Brady v. Marquez et al

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
KEVIN BRADY
(SPN # 02033321),
Plaintiff,
versus
OFFICER MARQUEZ, et al,
Defendants.
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CIVIL ACTION NUMBER
4:25-cv-03137
JUDGE CHARLES ESKRIDGE
OPINION AND ORDER ON DISMISSAL
The complaint by Plaintiff Kevin Brady is dismissed as
frivolous and for failing to state a claim upon which relief
can be granted. Dkt 1.
1. Background
Plaintiff is a former inmate of the Harris County Jail.
He proceeds here pro se and in forma pauperis.
While he was detained, he filed this action under
42 USC §1983, alleging civil-rights violations during the
events culminating in his state-court criminal proceedings.
Dkt 1. He sues Officer Marquez of the Houston Police
Department, Gabriel Galindo Olvera, Alejandro Galindo
Olvera, Margarito Galindo, and the Harris County District
Attorney. Id at 3.
The complaint alleges that the Olveras and Galindo
attacked and assaulted Plaintiff as he was getting into his
truck on April 18, 2025. Id at 4. They pulled him from his
truck, hit him on the head with a hammer, tore his clothes,
and stabbed him. Ibid. Officer Marquez responded to the
scene, but he refused to listen to Plaintiff’s side of the story.
Ibid. Instead, while Plaintiff was being treated for his
injuries in the emergency room, Marquez arrested him for
assaulting the Olveras and Galindo based on false reports
United States District Court
Southern District of Texas
ENTERED
July 21, 2026
Nathan Ochsner, Clerk
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they made at the scene. Id at 3–4. Marquez then filed a
false police report about the incident, relying on the
statements from the Olveras and Galindo. Id at 4.
The District Attorney in turn relied on the false report
by Marquez and charged Plaintiff with aggravated assault
with a deadly weapon. Id at 3–4. He alleges that the false
charge was filed against him in retaliation for a prior
lawsuit he brought against a Harris County Sheriff’s task
force. Id at 3.
Plaintiff alleges that Marquez violated the First
Amendment by refusing to listen to his side of the story and
the Fourth Amendment by arresting him without probable
cause. Ibid. He alleges that the Olveras and Galindo
violated his rights by making false allegations against him.
Ibid. And he alleges that the District Attorney wrongfully
brought the charge against him based on the false report
to punish him for his past acts. Ibid. Plaintiff seeks
dismissal of the criminal charge against him and an award
of money damages. Id at 4.
2. Legal standard
Plaintiff’s complaint is construed liberally because he
proceeds pro se. Coleman v United States, 912 F3d 824, 828
(5th Cir 2019), citing Erickson v Pardus, 551 US 89, 94
(2007, per curiam).
Plaintiff also proceeds in forma pauperis. As such, he
is subject to the strictures of 28 USC §1915. Subsection
(e)(2)(B)(i) commands that the district court “shall dismiss
the case at any time” upon determination that it is
“frivolous or malicious.” A complaint is frivolous if it lacks
an arguable basis in law or fact. See Denton v Hernandez,
504 US 25, 31 (1992), quoting Neitzke v Williams, 490 US
319, 325 (1989). A complaint lacks an arguable basis in law
in this context “if it is based on an indisputably meritless
legal theory, such as if the complaint alleges the violation
of a legal interest which clearly does not exist.” Siglar v
Hightower, 112 F3d 191, 193 (5th Cir 1997). A complaint
lacks an arguable basis in fact in this context “if, after
providing the plaintiff the opportunity to present
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additional facts when necessary, the facts alleged are
clearly baseless.” Rogers v Boatright, 709 F3d 403, 407
(5th Cir 2013), quoting Berry v Brady, 192 F3d 504, 507
(5th Cir 1999). An action is malicious in this context if it
contains only allegations that the litigant knows are false.
Horsey v Asher, 741 F2d 209, 212 (8th Cir 1984); see also
Sloan v Thaler, 1994 WL 652618, *1–2 (5th Cir) (affirming
dismissal of claims as frivolous and malicious when claims
were factually baseless).
A complaint must also be dismissed if it fails to state a
claim upon which relief can be granted. 28 USC
§1915(e)(2)(B)(ii). A claim fails to state a claim upon which
relief can be granted if it doesn’t contain “sufficient factual
matter, accepted as true, to state a claim to relief that is
plausible on its face.” Rogers, 709 F3d at 407, quoting
Ashcroft v Iqbal, 556 US 662, 678 (2009). In reviewing the
complaint, all allegations are construed “liberally in favor
of the plaintiff,” all facts pleaded in the complaint are taken
as true, and the court then considers whether “with every
doubt resolved on [the plaintiff’s] behalf, the complaint
states any valid claim for relief.” Harrington v State Farm
Fire and Casualty Co, 563 F3d 141, 147 (5th Cir 2009),
quoting Gregson v Zurich American Insurance Co, 322 F3d
883, 885 (5th Cir 2003) (cleaned up). If it doesn’t, the
complaint must be dismissed, even before service on the
defendants. See Green v McKaskle, 788 F2d 1116, 1119
(5th Cir 1986).
3. Discussion
a. Claims against the District Attorney
Plaintiff sues the Harris County District Attorney for
accepting an allegedly false police report and prosecuting
him based on that report. Dkt 1 at 3.
Prosecutors have absolute immunity from claims for
damages when performing their duties as prosecutors.
Loupe v O’Bannon, 824 F3d 534, 539 (5th Cir 2016). Such
immunity extends to all activities “intimately associated
with the judicial phase of the criminal process.” Van de
Kamp v Goldstein, 555 US 335, 342–43 (2009), quoting
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Imbler v Pachtman, 424 US 409, 430 (1976). It thus applies
to a prosecutor’s decisions to initiate a prosecution and
while handling the case throughout the judicial process.
Loupe, 824 F3d at 539 (cleaned up): “A prosecutor is
absolutely immune for initiating and pursuing a criminal
prosecution, for actions taken in her role as ‘advocate for
the state’ in the courts, or when her conduct is ‘intimately
associated with the judicial phase of the criminal process.’”
Plaintiff’s claim against the District Attorney seeks
damages for the allegedly improper initiation of criminal
charges against him. That decision was made in the
District Attorney’s role in representing the government.
Absolute immunity thus precludes this claim.
The claim by Plaintiff against the District Attorney will
be dismissed as seeking monetary relief against a
defendant immune from such relief. See 28 USC
§1915(e)(2)(B)(iii).
b. Claims against the Olveras and Galindo
Plaintiff seeks damages from the Olveras and Galindo
based on their allegedly false report to Marquez.
To state a valid claim under § 1983, a plaintiff must
(i) allege a violation of rights secured by the Constitution
or laws of the United States, and (ii) demonstrate that the
alleged violation was committed by a person acting under
color of state law. West v Atkins, 487 US 42, 48 (1988);
Gomez v Galman, 18 F4th 769, 775 (5th Cir 2021,
per curiam). The first element recognizes that “state tort
claims are not actionable under federal law; a plaintiff
under [§]1983 must show deprivation of a federal right.”
Nesmith v Taylor, 715 F2d 194, 195 (5th Cir 1983,
per curiam). The second element means that generally only
state actors—not private parties—can be liable for
violations of civil rights. Frazier v Board of Trustees of
Northwest Mississippi Regional Medical Center, 765 F2d
1278, 1283 (5th Cir 1985). For a private citizen to be liable
under §1983, there must be allegations showing that the
citizen conspired with or acted in concert with a state actor.
Mylett v Jeane, 879 F2d 1272, 1275 (5th Cir 1989,
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per curiam), citing Adickes v S H Kress & Company,
398 US 144, 152 (1970); see also Priester v Lowndes
County, 354 F3d 414, 420 (5th Cir 2004). When the facts
alleged by the plaintiff, taken as true, don’t show a
violation of a federal or constitutional right by a state actor,
the complaint must be dismissed for failure to state a
claim. See Rios v City of Del Rio, Texas, 444 F3d 417, 421
(5th Cir 2006).
Perhaps Plaintiff has a claim against the Olveras and
Galindo under Texas state law. But they aren’t alleged to
be either state actors or persons acting in concert with a
state actor. Absent such allegations, Plaintiff fails to state
a claim against them under §1983.
The claims by Plaintiff against the Olveras and
Galindo will be dismissed for failing to state a claim upon
which relief can be granted.
c. Claims against Officer Marquez
Plaintiff sues Officer Marquez based on allegations
that he violated his rights under the First and Fourth
Amendment.
As to the First Amendment claim, it isn’t clear whether
Plaintiff is claiming that Marquez violated his rights by
refusing to accept his version of the events or that Marquez
retaliated against him for voicing his version of events.
Either way, he fails to state a claim upon which relief can
be granted.
If it’s a refusal-to-listen claim, it is true that the First
Amendment protects a speaker’s right to speak and a
listener’s right to receive information. See Board of
Education, Island Trees Union Free School District
Number 26 v Pico, 457 US 853, 867 (1982, plurality
opinion); see also Association of American Physicians and
Surgeons Educational Foundation v American Board of
Internal Medicine, 103 F4th 383, 390 (5th Cir 2024). But it
doesn’t require the listener to listen, respond, or accept
what the speaker is saying as true. See Smith v Arkansas
State Highway Employees, Local 1315, 441 US 463, 466
(1979, per curiam) (holding that no First Amendment claim
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arises when challenged conduct is simply to ignore
speaker). Plaintiff doesn’t state a First Amendment claim
based on allegations that Marquez refused to listen to him.
If it’s a retaliation claim, it requires the plaintiff to
show that (i) he was engaged in constitutionally protected
activity, (ii) the officer’s actions were such that they would
chill a person of ordinary firmness from continuing to
engage in that activity, and (iii) the officer’s actions were
substantially motivated by an opposition to plaintiff’s
constitutionally protected conduct. Alexander v City of
Round Rock, 854 F3d 298, 308 (5th Cir 2017). Plaintiff
alleges no facts showing that Marquez arrested him
because he was exercising his right to speak.
For both reasons, the claim by Plaintiff for a First
Amendment violation by Officer Marquez will be dismissed
for failing to state a claim upon which relief can be granted.
As to the Fourth Amendment claim, Plaintiff runs afoul
of the rule that when “a judgment in favor of the plaintiff
would necessarily imply the invalidity of his conviction or
sentence,” he must first “demonstrate that the conviction
or sentence has already been invalidated.” Heck v
Humphrey, 512 US 477, 486–87 (1994). A claim alleging
that an arrest was unsupported by probable cause attacks
the validity of any conviction stemming from it because the
conviction itself necessarily implies that there was
probable cause for the arrest. See Wells v Bonner, 45 F3d
90, 95 (5th Cir 1995); Walter v Horseshoe Entertainment,
483 F Appx 884, 887 (5th Cir 2012, per curiam). As such, a
plaintiff making such a claim must demonstrate that any
charge stemming from that arrest has been terminated in
his favor. Wells, 45 F3d at 95.
Public records show that Plaintiff was convicted upon
pleading guilty to aggravated assault with a deadly
weapon as a result of the incident with the Olveras and
Galindo and later sentenced to four years’ incarceration.
Harris County District Clerk, www.hcdistrictclerk.com.
Such conviction and sentence necessarily implies that
probable cause existed for his arrest. And his claim as to
an arrest without probable cause necessarily calls into
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question the validity of that conviction, which hasn’t yet
been invalidated or otherwise set aside. His claim based on
the allegedly false arrest is therefore barred by Heck.
The Fifth Circuit states, “A §1983 claim which falls
under the rule in Heck is legally frivolous unless the
conviction or sentence at issue has been reversed,
expunged, invalidated, or otherwise called into question.”
Hamilton v Lyons, 74 F3d 99, 102 (5th Cir 1996). Fifth
Circuit authority is likewise clear as to the result. “Because
[the plaintiff] is seeking damages pursuant to §1983 for
unconstitutional imprisonment and has not satisfied the
favorable termination requirement of Heck, he is barred
from any recovery and fails to state a claim upon which
relief may be granted.” Randell v Johnson, 227 F3d 300,
301 (5th Cir 2000, per curiam).
The claim by Plaintiff for damages from Officer
Marquez under the Fourth Amendment is dismissed with
prejudice. But such claim is subject to potential reassertion
at a later time if the Heck conditions are satisfied. See
Johnson v. McElveen, 101 F3d 423, 424 (5th Cir 1996, per
curiam).
d. Claim for injunctive relief
Plaintiff also seeks an order dismissing the criminal
charge arising from the incident in addition to his claims
for damages.
As explained above, Plaintiff doesn’t state a claim
against any of the defendants upon which relief can be
granted, whether for damages or injunctive relief. And any
claim challenging the validity of the criminal charges is
barred by Heck, including claims seeking injunctive relief.
See Chambers v Carson, 2025 WL 2433521, *2 (ND Tex),
citing Edwards v Balisok, 520 US 641, 648 (1997) (applying
Heck to claims for declaratory relief), and Clarke v Stadler,
154 F3d 186, 190–91 (5th Cir 1988, en banc) (applying Heck
to claims for injunctive relief).
The claim by Plaintiff for dismissal of his state-court
criminal charge is dismissed with prejudice. But such claim
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is subject to potential reassertion at a later time if the Heck
conditions are satisfied. See Johnson, 101 F3d at 424.
4. Conclusion
The complaint by Plaintiff Kevin Brady is DISMISSED
WITH PREJUDICE as frivolous, for seeking relief against
defendants who are immune, and for failing to state a claim
upon which relief can be granted.
All pending motions are DENIED AS MOOT.
A final judgment will enter separately.
This dismissal counts as a STRIKE under 28 USC
§1915(g).
The Clerk of Court must SEND a copy of this Order to
the Manager of the Three-Strikes List for the Southern
District of Texas at Three_Strikes@txs.uscourts.gov.
SO ORDERED.
Signed on , at Houston, Texas.
__________________________
Honorable Charles Eskridge
United States District Judge
July 21, 2026
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