise refused to comply. The officers
attempted to take hold of Decedent's arm to initiate the arrest, but Decedent pulled his arm away
and resisted any and all subsequent attempts by the officers to arrest him. At that point, the officers
had not yet had a chance to frisk Decedent, and-as they would later discover-Decedent was
carrying a knife in his pocket.
5.
After de-escalation, verbal commands, and attempts at relaxed physical control failed,
Officer Pineda was eventually forced to use his Taser device on Decedent to allow the officers to
arrest him. However, the Taser device was not effective, and the officers were still unable to
subdue Decedent and place him under arrest. By this point, both officers were forced to go hands-
on in an attempt to wrestle Quiroz to the floor SO that he could be placed in handcuffs and arrested.
For approximately the next five minutes, Decedent dragged and wrestled the two officers across
the apartment, and refused all officer commands to submit to arrest. At one point, Decedent
grabbed one officer's vest near his throat and yelled threateningly into his face.
6.
Eventually-after having dragged and wrestled the two officers outside onto the apartment
complex second-floor landing-Decedent was finally taken to the ground and put in handcuffs.
Decedent only spent a matter of seconds laying on his stomach while restrained in handcuffs.
Almost immediately thereafter, several APD officers arrived as backup and took control of the
Defendants Pineda and Hanna's Answer to Plaintiffs Second Amended Complaint
Page 3
Case 1:21-cv-00443-RP Document 36 Filed 04/20/22 Page 4 of 9
scene. Officers Pineda and Hanna had virtually no interactions whatsoever with Decedent from
that point forward.
7.
The APD officers who had arrived as backup attempted to transport Decedent down the
stairs to where EMS had arrived. Decedent-who is believed to have weighed approximately 330
pounds at that time-refused to walk to EMS's location on his own, and actively resisted being
physically carried to where EMS was waiting to help him. Eventually-long after any of Officers
Pineda and Hanna's interactions with Decedent-EMS administered to Decedent what is believed
to have been a benzodiazepine via syringe to sedate the still-resisting Decedent. Decedent soon
after suffered a medical emergency. Life-saving measures were attempted by EMS, but Decedent
ultimately passed away shortly thereafter. Based on information and belief, Decedent was
discovered to have been under the influence of numerous illicit drugs during the entire encounter
that forms the basis of this lawsuit.
8.
In contrast to the description of events contained in the Second Amended Complaint,
Officer Pineda and Officer Hanna never punched or kicked or elbowed Decedent, never used force
against him once he had already been restrained in handcuffs, and never struck Decedent in the
head. The force used by Officers Pineda and Hanna was used only to the extent necessary to subdue
Decedent and make it possible to arrest him and remove him from Plaintiff Salazar's residence, as
she had requested. This lawsuit follows.
II.
ORIGINAL ANSWER
A. Parties and Service.
9.
Defendants are without sufficient knowledge to form a belief as to the truth of the
allegations contained in Paragraph 1 of Plaintiffs' Second Amended Complaint regarding place of
Defendants Pineda and Hanna's Answer to Plaintiffs Second Amended Complaint
Page 4
Case 1:21-cv-00443-RP Document 36 Filed 04/20/22 Page 5 of 9
residence, and therefore deny the same. Defendants admit that an EMS employee administered
medications to the Decedent that included Versed. Otherwise, denied.
10.
As to the allegations contained within Paragraph 2 of Plaintiffs' Second Amended
Complaint, Defendants admit that they have been served and have appeared. Otherwise,
Defendants are without sufficient knowledge to form a belief as to the truth of the remaining
allegations therein.
B. Jurisdiction and Venue & Nature of Action.
11.
As to the allegations contained within Paragraphs 3 - 4 of Plaintiffs' Second Amended
Complaint, no answer is necessary from these Defendants. To the extent any answer is deemed
necessary, Defendants admit that Plaintiffs seek the relief requested therein pursuant to the cited
bodies of law. Otherwise, denied.
C. Facts.
12.
As to the allegations contained within Paragraph 5 of Plaintiffs' Second Amended
Complaint, Defendants admit that Decedent had been previously issued a criminal trespass
warning by Plaintiff Josephine Salazar; admit that Plaintiff violated the criminal trespass notice by
entering Plaintiff Salazar's home; admit that Plaintiff Salazar instructed him to leave and he
refused; admit that they personally discussed the circumstances of Decedent's presence and the
problems it posed due to a prior trespass warning; admit that Officer Pineda used a Taser device
generally to attempt to subdue Decedent; admit that they attempted to use a small number of minor
knee strikes against Decedent in their attempts to subdue and arrest him; and admit that they
wrestled with Decedent for approximately five minutes to attempt to subdue and arrest him in the
face of his continuing aggressive physical resistance; admit that he was approximately 5'9" tall
Defendants Pineda and Hanna's Answer to Plaintiffs Second Amended Complaint
Page 5
Case 1:21-cv-00443-RP Document 36 Filed 04/20/22 Page 6 of 9
and that he weighed more than 300 lbs; and admit that someone from EMS injected Decedent with
medication that included Versed. Otherwise, denied.
13.
As to the allegations contained within Paragraphs 6 - 7 of Plaintiffs' Second Amended
Complaint, Defendants admit that someone from EMS administered medications to Decedent that
ultimately proved to be dangerous to Decedent's health. Defendants deny the remaining allegations
contained within Paragraphs 6 - 7 of Plaintiffs' Second Amended Complaint.
D. Causes of Action.
i. Excessive Force.
14.
Defendants deny the allegations contained within Paragraph 8 of Plaintiffs' Second
Amended Complaint.
ii. Negligent Retention, Training, Supervision and Absence of Policies, Discipline
and Procedures.
15.
As to the allegations contained within Paragraphs 9 - 10 of Plaintiffs' Second Amended
Complaint, no answer is necessary from these Defendants. To the extent any answer is deemed
necessary, Defendants deny such allegations.
iii. Damages, Exemplary Damages, & Prayer.
16.
As to the allegations contained in Paragraphs 11 - 12 and the Prayer, no answer is necessary
from these Defendants. To the extent any answer is deemed necessary, Defendants admit that
Plaintiffs seek the relief requested therein. Otherwise, denied.
III.
AFFIRMATIVE DEFENSES & IMMUNITIES
17.
Defendants Pineda and Hanna deny any deprivation under color of statute, ordinance,
custom, or abuses of any rights, privileges, or immunities secured to the decedent by the United
States Constitution, state law, or 42 U.S.C. § 1983, et seq.
Defendants Pineda and Hanna's Answer to Plaintiffs Second Amended Complaint
Page 6
Case 1:21-cv-00443-RP Document 36 Filed 04/20/22 Page 7 of 9
18.
Defendants hereby invoke the doctrine of Qualified Immunity and Official Immunity.
Defendants discharged their obligations and public duties in good faith, and would show that their
actions were objectively reasonable in light of the law and the information possessed at that time.
19.
The incident in question and the resulting harm to Decedent were caused or contributed to
by Decedent's own illegal and/or dangerous conduct.
20.
Pleading further and in the alternative, Plaintiffs' injuries and damages were caused in
whole or in part by the conduct of other persons or entities.
21.
Pleading further, alternatively, and by way of affirmative defense, Defendants Pineda and
Hanna would show that at the time and on the occasion in question, Decedent failed to use any
degree of care or caution that a person of ordinary prudence would have used under the same or
similar circumstances, and that such failure was a producing cause or the sole proximate cause of
the incident and alleged damages that arise therefrom. Defendants Pineda and Hanna invoke the
comparative responsibility provisions of the Texas Civil Practice & Remedies Code.³
22.
Defendants further plead that, in the unlikely event they are found to be liable, such liability
be reduced by the percentage of the causation found to have resulted from the acts or omissions of
other persons.
23.
Defendants plead that they had legal justification for each and every action taken by them
relating to this incident.
24.
Defendants assert the limitations and protections of Chapters 41 & 101 of the Texas Civil
Practice & Remedies Code, and the due process clause of the United States Constitution.
25.
Defendants reserve the right to assert additional affirmative defenses throughout the
development of this case.
3
See TEX. CIV. PRAC & REM. CODE ANN. § 33.001.
Defendants Pineda and Hanna's Answer to Plaintiffs Second Amended Complaint
Page 7
Case 1:21-cv-00443-RP Document 36 Filed 04/20/22 Page 8 of 9
26.
To the extent Defendants did not address a specific averment made by Plaintiffs in their
Second Amended Complaint, Defendants expressly deny all such averments.
IV.
JURY DEMAND
27.
Pursuant to Federal Rule of Civil Procedure 48, Defendants hereby request a jury trial.
V.
PRAYER FOR RELIEF
WHEREFORE, PREMISES CONSIDERED, Defendants Eduardo Pineda and Spencer
Hanna pray that upon a final hearing of this cause, the Court dismiss all of Plaintiffs' claims with
prejudice, that all costs of court be assessed against Plaintiffs, that they be awarded attorney fees
incurred in the defense of this suit, and for all further relief to which they may be justly entitled.
Respectfully submitted,
WRIGHT & GREENHILL, P.C.
900 Congress Avenue, Suite 500
Austin, Texas 78701
512-476-4600
512-476-5382 - Fax
By:
/s/ Blair J. Leake
Blair J. Leake
State Bar No. 24081630
bleake@w-g.com
Stephen B. Barron
State Bar No. 24109619
sbarron@w-g.com
Archie Carl Pierce
State Bar No. 15991500
cpierce@w-g.com
ATTORNEYS FOR DEFENDANTS
EDUARDO PINEDA AND
SPENCER HANNA
Defendants Pineda and Hanna's Answer to Plaintiffs Second Amended Complaint
Page 8
Case 1:21-cv-00443-RP Document 36 Filed 04/20/22 Page 9 of 9
CERTIFICATE OF SERVICE
I hereby certify that on the 20th day of April 2022, a copy of Defendants Eduardo Pineda
and Spencer Hanna's Answer to Plaintiffs' Second Amended Complaint was electronically filed
on the CM/ECF system, which will automatically serve a Notice of Electronic Filing on the
following attorneys of record:
Bobby R. Taylor
1709 E. Martin L. King, Jr. Blvd.
Austin, Texas 78702
bobby@taylor-law.com
Monte L. Barton, Jr.
City of Austin - Law Department
P.O. Box 1546
Austin, Texas 78767-1546
monte.barton@austintexas.gov
/s/ Blair J. Leake
Blair J. Leake
Defendants Pineda and Hanna's Answer to Plaintiffs , Second Amended Complaint
Page 9
Case 1:21-cv-00443-RP Document 39 Filed 06/03/22 Page 1 of 7
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
ENRIQUE QUIROZ, Deceased,
§
Through JOSEPHONE SALAZAR
§
Individually, and as NEXT FRIEND OF
§
J.R.S, E.F Q, AND E.Q. Minors;
§
MERCEDES QUIROZ, JASMINE
§
QUIROZ, ANDREW RAMIREZ AND
§
CHRISTINA ESPINOZA as NEXT
§
FRIEND OF H.E., A MINOR,
§
CIVIL ACTION NO. 1:21-cv-443-RP
Plaintiffs,
§
§
V.
§
§
OFFICERS EDUARDO PINEDA,
§
SPENCER HANNA, ZANE
§
DOWDELL, LUCAS PARKER
§
WILLIAM LEGGIO and CITY of
AUSTIN, TEXAS
Defendants.
ANSWER AND AFFIRMATIVE DEFENSES
TO PLAINTIFF'S SECOND AMENDED COMPLAINT BY DEFENDANTS,
ZANE DOWDELL, LUCAS PARKER AND WILLIAM LEGGIO
TO THE HONORABLE JUDGE OF SAID COURT:
Defendants, ZANE DOWDELL (employed at all relevant times with the Austin Police Dept.),
LUCAS PARKER (employed at all relevant times with the Austin Police Dept.) and WILLIAM LEGGIO
(employed at all relevant times with the Austin-Travis County EMS), file this Answer and Affirmative
Defenses to Plaintiffs' Second Amended Complaint and Jury Demand [Second Amended Complaint is
docketed as Doc. No. 33]. Pursuant to Rules 8 and 12 of the Federal Rules of Civil Procedure,
Defendants respectfully shows the Court the following:
ANSWER
Pursuant to Federal Rule of Civil Procedure 8(b), Defendants (Dowdell, Parker, and Leggio)
respond to each of the specific averments in Plaintiffs' Second Amended Complaint as set forth below. To
1
Case 1:21-cv-00443-RP Document 39 Filed 06/03/22 Page 2 of 7
the extent that these Defendants do not address a specific averment made by Plaintiff, Defendants
expressly denies that averment. 1
These Defendants deny the unnumbered allegations in the preamble paragraph which begins with
"NOW COMES" and precedes the "Parties and Service" section of the Complaint.
PARTIES AND SERVICE
1.
Denied. These Defendants are without sufficient knowledge to form a belief as to the truth of the
allegations concerning Plaintiffs' residence at the time of this incident and therefore denies the
same. The remaining allegations constitute speculation and conjecture about the application of
law and facts, including medical information which is available to all parties, and to which no
response is required at this time and the allegations are therefore denied to the extent they may be
construed to seek liability against these defendants.
2.
Admit.
JURISDICTION
3.
No response is required to Paragraph 3, as it does not contain any factual allegations.
These defendants admit that this Court has federal question jurisdiction over any alleged
claims pursuant to 42 U.S.C. § 1983. To the extent a response is required, these
defendants otherwise deny the remaining allegations in Paragraph 3.
NATURE OF ACTION
4.
No response is required to Paragraph 4, as it does not contain any factual allegations. To
the extent a response is required, these defendants deny any allegations of unlawful or
unconstitutional practices and policies.
FACTS
1
Paragraph numbers in Defendants' Answer correspond to the paragraphs in Plaintiffs' Second Amended
Complaint.
2
Case 1:21-cv-00443-RP Document 39 Filed 06/03/22 Page 3 of 7
5.
Defendants deny the allegations contained in this Paragraph. These Defendants are
without sufficient knowledge to form a belief as to the truth of the allegations prior to
their arrival. The remaining allegations constitute speculation and conjecture about the
application of law and facts, including medical information which is available to all
parties, and to which no response is required at this time and the allegations are therefore
denied to the extent they may be construed to seek liability against these defendants.
6.
Defendants deny the allegations contained in this Paragraph. These Defendants are
without sufficient knowledge to form a belief as to the truth of the allegations prior to
their arrival. The remaining allegations constitute speculation and conjecture about the
application of law and facts, including medical information which is available to all
parties, and to which no response is required at this time and the allegations are therefore
denied to the extent they may be construed to seek liability against these defendants.
7.
Defendants deny the allegations contained in Paragraph 7.
EXCESSIVE FORCE
8.
Defendants deny the allegations contained in Paragraph 8.
NEGLIGENT RETENTION, TRAINING, SUPERVISION
AND ABSENCE OF POLICIES, DISCIPLINE AND PROCEDURES
IN VIOLATION OF 42 U.S.C. SECTION 1983
9.
Defendants deny the allegations contained in Paragraph 9.
10.
Defendants deny the allegations contained in this Paragraph. The allegations constitute
speculation and conjecture about the application of law and facts and to which no
response is required at this time and the allegations are therefore denied to the extent they
may be construed to seek liability against these defendants.
3
Case 1:21-cv-00443-RP Document 39 Filed 06/03/22 Page 4 of 7
DAMAGES
11.
Defendants deny all of the allegations contained in Paragraph 11, including subparts a-m.
EXEMPLARY DAMAGES
12.
Defendants deny the allegations contained in Paragraph 12.
PRAYER
No response is required to the "Prayer" included in the Complaint, which begins with the phrase
"WHEREFORE, PREMISES CONSIDERED," as it does not contain any factual allegations. To the
extent any response is required, these defendants deny the allegations in the "Prayer" section of the
Complaint, and further deny that Plaintiff has any valid or supportable basis for any recovery.
AFFIRMATIVE DEFENSES
1.
These defendants deny any deprivation under color of statute, ordinance, custom, or
abuses of any rights, privileges, or immunities secured to the decedent by the United
States Constitution, state law, or 42 U.S.C. § 1983, et seq.
2.
Defendants hereby invoke the doctrine of Qualified Immunity and Official Immunity.
Defendants discharged their obligations and public duties in good faith, and would show
that their actions were objectively reasonable in light of the law and the information
possessed at that time. Defendants are entitled to qualified/official immunity for actions taken
in the course and scope of their employment.
3.
Defendants affirmatively plead that the Plaintiffs' claims are barred in whole or in part
since Enrique Quiroz's acts, intentional or otherwise, were the proximate cause, or a
proximate contributing cause, of the alleged injuries and damages asserted in this case.
Pleading further and in the alternative, Plaintiffs' injuries and damages were caused in
whole or in part by the conduct of other persons or entities for which these defendants are
4
Case 1:21-cv-00443-RP Document 39 Filed 06/03/22 Page 5 of 7
not responsible.
4.
Defendants reserve the right to assert additional affirmative defenses throughout the
development of the case.
5.
Defendants assert that punitive damages are not available and would be contrary to the
protections of the United States Constitution by allowing a jury or fact finder standardless
discretion..
6.
Defendants assert the affirmative defense that Plaintiffs failed to mitigate damages, if any,
and assert this failure to mitigate as both an affirmative defense and as a reduction in the
damage amount, if any, due Plaintiffs.
7.
Defendants assert the affirmative defense of contributory negligence. Plaintiffs' claims
are barred in whole or in part by contributory negligence. Plaintiff's decedent, by his
actions, failed to exercise ordinary care for his safety. His actions contributed at least
fifty-one percent to the alleged injuries and the damages asserted in this case.
8.
Defendants affirmatively plead that the Plaintiffs claims are barred in whole or in part
since Plaintiff's decedent committed intentional acts, for which these defendants have no
responsibility, that were the proximate cause, or a proximate contributing cause, of the
alleged injuries and damages asserted in this case.
9.
The incident in question and the resulting harm to Decedent were caused or contributed
to by Decedent's own illegal conduct.
10.
Pleading further and in the alternative if applicable, Plaintiffs' injuries and damages were
caused in whole or in part by the conduct of other persons or entities who are not
currently parties to this lawsuit.
11.
Pleading further, alternatively, and by way of affirmative defense, Defendants would
5
Case 1:21-cv-00443-RP Document 39 Filed 06/03/22 Page 6 of 7
show that at the time and on the occasion in question, Decedent failed to use care or
caution that a person of ordinary prudence would have used under the same or similar
circumstances, and that such failure was a producing cause or the sole proximate cause of
the incident and alleged damages that arise therefrom. If applicable and subject to
withdrawal, Defendants invoke the comparative responsibility provision of the Texas
Civil Practice & Remedies Code.
12.
Defendants further plead any fault to be reduced by the percentage of the causation found
to have resulted from the acts or omissions of other persons.
13.
Defendants assert the limitations and protections of Chapters 41 & 101 of the Texas Civil
Practice & Remedies code, and the due process clause of the United States Constitution.
14.
To the extent Defendants did not address a specific averment made by Plaintiffs in the
Complaint, Defendants expressly deny all such averments.
15.
Defendants plead that they had legal justification for each and every action taken by them
relating to this incident.
DEFENDANTS' PRAYER
Defendants pray that all relief requested by Plaintiffs be denied, that the Court dismiss
this case with prejudice, and that the Court award Defendants costs and attorney's fees, and any
additional relief to which they are entitled under law or equity.
RESPECTFULLY SUBMITTED,
ANNE L. MORGAN, CITY ATTORNEY
MEGHAN L. RILEY, LITIGATION DIVISION CHIEF
/s/ Monte L. Barton Jr.
MONTE L. BARTON JR.
State Bar No. 24115616
mnonte.barton@austintexas.gov
City of Austin
P.O. Box 1546
6
Case 1:21-cv-00443-RP Document 39 Filed 06/03/22 Page 7 of 7
Austin, Texas 78767-1546
Telephone (512) 974-2409
Facsimile (512) 974-1311
ATTORNEYS FOR DEFENDANTS,
ZANE DOWDELL, LUCAS PARKER,
and WILLIAM LEGGIO
CERTIFICATE OF SERVICE
This is to certify that I have served a copy of the foregoing on all parties or their
attorneys of record, in compliance with the Rules of Federal Procedure, this 3rd day of June,
2022.
Via CM/ECF:
Bobby R. Taylor
Blair J. Leake
State Bar No. 19685500
State Bar No. 24081630
1709 E. Martin L. King Jr. Blvd
bleake@w-g.com
Austin, Texas 78702
Stephen B. Barron
Telephone: (512) 476-4886
State Bar No. 24109619
Facsimile: (512) 476-2818
sbarron@w-g.com
Archie Carl Pierce
ATTORNEY FOR PLAINTIFFS
State Bar No. 5991500
cpierce@w-g.com
WRIGHT & GREENHILL, P.C.
900 Congress Avenue, Suite 500
Austin, Texas 78701
Telephone: (512) 476-4600
Facsimile: (512) 476-5382
ATTORNEY FOR DEFENDANTS
EDUARDO PINEDA and SPENCER HANNA
/s/ Monte L. Barton, Jr.
MONTE L. BARTON JR.
7
Case 1:21-cv-00443-RP Document 44 Filed 12/02/22 Page 1 of 5
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
ENRIQUE QUIROZ, Deceased, through
§
JOSEPHINE SALAZAR, individually, and as
§
next friend of J.R.S., E.F.Q, and E.Q., Minors;
§
MERCEDES QUIROZ, JASMINE QUIROZ,
§
ANDREW RAMIREZ and CHRISTINA
§
ESPINOZA as next friend of H.E., a Minor,
§
Plaintiffs,
§
§
V.
§
No. 1:21-cv-00443-RP
§
OFFICERS EDUARDO PINEDA,
§
SPENCER HANNA, ZANE DOWDELL,
§
LUCAS PARKER, WILLIAM LEGGIO, and
§
CITY OF AUSTIN, TEXAS,
§
Defendants.
§
DEFENDANTS' UNOPPOSED MOTION TO STAY THE CASE
PENDING THE RESOLUTION OF CRIMINAL PROCEEDINGS OF
DEFENDANTS EDUARDO PINEDA AND SPENCER HANNA
TO THE HONORABLE JUDGE OF SAID COURT:
NOW COMES Officer Eduardo Pineda and Officer Spencer Hanna, Defendants in the
above-entitled and numbered cause and file this unopposed motion to stay the case pending the
resolution of the ongoing criminal cases against Defendants Eduardo Pineda and Spencer Hanna,
and in support thereof would respectfully show this Court as follows:
I. FACTUAL BACKGROUND
1.
Based on an amicable conference and agreement between counsel, Magistrate Judge Lane
granted Defendants Pineda and Hanna's Motion to Stay Discovery on January 12, 2022. 1
Magistrate Judge Lane's Order stayed discovery in this matter for 60 (sixty) days, pursuant the
1
Order Granting Motion to Stay Discovery, Dkt. # 28.
Case 1:21-cv-00443-RP Document 44 Filed 12/02/22 Page 2 of 5
parties' agreement as outlined in the Joint Notice. This 60-day discovery stay expired on March
14, 2022. The agreement and order contemplated the right to file an additional motion to stay
discovery after the 60-day stay if the grand jury proceedings and/or any corresponding criminal
prosecutions had not concluded.
2.
On August 16, 2022, the parties filed a Joint Motion for Continuance and to Amend the
Scheduling Order (Dkt. # 42) ("Joint Motion"), because the Travis County Grand Jury had still yet
to convene regarding the potential pending charges against Defendants Pineda and Hanna
pertaining to the incident that forms the basis of this case. This Court granted the parties' Joint
Motion and entered the Second Amended Scheduling Order on August 19, 2022 (Dkt. # 43), setting
the jury trial for November 13, 2023.
3.
Travis County District Attorney Jose Garza issued his latest press release outlining the
current pending Civil Rights Unit Case Summaries on September 30, 2022.2 According to this
latest press release, the Travis County Grand Jury has still yet to convene regarding the potential
charges against Defendant Officers Pineda and Hanna stating, "[t]he case is being jointly
investigated by the Austin Police Department's Special Investigations Unit and the Travis County
District Attorney Office's Civil Rights Unit."
4.
If this case proceeds as currently scheduled, full and open discovery will be frustrated
because Defendants Pineda and Hanna will likely be advised to assert their Fifth Amendment
rights not to testify in response to any eligible discovery request issued to them in this civil lawsuit
2 See Ex. 1, Travis County DA Civil Rights Unit Case Summaries - Sept. 30, 2022, pg. 8
tps://www.traviscountytx.gov/images/district_attorney/docs/Press_Releases/2022/Case_Sum
aries_Sept 30_2022.pdf.
3 Id.
Defendant's Unopposed Motion to Stay Pending Resolution of Criminal Proceedings
Page 2
Case 1:21-cv-00443-RP Document 44 Filed 12/02/22 Page 3 of 5
until their pending criminal jeopardy has been resolved. The parties collectively would prefer that
this case be litigated on the merits after full and open discovery has taken place.
5.
It is unlikely the parties will be able to proceed with their desired full and open discovery
in time to meet important pending deadlines, including Plaintiffs' expert deadline on December
14, 2022.
II. RELIEF REQUESTED
6.
Although some discovery has occurred, any further discovery will certainly involve the
Defendants Pineda and Hanna, and Plaintiff does not want discovery to be frustrated by their
expected Fifth Amendment invocations, nor repeat discovery because Pineda and Hanna were
deprived of the opportunity to cross-examine or otherwise participate in any given deposition.
7.
Fragmented discovery causes undue burden and expense to the Plaintiffs as well as to the
Defendants, and frustrates determining the correct proportionality of discovery and costs to all
parties. The parties have thus shown good cause for the case be stayed pending the outcome of the
potential criminal prosecutions, and this request for a stay is not merely for delay as shown by the
facts set forth herein.
8.
In the alternative, if a stay is not granted, the parties' request the Second Amended
Scheduling Order (Dkt. # 43) be vacated pending the resolution of the grand jury proceedings and
resulting criminal cases, if any.
9.
Counsel for Defendants Pineda and Hanna have conferred with counsel for all parties, and
all counsel have indicated that they are unopposed to and support the relief requested herein.
III. PRAYER FOR RELIEF
10.
WHEREFORE, PREMISES CONSIDERED, Defendants Eduardo Pineda and Spencer
Hanna respectfully requests that this Court grant this unopposed motion to stay discovery pending
Defendant's Unopposed Motion to Stay Pending Resolution of Criminal Proceedings
Page 3
Case 1:21-cv-00443-RP Document 44 Filed 12/02/22 Page 4 of 5
the resolution of the grand jury proceedings and any resulting criminal prosecutions that occur
related to this incident. In the alternative, if the stay is denied, then Defendants request that the
Second Amended Scheduling Order (Dkt. # 43) be vacated until the resolution of the grand jury
proceedings and any resulting criminal prosecutions that occur related to this incident, and for all
other relief to which they may be entitled.
Respectfully submitted,
WRIGHT & GREENHILL, P.C.
4700 Mueller Blvd., Suite 200
Austin, Texas 78723
(512) 476-4600
(512) 476-5382 - Fax
By:
/s/ Blair J. Leake
Blair J. Leake
State Bar No. 24081630
bleake@w-g.com
Stephen B. Barron
State Bar No. 24109619
sbarron@w-g.com
ATTORNEYS FOR DEFENDANTS
EDUARDO PINEDA AND
SPENCER HANNA
CERTIFICATE OF CONFERENCE
On November 15, Defendants' counsel conferred with all counsel via email and all counsel
are unopposed to this motion.
/s/ Blair J. Leake
Blair J. Leake
Defendant's Unopposed Motion to Stay Pending Resolution of Criminal Proceedings
Page 4
Case 1:21-cv-00443-RP Document 44 Filed 12/02/22 Page 5 of 5
CERTIFICATE OF SERVICE
I hereby certify that on the 2nd day of December, 2022, a true and correct copy of the
foregoing document was caused to be served upon all counsel of record via E-File/E-Service/E-
Mail and/or U.S. First Class Mail in accordance with the Federal Rules of Civil Procedure as
follows:
Bobby R. Taylor
bobby@taylor-law.com
THE LAW OFFICE OF BOBBY R. TAYLOR
1709 E. Martin L. King, Jr. Blvd.
Austin, Texas 78702
Monte L. Barton, Jr.
monte.barton@austintexas.gov
City of Austin - Law Department
P.O. Box 1546
Austin, Texas 78767-1546
/s/ Blair J. Leake
Blair J. Leake
Defendant's Unopposed Motion to Stay Pending Resolution of Criminal Proceedings
Page 5
Case 1:21-cv-00443-RP Document 45 Filed 12/05/22 Page 1 of 2
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
ENRIQUE QUIROZ, Deceased, through
§
JOSEPHINE SALAZAR, Individually, and as
§
Next Friend of J.R.S., E.F.Q., and E.Q., et al.,
§
§
Plaintiffs,
§
§
V.
§
1:21-CV-443-RP
§
EDUARDO PINEDA, SPENCER HANNA,
§
et al.,
§
§
Defendants.
§
ORDER
On December 2, 2022, Defendants Eduardo Pineda and Spencer Hanna filed a motion to
this case pending the resolution of Defendants' criminal proceedings. (Dkt. 44). Pineda and Hanna
state that the Travis County Grand Jury has yet to convene regarding potential charges against them.
(Id. at 2). Pineda and Hanna further argue that if the case proceeds as scheduled, discovery will be
frustrated because they will likely be advised to assert their Fifth Amended rights not to testify in
response to discovery requests until their criminal proceedings have been resolved. (Id. at 2-3).
Pineda and Hannah further represent that plaintiffs' counsel is not opposed to this motion. (Id. at 3).
In light of the lack of opposition and for good cause shown, IT IS ORDERED that
Defendants Pineda's and Hanna's Motion to Stay Case is GRANTED.
IT IS FURTHER ORDERED that this case is STAYED pending the resolution of
Defendants Eduardo Pineda and Spencer Hanna's criminal proceedings.
1
Case 1:21-cv-00443-RP Document 45 Filed 12/05/22 Page 2 of 2
IT IS FURTHER ORDERED that the parties shall file quarterly status reports to keep
the Court apprised of the progress of the criminal proceedings and any other relevant matters. The
first joint status report shall be filed on or before March 5, 2023.
SIGNED on December 5, 2022.
Room
ROBERT PITMAN
UNITED STATES DISTRICT JUDGE
2
Case 1:21-cv-00443-RP Document 46 Filed 03/14/23 Page 1 of 1
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
ENRIQUE QUIROZ, Deceased, through
§
JOSEPHINE SALAZAR, individually, and as
§
Next Friend if J.R.S., E.F.Q., and E.G., et al.,
§
§
Plaintiffs,
§
§
V.
§
1:21-CV-443-RP
§
EDUARD PINEDA, SPENCER HANNA,
§
et al.,
§
§
Defendants.
§
ORDER
This Court entered stay in this case on December 5, 2022. (Dkt. 45). The Court ordered the
parties to file a status report on or before March 5, 2023. (Id.). The parties failed to file a status
report on or before March 5, 2023.
The parties are ORDERED to file a status report on or before March 28, 2023. Failing to
do SO may result in the Court issuing an order to show cause why the Court should not enter default
judgment in favor of Plaintiff.
SIGNED on March 14, 2023.
Room
ROBERT PITMAN
UNITED STATES DISTRICT JUDGE
Case 1:21-cv-00443-RP Document 47 Filed 03/15/23 Page 1 of 3
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
ENRIQUE QUIROZ, Deceased, through
§
JOSEPHINE SALAZAR, individually, and as
§
next friend of J.R.S., E.F.Q, and E.Q., Minors;
§
MERCEDES QUIROZ, JASMINE QUIROZ,
§
ANDREW RAMIREZ and CHRISTINA
§
ESPINOZA as next friend of H.E., a Minor,
§
Plaintiffs,
§
§
V.
§
No. 1:21-cv-00443-RP
§
OFFICERS EDUARDO PINEDA,
§
SPENCER HANNA, ZANE DOWDELL,
§
LUCAS PARKER, WILLIAM LEGGIO, and
§
CITY OF AUSTIN, TEXAS,
§
Defendants.
§
FIRST JOINT STATUS REPORT REGARDING
PENDING CRIMINAL PROCEEDINGS AGAINST
DEFENDANTS EDUARDO PINEDA AND SPENCER HANNA
TO THE HONORABLE UNITED STATES DISTRICT JUDGE:
1.
The parties file this quarterly joint status report pursuant to this Court's December 5, 2022
and March 14, 2023 Orders. 1 The parties also collectively sincerely apologize to this Court for
having failed to file a joint status report in the allotted time and have worked to file this pleading
as promptly as possible once the error was highlighted by the Court.
2.
Travis County District Attorney Jose Garza issued his latest press release outlining the
current pending Civil Rights Unit Case Summaries on February 23, 2023.2 Prior iterations of the
1 Orders, Dkts. # 45 - 46.
2 See Travis County DA Civil Rights Unit Case Summaries - Feb. 23, 2023, pg. 7
https://www.traviscountytx.gov/images/district_attorney/docs/Press_Releases/2023/Case Summ
aries_February _23 _2023.pdf.
First Joint Status Report Regarding Defendants' Pending Criminal Proceedings
Page 1
Case 1:21-cv-00443-RP Document 47 Filed 03/15/23 Page 2 of 3
same civil rights report identified specific expected grand jury presentation dates-at least
roughly-for each listed case. However, the District Attorney's Office has now chosen to assign
seventeen cases a "grand jury term of presentation" date of "TBD," including the grand jury
presentation for the case at bar. Six other cases are purported to have been scheduled for a grand
jury presentation in January of 2023.
3.
The parties are thus still waiting for the District Attorney's Office to present the subject
incident to a grand jury before civil proceedings herein can begin again once the jointly agreed
upon stay has been lifted.
Respectfully submitted,
WRIGHT & GREENHILL, P.C.
4700 Mueller Blvd., Suite 200
Austin, Texas 78723
(512) 476-4600
(512) 476-5382 - Fax
By:
/s/ Blair J. Leake
Blair J. Leake
State Bar No. 24081630
bleake@w-g.com
Stephen B. Barron
State Bar No. 24109619
sbarron@w-g.com
ATTORNEYS FOR DEFENDANTS
EDUARDO PINEDA AND
SPENCER HANNA
- AND -
BOBBY R. TAYLOR
1709 E. Martin L. King, Jr. Blvd.
Austin, Texas 78702
Tel. (512) 476-4886
Fax (512) 476-2818
By: /s/ / Bobby R. Taylor
Bobby R. Taylor
State Bar No. 19685500
bobby@taylor-law.com
ATTORNEY FOR PLAINTIFF
First Joint Status Report Regarding Defendants Pending Criminal Proceedings
Page 2
Case 1:21-cv-00443-RP Document 47 Filed 03/15/23 Page 3 of 3
CERTIFICATE OF SERVICE
I hereby certify that on the 15th day of March, 2023, a true and correct copy of the
foregoing document was caused to be served upon all counsel of record via E-File/E-Service/E-
Mail and/or U.S. First Class Mail in accordance with the Federal Rules of Civil Procedure as
follows:
Bobby R. Taylor
bobby@taylor-law.com
THE LAW OFFICE OF BOBBY R. TAYLOR
1709 E. Martin L. King, Jr. Blvd.
Austin, Texas 78702
Monte L. Barton, Jr.
monte.barton@austintexas.gov
City of Austin - Law Department
P.O. Box 1546
Austin, Texas 78767-1546
/s/ Blair J. Leake
Blair J. Leake
First Joint Status Report Regarding Defendants Pending Criminal Proceedings
Page 3
Case 1:21-cv-00443-RP Document 48 Filed 06/02/23 Page 1 of 3
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
ENRIQUE QUIROZ, Deceased, through
§
JOSEPHINE SALAZAR, individually, and as
§
next friend of J.R.S., E.F.Q, and E.Q., Minors;
§
MERCEDES QUIROZ, JASMINE QUIROZ,
§
ANDREW RAMIREZ and CHRISTINA
§
ESPINOZA as next friend of H.E., a Minor,
§
Plaintiffs,
§
§
V.
§
No. 1:21-cv-00443-RP
§
OFFICERS EDUARDO PINEDA,
§
SPENCER HANNA, ZANE DOWDELL,
§
LUCAS PARKER, WILLIAM LEGGIO, and
§
CITY OF AUSTIN, TEXAS,
§
Defendants.
§
SECOND JOINT STATUS REPORT REGARDING
PENDING CRIMINAL PROCEEDINGS AGAINST
DEFENDANTS EDUARDO PINEDA AND SPENCER HANNA
TO THE HONORABLE UNITED STATES DISTRICT JUDGE:
1.
The parties file this quarterly joint status report pursuant to this Court's December 5, 2022
Order (Dkt. # 45).
2.
Travis County District Attorney Jose Garza issued his latest press release outlining the
current pending Civil Rights Unit Case Summaries on April 19, 2023.¹ Prior iterations of the same
civil rights report identified specific expected grand jury presentation dates-at least roughly-for
each listed case. However, the District Attorney's Office has now chosen to assign fourteen cases
a "grand jury term of presentation" date of "TBD," including the grand jury presentation for the
1 See Travis County DA Civil Rights Unit Case Summaries - Apr. 19, 2023, pg. 7
https://www.traviscountytx.gov/images/district_attorney/docs/Press_Releases/2023/Case_Summ
aries_April_19_2023.pdf.
Second Joint Status Report Regarding Defendants' Pending Criminal Proceedings
Page 1
Case 1:21-cv-00443-RP Document 48 Filed 06/02/23 Page 2 of 3
case at bar. Three other cases are purported to have been scheduled for a grand jury presentation
in January of 2023.
3.
The parties are thus still waiting for the District Attorney's Office to present the subject
incident to a grand jury before civil proceedings herein can begin again once the jointly agreed
upon stay has been lifted.
Respectfully submitted,
WRIGHT & GREENHILL, P.C.
4700 Mueller Blvd., Suite 200
Austin, Texas 78723
(512) 476-4600
(512) 476-5382 - Fax
By:
/s/ Blair J. Leake
Blair J. Leake
State Bar No. 24081630
bleake@w-g.com
Stephen B. Barron
State Bar No. 24109619
sbarron@w-g.com
ATTORNEYS FOR DEFENDANTS
EDUARDO PINEDA AND
SPENCER HANNA
- AND -
BOBBY R. TAYLOR
1709 E. Martin L. King, Jr. Blvd.
Austin, Texas 78702
Tel. (512) 476-4886
Fax (512) 476-2818
By:
/s/ Bobby R. Taylor
Bobby R. Taylor
State Bar No. 19685500
bobby@taylor-law.com
ATTORNEY FOR PLAINTIFF
Second Joint Status Report Regarding Defendants' Pending Criminal Proceedings
Page 2
Case 1:21-cv-00443-RP Document 48 Filed 06/02/23 Page 3 of 3
CERTIFICATE OF SERVICE
I hereby certify that on the 2nd day of June, 2023, a true and correct copy of the foregoing
document was caused to be served upon all counsel of record via E-File/E-Service and/or E-Mail
in accordance with the Federal Rules of Civil Procedure as follows:
Bobby R. Taylor
bobby@taylor-law.com
THE LAW OFFICE OF BOBBY R. TAYLOR
1709 E. Martin L. King, Jr. Blvd.
Austin, Texas 78702
Monte L. Barton, Jr.
monte.barton@austintexas.gov
City of Austin - Law Department
P.O. Box 1546
Austin, Texas 78767-1546
/s/ Blair J. Leake
Blair J. Leake
Second Joint Status Report Regarding Defendants Pending Criminal Proceedings
Page 3
Case 1:21-cv-00443-RP Document 49 Filed 09/05/23 Page 1 of 3
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
ENRIQUE QUIROZ, Deceased, through
§
JOSEPHINE SALAZAR, individually, and as
§
next friend of J.R.S., E.F.Q, and E.Q., Minors;
§
MERCEDES QUIROZ, JASMINE QUIROZ,
§
ANDREW RAMIREZ and CHRISTINA
§
ESPINOZA as next friend of H.E., a Minor,
§
Plaintiffs,
§
§
V.
§
No. 1:21-cv-00443-RP
§
OFFICERS EDUARDO PINEDA,
§
SPENCER HANNA, ZANE DOWDELL,
§
LUCAS PARKER, WILLIAM LEGGIO, and
§
CITY OF AUSTIN, TEXAS,
§
Defendants.
§
THIRD JOINT STATUS REPORT REGARDING
PENDING CRIMINAL PROCEEDINGS AGAINST
DEFENDANTS EDUARDO PINEDA AND SPENCER HANNA
TO THE HONORABLE UNITED STATES DISTRICT JUDGE:
1.
The parties file this quarterly joint status report pursuant to this Court's December 5, 2022
Order (Dkt. # 45).
2.
Travis County District Attorney Jose Garza issued his latest press release outlining the
current pending Civil Rights Unit Case Summaries on June 30, 2023. 1 Prior iterations of the same
civil rights report identified specific expected grand jury presentation dates-at least roughly-for
each listed case. However, the District Attorney's Office has now chosen to assign thirteen cases
a "grand jury term of presentation" date of "TBD," including the grand jury presentation for the
1
See Travis County DA Civil Rights Unit Case Summaries - June 30, 2023, pg. 7
https://www.traviscountytx.gov/images/district_attorney/docs/Press_Releases/2023/PR_Case_Su
immaries_June _30 _2023.pdf.
Third Joint Status Report Regarding Defendants' Pending Criminal Proceedings
Page 1
Case 1:21-cv-00443-RP Document 49 Filed 09/05/23 Page 2 of 3
case at bar. Two other cases are purported to have been scheduled for a grand jury presentation in
January of 2023.
3.
The parties are thus still waiting for the District Attorney's Office to present the subject
incident to a grand jury before civil proceedings herein can begin again once the jointly agreed
upon stay has been lifted.
Respectfully submitted,
WRIGHT & GREENHILL, P.C.
4700 Mueller Blvd., Suite 200
Austin, Texas 78723
(512) 476-4600
(512) 476-5382 - Fax
By:
/s/ Blair J. Leake
Blair J. Leake
State Bar No. 24081630
bleake@w-g.com
Stephen B. Barron
State Bar No. 24109619
sbarron@w-g.com
ATTORNEYS FOR DEFENDANTS
EDUARDO PINEDA AND
SPENCER HANNA
- AND -
ANNE L. MORGAN, CITY ATTORNEY
MEGHAN L. RILEY, LITIGATION
DIVISION CHIEF
By:
/s/ Monte L. Barton Jr.
MONTE L. BARTON JR.
State Bar No. 24115616
monte.barton@austintexas.gov
City of Austin
P.O. Box 1546
Austin, Texas 78767-1546
Telephone (512) 974-2409
Facsimile (512) 974-1311
ATTORNEYS FOR DEFENDANT
CITY OF AUSTIN
Third Joint Status Report Regarding Defendants' Pending Criminal Proceedings
Page 2
Case 1:21-cv-00443-RP Document 49 Filed 09/05/23 Page 3 of 3
CERTIFICATE OF SERVICE
I hereby certify that on the 5th day of September, 2023, a true and correct copy of the
foregoing document was caused to be served upon all counsel of record via E-File/E-Service
and/or E-Mail in accordance with the Federal Rules of Civil Procedure as follows:
Bobby R. Taylor
bobby@taylor-law.com
THE LAW OFFICE OF BOBBY R. TAYLOR
1709 E. Martin L. King, Jr. Blvd.
Austin, Texas 78702
Monte L. Barton, Jr.
monte.barton@austintexas.gov
City of Austin - Law Department
P.O. Box 1546
Austin, Texas 78767-1546
/s/ Blair J. Leake
Blair J. Leake
Third Joint Status Report Regarding Defendants' Pending Criminal Proceedings
Page 3
Case 1:21-cv-00443-RP Document 50 Filed 09/26/23 Page 1 of 1
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
QUIROZ et al,
§
§
Plaintiffs,
§
§
V.
§
1-21-CV-443-RP
§
PINEDA et al,
§
§
Defendants.
§
ORDER
IT IS ORDERED that the trial date of November 13, 2023 is VACATED.
IT IS ORDERED that the parties shall continue to file quarterly status reports pursuant to
this Court's previous order, (Dkt. 45), to keep the Court apprised of the progress of the criminal
proceedings and any other relevant matters.
The Court will revisit scheduling at a later date.
SIGNED on September 26, 2023.
Room
ROBERT PITMAN
UNITED STATES DISTRICT JUDGE