Reyes V. Quint Sebek; Carlos Vallejo; Capn Ryan; Austin Police Department; Other Responsible “John Doe” Parties to be Named Later

Case 1:21-cv-00992-LY Document 1 Filed 11/03/21 Page 1 of 11
FILED
UNITED STATES of AMERICA 5TH CIRCUIT AUSTIN, DIVISION COURT
21 NOV - 3 PM 1: 53
Julian Reyes
CLERKPlaintiff
WESTERNDISTRION OF TEXAS
my
BY
§
V.
§
1:21CV0992 LY
Case no.
§
CITY OF AUSTIN, INC,
§
AUSTIN POLICE DEPARTMENT
SERGEANT TROY WISMAR
§
BADGE # 3968, CORPORAL
§
CHRISTOPHER CARLISLE
BADGE # 3368, OFFICER
PATRICK WALSH BADGE # 7345,
OFFICER KYU SUK AN BADGE
# UNKNOWN, OFFICER SARAH
FOSTER BADGE #UNKNOWN,
GREG MCCORMACK (CITY OF
AUSTIN), and other responsible
"JOHN DOE" parties to be named later
through the proper discovery of evidence,
all individually and all defendants
in their official capacities
Defendants
Civil Rights Complaint
1. Plaintiff: Pro Se, Julian Reyes 10900 Research Blvd suite 160C Box 147
Austin, Texas 78759 mailbox. No home address. Chronically homeless for
about 20 years.
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Reyes V CoAAPD et al Original Complaint 11-02-2021
Case 1:21-cv-00992-LY Document 1 Filed 11/03/21 Page 2 of 11
2. Defendants being: City of Austin, Inc, Austin Police Department and the
following City of Austin Public Servant Employees: Corporal Christopher
Carlisle badge #3368, Corporal Troy Wismar badge #3968, Officer Patrick
Walsh badge #7345, Officer Kyu Sue An badge #unknown, Officer Sarah
Foster badge #unknown, Greg McCormack City of Austin, and others parties
to be named later through the proper discovery of evidence, all individually
and all defendants in their official capacities. Address to City of Austin Law
Department is at 301 E 2nd Street, Austin, Texas 78701. Austin Police
Department is at 715 E. 8th Street, Austin, Texas 78701.
3. This incident and complaint happened in Austin, Travis County, Texas,
which this Court has legal jurisdiction over as this Court also resides here.
Also as the 5th Federal Court Circuit encompasses all of Texas, Louisiana and
Mississippi. These are Constitutional issues, that are novel and important to all
Citizens. Therefore I request the Western District Court of the U.S.A. in
Austin, to try my Civil Complaint involving 1st, 4th, 14th, 8th Constitutional
Amendments violations under section U.S.C. 42 1983 as well as section 1985
Conspiracy of Parties. As multiple agents of Municipal and Corporate
government conspired to deprive me of my rights and they were all involved in
this crime against myself and essentially the rights afforded to all the Citizens
and the Free Press.
2
Reyes V CoA APD et al Original Complaint 11-02-2021
Case 1:21-cv-00992-LY Document 1 Filed 11/03/21 Page 3 of 11
4. On or about November 5th 2019, in the City of Austin, Travis County,
Texas, U.S.A.. Under this Court's functional jurisdiction, Corporals Carlisle,
Wismar, and several officers were joined by the FrontSteps manager, Greg
McCormack to conspire together to deprive people of their rights. Several
people were in front of the Salvation Army there to protest brutal sweeps and
theft by 'The State' to deprive unhoused poor people from their rights to seek
emergency shelter, to sleep in a tent they own, to own property and essential
survival gear, ids, medications, etc, to sit down, to rest, to survive and their
international human rights as well. Also these defendant individuals and their
agencies have a pattern and practice of violating poor unhoused people's
rights, property rights, 4th amendment rights, many of the City's victims are
black, brown or disabled. Many victims of the City of Austin are also veterans.
At my arrest Corporal Christopher Carlisle badge #3368 came to my tent
where I was inside, filming the police and he said that I was being charged and
arrested for my political beliefs and views, basically for protesting, filming and
defending the rights of unhoused and marginalized, gentrified poor people
living on the streets in Austin. His words thus informing me that I was then an
indigent political prisoner in the 5th Circuit in Austin, Travis County, Texas,
United States of America. This is what the War on the Poor looks like on the
streets of Austin to those of us that are fighting for freedom, safety, housing
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Reyes V CoA APD et al Original Complaint 11-02-2021
Case 1:21-cv-00992-LY Document 1 Filed 11/03/21 Page 4 of 11
and our inalienable rights. To defend the Constitutions and to defend the intent
of a government that serves the people.
After Corporal Carlisle told me that I was falsely arrested for the class C
misdemeanor of "camping." I was also filming the police and did not consent to
any search or seizure of my property or work product, as I am also a member of the
Challenger Street Newspaper, a reporter and videographer for about 10 years now.
On November 18th, 2019 the case was dismissed on it's merits by the
Community Court. On prima fascia evidence that did not support the charge.
Since that time I have been falsely arrested in retaliation for filming the
Austin Police department several times, SO many times I have lost count. The cases
are consistently reviewed by the City's prosecutors, the County prosecutors and
dismissed on their merits as no prima fascia evidence supports the charges. I am
innocent of all charges, but the police know you can beat the rap, but you can't
beat the (retaliatory) ride. This practice of false arrests to deprive Citizens of their
rights should be stopped immediately. These cases of retaliation show a clear
pattern and practice of conspiracy to deprive me of my rights to be in a tent, to film
the Austin Police Department at work in public, and to protest the City's lack of
real housing options for the unhoused poor of Austin, who suffer needlessly on the
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Reyes V CoAAPD et al Original Complaint 11-02-2021
Case 1:21-cv-00992-LY Document 1 Filed 11/03/21 Page 5 of 11
streets while the City of Austin's general budget is over $4.2 Billion and the City
has vacant lands, thousands of acres, hundreds of buildings, trillions in assets. Yet
the City does barely anything to secure permanent, supportive, key-first, safe and
decent housing for our unhoused Citizen friends and neighbors on the streets.
There is no shortage of budget, no shortage of housing or spaces in buildings in
Austin. There is simply hoarding, disinformation, deliberate non-transparency,
greed, hatred and denial by the City of Austin and it's leadership. Housing is the
solution. Simply put. And the only legal means of moving people out of sight for
the comfort of wealthier individuals.
I read the Officer's complaint and Corporal Carlisle states on that form that
he told me to go to Emma Long Park and McKinney State Park. I do not believe he
said that. He said he offered me space in the ARCH homeless shelter. I have never
stayed at the ARCH shelter and that suggestion is offensive, the ARCH shelter has
a reputation on the streets as being abusive, unclean, unsafe and policed heavily by
Austin Police Department. McKinney State Park is secluded, no services or even a
convenience store or grocery store. They only allow you to stay a short time, they
do not want unhoused people there, they cost money that I do not have. So neither
was a helpful, viable, safe, solution. And I have no recollection of him saying those
things to me as well. I believe this is a falsehood on a charging document by
Corporal Carlisle. I'm not sure why he felt that was appropriate to put on his
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Reyes V CoAAPD et al Original Complaint 11-02-2021
Case 1:21-cv-00992-LY Document 1 Filed 11/03/21 Page 6 of 11
complaint. Or why police officers lie on documents and under oath to protect their
position when they know they are in the wrong and the charges are retaliatory. I
would like Corporal Carlisle to produce video of him saying that to me. As proof.
Hopefully soon in discovery of evidence in this case.
I believe that I have filed a complaint with the Police Oversight Office or the
Office of Police Monitor. Nothing was done. I have no access to their files, they
consider it "APD protected personnel records." I hope to attain more information
form discovery about their failures to hold the police accountable and transparent
to the public. As is their charge and oath. I have filed multiple police complaints
with the City and the Internal Affairs at APD. Most all the cases were ignored,
dismissed, or administratively closed without good cause.
I believe that Officer Patrick Walsh badge #7345 was the officer that falsely
arrested me under color of law and violated my rights and freedoms.
Greg McCormack, presently with the City of Austin, but at the time of this
incident he was on site talking to police, prior to my false arrest, about how to
remove and arrest me to deprive me of my rights. He was working for the ARCH
homeless shelter at the time and was involved in clearing out all the people camped
outside waiting for housing and some for shelter, under project Guided Path, by the
6
Reyes V CoA APD et al Original Complaint 11-02-2021
Case 1:21-cv-00992-LY Document 1 Filed 11/03/21 Page 7 of 11
City of Austin, Inc.. Citizens there were all refused shelter or housing, delayed or
told to wait it out. Greg McCormack not only conspired to deprive me of my
rights, he also conspired against other unhoused marginalized and poor people on
Austin's streets and was in charge of the abusive, unsafe, unclean ARCH shelter as
the director of FrontSteps corporation.
5. Julian Reyes, a pro se plaintiff, and am seeking full damages in the
amount of $1,000,000 U.S.A. dollars for all losses, of lost time, stolen freedoms
and rights, and for the Constitutional and other violations specified below and in
other later amendments to this complaint, as more information becomes available
and through discover of evidence to come. And censure, punishments and charges
for the responsible parties, including restorative justice to create a safer, more
servicing government in Austin. I also seek injunctions to protect Citizens' rights
whether unhoused on the streets of Austin or members of the Press to protect us
from future targeting, stalking, retaliation, false arrest, deprivation of rights,
harassment, and threats by the Austin Police Department, City of Austin, inc., and
their agents, acting alone or in groups, most especially those involved in filming
police interactions in public or defending their homes from theft under color of law
by 'The State.' Reyes is also seeking reformative justice, remedy, and mediation
on the issues of training, injustice, patterns and practice of police abuses that led up
7
Reyes V CoA APD et al Original Complaint 11-02-2021
Case 1:21-cv-00992-LY Document 1 Filed 11/03/21 Page 8 of 11
to this egregious incident by Austin Police Department, the City of Austin, et al.
and Greg McCormack.
In fact I was just arrested for a class c, fine only, misdemeanor this Sunday
October 24th, 2021, 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. My cameras have been seized and the Austin Police
Officer, Detective Stitler is still refusing to give me back my primary work
equipment and evidence to defend myself in court, even though it has been about
10 days since the unlawful seizure of these items. I cannot do the work of the free
press here in Austin without my work tools and work product. The Police know
that, I have informed them, they are not budging, they are asserting their right to
abuse, retaliate, deprive, and seize my cameras, video and megaphone. There has
been a clear pattern of deprivation of rights in a similar manner in all the cases
against me for the last 8 or SO years.
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. This time and energy keeps me from working on this case
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Reyes CoAAPD et al Original Complaint 11-02-2021
Case 1:21-cv-00992-LY Document 1 Filed 11/03/21 Page 9 of 11
and talking to more lawyers for assistance with this case. I believe that he federal
civil courts are the venue for seeking justice and protections of law for all people in
this matter. See Glick V Cunliffe and Turner V Driver as well as others to be listed
later.
As a matter of fact I currently have 8 or 9 open retaliatory, police abuse,
arrests in 2 courts in Austin, some in Travis County Criminal Court 9, Judge Kim
Williams is aware of the police retaliation in my cases. As I have informed her
several times in court. And I have 2 more false arrest cases for first amendment
exercise in the City of Austin Municipal Court system and it's subordinate the
Downtown Austin Community Court. All are misdemeanor arrests for filming the
police depriving poor people of their rights except this Sundays' arrest which was
for protesting for homes for the unhoused people of Austin and for corporate
funding of housing, gentrification 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 again Sunday for my free speech and the
case is still new and 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
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Reyes V CoA APD et al Original Complaint 11-02-2021
Case 1:21-cv-00992-LY Document 1 Filed 11/03/21 Page 10 of 11
attorneys yet, 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, formidable and time consuming. A clear pattern and
practice of targeting, abuse and deprivations of rights and conserving to do SO.
That is why I filed this complaint case, as no other means of accountability of
justice worked including calling the District Attorney's Office, Civil Rights
Division. This court has the responsibility for justice and access to law in this
case. And also this Court has the jurisdiction in this case. I am overwhelmed and
have fallen ill with pneumonia recently but am healing as best I can.
My main constitutional question right now is does
the government, including the Justice Department and Courts, serve the People or
do we serve you? As in the Police and government has an intense surveillance
state whereby thousands or more cameras can film us in public and other spaces,
without fear of litigation, retaliation, or false arrest. Yet when I film the Austin
police, when there is something questionable under law that they are doing, under
color of law, do the Citizens have the right to film the police without fear of
retaliation, deprivation of rights, conspiracy of parties, false arrest, abuse,
harassment and interference? I think this is a key question that I would like to
have answered in this case, by this court. Is transparency and accountability the
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Reyes V CoAAPD et al Original Complaint 11-02-2021
Case 1:21-cv-00992-LY Document 1 Filed 11/03/21 Page 11 of 11
law? Or are they just meaningless words in 2021, post George Floyd and Mike
Ramos, and SO many more victims in the U.S.A..
If a hearing would be necessary, I pray for that opportunity to show and state
my case. Also I cannot keep up with this case by myself until I have the help,
abilities and access of legal advice or counsel. Oral Argument Requested. No
rights waived, all rights reserved.
SIGNED this
3rd day of November
, 2021
Respectfully submitted,
pro se
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
11
Reyes V CoA. APD et al Original Complaint 11-02-2021
JS 44 (Rev. 10/20)
Case
1:21-cv-0099
CIVILD
11/03/21
Page
1
of
1
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
Julian Reyes
DEFENDANTS City of Austin, Inc , APD,
wismor, (orlisle, Walsh etal
(b) County of Residence of First Listed Plaintiff
trauis
County of Residence of First Listed Defendant Travis
(EXCEPT IN U.S. PLAINTIFF CASES)
(IN U.S. PLAINTIFF CASES ONLY)
NOTE:
IN LAND CONDEMNATION CASES, USE THE LOCATION OF
THE TRACT OF LAND INVOLVED.
(c) Attorneys (Firm Name, Address, and Telephone Number)
Attorneys (If Known)
(50 Se
1 21-CV0992
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)
]
U.S. Government
3
Federal Question
PTF
DEF
PTF
DEF
Plaintiff
(U.S. Government Not a Party)
Citizen of This State
Incorporated or Principal Place
4
4
of Business In This State
2 U.S. Government
4 Diversity
Citizen of Another State
2
2 Incorporated and Principal Place
5
5
Defendant
(Indicate Citizenship of Parties in Item III)
of Business In Another State
Citizen or Subject of a
3
3 Foreign Nation
6
6
Foreign Country
IV. NATURE OF SUIT
(Place an "X" in One Box Only)
Click here for: Nature of Suit Code Descriptions
CONTRACT
TORTS
FORFEITURE/PENALTY
BANKRUPTCY
OTHER STATUTES
110 Insurance
PERSONAL INJURY
PERSONAL INJURY
625 Drug Related Seizure
422 Appeal 28 USC 158
375 False Claims Act
120 Marine
310 Airplane
365 Personal Injury
of Property 21 USC 881
423 Withdrawal
376 Qui Tam (31 USC
130 Miller Act
315 Airplane Product
Product Liability
690 Other
28 USC 157
3729(a))
140 Negotiable Instrument
Liability
367 Health Care/
400 State Reapportionment
150 Recovery of Overpayment
320 Assault, Libel &
Pharmaceutical
PROPERTY RIGHTS
410 Antitrust
& Enforcement of Judgment
Slander
Personal Injury
820 Copyrights
430 Banks and Banking
151 Medicare Act
330 Federal Employers'
Product Liability
830 Patent
450 Commerce
152 Recovery of Defaulted
Liability
368 Asbestos Personal
835 Patent Abbreviated
460 Deportation
Student Loans
340 Marine
Injury Product
New Drug Application
470 Racketeer Influenced and
(Excludes Veterans)
345 Marine Product
Liability
840 Trademark
Corrupt Organizations
153 Recovery of Overpayment
Liability
PERSONAL PROPERTY
LABOR
880 Defend Trade Secrets
480 Consumer Credit
of Veteran's Benefits
350 Motor Vehicle
370 Other Fraud
710 Fair Labor Standards
Act of 2016
(15 USC 1681 or 1692)
160 Stockholders' Suits
355 Motor Vehicle
371 Truth in Lending
Act
485 Telephone Consumer
190 Other Contract
Product Liability
380 Other Personal
720 Labor/Management
SOCIAL SECURITY
Protection Act
195 Contract Product Liability
360 Other Personal
Property Damage
Relations
861 HIA (1395ff)
490 Cable/Sat TV
196 Franchise
Injury
385 Property Damage
740 Railway Labor Act
862 Black Lung (923)
850 Securities/Commodities/
362 Personal Injury
Product Liability
751 Family and Medical
863 DIWC/DIWW (405(g))
Exchange
Medical Malpractice
Leave Act
864 SSID Title XVI
890 Other Statutory Actions
REAL PROPERTY
CIVIL RIGHTS
PRISONER PETITIONS
790 Other Labor Litigation
865 RSI (405(g))
891 Agricultural Acts
210 Land Condemnation
440 Other Civil Rights
Habeas Corpus:
791 Employee Retirement
893 Environmental Matters
220 Foreclosure
441 Voting
463 Alien Detainee
Income Security Act
FEDERAL TAX SUITS
895 Freedom of Information
230 Rent Lease & Ejectment
442 Employment
510 Motions to Vacate
870 Taxes (U.S. Plaintiff
Act
240 Torts to Land
443 Housing/
Sentence
or Defendant)
896 Arbitration
245 Tort Product Liability
Accommodations
530 General
871 IRS-Third Party
899 Administrative Procedure
290 All Other Real Property
445 Amer. w/Disabilities
535 Death Penalty
IMMIGRATION
26 USC 7609
Act/Review or Appeal of
Employment
Other:
462 Naturalization Application
Agency Decision
446 Amer. w/Disabilities
540 Mandamus & Other
465 Other Immigration
950 Constitutionality of
Other
550 Civil Rights
Actions
State Statutes
448 Education
555 Prison Condition
560 Civil Detainee
Conditions of
Confinement
V. ORIGIN
(Place (III "X" in One Box Only)
Original
2 Removed from
3
Remanded from
4 Reinstated or
5 Transferred from
6 Multidistrict
8 Multidistrict
Proceeding
State Court
Appellate Court
Reopened
Another District
Litigation -
Litigation
(specify)
Transfer
Direct File
Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless
VI. CAUSE OF ACTION
42 usc 1983, 1985, 1st, 4th,14th 8th amendaents
Brief description of cause:
False Arrest Far cumping Misdemeona Class C
VII. REQUESTED IN
CHECK IF THIS IS A CLASS ACTION
DEMAND $
CHECK YES only if demanded in complaint:
COMPLAINT:
UNDER RULE 23, F.R.Cv.P.
$1,000,000
JURY DEMAND:
Yes
No
VIII. RELATED CASE(S)
IF ANY
(See instructions):
JUDGE
DOCKET NUMBER
DATE
SIGNATURE OF ATTORNEY OF RECORD
11-2-2021
an
prose
FOR OFFICE USE ONLY
RECEIPT #
AMOUNT
APPLYING IFP
JUDGE
MAG. JUDGE
Case 1:21-cv-00992-LY Document 8 Filed 01/24/22 Page 1 of 8
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
JULIAN REYES,
§
Plaintiff,
§
§
V.
§
§
CITY OF AUSTIN, INC., AUSTIN
§
CIVIL ACTION NO. 1:21-CV-0992-LY
POLICE DEPARTMENT, TROY
§
WISMAR, CHRISTOPHER
§
CARLISLE, PATRICK WALSH, KYU
§
SUK AN, SARAH FOSTER, GREG
§
MCCORMACK, JOHN DOES,
§
individually and in their official
§
capacities
§
Defendant.
§
DEFENDANTS' RULE 12(B)(1) & (6) MOTION TO DISMISS
TO THE HONORABLE JUDGE LEE YEAKEL:
The City of Austin, Officers Troy Wismar, Christopher Carlisle, Patrick Walsh, Kyu Suk
An, Sarah Foster, and Front Steps former Executive Director Greg McCormack file Defendants;
Rule 12(b)(6) Motion to Dismiss in response to Plaintiff's Complaint [Doc. No 1].
I.
Introduction
Just before the expiration of the two-year statute of limitations, Plaintiff brings this civil
rights action against the City of Austin [sic] INC, multiple listed police officers, and the former
executive director of a private non-profit asserting that his rights were violated pursuant to 42 USC
§§ 1983 and 1985 and violations of his First, Fourth, Eighth and Fourteenth Amendment rights
with regard to his alleged arrest on or about November 5, 2019 and a subsequent arrest on or about
October 24, 2021. Plaintiff has filed to plead a cognizable claim for relief against any of the named
officers and individuals or City. The federal pleading requirements apply to pro se litigants and
DEFENDANTS' RULE 12(B)(1) & (6) MOTION TO DISMISS
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Case 1:21-cv-00992-LY Document 8 Filed 01/24/22 Page 2 of 8
the threshold pleading standards require factual allegations regarding each material element
necessary to sustain recovery under an actionable legal theory. Because Plaintiff has failed to do
so, the claims against all named parties must be dismissed.
II.
Motion to Dismiss
Rule 12(b)(6) asks a court to dismiss a complaint for failure to state a claim upon which
relief can be granted." Fed. Rules. Civ. Proc. Rule 12(b)(6). The U.S. Supreme Court has adopted
a two-step approach to determine if a claim should be dismissed under Rule 12(b)(6). Iqbal, 556
at 663, citing Bell Atlantic Corp. V. Twombly, 550 U.S. 544 (2007). First, though generally a court
should accept the veracity of well pleaded facts and view them in a light most favorable to the
plaintiff, this tenet is inapplicable to allegations that are "threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements." Id. Second, a complaint can survive
a motion to dismiss only if it states a factually plausible claim for relief. Id. A claim is facially
plausible if the plaintiff "pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged." Id. at 678. And a complaint
must identify factual and legal grounds which could entitle a plaintiff to relief against each
defendant sued. Cuvillier V. Taylor, 503 F.3d 397, 401 (5th Cir. 2007) (emphasis added).
Furthermore, the allegations in a complaint must raise a right to relief that is more than
speculative, assuming that the allegations are true. Twombly, 550 U.S. at 555. The well pleaded
facts must allow the court to infer the possibility of the defendant's misconduct and show that the
plaintiff is entitled to relief. Iqbal, at 678. In deciding a motion to dismiss under Rule 12(b)(6), a
court generally accepts as true all factual allegations contained within the complaint. Leatherman
V. Tarrant Cnty. Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164 (1993). However,
the court's evaluation of pleading sufficiency requires the court to distinguish pleading
DEFENDANTS' RULE 12(B)(1) & (6) MOTION TO DISMISS
PAGE 2
Case 1:21-cv-00992-LY Document 8 Filed 01/24/22 Page 3 of 8
allegations within a complaint that contain factual content from mere assertions that do not. A
list of generalized legal standards, without providing substantive factual matter supporting them,
does not state a claim. See Vulcan Materials Co. V. City of Tehuacana, 238 F.3d 382, 387 (5th Cir.
2001). The Court should not "strain to find inferences favorable to the plaintiffs" or "accept
conclusory allegations, unwarranted deductions, or legal conclusions." R2 Invs. LDC V. Phillips,
401 F.3d 638, 642 (5th Cir. 2005) (quoting Southland Sec. Corp. V. Inspire Solutions, Inc., 365
F.3d 353, 361 (5th Cir. 2004).
III.
Argument & Authorities
A. Plaintiff fails to state a Claim against the City of Austin¹
A City may be liable for constitutional violations under § 1983, but there is no respondeat
superior liability. See Monell V. Dep't of Social Services of City of New York, 436 U.S. 658, 690-
694 (1978). A municipality is only liable for "acts directly attributed to it through some official
action or imprimatur." Peterson V. City of Forth Worth, 588 F.3d 838, 847 (5th Cir. 2009).
Generally, this requires a Plaintiff to some "the deprivation of a federally protected right caused
by action taken pursuant to an official municipal policy." Valle V. City of Houston, 613 F.3d 536,
541 (5th Cir. 2010). Plaintiff's pleading does not reference or specific a specific official policy
practice or custom, an alleged policy maker or whether any such policy was the moving force
behind any of the alleged violations of his rights. Without those basic requirements, the claims
against the City fail under the federal pleadings standards and must be dismissed.
In the absence of an express policy, a plaintiff is permitted to show a "persistent,
1 Plaintiff also names the Austin Police Department as a party. The Austin Police Department is
not a separate legal entity that is subject to suit. Rather, it is a department within the City.
Because the police department is a non-jural entity, it also must be dismissed. See Darby V.
Pasadena Police Dep't., 939 F.2d 311, 313-14 (Fifth Cir. 1991).
DEFENDANTS' RULE 12(B)(1) & (6) MOTION TO DISMISS
PAGE 3
Case 1:21-cv-00992-LY Document 8 Filed 01/24/22 Page 4 of 8
widespread practice of City officials or employees, which, although not authorized by official
policy, is SO common and well-settled as to constitute a custom that fairly represents municipal
policy." Piotrowski V. City of Houston, 237 F.3d 567, 579 (5th Cir. 2001 (quoting Webster V. City
of Houston, 735 F.2d 838 (5th Cir. 1984(en banc)). However, even in such instances identified
as a pattern or practice, the Plaintiff must plead more than a series of isolated incidents. See
Burge V. St. Tammy Parish, 336 F.3d 363, 370 (5th Cir. 2003). Plaintiff's pleading also fails to
assert a pattern and practice cause of action against the City. Although Plaintiff conclusively
states that the defendants have a pattern and practice of "violating poor unhoused people's rights,"
(Doc. No. 1, page 3), he again makes no factual references beyond two specific individual arrests
and vague references to additional municipal court citations that are the subject of his complaint.
Without more, his pleadings fail to state a cause of action against the City.
B. The Officers are entitled to official/qualified immunity.
Plaintiff names five officers and additional doe officers in his vaguely-worded complaint.
Two officers: Sarah Foster and Kyu Suk are not mentioned beyond the caption. Plaintiff lobs
vague and conclusory allegations against the remaining three officers that appear related to his
November 2019 citation for violating the City's camping ban. The named Officers are entitled to
official/qualified immunity from individual capacity claims, if any. Immunity requires a
heightened pleading standard wherein plaintiff must state facts with particularity, not conclusory
allegations. Elliott V. Perez, 751 F.2d 1472 (5th Cir. 1985). "Qualified immunity shields federal
and state officials from money damages unless a plaintiff pleads facts showing (1) that the official
violated a statutory or constitutional right, and (2) that the right was 'clearly established' at the
time of the challenged conduct." Ashcroft V. al-Kidd, 131 S.Ct. 2074, 2080 (2011). The plaintiff
has the burden to negate the assertion of qualified immunity once raised.
DEFENDANTS' RULE 12(B)(1) & (6) MOTION TO DISMISS
PAGE 4
Case 1:21-cv-00992-LY Document 8 Filed 01/24/22 Page 5 of 8
When an individual alleges a claim for wrongful arrest, qualified immunity shields
defendant officers from suit if a " 'reasonable officer could have believed [the arrest at issue] to
be lawful, in light of clearly established law and the information the [arresting] officer possessed.'
Hunter V. Bryant, 502 U.S. 224, 227 (1991). Plaintiff did not plead sufficient facts to establish
that the facts and circumstances within the citing officers' knowledge during the November 5,
2019, incident where he was cited for a Class C Misdemeanor Camping Ban violation, were
insufficient to establish probable cause. In fact, Plaintiff acknowledges the basis for the probable
cause complaint: that he was arrested for the class C misdemeanor of camping and was told to
move to alternative locations of Emma Long Park, McKinney State Park or seek a spot at the Arch.
The basis for Plaintiff's false arrest allegations seem to be that he doesn't believe that was the
reason for the citation, and the true reason was his filming the police. However, conclusory
statements without more, cannot serve as the basis for a valid complaint under 1983 and certainly
are insufficient to overcome the named Officers' entitlement to qualified immunity. 2 Without
more, Plaintiff's claims against Officers Carlisle and Walsh must fail.
Plaintiff has failed to state a claim against Officers Kyu Suk, Sarah Foster and Sergeant
Troy Wismar. The first two officers are not mentioned in the body of the Complaint and the only
reference to Sergeant Wismar is that he was joined by front steps manager to conspire to deprive
people of their rights. (Doc. No. 1, page 3). Read most generously to the plaintiff, he may have
alleged a claim for bystander liability or conspiracy against the Officers. As explained below,
such a claim fails.
2 Plaintiff's additional allegations related to October 2021 are equally deficient. The conclusory
allegation of a wrongful arrest on a public sidewalk, without more does not support the well-
established pleading standards let alone a complaint that can overcome qualified immunity.
DEFENDANTS' RULE 12(B)(1) & (6) MOTION TO DISMISS
PAGE 5
Case 1:21-cv-00992-LY Document 8 Filed 01/24/22 Page 6 of 8
Bystander liability may be established where an officer (1) knows that a fellow officer is
violating an individual's constitutional rights; (2) has a reasonable opportunity to prevent the harm;
and (3) chooses not to act. Kitchen V. Dallas County, 759 F.3d 468, 480 (5th Cir. 2014). Here,
Plaintiff does not plead sufficient facts to establish the officer's involvement in the incident.
Further, he pleads no constitutional violation for which the officers had a duty to intervene.
Without more, the Officers should be dismissed.
C. Greg McCormack Is Not a State Actor and Must be Dismissed.
Plaintiff names Greg McCormack as one of several defendants and describes his role as
both the "director of FrontSteps corporation" (Doc. No. 1, Page 7) and "working for the ARCH
homeless shelter at the time " (Doc. No. 1, page 6). State action is a prerequisite to sustaining
a
legal claim under § 1983. See Miss. Women's Med. Clinic V. McMillian, 866 F.2d 788, 792-93
(5th Cir. 1989). To show state action, Plaintiff must show an official custom policy or practice of
the City or that the actions of FrontSteps' employees, although private, are actions "fairly
attributable to the City" and therefore State actors. See Lugar V. Edmonston Oil, 457 U.S. 922
937 (1982). acts under color of state law and therefore a state actor.
Here, Plaintiff's only attempts to connect McCormack to the City are his description that
he was on site talking to the police about how to remove and arrest him. (Doc. No. 1, page 6).
Separately, he connects McCormack with work performed on behalf of the Arch homeless shelter
in clearing out people who were camped outside the shelter. Such statements do not point to a
policy of the City. Further, they do not identify the requisite control or authority that would amount
to State action that could be attributed to McCormack. Without more, the claims against
McCormack must be dismissed.
DEFENDANTS' RULE 12(B)(1) & (6) MOTION TO DISMISS
PAGE 6
Case 1:21-cv-00992-LY Document 8 Filed 01/24/22 Page 7 of 8
D. Section 1985 Conspiracy is not properly pled.
Section 1985 prohibits conspiracies to deprive an individual of equal protection or equal
privileges and immunities under the law on the basis of race. Griffin V. Breckenride, 403 U.S.
88, 102-03 (1971). While Plaintiff vaguely references a conspiracy (Doc. No. 1, p. 4), he has
not alleged any facts to support a racially discriminatory conspiracy (indeed Plaintiff does not
even identify his race or the race of the Defendants). Therefore, Plaintiff's section 1985 claim
should be dismissed.
E. Plaintiff's claim of an Eighth Amendment Violation are Misplaced.
Plaintiff alleges that his Civil Complaint involve "8th Constitutional Amendment." (Doc.
No. 1, page 2). As a general rule, a pretrial detainee's rights are analyzed under the Due Process
Clause rather than the Eighth Amendment. See Bell V. Wolfish, 441 U.S. 520, 535, N. 6 (1979).
Here, Plaintiff makes no factual allegations in support of his conclusory legal claim of Eighth
Amendment. Further, there is no cause of action under the Eighth Amendment based upon his
status as a pretrial detainee. To the extent Plaintiff's Complaint includes an Eighth Amendment
claim, it should be dismissed.
IV.
Conclusion and Prayer for Relief
Defendants request that the Court grant this Motion to Dismiss Plaintiff's claims and
parties identified above pursuant to FRCP 12(b)(6). Defendants further request such other and
further relief to which they may show to be justly entitled, at law and in equity.
DEFENDANTS' RULE 12(B)(1) & (6) MOTION TO DISMISS
PAGE 7
Case 1:21-cv-00992-LY Document 8 Filed 01/24/22 Page 8 of 8
RESPECTFULLY SUBMITTED,
ANNE L. MORGAN, CITY ATTORNEY
MEGHAN L. RILEY, LITIGATION DIVISION CHIEF
/s/ Meghan L. Riley
MEGHAN L. RILEY
State Bar No. 24049373
City of Austin
P.O. Box 1546
Austin, Texas 78767-1546
meghan.riley@austintexas.gov
Telephone (512) 974-2458
Facsimile (512) 974-1311
ATTORNEYS FOR DEFENDANT
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 24th day of January 2022.
Via U.S. First-Class Mail & Certified Mail:
Julian Reyes
Pro Se
10900 Research Blvd.
Suite 160c Box 147
Austin, Texas, 78759
justicenowpeople@protonmail.com
PLAINTIFF, PRO SE
/s/ Meghan L. Riley
MEGHAN L. RILEY
DEFENDANTS' RULE 12(B)(1) & (6) MOTION TO DISMISS
PAGE 8
Case 1:21-cv-00992-LY-SH Document 9 Filed 02/08/22 Page 1 of 1
FILED
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
FEB - 8 2022
AUSTIN DIVISION
CLERK U.S. DISTRICT CLERK
JULIAN REYES,
§
PLAINTIFF,
§
WESTERN BY The
§
V.
§
§
CAUSE NO. 1:21-CV-992-LY
CITY OF AUSTIN ET AL.,
§
DEFENDANTS.
§
ORDER
IT IS HEREBY ORDERED that all pending and future discovery motions as well as all
other nondispositive motions in this case are REFERRED to United States Magistrate Judge
Susan Hightower for resolution 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.
IT IS FURTHER ORDERED that all pending and future dispositive motions are
REFERRED to United States Magistrate Judge Susan Hightower for Report and
Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B), Federal Rule of Civil Procedure 72, and
Rule 1(d) of Appendix C of the Local Rules of the United States District Court for the Western
District of Texas, as amended.
SIGNED this 8th day of February,
2022.
LEE YEAKEL
UNITED STATES DISTRICT JUDGE
Case 1:21-cv-00992-LY-SH Document 10 Filed 03/15/22 Page 1 of 12
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
JULIAN REYES,
§
Plaintiff
§
§
V.
§
§
CITY OF AUSTIN, INC.; AUSTIN
§
POLICE DEPARTMENT; and TROY
Case No. 1:21-CV-00992-LY-SH
WISMAR, CHRISTOPHER
§
CARLISLE, PATRICK WALSH,
§
KYU SUKAN, SARAH FOSTER,
§
GREG MCCORMACK, and JOHN
§
DOES, individually and in their official
§
capacities,
§
Defendants
§
REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
TO:
THE HONORABLE LEE YEAKEL
UNITED STATES DISTRICT JUDGE
Defendants' Rule 12(b)(1) & (6) Motion to Dismiss, filed January 24, 2022 (Dkt. 8), is now
before the Court. On February 8, 2022, the District Court referred all pending and future motions
in this case to the undersigned Magistrate Judge, pursuant to 28 U.S.C. § 636(b), Federal Rule of
Civil Procedure 72, and Rule 1 of Appendix C of the Local Rules of the United States District
Court for the Western District of Texas. Dkt. 9.
I. Background
Plaintiff Julian Reyes, acting pro se, brings this civil rights action under 42 U.S.C. § 1983.
Reyes is a reporter and videographer for the Challenger Street Newspaper operated by homeless
individuals in Austin, Texas. Complaint, Dkt. 1 at 4. Reyes alleges that officers with the Austin
Police Department ("APD") repeatedly have wrongfully arrested him in retaliation for filming
their interactions with unhoused people.
1
Case 1:21-cv-00992-LY-SH Document 10 Filed 03/15/22 Page 2 of 12
Reyes alleges that on November 5, 2019, APD Corporal Christopher Carlisle, Sergeant Troy
Wismar, and "several officers" conspired together with Greg McCormack, who then worked for
the Austin Resource Center for the Homeless ("ARCH"), 1 "to deprive people of their rights"
during a protest in front of the Salvation Army. Id. Reyes alleges that he was inside his tent filming
the police when Carlisle came to his tent and "said that I was being charged and arrested for my
political beliefs and views, basically for protesting, filming and defending the rights of unhoused
and marginalized, gentrified poor people living on the streets of Austin." Id. Reyes alleges that
McCormack "was on site talking to the police, prior to my false arrest, about how to remove and
arrest me to deprive me of my rights." Id. at 6. He further alleges that APD Officer Patrick Walsh
wrongfully arrested him for committing the misdemeanor offense of violating the City's camping
ban. Id. at 4, 6.
Reyes alleges that the camping charge was dismissed on the merits on November 18, 2019. Id.
at 4. He further alleges that: "Since that time I have been falsely arrested in retaliation for filming
the Austin Police department several times, SO many times I have lost count." Id.
On October 24, 2021, Reyes alleges, he was arrested on a Class C misdemeanor "for my free
speech on a public sidewalk." Id. at 8. He alleges that his cameras, which are his "primary work
equipment and evidence to defend myself in court," were seized by APD. Id. Reyes further alleges
that his 2021 arrest "is one of about 10 [or] 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." Id. He avers that "I currently have 8 or 9 open retaliatory, police
abuse, arrests in 2 courts in Austin." Id. at 9. All but one, Reyes alleges, "are misdemeanor arrests
for filming the police depriving poor people of their rights." Id.
1 Reyes alleges McCormack was director of Front Steps, which manages the ARCH shelter. Dkt. 1 at 7.
2
Case 1:21-cv-00992-LY-SH Document 10 Filed 03/15/22 Page 3 of 12
On November 3, 2021, Reyes filed this lawsuit, alleging that his repeated arrests violated his
rights under First, Fourth, Eighth, and Fourteenth Amendments to the United States Constitution.2
Id. at 2. Reyes also asserts a claim for conspiracy under 42 U.S.C. § 1985. He alleges that APD
has a "practice of false arrests to deprive Citizens of their rights," including the First Amendment
right "to film the Austin Police Department at work in public." Dkt. 1 at 4. He further alleges that
this practice culminated in his multiple false arrests, rendering the City liable for the individual
APD officers' actions under Section 1983. Id.
Defendants the City of Austin (the "City"), Greg McCormack, and APD Officers Troy
Wismar, Christopher Carlisle, Patrick Walsh, Kyu Suk An, and Sarah Foster move to dismiss
Reyes' claims for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). 3 Reyes
did not respond to Defendants' motion.
II. Legal Standards
A. Rule 12(b)(6)
Rule 12(b)(6) allows a party to move to dismiss an action for failure to state a claim on which
relief can be granted. In deciding a Rule 12(b)(6) motion to dismiss for failure to state a claim, the
court accepts "all well-pleaded facts as true, viewing them in the light most favorable to the
plaintiff." In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007) (citation
omitted). The Supreme Court has explained that a complaint must contain sufficient factual matter
"to state a claim to relief that is plausible on its face." Ashcroft V. Iqbal, 556 U.S. 662, 678 (2009)
2 Although Plaintiff included an Eighth Amendment violation his Section 1983 claim, the Court construes
his claim under the Fourteenth Amendment. See Esquivel V. Eastburn, No. SA-20-CV-00377-OLG, 2021
WL 1667132, at *6 (W.D. Tex. Apr. 28, 2021) (construing pretrial detainee's Eighth Amendment claims
under Fourteenth Amendment).
3 Defendants cite Rule 12(b)(1) in the title of their motion but seek dismissal under Rule 12(b)(6) only.
Also, the Austin Police Department is not subject to suit because it is not a separate legal entity from the
City of Austin. Taylor V. Anderson, No. A-13-CV-464-LY, 2014 WL 547032, at *5 n.3 (W.D. Tex. Feb. 10,
2014) (citing Darby V. Pasadena Police Dep't, 939 F.2d 311, 313-14 (5th Cir. 1991)).
3
Case 1:21-cv-00992-LY-SH Document 10 Filed 03/15/22 Page 4 of 12
(quoting Bell Atlantic Corp. V. Twombly, 550 U.S. 544, 570 (2007)). "A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678.
While a complaint attacked by a Rule 12(b)(6) motion to dismiss does
not need detailed factual allegations, a plaintiff's obligation to provide
the grounds of his entitlement to relief requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of
action will not do. Factual allegations must be enough to raise a right
to relief above the speculative level, on the assumption that all the
allegations in the complaint are true (even if doubtful in fact).
Twombly, 550 U.S. at 555 (cleaned up). In determining whether a plaintiff's claims survive a
Rule 12(b)(6) motion to dismiss, the factual information to which the court addresses its inquiry
is generally limited to (1) the facts set forth in the complaint, (2) documents attached to the
complaint, and (3) matters of which judicial notice may be taken under Federal Rule of Evidence
201. Walker V. Beaumont Indep. Sch. Dist., 938 F.3d 724, 735 (5th Cir. 2019).
B. Section 1983
42 U.S.C. § 1983 provides:
Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State
subjects, or causes to be subjected,
any citizen of the United States or other person within the jurisdiction
thereof to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party injured
in an action at law
To state a claim under Section 1983, a plaintiff must (1) allege a violation of a right secured by the
Constitution or laws of the United States, and (2) demonstrate that the alleged deprivation was
committed by a person acting under color of state law. Whitley V. Hanna, 726 F.3d 631, 638
(5th Cir. 2013). Claims under Section 1983 may be brought against persons in their individual or
official capacity, or against a governmental entity. Goodman V. Harris Cnty., 571 F.3d 388, 395
(5th Cir. 2009). It is well established that a municipality or a local governmental unit is not liable
4
Case 1:21-cv-00992-LY-SH Document 10 Filed 03/15/22 Page 5 of 12
under Section 1983 on the theory of respondeat superior. Monell V. Dep't of Soc. Servs., 436 U.S.
658,694 (1978). "A municipality is almost never liable for an isolated unconstitutional act on the
part of an employee; it is liable only for acts directly attributable to it through some official action
or imprimatur." Peterson V. City of Fort Worth, 588 F.3d 838, 847 (5th Cir. 2009) (internal
quotation marks omitted). A municipality is liable under Section 1983 for its officers and
employees' actions when they are executing an official policy or custom. Piotrowski V. City of
Houston, 237 F.3d 567, 579 (5th Cir. 2001).
III. Analysis
Reyes did not file a response to Defendants' Motion to Dismiss. Nonetheless, the Court
addresses the merits of the motion, as the Fifth Circuit Court of Appeals has not approved the
automatic grant of dispositive motions. Johnson V. Pettiford, 442 F.3d 917, 918-19 (5th Cir. 2006).
A. Municipal Liability
To establish municipal liability under Section 1983, a plaintiff must plead facts that plausibly
establish (1) an official policy (2) promulgated by a policymaker (3) that was the "moving force"
behind the violation of the constitutional right. Piotrowski, 237 F.3d at 578. The City contends that
Reyes has failed to adequately plead all three of these elements. Specifically, Defendants argue
that Reyes has not sufficiently alleged that any APD policy, practice, or custom caused a violation
of his constitutional rights, identified an alleged policymaker, or shown that a City policy was the
moving force behind his constitutional violation.
1. Official Policy
An official policy can include written policy statements, ordinances, or regulations, as well as
a widespread practice that is "SO common and well-settled as to constitute a custom that fairly
represents municipal policy." Webster V. City of Houston, 735 F.2d 838, 841 (5th Cir. 1984). A
policy or custom is official when it results from the decision or acquiescence of the municipal
5
Case 1:21-cv-00992-LY-SH Document 10 Filed 03/15/22 Page 6 of 12
officer or body with final policymaking authority over the subject matter of the offending policy.
Jett V. Dallas Indep. Sch. Dist., 491 U.S. 701, 737 (1989).
Municipal liability claims based on a local government's customs generally require that the
plaintiff demonstrate a pattern of conduct, because "one act is not itself a custom." Pineda V. City
of Houston, 291 F.3d 325, 329 (5th Cir. 2002). "A pattern requires similarity and specificity;
'[p]rior indications cannot simply be for any and all bad or unwise acts, but rather must point to
the specific violation in question." Peterson, 588 F.3d at 851 (quoting Estate of Davis ex rel.
McCully V. City of N. Richland Hills, 406 F.3d 375, 381 (5th Cir. 2005)). A pattern also requires
sufficiently numerous prior incidents, not isolated instances. McConney V. City of Houston, 863
F.2d 1180, 1184 (5th Cir. 1989).
A "First Amendment right to record the police does exist, subject only to reasonable time,
place, and manner restrictions." Turner V. Lt. Driver, 848 F.3d 678, 688 (5th Cir. 2017); see also
Kokesh V. Curlee, 14 F.4th 382, 393 (5th Cir. 2021) (stating that recording state trooper "is a
protected activity under the First Amendment"). Reyes alleges that the City has a widespread
practice or custom in which police officers falsely arrest people to prevent them from exercising
their First Amendment right to record police activities. Dkt. 1 at 4.
In his Complaint, Reyes alleges facts regarding multiple instances in which he was purportedly
arrested by APD while filming police activity. Reyes identifies two separate arrests and alleges
that "about 10 [or] so" additional arrests occurred under similar circumstances. Id. at 3, 8.
Once again, at the motion to dismiss stage of a proceeding, the Court must assume that all
allegations in the complaint are true. Twombly, 550 U.S. at 555. The Court finds that Reyes has
made specific factual allegations allowing a reasonable inference that the City had a policy,
practice, or custom of arresting individuals to prevent them from filming police activities.
6
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Therefore, his pleadings are sufficient to state a viable claim under Section 1983. See, e.g., Sanchez
V. Gomez, 283 F. Supp. 3d 524, 536 (W.D. Tex. 2017) (denying motion to dismiss where plaintiffs
alleged nine instances of use of excessive force against mentally ill victims in four years), appeal
dismissed, 2018 WL 1989633 (5th Cir. Feb. 22, 2018); Barr V. City of San Antonio, No. SA-06-
CA-0261-XR, 2006 WL 2322861, at *4 (W.D. Tex. July 25, 2006) (finding allegations of four
prior lawsuits against city concerning unlawful arrest and excessive force sufficient to state a
"policy or custom" claim under Section 1983).
2. Policymaker
Defendants further argue that Reyes' Section 1983 claim fails because he does not reference
any alleged policymaker in his Complaint. The Fifth Circuit Court of Appeals has specifically
rejected this contention, holding that the identity of the policymaker is a question of state law, not
fact, and therefore courts should not grant motions to dismiss for failing to plead the specific
identity of the policymaker. Groden V. City of Dallas, 826 F.3d 280, 284 (5th Cir. 2016) ("[T]he
specific identity of the policymaker is a legal question that need not be pled; the complaint need
only allege facts that show an official policy, promulgated or ratified by the policymaker, under
which the municipality is said to be liable."); see also Balle V. Nueces Cnty., 952 F.3d 552, 559
(5th Cir. 2017) (reversing dismissal of claim against county because plaintiff was not required to
plead identity of policymaker).
3. Nexus
To satisfy the third element and show that a policy was the "moving force" behind the
constitutional violation under Section 1983, there must be "a direct causal link" between the policy
and the violation, not merely a "but for" coupling between cause and effect. Peterson, 588 F.3d at
848. Reyes alleges that, because of the City's custom of arresting those who film police activities,
APD officers wrongfully arrested him on multiple occasions, which resulted in his constitutional
7
Case 1:21-cv-00992-LY-SH Document 10 Filed 03/15/22 Page 8 of 12
injury. He specifically alleges that all but one of his misdemeanor arrests are "for filming the police
depriving poor people of their rights" and not for any actual violation of the law. Dkt. 1 at 9. The
facts alleged in Reyes' Complaint state a plausible claim that the City's policy was the "moving
force" behind the alleged violations of his constitutional rights under the First, Fourth, and
Fourteenth Amendments.
For the foregoing reasons, the undersigned Magistrate Judge recommends that the District
Court deny Defendants' Motion to Dismiss Reyes' Section 1983 claim against the City of Austin.
B. Individual Defendants
Reyes also asserts Section 1983 claims against several APD officers and McCormack, a private
citizen. Defendants argue that the APD officers are entitled to qualified immunity, and that Reyes
fails to state a claim against McCormack.
1. Officers Sarah Foster and Kyu Suk An
Reyes names APD Officers Sarah Foster and Kyu Suk An as defendants, but alleges no facts
against either officer in his Complaint. Dkt. 1 at 2. "To be liable under § 1983, [an officer] must
have been personally involved in the alleged constitutional deprivation or have engaged in
wrongful conduct that is causally connected to the constitutional violation." Turner, 848 F.3d at
695-96; see also Watson V. Interstate Fire & Cas. Co., 611 F.2d 120, 123 (5th Cir. 1980) (stating
that "vicarious liability cannot be the basis for recovery" under Section 1983 and that "[1]iability
may be found only if there is personal involvement of the officer being sued"). Reyes' claims
against these two defendants fail as a matter of law because he pleads no allegations that they were
personally involved in or causally connected to his allegedly wrongful arrests. See Turner, 848
F.3d at 696 (stating that plaintiff failed to allege officer violated Fourth Amendment rights where
he did not allege that police officer had any personal involvement in his arrest). Accordingly, the
claims against Officers Sarah Foster and Kyu Suk An should be dismissed.
8
Case 1:21-cv-00992-LY-SH Document 10 Filed 03/15/22 Page 9 of 12
2. Corporal Christopher Carlisle, Officer Patrick Walsh, Sergeant Troy Wismar,
and John Doe Officers
Defendants argue that the remaining APD officers are entitled to qualified immunity from
Reyes' individual capacity claims. Qualified immunity extends to government officials performing
discretionary functions "insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known." Harlow V. Fitzgerald, 457
U.S. 800, 818 (1982). "Qualified immunity shields from liability 'all but the plainly incompetent
or those who knowingly violate the law." Romero V. City of Grapevine, 888 F.3d 170, 176
(5th Cir. 2018) (quoting Malley V. Briggs, 475 U.S. 335, 341 (1986)). An official who violates a
federal right is entitled to qualified immunity if his or her actions were objectively reasonable.
Spann V. Rainey, 987 F.2d 1110, 1114 (5th Cir. 1993). Therefore, "qualified immunity represents
the norm." Harlow, 457 U.S. at 807.
Once a defendant invokes qualified immunity, the burden shifts to the plaintiff to show that
the defense is not available. Kovacic V. Villarreal, 628 F.3d 209, 211 (5th Cir. 2010). To rebut the
qualified immunity defense, a plaintiff must show that (1) the allegations make out a violation, and
(2) the violation was "clearly established" at the time of the defendant's conduct. Id. To do so, the
plaintiff "must plead specific facts that both allow the court to draw the reasonable inference that
the defendant is liable for the harm he has alleged and that defeat a qualified immunity defense
with equal specificity." Backe V. LeBlanc, 691 F.3d 645, 648 (5th Cir. 2012).
Because he did not respond to Defendants' grounds for dismissal of his Section 1983 claims
based on qualified immunity, Reyes has failed to meet his burden to negate Defendants' qualified
immunity defense. See Brumfield V. Hollins, 551 F.3d 322, 326 (5th Cir. 2008) (stating that
plaintiff has burden to negate qualified immunity defense once properly raised); S.C. V. Round
Rock Indep. Sch. Dist., No. A-19-CV-1177-SH, 2020 WL 1446857, at *8 (W.D. Tex. Mar. 25,
9
Case 1:21-cv-00992-LY-SH Document 10 Filed 03/15/22 Page 10 of 12
2020) (finding that plaintiffs did not meet burden to negate defense when they failed to respond to
defendant's grounds for dismissal based on qualified immunity). Accordingly, the undersigned
Magistrate Judge recommends that Reyes' claims against Carlisle, Walsh, Wismar, and the John
Doe Officers be dismissed for failure to state a claim.
3. Greg McCormack
For a private citizen to be held liable under Section 1983, the plaintiff must allege that the
citizen conspired with or acted in concert with state actors. Childers V. San Saba Cnty.,
No. A-14-CV-916-LY-ML, 2015 WL 13694667, at *14 (W.D. Tex. Nov. 30, 2015) (citing Mylett
V. Jeane, 879 F.2d 1272, 1275 (5th Cir. 1989)). The plaintiff must allege (1) an agreement between
the private and public defendants to commit an illegal act, and (2) a deprivation of constitutional
rights. Cinel V. Connick, 15 F.3d 1338, 1343 (5th Cir. 1994). "Allegations that are merely
conclusory, without reference to specific facts, will not suffice." Priester V. Lowndes Cnty., 354
F.3d 414, 420 (5th Cir. 2004).
Defendants argue that Reyes' Section 1983 claim against McCormack fails because Reyes has
alleged neither that McCormack was a state actor nor facts showing that McCormack entered a
conspiracy with the City to deprive Reyes of his constitutional rights. Reyes alleges that
McCormack, then working for the ARCH homeless shelter, "was involved in clearing out all the
people camped outside" the shelter and talked to APD officers about removing Reyes immediately
before his arrest on November 5, 2019. Dkt. 1 at 6. Accordingly, Reyes can pursue a Section 1983
against McCormack only if he can show a conspiracy between McCormack and the City.
Reyes has not alleged facts showing the existence of an agreement between McCormack and
any state actor to commit an illegal act. He makes only a conclusory allegation that McCormack
"conspired to deprive [him] of [his] civil rights." Id. at 7. This is insufficient to state a claim. See
Priester, 354 F.3d at 421 (holding that dismissal of Section 1983 claim was appropriate because
10
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plaintiff did not allege an agreement between defendants to commit an illegal act or specific facts
to show an agreement). The Court recommends that Reyes' Section 1983 claim against
McCormack be dismissed.
C. Civil Conspiracy under Section 1985
Finally, Defendants assert that Reyes has failed to allege facts to support a civil conspiracy
claim under Section 1985. The Court agrees that Reyes has not stated such a claim. Assuming that
Reyes asserts his claim under Section 1985(3), he does not allege that he was arrested because of
his race. See Lockett V. New Orleans City, 607 F.3d 992, 1002 (5th Cir. 2010) (stating that "the
conspiracy must also have a racially based animus"). Therefore, Plaintiff's Section 1985 claim
should be dismissed.
IV. Recommendations
Based on the foregoing, the undersigned Magistrate Judge RECOMMENDS that the District
Court GRANT IN PART AND DENY IN PART Defendants' Motion to Dismiss (Dkt. 8) under
Rule 12(b)(6).
The Court RECOMMENDS that the District Court GRANT the Motion and DISMISS with
prejudice Plaintiff's claims against Greg McCormack and APD Officers Troy Wismar,
Christopher Carlisle, Patrick Walsh, Kyu Suk An, and Sarah Foster, and DENY Defendants'
Motion as to Plaintiff's Section 1983 claims against the City of Austin.
Should the District Court adopt this Report and Recommendation, Plaintiff's only remaining
cause of action will be his Section 1983 claim against the City of Austin.
V. Warnings
The parties may file objections to this Report and Recommendation. A party filing objections
must specifically identify those findings or recommendations to which objections are being made.
The District Court need not consider frivolous, conclusive, or general objections. See Battle V.
11
Case 1:21-cv-00992-LY-SH Document 10 Filed 03/15/22 Page 12 of 12
United States Parole Comm'n, 834 F.2d 419, 421 (5th Cir. 1987). A party's failure to file written
objections to the proposed findings and recommendations contained in this Report within fourteen
(14) days after the party is served with a copy of the Report shall bar that party from de novo
review by the District Court of the proposed findings and recommendations in the Report and,
except on grounds of plain error, shall bar the party from appellate review of unobjected-to
proposed factual findings and legal conclusions accepted by the District Court. See 28 U.S.C.
§ 636(b)(1); Thomas V. Arn, 474 U.S. 140, 150-53 (1985); Douglass V. United Servs. Auto. Ass'n,
79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).
SIGNED on March 15, 2022.
84
SUSAN HIGHTOWER
UNITED STATES MAGISTRATE JUDGE
12
Case 1:21-cv-00992-LY-SH Document 12 Filed 03/31/22 Page 1 of 9
UNITED STATES of AMERICA 5TH CIRCUIT AUSTIN DI INSIDE
Julian Reyes
MAR 3 1 2022
Plaintiff
CLERK, U.S. DISTRICT COURT
WESTERN DISTRICT OF TEXAS
BY
§
DEPUTY CLERK
V.
§
Case no.
1:21-cv-00992-LY-SH
§
CITY OF AUSTIN, INC,
§
AUSTIN POLICE DEPARTMENT
OFFICERS CARLILE, WISMAR, et
§
al AND OTHER PARTIES TO BE
§
LISTED LATER, ALL
DEFENDANTS INDIVIDUALLY
AND IN THEIR OFFICIAL CAPACITIES,
RESPECTIVELY
Defendants
Motion for Stay
1. As I do not currently have access to a lawyer on this case or to case law.
As such I would like to request a motion to stay on this case, and on any
responses to this court on this case for at least 30 days while I seek legal
attention on these matters, and before the defendants and court are able to
further deprive me of access to my rights and law. I am a simple pro se Citizen
that has been repeatedly targeted and arrested, an abuse of law, for my
constitutional exercises of filming the police, and city crews, which is free
speech as well as freedom of the press as I am a credentialed member of the
1:21-cv-00992-LY-SH
1
Reyes V Carlisle, et al. 03-31-2022
Case 1:21-cv-00992-LY-SH Document 12 Filed 03/31/22 Page 2 of 9
Challenger Street Newspaper, a 501c3 nonprofit that is over 10 years old now.
I have been with them for about 10 years and the agents are aware of this fact,
as well as the Mayor and City Council and Greg McCormack. They are both
aware of my journalist status and of the status of the Challenger Street
Newspaper, the local street press. Print and online distribution and sales.
Including street vendors that are unhoused.
2. I apologize, after looking through the report and recommendations I
need to correct this case, perhaps even file a new amended complaint as this
case and the other while not duplicates, are hard for me to work and
understand all the case law and how qualified immunity works.
3. Is it true that the police and officials of the City of Austin and their
profiteers that work within their business model, another 'homeless industrial
complex," may conspire to deprive any Citizen of their 1st, 4th and 14th
amendment rights in Austin, the 5th Circuit and that is ok with the current state
of the law? I need access to law, to an attorney and the case law on qualified
immunity to properly respond to the Courts' recommendations.
4. As I am operating without counsel and the incidents of false arrest and
deprivation of rights are frequent and often get confused. Others parties to be
2
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Reyes V Carlisle, et al. 03-31-2022
Case 1:21-cv-00992-LY-SH Document 12 Filed 03/31/22 Page 3 of
9
named later through the proper discovery of evidence, all all defendants
individually and in their official capacities are responsible for this incident on
this date. And only through proper discovery of evidence will we actually
know the extent of this targeting, incidents, and witnesses. To dismiss and give
immunity at this early stage is an injustice under color of law. It would better
serve the people and serve justice to revisit all qualified immunities issues after
the evidence is presented, to make sure that the truth comes out and the facts,
under the law. Not above the law.
5. This incident and complaint happened in Austin, Texas, which this Court
has jurisdiction over. As the 5th Circuit encompasses all of Texas, Louisiana
and Mississippi. These are Constitutional issues, that are novel and important.
Therefore I request the Western District Court of the U.S.A. in Austin, to try
my Civil Complaint involving 1st, 4th, 14th, 8th Constitutional Amendments
both in the State of Texas and similar Constitutional Rights amendments of the
Unites States of America, violations under section U.S.C. 42 1983 as well as
section 1985 Conspiracy of Parties. Because multiple agents of Municipal and
Corporate government did conspire to deprive me of my rights and they were
all involved in this crime against myself and essentially the rights afforded to
all the Citizens and the Free Press. And that is a furtherance of APD's ongoing
practices racist targeting of persons and and the same targeting of me
3
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Reyes V Carlisle, et al. 03-31-2022
Case 1:21-cv-00992-LY-SH Document 12 Filed 03/31/22 Page 4 of 9
repeatedly by the City and it's agents acting together with the desired goals to
deprive me of my rights, falsely arrest me repeatedly, make a mockery of the
Constitution and cause me to not be able to defend my rights in Court. As the
City and it's employees have countless funds and lawyers to protect these
unlawful agents and these actions. The City and police also also know about
my indigency, health issues, and mental strain that they have caused me. They
know I am an important source of Press, news from the streets of Austin,
Texas. News that otherwise would not be spoken. Breaking news. Many are
life or death stories and struggles of real people on the poor streets of wealthy
Austin. People and stories that the City and police would rather not be heard
or seen by the public. The unwanted people on Austin's streets. I have spoken
to the Chiefs of Police both Manley and Acevedo and informed them of this
ongoing issue, of targeting, of interference with 1st amendment constitutional
rights of filming police, of protesting, and that I am in fear for my life and that
of other activists and filmers. Yet the pattern and practice only continues and
escalates. In fact I have done my duty as a concerned Citizen and have filed
many police complaints regarding this issue, and have not had any justice or
change in their obedience of the law in these regards. Thus showing that the
policies and practices of several departments are being used to enable
targeting, false arrest, harassment, police abuse, and utilizing the law do do SO.
Under color of law they violate the constitutions and my rights. The
4
1:21-cv-00992-LY-SH
Reyes y Carlisle, et al. 03-31-2022
Case 1:21-cv-00992-LY-SH Document 12 Filed 03/31/22 Page 5 of 9
harassment and targeting, threats and arrests continue. I have also spoken to
the entire City Council including Mayor Steven Adler and City Manager
Spencer Cronk of these issues and their responsibility if they did not prevent
further illicit targeting of myself and others. And have informed the Judge on
the majority of my now dismissed criminal cases related to these unlawful
arrests.
6. On or about November 5th 2019, in the City of Austin, Travis County,
Texas, U.S.A.. Under this Court's functional jurisdiction, Officers Carlise,
Wismar, and others did conspire together and with others to deprive people of
their rights. This was a separate incident and separate officers that the other
previous cases filed in this court . Those officers and other people worked
together to deprive me of my rights to free speech and press. And to allow
agents to violate our due process and that we may never be free from undue
search and seizure, and retaliative, punitive arrests. To ignore this important
set of facts and give immunity to lawbreakers in power is to give a free pass to
law-breaking police, policy makers, chains of command and leadership that
violate the constitutional law in the U.S.A. and in the 5th Circuit.
7. The location is Neches and 8th street of this incident, case 1:21-
cv-00992-LY-SH. Although this incident occurred at the same location as the
5
1:21-cv-00992-LY-SH
Reyes V Carlisle, et al. 03-31-2022
Case 1:21-cv-00992-LY-SH Document 12 Filed 03/31/22 Page 6 of 9
Reyes V ALAS, HALE, et al case , 12100022LYSH. In fact this case and
complaint is a separate incident and separate date with different actors other
than those responsible for making policies and practices that deprive citizen
filmers and press of their constitutional rights to film and be protected from
illegal search, seizure, arrest and threats. Those are the Mayor, City Council,
and the Chain of Command at APD. This incident and case did not arise out of
the same exact same series of events. Though the false arrest for freedom of
speech is similar in manner. In actuality this case and incident have separate
facts, unlawful field agents and separate dates.
8. Not to mention there is a pattern and practice of City leadership directed
police abuse, targeting not allowing people to sit down, to rest, to survive and
allow people their international human rights laws. Which is why I put protest
and film in the first place, as the law has been nothing but helpful in these
oppressive policies and practices that cost human lives and suffering,
needlessly.
9. These defendant individuals and their agencies have a pattern and
practice of violating poor unhoused people's rights, property rights, 4th, 14th,
amendment rights, many of the City's victims are black, brown or disabled.
Many victims of the City of Austin are also veterans. This is what the War on
6
1:21-cv-00992-LY-SH
Reyes y Carlisle, et al. 03-31-2022
Case 1:21-cv-00992-LY-SH Document 12 Filed 03/31/22 Page 7 of 9
the Poor looks like on the streets of Austin. Racism is a clear pattern and
practice in several areas of policing and control that runs from the streets to the
lens. And a clear pattern and practice of interfering and depriving filmers of
their free speech and free press rights. To hide the Truth and real news from
the publics' view. And we shall see more evidence of these patterns and
practices as we get to discovery of evidence. Please do not dismiss any agents
until we can get an attorney on this and get the evidence to prove the stated
facts of this complaint. Not before evidence has been gathered in the interest of
Justice and the preservation of the constitutions as laws.
10. In this incident of police abuse and retaliation I was falsely arrested for
the class misdemeanor of "Camping" I was filming the police and did not
consent to any search or seizure of my property or work product, as I am also a
member of the Challenger Street Newspaper, a reporter and videographer.
11. I request a Stay for this case because 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. This time and energy keeps me from
working on this case and talking to more lawyers for assistance with this case.
7
1:21-cv-00992-LY-SH
Reyes V Carlisle, et al. 03-31-2022
Case 1:21-cv-00992-LY-SH Document 12 Filed 03/31/22 Page 8 of 9
I believe that he federal civil courts are the venue for seeking justice and
protections of law for all people in this matter.
12. I request leniency on this case and a stay order, to allow time to seek
counsel and file motions. please consider this my request if necessary. As I am
just a layman and pro se, without legal counsel trying to do my best to get this
civil rights complaint and motions filed in time and as accurately as I am able.
13. I would also like the opportunity to amend my complaint as there may
have been errors that made a recommendation that was not guided by the
actual facts as they occurred. It's hard to keep up all these cases yet Justice
must be made for all. Not just protecting the police and their leadership and
trainers.
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.
8
1:21-cv-00992-LY-SH
Reyes V Carlisle, et al. 03-31-2022
Case 1:21-cv-00992-LY-SH Document 12 Filed 03/31/22 Page 9 of 9
SIGNED this
31st
day
of
March
, 2022
Respectfully submitted,
Juliah
, pro se
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
1:21-cv-00992-LY-SH
9
Reyes V Carlisle, et al. 03-31-2022
Case 1:21-cv-00992-LY-SH Document 14 Filed 05/10/22 Page 1 of 2
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
JULIAN REYES,
§
PLAINTIFF,
§
§
V.
§
CAUSE NO. 1:21-CV-992-LY
§
CITY OF AUSTIN ET AL.,
§
DEFENDANTS.
§
ORDER ON REPORT AND RECOMMENDATION
Before the court is the above-referenced cause. On January 24, 2022, Defendants City of
Austin, Troy Wismar, Christopher Carlisle, Patrick Walsh, Kyu Suk An, Sarah Foster, and Greg
McCormack filed a Rule 12(b)(1) & (6) Motion to Dismiss (Doc. #8), which was referred to a
United States Magistrate Judge for Report and Recommendation. See 28 U.S.C. § 636(b); FED.
R. CIV. P. 72; Loc. R. W.D. Tex. App'x C, R. 1(d). The magistrate judge rendered a Report and
Recommendation on March 15, 2022 (Doc. #10), recommending that the court grant in part and
deny in part Defendants' motion to dismiss. Specifically, the magistrate judge recommends that
the court dismiss Plaintiff Julian Reyes's claims against the individual defendants and deny the
motion to dismiss with respect to Reyes's civil-rights claims against the City of Austin. See 42
U.S.C. § 1983 ("Section 1983").
A party may serve and file specific written objections to the proposed findings and
recommendations of a magistrate judge within 14 days after being served with a copy of the
report and recommendation and thereby secure de novo review by the district court. See 28
U.S.C. § 636(b); FED. R. CIV. P. 72(b). A party's failure to timely file written objections to the
proposed findings, conclusions, and recommendation in a report and recommendation bars that
party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed
Case 1:21-cv-00992-LY-SH Document 14 Filed 05/10/22 Page 2 of 2
factual findings and legal conclusions accepted by the district court. See Douglass v. United
Servs. Auto Ass 'n, 79 F.3d 1415 (5th Cir. 1996) (en banc).
On March 31, 2022, Reyes filed a Motion for Stay (Doc. #12), which the court construed
as a motion for extension to file objections to the Report and Recommendation. The court
granted Reyes's extension request and allowed Reyes until May 2, 2022, to file objections to the
Report and Recommendation (Doc. #13). To date, no objections have been filed. Having
reviewed the report and recommendation along with the case file and applicable law, the court
finds no plain error and accepts the report and recommendation for substantially the reasons
stated therein. See FED. R. CIV. P. 72(b).
IT IS THEREFORE ORDERED that the United States Magistrate Judge's Report and
Recommendation (Doc. #10) is hereby APPROVED and ACCEPTED by the court.
IT IS FURTHER ORDERED that Defendants City of Austin, Troy Wismar,
Christopher Carlisle, Patrick Walsh, Kyu Suk An, Sarah Foster, and Greg McCormack's Rule
12(b)(1) & (6) Motion to Dismiss (Doc. #8) is GRANTED IN PART AND DENIED IN PART
AS FOLLOWS: Reyes's claims against Greg McCormack, Trey Wismar, Christopher Carlisle,
Patrick Walsh, Kyu Suk An, and Sarah Foster are DISMISSED WITH PREJUDICE. The
motion is in all other respects DENIED. Reyes's Section 1983 claims against the City of Austin
remain pending before the court.
SIGNED this
10th
day of May, 2022.
LEE YEAKEL
feelloped
UMITED STATES DISTRICT JUDGE
2
Case 1:21-cv-00992-LY-SH Document 15 Filed 05/22/22 Page 1 of 13
UNITED STATES of AMERICA 5TH CIRCUIT AUSTIN DIVISION COURT
Julian Reyes
Plaintiff
§
V.
§
Case no. 1:21-cv-00992-LY-SH
§
CITY OF AUSTIN, INC.
§
AUSTIN POLICE DEPARTMENT,
et
al AND OTHER PARTIES TO BE
§
LISTED LATER, ALL
§
DEFENDANTS INDIVIDUALLY
AND IN THEIR OFFICIAL
CAPACITIES, RESPECTIVELY
Defendants
Motion for Appointment of Counsel
1.
As I do not currently have access to a lawyer on this case or to case law.
As such I would like to request a motion to appoint counsel on this case, and I
have completed the form (Exhibit A) from the court on this issue.
2. While I continue to seek legal attention on these matters, and before the
defendants and court are able to further deprive me of access to my rights and
law. I am a simple pro se Citizen that has been repeatedly targeted and
arrested, an abuse of law, for my constitutional exercises of filming the police,
and city crews, which is free speech as well as freedom of the press as I am a
1:21-cv-00992-LY-SH
1
Reyes V City of Austin,, et al. 05-22-2022
Case 1:21-cv-00992-LY-SH Document 15 Filed 05/22/22 Page 2 of 13
credentialed member of the Challenger Street Newspaper, a 501c3 nonprofit
that is over 10 years old now. I have been with them for about 10 years and the
City's agents are aware of this fact, as well as the Mayor, City Council and
City Manager. They are both aware of my journalist status and of the status of
the Challenger Street Newspaper, the local street press. Print and online
distribution and sales. Including street vendors that are unhoused.
3.
This case does present the kind of exceptional circumstances that would
merit the Court appointing an attorney. Specifically, the overwhelming
complexity of the court rules and procedures, and the discovery of evidence in
a complex claim of multiple agents and incidents of false arrest to deter
citizens' filming which has had a chilling effect on filming police in Austin.
The discovery of evidence on this case will be difficult and complex and will
require legal counsel and assistance.
4. In essence, I allege that I was subject to false arrest, imprisonment,
search and seizure by agents working together for the City of Austin, and that
multiple agents, listed defendants illegally seized my cameras and property
when the police arrested me for filming them and protesting for housing and
decent practices and patterns towards the unhoused residents of Austin. These
1:21-cv-00992-LY-SH
2
Reyes V City of Austin,, et al. 05-22-2022
Case 1:21-cv-00992-LY-SH Document 15 Filed 05/22/22 Page 3 of 13
facts definitely present novel legal issues, and he facts underlying the claims
seem very complex to me. See Turner V Driver and Houston V Hill.
5.
Moreover, I may not be incarcerated presently. But I have been arrested
almost a dozen times by APD, including malicious prosecution. See Houston V
Hill. And I still need access to the law and the court that counsel would
provide in the interest of the greater issue of social justice. I have not had
ready access to law libraries, due to pandemic conditions. I do not have the
information and discovery ability to investigate this case and pattern and
practice of police retaliation properly, with all it's multiple agents, and
complexities. I have no access to witnesses, hopefully discovery from the City
with counsel will provide this knowledge and fact finding. In the interest of
Justice and seeking remedy for these grievances. Therefore I can not
adequately investigate or handle court proceedings on this case. Or on the
other cases, as has been seen in the multiple dismissals due to simple rules and
process and deadlines, on record. Which counsel would understand, which I
do not understand. All of this complexities, filming rights, first amendment,
4th, 14th make this case both novel, complex and overwhelmingly difficult for
me. These previous cases never see the discovery process, they are simply
dismissed, erroneously by the Court, prematurely without any semblance of the
Justice which is the calling of the Justice System and this 5th Circuit. To serve
1:21-cv-00992-LY-SH
3
Reyes V City of Austin,, et al. 05-22-2022
Case 1:21-cv-00992-LY-SH Document 15 Filed 05/22/22 Page 4 of 13
the people, like me, that wish to be served justice for grievances from an
oppressive government that will retaliate against you for simply free speech
and a camera.
6.
While I do know how to file complaints with this court, I do not have
understanding of the court's processes, rules and the discovery and case law
access and training to proceed with this case to completion of justice, without
assistance of counsel.
7. Also, this case is in its early stages. Yet I am certain that as this case
progresses, the evidence will consist of conflicting testimony and contested
facts and omissions of evidence by the City which is typical, which will
require skillful presentation which I am not capable or trained on presenting.
This will become clear at a later stage of the litigation, but for now, I have not
even filed an answer to all recommendations and qualified immunity motions
as I am not able to keep up presently with this case complexity and rules and
SO I am still seeking time and counsel based on the facts of the case, the
evidence that is missing, and the complexity of both the case, the rules and
procedures of this court and the complexities of law and no access to relevant
case law or training.
1:21-cv-00992-LY-SH
4
Reyes V City of Austin,, et al. 05-22-2022
Case 1:21-cv-00992-LY-SH Document 15 Filed 05/22/22 Page 5 of 13
8. The City has already been motioning to dismiss the parties. Which was
too complex and unreachable case law for me. I can see that investigating and
performing discovery are also too complex and difficult for my limited
knowledge and means.
9. Is it true that the police and officials of the City of Austin and their
profiteers that work within their business model, another 'homeless industrial
complex," may conspire to deprive any Citizen of their 1st, 4th and 14th
amendment rights in Austin, the 5th Circuit and that is ok with the current state
of the law? I need access to law, to an attorney and the case law on qualified
immunity to properly respond to the defendants multiple attorneys and their
determination to continue these injustices, using their knowledge of law to
prevent all accountability and justice as well as transparency.
10. As I am operating without counsel and the incidents of false arrest and
deprivation of rights are frequent and often get confused. These cases, the
Court's Rules, and Court Procedures are complex and confusing to me.
Other parties to be named later through the proper discovery of evidence, all
all defendants individually and in their official capacities are responsible for
this incident on this date. And only through a complex process and proper
discovery of evidence will we actually know the extent of this targeting,
1:21-cv-00992-LY-SH
5
Reyes V City of Austin,, et al. 05-22-2022
Case 1:21-cv-00992-LY-SH Document 15 Filed 05/22/22 Page 6 of 13
incidents, and witnesses. Investigating and performing discovery are too
complex and difficult for my limited knowledge and means. To dismiss and
give immunity at this early stage is an injustice under color of law. It would
better serve positive change, the people and serve justice to revisit all qualified
immunities issues after the evidence is presented, to make sure that the truth
comes out and the facts, under the law. Not above the law.
11. This incident and complaint happened in Austin, Texas, which this Court
has jurisdiction over. As the 5th Circuit encompasses all of Texas, Louisiana
and Mississippi. These are Constitutional issues, that are novel and important.
Therefore I request the Western District Court of the U.S.A. in Austin, to try
my Civil Complaint involving 1st, 4th, 14th, 8th Constitutional Amendments
both in the State of Texas and similar Constitutional Rights amendments of the
Unites States of America, violations under section U.S.C. 42 1983 as well as
section 1985 Conspiracy of Parties. Because multiple agents of Municipal and
Corporate government did conspire to deprive me of my rights and they were
all involved in this crime against myself and essentially the rights afforded to
all the Citizens and the Free Press. Making this case difficult and complex,
and the evidence and investigation complex beyond my means to achieve
Justice. And that is a furtherance of APD's ongoing practices racist targeting
of persons and and the same targeting of me repeatedly by the City and it's
1:21-cv-00992-LY-SH
6
Reyes V City of Austin, et al. 05-22-2022
Case 1:21-cv-00992-LY-SH Document 15 Filed 05/22/22 Page 7 of 13
agents acting together with the desired goals to deprive me of my rights,
falsely arrest me repeatedly, make a mockery of the Constitution and cause me
to not be able to defend my rights in Court. As the City and it's employees
have countless funds and lawyers to protect these unlawful agents and these
actions. The City and police also also know about my indigency, health issues,
and mental strain that they have caused me. They know the Challenger
Newspaper and I are important source of Press, news from the streets of
Austin, Texas. News that otherwise would not be spoken. Breaking news.
Many are life or death stories and struggles of real people on the poor streets of
wealthy Austin. People and stories that the City and police would rather not be
heard or seen by the public. The unwanted people on Austin's streets. I have
spoken to the Chiefs of Police both Manley and Acevedo and informed them of
this ongoing issue, of targeting, of interference with 1st amendment
constitutional rights of filming police, of protesting, and that I am in fear for
my life and that of other activists and filmers. Yet the pattern and practice only
continues and escalates. In fact I have done my duty as a concerned Citizen
and have filed many police complaints regarding this issue, and have not had
any justice or change in their obedience of the law in these regards. Thus
showing that the policies and practices of several departments are being used
to enable targeting, false arrest, harassment, police abuse, and utilizing the law
do do SO. Under color of law they violate the constitutions and my rights. The
1:21-cv-00992-LY-SH
7
Reyes V City of Austin,, et al. 05-22-2022
Case 1:21-cv-00992-LY-SH Document 15 Filed 05/22/22 Page 8 of 13
harassment and targeting, threats and arrests continue. I have also spoken to
the entire City Council including Mayor Steve Adler and City Manager
Spencer Cronk of these issues and their responsibility if they did not prevent
further illicit targeting of myself and others. And have informed the Judge on
the majority of my now dismissed criminal cases related to these unlawful
arrests.
12. While there is no automatic right to the appointment of counsel in a
section 1983 case, a district court may assign counsel even if is not required to
appoint counsel for an indigent plaintiff in the presence of exceptional
circumstances. When weighing whether such circumstances for an indigent
plaintiff a court should consider: (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.
13. In this case, I have asked to proceed in forma pauperis, and declared
indigency, SO that I am still indigent and have not been able to retain private
1:21-cv-00992-LY-SH
8
Reyes V City of Austin,, et al. 05-22-2022
Case 1:21-cv-00992-LY-SH Document 15 Filed 05/22/22 Page 9 of 13
counsel on this case. Although I am still trying diligently, as seen by Exhibit
A.
14. On or about November 5th 2019, in the City of Austin, Travis County,
Texas, U.S.A.. Under this Court's functional jurisdiction, Officers Carlise,
Wismar, and others did conspire together and with others to deprive people of
their rights. This was a separate incident and separate officers that the other
previous cases filed in this court . Those officers and other people worked
together to deprive me of my rights to free speech and press. And to allow
agents to violate our due process and that we may never be free from undue
search and seizure, and retaliative, punitive arrests. To ignore this important
set of facts and give immunity to lawbreakers in power is to give a free pass to
law-breaking police, policy makers, chains of command and leadership that
violate the constitutional law in the U.S.A. and in the 5th Circuit.
15. The location is Neches and 8th street of this incident, case 1:21-
cv-00992-LY-SH. Although this incident occurred at the same location as the
Reyes V ALAS, HALE, et al case , 12100022LYSH. In fact this case and
complaint is a separate incident and separate date with different actors other
than those responsible for making policies and practices that deprive citizen
filmers and press of their constitutional rights to film and be protected from
1:21-cv-00992-LY-SH
9
Reyes V City of Austin,, et al. 05-22-2022
Case 1:21-cv-00992-LY-SH Document 15 Filed 05/22/22 Page 10 of 13
illegal search, seizure, arrest and threats. Those are the Mayor, City Council,
and the Chain of Command at APD. This incident and case did not arise out of
the same exact same series of events. Though the false arrest for freedom of
speech is similar in manner. In actuality this case and incident have separate
facts, unlawful field agents and separate dates.
16. Not to mention there is a pattern and practice of City leadership directed
police abuse, targeting not allowing people to sit down, to rest, to survive and
allow people their international human rights laws. Which is why I put protest
and film in the first place, as the law has been nothing but helpful in these
oppressive policies and practices that cost human lives and suffering,
needlessly. This has created a chilling effect on free speech and filming in
public of police in Austin and my street advocacy work for the people.
17. These defendant individuals and their agencies have a pattern and
practice of violating poor unhoused people's rights, property rights, 4th, 14th,
amendment rights, many of the City's victims are black, brown or disabled.
Many victims of the City of Austin are also veterans. This is what the War on
the Poor looks like on the streets of Austin. Racism is a clear pattern and
practice in several areas of policing and control that runs from the streets to our
lens. And a clear pattern and practice of interfering and depriving filmers of
1:21-cv-00992-LY-SH
10
Reyes V City of Austin, et al. 05-22-2022
Case 1:21-cv-00992-LY-SH Document 15 Filed 05/22/22 Page 11 of 13
their free speech and free press rights. To hide the Truth and real news from
the publics' view. And we shall see more evidence of these patterns and
practices as we get to discovery of evidence. When we have counsel to assist
with this process and investigation of the evidence. Please do not dismiss any
agents until we can get an attorney on this and get the evidence to prove the
stated facts of this complaint. Not before evidence has been gathered in the
interest of Justice and the preservation of the constitutions as laws.
18. In this incident of police abuse and retaliation I was falsely arrested for
the class misdemeanor of "Camping" I was filming the police and did not
consent to any search or seizure of my property or work product, as I am also a
member of the Challenger Street Newspaper, a reporter and videographer.
19. I request a counsel for this case also because the City of Austin and it's
police are continually keeping me busy in court defending my free speech
rights and my person from unlawful and unnecessary retaliatory imprisonment
and punishment for clearly and well established constitutional rights. This
time and energy keeps me from working on this case and talking to more
lawyers for assistance with this case. I believe that the federal civil courts are
the venue for seeking justice and protections of law for all people in this
matter.
1:21-cv-00992-LY-SH
11
Reyes V City of Austin,, et al. 05-22-2022
Case 1:21-cv-00992-LY-SH Document 15 Filed 05/22/22 Page 12 of 13
20. I request leniency on this case to seek and acquire legal counsel and file
motions. Please consider my request necessary. As I am just a layman and pro
se, without legal counsel trying to do my best to get this civil rights complaint
and motions filed in time and as accurately as I am able with limited access to
law and no legal training to speak of.
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.
SIGNED this
22nd day of May
, 2022
Respectfully submitted,
s/ Julian Reyes
, pro se
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
1:21-cv-00992-LY-SH
12
Reyes V City of Austin,, et al. 05-22-2022
Case 1:21-cv-00992-LY-SH Document 15 Filed 05/22/22 Page 13 of 13
Certificate of Service
I, Julian Reyes, pro se litigant, hereby certify that I have communicated this
motion/document with the 5th Circuit Court of Austin using the CM/ECF filing
system, which will cause a copy of the document to be electronically delivered to
defendants' counsel.
s/ Julian Reyes, pro se
1:21-cv-00992-LY-SH
13
Reyes V City of Austin,, et al. 05-22-2022
Case 1:21-cv-00992-LY-SH Document 15-1 Filed 05/22/22 Page 1 of 2
Attachment 6 - Motion for Appointment of Counsel
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
Austin DIVISION
Julian Reyes
(Name of plaintiff or plaintiffs)
Civil Action Number:
V.
1:21-CV-992LY
Cityot Austin etal
(Case Number to be supplied
by the Intake Clerk)
(Name of defendant or defendants)
MOTION FOR APPOINTMENT OF COUNSEL
Comes now,
Julian Reyes
, Plaintiff in the above-styled and
numbered matter, and respectfully requests appointment of counsel as provided by 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.
[
CONTACTED PRIVATE ATTORNEYS. (List all attorneys who specialize in labor law,
employment gwaiting responses complaints from contacted and each
discrimination or civil rights you state
would not represent you.)
Tenusfair Defence Projectin Brian McGivern Jeff Edwards,
SKiPDavis Malcomb Greenstein 4 not
[
]
CONTACTED LEGAL AID ASSOCIATION. (Texas Rio Grande Legal Aid Inc.: (888) helpus.
to
988-9996 (State when this association was contacted and why it could not assist you.)
previous responsewas no resources
ACLUTEXUSTOLINE ting response, prev. responsenus no resource 5
Austin young lawyers awaiting response. And Southern Poverty law Center
[
I 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.)
StateBARs Referral Service don't have civil
Rights lawyers that will sue police
II.
Please state your level of education:
42
Rev. Ed. October 26, 2017
Case 1:21-cv-00992-LY-SH Document 15-1 Filed 05/22/22 Page 2 of 2
I declare (or certify, verify, or state) under penalty of
perjury that the foregoing is true and correct.
5 - 21 - 2022
Date
James
Signature of Plaintiff
44
Rev. Ed. October 26, 2017
Case 1:21-cv-00992-LY-SH Document 16 Filed 05/22/22 Page 1 of 11
UNITED STATES of AMERICA 5TH CIRCUIT AUSTIN DIVISION COURT
Julian Reyes
Plaintiff
§
V.
§
Case no. 1:21-cv-00992-LY-SH
§
CITY OF AUSTIN, INC.
§
AUSTIN POLICE DEPARTMENT
OFFICERS CARLILE, WISMAR, et
§
al AND OTHER PARTIES TO BE
§
LISTED LATER, ALL
DEFENDANTS INDIVIDUALLY
AND IN THEIR OFFICIAL CAPACITIES,
RESPECTIVELY
Defendants
Motion for Stay/Leave
1. As I do not currently have access to a lawyer on this case or to case law.
As such I would like to request a motion to stay or leave, whichever is
technically appropriate in this court, for this case, and on any responses to this
court on this case for at least 30 days while I seek legal attention on these
matters, and before the defendants and court are able to further deprive me of
access to my rights and law. Also I will be offline without access to this case
and internet until late in June, or possibly July 1st.
1:21-cv-00992-LY-SH
1
Reyes V Carlisle, et al. 05-22-2022
Case 1:21-cv-00992-LY-SH Document 16 Filed 05/22/22 Page 2 of 11
2.
I am a simple pro se Citizen that has been repeatedly targeted and
arrested, an abuse of law, for my constitutional exercises of filming the police,
and city crews, which is free speech as well as freedom of the press as I am a
credentialed member of the Challenger Street Newspaper, a 501c3 nonprofit
that is over 10 years old now. I have been with them for about 10 years and the
agents are aware of this fact, as well as the Mayor and City Council and Greg
McCormack. They are both aware of my journalist status and of the status of
the Challenger Street Newspaper, the local street press. Print and online
distribution and sales. Including street vendors that are unhoused.
3. I apologize, after looking through the report and recommendations I
need to correct this case, perhaps even file a new amended complaint as this
case and the other while not duplicates, are hard for me to work and
understand all the case law and how qualified immunity works.
4. Is it true that the police and officials of the City of Austin and their
profiteers that work within their business model, another 'homeless industrial
complex," may conspire to deprive any Citizen of their 1st, 4th and 14th
amendment rights in Austin, the 5th Circuit and that is ok with the current state
of the law? I need access to law, to an attorney and the case law on qualified
immunity to properly respond to the Courts' recommendations.
1:21-cv-00992-LY-SH
2
Reyes V Carlisle, et al. 05-22-2022
Case 1:21-cv-00992-LY-SH Document 16 Filed 05/22/22 Page 3 of 11
5. As I am operating without counsel and the incidents of false arrest and
deprivation of rights are frequent and often get confused. Others parties to be
named later through the proper discovery of evidence, all all defendants
individually and in their official capacities are responsible for this incident on
this date. And only through proper discovery of evidence will we actually
know the extent of this targeting, incidents, and witnesses. To dismiss and give
immunity at this early stage is an injustice under color of law. It would better
serve the people and serve justice to revisit all qualified immunities issues after
the evidence is presented, to make sure that the truth comes out and the facts,
under the law. Not above the law.
6. This incident and complaint happened in Austin, Texas, which this Court
has jurisdiction over. As the 5th Circuit encompasses all of Texas, Louisiana
and Mississippi. These are Constitutional issues, that are novel and important.
Therefore I request the Western District Court of the U.S.A. in Austin, to try
my Civil Complaint involving 1st, 4th, 14th, 8th Constitutional Amendments
both in the State of Texas and similar Constitutional Rights amendments of the
Unites States of America, violations under section U.S.C. 42 1983 as well as
section 1985 Conspiracy of Parties. Because multiple agents of Municipal and
Corporate government did conspire to deprive me of my rights and they were
1:21-cv-00992-LY-SH
3
Reyes V Carlisle, et al. 05-22-2022
Case 1:21-cv-00992-LY-SH Document 16 Filed 05/22/22 Page 4 of 11
all involved in this crime against myself and essentially the rights afforded to
all the Citizens and the Free Press. Making this case difficult and complex,
and the evidence and investigation complex beyond my means to achieve
Justice. And that is a furtherance of APD's ongoing practices racist targeting
of persons and and the same targeting of me repeatedly by the City and it's
agents acting together with the desired goals to deprive me of my rights,
falsely arrest me repeatedly, make a mockery of the Constitution and cause me
to not be able to defend my rights in Court. As the City and it's employees
have countless funds and lawyers to protect these unlawful agents and these
actions. The City and police also also know about my indigency, health issues,
and mental strain that they have caused me. They know the Challenger
Newspaper and I are important source of Press, news from the streets of
Austin, Texas. News that otherwise would not be spoken. Breaking news.
Many are life or death stories and struggles of real people on the poor streets of
wealthy Austin. People and stories that the City and police would rather not be
heard or seen by the public. The unwanted people on Austin's streets. I have
spoken to the Chiefs of Police both Manley and Acevedo and informed them of
this ongoing issue, of targeting, of interference with 1st amendment
constitutional rights of filming police, of protesting, and that I am in fear for
my life and that of other activists and filmers. Yet the pattern and practice only
continues and escalates. In fact I have done my duty as a concerned Citizen
1:21-cv-00992-LY-SH
4
Reyes V Carlisle, et al. 05-22-2022
Case 1:21-cv-00992-LY-SH Document 16 Filed 05/22/22 Page 5 of 11
and have filed many police complaints regarding this issue, and have not had
any justice or change in their obedience of the law in these regards. Thus
showing that the policies and practices of several departments are being used
to enable targeting, false arrest, harassment, police abuse, and utilizing the law
do do SO. Under color of law they violate the constitutions and my rights. The
harassment and targeting, threats and arrests continue. I have also spoken to
the entire City Council including Mayor Steve Adler and City Manager
Spencer Cronk of these issues and their responsibility if they did not prevent
further illicit targeting of myself and others. And have informed the Judge on
the majority of my now dismissed criminal cases related to these unlawful
arrests.
7.
On or about November 5th 2019, in the City of Austin, Travis County,
Texas, U.S.A.. Under this Court's functional jurisdiction, Officers Carlise,
Wismar, and others did conspire together and with others to deprive people of
their rights. This was a separate incident and separate officers that the other
previous cases filed in this court . Those officers and other people worked
together to deprive me of my rights to free speech and press. And to allow
agents to violate our due process and that we may never be free from undue
search and seizure, and retaliative, punitive arrests. To ignore this important
set of facts and give immunity to lawbreakers in power is to give a free pass to
1:21-cv-00992-LY-SH
5
Reyes V Carlisle, et al. 05-22-2022
Case 1:21-cv-00992-LY-SH Document 16 Filed 05/22/22 Page 6 of 11
law-breaking police, policy makers, chains of command and leadership that
violate the constitutional law in the U.S.A. and in the 5th Circuit.
8. The location is Neches and 8th street of this incident, case 1:21
cv-00992-LY-SH. Although this incident occurred at the same location as the
Reyes V ALAS, HALE, et al case , 12100022LYSH. In fact this case and
complaint is a separate incident and separate date with different actors other
than those responsible for making policies and practices that deprive citizen
filmers and press of their constitutional rights to film and be protected from
illegal search, seizure, arrest and threats. Those are the Mayor, City Council,
and the Chain of Command at APD. This incident and case did not arise out of
the same exact same series of events. Though the false arrest for freedom of
speech is similar in manner. In actuality this case and incident have separate
facts, unlawful field agents and separate dates.
9. Not to mention there is a pattern and practice of City leadership directed
police abuse, targeting not allowing people to sit down, to rest, to survive and
allow people their international human rights laws. Which is why I put protest
and film in the first place, as the law has been nothing but helpful in these
oppressive policies and practices that cost human lives and suffering,
1:21-cv-00992-LY-SH
6
Reyes V Carlisle, et al. 05-22-2022
Case 1:21-cv-00992-LY-SH Document 16 Filed 05/22/22 Page 7 of 11
needlessly. This has created a chilling effect on free speech and filming in
public of police in Austin and my street advocacy work for the people.
10. These defendant individuals and their agencies have a pattern and
practice of violating poor unhoused people's rights, property rights, 4th, 14th,
amendment rights, many of the City's victims are black, brown or disabled.
Many victims of the City of Austin are also veterans. This is what the War on
the Poor looks like on the streets of Austin. Racism is a clear pattern and
practice in several areas of policing and control that runs from the streets to our
lens. And a clear pattern and practice of interfering and depriving filmers of
their free speech and free press rights. To hide the Truth and real news from
the publics' view. And we shall see more evidence of these patterns and
practices as we get to discovery of evidence. When we have counsel to assist
with this process and investigation of the evidence. Please do not dismiss any
agents until we can get an attorney on this and get the evidence to prove the
stated facts of this complaint. Not before evidence has been gathered in the
interest of Justice and the preservation of the constitutions as laws.
11. In this incident of police abuse and retaliation I was falsely arrested for
the class misdemeanor of "Camping" I was filming the police and did not
1:21-cv-00992-LY-SH
7
Reyes V Carlisle, et al. 05-22-2022
Case 1:21-cv-00992-LY-SH Document 16 Filed 05/22/22 Page 8 of 11
consent to any search or seizure of my property or work product, as I am also a
member of the Challenger Street Newspaper, a reporter and videographer.
12. I request a Stay for this case because 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. This time and energy keeps me from
working on this case and talking to more lawyers for assistance with this case.
I believe that he federal civil courts are the venue for seeking justice and
protections of law for all people in this matter.
13. I request leniency on this case and a stay order, to allow time to seek
counsel and file motions. please consider this my request if necessary. As I am
just a layman and pro se, without legal counsel trying to do my best to get this
civil rights complaint and motions filed in time and as accurately as I am able.
14. I would also like the opportunity to amend my complaint as there may
have been errors that made a recommendation that was not guided by the
actual facts as they occurred. It's hard to keep up all these cases yet Justice
must be made for all. Not just protecting the police and their leadership and
trainers.
1:21-cv-00992-LY-SH
8
Reyes V Carlisle, et al. 05-22-2022
Case 1:21-cv-00992-LY-SH Document 16 Filed 05/22/22 Page 9 of 11
9
1:21-cv-00992-LY-SH
Reyes V Carlisle, et al. 05-22-2022
Case 1:21-cv-00992-LY-SH Document 16 Filed 05/22/22 Page 10 of 11
If a hearing would be necessary, I pray for that opportunity to show and state
my case as to why I need time for this case and how 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.
SIGNED this
22nd
day
of
May
, 2022
.
Respectfully submitted,
s/ Julian Reyes
, pro se
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
1:21-cv-00992-LY-SH
10
Reyes V Carlisle, et al. 05-22-2022
Case 1:21-cv-00992-LY-SH Document 16 Filed 05/22/22 Page 11 of 11
Certificate of Service
I, Julian Reyes, pro se litigant, hereby certify that I have communicated this
motion/document with the 5th Circuit Court of Austin using the CM/ECF filing
system, which will cause a copy of the document to be electronically delivered to
defendants' counsel.
s/ Julian Reyes, pro se
1:21-cv-00992-LY-SH
11
Reyes V Carlisle, et al. 05-22-2022
Case 1:21-cv-00992-LY-SH Document 17 Filed 05/24/22 Page 1 of 2
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
JULIAN REYES,
§
Plaintiff,
§
§
V.
§
CIVIL ACTION NO. 1:21-CV-0992-LY
§
CITY OF AUSTIN,
§
Defendant.
§
DEFENDANT CITY OF AUSTIN'S NOTICE OF APPEARANCE AND
DESIGNATION OF LEAD COUNSEL
TO THE HONORABLE JUDGE LEE YEAKEL:
PLEASE TAKE NOTICE that the undersigned attorney, who is admitted to practice in this
Court and is a member in good standing, hereby enters an appearance in the above-styled and
numbered cause and is designated as lead counsel for Defendant City of Austin in this case:
Sara E. Rice
State Bar No. 24110273
Assistant City Attorney
City of Austin Law Department
P.O. Box 1546
Austin, Texas 78767
(512) 974-6463 Telephone
(512) 974-1311 Facsimile
sara.rice@austintexas.gov
Service of all pleadings, papers, orders, and documents required to be served in this action
should be served on Sara Rice.
Case 1:21-cv-00992-LY-SH Document 17 Filed 05/24/22 Page 2 of 2
RESPECTFULLY SUBMITTED,
ANNE L. MORGAN, CITY ATTORNEY
MEGHAN RILEY, CHIEF, LITIGATION
/s/ Sara E. Rice
SARA E. RICE
Assistant City Attorney
State Bar No. 24110273
sara.rice@austintexas.gov
City of Austin Law Department
P.O. Box 1546
Austin, Texas 78767-1546
Telephone: (512) 974-6463
Facsimile: (512) 974-1311
ATTORNEY FOR DEFENDANT
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 24th day of May 2022.
Via CM/ECF:
Julian Reyes
Pro Se
10900 Research Blvd.
Suite 160c Box 147
Austin, Texas, 78759
justicenowpeople@protonmail.com
PLAINTIFF, PRO SE
/s/
Sara E. Rice
SARA E. RICE
2
Case 1:21-cv-00992-LY-SH Document 18 Filed 05/24/22 Page 1 of 5
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
JULIAN REYES,
§
Plaintiff,
§
§
V.
§
CIVIL ACTION NO. 1:21-CV-0992-LY
§
CITY OF AUSTIN,
§
Defendant.
§
DEFENDANT CITY OF AUSTIN'S ANSWER AND
AFFIRMATIVE DEFENSES TO PLAINTIFF'S COMPLAINT
TO THE HONORABLE JUDGE LEE YEAKEL:
Defendant City of Austin ("Defendant" or the "City") files this Answer and Affirmative
Defenses to Plaintiff's Complaint (Doc. No. 1). Pursuant to Rules 8 and 12 of the Federal Rules
of Civil Procedure, Defendant respectfully shows the Court as follows:
PROCEDURAL HISTORY
On March 15, 2022 the Magistrate Court issued its Report and Recommendations. On
April 1, 2022, Plaintiff filed a Motion to Stay, which the Court construed as a Motion to Extend
Time to File Objections, giving Plaintiff until May 2, 2022 to file his objections. On May 10, 2022,
this Honorable Court adopted the Magistrate's Report and Recommendations, issued an order
dismissing Plaintiff's claims against individual defendants and denied the Motion to Dismiss
Plaintiff's civil rights claims against the City.
ORIGINAL ANSWER
Pursuant to Federal Rule of Civil Procedure 8(b) and 15(a)(3), the City responds to each
of the specific averments in Plaintiff's Original Petition as set forth below. To the extent that the
City does not address a specific averment made by Plaintiff, the City expressly denies that
averment. Several sections of Plaintiff's Petition do not contain any pertinent factual allegations
Case 1:21-cv-00992-LY-SH Document 18 Filed 05/24/22 Page 2 of 5
that must be admitted or denied. To the extent the City does not respond to a factual allegation,
that allegation is denied. Plaintiff has failed to consistently number his averments in his Original
Petition; therefore the City will comply with a response to each specific averment to the best of
their ability, but respectfully request that the Court reserve to the City a right to make modifications
or corrections to rectify erroneous responses reasonably made due to Plaintiff's lack of consistently
numbering his paragraphs.
PARTIES
1.
The City lacks knowledge or information sufficient to form a belief about the truth of the
Plaintiff's residence as averred in Paragraph 1.
2.
The City admits it is the sole remaining defendant as averred in Paragraph 2 and its mailing
address is proper. The City avers the remaining defendants have been dismissed.
JURISDICTION AND VENUE
3.
The City admits the allegation in the first sentence of Paragraph 3 and that the Court has
jurisdiction over the Defendant. To the extent there are allegations against the City in the second,
third, and fourth paragraph, the City denies any and all allegations. The City denies the conspiracy
alleged in the final sentence of Paragraph 3.
FACTS
4.
The City admits that Plaintiff was arrested on November 5, 2019, in front of Salvation
Army in the 700 block of Neches in Austin, Texas as alleged in Paragraph 4. The City admits
several officers, including former defendants, were at the 700 block of Neches at the time of the
arrest. The City admits Corporal Carlisle interacted with Plaintiff. The City admits that Plaintiff
was arrested for Camping and Obstruction in Certain Public Areas Prohibited, a Class C
misdemeanor. The City further admits the Class C misdemeanor Camping charge was
dismissed.
2
Case 1:21-cv-00992-LY-SH Document 18 Filed 05/24/22 Page 3 of 5
5.
The City denies the remaining allegations in Paragraph 4.
6.
The City denies the allegations in the first unnumbered paragraph immediately following
Paragraph 4.
7.
The City admits the charge against Plaintiff was dismissed on November 18, 2019, as
alleged in the second unnumbered paragraph immediately following Paragraph 4. The City
denies the remaining allegations.
8.
To the extent there are allegations against the City in the third unnumbered paragraph
following Paragraph 4, the City denies any and all allegations.
9.
To the extent there are allegations against the City in the fourth unnumbered paragraph
following Paragraph 4, the City denies any and all allegations.
10.
To the extent there are allegations against the City in the fifth unnumbered paragraph
following Paragraph 4, the City denies any and all allegations.
11.
The City denies the allegations in the sixth unnumbered paragraph following
Paragraph 4.
12.
The City denies the allegations in the seventh unnumbered paragraph following
Paragraph 4.
13.
The City denies the allegations in Plaintiff's numbered Paragraph 5.
14.
The City denies the allegations in the first unnumbered paragraph following Paragraph 5.
15.
The City denies the allegations in the second unnumbered paragraph following
Paragraph 5.
16.
The City specifically denies that it is engaging in a clear pattern or practice of targeting,
abuse and deprivation of rights as alleged in the third unnumbered paragraph following
Paragraph 5.
3
Case 1:21-cv-00992-LY-SH Document 18 Filed 05/24/22 Page 4 of 5
17.
The City generally denies the remaining allegations in the third unnumbered paragraph
following Paragraph 5.
18.
The City denies the allegations in the fourth unnumbered paragraph following
Paragraph 5.
AFFIRMATIVE DEFENSES
1.
The City asserts the affirmative defense of governmental immunity as
a municipal corporation entitled to immunity while acting in the performance of its governmental
functions, absent express waiver.
2.
The City asserts the affirmative defense of governmental immunity
since its employees are entitled to qualified/official immunity for actions taken in the course and
scope of their employment, absent express waiver.
3.
As a political subdivision, the City denies that it can be liable for
exemplary/punitive damages under 42 U.S.C. § 1983.
4.
The City reserves the right to assert additional affirmative defenses throughout the
development of the case.
DEFENDANT'S PRAYER
The City prays that all relief requested by Plaintiff be denied, that the Court dismiss this
case with prejudice, and that the Court award the City costs and attorney's fees, and any additional
relief to which it is entitled under law or equity.
RESPECTFULLY SUBMITTED,
ANNE L. MORGAN, CITY ATTORNEY
MEGHAN RILEY, CHIEF, LITIGATION
/s/ Sara E. Rice
SARA E. RICE
Assistant City Attorney
State Bar No. 24110273
4
Case 1:21-cv-00992-LY-SH Document 18 Filed 05/24/22 Page 5 of 5
sara.rice@austintexas.gov
City of Austin Law Department
P.O. Box 1546
Austin, Texas 78767-1546
Telephone: (512) 974-6463
Facsimile: (512) 974-1311
ATTORNEY FOR DEFENDANT
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 24th day of May 2022.
Via CM/ECF:
Julian Reyes
Pro Se
10900 Research Blvd.
Suite 160c Box 147
Austin, Texas, 78759
justicenowpeople@protonmail.com
PLAINTIFF, PRO SE
/s/
Sara E. Rice
SARA E. RICE
5
Case 1:21-cv-00992-LY-SH Document 19 Filed 09/16/22 Page 1 of 6
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
JULIAN REYES,
§
Plaintiff
§
§
V.
§
§
CITY OF AUSTIN, INC., AUSTIN
§
CASE NO. 1:21-CV-00992-LY-SH
POLICE DEPARTMENT, and
JOHN DOES,
§
Defendants
§
ORDER
Before the Court are Plaintiff's Motion for Appointment of Counsel (Dkt. 15) and Motion for
Stay/Leave (Dkt. 16), both filed May 22, 2022. 1
I. Background
Plaintiff Julian Reyes, acting pro se, brought this civil rights action under 42 U.S.C. § 1983.
Reyes is a reporter and videographer for the Challenger Street Newspaper operated by homeless
individuals in Austin, Texas. Complaint, Dkt. 1 4. Reyes alleges that officers with the Austin
Police Department ("APD") repeatedly have wrongfully arrested him in retaliation for filming
their interactions with unhoused people. Id. Reyes alleges that his repeated arrests violated his
rights under First, Fourth, Eighth, and Fourteenth Amendments to the United States Constitution.
Id.
3. He alleges that APD has a "practice of false arrests to deprive Citizens of their rights,"
including the First Amendment right "to film the Austin Police Department at work in public." Id.
4. He further claims that this practice culminated in his multiple false arrests, rendering the City
of Austin ("the City") liable for the individual APD officers' actions under § 1983. Id.
1 The District Court referred all dispositive and nondispositive motions in this case to the undersigned
Magistrate Judge, pursuant to 28 U.S.C. § 636(b)(1), Federal Rule of Civil Procedure 72, and Rule 1 of
Appendix C of the Local Rules of the United States District Court for the Western District of Texas ("Local
Rules"). Dkt. 9.
1
Case 1:21-cv-00992-LY-SH Document 19 Filed 09/16/22 Page 2 of 6
The undersigned Magistrate Judge granted Reyes in forma pauperis status and recommended
that the District Court grant Defendants' Motion to Dismiss Reyes' claims against individual
defendants Greg McCormack and APD Officers Troy Wismar, Christopher Carlisle, Patrick
Walsh, Kyu Suk An, and Sarah Foster, but deny the motion as to Reyes' § 1983 claims against the
City. Dkts. 5, 10. The District Court adopted the Report and Recommendation, and Reyes' only
remaining cause of action is his § 1983 claims against the City. Dkt. 14.
II. Appointment of Counsel
Reyes asks the Court to appoint counsel to represent him in this action. Dkt. 15. Reyes avers
that he has contacted private attorneys, legal aid associations, and a lawyer referral service, but has
been unable to secure representation. Dkt. 15-1. Reyes seeks appointment of counsel based on the
"overwhelming complexity of the court rules and procedures" and "the discovery of evidence in a
complex claim of multiple agents and incidents of false arrest," and because "the evidence will
consist of conflicting testimony and contested facts and omissions of evidence by the City."
Dkt. 15 3, 7. The City did not file a response to Reyes' motion.
The Court may appoint counsel in in forma pauperis proceedings pursuant to 28 U.S.C.
§ 1915(e)(1). District courts have discretion under § 1915(e)(1) to appoint an attorney to represent
an indigent litigant. "But the appointment of counsel in a civil case is a privilege and not a
constitutional right. It should be allowed in civil actions only in exceptional cases." Lopez V. Reyes,
692 F.2d 15, 17 (5th Cir. 1982); see also Naranjo V. Thompson, 809 F.3d 793, 799 (5th Cir. 2015)
("Even when a plaintiff has nonfrivolous § 1983 claims, a trial court is not required to appoint
counsel unless the case presents exceptional circumstances.") (cleaned up). The Fifth Circuit Court
of Appeals has identified factors courts should consider in determining whether exceptional
circumstances warrant the appointment of counsel, including:
2
Case 1:21-cv-00992-LY-SH Document 19 Filed 09/16/22 Page 3 of 6
(1) the type and complexity of the case;
(2) the petitioner's ability adequately to present and investigate his case;
(3) the presence of evidence which largely consists of conflicting testimony SO as
to require skill in presentation of evidence and in cross-examination; and
(4) the likelihood that appointment will benefit the petitioner, the court, and the
defendants by "shortening the trial and assisting in just determination."
Tampico V. Martinez, 987 F.3d 387, 392 (5th Cir. 2021) (quoting Parker V. Carpenter, 978 F.2d
190, 193 (5th Cir. 1992)).
The Court is mindful that Reyes has requested appointment of counsel in at least four previous
civil rights actions in this Division.2 In the first, Reyes V. Walsh, 1:15-CV-327-RP, which Reyes
filed after his dog was shot and killed by Austin police in 2013, counsel was appointed and
represented Reyes through settlement of his claims for unlawful seizure of his person. Reyes'
requests were denied in three subsequent cases. Reyes V. Tex. Dep't of Public Safety, 1:16-CV-
889-RP, Dkt. 41 (denying third motion to appoint counsel because "the legal and factual issues in
this case are not SO complex as to present the sort of exceptional circumstances that would justify
appointing counsel"); Reyes V. Berry, 1:17-CV-908-RP, Dkt. 19 ("At this stage in the litigation,
the Court finds that this case appears to raise neither novel nor complex issues."); Reyes V. Sebek,
1:19-CV-367-LY, Dkt. 21.
The Court has carefully considered the relevant factors and concludes that counsel should be
appointed based on the circumstances presented at the current stage of this case. First, Reyes
asserts a municipal liability claim against the City, alleging violations of his First, Fourth, and
Fourteenth Amendments rights.
2 A sixth case, Reyes V. City of Austin, Inc., 1:22-CV-22-LY, was dismissed as duplicative of this action
and therefore frivolous pursuant to § 1915(e)(2). Id. at Dkt. 4, Dkt. 9.
3
Case 1:21-cv-00992-LY-SH Document 19 Filed 09/16/22 Page 4 of 6
Section 1983 cases are "by their nature more complex than many other cases," but that alone
is insufficient to warrant the appointment of counsel. Jackson V. Dallas Police Dep't, 811 F.2d
260, 262 (5th Cir. 1986). Because Reyes alleges that he is a journalist with the Challenger Street
Newspaper, however, evaluation of his § 1983 claim may involve particularly complex issues.
Reyes' Fourth Amendment false arrest and First Amendment retaliatory arrest claims against the
City likely will turn on whether there was probable cause for his arrest. See, e.g., Villarreal V. City
of Laredo, 44 F.4th 363, 374 (5th Cir. 2022) (stating that to prevail on Fourth Amendment false
arrest claim, plaintiff, a journalist, must show that she was seized and the seizure was unreasonable
because it lacked probable cause); Buehler V. Dear, 27 F.4th 969, 993-94 (5th Cir. 2022) (affirming
dismissal of First Amendment retaliatory arrest claim because officers had probable cause to arrest
plaintiff filming police). The existence of probable cause, however, is not necessarily dispositive
of Reyes' Fourteenth Amendment claim. See, e.g., Villarreal, 44 F.4th at 377 (stating that probable
cause is not a bar to a selective enforcement claim under the Fourteenth Amendment). Reyes also
alleges numerous false arrests, involving several different agents of the City. Cf. Kiser V. Dearing,
442 Fed. App'x. 132, 134 (5th Cir. 2011) (denying request for appointment of counsel where "facts
surrounding the single incident and the subsequent disciplinary hearing [were] relatively
straightforward"). The Court finds that the first factor weighs in favor of appointing counsel.
Second, Reyes has demonstrated that he is unable to adequately investigate and present his
case. Reyes alleges that he has been "chronically homeless for about 20 years." Dkt. 1
1. He
further contends that his repeated arrests by the Austin Police Department interfere with his ability
to prosecute the case. The fact that Reyes failed to respond to Defendants' Motion to Dismiss
(Dkt. 8) demonstrates his inability to prosecute his case. In addition, the effort required to
prosecute this case is greater at this stage of the proceeding, given that Reyes' claims against the
4
Case 1:21-cv-00992-LY-SH Document 19 Filed 09/16/22 Page 5 of
6
City survived the motion to dismiss stage and his case may proceed to summary judgment or trial.
The Court finds that the second factor also weighs in favor of appointing counsel.
Third, it is likely that the evidence will consist largely of conflicting testimony concerning the
City's purported practice of making false arrests to prevent the exercise of First Amendment rights,
requiring skill in presentation of evidence and in cross-examination. This factor also weighs in
favor of appointing counsel. Cf. Jackson, 811 F.2d at 262 (denying request for appointment of
counsel where "review of the record indicates that the evidence will consist primarily of official
records and other documentary type evidence").
With respect to the fourth factor, appointment of counsel likely will benefit Reyes, the court,
and the City by promoting efficient and just adjudication of Reyes' claims.
As each of the relevant factors weighs in favor of appointing counsel, the Court finds that
exceptional circumstances warrant the appointment of counsel in this case. Accordingly, the Court
GRANTS Plaintiff's Motion for Appointment of Counsel (Dkt. 15). The Court hereby appoints
the following attorney to represent Julian Reyes in the above-styled and numbered cause:
Peter D. Kennedy
Graves Dougherty Hearon & Moody
401 Congress Avenue, Suite 2700
Austin, Texas 78701
III. Motion to Stay
Reyes asks the Court to stay this action "for at least 30 days while I seek legal attention on
these matters," and because he expected to lose internet access until late June or early July 2022.
Dkt. 16 1. He also asserts that he has been unable to find counsel and prepare a defense due to
alleged harassment by the City and police. Id. 12. Defendants did not respond to Reyes' motion
to stay.
5
Case 1:21-cv-00992-LY-SH Document 19 Filed 09/16/22 Page 6 of 6
A district court's power to stay proceedings is incidental to its inherent power to "control the
disposition of the causes on its docket with economy of time and effort for itself, for counsel, and
for litigants." Landis V. N. Am. Co., 299 U.S. 248, 254 (1936). Although a district court has wide
discretion to stay proceedings, its power is not unbounded. Wedgeworth V. Fibreboard Corp., 706
F.2d 541, 545 (5th Cir. 1983). A court must weigh the competing interests when exercising its
discretion to issue a stay. Landis, 299 U.S. at 254-55. The moving party "must make out a clear
case of hardship or inequity in being required to go forward." Id. at 255.
The Court finds that the balance of interests does not justify staying this case. Reyes' argument
that he expected to lose internet access until July 2022 is moot, and he has provided no additional
information regarding his current access. Because no scheduling order has been entered in this
case, furthermore, there are no pending deadlines for which Reyes would require an extension of
time. Plaintiff's Motion to Stay (Dkt. 16) is DENIED without prejudice to refiling.
IV. Motion to Amend
Finally, the Court construes Reyes' Motion for Stay/Leave as embodying a motion for leave
to
amend. See Dkt. 16 14 ("I would also like the opportunity to amend my complaint
").
Reyes did not attach a proposed amended complaint to his Motion to Amend, as required by Local
Rule CV-7(b). Despite proceeding pro se, Reyes must comply with the Federal Rules of Civil
Procedure and Local Rules. See Martin V. Harrison Cnty. Jail, 975 F.2d 192, 193 (5th Cir. 1992).
Reyes also does not specify any legal or factual information he proposes to add. For these reasons,
the Court DENIES Plaintiff's Motion to Amend (Dkt. 16) without prejudice to refiling.
SIGNED on September 16, 2022.
SUSAN HIGHTOWER
UNITED STATES MAGISTRATE JUDGE
6
Case 1:21-cv-00992-DII-SH Document 28 Filed 06/26/23 Page 1 of 8
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
JULIAN REYES,
§
§
Plaintiff,
§
§
V.
§
§
CITY OF AUSTIN, AUSTIN POLICE
§
Case No. 1:21-CV-00992-RP-SH
DEPARTMENT, TROY WISMAR,
§
CHRISTOPHER CARLISLE,
§
PATRICK WALSH, KYU SUK AN,
§
SARAH FOSTER, GREG McCORMACK,
§
and JOHN DOES, individually and in
§
their official capacities,
§
§
Defendants.
§
PLAINTIFF'S FIRST AMENDED COMPLAINT
TO THE HONORABLE JUDGE OF THIS COURT:
Plaintiff Julian Reyes brings this action against Defendant City of Austin, Texas, and would
respectfully show:
I.
Introduction.
1.
Plaintiff Julian Reyes is a videographer, reporter, legal documentarist, and street
advocate. He brings this lawsuit pursuant to 42 U.S.C. § 1983 and 42 U.S.C. § 2000aa, et seq.,
to
vindicate the City of Austin's repeated violation of his constitutional and statutory rights.
II.
Parties.
2.
Plaintiff Julian Reyes is a resident of Travis County, Texas.
3.
Defendant City of Austin is a home rule city that has appeared and answered.
Case 1:21-cv-00992-DII-SH Document 28 Filed 06/26/23 Page 2 of
8
III.
Jurisdiction and Venue.
4.
This Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331 and 42
U.S.C. §§ 1983, 1988, and 2000aa-6(h).
5.
Venue is proper in this district pursuant to 28 U.S.C. § 1391(b) because the City of
Austin is located in this district and a substantial part of the events or omissions giving rise to the
claims occurred in this district.
IV.
Factual Allegations.
6.
Plaintiff Julian Reyes is a reporter and videographer. His work is published in The
Challenger Street Newspaper, which is published by homeless individuals and advocates in
Austin, Texas. Reyes' video journalism is also published on YouTube and elsewhere.
7.
Reyes has been repeatedly and wrongly arrested by officers with the Austin Police
Department ("APD") while filming APD officers' interactions with unhoused people and other
public actions.
8.
For instance, on November 5, 2019, Reyes was filming the APD officers engaged
in disrupting a protest in front of the Salvation Army homeless shelter in downtown Austin, Texas.
While observing and filming, an APD officer informed him, by words and actions, that Reyes was
being arrested for protesting, filming, and advocating for the rights of unhoused people living on
the streets of Austin. Another APD officer arrested Reyes as he was engaged in observing and
filming APD officers interacting with other people who were also engaged in exercising their First
Amendment rights.
9.
Reyes' arrest on November 5, 2019, was purportedly for committing the
misdemeanor offense of violating the City's camping ban. However, the camping charge against
Reyes was dismissed on the merits on or about November 18, 2019. Reyes' arrest was without
Plaintiff's First Amended Complaint - Page 2
Case 1:21-cv-00992-DII-SH Document 28 Filed 06/26/23 Page 3 of 8
probable cause and was a pretext to stop Reyes from recording the police, to retaliate against him
for doing so, and to discourage him from doing SO in the future.
10.
On October 24, 2021, Reyes was arrested on a Class C misdemeanor while
exercising his free speech rights on a public sidewalk. During this arrest, Reyes' cameras, which
are his primary work equipment, were seized by APD. Reyes' cameras contained work product
and documentary materials that he intended to publish to the public.
11.
Reyes' October 24, 2021, arrest was without probable cause and was a pretext to
stop Reyes from recording the police, to retaliate against him for doing so, and to discourage him
from doing SO in the future. This charge was likewise dismissed.
12.
Between June 2, 2014, through March 2023, Reyes was repeatedly arrested and/or
interfered with by APD officers while engaged in the exercise of his rights to free speech and the
press. City of Austin records reflect that on at least thirteen occasions, Reyes was arrested or
interfered with by APD while filming APD activities. All, or nearly all, of these arrests were for
filming the police while engaged in their duties, not for any violation of the law. By January 2017,
if not sooner, the APD had labelled Reyes an "anti-police activist" based on his exercise of his
rights to free speech and the press and repeatedly noted this disparaging label for Reyes in official
police reports. APD repeatedly arrested Reyes on other charges which, on information and belief,
were pretexts for retaliating against Reyes for exercising his rights to free speech and press and
intended to discourage him from further exercising those rights.
V.
Causes of Action.
A.
Section 1983.
13.
Reyes incorporates the allegations in the above paragraphs of this Complaint as
though fully alleged herein.
Plaintiff's First Amended Complaint - Page 3
Case 1:21-cv-00992-DII-SH Document 28 Filed 06/26/23 Page 4 of
8
14.
Reyes' observation and recording of APD officers as alleged herein was an exercise
of his constitutional rights to free speech and press as applied to the states and their subdivisions
by the Fourteenth Amendment.
15.
In committing the acts complained of, the City of Austin and its APD officers acted
under color of state law to deprive Reyes of those constitutional rights.
16.
The First Amendment right to record the police, made applicable to the states and
their subdivisions through the Fourteenth Amendment, is well-established and was well-
established at the time of each of Reyes' arrests.
17.
Reyes' arrests are the result of a widespread practice or custom in which APD
police officers falsely arrest people, or arrest them on pretextual bases, to prevent them from
exercising their constitutional right to record police activities.
18.
Reyes' arrests in particular are the result of a common practice or custom in which
APD police officers falsely arrest Reyes in particular, or arrest him on pretextual bases, to prevent
him from exercising his constitutional right to observe and record police activities, to retaliate
against him for having exercised his constitutional right to observe and record police activities in
the past, and/or to discourage him from exercising his constitutional right to observe and record
police activities in the future.
19.
Such arrests are SO common and regular that they constitute a pattern of conduct,
not isolated incidents. Such arrests constitute a custom that fairly represents City of Austin policy
that is promulgated, endorsed, and/or tolerated by the City. This policy or practice was the moving
force behind Reyes' arrests.
20.
As a direct and proximate result of the City of Austin's violation of his
constitutional rights, Reyes suffered actual damages.
Plaintiff's First Amended Complaint - Page 4
Case 1:21-cv-00992-DII-SH Document 28 Filed 06/26/23 Page 5 of 8
B.
Violation of the Privacy Protection Act of 1980 (42 U.S.C. §§ 2000aa, et seq.) -
Seizure of Work Product Materials.
21.
Reyes incorporates the allegations in the above paragraphs of this Complaint as
though fully alleged herein.
22.
The City of Austin's seizures of Reyes' cameras, videos, and other materials
constituted the unlawful seizure of work product materials as defined in 42 U.S.C. § 2000aa-7(b),
in violation of 42 U.S.C. § 2000aa(a). Reyes brings this action pursuant to 42 U.S.C. § 2000aa-
6(a)(1) & (f).
23.
The City of Austin, through its agents, seized Reyes' work product materials while
knowing, believing, or with reason to believe that Reyes possessed such materials with the purpose
to disseminate to the public a newspaper, book, broadcast, or other similar form of public
communication, in or affecting interstate or foreign commerce.
24.
The seized materials constituted materials, in anticipating of communicating such
materials to the public, that were prepared, produced, authored, or created by Reyes and/or others,
were possessed for the purposes of communicating such materials to the public, and included
Reyes and/or others' mental impressions, conclusions, opinions, and theories.
25.
There was no probable cause to believe that Reyes had committed a criminal
offense to which the materials related or reason to believe that the immediate seizure of such
materials was necessary to prevent the death of, or serious bodily injury to, a human being.
26.
The City of Austin's unlawful seizures caused Reyes actual damages. Reyes sues
to recover his actual damages, but not less than liquidated damages of $1,000 for each violation,
reasonable attorneys' fees and other litigation costs incurred, and pre-judgment interest.
Plaintiff's First Amended Complaint - Page 5
Case 1:21-cv-00992-DII-SH Document 28 Filed 06/26/23 Page 6 of 8
C.
Violation of the Privacy Protection Act of 1980 (42 U.S.C. §§ 2000aa, et seq.) -
Seizures of documentary materials.
27.
The City of Austin's seizures of Reyes' cameras, videos, and other materials
constituted seizures of documentary materials as defined in 42 U.S.C. § 2000aa-7(a), in violation
of 42 U.S.C. § 2000aa(b). Reyes brings this action pursuant to 42 U.S.C. § 2000aa-6(a)(1) & (f).
28.
The seized materials were possessed by Reyes in connection with the purpose of
disseminating to the public a newspaper, book, broadcast, or other similar form of public
communication, in or affecting interstate or foreign commerce.
29.
The seized materials consisted of materials upon which information was recorded,
and including written or printed materials, photographs, motion picture films, negatives, video
tapes, audio tapes, and/or other mechanically, magnetically, or electronically recorded cards, tapes,
or discs. The materials were not contraband or the fruits of a crime or things otherwise criminally
possessed, or property designed or intended for use, or which is or has been used as, the means of
committing a criminal offense.
30.
There was no probable cause to believe that Reyes had committed a criminal
offense to which the materials related; no reason to believe that the immediate seizure of such
materials was necessary to prevent the death of, or serious bodily injury to, a human being; no
reason to believe that the giving of notice pursuant to a subpoena duces tecum would result in the
destruction, alteration, or concealment of such materials; and no court order directing compliance
with a subpoena duces tecum.
31.
The City of Austin's unlawful seizures caused Reyes actual damages. Reyes sues
to recover his actual damages, but not less than liquidated damages of $1,000 for each violation,
reasonable attorneys' fees and other litigation costs incurred, and pre-judgment interest.
Plaintiff's First Amended Complaint - Page 6
Case 1:21-cv-00992-DII-SH Document 28 Filed 06/26/23 Page 7 of 8
VI.
Prayer for Relief.
WHEREFORE, PREMISES CONSIDERED, Plaintiff Julian Reyes seeks judgment
against Defendant City of Austin as follows:
1.
Declaring that the City of Austin's policy and practice regarding the arrest of Reyes
and others while engaged in recording police activity violates the First and
Fourteenth Amendments;
2.
Enjoining the City of Austin from further violations of Reyes' rights under the First
and Fourteenth Amendments and the Privacy Protection Act of 1980;
3.
Awarding Reyes his actual damages and minimum damages of $1,000 per violation
of the Privacy Protection Act;
4.
Awarding Reyes reasonable attorneys' fees incurred in this lawsuit pursuant to 42
U.S.C. § 1988 and 2000aa-6(f);
5.
Awarding costs of court herein; and
6.
Granting such other and further relief deemed just and proper.
Respectfully submitted,
/s/ Peter D. Kennedy
Peter D. Kennedy
State Bar No. 11296650
pkennedy@gdhm.com
Daniela Peinado Welsh
State Bar No. 24127300
dwelsh@gdhm.com
Graves, Dougherty, Hearon & Moody, P.C.
401 Congress Avenue, Suite 2700
Austin, Texas 78701
(512) 480-5764
(512) 536-9908 (Fax)
ATTORNEYS FOR PLAINTIFF JULIAN REYES
Plaintiff's First Amended Complaint - Page 7
Case 1:21-cv-00992-DII-SH Document 28 Filed 06/26/23 Page 8 of 8
CERTIFICATE OF SERVICE
I certify that on June 26, 2023, I caused a copy of the forgoing document to be served by
the Electronic Case Filing System for the United States District Court for the Western District of
Texas on all parties registered or otherwise requesting electronic notice in this case.
/s/ Peter D. Kennedy
Peter D. Kennedy
Plaintiff's First Amended Complaint - Page 8
Case 1:21-cv-00992-DII-SH Document 29 Filed 07/06/23 Page 1 of 6
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
JULIAN REYES,
§
Plaintiff,
§
§
V.
§
§
CITY OF AUSTIN, INC., AUSTIN
§
CASE NO. 1:21-CV-0992-DII-SH
POLICE DEPARTMENT, TROY
§
WISMAR, CHRISTOPHER
§
CARLISLE, PATRICK WALSH, KYU
§
SUK AN, SARAH FOSTER, GREG
§
MCCORMACK, JOHN DOES,
§
individually and in their official
§
capacities,
§
Defendants.
§
DEFENDANT CITY OF AUSTIN'S AMENDED ANSWER AND
AFFIRMATIVE DEFENSES TO PLAINTIFF'S AMENDED COMPLAINT
TO THE HONORABLE JUDGE OF THIS COURT:
Defendant City of Austin ("Defendant" or the "City") files this First Amended Answer and
Affirmative Defenses to Plaintiff's First Amended Complaint (Doc. No. 28). Pursuant to Rules 8
and 12 of the Federal Rules of Civil Procedure, Defendant respectfully shows the Court as follows:
ANSWER TO AMENDED PETITION
Pursuant to Federal Rule of Civil Procedure 8(b) and 15(a)(3), the City responds to each
of the specific averments in Plaintiff's Original Petition as set forth below. To the extent that the
City does not address a specific averment made by Plaintiff, the City expressly denies that
averment. 1
1
Paragraph numbers in Defendant's Amended Answer correspond to the paragraphs in Plaintiff's Amended
Complaint.
Case 1:21-cv-00992-DII-SH Document 29 Filed 07/06/23 Page 2 of 6
I.
INTRODUCTION
1.
The City lacks knowledge or information sufficient to form a belief as to the truth of
Plaintiff's occupations and/or avocations in the first sentence of Paragraph 1. The City denies
allegations in the second sentence of Paragraph 1.
II.
PARTIES
2.
The City lacks knowledge or information sufficient to form a belief as to the truth about
Plaintiff's residence in Paragraph 2.
3.
The City admits to Paragraph 3.
III.
JURISDICTION AND VENUE
4.
The City admits to Paragraph 4.
5.
The City admits to Paragraph 5.
IV.
FACTUAL ALLEGATIONS
6.
The City lacks knowledge or information sufficient to form a belief as to the truth of the
allegations in Paragraph 6 and therefore denies same.
7.
The City denies Paragraph 7.
8.
The City denies the allegations in the first and second sentences of Paragraph 8. The City
denies the allegations in the third sentence of Paragraph 8, except that the City admits only that an
APD officer arrested Plaintiff.
9.
The City admits the allegations in the first sentence of Paragraph 9. The City admits the
allegation in the second sentence of Paragraph 9 that the charge was dismissed on or about
November 18, 2019. The City denies the allegation in the second sentence of Paragraph 9 that the
charge was dismissed on the merits. The City denies the allegation in the third sentence of
Paragraph 9.
2
Case 1:21-cv-00992-DII-SH
Document 29
Filed 07/06/23
Page 3 of 6
10.
The City denies the allegations in the first sentence of Paragraph 10, except that the City
admits the allegation that Plaintiff was arrested on October 24, 2021 on a Class C misdemeanor.
The City denies the allegations in the second sentence of Paragraph 10, except that the City admits
the allegation only that the cameras were seized. The City denies the allegations in the third
sentence of Paragraph 10.
11.
The City denies the allegations in Paragraph 11.
12.
The City denies the allegations in Paragraph 12.
V.
CAUSES OF ACTION
A. Section 1983.
The allegations, if any, contained within the foregoing subtitle "A." are denied.
13.
The City denies the allegations in Paragraph 13.
14.
The City denies the allegations in Paragraph 14.
15.
The City denies the allegations in Paragraph 15.
16.
To the extent Paragraph 16 makes allegations, the City denies said allegations.
17.
The City denies the allegations in Paragraph 17.
18.
The City denies the allegations in Paragraph 18.
19.
The City denies the allegations in Paragraph 19.
20.
The City denies the allegations in Paragraph 20.
B. Violation of the Privacy Protection Act of 1980 (42 U.S.C. §§ 2000aa, et seq.) -
Seizure of Work Product Materials.
The allegations, if any, contained within the foregoing subtitle "B." are denied.
21.
The City denies the allegations in Paragraph 21.
22.
The City denies the allegations in Paragraph 22.
23.
The City denies the allegations in Paragraph 23.
3
Case 1:21-cv-00992-DII-SH Document 29 Filed 07/06/23 Page 4 of 6
24.
The City lacks knowledge or information sufficient to form a belief as to the truth of the
allegations in Paragraph 24 and therefore denies said allegations.
25.
The City denies the allegations in Paragraph 25.
26.
The City denies the allegations in Paragraph 26.
C. Violation of the Privacy Protection Act of 1980 (42 U.S.C. §§ 2000aa, et seq.) -
Seizures of documentary materials.
The allegations, if any, contained within the foregoing subtitle "C." are denied.
27.
The City denies the allegations in Paragraph 27.
28.
The City lacks knowledge or information sufficient to form a belief as to the truth of the
allegations in Paragraph 28 and therefore denies said allegations.
29.
The City admits the allegations in the first sentence of Paragraph 29. The City denies the
allegations in the second sentence of Paragraph 29.
30.
The City denies the allegations in Paragraph 30.
31.
The City denies the allegations in Paragraph 31.
VI.
PRAYER FOR RELIEF
The City denies the allegations in Section VI. Paragraphs 1-6 and specifically denies that
Plaintiff is entitled to any relief whatsoever of and from the Defendant.
AFFIRMATIVE DEFENSES
1.
Defendant City of Austin asserts the affirmative defense of governmental immunity as a
municipal corporation entitled to immunity while acting in the performance of its
governmental functions, absent express waiver.
2.
The City asserts the affirmative defense of governmental immunity since its employees are
entitled to qualified/official immunity for actions taken in the course and scope of their
employment, absent express waiver.
4
Case 1:21-cv-00992-DII-SH Document 29 Filed 07/06/23 Page 5 of 6
3.
As a political subdivision, the City denies that it can be liable for exemplary/punitive
damages under 42 U.S.C. § 1983.
4.
The incidents in question and the resulting harm to Plaintiff were caused or contributed to
by Plaintiff's own illegal conduct.
5.
The City reserves the right to assert additional affirmative defenses throughout the
development of the case.
6.
Pleading further and in the alternative, Plaintiff's injuries and damages were caused in
whole or in part by the conduct of other persons or entities for whom the City is not liable
or responsible and who are not currently parties to the lawsuit.
7.
To the extent the City did not address a specific averment made by Plaintiff in the First
Amended Complaint, the City specifically denies all such averments.
DEFENDANT'S PRAYER
The City prays that all relief requested by Plaintiff be denied, that the Court dismiss this
case with prejudice, and that the Court award the City costs and attorney's fees, and any additional
relief to which it is entitled under law or equity.
RESPECTFULLY SUBMITTED,
ANNE L. MORGAN, CITY ATTORNEY
MEGHAN RILEY, CHIEF, LITIGATION
/s/ Sara E. Rice
SARA E. RICE
Assistant City Attorney
State Bar No. 24110273
sara.rice@austintexas.gov
City of Austin Law Department
P.O. Box 1546
Austin, Texas 78767-1546
Telephone: (512) 974-6463
Facsimile: (512) 974-1311
ATTORNEYS FOR DEFENDANT
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Case 1:21-cv-00992-DII-SH Document 29 Filed 07/06/23 Page 6 of 6
CERTIFICATE OF SERVICE
This is to certify that I have served a copy of the foregoing on all parties or their attorneys
of record, in compliance with the Federal Rules of Civil Procedure, this 6th day of July 2023.
Via CM/ECF:
Peter D. Kennedy
State Bar No. 11296650
pkennedy@gdhm.com
Daniela Peinado Welsh
State Bar No. 24127300
dwelsh@gdhm.com
Graves, Dougherty, Hearon & Moody, P.C.
401 Congress Avenue, Suite 2700
Austin, Texas 78701
(512) 480-5764
(512) 480-9908 (Fax)
ATTORNEYS FOR PLAINTIFF
/s/
Sara E. Rice
SARA E. RICE
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