Reyes V. The City of Austin; Austin Police Department; Troy Wismar, Christopher Carlisle, Patrick Walsh, Kyu Suk, Sarah Foster, Greg MacCormack; Other Responsible “John Doe” Parties to be Named Later

Case 1:19-cv-00367-LY Document 1 Filed 03/29/19 Page 1 of 3
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
19 MAP 29 PH 4 : 46 5
AUSTIN DIVISION
CLE
IXAS
Julian M. Reyes
Plaintiff
§
A19CV0367 LY
§
V.
§
Case no.
§
OFFICERS QUINT SEBEK, Badge
§
3454, SGT VALLEJO, CAPN RYAN.
AUSTIN POLICE DEPARTMENT,
§
and other responsible "JOHN DOE"
§
parties to b named later through the
proper discovery of evidence,
§
all individually and in their official
capacities
Defendants
ORIGINAL COMPLAINT
1. PLAINTIFF Julian M. Reyes, in Austin, Travis County, Texas, U.S.A..
2. Defendants being: City of Austin, Austin Police Department and the following Police
Department Officer employees of the Public: Quint Sebek (#3454), Sergeant Vallejo,
Captain Ryan and other public officials and officers to be named through the discovery
of evidence to follow as much of this info is kept solely by the City and it's gatekeepers
from the Public. Address to City of Austin Legal is 301 W. 2nd St Austin, Texas 78701.
APD ,bat 715E8th St Austin Texas
78701
3. I request Western District Court of the U.S.A. in Austin, to try my Civil Complaint
involving 1st, 4th, 14th Constitutional Amendments violations under section 42 1983 as
well as 1985 Conspiracy of Parties. As multiple agents of Municipal government were
involved in this crime against myself and essentially the rights afforded to all the
Citizens and the Free Press.
Case 1:19-cv-00367-LY Document 1 Filed 03/29/19 Page 2 of 3
This Court has Jurisdiction in this case and in Travis, County, Texas, United States of
America.
4. On or about April 1st, 2017 in the City of Austin, Travis County, Texas, U.S.A. under
this Court's functional jurisdiction, corporal Quint Sebek did falsely target and arrest me
while I was involved in the exercise of filming the Austin police in Public. This was an
exercise of our constitutionally protected Rights under law. And the subsequent police
interference with false arrest did act to prevent full transparency under law, was
retaliatory and a violation of law. All charges were dropped as there was no merit on
prima fascia evidence for any charges or arrest. Also present were multiple other
officers, including the Supervisors listed above: Sergeant Vallejo, and Captain Ryan. I
do not have all the agents that were present and complicit, their full names or badge
numbers yet. I will be awaiting proper discovery of evidence.
Prior to the arrest I informed Corporal QUINT SEBEK, defendant listed, that I had a
parking receipt to be on the Public Property. He refused to allow me to show it, refused
a proper investigation, and immediately retaliated for me filming in a Public Place by
stealing my freedoms, violating my Rights and falsely charging and arresting me. I
informed Sergeant Vallejo and Captain Ryan of the false arrest and crimes being
committed. They did nothing to investigate the legitimacy of the arrest or to assist me
with anything positive. I personally told each of them at that time that I was protected
under Federal law and that this action was a false retaliatory arrest and a crime. None
of the agents or supervisors acting under color of law and as individuals would cease
the criminal actions, further showing their conspiracy of parties against my person, my
Rights and the rule of peace and laws of our United States of America.
They acted in conspiracy to deprive me and thereby the Citizenry and it's Free Press of
our Rights, Freedoms and Transparency under law.
Corporal Quint Sebek put me into handcuffs, and sent me to jail. I spent time in jail. And
we all deserve Justice and our day in a Jury Trial. No Justice, no Peace. Simply put.
Case 1:19-cv-00367-LY Document 1 Filed 03/29/19 Page 3 of 3
A Police Complaint was filed under law with the Office of Police Monitor. They are very
dismissive or Citizens' complaints. Internal Affairs also dismisses complaints without
further contact with the complainant. The System of Police Accountability and
Transparency in Austin, Texas is broken and this is my last remedy for our grievances.
Hear my prayers for Justice and Change.
5. Julian Reyes, is pro se, Plaintiff, and is seeking full damages for all losses, time and
for the Constitutional and other violations of Law specified above and in further
amendments. Punishments and charges for the responsible parties. And injunctions to
protect the Citizens and Press of Austin from further stalking, retaliation and harassment
of the Austin Police Department and their agents, acting alone or in groups, most
especially those in solved in filming police intersections in Public. Reyes is also seeking
remedy and mediation on the issues of training, Justice and patterns and procedures
that lead up to this egregious incident by Austin Police Department and the City of
Austin.
6. I, Julian Reyes, pro se litigant, with no formal training in law, requests the Court
Assign legal counsel and and allow legal access to expert assistance as necessary for
Citizens of indigency seeking Justice, like myself.
Just
324/2019
Signature
Date
Julian M. Reyes
1712 E. Riverside Dr. #357,
Austin, Texas, 78741
julian.reyes.human@gmail.com
512 785-1749
Case 1:19-cv-00367-LY Document 1-1 Filed 03/29/19 Page 1 of 1
JS 44 (Rev. 06/17)
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
Julian Reyes
Officers Quint Sebek, Vallejo, Ryan
Ausin Police Department etal
(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)
pro se
A19CV0367
torn Known,
(If
LY
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
1983
PTF
DEF
PTF
DEE
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
SOCIAL SECURITY
480 Consumer Credit
of Veteran's Benefits
350 Motor Vehicle
370 Other Fraud
710 Fair Labor Standards
861 HIA (1395ff)
490 Cable/Sat TV
160 Stockholders' Suits
355 Motor Vehicle
371 Truth in Lending
Act
862 Black Lung (923)
850 Securities/Commodities/
190 Other Contract
Product Liability
380 Other Personal
720 Labor/Management
863 DIWC/DIWW (405(g))
Exchange
195 Contract Product Liability
360 Other Personal
Property Damage
Relations
864 SSID Title XVI
890 Other Statutory Actions
196 Franchise
Injury
385 Property Damage
740 Railway Labor Act
865 RSI (405(g))
891 Agricultural Acts
362 Personal Injury
Product Liability
751 Family and Medical
893 Environmental Matters
Medical Malpractice
Leave Act
895 Freedom of Information
REAL PROPERTY
CIVIL RIGHTS
PRISONER PETITIONS
790 Other Labor Litigation
FEDERAL TAX SUITS
Act
210 Land Condemnation
440 Other Civil Rights
Habeas Corpus:
791 Employee Retirement
870 Taxes (U.S. Plaintiff
896 Arbitration
220 Foreclosure
441 Voting
463 Alien Detainee
Income Security Act
or Defendant)
899 Administrative Procedure
230 Rent Lease & Ejectment
442 Employment
510 Motions to Vacate
871 IRS-Third Party
Act/Review or Appeal of
240 Torts to Land
443 Housing/
Sentence
26 USC 7609
Agency Decision
245 Tort Product Liability
Accommodations
530 General
950 Constitutionality of
290 All Other Real Property
445 Amer. w/Disabilities
535 Death Penalty
IMMIGRATION
State Statutes
Employment
Other:
462 Naturalization Application
446 Amer. w/Disabilities
540 Mandamus & Other
465 Other Immigration
Other
550 Civil Rights
Actions
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
1983
Cite the you are not cite statutes unless
VI. CAUSE OF ACTION
U.S. 1st Civil Statute 4th under 214th which filing Amendment (Do jurisdictional to tution 4 1985
Brief description of cause:
Conspiracy of Parkies, PoliceRetaliz
VII. REQUESTED IN
CHECK IF THIS IS A CLASS ACTION
DEMAND
COMPLAINT:
$1,000,000
CHECK YES only if demanded in complaint:
UNDER RULE 23, F.R.Cv.P.
JURY DEMAND:
Yes
No
VIII. RELATED CASE(S)
IF ANY
(See instructions):
requires For Mer iuestigation-TBD
JUDGE
DOCKET NUMBER
DATE
3-29-19
FOR OFFICE USE ONLY
Giten SIGNATURE OF ATTORNEY Line OF RECORD Pro Se
RECEIPT #
AMOUNT
APPLYING IFP
JUDGE Yeakel
MAG. JUDGE
Case 1:19-cv-00367-LY Document 17 Filed 06/13/19 Page 1 of 5
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
JULIAN M. REYES,
§
Plaintiff,
§
§
V.
§
CIVIL ACTION NO. 1:19-cv-00367-LY
§
OFFICERS QUINT SEBEK, BADGE
§
3454, SGT VALLEJO, CAPN RYAN,
§
AUSTIN POLICE DEPARTMENT, AND
§
OTHER RESPONSIBLE "JOHN DOE"
§
PARTIES TO BE NAMED LATER
§
THROUGH DISCOVERY OF
§
EVIDENCE, ALL INDIVIDUALLY AND
§
IN THEIR OFFICIAL CAPACITIES,
§
Defendants.
§
DEFENDANTS' ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFF'S
ORIGINAL COMPLAINT
TO THE HONORABLE JUDGE LEE YEAKEL:
Defendants Quint Sebek, Carlos Vallejo, and "Captain Ryan" file this Answer and
Affirmative Defenses to Plaintiff's Original Complaint (Doc. No. 1). Pursuant to Rules 8 and 12
of the Federal Rules of Civil Procedure, Defendants respectfully show the Court the following:
ORIGINAL ANSWER
Pursuant to Federal Rule of Civil Procedure 8(b), Defendants respond to each of the
specific averments in Plaintiff's Complaint as set forth below. To the extent that Defendants do
not address a specific averment made by Plaintiff, Defendants expressly deny that averment. 1
DEFENDANTS' RESPONSES
1.
Upon information and belief, Defendants admit the allegations contained in Paragraph 1 of
the Complaint.
1 Paragraph numbers in Defendant's Answer correspond to the paragraphs in Plaintiff's Original Complaint.
Case 1:19-cv-00367-LY Document 17 Filed 06/13/19 Page 2 of 5
2.
Defendants Quint Sebek, and Carlos Vallejo admit that Plaintiff has named them as
defendants in this lawsuit. Defendants are not certain of the correct identity of named
defendant "Captain Ryan," and out of an abundance of caution, answer the complaint on
his or her behalf.
3.
Defendants admit that this Court has jurisdiction of this case but deny the remaining
allegations contained in Paragraph 3 of the Complaint.
4.
Defendants deny the allegations contained in the first paragraph of Paragraph 4 except to
admit that Plaintiff Julian Reyes was arrested and taken to jail. Defendants deny the
remaining allegations of Paragraph 4 of the Complaint.
5.
Defendants deny the allegations contained in Paragraph 5 of the Complaint.
6.
Defendants deny the allegations contained in Paragraph 6 of the Complaint.
AFFIRMATIVE DEFENSES
1.
Defendants assert the affirmative defense of qualified/official immunity for actions taken
in the course and scope of their employment.
2.
Defendants assert the affirmative defense of statute of limitations as to all claims outside
the applicable limitations period(s), both statutory and administrative, if any, including
claims lost due to insufficient service of process.
3.
Defendants assert the affirmative defense of contributory negligence. Plaintiff's claims are
barred in whole or in part by Plaintiff's contributory negligence. Plaintiff, by his actions,
failed to exercise ordinary care for his own safety and if he suffered injuries, which is
otherwise denied, his own actions contributed in at least fifty-one percent if not more to
any such alleged injuries and to any and all damages asserted in this case.
Case 1:19-cv-00367-LY Document 17 Filed 06/13/19 Page 3 of 5
4.
Defendants affirmatively plead that the Plaintiff's claims are barred in whole or in part
since Plaintiff's intentional acts were the proximate cause, or a proximate contributing
cause, of his alleged injuries and damages, if any, asserted in this case.
5.
Defendants assert the affirmative defense that Plaintiff 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 Plaintiff.
6.
Defendants assert that Plaintiff has failed to state a claim upon which relief can be granted
and therefore the Plaintiff's claims should be dismissed pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure.
7.
Defendants assert the affirmative defense of insufficient service of process.
8.
Defendants reserve the right to assert additional affirmative defenses throughout the
development of the case.
DEFENDANTS' PRAYER
Defendants Quint Sebek, Carlos Vallejo and "Captain Ryan" pray that all relief requested
by Plaintiff be denied, and that the Court dismiss the Plaintiff's claims with prejudice and award
Defendants their costs and attorney's fees, and any additional relief to which they are entitled under
law or equity.
RESPECTFULLY SUBMITTED,
ANNE MORGAN, CITY ATTORNEY
MEGHAN L. RILEY, CHIEF LITIGATION
/s/ David May
DAVID MAY
State Bar No. 24092778
Telephone: (512) 974-2342
David.may@austintexas.gov
H. GRAY LAIRD III
State Bar No. 24087054
Case 1:19-cv-00367-LY Document 17 Filed 06/13/19 Page 4 of 5
Telephone: (512) 974-1342
gray.laird@austintexas.gov
City of Austin - Law Department
P.O. Box 1546
Austin, Texas 78767-1546
Facsimile: (512) 974-1311
ATTORNEYS FOR DEFENDANTS
Case 1:19-cv-00367-LY Document 17 Filed 06/13/19 Page 5 of 5
CERTIFICATE OF SERVICE
I
certify that on the 13 day of June, 2019, I served a copy of Defendants' Answer and
Affirmative Defenses on Plaintiff, via first class mail and email in compliance with the Federal
Rules of Civil Procedure.
Via CM/ECF:
Julian M. Reyes
1712 E Riverside Dr. #357
Austin, Texas 78741
Julian.reyes.human@gmail.com
512-785-1749
PRO SE
/s/ David May
DAVID MAY
Case 1:19-cv-00367-LY Document 18 Filed 06/28/19 Page 1 of
3
FILED
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
2019 JUN 28 PM 4: 18
AUSTIN DIVISION
WESTERND
COURT
OF TEXAS
BY
Julian M. Reyes
§
Ej.
DEPUTY
Plaintiff
§
V.
§
Case no. 1:19-cv-00367
§
OFFICERS QUINT SEBEK, Badge
§
3454, SGT VALLEJO, CAPN RYAN,
AUSTIN POLICE DEPARTMENT.
§
and other responsible "JOHN DOE"
§
parties to b named later through the
proper discovery of evidence,
§
all individually and in their official
capacities
Defendants
PLAINTIFF'S MOTION FOR APPOINTMENT OF COUNSEL
Comes now, the PLAINTIFF, Julian M. Reyes, respectfully requests appointment of
counsel as provided in 42 U.S.C $2000e-5(f)(1).
In support thereof, Plaintiff will show the following:
I.
That Plaintiff has made a diligent effort to employ counsel.
I have contacted several Civil Rights attorneys, ACLU, Austin Lawyer's guild, and etc.
I have CONTACTED PRIVATE ATTORNEYS. (List all attorneys who specialize in labor
law, employment discrimination or civil rights complaints you contacted and state why
each would not represent you.) | contacted Daphne Silverman, who is not interested in
Civil cases right now. And Millie Thompson who has refused to give me a reason for no
response. And the ACLU of Texas who also did not give reason. I have contacted
Macomb Greenstein and am awaiting a response. And | have contacted several other
Austin attorneys.
I have CONTACTED LEGAL AID ASSOCIATION. (Texas Rio Grande Legal Aid Inc.:
1 of 3
Case 1:19-cv-00367-LY Document 18 Filed 06/28/19 Page 2 of
3
(888) 988-9996 (State when this association was contacted and why it could not assist
you.) They said that I qualify but that they cannot help me with this type of case.
I
have already CONTACTED LOCAL LAWYER REFERRAL SERVICE. (San Antonio
Bar Association Lawyer Referral Service: (210) 227-1853). (List the lawyers to whom
you were referred, the attorneys you contacted, and why they could not assist you.)
They told me like I said before, that they do not help Citizens with police abuse cases
and that none of their lawyers do. Which is offensive to the rule of law and Justice for
all.
II.
Please state your level of education: College Degree in Asian and Environmental
studies in the mid-1990's. But no law school or law training. I am pro se and a layman
on this case without understanding of the language, rules, and procedures of this Court
and need assistance with the motions, filings, deadlines, discovery and other legal
issues in this case.
III.
Please state your employment for the last five years beginning with your most current
employment:
Employer: self-employed organic gardener and artist, part-time. Gardener for last 8
years. Artist for about 3 years now.
Salary/Wages per Month: less than $400 per month usually. Not consistent. Last year
I
believe I made between $6000-7000 total in wages and art sales.
IV.
Plaintiff is financially unable to hire counsel for the reasons stated in the attached
Application to Proceed In Forma Pauperis. (Please complete the attached Application to
Proceed In Forma Pauperis)
| declare (or certify, verify, or state) under penalty of perjury that the foregoing is true
and correct.
Not only does this Court have Jurisdiction, I have Standing in this case and the Case
has Merit as it involved (Turner V Driver, etc. ) constitutionally protected Civil Rights and
exercises. It is not frivolous in any respect. However, at present I am still concerned that
I do not actually comprehend the extremely complex and purposefully unattainable
Federal Rules and Procedures and relevant Case Law/Restrictions that would allow me
to properly state this claim and instruct the Court properly on this case involving my
arrest for filming the Austin police in Public, a First Amendment exercise as also
2 of 3
Case 1:19-cv-00367-LY Document 18 Filed 06/28/19 Page 3 of 3
established in multiple cases including Turner V Driver. As I have little access to law and
resources and do not know how to properly research cases as the Defendents'
attorneys do. As I have no counsel presently and yet I have contacted the TRGLA,
TCJC, TCRP, ACLU and Southern Poverty Law Center, Austin Lawyers' Guild, Texas
Appleseed, UT Law School Civil Rights Clinic among others and have not gotten any
help yet.
I
am in the condition of being lost and without counsel seeking Justice for All. For proper
Discovery of Evidence or when there is a qualified attorney assisting in Justice on this
case and access to Justice for pro se pauperis Citizens seeking remedy.
As this case progresses and becomes more difficult to proceed without Counsel, legal
assistance, discovery, RROG, and Depo help, or forensic experts.
- Requests leave to attempt to find an attorney.
- Plaintiff requests Counsel, legal assistance, evidentiary assistance be assigned by the
Court. In the interests of legal access. In the interests of Justice and fairness. In the
interests of protecting all those Citizens that would film the Police, a Constitutionally-
protected exercise.
- Our Rights are at stake of being denied without merits, without evidence, without
recourse.
This Court should grant leave on these issues to the Plaintiff as he is homeless, indigent
and operating without proper training in Law or proper Counsel. A disadvantage that
should be obvious to all involved.
I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true
and correct.
m 28/2019
Signature
Date
Julian M. Reyes
1712 E. Riverside Dr. #357,
Austin, Texas, 78741
julian.reyes.human@gmail.com
512 785-1749
3 of 3
Case 1:19-cv-00367-LY Document 19 Filed 06/28/19 Page 1 of
2
FILED
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
2019 JUN 28 PM 4: 17
AUSTIN DIVISION
CLERK US DISTRICT COURT
WESTERN DISTRICT OF TEXAS
Julian M. Reyes
BY
Plaintiff
DEPUTY
§
§
G
V.
§
Case no. 1:19-cv-00367
§
OFFICERS QUINT SEBEK, Badge
§
3454, SGT VALLEJO, CAPN RYAN,
AUSTIN POLICE DEPARTMENT,
§
and other responsible "JOHN DOE"
§
parties to b named later through the
proper discovery of evidence,
§
all individually and in their official
capacities
Defendants
PLAINTIFF'S MOTION FOR ASSISTANCE WITH EFILE AND FOR LEAVE
Comes now, the PLAINTIFF, Julian M. Reyes, respectfully requests the following.
I. E-File.
I request assistance as I am unable to download and open the file registration form
online, which as I recall has happened before in other cases. I called the court and the
clerk advised me to fill out the form, which is incompatible with my software. Although I
can download other PDF documents. Please mail me a hard copy so that I can comply
with the Court's orders to e-file. Or the case will be delayed due to the slowness of snail
mail. E-filing is preferred as I am indigent and it is a burden for me to pay for multiple
copies of print documents and to have to pay to park and travel in Austin traffic to get
them to you. Causing me not to be able to take care of my work, personal and medical
needs. The error is that it is not a standard PDF document.
II. Leave for response to Defendant's response to the original complaint in this case.
Plaintiff who seeks Justice for false arrest and police abuse. Plaintiff is in the condition
of being lost and without counsel seeking Justice for All. For proper Discovery of
Evidence or when there is a qualified attorney assisting in Justice on this case and
1 of 2
Case 1:19-cv-00367-LY Document 19 Filed 06/28/19 Page 2 of 2
access to Justice for pro se pauperis Citizens seeking remedy.
As this case progresses and becomes more difficult to proceed without Counsel, legal
assistance, discovery, RROG, and Depo help, or forensic experts.
- Requests 180 days leave to attempt to find an attorney or have one assigned by the
Court.
-
Plaintiff has submitted a request for Counsel, legal assistance, evidentiary assistance
be assigned by the Court. In the interests of legal access. In the interests of Justice
and fairness. In the interests of protecting all those Citizens that would film the Police,
a Constitutionally-protected exercise.
- Our Rights are at stake of being denied without merits, without evidence, without
recourse.
This Court should grant leave and assign counsel to the Plaintiff as he is homeless,
indigent and operating without proper training in Law or proper Counsel. A disadvantage
that should be obvious to all involved.
I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true
and correct.
June
/2019
Signature
Date
Julian M. Reyes
1712 E. Riverside Dr. #357,
Austin, Texas, 78741
julian.reyes.human@gmail.com
512 785-1749
2 of 2
Case 1:19-cv-00367-LY Document 21 Filed 11/01/19 Page 1 of
4
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
JULIAN M. REYES,
§
§
Plaintiff,
§
V.
§
§
A-19-CV-367-LY
OFFICER QUINT SEBEK, ET AL.
§
Defendants.
§
ORDER
Plaintiff's Motion for Appointment of Counsel (Dkt. #18) is before the court. 1 Plaintiff
Julian M. Reyes brings this case under 42 U.S.C. §§ 1983 and 1985 for violations of his 1st, 4th,
and 14th Amendment rights. Reyes alleges he was arrested on April 1, 2017 in Austin, Texas by
Corporal Quint Sebek. Dkt. #1 (Complaint) at I 4. He alleges his arrest was unlawful and in
retaliation for his filming the Austin police in public. Id. He further alleges he spent some time
in jail, but all charges against him were dropped because they had no merit. Id. He contends
defendants Sergeant Vallejo and Captain Ryan were present at his arrest and he informed them
of baselessness of his arrest, but they did not intervene. Id. The court previously dismissed
Reyes' claims against the City of Austin and the Austin Police Department but allowed his
claims against Austin Police Officers Quint Sebeck, Sergeant Vallejo, and Captain Ryan to go
forward. Dkt. #9.
Reyes, who was granted in forma pauperis status in this case, states he has contacted
private attorneys, a legal aid association, and a lawyer referral services but has been unable to
secure representation in this matter. Dkt. #18 at 1-2. He is self employed as an organic gardener
1 The motion was referred to the undersigned for resolution by the District Judge pursuant to 28 U.S.C. §
636(b)(1)(A), Federal Rule of Civil Procedure 72, and Rule 1(c) of Appendix C of the Local Rules of the United
States District Court for the Western District of Texas, as amended. Dkt. #20.
1
Case 1:19-cv-00367-LY Document 21 Filed 11/01/19 Page 2 of
4
and artist but has a college degree in Asian and Environmental Studies, which he earned in the
mid-1990s. Id. at 2. He states he has no law school or law training and is "without
understanding of the language, rules, and procedures of this Court and need assistance with
motions, filings, deadlines, discovery and other legal issues in this case." Id. at 2.
The court notes that this appears to be at least Reyes' fourth suit brought in this District.
In Reyes V. Walsh, 1:15-CV-327-RP, Reyes sued the City of Austin, Officer Daniel Walsh,
Officer Christopher Anderson, Austin Police Chief Hubert "Art" Acevedo, and Austin City
Manager Marc Ott under the 4th and 14th Amendments for unlawful search and seizure, failure
to train and supervise, failure to provide procedural due process, and state law violations
following an incident in which he was detained and his dog was fatally shot bt Austin police
officers. 1:15-CV-327-RP, Dkt. #56 at 2. Reyes was appointed counsel, some of his claims
were dismissed at the pleading stage, all claims except his claim for unlawful seizure of his
person were dismissed at the summary judgment stage, and the parties eventually settled the
case. 1:15-CV-327-RP, Dkt. #36, #56, #103, #121, #124, #125. In Reyes V. Texas Department of
Public Safety, 1:16-CV-889-RP, Reyes brought suit under 42 U.S.C. § 1983 against the Texas
Department of Safety and a Department of Public Safety Officer claiming violations of his First
and Fourth Amendment rights claiming he was wrongly arrested when he attempted to enter a
state building to meet with a Texas state senator to discuss police accountability laws for police
shootings of dogs. 1:16-CV-889-RP, Dkt. #1 at
1-3, 15-19. Claims against the Texas
Department of Public Safety were dismissed at the pleading stage, Reyes' repeated requests for
appointment of counsel were denied, and Reyes' remaining claims were eventually dismissed on
summary judgment. 1:16-CV-889-RP, Dkt. #12, #30, #39, #41, #52, #55, #62. In Reyes V.
Berry, 1:17-CV-908-RP, Reyes alleged that defendants wrongly arrested him and used excessive
2
Case 1:19-cv-00367-LY Document 21 Filed 11/01/19 Page 3 of 4
force against him. 1:17-CV-908-RP, Dkt. #26 at 2-3. Reyes' request for appointment of counsel
was denied, and his case was eventually dismissed for failure to timely serve the defendants.
1:17-CV-908-RP, Dkt. # 19, 26.
A court is not required to appoint counsel for an indigent plaintiff in a civil rights action
absent exceptional circumstances. Ulmer V. Chancellor, 691 F.2d 209, 212 (5th Cir. 1982).
Whether exceptional circumstances exist depends on "the type and complexity of the case and
the abilities of the individual pursuing that case." Cupit V. Jones, 835 F.2d 82, 86 (5th Cir. 1987).
In determining whether exceptional circumstances exist, courts consider (1) the type and
complexity of the case; (2) the plaintiff's ability to adequately present the case; (3) the plaintiff's
ability to adequately investigate the case; and (4) whether the evidence will "consist in large part
of conflicting testimony SO as to require skill in the presentation of evidence and in cross
examination." Ulmer, 691 F.2d at 213. A court "should also consider whether the appointment of
counsel would be a service to" the plaintiff, the court, and the defendant "by sharpening the
issues in the case, shaping the examination of witnesses, and thus shortening the trial and
assisting in a just determination." Id. District courts must generally make specific findings
explaining the basis for denying a request to appoint counsel. McAlister V. Livingston, 348 F.
App'x 923, 941 (5th Cir. 2009).
At this stage of the case, this case does not appear to raise novel or complex issues.
Reyes alleges he was wrongfully arrested for filming the Austin police in public and all charges
were dropped "as there was no merit on prima fascia [sic] evidence for any charges or arrest."
Dkt. #1 at 2. Among other defenses, Defendants have pleaded they are entitled to qualified
immunity. Dkt. #17 at 2. Thus, it appears that the outcome of this case will depend on what
Reyes was doing at the time of the arrest, whether there was probable cause to arrest him, and if
3
Case 1:19-cv-00367-LY Document 21 Filed 11/01/19 Page 4 of 4
Defendants were reasonable to believe probable cause existed for the arrest. At this time, those
issues do not appear SO novel or complex as to go beyond Reyes' abilities to present the case. As
described above, he has substantial experience litigating these types of cases against peace
officers. Additionally, the key facts of this case-what he was doing at the time of the arrest-is
within his personal knowledge. As such, there is no reason to believe he cannot adequately
investigate the case. As this time, without knowing whether there is a factual dispute as to
Reyes' actions at the time of his arrest, the court cannot determine that the evidence will "consist
in large part of conflicting testimony SO as to require skill in the presentation of evidence and in
cross examination." See Ulmer, 691 F.2d at 213.
Accordingly, the court declines to appoint counsel to represent Reyes at this time. Reyes'
Motion for Appointment of Counsel (Dkt. #18) is DENIED.
SIGNED November 1, 2019
MARK LANE
UNITED STATESMAGISTRATEJUDGE
M/
4
Case 1:19-cv-00367-LY Document 22 Filed 10/27/20 Page 1 of 1
FILED
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
2020 OCT 27 PM 2: 52
CLERK US DISTRICT COURT
JULIAN M. REYES,
§
WESTERN DISTRICT OF TEXAS
PLAINTIFF,
§
BY
the
§
DEPUTY
V.
§
CAUSE NO. 1:19-CV-367-LY
§
OFFICERS QUINT SEBECK, BADGE
§
3454, SGT VALLEJO, CAPN RYAN,
§
AUSTIN POLICE DEPARTMENT, AND
§
OTHER RESPONSIBLE "JOHN DOE"
§
PARTIES TO BE NAMED LATER
§
THROUGH THE PROPER DISCOVERY
§
OF EVIDENCE, ALL INDIVIDUALLY
§
AND IN THEIR OFFICIAL CAPACITIES,
§
DEFENDANTS.
§
SHOW CAUSE ORDER
Before the court is the above-styled cause of action, which was filed in this court on March
29, 2019. The record reflects that no action in the case since November 1, 2019. In addition, no
proposed scheduling order has been filed by the parties pursuant to Federal Rule of Civil Procedure
26 and Rule CV-16(c) of the Local Rules of the Western District of Texas. Accordingly,
IT IS ORDERED that Plaintiff shall show cause in writing why this cause should not be
dismissed for want of prosecution on or before November 3, 2020.
SIGNED this 27th day of October, 2020.
LEE YEAKEL
feelfeeful
UNITED STATES DISTRICT JUDGE
Case 1:19-cv-00367-LY Document 23 Filed 11/04/20 Page 1 of 1
FILED
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
2020 NOV -4 PM 3: 14
CLERK US DISTRICT COURT
JULIAN M. REYES,
§
WESTERN DIST T OF TEXAS
PLAINTIFF,
§
BY
8W
DEPUTY
§
V.
§
CAUSE NO. 1:19-CV-367-LY
§
OFFICERS QUINT SEBECK, BADGE
§
3454, SGT VALLEJO, CAPN RYAN,
§
AUSTIN POLICE DEPARTMENT, AND
§
OTHER RESPONSIBLE "JOHN DOE"
§
PARTIES TO BE NAMED LATER
§
THROUGH THE PROPER DISCOVERY
§
OF EVIDENCE, ALL INDIVIDUALLY
§
AND IN THEIR OFFICIAL CAPACITIES,
§
DEFENDANTS.
§
FINAL JUDGMENT
Before the court is the above-styled and numbered cause. On October 27, 2020, the court
rendered an order directing Plaintiff Julian M. Reyes to show cause in writing why this cause should
not be dismissed for want of prosecution on before November 3, 2020 (Doc. #22).
As of this date, Reyes has not filed a response to the court's order. Accordingly, the court
renders the following Final Judgment pursuant to Federal Rule of Civil Procedure 58.
IT IS HEREBY ORDERED that this cause of action is DISMISSED WITHOUT
PREJUDICE for want of prosecution.
IT IS FURTHER ORDERED that the case hereby CLOSED..
SIGNED this
4th
day of November, 2020.
LEE YEAKEL
feelfeeful
UNITED STATES DISTRICT JUDGE
Case 1:19-cv-00367-LY Document 24 Filed 12/06/20 Page 1 of 7
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
Julian M. Reyes
Plaintiff
§
§
V.
§
Case no. 1:19-cv-00367-LY
§
OFFICERS QUINT SEBEK, Badge
§
3454, SGT VALLEJO, CAPN RYAN,
AUSTIN POLICE DEPARTMENT,
§
and other responsible "JOHN DOE"
parties to be named later through the
proper discovery of evidence,
all individually and in their official
capacities
Defendants
REQUEST TO STAY ORDER TO DISMISS/SET ASIDE FINAL JUDGEMENT AND
KEEP CASE OPEN
I, Julian Reyes, plaintiff in this case, hereby request leniency and apologize that I
missed the court's 5 day cause order. You see before you a simple citizen, not an
attorney, acting pro se, without meaningful access to law, without working education in
law, without research skills and law tools while still working pro se without the ready
assistance of counsel. My access to the Internet was already limited prior to the
pandemic shutdowns. Now the libraries and cafes and other wifi locations that I can
gain access to email and Internet are closed, or limited, only furthering limiting my
Internet access. I also cannot get into the public library as I have checked multiple times
and the doors are locked and closed for access. Impacting my law research. I am also
doing my best to keep up despite these and other challenges. I also have PTSD
because of police abuse, retaliation and use of police lethal force. And this litigation
without an attorney to represent me only adds to my PTSD stressors. There should be
1
Case 1:19-cv-00367-LY Document 24 Filed 12/06/20 Page 2 of 7
reasonable accommodations and better access to law for survivors and victims of police
abuse seeking relief for the types of injustices I have had to endure for years now. This
lack of access to an attorney to represent me has cost me 2 other civil rights cases
already. Dismissed not because of merits, but because of access to law and
understanding of procedures which an attorney would more readily know and meet.
Civil Rights cases where I was also seeking Justice for other incidents of Austin police
false arrest and retaliation for filming police work. Filming for the People of the United
States of America, Texas and Austin especially and the Challenger Street Newspaper, a
501c3 nonprofit new source for the unhoused community of Austin.
When I did get internet access, I really did not understand what that document/
order meant, I did not understand what the title of "show cause" meant and I did not
know that it was a 5 day order for days, due to intermittent email access. It was too
quick for an informed response. As I am foreign to many of the processes of Civil law. It
is simply too confusing for Pro Se people like myself, seeking relief and remedy for
deprivation of rights. Before I knew what was going on my case was dismissed without
prejudice. Another barrier to Justice it seems. As I definitely want to continue to seek
Justice in this lawsuit, and relief for my Civil Rights and Constitutional Rights being
taken away unlawfully by the defendants, knowingly, and maliciously as it seemed at the
time. I am definitely not trying to neglect this lawsuit. For months and months I've been
awaiting defenses' counsel to reach out to me regarding the scheduling and release of
discovery evidence in this case and the release of the names of the officers involved so
that I could amend my complaint properly.
As soon as I could after seeing the email, I asked several lawyers that I know of
to assist me as well as contacted other friends that also are legal advocates for the
people. I forwarded the email to them all. To hopefully help me interpret the meaning,
access the order on PACER, explain the law and the response that the Court required
to show cause again. Since I thought I had already shown cause when this complaint
was first evaluated but the original Magistrate and found to not be frivolous. (ORDER
ON IN FORMA PAUPERIS STATUS AND REPORT AND RECOMMENDATION ON THE
2
Case 1:19-cv-00367-LY Document 24 Filed 12/06/20 Page 3 of 7
MERITS OF THE CLAIMS) And I previously had thought we were in a holding pattern
due to the Pandemic as is my experience with other Courts in Austin, speaking to
attorneys about the Courts' statuses and from the locked doors at the County law
library. Yet, the attorneys were little to no help, they mostly ignored my requests for help
again. In fact I was actually told again that the system of Justice is not fair, favors crimes
and criminals who work in public under color of law, the law is very technical and
complicated and is totally inaccessible without at least $10,000 by the Plaintiff in
advance. Justice is for sale in Austin, that is a normal statement from attorneys here, by
personal experiences of years trying to seek Justice. Unfortunately still very far out of
reach of my humble means. I was also told by an attorney that the political trend of First
Amendment suits to protect our Rights to film in Austin are depleted now. Instead the
political trend in attorneys and their will is for defending protestors now. And that the
time has past for filming rights cases like mine. No remedy or relief will be assisted by
the local attorneys on contingency or especially pro bono.
In fact I have prepared a proposed scheduling order and have sent it to defense
counsel for review. I have attached it as an exhibit to this motion.
I.
I am only a pro se plaintiff, without an attorney, in this case trying to keep
up with this case's requirements without proper access to the law, to research,
evidence, legal tools and legal advisement. I have been dealing with closures and
intermittent internet access as well. I also have the same phone number listed in this
case. It is the best way to contact me when there are immediate and dismissive
deadlines looming, motions to file, or conferencing regarding schedule of discovery,
etc. on this case. Counsel for defense has my phone number already.
II. Covid-19 has closed all points of access for tools, legal research, and the
rules and procedures manuals. All the legal tools that are available to a pro se litigant of
meager means like me. I get access to legal materials at the public library. Because of
Covid-19 closures I have no access to the tools I was using prior to Covid-19. All
libraries seem to be closed to the public still.
3
Case 1:19-cv-00367-LY Document 24 Filed 12/06/20 Page 4 of 7
III. So I have relied on the only resource I could readily access and
download, the Pro Se Guide
HYPERLINK ("https://www.txwd.uscourts.gov/wp-content/uploads/Filing%20Without%20an
%20Attorney/Pro%20Se%20Manual/Pro%20Se%20Manual.pdt
IV. Scheduling Order Proposal ready to review. | have included my proposed
scheduling order in order to put this case back on the docket. And to show how I am
interested in moving forward with seeking Justice for my deprivation of rights under
color of law U.S.C. 1983. And have sent a copy of this scheduling order to the Defense
counsel for review.
Argument
"Trial courts possess a discretionary range of control over parties and
proceedings which will allow reasonable accommodations to pro se litigants without
resultant prejudice to adverse parties. Pro se parties, like other litigants, should be
provided the opportunity to have their cases fully and fairly heard so far as such latitude
is consistent with the just rights of any adverse party." Conservation Commission V.
Price, 193 Conn. 414, 479 A.2d 187, 192 n. 4 (1984).
" Meaningful access requires some tolerance by courts toward litigants
unrepresented by counsel. Pro per litigants are by no means exempt from the governing
rules of procedure. But neither should courts allow those rules to operate as hidden,
lethal traps for those unversed in law. This may require some degree of extra care and
effort on the part of the Judge and the Court." White V. Lewis, 804 P.2d 805 (Arizona
1990) (Lankford, J., dissenting). See also Inquiry Concerning Eriksson, 36 So. 3d 580
(Florida 2010) (the judge's "unduly rigid and formulaic process" and his "overly technical
and rigid approach" in dealing with pro se litigants in domestic violence injunction
proceedings impeded their ability to obtain the relief and protection they sought and
"penalized pro se petitioners for being unfamiliar with the judicial system"). Those
4
Case 1:19-cv-00367-LY Document 24 Filed 12/06/20 Page 5 of 7
principles were reflected in a change made to the American Bar Association Model
Code of Judicial Conduct in 2007. Rule 2.2 provides that "a judge shall uphold and
apply the law, and shall perform all duties of judicial office fairly and impartially." New
comment 4 to that rule adds a caveat: "It is not a violation of this Rule for a judge to
make reasonable accommodations to ensure pro se litigants the opportunity to have
their matters fairly heard."
I
as Plaintiff was denied a FAIR TRIAL, or at least a fair opportunity to explain
why the case should be retained on the court docket. In that way, I was Denied
Meaningful Access to the the Court and to Justice and relief.
FURTHER, if this case is dismissed as ordered, the Plaintiff asserts he was
denied Equal Protection of the Law. The Plaintiff feels like he was denied Equal
Protection and Due Process of law by being denied meaningful access to the law, and
Plaintiff respectfully requests that the Court extend all reasonable efforts to Plaintiff as a
citizen who is occasionally and sometimes chronically homeless, indigent and a Pro Se
litigant in accordance with the American Bar Association's Model Rules for the
meaningful Access to the Courts and the Protection of His Rights under the
Constitutions of the United States and the State of Texas.
5
Case 1:19-cv-00367-LY Document 24 Filed 12/06/20 Page 6 of 7
Plaintiff Prays to the Court:
The Plaintiff in this case prays that the Court will reconsider and withdraw, or stay
this order to dismiss this case because it achieves a miscarriage of justice, is
prematurely done, prior to Justice because of the above reasons and others, unstated.
The Plaintiff in this case also requests the court to please reassess the
qualifications and meaningful access to law. Access to meaningful justice. And to ease
the flow of this case in the docket, having this case proceed in an orderly manner to it's
conclusion. By taking time to consider assigning an advisory, pro se or contingent
attorney to assist the pro se Plaintiff who is seeking remedy for a grievance as stated
above. If a hearing would help, I pray for that opportunity to state my case as to why this
case should not be dismissed and that I should get some help from the court. | cannot
keep up with this case as easily as if I had the abilities and access of counsel.
Last, I apologize for inconveniencing the court, but I am just a pro se litigant
doing the best | can. I promise I will try harder. Please re-instate my lawsuit.
Respectfully submitted,
/S/ Julian Reyes
Signature Pro Se
12 / 06 /2020
Date
1712 E. Riverside Dr. #357,
Austin, Texas, 78741
512 785-1749
julian.reyes.human@gmail.com
6
Case 1:19-cv-00367-LY Document 24 Filed 12/06/20 Page 7 of 7
IT IS HEREBY ORDERED THE FOLLOWING:
1. That the Order to Dismiss is stayed
2. A hearing for counsel to be determined
3. Counsel to be assigned by Court to pro se Plaintiff
SIGNED this
day of
, 20
.
UNITED STATES DISTRICT JUDGE
7
Case 1:19-cv-00367-LY Document 24-1 Filed 12/06/20 Page 1 of 4
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
Julian M. Reyes
Plaintiff
§
§
V.
§
CAUSE NO. 1:19-cv-00367-LY
§
OFFICERS QUINT SEBEK, Badge
§
3454, SGT VALLEJO, CAPN RYAN,
AUSTIN POLICE DEPARTMENT,
§
and other responsible "JOHN DOE"
parties to be named later through the
proper discovery of evidence,
all individually and in their official
capacities
Defendants
SCHEDULING ORDER PROPOSAL
I, Julian Reyes, pro se Plaintiff in this cause do submit this proposed scheduling order for review
and consideration.
Pursuant to Rule 16, Federal Rules of Civil Procedure, the Court issues the following scheduling
order.
IT IS ORDERED THAT:
1. The parties shall file all amended or supplemental pleadings and shall join additional, if
known prior to discovery of evidence, these parties on or before
January 31st,
2021
.
2. All parties asserting claims for relief shall file and serve on all other known parties their
designation of potential witnesses, testifying experts, and proposed exhibits, and shall serve
on all other parties, but not file, the materials required by Federal Rule of Civil Procedure
26(a)(2)(B) on or before
March 15th 2021
.
Parties resisting claims for relief shall file
1
Reyes V Sebek Scheduling order (rev. 11/13/2020)
Case 1:19-cv-00367-LY Document 24-1 Filed 12/06/20 Page 2 of 4
and serve on all other parties their designations of potential witnesses, testifying experts,
and proposed exhibits, and shall serve on all other parties, but not file, the materials
required by Federal Rule ofCivil Procedure 26(a)(2)(B) on or before March 31st, 2021
.
All designations of rebuttal experts shall be filed and served on all other parties not later
than 14 days of receipt of the report of the opposing expert, and the materials required by
Federal Rule of Civil Procedure 26(a)(2)(B) for such rebuttal experts, to the extent not
already served, shall be served, but not filed, on all other parties not later than 14 days of
receipt of the report of the opposing expert.
3.
The parties asserting claims for relief shall submit a written offer of settlement to
opposing parties on or before May 15th 2021 , and each opposing party shall respond, in
writing, on or before May 30th, 2021
. All offers of settlement are to be private, not filed,
and the Court is not to be advised of the same. The parties are further ORDERED to retain
the written offers of settlement and responses as the Court will use these in assessing
attorney's fees and court costs at the conclusion of trial.
4. A report on alternative dispute resolution in compliance with Local Rule CV-88 shall be filed
on or before June 21st 2021
.
5. Any objection to the reliability of an expert's proposed testimony under Federal Rule of
Evidence 702 shall be made by motion, specifically stating the basis for the objection and
identifying the objectionable testimony, not later than 14 days of receipt of the written report
of the expert's proposed testimony or not later than 14 days of the expert's deposition, if a
deposition is taken, whichever is later. The failure to strictly comply with this paragraph will
be deemed a waiver of any objection that could have been made pursuant to Federal Rule
of Evidence 702.
6. The parties shall complete discovery on or before August 31st 2021 Counsel may, by
agreement, continue discovery beyond the deadline, but there will be no intervention by the
Court except in extraordinary circumstances, and no trial setting will be vacated because of
information obtained in post-deadline discovery.
7. All dispositive motions shall be filed and served on all other known parties on or
before September 31st, 2021 and shall be limited to 20 pages. Responses shall be filed
and served on all other parties not later than 14 days after the service of the motion and
shall be limited to 20 pages. Any replies shall be filed and served on all other parties not
later than 14 days after the service of the response and shall be limited to 10 pages, but the
Court need not wait for the reply before ruling on the motion.
2
Reyes V Sebek Scheduling order (rev. 11/13/2020)
Case 1:19-cv-00367-LY Document 24-1 Filed 12/06/20 Page 3 of 4
The parties shall not complete the following paragraph 8. It will be completed by
theCourt at the initial pretrial conference to be scheduled by the Court.
8. This case is set for final pretrial conference, in chambers, on the
day
of
, 20
, at
and
trial in the month of
20
.
The final pretrial conference shall be attended by at least one of the
attorneys who will conduct the trial for each of the parties and by any unrepresented
parties. The parties should consult Local Rule CV-16(e) regarding matters to be filed in
advance of the final pretrial conference.
SIGNED this
day of
, 20
.
LEE YEAKEL
UNITED STATES DISTRICT JUDGE
3
Reyes V Sebek Scheduling order (rev. 11/13/2020)
Case 1:19-cv-00367-LY Document 24-1 Filed 12/06/20 Page 4 of 4
AGREED:
Typed or Printed Name
Typed or Printed Name
Signature
Signature
ATTORNEY FOR PLAINTIFF(S)
ATTORNEY FOR DEFENDANT (S)
4
Reyes V Sebek Scheduling order (rev. 11/13/2020)
Case 1:19-cv-00367-LY Document 25 Filed 12/09/20 Page 1 of 4
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
JULIAN M. REYES,
§
Plaintiff,
§
§
V.
§
CIVIL ACTION NO. 1:19-cv-00367-LY
§
OFFICERS QUINT SEBEK, BADGE
§
3454, SGT VALLEJO, CAPN RYAN,
§
AUSTIN POLICE DEPARTMENT, AND
§
OTHER RESPONSIBLE "JOHN DOE"
§
PARTIES TO BE NAMED LATER
§
THROUGH DISCOVERY OF
§
EVIDENCE, ALL INDIVIDUALLY AND
§
IN THEIR OFFICIAL CAPACITIES,
§
Defendants.
§
DEFENDANTS' RESPONSE TO PLAINTIFF'S MOTION TO STAY
TO THE HONORABLE JUDGE LEE YEAKEL:
Defendants Quint Sebek, Carlos Vallejo, and "Capn Ryan" file this Response and
Opposition to Plaintiff's Motion to Stay as follows:
1.
On October 27, 2020, Plaintiff was ordered to show cause within five days in writing why
the above captioned cause should not be dismissed for want of prosecution. Plaintiff made no
response and on November 4, 2020, a Final Order was entered by the Court dismissing this cause
of action and closing this case.
2.
Exactly 32 days later, on Sunday, December 6, 2020, Plaintiff filed a "Request to Stay
Order to Dismiss/Set Aside Final Judgment and Keep Case Open." As basis for his request Plaintiff
cited a litany of obstacles that he claimed prevented him from timely responding to the Court's
Show Cause Order within the five-day time period allotted. However, Plaintiff failed to address
the roughly 360 days that had passed since his Motion to Appoint Counsel was denied on
Case 1:19-cv-00367-LY Document 25 Filed 12/09/20 Page 2 of 4
November 1, 2019, (Doc. 21) or the roughly 575 days that have elapsed since he first filed his
complaint in March, 2019 (Doc. 1).
3.
In addition to the above, Plaintiff has neither styled his pleading as an Appeal of the Court's
Final Judgment herein, in which case his pleading would be late and therefore null, and has further
not raised his request as a Rule 60 Request for Relief from a Judgment or Order, thus, it is difficult,
if not impossible for Defendant to respond to a Plaintiff's unclear request and Defendants decline
to do SO more robustly without a more definite statement of the relief sought by Plaintiff Reyes
herein.
4.
Out of an abundance of caution, if the Court does accept Plaintiff's filing as a Rule 60(b)
request, Defendants briefly note that relief available under Rule 60(b) is circumscribed SO as not
to unduly intrude on the public policy of finality. See Comfort V. Lynn School Committee, 560 F.3d
22, 26, 242 Ed. Law Rep. 659 (1st Cir. 2009). Also, relief under Rule 60(b) is considered to be an
extraordinary remedy available only in limited circumstances. See Trade Well International V.
United Central Bank, 825 F.3d 854, 860 (7th Cir. 2016); Lebahn V. Owens, 813 F.3d 1300, 1306,
93 Fed. R. Serv. 3d 1575 (10th Cir. 2016); U.S. Commodity Futures Trading Com'n V. Kratville,
796 F.3d 873, 896, 92 Fed. R. Serv. 3d 759 (8th Cir. 2015); Karak V. Bursaw Oil Corp., 288 F.3d
15, 19, 52 Fed. R. Serv. 3d 918 (1st Cir. 2002).
5.
Extraordinary circumstances do not exist here as noted by the court in its Order denying
Reyes request for appointment of counsel. (Doc. 21). Therein, the Court noted that this suit is
Plaintiff's fourth suit within this district and raised no novel or especially complex issues of law
that would entitle him to the relief requested. (Id.). Further, the fact that Reyes has "substantial
experience litigating these types of cases against peace officers" (Id.) was found to be relevant in
that decision and should likewise inform the Court's decision herein. As noted above, Plaintiff
Case 1:19-cv-00367-LY Document 25 Filed 12/09/20 Page 3 of 4
had approximately a year to have sought a scheduling order or really any sort of relief from the
Court but has failed to do SO. Plaintiff has further had no contact with Defendants and made no
requests in that time period.
6.
In short, there is nothing about Plaintiff's request or in his suit that would merit the
extraordinary relief he now seeks, and his Request should be denied. For the reasons set forth
above, Defendants Quint Sebek, Carlos Vallejo, and "Capn Ryan" respectfully request the Court
deny Plaintiff's Request. Defendants request any and such other additional relief to which they
may show themselves justly entitled.
RESPECTFULLY SUBMITTED,
ANNE MORGAN, CITY ATTORNEY
MEGHAN L. RILEY, CHIEF LITIGATION
/s/ David May
DAVID MAY
State Bar No. 24092778
Telephone: (512) 974-2342
David.may@austintexas.gov
H. GRAY LAIRD III
State Bar No. 24087054
Telephone: (512) 974-1342
gray.laird@austintexas.gov
City of Austin - Law Department
P.O. Box 1546
Austin, Texas 78767-1546
Facsimile: (512) 974-1311
ATTORNEYS FOR DEFENDANTS
Case 1:19-cv-00367-LY Document 25 Filed 12/09/20 Page 4 of
4
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 Federal Rules of Civil Procedure, this 9th day of December, 2020.
Via CM/ECF:
Julian M. Reyes
1712 E Riverside Dr. #357
Austin, Texas 78741
Julian.reyes.human@gmail.com
512-785-1749
PRO SE
Case 1:19-cv-00367-LY Document 26 Filed 12/18/20 Page 1 of 2
IN THE UNITED STATES DISTRICT COURT
FILED
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
2020 DEC 18 PM 4: 28
CLERK. us DISTRICT COURT
JULIAN M. REYES,
§
WESTERS DIS TRICT, be TEXAS
PLAINTIFF,
§
BY
the
§
REDUT!
V.
§
CAUSE NO. 1:19-CV-367-LY
§
OFFICERS QUINT SEBECK, BADGE
§
3454, SGT VALLEJO, CAPN RYAN,
§
AUSTIN POLICE DEPARTMENT, AND
§
OTHER RESPONSIBLE "JOHN DOE"
§
PARTIES TO BE NAMED LATER
§
THROUGH THE PROPER DISCOVERY
§
OF EVIDENCE, ALL INDIVIDUALLY
§
AND IN THEIR OFFICIAL CAPACITIES,
§
DEFENDANTS.
§
ORDER
Before the court are Plaintiff Julian M. Reyes's "Request to Stay Order to Dismiss/Set Aside
Final Judgment and Keep Case Open," which the court construes as a Rule 60(b) Motion for Relief
from Final Judgment filed December 6, 2020 (Doc. #24) and Defendants' Response to Plaintiff's
Motion to Stay filed December 9, 2020 (Doc. #25). The extraordinary relief afforded by Rule 60(b)
requires that the moving party make a "showing of unusual or unique circumstances justifying such
relief." Pryor V. U.S. Postal Serv., 769 F.2d 281, 286 (5th Cir. 1985). Plaintiff's motion has
provided no justifiable ground for relief from final judgment in this case under Rule 60.
Case 1:19-cv-00367-LY Document 26 Filed 12/18/20 Page 2 of 2
IT IS THEREFORE ORDERED that Plaintiff Julian M. Reyes's "Request to Stay Order
to Dismiss/Set Aside Final Judgment and Keep Case Open," which the court construes as a Rule
60(b) Motion for Relief from Final Judgment filed December 6, 2020 (Doc. #24) is DENIED.
Signed this
18th
day of December, 2020.
LEE
the YFAKEL Yearl
UNITED STATES DISTRICT JUDGE
2
Case 1:19-cv-00367-LY Document 27 Filed 01/05/21 Page 1 of 3
UNITED STATES 5th CIRCUIT APPELLATE COURT
Julian M. Reyes
Plaintiff
§
V.
Case no. 1:19-cv-00367
§
§
OFFICERS QUINT SEBEK, Badge
3454, SGT VALLEJO, CAPN RYAN,
§
AUSTIN POLICE DEPARTMENT,
§
and other responsible "JOHN DOE"
parties to be named later through the
§
proper discovery of evidence,
all individually and in their official
capacities
Defendants
Notice of Appeal
Constitutional Treatment and Meaningful Access to the Courts by Pro Se Litigants
Notice is hereby given that,] Julian Reyes, plaintiff in this case, hereby appeal to the
United States Appellate Court for the Fifth Circuit from the 5th Circuit Court's Order signed on
December 18th, 2020. The decision by the Court to deny meaningful access to the law, to deny
legal advisement or attorney to assist me with this complex and difficult complaint in the interest
of Justice and Equal Rights under the Law.
This pro se plaintiff also requests process and legal leniency from the Court. As I am only
a pro se litigant, without an attorney, in this case trying to keep up with this case's legal
requirements without proper access to the law.
"Trial courts possess a discretionary range of control over parties and proceedings which
will allow reasonable accommodations to pro se litigants without resultant prejudice to adverse
1
Reyes V Sebek Notice App rev 01.05.2021
Case 1:19-cv-00367-LY Document 27 Filed 01/05/21 Page 2 of 3
parties. Pro se parties, like other litigants, should be provided the opportunity to have their cases
fully and fairly heard SO far as such latitude is consistent with the just rights of any adverse
party." Conservation Commission V. Price, 193 Conn. 414, 479 A.2d 187, 192 n. 4 (1984).
" Meaningful access requires some tolerance by courts toward litigants unrepresented by
counsel. Pro per litigants are by no means exempt from the governing rules of procedure. But
neither should courts allow those rules to operate as hidden, lethal traps for those unversed in
law. This may require some degree of extra care and effort on the part of the Judge and the
Court." White V. Lewis, 804 P.2d 805 (Arizona 1990) (Lankford, J., dissenting). See also Inquiry
Concerning Eriksson, 36 So. 3d 580 (Florida 2010) (the judge's "unduly rigid and formulaic
process" and his "overly technical and rigid approach" in dealing with pro se litigants in
domestic violence injunction proceedings impeded their ability to obtain the relief and protection
they sought and "penalized pro se petitioners for being unfamiliar with the judicial system").
Those principles were reflected in a change made to the American Bar Association Model Code
of Judicial Conduct in 2007. Rule 2.2 provides that "a judge shall uphold and apply the law, and
shall perform all duties of judicial office fairly and impartially." New comment 4 to that rule
adds a caveat: "It is not a violation of this Rule for a judge to make reasonable accommodations
to ensure pro se litigants the opportunity to have their matters fairly heard."
The Plaintiff was denied a FAIR TRIAL, was Denied Meaningful Access to the the Court.
Further, the Plaintiff believes he was denied Equal Protection and Due Process of law by
being denied meaningful access to the law, respectfully requests that the Court extend all
reasonable efforts to Plaintiff as a citizen who is chronically homelesss, indigent and a Pro Se
litigant in accordance with the American Bar Association's Model Rules for the meaningful
Access to the Courts and the Protection of His Rights under the Constitutions of the United
States and the State of Texas.
2
Reyes V Sebek Notice App rev 01.05.2021
Case 1:19-cv-00367-LY Document 27 Filed 01/05/21 Page 3 of 3
The Plaintiff in this case also requests the court to please reassess the qualifications and
meaningful access to law. Access to meaningful justice. And to facilitate the flow of Justice in
this case. Proceeding in an orderly manner to it's just and equitable conclusion. By taking time
to consider assigning a pro bono or contingent attorney to assist the Pro Se Plaintiff who is
seeking remedy for a grievance as stated within the complaint. If a hearing would be necessary, I
pray for that opportunity to state my case as to why I cannot keep up with this case as if I had the
abilities and access of legal advise or counsel.
SIGNED this
5th
day of
January
, 2021
Respectfully submitted,
/S/ Julian Reyes
Signature Pro Se
1 / 05 /2020
Date
1712 E. Riverside Dr. #357,
Austin, Texas, 78741
512 785-1749
julian.reyes.human@gmail.com
3
Reyes V Sebek Notice App rev 01.05.2021
Case: 005559997787 Plagle011/05/DateFFatyd101f/38/2021
UNITED STATES 5th CIRCUIT APPELLATE COURT
Julian M. Reyes
Plaintiff
§
V.
Case no. 1:19-cv-00367
§
§
OFFICERS QUINT SEBEK, Badge
3454, SGT VALLEJO, CAPN RYAN,
§
AUSTIN POLICE DEPARTMENT,
§
and other responsible "JOHN DOE"
parties to be named later through the
§
proper discovery of evidence,
all individually and in their official
capacities
Defendants
Notice of Appeal
Constitutional Treatment and Meaningful Access to the Courts by Pro Se Litigants
Notice is hereby given that,] Julian Reyes, plaintiff in this case, hereby appeal to the
United States Appellate Court for the Fifth Circuit from the 5th Circuit Court's Order signed on
December 18th, 2020. The decision by the Court to deny meaningful access to the law, to deny
legal advisement or attorney to assist me with this complex and difficult complaint in the interest
of Justice and Equal Rights under the Law.
This pro se plaintiff also requests process and legal leniency from the Court. As I am only
a pro se litigant, without an attorney, in this case trying to keep up with this case's legal
requirements without proper access to the law.
"Trial courts possess a discretionary range of control over parties and proceedings which
will allow reasonable accommodations to pro se litigants without resultant prejudice to adverse
1
Reyes V Sebek Notice App rev 01.05.2021
Case: 00555997787 lagle01/05/DateFFated201f/38/2021
parties. Pro se parties, like other litigants, should be provided the opportunity to have their cases
fully and fairly heard SO far as such latitude is consistent with the just rights of any adverse
party." Conservation Commission V. Price, 193 Conn. 414, 479 A.2d 187, 192 n. 4 (1984).
" Meaningful access requires some tolerance by courts toward litigants unrepresented by
counsel. Pro per litigants are by no means exempt from the governing rules of procedure. But
neither should courts allow those rules to operate as hidden, lethal traps for those unversed in
law. This may require some degree of extra care and effort on the part of the Judge and the
Court." White V. Lewis, 804 P.2d 805 (Arizona 1990) (Lankford, J., dissenting). See also Inquiry
Concerning Eriksson, 36 So. 3d 580 (Florida 2010) (the judge's "unduly rigid and formulaic
process" and his "overly technical and rigid approach" in dealing with pro se litigants in
domestic violence injunction proceedings impeded their ability to obtain the relief and protection
they sought and "penalized pro se petitioners for being unfamiliar with the judicial system").
Those principles were reflected in a change made to the American Bar Association Model Code
of Judicial Conduct in 2007. Rule 2.2 provides that "a judge shall uphold and apply the law, and
shall perform all duties of judicial office fairly and impartially." New comment 4 to that rule
adds a caveat: "It is not a violation of this Rule for a judge to make reasonable accommodations
to ensure pro se litigants the opportunity to have their matters fairly heard."
The Plaintiff was denied a FAIR TRIAL, was Denied Meaningful Access to the the Court.
Further, the Plaintiff believes he was denied Equal Protection and Due Process of law by
being denied meaningful access to the law, respectfully requests that the Court extend all
reasonable efforts to Plaintiff as a citizen who is chronically homelesss, indigent and a Pro Se
litigant in accordance with the American Bar Association's Model Rules for the meaningful
Access to the Courts and the Protection of His Rights under the Constitutions of the United
States and the State of Texas.
2
Reyes V Sebek Notice App rev 01.05.2021
Case: 00555997787
The Plaintiff in this case also requests the court to please reassess the qualifications and
meaningful access to law. Access to meaningful justice. And to facilitate the flow of Justice in
this case. Proceeding in an orderly manner to it's just and equitable conclusion. By taking time
to consider assigning a pro bono or contingent attorney to assist the Pro Se Plaintiff who is
seeking remedy for a grievance as stated within the complaint. If a hearing would be necessary, I
pray for that opportunity to state my case as to why I cannot keep up with this case as if I had the
abilities and access of legal advise or counsel.
SIGNED this
5th
day of
January
, 2021
Respectfully submitted,
/S/ Julian Reyes
Signature Pro Se
1 / 05 /2020
Date
1712 E. Riverside Dr. #357,
Austin, Texas, 78741
512 785-1749
julian.reyes.human@gmail.com
3
Reyes V Sebek Notice App rev 01.05.2021
Case: 21-50013
Document: 00516006740
Page: 1
Date Filed: 09/08/2021
UNITED STATES 5th CIRCUIT APPELLATE COURT
Julian M. Reyes
Plaintiff
§
V.
§
Appellate Case no. 21-50013
Originating Case no. 1:19-cv-00367
§
OFFICERS QUINT SEBEK, Badge
§
3454, SGT VALLEJO, CAPN
§
RYAN, AUSTIN POLICE
DEPARTMENT, and other
§
responsible "JOHN DOE"
parties to be named later through the
proper discovery of evidence,
all individually and in their official
capacities
Defendants
Motion for Extension of Time to file Brief
I, Julian Reyes, pro se, request an extension of time of for 30-90 additional
days to file the appellant's brief.
I realize that I previously asked for time to file the brief but still do not have
access to law and the Courts. And after much effort, contacts at the Appellate Court
Library, the Travis County Law Library, and the Texas State Law Library, but no
responses from any actual legal counsel, I still feel an overwhelming need to have
an attorney to assist with this case and the brief for this case. I have been in contact
with at least one attorney, no legal guidance has been given yet. Which I am
1
Reyes V Sebek Motion Ext Time Brief rev 09.06.2021
Case: 21-50013
Document: 00516006740
Page: 2
Date Filed: 09/08/2021
working on getting legal advice and access to specific case law research for this
appeal. We will continue to ask about legal advise or a contingent attorney. I will
continue to study and work on the brief and try to research relevant case law, albeit
very difficult to read and do. And I will also continue to pray for motion for this
Court to assign counsel, probably my only prayer for actual Justice and access to
the Court and law.
This case did not have the assistance of counsel and that is why it struggled
under the rules, deadlines and complexity of the law itself. Though this case's
merits met the scrutiny of the District Court. The reason that I have appealed the
decisions of the District Court is access to the law and legal counsel in the interests
of Justice and Equality under the law. Access to law should not be this
complicated, complicit to injustice, or a barrier itself to Justice and Equal Justice
under the Law.
Though I have been reading the FRAP and confused by them, the language,
the nuances of the rules and law, and rules behind them and surrounding them. I
have concentrated on the brief rules and found them overly cumbersome, the rules
on the brief outlines, the technical details for appendix and citations and not to
mention finding relevant case law.
In contacting the Appellate Court's Law Library they did not have any
information to assist pro se litigants with the brief. This should be remedied
2
Reyes V Sebek Motion Ext Time Brief rev 09.06.2021
Case: 21-50013
Document: 00516006740
Page: 3
Date Filed: 09/08/2021
immediately. Instead they referred me to the Texas State Law Library, also closed
due to the Covid-19 pandemic. The State law librarian said that there was nothing
specific for appellant briefs at the federal level that would explain it to a layman or
a law student. The Travis County Law Library stated that they did not have much
information to share digitally as they do not have the copyrights, and they are also
closed to in person visits. They referred me elsewhere.
The primary Law Library that I use for questions and access to law is the
Travis County Law Library which remains closed to the Public as the City of
Austin is now in Stage 4 Covid restrictions again due to Covid variants, the City
officials say.
As I am a layman the above were all further dead ends for research for me. I
have been unable to access research materials and law that is necessary I feel to
filing a successful brief to allow us to find Justice in the court. The process and
rules of the Court have proven laborious to me as I am without counsel, without
proper legal training and the pandemic has more severely limited any real access to
the law and research of the law and this appellate law.
The Defendants, a government employees, have multiple attorneys from
what I gather including a new lead counsel, the Assistant City Attorney. Against
me, with no counsel. How is that access to law and equal access to Justice for a
redress of Citizen's grievances?
3
Reyes V Sebek Motion Ext Time Brief rev 09.06.2021
Case: 21-50013
Document: 00516006740 Page: 4 Date Filed: 09/08/2021
Also, on 3/26/2021, the Case Team finally manually emailed me a brief's
template on my case. Which I did not get access to previously or know about.
Which was helpful partially, but not clear on how to populate with the case, issue
and appendix. The sending of this template to pro se Citizens should be automatic,
clear, and with a tutorial for laymen on the notice of brief. For the best results of
Justice. I still do not understand the brief or have access to case law and tools of
legal research.
These are the little details that take up time and are not even in the rules that
I have read to date. Counsel would be familiar with these rules and briefs. If I had
counsel. And the case would have in turn been already expedited to proceed on it's
merits and questions of constitutional basis under 1983 and 1985, U.S.C.. Not
bogged down in technicalities and complexities of the law for me, an untrained
layman Citizen.
After my previous talks with the Appellate Court's Case Team and sending
an email request for clarity, I decided to request an additional extension of time. As
this is more complex than I had realized and the appendix is not to be delayed as I
was thinking by reading the FRAP. Presently the record excerpts and appendix
rules are still beyond my understanding. And I would not be able to get this
completed reasonably well and accurately according to the FRAP SO I decided it's
4
Reyes V Sebek Motion Ext Time Brief rev 09.06.2021
Case: 21-50013
Document: 00516006740 Page: 5 Date Filed: 09/08/2021
time to request additional time from the Court. I still wish the Court would
reconsider my previous Motion to Appoint Counsel due to this appellate brief.
Which I still need help with to get to that point, obviously.
As I am still just a layman without good working knowledge of the
processes, procedures, Appellate brief and letter of the Federal Courts. Having no
formal access or training in law. And facing the attorneys of the Defense that work
for the City of Austin, Inc. in a complex case involving rules, laws, procedures,
legal wording, First Amendment protections, discovery of evidence and a myriad
of case law that I have no good working knowledge of or meaningful and ready
access to such knowledge.
In the interests of Justice and in the interests of the Court to process and progress
this case to it's due justice and equitable access to Justice and Due Justice.
PLEAS
This pro se plaintiff also requests process and legal leniency from the Court.
As I am only a pro se litigant seeking Justice. I am presently without an attorney, in
this case trying to keep up with this case's legal requirements without proper
access to the law as I stated above.
5
Reyes V Sebek Motion Ext Time Brief rev 09.06.2021
Case: 21-50013
Document: 00516006740 Page: 6 Date Filed: 09/08/2021
This pro se Citizen plaintiff requests the Court review and answer my
previous Motion for Appointment of Counsel, please, thank you. For the Brief to
be filed completely, and by the enormous burden of the regulations and rules
regarding this and the case law, legal opinions, to support my appeal.
The Plaintiff in this case also requests the court to please allow me in this
case meaningful access to law. With access to meaningful justice. And to facilitate
the flow of Justice in this case. Proceeding in an orderly manner to it's just and
equitable conclusion. Assignment of Counsel. as there is a submitted Motion for
Appointment of Counsel, would satisfy these needs. expedite this case in Justice
and the Court, and would be an actual asset to Justice for all parties including the
Court itself.
If a hearing would be necessary, I pray for that opportunity to show and state
my case as to why I cannot keep up with this case as if I had the abilities and
access of legal advice or counsel. ORAL ARGUMENT REQUESTED.
6
Reyes V Sebek Motion Ext Time Brief rev 09.06.2021
Case: 21-50013
Document: 00516006740
Page: 7
Date Filed: 09/08/2021
SIGNED this
7th
day of
September
, 2021
Respectfully submitted,
Julian Reyes /S
-
Signature Pro Se
09 / 07 /2021
Date
Mr. Julian Reyes
512 785-1749
10900 Research Blvd
Suite 160c Box 147
Austin, Texas, U.S.A. 78759
justicenowpeople@protonmail.com
julian.reyes.human@gmail.com
7
Reyes V Sebek Motion Ext Time Brief rev 09.06.2021
Case: 21-50013
Document: 00516006740 Page: 8 Date Filed: 09/08/2021
Certificate of Conference
I, Julian Reyes, pro se litigant, have conferred with counsel for defense, Mr.
Laird, via email and have been informed of the following:
Defense opposes my pro se motion
Julian Reyes, pro se /S
Certificate of Service
I, Julian Reyes, pro se litigant, hereby certify that I have communicated this
motion/document with the 5th Circuit Court of Appeals using the CM/ECF filing
system, which will cause a copy of the document to be electronically delivered to
Appellant's attorney, Mr. Gray Laird, defendants' counsel.
Julian Reyes, pro se /S
Certificate of Compliance
I, Julian Reyes, pro se litigant, hereby certify on Sept. 7, 2021 that,
1. This document complies with the word limit of Fed. R. App. P.27(d)(2)
(A) because this document contains approximately 1500 words or does not exceed
20 pages.
2. This document complies with the typeface requirements of Fed. R.App. P. 27 (d)
(1)(E) and 32(a)(5) and the type-style requirements of Fed. R. App. P. 27(d)(1)
(E) and 32(a)(6) because this document has been prepared in a proportionally
spaced typeface using Apple Pages version 5.6 in 14-point Times New Roman.
Julian Reyes, pro se/S
8
Reyes V Sebek Motion Ext Time Brief rev 09.06.2021
Case: 21-50013
Document: 00516017897
Page: 1
Date Filed: 09/16/2021
No. 21-50013
Case: 21-50013
Document: 00516017897
Page: 2
Date Filed: 09/16/2021
IN THE
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
Julian M. Reyes,
Plaintiff - Appellant
V.
Quint Sebek, individually and in his official capacity, Badge# 3454, Austin Police
Department; Sergeant FNU Vallejo, individually and in his official capacity,
Austin Police Department; Captain FNU Ryan, individually and in his official
capacity, Captain, Austin Police Department; John Doe, other responsible parties to
be named later through the proper discovery of evidence, individually and in their
official capacities,
Defendants - Appellees
On Appeal from
United States District Court for the Western District of Texas in Austin
1:19-CV-367
Case: 21-50013
Document: 00516017897
Page: 3
Date Filed: 09/16/2021
BRIEF OF APPELLANT JULIAN REYES
SUBMITTED BY:
Julian Reyes
10900 Research Blvd Suite 160c Box 147
Austin, Texas, U.S.A. 78759
Case: 21-50013
Document: 00516017897 Page: 4 Date Filed: 09/16/2021
CERTIFICATE OF INTERESTED PERSONS
The undersigned counsel of record certifies that the following listed persons and
entities as described in the fourth sentence of 5th CIR Rule 28.2.1 have an interest
in the outcome of this case. These representations are made in order that the judges
of this court may evaluate possible disqualification or recusal.
Appellees:
Counsel for Appellees:
John Doe
David Wayne May of City of Austin
Austin, TX
FNU Ryan
David Wayne May of City of Austin
Austin, TX
FNU Vallejo
David Wayne May of City of Austin
Austin, TX
Quint Sebek
David Wayne May of City of Austin
Austin, TX
Appellants:
Counsel for Appellants:
Julian Reyes
Julian Reyes, pro se. Austin, TX
Other Interested Parties:
Counsel for Interested Parties:
Type Here
Type Here
iv
Case: 21-50013
Document: 00516017897
Page: 5
Date Filed: 09/16/2021
Julian M. Reyes /S
pro se plaintiff
A Certificate of Interested Persons is required by 5th CIR. R. 28.2.1.
I do not understand this field.
V
Case: 21-50013
Document: 00516017897
Page: 6
Date Filed: 09/16/2021
STATEMENT REGARDING ORAL ARGUMENT
I respectfully request a hearing and oral arguments and hearings as well as a Jury
Trial. As I have not been allowed one single hearing on this case since it was
originally filed in the 5th Circuit. And have not been allowed any oral arguments
and that has diminished my ability to have access to the Courts and to law. This
error has deprived me of access to the courts. As well it stymies my efforts to
provide justice to these issues of law, The effect of which causes degradation and
more increased suppression of our first amendment rights.
vi
Case: 21-50013
Document: 00516017897
Page: 7
Date Filed: 09/16/2021
TABLE OF CONTENTS
Contents
Page(s)
CERTIFICATE OF INTERESTED PERSONS
iv
STATEMENT REGARDING ORAL ARGUMENT
vi
TABLE OF CONTENTS
vii
TABLE OF AUTHORITIES
1
JURISDICTIONAL STATEMENT
2
STATEMENT OF THE ISSUES
2
STATEMENT OF THE CASE
2
ARGUMENT
5
Prayer/Conclusion
12
CERTIFICATE OF SERVICE
14
CERTIFICATE OF COMPLIANCE
15
A Table of Contents is required by FED. R. APP. P. 28(a)(2). As you complete the
brief the table of contents will have to be updated. ( I do not understand
how to complete this properly, and need more time to amend.)
vii
Case: 21-50013
Document: 00516017897
Page: 8
Date Filed: 09/16/2021
TABLE OF AUTHORITIES
Cases
Pages(s)
Type here a Table of Authorities as required by FED. R. APP. P. 28(a)(3). As you
complete the brief the table of authorities will have to be updated.
(I do not understand how to complete this properly, and need more
time to amend.)
1
Case: 21-50013
Document: 00516017897
Page: 9
Date Filed: 09/16/2021
JURISDICTIONAL STATEMENT
The events of this case occurred in Austin, Texas on Public Property. This Court
has jurisdiction over Texas, Mississippi and Louisiana, the 5th Circuit and
Questions of Constitutional Issues including 42 U.S.C. 1983 Deprivation of Civil
Rights. As it is a issue of Federally protected Civil Rights in the 5th Circuit. And
has jurisdiction over orders and judgements made at the Federal Civil Court in
Austin, Western District, 5th Circuit.
STATEMENT OF THE ISSUES
Should indigent, pro se litigants that do not have an understanding of the
complexities of law, and lack proper counsel be afforded access in the interests of
justice or should the status quo be protected at all costs?
Like issues of access to the Court and barriers. There were issues of timing during
the pandemic closures. And issues with strict timelines and hard deadlines. There
was a power dynamic that is apparent between the two parties, affecting access to
law, legal process barriers. Motions for appointment of Counsel were denied. All
helped create a de facto barrier and blocked this case and my justice every which
way denying discovery and a trial. Causing further harm on me and my rights to a
redress of grievances from my government for deprivation of civil rights, under
color of law.
STATEMENT OF THE CASE
This case is a suit for damages and protections to violations of First Amendment
Civil Rights under 42 U.S.C. 1983 deprivation of rights. This claim was filed in the
Western District Federal Court in Austin, Texas, U.S.A.
2
Case: 21-50013
Document: 00516017897 Page: 10 Date Filed: 09/16/2021
As I am a laymen, pro se, without access to law and counsel in a pandemic with
multiple closure barriers, I requested and motioned for appointment of counsel.
The case was complex, difficult, the rules, procedures and deadlines too difficult
for me without proper resources. There was an unfair access to resources and
power dynamic present that was obvious to me.
Without access to counsel I was unable to argue for accountability for patterns,
practice, policy, statutes, and citations that would help sustain accountability and
justice when it comes to U.S.C. 1985 conspiracy of parties, etc, against the City's
attorneys and almost unlimited staff. Qualified immunity was applied unfairly and
prematurely I believe. Barriers to access to law. This is a failing in my
understanding of case law, law research, access to research staff.
Then then Covid-19 pandemic hit us hard. Law Libraries, Courts, businesses,
everything changed and access changed. Another set of exceptional circumstances
that should offer exceptional relief.
Defense counsel and I did not confer or set a discovery schedule for a long time as
the closures and pandemic emergency continued across Austin and the U.S.A..
During this emergency pandemic shutdown District Judge Lee Yeakel filed a show
cause order on October 27th, 2020 with a deadline of November 3, 2020. 5 days.
A layman, I did not understand what that order implied and I sought more
information. I felt that 5 days was not enough time to respond and with dismissal.
The case was dismissed without prejudice for lack of prosecution. I tried to reopen
the case, stay the order and submitted a proposed scheduling order as soon as I
could figure it all out without counsel. And that was denied also on December 18,
2020.
As I had no other recourse for justice I filed a notice of appeal on January 5, 2021.
3
Case: 21-50013
Document: 00516017897
Page: 11
Date Filed: 09/16/2021
I seek remedy and justice for my grievances and deprivation of rights.
SUMMARY OF THE ARGUMENT
In this case the District Court the barriers to reasonable access to the Courts, to
law, and to justice are glaring.
There were no hearings, evidence process or trial proceedings on this case. And the
actual facts and matters of laws of this violation were never brought to the civil
Court. Qualified Immunity was not contested with any form of counsel for the
Plaintiff.
Instead this indigent, pro se, layman plaintiff was denied meaningful access to the
Court and law. All motions and requests were denied for assistance of counsel and
expert assistance. The process and barriers of law, barriers to civil counsel, during
ongoing Covid shutdowns created a de facto barrier and blocked this case and my
justice every which way denying any type of a trial, therefore there are no recorded
references, there is just the clerks record of motions.
My case was dismissed without enough time to respond, 5 days notice during the
Nation-wide Novel Coronavirus Covid-19 Pandemic. While most Courts were
closed and Law Libraries too.
I motioned the Court to reopen this case that was dismissed without prejudice, and
they refused. I submitted a scheduling order and contacted the Defendants' attorney
with the scheduling order. The Court made no reference to the fact that defendants'
counsel ignored their shared a responsibility to meet and confer about the
scheduling order prior to dismissal. Although I mentioned this in the motion to stay
the order to dismiss, which was denied by the Court.
4
Case: 21-50013
Document: 00516017897
Page: 12
Date Filed: 09/16/2021
Although the District Court references my previous failed cases. They failed to
mention how this case is similar in that I am not an expert in Civil law, I have been
denied counsel and I have been denied reasonable access to the court, to the Law
and to Justice. Which is why this and previous cases have been dismissed at the
Austin Western District Court, 5th Circuit. And which shows a major concern for
this appeal, as a matter of law and not to be deferred to the lower Courts'
judgement of final determination. Our ability to exercise and protect our civil
rights under U.S.C. 1983 depends on this Appellate Court decision.
Should pro se plaintiffs be put in this position and their Rights be left undefended
SO easily without proper access and counsel?
How does supporting the status quo and limiting access affect the long-term power
of our civil rights and justice as a whole over time?
ARGUMENT
This is a case of how can the Court assist in the timely and orderly cases that
involved complicated laws, evidence, discovery, deadlines, and access to both the
Courts and the law.
Also the Austin Police Department, who I believe discovery will show, has a
pattern and practice of police abuse of photojournalists and activist. But I was not
able to get to the discovery stage to prove this. Effectively obliterating the
conspiracy of parties and also protecting qualified immunity for alleged civil rights
violation under color of law. Protecting the status quo of law, leaving no room for
ultimately protection our civil rights and defending the constitutional law that we
all need to protect us in daily life.
5
Case: 21-50013
Document: 00516017897
Page: 13
Date Filed: 09/16/2021
The Austin Police Department was given qualified immunity for this complaint. I
was not given an oral hearing, although I requested one for this decision. I did not
have Counsel or access to the Courts or law, SO this qualified immunity devision
which goes against my conspiracy of parties complaint, denies justice in this case
and should be reconsidered with access to law and the Courts and a hearing.
False arrest and police retaliation are still unlawful. Unlawful and criminal actions
should be considered as qualified immunity should not be intended to protect
public servants and municipal organizations that violate federal, state laws.
The City's attorney helped to cause this dismissal by not making any attempt to
setup a scheduling order. The City's attorney also led a deposition on another case
involving Austin police. A wrongful death suit, a separate case non direct related,
from another Austin Plaintiff. Even though he recognized me, I did not recognize
him. The lead attorney for Defense should have done due diligence and followed
the FRAP rules and made contact in good faith as they understand the rules and
procedures and I do not, I am a layman. As they had access to my contact
information and chose not to make contact. Defending my rights without good
understanding of the rule, law and procedures. Previously I have filed Civil Rights
Suits. 2 against the City of Austin's Police and Department for similar instances of
police retaliation and abuse and false arrest for lawfully filming them at work with
the Public, and engaged in apparent police abuse on the Public as well. The first
case was actually for the shooting and killing of my companion animal, Shiner
Bock, case ( 1:15-cv-327-RP) and the Court granted motion of appointment of
counsel SO I was able to make a settlement agreement with the City of Austin for
social justice and the safety of dogs and police as well. To reduce the numbers of
lethal force incidents by police encountering dogs in public and private settings.
The assignment of Counsel enabled Justice to be done, access to law and the
Courts, and the case proceeded in an organized fashion in the interests of Justice
and Societal Justice as well as Peace and public safety.
The next case where I was filming the Austin police at a protest against police
brutality and racism, I was dog-piled, beaten, tazed, and almost killed in several
ways for filming the police at work in public, attacking men, women and children
that were involved in peaceful protesting. That case is 1:17-cv-908-RP and it was
dismissed as I had no access to Counsel and could not understand and keep up with
6
Case: 21-50013
Document: 00516017897
Page: 14
Date Filed: 09/16/2021
the rules and procedures of the Court. Without access to the Counsel and the law
and the Courts, I had no chance for Justice. The People and the Judicial System as
well were denied actual Justice also. This case was dismissed with prejudice for
my not having access to Counsel the law or the Courts.
This case is similar in that there is no Counsel and I have been denied access to the
Court, to the Law and to Justice. Which is why it has been dismissed at the Austin
Western District Court, 5th Circuit. And which is one major concern for this
appeal. The status quo again protected, no rights, no justice due to meaningful
access.
During this emergency pandemic shutdown District Judge Lee Yeakel filed a show
cause order on October 27th, 2020 with a deadline of November 3, 2020. 5 days.
A layman, I did not understand what that order implied and I sought more
information. I felt that 5 days was not enough time to respond and with dismissal.
The case was dismissed without prejudice for lack of prosecution. I tried to reopen
the case, stay the order and submitted a proposed scheduling order as soon as I
could figure it all out without counsel. And that was denied also on December 18,
2020.
I have previously told the court in writing that I have PTSD from repeated police
abuse incidents and that I requested reasonable accommodations under the
American Disabilities Act, time and leniency. That was apparently ignored as no
mention of reasonable accommodation was made by the Court. PTSD is real.
Litigation without counsel is further PTSD.
I requested counsel from the onset of the case, early on. And I tried to assert my
prayers for relief and leniency on the court's original response and
recommendations, but was not considered seriously for erroneous and seemingly
strict reasons. And they were overruled without prejudice.
Even as late as June 28, 2019 I was still motioning for time and assistance with the
simple task of efiling motions. A task that the City's counsel had no problems with.
A task that appointed counsel would have no problems with. I was lost and needed
7
Case: 21-50013
Document: 00516017897
Page: 15
Date Filed: 09/16/2021
help with basic procedures and rules over and over including missing important
deadlines due to no understanding of rules and law. And no access to case law to
guide me.
As I had no other recourse for justice I filed a notice of appeal on January 5, 2021.
I seek remedy and justice for my grievances and deprivation of rights and for lack
of meaningful access to law and the courts.
I apologize in advance for the lack of citations that refer to the appendix. I ran out
of time and do not understand the appendix and quotations. This would be a lot
better if I had counsel and understanding of the all the rules and terms of law.
Regarding meaningful access and the Courts:
Constitutional Treatment and Meaningful Access to the Courts by Pro Se Litigants
Trial courts possess a discretionary range of control over parties and proceedings
which will allow reasonable accommodations to pro se litigants without resultant
prejudice to adverse parties. Pro se parties, like other litigants, should be provided
the opportunity to have their cases "fully and fairly heard SO far as such latitude
inconsistent with the just rights of any adverse party." Conservation Commission
v.Price, 193 Conn. 414, 479 A.2d 187, 192 n. 4 (1984). We are not proposing that
trial judges should become surrogate attorneys for pro se litigants. The
fundamental tenet that the rules of procedure should work to do substantial justice,
[6] however, commands that judges painstakingly strive to insure that no person's
cause or defense is defeated solely by reason of their unfamiliarity with procedural
or evidentiary rules.See, e.g., Mazur V. Department ofTransportation,5 507 F. Supp. 3
(E.D.Pa.1980), aff'd, 649 F.2d 860 (3rd Cir.1981),cert. denied, 452 U.S. 962, 101
S. Ct. 3111, 69 L. Ed. 2d 973 (1981); Connecticut Light and Power Company V.
Kluczinsky, 171 Conn. 516, 370 A.2d 1306 (1976); Lombardi v.Citizens Nat'l Trust
& Savings Bank,137 Cal. App. 2d 206, 289 P.2d 823 (1955).
8
Case: 21-50013
Document: 00516017897 Page: 16 Date Filed: 09/16/2021
Making reasonable accommodations to protect a self-represented litigant's right to
be heard, SO long as those accommodations do not give the self-represented litigant
unfair advantage. This Rule does not require a judge to make any particular
accommodation. In a joint resolution adopted in 2012 (http://tinyurl.com/
lqyp4rz), the Conference of Chief Justices and the Conference of State Court
Administrators also put the handling of cases involving pro se litigants in the
context of "the importance of access to justice for all," noting "access to courts
extends both to lawyer-represented and self-represented litigants." Other codes
affirmatively state a judge's ability to accommodate self-represented litigants,
rather than use the "it is not a violation" formulation of the model code. The
California comment explains that, "when a litigant is self-represented, a judge has
the discretion to take reasonable steps, appropriate under the circumstances and
consistent with the law and the canons, to enable the litigant to be heard." The
Montana version of comment 4 provides: "A judge may make reasonable
accommodations to ensure self-represented litigants the opportunity to have their
matters fairly heard." TheMissouri comment is the same except that it uses
"afford" rather than "ensure." "Some states further emphasize the importance of this
exercise of judicial discretion by placing the language in the text, not just in a
comment. In its resolution, theConference of Chief Justices recommended adding
"a judge may make reasonable efforts, consistent with the law and court rules, to
facilitate the ability of all litigants,including s self-represented litigants, to be fairly
heard" to the text of the rule. TheLouisiana, New Hampshire, and Wisconsin codes
have included that language in the text. In the text of its rule, the Illinois code
includes that language but refers only to self represented litigants, not to "all
litigants."
The Wisconsin list also includes "permitting narrative testimony" and"allowing
litigants to adopt their pleadings as their sworn testimony." Other states have
adopted lengthier guidelines separate from the code of judicial conduct. For5
example, judicial guidelines for civil hearings involving self-represented litigants
have been adopted by the Delaware Supreme Court(http://courts.delaware.gov/
Supreme/AdmDir/ad178 guidelines.pdf) and theMassachusetts courts (http://www
.mass.gov/courts/court-info/trial-court/exec-office/ocm/jud-institute/jg-self-
9
Case: 21-50013
Document: 00516017897 Page: 17 Date Filed: 09/16/2021
rep.html). The two states' guidelines are similar but not identical. Both include
general practices and guidelines for pre-hearing interaction,conducting hearings,
and post-hearing interaction. Specific topics in either or both include plain English,
language barriers, legal representation, application of the law, materials and
services for self represented litigants, opportunity to be heard,managing the case,
preparation, trial process, brevity and consistency, burden of production and proof,
ex parte communications, the judge as fact-finder, right off elf-representation,
settlement, approval of settlement agreements, alternative dispute resolution,
courtroom decorum, stress, evidence, issuing the decision, and appeals. The
Delaware guidelines explain: It is proper that Judges exercise their discretion to
assume more than a passive role in assuring that during litigation the merits of a
case are adequately presented through testimony and other evidence.
A. Meaningful Access to the Courts for Self-Represented Litigantshttps://
www.hostobuchan.com/.../meaningful-access-to-the-courts-for-self-
represented These individuals are referred to as self-represented litigants or pro se
litigants. duty to make certain that all individuals have meaningful access to the
courts.6
B. Accommodations for All - The Importance of Meaningful Access
to wwww.denverlawreview.org/.../accommodations-for-all-the-importance-of-
meaningful- Jun 7, 2018 - In county court civil cases, consisting primarily of
collections, evictions, and restraining orders, the pro se rate for responding parties
held steady 8. SEE[PDF]A.equal access to justice: ensuring meaningful
-
Columbia Law Schoolhttps://web.law.columbia.edu/.../equal_access_to_justice_- -
_cerd_shadow_report.pdfJul 2, 2014 - Significant numbers of litigants must
navigate the court system without a .thirty-seven states, the majority reported that
pro se litigants were
B. There is no justice as long as millions lack
meaningful access to ithttp://www.abajournal.com/news/article/
there_is_no_justice_as_long_as_millions_lack_meaningful_access_to_itAug 30,
2018 - There is no justice as long as millions lack meaningful access to it has
described the situation as a "pro se tsunami hitting the nation's courts.
10
Case: 21-50013
Document: 00516017897 Page: 18 Date Filed: 09/16/2021
C.
Court-Supported Assistance to Litigantshttps://www.ncsc.org/microsites/
ccess.../Court-Supported-Assistance-to-Litigants.aspxEvaluating pro se litigation
at
the Tarrant County Family Law Center. EnsuringMeaningful Access to
Appellate Review in Non-Criminal Cases Involving
D.
Pro Se Litigants In The Code Of Judicial Conduct - National Center for 7
https://www.google.com/search?ei=MOmCXNK7NIK15gLyk6zABw&q=+Pro+Se
++Meaningful+Access+to+the+court&oq=+Pro+Se++Meaningful+Access+to+the
+court&gs_l-psy-ab.
3..33i29913.10738.24341..27181...0.0..3.425.7751.7j27j5j5j1..
wiz
0i71j33i160j0j0i273j0i67j0i22i30j0i13j0i13i30j0i13i5i30j0i8i13i30j33i22i29i30.6
510ZZxpolAMeaningful access requires some tolerance by courts toward litigants
unrepresented by counsel.
Wherefore Premises Considered, this plaintiff requests Appeal as I was effectively
denied a fair trial was Denied Meaningful Access to the District Court and no
Evidence was entered in the Court. And the detail of counsel effectively terminated
my case due to my lack of ability and access to law.
FURTHER : .Plaintiff was denied Equal Protection and Due Process of law by
being denied meaningful access to law and to the District Court. respectfully
requests that the Court extend all reasonable efforts to Plaintiff as an indigent pro
se litigant in accordance with the American Bar Association's Model Rules for the
meaningful Access to the Courts and the Protection of his Rights under the
Constitution of the United States and the State of Texas.SEE[PDF]Pro Se Litigants
In The Code Of Judicial Conduct - National Center for :https://www.ncsc.org/~1
media/Files/PDF/Topics/../JCR/JCR%20Fall%202014.ashx1.CachedMeaningful
access requires some tolerance by courts toward litigants
American
BarAssociation Model Code of Judicial Conduct in 2007. Rule 2.2 provides
[PDF]The Professional Responsibility of Fair Play When Dealing with a
Pro .https://home.innsofcourt.org/AIC_PDFs/Burger_Prize/
Burger_2017_Yee_Essay.pdfRelated articles dealing with pro se litigants presents
challenges to the lawyers opposing them.1: se party. To be sure, the law of
11
Case: 21-50013
Document: 00516017897
Page: 19
Date Filed: 09/16/2021
lawyering includes Model Rule 4.3 of the ABA
Chase T. Rogers, Access to
Justice: New Approaches to Ensure Meaningful.
Prayer/Conclusion
I
apologize to the Court as I do not presently have sufficient training in law, I do
not understand the citations and other items in this brief, which is why I asked the
Courts repeatedly for an attorney and legal experts for this brief and previous
submissions to the courts. I ask for leniency, guidance, permission and time to
amend, etc. Not sure how to ask any more than I already have. In the interests of
life and justice and the inequities of that access for indigent, pro se litigants. I pray
that this court will defy the status quo and uphold the access to law for people like
me and cases like this.
Also I have requested additional time and consideration of my motion for
extension of time. I request that the Court reconsider, add additional time for
counsel, to do research, for guidance, etc. And then dismiss this brief to be
resubmitted more completely at a later date. At least 30 days please.
The system of police accountability and transparency of government in Austin,
Texas is broken and this is my last remedy for my grievances. Hear my prayers
for justice, protection and change.
I
pray that the Court would reopen this case and let it proceed to discovery with a
new scheduling order between the 2 parties. Allow arguments of fact to be
introduced. And allow for the completion of this case in the interest of access to
12
Case: 21-50013
Document: 00516017897
Page: 20
Date Filed: 09/16/2021
law, the courts and protection of our Constitutionally protect civil rights and in the
name of justice for the people.
I pray for remedy, relief in the name of justice and for my grievances and
deprivation of rights by these officers and their organization patterns, practices,
supervision and policies that created this injury.
SUBMITTED BY:
s/ Julian Reyes, pro se
Mr. Julian Reyes
512 785-1749
10900 Research Blvd
Suite 160c Box 147
Austin, Texas, U.S.A. 78759
justicenowpeople@protonmail.com
julian.reyes.human@gmail.com
13
Case: 21-50013
Document: 00516017897
Page: 21
Date Filed: 09/16/2021
CERTIFICATE OF SERVICE
I certify that on 09/16/2021, the foregoing document was served, via the Court's
CM/ECF Document Filing System, upon the following registered CM/ECF users.
Which will cause a copy of the document to be electronically delivered to
Appellant's attorney, Mr. David May and Mr. Henry Laird, defendants' counsel.
s/ Julian Reyes, pro se
14
Case: 21-50013
Document: 00516017897
Page: 22
Date Filed: 09/16/2021
CERTIFICATE OF COMPLIANCE
1. This document complies with the type-volume limit of FED. R. APP. P. 32(a)(7)
(B) because, excluding the parts of the document exempted by FED. R. APP. P.
32(f) and 5th CIR. R. 32.1: this document contains 4311 words.
2. This document complies with the typeface requirements of FED. R. APP. P. 32(a)
(5), and 5th CIR. R. 32.1 and the type-style requirements of FED. R. APP. P. 32(a)(6)
because this document has been prepared in a proportionally spaced typeface
using Apple Pages version 5.6 in 14-point Times New Roman.
s/ Julian Reyes, pro se
15
Case 21-50013
Document: 00516052833 Page: 1 Date Filed: 10/13/2021
STATES
COURT
OF
UNITED
JUDICIAL
Sincere
United States Court of Appeals
A True Copy
for the Fifth Circuit
Certified order issued Oct 13, 2021
Tyle w. Cayce
Clerk, U.S. Court of Appeals, Fifth Circuit
No. 21-50013
JULIAN M. REYES,
Plaintiff-Appellant,
versus
QUINT SEBEK, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY,
BADGE# 3454, AUSTIN POLICE DEPARTMENT; SERGEANT FNU
VALLEJO, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY,
AUSTIN POLICE DEPARTMENT; CAPTAIN FNU RYAN,
INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY, CAPTAIN,
AUSTIN POLICE DEPARTMENT; JOHN DOE, OTHER RESPONSIBLE
PARTIES TO BE NAMED LATER THROUGH THE PROPER
DISCOVERY OF EVIDENCE, INDIVIDUALLY AND IN THEIR
OFFICIAL CAPACITIES,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:19-CV-367
CLERK'S OFFICE:
Under 5TH CIR. R. 42.3, the appeal is dismissed as of October 13,
2021, for want of prosecution. The appellant failed to timely a sufficient brief
and to file record excerpts.
Case: 21-50013
Document: 00516052833
Page: 2
Date Filed: 10/13/2021
No. 21-50013
Because the brief remains insufficient, if appellant moves to reopen
the appeal, both record excerpts and a sufficient brief must accompany any
motion to reopen this appeal.
LYLE W. CAYCE
Clerk of the United States Court
of Appeals for the Fifth Circuit
Melissa Martingly
By:
Melissa V. Mattingly, Deputy Clerk
ENTERED AT THE DIRECTION OF THE COURT
2
Case: 21-50013
Document: 00516052832 Page: 1
Date Filed: 10/13/2021
United States Court of Appeals
FIFTH CIRCUIT
OFFICE OF THE CLERK
LYLE W. CAYCE
TEL. 504-310-7700
CLERK
600 S. MAESTRI PLACE,
Suite 115
NEW ORLEANS, LA 70130
October 13, 2021
Ms. Jeannette Clack
Western District of Texas, Austin
United States District Court
501 W. 5th Street
Austin, TX 78701-0000
No. 21-50013
Reyes V. Sebek
USDC No. 1:19-cv-367
Dear Ms. Clack,
Enclosed is a copy of the judgment issued as the mandate.
Sincerely,
LYLE W. CAYCE, Clerk
Melissa Martingly
By:
Melissa V. Mattingly, Deputy Clerk
504-310-7719
CC w/encl:
Mr. Henry Gray Laird III
Mr. Julian M. Reyes
Case: 21-50013
Document: 00516052695
Page: 1
Date Filed: 10/13/2021
United States Court of Appeals
FIFTH CIRCUIT
OFFICE OF THE CLERK
LYLE W. CAYCE
TEL. 504-310-7700
CLERK
600 S. MAESTRI PLACE,
Suite 115
NEW ORLEANS, LA 70130
October 13, 2021
MEMORANDUM TO COUNSEL OR PARTIES LISTED BELOW:
No. 21-50013
Reyes V. Sebek
USDC No. 1:19-CV-367
Enclosed is an order entered in this case.
Sincerely,
LYLE W. CAYCE, Clerk
Melissa Martingly
By:
Melissa V. Mattingly, Deputy Clerk
504-310-7719
Mr. Henry Gray Laird III
Mr. . Julian M. Reyes
Case: 21-50013 Document: 00516052696 Page: 1
Date Filed: 10/13/2021
United States Court of Appeals
for the Fifth Circuit
No. 21-50013
JULIAN M. REYES,
Plaintiff-Appellant,
versus
QUINT SEBEK, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY,
BADGE# 3454, AUSTIN POLICE DEPARTMENT; SERGEANT FNU
VALLEJO, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY,
AUSTIN POLICE DEPARTMENT; CAPTAIN FNU RYAN,
INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY, CAPTAIN,
AUSTIN POLICE DEPARTMENT; JOHN DOE, OTHER RESPONSIBLE
PARTIES TO BE NAMED LATER THROUGH THE PROPER
DISCOVERY OF EVIDENCE, INDIVIDUALLY AND IN THEIR
OFFICIAL CAPACITIES,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:19-CV-367
ORDER:
The original briefing order in this case issued on January 20, 2021.
Under that order, appellant's opening brief was due on March 1, 2021. On
March 2, 2021, the clerk extended appellant's deadline by 30 days. On March
Case: 21-50013
Document: 00516052696
Page: 2
Date Filed: 10/13/2021
No. 21-50013
31, 2021, the clerk extended appellant's deadline by another 30 days. On
April 27, the clerk suspended appellant's briefing schedule indefinitely while
the court considered and decided appellant's motion for appointment of
counsel. On July 1, the court denied appellant's motion for appointment of
counsel and gave appellant an additional 40 days to file his brief and record
excerpts. On August 5, 2021, the clerk granted appellant an additional 30 days
to file his brief and record excerpts. On September 16, 2021, the appellant
filed an insufficient brief. On October 6, 2021, the clerk denied appellant's
motion for an extension of time to file a sufficient brief and record excerpts.
Appellant now moves for reconsideration of the clerk's October 6 order. The
court is sensitive to the concerns expressed in appellant's pro se motion. But
this case has been pending for almost nine months, and it is unclear how an
additional month will move the case closer to disposition. IT IS
THEREFORE ORDERED that the motion is DENIED.
afted
ANDREW S. OLDHAM
United States Circuit Judge
2
Case: 21-50013
Document: 00516073907
Page: 1
Date Filed: 10/28/2021
Lone Star
Circle of Care
LSCC At GISD Richarte
2295 N Austin Ave
Health Clinic Suite
Georgetown, TX 78626-4514
Phone: (877)-800-5722
10/20/2021
To Whom It May Concern:
Julian Reyes was seen by virtual visit on 10/18/2021. He was advised to seek further medical treatment at the
hospital given severity of his illness.
If you require additional information please contact our office.
Sincerely,
Karen Long FNP-BC, CDCES
Document generated by: Karen Long, APRN 10/20/2021
Reyes, Julian Manuel. 000000327845 05/31/1968 10/20/2021 12:06 PM Page: /
Case: 21-50013
Document: 00516073908 Page: 1
Date Filed: 10/28/2021
Name: JULIAN REYES. DateOfBirth: 19680531. Description: CHEST, 2 VIEWS. Date:
10/18/2021 8:59:12 AM.
CHEST, 2 VIEWS: 10/19/2021
CLINICAL HISTORY: Shortness of breath and cough for two weeks.
COMPARISON: None available.
There are relatively mild bilateral and symmetrical infiltrates that are
nonspecific but consistent with pneumonia, suspicious for COVID pneumonia. The
cardiac silhouette is normal. No hilar, mediastinal, pleural, or significant
skeletal finding is detected.
IMPRESSION:
Bilateral pulmonary infiltrates are suspicious for pneumonia, particularly COVID
pneumonia.
Editor:vj
Note: Results were called to Daine P. at KAREN M LONG, NP office on 10/19/2021
9:03 AM - vj
Ronald Hoelscher, MD
Electronically Signed: 10/19/2021 9:10 AM
Austin Radiological Association
Referring Provider: LONG, KAREN
Performing Location: ARA
Electronically signed by Karen Long FNP on 10/19/2021 09:40 AM
Case: 21-50013
Document: 00516073909 Page: 1 Date Filed: 10/28/2021
Exhibit C
Travis County Law Library Web site
Screen Shot from October 28, 2021 1300 hours
C
https://lawlibrary.traviscountytx.gov
50%
TRANSLATE
Travis County Law Library & Self-Help Center
INFO + FORMS
LEGAL AID
CASE REVIEW
FAQ
RESEARCH
CONTACTUS
WE ARE STILL HERE TO HELP! LEARN HOW!
The Travis County Law Library and Self-Help Center is closed to in-person visits due to the COVID-19 Emergency.
We are continuing to provide services remotely by phone and email.
CALL US at 512-854-8677 Monday Friday 8 a.m.-5 p.m.
EMAIL US at ReferenceMaterial@traviscountytx.gov.
La Biblioteca Juridica del Condado de Travis está cerrada al público debido al COVID-19.
Continuamos proveer servicios por teléfono y correo electrónico.
LLAME al 512-854-8677 lunes viernes 8 a.m.-5 p.m.
ENVÍE SUS PREGUNTAS POR CORREO ELECTRÓNICO a ReferenceMaterial@traviscountytx.gov.
We help the Travis County community access legal information to help the courts advance fairness and equality in the
justice system.
Case: 21-50013
Document: 00516073910
Page: 1
Date Filed: 10/28/2021
Exhibit D
Travis County Courts Docket
Screen Shot from October 28, 2021 1500 hours
https://publiccourts.traviscountytx.gov/dsa/#/
*
attorney or the court gave you different instructions, please follow those.
If you are unable to afford a lawyer, please call 512-854-9381 and select option 5. You will
be transferred to a Pretrial Officer who will complete the indigence screening.
I want to see court dates by:
Person Name Attorney Name Court Number Case/Cause Number Bond Review Docket
Last Name Required First Name
Search Q
Print (0)
Use the checkboxes to select which settings to print. You can click on a column heading to sort the list.
English
Defendant
Attorney
Cause
Date & Time
Appear at CourthouSeurt
Floor
Type
Charge
REYES, JULIAN
MARTINEZ,
C-1-CR-20-207122
11/1/21 8:30 AM
No
CC9
6
UNF
INTERFER
MANUEL
GILBERT
W/PUBLIC DUTIES
REYES, JULIAN
MARTINEZ,
C-1-CR-20-206275
11/1/21 8:30 AM
No
CC9
6
UNF
ASSAULT CAUSES
MANUEL
GILBERT
BODILY INJ
REYES, JULIAN
MARTINEZ,
C-1-CR-19-214588
11/1/21 9:00 AM
No
CC9
6
PTRC
CRIMINAL
MANUEL
GILBERT
TRESPASS
REYES, JULIAN
MARTINEZ,
C-1-CR-19-210517
11/1/21 9:00 AM
No
CC9
6
PTRC
CRIMINAL
MANUEL
GILBERT
TRESPASS
REYES, JULIAN
MARTINEZ,
C-1-CR-20-500327
11/1/21 9:00 AM
No
CC9
6
PTRC
INTERFER
MANUEL
GILBERT
W/PUBLIC DUTIES
REYES, JULIAN
MARTINEZ,
C-1-CR-19-200182 12/6/21 9:00 AM
No
CC9
6
JTR
INTERFER
MANUEL
GILBERT
W/PUBLIC DUTIES
Case: 21-50013
Document: 00516073911
Page: 1
Date Filed: 10/28/2021
Exhibit D
Exhibit E
Austin Municipal Courts Docket
Screen Shots from October 28, 2021 1500 hours
Also there is a new case class C Misdemeanor for free speech, retaliation
arrest by multiple APD officers and sergeants not listed here as it has just
been filed case # 167400 making 2 cases in Municipal Court
htttps://www.austintexas.gov/AmcPublicInquiry/query/psnquery.aspx?query=3&case=8817081
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Case Detail for Person Reyes, Julian Manuel
Case Information
Case #
Type
Status
Date Filed
Date Closed
8817081
CRIM MISD
TBS ATAD
2/7/2020
Defendant Information
Defendant
Total Cost
Amount Paid
Balance Due
REYES, JULIAN MANUEL
$381.00
$0.00
Person Case Detail Table
$381.00
Violation Information
Code
Violation
Date Ticket Issued
41810
DISREGARD ORDER OF PEACE OFFICER
2/7/2020
Scheduled Events
cheduled Events
Event
Date
Time
COMPLAINT GENERATED BY MAGISTRATION
2/7/2020
11:13 PM
ISSUED
2/7/2020
11:14 PM
PROBABLE CAUSE AFFIDAVIT FILED
2/7/2020
11:14 PM
ARRESTED ON CLASS C'S ONLY
2/7/2020
11:17 PM
ARRAIGNMENT
2/8/2020
07:00 AM
NITIAL APPEARANCE DATE
3/6/2020
06:00 PM
BOOKED RELEASED TO APPEAR
3/9/2020
06:00 PM
NOTICE TO APPEAR-DOCKET CALL
3/12/2020
04:36 PM
NOTICE COURT CANCELLED
4/1/2020
02 Person Case Detail Table
ro BE SCHEDULED FOR CRIMINAL APPEARANCE DOCKET
4/1/2020
02:11 PM
MANUAL CALL MADE RESET COURT DATE
4/7/2020
10:02 AM
MISDEMEANOR APPEARANCE DOCKET
4/22/2020
03:30 PM
DIALER ATBS SMS LEFT TEXT MESSAGE
2/11/2021
12:00 PM
NOTICE TO APPEAR VIRTUAL DOCKET
8/11/2021
02:22 PM
TALTR LETTER NOT MAILED LAST KNOWN ADDRESS IS BAD
9/9/2021
12:00 AM
/IRTUAL CRIMINAL MISDEMEANOR APPEARANCE DOCKET
9/9/2021
01:30 PM
ORDER OF THE COURT JUDGE'S ORDER
9/9/2021
05:00 PM
FAIL TO APPEAR -LETTER
9/9/2021
05:00 PM
FAILURE TO APPEAR IN COURT
9/9/2021
06:00 PM
DEADLINE TO SHOW CAUSE
10/16/2021
12:00 AM
DEFENDANT MOTION FOR CONTINUANCE FILED (1ST)
10/20/2021
07:28AM
MOTION FOR DISCOVERY
10/20/2021
07:31 AM
JUDICIAL ORDER MOTION FOR CONTINUANCE
10/21/2021
07:26 AM
ro BE SCHEDULED FOR CRIMINAL APPEARANCE DOCKET
10/21/2021
07:29AM
CORRESPONDENCE FROM E-MAIL
10/21/2021
07:34AM
PLEA: NOT GUILTY
10/21/2021
07:37 AM
CORRESPONDENCE FROM E-MAIL
10/21/2021
08:43 AM
MOTION FOR DISCOVERY
10/28/2021
02:31 PM
ATTORNEY LETTER OF REPRESENTATION
10/28/2021
02:31 PM
ATTORNEY ADDED TO CASE
10/28/2021
02:31 PM
ro BE SCHEDULED FOR ATTORNEY DOCKET
10/28/2021
02:31 PM
CORRESPONDENCE FROM E-MAIL
10/28/2021
02:33 PM
PAY ONLINE CALENDAR MEDIA CENTER FAQ CONTACT US SITE MAP LEGAL NOTICES PRIVACY POLICY 3-1-1
Case: 21-50013
Document: 00516073906
Page: 1
Date Filed: 10/28/2021
UNITED STATES 5th CIRCUIT APPELLATE COURT
Julian M. Reyes
Plaintiff
§
V.
§
Appellate Case no. 21-50013
Originating Case no. 1:19-cv-00367
§
OFFICERS QUINT SEBEK, Badge
§
3454, SGT VALLEJO, CAPN
RYAN, AUSTIN POLICE
§
DEPARTMENT, and other
§
responsible "JOHN DOE"
parties to be named later through the
proper discovery of evidence,
all individually and in their official
capacities
Defendants
Motion for Reconsideration of Extension of Time to file Sufficient Brief,
citations, appendix and record excerpts
I, Julian Reyes, pro se, request an extension of time of for 30-90 additional
days to file the appellant's brief. Time to be able to file it sufficiently, hopefully,
including citations, appendix and record excerpts. Legal techniques and legal
process that I still do not understand well enough to accomplish without legal
assistance. Legal assistance that I have been unable SO far to afford, and legal
assistance which the Court has not been willing to assist this indigent pro se
1
Reyes V Sebek Motion Ext Time Suff Brief rev 10-27-2021
Case: 21-50013 Document: 00516073906 Page: 2 Date Filed: 10/28/2021
complainant with to date. The Court having previously denied my motions and
pleas for appointment of sufficient Counsel or legal aide.
I am currently still very ill due to the the diagnoses of Covid-19 Pneumonia.
And I have fever, body aches, headache, and problems regulating my temperature.
I have low Oxygen and my energy is depleted due to this illness as well. I am
forced to shelter in place and trying to get well as much as possible. I have been
prescribed Albuterol inhaler and urged by the Doctor and the Nurse to report to an
emergency room immediately and get on a regimen of intravenous antibiotics.
There is a possibility that I could die in my sleep from the fluid in my lungs,
according to the doctor on the phone, unless I go to an Emergency Room at the
Hospital and seek immediate care. The U.S.A. and Austin are both still in
pandemic emergency and CDC guidance for the Covid-19 pandemic. I seek
leniency and understanding on this case for this reason and all the legal access
reasons that I previously stated and are found below. See Exhibits A, B
Before I filed the last motions for extension of time. I was instructed by the
case team to file the motion for extension of time and extension of time to file a
sufficient brief. And then the same team member seems to have denied my motion
without consideration of the amount of limitations that this pro se indigent plaintiff
2
Reyes y Sebek Motion Ext Time Suff Brief rev 10-27-2021
Case: 21-50013 Document: 00516073906 Page: 3 Date Filed: 10/28/2021
is under or my sickness or even provide an oral hearing over Zoom to present my
arguments in a better forum, as I requested Oral Argument in all my motions.
One major limitation and cause of needing time is that I have not had access
to an attorney or research staff. As the defenses' legal team from the City of Austin
Legal Department has ready access to almost unlimited resources at their disposal,
creating many advantages and immunities to law, transparency and accountability
of public servants working with the public.
All the while the Travis County Law Library, where my research lies,
remains closed due to Covid closures. When I spoke to them this week they told
me they do not have an ETA or plan for when they will reopen from the Covid
closure. See Exhibit C. And that is another reason I have had limitations on
access to law and any assistance or resources there for the brief, for rules, opinions
and procedures and to cite relevant case law. Which also seems to not be
considered by the Court and clerks.
I still feel an overwhelming need to have an attorney to assist with this case
and the brief for this case. Which I do not understand. I will continue to ask about
legal advise or an available attorney on my own. I will continue to study and work
on the brief and try to obtain access to actually research relevant case law, wait for
3
Reyes V Sebek Motion Ext Time Suff Brief rev 10-27-2021
Case: 21-50013
Document: 00516073906 Page: 4 Date Filed: 10/28/2021
the Travis County Law Library to reopen. Albeit case research has proven very
difficult to read and use I have found. See Exhibit C
This case did not have the assistance of counsel and that is why it struggled
under the rules, deadlines and complexity of the law itself. The complexity of laws,
procedures, rules and lack of access to law is not the fault of this pro se indigent. It
is the fault of the system and the law. The law, rules, procedures present an ever-
growing complex of barriers against the access of law for indigent laymen and
people in the U.S.A. in similar conditions.
Though this case's merits met the scrutiny of the District Court. The reason
that I have appealed the decisions of the District Court is access to the law and
legal counsel in the interests of Justice and Equality under the law. Access to law
should not be this complicated, complicit to injustice, or a barrier itself to Justice
and Equal Justice under the Law. There are unresolved complicated but very
important inalienable constitutional issues and basic rights at risk in this case,
including but not limited to 1st amendment rights of free speech and free press,
transparency of government, accountability of public servants, access to law and
the courts, access to a path for indigent pro se litigants to access to counsel and the
law, and our rights to a forum in court for discovery of evidence and a right to a
redress of grievances should we have our rights stripped by public servants
4
Reyes V Sebek Motion Ext Time Suff Brief rev 10-27-2021
Case: 21-50013
Document: 00516073906 Page: 5 Date Filed: 10/28/2021
working as confederates together in conspiracy of parties against our rights. Also
there are unresolved essential and inalienable Constitutional questions of Citizens'
rights to protections under the 4th, 14th, 5th, and 8th amendments to the
Constitution of the U.S.A. in this case that are are at risk of losing without justice
and access to law, counsel and the court. The barriers I have noticed in this case
being rules, procedure and inability to access legal help. Which prevented even
discovery of evidence, a basic process of our rights to justice and accesses listed
above.
As you can see by the parties in my complaint I still have not been provided
with any evidence that would shed a light of day on the officers involved or even
Captain Ryan's actual name for over a year now in this case, SO that I could
properly name all the responsible and harming parties that retaliated for my free
speech, filming, and free press rights causing me harm to my other constitutional
protections the 4th, 14th, and 8th amendments as well as USC 1985 conspiracy of
parties to deprive me of my first amendment rights listed above. See title and
parties. And also see the dismissal disposition without prejudice from the lower
District Court of Austin.
Though I have been reading the FRAP and confused by them, the language,
the nuances of the rules and law, and rules behind them and surrounding them. I
5
Reyes y Sebek Motion Ext Time Suff Brief rev 10-27-2021
Case: 21-50013
Document: 00516073906 Page: 6 Date Filed: 10/28/2021
have concentrated on the brief rules and found them overly cumbersome, the rules
on the brief outlines, the technical details for appendix and citations and not to
mention finding relevant case law. In fact some of the rules not only contradict
established case law, like access to counsel and the courts. Some of the rules , it
appears to me, create barriers to justice and civil rights, also creating injustice in
themselves, outside of the Judicial Review system created by the case law and
constitutional law system itself. Rules should not supersede or be a barrier of
Justice and our Rights to access. Instead the court's rules should enhance and
support justice and our rights to access to law, the courts and counsel. In the
interest of justice for all. Not just for those that have ample funds to hire lawyers.
Creating a class based system that supports the status quo and bars the indigent,
pro se persons' rights and justice. If all people are created equally, with equal
access, regardless of a person's unequal access to the US dollar stacks in their
coffer and BAR cards.
In contacting the Appellate Court's Law Library they did not have any
information to assist indigent pro se litigants with the brief. They referred me to
find counsel or do my own legal research. A barrier to justice and access. This
should be remedied immediately for all pro se litigants seeking help with cases in
this court.
6
Reyes V Sebek Motion Ext Time Suff Brief rev 10-27-2021
Case: 21-50013
Document: 00516073906
Page: 7
Date Filed: 10/28/2021
As I am an indigent layman all the above were all further barriers for legal,
rules, case law and research for me. I have been unable to access research materials
and law that are I feel required to my filing a sufficient and successful brief to
allow me to find justice in the court. The process and rules of the Court have
proven laborious barriers to me as I am without counsel, without proper legal
training and the pandemic has more severely limited any real access to the law and
research of the law and this appellate law. Which, if resolved, should have led to
the best results of Justice for all and support of the rights of regular Citizens of the
U.S.A.. To support the Citizens' rights, justice and the Constitution of the U.S.A..
Many public servants swore an Oath to defend the people and Constitutional law of
the U.S.A. and yet there are judicially constructed barriers to those Oaths being
fulfilled. We must review and scrutinize those barriers to truly have freedom, rights
and justice for all in the U.S.A. for the people that the law is meant to serve, the
citizen, the indigent, the regular Joes of America, like myself.
I still do not understand the brief well or have access to case law and tools of
legal research.
7
Reyes V Sebek Motion Ext Time Suff Brief rev 10-27-2021
Case: 21-50013
Document: 00516073906 Page: 8 Date Filed: 10/28/2021
These are the details that take up time. Counsel, if I had counsel, would
already be familiar with rules, procedures, legal research, briefs and would have
access to specialized research tools, templates, forms and legal research
subscriptions, legal publications that are readily available for lawyers and are
expensive. That cost is a barrier to access for indigent pro se people like myself. If
I had counsel this case would have in turn been already expedited to proceed on it's
merits and questions of constitutional basis under Constitutional issues of the 1st,
4th, 14th and 8th amendments, U.S.C. 42 sections 1983 and 1985. Not bogged
down like it is now, dismissed prematurely, due to rules, technicalities and
complexities of the process of law for me, an untrained layman indigent Citizen.
After conversation with the Appellate Court's Case Team I decided to
request these extensions of time. Which are to presently being denied and
impacting my case, with multiple dismissals. I filed this as instructed by the clerk
at the time of the pending deadline. Because the brief still remains more complex
than I had realized and the appendix, excerpts are not to be delayed after filing the
brief as I had previously thought from my readings of the rules of procedure.
Which would have provided me more time, as I had read some place previously
online.
8
Reyes V Sebek Motion Ext Time Suff Brief rev 10-27-2021
Case: 21-50013
Document: 00516073906 Page: 9 Date Filed: 10/28/2021
Presently the record excerpts and appendix rules are still confusing to me.
And I would not be able to get much done before the brief's deadline with
extensions of time. It's overwhelming and inaccessible to me presently, without
counsel or access to law and the courts.
I would like to request a reconsideration to the answer to the Motion to
Appoint Counsel that is the primary limitation of access to law and justice in this
case keeping it from a righteous conclusion under law. And the limitation to my
completing a sufficient brief, etc.
As I am still just a layman without good working knowledge of the
processes, procedures, briefs and rules of the Courts. Having no formal access or
training in law. And facing the team of attorneys of the Defense that work for the
City of Austin, Inc. in a complex case involving rules, laws, procedures, legal
wording, constitutional protections, significant constitutional questions of lawful
rights, important discovery of evidence and a myriad of case law and research that
I have no good working knowledge of or meaningful and ready access to such
knowledge, subscriptions, and tools. Most especially because I am pro se and
indigent. I have been chronically homeless for over 20 years now, off and on.
9
Reyes y Sebek Motion Ext Time Suff Brief rev 10-27-2021
Case: 21-50013
Document: 00516073906 Page: 10 Date Filed: 10/28/2021
In the interests of Justice and in the interests of the Court to process and
progress this case to it's due justice and equitable access to Justice and resolution
of these issues of law that impact many citizens' inalienable rights, transparency of
government, accountability and justice for all, including indigent pro se litigants
like me.
In fact I was arrested for a class c, fine only, misdemeanor this Sunday for
my free speech on a public sidewalk. And this is one of about 10 SO arrests by
Austin Police agents, acting together, to deprive me of my rights to free speech and
free press, transparency of government, accountability of police, and due process
rights. There has been a clear pattern of deprivation of rights in the same manner in
all these cases. So as you see the City and it's police are continually keeping me
busy in court defending my rights and my person from unlawful and unnecessary
retaliatory imprisonment and punishment for clearly and well established
constitutional rights. The federal civil courts are the venue for justice for all in this
matter. See Exhibits D, E.
I currently have 8 or 9 open retaliatory (police abuse) arrests in 2 courts in Austin,
some in County Court 9, Judge Kim Williams is aware of the police retaliation in
my cases. As I have informed her several times. And 2 more cases in the
Municipal Court system. All misdemeanor arrests for filming the police depriving
poor people of their rights except this Sundays' arrest which was for protesting for
10
Reyes V Sebek Motion Ext Time Suff Brief rev 10-27-2021
Case: 21-50013
Document: 00516073906 Page: 11 Date Filed: 10/28/2021
homes for the unhoused people of Austin and for corporate funding of housing, as
the cost of rent is way too high in Austin for the common person who lives here
without fat stacks of cash to live here anymore. Myself and others became
unhoused due to rent, evictions and chronic illness, without a safety net. So I was
arrested for my free speech and the case is pending. In the current covid state of
procedures and backlog in the courts it could be 2 more years of time spent waiting
and working these cases. That alone is too much for me. I do have pro bono
indigency criminal defense attorneys. But they do not know how to connect me
with Civil Rights attorneys, although we have been trying to contact several to
date. So the punishment for free speech and filming by the Austin Police
Department and their agents is ongoing, constant, and formidable. That is why I
filed this complaint case, as no other means of accountability of justice worked.
This court has the responsibility for justice and access to law in this case. I am
overwhelmed and ill with pneumonia still. See Exhibits D, E.
PLEAS
1. This pro se plaintiff also requests process and legal leniency from the
Court. As I am only a pro se litigant seeking Justice. I am presently without an
attorney, in this case trying to keep up with this case's legal requirements without
11
Reyes V Sebek Motion Ext Time Suff Brief rev 10-27-2021
Case: 21-50013
Document: 00516073906 Page: 12 Date Filed: 10/28/2021
proper access to the law as I stated above. All during a pandemic with current
closures and stresses still under cover restrictions in Austin. See Exhibit C
2. I also pray that the Court will grant me time to complete and submit a
sufficient and complete brief, record excerpts, and appendix, etc.
3. I also request the Court review and reconsider my previous Motions for
Appointment of Counsel, please, thank you. For the Brief to be filed sufficiently,
and by the enormous burden of the regulations and rules regarding this and the
case law, legal opinions, to support my appeal. To handle the complexities of
evidence and matters of law and to asset this indigent pro se layman seeking
remedy under law for his grievances against these officers and the pattern and
practice of abusing several of our constitutionally protected rights outside of the
law, listed above. For access to evidence in this case. And to move towards my day
in Court. Probably my only prayer and chance for actual Justice and access to the
Court and law. Assignment of Counsel. as there is a submitted Motion for
Appointment of Counsel, that would satisfy these needs. Please help to expedite
this case in Justice and the Court, with appointment of counsel, which would be an
actual asset to Justice for all parties including the Court itself.
12
Reyes V Sebek Motion Ext Time Suff Brief rev 10-27-2021
Case: 21-50013
Document: 00516073906 Page: 13 Date Filed: 10/28/2021
4. I pray and request the court to please allow me in this case meaningful
access to law. With access to meaningful justice. And to facilitate the flow of
Justice in this case. Proceeding in an orderly manner to it's speedy and equitable,
just and fair conclusion.
5. I believe that I have a right to an indigent counsel in this appeals case and
court because I believe this case involves grievances against agents of the
government and that this case involves important, inseparable fundamental
constitutional rights.
6. In fact Federal Civil Courts regularly appoint counsel to represent
indigents in civil matters. And I believe that the Court has this power to do SO in
this and every indigent case. Especially considering the important constitutional
considerations of this case. It should be that no indigent person, or human, in this
land should be denied the meaningful access, opportunity to have their legal claims
decided fairly.
7. It is not remotely fair or just when the City of Austin has almost unlimited
resources and attorneys and yet I cannot get justice due to this barrier of no counsel
and no access. Creating an unfair limited access to justice and law on serious
constitutional issues herein. In the interest of judicial fairness and access for this
13
Reyes V Sebek Motion Ext Time Suff Brief rev 10-27-2021
Case: 21-50013
Document: 00516073906 Page: 14 Date Filed: 10/28/2021
indigent pro se litigant, without legal access or counsel, as they know the rules,
procedures, case law and practice of law, with law education and BAR cards. They
don't get their cases dismissed on technicalities, like I do. I am just a pro se litigant
without access to legal education, training, BAR card, case law access, or
meaningful access to the Court and it's rules and procedures, etc. which I find very
confusing and voluminous. This can be shown in how this case and others in Civil
court have been dismissed repeatedly for the same access issues and technicalities,
despite my best efforts. The key is access to the law and counsel.
8. Our fundamental rights are at risk in this case. Well-established protected
rights have been taken including freedom to travel freely, free speech, freedom of
the press, protection from unlawful arrest, search and seizure, protection from
police retaliation, abuse, cruel and unusual punishment, due process of law,
conspiracy of parties and 42 U.S.C. section 1983 originally called the Klu Klux
Klan Act which was the Congress' law to curb deprivation of Rights in the post
Civil War, Civil Rights era of United States of American history. These rights are
not only fundamental, they protect our persons, property, abilities, and our very
lives are at risk.
14
Reyes V Sebek Motion Ext Time Suff Brief rev 10-27-2021
Case: 21-50013
Document: 00516073906 Page: 15 Date Filed: 10/28/2021
9. Unlike in some criminal cases, there is no well established right to
appointed counsel for pro se plaintiffs who have filed civil rights cases in federal
court. It is however a practice that is done regularly and by the courts for indigent
cases with constitutional issues at risk. This power comes from 28 U.S.C.
$1915(e)(1), which reads in full, "The court may request an attorney to represent
any person unable to afford counsel.' (Emphasis added.)x
10. This Court still has jurisdiction of 1983 cases in the 5h Circuit which
includes Austin, Texas. The Courts have seen that this 1983 case has merits and is
not frivolous.
11. This case is complex with many parties, evidentiary discovery,
depositions, complicated and obscure procedures, rules, barriers and pitfalls for
premature dismissal, as you can see on the record from the Austin Federal District
Court to this Appellate Court, 5th Circuit. This is only compounded by the lack of
access and barriers and illness listed above. Which I cannot do alone without
counsel, as seen by the multiple errors and my inability to file a sufficient brief.
15
Reyes V Sebek Motion Ext Time Suff Brief rev 10-27-2021
Case: 21-50013
Document: 00516073906
Page: 16
Date Filed: 10/28/2021
12. One should not represent themselves in a Court, let alone in an Appellate
Court, without counsel and legal support. Even the Case Team and the Law
librarians and the information from the library and online all say the same mantra.
Get a lawyer. Don't do this on your own it's too difficult for the layman and the
indigent.
If a hearing would be necessary, I pray for that opportunity to show and state
my case as to why I cannot keep up with this case as if I had the abilities and
access of legal advice or counsel. Oral Argument Requested. No rights waived,
all rights reserved.
16
Reyes V Sebek Motion Ext Time Suff Brief rev 10-27-2021
Case: 21-50013
Document: 00516073906
Page: 17
Date Filed: 10/28/2021
SIGNED this
day of
October
, 2021
Respectfully submitted,
Signature Pro Se
Mr. Julian Reyes
512 785-1749
10900 Research Blvd
Suite 160c Box 147
Austin, Texas, U.S.A. 78759
justicenowpeople@protonmail.com
julian.reyes.human@gmail.com
17
Reyes V Sebek Motion Ext Time Suff Brief rev 10-27-2021
Case: 21-50013 Document: 00516073906 Page: 18 Date Filed: 10/28/2021
Certificate of Conference
I, Julian Reyes, pro se litigant, have conferred with counsel for defense, Mr.
David May and Mr. Gray Laird and received the following response from the email
servers:
"I'm sorry to have to inform you that your message could not
be delivered to one or more recipients. It's attached below."
: host gatekeeper.austintexas.gov[162.89.0.15]
said:
550 5.7.0 Local Policy Violation (in reply to RCPT TO command) "
"
Final-Recipient: rfc822; David.May@austintexas.gov
Original-Recipient: rfc822;David.May@austintexas.gov
Action: failed
Status: 5.7.0
Remote-MTA: dns; gatekeeper.austintexas.gov
Diagnostic-Code: smtp; 550 : 5.7.0 Local Policy Violation "
And from Mr. Gray Laird:
, pro se
Certificate of Service
I, Julian Reyes, pro se litigant, hereby certify that I have communicated this
motion/document with the 5th Circuit Court of Appeals using the CM/ECF filing
system, which will cause a copy of the document to be electronically delivered to
Appellant's attorney, Mr. David May, defendants' counsel.
pro se
18
Reyes V Sebek Motion Ext Time Suff Brief rev 10-27-2021
Case: 21-50013
Document: 00516073906 Page: 19 Date Filed: 10/28/2021
Certificate of Compliance
I, Julian Reyes, pro se litigant, hereby certify on.
, 2021 that,
1. This document complies with the word limit of Fed. R. App. P.27(d)(2)
(A) because this document contains approximately 2500 words or does not exceed
20 pages.
2. This document complies with the typeface requirements of Fed. R.App. P. 27 (d)
(1)(E) and 32(a)(5) and the type-style requirements of Fed. R. App. P. 27(d)(1)
(E) and 32(a)(6) because this document has been prepared in a proportionally
spaced typeface using Apple Pages version 5.6 in 14-point Times New Roman.
2 pro se
19
Reyes V Sebek Motion Ext Time Suff Brief rev 10-27-2021
Case: 21-50013
Document: 00516074454 Page: 1
Date Filed: 10/28/2021
United States Court of Appeals
FIFTH CIRCUIT
OFFICE OF THE CLERK
LYLE W. CAYCE
TEL. 504-310-7700
CLERK
600 S. MAESTRI PLACE,
Suite 115
NEW ORLEANS, LA 70130
October 29, 2021
Mr. Julian M. Reyes
We The People
10900 Research Boulevard
Suite 160C, Box 147
Austin, TX 78759
No. 21-50013
Reyes V. Sebek
USDC No. 1:19-cv-367
Dear Mr. Reyes,
We will take no action on your motion for reconsideration because
it is untimely. The time for filing a motion for reconsideration
under 5TH CIR. R. 27 has expired.
Sincerely,
LYLE W. CAYCE, Clerk
Melissa Martingly
By:
Melissa V. Mattingly, Deputy Clerk
504-310-7719
CC:
Mr. Henry Gray Laird III
Case: 21-50013
Document: 00516279683
Page: 1
Date Filed: 04/13/2022
1
2
UNITED STATES COURT APPEALS
3
FOR THE FIFTH CIRCUIT
4
5
Julian M. Reyes,
No. 21-50013
6
Plaintiff-Appellant,
Case No.: 1:19-cv-00367
7
U.S. District Court, Western District of
Texas-Austin Div.
8
V.
9
OFFICERS QUINT SEBEK, BDGE
10
3454, SGT VALLEJO, CAPN
RYAN, AUSTIN POLICE
APPELLANTS' MOTION TO REOPEN
11
DEPARTMENT, and other
APPEAL
responsible "JOHN DOE" parties to
12
be named later through the proper
discovery of evidence, all
13
individually and in their official
capacities
14
Defendants-Appellees.
15
16
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Krista R. Hemming, SBN 304213
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THE HEMMING FIRM
419 Main Street, Suite 262
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Huntington Beach, CA 92648
Tel: (949) 903 - 7650
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Fax: (949) 258 - 5963
E-mail: thehemmingfirm@gmail.com
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Attorney for Plaintiff
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JULIAN REYES
Plaintiff-Appellant
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APPELLANTS' MOTION TO REOPEN APPEAL
Case: 21-50013
Document: 00516279683
Page: 2
Date Filed: 04/13/2022
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I.
LEGAL STANDARD
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The Federal Rules of Appellate Procedure mandate that the clerk must
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dismiss appeals for want of prosecution, in cases where the appellant fails to file a
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brief or excerpts of the record. Fed. R. App. P. 42.3.2. However, if the case is
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dismissed without prejudice, the clerk may reinstate the appeal upon request from
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any party.
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In this case, the clerk dismissed the appeal on October 13, 2021, for want of
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prosecution under Fifth Cir. R. 42.3. In the order, the clerk allows for appellant to
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move to "reopen the appeal" if "record excerpts and a sufficient brief' accompany
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the motion to reopen. Appellant now seeks to reopen their appeal.
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II.
FACTUAL ANAYLYSIS
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On or about March 29, 2019, Appellant in pro se filed a federal civil right
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complaint in the above captioned case. On or about December 18, 2020, the U.S.
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District Court dismissed the matter, and the Appellant timely filed a notice of
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appeal. Briefing was ordered, however Appellant, who was in pro se was unable
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to properly and timely file a correctly formatted brief and excerpts of the record.
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While the appellant did continue to communicate with the Court, by requesting
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and receiving 30-day extensions, and requesting appointment of Counsel, which
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was denied on July 1, 2021.
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On September 16, 2021, Appellant filed a brief deemed insufficient by the
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APPELLANTS' MOTION TO REOPEN APPEAL
Case: 21-50013
Document: 00516279683
Page: 3
Date Filed: 04/13/2022
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Court, and on October 13, 2021, the Clerk dismissed the case for want of
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prosecution. In In the order, the clerk allows for appellant to move to "reopen the
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appeal" if "record excerpts and a sufficient brief' accompany the motion to
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reopen. Appellant has contracted with the below signed counsel to prosecute and
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litigate this appeal. Appellant's undersigned counsel has filed an opening brief and
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excerpts of the record in accordance with the Clerk's dismissal, and now moves to
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reopen this appeal.
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III. CONCLUSION
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Appellant has retained counsel to prosecute and litigate this appeal. As
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required by the court, an Appellant's opening brief and excerpts of the record have
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been filed with the court concurrently. Therefore, Appellant respectfully requests
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that the Court reconsider and reopen Appellant's appeal.
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THE HEMMING FIRM
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KL
DATED: April 13, 2022
Bv:
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KRISTA R. HEMMING
Attorneys for
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PLAINTIFF-APPEALLANT
JULIAN REYES
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APPELLANTS' MOTION TO REOPEN APPEAL
Case: 21-50013
Document: 00516279683
Page: 4
Date Filed: 04/13/2022
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CERTIFICATE OF COMPLIANCE
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This motion complies with the type-volume limitation of Fed.R.App.P.
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27(d)(2) because, pursuant to the word-count feature of the word processing
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program used to prepare this motion, this motion contains 352 words, excluding
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the parts of the brief exempted by Fed.R.App.P. 32(a)(7)(f).
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This motion complies with the typeface requirements of Fed.R.App.P.
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32(a)(5) and the type style requirements of Fed.R.App.P. 32(a)(6) because this
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motion has been prepared in a proportionally spaced typeface using Microsoft
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Word, in 14-point, Times New Roman.
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DATED this 13 day of April, 2022.
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Bv:
KRISTA R. HEMMING
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Attorneys for
PLAINTIFF-APPEALLANT
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JULIAN REYES
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APPELLANTS' MOTION TO REOPEN APPEAL
Case: 21-50013
Document: 00516279683
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Date Filed: 04/13/2022
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CERTIFICATE OF SERVICE FORM FOR ELECTRONIC FILINGS
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I hereby certify that on April 13, 2022, I electronically filed the foregoing
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document with the United States Fifth Circuit Appellant Court using the CM/ECF
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system. I certify that all parties or their counsel of record are registered as ECF
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Filers and that they will be served by the CM/ECF system.
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KL
Bv:
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KRISTA R. HEMMING
Attorneys for
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PLAINTIFF-APPEALLANT
JULIAN REYES
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5 -
APPELLANTS' MOTION TO REOPEN APPEAL
Case: 21-50013
Document: 00516279684 Page: 1 Date Filed: 04/13/2022
No. 21-50013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
JULIAN M. REYES,
Plaintiff-Appellant
V.
OFFICER QUINT SEBEK, et al.,
Defendant-Appellee
On Appeal from the United States District Court
for the Western District of Texas-Austin
No. 1:19-cv-00367-LY
Hon. Lee Yeakel
APPELLANT'S OPENING BRIEF
Krista R. Hemming
The Hemming Firm
222 West 6th Street, Ste 400
San Pedro, CA 90731
Tel: 657-342-1488
e-mail: thehemmingfirm@gmail.com
Attorneys for Appellant
Julian M. Reyes
Case: 21-50013 Document: 00516279684 Page: 2 Date Filed: 04/13/2022
CERTIFICATE OF INTERESTED PERSONS
In accordance with the Federal Rule of Appellate Procedure 26.1, and Fifth
Circuit Rule 28.2.1, I certify that the following individuals may have an interest in
the outcome of this case:
1. Hon. Lee Yeakel - U.S. District Court Judge
2. Hon. Mark Lane - U.S. District Court Magistrate Judge
3. Julian M. Reyes - Appellant/Plaintiff
4. Quint Sebek - Appellee/Defendant
5. Carlos Vallejo - Appellee/Defendant
6. Captain Ryan - Appellee/Defendant
7. City of Austin - Appellee/Defendant
8. Austin Police Department - Appellee/Defendant
9. Anne Morgan - City Attorney
10. Meghan L. Riley - Deputy City Attorney
The Hemming Firm,
/s/ Krista R. Hemming
Krista R. Hemming
Attorneys for Appellant Julian M. Reyes
Case: 21-50013
Document: 00516279684 Page: 3 Date Filed: 04/13/2022
STATEMENT REGARDING ORAL ARGUMENT
If the Court believes that oral arguments would be beneficial in
understanding or deciding the underlying issues, or if the questions presented
reveal a new and novel issue, Appellant respectfully requests oral arguments be
conducted.
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Document: 00516279684
Page: 4
Date Filed: 04/13/2022
TABLE OF CONTENTS
INTRODUCTION
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JURISDICTIONAL STATEMENT
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ISSUES PRESENTED
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STATEMENT OF THE CASE
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SUMMARY OF THE ARGUMENT
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STANDARD OF REVIEW
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ARGUMENT
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1.
The District Court Erred In Not Appointing Counsel For Mr. Reyes
Because Mr. Reyes Is Not Adequately Capable Of Presenting His
Case, Nor Is He In A Position To Adequately Investigate His Case
And Lacks The Required Skill In The Presentation Of Evidence And
In Cross-Examination
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a.
Mr. Reyes is not capable of adequately presenting his case
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b.
Mr. Reyes is not in a position to adequately investigate his case
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C.
Appointed Counsel would aid in the efficient and equitable
disposition for the case and be able to bring the required skill in
the presentation of evidence and cross-examination
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2.
District Court Erred In Denying Plaintiff's Rule 60(B) Motion
Because Extraordinary Circumstances Exist.
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CONCLUSION
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Document: 00516279684
Page: 5
Date Filed: 04/13/2022
TABLE OF AUTHORTIES
United States Supreme Court Cases
Link V. Wabash R.R. Co., 370 U.S. 626 (1962)
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Highmark Inc. V. Allcare Health Mgmt. Sys., Inc., 572 U.S. 559 (2014)
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Pierce V. Underwood, 487 U.S. 552 (1988)
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U.S. Fifth Circuit Court Cases
Baranowski V. Hart, 486 F.3d 112 (5th Cir. 2007)
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Davis V. Safeway Stores, Inc., 532 F.2d 489 (5th Cir. 1976)
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Flores V. Procunier, 745 F.2d 338 (5th Cir.1984)
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Halicki V. La. Casino Cruises, Inc., 151 F.3d 465 (5th Cir. 11998)
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In re Grimland, Inc., 243 F.3d 228 (5th Cir. 2001)
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Jackson V. Dallas Police Dep't, 811 F.2d 260 (5th Cir. 1986)
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Pryor V. U.S. Postal Serv., 769 F.2d 281 (5th Cir. 1985)
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Ulmer V. Chancellor, 691 F.2d 209 (5th Cir. 1982)
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Vela V. Western Electric Co., 709 F.2d 375 (5th Cir.1983)
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Federal Statutes
28 U.S.C. § 1291
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28 U.S.C. § 1331
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28 U.S.C. § 1343
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42 U.S.C. § 1983
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Case: 21-50013
Document: 00516279684
Page: 6
Date Filed: 04/13/2022
Federal Rules
Fed. R. Civ. Pro. 60(b)
7, 11,15, 16
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Case: 21-50013
Document: 00516279684
Page: 7
Date Filed: 04/13/2022
INTRODUCTION
This case arises from an incident which occurred on or about April 1, 2017,
between Appellant Julian M. Reyes (hereinafter "Appellant" or "Mr. Reyes") and
several City of Austin (hereinafter "The City" or "City") Police Officers. On that
occasion Mr. Reyes was stopped and subsequently arrested because he was filming
City Police Officers. Mr. Reyes was arrested, but later released. No charges were
filed.
In March of 2019, Mr. Reyes, filed a federal lawsuit in pro se, against
Defendants City of Austin (hereinafter "City"), Austin Police Department
(hereinafter "PPD"), and several Austin Police Department Officers, (collectively
known as "Defendants") for violations of Mr. Reyes Constitutional and Civil
Rights.
On June 28, 2019, Mr. Reyes filed a Motion to Appoint Counsel, which was
denied by Judge Mark Lane on November 1, 2019. On or about October 27, 2020,
the court issued an Order to Show Cause why the case should not be dismissed for
want of prosecution. The Court gave Mr. Reyes six days to respond, and then
promptly dismissed the case on November 4, 2020. Mr. Reyes filed a Motion for
Relief from final judgement on December 6, 2020, which was denied by the court
on December 18, 2020. Plaintiff now appeals from final judgement.
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Document: 00516279684
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Date Filed: 04/13/2022
JURISDICTIONAL STATEMENT
The underlying action was brought pursuant to 42 U.S.C. § 1983 as well as
the First, Fourth, and Fourteenth Amendments to the United States Constitution.
The United States District Court for the Western District of Texas had jurisdiction
over this action pursuant to 28 U.S.C. § 1331, and 28 U.S.C. § 1343. All events
complaint of occurred in the County of Travis, State of Texas. This Court has
jurisdiction over the resulting appeal based on 28 U.S.C. § 1291. A final order
dismissing the underlying action and all parties was entered by the U.S. District
Court on December 18, 2020, and a notice of appeal was filed on January 5, 2021.
ISSUES PRESENTED
Whether the District Court erred in denying Mr. Reyes the appointment of
counsel.
Whether the District court erred in dismissing the underlying suit; and not
granting Mr. Reyes Rule60(b) Motion.
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Document: 00516279684
Page: 9
Date Filed: 04/13/2022
STATEMENT OF THE CASE
On or about April 1, 2017, Mr. Reyes was filming Austin Police Officers
while they were in the course and scope of their employment, when he was
approached by Austin Police Officer Sebek (hereinafter "Sebek"). (EOR p. 2). Mr.
Reyes indicated that he had a right and purpose to be on the public property, and
that his actions, of filming the police, was a protected activity. (ERO p. 2).
Nonetheless Officer Sebek arrested Mr. Reyes. Mr. Reyes was taken to jail and
was released hours later without charges. (ERO p. 2).
In March of 2019, Mr. Reyes in pro se, filed a civil rights lawsuit in the U.S.
District Court for the Western District of Texas. (EOR p. 1) Plaintiff also filed an
Application to Proceed in Forma Pauperis and Financial Affidavit in Support of.
(EOR p. 6). On April 2, 2019, in its Order on In Forma Pauperis Status and Report
and Recommendation on the Merits of the Claims, the Court granted Mr. Reyes
request to proceed in forma pauperis status. (EOR p, 10).
In May of 2019 the Clerk for the U.S. District Court for the Western District
of Texas issued Summons for the individually named defendants, (EOR p. 32-36),
which was returned executed on June 3, 2019, as to two of the three defendants
(EOR p. 38-42). On June 13, 2019, Defendants Sebek and Vallejo filed an answer,
and the case became at issue. (EOR p, 42).
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Document: 00516279684
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On June 28, 2019, Mr. Reyes filed two motions. One was for the
appointment of counsel (EOR p.46), and the other for assistance with Efile. (EOR
p. 49). Both motions indicated the Mr. Reyes, as a layman in pro se, was having
difficulty accessing the courts and/or prosecuting his case. Plaintiff's motions were
referred to the U.S. Magistrate Judge Mark Lane, (EOR p. 51). In the Court's
denial of Counsel, it notes that this is Mr. Reyes fourth civil rights suit. (EOR p.
53) In two other cases, Mr. Reyes requested counsel but was denied, and the cases
subsequently dismissed (EOR p. 53-54). The Court also notes that in one case Mr.
Reyes did receive appointed counsel, and the case was resolved through settlement.
(EOR p.53). Ultimately the Court found that this case did not present new, novel or
complex issues that go beyond Mr. Reyes abilities, and denied the motion. (EOR p.
55).
Mr. Reyes proceeded without the assistance of counsel, and on October 27,
2020 the Court issued an Order to Show Cause as to why the case should not be
dismissed for lack of prosecution, as there had been no action on the case of nearly
one year. (EOR p. 56). When Mr. Reyes failed to respond to the Order to Show
Cause, the Court issued a Final Judgement on November 4, 2020 dismissing the
entire action. (EOR p. 57).
On December 6, 2020, Mr. Reyes filed a Motion to Stay Order To
Dismiss/Set Aside Final Judgement and Keep Case Open (EOR p. 58), which the
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Date Filed: 04/13/2022
Court construed as a Fed. Rules of Civil Procedure Rule 60(b) Motion for Relief
from Final Judgment. (EOR p. 74). In his motion Mr. Reyes cites several reasons
why the case was dormant for one year, including: COVID-19, unable to access
public libraries and law libraries; personal illness; and absence of assistance of
counsel. (EOR p. 58-60). Mr. Reyes then included a proposed scheduling order,
indicating he was ready and able to proceed with the matter. (EOR p. 61, 65). On
December 18, 2020, the Court denied Mr. Reyes motion, (EOR p. 73), and Mr.
Reyes promptly filed his notice of appeal. (EOR p. 75).
SUMMARY OF THE ARGUMENT
The District Court erred in not appointing counsel for Mr. Reyes because
Mr. Reyes is not adequately capable of presenting his case, nor is he in a position
to adequately investigate his case and lacks the required skill in the presentation of
evidence and in cross-examination.
Further, the District Court erred in denying Plaintiff's Rule 60(b) motion
because extraordinary circumstances exist.
STANDARD OF REVIEW
Plaintiff is appealing the decision of the U.S. District Court in: 1) denying
Plaintiff's request for appointment of counsel; and 2) denying the Plaintiff's
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Document: 00516279684 Page: 12 Date Filed: 04/13/2022
Motion for Relief from Final Judgement, or 60(b) motion. Granting or denying a
motion to appoint counsel and/or a Rule 60(b) is within the discretion of the
district court and therefore is reviewed under the abuse of discretion. (See; In re
Grimland, Inc., 243 F.3d 228, 233 (5th Cir. 2001); Baranowski V. Hart, 486 F.3d
112, 126 (5th Cir. 2007); and Halicki V. La. Casino Cruises, Inc., 151 F.3d 465,
470 (5th Cir. 1998), cert. denied, 526 U.S. 1005, 119 S.Ct. 1143, 143 L.Ed.2d 210
(1999).
ARGUMENT
Decisions that are left to the district courts discretions are therefore,
"reviewable for 'abuse of discretion." Pierce V. Underwood, 487 U.S. 552, 558,
108 S.Ct. 2541, 101 L.Ed.2d 490 (1988); Highmark Inc. V. Allcare Health Mgmt.
Sys., Inc., 572 U.S. 559, 563-64 (2014). An appellate court would have abused its
discretion if its ruling was based on an erroneous view of the law, or erroneous
assessment of the facts, however, this standard does not preclude an appellate court
from correcting a district court's legal or factual error. Id.
1. The District Court Erred In Not Appointing Counsel For Mr. Reyes
Because Mr. Reyes Is Not Adequately Capable Of Presenting His
Case, Nor Is He In A Position To Adequately Investigate His Case
And Lacks The Required Skill In The Presentation Of Evidence And
In Cross-Examination.
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Document: 00516279684
Page: 13
Date Filed: 04/13/2022
The Fifth Circuit Court of Appeals in Ulmer V. Chancellor, 691 F.2d 209
(5th Cir.1982), laid out a set of four factors that a district court should consider
when ruling on Motion to Appoint Counsel. These four factors are: (1) the type and
complexity of the case; (2) whether the indigent is capable of adequately
presenting his case; (3) whether the indigent is in a position to investigate
adequately the case; and (4) whether the evidence will consist in large part of
conflicting testimony SO as to require skill in the presentation of evidence and in
cross examination" Jackson V. Dallas Police Dep't, 811 F.2d 260, 261-62 (5th Cir.
1986); See Also Ulmer, 691 F.2d at 213. Additionally, the court should "consider
whether appointed counsel would aid in the efficient and equitable disposition of
the case." Id.
a. Mr. Reyes is not capable of adequately presenting his case
Mr. Reyes has a basic education and works part time as an organic gardener,
and artist. (EOR p. 47). On June 28, 2019, Mr. Reyes filed two motions. One was
for the appointment of counsel (EOR p.46), and the other for assistance with Efile.
(EOR p. 49). Both motions indicated the Mr. Reyes, as a layman in pro se, was
having difficulty accessing the courts and/or prosecuting his case.
Without adequate access to systems like Efile, Mr. Reyes would not be able
adequately prosecute his case. Further, Mr. Reyes indicated in both motions filed
before the court that as a layman he was not versed in the law or in the prosecution
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Document: 00516279684
Page: 14
Date Filed: 04/13/2022
of civil rights cases. As this court is aware civil rights cases, especially those
involving police officer often have specialized nuances like qualified immunity
which take a trained legal mind to decipher. Mr. Reyes is simply not capable of
that.
b. Mr. Reyes is not in a position to adequately investigate his case
Mr. Reyes operates on a limited budget and is homeless and indigent. (EOR
p. 49). In this case he was granted permission to proceed In Forma Pauperis
thereby waiving any requirement to pay fees (EOR p. 16). Mr. Reyes has limited
resources and during the COVID-19 pandemic, was unable to access libraries, law
libraries or internet cafes. (EOR p. 60). Based on his limited resources, experience
and knowledge Mr. Reyes clearly would not be able to conduct an adequate
investigation, nor would he be able to participate in the discovery process or
conduct defendant depositions. Mr. Reyes indigent status made him an obvious
choice for appointed counsel, therefore the district court abused its discretion in
denying Mr. Reyes motion.
c. Appointed Counsel would aid in the efficient and equitable
disposition for the case and be able to bring the required skill
in the presentation of evidence and cross-examination.
As the court points out in its decision denying Mr. Reyes appointment of
counsel, Mr. Reyes has had at least three other federal civil rights cases. The court
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Document: 00516279684 Page: 15 Date Filed: 04/13/2022
notes that in two other cases, Mr. Reyes requested counsel but was denied, and the
cases subsequently dismissed (EOR p. 53-54). The Court also states that in one
case Mr. Reyes did receive appointed counsel, and the case was resolved through
settlement. (EOR p.53). It is clear that appointed counsel would aid not only Mr.
Reyes, but also court and opposing counsel, in the efficient and equitable
disposition for the case. Absent counsel, Mr. Reyes is denied his "day in court", as
the cases ultimately end in a dismissal for technical errors; such as the case here.
Further, it is equally clear from the record that Mr. Reyes is not able to bring
the required skill need to effectively prosecute and present a federal civil rights
case. Nor is Mr. Reyes skilled enough to cross examine a police officer. Police
officer regularly appear in court and are well versed in giving testimony and facing
hostile questions from opposing counsel. This case involves three police officer
defendants (EOR p.27-32), each experienced and skilled in providing testimony
and being cross-examined. Mr. Reyes does not possess the skill, knowledge, or
experience to effectively question the defendants or percipient witnesses.
It is clear that appointed counsel would aid the progression and prosecution
of the case; therefore, it was an abuse of discretion for the lower court to deny Mr.
Reyes' Motion for Appointed Counsel.
The lower court abused its discretion in denying Mr. Reyes appointed
counsel, and he and the record clearly demonstrated a need for appointed counsel.
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Further, the Court could have referred the case to the Pro Bono Panel, as there are
thousands of Texas attorneys ready, willing, and able to provide pro bono hours.
Mr. Reyes respectfully requests this Court remand the case for appointment of
counsel or in the alternative a referral to the court's pro bono panel for
appointment.
2. District Court Erred In Denying Plaintiff's Rule 60(B) Motion
Because Extraordinary Circumstances Exist.
A party may seek Relief from a Final Judgment for a number of reasons
including "mistake, inadvertence, surprise, or excusable neglect" or "any other
reason that justifies relief" Fed. R. Civ. Pro. 60(b). "Implicit in the fact
that Rule 60(b)(1) affords extraordinary relief is the requirement that the movant
make a sufficient showing of unusual or unique circumstances justifying such
relief.: Pryor V. U.S. Postal Serv., 769 F.2d 281, 286 (5th Cir. 1985). See
Also Flores V. Procunier, 745 F.2d 338, 339 (5th Cir.1984); Vela V. Western
Electric Co., 709 F.2d 375, 377 (5th Cir. 1983); Davis V. Safeway Stores, Inc., 532
F.2d 489, 490 (5th Cir.1976); cf. Link V. Wabash R.R. Co., 370 U.S. 626, 635-36,
82 S.Ct. 1386, 1391, 8 L.Ed.2d 734 (1962).
As a preliminary issue, it should be noted that the court issued an order to
show cause on October 27, 2020, and mere eight days later dismissed the case for
failure to respond to the Order to Show Cause. (EOR p56-57). As Mr. Reyes had
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Date Filed: 04/13/2022
already notified the Court that he needed assistance with the e-filing system (EOR
p. 54), it was unreasonable for the court to only allow eight days for Mr. Reyes to
adequately respond to the order to show cause.
In response to the court dismissing his case, Mr. Reyes filed what the lower
court construed as a Fed. Rules of Civil Procedure Rule 60(b) Motion for Relief
from Final Judgment. (EOR p. 74). In his motion Mr. Reyes cites several reasons
why the case was dormant for one year, including: COVID-19, unable to access
public libraries and law libraries; personal illness; and absence of assistance of
counsel. (EOR p. 58-60). It is undeniable that 2020 and 2021 were unprecedented
times in the United States. As the COVID-19 pandemic raged on, many facilities
were closed to the public, including libraries, law libraries and internet cafes. Mr.
Reyes, and pro se litigant was at the whim of "stay-at-home orders" and mandated
closures. As a result, Mr. Reyes was not able to access the resources he needed to
adequately prosecute his civil rights case. Due to this excusable neglect the case
went dormant for nearly a year. However, as the restrictions lifted, Mr. Reyes was
able to access what he needed to continue with the case and indicated that he was
ready and willing to do SO by filing a "proposed scheduling order" (EOR p. 65).
Mr. Reyes demonstrated that unusual and extreme circumstances existed
(the COVID-19 pandemic) which caused excusable neglect of his civil rights
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cases. Therefore, the District Court erred in denying Mr. Reyes Rule 60(b) motion,
and the case should be reinstated.
CONCLUSION
The District Court erred in not appointing counsel for Mr. Reyes because he
was not adequately capable of presenting his case, nor was he in a position to
adequately investigate his case and lacks the required skill in the presentation of
evidence and in cross-examination. Further, The District Court erred in denying
plaintiff's rule 60(b) motion because extraordinary circumstances exist. For the
forgoing reasons, Appellant respectfully requests this court reverse the lower
court's decision to dismiss the matter and remand the case for the appointment of
counsel.
Date: April 13, 2022
The Hemming Firm,
/s/ Krista R. Hemming
Krista R. Hemming
Attorneys for Appellant Julian M. Reyes
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Document: 00516279684 Page: 19 Date Filed: 04/13/2022
CERTIFICATE OF COMPLIANCE
Pursuant to 5th Cir. R. 32.2.7(c), the undersigned certifies this brief complies with
the type-volume limitations of 5th Cir. R. 32.2.7(b).
1. Exclusive of the exempted portion in 5th Cir. R. 32.2.7(b)(3), this brief
contains well fewer than 13,000 words.
2. This brief has been prepared in proportionally spaced typeface using
Word in Times New Roman typeface and 14 point font size.
3. The undersigned understands a material misrepresentation in completing
this certificate, or circumvention of the type-volume limits in 5th Cir. R.
32.2.7, may result in the Court's striking the brief and imposing sanctions
against the person signing the brief.
Date: April 13, 2022
The Hemming Firm,
/s/ Krista R. Hemming
Krista R. Hemming
Attorneys for Appellant Julian M. Reyes
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Document: 00516284454 Page: 1
Date Filed: 04/19/2022
United States Court of Appeals
FIFTH CIRCUIT
OFFICE OF THE CLERK
LYLE W. CAYCE
TEL. 504-310-7700
CLERK
600 S. MAESTRI PLACE,
Suite 115
NEW ORLEANS, LA 70130
April 19, 2022
MEMORANDUM TO COUNSEL OR PARTIES LISTED BELOW:
No. 21-50013
Reyes V. Sebek
USDC No. 1:19-CV-367
The court has denied appellant's motion to reopen the appeal. Your
appeal was dismissed on October 13, 2021, for failure to file a
sufficient brief and failure to file record excerpts.
The Court normally will not reinstate a case dismissed by the clerk
under 5TH CIR. R. 27.1.6 unless the default is remedied within 45
days from the date of dismissal. (See I.O.P. following 5TH CIR. R.
27)
Sincerely,
LYLE W. CAYCE, Clerk
Roadhaws phuson
By:
Roeshawn Johnson, Deputy Clerk
504-310-7998
Ms. Jeannette Clack
Ms. Krista Hemming
Mr. Henry Gray Laird III
Mr. Julian M. Reyes