Barrientos v. Zapata County et al

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
LAREDO DIVISION
RIGOBERTO BARRIENTOS,
Plaintiff,
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v. Civil No. 5:23-cv-00068
ZAPATA COUNTY,
RAYMUNDO DEL BOSQUE, JR.,
JOSE "JOEY" MARTINEZ,
HECTOR SOLIS,
JOSE RAMIREZ,
and ARIEL GONZALEZ,
Defendants.
REPORT AND RECOMMENDATION
Before the Court is Plaintiff’s Motion for Leave to File Third Amended Complaint, Dkt.
No. 62, and Defendant’s Response, Dkt. No. 67. These motions were referred to the undersigned
to issue a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1). Dkt. No. 68. Plaintiff
seeks to amend his complaint to add a “supplemental state-law tort claim” for false arrest and
imprisonment under Texas common law. Dkt. No. 62 at 1. For the following reasons, the
undersigned RECOMMENDS that Plaintiff’s Motion for Leave to File Third Amended
Complaint, Dkt. No. 62, be DENIED.
Background
Plaintiff has foregone five distinct opportunities to bring his state law claims in this suit.
First, Plaintiff filed his original complaint on July 10, 2023, bringing claims under 42 U.S.C.
§ 1983 for wrongful arrest and excessive force in violation of the Fourth and Fourteenth
United States District Court
Southern District of Texas
ENTERED
December 04, 2025
Nathan Ochsner, Clerk
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Amendments, retaliation for exercising his First Amendment rights, civil conspiracy, failure to
train and supervise, and a Monell claim against Zapata County for tolerating customary excessive
force. Dkt. No. 1. Second, Plaintiff filed his First Amended Complaint shortly thereafter on
August 29, 2023. Dkt. No. 11. Third, on November 9, 2023, Plaintiff was granted leave and filed
his Second Amended Complaint. Dkt. No. 21. Fourth, The District Court dismissed without
prejudice Plaintiff’s Monell claims against Defendant Del Bosque and Defendant Zapata County,
Plaintiff’s failure-to-train claim against Defendant Del Bosque and Defendant Zapata County,
Plaintiff’s claim that Defendant Del Bosque ratified the Defendant Deputies’ use of excessive
force, and Plaintiff’s failure-to-train claim against Defendant Del Bosque in his individual
capacity. Dkt. No. 34 at 2–3. Plaintiff did not amend his complaint following this development.
After the Initial Pretrial and Scheduling Conference on April 22, 2024, the Court adopted
the parties’ proposed scheduling order, including a deadline of September 1, 2024, for Plaintiff to
ask for the Court’s leave to amend his pleadings. Dkt. No. 40. This deadline was subsequently
extended to December 1, 2024. Dkt. No. 43. At this point, for a fifth time, Plaintiff did not avail
himself of the opportunity to amend his complaint. While the Court agreed to amend the
scheduling order two additional times upon the parties’ joint motions, Dkt. Nos. 51–54, the
deadline to amend pleadings by December 1, 2024, had already passed and was not extended.
Yet, on October 14, 2025, more than ten months after the deadline had past, Plaintiff filed
his Motion for Leave to File Plaintiff’s Third Amended Complaint. Dkt. No. 62. Plaintiff seeks
to amend his complaint to add a state law false arrest claim, which Plaintiff attests “ensures that
all claims arising from the same conduct can be resolved in a single action, promoting judicial
efficiency and consistency of outcome.” Id. at 2.
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Defendants filed a response in opposition to Plaintiff’s motion, alleging that the proposed
amendment would result in undue delay, that the proposed amendment is futile, that it would cause
undue prejudice to Defendants, and that it was made in bad faith. Dkt. No. 67. Namely,
Defendants protest that Plaintiff waited years after filing the original complaint to add a state law
claim that arose from the same operative facts. Id. at 2–3. They further argue that the proposed
amendment would be futile because it violates the statute of limitations and does not fall under the
waiver of immunity provided for in the Texas Tort Claims Act. Id. at 3–4. For these reasons,
Defendants argue that the proposed amendment would unduly prejudice their case and
demonstrates bad faith on Plaintiff’s part. Id. at 4–5.
Legal Standards
Parties may amend their pleading only with the written consent of the opposing party or
the court’s leave. Fed. R. Civ. P. 15(a)(2). “The court should freely give leave when justice so
requires.” Id. A pretrial scheduling order, however, may be modified “only for good cause and
with the judge’s consent.” Fed. R. Civ. P. 16(b)(4). If a party seeks to amend their pleading after
the deadline in the Court’s scheduling order to do so has expired, Rule 16(b) governs. S&W
Enters., L.L.C v. SouthTrust Bank of Ala., NA, 315 F.3d 533, 536 (5th Cir. 2003). “Only upon the
movant’s demonstration of good cause to modify the scheduling order will the more liberal
standard of Rule 15(a) apply to the district court’s discretion to grant or deny leave.” Id. Courts
apply a four-part test to determine whether there is good cause to modify the scheduling order: (1)
the reason for the failure to meet the deadline, (2) the importance of the amendment, (3) any
potential prejudice that would result from allowing the amendment, and (4) the availability of a
continuance to cure such prejudice. Id.; Butowsky v. Folkenflik, No. 4:18-CV-442, 2020 WL
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9936143 at 25 (E.D. Tex. Sept. 1, 2020) (citing Reliance Ins. Co. v. The La. Land & Exploration
Co., 110 F.3d 253, 257 (5th Cir. 1997)).
Discussion
Because the deadline for Plaintiff to amend his pleading under the operative scheduling
order was December 1, 2024, the Court must first determine whether there is good cause to amend
the scheduling order. S&W Enters., 315 F.3d at 536. To do so, the Court applies the Fifth Circuit’s
four-factor test: (1) Plaintiff offers no reason for failure to meet the deadline to amend his
complaint. In fact, Plaintiff himself states that the proposed amendment “simply asserts the
corresponding state-law claim for false arrest/false imprisonment arising from the same facts long
before the Court.” Dkt. No. 62 at 3. While Plaintiff argues that its basis in the same operative
facts renders the proposed amendment less prejudicial and that it would not prolong discovery, he
also offers no explanation for the two-year delay in bringing a claim based on facts that have been
pled in the suit since its inception. Nor did he take advantage of the five previous junctures in the
case where amending his complaint would have been reasonable. When determining whether there
is reason to grant leave to amend a pleading, Court may consider an unexplained delay, especially
when the underlying facts to the proposed amendment were known to the plaintiff at the time the
complaint was filed. In re Southmark Corp., 88 F.3d 311, 316 (5th Cir. 1996). Here, these
considerations cut against allowing Plaintiff to amend his complaint at this late hour in the
pendency of the case.
(2) At face value, the amendment is important in that it adds a new claim under Texas law.
Namely, Plaintiff seeks to add a false arrest claim under state law based on Plaintiff’s detention by
Defendants on April 26, 2022. Dkt. No. 62-1 at 3. However, because Plaintiff’s operative
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complaint already includes a federal claim for false arrest, the importance of the proposed
amendment is diminished.
(3) The parties dispute whether the proposed amendment would prejudice Defendants.
While Plaintiff contends that the proposed amendment is not prejudicial because it arises from the
same set of facts already developed in discovery, Dkt. No. 62 at 2, Defendant argues that the
amendment would be prejudicial in requiring additional legal briefing to defend against a claim
that Defendants argue is futile. Dkt. No. 67 at 5. Given that the case is in its later stages, and
Plaintiff himself has already filed his motion for summary judgment, Dkt. No. 58, the Court finds
that requiring additional briefing on new legal issues at this point would be prejudicial and cause
undue delay. (4) Likewise, a continuance of the dispositive motions deadlines to cure the potential
prejudice, at this late juncture in the case, would constitute undue delay. Accordingly, the Court
finds that Plaintiff has failed to show good cause to amend the scheduling order under Rule
16(b)(4).
Absent such good cause to modify the scheduling order, the more liberal standard of Rule
15(a) does not apply. See S&W Enters., 315 F.3d at 536. Therefore, the Court does not reach the
issues of whether justice requires leave to amend under Rule 15(a).
Conclusion
For the foregoing reasons, the undersigned hereby RECOMMENDS that Plaintiff’s
Motion for Leave to File Third Amended Complaint, Dkt. No. 62, be DENIED.
Warnings
The parties may file objections to this Report and Recommendation, unless they waive the
right to do so. A party filing objections must specifically identify those findings or
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recommendations to which objections are being made. The District Court need not consider
frivolous, conclusive, or general objections. Battle v. U.S. Parole Comm’n, 834 F.2d 419, 421 (5th
Cir. 1987) (quoting Nettles v. Wainwright, 677 F.2d 404, 410 n.8 (5th Cir. 1982) (en banc)).
A party’s failure to file written objections to the proposed findings and recommendations
contained in this Report within fourteen (14) days after being served with a copy of the Report—
or the party’s waiver of the right to do so—shall bar that party from de novo review by the District
Court of the proposed findings and recommendations and, except upon grounds of plain error, shall
bar the party from appellate review of proposed factual findings and legal conclusions accepted by
the District Court to which no objections were filed. See 28 U.S.C. § 636(b)(1); Thomas v. Arn,
474 U.S. 140, 150-53 (1985); Douglass v. United Services Auto. Ass’n, 79 F.3d 1415, 1428-29 (5th
Cir. 1996) (en banc).
IT IS SO RECOMMENDED
Signed this December 4, 2025, in Laredo, Texas.
______________________________
Diana Song Quiroga
United States Magistrate Judge
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